October 25, 2011
Seventh Circuit Dismisses Free Speech, Patronage Case
The Seventh Circuit today rejected the free speech claim of a frustrated candidate for promotion in the Cook County Sheriff's Office. The case, Brown v. County of Cook, arose out of a sargeant's claim that he was denied promotion to lieutenant after he failed to support the Sheriff--and indeed supported his opponent--in the Sheriff's earlier election and re-election campaigns.
The plaintiff, Thomas Brown, brought the case under Rutan v. Republican Party of Illinois, another political patronage case coming out of Illinois, holding that "[u]nless these patronage practices are narrowly tailored to further vital government interests, we must conclude that they impermissibly encroach on First Amendment freedoms."
But Brown didn't even get that far. Instead, the case turned on whether patronage was even a motivating factor. Judge Posner wrote that the Seventh Circuit just this month affirmed its burden-shifting approach to that question:
If Brown presented evidence at the summary judgment phase of the litigation that could convince a reasonable jury that his political affiliation was a motivating factor in his being passed over, the burden would shift to [Sheriff] Sheahan to present evidence that could convince a reasonable jury that Brown's political affiliation was not a "but for" cause of the discrimination. . . .
To restate [our standard] in simpler terms, if Brown can prove that he would have been denied promotion because of his political affiliation alone, then to avoid an adverse judgment Sheahan would have to show that even so Brown would have been denied promotion for some other reason, in which event his political affiliation had no causal significance. If Sheahan can meet that burden, it is as if he had told Brown "I can't promote you because there's no opening for another lieutenant, but if there were I still wouldn't promote you, because you made a donation to my opponent five years ago." There would be no constitutional violation because if Sheahan was being truthful Brown would not be worse off as a result of his political affiliation than if he'd contributed to Sheahan's campaign instead.
Op. at 2-3.
The problem here: Brown had no evidence. None. And what he did produce did far more to entertain Judge Posner than it could ever do to prove his case. The opinion's a good read, and the case is a good lesson in how not to win a First Amendment claim under Rutan.
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