Wednesday, November 28, 2012

Seventh Circuit Says No First Amendment Violation in Non-Confirmation for Political Support

The Seventh Circuit ruled this week in Embry v. City of Calumet that city aldermen did not violate free speech when they vowed not to ratify the mayor's nominee to be city department commissioner based on the nominee's support of the mayor in the prior election. 

The case arose when Embry, the Commissioner for the Department of Streets and Alleys in Calumet City, a position appointed by the mayor, supported the mayor and a group of aldermen running as a team in the city's election.  The aldermen defected from the team of candidates, however, and pressured Embry to support a rival candidate for another alderman slot.  After Embry declined, the aldermen said they'd oppose ratification of Embry's appointment as Commissioner of a new, consolidated city department (that included Embry's old Department of Streets and Alleys).  The mayor then nominated someone else, the council approved, and Embry lost the job.

Embry sued the aldermen, arguing that their opposition to his appointment violated free speech.  He claimed that his case was governed by the public-employee speech rule in Connick v. Myers and Pickering v. Board of Education.

The Seventh Circuit disagreed.  The court ruled that Embry's position was a policy-making position, subject to the Elrod-Branti rule that says that for policy-making jobs the "government employer's need for political allegiance . . . outweighs the employee's freedom of expression[.]"  Op. at 4 (quoting Bonds v. Milwaukee Cnty., 207 F.3d 969 (7th Cir. 2000).  In other words: political appointees can be removed for political reasons.

Moreover, the court said that Embry failed to allege any particular speech unconnected to political affiliation or policy views that led to his non-confirmation.  Embry only alleged that he publicly supported the team, and that he was fired "based on [his] political allegiance to [the mayor]." 

The ruling is consistent with rulings in other circuits and likely ends this case.

SDS

http://lawprofessors.typepad.com/conlaw/2012/11/seventh-circuit-says-no-first-amendment-violation-in-demotion-for-political-support.html

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