Petitioner
O'Hare Truck Service, Inc.
Respondent
City of Northlake
Petitioner's Claim
That the removal of the truck service from the city's list of contractors wasbased on the owner's support for another political candidate, and thereforeabridged his freedom of association.
Chief Lawyer for Petitioner
Harvey Grossman
Chief Lawyer for Respondent
Gary Feiersel
Justices for the Court
Stephen Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy (writing for the Court), Sandra Day O'Connor, William H. Rehnquist, John Paul Stevens, David H. Souter
Justices Dissenting
Antonin Scalia, Clarence Thomas
Place
Washington, D.C.
Date of Decision
28 June 1996
Decision
The Court reversed the lower courts' rulings that free speech protections donot extend to government contractors, and remanded the case to the lower courts.
Significance
This case extended freedom of speech and association to government contractors as well as public employees.
O'Hare Truck Service, owned by John Gratzianna, had been on the city of Northlake's rotation list of towing services since 1965. Over almost 30 years, Gratzianna had donated money and services to various politicians to cultivate business. He had every indication that his company provided good service and that the city would continue to give him work. In 1993, the incumbent mayoral candidate, Reid Paxson, asked Gratzianna for a campaign contribution of "morethan $1,000," according to a story by Joan Biskupic in the Washington Post. Not only did Gratzianna not contribute, he displayed posters for Paxson's opponent. Following Paxson's reelection, O'Hare Truck Service was removedfrom the city's rotation list. The ensuing court case was an important chapter in the history of U.S. patronage practices.
The Patronage System
Political patronage has been practiced throughout the history of the United States. George Washington, Thomas Jefferson, and John Adams all openly made patronage appointments; Washington's explicit policy was that high-level appointments would be based on patronage, low-level appointments on performance. Andrew Jackson entrenched the practice, giving personal attention to all patronage appointments. In 1883, the Pendleton Act, which created a Civil Service Commission and merit system, put a damper on patronage to some degree, but until the 1950s the courts basically held that no one had a right to public employment. In the latter half of the twentieth century, the courts turned theirattention to the First Amendment rights of public employees.
Elrod, Branti, Rutan
Three Supreme Court cases defined these rights. In the first, Elrod v. Burns (1976), the Court held that public employees cannot be dismissed on the basis of their party affiliation. The Court found that patronage dismissalsviolate the First and Fourteenth Amendments. While employees' rights of political belief and affiliation are not absolute, the burden is on the government to show that it has a vital interest in making decisions based on patronage. The Court considered the argument that patronage ensured that an elected government's policies were not undercut by a rebellious staff, but thought thisproblem could be addressed by limiting patronage dismissals to policymakingor confidential positions.
The second case, Branti v. Finkel (1980), addressed the question of "policymaking positions." Branti was brought by two Republican assistantpublic defenders who were fired by a newly appointed Democratic public defender. This time, the Court held that the label "policymaking" was less important than the nature of the position. The question is whether "party affiliation is an appropriate requirement for the effective performance of the office."The Court argued that political allegiance was not a legitimate condition for employment as a public defender (and in fact, would undermine the effectiveperformance of the office), and ruled for the assistant public defenders.
While Elrod and Branti dealt with dismissals, the third case, Rutan v. Republican Party of Illinois (1980), dealt with hirings and promotions. The case was brought by Illinois state employees after the newly elected governor turned all hiring and promotions decisions over to his officeof personnel. The office based its decisions on employees' contributions to and support of the Republican Party. The Supreme Court found this practice unconstitutional.
After Rutan, it still was not clear whether these protections extendedto independent contractors. The Fifth, Eighth, Ninth, and Tenth Circuit Courts extended the rule to include contractors, based on three arguments: a contractor's situation is analogous to an employee's; the government could easilycontract out more jobs to evade existing patronage restrictions; and the suppression of speech was unconstitutional whatever the status of the individual. The Third and Seventh Circuit Courts, on the other hand, did not recognizeprotection for contractors, reasoning that contractors depend less on government business than did public employees. It was in this context that John Gratzianna brought suit.
The Case in the Lower Courts
Gratzianna sued in U.S. District Court for the Northern District of Illinois,for infringement of his First Amendment rights of political association. Thedistrict court dismissed the claim, because of the Seventh Circuit's position on protection for contractors. The Court of Appeals for the Seventh Circuitaffirmed, saying that if Elrod were to be extended, it would have tobe done by the Supreme Court. The Supreme Court then granted certiorari,, citing the circuit split.
The Court's Judgment: Contractors Protected
The Court reversed the lower courts' ruling. Citing Elrod and Branti, Justice Kennedy wrote that "patronage does not justify the coercion of a person's political beliefs and associations." In such cases, in which affiliation is the sole basis of dismissal, there is no need to inquire whetherthe affiliation requirement was reasonable. However, he went on say that in cases that involve speech as well as affiliation, a balancing test from an earlier free speech case, Pickering v. Board of Education, would apply. (And he said that O'Hare might be such a case.) The Pickering test balances the employees' rights against the government's interests in the efficiency of its office. Kennedy then said that because the court of appealshad considered O'Hare to be an affiliation case, the Supreme Court would do likewise and try it as such.
The Court held that a contractor was protected to the same extent that publicemployees were. Kennedy responded to the city's arguments:
The Court rejected the Seventh Circuit's reasoning in distinguishing employees from contractors. An amicus curiae brief filed by the Towing and Recovery Association of America, Inc., indicated that government referrals account for 30 to 60 percent of contractors' business (for contractors that work with the government at all). The argument that contractors do not depend on government business, then, does not hold.
Kennedy briefly addressed the fear that this decision would spawn numerous suits. First, similar cases in the past had not resulted in excessive litigation. Second, government agencies were still allowed wide latitude in hiring andfiring decisions. An agency might end a contract based on merit, or even onpolitical affiliation, if that were relevant to the job. Thus, agencies wouldnot be at the mercy of baseless lawsuits. What was unacceptable in this casewas that the city offered no justification for its actions other than its interest in maintaining a patronage system. Having made the above judgments, the Court sent the case back to the lower courts, to decide whether the Elrod-Branti rule or the Pickering balancing test would apply.
Dissent: A Tradition of Patronage
Justice Scalia filed a dissent, joined by Justice Thomas. He began with a quotation from his dissent in Rutan:
Scalia further questioned the Court's failure to provide a clear precedent for deciding patronage cases. The distinction between pure affiliation cases and speech cases was confusing and pointless. He also argued that the court hadhedged on whether the affiliation test was to be absolute when it allowed for some "case-by-case adjudication" in affiliation cases.
Impact
While this ruling may increase the risk of lawsuits against government employers, it also protects the freedoms of speech and association for independentcontractors. These freedoms are particularly important in the late 1990s whengovernment is contracting out more and more jobs.
Related Cases
O'Hare Truck Service, Inc.
Respondent
City of Northlake
Petitioner's Claim
That the removal of the truck service from the city's list of contractors wasbased on the owner's support for another political candidate, and thereforeabridged his freedom of association.
Chief Lawyer for Petitioner
Harvey Grossman
Chief Lawyer for Respondent
Gary Feiersel
Justices for the Court
Stephen Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy (writing for the Court), Sandra Day O'Connor, William H. Rehnquist, John Paul Stevens, David H. Souter
Justices Dissenting
Antonin Scalia, Clarence Thomas
Place
Washington, D.C.
Date of Decision
28 June 1996
Decision
The Court reversed the lower courts' rulings that free speech protections donot extend to government contractors, and remanded the case to the lower courts.
Significance
This case extended freedom of speech and association to government contractors as well as public employees.
O'Hare Truck Service, owned by John Gratzianna, had been on the city of Northlake's rotation list of towing services since 1965. Over almost 30 years, Gratzianna had donated money and services to various politicians to cultivate business. He had every indication that his company provided good service and that the city would continue to give him work. In 1993, the incumbent mayoral candidate, Reid Paxson, asked Gratzianna for a campaign contribution of "morethan $1,000," according to a story by Joan Biskupic in the Washington Post. Not only did Gratzianna not contribute, he displayed posters for Paxson's opponent. Following Paxson's reelection, O'Hare Truck Service was removedfrom the city's rotation list. The ensuing court case was an important chapter in the history of U.S. patronage practices.
The Patronage System
Political patronage has been practiced throughout the history of the United States. George Washington, Thomas Jefferson, and John Adams all openly made patronage appointments; Washington's explicit policy was that high-level appointments would be based on patronage, low-level appointments on performance. Andrew Jackson entrenched the practice, giving personal attention to all patronage appointments. In 1883, the Pendleton Act, which created a Civil Service Commission and merit system, put a damper on patronage to some degree, but until the 1950s the courts basically held that no one had a right to public employment. In the latter half of the twentieth century, the courts turned theirattention to the First Amendment rights of public employees.
Elrod, Branti, Rutan
Three Supreme Court cases defined these rights. In the first, Elrod v. Burns (1976), the Court held that public employees cannot be dismissed on the basis of their party affiliation. The Court found that patronage dismissalsviolate the First and Fourteenth Amendments. While employees' rights of political belief and affiliation are not absolute, the burden is on the government to show that it has a vital interest in making decisions based on patronage. The Court considered the argument that patronage ensured that an elected government's policies were not undercut by a rebellious staff, but thought thisproblem could be addressed by limiting patronage dismissals to policymakingor confidential positions.
The second case, Branti v. Finkel (1980), addressed the question of "policymaking positions." Branti was brought by two Republican assistantpublic defenders who were fired by a newly appointed Democratic public defender. This time, the Court held that the label "policymaking" was less important than the nature of the position. The question is whether "party affiliation is an appropriate requirement for the effective performance of the office."The Court argued that political allegiance was not a legitimate condition for employment as a public defender (and in fact, would undermine the effectiveperformance of the office), and ruled for the assistant public defenders.
While Elrod and Branti dealt with dismissals, the third case, Rutan v. Republican Party of Illinois (1980), dealt with hirings and promotions. The case was brought by Illinois state employees after the newly elected governor turned all hiring and promotions decisions over to his officeof personnel. The office based its decisions on employees' contributions to and support of the Republican Party. The Supreme Court found this practice unconstitutional.
After Rutan, it still was not clear whether these protections extendedto independent contractors. The Fifth, Eighth, Ninth, and Tenth Circuit Courts extended the rule to include contractors, based on three arguments: a contractor's situation is analogous to an employee's; the government could easilycontract out more jobs to evade existing patronage restrictions; and the suppression of speech was unconstitutional whatever the status of the individual. The Third and Seventh Circuit Courts, on the other hand, did not recognizeprotection for contractors, reasoning that contractors depend less on government business than did public employees. It was in this context that John Gratzianna brought suit.
The Case in the Lower Courts
Gratzianna sued in U.S. District Court for the Northern District of Illinois,for infringement of his First Amendment rights of political association. Thedistrict court dismissed the claim, because of the Seventh Circuit's position on protection for contractors. The Court of Appeals for the Seventh Circuitaffirmed, saying that if Elrod were to be extended, it would have tobe done by the Supreme Court. The Supreme Court then granted certiorari,, citing the circuit split.
The Court's Judgment: Contractors Protected
The Court reversed the lower courts' ruling. Citing Elrod and Branti, Justice Kennedy wrote that "patronage does not justify the coercion of a person's political beliefs and associations." In such cases, in which affiliation is the sole basis of dismissal, there is no need to inquire whetherthe affiliation requirement was reasonable. However, he went on say that in cases that involve speech as well as affiliation, a balancing test from an earlier free speech case, Pickering v. Board of Education, would apply. (And he said that O'Hare might be such a case.) The Pickering test balances the employees' rights against the government's interests in the efficiency of its office. Kennedy then said that because the court of appealshad considered O'Hare to be an affiliation case, the Supreme Court would do likewise and try it as such.
The Court held that a contractor was protected to the same extent that publicemployees were. Kennedy responded to the city's arguments:
Respondents insist the principles of Elrod and Branti have no force here, arguingthat an independent contractor's First Amendment rights, unlike a public employees, must yield to the government's asserted countervailing interest in sustaining a patronage system. We cannot accept the proposition, however, that those who perform the government's work outside the formal employment relationship are subject to what we conclude is the direct and specific abridgement of First Amendment rights described in this complaint.
The Court rejected the Seventh Circuit's reasoning in distinguishing employees from contractors. An amicus curiae brief filed by the Towing and Recovery Association of America, Inc., indicated that government referrals account for 30 to 60 percent of contractors' business (for contractors that work with the government at all). The argument that contractors do not depend on government business, then, does not hold.
Kennedy briefly addressed the fear that this decision would spawn numerous suits. First, similar cases in the past had not resulted in excessive litigation. Second, government agencies were still allowed wide latitude in hiring andfiring decisions. An agency might end a contract based on merit, or even onpolitical affiliation, if that were relevant to the job. Thus, agencies wouldnot be at the mercy of baseless lawsuits. What was unacceptable in this casewas that the city offered no justification for its actions other than its interest in maintaining a patronage system. Having made the above judgments, the Court sent the case back to the lower courts, to decide whether the Elrod-Branti rule or the Pickering balancing test would apply.
Dissent: A Tradition of Patronage
Justice Scalia filed a dissent, joined by Justice Thomas. He began with a quotation from his dissent in Rutan:
When a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of along tradition of open, widespread, and unchallenged use that dates back tothe beginning of the Republic, we have no proper basis for striking it down.The Supreme Court was not the proper forum for debating patronage, he claimed. The legislative branch had produced volumes of regulations forpatronage practices; these "have brought to the field a degree of discrimination, discernment, and predictability that cannot be achieved by the blunt instrument of a constitutional prohibition."
Scalia further questioned the Court's failure to provide a clear precedent for deciding patronage cases. The distinction between pure affiliation cases and speech cases was confusing and pointless. He also argued that the court hadhedged on whether the affiliation test was to be absolute when it allowed for some "case-by-case adjudication" in affiliation cases.
Impact
While this ruling may increase the risk of lawsuits against government employers, it also protects the freedoms of speech and association for independentcontractors. These freedoms are particularly important in the late 1990s whengovernment is contracting out more and more jobs.
Related Cases
- Pickering v. Board of Education, 391 U.S. 563 (1968).
- Elrod v. Burns, 427 U.S. 347 (1976).
- Branti v. Finkel, 445 U.S. 507 (1980).
- Connick v. Myers, 461 U.S. 138 (1983).
- Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990).
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