Case 4.2 The Least Restrictive Alternative: Elrod
v. Burns (1976)
ELROD
v. BURNS, 427 U.S. 347 (1976)
427 U.S. 347
ELROD, SHERIFF, ET AL. v. BURNS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 74-1520.
Argued April 19, 1976
Decided June 28, 1976
Case 4.2 The Least Restrictive Alternative
Summary
Respondents, Republicans who are non-civil-service employees of the
Cook County, Ill., Sheriff's Office, brought this suit as a class
action for declaratory, injunctive, and other relief against
petitioners, including the newly elected Sheriff, a Democrat, and
county Democratic organizations, alleging that in violation of the
First and Fourteenth Amendments and various statutes, including the
Civil Rights Act of 1871, respondents were discharged or (in the
case of one respondent) threatened with discharge for the sole
reason that they were not affiliated with or sponsored by the
Democratic Party. Finding that respondents had failed to show
irreparable injury, the District Court denied their motion for a
preliminary injunction and ultimately dismissed their complaint for
failure to state a claim upon which relief could be granted. The
Court of Appeals reversed and remanded with instructions to enter
appropriate preliminary injunctive relief. Held: The judgment is
affirmed.
Opinion
Mr. Justice Brennan announced the judgment of the Court and
delivered an opinion, in which WHITE and MARSHALL, JJ joined. This
case presents the question whether public employees who allege that
they were discharged or threatened with discharge solely because of
their partisan political affiliation or nonaffiliation state a claim
for deprivation of constitutional rights secured by the First and
Fourteenth Amendments.
II
In December 1970, the Sheriff of Cook County, a Republican, was
replaced by Richard Elrod, a Democrat. At that time, respondents,
all Republicans, were employees of the Cook County Sheriff's Office.
They were non-civil-service employees and, therefore, not covered by
any statute, ordinance, or regulation protecting them from arbitrary
discharge. One respondent, John Burns, was Chief Deputy of the
Process Division and supervised all departments of the Sheriff's
Office working on the seventh floor of the building housing that
office. Frank Vargas was a bailiff and security guard at the
Juvenile Court of Cook County. Fred L. Buckley was employed as a
process server in the office. Joseph Dennard was an employee in the
office.
It has been the practice of the Sheriff of Cook County, when he
assumes office from a Sheriff of a different political party, to
replace non-civil-service employees of the Sheriff's Office with
members of his own party when the existing employees lack or fail to
obtain requisite support from, or fail to affiliate with, that
party. Consequently, subsequent to Sheriff Elrod's assumption of
office, respondents, with the exception of Buckley, were discharged
from their employment solely because they did not support and were
not members of the Democratic Party and had failed to obtain the
sponsorship of one of its leaders. Buckley is in imminent danger of
being discharged solely for the same reasons. Respondents allege
that the discharges were ordered by Sheriff Elrod under the
direction of the codefendants in this suit.
IV
The Cook County Sheriff's practice of dismissing employees on a
partisan basis is but one form of the general practice of political
patronage. The practice also includes placing loyal supporters in
government jobs that may or may not have been made available by
political discharges. Nonofficeholders may be the beneficiaries of
lucrative government contracts for highway construction, buildings,
and supplies. Favored wards may receive improved public services.
Members of the judiciary may even engage in the practice through the
appointment of receiverships, trusteeships, and refereeships.
Although political patronage comprises a broad range of activities,
we are here concerned only with the constitutionality of dismissing
public employees for partisan reasons.
Patronage practice is not new to American politics. It has existed
at the federal level at least since the Presidency of Thomas
Jefferson, although its popularization and legitimation primarily
occurred later, in the residency of Andrew Jackson. The practice is
not unique to American politics. It has been used in many European
countries, and in darker times, it played a significant role in the
Nazi rise to power in Germany and other totalitarian states. More
recent times have witnessed a strong decline in its use,
particularly with respect to public employment. Indeed, only a few
decades after Andrew Jackson's administration, strong discontent
with the corruption and inefficiency of the patronage system of
public employment eventuated in the Pendleton Act, the foundation of
modern civil service. And on the state and local levels, merit
systems have increasingly displaced the practice. This trend led the
Court to observe in CSC v. Letter Carriers, (1973), that "the
judgment of Congress, the Executive, and the country appears to have
been that partisan political activities by federal employees must be
limited if the Government is to operate effectively and fairly,
elections are to play their proper part in representative
government, and employees themselves are to be sufficiently free
from improper influences."
The decline of patronage employment is not, of course, relevant to
the question of its constitutionality. It is the practice itself,
not the magnitude of its occurrence, the constitutionality of which
must be determined. Nor for that matter does any unacceptability of
the practice signified by its decline indicate its
unconstitutionality. Our inquiry does not begin with the judgment of
history, though the actual operation of a practice viewed in
retrospect may help to assess its workings with respect to
constitutional limitations. Compare Brown v. Board of Education,
(1954), with Plessy v. Ferguson, (1896). Rather, inquiry must
commence with identification of the constitutional limitations
implicated by a challenged governmental practice.
V
The cost of the practice of patronage is the restraint it places on
freedoms of belief and association. In order to maintain their jobs,
respondents were required to pledge their political allegiance to
the Democratic Party, work for the election of other candidates of
the Democratic Party, contribute a portion of their wages to the
Party, or obtain the sponsorship of a member of the Party, usually
at the price of one of the first three alternatives. Regardless of
the incumbent party's identity, Democratic or otherwise, the
consequences for association and belief are the same. An individual
who is a member of the out-party maintains affiliation with his own
party at the risk of losing his job. He works for the election of
his party's candidates and espouses its policies at the same risk.
The financial and campaign assistance that he is induced to provide
to another party furthers the advancement of that party's policies
to the detriment of his party's views and ultimately his own
beliefs, and any assessment of his salary is tantamount to coerced
belief.
Even a pledge of allegiance to another party, however ostensible,
only serves to compromise the individual's true beliefs. Since the
average public employee is hardly in the financial position to
support his party and another, or to lend his time to two parties,
the individual's ability to act according to his beliefs and to
associate with others of his political persuasion is constrained,
and support for his party is diminished.
It is not only belief and association which are restricted where
political patronage is the practice. The free functioning of the
electoral process also suffers. Conditioning public employment on
partisan support prevents support of competing political interests.
Existing employees are deterred from such support, as well as the
multitude seeking jobs. As government employment, state or federal,
becomes more pervasive, the greater the dependence on it becomes,
and therefore the greater becomes the power to starve political
opposition by commanding partisan support, financial and otherwise.
Patronage thus tips the electoral process in favor of the incumbent
party, and where the practice's scope is substantial relative to the
size of the electorate, the impact on the process can be
significant.
Our concern with the impact of patronage on political belief and
association does not occur in the abstract, for political belief and
association constitute the core of those activities protected by the
First Amendment. Regardless of the nature of the inducement, whether
it be by the denial of public employment or, as in Board of
Education v. Barnette, (1943), by the influence of a teacher over
students, "[i]f there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe
what shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or act their
faith therein." And, though freedom of belief is central,
"[t]he First Amendment protects political association as well
as political expression." "There can no longer be any
doubt that freedom to associate with others for the common
advancement of political beliefs and ideas is a form of `orderly
group activity' protected by the First and Fourteenth Amendments
NAACP v. Alabama. The right to associate with the political party of
one's choice is an integral part of this basic constitutional
freedom."
These protections reflect our "profound national commitment to
the principle that debate on public issues should be uninhibited,
robust, and wide-open," New York Times Co. v. Sullivan, (1964),
a principle itself reflective of the fundamental understanding that
"[c]ompetition in ideas and governmental policies is at the
core of our electoral process . . . ." Patronage, therefore, to
the extent it compels or restrains belief and association, is
inimical to the process which undergirds our system of government
and is "at war with the deeper traditions of democracy embodied
in the First Amendment.
VI
Although the practice of patronage dismissals clearly infringes
First Amendment interests, our inquiry is not at an end, for the
prohibition on encroachment of First Amendment protections is not an
absolute. Restraints are permitted for appropriate reasons.
….It is firmly established that a significant impairment of First
Amendment rights must survive exacting scrutiny…."This type
of scrutiny is necessary even if any deterrent effect on the
exercise of First Amendment rights arises, not through direct
government action, but indirectly as an unintended but inevitable
result of the government's conduct . . . ." Thus encroachment
"cannot be justified upon a mere showing of a legitimate state
interest."….
The interest advanced must be paramount, one of vital importance,
and the burden is on the government to show the existence of such an
interest…. In the instant case, care must be taken not to confuse
the interest of partisan organizations with governmental interests.
Only the latter will suffice. Moreover, it is not enough that the
means chosen in furtherance of the interest be rationally related to
that end…. The gain to the subordinating interest provided by the
means must outweigh the incurred loss of protected rights, and the
government must "emplo[y] means closely drawn to avoid
unnecessary abridgment . . . ." "[A] State may not choose
means that unnecessarily restrict constitutionally protected
liberty. `Precision of regulation must be the touchstone in an area
so closely touching our most precious freedoms.' If the State has
open to it a less drastic way of satisfying its legitimate
interests, it may not choose a legislative scheme that broadly
stifles the exercise of fundamental personal liberties." In
short, if conditioning the retention of public employment on the
employee's support of the in-party is to survive constitutional
challenge, it must further some vital government end by a means that
is least restrictive of freedom of belief and association in
achieving that end, and the benefit gained must outweigh the loss of
constitutionally protected rights.
One interest which has been offered in justification of patronage is
the need to insure effective government and the efficiency of public
employees. It is argued that employees of political persuasions not
the same as that of the party in control of public office will not
have the incentive to work effectively and may even be motivated to
subvert the incumbent administration's efforts to govern
effectively. We are not persuaded. The inefficiency resulting from
the wholesale replacement of large numbers of public employees every
time political office changes hands belies this justification. And
the prospect of dismissal after an election in which the incumbent
party has lost is only a disincentive to good work. Further, it is
not clear that dismissal in order to make room for a patronage
appointment will result in replacement by a person more qualified to
do the job since appointment often occurs in exchange for the
delivery of votes, or other party service, not job capability. More
fundamentally, however, the argument does not succeed because it is
doubtful that the mere difference of political persuasion motivates
poor performance; nor do we think it legitimately may be used as a
basis for imputing such behavior. The Court has consistently
recognized that mere political association is an inadequate basis
for imputing disposition to ill-willed conduct…..
Even if the first argument that patronage serves effectiveness and
efficiency be rejected, it still may be argued that patronage serves
those interests by giving the employees of an incumbent party the
incentive to perform well in order to insure their party's
incumbency and thereby their jobs. Patronage, according to the
argument, thus makes employees highly accountable to the public. But
the ability of officials more directly accountable to the electorate
to discharge employees for cause and the availability of merit
systems, growth in the use of which has been quite significant,
convince us that means less intrusive than patronage still exist for
achieving accountability in the public work force and, thereby,
effective and efficient government. The greater effectiveness of
patronage over these less drastic means, if any, is at best
marginal, a gain outweighed by the absence of intrusion on protected
interests under the alternatives…..
A second interest advanced in support of patronage is the need for
political loyalty of employees, not to the end that effectiveness
and efficiency be insured, but to the end that representative
government not be undercut by tactics obstructing the implementation
of policies of the new administration, policies presumably
sanctioned by the electorate. The justification is not without
force, but is nevertheless inadequate to validate patronage
wholesale. Limiting patronage dismissals to policymaking positions
is sufficient to achieve this governmental end. Nonpolicymaking
individuals usually have only limited responsibility and are
therefore not in a position to thwart the goals of the in-party…..
It is argued that a third interest supporting patronage dismissals
is the preservation of the democratic process. According to
petitioners, "`we have contrived no system for the support of
party that does not place considerable reliance on patronage. The
party organization makes a democratic government work and charges a
price for its services.'" The argument is thus premised on the
centrality of partisan politics to the democratic process.
Preservation of the democratic process is certainly an interest
protection of which may in some instances justify limitations on
First Amendment freedoms. But however important preservation of the
two-party system or any system involving a fixed number of parties
may or may not be, we are not persuaded that the elimination of
patronage practice or, as is specifically involved here, the
interdiction of patronage dismissals, will bring about the demise of
party politics. Political parties existed in the absence of active
patronage practice prior to the administration of Andrew Jackson,
and they have survived substantial reduction in their patronage
power through the establishment of merit systems.
Patronage dismissals thus are not the least restrictive alternative
to achieving the contribution they may make to the democratic
process. The process functions as well without the practice, perhaps
even better, for patronage dismissals clearly also retard that
process. Patronage can result in the entrenchment of one or a few
parties to the exclusion of others. And most indisputably, as we
recognized at the outset, patronage is a very effective impediment
to the associational and speech freedoms which are essential to a
meaningful system of democratic government. Thus, if patronage
contributes at all to the elective process, that contribution is
diminished by the practice's impairment of the same….
* * * *
In summary, patronage dismissals severely restrict political belief
and association. Though there is a vital need for government
efficiency and effectiveness, such dismissals are on balance not the
least restrictive means for fostering that end. There is also a need
to insure that policies which the electorate has sanctioned are
effectively implemented. That interest can be fully satisfied by
limiting patronage dismissals to policymaking positions. Finally,
patronage dismissals cannot be justified by their contribution to
the proper functioning of our democratic process through their
assistance to partisan politics since political parties are nurtured
by other, less intrusive and equally effective methods. More
fundamentally, however, any contribution of patronage dismissals to
the democratic process does not suffice to override their severe
encroachment on First Amendment freedoms. We hold, therefore, that
the practice of patronage dismissals is unconstitutional under the
First and Fourteenth Amendments, and that respondents thus stated a
valid claim for relief.
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