Walsh, Michael v. Heilman, David ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2394
MICHAEL WALSH,
Plaintiff-Appellant,
v.
DAVID HEILMANN and VILLAGE OF
OAK LAWN, ILLINOIS,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 05 C 5754—Blanche M. Manning, Judge.
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ARGUED NOVEMBER 27, 2006—DECIDED DECEMBER 28, 2006
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Before EASTERBROOK, Chief Judge, and ROVNER and
SYKES, Circuit Judges.
EASTERBROOK, Chief Judge. After being elected Mayor
of Oak Lawn, Illinois, in 2005, David Heilmann ap-
pointed a new administrative hearing officer for the
Village. The hearing officer’s post is equivalent to what
other states would call a city judge or justice of the
peace: the hearing officer adjudicates disputes under the
municipal code. Michael Walsh, who held the post be-
tween 2000 and 2005, contends in this suit under 42
U.S.C. §1983 that Heilmann replaced him because Walsh
had backed the loser in the election, and Heilmann
wanted to put his own supporters in plum positions.
2 No. 06-2394
According to Walsh, this violated the first amendment,
as applied to political patronage in Elrod v. Burns, 427
U.S. 347 (1976), and its successors. But the district
court dismissed the complaint after concluding that “ad-
ministrative hearing officer” is the sort of position for
which politics is a permissible consideration.
The district court invoked Fed. R. Civ. P. 12(b)(6), and
we doubt that this is the right rule. The complaint states
a recognized legal theory, after all. The court had to go
beyond the complaint’s allegations to make a decision. But
no harm has been done by the shortcut. The duties of the
position are a matter of public record, having been estab-
lished by law. Oak Lawn Ordinances §11-11-1 to §11-12-7.
Summary judgment need not await discovery when the
material facts are undisputed. (Rule 56(b) says that a
defendant may move for summary judgment “at any
time . . . with or without supporting affidavits”.) The
statute book tells us all we need to know. Unlike job
descriptions, which may bear little resemblance to a
position’s actual duties, the ordinance’s terms are not
open to contest.
The hearing officer adjudicates all citations issued under
Village ordinances and regulations, unless state law
commits the subject to judicial resolution. Oak Lawn
Ordinances §11-11-1, §11-12-1. The hearing officer’s
portfolio includes not only vehicular matters (such as
parking and village-sticker regulations) but also the local
housing and zoning codes. The village legislature has
established a schedule of fines for vehicular offenses—for
example, the fine for parking in a space reserved for
handicapped persons is $150, rising to $250 if not paid
promptly, see Oak Lawn Ordinances §11-11-9(A)—but has
left all other subjects to the hearing officer’s discretion.
For non-vehicular offenses the hearing officer may
impose any fine up to $50,000, unless state law sets a
lower cap. Oak Lawn Ordinances §11-12-2(A)(8). It is this
No. 06-2394 3
zero to $50,000 range, in which the hearing officer pos-
sesses considerable discretion, that led the district court
to deem the position one that makes policy, and for
which one’s views about wise public administration (which
is to say, one’s politics) are an appropriate considera-
tion. See Branti v. Finkel, 445 U.S. 507 (1980).
Should the Village go hard or easy on homeowners
who don’t trim their hedges, mow their lawns, or rake
their leaves in the fall? What about people who refuse to
shovel their walks when snow falls? Or who paint their
houses puce? Or fail to end a nonconforming use when
a zoning variance lapses? What should be done about
people who leave rusting hulks in their driveways, put
neon signs in residential windows, or keep 500 cats? The
Mayor and Police Chief won’t decide these matters; the
administrative hearing officer will, by choosing levels of
sanctions. Yet local political careers may turn on the
answers; village mayors who can’t keep neighborhoods
looking neat and tidy will not last long in office. (Even a
Mayor of Chicago once discovered that too much snow is
fatal to a political career, and elsewhere in the Midwest
the success of the fall leaf-removal campaign is the
standard by which the people evaluate their mayors. See
Kupstas v. City of Greenwood, 398 F.3d 609 (7th Cir.
2005).)
This is one reason why Andrew Jackson campaigned for
making judicial posts elective and why most states to this
day allow the voters a say in who holds judicial office. If
the “hearing officer” could be relabeled a “judge” and
made the subject of election, the first amendment does
not block an elected official from appointing someone
who shares his view about enforcement priorities. Just
as crackdowns on drunk driving require the cooperation
of the state judiciary, crackdowns on unkempt lawns and
free-roaming dogs may require the cooperation of an
administrative hearing officer. Neither the judge nor the
4 No. 06-2394
hearing officer operates in a zone where decisions are
mechanical. That’s why we held in Kurowski v. Krajewski,
848 F.2d 767, 770 (7th Cir. 1988), that politics is a per-
missible consideration for judicial positions (even those
held for just a short time); the same is true of hearing
officers who possess discretion over which laws receive
how much enforcement.
Walsh would like us to believe that Kurowski is a
sport that should be limited to appointed part-time judges
when the full-time position is elected. Administrative
hearing officers are different, he insists. But why should
anything turn on the label? In federal practice, not even
the label differs—“hearing officers” in the federal system
were renamed “administrative law judges” more than
30 years ago. Although many federal ALJs have long
tenure, others do not. The “administrative appeals
judges” at several federal agencies serve at the pleasure
of cabinet officials so that the department’s admin-
istrative apparatus carries out policies adopted by the
Executive Branch.
Many units of government delegate important decisions
to middle management, and when they do this they
may insist that the holders of the delegated power be
reliable implementers of the elected officials’ platforms.
See, e.g., Riley v. Blagojevich, 425 F.3d 357 (7th Cir. 2005)
(holding that assistant prison wardens in Illinois may
be hired or fired on political grounds). Our situation is
easier than Riley, for an administrative hearing officer
is toward the top rather than the middle of the Village’s
bureaucracy. Consider two close parallels: Pleva v.
Norquist, 195 F.3d 905 (7th Cir. 1999), holds that a
member of a city’s board of zoning appeals makes mu-
nicipal policy and may be replaced on political
grounds; Thompson v. Illinois Department of Professional
Regulation, 300 F.3d 750 (7th Cir. 2002), holds that the
No. 06-2394 5
chief administrative law judge of a state agency likewise
wields enough discretionary authority that the elected
officials may apply political qualifications to the appoint-
ment. Both Pleva and Thompson made the sort of argu-
ment that Walsh advances: that the scope of discretion
any board member or ALJ may wield is hedged about
by laws that the official must respect. True enough, but
each time we held that the remaining discretion is
enough to make it important that the office be held by
someone with elected officials’ confidence.
If the people are to choose policy at the polls, the repre-
sentatives they elect must be able to make enough changes
in the bureaucracy to put the winning side’s program
into effect rather than be frustrated by a permanent
officialdom with its own ideas about governance. Walsh’s
sponsors may return to office some day, and then it is they
who will see the wisdom of allowing change in the posi-
tions where discretion is reposed.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-28-06