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SUPREME COURT OF THE UNITED STATES
Nos. 88-1872 AND 88-2074
CYNTHIA RUTAN, ET AL., PETITIONERS
v.
-
88-1872
REPUBLICAN PARTY OF ILLINOIS ET AL.
MARK FRECH, ET AL., PETITIONERS
v.
-
88-2074
CYNTHIA RUTAN ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
[June 21, 1990]
JUSTICE BRENNAN delivered the opinion of the Court.
To the victor belong only those spoils that may be constitution-
ally obtained. Elrod v. Burns, 427 U. S. 347 (1976), and Branti
----- ----- ------
v. Finkel, 445 U. S. 507 (1980), decided that the First Amendment
------
forbids government officials to discharge or threaten to
discharge public employees solely for not being supporters of the
political party in power, unless party affiliation is an ap-
propriate requirement for the position involved. Today we are
asked to decide the constitutionality of several related politi-
cal patronage practices--whether promotion, transfer, recall, and
hiring decisions involving low-level public employees may be con-
stitutionally based on party affiliation and support. We hold
that they may not.
I
The petition and cross-petition before us arise from a lawsuit
protesting certain employment policies and practices instituted
by Governor James Thompson of Illinois.
On November 12, 1980, the Governor issued an executive order pro-
claiming a hiring freeze for every agency, bureau, board, or com-
mission subject to his control. The order prohibits state offi-
cials from hiring any employee, filling any vacancy, creating any
new position, or taking any similar action. It affects approxi-
mately 60,000 state positions. More than 5,000 of these become
available each year as a result of resignations, retirements,
deaths, expansion, and reorganizations. The order proclaims that
``no exceptions'' are permitted without the Governor's ``express
--
permission after submission of appropriate requests to [his] of-
fice.'' Governor's Executive Order No. 5 (Nov. 12, 1980), Brief
for Petitioners 11 (emphasis added).
Requests for the Governor's ``express permission'' have alleged-
ly become routine. Permission has been granted or withheld
through an agency expressly created for this purpose, the
Governor's Office of Personnel (Governor's Office). Agencies
have been screening applicants under Illinois' civil service sys-
tem, making their personnel choices, and submitting them as re-
quests to be approved or disapproved by the Governor's Office.
Among the employment decisions for which approvals have been re-
quired are new hires, promotions, transfers, and recalls after
layoffs.
By means of the freeze, according to petitioners, the Governor
has been using the Governor's Office to operate a political pa-
tronage system to limit state employment and beneficial
employment-related decisions to those who are supported by the
Republican Party. In reviewing an agency's request that a par-
ticular applicant be approved for a particular position, the
Governor's Office has looked at whether the applicant voted in
Republican primaries in past election years, whether the appli-
cant has provided financial or other support to the Republican
Party and its candidates, whether the applicant has promised to
join and work for the Republican Party in the future, and whether
the applicant has the support of Republican Party officials at
state or local levels.
Five people (including the three petitioners) brought suit
against various Illinois and Republican Party officials in the
United States District Court for the Central District of Illi-
nois.
They alleged that they had suffered discrimination with respect
to state employment because they had not been supporters of the
State's Republican Party and that this discrimination violates
the First Amendment. Cynthia B. Rutan has been working for the
State since 1974 as a rehabilitation counselor. She claims that
since 1981 she has been repeatedly denied promotions to super-
visory positions for which she was qualified because she had not
worked for or supported the Republican Party. Franklin Taylor,
who operates road equipment for the Illinois Department of Tran-
sportation, claims that he was denied a promotion in 1983 because
he did not have the support of the local Republican Party. Tay-
lor also maintains that he was denied a transfer to an office
nearer to his home because of opposition from the Republican Par-
ty chairmen in the counties in which he worked and to which he
requested a transfer. James W. Moore claims that he has been
repeatedly denied state employment as a prison guard because he
did not have the support of Republican Party officials.
The two other plaintiffs, before the Court as cross-respondents,
allege that they were not recalled after layoffs because they
lacked Republican credentials. Ricky Standefer was a state
garage worker who claims that he was not recalled, although his
fellow employees were, because he had voted in a Democratic pri-
mary and did not have the support of the Republican Party. Dan
O'Brien, formerly a dietary manager with the mental health
department, contends that he was not recalled after a layoff be-
cause of his party affiliation and that he later obtained a lower
paying position with the corrections department only after re-
ceiving support from the chairman of the local Republican Party.
The District Court dismissed the complaint with prejudice, under
Federal Rule of Civil Procedure 12(b)(6), for failure to state a
claim upon which relief could be granted. 641 F. Supp. 249 (CD
Ill. 1986). The United States Court of Appeals for the Seventh
Circuit initially issued a panel opinion, 848 F. 2d 1396 (1988),
but then reheard the appeal en banc. The court affirmed the Dis-
trict Court's decision in part and reversed in part. 868 F. 2d
943 (1989). Noting that this Court had previously determined
that the patronage practice of discharging public employees on
the basis of their political affiliation violates the First
Amendment, the Court of Appeals held that other patronage prac-
tices violate the First Amendment only when they are the ``sub-
stantial equivalent of a dismissal.'' Id., at 954. The court ex-
--
plained that an employment decision is equivalent to a dismissal
when it is one that would lead a reasonable person to resign.
Id., at 955. The court affirmed the dismissal of Moore's claim
--
because it found that basing hiring decisions on political affil-
iation does not violate the First Amendment, but remanded the
remaining claims for further proceedings.
Rutan, Taylor, and Moore petitioned this Court to review the
constitutional standard set forth by the Seventh Circuit and the
dismissal of Moore's claim. Respondents cross-petitioned this
Court, contending that the Seventh Circuit's remand of four of
the five claims was improper because the employment decisions al-
leged here do not, as a matter of law, violate the First Amend-
ment. We granted certiorari, 493 U. S. ---- (1989), to decide
the important question whether the First Amendment's proscription
of patronage dismissals recognized in Elrod, 427 U. S. 347
-----
(1976), and Branti, 445 U. S. 507 (1980), extends to promotion,
------
transfer, recall, or hiring decisions involving public employment
positions for which party affi