Claussen v. Pence

826 F.3d 381, 41 I.E.R. Cas. (BNA) 718, 2016 U.S. App. LEXIS 10541, 2016 WL 3213036
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 10, 2016
DocketNo. 16-1003
StatusPublished
Cited by5 cases

This text of 826 F.3d 381 (Claussen v. Pence) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Claussen v. Pence, 826 F.3d 381, 41 I.E.R. Cas. (BNA) 718, 2016 U.S. App. LEXIS 10541, 2016 WL 3213036 (7th Cir. 2016).

Opinion

FLAUM, Circuit Judge.

Plaintiffs are civil servants who hold elected office in the municipality that employs them. They challenge a recently-enacted Indiana law prohibiting persons from simultaneously holding elected office and being employed as civil servants in the same unit of government. Plaintiffs contend that the law violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The district court granted defendants’ motion to dismiss, and for the reasons that follow, we affirm.

I. Background

In 2012, the Indiana General Assembly enacted Indiana Code § 3-5-9-5 (the “Indiana Law” or the “Law”), which provides, in relevant part, that “an individual is considered to have resigned as a government employee when the individual assumes an elected office of the unit that employs the individual.” The Law became effective on January 1, 2013, but a grandfather clause allowed then-current officeholders to complete their terms before becoming subject to it. See Ind. Code § 3-5-9-7.

Plaintiffs are civil servants who also serve on city and town councils,1 which are legislative bodies responsible for adopting budgets, levying taxes, and authorizing financial appropriations, among other things. Importantly, city and town councils have the authority to set the annual compensation for the municipal employees in their unit of government. In other words, plaintiffs have the ability to determine their dwn compensation, with some restrictions.2

It is undisputed that all but one of the plaintiffs earn a significantly higher salary in their civil service positions than in their elected positions.3 Therefore, plaintiffs contend that if the Law takes effect, they will be forced to resign from elected office.

On February 10, 2015, plaintiffs sued the State of Indiana and the Indiana State Board of Accounts — the state agency most closely tied to enforcement of the Indiana Law — in federal court in the Northern Distrjct of Indiana.4 Relevant to this ap[384]*384peal, plaintiffs argued that the Law violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

The State filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) on April 6, 2015. Before the district court ruled on the motion, plaintiffs amended their complaint and substituted the governor of Indiana, Michael Pence, as well as several members of the Indiana State Board of Accounts, as defendants.5 Defendants filed a motion to dismiss the amended complaint and plaintiffs responded with a motion for summary judgment. On December 2, 2015, the district court granted defendants’ motion and dismissed plaintiffs’ complaint under Rule 12(b)(6).

II. Discussion

Plaintiffs appeal the dismissal of their First Amendment and Fourteenth Amendment claims. We review de novo the district court’s dismissal of a complaint under Rule 12(b)(6). Brazil-Breashears v. Bilandic, 53 F.3d 789, 791 (7th Cir. 1995).

A. First Amendment

Plaintiffs contend that the Indiana Law violates the First Amendment because it burdens their right to assume municipal office once elected. Defendants respond that it is established law that requiring public employees to resign before running for elected office does not violate the First Amendment. Thus, defendants contend that the less burdensome Indiana Law, which only requires resignation if the civil servant runs for office and wins, must be constitutional.

We agree with defendants that the Indiana Law falls squarely within the bounds of settled Supreme Court precedent upholding restrictions on the political activity of state employees. See Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982) (upholding the constitutionality of provisions of the Texas Constitution restricting the political activity of state employees, including by prohibiting a sitting judge from serving on the state legislature); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (holding that Oklahoma may regulate the political activities of its state employees); U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) (reaffirming United Pub. Workers of Am. v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), which held that the Hatch Act’s restrictions on a broad range of political activities by federal employees was constitutionally permissible). In fact, the Supreme Court has repeatedly upheld the constitutionality of “resign-to-run” laws, which forbid public employees from running for elected office. Clements, 457 U.S. at 971-72, 102 S.Ct. 2836; Broadrick, 413 U.S. at 616-17, 93 S.Ct. 2908; Letter Carriers, 413 U.S. at 556, 93 S.Ct. 2880. As defendants point out, resign-to-run laws place a greater burden on candidacy than the Indiana Law because the public employee who wishes to run for office must resign his or her employment in order to become a candidate. By contrast, under the Indiana Law, a civil servant is required to resign only if he or she is elected.

Plaintiffs argue in vain that, unlike resign-to-run laws, the Indiana Law implicates fundamental rights and thus deserves heightened scrutiny. They contend [385]*385that the right to assume office once elected is derived from the right to vote, and is thus a fundamental right, distinguishable from the right to candidacy. In the alternative, plaintiffs contend that heightened scrutiny is appropriate because the Indiana Law burdens voters by limiting the field of candidates from which they may choose.

At the outset, we agree with the district court that the right to assume or hold office once elected is not a fundamental right. It is well established that the right to be a candidate for office is not a fundamental right. Brazil-Breashears, 53 F.3d at 792. Like the other federal courts that have confronted this issue, we agree that there is “no palpable distinction” between a prohibition on running for office and a prohibition on holding office. Krisher v. Sharpe, 763 F.Supp. 1313, 1319 (E.D. Pa. 1991), aff'd, 944 F.2d 897 (3d Cir. 1991); Fletcher v. Marino, 882 F.2d 605, 614 (2d Cir. 1989) (deeming “absurd” plaintiffs’ argument that “because they have been allowed to run for office they cannot now be prevented from taking office”).

We likewise reject plaintiffs’ alternative argument that the Indiana Law deserves heightened scrutiny because it burdens voters’ exercise of the franchise.

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826 F.3d 381, 41 I.E.R. Cas. (BNA) 718, 2016 U.S. App. LEXIS 10541, 2016 WL 3213036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claussen-v-pence-ca7-2016.