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Seventh Circuit: Friendship is Not Constitutionally Protected

By Robyn Hagan Cain on April 18, 2012 | Last updated on March 21, 2019

If you want job stability, stay out of politics.

Politicos aren’t the only ones who risk losing their gigs during election seasons or political coups; their staff can also be constitutionally-canned, according to the Seventh Circuit Court of Appeals.

Kimberly Benedix lost her job as Executive Coordinator to the Village Manager when the Village of Hanover Park legislated her boss and friend -- Marc Hummel -- out of his position as Village Manager. Benedix claimed that the Village and elected officials violated her First Amendment right to freedom of association by eliminating her position based on her friendship with Hummel.

The Seventh Circuit ruled that friendship isn't a constitutionally-protected relationship.

The Hanover Village President and three Village trustees, all named defendants, passed an ordinance restructuring the Village Manager's office. Benedix, who was collateral damage, responded with a lawsuit. The district court found that the officials were entitled to legislative immunity.

Benedix claimed that the ordinance wasn't "really" legislation because it targeted her based on her friendship with Hummel. The Seventh Circuit scoffed at that idea, noting that an ordinance adopted through the legislative process, and having the force of law, is covered by legislative immunity regardless of the supporters' motives.

The appellate court also dismissed Benedix's freedom of association claims against the Village.

While Benedix argued that freedom of association was similar to a protected political opinion, the Seventh Circuit disagreed, observing that "it is common to hold a person's associations against him."

A policy-maker has a right to change policies by replacing officeholders. If the-last-guy-was-my-friend-and-I-supported-his-policies argument insulated an assistant from removal, a new official could easily find herself surrounded by saboteurs. (The 1980s British series Yes, Minister hilariously portrays a similar struggle between politicians and civil servants, though civil servants' jobs are protected during political change.)

Phrased differently, the Seventh Circuit claimed that forcing an outgoing official's staff upon a new official would violate the new officeholder's own right of association to be able to choose who to work with to promote his ideas and policies.

More importantly, Elrod v. Burns and its successors say that politics is an appropriate basis for decisions involving policy-making and confidential positions. (Benedix's Executive Coordinator gig was a "confidential" position in the Village Manager's immediate office.) Regardless of Benedix's rights of association, her friendship with Hummel cannot constitutionally trump political speech.

Election season is a stressful time for ousted politicos, but employees in policy-making or confidential positions can't claim associational rights violations if they get canned along with their bosses.

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