O'HARE TRUCK SERVICE v. CITY OF NORTHLAKE (USSC 1996) Docket 95-191 -- Decided June 28, 1996

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Syllabus

Respondent city maintains a rotation list of available companies

to perform towing services at its request. Until the events

recounted here, the city's policy had been to remove companies

from the list only for cause. Petitioner O'Hare Truck Service,

Inc., was removed from the list after its owner, petitioner

Gratzianna, refused to contribute to respondent mayor's

reelection campaign and instead supported his opponent. Alleging

that the removal was in retaliation for Gratzianna's campaign

stance and caused petitioners to lose substantial income,

petitioners filed this suit under 42 U.S.C. 1983. The District

Court dismissed the complaint in conformity with Seventh Circuit

precedent that Elrod v. Burns, 427 U.S. 347 (plurality opinion),

and Branti v. Finkel, 445 U.S. 507-in which the Court held that

government officials may not discharge public employees for

refusing to support a political party or its candidates, unless

political affiliation is an appropriate requirement for the job

in question-do not extend to independent contractors. The

Seventh Circuit affirmed.

Held:

The protections of Elrod and Branti extend to an instance where

government retaliates against a contractor, or a regular

provider of services, for the exercise of rights of political

association or the expression of political allegiance. Pp. 3-14.

(a) In assessing when party affiliation, consistent with the

First Amendment, may be an acceptable basis for terminating a

public employee, the ultimate inquiry is not whether the label

`policymaker' or `confidential' fits a particular position;

rather, the question is whether the hiring authority can

demonstrate that party affiliation is an appropriate requirement

for the effective performance of the public office

involved. Branti, supra, at 518. A different, though related,

inquiry, the balancing test from Pickering v. Board of Ed. of

Township High School Dist. 205, Will Cty., 391 U.S. 563, is

called for where a government employer takes adverse action on

account of an employee or service provider's right of free

speech. In Elrod and Branti, the raw test of political

affiliation sufficed to show a constitutional violation.

However, since the inquiry is whether the affiliation

requirement is reasonable, it is inevitable that some case-by-

case adjudication will be required even where political

affiliation was the test the government imposed. The analysis

will also accommodate cases where instances of the employee's

speech or expression are intermixed with a political affiliation

requirement. Pp. 3-7.

(b) Despite respondents' argument that the principles of Elrod

and Branti have no force here because an independent

contractor's First Amendment rights, unlike a public employee's,

must yield to the government's asserted countervailing interest

in sustaining a patronage system, this Court cannot accept the

proposition that those who perform the government's work outside

the formal employment relationship are subject to the direct and

specific abridgment of First Amendment rights described in

petitioners' complaint. The government may not coerce support in

the manner petitioners allege, unless it has some justification

beyond dislike of the individual's political association. As

respondents offer no other justification for their actions, the

complaint states a First Amendment claim. Allowing the

constitutional claim to turn on a distinction between employees

and independent contractors would invite manipulation by

government, which could avoid constitutional liability simply by

attaching different labels to particular jobs, Board of Comm'rs,

Wabaunsee County v. Umbehr, ante, at ___. Accord, Lefkowitz v.

Turley, 414 U.S. 70. Respondents present no convincing data to

support their speculation that a difference of constitutional

magnitude exists because independent contractors are less

dependent on the government for income than employees are. There

is little reason to suppose that a decision in petitioners'

favor will lead to numerous lawsuits. While government officials

may terminate at-will relationships, unmodified by any legal

constraints, without cause, it does not follow that this

discretion can be exercised to impose conditions on expressing,

or not expressing, specific political views, see Perry v.

Sindermann, 408 U.S. 593, 597. In view of the large number of

legitimate reasons why a contracting decision might be made,

fending off baseless First Amendment lawsuits should not consume

scarce government resources. If the government terminates its

affiliation with a service provider for reasons unrelated to

political association, Mt. Healthy City Bd. of Ed. v. Doyle, 429

U.S. 274, 287, as, for example, where the provider is

unreliable, or if the service provider's political "affiliation

is an appropriate requirement for the effective performance" of

the task in question, Branti, supra, at 518, there will be no

First Amendment violation. The absolute right to enforce a

patronage scheme as a means of retaining control over

independent contractors and satisfying government officials'

concerns about reliability has not been shown to be a necessary

part of a legitimate political system in all instances. This was

the determination controlling the Court's decisions in Elrod,

supra, at 365-368, 372-373, and Branti, supra, at 518-520. There

is no basis for rejecting that reasoning in this context and

drawing a line excluding independent contractors from the First

Amendment safeguards of political association afforded to

employees. Pp. 7-13.

(c) The lower courts, upon such further proceedings as are

deemed appropriate, should decide whether the case is governed

by the Elrod-Branti rule or by the Pickering rule. P. 13. 47

F.3d 883, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which

Rehnquist, C. J., and Stevens, O'Connor, Souter, Ginsburg, and

Breyer, JJ., joined.

Scalia, J., filed a dissenting opinion, in

which Thomas, J., joined.

The full text of the decision is available from the Legal Information Institute at the Cornell University School of Law.