Source: Susan Lorde Martin San Diego Law Review, August / September 2012
In April 2011, Theresa Kohutka, a twenty-four-year employee of the Hempstead Animal Shelter on Long Island in New York, sued the Town of Hempstead and five of her supervisors and coworkers. She claimed, inter alia, that her First Amendment rights were violated when her supervisor refused to promote her because she did not become more active in the local Republican Club after he urged her to do so.
This lawsuit should be surprising because the U.S. Supreme Court seemed to settle the issue of using political affiliation to make employment decisions in a series of three opinions more than twenty years ago. Nevertheless, cases on the issue continue to arise in significant numbers. This is an unfortunate situation because the ensuing litigation creates an expensive and unnecessary cost for cities and towns and their hard-pressed taxpayers. Because there is no end in sight, this Article suggests that it is time for the U.S. Supreme Court to revisit the issue and rethink its prior positions.
First, this Article describes the development of the patronage and civil service systems with a reflection on how they work in tandem. Then, the trio of cases, Elrod v. Burns, Branti v. Finkel, and Rutan v. Republican Party of Illinois, is reviewed. How the federal circuit courts have responded to these three cases is examined both in their immediate aftermath and in decisions in more recent cases. Finally, the Article discusses some specific examples of how the current law creating First Amendment rights against negative employment decisions for patronage appointees is not working and how it should be changed.