O’Hare Truck Service, Inc. v. City of Northlake – Oral Argument – March 20, 1996

Media for O’Hare Truck Service, Inc. v. City of Northlake

Audio Transcription for Opinion Announcement – June 28, 1996 in O’Hare Truck Service, Inc. v. City of Northlake

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Harvey Grossman:

If the question is, should contractors be subjected to a reasonableness balancing standard instead of strict scrutiny, at least we’re half-way there already, because all of the courts below have said that there’s no level of scrutiny that’s to be applied to this conduct.

Gary M. Feiereisel:

If you have an automobile accident in that community at a busy intersection and for some reason you have a tow truck operator who is on your list and who you call out to the scene to clear the intersection or clear the problem, they–

Harvey Grossman:

Now, even if a reasonableness test was applied here, I would maintain that whatever it is that the respondents maintain they’ve done here… we view it as a simple act of political retaliation and forced contribution.

What you’re saying, I suppose, is if there are 10 qualified towing truck operators, five of whom voted against the mayor and five voted for him, the public is benefitted by saying we’ll only allow the five who voted for the mayor on the list.

Harvey Grossman:

It’s been siphoned through the screen of patronage law, but whatever it is, we believe that it would not withstand even a reasonable balancing test.

That doesn’t make sense to me.

Well, what if a new administration in Northlake comes to power, and they’re trying to put together a list of their own as to who’s going to get the tow truck business, is it in your view a violation of First Amendment rights if they were to just put on that list that they’re compiling for the first time a list of people who contributed to their campaign?

Gary M. Feiereisel:

–The public is entitled… the public is deserving of independent contractors who will provide safe, efficient, and effective public services.

Harvey Grossman:

No, I would not.

Gary M. Feiereisel:

I think that–

Harvey Grossman:

Without more facts, I do not believe that that would state a violation of the First Amendment.

Mr. Feiereisel, I had thought that this case involved services provided to the city.

Harvey Grossman:

I’m not exactly–

That is what is stated in the statement of the case both in the petition and in the brief by the petitioner.

So you have to remove someone from a list that already exists to come into your purview?

It says O’Hare provided the city with towing services.

Harvey Grossman:

–Well, I think this Court need only deal with this case as a termination of a benefit, a penalty case.

Both the petition and the principal brief says that, and I thought that’s the assumption on which we’re trying to decide this case.

Harvey Grossman:

It need not decide what might be a more perplexing question for some members of the Court as to whether–

Gary M. Feiereisel:

–That was my thought as well, Your Honor.

What more facts would you have needed in the Chief Justice’s hypothetical?

In any case, we–

What about the additional fact that it is established that the reason only these people were included was these were the only people that gave money to the party?

–Rather than what’s alleged in the complaint.

Harvey Grossman:

–Well, I believe that if… I’m not sure I understand the hypothetical with clarity.

Gary M. Feiereisel:

Well, it is what’s alleged in the complaint.

Harvey Grossman:

If it would result in the termination–

Well–

No termination.

Gary M. Feiereisel:

I again disagree with, respectfully, Your Honor.

It’s a new–

–Would it be fair to say that there is at least this agreement between the tower and the city: the tower says, if you put me on the list, I promise to go when I’m called.

Harvey Grossman:

–I do not believe that that would state a–

I will sort of guarantee that the service, which benefits not only the auto… automobile owner but the city that wants its streets clean, is a service that I promise to provide if called upon.

–So it is only termination.

Is that the nature of the arrangement?

Why do you draw the line there?

Gary M. Feiereisel:

The nature of… essentially I believe that’s the nature of the arrangement.

If you’re going to draw the line xx, why not draw the line at independent contractors?

Yes.

Harvey Grossman:

–No, I’m not sure that I understand the precise distinction that you’re making between the termination–

He says, if you put me on the list, I’ll go when you call me.

Mr. Grossman–

Is that fair to say?

–I thought that your principle was, look if there was actual harm that my client has suffered by reason of his First Amendment beliefs.

Gary M. Feiereisel:

Correct.

Now, one kind of harm is being terminated from a contract.

Okay.

Another kind of harm is not getting a contract that you would otherwise get.

Gary M. Feiereisel:

Assuming–

Harvey Grossman:

–It is–

Who pays for it?

Harm is harm.

Gary M. Feiereisel:

–Assuming he has trucks available.

Harvey Grossman:

–That’s clearly the case, and I think in the proper benefits case… I’m not suggesting that I don’t think there are parallels in the law that would support a claim that a denial of a contract also would be actionable, but that’s not the case before this Court.

Who pays for it?

I understand it’s not the case, but I don’t know why you don’t gobble up that case.

Gary M. Feiereisel:

Oh, I think typically the motorist pays for it.

What about a failure… you know, when–

So the motorist doesn’t pay… I mean, the city pays nothing.

Harvey Grossman:

I–

Gary M. Feiereisel:

The city pays nothing but–

–there are visiting dignitaries that come to town, the White House has dinners for them, and it is not uncommon for significant donors to the party that occupies the White House to be invited to those dinners and not donors to the other party.

Well, how are they selling something to the city, then?

Now, what about that?

Gary M. Feiereisel:

–They’re not selling anything to the city, Your Honor.

This… I’m sure this comes out of public funds from somewhere.

Gary M. Feiereisel:

What they’re doing is, they’re providing a public service that I think not only the motorist benefits from but the city benefits from, and the reason they’re at… the reason they’re there is because the city is… has put them there.

Is there something wicked about that?

Mr. Feiereisel–

Is that unconstitutional?

Gary M. Feiereisel:

Yes.

Harvey Grossman:

–No, I don’t believe that it is.

–would your answer be different if, instead of putting the company on the list, the question were licensing companies to provide towing services and the city allows only people who are licensed to perform these services, whether called by the police or called by a private person, and Mr. Gratzianna can’t get a license for this year because he backed the wrong candidate?

Harvey Grossman:

I believe–

Gary M. Feiereisel:

Well, I think that in that situation it may very well depend on what the qualifications are, or what the–

Why not?

Meets all… you’re not contending here that there’s any question about qualifications to do the towing job?

Harvey Grossman:

–Well, because–

Gary M. Feiereisel:

–Well, I don’t know that, because there’s no… the complaint doesn’t–

I mean, that’s shorting these people.

Mustn’t we assume for this purpose–

They would like to get to the White House as well.

Gary M. Feiereisel:

–We must, but I don’t think just because we assume that because–

Harvey Grossman:

–I believe that the person you’ve described has a political identity.

–Oh, well, let’s assume that this mayor says, nobody gets a license to perform towing service unless they supported me.

Harvey Grossman:

That is, the President.

Gary M. Feiereisel:

–And–

Harvey Grossman:

I think he’s free to exercise that role as well as his role as executive administering the laws.

And Gratzianna didn’t support the mayor so he doesn’t get a license, and he challenges that and says that my First Amendment rights have been infringed.

Well, why doesn’t the mayor of Northlake have the same identity?

Gary M. Feiereisel:

–I don’t see that that’s a different situation than this situation.

Harvey Grossman:

Because he has, in this precise instance, chosen to terminate a business relationship.

Well, certainly a difference is that… I gather from Justice Ginsburg’s question that the license might be necessary to perform towing services not just for the city but for private individuals.

Harvey Grossman:

It isn’t a question of opening up access to other qualified persons who happen to give him a contribution.

Do you think the city could say, you can’t be in the business of towing private individuals in Northlake if you didn’t contribute to the mayor’s campaign?

Harvey Grossman:

It is, instead, a direct penalty on belief because he has terminated a 30-year-old benefit to an individual simply on the grounds of refusal to contribute.

Gary M. Feiereisel:

No, I don’t think they could say that.

So if he brought new contributors in and gave them benefits, that would not be bad under your view.

Gary M. Feiereisel:

I’m talking about… I understood the question to be a license to do the kind of work that is alleged in the complaint here, which is to provide towing services to the City of Northlake, and in that context I think that there would be the same situation as we’re talking about.

Harvey Grossman:

No, it would not.

Gary M. Feiereisel:

I don’t believe that an administration, whether it’s newly elected or whether it’s an incumbent administration, should be forced to face the risk of using independent contractors that it knows does not support it, because when they’re faced with that risk, they’re faced with–

What is… where I’m having trouble, and I’m simply asking for help, is, forget your case.

But what’s the interest?

If your case were here alone and you could decide it separately, I think you, in my view, might well win.

I mean, if the interest of the city is to have qualified, prompt, well-performing tow services available, and if it knows that the service provided by O’Hare fits that category, what further interest does it have in saying we’re only going to allow it for someone who contributed to the mayor’s campaign?

But what’s bothering me about it is it’s connected to all kinds of other cases involving Government contractors, and at this point I don’t know how to draw a line.

Gary M. Feiereisel:

–I don’t know if once the… once the petitioner in this case doesn’t contribute or doesn’t support the administration that we know that any more, because especially in local–

That is, what’s bothering me about the line, and I really don’t know, is, it is not the case… I mean, there are important Government interests in not getting the courts too involved in this.

You mean, you think that the failure to contribute somehow means that the service will not be properly provided?

All 50 States have responsible bidding laws of some kind.

Gary M. Feiereisel:

–I don’t know that.

Illinois, the word responsible low bidder appears 135 times in the statutes, so by and large they’ve statutorily taken care of the problem except in certain instances like yours, and also in defining the word responsible.

Gary M. Feiereisel:

That’s a possibility.

And if every time a Democrat loses a contract, or a Republican loses a contract, he can go into court, then the administrators of the contracting system must look for objective criteria so that they can prove they weren’t motivated by the political reason, and at that point their ability to award contracts is severely injured.

Gary M. Feiereisel:

Local… in local–

They can’t use subjective judgment.

Well, don’t we take this case, as we’ve already established, on the assumption that O’Hare is qualified and has performed adequately in the past, and would be expected to in the future?

That’s the kind of thing that goes under the title, efficiency of Government, and what I’m looking for is some kind of line that you would propose that permits that consideration called efficiency of Government to still work while protecting, let’s say, the egregious case that you might have found, and I don’t know how to draw that line.

Gary M. Feiereisel:

–That’s–

Harvey Grossman:

Well, I think first, just as a note, over $200 million worth of no-bid contracts were allocated by the State of Illinois in 1991–

I thought we took the case on that assumption.

Yes, there are 135 times the words responsible lowest bidder appears.

Gary M. Feiereisel:

–That is… that is what’s alleged in the complaint and that’s why–

Then there’ll be a category, I guess you’ll say it’s $200 million worth… that’s not billions, but it’s significant… that fall outside it, but that suggests to me that’s what we’re dealing with.

Okay.

And when we’re talking about that kind of animal, how do we preserve the ability of the Government to work efficiently while stopping the egregious instance.

Gary M. Feiereisel:

–That’s why we are here.

That’s what I don’t see.

So let’s get that out of the hypothetical.

What’s the standard?

What additional interest does the city have in saying that only someone who contributes to the mayor can be on that list?

Harvey Grossman:

–I think that what we do… I think that the Court has already answered that question, and I think it has done it substantially by its formulation of a burden of proof in Mt.

Gary M. Feiereisel:

The interest that I’m trying to get at, Your Honor, is that I believe that regardless of whether the petitioner or an independent contractor says they will do whatever they are nired to do correctly, properly, is not really the point, because when you are forced to retain or hire independent contractors that you know do not support you, your administration, your policies, and your programs, then you are running the risk of that specific, independent contractor potentially undermining your administration in some way, and I think that is especially true when we’re talking about–

Harvey Grossman:

Healthy v. Doyle.

But Mr. Feiereisel–

Harvey Grossman:

Not only would the bidder have to show in fact that there was political motivation, but he would also ultimately have to show that there was no other permissible reason on which he–

–But isn’t–

No, no, Mt.

–the whole… the vast business of government is done on the basis of competitive bidding, merit selection, and the government is trusting people all the time if they put in the lowest bid, even if they’re from the opposite party, so your notion that this doesn’t… this is unreliable, it’s unreliable, doesn’t seem to hold up, since we’re all agreed that for the most part government contracts, government employment is given out on the basis of merit or lowest bid.

Healthy, he comes in, he says, I am a human being who is a contractor.

Gary M. Feiereisel:

–Well, in those situations, Your Honor, where there’s… where there are other statutes applicable, then we wouldn’t be talking about it.

I am a Republican.

But isn’t there, in those cases… you… what you’re saying, it’s not workable.

I did not get the contract.

I can understand your saying it doesn’t have to be done, but when you give the excuse that efficient government operations are deterred, the scheme won’t work, I think that the experience is just contrary to that.

A Democrat got the contract, and now, I am reasonably qualified, I got into the final round, so we’ll put the burden on the other side to prove that it wasn’t politically motivated.

Gary M. Feiereisel:

Well–

That isn’t too hard.

I thought it was the party system that was your… I thought you were coming here prepared to defend the proposition that you ought to be able to give contracts to your friends who helped getting you elected, which–

Harvey Grossman:

–That isn’t very hard, except that that hasn’t been sufficient in the political discharge cases to date.

Gary M. Feiereisel:

–I was getting–

Harvey Grossman:

That is not how the proof has gone.

–Which has been done in this country for 200 years–

Harvey Grossman:

I think a good indication–

Gary M. Feiereisel:

–I was–

Mr. Grossman, earlier you said you drew… in response to Justice Scalia you said, this is a termination case, and you seemed to exclude getting your foot in the door in the first place, bidding, getting on the list.

–and we haven’t found it unconstitutional for 200 years, but you’re not prepared to defend that proposition.

I thought you said, in answer to the Chief as well, being thrown off the list that you’ve been on for 30 years is different from not being put on the list in the first place.

Gary M. Feiereisel:

–No, I was getting to that.

Now, are you abandoning that distinction in your response to Justice Breyer?

Gary M. Feiereisel:

I was getting to that.

Harvey Grossman:

–No, I don’t believe I am.

Gary M. Feiereisel:

I–

Harvey Grossman:

I think that–

Gary M. Feiereisel:

[Laughter]

Then how do you justify the distinction?

Well, would you agree that the thing about inefficient, unworkable, that that won’t fly?

Harvey Grossman:

–I believe that if there’s a penalty case and you can look at injury to the individual, he clearly has standing and he’s clearly suffered a constitutional wrong, in some instance the patronage cases have looked to whether or not coercion takes place.

Gary M. Feiereisel:

Sure, I think… no, I will not, I will not agree with that, because I think that–

Harvey Grossman:

That is, is the benefit substantial enough, or the nature of the relationship substantial enough, in order to really make someone alter beliefs?

All right, would you explain to me how the fact that the individual voted for a different mayor undermines his capacity to provide a tow service?

Harvey Grossman:

I don’t believe that that dichotomy is necessarily a valid one, but it nevertheless exists in the law.

I just don’t get the connection.

Harvey Grossman:

To the extent that there are members of the Court who believe that that is a more difficult question to grapple with, I think it is not presented on the record here and it need not be included.

Gary M. Feiereisel:

–Well, first of all, I… we’re not… this has nothing to do with who they vote for.

But counsel, that simply doesn’t help us resolve this case.

Gary M. Feiereisel:

I don’t… we don’t care who they vote for.

You’re asking us to say that independent contractors in some instances are included within the protection of the First Amendment in these patronage cases, and we are concerned about the principle way to decide the case, and you just can give us no explanation for why, in the Chief Justice’s instance, the same principle should not apply, and maybe it should–

Gary M. Feiereisel:

We’re not trying to force them–

Harvey Grossman:

Well, I believe that it should.

Contribute to, put signs up for, however.

–but it’s part of our function… it’s your function to argue the case and win.

How does that create a risk that he won’t tow?

It’s our function to write an opinion.

Doesn’t he want to tow and charge for the towing?

Harvey Grossman:

I understand that, Your Honor, and I believe that this Court will have formulated… let me try to put it into the real world for a second.

Gary M. Feiereisel:

–I would assume that he doesn’t, Your Honor.

Harvey Grossman:

Illinois has filed an amicus brief in this case.

Okay, then why is there a risk that he won’t do the towing because he contributed to, displayed signs for, voted for, a different candidate?

Harvey Grossman:

It has shown that what it did was seek out professional consultation through a professional management company which has restructured its workforce and has provided the very standards that Justice Breyer suggests exist that reflect some objective merit-based hiring.

Gary M. Feiereisel:

He may very well do the towing, but he may do it in a… he’s out at the scene to do his towing because Northlake sent him there, esse tially, so the people who he’s towing for are basically seeing him as somebody from the city.

Harvey Grossman:

Since that has occurred, you can see from the response in our reply brief, there are virtually no employees who are winning political discharge cases, and there are no employees winning promotion cases, because the Mt.

Gary M. Feiereisel:

Now, whether he does the towing correctly or doesn’t do it correctly, if he… if there is some agenda, and obviously in this–

Harvey Grossman:

Healthy burden which I suggested to you allows government to come in and show an independent, permissible basis.

Do Republican towers tow differently from Democratic towers?

Harvey Grossman:

It does not mean–

[Laughter]

We don’t know what the cost of that is.

Gary M. Feiereisel:

–I’m not saying that they do.

I mean, what Justice Breyer is concerned about is there is a place in government for subjective evaluation, and perhaps especially in contracting, not just for who has the lowest bid and all sorts of numerical and objective criteria, but for factors that must be subjectively evaluated.

Do you claim that he’s going to go out there and say, and by the way, in the next election vote the bums out.

They have to be cast away if there is this risk of litigation on the basis of awarding it to somebody of the wrong party.

[Laughter]

Harvey Grossman:

–No more than it had to be cast away in the employment decisions.

Do you… is that what they–

Harvey Grossman:

The same thing is true.

Gary M. Feiereisel:

I don’t know what he’s going to do.

Harvey Grossman:

There is a subjective evaluation that is made between equally competent and qualified employees.

Gary M. Feiereisel:

I don’t know what he’s going to do, Your Honor, but what I’m saying is–

Harvey Grossman:

It happens all the time in the workforce, and what the record is–

–The courts rejected that argument even for government employees, who are certainly more closely associated with the party in power than an independent contractor.

Well, but in the employment area, you see, there was an exception written in to Elrod and Branti, and that exception did cause a lot of litigation in the First Circuit.

We’ve said it doesn’t matter.

There were… we had six… there were 600 confidential employees fired when they changed government in Puerto Rico in 1984, the political… and 300 of them brought lawsuits.

We’re not going to assume that a government employee is going to mess up the system just because he comes from the other party.

That was very tough to work out.

You have about 10 minutes left.

What I’m looking for here is, is there a similar kind of exception?

You can argue this point for the next 10 minutes, but there’s nothing to it.

When you buy a pencil from the GSA, when the Government orders a pencil, often to buy a pencil there are all kinds of papers.

[Laughter]

It takes forever, and some of the reason for that was because the GSA was worried about being able to substantial 100 percent that there were no subjective impermissible factors going into the Government procurement process.

I mean, really, the proposition we’re… I thought we were going to argue is whether you can favor your friends.

That slows it down, stops it from working.

That’s what this issue involves.

So what is a standard whereby we can assure that that kind of thing can work, at the same time protect your client?

If you can tell me this is a better tower, then there’s no problem.

Harvey Grossman:

–Well, I believe that the record shows that what happened in the First Circuit was fairly unique.

Let me ask, why should you be able to?

Harvey Grossman:

What we see happening now in terms of the administration of the Branti standard and the administration of the patronage contracting case… patronage employment cases is a routinization of the application of the standard.

I’m not saying you should or you shouldn’t, but suppose–

Harvey Grossman:

Four circuits have agreed–

–May I suggest, it’s not favoring your friends, it’s penalizing your enemies that’s alleged in this case.

Yes, but you’ve already told me that you would apply a stricter standard in the independent contractor situation than for employees, so–

Yes, that, too.

Harvey Grossman:

–A strict–

That, too.

–citing what’s happened to employees in promotion cases under a more balanced standard seems to me doesn’t answer the question of how we would respond to Justice Breyer’s line-drawing in your situation.

For what they said.

Harvey Grossman:

–Well, I think that strict scrutiny has been applied in the employee patronage cases, but even under a reasonableness standard contract patronage would not be… would not withstand scrutiny.

For what they said in public.

Harvey Grossman:

This is not… this is a viewpoint-based, partisan-enforced practice that requires a contribution of a precise amount, and which is a substantial tax on a small businessman’s ability to function whatsoever, so whatever level of scrutiny this Court would choose, I would maintain–

You’re penalizing people for what they say in public, and let’s defend that proposition.

Well–

Gary M. Feiereisel:

–I think that what we have to do when we’re talking about a democratic process is, you are entitled, as the administration in power to award contracts to people who support you, and that may–

Harvey Grossman:

–that contract patronage cannot withstand that.

Winner take all.

–Let me ask another question.

Gary M. Feiereisel:

–Maybe.

Would you have precisely the same case and the same standard if it were speech-related?

Gary M. Feiereisel:

Maybe.

Suppose that Mr. Grossman just put up the sign… excuse me, your client put up a sign supporting the mayor’s opponent, and we didn’t have this element of the refusal to contribute.

Gary M. Feiereisel:

That may–

Harvey Grossman:

Yes, I believe that that also would be protected.

Why?

Well, that is this case.

Because to award them to your friends is… whether every Senator, Congressman, State legislator through 200 years has suggested if you have breakfast with me or whatever, maybe that will help, or maybe it won’t, but to do that, to give contracts to your friends is also to not give them to your enemies, and your enemies, presumably, are those who voted for the opposite side.

That’s what paragraph 12 of the complaint alleges.

All right, so maybe that’s gone on for 200 years, but the question that’s being put by the other side is, fine, what is the logical justification for penalizing your enemies by helping your friends?

Harvey Grossman:

Excuse me?

Gary M. Feiereisel:

–The logical justification is, you should be able to reward your supporters because it’s the democratic process.

That is this case.

Gary M. Feiereisel:

You should be able to do that, and you should not have to suffer the risk of facing a First Amendment lawsuit every time someone is not awarded a contract when they think they should have been awarded a contract, especially if they have already established themselves as a supporter of the opposition.

Harvey Grossman:

It unquestionably is–

Gary M. Feiereisel:

Then there’s going to be a First Amendment lawsuit filed every time that situation arises, and what happens then is, there’s going to be… there’s going to be, even more so than in the employer-employee context, an unbelievable amount of litigation that I think is going to arise from that.

Paragraph 12 of the complaint specifically alleges that he was terminated because he carried campaign posters.

Gary M. Feiereisel:

It was alluded to a little bit before, but I think when you’re talking about an independent contractor situation, you have a lot more disappointed independent contractors who don’t get their bids accepted than you have employees who don’t get hired, or who don’t get promoted or transferred, or some other employment decision.

Harvey Grossman:

–It is.

Gary M. Feiereisel:

So you’re facing the prospect here of saying that independent contractors have certain First Amendment rights, and that’s opening a potential floodgate of litigation.

Harvey Grossman:

It is precisely–

Do you accept the proposition, Mr. Feiereisel, that if something is illogical it is unconstitutional?

I don’t understand why there should be a distinction–

Gary M. Feiereisel:

No, I don’t accept that proposition, Your Honor, and I think that another consideration in this setting is once… I get back to my point before, that you shouldn’t… they admitted you should not have to suffer the risk of running into an independent contractor who has whatever agenda he may have.

Harvey Grossman:

–I don’t think there should be.

Gary M. Feiereisel:

Clearly, based upon what is alleged in this complaint, the petitioner does not support the mayor and vigorously supports the opposition, so he… the mayor should not be penalized and Northlake should not be penalized because he does not want to run the risk of this particular independent contractor or any independent contractor doing something to undermine his administration.

–in this case.

Gary M. Feiereisel:

He should be allowed to–

Harvey Grossman:

I think that strict scrutiny applies to both.

Mr. Feiereisel, suppose my friends and my enemies correspond with certain racial or religious groups.

Harvey Grossman:

I think–

Suppose one particular church campaigned, the members of that church campaigned against the incumbent, and so the people who are taken off the towing list are all members of that religion, would that make any difference?

Mr. Grossman, victorious political parties, especially at the municipal level, have been awarding contracts to their political friends since God made little apples, at least since He made them in this country.

Gary M. Feiereisel:

–Well, then I think you’re taking it out of a pure–

We have recently held that discrimination in contracting on the basis of race is no good, even if you do it for the best of motives.

Taking it out of… they happen to be of one religion, but they also oppose the incumbent.

Don’t you think that there might be some cause for upset if minority groups that have finally wrested control of various municipalities from previous minority groups who had control, suddenly, as soon as they get in, are confronted with a whole new regime?

Gary M. Feiereisel:

–Well, I… that may be a different situation, but that’s not what’s alleged in this case, Your Honor, and I don’t know–

Now you can no longer give contracts to your friends.

I just want to know if there’s any First Amendment… any constitutional control here at all.

Now everybody has to come in on an equal basis.

Gary M. Feiereisel:

–I–

Harvey Grossman:

–I think it’s–

Are you… you seem at one point to be taking the position that the government contracts just like a private person contracts and there is no constitutional limitation intruded into that, but you’re not taken that position.

And moreover, you can’t discriminate on the basis of race in the awarding of contracts, although previously you could have discriminated on the basis of political affiliation.

Gary M. Feiereisel:

–I–

Why should we change the rule in the middle of the game like that?

Just no First Amendment, is that–

Harvey Grossman:

–Well, I believe that it’s no more permissible to discriminate on the basis of political affiliation than it is race or religion.

Gary M. Feiereisel:

–I’m talking about the First Amendment.

Harvey Grossman:

And I think that you change the rule because it conforms to the Constitution, and I believe that it is–

Gary M. Feiereisel:

I’m talking about… in the context of this case we’re talking about political association, and in that context, no, I believe that any–

Well, certainly some of our cases… for instance, in the reapportionment cases we’ve held that political gerrymanders are okay, but racial gerrymanders are not, so we have not applied the same standard to political considerations as we have to racial considerations.

–But not the religion part of the First Amendment, so if the–

Harvey Grossman:

–I believe that’s also correct in that construct, but I believe where it is used as a penalty directly against the exercise of rights, that this Court’s cases on viewpoint discrimination, and this Court’s case on forced contribution… this isn’t a matter of the permutations of drawing district lines.

Gary M. Feiereisel:

–That’s… no, that’s not this case.

Harvey Grossman:

This has to do with a direct requirement that you conform your political beliefs to a strict code, and that you pay on the line in conformity with that.

–Or race, or national origin.

What if the City of Northlake had said, here, we want $100 from each towing contractor.

Gary M. Feiereisel:

That’s not–

We don’t care whether you vote for the mayor or not.

Those limits would apply to the government.

Your political beliefs are your own, but just pay $100 to the mayor’s campaign fund.

Gary M. Feiereisel:

–I’m not saying they wouldn’t.

Harvey Grossman:

I believe that that would be forced contribution.

Gary M. Feiereisel:

That’s… I think that’s a different case.

Harvey Grossman:

It would run afoul of Abood, it would run afoul of Keller–

Gary M. Feiereisel:

We’re not talking about that here.

But it certainly doesn’t force anyone to change their political beliefs.

You’re not entirely sure, though.

Harvey Grossman:

–No.

I mean, I thought you’re just arguing for the spoils system, the good old-fashioned spoils system, and not for racial bigotry or religious bigotry–

Harvey Grossman:

It is a… in that particular case, it is a forced contribution.

Gary M. Feiereisel:

I’m not.

Harvey Grossman:

It makes them contribute contrary to their political beliefs.

Gary M. Feiereisel:

No, I’m not arguing racial bigotry, I’m arguing for… basically for–

Harvey Grossman:

If you do not want to support this mayor, but nevertheless are required to do it, it’s as great a sin to be taxed as to be penalized against your will.

–You shouldn’t say those issues are not involved in this case.

What about favoring contractors who are environmentalists, who are active in environmental causes?

You should say that you’re argument would not approve of those things at all, because that’s not part of the spoils system.

Would that be bad?

Gary M. Feiereisel:

–Well, it’s not part of this case, either, and I agree with you.

Harvey Grossman:

I don’t… it would have to be compared to another construct.

Gary M. Feiereisel:

I think that again, if you have a situation where… well, let me backtrack for a minute.

Well, I mean, this is a political view.

Gary M. Feiereisel:

I think that the history of the Elrod, Branti, and Rutan decisions as such, that it has proved to be unworkable in terms of how it’s applied in specific situations, and there are–

These people, they’re greens.

Well, let me ask you about… are you familiar with the Shockman decree in Chicago?

Can you favor greens over, I don’t know, whatever the other ones are, browns, or blacks, I don’t know.

Gary M. Feiereisel:

–I’m familiar with it.

Harvey Grossman:

I would suppose that based on the service that you sought to provide, and I want to stress that there may very well be a compelling governmental interest for some political loyalty, or there may be a compelling governmental interest–

It’s been in effect for about 20 years, I think.

But I can’t favor them just because I want to give business to a company that I think has its head on straight as far as what’s good for the country is concerned?

Has that been unworkable?

I can’t do that?

Gary M. Feiereisel:

Well, I think that–

Because that’s sort of a political view.

I mean, it’s governed hiring in Chicago, a very large community, for about 20 years, and I’m not aware of the fact that we’ve been flooded with cases arising out of the interpretation of that decree.

Harvey Grossman:

–Well, I think that it is viewpoint discrimination and that it is ideologically based.

You’re familiar with it, aren’t you?

Harvey Grossman:

I think that it poses different governmental interests than historically have been asserted by those who believe that patronage serves the democratic process.

Gary M. Feiereisel:

–I’m familiar with it, Your Honor–

Mr. Grossman, on the subject of lines, you never did say what would be a rational distinction between not putting one on the list and taking one off the list, that’s one thing, and then you seemed to say we should have a stricter standard when we’re dealing with, give money to the incumbent, don’t support the challenger, a stricter standard for that than someone who goes around criticizing government policy.

Yes.

Are those your positions, or are you saying all of this gets together, and it’s the same First Amendment standard for all of them, whether it’s expression about government policy or patronage, whether it’s getting on the list or being taken off the list, the same standard for all of these?

Gary M. Feiereisel:

–yes, and I’m not… no, I’m not aware of there being a flood of litigation arising out of that decree.

Harvey Grossman:

I do believe it’s the same standard.

And it survived in the change of administration when a black mayor succeeded a white mayor, it didn’t cause insuperable problems or anything.

Then you’re changing from the way you started.

It was the same party, wasn’t it?

Harvey Grossman:

I didn’t intend to.

[Laughter]

Harvey Grossman:

What I believe are that there are different government interests implicated in those different hypotheticals, but that–

Unless Chicago has a Republican mayor these days–

Well then, why shouldn’t you be talking about balancing, rather than the strictest standard?

Gary M. Feiereisel:

No, it doesn’t, Your Honor.

Harvey Grossman:

–Because unless you distinguished yourself, unless as a contractor you start to move on a continuum towards looking like an employee, you are a member of the public at large, and there is no reason to restrict your rights.

–It didn’t when I lived there, anyway.

Harvey Grossman:

The person who happens to sell paper supplies to the Court cannot remotely be likened to an employee.

Gary M. Feiereisel:

It doesn’t.

Harvey Grossman:

There is no work place employer-employee relationship.

Gary M. Feiereisel:

There’s no Republican mayor in Chicago.

Harvey Grossman:

That has been the basis for restricting the rights of public employees.

And I suppose there’s no political division within the Democratic Party, either.

Harvey Grossman:

This Court reaffirmed that in Waters and defined that quite clearly.

[Laughter]

Harvey Grossman:

It was not the efficiency of operations, per se, that gives it a freer hand to regulate employees.

Gary M. Feiereisel:

Nonetheless, I think that the potential is there not only… I think it’s obvious that it’s there in the employer-employee context.

Harvey Grossman:

It is the nature of that relationship, every-day functioning in the context of supervision, working with other people every day in the work place.

Gary M. Feiereisel:

It’s clearly there in an independent contractor context, and there were some… there were questions previously about line-drawing in an independent contractor context.

Harvey Grossman:

Suppliers of office goods just don’t look like that.

Gary M. Feiereisel:

I don’t think you can draw a line.

Harvey Grossman:

Nor do towing operators look like that, and there is no reason to pull them out of the public and treat them to a lesser standard for very, very basic rights of where they put their campaign dollars.

Gary M. Feiereisel:

I think that it has to be everybody or nobody that this is going to apply to, because–

Well, would you say that was true in a speech situation with a public employee, if the person who applied for public employment, but had not yet been hired, had been engaging in speech which, had he been hired would in some sense have been antithetical to the accomplishment of his government job?

Well, on the distinction between hiring and firing, are you familiar with the Wygant case?

Would you say that that somehow could not be considered, it couldn’t be balanced because at the moment of the speech he was simply a member of the general public?

Gary M. Feiereisel:

–No.

Harvey Grossman:

No.

It did draw just precisely that distinction, and said it made a constitutional difference, but perhaps you’re not familiar–

Harvey Grossman:

It might very well be a relevant consideration.

Gary M. Feiereisel:

Well, in this line of cases with Elrod, Branti, and Rutan, that’s all been basically lumped together, I think.

Then why isn’t the same… all right, then why isn’t the same–

Gary M. Feiereisel:

Hiring, firing, promotion, transfer, whatever, you can’t make any employment decisions unless the individual involved, or who the decision is being made against, falls within the exception to those cases.

Harvey Grossman:

If it impacts on the performance of the future job.

Gary M. Feiereisel:

That scenario has created a lot of litigation.

–All right, then why isn’t the same kind of balancing going to be appropriate when you’re talking about a person who wants to be an independent contractor but has not yet gotten a contract?

Gary M. Feiereisel:

It has created inconsistent results between different courts, and I think that that will lead even more… or it will evidence itself even more strongly in a situation like this, where you have innumerable more independent contractor situations than you do employee situations.

Harvey Grossman:

It might be that if he is engaged in speech which is related to the performance of a job–

Gary M. Feiereisel:

You have a situation where the administration that’s in power should not have to run the risk of facing lawsuits, having to spend money on lawsuits in this kind of a context.

So the difference is speech versus association, is that it?

Gary M. Feiereisel:

You have… that’s why there’s so many qualified immunity defenses that are being raised, because in those situations the administration does not know, or the public official involved, is being dismissed from cases because they are not able to tell or were not able to tell from past decisions whether the decision they’re making is constitutionally correct or incorrect, and I think that is only going to get multiplied if you extend the same First Amendment rights that have been extended to employees to the independent contractors.

Harvey Grossman:

–I believe that association cannot be related to the performance of the service.

Gary M. Feiereisel:

I’ve… there are a couple of other arguments I wanted to make.

William H. Rehnquist:

We’ll hear argument now in Number 95-191, O’Hare Truck Service, Incorporated v. The City of Northlake.

Harvey Grossman:

That is the foundation of this argument.

Gary M. Feiereisel:

My time’s running out so I’m not… I’ll… they’re in my brief.

William H. Rehnquist:

Mr. Grossman.

Harvey Grossman:

If you can prove that it is, if political loyalty is, in fact, relevant, if someone who hires a–

Gary M. Feiereisel:

I know that one of the things we raised is that if the Court decides to… or before the Court decides to extend Rutan to this situation, I think that there… there should be consideration given to overruling Rutan because of the problems raised in our brief and the brief of the State of Illinois, the officials.

Harvey Grossman:

Mr. Chief Justice, and may it please the Court:

I just want to understand what you’re saying.

Gary M. Feiereisel:

In summary, it is our position that, when you’re in an independent contractor context, their First Amendment rights in political association do not… or can be infringed because they are entitled… the administration, I am sorry, is entitled to rely on independent contracts… contractors, I’m sorry, that it knows supports its position, its administration, its program because that is the safest way, especially at the local level, to promote efficient and effective government.

Harvey Grossman:

This case is about whether the First Amendment provides any level of protection whatsoever to a businessman who’s cut out from city business after 30 years of competent performance in retaliation for refusing to contribute to the mayor’s reelection campaign and supporting the opposition.

I had thought that the reason the associational applicant for a contract was, in fact, not going to be subject to balancing in any sense was that he was simply a member of the general public, but I think your reason, if I understand you now is, there never can be a balancing on an associational issue.

Gary M. Feiereisel:

Thank you.

Harvey Grossman:

This penalty on association invoked in this case resulted in the substantial loss of income to Mr. Gratzianna, the petitioner here.

That’s purely for speech.

–Thank you, Mr. Feiereisel.

Harvey Grossman:

I wish to focus first on the aspect of forced contribution involved in the conduct of the respondents in this case.

Harvey Grossman:

–I believe that that is true.

Mr. Grossman, you have a minute remaining.

Harvey Grossman:

The precipitating event was Mr. Gratzianna’s refusal to be coerced out of a substantial campaign contribution.

Okay.

Could you say just in 1 second who pays?

Harvey Grossman:

Making that contribution would have been contrary to his own political beliefs.

I would like to reserve my remaining time for rebuttal.

Does the municipality pay, or the customer?

Harvey Grossman:

This conduct by the respondent should be condemned, not sanitized as patronage practice which purports to serve the democratic process.

Very well, Mr. Grossman.

We have different views.

Harvey Grossman:

This practice corrupts rather than advances any meaningful interests of government.

Mr. Feiereisel, we’ll hear from you.

The court of appeals says one, the petition the other.

Well, I think that there are bribery and corruption laws that would reach a situation of quid pro quo, if you give me or you give my party $200 I will give you a contract.

Gary M. Feiereisel:

Mr. Chief Justice, and may it please the Court:

Harvey Grossman:

The… it actually varies.

I think that is correct, Your Honor, but what we seek here is a civil remedy when the burden of reasonable doubt is not imposed on the petitioner, where–

Gary M. Feiereisel:

This Court has made clear that First Amendment rights are not absolute.

Harvey Grossman:

There are authorized tows where the… Mr. Gratzianna can only be on the scene with the authorization of the municipality.

You don’t need Elrod and subsequent cases, and Rutan, in order to enforce that kind of prohibition.

Gary M. Feiereisel:

There are encroachments or restrictions on First Amendment rights permissible for appropriate reasons, and when we’re talking about an independent contractor context, those appropriate reasons exist.

Harvey Grossman:

Those are abandoned vehicles.

–I agree with you, Your Honor.

Gary M. Feiereisel:

To rule in favor of petitioners and send this case back down to the district court, this Court must extend the holdings in Elrod, Branti, and Rutan to the independent contractor governmental context, and there are several reasons why that should not be done.

Harvey Grossman:

We’ve tried to explain that by citing Illinois law in our complaint.

I do not believe that the petitioner’s rights here are dependent upon the public employment patronage cases whatsoever.

Gary M. Feiereisel:

First of all–

Harvey Grossman:

In those instances, the individual driver still pays, but they could not… it is similar to the licensing that has been described by Justice Ginsburg.

I believe there is independent doctrine that we’ve cited in our briefs which prohibit penalties on association, which prohibit forced contributions, and which also allow people to express themselves politically particularly in their private work place or on their private property.

Can I ask, before you get into your discussion of independent contractors, this fellow, of course, wasn’t a contractor with the city.

Harvey Grossman:

The tower could not be on the scene without authorization from the city.

Well, I’m not saying that that… that those statutes apply here.

He was just on a towing list.

Harvey Grossman:

There also are city tows where Mr. Gratzianna tows city vehicles and does that pursuant to the list as well.

I’m just saying, where there is a quid pro quo.

Gary M. Feiereisel:

–He didn’t have a formal contract with the City of Northlake, but essentially that is why he was doing what he was doing, because the City of Northlake had an agreement or had a towing rotation list–

Harvey Grossman:

In those instances the city does pay money.

I’m not sure that was established as the factual situation here.

They had a list, but–

Harvey Grossman:

That’s simply the record, and I–

No, I don’t believe that within the confines of the criminal law that a quid pro quo was established here, but what we seek to do, and I want to stress to Your Honor, is an opportunity to provide a court with the proof of what did occur, and have a court determine whether or not that violates the First Amendment.

Gary M. Feiereisel:

–that wouldn’t be there–

But he makes a commitment to the city to go, not just to the individual.

Harvey Grossman:

What’s critical here is that the lower courts have said that there is no First Amendment protection whatsoever, so notwithstanding the ability of a litigant even to prove the quid pro quo that you’ve suggested–

–But he didn’t have an agreement to stay on the list, did he?

I mean, the deal is–

Bribery laws aren’t dependent on the First Amendment.

He didn’t have any contractual right, did he?

Harvey Grossman:

–That is correct.

I mean, you know, they apply whether you’re saying give me $50 for my own coffer or give me $50 for the party.

Gary M. Feiereisel:

–No, he did not.

–the city gives him the authorization, and he commits himself to go.

I don’t think those bribery and corruption laws have any relationship to the First Amendment.

So he’s not an independent contractor.

Harvey Grossman:

That is correct.

–I wasn’t suggesting that they did, Your Honor.

His contracts are with people who need towing services, not with the city.

Harvey Grossman:

In terms of the flood of litigation that was predicted here, I’d like to stress that Abercrombie in the Tenth Circuit has given these rights to public… to independent contractors since 1990, and there’s been no litigation.

I was suggesting that even if you place that burden on the litigant here, that he nevertheless should have an opportunity to go before a civil court and prove that the violation of his First Amendment’s, whether it resulted from a quid pro quo, or the implicit imposition of a penalty, as it did this case, violates the First Amendment.

Gary M. Feiereisel:

It’s essentially the same thing in this context because of his… the reason why he’s at the scene performing his tow.

Harvey Grossman:

Second, that I do think Mt.

Because there are criminal laws that exist to protect interests does not mean that we do not have corollaries in the civil law which also under our Constitution provide a means for redress.

Gary M. Feiereisel:

He would not be there but for the city calling him out to go there, and I think in that context the analysis of an independent contractor is the same, and my reading of the briefs is that the petitioners have essentially admitted that this is an independent contractor situation.

Harvey Grossman:

Healthy addresses the question of the flood, but nevertheless I have also attempted to carve out in our briefs an exception that does parallel those considerations recognized in Elrod and Branti, and that is that in those few instances where independent contractors move down that line and do provide services which, in terms of implementing policy–

There are numerous instances where that occurs, from instances of policemen’s conduct in illegal search and seizure, straight through the panoply of constitutional–

Well, would you agree that if he were purely a member of the public, not a contractor at all, who wanted to wear campaign buttons… and it’s alleged here he displayed campaign posters for the opponent of the city.

William H. Rehnquist:

Thank you, Mr. Grossman.

Well, his corollary would be, I was asked for a bribe, and I was… my contract was terminated because I refused to pay a bribe.

If an independent, just a member of the public displayed campaign posters for the opponent of the mayor, could the city punish that person in any way?

William H. Rehnquist:

Your time has expired.

The corollary would not be, I have a cause of action because you violated my First Amendment rights.

Gary M. Feiereisel:

No, it could not.

William H. Rehnquist:

The case is submitted.

Harvey Grossman:

–No, the civil formulation… I respectfully disagree with Your Honor.

And what if they had facilities such as a museum, could they deprive the members of the public of entrance to the museum because they wore campaign buttons?

Harvey Grossman:

I think the civil formulation of that is that in fact his First Amendment rights were violated as well, independent of the question of whether the Government has chosen, responsibly, I think, to create official misconduct laws or extortion laws.

Gary M. Feiereisel:

No, they could not.

Then you are not relying on the corruption statutes, you’re relying on the Rutan-Elrod line of cases.

Now, why is it that–

Harvey Grossman:

No, I’m not, Your Honor, although I think that those cases can very well be instructive in terms of analyzing the Government’s interest that it might assert in this case.

–Are you sure of that, that they couldn’t punish… it depends on what you mean by punish.

Harvey Grossman:

I don’t say that they transfer in toto, because I wish to stress that I did not represent a public employee.

Would the mayor have to invite this person to a dinner at the mayor’s mansion?

Harvey Grossman:

The gentleman that appears before this Court cannot conceivably be compared to a public employee.

No, I’m not talking about what the mayor does.

Harvey Grossman:

He does not provide services in the Government work place or at a Government work site.

Can they use city authority to deprive that member of the public from services that other equally qualified people would be eligible for?

Harvey Grossman:

He does not work shoulder-to-shoulder with other Government employees.

Gary M. Feiereisel:

Well, I guess in that context it depends on what we’re talking about, and if we’re talking about… if we’re talking about–

Harvey Grossman:

He has no Government supervisor.

We’re talking about the First Amendment right–

Harvey Grossman:

He is not in a chain of command.

Gary M. Feiereisel:

–No, I–

Harvey Grossman:

His services are straightforward.

–to display a campaign button opposing the reelection of the incumbent in office.

Harvey Grossman:

They’re determined by the custom and practices within the industry in which he works.

Gary M. Feiereisel:

–And then if that individual, if the incumbent is reelected and that individual then wants to–

Harvey Grossman:

He can’t be said to speak for the city or any official.

Wants to go into a public museum and the mayor says, no, you were wearing a button against me before, so you can’t come in.

Well, Mr. Grossman, in protecting, for example, the free speech rights of public employees, the Court has employed some kind of a balancing test, the so-called Pickering approach, and has recognized interests of the employer as well as those of the employees.

Gary M. Feiereisel:

–No, I would say that he could not do that.

Do you think that the independent contractor has rights greater than that of an employee?

Now why, then, can he keep this member of the public off the towing list if he’s otherwise qualified for it?

Harvey Grossman:

I do.

Gary M. Feiereisel:

Because we get back to what I believe–

Harvey Grossman:

I think there’s a continuum on which independent contractors provide services.

If his only sin is displaying a campaign poster, that’s the only thing he’s done, and that’s what’s alleged in paragraph 12 of the complaint.

Harvey Grossman:

I think that the closer that they look like employees… and I’ve just gone five or six factors myself… the closer that they look like employees, I think more legitimately can they be regulated as public employees.

Gary M. Feiereisel:

–Well, we get back to what I believe is the issue in the case, is that in an independent contractor context, this individual wants their name to be put on the towing rotation list, and the administration in Northlake should be allowed to use or to hire or to award contracts to people who it knows supports its administration in order that it can make sure that it delivers whatever those public services are to the people that had elected them.

Harvey Grossman:

My client–

But they’re not public services.

But you would propose to us, at least, the employment of a stricter level of scrutiny for the… your client, the independent contractor, than would be the case for an employee?

They’re private towing services that they want to give to motorists who are in distress.

Harvey Grossman:

–Yes, I would, and I think that it’s important to note that in this Court’s jurisprudence regarding the regulation of public employees and their First Amendment rights as recently as its decision in Waters, it stressed that it really was not the operation of Government per se, or Governmental efficiency, that resulted in a freer hand in restricting the rights of public employees, it was the nature of the employer-employee relationship.

They’re not providing any service to the city.

Harvey Grossman:

And this Court said that what was comparatively a subordinate interest vis-a-vis the general public… that is, operational efficiency… becomes more pronounced and weighty when you’re talking about the interaction of an employee in the workforce, understandably, just based on every-day human relations, and I don’t challenge whatsoever that proposition, but when–

Gary M. Feiereisel:

They are providing a service to the city.

But there’s a real concern, isn’t there, for opening up a great deal of litigation in the Government contracting field if we find such a strong interest on the part of the independent contractor?

Gary M. Feiereisel:

I respectfully disagree, Your Honor, because one of the services they’re providing to the city is, for instance, you have an automobile accident on one of the… on a busy thoroughfare through the City of Northlake.

Harvey Grossman:

–Well, first, if the question is, should there be a cognizable claim at all, that doesn’t deal with the standard.

Gary M. Feiereisel:

Well, one of the things that has to happen, or that people in Northlake should be entitled to, is free and safe flow of traffic in their community.