PHILLIP D. CARLSON and THOMAS R. SMITH v. Mary E. Gorecki

In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-1732
P HILLIP D. C ARLSON and T HOMAS R. S MITH ,
Plaintiffs-Appellees,
v.
M ARY E. G ORECKI ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CV 9235—Charles R. Norgle, Sr., Judge.
____________
A RGUED A PRIL 15, 2004—D ECIDED J UNE 29, 2004
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Before F LAUM , Chief Judge, and M ANION and R OVNER ,
Circuit Judges.
M ANION , Circuit Judge. Phillip Carlson and Thomas Smith
worked as special investigators for the Kane County,
Illinois, State’s Attorney’s office. In December 2000, de-
fendant Mary Gorecki, the Kane County State’s Attorney,
fired Carlson and Smith allegedly because of their speech on
matters of public concern, namely, their support of
Gorecki’s opponent in the election and their allegations that
Gorecki was involved in various jobs-for-favors and
kickback schemes. Carlson and Smith filed this action under

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2 No. 03-1732
42 U.S.C. § 1983, asserting that Gorecki’s decision to fire
them violated the First Amendment. After discovery,
Gorecki filed a motion for summary judgment asserting that
Carlson and Smith occupied policymaking or confidential
positions and that she was entitled to qualified immunity.
The court denied Gorecki’s motion. She appeals, and for the
following reasons, we affirm.
I.
Both Phillip Carlson and Thomas Smith were hired as
special investigators by the former Kane County State’s
Attorney, David Akemann. As investigators, both Carlson
and Smith were routinely called upon, for example, to locate
witnesses, serve subpoenas, transport witnesses to court,
and interview witnesses. Both were supervised by an
Assistant State’s Attorney, John Barsanti. Beginning in 1986,
Barsanti supervised investigators in the Kane County State’s
Attorneys’ office. According to Barsanti, the main duty of
Carlson and Smith was serving subpoenas. Both Barsanti
and former State’s Attorney Akemann testified that political
affiliation did not matter to the investigator position. The
evidence presented shows that neither Carlson nor Smith
participated in the policymaking decisions of the office, and
that political affiliation was not regarded as important to the
job of investigator. Barsanti emphasized that the investiga-
tors were not given discretion in performing their jobs, but
that on the rare occasions that the investigators were asked
to “investigate” matters, they were instead given specific
tasks to accomplish, such as taking a photograph of a
building.
Gorecki won the election and replaced Akemann as Kane
County State’s Attorney. On her first day at work as state’s

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No. 03-1732 3
1 Gorecki maintains that the position of special investigator, a
statutory appointment by the state’s attorney, runs concurrently
with the tenure of the appointing state’s attorney. Thus, accord-
ing to Gorecki, she did not fire Carlson and Smith, but merely
refused to reappoint them as special investigators. Gorecki does
acknowledge, however, that regardless of her statutory argu-
ment, “holdover” situations are possible. The plaintiffs claim that
they were holdover employees and were fired by Gorecki on
December 1, 2000. This factual dispute is immaterial because
Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990), prohibits
hiring, as well as firing, based on political affiliation when po-
litical affiliation is not appropriate for effective performance of
the job. For ease of reference, we will regard the plaintiffs as fired
from their jobs.
2 The exposure of this information led to the Illinois bar authori-
ties’ decision to suspend Gorecki from the practice of law for a
period of four months in 2003 due to statements she made in
violation of the Rules of Professional Conduct. See In re Gorecki,
No. 96299, 2003 WL 22725624 (Ill. Nov. 20, 2003).
attorney in December, 2000, she fired1 Carlson after he had
been on the job for four years and Smith after he had been
on the job for two years. For purposes of this appeal, it is
undisputed that Gorecki fired Carlson and Smith because
she viewed them as her political enemies and blamed them
for an attempt to smear her politically. Carlson and Smith
supported Gorecki’s opponent in the primary election, and
Gorecki blamed Carlson for exposing information regarding
Gorecki’s alleged involvement in kickback and jobs-for-
favors schemes prior to taking office.2 Gorecki similarly
blamed Smith for authoring and circulating a letter criticiz-
ing her during the election for Kane County State’s Attor-
ney. According to Gorecki, despite the fact that she shared
the same party affiliation as Carlson and Smith, they were
her “political enemies.”

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4 No. 03-1732
After Carlson and Smith were fired, they filed this § 1983
suit against Gorecki alleging a First Amendment violation.
Gorecki filed a motion for summary judgment on the
grounds of qualified immunity, arguing that Carlson and
Smith were policymakers or confidential employees.
Gorecki admits that she fired Carlson and Smith solely for
political reasons, i.e., their public support of her opponent
and public criticism of her reputation for honesty. The court
granted Carlson and Smith the right to take limited discov-
ery before it ruled on the motion. Carlson and Smith
deposed Barsanti, the First Assistant State’s Attorney, and
Akemann, the former State’s Attorney.
Gorecki, in support of her argument that the plaintiffs
were policymakers or confidential employees, relied on the
evidence that investigators serve at the pleasure and dis-
cretion of the state’s attorney and that statute provides that
the state’s attorney has the sole power to appoint, remove,
and discipline a special investigator. The state’s attorney is
also permitted by statute to assign a special investigator to
investigate civil, criminal, and administrative matters and
serve as an agent of the grand jury. Of course, any investiga-
tion conducted by the special investigator is considered
confidential, as are any conversations between the special
investigator and the state’s attorney or supervising assistant
state’s attorney. Likewise, the assignment involves a
position of trust. The court, however, denied Gorecki’s mo-
tion for summary judgment by finding that there were ma-
terial issues of fact in dispute concerning whether the job of
special investigator is a policymaking or confidential
position.
II.
We review de novo the district court’s decision to deny
Gorecki’s motion for summary judgment on qualified im-

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No. 03-1732 5
munity grounds. Beauchamp v. City of Noblesville, 320 F.3d
733, 742 (7th Cir. 2003). We start with the general proposi-
tion that public employees may not be made to suffer ad-
verse job actions because of their political beliefs. Rutan v.
Republican Party of Ill., 497 U.S. 62, 79 (1990); Elrod v. Burns,
427 U.S. 347 (1976). An exception to this general rule is per-
mitted when the government employee responsible for the
adverse action can demonstrate that party affiliation is an
appropriate requirement for the effective performance of the
public office involved. See, e.g., Branti v. Finkel, 445 U.S. 507,
517-18 (1980).
Traditionally, we have referred to this exception for ease
of reference as the “policymaking” or “confidential” em-
ployee exception because those terms fit the majority of
situations where the exception applies. See Hudson v. Burke,
913 F.2d 427, 431 (7th Cir. 1990). The ultimate inquiry,
however, is not a search for whether the job fits the appro-
priate label “policymaker” or “confidential,” but whether
party affiliation is an appropriate requirement for perform-
ing the job. See Thompson v. Illinois Dept. of Professional
Regulations, 300 F.3d 750, 755-56 (7th Cir. 2002). Whether
party affiliation is an appropriate requirement for perfor-
mance of the job is determined by a functional test that ex-
amines the powers and duties inherent in the position. See
Hudson, 913 F.2d at 431. This inquiry considers both the
historical treatment of the position and the actual work
performed by the people who hold the position. See id. at
433; Flenner v. Sheahan, 107 F.3d 459, 465 (7th Cir. 1997);
Thornburg v. Peters, 155 F. Supp. 2d 984, 990-91 (C.D. Ill.
2001).
At the outset, Gorecki errs by focusing solely on whether
the special investigator position fits within the “policy-
maker” or “confidential” labels. She ignores the broader and
determinative question of whether party or political affilia-

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6 No. 03-1732
tion is an appropriate requirement for the job. See Thompson,
300 F.3d at 755-56. In fact, there is sufficient evidence in the
record to defeat Gorecki’s motion for summary judgment,
including Barsanti’s deposition, indicating that political
affiliation was not important to the job. Gorecki’s reliance
on Hudson is misplaced, because there we found that the
plaintiff investigators who were fired by the City of Chicago
contributed to controversial political decisions made by the
politically charged city finance committee. See Hudson, 913
F.2d at 433. In Hudson, we found that the investigator
position was inherently political in nature and involved
investigators who were hired primarily due to their political
affiliation. Id. at 432 (“Political affiliation was a primary
reason [plaintiffs] were hired; all performed political
work.”). Here, in contrast, there is sufficient evidence for a
jury to reject Gorecki’s claim that the special investigator
position contributed to political decisions or that the holders
of the office were hired primarily due to their political
affiliation.
Gorecki’s decision to entirely eliminate the special inves-
tigator position after firing Carlson and Smith also makes it
difficult for Gorecki to establish that political affiliation is
important to the job. Compare id. at 433 (considering the job
responsibilities of those who replaced the plaintiff investiga-
tors who were fired). In addition, the government official in
Hudson testified that he envisioned an expanded role for the
investigator position, including additional investigatory
duties involving sensitive political information. See id. In
contrast, Gorecki has failed to submit evidence that the
investigators handled sensitive political information or even
that she intended to use the job for that purpose in the
future. It is possible to infer from Gorecki’s decision to
eliminate the special investigator position not only that it
was a non-patronage job, but also that the position was not
important at all for the functioning of the office.

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No. 03-1732 7
Turning to Gorecki’s focus on the policymaking and con-
fidential monikers, as stated, we look both to the historical
treatment of the job and to the work performed by those
who presently hold the position to determine the inherent
nature of the job. See id.; Flenner, 107 F.3d at 465; Thornburg,
155 F. Supp. 2d at 990-991. Much if not most of the evidence
in the record reveals that the position involved almost
exclusively ministerial functions such as locating witnesses,
serving subpoenas, transporting witnesses to court, and
interviewing witnesses. The special investigators had little,
if any, direct contact with the state’s attorney and were
instead supervised by an assistant state’s attorney. The
state’s attorney’s office was not a small, intimate setting, but
instead had over 30 assistant state’s attorneys, in addition to
various staff members. But see Matlock v. Burns, 932 F.2d 658,
665 (7th Cir. 1991) (acknowledging that at least in a small
office setting, political animosity can be a legitimate basis
for firing by an elected official forced to have constant,
direct contact with a person viewed as a political enemy).
Gorecki’s evidence, at best, shows that the position has the
potential to impact policy. This is unhelpful, because all jobs
under the authority of the state’s attorney have this poten-
tial, depending upon how the state’s attorney uses the
position. The special investigator position, like any other job
at the state’s attorney office, requires a certain degree of
confidentiality. Access to confidential information alone,
however, does not mean that the job is confidential for
purposes of applying the confidential employee exception
to the ban on patronage dismissals. See id. at 665. Access to
confidential files by a lower-level employee who, while not
a policymaker, is openly politically hostile, may be reason
for termination. However, as stated, the potential, specu-
lative uses of the position are not significant in this case
because we are construing the facts in the light most
favorable to the plaintiffs, and because Gorecki has elimi-

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8 No. 03-1732
nated the position without submitting any evidence that she
will resurrect it with a political focus.
Finally, based on this record, Gorecki is not entitled to
qualified immunity. The cloak of qualified immunity is re-
moved from a government official if the plaintiffs show that
the law prohibiting the government official’s conduct was
“clearly established.” Gregorich v. Lund, 54 F.3d 410, 413 (7th
Cir. 1995). The test for whether the law was clearly estab-
lished must be conducted based on the specific facts of the
case, and not at a high level of generality. See Greenberg v.
Kmetko, 922 F.2d 382, 383-84 (7th Cir. 1991).
Here, the plaintiffs have met their burden because this
case is remarkably analogous to Matlock, 932 F.2d at 662.
In Matlock, we held that a City of Gary, Indiana, law
department investigator with the primary duties of inves-
tigating claims by visiting accident sites, interviewing
witnesses, taking pictures, and preparing written recom-
mendations was not a policymaker or confidential em-
ployee. Matlock, 932 F.2d at 664.
Based on the record, Carlson and Smith had less dis-
cretion and responsibility than the legal investigator in
Matlock. As far as we know from the summary judgment
record, the main duties of Carlson and Smith were ministe-
rial functions such as locating witnesses, serving subpoenas,
transporting witnesses to court, and interviewing witnesses.
On the rare occasions that they were required to submit a
report, the report was merely factual and did not contain
recommendations. In Matlock, we rejected the government’s
arguments that the investigator was a policymaker because
he exercised a great deal of discretion in how he carried out
investigations, and we also rejected the claim that the
position was confidential because the investigator had
unlimited access to confidential files. See id. at 662. Essen-
tially, Gorecki is making the same argument here. Her claim

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No. 03-1732 9
of qualified immunity fails because the record shows that
Carlson and Smith had jobs involving functions more
ministerial than the functions of the investigator in Matlock.
See Upton v. Thompson, 930 F.2d 1209, 1213 (7th Cir. 1991)
(holding that a strictly menial government worker is clearly
and completely protected from patronage firing). The
special investigator position in Kane County was menial to
such an extent that, after the firing of Carlson and Smith, the
position was entirely eliminated.
In closing, we emphasize the limited nature of our hold-
ing that is dictated by the specific and somewhat limited
facts of this record. A state’s attorney is clearly not prohib-
ited from utilizing the position of special investigator as a
policymaker or confidant so as to make political affiliation
an appropriate consideration for the job. Here, the defen-
dant has presented no evidence that the positions the two
plaintiffs held rose to a level requiring political sensitivity.
The nonessential quality of these jobs is underscored by the
fact that Gorecki saw no need to fill the vacancies created.
III.
The district court properly denied Gorecki’s motion for
summary judgment. Gorecki has failed to submit sufficient
evidence for us to conclude as a matter of law that party
affiliation is an appropriate requirement for the special in-
vestigator position. Instead, substantial evidence shows that
the position involves primarily ministerial tasks such as
locating witnesses, serving subpoenas, transporting wit-
nesses to court, and interviewing witnesses. Carlson and
Smith have met their burden of identifying closely analo-
gous case law prohibiting a very similar political firing of a
legal investigator, and Gorecki is thus not entitled to qua-
lified immunity. For these reasons, we A FFIRM the decision
of the district court.

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10 No. 03-1732
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-29-04

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