Kimberly K. Benedix v. Village of Hanover Park, Illinois

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1096
KIMBERLY K. BENEDIX,
Plaintiff-Appellant,
v.
VILLAGE OF HANOVER PARK, ILLINOIS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 C 3072—Harry D. Leinenweber, Judge.
ARGUED SEPTEMBER 19, 2011—DECIDED APRIL 17, 2012
Before EASTERBROOK, Chief Judge, and KANNE and
WILLIAMS, Circuit Judges.
EASTERBROOK, Chief Judge. The Village of Hanover
Park fired Marc Hummel from his position as Village
Manager. That is the sort of job for which politics is a
legitimate qualification (or disqualification). See Branti v.
Finkel, 445 U.S. 507 (1980). At the same time as they ousted
Hummel, the Village President and Board of Trustees
restructured the work force. An ordinance abolished

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2 No. 11-1096
three positions and created one new slot. Kimberly
Benedix had occupied one of the three abolished posi-
tions: Executive Coordinator to the Village Manager.
She filed this suit under 42 U.S.C. §1983, contending
that the Village, the President, and three of the Trustees
violated the first amendment (applied to the states by
the fourteenth) by holding her associations against her.
Benedix contends that she was canned because she
was associated with (and a friend of) Hummel, who
had lost a political struggle, after which the defendants
decided to clean out Hummel’s office.
Because the Village implemented its plan through an
ordinance, the district court dismissed the complaint on
the ground of legislative immunity. See 2010 U.S. Dist.
LEXIS 129746 (N.D. Ill. Dec. 8, 2010). Despite Benedix’s
protest that this ordinance wasn’t “really” legislation
because it had her as a target, we agree with the
district court that an ordinance adopted through the
legislative process, and having the force of law, is covered
by legislative immunity no matter the motives of those
who proposed, voted for, or otherwise supported the
proposal. See Tenney v. Brandhove, 341 U.S. 367 (1951);
Rateree v. Rockett, 852 F.2d 946 (7th Cir. 1988).
But the district judge failed to notice that the Village
is among the defendants. Section 1983 imposes liability
on state and municipal governments for their own uncon-
stitutional policies, see Monell v. New York City Depart-
ment of Social Services, 436 U.S. 658 (1978), and legislation
makes the elimination of Benedix’s position the Village’s
official policy. Municipalities do not enjoy any kind of

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No. 11-1096 3
immunity from suits for damages under §1983. See
Owen v. Independence, 445 U.S. 622 (1980). Thus legislative
immunity for the President and Trustees does not allow
a court to end the suit. And since this suit was dis-
missed on the pleadings, we must assume that the main,
if not the only, reason for the new ordinance was to get
rid of the ousted Village Manager’s staff. (Benedix con-
tends that the Village Manager’s position was itself abol-
ished and that the President and Trustees took over
management through a new position called Village Col-
lector. This detail does not affect the analysis.)
Benedix contends that association should be treated
the same as politics for purposes of the rule that a
public employer cannot hire or fire (most) employees on
the basis of speech. See, e.g., Rutan v. Republican Party of
Illinois, 497 U.S. 62 (1990); Elrod v. Burns, 427 U.S. 347
(1976). This is not at all clear to us—and not only
because the right of association is derived from other
constitutional rights rather than being a free-standing
entitlement. Courts often say that intimate association
is constitutionally protected, see Turner v. Safley, 482 U.S.
78 (1987) (marriage is a fundamental right), but anti-
nepotism statutes are common. Hanover Park could
prevent the Village Manager from hiring his wife or
child as Executive Coordinator; and if the closest kinds
of association are legitimate grounds of deciding who
occupies what positions in government, what’s wrong
with considering more distant kinds of association, such
as friendship? Cf. Califano v. Jobst, 434 U.S. 47 (1977)
(Social Security benefits may be reduced following mar-
riage, even though this discourages intimate association).

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4 No. 11-1096
It is common to hold a person’s associations against
him. For example, when an Attorney General leaves
office, all of the special assistants, executive assistants,
special assistants to the deputy executive assistants,
and the rest of the coterie go too, so that the new
Attorney General can choose his own aides. Policy-
making officials such as an Attorney General and a
Village Manager need an immediate staff of dedicated
aides if they are to do their jobs—and if the results
of elections are to be translated into policy. It would
disrupt this process, and undermine the right of the
people to change policies by replacing officeholders, if
a contention such as “I was a friend of the outgoing
Attorney General and supported his policies” insulated
the assistant from removal, the new Attorney General
would arrive to find a potential saboteur in his entourage.
To put this differently, it is an important part of the
new officeholder’s own right of association to be able to
choose who to work with, the better to promote his
ideas and policies. Cf. Hurley v. Irish-American Gay, Lesbian
& Bisexual Group of Boston, Inc., 515 U.S. 557 (1995) (orga-
nizers of a parade may choose who can march and
who can’t, so that they can convey their own message).
This may be why neither Elrod nor any of its successors
suggested that friendship with an ousted officeholder
is a forbidden ground of action in making personnel
decisions. Benedix has not cited, and we could not
find, any appellate decision holding that friendship is
a constitutionally impermissible basis of hiring or firing
public employees.

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No. 11-1096 5
But we need not decide whether Hanover Park could
have removed all of Hummel’s friends no matter what
position they held. The need for the new Village
Manager to have a loyal staff does not imply a need for
the Village to get rid of, say, the ousted Village Manager’s
next door neighbor who had a job as a kindergarten
teacher. Benedix was the Executive Coordinator to the
Village Manager. According to her brief, “she reported
directly to and worked closely with Village Manager
Hummel.” She contends that Executive Coordinator
was not a policy-making job, and so we shall assume,
but a position as a policymaker’s right-hand woman
must be deemed a “confidential” one. Hummel had
only two assistants, including Benedix. A new Village
Manager (or Village Collector) who arrived and found
that 50% of his staff was committed to his political ad-
versary would not be able to do his job.
Elrod and its successors say that politics is an appro-
priate ground of decision for policymaking and confiden-
tial positions. We understand “confidential” positions to
include those in the policymaker’s immediate office—
not only those who hear confidences (such as the
policymaker’s secretary or executive assistant) but also
the persons responsible for recommending and imple-
menting the policies. See Faughender v. North Olmstead,
927 F.2d 909, 913–14 (6th Cir. 1991) (mayor’s secretary is
a “confidential” position); Soderbeck v. Burnett County,
752 F.2d 285, 288 (7th Cir. 1985) (“you cannot run a gov-
ernment with officials who are forced to keep political
enemies as their confidential secretaries”). An Executive
Coordinator who reports directly to, and works closely

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6 No. 11-1096
with, a policymaker such as the Village Manager is prop-
erly classified as a “confidential” employee who may
be hired and fired on account of politics—or friendship.
No matter what one makes of associational rights, friend-
ship cannot have greater status than political speech.
Benedix presented some state-law claims under the
supplemental jurisdiction. The district judge dismissed
them, concluding that they are blocked by a state stat-
ute that prevents awards of damages based on legisla-
tive activity. 745 ILCS 10/2-205. We agree with that con-
clusion. Benedix has not made a claim under state
law directly against the Village, so the judgment of
the district court is
AFFIRMED.
4-17-12

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