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Federal appeals panel reinstates political patronage suit

David Hudson
The Freedom Forum Online

06.26.00

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A former claims investigator for the Ohio Attorney General, dismissed because of his political affiliation, has had his First Amendment lawsuit reinstated by a divided federal appeals court panel.

Louis T. Bauer, a registered Democrat, served as a crime-victims claims investigator from April 1985 to June 1995.

From 1985 to 1994, a Democrat served as Ohio's attorney general. But in November 1994, Betty Montgomery, a Republican, was elected to the post. Shortly thereafter, she dismissed Bauer and replaced him with a member of her political party.

Bauer sued in federal court in May 1997, contending that his dismissal violated his First Amendment free-speech and free-association rights. Montgomery countered that political affiliation was a necessary criterion for Bauer's job.

In July 1998, U.S. District Judge David A. Katz dismissed Bauer's suit, ruling that political affiliation was an appropriate factor for Montgomery to consider. On appeal, a three-judge panel of the 6th U.S. Circuit Court of Appeals reinstated Bauer's lawsuit by a 2-1 vote in Bauer v. Montgomery.

Writing for the majority in the June 20 ruling, Judge Denise Page Hood noted that the U.S. Supreme Court in Elrod v. Burns (1976) and Branti v. Finkel (1980) had established that political patronage dismissals violated the First Amendment unless political affiliation is "essential to the discharge of the employee's government responsibilities."

Montgomery cited 6th Circuit case law establishing that a public employee serving as a "confidential adviser" could be hired and fired based on political affiliation. She argued that the employee holding Bauer's position served as her "eyes and ears" in the community.

Bauer argued, on the other hand, that his job duties were mainly non-political. The duties of the job include corresponding with law enforcement officials, interviewing claimants and maintaining records of investigations.

Hood wrote for the panel majority that the duties of the field investigator are "non-political." She noted that "the district court does not cite any evidence showing that the field investigator provides 'confidential advice' to anyone."

Hood concluded that there were "genuine issues of material fact" as to whether Bauer's former job had changed since Montgomery replaced him.

Judge Alice M. Batchelder dissented, ruling that the duties of Bauer's replacement "demonstrate his political role as an advisor and representative" for the attorney general.

W. David Arnold, Bauer's attorney, said that the majority correctly noted there was a factual dispute about whether Montgomery changed the job duties of Bauer's former position. He said there was a question whether Montgomery's actions were "just a post-hoc rationalization for firing a Democrat."

Todd Boyer, spokesman for the Ohio attorney general, said "no decision has been made on the next legal step."

"The attorney general has the right as an elected public official to fill key positions with individuals whom she feels are qualified to most effectively communicate her policies on key issues," Boyer said.

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