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Thursday, December 28, 2006

Ind. Decisions - 7th Circuit issues one Indiana decision today, plus two interesting non-Indiana cases

First, the Indiana case:

In Halfhill v. Northeast School Corp. (John Daniel Tinder, Judge), Circuit Judge Flaum writes:

Steven D. Halfhill worked as a third-grade teacher for the Northeast School Corporation (Northeast) in Sullivan County, Indiana during the 2001- 2002 and 2002-2003 school years. Northeast elected not to renew his teaching contract for the 2003-2004 school year because of four incidents in which Halfhill made physical contact with students when disciplining them. Halfhill sued, alleging that Northeast violated his procedural due process rights, in violation of 42 U.S.C. § 1983, and breached his employment contract, in violation of state law. The district court granted Northeast’s motion for summary judgment and denied Halfhill’s cross-motion for summary judgment. Halfhill appeals both rulings. For the following reasons, we affirm.
Now for the two other interesting decisions, which have the potential for Indiana application.

In Pruitt v. Mote, Chief Judge Easterbrook writes:

A jury found for all defendants in this suit under 42 U.S.C. §1983. Benjamin Pruitt, the plaintiff, does not contest the accuracy of the instructions or any of the district judge’s rulings admitting or excluding evidence. What he does contend is that the judge should have recruited a lawyer for him. See 28 U.S.C. §1915(e)(1). Judges do not “appoint” counsel for indigent parties in civil litigation. See Mallard v. United States District Court, 490 U.S. 296 (1989). Still, many members of the bar are willing to take cases that federal judges identify as worthy of legal assistance pro bono publico. Because §1915(e)(1) does not give anyone an entitlement to such representation, however, or even to the benefit of having a judge play recruiting officer, we have held that a district judge’s decision to allow private lawyers to decide whether to take any given case is subject to deferential review. [cites omitted]. Pruitt insists that the district judge abused his discretion in declining to recruit a lawyer for him.

The rejection of a per se rule “if trial, then counsel” [by the SCOTUS] in Middendorf and Argersinger and Lassiter means that it would be imprudent for this circuit to create such a rule under §1915(e)(1), which does not prescribe how district judges exercise their discretion.

[Judge Posner, in a dissent starting on p. 8 and continuing through p. 15, writes:] I am suggesting only that a judge who has ordered a jury trial should request a lawyer for a prisoner who plainly lacks the educational or vocational background that would enable him to conduct such a trial with minimum competence. To insist that someone with a sixth-grade education, and nothing to suggest forensic competence beyond what so modest an educational attainment implies, conduct a jury trial without a lawyer makes a travesty of the Seventh Amendment.

The cases that reject a right to counsel in civil cases, such as Lassiter v. Department of Social Services, 452 U.S. 18 (1981), are inapposite. (Nor can those cases be read as holding that every civil litigant is capable of conducting a trial without the assistance of counsel. That would be absurd, as well as inconsistent with section 1915(e)(1).) Pruitt claims no such right. He is not asking the government to pay for a lawyer for him; he is merely asking the district judge to help him find a volunteer.

In Walsh v. Heilmann and Village of Oak Lawn, Illinois, a 5-page opinion, Chief Judge Easterbrook writes:
After being elected Mayor of Oak Lawn, Illinois, in 2005, David Heilmann appointed a new administrative hearing officer for the Village. The hearing officer’s post is equivalent to what other states would call a city judge or justice of the peace: the hearing officer adjudicates disputes under the municipal code. Michael Walsh, who held the post between 2000 and 2005, contends in this suit under 42 U.S.C. §1983 that Heilmann replaced him because Walsh had backed the loser in the election, and Heilmann wanted to put his own supporters in plum positions. According to Walsh, this violated the first amendment, as applied to political patronage in Elrod v. Burns, 427 U.S. 347 (1976), and its successors. But the district court dismissed the complaint after concluding that “administrative hearing officer” is the sort of position for which politics is a permissible consideration. * * *

Should the Village go hard or easy on homeowners who don’t trim their hedges, mow their lawns, or rake their leaves in the fall? What about people who refuse to shovel their walks when snow falls? Or who paint their houses puce? Or fail to end a nonconforming use when a zoning variance lapses? What should be done about people who leave rusting hulks in their driveways, put neon signs in residential windows, or keep 500 cats? The Mayor and Police Chief won’t decide these matters; the administrative hearing officer will, by choosing levels of sanctions. Yet local political careers may turn on the answers; village mayors who can’t keep neighborhoods looking neat and tidy will not last long in office. (Even a Mayor of Chicago once discovered that too much snow is fatal to a political career, and elsewhere in the Midwest the success of the fall leaf-removal campaign is the standard by which the people evaluate their mayors.* * *

This is one reason why Andrew Jackson campaigned for making judicial posts elective and why most states to this day allow the voters a say in who holds judicial office. If the “hearing officer” could be relabeled a “judge” and made the subject of election, the first amendment does not block an elected official from appointing someone who shares his view about enforcement priorities. Just as crackdowns on drunk driving require the cooperation of the state judiciary, crackdowns on unkempt lawns and free-roaming dogs may require the cooperation of an administrative hearing officer. Neither the judge nor the hearing officer operates in a zone where decisions are mechanical. That’s why we held in Kurowski v. Krajewski, 848 F.2d 767, 770 (7th Cir. 1988), that politics is a permissible consideration for judicial positions (even those held for just a short time); the same is true of hearing officers who possess discretion over which laws receive how much enforcement. * * *

If the people are to choose policy at the polls, the representatives they elect must be able to make enough changes in the bureaucracy to put the winning side’s program into effect rather than be frustrated by a permanent officialdom with its own ideas about governance. Walsh’s sponsors may return to office some day, and then it is they who will see the wisdom of allowing change in the positions where discretion is reposed.

Posted by Marcia Oddi on December 28, 2006 01:02 PM
Posted to Ind. (7th Cir.) Decisions