7th Circuit Affirms Government Employees Must Resign After Elected To Office

7th Circuit Court Affirms Government Employees Must Resign After Elected To Office

Scott Roberts for www.theindianalawyer.com

The 7th Circuit Court of Appeals upheld an Indiana law that prevents people employed by the government to also hold elected office in the same municipality they are employed in. The law was challenged by a host of individuals who both serve on city and town councils and work for the same town as police officers, office managers and firefighters.

Led by Matthew Claussen, the plaintiffs claimed the law violated their First Amendment rights as well as their rights under the Equal Protection Clause of the 14th Amendment. Passed in 2012, Indiana Code 3-5-9-5 states” an individual is considered to have resigned as a government employee when the individual assumes an elected office of the unit that employs the individual.”

The plaintiffs sued the state of Indiana and the Indiana State Board of Accounts in the Northern District of Indiana, and the state field a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The defendants amended their complaint before the ruling and substituted Indiana Gov. Mike Pence as defendant. The District Court granted the motion to dismiss.

Circuit Court Judge Joel Flaum pointed out in his decision that the Indiana law falls within the bounds of settled U.S. Supreme Court precedent and noted that time and again the Supreme Court has upheld the constitutionality of “resign-to-run” laws. While Indiana’s law does not force a candidate to resign if they want to run for elected office in the same municipality they are employed in, it does make them resign if they are elected.

Plaintiffs argued the right to hold office is derived from the right to vote and is a fundamental right, and the law burdens voters by limiting the field of candidates from which they may choose. However, the 7th Circuit said the right to assume or hold office once elected is not a fundamental right and said “there is ‘no palpable distinction’ between a prohibition on running for office and a prohibition on holding office,” citing Krisher v. Sharpe 763 F. Supp. 1313, 1319 (E.D. Pa 1991).

The law must balance an individual’s First Amendment rights with public interest, Flaum said, and in this case the public interest outweighs the First Amendment rights. Flaum wrote, “Indiana has a genuine and compelling interest in avoiding corruption and self?dealing and the appearance of such things,” and allowing civil servants to serve on a legislative body where they can set their own salary “provides an opportunity for self-dealing and gives the appearance of possible corruption.” There may also be laws that come up for vote that an elected official might have a particular interest in.

Plaintiffs’ 14th Amendment claims also fail because the law passes a rational basis analysis test. They claimed government contractors and civil servants derive a financial benefit from the government employing them, but only the civil servants are subject to the law. However, Indiana subjects contractors to extensive disclosure requirements and the state does not have to address all manifestations of corruption at once.

The case is Matthew D. Claussen, et al. v. Michael R. Pence, Governor of the State of Indiana, et al., 16-1003.