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7th Circuit affirms government employees must resign after elected to office

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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.
 

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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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