In a dispute between the mayor of East Chicago and the local firefighters union that opposes him, the 7th Circuit Court of Appeals has ruled for the firefighters, agreeing with a lower court that the city violated the firefighters’ First Amendment rights when it changed their work schedules in retaliation for lobbying activity. But one appellate judge issued a strong warning against judges invading the province of elected officials.
The dispute between the city of East Chicago and the local firefighters union began in 2010, when Anthony Copeland was elected mayor. Copeland began implementing cost-saving measures, including freezing local firefighters’ salaries and benefits.
Thus, when Copeland ran for reelection in 2019, the International Association of Fire Fighters, Local 365, and its members endorsed Copeland’s mayoral opponent and other candidates for city positions who opposed Copeland’s policies. The result was a mixed bag, with Copeland winning reelection but six firefighter-endorsed candidates also taking office.
Later in 2019, union president David Mata and the East Chicago Common Council drafted an ordinance to restore some of the benefits that Copeland froze in 2010. The council ultimately passed the ordinance, but Copeland vetoed the ordinance and the council could not override the veto.
Sometime later, Copeland directed then-fire chief Anthony Serna to develop a new schedule for the firefighters. The fire department was on a 24/48 schedule at the time, meaning they were on duty for 24 hours, then off the next 48 hours. Serna suggested a switch to either an 8/24 or 12/36 schedule, and Copeland opted for the former.
According to the 7th Circuit, “No other fire department in the country has adopted the 8/24 schedule. Unlike the 24/48 schedule, where the firefighters are on-duty the same hours every day that they work, the 8/24 schedule assigns the firefighters to different shifts every day.”
“This rotating schedule wreaked havoc on the personal lives and wellbeing of the firefighters, making it difficult — if not impossible — for the firefighters to manager their children’s regular schedules and establish consistent sleep schedules,” Judge Amy St. Eve wrote. “As a result, the firefighters experienced weight gain, lack of sleep, irritability, and trouble concentrating.”
Serna and Mata met to discuss the schedule change, with Mata secretly wearing a wire. He recorded their conversation, during which Serna said “all those moves are a reaction to the original ordinance,” referring to the ordinance to unfreeze salaries and benefits. Serna also likened the situation to a card game and said, “You can call it retaliation.”
The union then rejected a memorandum that would end the proposed change to the 8/24 schedule in exchange for the union giving up its rights to lobby the council. The next day, Serna issued a memo implementing the 8/24 schedule, with Copeland posting on Facebook that the union had left city officials with “no choice.”
In a repeat of the salary dispute, the common council passed an ordinance reinstating the 24/48 schedule, but Copeland vetoed it. This time, however, the council was able to override the veto.
Copeland responded with a complaint in Lake Superior Court, which ultimately ruled that the ordinance violated the mayor’s executive power and, thus, struck down the ordinance, meaning the 8/24 schedule remained in place.
The firefighters then took the matter to federal court, arguing the implementation of the new schedule was retaliation for the exercise of their First Amendments rights. They moved for a preliminary injunction, which the Indiana Northern District Court granted, ordering the city to reinstate the 24/48 schedule.
In a Wednesday decision, the 7th Circuit affirmed that decision in full.
“The appellants challenge the court’s conclusion that the Fire Fighters’ speech was a motivating factor in the schedule change,” St. Eve wrote. “In doing so, they take issue with three of the district court’s factual findings: (1) its finding that Serna told Mata … that the 8/24 work schedule was implemented as retaliation for the Fire Fighters’ political activity; (2) its finding that Copeland implemented the 8/24 work schedule in response to the Fire Fighters’ refusal to sign the memorandum of understanding; and (3) its finding that there was no evidence of any cost-savings due to the implementation of the 8/24 schedule.
“We disagree on all fronts,” the judge continued. “… There is sufficient evidence in the record, from the parties’ filings and the two-day hearing, to support the district court’s findings.”
That evidence, St. Eve wrote, included Serna’s comments to Mata considered as a whole; the implementation of the 8/24 schedule one day after the union declined to give up its lobbying rights; and the defendants’ “inability” to produce evidence proving the cost-savings argument.
“Before moving to the appellants’ next argument, we pause to emphasize one thing: that is, what makes the Fire Fighters’ claim likely to succeed on the merits here is unrelated to the fact that the defendants rejected the Fire Fighters’ lobbying campaign,” the judge added. “An elected official who disagrees with a citizen or organization concerning the proper course of action is well within his rights to act against that citizen’s or organization’s wishes.
“Accordingly, if the defendants had adopted the 8/24 policy for cost-cutting reasons as they claim, such a decision would have been entirely proper,” she continued. “But the fact that the defendants could have adopted the 8/24 policy in some circumstance does not mean that they were permitted to do so in this circumstance.”
Turning next to the question of harm, the 7th Circuit agreed with the district court that the 8/24 schedule deterred at least “some” political activity and also created physical and psychological harm — injuries the appellate court described as “serious” and unable to be remedied via money damages.
“On the other side of the scale is the speculative financial benefit of the 8/24 schedule and the undefined harm to the statutory authority of Copeland and Serna,” St. Eve concluded. “There is little, if any, persuasive evidence supporting these harms … .”
In a concurrence, Judge Frank Easterbrook addressed the case’s political undercurrent and its implications for democracy.
“Does political payback violate the Constitution? The firefighters union, which waged and lost a political battle, says that the answer is yes if defeat can be called retaliation for political speech,” Easterbrook wrote. “By that standard, many political decisions are unconstitutional, and the judiciary will decide which policies promote the public interest.
“The judge in this suit found that the Mayor’s decision made the public worse off, leading to an injunction restoring the former policy,” he continued. “It is hard to imagine a more direct impingement on democratic governance.”
The judge likened the situation in East Chicago to former President Donald Trump overturning policies implemented by his predecessor, or President Joe Biden now doing the same to Trump.
“Must a federal court determine, as a matter of fact (after receiving evidence), whether the political winner’s policies produce net public benefits, or were expected to do so? The canonical question is whether any rational basis can be imagined to support a policy, not whether the policy is beneficial in fact,” Easterbrook wrote.
But the city did not raise that argument in the instant case, Easterbrook wrote, so he concurred with the court’s resolution of the arguments that were actually presented.
“But no one should assume from this decision that we have authorized district judges to review other public policies to ascertain whether they do more good than harm — or whether the persons who adopted the policies expected them to have net benefits,” he concluded. “Those are political questions for political actors rather than for judges who never need to face the voters.”