                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-3085
SAMUEL RILEY,
                                                    Plaintiff-Appellee,
                                  v.

ROD R. BLAGOJEVICH et al.,
                                             Defendants-Appellants.

No. 04-3436
THOMAS SNYDER,
                                                  Plaintiff-Appellant,
                                  v.

ROD R. BLAGOJEVICH et al.,
                                               Defendants-Appellees.
                          ____________
            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              Nos. 04 C 1296, 04 C 1291—Amy J. St. Eve,
                       Milton I. Shadur, Judges.
                          ____________
   ARGUED SEPTEMBER 7, 2005—DECIDED SEPTEMBER 23, 2005
                          ____________

  Before BAUER, POSNER, and EVANS, Circuit Judges.
  POSNER, Circuit Judge. We have consolidated for argument
and decision two essentially identical cases, though decided
2                                        Nos. 04-3085, 04-3436

differently by the district judges. In both, assistant wardens
of Illinois state prisons, fired by the governor of the state
because they are not of his political party, contend that they
are not policymaking officials or confidential employees and
therefore that for the governor to have fired them on the
basis of their political affiliation violated their right of free
speech. They seek compensatory and punitive damages. In
the case of Riley, who was assistant warden for operations
at a prison that has some 700 inmates, Judge St. Eve denied
the defendants’ motion to dismiss, which asserted qualified
immunity (and so the denial, though interlocutory, was an
appealable order), and they appeal. In the case of Snyder,
who before he was fired was the assistant warden for
programs at a somewhat smaller prison, Judge Shadur
granted summary judgment for the defendants, and Snyder
appeals.
   The Supreme Court has held in the name of freedom of
speech that a public official cannot be fired on the basis of
his political affiliation unless the nature of his job makes
political loyalty a valid qualification; this could be either
because the job involves the making of policy and thus the
exercise of political judgment or the provision of political
advice to the elected superior, or because it is a job (such as
speechwriting) that gives the holder access to his political
superiors’ confidential, politically sensitive thoughts. Elrod
v. Burns, 427 U.S. 347, 367-68 (1976); Branti v. Finkel, 445 U.S.
507, 518 (1980). Identifying those jobs is no mean feat.
Almost all jobs in government above the lowest levels
require the holder of the job to exercise at least a modicum
of discretion; and discretion exercised by a subordinate,
invisible to the public, who is a political enemy of the
elected officials who are blamed when things go wrong
can undermine the officials’ programs (often just by passive
resistance) and by doing so thwart democratic preference.
       No. 04-3085, 04-3436                                                                    3

         Above the lowest levels of the civil service the question is
       not discretion or no discretion but less or more, and in such
       cases drawing a line is inescapably arbitrary, as the follow-
       ing summary of our previous cases suggests:




Political Affiliation Held to Be Permissible       Political Affiliation Not Held to Be Per-
                Qualification                               missible Qualification
 Position            Case        Procedural          Position            Case       Proce-
                                   Posture                                           dural
                                                                                    Posture
General In-     Heck v. City      Summary          Prison War-      Kiddy-Brown    12(c)
spector, City   of Freeport,      Judgment         den              v.
Health Dep’t    985 F.2d 305      (“SJ”)                            Blagojevich,
                (7th Cir.                                           408 F.3d 346
                1993)                                               (7th Cir.
                                                                    2005)
                                                                    (ruling not
                                                                    on merits)
Deputy          Upton v.          SJ; 12(c), re-   Deputy           Ruffino v.     12(b)(6)
Sheriff         Thompson,         spectively       Sheriff          Sheahan, 218
                930 F.2d                                            F.3d 697, 700
                1209 (7th                                           (7th Cir.
                Cir. 1991);                                         2000)
                Dimmig v.                                           (dictum)
                Wahl, 983
                F.2d 86 (7th
                Cir. 1993)
Subdistrict     Selch v. Letts,   Judgment as      Human Re-        Milazzo v.      12(b)(6)
Superinten-     5 F.3d 1040       a Matter of      sources Ad-      O’Connell,
dent, State     (7th Cir.         Law              ministrator      151 F.3d 587
Dep’t of        1993)             (“JMOL”)                          (7th Cir.
Highways                                                            1998) (per
                                                                    curiam)
Deputy          Kline v.          SJ               Chief Dep-       Kolman v.       12(b)(6)
County Au-      Hughes, 131                        uty, County      Sheahan, 31
ditor           F.3d 708 (7th                      Sheriff’s        F.3d 429 (7th
                Cir. 1997)                         Electrical       Cir. 1994)
                                                   Monitoring
                                                   Unit
State Deputy    Americanos v.     12(b)(6)         Paralegal (in    Hernandez v.    12(b)(6)
Attorney        Carter, 74                         state’s attor-   O’Malley, 98
General         F.3d 138 (7th                      ney’s office)    F.3d 293 (7th
                Cir. 1996)                                          Cir. 1996)
       4                                                        Nos. 04-3085, 04-3436

 Political Affiliation Held to Be Permissible   Political Affiliation Not Held to Be Per-
                 Qualification                            missible Qualification
Interim Ex-       Garcia v.      SJ             Special In-      Carlson v.      SJ
ecutive Di-       Kankakee                      vestigator       Gorecki, 374
rector,           County                        (in state’s      F.3d 461 (7th
County            Housing Au-                   attorney’s       Cir. 2004)
Housing           thority, 279                  office)
Authority         F.3d 532 (7th
                  Cir. 2002)
Board of          Pleva v.       12(b)(6)       County Cor-       Flenner v.      12(c)
Zoning Ap-        Norquist, 195                 rectional         Sheahan, 107
peals Mem-        F.3d 905 (7th                 Officer           F.3d 459 (7th
ber               Cir. 1999)                                      Cir. 1997)
Regional          Ryan v. Ill.   JMOL           Dispatcher        Zorzi v.        SJ
Administra-       Dep’t of Chil-                (in sheriff’s     County of
tor and Asst. dren & Fam-                       office)           Putnam, 30
Regional          ily Services,                                   F.3d 885 (7th
Administra-       185 F.3d 751                                    Cir. 1994)
tor, State        (7th Cir.
Dep’t of          1999)
Children &
Family Ser-
vices
Chief ALJ         Thompson v.    12(b)(6)       City Court        Mitchell v.     SJ
                  Ill. Dep’t of                 Coordinator       Randolph,
                  Professional                                    215 F.3d 753
                  Regulation,                                     (7th Cir.
                  300 F.3d 750                                    2000)
                  (7th Cir.
                  2002)




         In general, employees who have merely ministerial
       duties—who really have very little discretion—and employ-
       ees whose discretion is channeled by professional rather
       than political norms (a surgeon often exercises judgment,
       but it is professional rather than political judgment), are not
       within the exception for policymakers. But the line between
       professional and policy judgment is often blurred; for
       example, is the physician who runs a county hospital
       making a professional judgment or a policy judgment if he
       decides to authorize the hospital’s physicians to assist
       suicides, prescribe “medical marijuana,” or perform abor-
No. 04-3085, 04-3436                                          5

tions? And an administrator will often exercise both profes-
sional and broader policy responsibilities; this further
complicates classification.
  The uncertainty in the case law demonstrated in our
table (similar tables could be constructed for the other
federal courts of appeals), although somewhat exaggerated
because the same title can denote quite different levels
of responsibility—a deputy sheriff could be a policeman
in one sheriff’s department and the second in command
in another—creates a dilemma for elected officials such as
the Governor of Illinois. How is he to know, when he takes
office, whom he can fire and replace with loyalists, and
whom not? Must he go behind the job descriptions and
conduct an investigation into the actual duties performed by
all the state employees who might be deemed policymaking
or confidential employees, under pain of having to pay
damages if a jury disagrees with the results of his inquiry?
To what extent can he rely on the doctrine of qualified
immunity to shield him from the consequences of such a
disagreement? “Public officials need not predict, at their
financial peril, how constitutional uncertainties will be
resolved.” Hosty v. Carter, 412 F.3d 731, 739 (7th Cir. 2005)
(en banc).
  It seems to us that if no basis is presented for thinking
the official job descriptions systemically unreliable in a
sense to be explained, the elected officials can rely on them,
even if a plaintiff is prepared to testify (self-servingly) that
the job description doesn’t actually describe what he does,
thus precipitating a factual inquiry likely to be protracted
and inconclusive. “Our focus is on the ‘inherent powers’
of the office, not what any individual officeholder actu-
ally does.” Meeks v. Grimes, 779 F.2d 417, 419 n. 1 (7th Cir.
1985); see also Americanos v. Carter, 74 F.3d 138, 141 (7th Cir.
6                                      Nos. 04-3085, 04-3436

1996); Tomczak v. City of Chicago, 765 F.2d 633, 640-41 (7th
Cir. 1985); Roldan-Plumey v. Cerezo-Suarez, 115 F.3d 58, 62
(1st Cir. 1997). (We take “inherent” to mean simply within
the scope of the description.) “[S]uch inquiry [into whether
the job is one for which political affiliation is a permissible
criterion because it involves either policymaking or confi-
dentiality] presents a question of law informed solely by the
job description and the powers of office.” Danahy v.
Buscaglia, 134 F.3d 1185, 1191 (2d Cir. 1998). “The idea that
job performance (rather than job description) should control
Elrod-Branti analysis has been consistently rejected by this
court and others.” Gordon v. County of Rockland, 110 F.3d
886, 888 (2d Cir. 1997), citing (besides our decision in Meeks)
Regan v. Boogertman, 984 F.2d 577, 580 (2d Cir. 1993), and
Williams v. City of River Rouge, 909 F.2d 151, 154 (6th Cir.
1990). Otherwise the courts—and the elected
officials—would have “the burden of having to re-examine
a certain position every time a new administration changes
the mix of responsibilities bestowed upon the officeholder.”
Tomczak v. City of Chicago, supra, 765 F.2d at 641; see also De
Abadia v. Izquierdo Mora, 792 F.2d 1187, 1192-93 (1st Cir.
1986).
  These cases also refer to the importance of providing
guidance to litigants. Incoming political leaders should be
enabled to discover without protracted inquiry which jobs
they can fill. Furthermore, “a new administration should not
be overly hamstrung in filling key positions with loyal
employees simply because of the way the prior administra-
tion operated.” Hadfield v. McDonough, 407 F.3d 11, 18 (1st
Cir. 2005). Nor would it be sensible to give employees
who are assigned policy duties an incentive to try to protect
their jobs simply by not performing those duties.
    For the job description to be the pivot on which the case
No. 04-3085, 04-3436                                         7

turns, inquiry must focus on how the description was
created; how it is updated and thus kept realistic rather than
being allowed to drift far from the actual duties of
the position; and, in short, on how reliable, how authorita-
tive, the description is. The descriptions of the assistant-
warden positions in the Illinois state prison system score
well on this test. Not that each is an exact description of
what every assistant warden for operations or for programs
does, for there are dozens of assistant wardens distributed
across the state’s prisons and their activities must differ in
accordance with the conditions of their prison, the leader-
ship style of the warden, and their own ideas and initiative.
But each of the two descriptions is a reliable description
rather than something that has been manipulated by
officials seeking to expand their power to appoint loyalists
beyond the lawful bounds.
  The description of Snyder’s job (assistant warden for
programs) has not been changed materially since 1989,
which is long before Blagojevich became governor, and
while only the current description of Riley’s job is in the
record, we are given no reason to think that it has changed
over the years either. Job descriptions are made and up-
dated by the state’s Department for Central Management
Services and reviewed by the Civil Service Commission, 20
ILCS 415/8a(1), 415/10(4); 80 Ill. Admin. Code § 301.20, and
though those two agencies are part of the executive branch
we are again given no suggestion that Blagojevich or any
other political official has been tinkering with the assistant-
warden job descriptions. The descriptions are “public
records and shall be open to public inspection.” 20 ILCS
415/14. Any job holder who thinks the official description
of his job inaccurate can challenge it and, if he succeeds in
showing that it is inaccurate, get it changed. 20 ILCS
8                                       Nos. 04-3085, 04-3436

415/8a(1); 80 Ill. Admin. Code § 301.20. It might seem that
only a job holder who thought that the description under-
stated his duties would seek a change, in order to buck for
a raise. That is not correct. A job holder does not want his
job description to list duties that he does not perform,
because the discrepancy will make it easy for his superiors
to fire him for inadequate performance.
  With these checks and balances designed to make the
official job description accurate, the state is entitled to rely
on it to reveal the scope of the job holder’s duties and enable
the court to determine whether the duties bring the job into
the circle within which elected officials are entitled to
demand political loyalty. So let us turn to the descriptions.
The description of the job of assistant warden for operations
(Riley’s job) is as follows:
      Subject to administrative approval of the
    Warden, . . . serves as Assistant Warden of Operations:
    formulates, organizes, and directs the overall Opera-
    tions Program for Tamms Correctional Center; super-
    vises staff; maintains and enforces disciplinary, safety,
    security and custodial measures; administratively
    responsible and accountable for execution of policies
    and procedures in management of the institution
    while serving as Duty Warden.
      1. As Assistant Warden, assists in the development,
    establishment and implementation of rules, regulations,
    directives, policies and procedures of the institution to
    ensure proper operation of the daily functions; adminis-
    tratively responsible and accountable for execution of
    policies and procedures in management of the institu-
    tion while serving as Duty Warden. (35%)
      2. Plans, organizes and directs the overall Opera-
No. 04-3085, 04-3436                                        9

    tions function and their managers, including secu-
    rity, physical plant operations, dietary services, in-
    mate discipline, work camp and other miscellaneous
    logistical support services; coordinate[s] all inmate
    programs related to these functions; participates in the
    budget process by gathering data from department
    heads regarding current and anticipated programs
    and projects; makes recommendations to manage-
    ment outlining budgetary needs. (25%)
       3. Supervises staff; assigns work; approves time off;
    provides guidance and training; gives oral reprimands
    and effectively recommends grievance resolutions;
    completes and signs performance evaluations; estab-
    lishes annual goals and objectives; counsels employees
    on problems with productivity and quality of work;
    determines staffing needs to achieve program goals and
    objectives; reviews activity reports. (15%)
      4. Serves as Chairman of the Safety and Sanitation
    Committee; conducts routine and unscheduled
    safety, health, sanitation and security inspection tours
    throughout the institution; makes recommendations
    to the Warden as to any changes, problems or improve-
    ments. (10%).
      5. Serves as Chairman of the Adjustment Commit-
    tee; makes decisions on disciplinary problems involving
    infractions of the institution rules by residents; hears
    and resolves problems; enforces discipline. (10%).
      6. Performs other duties as required or assigned
    which are reasonably within the scope of the duties
    enumerated above. (5 %).
And here is the description of the job of assistant warden for
10                                      Nos. 04-3085, 04-3436

programs (Snyder’s job):
       Under administrative direction of the Warden . . . of
     Taylorville Correctional Center, plans, organizes and
     directs the entire Program Services for the rehabilitation
     and resocialization of residents at the Taylorville
     Correctional Center; formulates operation procedures
     and rehabilitation programs for areas of assignments;
     interprets and carries out policies of the Department of
     Corrections and institutional superintendent; is admin-
     istratively responsible and accountable for execution of
     policies and procedures and management of the institu-
     tion while serving as Duty Warden.
       1. Plans, organizes and assumes direct responsibility
     over functions of academic and vocational, chaplaincy,
     clinical services, leisure time activities, medical and
     dental services; coordinates all residents programs
     relating to these functions. Monitors Pre-Start Program
     and Lifestyle Redirection Program. (30%)
       2. Assists the Warden in carrying out policies, rules
     and regulations of the institution ensuring orderly
     operation of daily functions of the institution, adminis-
     tratively responsible and accountable for execution of
     policies and procedures and management of the institu-
     tion while serving as Duty Warden. (25%)
       3. [Identical to paragraph 3 of job description of
     assistant warden for operations]. (20%)
       4. Speaks to lay and professional groups regarding
     various institutional programs; answers correspondence
     from the general public. (10%).
       5. Conducts daily routine inspection tours of the
     institution including the inspection of resident’s living
     quarters; instructs and counsels residents by holding
No. 04-3085, 04-3436                                       11

    regular interviews by request in order to assist them
    with problems and confers with resident’s relatives.
    (10%).
      6. [Identical to paragraph 6 of job description of
    assistant warden for operations].
    Note to begin with the references to “Duty Warden.”
The two assistant wardens are the top officials in an Illinois
prison below the warden himself; there is no deputy
warden. That means that when the warden is sick, on
vacation, or simply off duty, one of the assistant wardens is
in charge, i.e., is the “Duty Warden.” Since a prison is a 24-
hour-a-day, seven-day-a-week operation, the assis-
tant wardens must be in charge much of the time, since
the warden can’t work anywhere near a 168-hour week.
  Of course the duty warden will avoid making major,
irrevocable policy decisions, but he will necessarily be
exercising quite broad discretionary authority when he is
standing in for the warden. Even when the warden is on
duty the assistant warden is required to perform a variety
of important discretionary functions that are particularly
sensitive in a prison setting. Granted, paragraphs 3, 4, and
6 of the operations assistant’s description, and paragraphs
3 through 6 of the programs assistant’s description, could
well be thought merely professional or ministerial, rather
than judgmental, policy-oriented, and politically sensitive.
But the remaining portions of both descriptions enumerate
a variety of tasks that are judgmental, policy-oriented,
and politically sensitive.
   The operation of the state’s prisons costs more than a
billion dollars a year and is one of the major functions of
Illinois state government, and, as the descriptions make
clear, not all the policy judgments required for their opera-
12                                     Nos. 04-3085, 04-3436

tion can be made by the top officials in the Department of
Corrections. Many of those judgments have to be made at
the prison level, in recognition of differences in the size and
composition of the prison population, in the location of
prisons, and in the design and quality of physical plant. The
state could if it wanted deprive its wardens and assistant
wardens of all policy functions and run the state prison
system as if it were a single prison (with more than 40,000
inmates!) with the state’s Director of Corrections as the
warden and two deputies of his as the assistant wardens.
But it is apparent from the job descriptions that the state has
not done that.
   The plaintiffs rely heavily on Kiddy-Brown v. Blagojevich,
408 F.3d 346 (7th Cir. 2005). Among a number of issues in
that case was whether the job description of warden of an
Illinois state prison entitled the governor to treat the
warden’s job as a policymaking position. The court re-
jected the contention and remanded the case for further
factual development. The result may seem flatly inconsis-
tent with our analysis, especially since our plaintiffs are
only assistant wardens. But the appearance is deceptive.
There is no inconsistency, and we have neither cause
nor inclination to intimate any criticism of the decision,
which turned on a procedural point inapplicable to the
present case. The only evidence in Kiddy-Brown was the
plaintiff’s affidavit in which she stated—implausibly, but
that is neither here nor there—that she “had no autonomous
or discretionary authority.” Id. at 335. Since there was no
other evidence, the court ruled that the defendants were not
entitled to judgment so early in the litigation. They had, it
is true, appended to their answer to the complaint the
official description of the warden’s job, which indicated that
a warden indeed possesses discretionary authority. But the
court did not treat the description as evidence; for no
No. 04-3085, 04-3436                                           13

testimony, affidavit, statutory reference, stipulation, or other
ground for believing that the description was official,
reliable, and up to date had been presented. So far as
appeared, the description appended to the answer had been
drafted by Governor Blagojevich in person the day before
the answer was filed. Not that that was likely; but it was not
a possibility excluded by the evidence.
  The contrast with our cases is stark. Riley stipulated that
the description of the job of assistant warden for operations
that we have quoted is indeed the official description of his
job. Snyder did not so stipulate, but in an affidavit acknowl-
edged that the job description had come from the Depart-
ment of Central Management Services. In their briefs in this
court, Riley, notwithstanding his stipulation, and Snyder, in
identical language (they have the same lawyer), complain
that “the document [the job description] contains no
reference to any Illinois statute.” But a public document
doesn’t have to contain a statutory reference in order to be
official. Indeed, the reference itself could not attest to the
authenticity or reliability of the document but merely assist
the reader in tracing its provenance. Nor did Riley purport
to be withdrawing his stipulation.
   We know from the numerous cases cited earlier that the
job description, if reliable, is the correct basis for the court’s
determining whether political affiliation is a legitimate
requirement of the job. But because this principle was not
pressed on, or mentioned by, the court in Kiddy-Brown, the
court treated the job description appended to the defen-
dants’ answer as a document barren of evidentiary signifi-
cance, since no effort had been made to establish its authen-
ticity, let alone its reliability. The court decided Kiddy-Brown
as the case had been framed by the parties. The present case
was properly framed in accordance with the unchallenged
case law cited earlier.
14                                       Nos. 04-3085, 04-3436

  Neither those cases nor our decision today stand for the
proposition that every Elrod/Branti case can be resolved just
by reading the job description. The description might leave
the reader unclear whether the job confers any policy-
making or confidential discretion, and then additional
evidence would be necessary. Some job descriptions,
perhaps, will have been altered by the elected officials not to
reflect actual changes in the duties of a position but rather
to enable them to fill jobs that do not involve such duties
with their political favorites. Neither is a factor in the
present case. The descriptions ascribe significant
policymaking responsibilities to assistant wardens of Illinois
state prisons and we know from the cases that the fact that
particular incumbents may have been mice who forbore to
exercise any of those duties is irrelevant. There is no
indication that the job descriptions in the record are not
official (all the indications are to the contrary) or that
Governor Blagojevich or any other political official caused
them to be altered, as by leaning on the members of the
Civil Service Commission.
  We also do not mean to suggest that official job descrip-
tions are straitjackets that prevent elected officials from
altering the duties of their subordinates. State law may or
may not allow such an official to impose on a subordinate
duties not listed in the official job description. But as a
matter of federal constitutional law, if a public employee
in fact exercises policymaking or confidential duties he
can be fired on the basis of his political affiliation; he may
have remedies under state law but his federal constitutional
rights will not have been violated.
   The significance of the official job description in a case like
this is thus as a provisional safe harbor for elected officials.
If the official job description is objective, as shown by the
No. 04-3085, 04-3436                                        15

methods by which it is created, vetted, and updated to the
present, then the elected officials can rely on it in deciding
whom they can replace on political grounds.
   Riley and Snyder also claimed that their dismissal was
wrongful retaliation for their exercise of free speech and a
deprivation of property without due process of law. But the
first claim is merely a restatement of their claim that
political affiliation is a forbidden criterion for an assistant
warden’s job, and a due process claim identical to theirs was
correctly rejected in Kiddy-Brown.
  We therefore reverse No. 04-3085 and affirm No. 04-3436.

A true Copy:
        Teste:

                           _____________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit




                    USCA-02-C-0072—9-23-05
