Expulsion From FOP Not A Federal Case

Shawn Hallinan and Wayne Harej are longtime City of Chicago police officers and were members in good standing of the City’s police union, Lodge 7 of the Fraternal Order of Police. Hallinan and Harej were opposed to the policies of Lodge 7’s president, Mark Donahue. During the March 2005 election cycle, Hallinan and Harej formed an opposition slate of 20 candidates to oppose Donahue and the incumbent officers.

During the course of the campaign, Hallinan and Harej alleged that Donahue had under-reported his salary on a report filed with the Attorney General. The under-reporting issue became a major one in the campaign, and Hallinan and Harej discussed the error among Union members and publicly, including with the media.

Soon after the March 25 election, Lodge 7 filed disciplinary charges against Hallinan and Harej. After hearings before a Lodge 7 panel, the executive board of Lodge 7 expelled Hallinan and Harej from membership of Lodge 7.

Hallinan and Harej filed a federal court lawsuit against both the City and Lodge 7, alleging a variety of claims. A federal court of appeals recently dismissed the lawsuit, finding that Hallinan and Harej had not alleged an adequate violation of federal law.

The core of Hallinan’s and Harej’s claim was that the City was in some way liable for Lodge 7’s actions, thus creating the necessary “state action” to invoke the federal Civil Rights Act. The Court began by laying out the legal landscape for the analysis for such a claim: “The plaintiffs in this case allege constitutional violations redressable through Section 1983 of the Civil Rights Act. The First and Fourteenth Amendments to the Constitution protect citizens from conduct by the government, but not from conduct by private actors, no matter how egregious that conduct might be. Unions are not state actors; they are private actors. Consequently, the outcome of this case depends on whether the conduct of the Union can be characterized as state or purely private action.”

Hallinan and Harej contended that the clause in the collective bargaining agreement which mandated either full Union membership or fair share status created the necessary state action to implicate the Constitution. The Court disagreed. The Court ruled that “the plaintiffs are certainly correct that when a government employer forces its employees to join a union it is imposing on an associational right. The plaintiffs argue that this is the mirror image of such a forced association case – a ‘reverse fair share case’ as they put it. But the reverse of an employer forcing an employee to join a union is the case where the employer prohibits its employees from associating with a union. Clearly this too would constitute a violation of First Amendment associational rights, but it is not what happened here. Here, it was the Union rather than the employer that barred the plaintiffs from membership. And Union actions taken pursuant to the organization’s own internal governing rules and regulations are not state actions.”

Hallinan v. Fraternal Order of Police, Lodge 7, 570 F.3. 811 (7th Cir. 2009).

This article appears in the January 2010 issue