Case Information
*2 Before F LAUM M ANION and H AMILTON Circuit Judges . H AMILTON Circuit Judge
. Plaintiffs John Dibble and Peter Akemann arbitrators for Illinois Workers’ Compen ‐ sation Commission. They lost their positions after Illinois legislature passed Public 97–18. The law signed June and took effect just three days later, ending terms all incumbent arbitrators effective July and providing Governor Illinois make new ap ‐ pointments. new law allowed incumbent arbitrators serve past July as holdovers until Governor made new appointments. By July both Dibble Akemann lost their positions.
Plaintiffs filed separate lawsuits raising same claims. They alleged shortening their six year terms as arbi ‐ trators under prior law, deprived them without law violation Fourteenth Amendment Constitution. Their suits named defendants then Governor Illinois Patrick Quinn all members Illinois Workers’ Compensa tion Commission, both individual official ca pacities. Both district courts entered judgments for defend ants. affirm both judgments. Plaintiffs’ claims injunc
tive relief moot, defendants are entitled quali fied immunity claims damages. Even if plausibly allege constitutional violation, ap plicable established circum and ‐ stances these cases, where statutory amendment elimi nated statute previously con ferred.
I. Factual Procedural Background
Plaintiff John Dibble was first appointed arbitrator in then reappointed to six year terms in 2002, 2008. His last appointment was set to expire in 2014. Plaintiff Peter Akemann first appointed then reappointed to six year terms 2006. His last ap pointment set expire 2012.
The Illinois Workers’ Compensation Act, ILCS 305/1 et seq. establishes power appoint arbitrators. When were last appointed, provided each arbitrator would be appointed for term six years, with possibility reappointment. ILCS 305/14, P.A. 94– (2005). During terms service, arbitrators were subject provisions Illinois Personnel Code, which meant they could removed their positions for cause. Id. ; see also ILCS 415/8b.18.
On June Governor Quinn signed Act 97– The replaced provision establishing six year terms arbitrators provision set up one time appointment procedure. Under new Act, terms all incumbent arbitrators would end just three days later, July regardless when their terms would ended old law. The incumbents continue exercise their duties until either were reappointed (all former arbitrators were permitted apply new ap pointments) successors named. new gave Governor Quinn power make new appointments, ‐ ‐ generally for three ‐ year terms. Plaintiffs allege that approx imately twenty of twenty ‐ nine incumbent arbitrators were reappointed their positions. Dibble was not among them. Akemann was reappointed but for transitional one ‐ year term ended July 2012. The new also provides its changes “prevail over any conflict Personnel Code,” effectively removing for cause protec tion arbitrators enjoyed. ILCS 305/14, P.A. (2011). Other changes made by 97–18 not pertinent these appeals.
Plaintiffs’ six year terms service were cut short Pub lic 97–18. Each filed two count complaint under U.S.C. § alleging he terminated without cause without notice opportunity heard in viola tion Fourteenth Amendment’s Due Process Clause. Plaintiffs also alleged were deprived liberty interest under Fourteenth Amendment when Governor Quinn issued press release announcing overhaul Commission. The district court in Dibble’s case dismissed both claims under Federal Rule Civil Procedure 12(b)(6). district court in Akemann’s case granted defendants summary judgment both claims Rule 56. Plaintiffs appeal dismissals their interest claims but dismissals their liberty claims.
Plaintiffs sued money damages equitable relief form reinstatement positions arbitrators. *5 5 14 2328 14 2746 Plaintiffs concede correctly appeal, however, their claims for reinstatement are now moot because six year terms serving 2011 have expired. See Medlock v. Trustees Indiana Univ. , F.3d 880, (7th Cir. 2012) (dismissing appeal as moot where plaintiff sought enjoin academic suspension term suspension had expired time appeal). We are left only plaintiffs’ claims damages. Because defendants are current former state officials sued their official acts, damages are available against them under § their individual capacities. Will v. Michigan Dep’t State Police , 58, (1989).
II. Analysis
A. Standard Review review de novo dismissals both Rule 12(b)(6) Rule E.g., Vinson v. Vermilion County , F.3d 924, (7th Cir. 2015) (motion dismiss); Mintz v. Caterpillar Inc. — F.3d —, WL 3529396, *5 (7th Cir. June 5, 2015) (summary judgment). issues here are pure questions law: whether constitutionally protected their six year terms arbitrators, see Cole Milwaukee Area Technical College Dist. F.3d (7th Cir. 2011); if so, whether process pro duced 97–18 satisfied federal re quirements, see Lobzun United States (7th 2005); if not, whether defendants entitled qualified immunity because estab lished actions violated constitutional rights, see Chasensky Walker 2014). Because result same despite differ ences between Rule 12(b)(6) Rule we based our 14 2328 14 2746 decision in both appeals plaintiffs’ complaints alone, ac cepting as true all factual allegations in the complaints (which are virtually identical) drawing from allega tions reasonable inferences favor. E.g., Lod holtz v. York Risk Services Group, Inc. , F.3d 635, (7th Cir. 2015). We can affirm any ground supported record so long issue was raised losing parties a fair opportunity contest issue district court. E.g., Locke v. Haessig , — —, WL 3528782, at *3 (7th June 5, 2015).
B. Qualified Immunity
“Qualified immunity shields government officials civil damages liability unless official violated statutory or constitutional right that was clearly established at time challenged conduct.” Reichle Howards , U.S. —, S. Ct. (2012). To decide whether government officials entitled qualified immunity, courts ask two questions: first, whether facts allegations, taken light most favorable plaintiffs, constitute violation statutory constitutional right, second, whether right clearly established at time alleged viola tion. E.g., Weinmann McClone 2015). We have discretion decide case second step “without resolving often more difficult question whether purported right exists at all.” Reichle S. Ct. at citing Pearson Callahan (2009). take approach here.
To “clearly established,” right must be defined so every reasonable official understood what he doing violated right. Reichle S. Ct. Although “clearly established” does require *7 7 14 2328 14 2746 case directly point, “existing precedent must have placed statutory or constitutional question beyond debate.” Ash croft v. al Kidd , 563 U.S. —, 131 S. Ct. 2074, 2083 (2011). The right allegedly violated must be established “not as a broad general proposition” a “particularized” sense so “contours” right are clear a reasonable official. Reichle , S. Ct. at 2094; see also City San Francisco v. Sheehan , U.S. —, S. Ct. 1765, 1776–77 (2015); Plumhoff v. Rickard , U.S. —, S. Ct. (2014).
C. Plaintiffs’ Due Process Claims 1. The Property Interest Fourteenth Amendment’s Due Process Clause does itself create any property interests. It protects property
interests “are created … defined existing rules or understandings stem an independent source such as state law.” Board Regents v. Roth , U.S. (1972). That independent source can include “a statute, regu lation, municipal ordinance, an express or implied con tract.” Covell Menkis F.3d (7th 2010).
“To have a protectable a benefit, such continued employment, plaintiff must have more than an ‘abstract need desire it’ more than ‘unilateral expectation it.’ Instead, plaintiff must ‘legitimate claim entitlement it.’” Cole Milwaukee Area Technical College Dist. 2011), quoting Roth In general, public employee has legiti mate claim entitlement continued employment “when employer’s discretion limited so em ployee cannot denied employment unless specific condi tions met.” Colburn Trustees Indiana Univ. & ‐ 581, 1992). Although we look to state for source of plaintiff’s alleged property interest, whether a particular state created interest rises to level of a “legiti ‐ mate claim of entitlement” is a question of federal law. Mem ‐ phis Light, Gas Water Division Craft U.S. (1978).
Plaintiffs had a constitutionally protected property inter est their positions arbitrators up until July when Public 97–18 took effect shorten their terms. Under prior version law, plaintiffs had legitimate expectation continued employment during their six year terms because they could be removed only cause during span. Cleveland Board Educ. Loudermill (1985) (civil service employees who could be dismissed cause had constitutionally protected continued employment). Plaintiffs discharged without cause before their six year terms ex pired. They did receive notice individual oppor tunity be heard ordinarily must be made available before deprivation property. Legislative Due Process
If state official had simply wanted remove plain tiffs their posts, federal consti tutional right prior notice meaningful opportunity heard before decision made. In case, though, alleged deprivation caused legisla ture’s enactment 97–18. issue merits whether legislation deprived proper ty interests without law. Framing question way leads us line cases dealing legislation *9 9 2746 that deprived people property interests granted by earlier legislation.
We begin Atkins v. Parker U.S. (1985). In At ‐ kins the Supreme Court considered a due process challenge an amendment to the Food Stamp Act. The amendment reduced or eliminated benefits that certain low income fami ‐ lies been receiving under the law. The Court noted that food stamps, like the welfare benefits at issue in Goldberg Kelly U.S. (1970), were type statutory entitle ‐ ment that could considered “property” Due Process Clause, rejected due process challenge. Atkins Court explained that plaintiffs chal
lenging “a legislatively mandated substantive change in scope entire program,” not “the procedural fairness individual eligibility determinations.” at Con gress has “plenary power define scope dura tion entitlement food stamp benefits, in crease, decrease, terminate those benefits based & its appraisal of the relative importance of the recipients’ needs the resources available fund the program.” Id. prior version the Food Stamp “did not include any right have the program continue indefinitely at the same level,” nor did “qualify the legislature’s power substitute different, less valuable entitlement at later date.” Id. Under these circumstances, “‘[A] welfare recipient is not deprived process when legislature adjusts benefit levels. … [T]he legislative determination provides is due.’” Id . 129–30, quoting Logan v. Zim merman Brush Co. U.S. (1982) (alterations in original).
Atkins reflects general rule legislature, having created statutory entitlement, is not precluded alter ing or even eliminating entitlement by later legislation. Were rule otherwise, “[s]tatutes would be ratchets, creat ing rights could never be retracted even modified without buying off groups upon which rights been conferred.” Pittman Chicago Board Educ. 1995); see also Wisconsin Michigan Ry. Co. Powers U.S. (1903) (“the legislature making promises, framing scheme public revenue public improvement”). People who be affected later legislation are left unprotected, however. They opportunity contest deter mination through processes representative govern ment. generally Bi Metallic Investment Co. State Board Equalization (1915) (“General statutes state power are passed affect person prop erty individuals, sometimes point ruin, without giving them chance be heard. Their rights protected way can complex society, *11 11 14 2328 14 2746 their power, immediate or remote, over those who make rule.”).
Courts often followed logic reject due pro cess challenges legislation has changed duration or conditions of civil service appointments. Rea v. Matteucci , 121 F.3d 483, 484–85 (9th Cir. 1997) (no due pro cess violation where statute reclassified employee from per manent non permanent status); McMurtray v. Holladay , 11 499, 504 (5th 1993) (no due process violation where statute provided personnel actions of state agency would exempt procedures of merit review system); Gattis v. Gravett , 806 778, 1986) (no violation where legislature amended civil service code eliminate cause protection certain personnel county sheriff departments); Grobsmith v. Kempiners , N.E.2d 973, (Ill. 1981) (“We find constitutional imped iment power General Assembly change duration term appointments or method fixing time when presently existing terms termi nate.”); Jordan v. Metropolitan Sanitary Dist. Greater Chicago , N.E.2d 297, (Ill. 1958) (“The legislature, having creat ed office public position, may alter its terms abolish entirely.”); Groves v. Board Educ. Chicago N.E.2d 403, (Ill. 1937) (same); Higgins Sweitzer N.E. (Ill. 1920) (same); People ex rel. Akin Loeffler N.E. (Ill. 1898) (same).
A good example Fumarolo Chicago Board Education N.E.2d (Ill. 1990). For many years principals Chicago public schools tenure. In Illinois legis lature eliminated tenure Chicago School Reform Act, Ill. Rev. Stat. ch. par. 34–1.01 et seq. new law replaced tenure model with a system of renewable four year contracts. A group principals challenged constitutionality law, arguing elimination tenure violated due process because each principal had a property interest “permanent” employment. Illinois Supreme Court agreed with
they had a property interest permanent employment found no due process violation: “Although contains procedures by which individual teachers are accorded hearing or opportunity protest termination ‘perma nent’ employment status, legislative process itself created procedural safeguards necessary provide plain tiffs due process.” Id. at 1307.
3. Plaintiffs’ Arguments for an Exception Plaintiffs Dibble Akemann acknowledge general rule legislative satisfies process re quirements when property interests created statute modified eliminated. They argue exception, though, when decision eliminating prop erty interest pretextual, designed harm single em ployee small group employees. In support this ex ception, they rely two cases, Misek City Chicago (7th 1986), Schulz Green County F.3d 2011). Neither case addressed situation like this one.
In Misek tenured city employees fired without hearing. Their derived Illinois Municipal Code Chicago ordinance, both which said could removed cause. Misek Unlike case, neither been changed legis *13 13 ‐ 14 ‐ 2746 lative action. Rather, the city fired the plaintiffs as part purported “reorganization” argued individual pre termination hearings were required because the firings occurred part wide scale reorganization. This princi ple, which Misek called the “reorganization exception,” id. , is based on idea hearing is unnecessary when dismissal is caused by economic administrative factors unrelated employee’s job performance. Under these circumstances, an individual hearing “a futile exercise” because termination decision does depend factors related individual employee. Rodriguez Sanchez Municipality Santa Isabel , F.3d (1st 2011).
Misek recognized reorganization exception but still reversed district court’s dismissal, explaining claim fell outside exception because al leged “the so called reorganization … purely pre textual effort replace plaintiffs others favored acting Executive Director agency.” Misek Relying portion Misek argue Public purported effect broad change workers’ compensation system actually pretext removing particular individuals. ‐ The crucial difference between Misek and this case is that Misek there was no at all. The statutes gave the Misek plaintiffs had not been mod ified by legislative action. Rather, the deprivation was caused by the non legislative decision the defendant agency. Cases recognizing the reorganization exception say this situation pre termination hearing is not neces sary if it be pointless. But those cases do not say legislative process, provided here Illinois legisla ture’s enactment Public 97–18, is insufficient pro vide process. In fact, Atkins and Logan make clear opposite is true. Atkins U.S. at 129–30; Logan at 432–33.
Plaintiffs also rely Schulz Green County which closer situation presented here but still fails estab lish constitutional right invoke. (Even if had, it could help these plaintiffs. Schulz was decided three weeks after was enacted and took ef fect.) In Schulz plaintiff been employed supervision control county court. county board supervisors passed resolution moving position court different county department. When county board made change, plaintiff kept her employment continued perform many her same job duties, she lost seniority wage benefits because she could longer considered supervisor. 951–52. Unlike Misek challenged action because plaintiff’s reassignment loss benefits caused county board action.
We affirmed summary judgment defendant coun ty, holding plaintiff entitled hearing. and explained that “welfare recipients have rights in benefits, but in sense that may have legit ‐ imate claims entitlement to whatever benefits legisla ‐ ture creates.” Id. at citing Atkins , U.S. Bowen Gilliard (1987) (no due process violation where Congress amended statute reduce federal aid to families with dependent children). This part Schulz which have been sufficient resolve plaintiff’s claim in case, reflects Atkins principle that legislative pro ‐ cess satisfies due requirements points dismis ‐ sal claims here.
But Schulz also included some broader language seized upon. Citing Misek without ad dressing distinction between legislative non legislative acts, we wrote:
A governmental reorganization … does not al ways avoid need process. When a purportedly legislative decision affects one person (or a small number people, in Misek ), it is possible effect reor ganization single person is object exercise rather than byproduct. In those cases, it possible ask whether reorgan ization pretextual, designed harm spe cific employee rather than in spite her indifference its effects her. Schulz (citation footnote omitted). Schulz did explain how court should undertake pretext inquiry case involving body. Nor did dis cuss qualification Misek court case authorizing inquiry into actual motives behind reorganization: “The cases relied upon the district court easily distinguishable. In each those cases the plain ‐ tiffs were questioning the motives behind actual reorganiza ‐ tions; here allege no reorganization took place.” Misek
Plaintiffs contend that the quoted language from Schulz establishes that Public Act 97–18 violated rights. Although the Act purported to be legislative act, say, was pretextual because it was designed to eliminate particular arbitrators on Commission. Recall that amendment applied to arbitrators Com mission did not single out specific individuals, but ap proximately twenty twenty nine arbitrators were re appointed after Public Act 97–18 enacted. Plaintiffs con tend that Governor Quinn used reorganiza tion subterfuge target nine individual arbitrators he disliked. They also observe amendment changed very little about conditions service arbitrators Commission. Terms were shortened six three years, there changes arbitrators’ salary, benefits, responsibilities, working conditions. Plaintiffs contend light relatively minor substantive changes, Public 97–18 should be considered “adjudica tive” rather than legislative, adjudicative actions require familiar procedural safeguards notice individual opportunity heard. must clarify action eliminating (a fixed term six years, subject remov
al cause) enactment Illinois legislature, Governor’s decision select new set appointees did include plaintiffs. When *17 17 ‐ ‐ Governor made his decision to reappoint some arbitra tors not others (in October 2011), plaintiffs had no right state to reappointed. Absent right, had being selected by Governor for posts arbitrators. Thus, can complain about legislature’s decision terminate their six ‐ year terms early, on July 1, 2011, before those terms were set expire.
Even if Schulz been decided before enactment of Public Act ‐ would not clearly established rights violated when legisla ture cut terms short passing Public 97–18. Any effort extend pretext inquiry Misek into realm of legislative decision making run into well settled proposition “[w]hether an act is legislative turns nature act, rather than on motive intent official performing it.” Bogan v. Scott Harris U.S. (1998); see also Tenney Brandhove U.S. (1951) (it is “not consonant our scheme government for court inquire into motives legislators”); Biblia Abierta Banks 1997) (“An inquiry into legislator’s motives his actions, regardless whether those reasons are proper improper, is ap propriate consideration court.”). While there rare exceptions, see, e.g., Wallace Jaffree (1985) (con sidering legislative purpose returning prayer public schools holding moment silence legislation violated First Amendment), any extension Schulz dictum motive legislative acts established law. act here plainly legislative. passed legislature following normal 2328 & 14 2746 process prescribed the Illinois Constitution. See Bagley v. Blagojevich F.3d (7th Cir. 2011) (“To determine whether an act is legislative in form, courts look at whether the defendants acted pursuant to constitutional or statutory procedures.”). law applied generally to sitting arbi trators, not just particular individuals, applied prospectively. L C S, Inc. Warren County Area Plan Comm’n (7th 2001) (rejecting argument that legislative zoning ordinance was adjudicative because it targeted single group individuals: “Not the motive or stimulus, generality consequences, an enact ment determine whether is really legislation or really something else.”). On every dimension, Public 97–18 bears traditional indicia legislation.
Plaintiffs ask us ignore these features legislation instead divine whether was really motivated intent remove certain individuals. could not perform this task without considering motives legislators who voted (quite apart wondering whether plaintiffs have sued right defendants if legislation is heart claims). Plaintiffs’ reli ance on employment discrimination cases justify a judicial inquiry into legislative motive is misplaced. Whether a court considers motive of defendant in analyzing a plain ‐ tiff’s claim varies context type of defendant ‐ volved. If claim is based a statute (e.g., Title VII) or constitutional provision (e.g., equal protection) prohibits defendant taking an action for particular reason, then courts naturally must consider motive. See Grossbaum Indianapolis Marion County Building Auth. 1292–94 (7th 1996) (explaining why relevance of motive intent depends context); Fraternal Order of Police Hobart Lodge No. Inc. City Hobart 1988) (same). But it is non sequitur say because courts consider motives for some types claims, should do so for types claims.
Instead, decisive question is whether motive is rele vant particular claim issue. Here, we found no case establishing motive is relevant determin ing whether validly enacted statutory amendment elimi nating an employee’s complies with proce dural requirements. While Schulz suggested such pretext inquiry might appropriate “purport edly legislative decision,” did grapple Bogan cases like it, which tend bar this type judicial inquiry because special nature legislative action. dic tum Schulz falls well short placing “constitutional question beyond debate.” Ashcroft al Kidd —, S. Ct. (2011).
None say, however, there is support distinction between bona fide legislation adjudi cative determination dressed up clothing. & Drawing line can be difficult can have broad impli cations. Compare, e.g., L C S, Inc. (due process violated by amendment zoning ordinance effectively barred single tavern operating), Club Misty, Inc. Laski 2000) (due violated local referendum stripped plaintiffs liquor licenses). We can imagine situations where public employee terminated ruse statutory amendment designed avoid protections Due Process Clause. We express view whether plaintiff other circumstances might able make out constitu tional claim. hold failed demonstrate established right violated legislation ending six year terms arbitrators. De fendants are entitled qualified immunity. district courts’ judgments AFFIRMED.
[1] Arbitrators reconfigured Commission generally serve three year terms, first, transitional terms staggered appointing some one ‐ two year terms. Akemann reappointed
[2] Defendants argue lost protected property inter ests continued employment soon as legislature passed 97–18. This argument begs real question. rejected similar argument Youakim McDonald (7th 1995), where legislation effectively terminated foster care benefits children living unlicensed homes. Noting defense argument “tau tological,” we explained government “may defend against due process claim … by arguing plaintiff now lacks protectable property interest virtue very state action plaintiff has chal lenged.” Id. citing Bennett Tucker 1987) (“a state may deprive individual his her property without process, then defend against due claim asserting individual longer has interest”).
[3] Other courts recognized reorganization exception. See, e.g., Duffy Sarault (1st 1989) (citing Misek discussing “reorganization exception” hearings); Hartman City Providence F. Supp. (D.R.I. 1986) (col lecting cases).
[4] say “change” rather than “reorganization” because none arbitrators’ positions eliminated 97–18. There were twenty nine spots both before after amendment.
[5] Atkins noted without elaboration case did claim “any defect legislative process.” Some courts have read this language imply exception where legisla tive process was “defective” some way. See, e.g., Rea Matteucci 1997) (“Thus, if plaintiff could show legis lation here arbitrary irrational, or legislative process was defective, she triable issue fact whether she been denied process.”); Conway Sorrell F. Supp. (D. Vt. 1995). Plaintiffs do argue appeal defective, we express view whether exception via ble what its limits might be.