Warren v. Stone

958 F.2d 1419

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 20, 1992
• Docket: Nos. 90-3828, 90-3829
• Status: Published

Opinions

PER CURIAM.

Plaintiffs Marjane Warren and Mary Burmeister worked in the Cook County Public Defender’s Office. When they were demoted or terminated because of alleged violations of office procedure they filed separate suits under 42 U.S.C. § 1983 claiming, inter alia, they were denied property rights without due process. The respective district courts found that plaintiffs were not county employees but state employees who were not entitled to a hearing. Both judges dismissed the federal claim for failure to state a claim and the pendent state claims without prejudice. 751 F.Supp. 759 and 751 F.Supp. 1302. Plaintiffs appeal and we affirm.¹

I.

The two cases before us present similar facts. For purposes of review of a motion to dismiss, we accept the facts set forth in the complaints as true and make all reasonable inferences in favor of the plaintiffs. Johnson v. Martin, 943 F.2d 15, 16 (7th Cir.1991). Warrén was an employee of the Cook County Public Defender’s Office (PDO), and Burmeister was her supervisor. As alleged, in October 1987, both employees were wrongfully accused of destroying personnel records in violation of federal law by the interim Public Defender, defendant Paul Biebel. Biebel further accused Burmeister of making unauthorized changes in the PDO budget request, favoring some office employees, and breaking into Bob Gevirtz’s office. All of the charges were untrue. Neither employee was given a hearing to respond to the accusations, and both were suspended indefinitely without pay.

Soon thereafter, Biebel took further action against Warren by transferring her to a far less desirable position in night bond court, despite the recommendation of her doctor that such a transfer could injure her health. In the letter of transfer, Biebel warned her that failure to report to the new position would lead to termination. Warren alleges that the effect of this letter was to constructively discharge her since she felt compelled by her health and her doctor not to report to night bond court. Ultimately, defendant Randolph Stone, who by then had assumed the position of the Public Defender, discharged her.

As a direct result of the charges against Burmeister, Biebel transferred her to a low-level receptionist position. Several months later, Stone officially demoted Bur-meister to the position of receptionist, with a cut in salary of approximately $15,000 per year.

Both plaintiffs allege that the officials responsible for the disciplinary actions acted wholly outside the scope of the Cook County Rules and Regulations Governing Employee Conduct. They allege that they were county employees, and as such any disciplinary proceedings against them should have been conducted in compliance with the county personnel policy. Since the defendants failed to comport with this progressive disciplinary policy, the plaintiffs argue they have been denied the property interests they had in their jobs without due process of law. The defendants assert that Warren and Burmeister were state, not county, employees, and thus the personnel policy on which the plaintiffs base their claims is inapplicable.

II.

As a prerequisite to establishing a due process violation, plaintiffs must first establish a property right to their respective jobs. Wolf v. Larson, 897 F.2d 1409, 1411 (7th Cir.1990). Property interests for purposes of the Fourteenth Amendment “are defined by existing rules or understandings that stem from an independent source such as state law.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The plaintiffs allege that the Cook County employment policy created a property interest in their jobs. If they are not county employees, however, they cannot rely on the county policy, and their complaints would be insufficient to state a section 1983 cause of action.

For the most part, Illinois statutes are not helpful in determining the employment status of the plaintiffs. The Illinois legislature has enacted no specific provision which clearly designates the county or the state as the employer of the staff of the PDO.² Nonetheless, the plaintiffs point out that the Illinois statute authorizing the appointment of the Public Defender’s staff does provide some support for treating them as county employees. This statute provides:

Assistants. The Public Defender shall have power to appoint, in such manner as the judges before mentioned shall direct, such number of assistants, all duly licensed practitioners, as such judges shall deem necessary for the proper discharge of the duties of the office, who shall serve at the pleasure of the Public Defender. He shall also, in like manner, appoint such number of clerks and other employees as may be necessary for the due transaction of the business of the office. The compensation of such assistants, clerks and employees shall be fixed by the County Board and paid out of the county treasury.

Ill.Rev.Stat. ch. 34, § 3-4008 (1989) (amended by 1991 Ill.Legis.Serv. Ill (West)) (emphasis added). The “at the pleasure of” language was left out of the provisions governing “clerks and other employees.” Plaintiffs surmise that this omission could indicate that county termination procedures are to apply to these employees. However, that is not the only reasonable interpretation. The omission may simply be an oversight by the legislature, or it may mean that the legislature is delegating to the Public Defender the responsibility for formulating some sort of disciplinary policy for his “clerks and other employees.” Speculation aside, the statutory language at the time of the alleged violation is inconclusive as to state or county employee status, and the legislative history of the statute then in force is not helpful.³

The plaintiffs further argue that since by statute the Public Defender’s staff is paid by the county and receives county benefits, this should be indicative of county employee status. This may be a logical argument were we to start with a clean slate. But the Illinois courts have already spoken. The Illinois Supreme Court has determined that funding is not conclusive as to state or county employee status. Drury v. County of McLean, 89 Ill.2d 417, 60 Ill.Dec. 624, 627, 433 N.E.2d 666, 669 (1982) (“The fact that counties pay the salaries and expenses of circuit court clerks does not make the office of circuit court clerk a county office.”). Recently, in Orenle v. State Labor Relations Bd., 127 Ill.2d 453, 130 Ill.Dec. 455, 466, 537 N.E.2d 784, 795 (1989), the Illinois Supreme Court held:

[t]he fact that a county pays the salaries of other nonjudicial employees in the judicial branch, or even administers personnel policies covering them by agreement with the judicial branch, does not in constitutional or statutory terms make the county their employer....

The constitutional tripartite separation of powers strengthens our conclusion that the State, not a county, is the sole employer of all court employees.

See also Baker v. DuPage County, 703 F.Supp. 735, 737 (N.D.Ill.1989) (circuit court legal secretary held to be state employee regardless of the fact her paycheck came from the county). Moreover, compensation of nonjudicial court employees can be subject to the ultimate control of the judiciary through its inherent power to compel payment of the funds necessary for the efficient and effective operation .of the judicial branch. See People ex rel. Bier v. Scholz, 77 Ill.2d 12, 31 Ill.Dec. 780, 782-83, 394 N.E.2d 1157, 1159-60 (1979).

Although the Illinois courts have not yet addressed the specific issue of a PDO employee’s status for purposes of section 1983 liability, Illinois case law does provide strong guidance. In Orenic, 130 Ill.Dec. 455, 537 N.E.2d 784, the Illinois Supreme Court addressed whether counties may be considered joint employers of state circuit courts’ nonjudicial employees for purposes of collective bargaining under the Illinois Public Labor Relations Act. The status of assistant public defenders was explicitly at issue. The court held that “the State, personified by the chief judge of each circuit, is their employer.” Id., 130 Ill.Dec. at 466, 537 N.E.2d at 795. The role of counties is limited:

Except for setting and paying salaries and providing facilities subject to ultimate court power, the counties are enti-tied to no other role in regard to the courts’ nonjudicial employees that might arguably be considered the role of a joint employer.

Id., 130 Ill.Dec. at 468, 537 N.E.2d at 797. The court explained that such a result was mandated by the Illinois Constitution which “contemplates ‘[ojnly one unified court system operating statewide’ and ‘does not contemplate nor does it authorize the exercise of any control over or permit the imposition of a burden on the judicial system by any local entity.’ ” Id. (quoting Ampersand, Inc. v. Finley, 61 Ill.2d 537, 338 N.E.2d 15, 18 (1975)). Treating the counties as joint employers would pose a severe separation of powers problem, “unduly trenchpng] on the judicial branch’s separate and equal status.” Orenic, 130 Ill.Dec. at 470, 537 N.E.2d at 799.

The plaintiffs attempt to distinguish Or-enic by focusing on the separation of powers issue. They assert that the Orenic court had no alternative but to refuse to recognize the counties as joint employers in the collective bargaining context because of significant potential interference with the judiciary’s autonomy. By contrast, they maintain, there is no such threat of interference in the present case. Rather, they explain that acknowledging the county as employer for disciplinary proceedings has only a “peripheral impact” on the judiciary, and the Orenic court recognized that “legislation may permissibly have a peripheral effect on judicial administration.” Id., 130 Ill.Dec. at 468, 537 N.E.2d at 797. The plaintiffs contend that Orenic represents a narrow holding, and that it should be confined to collective bargaining under state labor law.

Orenic has broader impact than the plaintiffs would like to think.⁴ But even if we accepted the plaintiffs’ contention that PDO employees may be considered state employees for some purposes and county employees for others, the present case would still fall within these narrowed parameters of Orenic. The plaintiffs characterize the impact of the county personnel policy as “peripheral.” This is a significant understatement. Holding PDO employees subject to the elaborate county personnel policy would pose the same sort of separation of powers problem that the Orenic court sought to prevent. The Illinois Supreme Court found that allowing the counties to assert joint employer status “would be an evisceration of the courts as free and independent employers of their own employees, since authority over compensation is central to employer status.” Id., 130 Ill.Dec. at 468, 537 N.E.2d at 797. Like compensation, authority over the standards for disciplining and firing employees is “central to employer status,” and should be left solely in the hands of the judicial branch.

To support their claims, the plaintiffs rely on Kurata v. Silverman, 95 Ill.App.3d 89, 50 Ill.Dec. 609, 419 N.E.2d 717 (1981), which held that an assistant public defender had the status of a county employee and was therefore protected by the county personnel policy. The majority opinion found county employee status appropriate since the county paid the public defender’s salary and expenses, and the public defender was represented by the State’s Attorney’s Office. But Kurata predated the Illinois Supreme Court’s holdings in Drury, supra, and Orenic which clearly discard any reliance on the fact that the county pays the salary. Kurata is also flawed in its reliance on the argument that the Public Defender is a county official since he is defended by a State’s Attorney. By statute, the State’s Attorney is authorized to represent both county and state officials. Ill.Rev.Stat. ch. 34, § 3-9005(4) (1989). We are also mindful of the fact that no matter who represents the Public Defender in lawsuits, the PDO itself performs an essentially state function, since it is the state and not the county that owes defendants a duty of representation under the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

The plaintiffs maintain that the Public Defender is not a state employee since, unlike the State’s Attorney, he is not “essential” to the system of justice because the PDO is not established under the Illinois Constitution and its work can be done by private attorneys. To the contrary, representation of indigent defendants is a federal constitutional duty imposed on the states. Illinois case law has recognized how essential such representation is. “In a county as large as Cook County, the demand for the services of the Public Defender is so great as to insure the continued existence of the office of Assistant Public Defender.” People of Cook County v. Majewski, 28 Ill.App.3d 269, 328 N.E.2d 195, 198 (1975). “Clearly, the representation of indigent defendants is a requirement of due process of law which constitutes a delegation of sovereignty to the office of the Public Defender.” Id., 328 N.E.2d at 197. See also Kurata, 50 Ill.Dec. at 611, 419 N.E.2d at 719 (Trapp, J., dissenting).

III.

We hold that as a matter of law, the plaintiffs were employees of the State of Illinois, and not of Cook County. Therefore, they were not subject to the county personnel policy when disciplinary action was taken against them. Since the plaintiffs alleged no other basis for claiming a property interest in their positions at the PDO, the district court properly dismissed their section 1983 claims. As no federal issues remained for adjudication, the district court correctly dismissed the plaintiffs’ state law claims. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).⁵

Affirmed.

1 . Although these cases were appealed separately, they were consolidated for purposes of oral argument. We now consolidate them for disposition.

2 . Several states do have statutes which declare decisively that persons working in the public defender system are state employees (see Tenn. Code Ann. § 8-14-208 (1991), 13 V.S.A. § 5254 (1990), 19 Okl.St. § 138.1 (1990)) or are county employees (see S.D.Codified Laws § 7-16A-6 (1991)). Illinois does not have a definitive statute.

3 . In support of its position, the dissent relies on the text and legislative history of the 1991 amendments to the public defender enabling act. We note, however, that the 1991 amendments have no bearing on the events at issue here which occurred in 1987 and 1988. In particular, the dissent relies on a statement by Senator Collins: “What this amendment does, it simply separates and make[s], in the County of Cook, the ... Public Defender’s Office independent of the Judiciary.” 87th General Assembly, Regular Session, Senate Transcript (June 27, 1991). If the 1991 amendments make the Cook County PDO independent of the judiciary, it follows that prior to the amendments, the PDO was not independent of the judiciary. Thus, at the time of the facts giving rise to the plaintiffs’ complaints, separation of powers concerns were still implicated.

4 . The dissent cites three cases in support of its position that Orenic has been limited under Illinois law to the collective bargaining context. Yet, in each of those cases, the court emphasizes that Orenic represents a special case precisely because of the separation of powers coriéérns involved. People ex rel. Baricevic v. Wharton, 136 Ill.2d 423, 144 Ill.Dec. 786, 790, 556 N.E.2d 253, 257 (1990) (Orenic cited to support the statement that “[t]he prohibition on interfering with the judiciary’s administrative authority applies to the executive branch as well as to the legislature.”); AFSCME v. Educ. Labor Relations Bd., 197 Ill.App.3d 521, 143 Ill.Dec. 541, 544, 554 N.E.2d 476, 479 (1990) (''[T]he current case lacks the constitutional separation of powers question which underlies Orenic."), Riley v. County of Pike, 761 F.Supp. 74, 76 (C.D.Ill.1991) ("In Orenic ..., constitutional separation of powers concerns were one factor that led the Illinois Supreme Court to hold that the Illinois circuit courts could not be co-employers with the counties in which they sat, even though the counties set and paid the salaries of non-judicial employees.”).

5 . Because of our disposition of this case, we need not decide whether the defendants were acting according to official policy in disciplining the plaintiffs.