good good morning ladies and gentlemen family matters require a judge drove her to be present elsewhere but she is participating electronically there's always a risk with the audio visual hook up that things may be difficult in hearing either drover not hearing us or us not hearing george roden or and if that problem occurs please speak up and we will make adjustments ok the first case for argument this morning is brooder against hamilton your honour's good morning at the outset i wanted to alert you that i'm going to be arguing on behalf of both appellants i intended to have the first period of my argument devoted to the the appeal by the board of trustees in seventeen days to two one five and then the latter portion of my arguments devoted to the appeal concerning the individual trustees bedrock principle of democracy that the people through their elected representatives have the right to control and to change the direction of their local government institutions and their top policy employee through elections of new boards lame duck boards cannot tie the hands of future boards as was done here that's not just good policy that has been illinois law for over a century and dr brooders rationales for why he is an exception to the rule do not to do not apply accordingly the district court erred in not declaring the contract at issue here void ab initio mr bruder began to work at the college on january first of two thousand and nine and he received at that point time a three year six month contract ending june thirtieth of two thousand and twelve not four months later in april of two thousand and nine and importantly at a period in time after an election but before the new board sa mr brooders contract was extended through june of two thousand and fifteen when four new board members a new majority took over in may of two thousand and nine they had no opportunity analyzed the statute that applies to community colleges i think we would appreciate it if you to analyze that statute rather than talking in generalities your honor the statute at me her kidney th reporter as you do would you also talk about hofstra i will your honor i expected we might talk a bit about we mightn't poster place today the statute at  that dr brewer relies upon is section three dash thirty of the p c ca and that provision grants certain powers to the community colleges in the state of illinois that statute does not specifically grant community colleges the power to award your term contracts or contracts that have super majority and super quorum provisions or contracts that allow the roll over of those contracts in private session later in september of two thousand and fifteen the illinois legislature acted for the first time to allow community colleges to have beyond term contracts what the common law has stated for over a century in illinois is that the on term contracts are illegal and improper unless the general assembly clearly acts to the contrary and three dash thirty which is what dr brewer relies upon does not clearly say that in fact the scheme in three dash thirty is very directly analogous to the statutory scheme that the only supreme court analyzed in the millikan case and found wanting and found it did not authorize county boards to to give local units of government in counties the ability to extend term contracts beyond their term and so when we look at the story scheme of three dash thirty it is it is that example of if dr brooder is correct it's that how hiding of elephants in mouse holes that that this court another courts have have indicated that we shouldn't be doing and yet more than forty years ago this court said that essentially this way in which applying to this small group of individuals authorizes longer term contracts  state to have continuous employment unless there are issues with with that employment or unless in one of the cases cited by dr brewer the current case where there is an issue of retrenchment because of financial limitations of the school district the the problem with that is that that isn't that doesn't speak to what this contract is about this contract is it is a limited term it's a very lengthy term but it's a limited term that indicate that continue to indicate and authorized the common law principle that beyond term contracts are not acceptable unless and until the general assembly clearly states otherwise well that the language in the in the host of case they this court relied upon and did its best reading of illinois law and we have now other cases that do their own best reading of illinois law and what it means and whether it is lawful to have beyond term contracts and they have declared that is that that that those contracts are not lawful the two provisions that the host or a majority live upon were three das twenty six which simply allows for the making and the appointment of salaries for a chief administrative officer and such a three x thirty two which is which talks about establishing tenure policies this isn't tenure this is a contract with a chief executive officer of of the college and so that nothing neither of those provisions authorized beyond term contracts they don't your honor sir i think that this is actually a somewhat different situation because i think in in hoster up what this court was doing forty odd years ago was making its best guess at what illinois law and so whether it's it whether it's not is a holding as to the meaning of this statutory language and we'll annoy courts in other cases never disagreed with it as i understand right as for what this statute means for the group of people it covers the correct well i think that statement is correct but i think that thank you to be here to be clear your honor no court has agreed with the host reasoning nope no to authorize beyond term contract let me ask this maybe mixing the two parts of your argument that you're thinking about but i can you direct us to any cases in which defendants in civil rights cases have invoked qualified immunity on the theory that the controlling case law was wrongly decided case which state clearly that beyond term contracts are unlawful unless the general assembly clearly states otherwise and the general assembly here in this situation did not until september of two thousand case overruled it would have sent through i think that those those cases were i don't know whether the briefing in those cases up on either side of the ledger so i don't know if the case was actually considered and before those courts what we do know is what's what's in front of us in terms of both at the at at  the illinois appellate level and other courts that have decided the legality of these beyond term contracts and they have universally said no and then when we look at the the moorings of hoster up host rick was relying upon the only school code which itself always since the one nine hundred twenty s has specifically authorized beyond term contracts and so hoster of was relying upon  fairly simple to cut to correct if it's a matter as important as you think it is for the people of the state of illinois and it hasn't been done or at least it wasn't done until twenty fifteen when apparently there were lots of community college presidents and administrators who had so called beyond term contracts can we get away from that i'll want to go back to that in a bit but i'd like to focus on the other grounds you've offered for  trying to treat mr brooders contract is void on the supermajority and quorum requirements those terms in the contract are certainly unusual they may be inappropriate they may be unenforceable but i didn't see in your brief for response as to why their mere presence in the contract would render it void from the beginning two thousand and eleven two thousand all the way up to two thousand and fifteen when a new board ultimately did act with that provision in there we can't we can't unwind the clock and we can't sure you can a majority just acts says this is valid and there's dr brooder to to challenge that in court but all through a process that provides notice in an opportunity to be heard i mean i don't see how those terms are or enforceable but i also don't see how they get you to the point of a void of initio contract that might might if it's clear enough let you avoid the rights for a notice of an opportunity to be heard before terminations i think that the the asking to to go back in time to two members of a board who have this agreement in front of them and to then challenge these folks who are who are not who are not lawyers who are not necessarily getting that i think that sort of last year and compare that to what you've done the board supposedly got some advice from attorneys to say we can throw out this entire contract and we don't even need to g in it depends on the term i suppose your honor but the it in terms of of these details the supermajority in her clean ordinary clause in the contract contract might say if this contract is broken if whoever it is is fired the board will pay five hundred thousand dollars in cash as liquidated damages now i want to courts generally don't enforce liquidated damages clauses but your line of argument seems to be that the presence of a liquidated damages clause in a contract means that there just never was any contract and i don't think that's what illinois how illinois courts understand the presence of an arguably improper cla mis understanding something about illinois law i think illinois law discusses whether there are provisions that are essential to the contract and i would submit your honour's that when a provision is central to a contract and i  statement of the cause for the terminations and he was never offered and in person hearing i i you know  problems that the college pad and was given and at and the ability to respond to those terms in writing he was given a substantial amount of documentation you're not asking us to decide this case on that basis so are you i'm not it's not in we've talked about it we've talked about supermajority in quorum which would seem to me to be easily several without providing a foundation for treating a contract is void on the open meetings act  problem as i understand the open meetings act in case of a violation a court may declare the action taken in violation of the act is void but may also consider a variety of other remedies  so how to given that flexibility in the law how does the possibility that the extensions were taken in violation of the open meetings act allowed the board to just pretend that they didn't happen well you know you are correct that courts have a wide array of possibilities under illinois law but in this particular circumstance particularly the provision that allowed t rollover to occur without and with with the with the action of private of the board chair that that provision is is essential to the contract and is and is essential to the question of whether this contract is at will or not because what what that allows is that allows and as it occurred here this contract was rolled up out through two thousand and nineteen without any order stand that happened i understand that happened my problem is that the board took this very bold step of assuming for whatever reason that it thought it could simply ignore the contract and the constitutional due process rights that would seem to go with it and the fact that there may be a dispute about contract terms does not get you out from under a constitutional obligations let me ask on the relevance of the qualified immunity point i'm not sure exactly how this the i believe there's an allegation in the complaint about going in a content of the oh i see it may take me a minute to find measure i could certainly find it wants sitting part of the case so if you are going to discuss qualified immunity this is the time thank your honor i'd like that claims against the college he may well have a count to liberty interest claim against the college but when we look at what the law was in the fall of two thousand and fifteen we can't monday morning quarterback we can't assume that let the want was the ambiguity on a matter of federal law given decisions like card against of elgar which say defamation in connection with a discharge involves a liberty interest and requires hearings and that was a supreme court decision in one nine hundred seventy five you would think a decision of the supreme court would be enough to clearly establish some friends for the ambiguity your honor is not that principle but the that the the ambiguity is the question of law as to whether the statements alleged here in connection with oh well look if you're nice talk about particular statements alleged here you have a jurisdiction to consider as a matter of law whether the statements alleged are opinion or fact the those are those are questions of law that do not know that this is it not like how something is classified as a matter the issue in in in in the second in that the liberty due process claim is do we need that the district court concluded that there was fact finding the needed to be made on the malice issue and our view is that this isn't the case i'm in placing you to address how jones and stinson bear on this feel your honor i'm not i'm not up to date on jones instance so i thought well they are the controlling cases on a where there's a dispute about issues of fact one from the supreme court one from the seventh circuit on down and one we always hope that lawyers would be prepared to talk about the controlling  honor i don't believe that the issues here are issues of fact we believe that the that the just report got that wrong the the question for your honour's is whether the statements that are alleged could refocus not on the general campaign rhetoric about waste fraud and abuse but about the resolution that the board adopted in terminating mister yes the that allegation may well serve a claim against the board but as to the individual trustees that that they didn't publish that that statement and the gary mcmath be very considered this the district court made that finding and the your honor what one of the things that i will i be and uganda to find it as i talking about it but let's maybe you'll have that will if you have time let me just ask you quickly one practical question about your contention regarding the beyond term contract if i understand your position your client's position let's say that if back in two thousand and fourteen a community college presidency became vacant a year before an elect your position if i understand it would mean that the board could not adapt the contract that would be valid beyond the next election and right that's correct so a community college would be trying to invite a distinguished scholar competent administrator international search which is likely to take several months to move to illinois to take a contract that has a term of just a few and right that's where that's what you think the law would require that the law the law until september of two thousand and fifteen in the community house context did not allow for did any did any community college in illinois operate on that kind of a basis before the two thousand and fifteen i don't know and that's not in the record we do have any information that was accompanied the the enactment of the two thousand and fifteen amendment i'm just but education and school district number something that did not deal with a particular contract with administrator but with the same arguments raised with respect to a collective bargaining agreement for teachers and in that case among other analysis it talked about host and it so i did it with approval and at some length and in the same context that we've been talking about it with respect to the p c c it and it just hit different factual situation so it's not directly on point but it cites with approval there are other two there are two other northern illinois cases following post from that have cited host rope in dealing with presidents contracts with presidents of community colleges and have cited it with approval and research similar holding better than that and i don't know if there is way to get better on it it it analyzes the community college act it cites the various provisions that come into play it recognizes the broad power that the legislature  vested in community college boards to make decisions about the duration and terms of contracts and it it recognizes that the millikan line of cases which are based on davis millikan line of cases with respect to the term contracts that apply to the community college or the the recent amendment the september two thousand and fifteen amendment to the community college the act is further actually further support for the position that up until that time the courts of the legislature recognized in the community college boards recognized for believed that they had the right to enter into multi year contracts not only is it in the real legislative history but it's also in our complaint where we year contracts and simple math suggests that there were long lines in the college of page therefore he had that history and that's right in the record in addition to the legislative history that recognizes that twenty percent or more of community college presidents yes of september two thousand and fifteen had contracts the duration of which was in excess of four years now the legislature at the time and it was actually in response to a lot of the publicity relating to this to this matter said we want to put restrictions on it and one of the proponent of the stead of the amendment actually stepped stated currently under the law same arguments we think that the the law's uniform will strip is never been challenged to or questioned in any in any reported case and we believe it is the lot of clearly established property interests and should continue and like to address the other arguments a supermajority argument particular in addition to the of for cause of an administrator and it does provide that you can set the terms of board has the power to set the terms and when you look at data numerated power in the context of section three day thirty which says that which would say annex a controversial bill on a party line vote includes a provision that says this can be repealed only by a two thirds majority vote so  affordable care act sure that doesn't doesn't i understand your point but it doesn't apply to a contract here here's what i have here's what i'm thinking and why i think it's different from what you're talking about legislation in general here you're empowered the board some power to enter into a contract with its administrator and set the terms and the ways in which cause can be determined and how can how person can be removed they do that they have with it and observed that the particular employee in question had a contract that gave her more rights than the statute specific specifically provided and the court observed whether that was by mistake or intentional if the contract is entered into and it accords the employee greater rights and that provided by statute it is nonetheless in force and that i think it's a sound principle because the supermajority provision here is only related to the process of determining what grounds success to terminate the contract and whether how that can be done it doesn't relate to i would i would think that in that kind of case mr filio let's suppose the supermajority  required by contract but not by statute i would think that a majority of the board could take effective action so they were terminating this contract four of us think there's good cause  that might be a breach of the contract maybe there's a claim for damages but you're out of his president in the terminations takes effect that good that could be done you don't even have to have a terminations for cause provision in the counter you can just have a set term and the board can say were you fired and will show up the consequences so i don't think this provision makes it or did all or is even improper i think it's a proper exercise of their rights nothing in that provision and we're talking about not what happened but whether that provision in itself eyelids open the meeting second it does not because it only provides ways in and requirements of notice between the parties of the deadline coming up to do something if you don't want to renew it and you can do that close session if you want you can you can even set  firing somebody in closed session it's just you can't take final action in close section and this section does not have anything to do with a final action seems to involve final you know action right basically i think it's important is amendment to the contract really kind of the amendment to the statute i mean really addresses a lot of these issues and it's important i think to note that it's a prospect i think i understand your liberty interest claim to the extent it's based on the resolution that the board adopted this year as a detailed so that of the accusations against arthur as a doctor brooder who i have frankly a lot of questions about the extent to which i don't know whether we've got jurisdiction over them or not but but the extent to which your liberty interest or defamation and the the notion that incumbents have of both constitutional and common law right of action when they are attacked by challengers would seem likely to stifle some pretty healthy political debate your attitude to address that directly the if this campaign rhetoric was just campaign rhetoric and it was going back for that there probably wouldn't be the defamation but where is here one of the people who is directing this whole thing is already and or a trustee and is doing this in the context when other serious things are going on that suggest that she has inside knowledge or sapir access to information which would make otherwise claim with the individuals and the and that then existing board member that n to the statements are pretty much the same they post if you're talking about the resolution that was posted publicly in it and part of its damaging effect i think  is that it looks like it's an official document with defamatory communication i don't know how to answer your pa question directly but yeah i mean i mean like is there or is your problem if it board members can't be forthright in terminations as you know for fear of a defamation suit was where yeah ok thank you which doesn't violate the constitution if he got due process before the he didn't process and that takes that action and that's i think that's an issue that will be perhaps dealt with below i take it your point is he got neither due process nor damages if you don't have to hold a hearing to fire a football coach even if his contract runs for another year you just have to pay off his contract right there's more to you're looking at seven circuit contested seven circuit open rob the problem is this what what how do we treat an official who says well look i you know i got advice from counsel who we know these these a group of lawyers looked at all these illinois cases told me haas trip was really not a reliable guide to the law and so i thought i've got at least a color reason i can say in good faith that i don't think there's of alan contract in place is that enough to not good to notify the property interest in the right to due process a couple of things i'd like to observe one is i don't think subjective good faith is what's really going to be driving it and two i don't i love lawyers and i respect lawyers but you can sometimes hire lawyers to give you an opinion that allow you to do something that's net meritorious and it faces for believing that they had the right to terminate go the point the judge tones with opinion from the court in austria pointed out in response to an argument there that that contract was void for fraud that so long as there was a contract issue is was so clearly established is so clearly a steps until the amendment that any decision to fire him without a hearing is a deprivation this property this you rex good morning your honour's may please the court i don't want to belabor many of the issues here because i think you already asked mr filio some of the questions that i would be addressing but i just want to emphasize two points your honor seem to be interested in the board resolution which the board publicly posted to it's the college's website days before it voted on that resolution to terminate dr peters employment with the college and importantly that there is no federal law which would protect the individual trustees here who the complaint alleges vacs efficient to infer that they not only participated in drafting that resolution which contained a number of false statements which were stigmatizing to dr brooder but that they participated in causing the resolution to be publicly posted to the board website and then they alone voted on terminate on that resolution and there is no federal law that the board cites which says that they would be amused from liability for those actions in fact this is the essence of a section one nine hundred eighty three claim for deprivation of a constitutionally protected right is that you can hold individual government officials accountable and liable for depriving a public employee of his constitutionally protected right and as this court pointed out it's been clearly established for decades that when a public employer terminate a public employee contemporaneous to the making of false and stigmatizing statements without providing that a public employee hearing to clear his name that a liberty interest has been implicated and that's exactly what the complaint alleges here  group well respectfully your honor i think the individual trustees have waived that particular argument they made no argument to the district court that they should be entitled individual deference on their qualified immunity defenses they didn't raise it at at at all and i as this court is aware you wave an argument if you don't for appeal if you don't first raise it to the district court you the sumptuously taken re the district  that that issue first and so i don't think the the judges here today should be granting them that sort of individual deference and i think this goes to another question does this court even have jurisdiction to consider the issues that the college or the individual trustees have raised today as you heard in mr porter's argument that issue that they're saying should be reviewed by this court is whether the specific statements that were allegedly made by these trustees were fact or opinion and that isn't all the cases presented by both parties establish that that is a very fact intensive analysis and we are here before the core and denial of a motion to dismiss under twelve b six and under twelve a plaintiff does not need to prove is not required to complete every no i don't think he would because by their no vote what they're saying is that there's no basis here the charges in this in this resolution are false and we think that they're false and if they're not making those aren't immunity against the statements made in that resolution is by their belief that state privileges and immunities particularly the illinois tort immunity act applies to a federal constitutional claim and laws clearly established that it does not and this core in pain versus church it made clear that the illinois tort immunity act does not apply to a federal constitutional claim brought under section one thousand nine hundred three against either the governmental entity or the individual officials that were alleged to to act and that's exactly what the district court held as well and so their belief that the district court had somehow just missed from the liberty interest due process claim any of the statements that the individual trustees major public board may need or even the statements made in this resolution it is just wrong those statements process claims under section one thousand nine hundred three both in this circuit and in the supreme court clearly indicate that you can hold individual officials accountable for actions to be have which they both of which one of which had indeed represented one of the trustees into her individual capacity another which had represented one of the governmental watchdog groups which were acting in concert with these trustees to cause dr brooders your honors and judge hamilton it is in the record in the complaint that is attached and i'm speaking now to the advice of counsel issue exhibit al to the to the complaint is a resolution it's the board action that discusses the decision about void as an issue and it is exhibit l to the complaint which is part of the record and so that advice of counsel discussion is the question is i understood it was whether the opinion of counsel is in the record rather than whether somebody else was impression about the council in the record i believe that what that what that board