had a property interest in her employment. These allegations include that the Board adopted the
policies and procedures of CMS as set forth in the Code, Illinois has a policy of giving its
employees due process rights prior to termination, and plaintiff was assured that the structure of
the Board was designed with the same due process rights for its staff as the judges received
through the Board.

Defendants also argue that plaintiff has failed to state a claim for a deprivation of a
liberty interest.

A discharged state employee must show that: (1) she was stigmatized by the defendant’s
conduct, (2) the stigmatizing information was publicly disclosed, and (3) she suffered a tangible
loss of other employment opportunities as a result of public disclosure. Strasburger v. Board of
Educ., Hardin County, 143 F.3d 351, 356 (7th Cir. 1998). The stigmatizing conduct must be
more than an a charge of incompetence, neglect of duty, or malfeasance. It must be a public
statement of dishonesty, immorality, disloyalty, or subversive activities. Hadley v. County of
DuPage, 715 F.2d 1238, 1245 (7th Cir. 1973).

Here, plaintiff alleges that J. Rapp made false and defamatory comments about her
concerning her termination. She also alleges that “defendants” have published false and
defamatory comments, including, but not limited to, that her performance was “unsatisfactory”.
She alleges the defamatory statements were published and have caused employment
opportunities to be foreclosed. Plaintiff does not indicate the content of the alleged defamatory
comment by J. Rapp. Defendants argue that plaintiff must plead this claim in haec verba.

However, plaintiff need not plead her § 1983 claim in haec verba, which may be necessary for a


In this case, plaintiff alleges that she had a legitimate expectation based on the Board’s
following CMS procedures and Illinois’ policy of providing state employees due process, She
further alleges that she was assured that the structure of the Board was designed to produce
credibility and due process for the staff as well as the judges that the Board investigated. Based
on these allegations, and construing all ambiguities in plaintiff's favor, as is required, plaintiff
has sufficiently pled a violation of her constitutional rights.

Therefore, the Court must determine if the rights were clearly established at the time of
the alleged violation.

There is no controlling Supreme Court precedent, and the circuit has not ruled on the
issue of whether a Board employee has a property interest in his or her position. The case law is
clear that an employee may have property interest in their employment pursuant to the Illinois
Personnel Code (Code). See, e.g., Ryan, 185 F.3d at 761. In addition, adverse employment
action against a judge by the Board can only take place after proper notice and hearing.

Ill. Const. Art. VI, 15 (e).

The Board was created pursuant to the Illinois Constitution Art. VI, § 15 (b). Judges may

not be removed, suspended without pay, censured, or reprimanded without cause. Art. VI,

§ 15(e). The Board has the power and authority to “appoint and direct its staff.” Art. VI, § 15

(d). Pursuant to Illinois law, “[a]ll officers and positions of employment in the service of the
State of Illinois” are subject to the Code unless exempted in that or any other Act. 20 ILCS
ILCS 415/4. The Code does exempt judges and officers and employees of the courts. 20 ILCS

415/4c (3). The Code does not list the Board, which contains both judges and non-judges, or the


The individual defendants argue that the claims against them should be dismissed
because plaintiff was an at-will employee of the State and that she had no property interest in her
continued employment. Plaintiff argues that her complaint sufficiently pleads that she had a
property interest in her employment and that defendants are inappropriately arguing the merits of
the claim.

A property interest in the employment context can arise by an independent source, such
as a state law securing such a benefit, or by a clearly implied promise of continued employment.
Heck v. City of Freeport, 985 F.2d 305, 310 (7th Cir. 1993) (Heck). As to the second means of
establishing a property interest, “mutually explicit understandings that support [a] claim of
entitlement” may give rise to a property interest in employment. Perry v. Sinderman, 408 U.S.
593, 601 (1972).

In the instant case, plaintiff alleges that the Board did not have its own discharge
procedures and that the Board followed the personnel policies for state employees as covered by
Central Management Services (CMS). She also alleges that it was the policy of the State of
Illinois to give its employees due process, including notice and opportunity for a hearing. In
addition, she was assured that the structure of the Board was designed to afford due process for
the staff of the Board as well as the judges that they investigated. Defendants argue that plaintiff
is attempting to extend coverage of the Illinois Personnel Code (Code) to the Board. Defendants
argue that it is “highly doubtful” that the coverage of the Code would extend to the Board but
concede that there is no case law ruling on this issue.

Based on the pleading requirements set out above, plaintiff has sufficiently pled that she


claim of defamation in state court. See Goldstein v. Kinney Shoe Corp., 931 F.Supp. 595, 597
(N.D.IIl. 1996) (emphasis added); see also Leatherman y. Tarrant County Narcotics Intelligence
& Coordination Unit, 507 U.S. 163, 168 (1993) (no heightened pleading requirements for claims
against municipalities under 42 U.S.C. § 1983). Accordingly, plaintiff has sufficiently pled a
cause of action for alleged deprivation of a liberty interest against J. Rapp.

However, plaintiff has failed to allege that any of the other defendants were personally
involved in the alleged constitutional wrongdoing. “An individual cannot be held liable ina
§ 1983 action unless he caused or participated in [the] alleged constitutional deprivation.”
Wolf-Lillie v. Sonquist, 669 F.2d 864, 869 (7th Cir. 1983). Therefore, a complaint must allege
that the defendants were personally involved in the constitutional deprivation. See Zimmerman
v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000).

Here, plaintiff alleges that “defendants” made further defamatory statements, but she fails
to identify which defendants made the alleged statements that caused the constitutional
deprivation. Accordingly, plaintiffs deprivation of liberty claim against the remaining
defendants is dismissed without prejudice.

Lastly, defendants argue that plaintiff's claims should be dismissed because the
defendants have qualified immunity.

The court engages in a two-step analysis to evaluate a claim of qualified immunity.
Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir. 2000) (Jacobs). First, the court
determines whether the plaintiff's claim states a violation of her constitutional rights. Second,

the court determines whether those rights were clearly established at the time the violation



Board’s employees as exempt from the Code.

Based on the allegations in plaintiff's complaint, and in light of the stage of litigation,
plaintiff has sufficiently pled allegations that would indicate that the defendants, as reasonable
public officials, would have known plaintiff had a property interest in her continued
employment; and their alleged actions violated plaintiffs constitutional rights. These
allegations include that the Board adopted CMS policies and procedures as provided by the
Code, and plaintiff was assured that the staff acquired the same due process rights as the judges
they investigated.

For the foregoing reasons, defendant, The State of Illinois Judicial Inquiry Board’s
Motion to Dismiss is granted. The remaining defendants’ Motion to Dismiss is granted in part
and denied in part. The Board is dismissed with prejudice. Plaintiff's deprivation of liberty

claim (Count II) against defendants Sunderman, Parkhurst, and Twine is dismissed without

/
\JOHN W. DARRAH
Mited States District Judge

prejudice.

Dated:



Minute Qrdex Form (06/97)

United States District Court, Northern District of Dlinois

Name of Assigned Judge John W. Darrah Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 1583 DATE 8/6/2001
CASE MISTI CRULL vs. THE STATE OF ILL JUDICIAL INQUIRY
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

MOTION: nature of the motion being presented.]

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) o Answer brief to motion due. . Reply to answer brief due

(4) Oo Ruling/Hearing on set for at

(5) o Status hearing[held/continued to] [set for/re-set for] on set for at

(6) a Pretrial conference[held/continued to] {set for/re-set for] on set for at

(7) Oo Trial{set for/re-set for] on _. at

(8) o [Bench/Jury trial] [Hearing] held/continued to at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OGeneralRule21 OFRCP41(a\(1) OG FRCP41(a)(2).

(10) Hl [Otherdocketentry] Status hearing held and continued to 9/13/01 at 9:30 a.m. Enter Memorandum
Opinion And Order. The State of Illinois Judicial Inquiry Board’s motion to dismiss is granted. The
remaining defendants’ motion to dismiss is granted in part and denied in part. The Board is dismissed
with prejudice. Plaintiff's deprivation of liberty claim (Count II) against defendants Sunderman,
Parkhurst, and Twine is dismissed without prejudice.

(il) ® [For further detail see order (on reverse side offattached to) the original minute order.]

No notices required, advised in open court.
No notices required. umber of notices
Notices mailed by judge's staff.
Notified counsel by telephone. doe dock
v Docketing to mail notices.
Mail AO 450 form. aa
Copy to judge/magistrate judge. a mo
crate paus-6 PAS 21 | aM
LG deputy’s
initials
Date/time received in
central Clerk's Office railing deputy initials



occurred. Jacobs, 215 F.3d at 766. If the rights were not clearly established, the public official
is immune from suit, and the claim is dismissed. Jacobs, 215 F.3d at 766.

The plaintiff has the burden of demonstrating that a constitutional right is clearly
established. Kernats v. O'Sullivan, 35 F.3d 1171, 1176 (7th Cir. 1994). A clearly established
right is established if “[t}he contours of the right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S.
635, 640 (1987). The court first looks to controlling Supreme Court precedent and its own
circuit decisions on the issue to determine whether a right is clearly established. Absent any
controlling precedent, the court reviews all relevant case law in order to determine “whether
there was such a clear trend in the case law that we can say with fair assurance that the
recognition of the right by controlling precedent was merely a question of time.” Cleveland-
Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir. 1989).

Defendants allege that they should be afforded qualified immunity because there is no
clearly established body of law that could have put the defendants on notice that the plaintiff was
anything but an at-will employee.

Pursuant to Illinois law, as under federal standards, a public employee who cannot be
dismissed except for cause has a property interest in their position. Powell v. Jones, 56 Ill. 2d 70
(1973); Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1263 (7th Cir. 1985). Absent a
controlling state statute, extrinsic evidence of a policy or practice upon which a legitimate
expectation of the continuation of a benefit can be based may provide a basis for the property

right. Danno v. Peterson, 421 F.Supp. 950, 953 (N.D.IIl. 1976).



DOCKETED

UNITED STATES DISTRICT COURT AUG 07 2001

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MISTI CRULL,

Plaintiff,
No. 01 C 1583
v.
Judge John W. Darrah
THE STATE OF ILLINOIS JUDICIAL INQUIRY
BOARD, WILLIAM SUNDERMAN, JUSTICE
JOHN W. RAPP, LINDASY PARKHURST, and
KATHY TWINE (individually and in their

official capacities),

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff, Misti Crull, filed suit against defendants, alleging due process violations of the
Fourteenth Amendment and 42 U.S.C. § 1983 for alleged property and liberty deprivation
following the termination of her employment with the Judicial Inquiry Board. Before the Court
is defendants’ Motion to Dismiss.

In ruling on a motion to dismiss, the Court must accept the events as specified in the
complaint as true, and all ambiguities are construed in favor of the plaintiffs. Curtis v.
Bembeneck, 48 F.3d 281, 283 (7th Cir 1995). Federal notice pleading requires that a plaintiff
“set out in [the] complaint a short and plain statement of the claim that will provide the

defendant with fair notice of the claim.” Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir.

\

1999).


Plaintiffs complaint alleges that she was hired as an investigator for the Judicial Inquiry
Board (Board) in October 1997. While employed at the Board, plaintiff received praise for
work, raises in pay, and never received a verbal or written warning regarding her performance.
In October 2000, plaintiff was called into a meeting with William Sunderman (Sunderman);
Justice John W. Rapp (J. Rapp); Lindsay Parkhurst (Parkhurst); governing members of the
Board; and Kathy Twine, the Executive Director and General Counsel of the Board. At the
meeting, plaintiff was informed that her employment with the Board was terminated. Plaintiff
was not given any prior warning, reason, hearing, or opportunity to respond to her termination.

Plaintiff also alleges that following her employment termination, J. Rapp publicly made
false and defamatory comments about her, including, in part, that she was not fired because of
her performance but was fired for reasons that were false and defamatory. Plaintiff also learned
that the defendants have published false and misleading comments that her performance as an
investigator was “unsatisfactory”.

The Board argues that it is immune from suit under the Eleventh Amendment of the
United States Constitution.

Absent a valid waiver of immunity or a statute overriding a state’s immunity, a state as
such may not be sued in federal court. Ryan v. Illinois Dept. of Children & Family Serv., 185
F.3d 751, 758 (7th Cir. 1999) (Ryan), This immunity applies to both the state and its agencies
regardless of the nature of the relief sought. Pennhurst State School & Hospital v. Halderman,
465 U.S. 89, 100 (1984). Accordingly, the Board, as a state agency, is immune from suit in

federal court and is dismissed with prejudice.