proceedings implicate important state interests; and (3) there is an adequate opportunity
in the state court proceeding to raise constitutional challenges); see also Colorado River
Water Conservation Dist. v. United States, 424 U.S. 800, 818-19 (1976) (abstaining to
avoid duplicative litigation); Burford v. Sun Oil Co., 319 U.S. 315, 333 (1943) (calling
for abstention when court is faced with unsettled questions of state law where there exists
a complex state administrative scheme and the need for centralized decisionmaking);
R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 499-501 (1941) (stating abstention
appropriate where federal constitutional issue might be mooted or presented in a different
posture by a state court determination of pertinent state law). Abstention doctrines are
rooted in concerns for federalism and comity, i.e., “sensitivity to the legitimate interests
of both State and National Governments, and in which the National Government, anxious
though it may be to vindicate and protect federal rights and federal interests, always
endeavors to do so in ways that will not unduly interfere with the legitimate activities of
the States.” Younger, 401 U.S. at 44.

In this case, the Court’s approach avoids the potential for interference with state
court proceedings and the concerns raised by Younger, Pullman, Burford, and Colorado
River and upholds the notions of federalism and comity. The Court exercises its
discretion pursuant to 28 U.S.C. § 1367(c)(3) to decline jurisdiction over the state law
claim (Count II). Further, the question that Count I presents, i.e., the scope of a
presidential pardon, is particularly and uniquely a federal issue and one that the Court

will presently decide.


extraterritorially as a limitation upon the states, excluding them from considering
the conviction of the prior and pardoned offense against the United States in a
prosecution for a subsequent state offense.” Id. The Court held, rather narrowly,
that a state could take a previous conviction into account when sentencing
because the sentence did not impose an additional punishment for the pardoned
offense but rather imposed punishment for the new crime only. Jd. at 58.

Additionally, in Bjerkan v. United States, 529 F.2d 125 (7th Cir. 1975), the court
addressed the relationship between a Presidential Pardon and state law. The issue before
the Bjerkan court was “whether a full pardon eliminates all ‘collateral consequences’ of
the petitioner's conviction.” Jd. at 126. The Court concluded: “any deprivation of a
person's basic civil rights, including the right to vote, the right to serve on juries and the
right to work in certain professions, by a state on account of a federal conviction would
constitute a punishment. Consequently, the pardon restored the basic set of state rights as
well.” Jd, at 127-28.

Plaintiff asserts that he was forced under state law to forfeit his property
interest in his annuity to the state because of his conviction. Therefore,
plaintiff's argument goes, a restoration of his basic rights necessarily must
include the forfeited property. Plaintiff relies on Knote to support his claim. In
Knote, the Court considered the case of a West Virginia landowner who had been
convicted of treason. 95 U.S. at 149. As a result of the conviction, the federal
government seized the landowner’s property pursuant to the Confiscation Act of
1862. The Court considered the history of the pardon and ruled that it had the
legal effect of restoring the landowner’s civil and political rights, specifically, his

9


which he alleges that the Board failed to conduct a hearing prior to denying his
benefits. The Court addresses each in turn.

“One prerequisite for a substantive due process claim to be cognizable is
an underlying constitutionally protected property interest.” Swartz v. Scruton,
964 F.2d 607, 609 (7th Cir. 1992). Likewise, a threshold requirement for a
procedural due process claim is a protected property interest. Ledford v. Sullivan,
105 F.3d 354, 357 n.3 (7th Cir. 1997).

At this early stage, the Court must determine whether the plaintiff can first
plead a set of facts legally sufficient to demonstrate a property interest secured
under Illinois state law so that one or both of his due process claims may proceed.
The answer to this question is dependent, however, on the existence of a
cognizable property interest. Whether someone who has been pardoned has a
protected property interest in his pension, which was forfeited due to his
application for a refund after his conviction, is a novel issue.

Generally speaking, property interests must emanate from state law. As
the Supreme Court noted in Roth v. Board of Regents, 408 U.S. 564, 577 (1972):

Property interests, of course, are not created by the Constitution. Rather

they are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law--

rules or understandings that secure certain benefits and that support claims
of entitlement to those benefits.

However it is created, a property interest is not constitutionally cognizable uniess
the individual has a “legitimate claim of entitlement” to the benefit. Jd. As the
Roth Court stated: “[t]o have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it. He must have more than a

6



B. Motion to Dismiss Plaintiff’s Section 1983 Claim for Failure to State a Claim

“(O}n a Rule 12(b)(6) motion the plaintiff must be allowed to go forward
with the case if relief could be granted under any set of facts that the plaintiff
could prove consistent with the allegations in the complaint.” Sledd y. Lindsay,
102 F.3d 282, 289 (7th Cir. 1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46
(1957)). That the claim here is a section 1983 claim does not change this
standard. Sledd, 102 F.3d at 288. “[A] pleading must only contain enough to
‘allow the court and the defendant[s] to understand the gravamen of the plaintiff's
complaint.’” Payton v. Rush Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623,
627 (7th Cir. 1999) (quoting Doherty v. City of Chicago, 75 F.3d 318, 326 (7th
Cir. 1996)).

A plaintiff who presents a claim seeking relief under section 1983 must
establish that (1) the alleged conduct was committed by a person acting under
color of state law; and (2) that this conduct deprived the plaintiff of rights (life,
liberty, or property), privileges, or immunities secured by the Constitution or laws
of the United States. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970);
Moore v. Muncie Police & Fire Merit Comm'n, 312 F.3d 322, 326 (7th Cir.
2002). The Due Process Clause of the Fourteenth Amendment provides that no
state shall “deprive any person of life, liberty, or property, without due process of
law.” U.S. Const. amend. XIV § 1.

Here, plaintiff brings a substantive due process claim in which he alleges
that the Board improperly deprived him of his property when it refused to
reinstate his retirement benefits as well as a procedural due process claim in

5


be able to dismiss plaintiff's claim solely on that basis without considering the
legal effect, if any, of the presidential pardon. In other words, the Court must
examine the full extent of the effect of the Pardon to determine whether the
plaintiff has a cognizable property interest in the first place.

Article IL, Section 2 of the United States Constitution provides that the
President “shall have Power to grant Reprieves and Pardons for Offenses against
the United States, except in Cases of Impeachment.” U.S. Const. art. II, § 2, cl.
1. Moreover, Article VI provides that a Presidential Pardon is the supreme law of
the land that is binding on federal and state courts. U.S. Const. art. VI, § 1, cl. 2.
“A presidential pardon restores state as well as federal civil rights.” Bjerkan v.
United States, 529 F.2d 125, 129 (7th Cir. 1975). However, a “pardon does not
“blot out guilt’ nor does it restore the offender to a state of innocence in the eye of
the law.” Jd. at 128 n.2. Put simply, “the pardon removes all legal punishment
for the offense.” Jd. The practical effect of the pardon on the individual’s daily
life is restorative in nature, because it returns to the individual the state and
federal rights that the conviction once removed. Carlesi v. New York, 233 U.S.
51, 57 (1914); Bjerkan, 529 F.2d at 126.

Only once has the Supreme Court addressed the relationship between a
Presidential Pardon and state law. In Carlesi v. New York, 233 US. at 57, the
petitioner’s federal conviction, which was subsequently pardoned, was taken into
account in state sentencing proceeding toughening the sentence for “habitual”
criminals. The precise issue before the Court was “how far a pardon granted as to
an offense committed against the United States operates, so to speak,

8



Minute G:der Form (06/97)

. \ f nited States District Court, Northern District of Illinois

Name of. ned Judy Ny Sitting Judge if Other

mestooiGet wish | Ronald A. Guzman | Sin te Owe

CASE NUMBER 02C 251 DATE 2/28/2003
CASE
TITLE

[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

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

(2) Qo Brief in support of motion due

(3) a Answer brief to motion due___. Reply to answer briefdue__

(4) o Ruling/Hearing on setfor at

(5) oO Status hearing{held/continued to] [set for/re-set for]on__set fora

(6) oO Pretrial conference[held/continued to] [set for/re-set for]}on___setfor__—sat__
(2) Oo Trial{set for/re-set for]on___—_at

(8) a (Bench/Jury trial) [Hearing] held/continued to___at

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

COPRCP4(m) ClLocal Rule 41.1 CFRCP41(a)\(1) © FRCP41(a)(2).

ao) =i [Other docket entry] | ENTER MEMORANDUM OPINION AND ORDER: The Court denies
Defendant’s Rule 12(b)(1) motion to dismiss Count I based on abstention doctrines [8-1]; and grants the
Rule 12(b)(6) motion as to Count I [8-2]. The Court declines to exercise supplemental jurisdiction as to
Count II pursuant to 28 U.S.C. Section 1367(c)(3). This case is hereby terminated.

(1) ff [For further detail see order attached to the original minute order.)

No notices required, advised in open court. -
No notices required. woos
Notices mailed by judge’s staff.

i 1 by teleph HAR 0 4 2003
Notified counsel by telephone. vate doceted

& | Docketing to mail notices.

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wennoen im qunod somusia ed archon Nn
Copy to judge/magistrate judge. wey AR 6 4 2003

With f= Woe sme nt __—
courtroom QS sid S- SYNE date med noice

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in that it extinguished his previously held property interest in his pension.

The Court also concludes that the scope of the Presidential Pardon does
not legally extend retroactively to decisions that the plaintiff made after his
conviction, such as the election of pension contributions, so as to reverse their
practical legal effect. The Court will not broaden the Seventh Circuit’s
interpretation of the basic set of “restored” rights articulated in Bjerkan to include
the applied for and received “reimbursement” retirement benefits. Interpreting
the set of restored “rights” to include voluntary decisions made after a conviction
that had the legal effect of forfeiting a property interest too broadly interprets the
intended scope of the Pardon, and presents the Court with the daunting task of
discerning whether decisions made after a conviction were or were not because of
the conviction. The Supreme Court’s interpretation that “an offender is released
from the consequences of his offence, so far as such release is practicable,”
Knote, 95 U.S. at 153, is particularly applicable to this situation. Even if the
pardon eliminated plaintiff's felony conviction, it did not eliminate plaintiff's
voluntary decision to apply for and accept a refund. Accordingly, plaintiff's
complaint fails to allege a set of facts that may legally entitle him to relief on
either his substantive due process or his procedural due process claim, and the

defendant’s motion to dismiss as to Count I is granted.

C. Motion to Dismiss Plaintiff's Administrative Review Claim (Count IT
Under 28 U.S.C. § 1367(c)(3), a court may decline to exercise supplemental
jurisdiction over a claim if the court “has dismissed all claims over which it has original

11


forfeited land. Jd. The Court held that the forfeited property fell into the category
of disabilities that were restored upon receipt of the pardon, and consequently, the
Court ordered the federal government to return the forfeited property. Jd.

The Court finds Knote distinguishable from the instant case and concludes that
the plaintiff's complaint does not allege a set of facts that may entitle him to relief. The
plaintiff surrendered any property interest he had in his annuity by voluntarily electing to
receive reimbursement in the amount he previously contributed to the pension fund.
While it is true that Illinois law provides that a convicted individual automatically
forfeits his retirement benefits, and the Knote Court ordered the restoration of property
forfeited pursuant to a conviction, in the instant case, plaintiffs election and acceptance
of a refund in that forfeited interest had the practical effect of negating the forfeiture.

The plaintiff in Knote did not elect to forfeit all of his property by receiving some of his
property back. Had plaintiff in the instant case not elected to forfeit his complete interest
by receiving a partial interest, his situation would be more closely analogous to the
situation in Knote.

Such an interpretation is consistent with the spirit and reasoning of Bjerkan. The
Court finds that the holding of Bjerkan was limited to an attempt by the state to punish on
the basis of a conviction in a post-pardon world. As the Court stated:

If the conviction were pardoned, as it was here, such attempted punishment would

constitute a restriction on the legitimate, constitutional power of the President to

pardon an offense against the United States and would be void as circumscribing
and nullifying that power.

529 F.2d at 128 (emphasis added). Here, there is no additional act of punishment by the

state. At the very least, the plaintiff's election can be seen as a self-imposed punishment

10


unilateral expectation of it. He must, instead, have a legitimate claim of
entitlement to it.” Jd.

Here, plaintiff argues that he has a demonstrated property interest in the
annuity that he was formerly entitled to receive upon his retirement from the
Police Board. Defendant, however, disputes that plaintiff has a protected property
interest in the annuity. Specifically, defendant argues that because plaintiff
alleges he elected to receive his previous contributions to his annuity, he does not
have a protected property interest in his retirement benefits. Defendant claims
that Illinois law explicitly denies plaintiff a property right once convicted.
Specifically, section 5-227 of the Illinois Pension Code provides that “[nJone of
the benefits provided for in this Article shal] be paid to any person who is
convicted of any felony relating to or arising out of or in connection with his
service as a policeman ....” 40 ILL. Comp. STAT. 5/5-227. The plaintiff alleges
that he did apply for and receive a full refund of his pension contributions, and the
legal effect of his conduct is explained by section 5-163(c) of the Code, which
states: “A policeman who withdraws the amount credited to him surrenders and
forfeits all rights to any annuity or other benefit from the fund, for himself and for
any other person or persons who might otherwise have benefited through him.”

40 ILL. Comp. STAT. 5/5 -163(c).

In response, the plaintiff contends that but for the conviction, he would not
have elected to receive some compensation under the statute, and consequently,
he is entitled to a reinstatement into the fund. Even if the Court were to agree
with defendant’s characterization of the statutory provisions, the Court would not

1


ILL. Comp. STAT. 5/3-101 (West 2001), he had 35 days in which to challenge the decision
of the Board in the Circuit Court of Cook County. (/d. ff] 30-32.)

The plaintiff filed the instant action on January 10, 2002 alleging a section 1983
claim (Count I). Plaintiff also filed a Petition for Administrative Review on January 17,
2002 in the Circuit Court of Cook County. On March 26, 2002, plaintiff filed an
amended complaint and added the claim seeking administrative review of the Board’s

decision (Count II).

DISCUSSION
A. Motion for Abstention

The Board first asks that Count I be dismissed pursuant to a Rule 12(b)(1).
Plaintiff, of course, disagrees and argues that abstention is inapplicable. The Court
agrees with plaintiff.

The Seventh Circuit has noted “that the Supreme Court has recently stressed that
the federal courts have a strict duty to exercise the jurisdiction conferred upon them by
Congress.” Jnt’l College of Surgeons v. City of Chicago, 153 F.3d 356, 359 (7th Cir.
1998) (citing Quackenbush y. Allstate Ins. Co., 517 U.S. 706, 716 (1996)). Only in
certain very limited circumstances may a federal district court decline jurisdiction over a
case or controversy before it. Younger v. Harris, 401 U.S. 37, 53 (i97 1) (holding that
federal courts should abstain from interfering with pending state criminal proceedings,
except where there is bad faith or harassment); see Trust & Investment Advisers, Inc. v.
Hogsett, 43 F.3d 290, 295 (7th Cir. 1994) (stating Younger abstention doctrine has been
held to apply if (1) the judicial or judicial in nature state proceedings is on-going; (2) the

3



1988. (Am. Compl. § 6.) Upon his resignation, plaintiff applied to the defendant Board
to receive his annuity benefits. (Jd. { 7.) On or about December 8, 1988, plaintiff was
convicted in the United States Court for the Northern District of Illinois of violating 18
U.S.C, § 1623, which punishes false declarations before a Grand Jury. (/d. 46.) He was
sentenced to 3 years of probation, 90 days of imprisonment, and 300 hours of community
service. (Id.)

As a result of plaintiff's felony conviction, the Board determined in April 1991
that his annuity benefits were forfeited pursuant to 40 ILL. CoMP. STAT. 5/5-227 (West
2001) of the Illinois Code. (/d. 7.) Then plaintiff applied for a refund of his
contributions and the Board issued a refund to him in late April 1991. (Id. 48.) On
January 20, 2001, the President of the United States, William Jefferson Clinton, issued to
plaintiff a Full and Unconditional Pardon as to the aforementioned conviction. (Jd. 9.)

Thereafter, on May 23, 2001, plaintiff contacted the Executive Director of the
Defendant Board and advised him that he was making a claim for the retroactive and
prospective restoration of his annuity benefits. (Jd. 10.) Plaintiff also requested a
hearing to present his claim and asked the Board to calculate the amount of benefits to
which he purportedly was entitled. (/d.) After the defendant requested and the plaintiff
provided a copy of his Presidential Pardon in early June of 2001, the plaintiff made
several additional, unsuccessful attempts to contact the defendant in the remaining
months of 2001. (Ud. {{] 11-14.) On December 21, 2001 the plaintiff received a letter
from the Board that stated that the Board had no statutory authority or jurisdiction to
rehear or reconsider its previous decision denying benefits. (/d. J 15.) The Board also
notified plaintiff in the same letter that under the Illinois Administrative Review Act, 735

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JOSEPH YASAK, )
Plaintiff, }
vy. Judge Ronald A, Guzman
POLICEMEN'S ANNUITYAND ) DOGKETED
BENEFIT FUND OF CHICAGO, ) MAR 0 4 2003
Defendant. }

MEMORANDUM OPINION AND ORDER

Plaintiff Joseph Yasak, a former Chicago police officer, has sued the Retirement
Board of the P jlicemen’s Annuity and Benefit Fund of Chicago (“Board”) for violation
of his due process rights pursuant to 42 U.S.C. § 1983 (Count I) and also seeks
administrative review of the Board’s denial of benefits pursuant to 735 ILL. COMP. STAT.
5/3-101 et seg. (Count Il). Before the Court is defendant’s Fed. R. Civ. P. (“Rule”)
12(b)(1) and 12(b)(6) motions to dismiss. For the following reasons, the Court denies the
Rule 12(b)(1) motion and grants the Rule 12(b)(6) motion as to Count I. The Court
declines to exercise supplemental jurisdiction as to Count II pursuant to 28 U.S.C. §

1367(€)(3).

FACTS
The following facts are those alleged in the plaintiffs amended complaint, and

for the purpose of the current motions, they are accepted as true. Plaintiff was appointed

15

as a Chicago police officer in October 1960 and resigned on or about September 26,


jurisdiction.” As discussed above, the Court has granted defendant’s motion to dismiss
plaintiffs federal claims. Accordingly, this Court in its discretion declines to exercise
supplemental jurisdiction over Count II, which seeks administrative review of the

Board’s denial of benefits pursuant to 735 ILL. CoMP. STAT. 5/3-101 et seq.

CONCLUSION
For the foregoing reasons, the Court: (1) denies defendant’s Rule 12(b)(1) motion
to dismiss Count I based on abstention doctrines [doc. no, 8-1]; (2) grants defendant’s
Rule 12(b)(6) motion to dismiss Count I [doc. no, 8-9]; and (3) declines to exercise
supplemental jurisdiction over Count II pursuant to 28 U.S.C. § 1367(c). This case is

hereby terminated.

SO ORDERED ENTERED: fal Ba > OF

"HON. RONALD A. G
United States Judge

12