In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 14‐2328  

JOHN T. DIBBLE,

Plaintiff‐Appellant,

v.

PATRICK J. QUINN, Governor of Illinois, et al.,

Defendants‐Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 13‐cv‐632 — David R. Herndon, Judge.

____________________

No. 14‐2746

PETER AKEMANN,

Plaintiff‐Appellant,

v.

PATRICK J. QUINN, Governor of Illinois, et al.,

Defendants‐Appellees.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 11‐cv‐3213 — Colin S. Bruce, Judge.
2 Nos. 14‐2328 & 14‐2746

____________________

ARGUED APRIL 22, 2015 — DECIDED JULY 20, 2015

Before FLAUM, MANION, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Plaintiffs John Dibble and Peter

Akemann were arbitrators for the Illinois Workers’ Compen‐

sation Commission. They lost their positions after the Illinois

legislature passed Public Act 97–18. The law was signed on

June 28, 2011 and took effect just three days later, ending the

terms of all incumbent arbitrators effective July 1, 2011 and

providing that the Governor of Illinois would make new ap‐

pointments. The new law allowed incumbent arbitrators to

serve past July 1 as holdovers until the Governor made new

appointments. By July 1, 2012, both Dibble and Akemann

had lost their positions.

Plaintiffs filed separate lawsuits raising the same claims.

They alleged that by shortening their six‐year terms as arbi‐

trators under the prior law, Public Act 97–18 deprived them

of a property interest without due process of law in violation

of the Fourteenth Amendment to the U.S. Constitution. Their

suits named as defendants then‐Governor of Illinois Patrick

Quinn and all members of the Illinois Workers’ Compensa‐

tion Commission, all in both their individual and official ca‐

pacities. Both district courts entered judgments for defend‐

ants.

We affirm both judgments. Plaintiffs’ claims for injunc‐

tive relief are moot, and the defendants are entitled to quali‐

fied immunity on plaintiffs’ claims for damages. Even if

plaintiffs plausibly allege a constitutional violation, the ap‐

plicable law was not clearly established under the circum‐
Nos. 14‐2328 and 14‐2746 3

stances of these cases, where a statutory amendment elimi‐

nated the property interest that a statute had previously con‐

ferred.

I. Factual & Procedural Background

Plaintiff John Dibble was first appointed as an arbitrator

in 1990 and then reappointed to six‐year terms in 1996, 2002,

and 2008. His last appointment was set to expire in 2014.

Plaintiff Peter Akemann was first appointed in 1994 and then

reappointed to six‐year terms in 2000 and 2006. His last ap‐

pointment was set to expire in 2012.

The Illinois Workers’ Compensation Act, 820 ILCS 305/1

et seq., establishes the power to appoint arbitrators. When

plaintiffs were last appointed, the law provided that each

arbitrator would be appointed for a term of six years, with

the possibility of reappointment. 820 ILCS 305/14, P.A. 94–

277 (2005). During terms of service, arbitrators were subject

to the provisions of the Illinois Personnel Code, which meant

they could be removed from their positions only for cause.

Id.; see also 20 ILCS 415/8b.18.

On June 28, 2011 Governor Quinn signed Public Act 97–

18. The Act replaced the provision establishing six‐year

terms for the arbitrators with a provision that set up a one‐

time appointment procedure. Under the new Act, the terms

of all incumbent arbitrators would end just three days later,

on July 1, 2011, regardless of when their terms would have

ended under the old law. The incumbents would continue to

exercise all of their duties until either they were reappointed

(all former arbitrators were permitted to apply for new ap‐

pointments) or their successors were named. The new Act

gave Governor Quinn the power to make new appointments,
4 Nos. 14‐2328 & 14‐2746

generally for three‐year terms. Plaintiffs allege that approx‐

imately twenty of the twenty‐nine incumbent arbitrators

were reappointed to their positions. Dibble was not among

them. Akemann was reappointed but only for a transitional

one‐year term that ended on July 1, 2012.1 The new law also

provides that its changes “prevail over any conflict with the

Personnel Code,” effectively removing the for‐cause protec‐

tion that arbitrators had enjoyed. See 820 ILCS 305/14, P.A.

97–18 (2011). Other changes made by Public Act 97–18 are

not pertinent to these appeals.

Plaintiffs’ six‐year terms of service were cut short by Pub‐

lic Act 97–18. Each filed a two‐count complaint under 42

U.S.C. § 1983 alleging that he was terminated without cause

and without notice and an opportunity to be heard in viola‐

tion of the Fourteenth Amendment’s Due Process Clause.

Plaintiffs also alleged that they were deprived of a liberty

interest under the Fourteenth Amendment when Governor

Quinn issued a press release announcing the overhaul of the

Commission. The district court in Dibble’s case dismissed

both claims under Federal Rule of Civil Procedure 12(b)(6).

The district court in Akemann’s case granted defendants

summary judgment on both claims under Rule 56. Plaintiffs

appeal the dismissals of their property interest claims but

not the dismissals of their liberty interest claims.

Plaintiffs sued for money damages and equitable relief in

the form of reinstatement to their positions as arbitrators.

                                                  1 Arbitrators for the reconfigured Commission generally serve three‐

year terms, but the first, transitional terms were staggered by appointing

some in 2011 to one‐ and two‐year terms. Akemann was not reappointed

in 2012.
Nos. 14‐2328 and 14‐2746 5

Plaintiffs concede correctly on appeal, however, that their

claims for reinstatement are now moot because the six‐year

terms they were serving in 2011 have expired. See Medlock v.

Trustees of Indiana Univ., 683 F.3d 880, 882 (7th Cir. 2012)

(dismissing appeal as moot where plaintiff sought to enjoin

academic suspension but term of suspension had expired by

time of appeal). We are left with only plaintiffs’ claims for

damages. Because all defendants are current or former state

officials sued for their official acts, damages are available

against them under § 1983 only in their individual capacities.

See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

(1989).

II. Analysis

A. Standard of Review

We review de novo dismissals under both Rule 12(b)(6)

and Rule 56. E.g., Vinson v. Vermilion County, 776 F.3d 924,

928 (7th Cir. 2015) (motion to dismiss); Mintz v. Caterpillar

Inc., — F.3d —, 2015 WL 3529396, at *5 (7th Cir. June 5, 2015)

(summary judgment). The issues here are pure questions of

law: whether plaintiffs had a constitutionally protected

property interest in their six‐year terms as arbitrators, see

Cole v. Milwaukee Area Technical College Dist., 634 F.3d 901, 904

(7th Cir. 2011); if so, whether the legislative process that pro‐

duced Public Act 97–18 satisfied federal due process re‐

quirements, see Lobzun v. United States, 422 F.3d 503, 507 (7th

Cir. 2005); and if not, whether defendants are entitled to

qualified immunity because the law was not clearly estab‐

lished that their actions violated plaintiffs’ constitutional

rights, see Chasensky v. Walker, 740 F.3d 1088, 1093–95 (7th

Cir. 2014). Because the result is the same despite the differ‐

ences between Rule 12(b)(6) and Rule 56, we have based our
6 Nos. 14‐2328 & 14‐2746

decision in both appeals on plaintiffs’ complaints alone, ac‐

cepting as true all factual allegations in the complaints

(which are virtually identical) and drawing from the allega‐

tions all reasonable inferences in plaintiffs’ favor. E.g., Lod‐

holtz v. York Risk Services Group, Inc., 778 F.3d 635, 639 (7th

Cir. 2015). We can affirm on any ground supported by the

record so long as the issue was raised and the losing parties

had a fair opportunity to contest the issue in the district

court. E.g., Locke v. Haessig, — F.3d —, 2015 WL 3528782, at *3

(7th Cir. June 5, 2015).

B. Qualified Immunity

“Qualified immunity shields government officials from

civil damages liability unless the official violated a statutory

or constitutional right that was clearly established at the time

of the challenged conduct.” Reichle v. Howards, 566 U.S. —,

132 S. Ct. 2088, 2093 (2012). To decide whether government

officials are entitled to qualified immunity, courts ask two

questions: first, whether the facts or allegations, taken in the

light most favorable to plaintiffs, constitute a violation of a

statutory or constitutional right, and second, whether that

right was clearly established at the time of the alleged viola‐

tion. E.g., Weinmann v. McClone, 787 F.3d 444, 448 (7th Cir.

2015). We have discretion to decide a case under the second

step “without resolving the often more difficult question

whether the purported right exists at all.” Reichle, 132 S. Ct.

at 2093, citing Pearson v. Callahan, 555 U.S. 223, 227 (2009). We

take that approach here.

To be “clearly established,” a right must be defined so

clearly that every reasonable official would have understood

that what he was doing violated that right. Reichle, 132 S. Ct.

at 2093. Although “clearly established” does not require a
Nos. 14‐2328 and 14‐2746 7

case directly on point, “existing precedent must have placed

the 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” but in a “particularized” sense so that

the “contours” of the right are clear to a reasonable official.

Reichle, 132 S. Ct. at 2094; see also City of San Francisco v.

Sheehan, 575 U.S. —, 135 S. Ct. 1765, 1776–77 (2015); Plumhoff

v. Rickard, 572 U.S. —, 134 S. Ct. 2012, 2023–24 (2014).

C. Plaintiffs’ Due Process Claims

1. The Property Interest

The Fourteenth Amendment’s Due Process Clause does

not itself create any property interests. It protects property

interests that “are created and ... 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 (1972).

That independent source of law can include “a statute, regu‐

lation, municipal ordinance, or an express or implied con‐

tract.” Covell v. Menkis, 595 F.3d 673, 675 (7th Cir. 2010).  

“To have a protectable property interest in a benefit, such

as continued employment, a plaintiff must have more than

an ‘abstract need or desire for it’ and more than a ‘unilateral

expectation of it.’ Instead, a plaintiff must have a ‘legitimate

claim of entitlement to it.’” Cole v. Milwaukee Area Technical

College Dist., 634 F.3d 901, 904 (7th Cir. 2011), quoting Roth,

408 U.S. at 577. In general, a public employee has a legiti‐

mate claim of entitlement to continued employment “when

an employer’s discretion is clearly limited so that the em‐

ployee cannot be denied employment unless specific condi‐

tions are met.” Colburn v. Trustees of Indiana Univ., 973 F.2d
8 Nos. 14‐2328 & 14‐2746

581, 589 (7th Cir. 1992). Although we look to state law for the

source of the plaintiff’s alleged property interest, whether a

particular state‐created interest rises to the level of a “legiti‐

mate claim of entitlement” is a question of federal law. Mem‐

phis Light, Gas & Water Division v. Craft, 436 U.S. 1, 9 (1978).

Plaintiffs had a constitutionally protected property inter‐

est in their positions as arbitrators up until July 1, 2011,

when Public Act 97–18 took effect to shorten their terms.

Under the prior version of the law, plaintiffs had a legitimate

expectation of continued employment during their six‐year

terms because they could be removed only for cause during

that span. See Cleveland Board of Educ. v. Loudermill, 470 U.S.

532, 538–40 (1985) (civil service employees who could be

dismissed only for cause had constitutionally protected

property interest in continued employment). Plaintiffs were

discharged without cause before their six‐year terms ex‐

pired. They did not receive the notice and individual oppor‐

tunity to be heard that ordinarily must be made available

before a deprivation of property.

2. Legislative Due Process

If a state official had simply wanted to remove the plain‐

tiffs from their posts, they would have had a federal consti‐

tutional right to prior notice and a meaningful opportunity

to be heard before the decision was made. In this case,

though, the alleged deprivation was caused by the legisla‐

ture’s enactment of Public Act 97–18. The issue on the merits

is whether that legislation deprived plaintiffs of their proper‐

ty interests without due process of law. Framing the question

that way leads us to a line of cases dealing with legislation
Nos. 14‐2328 and 14‐2746 9

that deprived people of property interests granted by earlier

legislation.2

We begin with Atkins v. Parker, 472 U.S. 115 (1985). In At‐

kins the Supreme Court considered a due process challenge

to an amendment to the Food Stamp Act. The amendment

reduced or eliminated benefits that certain low‐income fami‐

lies had been receiving under the law. The Court noted that

food stamps, like the welfare benefits at issue in Goldberg v.

Kelly, 397 U.S. 254 (1970), were a type of statutory entitle‐

ment that could be considered “property” under the Due

Process Clause, but it rejected the plaintiffs’ due process

challenge.

The Atkins Court explained that the plaintiffs were chal‐

lenging “a legislatively mandated substantive change in the

scope of the entire program,” not “the procedural fairness of

individual eligibility determinations.” 472 U.S. at 129. Con‐

gress has “plenary power to define the scope and the dura‐

tion of the entitlement to food‐stamp benefits, and to in‐

crease, to decrease, or to terminate those benefits based on

                                                  2 Defendants argue that plaintiffs lost their protected property inter‐

ests in continued employment as soon as the legislature passed Public

Act 97–18. This argument begs the real question. We rejected a similar

argument in Youakim v. McDonald, 71 F.3d 1274, 1288–89 (7th Cir. 1995),

where legislation effectively terminated foster care benefits for children

living in unlicensed homes. Noting that the defense argument was “tau‐

tological,” we explained that the government “may not defend against a

due process claim ... by arguing that the plaintiff now lacks a protectable

property interest by virtue of the very state action the plaintiff has chal‐

lenged.” Id. at 1289, citing Bennett v. Tucker, 827 F.2d 63, 73 (7th Cir. 1987)

(“a state may not deprive an individual of his or her property interest

without due process, and then defend against a due process claim by

asserting that the individual no longer has a property interest”).
10 Nos. 14‐2328 & 14‐2746

its appraisal of the relative importance of the recipients’

needs and the resources available to fund the program.” Id.

The prior version of the Food Stamp Act “did not include

any right to have the program continue indefinitely at the

same level,” nor did it “qualify the legislature’s power to

substitute a different, less valuable entitlement at a later

date.” Id. Under these circumstances, “‘[A] welfare recipient

is not deprived of due process when the legislature adjusts

benefit levels. ... [T]he legislative determination provides all

the process that is due.’” Id. at 129–30, quoting Logan v. Zim‐

merman Brush Co., 455 U.S. 422, 432–33 (1982) (alterations in

original).

Atkins reflects the general rule that the legislature, having

created a statutory entitlement, is not precluded from alter‐

ing or even eliminating the entitlement by later legislation.

Were the rule otherwise, “[s]tatutes would be ratchets, creat‐

ing rights that could never be retracted or even modified

without buying off the groups upon which the rights had

been conferred.” Pittman v. Chicago Board of Educ., 64 F.3d

1098, 1104 (7th Cir. 1995); see also Wisconsin & Michigan Ry.

Co. v. Powers, 191 U.S. 379, 387 (1903) (“the legislature is not

making promises, but framing a scheme of public revenue

and public improvement”). People who would be affected

by the later legislation are not left unprotected, however.

They have the opportunity to contest the legislative deter‐

mination through the processes of representative govern‐

ment. See generally Bi‐Metallic Investment Co. v. State Board of

Equalization, 239 U.S. 441, 445 (1915) (“General statutes with‐

in the state power are passed that affect the person or prop‐

erty of individuals, sometimes to the point of ruin, without

giving them a chance to be heard. Their rights are protected

in the only way that they can be in a complex society, by
Nos. 14‐2328 and 14‐2746 11

their power, immediate or remote, over those who make the

rule.”).

Courts have often followed this logic to reject due pro‐

cess challenges to legislation that has changed the duration

or conditions of civil service appointments. See Rea v.

Matteucci, 121 F.3d 483, 484–85 (9th Cir. 1997) (no due pro‐

cess violation where statute reclassified employee from per‐

manent to non‐permanent status); McMurtray v. Holladay, 11

F.3d 499, 504 (5th Cir. 1993) (no due process violation where

statute provided that personnel actions of state agency

would be exempt from procedures of merit review system);

Gattis v. Gravett, 806 F.2d 778, 780–81 (8th Cir. 1986) (no due

process violation where legislature amended civil service

code to eliminate for‐cause protection for certain personnel

in county sheriff departments); Grobsmith v. Kempiners, 430

N.E.2d 973, 975 (Ill. 1981) (“We find no constitutional imped‐

iment to the power of the General Assembly to change the

duration of the term of the appointments or the method of

fixing the time when presently existing terms would termi‐

nate.”); Jordan v. Metropolitan Sanitary Dist. of Greater Chicago,

155 N.E.2d 297, 304 (Ill. 1958) (“The legislature, having creat‐

ed the office or public position, may alter its terms or abolish

it entirely.”); Groves v. Board of Educ. of Chicago, 10 N.E.2d 403,

406 (Ill. 1937) (same); Higgins v. Sweitzer, 126 N.E. 207, 208

(Ill. 1920) (same); People ex rel. Akin v. Loeffler, 51 N.E. 785, 791

(Ill. 1898) (same).

A good example is Fumarolo v. Chicago Board of Education,

566 N.E.2d 1283 (Ill. 1990). For many years principals in the

Chicago public schools had tenure. In 1988 the Illinois legis‐

lature eliminated their tenure in the Chicago School Reform

Act, Ill. Rev. Stat. 1989, ch. 122, par. 34–1.01 et seq. The new
12 Nos. 14‐2328 & 14‐2746

law replaced the tenure model with a system of renewable

four‐year contracts. A group of principals challenged the

constitutionality of the law, arguing that the elimination of

tenure violated due process because each principal had a

property interest in “permanent” employment.

The Illinois Supreme Court agreed with the plaintiffs that

they had a property interest in permanent employment but

found no due process violation: “Although the Act contains

no procedures by which individual teachers are accorded a

hearing or opportunity to protest the termination of ‘perma‐

nent’ employment status, the legislative process itself created

all the procedural safeguards necessary to provide the plain‐

tiffs with due process.” Id. at 1307.

3. Plaintiffs’ Arguments for an Exception

Plaintiffs Dibble and Akemann acknowledge the general

rule that the legislative process satisfies due process re‐

quirements when property interests created by statute are

modified or eliminated. They argue for an exception,

though, when the legislative decision eliminating the prop‐

erty interest was pretextual, designed to harm a single em‐

ployee or a small group of employees. In support of this ex‐

ception, they rely on two cases, Misek v. City of Chicago, 783

F.2d 98 (7th Cir. 1986), and Schulz v. Green County, 645 F.3d

949 (7th Cir. 2011). Neither case addressed a situation like

this one.

In Misek tenured city employees were fired without a

hearing. Their property interest derived from the Illinois

Municipal Code and a Chicago ordinance, both of which

said they could be removed only for cause. Misek, 783 F.2d at

100. Unlike this case, neither law had been changed by legis‐
Nos. 14‐2328 and 14‐2746 13

lative action. Rather, the city fired the plaintiffs as part of a

purported “reorganization” and argued that individual pre‐

termination hearings were not required because the firings

occurred as part of a wide‐scale reorganization. This princi‐

ple, which Misek called the “reorganization exception,” id., is

based on the idea that a hearing is unnecessary when the

dismissal is caused by economic or administrative factors

unrelated to the employee’s job performance. Under these

circumstances, an individual hearing is “a futile exercise”

because the termination decision does not depend on factors

related to the individual employee. See Rodriguez‐Sanchez v.

Municipality of Santa Isabel, 658 F.3d 125, 130 (1st Cir. 2011).3

Misek recognized the reorganization exception but still

reversed the district court’s dismissal, explaining that the

plaintiffs’ claim fell outside the exception because they al‐

leged that “the so‐called reorganization ... was purely pre‐

textual in an effort to replace plaintiffs with others favored

by the acting Executive Director of the agency.” Misek, 783

F.2d at 100. Relying on this portion of Misek, plaintiffs argue

that Public Act 97–18 purported to effect a broad change to

the workers’ compensation system but was actually a pretext

for removing particular individuals.4

                                                  3 Other courts have recognized the reorganization exception. See,

e.g., Duffy v. Sarault, 892 F.2d 139, 147 (1st Cir. 1989) (citing Misek and

discussing the “reorganization exception” to due process hearings);

Hartman v. City of Providence, 636 F. Supp. 1395, 1410 (D.R.I. 1986) (col‐

lecting cases).

4 We say “change” rather than “reorganization” because none of the

arbitrators’ positions were eliminated by Public Act 97–18. There were

twenty‐nine spots both before and after the amendment.
14 Nos. 14‐2328 & 14‐2746

The crucial difference between Misek and this case is that

in Misek there was no process at all. The statutes that gave

the Misek plaintiffs their property interest had not been mod‐

ified by legislative action. Rather, the plaintiffs’ deprivation

was caused by the non‐legislative decision of the defendant

agency. Cases recognizing the reorganization exception say

that in this situation a pre‐termination hearing is not neces‐

sary if it would be pointless. But those cases do not say that

the legislative process, provided here by the Illinois legisla‐

ture’s enactment of Public Act 97–18, is insufficient to pro‐

vide due process. In fact, Atkins and Logan make clear that

the opposite is true. See Atkins, 472 U.S. at 129–30; Logan, 455

U.S. at 432–33.

Plaintiffs also rely on Schulz v. Green County, which is

closer to the situation presented here but still fails to estab‐

lish clearly the constitutional right plaintiffs invoke. (Even if

it had, it could not help these plaintiffs. Schulz was decided

three weeks after Public Act 97‐18 was enacted and took ef‐

fect.) In Schulz the plaintiff had been employed under the

supervision and control of a county court. The county board

of supervisors passed a resolution moving the position from

the court to a different county department. When the county

board made this change, the plaintiff kept her employment

and continued to perform many of her same job duties, but

she lost seniority and wage benefits because she could no

longer be considered a supervisor. 645 F.3d at 951–52. Unlike

in Misek, the challenged action was legislative because the

plaintiff’s reassignment and loss of benefits were caused by

the county board action.

We affirmed summary judgment for the defendant coun‐

ty, holding that the plaintiff was not entitled to a hearing. We
Nos. 14‐2328 and 14‐2746 15

explained that “welfare recipients have property rights in

their benefits, but only in the sense that they may have legit‐

imate claims of entitlement to whatever benefits the legisla‐

ture creates.” Id. at 952, citing Atkins, 472 U.S. 115, and Bowen

v. Gilliard, 483 U.S. 587 (1987) (no due process violation

where Congress amended statute to reduce federal aid to

families with dependent children). This part of Schulz, which

would have been sufficient to resolve the plaintiff’s claim in

that case, reflects the Atkins principle that the legislative pro‐

cess satisfies due process requirements and points to dismis‐

sal of plaintiffs’ claims here.

But Schulz also included some broader language that

plaintiffs have seized upon. Citing Misek, but without ad‐

dressing the distinction between legislative and non‐

legislative acts, we wrote:

A governmental reorganization ... does not al‐

ways avoid the need for due process. When a

purportedly legislative decision affects one

person (or a small number of people, as in

Misek), it is possible that the effect of the reor‐

ganization on a single person is the object of

the exercise rather than the byproduct. In those

cases, it is possible to ask whether the reorgan‐

ization was pretextual, designed to harm a spe‐

cific employee rather than in spite of her or

with indifference to its effects on her.  

Schulz, 645 F.3d at 953 (citation and footnote omitted). Schulz

did not explain how a court should undertake this pretext

inquiry in a case involving a legislative body. Nor did it dis‐

cuss the qualification in Misek that the court in that case was

not authorizing an inquiry into the actual motives behind a
16 Nos. 14‐2328 & 14‐2746

reorganization: “The cases relied upon by the district court

are easily distinguishable. In each of those cases the plain‐

tiffs were questioning the motives behind actual reorganiza‐

tions; here plaintiffs allege no reorganization took place.”

See Misek, 783 F.2d at 101.

Plaintiffs contend that the quoted language from Schulz

clearly establishes that Public Act 97–18 violated their due

process rights. Although the Act purported to be a legislative

act, they say, it was pretextual because it was designed to

eliminate particular arbitrators on the Commission. Recall

that the amendment applied to all arbitrators on the Com‐

mission and did not single out specific individuals, but ap‐

proximately twenty of the twenty‐nine arbitrators were re‐

appointed after Public Act 97–18 was enacted. Plaintiffs con‐

tend that Governor Quinn used the legislative reorganiza‐

tion as a subterfuge to target nine individual arbitrators he

disliked. They also observe that the amendment changed

very little about the conditions of service for the arbitrators

on the Commission. Terms were shortened from six to three

years, but there were no changes to the arbitrators’ salary,

benefits, responsibilities, or working conditions. Plaintiffs

contend that in light of the relatively minor substantive

changes, Public Act 97–18 should be considered “adjudica‐

tive” rather than legislative, and that adjudicative actions

require the familiar procedural safeguards of notice and an

individual opportunity to be heard.

We must clarify that the action eliminating plaintiffs’

property interest (a fixed term of six years, subject to remov‐

al only for cause) was the enactment of Public Act 97–18 by

the Illinois legislature, not the Governor’s decision to select a

new set of appointees that did not include plaintiffs. When
Nos. 14‐2328 and 14‐2746 17

the Governor made his decision to reappoint some arbitra‐

tors but not others (in October 2011), plaintiffs had no right

under state law to be reappointed. Absent that right, they

had no property interest in being selected by the Governor

for posts as arbitrators. Thus, plaintiffs can complain only

about the legislature’s decision to terminate their six‐year

terms early, on July 1, 2011, before those terms were set to

expire.

Even if Schulz had been decided before enactment of

Public Act 97‐18, it would not have clearly established that

plaintiffs’ due process rights were violated when the legisla‐

ture cut their terms short by passing Public Act 97–18. Any

effort to extend the pretext inquiry from Misek into the realm

of legislative decision‐making would run into the well‐

settled proposition that “[w]hether an act is legislative turns

on the nature of the act, rather than on the motive or intent

of the official performing it.” Bogan v. Scott‐Harris, 523 U.S.

44, 54 (1998); see also Tenney v. Brandhove, 341 U.S. 367, 377

(1951) (it is “not consonant with our scheme of government

for a court to inquire into the motives of legislators”); Biblia

Abierta v. Banks, 129 F.3d 899, 905 (7th Cir. 1997) (“An inquiry

into a legislator’s motives for his actions, regardless of

whether those reasons are proper or improper, is not an ap‐

propriate consideration for the court.”). While there are rare

exceptions, see, e.g., Wallace v. Jaffree, 472 U.S. 38 (1985) (con‐

sidering legislative purpose of returning prayer to public

schools in holding moment‐of‐silence legislation violated

First Amendment), any extension of the Schulz dictum on

motive to legislative acts is not clearly established law.

The act here was plainly legislative. Public Act 97–18 was

passed by the legislature following the normal legislative
18 Nos. 14‐2328 & 14‐2746

process prescribed by the Illinois Constitution. See Bagley v.

Blagojevich, 646 F.3d 378, 392 (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.”). The law applied generally to all sitting arbi‐

trators, not just to particular individuals, and applied only

prospectively. See L C & S, Inc. v. Warren County Area Plan

Comm’n, 244 F.3d 601, 604 (7th Cir. 2001) (rejecting argument

that legislative zoning ordinance was adjudicative because it

targeted a single group of individuals: “Not the motive or

stimulus, but the generality and consequences, of an enact‐

ment determine whether it is really legislation or really

something else.”). On every dimension, Public Act 97–18

bears the traditional indicia of legislation.5

Plaintiffs ask us to ignore these features of the legislation

and instead to divine whether Public Act 97–18 was really

motivated by the intent to remove certain individuals. We

could not perform this task without considering the motives

of the legislators who voted for the law (quite apart from

wondering whether plaintiffs have sued the right defendants

if the legislation is the heart of their claims). Plaintiffs’ reli‐

                                                  5 Atkins noted without elaboration that the plaintiffs in that case did

not claim “any defect in the legislative process.” 472 U.S. at 130. Some

courts have read this language to imply an exception where the legisla‐

tive process was “defective” in some way. See, e.g., Rea v. Matteucci, 121

F.3d 483, 485 (9th Cir. 1997) (“Thus, if plaintiff could show that the legis‐

lation here was arbitrary or irrational, or that the legislative process was

defective, she would have a triable issue of fact as to whether she had

been denied due process.”); Conway v. Sorrell, 894 F. Supp. 794, 802 (D.

Vt. 1995). Plaintiffs do not argue on appeal that the legislative process

was defective, and we express no view on whether this exception is via‐

ble or what its limits might be.
Nos. 14‐2328 and 14‐2746 19

ance on employment discrimination cases to justify a judicial

inquiry into legislative motive is misplaced. Whether a court

considers the motive of the defendant in analyzing a plain‐

tiff’s claim varies by context and the type of defendant in‐

volved. If the claim is based on a statute (e.g., Title VII) or

constitutional provision (e.g., equal protection) that prohibits

the defendant from taking an action for a particular reason,

then courts naturally must consider motive. See Grossbaum v.

Indianapolis‐Marion County Building Auth., 100 F.3d 1287,

1292–94 (7th Cir. 1996) (explaining why relevance of motive

or intent depends on context); Fraternal Order of Police Hobart

Lodge No. 121, Inc. v. City of Hobart, 864 F.2d 551, 554–57 (7th

Cir. 1988) (same). But it is a non sequitur to say that because

courts consider motives for some types of claims, they

should do so for all types of claims.  

Instead, the decisive question is whether motive is rele‐

vant to the particular claim at issue. Here, we have found no

case clearly establishing that motive is relevant to determin‐

ing whether a validly enacted statutory amendment elimi‐

nating an employee’s property interest complies with proce‐

dural due process requirements. While Schulz suggested that

such a pretext inquiry might be appropriate for a “purport‐

edly legislative decision,” it did not grapple with Bogan or

cases like it, which tend to bar this type of judicial inquiry

because of the special nature of legislative action. The dic‐

tum in Schulz falls well short of placing the “constitutional

question beyond debate.” See Ashcroft v. al‐Kidd, 563 U.S. —,

131 S. Ct. 2074, 2083 (2011).

None of this is to say, however, that there is no support

for a distinction between bona fide legislation and an adjudi‐

cative determination dressed up in legislative clothing.
20 Nos. 14‐2328 & 14‐2746

Drawing this line can be difficult and can have broad impli‐

cations. Compare, e.g., L C & S, Inc., 244 F.3d at 603 (due

process not violated by amendment to zoning ordinance that

effectively barred single tavern from operating), with Club

Misty, Inc. v. Laski, 208 F.3d 615, 621–22 (7th Cir. 2000) (due

process violated by local referendum that stripped plaintiffs

of liquor licenses). We can imagine situations where a public

employee is terminated under the ruse of a statutory

amendment designed to avoid the protections of the Due

Process Clause. We express no view on whether a plaintiff in

other circumstances might be able to make out a constitu‐

tional claim. We hold only that plaintiffs have failed to

demonstrate a clearly established right that was violated by

legislation ending their six‐year terms as arbitrators. De‐

fendants are entitled to qualified immunity.

The district courts’ judgments are AFFIRMED.