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SAUNDERS v. CAHILL

United States District Court, Northern District of Illinois, E.D


May 17, 1973

ELLA SAUNDERS ET AL., PLAINTIFFS,
v.
WILLIAM E. CAHILL ET AL., DEFENDANTS.

The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on the defendants' motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

This is an action to redress the alleged deprivation of the plaintiffs' civil rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and protected by 42 U.S.C. § 1983. The plaintiffs also seek a declaratory judgment pursuant to 28 U.S.C. § 2201.

The plaintiffs are 52 certified civil service employees occupying various titles and positions in diverse departments of the municipal government of the City of Chicago. The named plaintiffs are all members of Local 505, Council 19, American Federation of State, County and Municipal Employees, AFL-CIO ("Local 505") which, according to the plaintiffs, consists almost exclusively of employees of the City of Chicago. The plaintiffs allege that Local 505 has been a voluntary association existing for the purpose of, in part, negotiating for and representing its members in connection with their hours, wages and working conditions as employees of the City of Chicago.

The plaintiffs bring this action as individuals and as representatives of a class consisting of the members of Local 505.

The defendants are William E. Cahill, Reginald Dubois and Quentin J. Goodwin, respectively President and Commissioners of the Chicago Civil Service Commission, and Richard J. Daley, Mayor of the City of Chicago.

The Civil Service Commission of Chicago is responsible for establishing and administering a civil service system for the classification, selection, promotion, and severance of certain types of employees employed by the City of Chicago pursuant to Chapter 24 of the Illinois Revised Statutes § 10-1-1 et seq.

The plaintiffs, in their complaint, allege, inter alia, the following facts:

  1. The State of Illinois, by statute, has established
    a civil service system for the City of Chicago and
    defined the respective rights and obligations of
    the Commission and the employees of the City of
    Chicago.*fn1 The state statute requires that the
    local Civil Service Commission establish rules for
    its governance not inconsistent with the
    statute.*fn2 In general, under the statute,
    positions in the classified civil service subject
    to the jurisdiction of the Commission must be
    filled by an objective and open system of
    examination.*fn3 Pursuant to this system of
    examinations, the local Civil Service Commission is
    required to prepare and

    maintain a register of eligible persons for filling
    vacancies in employment for the City of
    Chicago.*fn4 Vacancies within the Chicago Civil
    Service are to be filled within the service by an
    objective and open system of examination.*fn5 The
    state statute specifically prohibits the filling of
    vacancies in any other manner, except under
    extraordinary circumstances for temporary
    periods.*fn6 Further, the state statute
    specifically prohibits the use of corrupt or
    political influence in securing positions or
    promotions within the civil service system.*fn7

  2. The defendants, jointly and severally, have failed
    and refused to disclose or make available for
    inspection general information and lists of
    employees in the Chicago civil service system. More
    specifically, the defendants have failed and
    refused to make available for inspection the lists,
    names or any information concerning the vacancies,
    appointments or present positions held by
    individuals on temporary appointment. The
    plaintiffs contend that temporary appointments to
    vacancies in the Chicago civil service system,
    instead of providing for the right to such
    vacancies via examinations and eligibility tests,
    subvert the rights of the individual plaintiffs and
    the class which they seek to represent as members
    of the Chicago civil service system. Further,
    unless full disclosure is made by the defendants,
    it is impossible for the plaintiffs individually or
    as representatives of a class, to determine whether
    their rights of promotion and appointment within
    the Chicago civil service system

    are affected and whether they should initiate
    appropriate procedures to secure their rights.

  3. No procedure has been established by the
    defendants by which employees of the City of
    Chicago under the civil service system can process
    grievances or complaints to the commission or
    officials of the City of Chicago. More
    specifically, no grievance procedure exists for the
    purpose of protesting the failure to appoint to a
    vacant position in the said civil service system
    nor is there a procedure to determine that such
    vacancies exist or are being filled by a temporary
    appointment. Neither the Illinois statute, the
    ordinances of the City of Chicago, nor the rules of
    the commission require public disclosure of
    information concerning certified and temporary
    appointees within the civil service system of the
    City of Chicago. The plaintiffs, on information and
    belief, claim that the substantial majority of said
    temporary appointments exceed the 120 limit, and
    are not for the purpose of preventing the stoppage
    of public business or to meet extraordinary
    exigencies. Further, the temporary appointment
    system has been used and is being used for the
    purpose of providing initial employment and
    promotion for political reasons.

  4. The actions of the defendants, individually and
    jointly, are in violation of 42 U.S.C. § 1983, the
    Fifth and Fourteenth Amendments to the Constitution
    of the United States. More specifically, the
    defendants, in refusing to provide information
    concerning temporary appointments within the civil
    service system of the City of Chicago have denied
    the plaintiffs, both named and as a class, the
    effective right to seek redress of grievance, due
    process and equal protection. The plaintiffs have
    been denied equal protection of the laws and
    freedom of speech and assembly by the defendant
    public officials, in that preference for
    appointments to positions within the civil service
    of the City of Chicago have been and are being
    based upon political consideration.

The plaintiffs seek a declaration of their rights, injunctive and equitable relief, plus the cost of maintaining this action.*fn8

The defendants, in support of their motion to dismiss, contend that:

  1. Rights established by state law are not subject to
    a claim under 42 U.S.C. § 1983 or the United States
    Constitution.

  2. There is no violation of the United States
    Constitution or 42 U.S.

    C. § 1983 by officials' refusal to disclose
    information equally to all.

  3. There is no vested or Constitutional right to
    public employment.

  4. Plaintiffs' conclusory allegation of political
    preference, unsupported by facts, will not suffice
    to bring their claim within the purview of
    42 U.S.C. § 1983 or the United States Constitution.

The plaintiffs, in opposition to the instant motion, contend that the complaint adequately states a claim upon which relief can be granted.

It is the opinion of this Court that defendants' motion is meritorious.

I. PLAINTIFFS' RIGHTS EXISTING SOLELY UNDER STATE LAW ARE NOT THE
    PROPER SUBJECT FOR A CIVIL RIGHTS ACTION UNDER
    42 U.S.C. § 1983.

The plaintiffs are seeking relief in this Court for alleged violations of their civil rights as Chicago civil service employees. More specifically, plaintiffs allege that their rights created solely by an Illinois State statute have been violated by the defendants through the defendants' disregard for the applicable state statute.

Title 42 U.S.C. § 1983 was originally enacted as Section 1 of the Anti-Ku Klux Klan Act of 1871, 17 Stat. 13 (1871). This Act was aimed primarily at vindicating constitutional rights which were being abused in the post bellum South. Soon after its enactment, Congress revised this so-called civil rights statute as to protect all federal rights, constitutional or statutory. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). This statute is now codified in 42 U.S.C. § 1983.

It is clear that if the plaintiffs have a right to information concerning vacancies filled by temporary appointees and the right to apply for promotion to such vacancies, these rights are derived solely from the law of Illinois. The plaintiffs rights are not rights secured by the constitution or laws of the United States within the meaning of 42 U.S.C. § 1983. The alleged deprivation of plaintiffs' state created rights is not the proper subject of a claim for relief under 42 U.S.C. § 1983. Dorsey v. N.A.A.C.P., 408 F.2d 1022 (5th Cir. 1969), cert. denied, 396 U.S. 847, 90 S.Ct. 58, 24 L.Ed.2d 97. See also Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Sigler v. Lowrie, 404 F.2d 659 (8th Cir. 1968); Charters v. Shaffer, 181 F.2d 764 (3rd Cir. 1964).

It is well settled that the plaintiffs' alleged right to have the relevant state law strictly obeyed is not a federal right protected by the Civil Rights Act of 1871, 42 U.S.C. § 1983, or the Constitution of the United States. Nationwide Amusements, Inc. v. Nattin, 325 F. Supp. 95 (W.D.La. 1971); Sauls v. Hutto, 304 F. Supp. 124 (E.D.La. 1969); Gentry v. Howard, 288 F. Supp. 495 (E.D.Tenn. 1968); Kelly v. Wyman, 294 F. Supp. 893 (S.D.N Y 1968); Love v. Navarro, 262 F. Supp. 520 (C.D.Cal. 1967); Bradford v. Lefkowitz, 240 F. Supp. 969 (S.D.N.Y. 1965). The non-existence of a federal right in the instant action does not foreclose the plaintiffs from seeking appropriate relief in an Illinois State court, whose duty is to interpret and enforce the laws of Illinois, the source of the plaintiffs' alleged rights.

II. THE PLAINTIFFS' CONCLUSORY ALLEGATIONS UNSUPPORTED BY ANY
    FACTUAL DETAILS ARE INSUFFICIENT TO ALLEGE A CONSTITUTIONAL
    VIOLATION.

It is well settled that an individual, in assuming public employment, retains all the rights and protections otherwise afforded him by the United States Constitution. Orr v. Thorpe, 427 F.2d 1129 (5th Cir. 1970); Pred v. Board of Public Instruction, 415 F.2d 851 (5th Cir. 1969). One of these constitutionally protected rights is that of freedom from arbitrary and unreasonable conduct on the part of the government. The philosophy that public employment is completely privileged and may be predicated on unreasonable conditions has been uniformly rejected. Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L.Ed.2d 629 (1967); Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966) cert. denied, 385 U.S. 1003, 87 S. Ct. 706, 17 L.Ed.2d 542 (1967). To state that a person does not have a constitutional right to government employment is only to say that he must comply with reasonable, lawful and non-discriminatory terms laid down by the proper authorities. Pickering v. Board of Education, 391 U.S. 563, 83 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952).

However, a plaintiff seeking redress from a United States District Court for an alleged constitutional violation by a government employer must sufficiently allege his claim and the putative unconstitutional acts of the government employer.

The plaintiffs, in their complaint, claim that while no state statute, city ordinance or civil service regulation requires public disclosure of information concerning certified and temporary appointees within the civil service system of the City of Chicago, the defendants' refusal to make such information available to them as a group violates the Fifth and Fourteenth Amendments to the Constitution of the United States by effectively denying them the right to seek redress of grievances, due process and equal protection.

Nowhere in the plaintiffs' complaint is it alleged that the information which they seek is made available to others as opposed to them and the class they purport to represent. Since no contention is made of unequal treatment or establishment of any restrictive classification, it is clear that the plaintiffs have failed to demonstrate an unequal protection claim.*fn9 Miller v. Kusper, 445 F.2d 1059 (7th Cir. 1971). Further the plaintiffs have failed to demonstrate that they were deprived of any vested right without procedural due process.*fn10 See Tichon v. Harder, 438 F.2d 1396 (2nd Cir. 1971); Parker v. Board of Education of Prince George's County, 237 F. Supp. 222 (D.C.Md. 1965), aff'd, 348 F.2d 464 (4th Cir. 1965), cert. denied, 382 U.S. 1030, 86 S.Ct. 653, 15 L.Ed.2d 543 (1966); McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir. 1968); Birnbaum v. Trussell, 371 F.2d 672 (2nd Cir. 1966).

The plaintiffs in the last paragraph of their complaint allege that they have been denied equal protection of the law, freedom of speech and assembly in that preference for appointment to positions within the civil service have been and are being based upon political considerations. Such an allegation, though always serious, is not sufficient to state a cause of action. The plaintiffs make this allegation in broad conclusory terms, without setting forth any direct relation to any of the facts alleged previously in the complaint. This allegation is clearly insufficient to state a cause of action under 42 U.S.C. § 1983 or a claim for a violation of the Constitution of the United States. Miller v. Kusper, supra. See also Finley v. Rittenhouse, 416 F.2d 1186 (9th Cir. 1969); Lee v. Wilson, 363 F.2d 824 (9th Cir. 1966); Birnbaum v. Trussell, supra; Stiltner v. Rhay, 322 F.2d 314 (9th Cir. 1965); Stanturf v. Sipes, 335 F.2d 224 (8th Cir. 1964); Huey v. Barloga, 277 F. Supp. 864 (D.C.Ill. 1967); Danner v. Moore, 306 F. Supp. 433 (W.D.Pa. 1969).

Accordingly, it is hereby ordered that the defendants' motion to dismiss is granted.


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