Appeal from the United States District Court for the Northern District of Illinois, Eastern Division -- No. 71 C 2877. Frank J. McGarr, Judge.
Cummings, Pell and Stevens, Circuit Judges.
On July 1, 1971, in accordance with the new Constitution of the State of Illinois which became effective on that date, the office of magistrate ceased to exist. On that date, persons then serving as magistrates were elevated "automatically" to the position of Associate Judge for a four-year term. At a meeting of the judges of the Circuit Court of Cook County, Illinois, in June 1971, a majority of the judges casting ballots had voted to remove plaintiff Irwin Field from his position as magistrate, effective June 30th. They had before them the recommendation of a judicial committee assigned the responsibility of evaluating the qualifications of the circuit's magistrates. The circuit judges had acted on the basis of a directive of the Supreme Court of Illinois, which was concerned that magistrates unsuited to be judges might assume that role on July 1st. Because Field was terminated, he was not eligible for the July 1st promotion.*fn1
In an action filed December 1, 1972, based upon 42 U.S.C. § 1983, former magistrate Field alleged that the judges of the Circuit Court of Cook County had violated his rights under the Fourteenth Amendment. The complaint contended, inter alia, that (1) the judges, in effectuating plaintiff's removal, had failed to grant him a "fair hearing," notice of a hearing, a statement of reasons why he should not be retained, an adequate opportunity to respond to "attacks on his reputation," and an opportunity to confront his detractors; and (2) the judges' vote which found Field unqualified to become an Associate Judge and which terminated his appointment as magistrate was void because the majority who had voted against Field did not equal a majority of the total number of circuit judges in Cook County. Field sought a preliminary injunction and a permanent injunction restraining the judges from filling all the vacancies for Associate Judge and an order directing the judges to reinstate Field to the judiciary and award him back pay. Plaintiff also sought a declaration that his removal had violated the due process clause of the Fourteenth Amendment.
After denying Field's motion for a preliminary injunction and dismissing as to all the defendants except Chief Judge Boyle,*fn2 the district court on September 5, 1972, issued a memorandum opinion in which it stated that Field had not been given a "due process hearing." However, the court concluded that there was a dispute as to whether Field had waived his right to such a hearing and the court therefore ordered a hearing on this waiver issue. In the same memorandum opinion, the court also announced that it would abstain from deciding whether the defendant had violated Illinois law by acting on a vote cast by fewer than a majority of all the circuit's judges.
At the conclusion of the hearing ordered, the court found that Field had waived his right to a due process hearing. The court subsequently entered summary judgment for defendant Boyle.*fn3 Field appeals.
Field first sat as a magistrate in January 1966 and thereafter was reappointed annually to that position by the judges of the Circuit Court of Cook County. Section 12, Article VI of the "old" (1870) Illinois Constitution had authorized the judges of each circuit to appoint, "subject to law," magistrates "at their pleasure." Local rule 0.8 of the Circuit Court of Cook County provided that
". . . The Circuit Judges . . . shall appoint Magistrates to serve at their pleasure. . . . Magistrates shall be appointed for a term of one year commencing the first day of January each year and may be re-appointed for like terms during good behavior. . . ."
Field asserts that he, as a public employee, had a right prior to his dismissal to a hearing that satisfied the Fourteenth Amendment's due process requirements. Whether plaintiff was entitled to procedural due process protection depends upon whether he meets the criteria set out in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), and Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972), the Supreme Court decisions most closely on point. Roth-Sindermann concerned the procedural rights of public school teachers whom their boards had decided not to rehire.*fn4 Field maintains that he doubly qualified under those cases: First, he had a legitimate claim of entitlement to be in office beyond the date he was dismissed, that is, he had a "property interest" in the position of magistrates or an "expectancy of employment" under state law (court rule 0.8), at least until his 1971 one-year term was completed; second, the judicial committee's determination that Field was unqualified to be an associate judge was an attack on his integrity and therefore should have triggered a "due process hearing" at which plaintiff would have the opportunity to clear his name.*fn5
Judge McGarr in his memorandum opinion of September 5, 1972, concluded that the termination of Field as magistrate did not amount to a deprivation of Field's "liberty." The circuit's judges, the court said, had not stated the reasons for their unfavorable evaluation of plaintiff's qualifications. However, relying on the fact that Field had been dismissed midway through his appointment under local rule 0.8, Judge McGarr held that the termination was a deprivation of a property interest, stating "termination at that point in time required a due process hearing."
We disagree that Field had a property interest or expectancy of employment which could not -- consonant with the federal Constitution -- be divested without Field first being afforded some kind of due process hearing. Plaintiff's most recent appointment was effective January 1971. The specially convened constitutional convention adopted on September 3, 1970, the new Illinois Constitution, which contained no provision for the office of magistrate. On December 15, 1970, a majority of those citizens voting ratified the proposed Constitution.
Under the prior Constitution, the magistrates were to be appointed by the circuit judges "at their pleasure." Ordinarily, this phrase would connote to us that the appointment being at the pleasure of the appointing officials was by implicit terms not viable beyond the term during which the pleasure continued to be viable. Here the pleasure ceased to exist as of June 30, 1971. If we should assume arguendo that notwithstanding lack of constitutional limitation on removal power, the circuit judges of a particular circuit could legally postpone their power of removal to the end of each year when the lack of pleasure would be reflected in the failure to reappoint, we still would find no basis for saying that the power to appoint for a one year term continued to exist on January 1, 1971 after the new Constitution had been formally adopted. While the transition schedule recognized that the position of magistrate would continue to exist for a limited purpose, that existence continued only until the effective date of the new Constitution which was one half a year away. We therefore are unable to ...