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Colaizzi v. Walker

decided: September 14, 1976.

SAMUEL COLAIZZI AND SAMUEL INDOVINA, PLAINTIFFS-APPELLANTS,
v.
DANIEL WALKER, GOVERNOR, STATE OF ILLINOIS, DONALD PAGE MOORE, DIRECTOR, OFFICE OF SPECIAL INVESTIGATIONS, STATE OF ILLINOIS, LAURI STAPLES, THEODORE MAROS, RAMON SCULLY AND ZENITH ASSOCIATES, INC., AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illiniois, Eastern Division, No. 74-C-2130 William J. Lynch, Judge.

Fairchild, Chief Judge, Swygert, Circuit Judge, and Steckler, District Judge.*fn*

Author: Fairchild

Fairchild, Chief Judge.

The principal issue for decision in this case is whether defendant Walker's assertions in a press release, that plaintiffs abused their official positions in attempting to force a company under their supervision to drop criminal actions against an employee, deprived plaintiffs of a liberty interest protected by the Fourteenth Amendment. Plaintiffs Samuel Colaizzi and Samuel Indovina appeal from orders of the district court dismissing their claims against several of the defendants, and granting judgment on the pleadings to the rest of the defendants.

At the time of the incident that gave rise to this case, Colaizzi was Superintendent of the Division of Private Employment Agencies of the Illinois Department of Labor, and Indovina was an investigator for that Division. The allegations in the complaint, which we must take to be true on this appeal, state that on or about July 16, 1974, defendant Walker, Governor of Illinois, discharged them from their positions, and simultaneously issued or caused to be issued certain press releases.*fn1 The complaint alleges the charges in these releases were made without notice or opportunity to be heard.

The complaint alleges jurisdiction based on 28 U.S.C. §§ 1331 and 1343; 42 U.S.C. §§ 1981, 1983, and 1985; and the Fourteenth Amendment. Count I seeks damages and injunctive relief against Governor Walker; Donald Page Moore, Director of the Office of Special Investigations of the State of Illinois; and Lauri Staples, an employee of the Office of Special Investigations. Count II is a pendent state law claim against these three defendants for defamation. Count III alleges a conspiracy among defendants Theodore Maros and Ramon Scully, employees of Zenith Associates, Inc., an Illinois private employment agency, and defendants Walker, Moore and Staples. Finally, Count IV of the complaint sets out a pendent state law claim for defamation against Maros, Scully, and Zenith. Defendants are alleged to have known the charges were false.

The district court dismissed the complaint as it related to defendants Walker, Moore and Staples (Counts I, II and III) for failure to state a claim, and granted judgment on the pleadings to defendants Zenith Associates, Maros, and Scully (on Counts III and IV).

We agree that the complaint stated no cause of action based on 42 U.S.C. §§ 1981 and 1985. No racial or otherwise class-based invidiously discriminatory animus is alleged. See Runyon v. McCrary, 427 U.S. 160, 96 S. Ct. 2586, 49 L. Ed. 2d 415, 44 U.S.L.W. 5034 (1976) (§ 1981); Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971) (§ 1985). Appellant's boiler-plate pleading fails to state a claim under these statutes.

The most serious issue for resolution under Count I is whether Colaizzi and Indovina were deprived of a constitutionally protected liberty interest when Governor Walker issued the press releases without giving them notice or opportunity to be heard. It is important at this juncture to note that plaintiffs do not allege a property interest in their jobs such that mere termination without more would have required procedural due process safeguards. Compare Board of Regents v. Roth, 408 U.S. 564, 576-78, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972) with Perry v. Sindermann, 408 U.S. 593, 599-603, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). Nor do plaintiffs allege that they were discharged as a penalty for the exercise of any constitutional right. The issue is whether Governor Walker's published allegations under the circumstances of this case deprived plaintiffs of a liberty interest without due process.

In Wisconsin v. Constantineau, 400 U.S. 433, 437, 27 L. Ed. 2d 515, 91 S. Ct. 507 (1971), the Supreme Court stated:

Yet, certainly where the State attaches 'a badge of infamy' to the citizen, due process comes into play. [Citation omitted.] '[The] right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.' [Citation omitted.]

Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.

The charges contained in the press release allegedly issued by Governor Walker charged sufficiently reprehensible conduct so as to impune the good name and reputation of Colaizzi and Indovina, and thus appear to fall squarely within the language of Constantineau. Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972) provides further guidance on the issue. In Roth, 408 U.S. at 573, the Court cited Constantineau, and said that had the decision not to rehire Roth been grounded on charges of immorality or dishonesty, notice and an opportunity to be heard would have been required.

Based on Constantineau and Roth, and on our own decision in Adams v. Walker, 492 F.2d 1003, 1007-1008 (7th Cir. 1974), we have no difficulty in holding that the district court erred in this case in ...


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