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BROWN v. BRIENEN

November 10, 1982

JOHN BROWN, ET AL., PLAINTIFFS,
v.
STEVE BRIENEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Waldo Ackerman, Chief Judge.

ORDER

I.

On July 12, 1977, the McLean County Board adopted a personnel policy. The personnel policy, under a section titled Compensatory Time Off, states:

  Employees who work more than thirty-seven and
  one-half hours in a given work week or work on a
  county holiday may be granted time off in an
  amount equal to the overtime worked.

Plaintiffs' ex. C. John King was sheriff when the County Board passed this policy. The sheriff's informal records indicate that deputies were not taking their accumulated compensatory time.

In December of 1978, Defendant Brienen became Sheriff of McLean County. He adopted a more formal policy to provide for compensatory time off. He instructed the deputies to keep records of their overtime, and placed restrictions on when the deputies could take compensatory time off. Defendant Brienen established minimum staffing levels for the sheriff's department. Because of the minimum staffing levels and the County Board's unwillingness to fund additional staffing, the sheriff was unable to give all the accumulated compensatory time. Thus, Plaintiffs accumulated large amounts of compensatory time.

Plaintiffs filed a complaint under 42 U.S.C. § 1983, 1985, 1986, alleging a deprivation of property without due process of law and a denial of equal protection of laws. Plaintiffs sought monetary damages, injunctive relief, and attorney fees. This Court, in the first part of a bifurcated trial, held for Plaintiffs on the issue of liability.

Later, on July 2, 1982, relying on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), this Court vacated its order holding Defendants liable. This holding was not based on a changed view that Plaintiffs had not been deprived of a property right, i.e. their compensatory time off, but rather, since the state provides an adequate remedy to Plaintiffs to recover whatever compensatory time off is due them, there has not been a deprivation without due process. Plaintiffs, pursuant to Fed.R. Civ.P. 59, have filed a motion for modification of judgment. They contend that this Court's reliance on Parratt was incorrect. Defendants have filed a brief in opposition to this motion.

Because the Court believes the State of Illinois provides sufficient process to Plaintiffs, it denies the motion for modification of judgment.

II.

This motion presents a question concerning the construction of 42 U.S.C. § 1983, and the due process clause of the Fourteenth Amendment. The Fourteenth Amendment provides, in part:

  [N]or shall any state deprive any person of life,
  liberty, or property, without due process of
  law. . . .

The dispute in this motion revolves around the question of what constitutes due process of law. The construction of this simple sounding phrase is not free from difficulty or dispute. See, e.g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The legislative history of 42 U.S.C. § 1983 has been labeled inconclusive, id. at 193, 81 S.Ct. at 487 (Harlan, J., concurring), and the courts' interpretations are somewhat contradictory.*fn1 Compare Monroe v. Pape, supra, with Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

Plaintiffs assert that the government has deprived them of a property interest. This property interest, however, is in the nature of a contract whether the contract be express or implied. Therefore, the substantive injury in this case was a breach of contract. If the breach had been committed by someone other than a governmental entity, the facts would not raise a constitutional question. Since the County has breached the contract, Plaintiffs assert they were denied due process of law. Plaintiffs could have filed their breach of contract action in an Illinois ...


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