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October 24, 1984


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


The Grove School ("School") and its Executive Director Robert Matson ("Matson")*fn1 charge Guardianship and Advocacy Commission of the State of Illinois ("Commission") and its employees Elizabeth McKee ("McKee"), Mary C. Gibb ("Gibb"), Evelyn Engler ("Engler"), Ruth Durkin ("Durkin") and Hector E. Palacious ("Palacious")*fn2 violated Grove's First and Fourteenth Amendment rights*fn3 during a GAC investigation of alleged violations by Grove of state laws for treatment and education of handicapped children. Those are advanced under 42 U.S.C. § 1983 ("Section 1983"). Grove also asserts pendent common-law libel and trade libel claims against GAC.

GAC invokes Fed.R.Civ.P. 12(b)(6) to challenge Grove's Complaint on a multiplicity of grounds. It attacks the sufficiency of the First and Fourteenth Amendment allegations generally and also asserts the following specific flaws:

    1. Commission is not a "person" for Section 1983
    2. Under the Eleventh Amendment no action for
  monetary damages may be brought against Commission or
  its employees sued in their official capacities.
    3. Federal courts lack authority to compel state
  officials to conform their conduct to state law. That
  bars the pendent claims.
    4. Commission is a quasi-judicial board, so its
  officers enjoy absolute judicial immunity.
    5. Allegations against Engler, Gibb and Palacious
  are insufficient to establish their direct involvement
  in a deprivation of Grove's rights.
    6. Gibb and Engler may not be held liable for
  damages on respondeat superior grounds.

Grove of course seeks to repel all of GAC's onslaughts.*fn4

Because GAC's motions to dismiss various defendants may be treated more readily in the context of at least one valid substantive claim, this opinion will first deal with Grove's First Amendment assertions, then turn to the objections by specific defendants, then return to the other claims in the Complaint. For the reasons stated in this opinion, GAC's motions to dismiss (1) Commission as a defendant and (2) the Fourteenth Amendment due process claims against all individual defendants are granted. Its motions to dismiss (1) the individual defendants generally, (2) First Amendment claims and (3) the pendent claims are denied.


School is a residential, medical and educational facility for the multiply handicapped and developmentally disabled. It was founded by Virginia Matson in 1958 and is now run by her son Robert.

Commission is an executive agency of the State of Illinois created to protect the rights of the mentally ill and developmentally disabled. Among its three divisions is the Human Rights Authority ("Authority"), which operates through regional boards that investigate complaints alleging violations of such persons' rights. Those regional boards are empowered to conduct hearings, subpoena witnesses and documents, release findings to the public, recommend that other agencies take punitive or remedial action, and propose legislation for the protection of the handicapped. Ill. Rev.Stat. ch. 91 1/2, ¶ 714-728.

Engler is Authority's Director. McKee is Chairperson, Gibb is Vice-Chairperson and Durkin is a Board member of Authority Region 2 North (the region in which the School is located). Palacious is an attorney employed by Commission.

Matson and his mother Virginia have run School according to a philosophy that conflicts with the prevailing philosophy of Commission and other Illinois agencies as to the proper way to handle the education of the multiply handicapped and developmentally disabled. Both Matsons and School have advocated their own philosophy and criticized Commission practices.

To punish Matson and School for such criticisms and nonconformist philosophy, GAC instituted a harassment campaign under the guise of an investigation of charges GAC knew were false.*fn6 GAC made numerous visits to School's campus to question students and employees, and it also made burdensome document requests, all of which disrupted School's operation.

On July 6, 1983 GAC held a public "hearing" at which it released a number of false charges against School and Matson, including charges of understaffing, improper distribution of medication and permitting sexual abuse of residents. "Hearing" is really a euphemism for what actually took place, for GAC had refused Grove's several requests for advance notice of the nature of the charges, nor did GAC give Grove any opportunity to object or respond at the "hearing" or to attach a response to the written report GAC distributed to the press. Since that time GAC has continued its investigation and has recommended that other Illinois agencies and the Illinois legislature take action against Grove, including cutting off School's funding, removing Matson as Executive Director and revoking School's and Matson's licenses.

First Amendment Claims

School's and Matson's factual allegations (though not their conclusory allegations of law) advance two possible bases for asserting violation of their First Amendment rights. One surely states a valid claim: the charge that GAC's actions have been motivated by a desire to punish Grove for criticizing GAC and for advocating Grove's own philosophy of treatment of the multiply handicapped and developmentally disabled.

One major purpose of the First Amendment was to protect free discussion of governmental affairs. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838, 98 S.Ct. 1535, 1541, 56 L.Ed.2d 1 (1978). It is axiomatic that government may not attempt to inhibit criticism of public policies or officials by punishing those who express critical views, at least unless the expression actually hinders the functioning of the state. Hostrop v. Board of Junior College District No. 515, 471 F.2d 488, 492 (7th Cir. 1972) and authorities there cited. On Grove's allegations, GAC's actions are an impermissible attempt to inhibit Grove from exercising the constitutional right to criticize ...

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