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BROWN v. PERKINS

February 17, 1989

LAWRENCE BROWN, Plaintiff,
v.
VENIDA PERKINS, Defendant


Brian Barnett Duff, United States District Judge.


The opinion of the court was delivered by: DUFF

BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 In a general election held in April 1987, plaintiff Lawrence Brown was elected to a four-year term as trustee for the Sixth District of the Village of Maywood. On May 1, 1987 he took office, expecting to serve until April 30, 1991.

 The next year, following a petition drive by the citizens of Maywood, a referendum was placed on the March 15, 1988 primary ballot.

 
Shall the manner of selection and terms of all Village Trustees of the Village of Maywood be reduced from four to two years with all such trustees standing for election at the April, 1989 Consolidated Election and every two years thereafter?

 The referendum passed.

 As the Local Election Official of the Village of Maywood, defendant Venida Perkins is required by Illinois law to certify to the County Clerk of Cook County the offices for which elections shall be held at the April, 1989 general election. Plaintiff has brought this action under 42 U.S.C. § 1983 to prevent her from certifying that the office of Sixth District trustee shall be placed on the ballot. Defendant has moved to dismiss on the grounds that the complaint fails to state a claim upon which relief could be granted.

 DISCUSSION

 In ruling on this motion, this court is cognizant of the fact that it may dismiss the complaint only if plaintiff could prove no set of facts consistent with his allegations which would entitle him to relief. That mandate is particularly important here because the facts and legal theories alleged in the complaint are sparse, and the discussions of the parties only tangentially relevant to them.

 In the pleadings, plaintiff states essentially only those facts set forth above. He then alleges that, by shortening his term of office from four years to two, the referendum (and defendant's anticipated certification of his office as up for election in April 1989) deprives him of property without due process of law.

 Defendant begins her motion to dismiss by arguing that plaintiff has not even alleged a constitutional deprivation, because he is attacking only what the defendant will do in the future yet plaintiff still has state avenues available to prevent her from doing so. But that is an overly constricted view of the pleadings. The complaint can be read as alleging that the referendum, which both sides agree purports to shorten plaintiff's terms, violated his constitutional rights. Because defendant's certification of its results would not be a "random and unauthorized act," plaintiff has no obligation to exhaust state law remedies before bringing a due process claim in this court. Wilson v. Civil Town of Clayton, Indiana, 839 F.2d 375, 378-79 (7th Cir. 1988).

 Defendant next argues that plaintiff has no property interest in his position as village trustee. Although she does not bother to cite any cases in support of this argument, she could have. In Taylor v. Beckham, 178 U.S. 548, 576-77, 44 L. Ed. 1187, 20 S. Ct. 890 (1900), and Snowden v. Hughes, 321 U.S. 1, 7, 88 L. Ed. 497, 64 S. Ct. 397 (1944), the Supreme Court held that an elected political official does not have a property right in his office, and accordingly that the due process clause of the Fourteenth Amendment affords him no protection when a state (or municipality) seeks to remove him from the position. See also Egan v. City of Aurora, 365 U.S. 514, 5 L. Ed. 2d 741, 81 S. Ct. 684 (1961). But see Taylor v. Beckham, 178 U.S. at 605-06 (Harlan, J., dissenting) (arguing that there is a property interest in an elected political office).

 The concept of property encompassed by the Fourteenth Amendment's due process clause, however, has undergone a dramatic expansion over the past two decades, see generally Patterson v. Portch, 853 F.2d 1399, 1404-05 (7th Cir. 1988), and it is now established that government employees not terminable "at will" have a property interest in their jobs which may only be terminated with due process of law. E.g., Cleveland Board of Education v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). From this new approach to property rights, lower courts in recent years have assumed, without citing the earlier Supreme Court cases, that "an elected official who is entitled to hold an office under state law has a property interest in his office which can be taken from him only by procedures meeting the requirements of due process." Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir. 1979); Gordon v. Leatherman, 450 F.2d 562, 565 (5th Cir. 1971).

 Yet, assuming that an elected government official is entitled to constitutionally adequate procedural safeguards, the plaintiff here received them. He was not fired from his four-year job by a state (or municipal) legislature or court, he was voted out by the people of Maywood, who determined by referendum that his term of office should be only two years. A general election, with prior registration and public participation, certainly provides pre-termination notice and an opportunity to be heard, ...


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