of its Department of Revenue comply with the tax laws.
In his response to Defendants' motion for summary judgment,
Plaintiff asserts that the state has waived the defense of
sovereign immunity in this case. In support of this assertion,
Plaintiff makes a convoluted argument that by accepting tax
information from the federal government, the State of Illinois
has impliedly agreed that its use of that information will be
in accordance with federal law. The Plaintiff then concludes
that because state officials became responsible for adhering
to federal law, the state has waived its immunity from suit
for misuse of tax information. In effect, Plaintiff argues
that acceptance of the federal benefits constitutes the
knowing waiver of the doctrine of sovereign immunity. In
support of this argument, Plaintiff cites Benson v. Allphin,
786 F.2d 268 (7th Cir. 1986).
Benson provides meager support for this argument. The brief
discussion of sovereign immunity in the Benson opinion merely
states that a state statute allowing indemnification of state
officials is insufficient to bring the eleventh amendment into
play. Plaintiff has failed to cite any specific state statute
wherein the General Assembly has specifically waived the
doctrine of sovereign immunity in this situation. In the
absence of such a specific waiver, we will not presume that the
state waives its right to claim the bar of sovereign immunity.
Therefore, as an additional ground for granting summary
judgment to the state defendants, we find that to the extent
the state defendants have been sued in their official
capacities the doctrine of sovereign immunity bars Plaintiff's
claim for damages for misuse of the tax information provided by
the federal government.
Immunity for the state defendants in this case is also
supported by the common law doctrine of "public official
immunity." Under this doctrine, the officials are immune from
personal liability for the performance of governmental duties.
See Christensen v. City of Bloomington, 147 Ill. App.3d 702,
101 Ill.Dec. 77, 498 N.E.2d 259 (4th Dist. 1986). The state
defendants were clearly acting in a governmental role when they
investigated Plaintiff's tax filings and discharged him for
failing to file his state tax returns. Thus, they are immune
from liability for negligent acts of commission or omission.
Therefore, we will grant summary judgment to the state
Defendants on Counts III-IV of Plaintiff's second amended
IV — Section 1983 Claims Against Federal Agent
Counts V-VI of Plaintiff's second amended complaint purport
to bring a cause of action pursuant to 42 U.S.C. § 1983 against
Ira Loeb for the disclosure of the confidential tax information
and Plaintiff's subsequent discharge from the Illinois
Department of Revenue. Section 1983 provides that "every person
who, under color of any statute, ordinance, regulation, custom,
or usage, of any state or territory or the District of
Columbia. . . ." Mr. Loeb was an agent of the federal
government and was acting as such within the scope of his
authority when he illegally disclosed the confidential tax
information to the Illinois Department of Revenue. Therefore,
Mr. Loeb was not acting under color of state law and thus an
action pursuant to section 1983 will not lie against him
individually. See Stonecipher v. Bray, 653 F.2d 398 (9th Cir.
1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d
297 (1982); Anderson v. Luther, 521 F. Supp. 91 (N.D.Ill. 1981).
Thus, Defendant Ira Loeb will be granted summary judgment on
Counts V-VI of Plaintiff's second amended complaint.
Mr. Loeb is also named as a Defendant in Counts VII-VIII.
These counts are also brought pursuant to 42 U.S.C. § 1983.
However, in these counts it is alleged that Mr. Loeb conspired
with the state actors to deprive Mr. Smith of his
constitutional rights. When a non-state actor (which includes a
federal agent) conspires with state officials to deprive an
individual of his constitutional rights, an action under
section 1983 will lie against that non-state actor. See
Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987); Telegraph
Savings & Loan
Assoc. v. Federal Savings & Loan Ins. Corp., 564 F. Supp. 862
Ira Loeb argues that the defense of qualified immunity
should apply to Plaintiff's allegations that his
constitutional and civil rights were violated. The principle
of qualified immunity is based on the policy of protecting
officials who are required to exercise their discretion and
the related public interest in encouraging the vigorous
exercise of official authority. See Butz v. Economou,
438 U.S. 478, 506, 98 S.Ct. 2894, 2910, 57 L.Ed.2d 895 (1977) (federal
officials); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40
L.Ed.2d 90 (1974) (state officials).
The threshold an official must meet to invoke the defense of
qualified immunity was set down in Harlow v. Fitzgerald,
457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1981). In Harlow, the
We therefore hold that government officials
performing discretionary functions, generally are
shielded from liability for civil damages insofar
as their conduct does not violate clearly
established statutory or constitutional rights of
which a reasonable person would have known.
Id. at 818, 102 S.Ct. at 2738. In the case at bar, the
statutory and constitutional rights which Defendants allegedly
violated were clearly established and a reasonable person would
have known of them. Our prior opinion in the related case of
Smith v. United States,