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MILLER v. PHELAN

March 24, 1993

EVANS R. MILLER, JANUARY J. BELMONT, GLORIA BRYANT, IRENE BRODIE, WILLIAM SHAW, HAROLD MURPHY, HOWARD WALTON, PRINCETON McKINNEY, ROLAND (RAY) ASHLEY, TYRONE CRIDER, WILLIE JORDAN, G.W. BREWTON, ALBERT SAMPSON and CARL WHITE and on behalf of themselves and all others similarly situated, Plaintiffs,
v.
RICHARD PHELAN, RICHARD A. SIEBEL, ROBERT P. GOOLEY, CARL R. HANSEN, HERBERT SCHUMANN, MARY M. McDONALD and ALLAN C. CARR, all being suburban members of the Cook County Board, THE REGIONAL TRANSPORTATION AUTHORITY, a Municipal Corporation and Pace, The Suburban Bus Division of the REGIONAL TRANSPORTATION AUTHORITY, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 This civil rights action arises out of the appointment of a white man to the board of PACE, the suburban bus division of the Regional Transportation Authority ("RTA"), instead of African American plaintiff Evans R. Miller ("Miller"). Miller attempted to file a class action suit against the RTA, PACE, and the individual members of the Cook County Board responsible for the appointment. *fn1" The RTA and PACE, pursuant to Federal Rule of Civil Procedure 12(c), now move for judgment on the pleadings on Counts I and II. The individual defendants, pursuant to Federal Rule of Civil Procedure 12(b)(6) and on various other grounds, seek to dismiss the plaintiffs' complaint in its entirety. For the reasons set forth below, we grant the RTA and PACE's motion for judgment on the pleadings, and deny in part and grant in part the individual defendants' motion to dismiss the complaint.

 I. Factual Background *fn2"

 The facts of this case are straightforward and largely undisputed. The RTA is responsible for providing public transportation within various Illinois counties. PACE is the Suburban Bus Division of the RTA, and is run by a Service Board comprised of appointed members drawn from six suburban regions. The Regional Transportation Act delineates that when a vacancy arises, suburban members of the Cook County Board will appoint a director, from the appropriate region, to fill it. Ill. Rev. Stat. ch. 111 2/3, P 701.01, et. seq. The only qualification is that applicants must be chief executive officers of municipalities within the region. Id.

 In addition to Miller, plaintiffs include four African American mayors of Illinois municipalities, eligible, under Illinois law, for appointment to the PACE Board, *fn3" and nine African American residents of the community served by the PACE Board.

 When the director for the South Region was convicted of a felony, leaving a vacancy on the Board, Miller, the chief executive officer of a municipality in the region, renewed his outstanding application for the position. Having relayed all relevant information, he was summoned to appear for a meeting of the appointing members of the Cook County Board on August 26, 1993. According to Miller, no notice of the meeting was published.

 After Miller arrived, another candidate appeared. Although Miller had not spoken to any of the Cook County Board members, the other candidate, who was white, was invited into a room with at least some of the appointing members of the Cook County Board for an interview or consultation. *fn4" The white candidate's name was submitted along with Miller's, and the white candidate was appointed.

 Miller, and the other plaintiffs, claim that the appointing members failed to consider or appoint him because of his race. Accordingly, they bring this action under 42 U.S.C. §§ 1981 and 1983 *fn5" and Title VI, along with a pendent state claim for violation of the Illinois Open Meetings Act, Ill. Rev. Stat. ch 102, P 41 et. seq.. In Count I, plaintiffs ask for a declaration that defendants have been, and are, making appointments to the PACE Board in a racially discriminatory fashion, and an injunction against future discriminatory behavior. Count II charges defendants with violating the Illinois Open Meetings Act by failing to publish notice of and take minutes during the appointment meeting.

 III. Discussion

 A. Judgment on the Pleadings

 The RTA and PACE seek judgment on the pleadings with respect to both counts. Once the pleadings are closed, as they are here, *fn6" a motion for judgment on the pleadings is appropriate if the court determines that no material issue of fact remains and one party is entitled to judgment as a matter of law. National Fidelity Life Ins. Co. v. Karaganis, 811 F.2d 357 (7th Cir. 1987). The RTA and PACE argue that, taking all of the plaintiffs allegations as true, there is no outstanding issue of material fact, and they are entitled to judgment as a matter of law on both counts. We find their arguments persuasive, and grant their motion.

 (i) Count I

 The RTA and PACE argue that "it is plain from the face of the pleadings that [they] had no involvement in the wrongful actions alleged by the plaintiffs." Def. Brief at p.3. They point out, and plaintiffs do not dispute, that under Illinois law, the RTA and PACE have no authority to appoint members of the PACE Board. Ill. Rev. Stat. ch. 111 2/3, P 703A.02. Instead, the responsibility to fill the vacancy in the South Region lay with the suburban members of the Cook County Board. Id. Given their lack of authority over the appointment process, the two defendants contend that plaintiffs cannot obtain the relief they seek against either the RTA or PACE.

 While plaintiffs do not contest the RTA and PACE's lack of formal authority, they argue that because the RTA and PACE "are part of a single authority that mainins [sic] administrative powers of review over the activities and operation of all divisions within the Authority a reasonable inference can be drawn that defendants bear some responsibility for the alleged misconduct." Def. Brief at p. 6. Such a conclusory contention, unsupported by the pleadings, will not suffice to stay judgment on the pleadings. *fn7" The Act explicitly denies the RTA and PACE authority to control the appointment of Board members, limiting its domain to that of overseeing the Board's activity once appointed. Absent any role for either the RTA or PACE in the appointment process, relief is not available against them, and we grant judgment on the pleadings in their favor. *fn8"

 (ii) Count II

 The RTA and PACE also assert that because plaintiffs fail to allege that they had anything to do with the violation of the Open Meetings Act, we should grant them judgment on the pleadings with respect to Count II. We agree. Neither the RTA nor PACE called the meeting. Under the statute, then, they had no obligation to post notice of the meeting or to ensure that minutes be ...


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