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VICKERY v. JONES

March 7, 1995

GARY VICKERY, Plaintiff,
v.
GENELLE JONES, WILLIAM PEARMAN AND KIRK BROWN, Defendants.



The opinion of the court was delivered by: JAMES L. FOREMAN

 FOREMAN, District Judge:

 Before the Court are: (1) defendants' motion to modify the Court's Order of January 19, 1994, to preserve documents and other materials (Document No. 74); (2) defendants' motion for interlocutory appeal (Document No. 83); (3) plaintiff's motion for leave to amend his complaint (Document No. 85); (4) plaintiff's motion for leave to withdraw his motion for leave to amend (Document No. 95); and (5) defendants' motion for judgment on the pleadings (Document No. 99).

 As a preliminary matter, the Court notes that plaintiff's motion for leave to amend (Document No. 85) is styled "Motion To File Second Amended Complaint." However, plaintiff's Second Amended Complaint is already part of the record. Document No. 97. Therefore, the Court construes the motion for leave to amend as a request for leave to file a third amended complaint. As the defendants have no objection to the plaintiff withdrawing the motion to amend his complaint (Document No 96, at 1, 4), the Court GRANTS plaintiff's motion to withdraw his motion for leave to amend his complaint (Document No. 95). Therefore, the plaintiff's second amended complaint (Document No. 97) is before the Court for purposes of considering defendants' motion for judgment on the pleadings. This action was filed pursuant to 42 U.S.C. §§ 1983 and 1988 and, therefore, the Court has jurisdiction under 28 U.S.C. § 1343.

 I. Background

 Plaintiff's complaint alleges that the defendants violated his First and Fourteenth Amendment rights when, on the basis of plaintiff's political affiliation, they failed to rehire him as a temporary highway maintainer. Plaintiff also contends that the defendants' use of the six-month contract for the position of highway maintainer violates the Illinois Personnel Code, 20 Ill. Comp. Stat. 415/1-415/19c.1, and is a scheme to circumvent the Supreme Court's decision in Rutan v. Republican Party of Illinois, 497 U.S. 62, 111 L. Ed. 2d 52, 110 S. Ct. 2729 (1990). Document No. 7 at 5. The defendants have conceded that they considered applicants' political affiliation when hiring temporary highway maintainers. Document No. 98 at 9-12.

 In a prior Order of July 6, 1994, Vickery v. Jones, 856 F. Supp. 1313 (S.D. Ill. 1994), (Document No. 80, "July 6 Order") this Court granted in part and denied in part the defendants' motion to dismiss plaintiff's complaint. The Court granted class certification to include those persons denied employment as temporary and permanent highway maintainers because of their political affiliation. Id. at 1330. In addition, the Court ruled that the Supreme Court's decision in Rutan applies to temporary state employees. However, the Court ruled out the possibility of a monetary damages award when it granted the state officials qualified immunity; therefore, only equitable remedies are still available to the plaintiff class. *fn1" Vickery, 856 F. Supp. at 1327, Document No. 80 at 28.

 The Court also granted a motion to dismiss by Saline County Republican Central Committee and its chairman on the ground that their First Amendment right to political association shielded them from liability under § 1983. Id. at 1319-20, Document No. 80 at 8. Plaintiff's subsequent motion to reconsider that ruling was denied. Document No. 117.

 Since the July 6 Order, defendants have taken action to end the policy of considering political affiliation in the selection of temporary employees. Governor Edgar's chief counsel issued a new policy to all agency directors and their chief legal counsel, prohibiting the hiring or firing of temporary employees based on political affiliation. Answer of the State Officials to the Second Amended Complaint, Document No. 98, Ex. A. The manager of the Bureau of Personnel for the Department of Central Management Services issued a memorandum to all agency personnel managers stating that "temporary appointments, emergency appointments, trainee student worker appointments and other employment of a temporary nature, regardless of its duration, cannot be based on political affiliation or support unless such appointments are to carry out duties and responsibilities of a Rutan exempt position." Id., Ex. B.

 IDOT also established new procedures to fill vacant temporary highway maintainer positions, including the posting of available temporary highway maintainer positions at more than 100 IDOT facilities around the state. Id., Ex. C. Additionally, an application and evaluation process was established that does not consider political affiliation. Id., Ex. F. As a result of these efforts, defendants claim that the violations the Court addressed in its July 6 Order have all been corrected, therefore, the case is moot (Document No. 98 at 17) and the Eleventh Amendment bars any further claim for relief because there is no ongoing violation of federal law. Document No. 98, Document No. 99 at 2, 3.

 The defendants have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). A motion for judgment on the pleadings is reviewed under the same standard as a motion to dismiss under Rule 12. Craigs, Inc. v. General Elec. Capital Corp., 12 F.3d 686 (7th Cir. 1993). Under Rule 12(c), the Court's review is limited to the pleadings. Republic Steel Corp. v. Pennsylvania Eng'g Corp., 785 F.2d 174, 177-78 (7th Cir. 1986). Viewing the facts in the light most favorable to the non-moving party, the Court will not grant the motion "unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief." Id. (quoting Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989)). For purposes of defendants' motion, all well-pleaded allegations of the complaint must be taken as true. Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir. 1984).

 II. State Law Claim

 The supplemental state law claim in Count II of plaintiff's complaint alleges that the defendants used six-month contracts for temporary highway maintainers to avoid the requirements of the Illinois Personnel Code, 20 Ill. Comp. Stat. 415/1-415/19c.1. In essence, this is a claim that state officials have initiated a state policy that violates state law. Assertion of supplemental jurisdiction over such a claim by a federal court is barred by the Eleventh Amendment. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). Plaintiff concedes that defendants' motion should be granted with respect to Count II. Document No. 108 at I. Accordingly, defendants' motion for judgment on the pleadings with respect to Count II of plaintiff's second amended complaint is GRANTED.

 III. Mootness

 The defendants raise the affirmative defense that "all claims for injunctive and declaratory relief on Count I are moot . . . ." Document No. 98 at 17. *fn2" The issue of whether there is still a case or controversy under Article III of the Constitution arises as a result of the defendants' claim that they have ceased using political affiliation as a criterion in the hiring of temporary highway maintainers. Specifically, the defendants contend that the measures taken by the State Officials since the Court's July 6 Order "unquestionably put the State's personnel policies in full compliance with federal law. As a result, there is no jurisdictional basis for the injunctive or declaratory relief requested in Count I." Document No. 100 at 7. *fn3"

 However, voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of that practice. United States v. W.T. Grant Co., 345 U.S. 629, 632, 97 L. Ed. 1303, 73 S. Ct. 894 (1953); see also City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 71 L. Ed. 2d 152, 102 S. Ct. 1070 (1982); United States v. Concentrated Phosphate Export Ass'n, Inc., 393 U.S. 199, 203, 21 L. Ed. 2d 344, 89 S. Ct. 361 (1968); Kikimura v. Turner, 28 F.3d 592, 597 (7th Cir. 1994), petition for cert. filed, No. 94-6785 (October 17, 1994); Magnuson v. City of Hickory Hills, 933 F.2d 562, 565 (7th Cir. 1991). Voluntary cessation of the challenged activity "is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power." City of Mesquite, 455 U.S. at 289.

 The defendants' burden of proving mootness "is a heavy one." Kikumura, 28 F.3d at 597 (quoting W.T. Grant Co., 345 U.S. at 633). If voluntary cessation were treated as mooting a case, any government official being sued "could cease a challenged practice to thwart the lawsuit, and then return to old tricks once the coast is clear." Magnuson, 933 F.2d at 565. "The case is not moot unless there is reasonable assurance that the questioned conduct will not be resumed." Watkins v. Blinzinger, 789 F.2d 474, 483, cert. denied, sub nom. Diamond v. Blinzinger, 481 U.S. ...


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