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February 21, 1996


Appeal from the Circuit Court of Lake County. No. 91-MR-579. Honorable John W. Rapp, Jr., Judge, Presiding.

Released for Publication March 22, 1996. Counsel Amended February 23, 1996.

The Honorable Justice Bowman delivered the opinion of the court: McLAREN, P.j., and Thomas, J., concur.

The opinion of the court was delivered by: Bowman

The Honorable Justice BOWMAN delivered the opinion of the court:

Plaintiff, Carl Willecke, was employed as a probation officer from January 11, 1991, until his termination on June 11, 1991. Plaintiff sued the above-named defendants, seeking reinstatement and back pay. The trial court entered an order dismissing the original complaint. This court reversed that order and remanded the case for further proceedings. ( Willecke v. Bingham (2d Dist. October 29, 1993), 662 N.E.2d 122, 214 Ill. Dec. 768, (Willecke I) (unpublished order under Supreme Court Rule 23).) On remand, plaintiff filed an amended complaint. The trial court dismissed all claims against all defendants other than Chief Judge Charles F. Scott and granted Judge Scott judgment on the pleadings (see 735 ILCS 5/2-615(e) (West 1992)). Plaintiff appeals, arguing that the pleadings raise factual issues as to whether plaintiff's termination violated due process or the Probation and Probation Officers Act (Act)(730 ILCS 110/0.01 et seq. (West 1992)).

The individual defendants in this case are Judge Scott, who was Chief Judge of the Nineteenth Judicial Circuit before and during plaintiff's employment, and three administrative officers: Robert Bingham, Deputy Administrator, Chief of Court Services; Michael Mortensen, Deputy Administrator, Chief of Administrative Services; and Robert Zastany, Court Administrator for the Circuit Court of the Nineteenth Judicial Circuit (collectively the administrators).

Plaintiff's complaint for mandamus in Willecke I alleged the following facts. On January 16, 1991, Judge Scott signed a written order appointing plaintiff to serve as a probation officer "until further order of the court." A copy of the order is attached to the complaint, the text of which is not in dispute. According to plaintiff's complaint, plaintiff complied with all the conditions of his employment. However, "the defendants and/or their subordinate employees, other than the Chief Judge " (emphasis added), terminated plaintiff. Plaintiff alleged that his discharge was unlawful because: (1) contrary to the order appointing him, no order of the court authorized his discharge; (2) the administrators' termination of him was an improper exercise of authority which section 13 of the Act (730 ILCS 110/13 (West 1992)) reserves to the Chief Judge; and (3) he did not receive written notice or a hearing as required by due process. The trial court dismissed the complaint, holding that it did not state a cause of action. The court first reasoned that, under Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, 130 Ill. Dec. 455, 537 N.E.2d 784, Judge Scott, as the chief circuit judge, was plaintiff's employer; therefore, plaintiff had no cause of action against Lake County or its employees. Furthermore, plaintiff could not recover in mandamus because his complaint did not allege that he had a clear right to the position of probation officer.

In reversing the dismissal, this court held that section 13 of the Act does not authorize a county's chief probation officer to discharge a probation officer who was appointed by the chief judge rather than by the chief probation officer pursuant to authority delegated him by the chief judge. (Willecke I, No. 92-0810, slip op. at 7.) This court concluded that, because plaintiff's complaint sufficiently alleged that he had been discharged by the administrators in violation of the original order of appointment, it adequately stated a cause of action for mandamus and damages. Recognizing that the complaint was premised on the allegation that the administrators exceeded their authority in firing plaintiff, we added that "whether Chief Judge Scott ratified the defendant-administrators' termination of plaintiff and whether Scott had delegated power to hire or fire, or even himself terminated plaintiff, are affirmative matters not properly raised in connection with a motion attacking the sufficiency of the complaint." Willecke I, No. 92-0810, slip op. at 12.

Plaintiff filed a three-count amended complaint. Only counts I and II are involved here. Count I alleged that the defendants other than Judge Scott terminated plaintiff and that their conduct was unlawful because: (1) it usurped the power that the Act granted to the chief circuit judge; (2) there was no order of court as required by the order appointing plaintiff; and (3) it violated procedural due process. Count II alleged that the termination without due process violated Federal civil rights law.

The administrators' answer, which addressed only count I, alleged that Judge Scott, not the administrators, made the decision to terminate plaintiff. They also alleged that when plaintiff was terminated, he was serving only as a "probationary" probation officer. In his verified answer, Judge Scott admitted that plaintiff was discharged on June 11, 1991. He also admitted that there was no written order terminating plaintiff, but he stated that he gave the oral order authorizing the discharge.

After the defendants filed their answers, plaintiff moved to amend his complaint by striking any allegations that the improper termination was carried out by the defendants "other than [Judge Scott]." Plaintiff explained that the amendment was needed because the pleadings presented "new" matters. According to plaintiff, he had not known before that Judge Scott was involved in plaintiff's termination, and he had never been advised that he was appointed as a "probationary" probation officer. The trial court granted plaintiff's leave to amend his complaint.

Plaintiff also filed a reply to the defendants' answers. He alleged the following. At no time before or during his appointment did Judge Scott or anyone else involved in the process inform plaintiff that he was being hired as a probationary employee. After plaintiff was hired on January 16, 1991, he received no communication, written or oral, from Judge Scott regarding his employment status. Moreover, despite plaintiff's discovery requests, no defendant had produced any written order creating the position of "probationary" probation officer or conditioning plaintiff's continued employment on the successful completion of a probationary period.

Plaintiff's reply alleged further that the administrators actually terminated him and that there was no documentation that Judge Scott authorized them to do so. Attached to plaintiff's reply was a copy of Robert Bingham's June 11, 1991, intraoffice memorandum regarding plaintiff's termination. According to the memo, on the afternoon of June 11, 1991, Bingham and Michael Mortensen met with plaintiff in Bingham's office. Bingham informed plaintiff that he was being terminated as a probation officer. Bingham did not further explain the decision and plaintiff did not respond.

Plaintiff asserted further that Chief Judge Scott did not comply with the terms of his own order appointing plaintiff. Also, according to plaintiff, Judge Scott was required to comply with any applicable employment rules and regulations that were adopted as administrative orders and, if no such orders existed, plaintiff was ...

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