The opinion of the court was delivered by: Jeanne E. Scott, United States District Judge
Diane Ford (Ford) filed this lawsuit against Illinois Governor Rod R. Blagojevich over his action in firing her from the Illinois Industrial Commission. She claims that when he fired her from her position as a Commissioner of the Illinois Industrial Commission, he deprived her of her constitutional right to property in that job without due process of law because he fired her without prior notice to her and an opportunity for her to respond to the charges at a hearing. She also claims that Governor Blagojevich violated her constitutional right to liberty because when he fired her, he issued a press release which injured her reputation and good name. She seeks monetary damages against Governor Blagojevich personally and also seeks declaratory and injunctive relief against him in his official capacity.
Ford also filed a Motion for Preliminary Injunction based on the alleged denial of her property interest in the job as Commissioner. She asks the Court to enjoin Governor Blagojevich, in his official capacity, from removing her as a member of the Illinois Industrial Commission and from replacing her on that Commission.
The Court held an evidentiary hearing on April 28, 2003, on the Motion for Preliminary Injunction. Based on the evidence presented at the hearing, the Court now denies the Motion for Preliminary Injunction. Ford was never properly appointed to the Illinois Industrial Commission because former Governor George Ryan attempted to fill one vacancy on the Commission by naming two people to it in a fashion contrary to Illinois law. Since Ford has not demonstrated a likelihood of proving that she was lawfully appointed a Commissioner in the first instance, then she does not have a property interest in the job to which the constitutional protections apply. Accordingly, her claim for preliminary injunctive relief fails.
In 2002, Ford served as chief legal counsel to former Illinois Governor George Ryan. She testified that Governor Ryan filed paperwork in August 2002, appointing her a Commissioner of the Illinois Industrial Commission.*fn1 She stated that the Illinois General Assembly was not then in session; she was later confirmed by the Illinois Senate in December 2002, for a term starting January 1, 2003. She indicated that hers was an interim appointment, to fill a vacancy in someone else's term, which could last until January 2005.
The Commission consists of seven members appointed by the Governor, with the consent of the Illinois Senate. 820 ILCS § 305/13. Two members must be representative of the employing class; two members must be representative of the employee class; and three members must be citizens not identifiable with either class. Id. No more than four members of the Commission may be of the same political party. Id.*fn2 Ford was to serve as a public member — not identifiable with either the employing class or the employee class.
Ford began performing duties as a Commissioner on January 1, 2003. As a Commissioner Ford participated in panels which heard appeals of arbitrator's decisions of worker's compensation claims. Each of two panels hears approximately 500 cases a year. Ford prepared opinions in one-third of the cases heard by her panel. Transcript of hearing, p. 15 (Trans.). Ford also was responsible for conducting review calls in Mt. Vernon and Collinsville, in her territorial assignment covering Southern Illinois. Ford, like all other Commissioners, also conducted review calls in Chicago. A review call is one in which an individual would come before a Commissioner and seek to enforce either a settlement contract or an order that had not been enforced, or ask for penalties or attorney fees. Ford testified that some issues at a review call may be decided by an individual Commissioner; others are decided by the full Commission. Ford stated that she also had monthly review calls in Chicago, hearing approximately 25 cases per review call. She had quarterly review calls in Collinsville and Mt. Vernon where she heard approximately 35 cases per quarter. Trans. pp 10-12.
On April 14, 2003, Ford received a phone call from Dennis Ruth, Chairman of the Commission, who told her he had a letter from Governor Blagojevich firing her. He then read the letter to her; she received the letter on April 15, 2003. The letter stated: "I am writing to notify you that, effective immediately, I am removing you from the Industrial Commission for incompetence, neglect of duty or malfeasance in office, pursuant to the constitutional powers vested in me as Governor of the State of Illinois." Pl. Exh. A. Ford testified that she received no other direct communication from Governor Blagojevich concerning her removal. Ford stated that she received no evidence of the basis for her removal and no hearing or opportunity to respond to any charges prior to being removed from office. The only other information she received about her removal came from a press release she saw posted on the state website which was dated April 14, 2003, and headlined, "Blagojevich fires Ryan administration official for scheming to lock top-level state employees into jobs." Pl. Ex. B. The press release referred to Ford's alleged role in certain other employment transactions of others that are described below.
Since her termination on April 14, 2003, Ford has not had access to her office to perform the duties of a Commissioner. She has been unable to complete opinions which she had been assigned to draft. She has been unable to review opinions circulated by members of the panel on which she sat. Trans. p. 14-15, 51.
The defense called Chairman Ruth to testify. He has general supervisory authority over all day-to-day affairs of the Commission, which include arbitration, personnel, assignment of cases, and any type of administrative matters involving the affairs of the Commission. Trans. p. 30. He is also one of the public members of the Commission, not representing either the employer class or the employee class. Trans. p 31. Ruth testified that he was called to the Governor's office on April 14, 2003, and told that the Governor was removing Ford as a Commissioner; Ruth was told to deliver the letter to that effect to Ford. Trans. p. 34. He stated that he immediately faxed the letter to her home and then called her and read the letter to her. Trans. p. 35-36. She indicated to him that she would sue the Governor.
Thereafter, Ruth reviewed Ford's appointment papers and those of two others (Paul Rink and Robert Madigan) who preceded Ford in that seat on the Commission. He learned the following:
On June 27, 2001, Governor Ryan appointed Robert Madigan as a Commissioner. Madigan filled the position formerly held by Mike Weaver. The letter of nomination Governor Ryan sent to Secretary of State Jesse White, with the subject "Temporary Appointment of Robert A. Madigan as a member to the Industrial Commission" stated:
Effective July 2, 2001, and upon filing the Oath of
Office with the Secretary of State, I have made the
temporary appointment of the following person as a
member, who shall execute the powers and discharge the
duties vested by law in the Industrial Commission
until the permanent appointment can be made:
NAME SALARY EXPIRATION DATE POSITION FORMERLY HELD BY
Robert A. $101,790.00 1/17/2005 Mike Weaver
Subject to confirmation, upon receipt of the Oath of
Office, please issue the Commission.
Def. Ex. 1, p. 2. Madigan signed the oath of office on June 25, 2001. On November 7, 2001, Madigan's nomination was transmitted to the Senate, and on November 14, 2001, his nomination was confirmed by the Senate.
On July 3, 2002, Governor Ryan nominated Paul Rink as a Commissioner. Governor Ryan sent a letter to Illinois Secretary of State Jesse White, also dated July 3, 2002, with the subject: "Temporary Appointment of ...