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Fritz v. Johnston

March 18, 2004


The opinion of the court was delivered by: Justice Freeman


Docket No. 96325-Agenda 11-January 2004.

The primary issue in this case may be stated concisely: Does the doctrine of sovereign immunity deprive circuit courts of jurisdiction over claims that state employees engaged in civil conspiracy in the furtherance of which unlawful acts were committed? We answer this question in the negative; sovereign immunity does not apply. However, plaintiff failed to state a cause of action for civil conspiracy with respect to two defendants. Accordingly, we affirm the circuit court's judgment in part and reverse in part.


The case comes before us on appeal from the dismissal of plaintiff's third amended complaint (complaint). The following factual background is derived solely from the allegations contained in that document.

Plaintiff Harold Fritz is a decorated veteran of the United States Army, who retired with a rank of Lieutenant-Colonel. Prior to 1999, he was serving the State of Illinois as the deputy director of the Illinois Department of Veterans Affairs (Department). He was one of three finalists for the position of Director of Veterans Affairs when a new director was appointed in January 1999, but that post went instead to defendant John Johnston, and defendant continued in his position as deputy director. Defendant Betty Bergstrom was at all pertinent times employed as Johnston's administrative assistant. Defendants Elizabeth Gaffney and Diane Ford were also employed by the state, as an assistant legislative officer and as the Governor's personal legal counsel, respectively.

In July 1999, defendant Johnston contacted the Illinois State Police to request that the police commence an investigation of plaintiff. Johnston asserted that plaintiff had threatened his "physical integrity" as well as threatening "potential damage to his personal home." Johnston informed the police that plaintiff had also threatened Bergstrom with physical violence. Plaintiff alleged that these charges were false and that Johnston and Bergstrom knew them to be false at the time they were made. No charges or action were ever brought against plaintiff as a result of the police investigation, which concluded in December 1999.

At some point after Johnston contacted the State Police, but before the "official commencement" of the State Police investigation, Illinois State Representative Ron Stephens asked plaintiff to resign his post. Representative Stephens allegedly informed plaintiff that the Governor wished to appoint a different person to plaintiff's post as deputy director, and wished to secure his voluntary retirement. Representative Stephens also allegedly informed plaintiff that the State Police investigation Johnston had set into motion would commence unless he resigned. Plaintiff alleged that Representative Stephens had delivered this message to plaintiff at the behest of defendants Gaffney and Ford. Plaintiff did not resign.

The first four counts of plaintiff's complaint were separate allegations of civil conspiracy against each of the above four defendants. Plaintiff contended that defendants had conspired to force him out of his job, and alleged that he endured mental anguish and "derogation of his name and reputation" as a result of their actions. In counts V and VI, plaintiff alleged that through their actions defendants Gaffney and Johnston had committed "intentional interference with employment and economic gains derivable therefrom."

Defendants moved to dismiss pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1998)). Defendants argued that the circuit court was without jurisdiction to hear plaintiff's claims because, under the doctrine of sovereign immunity, plaintiff's action was in reality one against the State of Illinois. Defendants also argued that they were protected by public official immunity. Finally, defendants contended that plaintiff failed to state a claim for which relief could be granted, both on the conspiracy counts and on the counts alleging intentional interference with an employment relationship.

The circuit court of Sangamon County granted defendants' motion to dismiss on each of the grounds raised. The court ruled that plaintiff's claims were barred by both the doctrine of sovereign immunity and the doctrine of public official immunity. The court also found that plaintiff had both failed to allege all elements of conspiracy-because he had failed to allege an "underlying tort or crime"-and failed to allege all elements of intentional interference with an employment relationship-because he failed to allege any damages. Finally, the court noted that plaintiff had requested punitive damages without first seeking leave of court, and dismissed the complaint in its entirety.

A divided appellate court affirmed the dismissal. No. 4-02-0033 (unpublished under Supreme Court Rule 23). The appellate majority found it necessary only to reach the issue of sovereign immunity, and affirmed the circuit court on this ground. The court explained that even though plaintiff did not bring suit against the state in name, plaintiff's suit was in fact a claim against the state because it had the potential to "control the State's actions" by "limit[ing a state] employee's ability to engage in lawful activity on behalf of the state." The majority noted that at the time Johnston filed his complaint with the State Police, there existed an administrative order which provided that "[a]ll incidents involving State employees which *** involve a violation of the Illinois Criminal Code *** shall be reported to the [Illinois State Police] without exception." See Administrative Order No. 1, 19 Ill. Reg. 1019, 1020 (1995). Accordingly, the majority reasoned, Johnston's report to the State Police constituted lawful activity on behalf of the state. The majority also concluded that since it was legal for the Governor to request a political appointee to resign, Gaffney and Ford's actions were also legal activity on behalf of the state.

Presiding Justice Myerscough agreed with the majority that the circuit court properly dismissed counts V and VI, alleging intentional interference with an employment relationship. However, she parted company with the majority with respect to the conspiracy claims. Presiding Justice Myerscough noted that filing a false report with the State Police is a misdemeanor crime, and reasoned that because plaintiff alleged that Johnston knew the reports were false at the time he filed them, those reports could not be considered "lawful activity on behalf of the state," regardless of the administrative order to which the majority ...

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