The opinion of the court was delivered by: Richard Mills, U.S. District Judge
This case is before the Court on Defendant Governor Rod Blagojevich's motion to dismiss Counts VI and VII of the Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). Pending also is a motion to dismiss Counts I-V and Count VIII filed by Defendants Jacob Miller, Timothy Martin, Michael R. Stout, Scott Doubet.
I. MOTION TO DISMISS COUNTS VI AND VII
Governor Rod Blagojevich, a Defendant in this case, notes first that Counts I through V of Plaintiff Ann Libri's complaint essentially cut and paste the allegations and claims from a federal complaint filed by other individuals two years ago in Whitlow v. Martin, (C.D. Ill. No. 04-3211). In this case, the Plaintiff has added two new counts naming the Governor: Count VI, a putative class action for invasion of privacy; and Count VII seeking mandamus.
The Governor claims that Count VII should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) because the Plaintiff lacks standing and, therefore, the Court lacks subject matter jurisdiction. Count VI should be dismissed pursuant to Rule 12(b)(1) because the Defendants enjoy sovereign immunity from the tort claim. The Governor alleges that Counts VI and VII should be dismissed under Federal Rule of Civil Procedure 12(b)(6) for the additional reason that they fail to state claims for which relief can be granted.
The Governor asserts that Count VII should be dismissed pursuant to Rule 12(b)(6) because the Plaintiff has failed to state a claim for which relief can be granted, and pursuant to Rule 12(b)(1) because Plaintiff lacks standing to pursue her claim. The Governor claims that Count VII alleges that he arranged for attorney Mary Lee Leahy to enter into a contract with eighteen Departments of the State of Illinois that required each agency to contribute between $1,200 and $2,400 to pay for Ms. Leahy's services. The Plaintiff further alleges that in securing the funds to pay Ms. Leahy, the Directors in charge of the Departments certified that her services "were for the use of" their respective Departments and complied with the contract. However, Ms. Leahy allegedly only provided services for the Illinois Department of Transportation ("IDOT").
Section 9.06 of the Illinois Finance Act states, "To execute knowingly and intentionally a false certification under Section 9.03 or 9.04 of this Act shall result in removal from office if done by an officer or discharge if done by an employee." 39 ILCS 105/9-06. The Governor notes that Count VII seeks "Declaratory Judgment and Mandamus," wherein the Plaintiff asks the Court to declare that the Directors' certifications were knowingly and intentionally false and to compel the Governor to remove the Directors responsible for the certifications. The Governor contends that the Plaintiff has alleged nothing against him which could permit an award of relief.
The Governor acknowledges that Illinois courts have previously granted mandamus against the chief executive. See Rock v. Thompson, 85 Ill.2d 410, 411, 426 N.E.2d 891 (1981) (upholding authority to hear mandamus action seeking to enforce constitutional ministerial directive "to convene the Illinois Senate to elect from its membership a President of the Senate as presiding officer"); see also Jorgenson v. Blagojevich, 211 Ill.2d 286, 311, 811 N.E.2d 652 (2004) (entering mandamus to prevent unconstitutional freeze of judicial salaries). The Governor asserts this case does not raise the same separation of powers concerns. Because terminating department heads cannot be characterized as a mere ministerial function or as a matter impinging on the powers of other branches of government, mandamus is not an available remedy and Count VII must be dismissed.
The Plaintiff notes the complaint alleges that the execution of the certifications was done with knowledge that no work had been performed by Ms. Leahy for each of the Departments, and alleges that each of the warrants was knowingly and intentionally false. The Plaintiff asserts that when these allegations are taken as true, they set forth a cause of action for both declaratory relief and mandamus.
The Plaintiff claims that the language of the Finance Act is mandatory; certification in violation of the Act "shall result in removal from office." There is no discretion. The Plaintiff contends, therefore, that either the directors are removed from office by operation of law, and by declaration of this court, or the Governor must remove them from office. The Plaintiff asserts that mandamus, while an extreme remedy, is appropriate when there is an intentional violation of the Finance Act.
The Governor notes that no Director has admitted to violating the Finance Act. These are merely allegations with respect to the Director's intent and state of mind. The Governor claims that Count VII is not appropriate for mandamus. The removal of state officers serving at ...