The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
The plaintiffs in this case are various individuals who have been convicted of past felonies and have sought executive clemency under the Illinois Constitution and 730 ILCS § 5/13-3-13. Plaintiffs have brought suit in this court against Illinois Governor Rod Blagojevich (the "Governor") seeking injunctive relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Specifically, the plaintiffs seek an injunction requiring the Governor to act within a reasonable time on the outstanding recommendations of the Illinois Prisoner Review Board ("PRB").
Furthermore, in their amended complaint, the plaintiffs also allege that some of their petitions for clemency were denied by the Governor in retaliation for filing this suit, and they request an injunction requiring the Governor to disclose the reasons for, and processes employed in, the denial of their petitions for clemency. Currently before this court is the Governor's motion to dismiss the case, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted. For the reasons set forth below, the Governor's motion to dismiss is denied in part and granted in part.
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "the complaint need only contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Equal Employment Opportunity Comm'n v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Fed. R. Civ. P. 8(a)(2)). The complaint "must describe the claim in sufficient detail to give the defendant 'fair notice of what the . claim is and the grounds upon which it rests' . [and] its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'; if they do not, the plaintiff pleads itself out of court." Concentra, 496 F.3d at 776 (quoting Bell Atl. Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1964, 1973 n.14 (2007)).
B. Section 5/3-3-13 Creates a Protectable Liberty Interest
The Illinois Constitution of 1970 invests the Governor with the power to "grant reprieves, commutations and pardons, after conviction, for all offenses on such terms as he thinks proper." Ill. Const. Art V, § 12. Moreover, "the manner of applying [for clemency] may be regulated by law." Id. The process of applying for executive clemency under the Illinois Constitution is controlled by 730 ILCS § 5/3-3-13 ("§ 5/3-3-13") and Section 1610.180 of the Illinois Administrative Code ("§ 1610.180"). Briefly, written and signed petitions from individuals seeking executive clemency are reviewed by the PRB. The PRB then determines, by majority vote, what will be its recommendations to the Governor, who is then notified via a written report without publicity. Ill. Admin. Code tit. 20, § 1610.180 (2007). If a petition is denied by the Governor, the Board may not consider another petition from the same petitioner until a full year has elapsed from the date of denial. 730 ILCS § 5/3-3-13(a-5) (2007). However, none of the administrative procedures enacted by the legislature "shall be construed to limit the power of the Governor under the constitution to grant a reprieve, commutation of sentence, or pardon." 730 ILCS § 5/3-3-13(e) (2007). Thus, whether a governor decides to pardon or deny clemency is entirely discretionary, regardless of the recommendation of the PRB.
The plaintiffs assert that they do not seek a necessarily favorable clemency decision, but seek rather to compel the Governor to make timely decisions on their outstanding clemency petitions. Specifically, plaintiffs cite § 5/3-3-13(d) which states: "The Governor shall decide each application and communicate his decision to the Board which shall notify the petitioner." 730 ILCS § 5/3-3-13(d) (emphasis added). The plaintiffs argue that the mandatory language of the statute (characterized by the use of the imperative verb "shall") creates a liberty interest in a clemency decision being made (either positive or negative) within a reasonable period of time subsequent to the PRB's recommendation. See Kraushaar v. Flannigan, 45 F.3d 1040, 1048 (7th Cir. 1993) (state statutes with a "mandatory character" establish a liberty interest). According to the plaintiffs, a liberty interest thus established is entitled to the procedural protections of the Due Process clause of the Fourteenth Amendment to the United States Constitution. Vitek v. Jones, 445 U.S. 480, 488 (1980) (state statutes may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment).
Such state-created liberties are properly analyzed by this court under a theory of procedural (rather than substantive) due process. Kraushaar, 45 F.3d at 1047. The question before the court, then, is whether § 5/3-3-13 creates a liberty interest that would trigger a constitutional violation if fair procedures were not followed when depriving a plaintiff of that interest. Id. at 1048. As plaintiffs correctly point out, the court should find a liberty interest in a state's statute or regulation only if it employs "language of an unmistakably mandatory character, requiring that certain procedures 'shall,' 'will' or 'must' be employed." Hewitt v. Helms, 459 U.S. 460, 471 (1983). The analysis, however, does not stop at that point: the statute in question must also "contain substantive standards or criteria for decisionmaking as opposed to vague standards that leave the decisionmaker with unfettered discretion."*fn1 Rickard v. Sternes, 44 Fed. Appx. 738, 740 (7th Cir. 2002); Kraushaar, 45 F.3d at 1048; Miller v. Henman, 804 F.2d 421, 427 (7th Cir. 1986). A state therefore creates a protected liberty interest only by placing substantive limitations on official discretion. Olim v. Wakinekona, 461 U.S. 238, 249 (1983).
In this case, the Illinois legislature has placed no restrictions on the Governor's discretion whether to grant or deny an individual's application for clemency. But it has placed, in § 5/3-3-13, an unambiguous restriction on the Governor's putative discretion whether to make any decision at all. The mandatory language of § 5/3-3-13 does not leave the Governor with "vague standards that leave the decisionmaker with unfettered discretion" concerning when a clemency decision is to me made (or, indeed, if one is to be made at all). On the contrary, the statutory language is unequivocal: the Governor "shall decide each application and communicate his decision to the Board which shall notify the petitioner." 730 ILCS § 5/3-3-13(d). The court finds, therefore, that the Illinois legislature has thus created a procedural due process liberty interest in the procedures governing when and how a clemency position is made once the PRB has submitted its report to the Governor.
The Seventh Circuit has "rejected the notion that any and all state ... rules and regulations containing such [mandatory] language automatically create 'legitimate claims of entitlement' triggering the procedural protections of the Due Process Clause." Colon v. Schneider, 899 F.2d 660, 667 (7th Cir. 1990); see also Kraushaar, 45 F.3d at 1048-49; Miller, 804 F.2d at 424 (some statutes and regulations create only guidelines that direct the manner in which state personnel exercise their discretion to perform certain activities). However, the statutory language of § 5/3-3-13 does not create guidelines by which the Governor's ultimate discretionary clemency decision itself is regulated. The discretionary power to grant or deny a clemency petition remains untouched by the statutory language. Nevertheless, the statute explicitly and unequivocally requires that some decision shall be made, and it is therein that the state has created a liberty interest protected by the Due Process clause.
Moreover, although § 5/3-3-13 does not specify a time period in which the Governor must make a decision on clemency petitions following submission of the PRB's recommendation, the necessary implication of the statute's imperative language is that the decision be made within a reasonable period of time. See Agbemaple v. INS, No. 97 C 8547, 1998 WL 292441, at *2 (N.D. Ill. May 18, 1998) (statutory language including "shall" or other mandatory language implies a decision within a reasonable time). Otherwise, the Governor could delay making decisions indefinitely. Such indefinite delays were evidently not contemplated by the drafters of the statute, who also created a protectable liberty interest of petitioners to reapply for clemency, after a year's passage, following a denial of their petition. 730 ILCS § 5/3-3-13(a-5). To permit the Governor to delay clemency decisions indefinitely effectively also infringes this protected right and effectively thwarts the legislature's constitutional right to regulate the process by which pardons are regulated by law. Ill. Const. Art V, § 12
Section 5/3-3-13 creates specific guidelines and criteria that direct the manner in which the Governor exercises his discretion to grant clemency petitions. The Governor's power to grant clemency under the Illinois Constitution remains entirely discretionary and explicitly unfettered by the statute. However, the unequivocal and mandatory language of § 5/3-3-13 requires that the Governor make some decision within a reasonable period of time. Under § 5/3-3-13 the Illinois legislature has created a statutory, specific procedure (and thus a ...