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Bagley v. Blagojevich

October 22, 2008


The opinion of the court was delivered by: Richard Mills, District Judge


Defendant Governor Rod Blagojevich ("Blagojevich") seeks a protective order barring his deposition [d/e 100, 115] and moves for judgment on the pleadings [d/e 125]. Defendant Julie Curry ("Curry"), Blagojevich's former Deputy Chief of Staff, also seeks a protective order limiting the scope of her deposition [d/e 104, 117].

The motions for protective orders are granted. The motion for judgment on the pleadings is converted to a motion for summary judgment and this Court will defer ruling on that motion until the parties have had an opportunity to offer any additional evidence.


Plaintiffs, former captains with the Illinois Department of Corrections ("IDOC"), brought this § 1983 suit against Blagojevich, Curry, and others for retaliation in violation of the First Amendment. Plaintiffs allege that Blagojevich, in conjunction with Curry and others, retaliated against them for attempting to unionize with the Illinois State Employees Association ("ISEA"). Blagojevich was allegedly motivated to take these actions because of the substantial campaign contributions he received from the American Federation of State, County, and Municipal Employees ("AFSCME"), a competitor of the ISEA. The First Amended Complaint highlights two retaliatory actions: (1) the elimination of the captain position, accomplished through Blagojevich's use of a legislative veto, and (2) the stripping of seniority from former captains.

Blagojevich and Curry now seek protection from discovery. First, both argue that because the captain's position was eliminated through a legislative veto, legislative immunity applies. Second, Blagojevich argues that nothing suggests that he possesses any information regarding the former captains' loss of seniority.

Blagojevich also requests judgment on the pleadings on the same grounds.


A. Legislative Immunity for Veto Decision

First, Blagojevich and Curry renew their request for a protective order with respect to the legislative veto eliminating the captain position. See 2BD Assocs. Ltd. P'ship v. County Comm'rs for Queen Anne's County, 896 F. Supp. 528 (D. Md. 1995). "Absolute legislative immunity attaches to all actions taken 'in the sphere of legitimate legislative activity,'" Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)), and extends to non-legislative officials engaging in legislative acts, id. at 55 ("We have recognized that officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions . . . ."), as well as their aides, see, e.g., Rini v. Zwirn, 886 F. Supp. 270, 284 (E.D.N.Y. 1995) (citing Gravel v. United States, 408 U.S. 606, 618 (1972)).

In determining whether an act is "legislative," the Supreme Court has employed a two-step analysis scrutinizing both form and substance. Bogan, 523 U.S. at 55-56. In an earlier opinion, this Court recognized that the first step was met: Blagojevich's veto was legislative in form [d/e 94]. See id. at 55 ("[A] Governor's signing or vetoing of a bill constitutes part of the legislative process."); Risser v. Thompson, 930 F.2d 549, 551(7th Cir. 1991) ("When the governor of a state is exercising his veto power, he is acting in a legislative capacity, and he is therefore entitled to absolute immunity." (citations omitted)).

The second criterion is whether a purportedly legislative act was legislative in substance, i.e., whether it bears "all the hallmarks of traditional legislation." Bogan, 523 U.S. at 55-56. For example, the hiring and firing of a single employee is an administrative act because it lacks "prospective implications that reach well beyond the particular occupant of the office," whereas the elimination of an entire position is legislative because it does carry such implications Id. at 56; see Rateree v. Rockett, 852 F.2d 946, 950-51 (7th Cir. 1988) (total elimination of several positions from a budget constitutes a legislative act meriting protection).

In its last foray into legislative immunity, this Court ultimately refused to grant the protective order based on this substantive prong. The major obstacle to relief was Canary v. Osborn, 211 F.3d 324 (6th Cir. 2000). In that case, the Sixth Circuit found no prospective implications where the position of "assistant principal" was ostensibly eliminated but a new position of "student facilitator" was created to cover the same duties. Id. at 330-31. Plaintiffs argued, and still argue, that Canary controls because a new shift commander position was created to handle the former functions of a captain. Given the dearth of evidence in the record on the positions and the structure of the IDOC, this Court initially denied application of legislative immunity.*fn1

Responding to that prior denial, Defendants have submitted evidence regarding the structure of the IDOC and various affidavits suggesting that the captain position ...

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