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Nelson Velazquez v. Office of the Illinois Secretary of State

December 14, 2011


The opinion of the court was delivered by: Judge James B. Zagel


Before me is Plaintiff's motion for partial summary judgment on Count II and III of his complaint, and Defendants' cross-motion for summary judgment on all counts. I am ordering further briefing from both parties on whether Count One is barred by 28 U.S.C. § 1738. On Count II, I find that Plantiff's procedural due process rights were violated but order further briefing on whether Defendants are entitled to qualified immunity. Both Plaintiff's motion and Defendants' cross motion for summary judgment on Count III are denied.


Plaintiff Nelson Velazquez began work as a police officer at the Illinois Secretary of State ("ISOS") Department of Police on September 27, 1990. Over the next eighteen years Velazquez was steadily promoted through the ranks, reaching the position of Investigator-Lieutenant on January 31, 2007. On September 25, 2007, the Director of the ISOS, Defendant Brad Demuzio, telephoned Plaintiff and advised him that he (Demuzio) and Defendant Mike Pippin, who at the time was Captain of the ISOS, wanted to meet with Plaintiff the following day in Springfield to discuss improvements to a vehicle inspection program that Plaintiff worked on. The proposed meeting was a pretense. The true reason why Defendants wanted to meet with Plaintiff was to further an ongoing investigation of fraudulent record keeping by ISOS officers, of which Plaintiff had become a subject. Specifically, Plaintiff was suspected of inflating his hours on time sheets submitted under the Speeding Traffic Accident Reduction Program ("STAR"), a federally funded hire-back program. Demuzio, Pippin, and Defendant Steven Nash, an investigator with the Illinois Inspector General's office, wanted Plaintiff to come down to Springfield so that he could be questioned by state and federal law enforcement officials and placed on leave for the remainder of the investigation.

On September 26, 2007, Plaintiff drove from Chicago to Springfield, arriving at the Department of Police command center around 10:00 am. The precise details of what happened next are disputed but basically Defendant Pippin met Plaintiff somewhere on the command center grounds, relieved Plaintiff of his firearm and keys to his Secretary of State vehicle, and drove Plaintiff to the nearby Office of the Inspector General (OIG). When Plaintiff arrived at the OIG he was escorted to a conference room where two individuals introduced as FBI agents were waiting to interview him. Plaintiff was told to be seated and the conference room door was closed behind him. The FBI agents interviewed Plaintiff for roughly 45 minutes. None of the individual Defendants were present during Plaintiff's interview with the FBI. Plaintiff alleges that the FBI agents failed to issue him Miranda warnings, did not advise him of his right to speak with an attorney, and made several statements suggesting Plaintiff was going to go to jail.*fn1

After the FBI's interview Defendants Pippin and Nash entered the conference room to interview Plaintiff. The parties dispute whether Plaintiff was advised of his Garrity rights or told that his interview with Defendants was administrative rather than criminal. Defendants did not inform Plaintiff that he was free to leave the interview at any time. The substance of the interview is also largely disputed. Defendants claim they presented Plaintiff with documents that revealed discrepancies in his paperwork and offered him an opportunity to respond, at which time Plaintiff stated any errors were attributable solely to "sloppy paperwork." Plaintiff denies that he was shown any documents or other evidence against him, but he acknowledges he said something to the effect of any errors being attributable to "sloppy paperwork."

Perhaps most importantly, the parties dispute the general tone of the interview. Indeed, even the word "interview" is contentious here because Plaintiff describes it more as a criminal interrogation. The precise facts of this confrontation between Plaintiff and Defendants Pippin and Nash are critical; they go to the heart of Count Three for unlawful seizure and significantly color Plaintiff's procedural due process claim. The unresolved issues surrounding the nature of the interview and the way in which they affect the disposition of Plaintiff's claims will be discussed in greater detail below.

At the close of the interview, Pippin handed Plaintiff a letter dated September 26, 2007, from the Secretary of State Director of Personnel, Defendant Stephan J. Roth. The letter advised Plaintiff that he was "being placed on a Leave of Absence with pay effective at the end of business on September 26, 2007, pending the results of an internal investigation." The letter further advised that the leave status would be maintained "for a maximum of 90 days or until such time as the internal investigation has been completed and reviewed by the Department of Police." The letter did not provide notice of the reason for the investigation, nor did it describe any ways in which Plaintiff could obtain information about the investigation or have an opportunity to be heard. In fact, the letter stated that during the leave of absence Plaintiff was "not permitted on Secretary of State grounds except for personal business." The sole recourse the letter provided Plaintiff was a right to "speak with a representative from the Department of Personnel's Employee Benefits and Records Division or Payroll."

For the next two months, Plaintiff remained on a leave of absence with pay. Defendants had no further communication with Plaintiff until November 19, 2007, when Defendant Roth sent Plaintiff a letter advising him that as of November 16, 2007, Plaintiff's status was changed to leave of absence without pay. Like the September 26th letter, this letter did not include any written notice of the subject matter of the investigation, nor did it explain to Plaintiff how he might obtain a hearing. Plaintiff did not hear anything from Defendants for the next five months. Then, on April 17, 2008, Defendant Roth sent a letter to Plaintiff advising him that he was being suspended pending discharge. This letter provided the first written notice of the charges filed against Plaintiff in relation to his discharge and advised him that he had the opportunity to present a written rebuttal. Finally, on April 30, 2008, Defendant Roth sent a letter to Plaintiff advising him that his employment with the Secretary of State had been terminated based on the charges laid out in the April 17 letter, and that he had the right to appeal his discharge to the Secretary of State Merit Commission.

Plaintiff exercised his right to appeal and on October 6 and 7, 2008, following extensive discovery between the parties, hearings were held before the Secretary of State Merit Commission. Plaintiff testified and also questioned witnesses, including Defendants Nash, Pippin and Demuzio. On December 17, 2008, the Commission upheld Plaintiff's discharge. Plaintiff then filed a complaint for administrative review in the Circuit Court of Cook County. On June 3, 2009, before the Circuit Court of Cook County had conducted its administrative review, Plaintiff filed the complaint in this case. On January 7, 2010, the Circuit Court of Cook County held a hearing and confirmed the Merit Commission's ruling.


Before I reach the merits of Plaintiff's claims, there are several procedural issues to address. Defendants claim that Plaintiff's lawsuit is "barred by the Rooker-Feldman doctrine and/or res judicata and/or collateral estoppel because they are simply a rehashing of claims already decided by the Merit Commission and the Circuit Court of Cook County." I discuss each issue in the order in which Defendants raise them.

A. Rooker-Feldman Doctrine

The Rooker-Feldman doctrine stands for the basic principle that federal district courts may not exercise appellate jurisdiction over state-court judgments. The doctrine is limited to "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Co. v. Saudi Basic Industries Co., 544 U.S. 280, 284 (2005). It is not applicable in this case because there was no state-court judgment at the time this lawsuit was filed. Thus, Plaintiff could not possibly be "inviting" this court to review and reject a state-court ruling. See Exxon Mobil, 544 U.S. at 294. Although the Merit Commission had reached a determination, Rooker-Feldman does not apply to determinations made by state administrative agencies. Verizon Md. Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 644, n. 3 (2002). The fact that the state court had not issued a judgment at the time Plaintiff filed this lawsuit distinguishes this case from Manley v. City of Chicago, 236 F.3d 392 (7th Cir. 2001).

B. Res Judicata

Res judicata is an equitable principle that refers to "the preclusive effect of a judgment in foreclosing litigation of matters that were or could have been raised in an earlier suit." LaSalle Nat'l Bank of Chicago v. DuPage, 856 F.2d 925, 930 n. 2 (7th Cir. 1988). The essential elements of res judicata are (1) an identity of parties or their privies; (2) an identity of causes of action in the earlier and in the later suit; and (3) a final judgment on the merits in the earlier suit. Id. at 931. Under 28 U.S.C. § 1738, federal courts are statutorily required to give state-court judgments the same res judicataeffect they would have in the courts of the state in which they were issued. 28 U.S.C. § 1738. In Illinois, res judicata "applies to every question relevant to and falling within the purview of the original action, in respect to matters of both claim or grounds of recovery, and defense, which could have been presented by the exercise of due diligence." Hughey v. Indus. Comm'n, 394 N.E.2d 1164, 1166 (1979) (emphasis in original).

While unreviewed state administrative proceedings do not necessarily have preclusive effect on claims brought in federal court, see e.g. University of Tennessee v. Elliott, 478 U.S. 788 (1986), once those proceedings are affirmed by a state-court judgment, 28 U.S.C. § 1738 is triggered. See Kremer v. Chemical Constr. Corp., 456 U.S. 461, 476 (1982). This, in turn, leads to a two-prong inquiry: "(1) whether the law of the state in which the prior ...

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