United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter come before the Court on (1) plaintiff Lance Murphy's motion to disqualify counsel (Doc. 37) and (2) defendants City of East St. Louis, Illinois ("the City"); The Board of Fire and Police Commissioners of East St. Louis ("the Board"); Verge Riley; Jesse David; Levoy Perry; Johnny Scott; Larry Hampton, Sr.; Lenzie Stewart; and Aubrey Keller's (collectively "Defendants") motion for summary judgment (Doc. 38). For the following reasons, the Court denies both motions.
Murphy's claim arises from his termination from the East St. Louis Police Department ("the Department"). Murphy, a lieutenant in the Department, attended a December 30, 2010, East St. Louis city council meeting where council members discussed layoffs. During the meeting, there was a confrontation between council member Roy Mosley and Murphy. Mosley alleged Murphy threatened him during that confrontation.
On January 5, 2011, Keller, Assistant Police of Chief, informed Murphy she was going to give him a letter of reprimand as a result of Mosley's allegations. The next day, on January 6, 2011, Murphy attempted to attend another council meeting, but Keller ordered Murphy not to attend. Murphy did not enter the council chambers that night, but Defendants allege there was a confrontation between Murphy and his superiors. Thereafter, Murphy was suspended and ordered to appear at the Department on January 14, 2011. At that time, Murphy was informed he had been suspended from January 7, 2011, to January 13, 2011, based on Mosley's allegations. The Department gave Murphy a statement of charges and suspended him pending a termination hearing for allegedly failing to obey an order on January 6, 2011. The department held a hearing on Murphy's termination. Murphy and his counsel ultimately left the hearing expressing that they would not participate in an unfair hearing. As such, Murphy presented no evidence at the hearing, and the Board ultimately terminated Murphy.
On August 30, 2011, Murphy filed a complaint for administrative review in the Circuit Court of St. Clair County, Illinois (Case No. 11-MR-225) alleging the decision of the Board to terminate him violated his "rights to substantive and procedural due process and equal protection of the law" among other violations. Shortly thereafter, Defendants filed a motion to dismiss the state court complaint arguing that Murphy had waived his right to appeal because he left the administrative hearing and chose not present any evidence. On June 18, 2012, the Circuit Court granted the motion to dismiss without stating its reasons. Murphy appealed. See Murphy v. City of E. St. Louis, et al., 2013 IL App (5th) 120313-U (Ill.App.Ct. 2013). The state appellate court reversed the lower court's order and remanded the case for further proceedings noting that "[t]here is nothing in the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2010)) or the case law that suggests a party must present evidence at an adjudicatory hearing in order to seek administrative review of the decision rendered as a result of that hearing" (Doc. 38-7). Thereafter, Murphy voluntarily dismissed his state court case.
Murphy filed his three-count complaint in this Court on January 4, 2013, pursuant to 42 U.S.C. § 1983 alleging the following constitutional violations: (1) violation of his procedural and substantive due process rights for Defendants' failure to provide him with a fair and impartial termination hearing; (2) violation of his first amendment right to free speech, against all defendants except Hampton, for terminating him based upon his speech concerning the diminution of police officers; and (3) conspiracy to violate his constitutional rights against all defendants except Hampton for conspiring together to interfere with Murphy's procedural due process right to a fair and impartial hearing and his first amendment right for terminating him based on his protected speech. The Court now will consider the parties' motions in turn.
2. Motion for Disqualification
Murphy asks the Court to disqualify Defendants' counsel, Heidi Eckert, arguing that she has become a "necessary witness" to this litigation. Specifically, Murphy alleges that during his deposition on November 21, 2013, Eckert relayed the content of an email she had received indicating the City wanted Murphy to return to work. At a status conference with Magistrate Judge Williams on November 26, 2013, Eckert again stated that the City wanted to rehire Murphy and sought out a settlement conference. However, at Parks' deposition on December 12, 2013, he denied that he wanted Murphy to return to work for the City. Murphy alleges Eckert is now a necessary witness to the disputed fact of the City's intention to rehire Murphy because Parks' deposition statements contradict his statements to his attorney. Murphy argues these statements could be introduced against the City as a statement against interest indicating whether Murphy was wrongfully terminated.
Courts enjoy broad discretion in determining whether disqualification is required. Schloetter v. Railoc of Ind., Inc., 546 F.2d 706, 710 (7th Cir. 1986). Where it is necessary that counsel testify as a witness, disqualification is appropriate. Greater Rockford Energy and Tech. Corp. v. Shell Oil Co. 777 F.Supp. 690, 693 (C.D. Ill. 1991). Motions to disqualify, however, "should be viewed with extreme caution because they can be used as a means of harassment." Id. Further, the Court must be mindful that disqualification denies a party the counsel of her choice and subsequent new counsel may have difficultly mastering "the nuance of the legal and factual matters" at a later stage of litigation. Greater Rockford Energy, 777 F.Supp. at 693-94 (C.D. Ill. 1991) (citing Freeman, 689 F.2d at 719).
Pursuant to Rule 3.7 of the Illinois Rules of Professional Conduct:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services ...