Colaizzi v. Walker

• Decision Date: 08 April 1987
• Docket Number: 86-1764,Nos. 86-1175,s. 86-1175
• Citation: 812 F.2d 304
• Parties: Samuel COLAIZZI and Samuel Indovina, Plaintiffs-Appellees, v. Daniel WALKER, (former) Governor of Illinois, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 304

812 F.2d 304

Samuel COLAIZZI and Samuel Indovina, Plaintiffs-Appellees, v. Daniel WALKER, (former) Governor of Illinois, Defendant-Appellant.

Nos. 86-1175, 86-1764.

United States Court of Appeals Seventh Circuit.

Argued Oct. 31, 1986.

Decided Feb. 12, 1987.

Rehearing and Rehearing En Banc Denied April 8, 1987.

Barry Sullivan, Jenner & Block, Chicago, Ill., for defendant-appellant.

Wayne B. Giampietro, Dejong, Poltrock & Giampietro, Chicago, Ill., for plaintiffs-appellees.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and PELL, Senior Circuit Judge.

POSNER, Circuit Judge.

This antique case (now more than 12 years old), here for the third time, requires us to decide whether Daniel Walker, who was Governor of Illinois in 1974, violated a "clearly established" constitutional right of two public officials whom he fired, without notice or an opportunity for a hearing, for misconduct in office. If their right to notice and a hearing was not clearly established in 1974, Walker is immune from damage liability and their suit for damages must be dismissed. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

Colaizzi was the superintendent of the division of private employment agencies in the Illinois Department of Labor. Indovina was an investigator for the division, acting as Colaizzi's factotum. Neither was protected by civil service regulations or by an employment contract; both were employees at will. Thus they cannot and do not argue that by firing them Walker deprived them of property, with or without due process of law. They argue that he deprived them of liberty, specifically liberty of occupation, by firing them on grounds whose public announcement falsely stigmatized them as dishonest and made it unlikely that they would ever again be employed in positions (whether in the public or the private sector) of comparable responsibility to those they were fired from. See Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977) (per curiam). We were told at argument that Colaizzi is unwell and does not work at all and that Indovina is a car salesman.

The day they were fired Governor Walker said in a press release that they had been fired for "misconduct" with reference to an employment agency. Discovering that one of its employees had embezzled funds, the agency had reported him to the state's attorney for prosecution, and Colaizzi and Indovina had then "intervened" with the agency on behalf of the employee. (We are quoting from the release.) "With careful circumlocution" they had "repeatedly urged [the agency's] owners to 'consider' dropping or reducing their criminal and civil claims," while at the same time making clear that if "the owners refused to 'cooperate' in this respect, Colaizzi would file a series of administrative charges" against the agency that might result in suspension or revocation of the agency's license. They had carried out this threat: after Colaizzi appointed himself the hearing officer to adjudicate the charges that he brought against the agency, he and Indovina had suspended the agency's officers from acting as employment counselors for three days.

In another statement, released the same day, Governor Walker said that Colaizzi and Indovina had "attempted to use the power of their office to force a company under their supervision to drop possible criminal actions against an employee." The statement called them "bad apples" and "undesirables" who were guilty of "wrongdoing." Neither this statement nor the press release accused Colaizzi or Indovina of criminal wrongdoing or assigned a motive for their intervention on behalf of the (unnamed) employee of the employment agency.

Colaizzi and Indovina sued Walker in 1974 under 42 U.S.C. Sec. 1983, seeking damages. The district court granted Walker's motion to dismiss, holding that the plaintiffs had not stated a claim for deprivation of liberty in violation of the due process clause of the Fourteenth Amendment. This court reversed, 542 F.2d 969 (7th Cir.1976), noting that to fire a public employee for publicly announced reasons likely to stigmatize the employee deprives him of liberty, and remarking that "it cannot seriously be contended that the charges contained in the press releases did not gravely stigmatize the reputation of Colaizzi and Indovina." Id. at 974. On remand the district court again dismissed the case. The ground was that Walker was entitled to immunity because he had fired Colaizzi and Indovina in the good-faith belief that they were guilty of the misconduct of which he had accused them. Again this court reversed, 655 F.2d 828 (7th Cir.1981), this time saying that the relevant question was not whether Walker believed that the charges were true but whether he believed that the procedures used to verify them were adequate.

Then came Harlow, which established a new, objective test for immunity: a public official is immune, regardless of what he actually believed to be the legal position, if the constitutional right that he is accused of having violated was not clearly established on the date of the alleged violation. See 457 U.S. at 818, 102 S.Ct. at 2738. Walker moved for summary judgment on the authority of Harlow. The district court denied the motion but certified its order for an immediate appeal under 28 U.S.C. Sec. 1292(b), and we accepted the certification. Resort to 1292(b) was unnecessary, however. The refusal to dismiss a case against a public officer on grounds of immunity is appealable as of right under the collateral order doctrine, Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2815-17, 86 L.Ed.2d 411 (1985), since the immunity to which the officer is entitled is not just immunity from having to pay damages but immunity from having to stand trial. The analogy to appeals from refusals to dismiss criminal charges on double-jeopardy grounds, see Abney v. United States, 431 U.S. 651, 656-62, 97 S.Ct. 2034, 2038-42, 52 L.Ed.2d 651 (1977), is transparent.

The public employee's constitutional right not to be fired on "stigmatizing" grounds is one of the more mysterious innovations in modern constitutional law. Reputation is not "property" or "liberty" within the meaning of the due process clauses of the Fifth and Fourteenth Amendments. Paul v. Davis, 424 U.S. 693, 711-12, 96 S.Ct. 1155, 1165-66, 47 L.Ed.2d 405 (1976). If it were, defamation by a public official would be a federal tort, which no one believes. It seems odd that merely because a defamatory statement (not a deprivation of liberty) is coupled with firing an employee-at-will (not a deprivation of property), the public official is guilty of a federal tort. It sounds like the legal equivalent of 0 + 0 = 1. One might have thought that the only significance of the firing would be to make it easier for the victim to prove damages in a suit in state court for defamation, assuming he wasn't promptly hired in an equally good job.

To understand the tort you must go back to its origins (discussed in Board of Regents v. Roth, 408 U.S. 564, 573-74, 92 S.Ct. 2701, 2707-08, 33 L.Ed.2d 548 (1972)) in cases where public employees were fired for suspected Communist sympathies. See, e.g., Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 185, 71 S.Ct. 624, 655, 95 L.Ed. 817 (1951) (Jackson, J., concurring). In the atmosphere of those times, employees fired on such grounds found it difficult to land equally responsible jobs, public or private. The circumstances of discharge, at least if they were publicly stated, had the effect of blacklisting the employee from employment in comparable jobs. If a state or the federal government formally banned a person from a whole category of employment, it would be infringing liberty of occupation--a component of the liberty that the due process clauses of the Fifth and Fourteenth Amendment protect, and recognized as such almost since the beginning of this nation. See Bigby v. City of Chicago, 766 F.2d 1053, 1057 (7th Cir.1985). If it did this without due process of law, therefore, it would be violating the Constitution. By firing a worker on publicly stated grounds that kill his chances for further employment in his chosen occupation, the government in effect excludes him from that occupation, and thus deprives him of liberty in a Fourteenth Amendment sense, and thus must give him due process of law. See id.; Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136, 1138-39 (7th Cir.1984).

That the interest protected is occupational liberty rather than reputation was made reasonably clear by Paul v. Davis, supra, which held that reputation is not property or liberty in the constitutional sense. Some cases continue to suggest that defamation coupled with firing is a deprivation of liberty, see, e.g., Perry v. FBI, 781 F.2d 1294, 1300 (7th Cir.1986) (en banc); but since neither reputation nor government employment at will is an aspect of the liberty (or property) protected by the Fifth and Fourteenth Amendments, these cases are better explained as holding that to fire a worker to the accompaniment of public charges that make it unlikely that anyone will hire him for a comparable job infringes his liberty of occupation. See Goulding v. Feinglass, 811 F.2d 1099, 1102-03 (7th Cir.1987).

This wrinkle (which is not important to the present case) to one side, the basic doctrinal structure was clear by 1974. But it does not follow that the right of Colaizzi and Indovina to due process if they were fired to the accompaniment of the public statements quoted earlier (and if those statements were false, as we shall assume for purposes of this appeal) was "clearly established," the test under Harlow v. Fitzgerald. That test would have little bite if a right "clearly established" at any level of generality could survive it. "The words 'clearly established ... constitutional rights' may not be used to read the defense of immunity out of federal tort law by the facile expedient of stating...