Dopkeen v. Whitaker

• Decision Date: 10 March 2010
• Docket Number: No. 1-08-3113.,1-08-3113.
• Citation: 339 Ill.Dec. 319,926 N.E.2d 794,399 Ill.App.3d 682
• Parties: Jonathan C. DOPKEEN, Plaintiff-Appellant,v.Eric E. WHITAKER, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

399 Ill.App.3d 682
926 N.E.2d 794
339 Ill.Dec. 319

Jonathan C. DOPKEEN, Plaintiff-Appellant,
v.
Eric E. WHITAKER, Defendant-Appellee.

No. 1-08-3113.

Appellate Court of Illinois,
First District, Third Division.

March 10, 2010.

926 N.E.2d 795

Katz, Friedman, Eagle, Eisenstein, Johnson & Bareck, P.C., Chicago (Ronald B. Schwartz, of counsel) for Appellant.

Lisa Madigan, Attorney General for the State of Illinois, Chicago (Solicitor General Michael A. Scodro and Assistant General Richard S. Huszagh, of counsel) for Appellee.

926 N.E.2d 796

Justice QUINN delivered the opinion of the court:

Plaintiff, Jonathan C. Dopkeen, filed a complaint alleging tortious interference with a contract against defendant, Eric Whitaker. The circuit court granted defendant's motion to dismiss plaintiff's second amended complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2006)). On appeal, plaintiff argues that the circuit court erred in dismissing his complaint where he stated a cause of action against defendant and where defendant's actions were not protected by absolute or public official immunity. For the following reasons, we affirm.

BACKGROUND

This case arose from the removal of plaintiff from the office of Assistant Director of Public Health by defendant, who served as the Director of Public Health at the time of plaintiff's removal. On January 17, 2005, after being reappointed by the Governor and confirmed by the Senate of Illinois, plaintiff began serving his second two-year term as Assistant Director of Public Health. On January 18, 2007, defendant removed plaintiff from that office and notified plaintiff of his removal in a letter dated January 24, 2007. Defendant also instructed the Comptroller's office to cease paying plaintiff's salary and benefits as of January 18, 2007. At the time of plaintiff's removal, no successor had been appointed by the Governor nor confirmed by the Senate. No issue was raised regarding plaintiff's fitness and ability to continue serving as Assistant Director of Public Health.

Plaintiff demanded that defendant: (1) rescind his order to remove plaintiff from office; (2) restore plaintiff to all of the rights, benefits and privileges of that office; and (3) instruct the Comptroller's office to pay plaintiff as required by law. Defendant refused to comply with plaintiff's demand and defendant subsequently resigned from his position as Director on September 14, 2007.

On September 7, 2007, plaintiff filed a complaint, which was subsequently amended. In his second amended complaint, plaintiff alleged that defendant tortiously interfered with an employment contract between plaintiff and the State of Illinois where, pursuant to section 5-610 of the Civil Administrative Code of Illinois (20 ILCS 5/5-610 (West 2006)), plaintiff was to continue as Assistant Director because the Governor had not nominated, nor had the Senate approved, a successor. As such, plaintiff alleged that defendant had no authority to terminate him.

Defendant filed a motion to dismiss plaintiff's complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2006)). Defendant argued that plaintiff failed to state a cause of action where no valid contract existed between plaintiff and the State of Illinois and that the doctrines of absolute and public official immunity shielded defendant from liability in this matter. Following oral arguments, the circuit court granted defendant's motion to dismiss. In its written order, the circuit court, citing Gaiser v. Village of Skokie, 271 Ill.App.3d 85, 207 Ill.Dec. 749, 648 N.E.2d 205 (1995), and Gust v. Village of Skokie, 125 Ill.App.3d 102, 80 Ill.Dec. 584, 465 N.E.2d 696 (1984), explained, “Although a statute may control the conditions of particular government employees, the controlling statute does not create any vested rights in there [ sic ] continued existence.” The court concluded, “Defendant was acting within the scope of his authority to terminate the plaintiff and such actions are protected by absolute immunity,

926 N.E.2d 797

and public official immunity.” Plaintiff now appeals.ANALYSIS

Plaintiff argues that the circuit court erred in dismissing his second amended complaint for failure to assert a cause of action for tortious interference with a contractual relationship. Our review of a dismissal pursuant to both sections 2-615 and 2-619 is de novo, and we accept all well-pleaded facts in the complaint as true and draw all reasonable inferences from those facts in favor of the nonmoving party. Kopchar v. City of Chicago, 395 Ill.App.3d 762, 766, 335 Ill.Dec. 555, 919 N.E.2d 76 (2009). Under either section, dismissal is proper if the plaintiff fails to allege any set of facts to support a cause of action that would entitle him to relief. Stephen L. Winternitz, Inc. v. National Bank of Monmouth, 289 Ill.App.3d 753, 755, 225 Ill.Dec. 324, 683 N.E.2d 492 (1997).

In a claim for tortious interference with a contractual relationship, plaintiff must establish: “(1) the existence of a valid and enforceable contract between the plaintiff and another; (2) the defendant's awareness of the contract; (3) the defendant's intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the other, caused by the defendant's conduct; and (5) damages.” Complete Conference Coordinators, Inc. v. Kumon North America, Inc., 394 Ill.App.3d 105, 109, 333 Ill.Dec. 567, 915 N.E.2d 88 (2009).

Plaintiff asserts that provisions of Article 5 of the Civil Administrative Code concerning the structure of the Department of Public Health, as pled in his complaint, created a contract between plaintiff and the State of Illinois, such that plaintiff's appointment as Assistant Director of Public Health was not at-will employment.

Article 5 of the Civil Administrative Code of Illinois is also known as the Departments of State Government Law. 20 ILCS 5/5-1 (West 2006). Article 5 sets forth the structure of the Executive Branch, including the Department of Public Health. 20 ILCS 5/5-15 (2006). Article 5 creates the directors of departments of state government, including the Director of the Department of Public Health, the office previously occupied by defendant. 20 ILCS 5/5-20 (West 2006). Article 5 also creates assistant director positions for these departments, including the Assistant Director of Public Health, the office previously occupied by...