Hallinan v. Fraternal Order of Police of Chicago

Decision Date25 June 2009
Docket NumberNo. 06-3602.,06-3602.
Citation570 F.3d 811
PartiesShawn HALLINAN and Wayne Harej, Plaintiffs-Appellants, v. FRATERNAL ORDER OF POLICE OF CHICAGO LODGE NO. 7 and Fraternal Order of Police of Illinois, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Thomas H. Geoghegan, Jorge Sanchez, Despres, Schwartz & Geoghegan, Chicago, IL, John T. Moran, Jr., Moran & Associates, Chicago, IL, for Plaintiffs-Appellants.

Joel A. D'Alba, Asher, Gittler, Greenfield & D'Alba, Chicago, IL, for Defendants-Appellees.

Before ROVNER, WOOD, and SYKES, Circuit Judges.

ROVNER, Circuit Judge.

After being expelled from their labor union, Chicago police officers Shawn Hallinan and Wayne Haraj sued the union and its parent organization for violations of their First and Fourteenth Amendment rights. The district court found that the plaintiff had failed to plead the state action necessary to maintain an action pursuant to § 1983 and, consequently, the court granted the unions' motion to dismiss. We affirm.


Plaintiffs Hallinan and Harej are long time City of Chicago police officers and were members in good standing of the City's police union, the Fraternal Order of Police Chicago Lodge No. 7 (FOP Lodge 7 or Union) until they were suspended in June 2005 and then expelled on September 6 of that same year. FOP Lodge 7 is a labor organization with the exclusive right to represent and bargain on behalf of police officers employed by the City. The Fraternal Order of Police of Illinois oversees FOP Lodge 7.

Both men were leaders of a group of Union members opposed to the FOP Lodge 7 president, Mark Donohue, and his political organization. During the March 2005 election cycle, Hallinan and Harej formed an opposition slate of twenty candidates to oppose President Donohue and the incumbent officers. During the course of the campaign, the plaintiffs uncovered evidence that Donahue had under-reported significantly his salary on a report filed with the Attorney General. Harej reported the discrepancy to the Attorney General's office and the FOP twice corrected the form. The under-reporting issue became a major one in the campaign and Hallinan and Harej discussed the error among Union members and publically, including with the media.

Soon after the March 25 election, Donahue and his slate members began proceedings to suspend and then expel both Hallinan and Harej from membership in the Union. On April 19, 2005, FOP Lodge 7 officers filed disciplinary charges against the two men and on June 25, while the charges were pending, suspended them. In July 2005, the FOP Lodge 7 held hearings regarding the disciplinary charges. Hallinan and Harej alleged in their complaint that the Union hearing panel was comprised of their political rivals. The panel recommended that the Union expel both plaintiffs, and on September 6, 2005, the FOP Lodge 7 board accepted the recommendation and voted to expel the two men.

The plaintiffs appealed the decision to the FOP Illinois. FOP Illinois held a hearing on the appeal and considered only whether the plaintiffs had received due process. The hearing panel's recommendation, which the FOP Board accepted, was to deny the appeal and uphold the plaintiffs' expulsion.

For unexplained reasons, Hallinan and Harej continued to pay full dues to the Union through an automatic payroll deduction mechanism until just after Hallinan and Harej filed a September 16, 2005 complaint with the Illinois Labor Relations Board (ILRB).1 Because of that ILRB complaint, FOP Lodge 7 became aware that Hallinan and Harej, although expelled, were still paying full Union dues. In response, the Union, over the plaintiffs' objections, informed the City that it should make Hallinan and Harej fair-share payers —persons who make payments for activities essential to collective bargaining but who are not union members and do not pay membership dues. The City complied—rendering Hallinan and Harej fair-share payers and deducting the appropriate fair-share amount from their paychecks to send to the Union. Hallinan has offered and tendered payment of the amount of full Union dues to the FOP Lodge 7, but the Union has refused payment. FOP Lodge 7 currently receives Hallinan's and Harej's fair-share payments and continues to represent the two men in all matters concerning their wages, hours, and working conditions as police officers for the City of Chicago.

On May 9, 2006, Hallinan and Harej filed a complaint in the district court alleging First and Fourteenth Amendment violations pursuant to 42 U.S.C. § 1983 as well as pending state law claims for breach of the Union constitution and breach of the duty of fair representation. The suit named as defendants both the FOP Lodge 7 and the FOP Illinois. On August 24, 2006, the District Court granted the defendants' motion to dismiss, brought pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) ruling that the court lacked subject matter jurisdiction as the plaintiffs had failed to plead adequately the state action necessary for maintaining an action pursuant to § 1983. (R. 41 p. 1). The court granted leave to the plaintiffs to amend the complaint to add allegations of illegal state action. When the plaintiffs declined to do so, the district court entered a final order on September 19, 2006, dismissing the case with prejudice. We review that decision de novo. Richards v. Kiernan, 461 F.3d 880, 883 (7th Cir.2006).


The plaintiffs in this case allege constitutional violations redressable through 42 U.S.C. § 1983. The First and Fourteenth Amendments to the Constitution protect citizens from conduct by the government, but not from conduct by private actors, no matter how egregious that conduct might be. Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 191, 109 S.Ct. 454, 461, 102 L.Ed.2d 469 (1988); Messman v. Helmke, 133 F.3d 1042, 1044 (7th Cir.1998). Unions are not state actors; they are private actors. Messman, 133 F.3d at 1044. This does not end the matter, however, because the conduct of private actors, in some cases, can constitute state action. Consequently, the outcome of this case depends on whether the conduct of the Union can be characterized as state or purely private action.

In order to be characterized as state action, "the deprivation [of constitutional rights] must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the [S]tate or by a person for whom the State is responsible ... [and] the party charged with the deprivation must be a person who may fairly be said to be a [S]tate actor." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753-54, 73 L.Ed.2d 482 (1982). The Supreme Court has identified numerous situations when private conduct takes on the color of law. See, e.g., id. at 939, 102 S.Ct. at 2754-55; Brentwood Acad. v. Tenn. Secondary Sch. Athletic Assoc., 531 U.S. 288, 295-96, 121 S.Ct. 924, 930, 148 L.Ed.2d 807 (2001). Private action can become state action when private actors conspire or are jointly engaged with state actors to deprive a person of constitutional rights, Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980); where the state compels the discriminatory action, Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970); when the state controls a nominally private entity, Pa. v. Bd of Dirs. of City Trusts, 353 U.S. 230, 231, 77 S.Ct. 806, 807, 1 L.Ed.2d 792 (1957); when it is entwined with its management or control, Evans v. Newton, 382 U.S. 296, 299, 301, 86 S.Ct. 486, 488, 489, 15 L.Ed.2d 373 (1966); when the state delegates a public function to a private entity, Terry v. Adams, 345 U.S. 461, 484, 73 S.Ct. 809, 821, 97 L.Ed. 1152 (1953); West v. Atkins, 487 U.S. 42, 56-57, 108 S.Ct. 2250, 2259-60, 101 L.Ed.2d 40 (1988); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628, 111 S.Ct. 2077, 2087, 114 L.Ed.2d 660 (1991), or when there is such a close nexus between the state and the challenged action that seemingly private behavior reasonably may be treated as that of the state itself. Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974).

Over time, Supreme Court and Seventh Circuit precedent have revealed that these cases do not so much enunciate a test or series of factors, but rather demonstrate examples of outcomes in a fact-based assessment. Brentwood, 531 U.S. at 295, 121 S.Ct. at 930; Tarpley v. Keistler, 188 F.3d 788, 792 (7th Cir.1999) ("All of the tests, despite their different names, operate in the same fashion: [] by sifting through the facts and weighing circumstances.").

What is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity. ... [N]o one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason against attributing activity to the government.

Brentwood Academy, 531 U.S. at 295-96, 121 S.Ct. at 930 (internal citation omitted).

Hallinan and Harej begin their argument by pointing out, correctly, that the existence of an exclusive union agency agreement with a government employer implicates the state action doctrine. Chicago Teachers Union Local No. 1 v. Hudson, 475 U.S. 292, 301, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986). Under the exclusive agency arrangement, a single labor organization has sole authority to bargain with a particular employer over wages, hours, and working conditions of employees. For employees, the unified bargaining agent provides strength in numbers and economies of scale. See Tavernor v. Ill. Fed'n of Teachers, 226 F.3d 842, 844 (7th Cir. 2000). For employers it protects them from conflicting demands of different groups of workers. Imagine the difficulties that would ensue if union A bargained for and received a different salary...

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