Lasco v. Koch

• Decision Date: 25 February 1977
• Docket Number: No. S-CIV-76-0155.,S-CIV-76-0155.
• Citation: 428 F. Supp. 468
• Parties: John LASCO, Plaintiff, v. Melvin KOCH et al., Defendants.
• Court: U.S. District Court — Southern District of Illinois

428 F. Supp. 468

John LASCO, Plaintiff, v. Melvin KOCH et al., Defendants.

No. S-CIV-76-0155.

United States District Court, S. D. Illinois, S. D.

February 25, 1977.

James M. Drake, Springfield, Ill., for plaintiff.

John W. Russell, Phelps, Russell, Carmody & Kasten, Carlinville, Ill., for defendants Melvin Koch, John J. Houlihan and Nolan B. Jones.

Donald R. Schuering, Goehl, Adams & Schuering, Quincy, Ill., for defendant Michael McClain.

James L. Palmer, Scholz, Staff & Brickman, Quincy, Ill., for defendant Hubert Staff.

ORDER

ACKERMAN, District Judge.

Plaintiff, John Lasco, has filed an action in this Court, the gravamen of the complaint being that his employment as a civil servant with the State of Illinois, Illinois Veterans' Home, has been terminated for political reasons. The named defendants are Melvin Koch, Superintendent of the Illinois Veterans' Home; John J. Houlihan, Director of the Department of Veterans' Affairs of Illinois; Hubert Staff, Chairman of the Democratic Central Committee of Adams County, Illinois; Michael McClain, Illinois State Representative for the 48th District of Illinois; and, Nolan B. Jones, Director of Personnel of Illinois.

The Plaintiff is seeking preliminary and injunctive relief, and damages in excess of $10,000. Plaintiff has alleged violations of the First and Fourteenth Amendments to the Constitution, invoking this Court's jurisdiction under 28 U.S.C. § 1331. Plaintiff also seeks relief under 42 U.S.C. §§ 1983, 1985, 1986, and 1988; jurisdiction is properly predicated on 28 U.S.C. § 1343. Relief is also sought under 28 U.S.C. §§ 2201 and 2202.

Since 1973 Plaintiff has been employed at the Illinois Veterans' Home in Quincy, Illinois. The title of his position is Welfare Executive III, although he appears to have acted in the capacity of Assistant Superintendent. He is a certified employee under the merit provisions of the Illinois Personnel Code (Ill.Rev.Stat., Ch. 127, § 63b108a, et seq.).

The Veterans' Home is a health care facility, which, until August 15, 1976, was operated under supervision of the Illinois Department of Children and Family Services; at that time responsibility for the Home was transferred to the Illinois Department of Veterans' Affairs (Ill.Rev. Stat., Ch. 23, § 5051). There are approximately 435 employees at the home.

Briefly, Plaintiff Lasco has alleged that beginning in 1975, Defendants Koch and McClain conspired to remove him from his position at the Veterans' Home because of his political affiliation, and that over the course of next year others joined in this conspiracy; that two persons were hired with the purpose of absorbing Plaintiff's duties; that Defendant Koch caused Plaintiff's duties to be changed and reduced, and that early in January 1976 an employment reorganization at the Veterans' Home occurred; and that out of 435 positions at the home, only Plaintiff's position of Welfare Executive III was to be abolished.

Plaintiff supported a candidate for Governor in the Democratic Party primary while some of the Defendants supported the opposing party candidate. The record shows that in March 1976, shortly after the primary elections, Defendant Koch placed a disciplinary note in Plaintiff's personnel file. A subsequent Grievance Procedure resulted in the letter being removed. The record further indicates that after the primary elections, defendant Koch wrote several memoranda critical of the Plaintiff which were included in Plaintiff's personnel file.

On November 24, 1976, Plaintiff received notification that he was to be laid off. He alleges that this is in fact a discharge, but because he has committed no act which would be a cause for discharge under the Personnel Code (Ill.Rev.Stat. Ch. 127, § 63b111) and because Plaintiff would be entitled to a plenary hearing before the Civil Service Commission on any attempt to discharge him, the Defendants characterized the termination of his employment as a layoff pursuant to a valid reorganization.

On December 13, 1976, Plaintiff filed his Complaint in this case. Defendant Hubert Staff has filed a motion to dismiss; defendant Michael McClain has filed a motion for summary judgment and a motion to dismiss; and defendants Koch, Houlihan, and Jones have answered and pray that this Court deny the relief requested and dismiss the complaint. The Defendants' basic contentions are that Plaintiff has failed to state a cause of action, that Plaintiff has failed to exhaust available administrative remedies, and that Plaintiff Lasco has been laid-off, not discharged.

This Court entered a Temporary Restraining Order enjoining the Defendants from terminating the Plaintiff from his position at the Illinois Veterans' Home until further order of this Court. Hearings were held in the last part of December, and this Court once again entered a Temporary Restraining Order on January 6, 1977, continuing the cause pending receipt of written arguments on the issue of the propriety of granting a preliminary injunction. It is in this posture that the case is now before the Court.

It is clear to this Court that Plaintiff has stated a cause of action. In Perry v. Sindermann, 408 U.S. 593, at 598, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972) the United States Supreme Court stated:

For at least a quarter of a century this Court has made clear that even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which it could not command directly." Speiser v. Randall, 357 U.S. 513, 526 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. Such interference with constitutional rights is impermissible.

Thus the allegation by Plaintiff Lasco that employment with the State was terminated because he exercised his First Amendment rights states a cause of action cognizable under the civil rights statute and 28 U.S.C. § 1331, the general federal question provision.

Of course, Plaintiff has not proved that the termination of his employment was for political reasons, he has only alleged it. His allegations, however, are sufficient to entitle him to present evidence in this Court and to obtain relief should he prevail, unless there is a doctrine of judicial restraint to which this Court would feel it appropriate and best to yield.

Exhaustion of State Remedies

Exhaustion is a doctrine based in a concern that certain administrative or judicial prerequisites be satisfied prior to the institution of judicial proceedings; it is similar to the doctrine of abstention in that both doctrines focus on the point at which it is proper for a court to entertain a suit. If that point has not yet been reached, the court will generally dismiss the complaint or stay jurisdiction, while allowing wide rights of return once compliance with the doctrines has been achieved.

The basic purpose of the exhaustion doctrine is to allow administrative agencies to perform functions within their own special competence — to make factual records, to apply their expertise, and to correct their own errors so as to moot judicial controversies. Parisi v. Davidson, 405 U.S. 34, at 37, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972). However, in spite of powerful arguments in favor of the application of the exhaustion doctrine, exhaustion, traditionally, has not been required in four situations. Exhaustion is not required where the agency has no jurisdiction over the controversy. Chicago v. Atchison, T.&S.F.Ry., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958). Likewise, exhaustion is not required where remedies are judicial in nature. Barron and Holtzoff, Federal Practice and Procedure, § 65. In addition, exhaustion has not been required where the remedy is inadequate or futile. Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). Finally, exhaustion will not be required where the litigant will be subject to irreparable injury due to lengthy administrative procedures which fail to provide interim relief. Oklahoma Natural Gas v. Russell, 261 U.S. 290, 43 S.Ct. 353, 67 L.Ed. 659 (1923). It seems to me that this case does not fall into any of the traditional exceptions to the exhaustion requirement.

However, another separate class of cases that do not seem to be generally subject to the exhaustion requirement are cases brought under the Civil Rights Act. The seminal decision in this area is Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). In Monroe, the Court held that a plaintiff bringing a § 1983 case was not required to exhaust state judicial remedies. In fact, the opinion is so broadly worded as to indicate that there is no requirement of state administrative remedies in § 1983 suits. Four subsequent Supreme Court decisions appear to confirm the relaxation of the exhaustion requirement in § 1983 cases. Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). It appears, however, to me that these cases would all fall within one or more of the four aforementioned exceptions to the application of the exhaustion doctrine. In Houghton, for example, the Court stated, 392 U.S. at 640, 88 S.Ct. at 2120, that "to require petitioner to appeal (through administrative proceedings) to the Deputy Commissioner of Correction, the Commissioner, or to the Attorney General,...