Robert Breuder v. Kathy Hamilton ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 17-1577 & 17-2215
ROBERT L. BREUDER,
Plaintiff-Appellee,
v.
BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO.
502, et al.,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15-cv-09323 — Andrea R. Wood, Judge.
____________________
ARGUED NOVEMBER 7, 2017 — DECIDED APRIL 17, 2018
____________________
Before EASTERBROOK, ROVNER, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. The College of DuPage is a
two-year community college in Glen Ellyn, Illinois. In 2008
the Board of Trustees of Community College District No.
502, which operates the College, hired Robert L. Breuder as
the College’s president. After extensions, his contract ran
through 2019. But in October 2015 newly elected members of
2 Nos. 17-1577 & 17-2215
the Board, who had campaigned on a pledge to remove
Breuder, discharged him without notice or a hearing. Reso-
lutions adopted by the Board stated that Breuder had com-
mi\ed misconduct. The Board did not offer him a hearing
and has refused to comply with clauses in his contract cover-
ing severance pay and retirement benefits. Breuder then filed
this suit, which rests not only on Illinois contract and defa-
mation law but also on 42 U.S.C. §1983. Breuder contends
that his sacking without a hearing, but with defamatory
statements, deprived him of both liberty and property with-
out due process of law.
The Board as an entity moved to dismiss the complaint,
contending among other things that Breuder never had a
valid contract of employment. Individual members of the
Board moved to dismiss the §1983 claim on qualified-
immunity grounds. The district court denied both motions.
238 F. Supp. 3d 1054 (N.D. Ill. 2017). It certified the former
decision for an interlocutory appeal, which we agreed to en-
tertain. See 28 U.S.C. §1292(b). The Board’s members took an
interlocutory appeal of the la\er decision on the authority of
Mitchell v. Forsyth, 472 U.S. 511 (1985).
The Board’s appeal starts with a norm of Illinois law: a
governmental body whose members serve limited terms
may not enter into contracts that extend beyond those terms.
This rule was established in Millikin v. Edgar County, 142 Ill.
528 (1892), and has been applied since then, unless the state’s
legislature establishes a different rule. Breuder was hired in
November 2008 on a contract that ran from January 2009
through June 2012. But the terms of some of the members
si\ing in fall 2008 expired the next spring. This meant, the
Board submits, that Breuder’s tenure could not run past May
Nos. 17-1577 & 17-2215 3
2009. By the same reasoning the contract’s two extensions,
running through 2019, were invalid. The members elected in
April 2015 (plus those elected earlier and continuing to
serve) were entitled to make their own decisions about the
College’s presidency, the Board insists.
The difficulty with this argument is Hostrop v. Board of
Junior College District No. 515, 523 F.2d 569 (7th Cir. 1975),
which holds that legislation superseded the Millikin rule for
community colleges. This case is almost a replay of Hostrop,
for that dispute, too, arose from a contract giving a college
president tenure beyond the date of the next election to the
board. Our decision relied on 110 ILCS 805/3-32, which per-
mits the board of a community-college district to “establish
tenure policies for the employment of teachers and adminis-
trative personnel”. See also 110 ILCS 805/3-42 (board may
“employ such personnel as may be needed” and establish
“policies governing their employment and dismissal”).
None of the statutory language that led to the reasoning
and result of Hostrop has changed since 1975, nor has any
Illinois court suggested that we misunderstood state law.
Illinois courts have cited Hostrop only once on an issue relat-
ed to Millikin, see Libertyville Education Association v. Board of
Education, 56 Ill. App. 3d 503, 506 (1977), and that decision
suggests agreement with Hostrop’s conclusion.
The state legislature has limited the powers of communi-
ty-college districts with respect to contracts signed after Sep-
tember 22, 2015. 110 ILCS 805/3-65(b) (community-college
contracts may not exceed four years; severance pay is
capped at one year’s salary). That statute does not apply to
this suit or undermine the principle of Hostrop that a contract
with a college president may extend past the next election; to
4 Nos. 17-1577 & 17-2215
the contrary, §805/3-65 implies that community colleges pos-
sess that power under §805/3-32. Why else limit its exercise?
According to the Board, the enactment of two other stat-
utes, 110 ILCS 805/3B-1, 3B-2, providing rules for the han-
dling of tenure for members of the academic faculty, implic-
itly nullifies whatever power exists under §805/3-32. But Illi-
nois follows the normal understanding that one statute im-
plicitly repeals another only when their terms are incompat-
ible. See U.S. Bank N.A. v. Clark, 216 Ill. 2d 334, 344 (2005).
Nothing in those statutes is incompatible with the grant of
power in §805/3-32 to establish the tenure of administrative
officers—to protect a bursar against arbitrary treatment with
a rule requiring cause for dismissal, or to give a president a
term of years in order to compete against institutions in oth-
er states fishing in the same pool of talent.
A college in Illinois would have considerable difficulty
hiring a quality president if it could offer only brief em-
ployment, while colleges elsewhere were offering the five-
year (or longer) contracts common for a college’s top office.
The Board’s members serve staggered six-year terms. Two or
three posts come up for election every two years—and if any
member of the Board has died or resigned recently, that po-
sition also is filled at these biennial elections. If Millikin ap-
plies, no appointment could exceed two years, and many
would face much shorter limits. But because the new stat-
utes about academic tenure do not address the subject of ac-
ademic administration, they do not affect the laws that
Hostrop interpreted.
The Board offers two other objections to Breuder’s con-
tract. First, it observes that Illinois law permits the Board to
act by majority vote, provided that a quorum is present. 110
Nos. 17-1577 & 17-2215 5
ILCS 805/3-9. As the Board has seven members, 110 ILCS
805/3-6, this allows as few as three to take an effective deci-
sion (if only four or five appear for a meeting). But Breuder’s
contract provides that he may be dismissed only by the votes
of at least five members, a supermajority. Second, the con-
tract provides that the Board (or its chair) may extend the
contract for one year without holding a public meeting. The
Board contends that this clause violates the Illinois Open
Meetings Act. 5 ILCS 120/1 to 120/7.5.
The district court concluded that both contested parts of
the contract are valid. 238 F. Supp. 3d at 1061–62. The judge
thought that the Board’s right to determine an administra-
tor’s tenure includes a right to adjust procedures that affect
that tenure, as the security of an office depends on both sub-
stantive and procedural ingredients. We need not determine
whether that conclusion is correct—a subject to which state
authority does not speak—because there is a difference be-
tween the validity of a clause and the validity of the contract.
The Board supposes that, if any clause in a contract is im-
proper under state law, then the contract as a whole is void.
It does not furnish any authority for that belief. Courts in Il-
linois regularly refuse to enforce particular clauses—say,
those creating penalties or imposing unreasonable restraints
on competition after the end of employment—while enforc-
ing the remainder of the contracts. See, e.g., Health Profes-
sionals, Ltd. v. Johnson, 339 Ill. App. 3d 1021 (2003); Tortoriello
v. Gerald Nissan of North Aurora, Inc., 379 Ill. App. 3d 214,
238–39 (2008). The Board can prevail on this appeal only by
persuading us that Breuder never had a valid contract. As
we have rejected that contention, disputes about particular
clauses may be left to resolution in the ordinary course, by
6 Nos. 17-1577 & 17-2215
appeal from the final decision, if they turn out to affect the
judgment (as these clauses may not).
This brings us to the second appeal. Public officials are
entitled to qualified immunity from damages under §1983
unless they transgress clearly established law. See, e.g.,
Kisela v. Hughes, 138 S. Ct. 1148 (2018) (collecting decisions).
The Board’s members contend that the validity of Breuder’s
contract was at least uncertain, so that they could not have
violated any clearly established rule. There are two problems
with this contention.
The first is that, when discharging Breuder without giv-
ing him an opportunity for a hearing, the Board issued a
statement declaring that he had commi\ed misconduct. Codd
v. Velger, 429 U.S. 624 (1977), holds that even a person who
has no property interest in a public job has a constitutional
entitlement to a hearing before being defamed as part of a
discharge, or at a minimum to a name-clearing hearing after
the discharge. See also Wisconsin v. Constantineau, 400 U.S.
433 (1971). The Board has not offered that opportunity to
Breuder, and the members insist that they need not do so.
The law is clearly established against them.
The second is that a hearing is required whenever the
officeholder has a “legitimate claim of entitlement”, Board of
Regents v. Roth, 408 U.S. 564, 577 (1972), to keep the job.
Breuder, who had a wri\en contract for a term of years, as-
suredly had a legitimate claim of entitlement to have the
Board honor its promise. The claim may have failed in the
end, but that did not eliminate the claim’s existence.
To see this, consider a situation in which a member of the
philosophy faculty is employed under a contract forbidding
Nos. 17-1577 & 17-2215 7
discharge except for misconduct or the elimination of the
whole department. (That’s a standard term of a contract for
academic tenure.) Imagine the Board saying: “You have
commi\ed misconduct; therefore your tenure has ended;
since you no longer have tenure, we need not offer you a
hearing at which we have to demonstrate that misconduct
occurred.” The Supreme Court clearly established in Roth
and its many successors that this maneuver won’t work. A
hearing is required to establish whether misconduct oc-
curred. Just so here. The Board believes that Breuder’s con-
tract was invalid, making him an at-will employee (just like
the teacher in our example), or that the contract could be
cancelled for misconduct. But whether the contract was valid
was subject to legitimate debate, and a hearing would have
allowed Breuder to articulate his position and insist that the
contract be enforced. Both the duration of Breuder’s tenure
and the existence of misconduct (essential to discharge him
early, if the contract is valid) were debatable subjects. The
members who refused even to listen to him violated his
clearly established rights.
A college may well be entitled to fire any employee
summarily, as long as it is prepared to pay off the contract’s
remaining years or whatever damages are established in
state litigation. Cf. Mid-American Waste Systems, Inc. v. Gary,
49 F.3d 286 (7th Cir. 1995). That’s how the tenure of college
football coaches ends, and it is hard to see why college pres-
idents would be immune to the same procedure. But the
Board and its members insist that they don’t owe Breuder
one cent, and they have not contended that the process due
for a summary termination is the opportunity to sue in state
court. When the decision is made by a body’s governing
board, it would be hard to contend that the action is random
8 Nos. 17-1577 & 17-2215
and unauthorized for the purpose of ParraR v. Taylor, 451
U.S. 527 (1981), and its successors.
The Board’s members don’t identify a lack of clarity in
the rules established by Roth, Codd, and similar decisions.
Instead they deem these rules inapplicable. They maintain
that the statements issued in connection with Breuder’s dis-
charge weren’t defamatory as a ma\er of Illinois law be-
cause they asserted opinions rather than facts (or that they
have a First Amendment defense because Breuder is a public
figure). They tell us that before acting they received a legal
opinion that Breuder’s contract was invalid under Millikin.
They have not put a copy of this opinion into the record
(they rely instead on a memorandum to the board, by an
unnamed author, summarizing conclusions reached by some
other anonymous person), so they cannot present an advice-
of-counsel defense, but they maintain that they were entitled
to rely on this advice nonetheless. Yet these contentions do
not undermine the clarity of the legal rules about when peo-
ple are entitled to hearings. They may provide defenses to
claims based on state law, or perhaps an opportunity to sue
a lawyer for malpractice, or perhaps highlight issues that
might have been pursued at a hearing before the Board, but
they do not diminish the strength of Breuder’s constitutional
opportunity for a hearing.
This wraps up the issues presented by the appeals certi-
fied under §1292(b) or authorized by the invocation of qual-
ified immunity. The individual appellants ask us to go on
and decide whether Breuder has a good defamation claim
under Illinois law. They contend that “pendent appellate ju-
risdiction” permits us to act across the board because all is-
sues are “inextricably intertwined” in the sense that all arise
Nos. 17-1577 & 17-2215 9
from Breuder’s discharge. That approach, if followed, would
pre\y much extinguish the final-judgment requirement of 28
U.S.C. §1291. The Supreme Court has told us that interlocu-
tory appeals complicate and delay the administration of jus-
tice, and the category of permissible appeals should not be
expanded. See, e.g., Mohawk Industries, Inc. v. Carpenter, 558
U.S. 100 (2009). And it has thrown cold water on “pendent
appellate jurisdiction” in particular. Swint v. Chambers Coun-
ty Commission, 514 U.S. 35, 43–51 (1995). Although Swint did
not kill the doctrine—it survived in Clinton v. Jones, 520 U.S.
681, 707 n.41 (1997), at least with respect to Presidents—
Swint concluded that the doctrine must be strictly limited to
avoid undermining the discretion that §1292(b) gives to dis-
trict judges and appellate judges. See also Microsoft Corp. v.
Baker, 137 S. Ct. 1702, 1714 (2017). Extending the doctrine to
allow state-law claims to receive interlocutory review any
time a constitutional claim permits a qualified-immunity
appeal would do far too much damage to both §1291 and
§1292(b). We decline the invitation.
On the subjects properly before us, the district court’s de-
cisions are affirmed. Other ma\ers may be reviewed on ap-
peal from the final decision. Appeal No. 17-1577 is dismissed
for lack of jurisdiction to the extent that appellants seek to
present any issues beyond their request for qualified im-
munity.