Bless v. Cook County Sheriff's Office et al

Filing 352

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 7/19/18.Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT BLESS,
Plaintiff,
v.
COOK COUNTY SHERIFF’S OFFICE,
TOM DART in his official and individual
capacity; DEWAYNE HOLBROOK;
JOSEPH WAYS, SR.; ZELDA WITTLER,
SHERYL COLLINS; EDWARD DYNER;
HENRY HEMPHILL; ROSEMARIE
NOLAN; COOK COUNTY SHERIFF’S
MERIT COMMISSION; COOK COUNTY,
a unit of local government,
Defendants.

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No. 13 C 04271
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiff Robert Bless has brought an Illinois state law claim seeking review of
an administrative decision by the Cook County Sheriff’s Merit Commission (“Merit
Board”) that terminated his employment as a police officer with the Cook County
Sheriff’s Office (“CCSO”). Bless seeks adjudication of this claim (Count IV of his
complaint) based on the administrative record, which requires the Court to resolve
the issue as a motion for summary judgment. For the reasons stated herein, Bless’s
motion is granted in part and denied in part.

Background1
Plaintiff Robert Bless worked as a police officer for the CCSO from 1997 until
the Merit Board voted to terminate his employment on May 6, 2013. R. at 24–28.2
During some years of his employment with the CCSO, Bless also worked as a lawyer
and as a McHenry County Board Commissioner. R. at 488, 496–97.
In September 2008, Bless was injured in a vehicle accident while on duty,
interrupting his employment as a patrol officer.

R. at 435, 512–15.

Between

September 2008 and November 2010, Bless was placed on injured on-duty status and
received workers’ compensation temporary disability benefits. R. at 435, 512–15.
During this time, Bless continued his work as a McHenry County Commissioner and
in his private law practice. R. at 489–98.
The CCSO permits employees to work second jobs if the employee submits
secondary employment forms and receives authorization from the CCSO. R. at 1083–
91. Bless claims that he properly submitted secondary employment forms for both
his law practice and his role with McHenry County during all time periods, R. at 499,
507–08; Pl.’s Mem. Supp. at 4–6, ECF No. 291. But Defendants assert that Bless had
no secondary employment authorization on file from December 2008 through 2010,

All facts are undisputed unless otherwise noted. A more fulsome background may be
found in the Court’s memorandum opinion and order of February 27, 2015. Bless v. Cook Cty.
Sheriff’s Office, No. 13-CV-4271, 2016 WL 958554, at *1 (N.D. Ill. Mar. 8, 2016).
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The court cites to the Administrative Review Record, filed as ECF Nos. 26–29, using
its original pagination. ECF Nos. 26-2 through 26-4 encompass pages 1–302 of the record;
ECF Nos. 27-1 through 27-3 encompass pages 303–672; ECF Nos. 28-1 through 28-3
encompass pages 673–932; and ECF Nos. 29-1 and 29-2 encompass pages 933 through 1091.
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while he was on leave from the CCSO, R. at 498–500, 509, 511, 560–61; Defs.’ Mem.
Opp’n Admin. Review at 12, ECF No. 301.
In May 2011, the CCSO’s Office of Professional Review (“OPR”) initiated
administrative charges against Bless and recommended his termination on the basis
that he had received workers’ compensation benefits and salary from the CCSO while
working unauthorized second jobs from December 2008 through 2010. R. at 455, 693–
95, 1110–11, 1262–63. The Cook County Sheriff, Thomas Dart, filed formal charges
with the Merit Board based on these purported grounds in October 2011. R. at 18–
23.
The Merit Board is an administrative body created by Illinois statute, and its
members are appointed by the Cook County Sheriff and approved by the Cook County
Board of Commissioners (“County Board”). 55 Ill. Comp. Stat. Ann. 5/3–7002. The
Merit Board issued a written decision on May 6, 2013, terminating Bless’s
employment with the CCSO. R. at 18–28. At the time of the Merit Board’s decision,
John Rosales was a member of the Board and participated in the decision to terminate
Bless. As is further explicated below, the Illinois Appellate Court ruled in 2017 that
Rosales was not lawfully appointed to serve on the Merit Board at the time relevant
here. See Taylor v. Dart, 81 N.E.3d 1, 4, 8, 10 (Ill. App. Ct. 2017).
Bless timely filed a claim seeking administrative review of the Merit Board’s
decision to terminate his employment pursuant to Illinois’s Administrative Review

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Law, 735 Ill. Comp. Stat. Ann. 5/3–110.3 3d Am. Compl. ¶¶ 116–20. Bless asks the
Court to vacate as void the Merit Board’s termination decision and to reinstate Bless
with full back pay and benefits. 3d Am. Compl. ¶¶ 116–120.4
Legal Standard
A claim seeking review of an Illinois administrative body’s decision is governed
by Illinois’s Administrative Review Law, which limits judicial review to the
administrative record. Lalowski v. City of Des Plaines, 789 F.3d 784, 794 (7th Cir.
2015) (citing 735 Ill. Comp. Stat. Ann. 5/3–110).

When a federal district court

considers such a claim, it “resolves the issue [through] summary judgment.”
Lalowski, 789 F.3d at 794.
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Grochocinski v. Mayer Brown Rowe &
Maw, LLP, 719 F.3d 785, 794 (7th Cir. 2013). The court “constru[es] all facts and
draw[s] all reasonable inferences from the record in the light most favorable to the
nonmovant.” Smith v. City of Chi., 242 F.3d 737, 742 (7th Cir. 2001).

Per the Court’s order of March 8, 2016, the state administrative review claim may be
pursued against only the Merit Board. See Bless, 2016 WL 958554, at *8.
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In addition, Bless has brought claims of race discrimination under 42 U.S.C. § 1983
(Count I) and Title VII of the Civil Rights Act of 1964 (Count V), as well as a political
retaliation claim under § 1983 (Count III). Id. ¶¶ 93–101, 104–12, 122–27. Those claims are
not addressed in this order for reasons that shall become clear.
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Analysis
Bless argues that the Merit Board’s decision to terminate his employment
must be vacated because, pursuant to the Illinois Appellate Court’s recent decision in
Taylor, 81 N.E.3d at 10, the Merit Board was illegally constituted at the time of the
determination, and therefore its decision is void under state law.5 Pl.’s Mem. Supp.
at 11–12. Bless also seeks reinstatement, with full back pay and benefits (“back
pay”). Id. at 2.
In response, Defendants contend that Bless’s case is factually distinguishable
from Taylor and that Taylor was incorrectly decided. Defs.’ Mem. Opp’n at 15, 17–
20. Defendants also contend that, in the event the Court vacates the Merit Board’s
decision, the Court does not have authority to affirmatively reinstate Bless or award
back pay as a remedy.
I.

The Merit Board’s Decision is Void
In Taylor, the plaintiff challenged his termination by the Merit Board, arguing

that the Merit Board was not lawfully constituted at the time of the determination
because the appointment of one of its members, John Rosales, had not complied with
Illinois law. 81 N.E.3d at 4, 10. The Illinois circuit court agreed, and the defendants
appealed.
The Illinois Appellate Court affirmed, noting that the state law creating the
Merit Board required that members be appointed for staggered six-year terms. Id.

Bless also presents several alternative arguments for reversing the Merit Board’s
decision. Pl.’s Mem. Supp. at 12–13, 16–30. Because the Court finds that the Merit Board’s
decision was void, it does not address these arguments.
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at 6. (citing 55 Ill. Comp. Stat. Ann. 5/3–7002). Because Sheriff Dart appointed
Rosales in June 2011 to fill a vacancy whose term expired in March 2012, the
appellate court reasoned, his appointment was not for a 6-year term and, therefore,
was invalid. Id. at 4, 10. From there, it was a simple matter to conclude that the
Merit Board was not lawfully constituted at the time of Taylor’s termination decision
and, consequently, the determination was void as a matter of law. Id. at 10. The
Merit Board asked the Illinois Supreme Court to review this decision, but its petition
for leave to appeal was denied. See Taylor v. Dart, 89 N.E.3d 764 (Ill. 2017). As a
result, Taylor is binding Illinois law. See Nationwide Agribusiness Ins. Co. v. Dugan,
810 F.3d 446, 450 (7th Cir. 2015) (“Where the Illinois Supreme Court has not ruled
on an issue, decisions of the Illinois Appellate Courts control, unless there are
persuasive indications that the Illinois Supreme Court would decide the issue
differently.”). And because Jose Rosales participated as a member of the Merit Board
when it decided to terminate Bless (in fact, he was a signatory to the Board’s
decision), that decision, too, is void.
In response, Defendants pose two arguments. First, Defendants attempt to
distinguish this case from Taylor, contending that the Merit Board’s decision to
terminate Bless was not void because Rosales had merely signed the decision
terminating him, whereas in Taylor Rosales served as the hearing officer that
presided over the case. Id. But this hardly matters. As the Taylor court held, it was
Rosales’ “participation in the hearing and the decision of the Merit Board” that
required that the Merit Board’s decision be vacated and remanded. Taylor, 81 N.E.2d

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at 10 (emphasis added). Thus, the linchpin of the Taylor court’s decision was not
Rosales’s role as a hearing officer per se, but that, by serving as an unlawfully
appointed member of the Merit Board, his participation in the proceedings rendered
the actions of the entire Board void.
The Taylor court’s reliance upon Vuagniaux v. Dep’t of Prof’l Regulation, 802
N.E.2d 1156, 1162–65 (Ill. 2003), and Daniels, 775 N.E.2d at 938–40, only bolsters
this conclusion. In both cases, the Illinois Supreme Court invalided the decisions of
a state governmental body because one or more of its members was not lawfully
appointed. See Vuagniaux, 802 N.E.2d at 1162–64; Daniels, 775 N.E.2d at 938–40.
Applying the reasoning from Taylor, Vuagniaux, and Daniels to the instant case, the
Court concludes that it is likely that the Illinois Supreme Court would hold that the
Merit Board was unlawfully constituted and its decision to terminate Bless void as a
matter of law.
Defendants also argue that Taylor was incorrectly decided because the Sheriff
had implied authority to make interim appointments and the County Board had
“home rule authority” to approve Rosales as an interim Board member. Defs.’ Mem.
Opp’n at 17–19. But Taylor rejected these very arguments, 81 N.E.3d at 11, and a
federal court “is obligated to rely on existing state jurisprudence where possible.”
Simon v. Northwestern Univ., 259 F. Supp. 3d 848, 853 (N.D. Ill. 2017); see Bridewell
v. Eberle, 730 F.3d 672, 677 (7th Cir. 2013) (“Federal courts asked to rule on claims
arising under state law must take it as it exists.”). The Illinois Supreme Court
declined to review Taylor, and “in the absence of guiding decisions” from the Illinois

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Supreme Court, the Court “follow[s] the decisions of intermediate appellate courts”
when, as here, there is no “convincing reason to predict the state’s highest court would
disagree.” ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist., 672 F.3d 492, 498
(7th Cir. 2012).
In sum, Rosales was an unlawfully appointed member of the Merit Board at
the time that it adjudicated Bless’s case. As a result, the Merit Board was unlawfully
constituted, and its decision to terminate Bless must be vacated as void and
remanded for a hearing before a lawfully constituted Merit Board.
II.

The Appropriate Remedy is Remand to the Merit Board
In addition to seeking a reversal of the Merit Board’s decision, Bless asks the

Court to reinstate Bless with full back-pay and benefits. 3d Am. Compl. ¶ 120.
Defendants argue that the Court lacks authority to grant such a remedy and instead
can only remand the case to the Merit Board. Defs.’ Mot. Leave File Suppl. Mem. ¶ 3,
ECF No. 347.
When setting aside an administrative decision on the basis that the deciding
agency was unlawfully constituted, the Illinois Supreme Court has held that the
matter should be remanded to the agency for reconsideration. Vuagniaux, 802 N.E.2d
at 1166 (citing Daniels, 775 N.E.2d 936). Courts reviewing Merit Board decisions
have followed this rule. See Taylor, 81 N.E.3d at 10; Mitchem v. Cook Cty. Sheriff’s
Merit Bd., 554 N.E.2d 331, 335 (Ill. App. Ct. 1990) (reversing trial court’s award of
back pay and remanding the case to the Merit Board because a court is “limited in its
powers by the Administrative Review Act and could only affirm or reverse the order
of suspension with or without remand”). And the Court will do the same here.
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Conclusion
For the reasons stated herein, Plaintiff’s motion for partial summary judgment
[291] as to his administrative review claim (Count IV) is granted in part and denied
in part. The Merit Board’s decision to terminate Plaintiff’s employment is hereby
vacated as void and remanded to the Merit Board. In all other respects, Plaintiff’s
motion is denied.

IT IS SO ORDERED.

ENTERED 7/19/18

__________________________________
John Z. Lee
United States District Judge

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