Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

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BAGLEY v. BLAGOJEVICH (May 2, 2011)

In 2003, the Illinois Department of Corrections’ chain of command at its high-security facilities comprised 12 layers, including captain. Although the captains were not represented, other IDOC employees were. The American Federation of State, County and Municipal Employees represented sergeants and other employees in its RC-6 bargaining unit and represented lieutenants in its CU-500 bargaining unit. Another union, the Illinois State Employees Association attempted to organize the captains in 2002. At the same time, Illinois faced a huge budget deficit. Newly-elected Governor Blagojevich had promised to reduce spending and eliminate government management layers. So he proposed eliminating the captain position. After the Legislature passed a budget that included the captain position, Blagojevich vetoed it. Illinois' plan was to place the captains in other agencies, denote them to lieutenants, or lay them off. The AFSCME opposed the plan to place former captains into open lieutenant positions because it wanted its own members placed in those positions. Illinois also created a new position of "shift commander." Some captains became lieutenants and joined the CU-500 bargaining unit. IDOC calculated their seniority pursuant to the CBA as their demotion date. Some captains became officers and joined the RC-6 bargaining unit. IDOC gave additional seniority to these employees based on its interpretation of that CBA. The union objected and filed a grievance. IDOC and the union ultimately agreed to calculate seniority based only on the employee's continuous service after his return to the unit. A number of former captains sued Governor Blagojevich and other officials pursuant to § 1983, alleging that the elimination of the captain position and seniority treatment were in retaliation for their attempts to unionize. The plaintiffs sought to depose Blagojevich. Between February 2007 and October 2008, the parties fought over the deposition. The district court ultimately granted Blagojevich’s request for a protective order on legislative immunity grounds. Several months later, Judge Mills (C.D. Ill.) granted summary judgment to the governor, also on legislative immunity grounds. The other defendants then moved for summary judgment. The plaintiffs conceded, given the law of the case, that the other defendants were entitled to immunity on the job elimination claim. They did oppose summary judgment on the seniority retaliation count. Judge Mills granted summary judgment to the other defendants. He did not agree that the law of the case settled the immunity question and concluded that plaintiffs waived it by not contesting it. On the seniority retaliation claim, he concluded that there was no causal link between the union officials and the administration. Plaintiffs appeal.

In their opinion, Judges Kanne, Tinder, and Hamilton affirmed. The Court first addressed legislative immunity. Bogan tells us that the question of whether an action is legislative and therefore entitled to absolute immunity depends on the nature of the act rather than the actor's intent. There, the Supreme Court looked both to the form and substance of the action. Although the Court noted that Bogen does not require that two-part test, it nevertheless applied it. With respect to form, the Court had little difficulty in concluding that a governor's veto is legislative. In fact, the plaintiffs forfeited the point. With respect to substance, the Court distinguished an individual firing with the elimination of a position (and noted that other circuits applied the same distinction). The termination of one employee's job is not legislative in substance -- but the elimination of an entire position is. Having concluded that Blagojevich's acts were legislative, the Court stated that he was thus entitled to immunity both from the suit and from defending himself in the suit. The district court did not abuse its discretion in blocking the deposition. With respect to the seniority retaliation count, the Court agreed with the district court that the evidence presented on the record was insufficient to create a genuine dispute of fact on causation.