Haney v. Winnebago County Board

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

FRANK HANEY, et al.,

Plaintiffs, Case No. 3:19-cv-50191

v.

Judge John Robert Blakey

WINNEBAGO COUNTY BOARD,

COUNTY OF WINNEBAGO, et al,

Defendants.

MEMORANDUM OPINION AND ORDER

Winnebago County Chairman Frank Haney accuses the County and its Board

of passing ordinances that strip him of his duties and responsibilities. Haney and

certain other registered voters sue the County, the Board, and the Board’s members

in their official capacities under both federal and Illinois law. [1]. They also seek a

preliminary injunction barring Defendants from enforcing the ordinances. [8]. For

the reasons explained below, this Court denies their motion.

I. Background

A. Factual Background

1. The Parties

Haney serves as the Chairman of the Winnebago County Board. [1] ¶ 4; [26]

at 4. Haney was also a registered voter who voted in the November 8, 2016 election

for Chairman. [1] ¶ 4. The other named Plaintiffs reside in Winnebago County and

voted in the 2016 election. Id. ¶ 5.

Defendant Winnebago County (County) constitutes an Illinois unit of local

government. Id. ¶ 6. Defendant Winnebago County Board (Board) comprises 20

members; these members are voted on by individual county board districts. Id. ¶ 7.

The Chairman, on the other hand, serves as a non-member of the Board elected by

voters in the County. Id. ¶ 8; [26] at 5. The remaining Defendants—David Boomer,

Dave Fiduccia, Joe Hoffman, Fred Wescott, Jim Webster, Jamie Salgado, Angie

Goral, Dorthy Redd, Dave Tassoni, Burt Gerl, Steve Schultz, Keith McDonald, and

Paula Arena—reside in the County and serve on the Board. [1] ¶ 9.

2. The Ordinances

The County elected Haney to the position of Chairman in November 2016. Id.

¶ 12. At the hearing on the current motion, Haney testified that corruption existed

in the County prior to his election. [26] at 5. For example, as Haney testified, a

former purchasing director for the County was convicted on federal embezzlement

charges; and, another former chairman took a piece of government property that the

FBI ultimately confiscated. Id.

When running for Chairman, Haney’s platform included reforming corrupt

practices. Id. at 6. Haney’s platform, which he named ACT (short for Accountable,

Collaborative, and Transparent), included proposed reforms such as: (1)

implementing nepotism policies; (2) imposing transparency initiatives regarding

financial and budget matters; and (3) supporting a reduction in mid-year reserve

spending. Id.; [1] ¶ 13. Haney claims that he has attempted to implement these and

other reforms since his election to Chairman, [1] ¶ 14, and that the Board resisted

those efforts, [26] at 12. In his testimony, Haney speculated that, in his opinion, “in

some cases there was behind-the-scenes triangulation to undercut my involvement”

as Chairman. Id.

Haney further claimed that his reform efforts have been thwarted by the

Board’s passage of ordinances during his term that have curtailed the authority of

and powers of the Chairman position. [1] ¶ 15. Specifically:

1. Ordinance 2017-CO-067 provides that the Chairman cannot terminate the

County Administrator or Chief Financial Officer without Board approval.

Prior to this ordinance, the Chairman possessed sole authority regarding the

employment status of these positions. Id. ¶ 16.

2. Ordinance 2017-CO-110 removed the requirement that the County

Administrator must reside within the County; it also allows the County

Administrator to appoint his or her designee to assist in supervising County

departments, rather than the Chairman. Id.

3. Ordinance 2018-CO-075 shifted numerous duties from Chairman to County

Administrator, including appointing and dismissing department heads, union

negotiations, and other financial duties. Id.

4. Ordinance 2019-CO-005 strips the Chairman of his authority and power to

supervise, direct, and control the County Administrator, instead placing such

authority with the Board. Haney alleges that it also removed the Chairman’s

ability to assign other duties to the County Administrator. Id.

5. Finally, Ordinance 2019-CO-040 removes the Chairman’s executive authority

to, among other things, fire the County Administrator, recommend a budget,

participate in short-term planning, and negotiate any economic or other

operational agreements. Id.

Haney testified to his belief that these ordinances have rendered the Chairman

position absent from the County’s organizational chart. [26] at 16. He also testified,

however, that he maintains his office, his salary, a County-issued car, and health

insurance. Id. at 32.

B. Procedural Background

In August 2019, Plaintiffs brought a nine-count complaint against Defendants.

In Count I, they allege that Defendants violated 42 U.S.C. § 1983 by enacting

ordinances that stripped the Chairman of his duties, claiming such actions violated

their Fourteenth Amendment right to equal protection of their vote. [1] ¶¶ 22–28.

Similarly, Count II asserts that Defendants violated Article III of the Illinois

Constitution by depriving them of their right to vote. Id. ¶¶ 29–34. Count III claims

that Defendants engaged in First Amendment retaliation by enacting ordinances

stripping Haney of his duties in retaliation for Haney’s speech about governmental

and ethical reforms. Id. ¶¶ 35–39. Counts IV and V allege federal constitutional due

process violations as a result of the passage of the ordinances, which Plaintiffs allege

constructively terminated Haney as Chairman. Id. ¶¶ 40–53. Count VI claims that

a constitutional equal protection violation based upon a class-of-one theory. Id. ¶¶

54–58. Count VII asserts a common law retaliation claim against Defendants. Id.

¶¶ 59–61. Finally, Counts VIII and IX assert Illinois constitutional due process

claims. Id. ¶¶ 62–75.

Plaintiffs contemporaneously moved for a preliminary injunction on their right

to vote, due process, and equal protection claims. [8]; [9] at 8. Plaintiffs seek to

preliminarily enjoin Defendants from enforcing the five ordinances described above.

[9] at 2–3. Defendants filed a written response, [16], and this Court held an

evidentiary hearing on Plaintiff’s motion in November 2019, [26].

II. Legal Standard

A preliminary injunction constitutes “an extraordinary remedy” reserved for

exceptional cases. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); Girl

Scouts of Manitou Council, Inc. v. Girl Scouts of the United States of Am., Inc., 549

F.3d 1079, 1085 (7th Cir. 2008). As such, a party seeking a preliminary injunction

must establish it has a likelihood of success on the merits, Adkins v. Nestle Purina

PetCare Co., 779 F.3d 481, 483 (7th Cir. 2015), that it has no adequate remedy at law,

and that it will suffer irreparable harm if a preliminary injunction is denied, Stuller,

Inc. v. Steak N Shake Enters., Inc., 695 F.3d 676, 678 (7th Cir. 2012); see also Wis.

Right to Life, Inc. v. Barland, 751 F.3d 804, 830 (7th Cir. 2014).

If the moving party meets these threshold requirements, this Court then

“must consider the irreparable harm that the nonmoving party will suffer if

preliminary relief is granted, balancing such harm against the irreparable harm the

moving party will suffer if relief is denied.” Stuller, 695 F.3d at 678 (quoting Ty, Inc.

v. Jones Grp., Inc., 237 F.3d 891, 895 (7th Cir. 2001)). To do so, this Court must also

consider the public interest in granting or denying the injunction. Id. This Court

uses a “sliding scale approach” when weighing these considerations. Christian Legal

Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006).

III. Analysis

Plaintiffs seek to enjoin Defendants from enforcing the ordinances. [9] at 3.

Defendants oppose, arguing that: (1) the voter Plaintiffs lack standing to sue; (2)

Burford abstention requires this Court to decline exercising jurisdiction over this

case; and (3) Plaintiffs are unlikely to succeed on the merits of their claims. [16].

Because standing and abstention implicate this Court’s subject matter jurisdiction,

this Court addresses those issues first. Ruhrgas AG v. Marathon Oil Co., 526 U.S.

574, 576–77 (1999); Meyers v. Nicolet Rest. of De Pere, LLC, 843 F.3d 724, 726 (7th

Cir. 2016); Hinrichs v. Speaker of House of Reps. of Ind. Gen. Assembly, 506 F.3d 584,

590 (7th Cir. 2007).

A. Standing

Article III of the Constitution limits “federal judicial power to certain ‘cases’

and ‘controversies.’” Silha v. ACT, Inc., 807 F.3d 169, 172–73 (7th Cir. 2015) (quoting

Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–60 (1992)). To establish Article III

standing, a plaintiff must show that: (1) he has suffered an “injury in fact” that is (a)

concrete and particularized and (b) actual or imminent, not conjectural or

hypothetical; (2) the injury is fairly traceable to the challenged action of the

defendant; and (3) it is likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision. Id. at 173 (quoting Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180−81 (2000); Lujan, 504 U.S. at

560−61). The party invoking federal jurisdiction bears the burden of establishing the

elements of Article III standing. Lujan, 504 U.S. at 561.

Here, the parties do not dispute that Haney possesses standing to sue. And

this Court agrees that Haney demonstrates standing. He claims he suffered and

continues to suffer harm resulting from the Board’s passage of ordinances that

eliminated his duties as Chairman; and this Court can redress his injuries by

enjoining the County from enforcing the ordinances. [1] ¶¶ 15–16, 19. Haney thus

satisfies the requirements of Article III standing.

Nonetheless, Defendants argue that the voter Plaintiffs—i.e., all Plaintiffs

except Haney—lack standing. [16] at 3–4. More specifically, they contend the voter

Plaintiffs’ votes were counted, and thus suffered no concrete injury. Id. The voter

Plaintiffs counter that their injuries stem from the Board’s obliteration of their votes

for Haney by effectively removing Haney’s responsibilities as Chairman. [20] at 5.

In any event, this Court need not resolve this dispute because where “at least one

plaintiff has standing, jurisdiction is secure and the court will adjudicate the case

whether the additional plaintiffs have standing or not.” Tierney v. Advocate Health

& Hosps. Corp., 797 F.3d 449, 451 (7th Cir. 2015) (quoting Ezell v. City of Chicago,

651 F.3d 684, 696 n.7 (7th Cir. 2011)); see also Korte v. Sebelius, 735 F.3d 654, 667

n.8 (7th Cir. 2013). Because Haney demonstrates standing, this Court “need not

consider whether the other . . . plaintiffs have standing to maintain the suit” at this

early point in the proceedings. Bond v. Utreras, 585 F.3d 1061, 1070 (7th Cir. 2009)

(internal quotation marks omitted).

B. Burford Abstention

Abstention pursuant to the Supreme Court’s decision in Burford v. Sun Oil

Company, 319 U.S. 315 (1943) remains appropriate in only two circumstances: (1)

where there exists “difficult questions of state law bearing on policy problems of

substantial import whose importance transcends the result in the case”; or (2) where

the “exercise of federal review of the question in a case and in similar cases would be

disruptive of state efforts to establish a coherent policy with respect to a matter of

substantial public concern.” Hammer v. U.S. Dep’t of Health & Human Servs., 905

F.3d 517, 531 (7th Cir. 2018) (quoting New Orleans Pub. Serv., Inc. v. Council of City

of New Orleans, 491 U.S. 350, 361 (1989) (NOPSI)).

Defendants argue that the first type of Burford abstention applies here

because the case revolves around the legality of the ordinances, which raise unique

questions of state law. [16] at 2–3. Bearing a heavy burden to demonstrate that

abstention applies, Morton Coll. Bd. of Trustees of Illinois Cmty. Coll. Dist. No. 527

v. Town of Cicero, 18 F. Supp. 2d 921, 924 (N.D. Ill. 1998), Defendants here fail to

offer any explanation as to why they believe any state-law issues in this case are

difficult, see generally [16] [26]. To the contrary, Plaintiff raises various federal and

state constitutional claims—topics this Court frequently considers and adjudicates.

Based upon the record, Defendants simply fail to give this Court any basis to abstain

under Burford.

C. Likelihood of Success on the Merits

Plaintiffs move for a preliminary injunction on three sets of claims: (1) right

to vote; (2) due process; and (3) class-of-one equal protection. [9] at 8–12. The crux

of each claim lies in Plaintiff’s theory that Defendants violated the law by passing

ordinances restricting his duties and responsibilities. See id.

Before reaching the merits, this Court notes that Defendant Board is not a

suable entity. Moule v. Winnebago Cty., No. 03 C 50121, 2003 WL 22071572, at *2

(N.D. Ill. Sept. 5, 2003); see also, e.g., Wright v. Bd. of Cty. Comm'rs of Cook Cty., Ill.,

No. 99C1998, 1999 WL 1249313, at *3 (N.D. Ill. Dec. 17, 1999) (dismissing Cook

County Board of Commissioners as an improper party), aff’d sub nom. Wright v.

Pappas, 256 F.3d 635 (7th Cir. 2001); Fabiszak v. Will Cty. Bd. of Comm’rs, No. 94 C

1517, 1994 WL 698509, at *2 (N.D. Ill. Dec. 12, 1994) (“In Illinois, a County Board of

Commissioners is not an entity separate from the county, rather, its powers are co-

extensive with the county.”). Accordingly, this Court sua sponte dismisses the Board

from this case. Moule, 2003 WL 22071572, at *2.

1. Right to Vote

Plaintiffs move for a preliminary injunction on their “right to vote” claims,

arguing that Defendants’ passage of ordinances have constructively terminated

Haney from his position as Chairman, thus invalidating Plaintiffs’ votes for Haney

in the 2016 election. [9] at 8–9.

As a preliminary matter, Plaintiffs fail to specify whether they move on Count

I (alleging a violation of the U.S. Constitution’s equal protection clause) or Count II

(alleging a violation of article III of the Illinois Constitution). See generally [9]; [20].

Plaintiffs, however, devote no discussion to the federal Constitution’s equal protection

clause, confining his analysis to Illinois caselaw interpreting the Illinois Constitution.

See [9] at 8–9; [20] at 5–8. Because a party waives “perfunctory and undeveloped

arguments,” as well as those arguments “unsupported by pertinent authority,” Crespo

v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016) (internal quotation marks omitted),

Plaintiffs’ utter failure to discuss their federal equal protection claim constitutes a

waiver of that claim for purposes of this motion.

Turning now to the merits of Plaintiffs’ right to vote claim premised upon the

Illinois Constitution, Defendants argue that Plaintiffs’ alleged constitutional injury

does not give rise to a cognizable right to vote claim, [16] at 5, and this Court agrees.

In support of their right to vote claim, Plaintiffs rely entirely upon Tully v.

Edgar, 664 N.E.2d 43 (Ill. 1996), which considered the application of the Illinois

Constitution’s guarantees of the fundamental right to vote and to have that vote

counted. Id. at 48 (citing Ill. Const. art. III, § 1). There, the plaintiff challenged the

constitutionality of an Illinois statute that changed, mid-term, the position of trustee

of a state university’s board of trustees from an elected to an appointed office. Id. at

47–48. The plaintiff argued that the state law violated his voting rights under the

Illinois Constitution because it cut short the elected trustees’ terms, thus nullifying

the “result of a valid election.” Id. at 48. The Illinois Supreme Court agreed, holding

that the statute implicated the constitutional right to vote because “it establishes a

mechanism for total disregard of all votes cast by citizens in a particular election.”

Id. at 49.

The facts here do not fit within Tully’s framework. Indeed, as a post-Tully

Illinois appellate court observed, Tully stands for the narrow proposition that “‘post-

hoc’ legislation that attempts to remove elected officials from office by changing an

elective office to an appointive office infringes on the voters’ fundamental and

constitutionally protected suffrage rights.” People by Foxx v. Agpawa, 105 N.E.3d

846, 853 (Ill. App. Ct. 2018) (emphasis added). The Tully court itself also made clear

that the facts of that case implicated the plaintiff’s right to vote because his vote “is

not simply diluted, but is totally nullified by the statutory scheme.” 664 N.E.2d at

49.

Here, in contrast, the ordinances did not transform the Chairman position from

an elected to an appointed position. This is a significant distinction because Tully’s

holding rested upon the complete elimination of a public office elected by voters. The

record does not establish the total nullification of votes recognized in Tully.

Defendants did not remove Haney as Chairman of the Board through the passage of

ordinances. Rather, as the hearing testimony made clear, Haney remains the

Chairman of the Board; and in that capacity, he maintains his office, his salary, a

County-issued car, and health insurance. [26] at 32. Moreover, the parties do not

dispute that Haney retains numerous responsibilities as Chairman, including, for

example: (1) developing the County’s legislative agenda along with the Board; (2)

appointing positions as required by Illinois state law; and (3) representing the County

on economic development opportunities. [16-3] at 1.

In short, while it might remain the case that the ordinances did, in fact,

lawfully strip Haney of various duties, it stretches Tully’s holding too far to say that

Plaintiffs’ right to vote is implicated under the circumstances presented by the record

here. The record demonstrates that Haney continues to serve as Chairman,

maintains his salary, benefits, and car, and continues to retain numerous

responsibilities. Tully does not recognize a constitutional “right to vote” violation

simply based upon the narrowing of the duties of an elected position. Absent any

other authority, Plaintiffs fail to demonstrate that their alleged injury implicates the

right to vote guaranteed by the Illinois Constitution.

For this reason, this Court finds that Plaintiffs fail to show their likelihood of

success on the merits of their right to vote claim.

2. Due Process

Next, Haney brings both substantive and procedural due process claims under

the Fourteenth Amendment of the U.S. Constitution and the Illinois Constitution.

This Court employs the same analysis for Haney’s claims under both the federal and

Illinois state Constitutions. Rosario v. Ret. Bd. of Policemen’s Annuity & Ben. Fund

of City of Chicago, No. 10 C 1512, 2013 WL 842651, at *7 (N.D. Ill. Mar. 6, 2013)

(“Federal courts examining potential violations of the Due Process Clause of

the Illinois Constitution apply the same tests as applied to potential violations of

the Due Process Clause of the federal Constitution.”), aff’d sub nom. Rosario v. Ret.

Bd. of Policemen’s Annuity & Ben. Fund for City of Chicago, 743 F.3d 531 (7th Cir.

2014).

Both substantive and procedural due process claims require a plaintiff to

identify a constitutionally protected right to property or liberty. Campos v. Cook Cty.,

932 F.3d 972, 975 (7th Cir. 2019); Milwaukee Police Ass’n v. Flynn, 863 F.3d 636, 640

(7th Cir. 2017); Khan v. Bland, 630 F.3d 519, 535 (7th Cir. 2010). Here, Haney posits

that his Chairmanship constitutes the relevant property interest. [20] at 8. In

support, Haney cites Brown v. Perkins, where an Illinois federal court questioned

whether elected officials might possess property interests in their offices. 706 F.

Supp. 633, 634 (N.D. Ill. 1989). That case, however, ultimately recognized that the

Supreme Court has expressly held that an elected political official lacks a property

right in his office. Id. (citing Taylor v. Beckham, 178 U.S. 548, 567 (1900); Snowden

v. Hughes, 321 U.S. 1, 7 (1944)).

The Supreme Court has not overruled those holdings. Thus, this Court

remains bound by the Supreme Court’s instruction that, as an elected official, Haney

lacks a constitutionally cognizable protected property interest in his elected position

as Chairman. See Taylor, 178 U.S. at 576 (“public office is not property.”); see also,

e.g., Velez v. Levy, 401 F.3d 75, 86–87 (2d Cir. 2005) (holding that the plaintiff “lacks

a constitutionally protected property interest in her elected position sufficient to

support a due process claim”); Ford v. Donovan, 891 F. Supp. 2d 60, 66 (D.D.C. 2012)

(noting that “an elected official has no cognizable property interest in the office he

holds”). Because Haney fails to identify a cognizable property interest, his due

process claims fail at the outset. Accordingly, Haney also fails to demonstrate the

likelihood of success on the merits of his due process claims.

3. Class-Of-One Equal Protection

Next, Haney moves for a preliminary injunction on his Fourteenth Amendment

equal protection claim based upon a class-of-one theory. [9] at 11–12. To prevail on

this claim, Haney must demonstrate that: (1) he was “intentionally treated differently

from others similarly situated”; and (2) “there is no rational basis for the difference

in treatment.” Chicago Studio Rental, Inc. v. Ill. Dep’t of Commerce, 940 F.3d 971,

979 (7th Cir. 2019) (quoting Paramount Media Grp., Inc. v. Vill. of Bellwood, 929 F.3d

914, 920 (7th Cir. 2019)); Geinosky v. City of Chicago, 675 F.3d 743, 747 (7th Cir.

2012). Here again, Haney fails to demonstrate the likelihood of success on the merits

of this claim.

The Supreme Court has held that the “class-of-one theory of equal protection

does not apply in the public employment context.” Engquist v. Or. Dep’t of Agr., 553

U.S. 591, 598 (2008); see also Frederickson v. Landeros, 943 F.3d 1054, 1061 (7th Cir.

2019); Forgue v. City of Chicago, 873 F.3d 962, 968 (7th Cir. 2017); D.B. ex rel. Kurtis

B. v. Kopp, 725 F.3d 681, 685 (7th Cir. 2013). In reaching this conclusion, the Court

reasoned that, while the Constitution prohibits the government from treating private

citizens differently based upon subjective, individualized assessments when acting as

a legislator or regulator, the government faces no similar restraints when acting as

an employer. Engquist, 553 U.S. at 604. Indeed, the government possesses

“significantly greater leeway in its dealings with citizen employees.” Id. at 599.

And while the plaintiff in Engquist constituted a hired public employee, other

federal courts have recognized that Engquist applies equally to elected public

officials. See Dyer v. Maryland State Bd. of Educ., 187 F. Supp. 3d 599, 619 (D. Md.

2016), aff’d, 685 F. App’x 261 (4th Cir. 2017); Gus Kramer v. Cty. of Contra Costa, No.

C 12-3604 CRB, 2012 WL 6608979, at *3 (N.D. Cal. Dec. 18, 2012); Blank v. Benzie

Cty. Bd. of Comm’rs, No. 1:10-CV-201, 2012 WL 1085471, at *5 (W.D. Mich. Mar. 30,

2012). Engquist thus forecloses Haney’s class-of-one equal protection claim.

D. This Court Denies Plaintiffs’ Motion

Because Plaintiffs fail to demonstrate the likelihood of success on the merits

of their claims, this Court need not conduct further analysis as to the remaining

preliminary injunction factors or the balancing of harms. GEFT Outdoors, LLC v.

City of Westfield, 922 F.3d 357, 367 (7th Cir. 2019); Valencia v. City of Springfield,

Illinois, 883 F.3d 959, 966 (7th Cir. 2018). This Court denies Plaintiffs’ motion.

IV. Conclusion

For the reasons explained above, this Court denies Plaintiffs’ motion for

preliminary injunction [8]. This case remains set for a status hearing on 4/17/20 at

1:00 p.m. in Rockford, at which time the parties shall come prepared to set case

management dates for the remaining life cycle of the case.

Dated: March 18, 2020

ENTERED:

(Lan Sue y

United States District Judge

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