# William J. Benson v. William J. Scott and Herbert Caplan > Court of Appeals for the Seventh Circuit · July 2, 1984 · 734 F.2d 1181 URL: https://www.frixlaw.com/law-library/cases/9472189 ## Case - **Full name:** William J. BENSON, Plaintiff-Appellant, v. William J. SCOTT and Herbert Caplan, Defendants-Appellees - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** July 2, 1984 - **Citations:** 734 F.2d 1181 - **Precedential status:** Published - **Opinion:** Concurring in part by Wood - **Judges:** Wood, Eschbach, Swygert - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9472189 ## Opinion text HARLINGTON WOOD, Jr., Circuit Judge, concurring and dissenting. Although I gladly join Judge Eschbach in Part A of his opinion affirming the grant of summary judgment in behalf of the defendants on plaintiff’s due process claim, I respectfully dissent from Part B reversing the grant of summary judgment in behalf of defendants on plaintiff’s First Amendment claim. Some additional overview may be helpful. This case is a minor remnant of class action litigation begun in 1974 against the Illinois Department of Revenue concerning the enforcement of the Illinois Cigarette Tax Act against persons bringing cigarettes into the State of Illinois. Benson, who was not named in that suit, was under contract to the Department to provide certain technical services in enforcement of the Act. That contract expressly provided that Benson was to be an “independent contractor” with the exception that he would be considered a state employee for liability purposes only, so that he would be covered by the Department’s insurance. In 1975, four separate civil rights actions were filed in the district court concerning the Act’s enforcement. Benson was named as a defendant along with others in the Department. There were also four other related civil rights actions pending in which Benson was not involved. During the course of all this litigation, Benson filed an affidavit critical of the Department. Three days later his contract was terminated. His employment contract provided that it was terminable on written notice by either party. The Illinois Attorney General initially represented all defendants, including Ben *1187 son, in all eight civil rights suits. However, it soon appeared to the Attorney General, not surprisingly, that there was no way to harmonize the defenses of his various state clients. All defendants were advised to retain their own counsel and the Attorney General withdrew as counsel in all the cases except in behalf of himself as a separate defendant. In addition to the eight civil rights eases already pending, Benson added two more of his own: one against the Director of the Department and others; and a second against the Governor and others. Benson complained that due process entitled him to a hearing before his technical services contract was terminated, and secondly, that he was entitled to another hearing before the Attorney General could withdraw as his counsel. Benson no longer contests the validity of his employment contract termination. In the four civil rights suits in which Benson was a defendant, the state insurance carrier provided Benson with counsel without expense to him after the Attorney General withdrew. Benson nevertheless later also hired two private attorneys for those cases. In 1977, before all this was over, new state legislation was passed providing for representation of state employees in certain civil cases, but not for independent contractors. Citing this Act, Benson again requested that the Attorney General represent him in the civil rights actions in which he was a defendant, claiming that the other state defendants had been reimbursed for their private counsel. The Attorney General again declined to represent Benson since he viewed Benson as an independent contractor and therefore as not entitled to that representation. Benson then tried in one of his own civil rights actions in which he was plaintiff to prevent the Attorney General from authorizing use of private counsel for the state defendants he had named. Former Judge Alfred Kirkland ruled that the Attorney General had properly declined representation due to a conflict of interest and had not exceeded his powers in authorizing private counsel. Later, Judge McMillen approved settlement of the four civil rights cases in which Benson had been a defendant, all without any financial liability falling on Benson. In Benson’s own two consolidated civil rights cases, former Judge John Crowley entered partial summary judgment against Benson because Benson failed to show a property interest in continued employment, and further on the ground that Benson had no cause of action against the Department for withdrawal of state-supplied legal counsel. On Benson’s motion for reconsideration, Judge Aspen, now favored with those cases, ruled as Judge Crowley had before him, but noted that Benson did have counsel supplied by the state’s insurance carrier. Benson then sought to add as defendants, Scott, then Attorney General, and Ca-plan, his assistant. That was denied. Now we finally get to this separate civil rights lawsuit which Benson next filed naming Scott and Caplan as defendants, and charging due process and First Amendment violations in his lack of state representation. Judge Roszkowski first drew this lawsuit, but after some additional activity, the case was reassigned to Judge Hart, whose summary judgment decision we are now reviewing. In Judge Hart’s summary judgment proceeding, the facts of Benson’s actual representation were clarified. Benson was supplied counsel by the state insurance carrier without expense to him in the four civil rights actions in which he was a defendant and which were finally settled without expense to Benson. The insurance carrier had for a time, in addition, also partially paid the fees of Benson’s private attorneys. There was a period when the expenses of Benson’s private attorneys were not paid by the insurance carrier, but that was simply because the insurance carrier was providing Benson with other counsel without expense to Benson. What the case really amounted to was that Benson claimed he was entitled to be represented by two sets of attorneys at state expense. *1188 Judge Hart held against Benson, granting defendants’ motion for summary judgment on the basis that the state defendants enjoyed qualified immunity and that Benson had not been deprived of property rights without due process. Now, after ten years of litigation, twelve separate lawsuits (one of which Benson was a witness in, four of which he was a defendant in, and three of which he started on his own), and more than five district court judges later, it is doubtful that anyone remembers or cares that what originally started all this was cigarettes. Those cases were all long ago disposed of, but Benson has managed to perpetuate this litigation remnant. Benson emerged from the original litigation with no liability and no need to have personally expended anything for his legal representation. Now he has succeeded in involving us in peripheral constitutional issues about which we cannot agree. The mere brief recitation of this litigation story suggests to me that, as a practical matter, much of it was unnecessary. I would affirm on the basis of Judge Hart’s memorandum opinion in less time than it takes to recount Benson’s stubborn continuing quarrel with everybody. As the majority correctly points out, to overcome a claim of qualified immunity by an executive official, the official’s conduct must “violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982). Benson was labeled an independent contractor in the contract he signed, so he appeared not to be entitled to state representation before or after the new Act was passed. State employees are not hired by a special contract as independent contractors who may be fired, with or without cause; they are just hired. The Attorney General took the logical, reasonable position that Benson was an independent contractor and, as such, was excluded from representation. Nothing suggests otherwise. In spite of these circumstances, Benson claims that the defendants’ refusal to provide substitute representation or to reimburse him for his legal expenses are in retaliation for exercising his First Amendment rights. However, counsel was furnished to Benson without expense by the state’s insurance carrier, and the private counsel expense Benson assumed for only a short time was of his own unnecessary doing. Although I agree with the majority that to premise the denial of a valuable government benefit on a person’s exercise of his First Amendment rights violates the First Amendment even if no independent legal entitlement to that benefit exists, I believe that the defendants’ refusal to reimburse Benson for the fees of his privately-retained attorneys was objectively reasonable under Harlow . If, after the Attorney General withdrew from his joint representation of all defendants in the eight civil rights cases, the state had initially agreed to pay Benson for substitute legal representation but then refused to continue after Benson criticized the Department, Benson might have a First Amendment claim. But such is not the case. I believe the state officials had qualified immunity and were entitled to it. I consider Benson’s alleged whistle-blowing to be an irrelevant non-First Amendment issue in these circumstances. There is some question about disposing of all of this by summary judgment, but the material facts are not disputed by anything except legal arguments and collateral allegations that would require us to search unnecessarily behind the technical services contract and to assume the Attorney General was wrong about his ethical decision and his informed view of the circumstances upon which he reasonably acted. In Harlow, 102 S.Ct. at 2737 (quoting Butz v. Economou, 438 U.S. 478, 507 , 98 S.Ct. 2894, 2911 , 57 L.Ed.2d 895 (1978)), the Supreme Court reaffirmed that: “In identifying qualified immunity as the best attainable accommodation of competing values ... we relied on the assumption that this standard would permit ‘[i]nsubstantial lawsuits [to] be quickly terminated.’ ” I would recognize the qualified immunity of the *1189 state defendants and bring all this to a long overdue close. As it is, the next issue will be Benson’s claim for fees in this appeal followed by more proceedings before yet another district court judge and another appeal by one of the parties back to this court. I would support Judge Hart in his disposition of this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9472189. Public record. Not legal advice.