holding that allegations of alcohol consumption during business hours, the falsifying of mile- age charges, the inappropriate taking of sick and vacation days, the misappropriation of public funds and the act of sleeping on the job, communicated to judges, county board members and the state’s attorney’s office constituted matters of public concern
How later courts described this case
- holding that allegations of alcohol consumption during business hours, the falsifying of mile- age charges, the inappropriate taking of sick and vacation days, the misappropriation of public funds and the act of sleeping on the job, communicated to judges, county board members and the state’s attorney’s office constituted matters of public concern
- determining that speaking out about the drinking of alcohol by government employees during business hours, in addition to other conduct, constituted speech of a public concern
- holding that evidence that plaintiff found employment after termination demonstrated that plaintiff could not show liberty deprivation
- recognizing that conflict may have begun because of dispute about promotion
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
concurring in part and dissenting in part:
I concur in all aspects of the lucid and persuasive majority opinion except for the section finding the judges, Messrs. Spitz, Sunderman and Canada, absolutely immune as a matter of law. It may be that these judges should enjoy absolute immunity, but the district court has never ruled on the matter, and I believe the issue should be remanded to the district court for fact-finding. The root of the problem is that these judges did not act within their “judicial” jurisdiction (as I understand the term). This was not litigation brought before them in normal course for their decision as judges. Rather the question was administrative or executive in nature: whether to discharge an individual with respect to whom the Circuit Court wielded ultimate supervisory authority. See 111. Rev.Stat. ch. 38 §§ 204-1, et seq. (1981).
*1157 It is certainly arguable that Butz v. Economou, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978), would support absolute immunity for these administrative acts performed by judges proceeding in a fashion generally associated with a formal adjudication. On the other hand, the judges’ acts challenged in the present case relate to the resolution of internal personnel matters rather than to the enforcement against outside parties of agency regulations or statutes as in Butz. Cf. Cleavinger v. Saxner, 474 U.S. 193 , 106 S.Ct. 496, 503 , 88 L.Ed.2d 507 (1985) (denying absolute immunity for prison disciplinary committee members functioning as adjudicators in disciplinary proceedings); Wood v. Strickland, 420 U.S. 308, 320 , 95 S.Ct. 992, 1000 , 43 L.Ed.2d 214 (1975) (denying absolute immunity for school board members enforcing disciplinary regulations in the school); Forrester v. White, 792 F.2d 647, 653-54 (7th Cir.1986) (describing cases regarding immunity for judicial personnel decisions), cert. granted, — U.S. -, 107 S.Ct. 1282 , 94 L.Ed.2d 140 (1987).
Despite repeated declarations by the courts that it is function rather than status which controls, see, e.g., Butz, 438 U.S. at 511-12 , 98 S.Ct. at 2913-14 , there seems to me to be a bias in the cases toward granting absolute immunity to judges — even when they are acting in matters of personnel administration, cf. Forrester v. White, 792 F.2d at 658-64 (Posner, J., dissenting), cert. granted, — U.S. -, 107 S.Ct. 1282 , 94 L.Ed.2d 140 (1987). On the other hand, there is in the cases a thread of reluctance to recognize absolute immunity where a discharge is at stake, see id., 792 F.2d at 653-54 . Finally, there is the important factor of formal adjudicatory procedures as a protection against error, which argues for absolute immunity. See Butz, 438 U.S. at 513-14 , 98 S.Ct. at 2914-15 , cf. Cleavinger v. Saxner, 106 S.Ct. at 501 .
In the instant case, I believe this is a very close question and fact-finding about the relation of the judges to the plaintiff and about the precise nature of the judges’ proceedings might clarify the issue. I would therefore remand on this point and to this extent I respectfully dissent from an opinion which in all other respects I find exemplary.