Petition — Walker v. Colaizzi

, FILED.

woe’ *“T785 DEC 9 1976

, IR., CLERK

Iu the

Supreme Court of the United States

Ocronsr Team, 1976

DANIEL WALKER, Governor of the State of Dlinols,

DONALD PAGE MOORE, Director, Office of Special

Investigations, State of Illinois, and LAURI STAPLES,

Petitioners,

v6.

SAMUEL OOLAIZZI, SAMUEL INDOVINA, THEODORE

MAROS, RAMON SCULLY and ZENITH ASSOCIATES, INO,,

an Illinois Corporation,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH OIROUIT

THOMAS P. | ULLIVAN

LARRY M. WOLFSON

Attorneys for Petitioners

Of Counsel;

JENNER & BLOCK

One IBM Plaza

Chicago, Illinois 60611

(312) 222-9350

A EEE

UNITED STATES LAW PRINTING CO,, CHICAGO, ILLINOIS GOG18 (312) 525-6581

— ee eee oe

TABLE OF CONTENTS

PAB

NEY TEIN’ Sexnssssssiensesconthecstnessnsinensenenabstatbenianenpesnssasooenes 2

PUI «ciistctreennnnnnmn 2

Questions Presented oo... aL + 0 EER ee Oe 2

Constitutional Provisions and Statutes Involved .. 2

IT IY GI po chctcccennsnistastsnataptenscnstensecneconsmenecensnces 3

Allegations of the Complaint ooccccccccmenn 3

Ruling of the District Court. occ 6

Unemployment Compensation Hearings and De-

a 6

Court of Appeal’s DeeisiOh oooccccccccccccemeeseeesnven 7

Reasons for Granting The Writ coccccccccccccecemecenes 9

I, The Decision Below Is In Direet Conflict With

Controlling Decisions Of This Court ............... 9

A. The Governor’s Announcement of the Rea-

sons For His Official Actions Are Absolutely

Privileged And Cannot Form The Basis For

a Federal Civil Rights Suit .........000.. 9

B. Even if Plaintiffs’ Liberty Interests Were Ln-

plicated By The Governor's Statements,

Plaintiffs Received Due Process In The

Form of Post-Discharge Administrative Hear-

Il, Federal Court Review of Public Statements and

Personnel Decisions By The Chief Executive Of-

ficer Of The State Raises Important And Novel

Questions Under ‘The First and Fourteenth

pe 12

I ___.emmenibilineiseiiiemeniisinen 15

PAOB

GTI . cunenstuieintienenmannsnciamniaimens App. 1

GTS senseasnersnsseresnscssessreneamnemennsesngnnens App. 11

Appendix 3— Decision of Unemployment Compensa.

tion Hearing Referee Finkel in Samuel

Colaizzi, Appeal Docket No, AR 74 ©

a h cnscuninsneeseeuntneiehaninnalnts App. 12

Appendix 4—Decision of Unemployment Compensa-

tion Hearing Referee Finkel In Sam

R. Indovina, Appeal Docket No, AR 74

© Ge eeeaines pesneminnenning App. 15

Appendix 5—Constitutional Provisions and Statutes

I isencterennecmctbepteretnntnenetiens App. 17

Appendix 6—Press Release From The Office of the

Governor (Exhibit A to Complaint) App. 20

Appendix 7—Press Release From The Office of the

Governor (Exhibit B to Complaint) App, 22

Appendix 8—Press Release From The Office of the

Governor (Exhibit C to Complaint) App, 24

ili

CITATIONS

PAGE

Adams vy, Walker, 492 F.2d 1008 (7th Cir, 1974) ........ 13

Arnett v. Kennedy, 416 U.S, 134 (1974) ................8, 11

Barr v. Matteo, 360 U.S, 564 (1959) ............ 6,9, 10, 11, 14

Bishop v. Wood, ———- U.S, ——, 96 S.Ct, 2074 (1976). 12

Blair v. Walker, 64 TN, 2 1 (1976) oocccccseenens 10

Board of Regents v, Roth, 408 U.S, 564 (1972) ............

Edelman v. Jordan, 415 U.S, 651 (1974) oon 14

Howard v, Lyons, 360 U.S, 593 (1959) on 11

Imbler v. Pachtman, 424 U.S. 409 (1976) 00... 10

Paul v. Davis, 424 U.S, 693 (1976) a ' Y

Rizzo v. Goode, 423 U.S. 362 (1976) oon, 13

Stefanelli v. Menard, 342 U.S, 117 (1951) 200... 13

Wisconsin v. Constantineau, 400 U.S, 433 (1971) ............ 7

Iu the

Supreme Court of the United States

Ocroser Term, 1976

No.

DANIEL WALKER, Governor of the State of Dlinois,

DONALD PAGE MOORE, Director, Office of Special

Investigations, State of Illinois, and LAURI STAPLES,

Petitioners,

vs.

SAMUEL COLAIZZI, SAMUEL INDOVINA, THEODORE

MAROS, RAMON SCULLY and ZENITH ASSOCIATES, INC.,

an Illinois Corporation,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

Daniel Walker, Governor of the State of Illinois, Donald

Page Moore, former Director of the Office of Special In-

vestigations of the State of Lllinois, and Lanri Staples, a

former investigator in the Office of Special Investigations

of the State of Illinois, hereby petition that a writ of cer-

tiorari be issued to review the judgment and opinion of the

United States Court of Appeals for the Seventh Circuit

entered on September 14, 1976.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit, not yet officially reported, is set forth

in Appendix 1. (App. 1-10.) The order of the United

States District Court for the Northern District of Illinois,

Eastern Division, was not reported but is printed as Ap-

pendix 2. (App. 11.) )

JURISDICTION

The Seventh Circuit’s judgment was entered on October

14, 1976 (App. 1). The jurisdiction of this Court is in-

voked pursuant to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

The principal question presented is whether 42 U.S.C.

§1983 limits the Governor of Illinois’ First Amendment

right and duty to inform the public of the reasons for his

discharge of two non-tenured public employees for mis-

conduct in office. Subsidiary questions presented are (1)

the impact of administrative determinations that the dis-

charged employees were guilty of the charges announced

by the Governor upon the discharged employees’ due

process claims, and (2) the availability of state and federal

common law absolute immunities against suits seeking re-

dress for injury to reputation iu a civil rights context.

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

The constitutional provisions, statutes and other authori-

ties involved herein are the First and Fourteenth Amend-

ments to the United States Constitution, 42 U.S.C. $1983,

Sections 8 and 10 of Article V of the Constitution of the

State of Illinois, the Illinois Unemployment Compensation

. En RReee—e

3

Act (Tll.Rev.Stat. 1975, Ch. 48, $300, et seq.), and Executive

Order No. 4 (1974). The texts of the pertinent provisions

are reproduced as Appendix 5. (App. 17-19.)

STATEMENT OF THE CASE

This civil action for monetary damages and injunctive re-

lief was brought by plaintiffs (respondents) Colaizzi and

Indovina who were discharged by Governor Walker from

their non-tenured positions as public employees for mis-

conduct in office. Plaintiffs allege neither a protected prop-

erty interest in their jobs, nor that they were discharged

as a penalty for the exercise of any constitutional right.

Rather, they assert that their discharge from public office,

coupled with Governor Walker’s public explanation of the

reasons for his decision to discharge them, deprived them

of liberty without due process of law. Jurisdiction of the

District Court was alleged under 28 U.S.C. §§ 1331 and

1343, 42 U.S.C. $§ 1981, 1983, and 1985, and the Fourteenth

Amendment.*

The Allegations Of The Complaint

The case comes to this Court on the pleadings, defen-

dants’ motion to dismiss the complaint having been granted.

The complaint may be summarized as follows.

At all relevant times, plaintiffs Colaizzi and Indovina

were the duly appointed Supervisor and an investigator,

respectively, for the Division of Private Employment Agen-

cies of the Illinois Department of Labor. Defendants

Seully and Maros were principals and agents of defen-

* Although plaintiffs cite 42 U.S.C. §§1981 and 1985 in each

count of their four-count complaint, they allege no racial or other-

wise class-based invidiously discriminatory animus, and they

abandoned their reliance on these sections in the courts below.

4

dant Zenith Associates, Inc., a private employment agency

subject, to regulation by the Division of Private Employ-

ment Agencies. Petitioners Walker, Moore and Staples

(respectively, Governor of Illinois, Director of the Lllinois

Office of Special Investigations (‘‘OSI’’)*, and an investi-

gator in OSI) were acting pursuant to and under color of

the laws of the State of Illinois.

During April through July, 1974, Maros and Scully com-

plained te Walker, Moore and Staples that plaintiffs ‘‘had

abused their powers as employees of the State of Illinois,

and had threatened and harassed [Maros and Scully] il-

legally and wrongfully for the purpose of aiding a person

formerly employed by Defendant Zenith.’’ (Counts III

and IV, 13.) ‘‘On or about July 16, 1974, Defendant Walk-

er, at the recommendation and urging of defendants Moore

and Staples, discharged plaintiffs herein from their posi-

tion as employees of the State of Illinois, and at the time

of said discharge, issued documents in the form of press

releases stating that plaintiffs had been guilty of illegal

acts and abuse of their power as employees of the State

of Illinois, including [the same charges made by Maros

and Seully].’’ (Complaint, 7.)

The press releases (attached to the complaint as Exhibits

A, B and C) are entitled ‘“‘NEWS FROM THE OFFICE

OF THE GOVERNOR” and are reprinted here as Ap-

pendices 6, 7 and 8. (App. 20-25.) Each bears the Seal of the

* The Illinois Office of Special Investigations is an executive de-

partment office whose functions are to investigate reports of al-

leged misconduct in office by executive department officers and em-

ployees, and to make recommendations as to disciplinary action.

See, Executive Order No. 4, dated March 21, 1974, reprinted at

App. 18-19.

. :

State of Illinois, and contains the name, address and tele-

phone number of the Illinois Infermation Service, a branch

of the Illinois Department of General Services which

publishes bulletins regarding activities of the state govern-

ment. See, Ill.Rev.Stat. (1975) Ch. 127, §§63b13 and

63b13.5.

Plaintiffs allege that the charges made against them by

Maros and Scully, investigated by Moore and Staples, and

caused to be published in press releases by Walker, were

false and defamatory, and were known to be so by defen-

dants, and that Walker and Moore repeated the charges

in news conferences. Plaintiffs allege that they received

neither a hearing nor a statement of reasons prior to their

discharge and the simultaneous public announcements.

Plaintiffs do not allege, however, that they requested a

hearing, and they did not seek temporary or preliminary

injunctive relief with respect to either reinstatement or

the holding o1 a hearing.

All four counts of the complaint arise from these al-

leged facts. Im Counts II and IV, each plaintiff seeks

$1,000,000 in damages from each Petitioner (Count I)

and from each ‘‘private’’ defendant (Count [V) on a com-

mon law defamation theory. In Counts I and ITI, plain-

tiffs seek to raise the same defamation theory to a consti-

tutional level by arguing that they were deprived of a

liberty interest protected by 42 U.S.C. $1983 because the

alleged defamation occurred in connection with their dis-

~ charge from non-tenured employment. Count I is directed

toward Walker, Moore and Staples only; Count III is di-

rected toward all six defendants on a conspiracy theory.

In those counts plaintiffs seek $1,000,000 in damages from

each defendant, and request injunctive relief in the form

of reinstatement to their public offices.

The Ruling Of The District Court

The District Court dismissed the complaint as to peti-

tioners Walker, Moore and Staples on the grounds that

‘*these public officials are protected by the absolute privi-

lege enunciated in Barr v. Matteo, 360 U.S. 564 (1959),

from liability for monetary damages under Sec. 1983 for

the alleged defamatory statements made in the course of

their official duties,’’ and upon the further finding tbat

plaintiffs had ‘‘failed to allege a sufficient violation of

their liberty interests to state a claim upon which equitable

relief can be granted.’’ (App. 11.) Thereafter, the Dis-

trict Court granted the ‘‘private’’ defendants’ motion for

judgment on the pleadings. Plaintiffs appealed both or-

ders.

The Unemployment Compensation Hearings

And Decisions

Meanwhile, plaintiffs had applied for benefits under the

Illinois Unemployment Compensation Act. Their claims

were denied by the Unemployment Compensation Claims

Adjudicator because plaintiffs had been discharged for

misconduct connected with their work.* Plaintiffs then

appealed the Claim Adjudicator’s determinations to a

Referee, and extended hearings were held to determine

whether plaintiffs had been discharged for misconduct in

office. Plaintiffs were represented by counsel at the hear-

ings, and they testified, as did defendants Maros and

* An individual who has been “discharged for misconduct con-

nected with his work” is ineligible for unemployment compensa-

tion benefits for the week in which he has been discharged, and he

continues to be ineligible thereafter until he is either no longer

unemployed or until six weeks have elapsed since he filed his claim,

whichever occurs first. Ill.Rev.Stat. 1975, Ch. 48, §432A (Section

602A of the Illinois Unemployment Compensation Act).

7

Seully and other witnesses. Five days after the District

Court dismissed the complaint as to petitioners, the

Referee of the Illinois Division of Unemployment Com-

pensation entered administrative decisions affirming the

Claims Adjudicator’s finding that plaintiffs were guilty

of the charges of misconduct in office announced by Gov-

ernor Walker. These rulings are reprinted as Appendices

3 and 4. (App. 12-16.)*

The Court of Appeals’ Decision

The Court of Appeal characterized the §1983 issue as

foliows (App. 4):

‘‘The most serious issue for resolution under Count

I is whether Colaizzi and Indovina were deprived of

a constitutionally protected. liberty interest when Gov-

ernor Walker issued the press releases without giving

them notice or an opportunity to be heard.’’

The Court ruled that the statements in the press release

charged sufficiently reprehensible conduct so as to impugn

plaintiffs’ reputations, and that the charges thus fell with-

in the language of Wisconsin v. Constantineau, 400 U.S.

433, 437 (1971):

‘‘Where a person’s good name, reputation, honor,

or integrity is at stake because of what the govern-

ment is doing to him, notice and an opportunity to be

heard are essential.’’ —

The Seventh Circuit recognized that stigma to reputa-

tion, without more, does not infringe upon a liberty iter-

* Under the Unemployment Compensation Act, plaintiffs were

entitled to appeal the Referee’s decisions to the Unemployment

Compensation Board of Review, then through the state courts pur-

suant to the Illinois Administrative Review Act. (IIl.Rev.Stat.

1975, Ch. 48, §§ 471, 473, 520). They have not pursued further

appeals.

est protected by Fourteenth Amendment due process safe-

guards, Paul v, Davis, 424 U.S, 693, 712 (1976), but relied

upon dictum in Board of Regents v. Roth, 408 U.S. 564,

573 (1972), to hold (App, 7):

‘*, , , stigma to reputation (not itself a deprivation

of liberty as defined in the Fourteenth Amendment)

plus failure to rehire or discharge (not necessarily

involving deprivation of property as defined in the

Fourteenth Amendment) may nevertheless when

found im conjunction state a claim under 42 U.S.C,

§1983 for deprivation of a Fourteenth Amendment

liberty interest without due process.’’ (Italics in

original.)

Petitioners requested that the Court of Appeals take

judicial notice of the administrative hearings and deter.

minations, on the grounds that (i) the hearings afforded

plaintiffs an adequate opportunity to clear their names;

(ii) plaintiffs are bound by the administrative findings ;

and (iii) the hearings afforded due process as in Arnett

v, Kennedy, 416 U.S, 184, 157 (1974), The Court of Ap-

peals declined to determine the impact of the hearings

and findings because the District Court had not considered

these matters (the decisions were rendered after the Dis-

trict Court had dismissed the Complaint as to Walker,

Moore and Staples). (App. 10.)

The Court of Appeals reversed the District Court's or-

ders, except that the dismissal of Count I] (common law

defamation) as to Walker and Staples was affirmed based

upon the Illinois common law doctrine of absolute immunity

of public officials,

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW I8 IN DIRECT CONFLICT

WITH CONTROLLING DECISIONS OF THIS COURT

A.

The Governor's Announcement Of The Reasons For His

Official Actions Are Absolutely Privileged And Can.

not Form The Basis For A Federal Civil Rights Suit

The Seventh Circuit's decision — which allows dis-

charged non-tenured public employees to sue the Governor

of Illinois for his public announcement of the reasons for

his decision to discharge them—conflicts with this Court's

decisions in Barr v, Matteo, 360 U.S, 564 (1959), and Paul

v. Davis, 424 U.S, 6938 (1976),

In Barr, the Acting Director of the Office of Rent Stabi-

lization issued an allegedly defamatory press release in

which he gave reasons a» to why he intended to suspend

two of his subordinates from duty, The subordinates sued

for money damages, alleging that the press release had

defamed them and that its publication and terms had been

actuated by malice on the part of the Acting Director, The

Acting Director's asserted defenses of absolute and quali-

fled privilege were overruled by the trial court.

This Court held that the Acting Director's plea of abso-

lute privilege in defense of the alleged libel was valid (360

U.S, at 574-75):

‘‘We think that under these circumstances a publicly

expressed statement of the position of the agency head,

announcing personnel action which he planned to take

in reference to the charges so widely disseminated to

the public, was an appropriate exercise of the discre-

10

tion which an officer of [the Acting Director’s] rank

must possess if the public service is to function effec-

tively .... That [the Acting Director] was not re-

quired by law or by direction of his superiors to speak

out cannot be controlling in the case of an official of

policy-making rank, for the same considerations which

underlie the recognition of the privilege as to acts done

in connection with a mandatory duty apply with equal

force to diseretionary acts at those levels of govern.

ment where the concept of duty encompasses the

sound exercise of Ciseretionary authority,’’ (Italies in

original; footnote deleted.)

This Court said that [The fact that the action here taken

was within the outer perimeter of [the Acting Director's]

line of duty is enough to render the privilege applicable,

despite the allegations of malice in the complaint.’’ (360

U.S. at 575.)

In the case at bar, plaintiffs seek to cireumvent the com-

mon law absolute immunity of the Governor,* by attempting

to boost to constitutional level claims which are practically

identical to those asserted in Barr v, Matteo, The Seventh

Cireuit’s decision, reversing the District Court's dismissal

of the Section 1983 counts as to petitioners, is in direct

conflict with the policy of Barr v, Matteo,

* The Supreme Court of Illinois has recently afforded the Governor

the same absolute privilege against defamation claims based upon

Illinois common law arising out of public sthtements which this Court

gives to federal officials, Blair v, Walker, 64 Ill, 2d 1, 10 (1976), In

Blair, however, the plaintiffs were private citizens and not appointed

subordinates of the Governor, (64 Ill, 2d at 3-4.)

In the case at bar, the Seventh Circuit recognized the Illinois

common law absolute privilege by affirming dismissal of Count II

as to Walker and Staples (App. 9), but ruled that that privilege

was inapplicable in a Section 1983 action, Compare Imbler v.

Pachtman, 424 U.S, 409, 418 (1976) (“[Section] 1983 is to be

read in harmony with general principles of tort immunities and de-

fenses rather than in derogation of them,”)

11

Although Barr v, Matteo was a common law defamation

action and not a Due Process case, this Court has recently

relied on it to establish that the interest allegedly injured

there—reputation—is not protected by due process safe-

guards, In Paw v, Davis, 424 U.S, 693 (1976), this Court

rejected the very contention which plaintiffs now assert—

that discharged, non-tenured public employees may state

a constitutional claim against their superior officer for his

public explanation of his reasons for discharging them

(424 U.S. at 707):

‘*It is noteworthy that in Barr v, Matteo, 360 U.S, 564,

79 S.Ct, 1885, 3 L.Bd.2d 1434 (1959), and Howard vy.

Lyons, 360 U.S, 598, 79 S.Ct. 1831, 8 L.Bd.2d 1454

(1959), this Court had before it two actions for defama-

tion brought against federal officers, But in neither

opinion is there any intimation that any of the parties

to those cases, nor any of the Members of this Court,

had the remotest idea that the Due Process Clause

of the Fifth Amendment might itself form the basis

for a claim for defamation against federal officials.’’

In the case at bar, the Seventh Circuit has allowed plain-

tiffs to proceed with a claim for defamation under the guise

of a federal civil rights suit. This is contrary to both the

common law doctrine of absolute immunity, and to the

limitations placed this year upon suits under Section 1983

in Paul v, Davis.

B.

Even If Plaintiffs’ Liberty Interests Were Implicated

By The Governor's Statements, Plaintiffs Received Due

Process In The Form Of Post-Discharge Administrative

Hearings.

The Seventh Circuit's decision in this case also conflicts

with the decision of this Court in Arnett v, Kennedy, 416

U.S, 134 (1974). There Justice Rehnquist, joined by Chief

Justice Burger and Justice Stewart, rejected the conten-

tion that a constitutionally protected liberty interest is im-

plicated by hearings which occur after a government em.

ployee is dismissed on charges of dishonesty. Mr, Justice

Rehnquist said (416 U.S, at 157):

‘*But that liberty is not offended by dismissal from

employment itself, but instead by dismissal based up-

on an unsupported charge which could wrongfully in-

jure the reputation of an employee. Since the

of the hearing in such a case is to provide the person

an ‘opportunity to clear his name’, a hearing af-

forded after the actual dismissal is a sufficient com.

pliance with the requirements of the Due Process

Clause.’’ (Emphasis added.)

Here, the administrative decisions of the Division of

Unemployment Compensation (App. 12-16) reveal both

that plaintiffs received ‘‘an opportunity to clear [their]

names’’ shortly after their dismissal, and that the charges

made against them were neither ‘‘unsupported’’ nor

‘*wrongful’’, These administrative determinations establish

that plaintiffs have alleged no deprivation of a constitution-

ally protected liberty interest, and that even if this were not

the case, plaintiffs have been afforded post-discharge hear-

ings which are adequate under the Due Process Clause,

II.

FEDERAL COURT REVIEW OF PUBLIC STATE.

MENTS AND PERSONNEL DECISIONS BY THE CHIEF

EXECUTIVE OFFICER OF THE STATE RAISES IM.

PORTANT AND NOVEL QUESTIONS UNDER THE

FIRST AND FOURTEEN AMENDMENTS

In Bishop v. Wood, .... U.S. ...., 96 S.Ct, 2074, 2080 (1976),

this Court held that the truth or falsity of reasons given for

a non-tenured public employee's discharge ‘‘neither en.

hances nor diminishes [the employee's] claim that his con-

stitutionally protected interest in liberty has been im-

paired.’’ This Court went on to say (...... U.S. at ....... , 96

S.Ct. at 2080):

‘The federal court is not the appropriate forum in

which to review the multitude of personnel decisions

that are made daily by public agencies... . In the

absence of any claim that the public employer was

motivated by a desire to curtail or to penalize the

exercise of an employee's constitutionally protected

rights, we must presume that official action was regular

and, if erroneous, can best be corrected in other ways.’’

In this case, plaintiffs make no contention that their dis-

charge was motivated by a desire to penalize exercise of

their constitutional rights, and the administrative deter-

minations (App. 12-16) reveal the validity of the pre-

sumption that the official action here in question was

regular,

The injunctive relief requested by plaintiffs——reinstate-

ment to their non tenured positions—raises major ques-

tions in terms of the delicate relationship between federal

courts and the internal disciplinary affairs of the executive

branch of state governments, Compare Stefanelli vy.

Menard, 342 U.S, 117, 120 (1951); Rizzo v. Goode, 423 U.S.

862, 378-380 (1976). Under the Illinois Constitution (Art.

V, §§ 8-11), the Governor is responsible for the faithful

execution of the laws by his subordinates, and for organiz-

ing and manning the executive departments which enforce

them. He had the unqualified right to remove plaintiffs

at will, Il.Const. Art. V, §10; see Adams vy, Walker,

492 F.2d 1008, 1004-7 (7th Cir, 1974), Injunctive inter-

vention by the federal court in this situation not only sub-

stantially alters the powers conferred on the Governor by

the state constitution, but also requires a senseless result.

Surely once plaintiffs were reinstated, the Governor would

have a duty to remove them again because their misconduct

14

in office has been proved in statutory administrative pro-

ceedings.*

Beyond the question of federal court intrusion into state

personnel decisions and the related question of impropriety

of injunctive relief, this case raises substantial questions

under the First Amendment. As Justice Black stated in

his concurring opinion in Barr v, Matteo, 360 U.S, 564, 577

(1959) :

‘The effective functioning of a free government like

ours depends largely on the force of an informed public

opinion, This calls for the widest possible understand.

ing of the quality of government service rendered by

all elective or appointed public officials or employees,

Such an informed understanding depends, of course,

on the freedom people have to applaud or to criticize

the way public employees do their jobs, from the least

to the most important.’’

The Seventh Circuit has imposed a constitutional re-

quirement under the Fourteenth Amendment that the

Governor must hold a hearing before he informs his con-

stituents of the reasons for his firing of two public office-

holders who have been found to have violated their public

trust. This holding disregards the public’s First Amend-

ment interests in having a responsive chief state execu-

tive. Existence of a possible monetary damage remedy

should the federal court disagree with official statements

of the Governor would act as a further restraint on forth.

right governmental communication,

Under the Seventh Circuit's analysis, these First Amend.

ment considerations were not even considered, This Court

* Edelman v. Jordan, 415 U.S, 651, 662-63 (1974) forecloses the

federal court from awarding plaintiffs back pay from the State

ancillary to their claim for reinstatement,

15

should review this case to determine the appropriate bel-

ance between unfettered political discussion under the First

Amendment on one hand and the role of the federal courts

under 42 U.S.C. §1983 on the other.

Conclusion

For the foregoing reasons petitioners respectfully pray

that this Court grant a writ of certiorari to review the

judgment of the Seventh Circuit in this case.

Respectfully submitted,

Tuomas P. Sutiivan

Larry M. WoLrson

Attorneys for Petitioners

Of Counsel:

Jenner & BLocK

One IBM Plaza

Chicago, Illinois 60611

(312) 222-9350

December 8, 1976

APPENDIX

—

, &

APPENDIX 1

dn the

United States Court of Appeals

Bor the Seventh Cirrutt

No. 75-2060

SaMvUEL Co.aizzi and Samvuew Inpovina,

Plaintiff s-A ppeliants,

v.

Dante. Waker, Governor, State of Illinois, Donatp Pace

Moors, Director, Office of Special Investigations, State

of Illinois, Laurt Srapizs, -THeopore Maros, Ramon

Scutty and Zenira Associates, Inc., an Illinois Cor-

poration,

Defendants-A ppellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 74-C-2130

Wuuuo J. Lyncn, Judge

Argued February 26, 1976—Decided September 14, 1976

Before Farrcuitp, Chief Judge, Swycert, Circuit Judge,

and Sreckuer, District Judge.*

Famcuiitp, Chief Judge. The principal issue for deci-

sion in this ease is whether defendant Walker’s assertions

* Chief District Judge William E. Steckler of the Southern District

of Indiana is sitting by designation.

App. 2

in a press release, that plaintiffs abused their official posi-

tions in attempting to force a company under their super-

vision to drop criminal actions against an employee, de-

prived plaintiffs of a liberty interest protected by the Four-

teenth Amendment. Plaintiffs Samuel Colaizzi and Sam-

uel Indovina appeal from orders of the district court dis-

missing their claims against several of the defendants, and

granting judgment on the pleadings to the rest of the de-

fendants.

At the time of the incident that gave rise to this case,

Colaizzi was Superintendent of the Division of Private

Employment Agencies of the Illinois Department of Labor,

and Indovina was an investigator for that Division. The

allegations in the complaint, which we must take to be

true on this appeal, state that on or about July 16, 1974,

defendant Walker, Governor of Illinois, discharged them

from their positions, and simultaneously issued or caused

to be issued certain press releases.‘ The complaint alleges

1 The principal release reads as follows:

“CHICAGO, ILL., July 16—-Gov. Dan Walker today (Tues-

day) announced the dismissal of Samuel V. Colaizzi, Superin-

tendent of the Division of Private Employment Agencies,

Illinois Department of Labor, and Samuel Indovina, an inspector

in Mr. Colaizzi’s division.

“The Governor’s action was taken on the recommendation of

Donald Page Moore, Director of Special Investigations.

“Moore's investigation has revealed misconduct by Messrs.

Colaizzi and Indovina with reference to Zenith Associates, an

employment agency with offices in Chicago, Elmwood Park

and Des Plaines, Illinois.

“In October 1973, the owners of Zenith discovered substantial

evidence tending to show that one of their employees had sur-

reptitiously taken more than $4,000 in Zenith receipts. They

fired the employee, turned the evidence over to the State’s At-

(Footnote continued)

<~

App. 3

the charges in these releases were made without notice

or opportunity to be heard.

The complaint alleges jurisdiction based on 28 U.S.C.

$$ 1331 and 1343; 42 U.S.C. §§ 1981, 1983, and 1985; and

the Fourteenth Amendment. Count I seeks damages and

injunctive relief against Governor Walker; Donald Page

Moore, Director of the Office of Special Investigations of

(Footnote continued)

torney for prosecution, and commenced efforts to obtain reim-

bursement from the former employee.

“In January, 1974, Colaizzi and Indovina intervened on be-

half of the discharged Zenith employee. With careful circum-

locution, they repeatedly urged Zenith’s owners to ‘consider’

dropping or reducing their criminal and civil claims. At the

same time, they made it unmistakably clear that if (but only if)

the owners refused to ‘cooperat@ in this report, Colaizzi would

file a series of administrative charges against Zenith alleging

various regulatory violations which, if proved, might justify

suspension or revocation of Zenith’s right to do business.

“Since Colaizzi proposed to appoint himself as the hearing

officer to adjudicate the merit of his own charges, his threat was

an extremely serious one.

“Zeniths owners consulted counsel and refused to ‘cooperate.’

Colaizzi, assisted by Indovina, immediately filed a series of

extraordinary Department of Labor charges against Zenith, then

appointed himself hearing officer, then abandoned the charges

after a stormy hearing, then subjected all Zenith’s offices to

simultaneous inspections by his investigators, then caused Zenith’s

owners to be arrested by police officers for allegedly operating

an office without a license, then abandoned those criminal

charges, then filed a new set of administrative charges, con-

ducted new hearings with respect to a few of the new charges,

and, finally, suspended Zenith’s officers from acting as employ-

ment counselors for a three-day period.”

A statement announcing the appointment of Colaizzi’s successor

was issued the same date. In it the Governor stated that Colaizzi

and Indovina “attempted to use the power of their office to force a

company under their supervision to drop possible criminal actions

against an employee.” The statement implied that they were “bad

apples” among the state’s employees.

_

App. 4

the State of Illinois; and Lauri Staples, an employee of

the Office of Special Investigations. Count II is a pendent

state law claim against these three defendants for defama-

tion. Count III alleges a conspiracy among defendants

Theodore Maros and Ramon Scully, employees of Zenith

Associates, Inc., an Illinois private employment agency,

and defendants Walker, Moore and Staples. Finally, Count

IV of the complaint sets out a pendent state law claim for

defamation against Maros, Scully, and Zenith. Defen-

dants are alleged to have known the charges were false.

The district court dismissed the complaint as it related

to defendants Walker, Moore and Staples (Counts I, II

and III) for failure to state a claim, and granted judg-

ment on the pleadings to defendants Zenith Associates,

Maros, and Scully (on Counts III and IV).

We agree that the complaint stated no cause of action

based on 42 U.S.C. $§ 1981 and 1985. No racial or other-

wise class-based invidiously discriminatory animus is al-

leged. See Runyon v. McCrary, 44 U.S.L.W. 5034 (U.S.,

June 25, 1976) ($1981); Griffin v. Breckenridge, 403 U.S.

88, 102 (1971) ($1985). Appellant’s boiler-plate pleading

fails to state a claim under these statutes.

The most serious issue for resolution under Count I is

whether Colaizzi and Indovina were deprived of a con-

stitutionally protected liberty interest when Governor

Walker issued the press releases without giving them no-

tice or opportunity to be heard. It is important at this

juncture to note that plaintiffs do not allege a property

interest in their jobs such that mere termination without

more would have required procedural due process safe-

guards. Compare Board of Regents v. Roth, 408 U.S. 564,

576-78 (1972) with Perry v. Sindermann, 408 U.S. 593,

599-603 (1972). Nor do plaintiffs allege that they were

discharged as a penalty for the exercise of any constitu-

AES ey SEIS “Oho

App. 5

tional right. The issue is whether Governor Walker’s pub-

lished allegations under the circumstances of this case de-

prived plaintiffs of a liberty interest without due process.

In Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971),

the Supreme Court stated:

Yet, certainly where the State attaches ‘a badge of

infamy’ to the citizen, due process comes into play.

[Citation omitted.] ‘[T]he right to be heard before

being condemned to suffer grievous loss of any kind,

even though it may not involve the stigma and hard-

ships of a criminal conviction, is a principle basic to

our society. [Citation omitted. ]

Where a person’s good name, reputation, honor, or

integrity is at stake because of what the government

is doing to him, notice and an opportunity to be heard

are essential. :

The charges contained in the press release allegedly

issued by Governor Walker charged sufficiently reprehen-

sible conduct so as to impugn the good name and reputa-

tion of Colaizzi and Indovina, and thus appear to fall

squarely within the language of Constantineau. Board of

Regents v. Roth, 408 U.S. 564 (1972) provides further

guidence on the issue. In Roth, 408 U.S. at 573, the Court

cited Constantineau, and said that had the decision not

to rehire Roth been grounded on charges of immorality

or dishonesty, notice and an opportunity to be heard would

have been required.

Based on Constantineau and Roth, and on our own deci-

sion in Adams v. Walker, 492 F.2d 1003, 1007-1008 (7th

Cir. 1974), we have no difficulty in holding that the district

court erred in this case in dismissing the Count I, under

$1983, for failure to state a claim.

Since oral argument appellants have cited Paul v. Davis,

44 U.S.L.W. 4337 (U.S., March 23, 1976). There the Su-

preme Court held that the infliction by the state of a stigma

App. 6

on one’s reputation, without more, does not infringe upon

a liberty interest protected by Fourteenth Amendment due

process safeguards, Paw vy, Davis neither overruled Con-

stantineau nor disavowed the dictum in Roth, and we deem

it distinguishable here.

In Paul v, Davis, a photograph of plaintiff-respondent,

bearing his name, was included on a printed flyer of so

called ‘‘active shoplifters,’’ and was circulated by two

chiefs of police to Louisville, Kentucky merchants during

the Christmas shopping season, In fact, respondent Davis

had been arrested for but not convicted of shoplifting,

After the charge giving rise to his inclusion on the flyer

had been dismissed, Davis brought a §1983 action against

the police chiefs, alleging that the stain on his reputation

resulting from the circulation of the flyer had deprived

him of liberty without due process of law,

The Supreme Court held that these facts failed to state

a claim for relief under 42 U.S.C, §1983, In so holding,

the Court stated;

The words ‘liberty’ and ‘property’ as used in the

Fourteenth Amendment do not in terms single out

reputation as a candidate for special protection over

and above other interests that may be protected by

state law. While we have in a number of our prior

cases pointed out the frequently drastic effect of the

‘stigma’ which may result from defamation by the

government in a variety of contexts this line of cases

does not establish the proposition that reputation

alone, apart from some more tangible interests such

as employment, is either ‘liberty’ or ‘property’ by

itself sufficient to invoke the procedural protection of

the Due Process Clause, Paul v. Davis, supra, 44

U.S.L.W. at 4340. [Emphasis added, }

As we read Paul v, Davis, stigma to one’s reputation,

inflicted by the state, is not of itself a deprivation of liber-

ty within the meaning of the Fourteenth Amendinent, The

App.7

Court distinguished the Roth dictum in the following lan-

guage :

While Roth recognized that governmental action de-

faming an individual in the course of declining to

rehire him could entitle the person to notice and an

opportunity to be heard as to the defamation, its

language is quite inconsistent with any notion that a

defamation perpetrated by a governmental official but

unconnected with any refusal to rehire would be ac.

tionable under the Fourteenth Amendment:

‘The state in declining to rehire the respondent, did

not make any charge against him that might seriously

damage his standing and associations in his communi-

)

=

‘Similarly, there is no suggestion that the State,

in declining to re-employ the respondent, imposed on

him a stigma or other disability that foreclosed his

freedom to take advantage of other employment op-

portunities, 408 U.S,, at 573 (emphasis supplied.)

Thus it was not thought sufficient to establish a claim

under $1988 and the Fourteenth Amendment that

there simply be defamation by a state official; the

defamation had to occur in the course of the termina-

tion of employment. Certainly there is no suggestion

in Roth to indicate that a hearing would be required

each time the State in its capacity as employer might

be considered responsible for a statement defaming

an employee who continues to be an employee, Paul

v. Davis, 44 U.S.L.W. at 4342 (emphasis in original),

In other words, infliction of a stigma to reputation accom.

panied by a failure to rehire (or, a fortiort, by a discharge)

states a claim for deprivation of liberty without due pro-

coas within the meaning of the Fourteenth Amendment,

Moreover, this combination of stigma plus failure to re-

hire/discharge states a claim even if the failure to rehire

or discharge of itself deprives the plaintiff of no property

intoreat within the meaning of the Fourteenth Amend.

App. 8

ment, We reach this conclusion because on the facts of

Roth itself the Supreme Court found that the plaintiff

respondent had no claim of entitlement to, or property

interest in his job, Roth, supra, 408 U.S. at 578. Since

the Court in Paul v, Davis specifically approved the Roth

dictum concerning stigma to reputation, it follows that

stigma to reputation (not itself a deprivation of liberty

as defined in the Fourteenth Amendment) plus failure

to rehire or discharge (not necessarily involving depriva-

tion of property as defined in the Fourteenth Amend.

ment) may nevertheless when found in conjunction state

a claim under 42 U.S.C, £1983 for deprivation of a Four-

teenth Amendment liberty interest without due process.

The case at bar clearly involves a claim of stigma plus

discharge, It cannot seriously be contended that the

charges contained in the press releases did not gravely

stigmatize the reputation of Colaizzi and Indovina, Cf.

Adams vy. Walker, 492 F.2d 1003, 1007-1008 (7th Cir, 1974),

At the same time, the two men were discharged from

their state positions, albeit positions in which they held

no property interest within the meaning of the Fourteenth

Amendment,

The district court also dismissed Count II, plaintiffs’

pendent state law claim against Walker, Moore, and Sta-

ples, for defamation. The state and federal law claims

arose from a common nucleus of operative fact, and there

is sufficient substance in the federal claim so that the dis-

trict court could take jurisdiction of the state law claim.

United Mine Workers of America vy, Gibbs, 383 U.S, 715,

725 (1966). The district court deemed all three officials

protected by absolute privilege. Since oral argument here,

the Supreme Court of Illinois decided Blair v. Walker,

andi TH, coscccce cseee NLBLQd ....... (May 28, 1976), holding

in a sufficiently similar case that in Illinois the Governor

App. 9

is protected by an absolute privilege. Appellants concede

an absolute immunity of public officials in Illinois as to

communications passing between public officials pertain-

ing to their official duties, Anything alleged against Sta.

ples falls within such immunity, As to Moore, however,

it is alleged that he repeated the charges in news con-

ferences, thus going beyond inter-official communication,

Moore was director of the Office of Special Investigations.

It does not clearly appear as a matter of law that he was

so high an executive officer of the state or that public an-

nouncement by him, in addition to informing the Governor

of his findings, was so clearly a matter of his official duty,

that the doctrine of Blair would support absolute immuni-

ty. Further inquiry into the circumstances by the district

court will be necessary to decide this question, as well

aus whether he acted in good faith, if he had only a quali-

fied privilege. We therefore affirm as to Walker and Sta-

ples, but must reverse as to Moore,

Count ILL of the complaint alleges a conspiracy among

all defendants to make false charges for the purpose of

removing plaintiffs from their state employment, This

allegation of action by persons acting under color of law

to carry out a purpose in which both state officials and

private persons joined states a claim under 42 U.S.C,

$1983. See Adickes v. S. HW, Kress & Co., 398 U.S, 144

(1970),

The district court could properly entertain Count [V,

the state law claims of defamation against defendants

Scully, Maros, and Zenith, pendent to Count III, United

Mine Workers v, Gibbs, 383 U.S, 715, 725 (1966).

While we hold that the complaint states a §1983 claim

against defendant Walker, Moore and Staples, we do not

mean to imply that a qualified good-faith immunity may

not be available to them, See Wood vy. Strickland, 420 U.S.

App. 10

308 (1975); Scherer v. Rhodes, 416 U.S. 232 (1974). If

properly pleaded, the district court will have to resolve

this issue.

Immunity aside, defendants may be able to establish

the truth of the charges made.

On this appeal, defendants have asked us to take judi-

cial notice of the findings made in hearings on plaintiffs’

claims for unemployment compensation resulting from

their discharge. The hearings referee denied benefita,

finding that plaintiffs had each been guilty of misconduct

in connection with the Zenith matter. These findings were

made at about the same date as the earlier of the deci-

sions of the district court, and were not put before it,

Defendants argue that the hearings presented an oppor-

tunity to plaintiffs to clear their names; that plaintiffs

are bound by the findings; and that the hearings afforded

due process as in Arnett v, Kennedy, 416 U.S. 134, 157

(1974).

Because these theories were not presented to nor in-

quired into in the district court, we decline to determine

the impact, if any, of the unemployment compensation

hearings and the findings which resulted. On remand, de-

fendants will have an opportunity to present this material

and to urge that it be considered in the light of the issues

posed by the pleadings.

The orders appealed from are reversed except that the

dismissal of Count IT as to defendants Walker and Staples

is affirmed, The cause is remanded for proceedings con-

sistent with this opinion,

A true Copy:

Teste:

“Clerk of the United States Court of —

Appeals for the Seventh Circuit

App. 11

APPENDIX 2

UNITED STATES DISTRICT COURT

Northern District of Illinois—Eastern Division

Name of Presiding Judge, Honorable William J, Lynch

Cause No, 74 C 2130 Date; December 19, 1974

Title of Cause— SAMUEL COLAIZZI, et al vy, DANIEL

WALKER, et al,

The motion to dismiss Counts I, Il and ILI of the Com-

plaint on behalf of defendants Walker, Moore and Staples,

is hereby granted, The Court finds that these public ofli-

cials are protected by the absolute privilege enunciated in

Barr v. Matteo, 360 U.S, 564 (1959) from liability for

monetary damages under Sec, 1983 for the alleged defama-

tory statements made in the course of their official duties.

See Pierson vy, Ray, 386 U.S, 547 (1967), Further, the

Court finds that the plaintiff has failed to allege a suffi-

cient violation of their liberty interests to state a claim

upon which equitable relief can be granted, See Adams

v. Walker, 492 F.2d 1003, 1007-08 (7th Cir, 1973), A draft

Order will follow,

/s/ Lyneh, J,

App. 12

APPENDIX 3

STATE OF ILLINOIS — DEPARTMENT OF LABOR

BUREAU OF EMPLOYMENT SECURITY

DIVISION OF UNEMPLOYMENT COMPENSATION

REFEREE’'S DECISION

IN THE MATTER OF:

APPEAL DOCKET NO, AR, 74 C 29320

CLAIMANT:

Appellant—Samuel V, Colaizzi

8616 West Grand Avenue

River Grove, Illinois 60171

SOCIAL SECURITY NO. 359 18 4220

DATE FILED IN L.O.; September 17, 1974

EMPLOYER:

Respondent—Kenneth Holland

Director of Labor

State of Illinois

160 N. LaSalle Street

Chicago, Illinois 60601

HEARING DATES: Nov 20, 1974; Nov 27, 1974; Dee 9,

1974

PLACE OF HEARING: Chicago, Illinois

DATE OF MAILING: Dee 24 1974

SECTION OF THE UNEMPLOYMENT COMPENSA.

TION ACT INVOLVED: Section 602A—Misconduet.

This matter arises under Section 602A of the Unem.

ployment Compensation Act. The issue is whether or not

App. 13

the claimant was discharged from his employment with

the State of Illinois for misconduct connected with the

work.

The appeal from the determination of the Claims Adju-

dicator was for the purpose of the hearing, consolidated

with the consent of the parties with the appeal of Mr. Sam

R. Indovino, Docket No. AR 74 C 29226. Both the claim-

ant and the respondent were represented by counsel.

The claimant was discharged from his employment as

Superintendent in the Illinois Department of Labor, Divi-

sion of Private Employment Agencies, on July 16, 1974.

Comprehensive and exhaustive testimony and numerous

exhibits presented at the hearing established that the

claimant exceeded his authority in attempting to prevail

upon Zenith Associates, Inc., a private employment agency

to refrain from pursuing action against one of its former

employees, who had allegedly misappropriated funds from

company receipts. The claimant had informed Zenith

Associates, Inc., that unless it dropped action against that

employee, several actions would be instituted against it

by the Division of Private Employment Agencies. Upon

Zenith Associates, Inc. failure to drop action, the claimant

through his subordinate, undertook steps which resulted

in the suspension of the operauons of Zenith Associates,

Inc.

The actions of the claimant exceeded the scope of his

employment and authority as Superintendent of the Divi-

sion of Private Employment Agencies, and constituted

misconduct connected with the work.

After considering all available evidence in connection

with this appeal, the Hearings Referee affirms the deter-

App. 14

mination of the Claims Adjudicator and benefits are de-

nied for the following period covered by this appeal:

From July 28, 1974 through September 7, 1974.

/s/ Ralph M. Finkel

Ralph M. Finkel

Hearings Referee

RIGHT OF FURTHER APPEAL:

This decision will become final, unless written notice of

appeal from the decision is filed within ten (10) days from

the date of mailing as shown above. The notice of appeal

must be filed at the local unemployment compensation

office where the claim is filed or with the Board of Review.

Information relative to appeals and forms may be had

upon application to the local unemployment compensation

office.

- A aaa

App. 15

APPENDIX 4

STATE OF ILLINOIS—DEPARTMENT OF LABOR

BUREAU OF EMPLOYMENT SECURITY

DIVISION OF UNEMPLOYMENT COMPENSATION

REFEREE’S DECISION

IN THE MATTER OF:

APPEAL DOCKET NO. AR. 74 C 29226

CLAIMANT:

Appellant—Sam R. Indovino

260 Harmony Lane

Elk Grove, Illinois 60007

SOCIAL SECURITY NO:

351 24 4018

DATE FILED IN L.O.: ‘

September 16, 1974

EMPLOYER:

Respondent—Kenneth Holland

Director of Labor

State of Illinois

160 North LaSalle Street

Chicago, Illinois 60601

HEARING DATES: Nov 20, 1974; Nov 27, 1974; Dec 9,

1974

PLACE OF HEARING: Chicago, Lllinois

DATE OF MAILING: Dee 24 1974

SECTION OF THE UNEMPLOYMENT COMPENSA-

TION ACT INVOLVED: Section 602A—Misconduct.

This matter arises under Section 602A of the Unemploy-

ment Compensation Act. The issue is whether or not the

claimant was discharged from his employment with the

State of Illinois for misconduct connected with the work.

The appeal from the determination of the Claims Adju-

dicator was for the purpose of the hearing, consolidated

App. 16

with the consent of the parties with the appeal of Mr.

Samuel V. Colaizzi, Docket No. AR 74 C 29320. Both the

claimant and the respondent were represented by counsel.

The claimant was discharged from his employment as

an investigator in the Illinois Department of Labor, Divi-

sion of Private Employment Agencies, on July 16, 1974.

Comprehensive and exhaustive testimony and numerous

exhibits presented at the hearing establish that the claim-

ant undertook a course of conduct, which resulted in the

suspension of the operators of Zenith Associates, Inc., a

private employment agency, upon the instructions of his

supervisor, Mr. Samuel V. Colaizzi, and with the knowl-

edge that his supervisor was exceeding his authority in

issuing said instructions.

The actions of the claimant, under these circumstances

constitute misconduct in connection with the work.

After considering all available evidence in connection

with this appeal, the Hearings Referee affirms the deter-

mination of the Claims Adjudicator and benefits are de-

nied for the following period covered by this appeal:

From August 4, 1974 through September 14, 1974.

/s/ Ralph M. Finkel

Ralph M. Finkel

Hearings Referee

RIGHT OF FURTHER APPEAL:

This decision will become final, unless written no*‘ce of

appeal from the decision is filed within ten (10) days from

the date of mailing as shown above. The notice of appeal

must be filed at the local unemployment compensation

office where the claim is filed or with the Board of Review.

Information relative to appeals and forms may be had

upon application to the local unemployment compensation

office.

App. 17

APPENDIX 5

The First Amendment to the United States Constitution

provides :

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to

assemble, and to petition the Government for a re-

dress of grievances.

Section 1 of the Fourteenth Amendment to the United

States Constitution provides in pertinent part:

... LNJor shall any State deprive any person of

life, liberty, or property, without due process of law.

The Civil Rights Act (42 U.S.C. §1983) provides:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges or immunities secured by the Con-

stitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress.

Article V of the Constitution of Lllinois provides in

pertinent part:

§8. Governor—Supreme Executive Power

The Governor shall have the Supreme executive

power, and shall be responsible for the faithful exe-

cution of the laws.

$10. Governor—Removals

The Governor may remove for incompetence, ne-

glect of duty, or malfeasance in office any officer who

may be appointed by the Governor.

2

App. 18 App. 19

Executive Order Number 4 (filed in the Office of the gators, as may be necessary to carry out the

Secretary of State of the State of Illinois on March 21, duties of the office.

1974) provides: 3. The Office shall:

EXECUTIVE ORDER

State government now employs some 120,000 per-

sons and spends over six billion dollars of taxpayers’

funds each year. The Executive Branch under the

Governor employs almost half those people and 1s

responsible for approximately one-half of those ex-

penditures.

In any operation of this size, instances of conflicts

of interest, malfeasance and misfeasance are almost

inevitable. Constant vigilance is required.

Because the Governor is ultimately responsible for

the conduct of the business of his office and the execu-

tive agencies reporting to him, he has a duty to insure

that corruption and misconduct within the Executive

Branch be discovered, investigated, and, where jws-

sible, prosecuted. The Governor should, in additiou,

take action to deter and to limit or foreclose opper-

tunities for such conduct in the future.

Other elected officials of state and local government

have their own legitimate investigative and prosecu-

torial responsibilities concerning misconduct by state

officials. But this cannot shield the Governor from his

own concurrent duty to safeguard the integrity of the

Executive Branch by appropriate affirmative action.

In discharging this responsibility, there must be re-

spectful adherence to legal and constitutional rights

guaranteed to each individual.

Accordingly, I hereby order:

1. There is created in the Office of the Governor

an Office of Special Investigations.

2. This agency shall have a Director who shall be

appointed by the Governor. The Director shall

appoint such other personnel, including investi-

(a) Conduct inquiries and investigations of in-

stance of criminal corruption, conflicts of

interest, malfeasance and misfeasance of

any officer or employee of any executive

department or agency subject to the Gov-

ernor;

(b) Prepare cases, where proper, for referral

to an appropriate prosecutorial agency;

(c) Make recommendations for disciplinary

action ;

(d) Develop and implement policies, plans and

programs to enforce the law and deter and

prevent misconduct of the types specified

above;

(e) Accept and expend funds, grants and ser-

vices from the federal government, or it»

agencies, or the Illinois Law Enforcement

Commission.

4. This Executive Order takes effect upon filing

with the Secretary of State and shall remain

in full force and effect unless amended or re-

voked by Executive action.

March 21, 1974

Springfield, Lllinois

/s/ Daniel Walker

Daniel Walker

Governor

App. 20

APPENDIX 6

(Seal of State of Illinois)

NEWS FROM THE OFFICE OF THE GOVERNOR

FOR IMMEDIATE RELEASE

CHICAGO, IIl., July 16—Gov. Dan Walker today (Tues-

day) announced the dismissal of Samuel V. Colaizzi,

Superintendent of the Division of Private Employment

Agencies, Illinois Department of Labor, and Samuel

Indovina, an inspector in Mr. Colaizzi’s division.

The Governor’s action was taken on the recommendation

of Donald Page Moore, Director of Special Investigations.

Moore’s investigation has revealed misconduct by Messrs.

Colaizzi and Indovina with reference to Zenith Associ-

ates, an employment agency with offices in Chicago, Elm-

wood Park and Des Plaines, Illinois.

In October 1973, the owners of Zenith discovered sub-

stantial evidence tending to show that one of their em-

ployees had surreptitiously taken more than $4,000 in

Zenith receipts. They fired the employee, turned the evi-

dence over to the State’s Attorney for prosecution, and

commenced efforts to obtain reimbursement from the for-

mer employee.

In January, 1974, Colaizzi and Indovina intervened on be-

half of the discharged Zenith employee. With careful cir-

cumlocution, they repeatedly urged Zenith’s owners to

‘‘econsider’’ dropping or reducing their criminal and civil

claims. At the same time, they made it unmistakably clear

that if (but only if) the owners refused to ‘‘cooperate”’

in this respect, Colaizzi would file a series of administrative

charges against Zenith alleging various regulatory viola-

tions which, if proved, might justify suspension or revoca-

tion of Zenith’s right to do business.

ell

App. 21

Since Colaizzi proposed to appoint himself as the hear-

ing officer to adjudicate the merit of his own charges, his

threat was an extremely serious one.

Zenith’s owners consulted counsel and refused to ‘‘co-

operate.’’ Colaizzi, assisted by Indovina, immediately filed

a series of extraordinary Department of Labor charges

against Zenith, then appointed himself hearing officer, then

abandoned the charges after a stormy hearing, then sub-

jected all Zenith’s offices to simultaneous inspections by

his investigators, then caused Zenith’s owners to be ar-

rested by police officers for allegedly operating an office

without a license, then abandoned those criminal charges,

then filed a new set of administrative charges, conducted

new hearings with respect to a few of the new charges, and,

finally, suspended Zenith’s officers from acting as employ-

ment counselors for a three-day period.

App. 22

APPENDIX 7

(Seal of State of Illinois)

NEWS FROM THE OFFICE OF THE GOVERNOR

STATEMENT BY GOVERNOR DAN WALKER

July 16, 1974

I am very pleased to announce the appointment of John

Riordan as Superintendent of Private Employment Agen-

cies of the Department of Labor.

Mr. Riordan is leaving the Chicago Crime Commission

where he served as Chief Investigator for three years and

operating director for two years. Before that he was an

FBI agent for 26 years.

I have a partiality for people who have worked at the

Chicago Crime Commission like Mr. Riordan, like Harvey

Johnson, who is now director of the Department of Law

Enforcement and who served at the Crime Commission as

executive director.

Mr. Riordan replaces Samuel V. Colaizzi, who was fired

yesterday as Superintendent along with Samuel Indovina,

an inspector in the division.

Donald Page Moore, Director of the Office of Special In-

vestigations, recommended the dismissal of both Mr.

Colaizzi and Mr. Indovina on the grounds of misconduct.

Both persons attempted to use the power of their office

to force a company under their supervision to drop possible

criminal actions against an employee.

I hope that the message goes out loud and clear to all

state employees that this kind of activity or any other kind

of wrongdoing will not be tolerated. There will always

be a few bad apples but the overwhelming number of state

App. 23

employees, in fact, the overwhelming number of all public

employees are dedicated, honest, hard-working people. They

are in governmnt to help people.

o oe e

case today is an example of why we need the OSI and

Donald Page Moore.

For the first time in Illinois, we do have an agency to in-

vestigate charges like this one and to root out of govern-

ment the undesirables.

These are not the first people to be fired, and I am sure

there will be more. And what’s more, such discharges will

be made public.

I want to commend the media and the Better Government

Association which first alerted us to certain activities of

these two men. The charge then centered around shoddy

practices by some employment agencies and the failure of

the agency to enforce state laws.

Once into the investigation, however, we discovered these

other activities.

Mr. Riordan will receive a full report from Donald Page

Moore on the division’s activities. Mr. Riordan has in-

structions to get his agency working to protect people who

go to employment agencies for jobs.

I want an honest agency, and I want an agency that

enforces the laws.

App. 24

APPENDIX 8

(Seal of State of Illinois)

NEWS FROM THE OFFICE OF THE GOVERNOR

FOR IMMEDIATE RELEASE

CHICAGO, Ill, July 16—Gov. Dan Walker today (Tues-

day) announced the appointment of John Riordan of Chi-

cago Heights as State Superintendent of the Division of

Private Employment Agencies, Illinois Department of

Labor.

He will assume office July 22.

Riordan replaces Samuel V. Colaizzi, who was fired by

Gov. Walker yesterday on the recommendation of Donald

Page Moore, director of the Office of Special Investiga-

tions.

Riordan, 56, has spent all his adult life in law enforce-

ment starting in 1943 as a special agent of the Federal

Bureau of Investigation.

He is presently operating director of the Chicago Crime

Commission and a part time instructor in police science at

Thornton Community College, South Holland.

Riordan attended Georgetown University’s foreign

service school. He holds an LL.B. from DePaul University

and an M.A. in history, also from DePaul. He served in

the Navy as a yoeman during World War II.

Riordan left the FBI in 1969 to join the Chicago Crime

Commission, where he was chief investigator for three years

before becoming operating director.

He co-authored with Harvey Johnson and Jack Kornfeld

the 1970 Study of Organized Crime in Illinois, financed by

a grant from the Illinois Law Enforcement Commission.

a eed

App. 25

Riordan and Johnson also headed the staff which com-

piled the 1969 Spotlight on Legitimate Business and Hoods,

Part III, published by the Chicago Crime Commission.

Harvey Johnson is now director of the Illinois Depart-

ment of Law Enforcement.

Riordan was project director for a series of 1972 Crime

Commission seminars financed by the ILEC on cargo

losses, gambling, and narcotics traffic.

He was a member of the executive committee and board

of directors of the National Association of Citizens Crime

Commissions in 1972 and 1973 and is an associate of the

International Association of Chiefs of Police.

Riordan was a member of the standing committee on

organized crime of the ILEC from 1971 to 1973.

He and his wife Anita Joy have eight children.

Riordan’s salary will be $20,000.