Robert L. Breuder, Plaintiff-Appellee,
Board of Trustees of Community College District No. 502, et al., Defendants-Appellants.
November 7, 2017
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division. No.
15-cv-09323 - Andrea R. Wood, Judge.
Easterbrook, Rovner, and Hamilton, Circuit Judges.
Easterbrook, Circuit Judge.
College of DuPage is a two-year community college in Glen
Ellyn, Illinois. In 2008 the Board of Trustees of Community
College District No. 502, which operates the College, hired
Robert L. Breuder as the College's president. After
extensions, his contract ran through 2019. But in October
2015 newly elected members of the Board, who had campaigned
on a pledge to remove Breuder, discharged him without notice
or a hearing. Resolutions adopted by the Board stated that
Breuder had committed misconduct. The Board did not offer him
a hearing and has refused to comply with clauses in his
contract covering severance pay and retirement benefits.
Breuder then filed this suit, which rests not only on
Illinois contract and defamation law but also on 42 U.S.C.
§1983. Breuder contends that his sacking without a
hearing, but with defamatory statements, deprived him of both
liberty and property without due process of law.
Board as an entity moved to dismiss the complaint, contending
among other things that Breuder never had a valid contract of
employment. Individual members of the Board moved to dismiss
the §1983 claim on qualified-immunity grounds. The
district court denied both motions. 238 F.Supp.3d 1054 (N.D.
Ill. 2017). It certified the former decision for an
interlocutory appeal, which we agreed to entertain. See 28
U.S.C. §1292(b). The Board's members took an
interlocutory appeal of the latter decision on the authority
of Mitchell v. Forsyth, 472 U.S. 511 (1985).
Board's appeal starts with a norm of Illinois law: a
governmental body whose members serve limited terms may not
enter into contracts that extend beyond those terms. This
rule was established in Millikin v. Edgar County,
142 Ill. 528 (1892), and has been applied since then, unless
the state's legislature establishes a different rule.
Breuder was hired in November 2008 on a contract that ran
from January 2009 through June 2012. But the terms of some of
the members sitting in fall 2008 expired the next spring.
This meant, the Board submits, that Breuder's tenure
could not run past May 2009. By the same reasoning the
contract's two extensions, running through 2019, were
invalid. The members elected in April 2015 (plus those
elected earlier and continuing to serve) were entitled to
make their own decisions about the College's presidency,
the Board insists.
difficulty with this argument is Hostrop v. Board of
Junior College District No. 515, 523 F.2d 569 (7th Cir.
1975), which holds that legislation superseded the
Millikin rule for community colleges. This case is
almost a replay of Hostrop, for that dispute, too,
arose from a contract giving a college president tenure
beyond the date of the next election to the board. Our
decision relied on 110 ILCS 805/3-32, which permits the board
of a community-college district to "establish tenure
policies for the employment of teachers and administrative
personnel". See also 110 ILCS 805/3-42 (board may
"employ such personnel as may be needed" and
establish "policies governing their employment and
the statutory language that led to the reasoning and result
of Hostrop has changed since 1975, nor has any
Illinois court suggested that we misunderstood state law.
Illinois courts have cited Hostrop only once on an
issue related to Millikin, see Libertyville
Education Association v. Board of Education, 56
Ill.App.3d 503, 506 (1977), and that decision suggests
agreement with Hostrop's conclusion.
state legislature has limited the powers of community-college
districts with respect to contracts signed after September
22, 2015. 110 ILCS 805/3-65(b) (community-college contracts
may not exceed four years; severance pay is capped at one
year's salary). That statute does not apply to this suit
or undermine the principle of Hostrop that a
contract with a college president may extend past the next
election; to the contrary, §805/3-65 implies that
community colleges possess that power under §805/3-32.
Why else limit its exercise?
to the Board, the enactment of two other statutes, 110 ILCS
805/3B-1, 3B-2, providing rules for the handling of tenure
for members of the academic faculty, implicitly nullifies
whatever power exists under §805/3-32. But Illinois
follows the normal understanding that one statute implicitly
repeals another only when their terms are incompatible. See
U.S. Bank N.A. v. Clark, 216 Ill.2d 334, 344 (2005).
Nothing in those statutes is incompatible with the grant of
power in §805/3-32 to establish the tenure of
administrative officers-to protect a bursar against arbitrary
treatment with a rule requiring cause for dismissal, or to
give a president a term of years in order to compete against
institutions in other states fishing in the same pool of
college in Illinois would have considerable difficulty hiring
a quality president if it could offer only brief employment,
while colleges elsewhere were offering the five-year (or
longer) contracts common for a college's top office. The
Board's members serve staggered six-year terms. Two or
three posts come up for election every two years-and if any
member of the Board has died or resigned recently, that
position also is filled at these biennial elections. If
Millikin applies, no appointment could exceed two
years, and many would face much shorter limits. But because
the new statutes about academic tenure do not address the
subject of academic administration, they do not affect the
laws that Hostrop interpreted.
Board offers two other objections to Breuder's contract.
First, it observes that Illinois law permits the Board to act
by majority vote, provided that a quorum is present. 110 ILCS
805/3-9. As the Board has seven members, 110 ILCS 805/3-6,
this allows as few as three to take an effective decision (if
only four or five appear for a meeting). But Breuder's
contract provides that he may be dismissed only by the votes
of at least five members, a supermajority. Second, the
contract provides that the Board (or its chair) may extend
the contract for one year without holding a public meeting.
The Board contends that this clause violates the Illinois
Open Meetings Act. 5 ILCS 120/1 to 120/7.5.
district court concluded that both contested parts of the
contract are valid. 238 F.Supp.3d at 1061-62. The judge
thought that the Board's right to determine an
administrator's tenure includes a right to adjust
procedures that affect that tenure, as the security of an
office depends on both substantive and procedural
ingredients. We need not determine whether that conclusion is
correct-a subject to which state authority does not
speak-because there is a difference between the validity of a
clause and the validity of the contract.
The Board supposes that, if any clause in a contract is
improper under state law, then the contract as a whole is
void. It does not furnish any authority for that belief.
Courts in Illinois regularly refuse to enforce particular
clauses-say, those creating penalties or imposing
unreasonable restraints on competition after the end of
employment-while enforcing the remainder of the contracts.
See, e.g., Health Professionals, Ltd. v. Johnson,
339 Ill.App.3d 1021 (2003); Tortoriello v. Gerald Nissan
of North Aurora, Inc., 379 Ill.App.3d 214, 238-39
(2008). The Board can prevail on ...