February 14, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 15 C 7653 - Harry
D. Leinenweber, Judge.
Easterbrook and Rovner, Circuit Judges, and Griesbach,
District Judge. [*]
EASTERBROOK, CIRCUIT JUDGE.
Park hired Lafayette Linear as its Village Manager under a
four-year contract that ran through May 2015, concurrent with
the term of the Village's Mayor. In October 2014 the
Village extended Linear's contract for a year. But by
spring 2015 relations between Linear and the Village's
elected officials had soured. In April 2015 Mayor Covington
was reelected, and her new term began in May. That month the
Board of Trustees decided that Linear would no longer be
Village Manager. His contract provides for six months'
severance pay if the Board discharges him for any reason
except criminality. But the Village has taken the position
that the contract's extension was forbidden by Illinois
law and that it owes Linear nothing, because his only valid
term expired in May 2015.
contends in this federal suit under 42 U.S.C. §1983 that
the Board violated the Due Process Clause of the Fourteenth
Amendment by not giving him a hearing before his discharge.
The Village replies that he has not been discharged; it just
declined to renew his contract-and Linear does not contend
that he had a legitimate claim of entitlement to a renewal.
Compare Board of Regents v. Roth, 408 U.S. 564
(1972), with Perry v. Sindermann, 408 U.S. 593
(1972). The district court decided that, as a matter of
Illinois law, the extension past May 2015 was invalid. The
judge understood 65 ILCS 5/3.1-30-5 and 5/8-1-7 to prohibit
any contract for a village manager from lasting beyond the
end of a mayor's term of office. As a result, the
district court held, the Village did not deprive Linear of a
property interest, and without a property interest he had no
federal right to a hearing.
parties' briefs debate the meaning of these two state
statutes and whether other statutes (such as those giving the
Village home-rule powers) create exceptions to them. But if
the core dispute concerns state law, why is this case in
federal court? Linear and the Village are citizens of
Illinois; the absence of diversity means that only a claim
arising under federal law allows adjudication. Linear has of
course asserted a federal theory: that the Due
Process Clause entitles him to a hearing. But that seems to
be a makeweight, a way of getting a state-law dispute
resolved by a federal judge.
a statute or established practice creates a legitimate claim
of entitlement to keep one's job, which amounts to a
property interest that under Roth and its successors
requires a hearing before the employee can be fired. But
Linear has never had a legitimate claim of entitlement to
remain as Village Manager. His contract allowed the Village
to fire him without cause. His entitlement was not to stay in
a policy-making job-no unit of government can contract away
its right to have the voters and their elected
representatives set public policy-but to receive the
contracted-for severance pay. So Linear could not have a
federal right to a hearing before someone else took his job;
he has at most a right to a hearing to determine whether he
gets six months' severance pay. And that's a question
of Illinois law only.
contractual right to severance pay is a form of property
interest, but this does not imply that a hearing must precede
the municipality's decision to have a new Village
Manager. Severance pay cannot be transmuted to a sinecure,
and elected officials' ability to replace high officials
frustrated, by the fact that pre-termination hearings take
time. If Congress promised Cabinet officers six months'
pay if fired by the President without cause, that would not
entitle the officer to keep the job while disputes about
"cause" were resolved. C.f. Myers v. United
States, 272 U.S. 52 (1926).
years ago we held that, for someone who relies on a property
interest created by a contract with a public body, the
process due when the government arguably has broken its
promise is the opportunity to seek damages from a state
court. Mid-American Waste Systems, Inc. v. Gary, 49
F.3d 286 (7th Cir. 1995). That conclusion has been repeated
many times since. See, e.g., Kay v. Board of
Education, 547 F.3d 736 (7th Cir. 2008); Blackout
Sealcoating, Inc. v. Peterson, 733 F.3d 688 (7th Cir.
2013). Linear has not contended that he would be unable to
obtain a hearing from a state court, which could award
severance pay or another appropriate remedy. As long as the
state courts are open, they provide the right forum for the
parties' dispute about whether the extension past May
2015 was valid.
resists this conclusion by contending that both his contract
and an ordinance entitle him to a hearing before his removal,
despite the Village's entitlement to fire him for any
reason (that is, without cause). The problem with that
argument is that procedural rights based on a contract or an
ordinance have nothing to do with the Due Process Clause,
which protects substantive interests-rights in life, liberty,
or property-rather than state-created procedures. The Supreme
Court made that clear in Olim v. Wakinekona, 461
U.S. 238, 250 (1983), and Hewitt v. Helms, 459 U.S.
460, 471 (1983), which rejected the kind of argument that
Linear makes: that procedures required by state law create
property interests and hence lead to a federal requirement
that the state procedures be used. State-law rights can't
be bootstrapped into federal rights so easily. Countless
times the Justices have rejected contentions that the federal
Constitution requires states to follow their own law. See,
e.g., Snowden v. Hughes, 321 U.S. 1, 11-13 (1944)
(an argument that a failure to follow procedures established
by state law thereby violates the Constitution is so
insubstantial that it does not establish federal
jurisdiction); Beck v. Washington, 369 U.S. 541,
554-55 (1962); Rivera v. Illinois, 556 U.S. 148, 158
(2009); Swarthout v. Cooke, 562 U.S. 216, 220-22
(2011). We regularly disparage arguments of the sort that
Linear advances. See, e.g., Babchuk v. Indiana University
Health, Inc., 809 F.3d 966, 970 (7th Cir. 2016);
Sung Park v. Indiana University School of Dentistry,
692 F.3d 828, 832 (7th Cir. 2012); Weinstein v.
University of Illinois, 811 F.2d 1091, 1097-98 (7th Cir.
1987). The state-procedure-requires-federal-procedure theme
fares no better today.
another decision released today, we conclude that a different
public employee asserting a right to a hearing before
discharge is entitled to litigate in federal court.
Breuder v. Board of Trustees, No. 17-1577 (7th Cir.
Apr. 17, 2018). The reasons for the disparate outcomes bear
Breuder had a contractual right to keep his job unless he
committed misconduct; Linear lacks such a right, so that a
hearing was not required to protect an entitlement to the job
(as opposed to an entitlement to receive damages). Second,
accusations of misconduct accompanied Breuder's
termination, creating a federal right to a name-clearing
hearing independent of any contractual rights under state
law. See Codd v. Velger, 429 U.S. 624 (1977). Third,
the right to a hearing for Breuder rested on federal law,
while Linear locates that right in the contract and state
law, subjects on which only a state court can be
complaint presents claims under state as well as federal law.
For the reasons we have explained, the federal claim rests on
a mistaken appreciation of the role the Constitution plays in
enforcing state-law rights. The district court relinquished
supplemental jurisdiction of Linear's state-law claims.
The state judiciary is free to address those claims from
scratch; the district ...