Burnette v. Stroger

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Burnette v. Stroger

State: Illinois

Court: 1st District Appellate

Docket No: 1-08-2908 Rel

Case Date: 03/30/2009

Preview:FIRST DIVISION March 30, 2009

No. 1-08-2908

EDWIN A. BURNETTE, the Public Defender of Cook County in His Official Capacity, and the OFFICE OF THE COOK COUNTY PUBLIC DEFENDER, Plaintiffs-Appellees, v. TODD H. STROGER, President, Cook County County Board of Commissioners, in His Official Capacity, Defendant-Appellant.

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Appeal from the Circuit Court of Cook County.

No. 07 CH 33805

Honorable Daniel A. Riley, Judge Presiding.

PRESIDING JUSTICE ROBERT E. GORDON delivered the opinion of the court: In March 2007, the Cook County board of commissioners approved a budget amendment that included laying off personnel in the office of the Cook County public defender. The term "layoff" is used because the possibility of return was left open. The amendment listed only the types of positions to be reduced. Plaintiffs allege that 34 assistants and other employees were selected for termination with the "advice and approval" of defendant Todd E. Stroger, the

No. 1-08-2908 president of the Cook County board of commissioners (the president), and without consulting Edwin A. Burnette, the Cook County public defender (the public defender). In addition, in April 2007, the president directed designated personnel in the public defender's office to take unpaid "furlough" days. On November 16, 2007, plaintiffs Edwin A Burnette, the public defender of Cook County, and the office of the Cook County public defender filed this suit against the president, contesting both the president's selection of personnel to be laid off and his imposition of furlough days. The Public Defender Act1 provides that the county board has the right to fix the compensation and number of the assistant public defenders and their staff; and that the public defender has the right, within the numbers fixed by the county board, to hire and fire individuals to serve as assistant public defenders and staff members. 55 ILCS 5/3-4008.1 (West 2006). The Act provides that the assistant public defenders "serve at the pleasure of the Public Defender." 55 ILCS 5/3-4008.1 (West 2006). In response to the public defender's complaint, the president moved to dismiss, claiming that the public defender did not have standing to bring this suit

Sections 3-4000 through 3-4011 of the Counties Code is commonly called the Public Defender Act (hereinafter, the Act).
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No. 1-08-2908 and that the president acted within his authority. On May 20, 2008, the circuit court of Cook County denied the president's motion in part, and granted it in part. On October 14, 2008, the trial court certified four questions for interlocutory review by this court. The questions concerned the public defender's standing to bring this suit and the scope of the president's authority. BACKGROUND On August 17, 2007, Richard Devine, the State's Attorney of Cook County, filed a petition with the trial court seeking appointment of a special state's attorney to represent the public defender. The petition stated: "The Public Defender of Cook County, Edwin A. Burnette, is currently involved in administration issues for his office following receipt of various directives from the Office of the President of the Cook County Board which require the analysis, interpretation, and advice of legal counsel." The petition stated that the public defender had asked the state's attorney for the appointment of a special state's attorney, and the state's attorney agreed. On August 27, 2007, the trial court granted the petition and appointed a special state's attorney to represent the public defender in this matter. On November 16, 2007, plaintiffs filed a four-count complaint. The first count concerned the layoff of 34 employees; the second and third counts 3

No. 1-08-2908 concerned the furlough days; and the fourth count sought declaratory relief to establish the public defender's appointment authority. The original defendants were: Todd H. Stroger, president of the Cook County board of commissioners; Lance Christopher Tyson, chief of staff of the Cook County board of commissioners; Jonathan A. Rothstein, acting chief of human resources of Cook County; and Joseph M. Fratto, the comptroller of Cook County. Other than the president, the other defendants were dismissed without prejudice in an agreed order in the trial court on January 28, 2008. The first count sought the reinstatement and reimbursement of the 34 laidoff employees, as well as injunctive relief barring defendants from taking retaliatory action for the filing of this complaint, and barring defendants from making further layoffs or terminations "without the independent decision" of the public defender. The count alleged that the termination letters, dated between March 29, 2007, and April 11, 2007, affected "approximately 17 attorneys and approximately 17 support staff members, all of whom were considered to be performing their duties adequately to exceptionally at the time of their termination." The second count sought: the end of furlough days; restitution for any 4

No. 1-08-2908 employee who had already taken them; and prevention of retaliation for failing to comply with the furlough-day directives. The count alleged that on April 5, 2007, the president issued a memorandum to the public defender, as well as to all other Cook County bureau chiefs and department heads, entitled "Reduced Work Schedule Days." The April 5 memorandum required designated members of the public defender's office to take a certain number of unpaid furlough days by the end of the fiscal year. On July 11, 2007, the public defender issued a memorandum to his office to cease taking furlough days. A memorandum dated August 23, 2007 from the president reduced the mandatory furlough days from 10 to 5 days, and threatened disciplinary action against anyone who failed to comply. Count III sought full compensation for assistant public defender supervisors, as fixed by the county board; reimbursement for supervisors who had taken furlough days; and a declaration that defendants could not reduce the compensation of supervisors, below the amounts fixed by the county board, through furlough days or any other means. The count alleged that, on February 23, 2007, the county board passed an annual appropriations bill for fiscal year 2007, which fixed the number and compensation of assistant public defender supervisors. 5

No. 1-08-2908 Count IV sought a declaration that the public defender had "exclusive power to appoint assistants and other employees/staff"; that defendants must "honor the independence" of the public defender; and that defendant may not take "unilateral employment related actions." In November 2007, petitions to intervene were filed by the American Federation of State, County and Municipal Employees , Council 31, as the bargaining representative for assistant public defenders, investigators and support staff; and Laura B. Simon, the public defender's chief of staff. On July 24, 2008, the trial court entered an order staying the petitions to intervene, pending the outcome of the interlocutory review of the four certified questions. On January 10, 2008, defendants moved to dismiss the complaint, pursuant to section 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619 (West 2006). The motion sought dismissal of all counts on the grounds that: (1) "the public defender does not have the power to institute civil litigation"; and (2) "the complaint is void because the special state's attorney lacks authority to file this litigation." The motion also sought to dismiss: count I, because "the public defender lacks standing to assert the rights of laid-off or terminated employees"; counts II and III, because "the president of the county board has the power to 6

No. 1-08-2908 delay, restrict, or terminate the expenditure of any appropriation": and count IV, because "the court lacks the power to restrict the president of the board from controlling county expenditures." On May 30, 2008, the circuit court of Cook County heard argument on two motions filed by the president: (1) a motion to restrict the appointment of the special State's Attorney to represent the public defender; and (2) the motion to dismiss, filed on January 10, 2008. Also present was an attorney representing the union and Laura Simon, both who were seeking to intervene. During the argument on the president's motion to restrict, the special state's attorney representing the defender noted that the president is also represented by a special state's attorney. The trial court stated that it would not " restrict the special state's attorney's ability to maintain a cause of action on behalf of the public defender"; and thus the president's motion to restrict was denied. Also on May 30, 2008, the trial court denied in part and granted in part the president's motion to dismiss. During argument on the dismissal motion, the president's attorney conceded, in essence, the standing of those seeking to intervene, when he stated: "Certainly those individuals who have potentially lost their positions or

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