A federal appeals panel, with its second chance to weigh in on a longstanding dispute between the village of University Park and a fired police chief, has undone a lower court ruling favorable to the village and will give the former police chief another chance to claim the village owes him for the way he was terminated eight years ago.
Hired as chief in 2013, Eddie Bradley sued the village and Mayor Vivian Covington, alleging he was fired shortly after her 2015 election without cause, notice or hearing. In July 2019, a U.S. Seventh Circuit Court of Appeals panel said although Bradley could seek relief in state court, he also could pursue federal litigation for his alleged violation of the constitutional right to due process.
In a Feb. 3 ruling, a panel of three Seventh Circuit judges said the village defendants reversed course after the 2019 remand, arguing Bradley didn’t have a protected "property interest" in his job, which would entitle him to due process under the Constitution before he could be fired. Judge Ilana Rovner wrote the 2023 opinion; Judges David Hamilton and Amy St. Eve concurred.
The panel said U.S. District Judge Charles Norgle agreed on the question of whether Bradley’s property interest and granted summary judgment to the village and Covington, who narrowly lost a 2019 re-election bid to Joseph Roudez.
“We again reverse,” Rovner wrote, noting that during the first cycle of litigation the defendants conceded Bradley’s property interest in his job “without making any effort to qualify or limit that concession or to reserve their ability to dispute the issue if they lost on the first appeal. They should be held to that concession.”
In 2019, Hamilton wrote, with Rovner’s concurrence, that both sides agree the decision to terminate Bradley was handed down as a matter of village policy, and he received no pre-termination notice or hearing. Those facts “suffice to prove” a claim of violation of due process.
In a dissenting opinion, Judge Daniel Manion agreed with Judge Norgle, writing a village isn’t liable under federal law when deprivation of due process is attributed to a “random, unauthorized act by a state employee, rather than an established state procedure” and if the state provides a “meaningful remedy” for the loss.
Back in federal district court, both sides moved for summary judgment and debated Bradley’s property interest in his job. Judge Norgle “eventually concluded that we had left the issue open and that Bradley in fact had no property interest in his job,” Rovner wrote.
There is “a critical difference between waivers by appellants and by appellees,” Rovner wrote. “Appellees do not waive issues or arguments when they merely fail to assert possible alternative grounds for affirmance. An appellee may have tactical, strategic or financial reasons to seek to preserve a victory on a narrow ground, without wanting to fight all possible theories.”
The panel said the village and Covington could have, when defending Bradley’s appeal in 2019, signaled a concession on the property interest solely for the purposes of that appeal. But failing to do so, in either writing filing or oral arguments, “amounted to an explicit waiver of their right to challenge that element of Bradley’s due process claim.”
As such, the panel continued, Judge Norgle shouldn’t have granted summary judgment on the federal claim. Bradley’s appeal of summary judgment on his state law claims challenged only those for breach of contract and violation of the Illinois Wage Payment and Collection Act, but the panel agreed Norgle properly dismissed those, as well.
Bradley’s initial contract violated the Illinois Municipal Code by exceeding the term of the mayor who signed the deal. So not only is he unable to allege breach of an unenforceable contract, Rovner explained, but Bradley also cannot prove a claim under the Wage Payment and Collection Act, as that law also demands a valid employment contract.
Turning to Covington’s invocation of qualified immunity, the panel said the defense hinges on “whether her actions violated clearly established constitutional law” and specifically whether Covington herself would’ve known, beyond debate, of Bradley’s protected property interest in his job.
The panel explained Judge Norgle never addressed the question of qualified immunity and said it therefore would exercise its discretion to set aside that issue.
“Whether police chiefs in Illinois municipalities are or may be entitled to for-cause protection is an important issue for those municipalities and their police forces,” Rovner wrote. “Anything we might say at this stage and on this record could disrupt Illinois law on the underlying merits.”
In conclusion, Rovner wrote, “we will attempt to leave no room for doubt about the scope of this remand.” The panel reversed summary judgment on the federal due process claim, affirmed summary judgment in favor of the village and Covington on the state law claims and remanded back to Norgle for proceedings on damages and the question of qualified immunity.