Rehearing and Suggestion for Rehearing En Banc Denied November 8, 1994.
RIPPLE, Circuit Judge.
Michael J. Bakalis, Ph.D., brought this action pursuant to 42 U.S.C. § 1983 seeking damages from four individual members of the
Dr. Bakalis was employed as President and Chief Executive Officer of Triton College and was terminated two years prior to the completion of his contract. During his tenure, there were conflicts between Dr. Bakalis and members of the Board regarding the administration and management of Triton College. Specifically, Dr. Bakalis maintains that defendant Golembeski engaged in a public campaign to discredit him, which included writing letters to newspapers and making public statements that he was not qualified for the position he held. R. 25, Ex. 2 at 3. Furthermore, the Board members, according to Dr. Bakalis, interfered unreasonably in the day-to-day administration of the college.
Id. As a result of these conflicts, defendant James Durkin requested that Dr. Bakalis resign as Triton College President and advised Dr. Bakalis that, in the view of some of the Board members, he was not carrying out the duties of his office in an effective manner. At a closed session of the Board, another Board member, Mark Stephens, stated that the Board could offer Dr. Bakalis nine months' severance pay if he would resign.
At a special meeting, the Board voted to retain counsel who would investigate and recommend to the Board whether there was cause to terminate Dr. Bakalis' employment as President of Triton College. Counsel concluded that there was sufficient evidence to terminate Dr. Bakalis for cause. Therefore, on June 23, 1992, the Board enacted a resolution which provided for the Board "to seek to terminate Dr. Bakalis" pursuant to paragraph 10(B) of his employment contract.
On July 7, 1992, prior to voting to terminate Dr. Bakalis, the Board held a hearing which Dr. Bakalis attended with his attorney. During the hearing, Dr. Bakalis was given the opportunity to respond to the Notice of Reasons. After this meeting, the Board voted to dismiss Dr. Bakalis by a vote of 4-3; the four members of the Board voting to dismiss Dr. Bakalis are the individually-named defendants.
Dr. Bakalis then requested a post-termination hearing. Three members of the Board, two of whom voted for Dr. Bakalis' dismissal, were appointed to conduct the hearing. The hearing was to be a full evidentiary hearing. During one of the post-termination hearing sessions, Dr. Bakalis, through his counsel, announced that he was withdrawing from the hearing. After this incident, the hearing committee met twice; Dr. Bakalis did not appear on either occasion. The Committee then notified Dr. Bakalis that his request for a post-termination hearing would be considered withdrawn unless it was notified within fourteen days. The Committee received no notice and thus recommended to the full Board that his termination be considered final.
B. District Court Proceedings
In this action, brought pursuant to 42 U.S.C. § 1983, Dr. Bakalis alleged that the Board had violated his right to due process by terminating him without a fair hearing.
Addressing the Board members' qualified immunity argument, the district court followed the traditional qualified immunity standard set forth in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The court determined that, at the time the acts in question took place, "it was clearly established by the decisions of both the Supreme Court and the Seventh Circuit that due process required that plaintiff's termination hearing be heard by an impartial tribunal." R. 28 at 9. The court then determined that "a genuine issue of fact [existed] regarding whether the individual defendants knew or should have known that due process required a fair and impartial tribunal, especially in light of plaintiff's and plaintiff's counsel's repeated attempts to inform the individual defendants of this requirement at plaintiff's termination hearing." Id. at 10. For this reason, concluded the district court, the defendants were not entitled to qualified immunity. The members of the Board now appeal.
In this appeal, the only issue properly before the court is whether the district court erred in its determination that the defendants were not entitled to the defense of qualified immunity. The district court addressed this issue only briefly.
The members of the Board allege several errors in the district court's decision. First, they maintain that the district court applied the wrong standard in determining the qualified immunity question. The district court, argue the defendants, conducted the qualified immunity inquiry at too general a level; it should have asked "whether, under the specific facts involved in this case, it should have been apparent to the individual defendants that the action they took" deprived Dr. Bakalis of his right to an impartial decisionmaker. Appellants' Br. at 17. Second, they contend that the procedures used to terminate Dr. Bakalis did not clearly violate any right of Dr. Bakalis to an impartial decisionmaker.
The standard for a grant of qualified immunity is well established: "[G]overnmental officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Our own caselaw has elaborated on this need for sufficient specificity. For instance, in Colaizzi v. Walker, 812 F.2d 304, 307-08 (7th Cir. 1987), we explained:
Id. (quoting Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir.1986)). If the protection afforded government officials were not cast in such terms, "[p]laintiffs would be able to convert the rule of qualified immunity ... into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights." Anderson, 483 U.S. at 639, 107 S.Ct. at 3039. However, "[t]his is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in light of pre-existing law the unlawfulness must be apparent." Id. at 640, 107 S.Ct. at 3039. As the court said in Rakovich:
850 F.2d at 1211. We look therefore to the law in existence at the time to evaluate whether the actions taken by the defendants violated Dr. Bakalis' right to due process of law.
At the heart of due process is the right to a fair hearing conducted by an impartial tribunal. "Not only is a biased decisionmaker constitutionally unacceptable but `our system of law has always endeavored to prevent even the probability of unfairness.'" Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975) (citations omitted). At issue in Withrow were the actions of a medical examining Board which first had conducted an investigative hearing to determine whether a doctor had engaged in certain proscribed acts. After this hearing, the same Board had conducted a contested hearing to determine whether the doctor's license to practice medicine should have been revoked. The Court held:
Id. The Court distinguished the situation before it from situations in which actual bias may arise:
The Supreme Court also has spoken to the requirement of an impartial tribunal in Hortonville Joint School District # 1 v. Hortonville Education Association, 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976). In Hortonville, the Supreme Court determined that a board of education could constitutionally adjudicate the fate of teachers' employment when it had participated in contract negotiations with those teachers. Id. at 492, 96 S.Ct. at 2314. The Court characterized the issue accordingly: "The sole issue in this case is whether the Due Process Clause of the Fourteenth Amendment prohibits this School Board from making the decision to dismiss teachers admittedly engaged in a strike and persistently refusing to return to their duties." Id. at 488, 96 S.Ct. at 2312. The Court held that due process did not foreclose the Board from making this decision. However, the Court made clear that it was resting its decision on the factual determinations of the Wisconsin courts. The state courts had not found
Id. at 491-92, 96 S.Ct. at 2314 (citations and footnotes omitted).
The situations presented in Withrow and in Hortonville stand in stark contrast to the type of personal bias that requires recusal of the adjudicator as a matter of due process. For instance, in Taylor v. Hayes, 418 U.S. 488, 501-02, 94 S.Ct. 2697, 2704-05, 41 L.Ed.2d 897 (1974), the Supreme Court held that it violated the Due Process Clause for a judge who had "become embroiled in a running controversy" throughout the trial to preside over contempt proceedings based on that conduct. The Court reached the same conclusion in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). There the Court noted that "a judge, vilified as was this ... judge, necessarily becomes embroiled in a running, bitter controversy. No one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication." Id. at 465, 91 S.Ct. at 505. On the other hand, a "judge cannot be driven out of a case." Id. at 463, 91 S.Ct. at 504. "We cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to their authority or with highly charged arguments about the soundness of their decisions." Ungar v. Sarafite, 376 U.S. 575, 584, 84 S.Ct. 841, 847, 11 L.Ed.2d 921 (1964).
This court also has had the opportunity to speak to the requirements of an impartial tribunal when a public employee is terminated. Most recently, in Swanson v. Village of Lake in the Hills, 962 F.2d 602 (7th Cir. 1992), a dismissed police officer alleged that
Id. at 140 (quoting Withrow v. Larkin, 421 U.S. at 55, 95 S.Ct. at 1468-69). Finally, in Hostrop v. Board of Junior College District No. 515, 523 F.2d 569 (7th Cir.1975), cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976), a former president of a public junior college brought an action against the Board for wrongful termination. This court held that the defendants had violated the president's rights when they gave him a hearing only after terminating and replacing him.
Id. at 575-76 (citations omitted).
Our colleagues in the Tenth Circuit have confronted a situation presenting the due process issue in a scenario very similar to the one before us. In Staton v. Mayes, 552 F.2d 908 (10th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977), that court determined that the plaintiff, a former school superintendent, had been deprived of due process when his contract was terminated by the school board. Three of the five-member board had made public or private statements prior to the termination hearing that the plaintiff had to be removed. The Tenth Circuit distinguished its case from that presented in Hortonville or in Withrow:
Id. at 914-15 (citations omitted).
Thus, according to Supreme Court and Court of Appeals precedent, due process
We now turn to the case before us. As the above discussion of the caselaw establishes, we think it was clear that at the time of the events in question a person who had prejudged the case could not sit in judgment of Dr. Bakalis on the issue of his continuance in office. The district court was of the view that the record raised a genuine issue of triable fact as to whether certain members of the Board had prejudged Dr. Bakalis and, consequently, had not given him a fair and impartial hearing. When read in a light most favorable to Dr. Bakalis, the record reflects the sort of "running controversy" between the Board members and Dr. Bakalis that precluded impartial adjudication. Dr. Bakalis had confronted the individual members of the Board concerning their actions. He had told them that their conduct not only was harming the college, but also was unethical. Thus, the members of the Board had been the subject of the sort of personal criticism that, according to Withrow, increased the possibility of bias. The individual Board members had not been passive recipients of this indictment. Some had asked Dr. Bakalis to resign prior to the hearing in which they were to determine whether Dr. Bakalis should be dismissed. At least one Board member also had made public statements questioning Dr. Bakalis' qualifications to hold the position of President. Thus, there is evidence that members of the Board had prejudged Dr. Bakalis' fate prior to the hearing; this prejudgment, if it existed, rendered the hearing violative of due process.
Contrary to the defendants' contentions, Dr. Bakalis' allegations do not mirror those of the plaintiffs in Swanson or Rhoads. In those cases, no evidence had been presented that the decisionmakers had prejudged the case. We believe that the caselaw is clear that the prejudgment alleged by Dr. Bakalis in this summary judgment record would have precluded the Board from fairly adjudicating Dr. Bakalis' employment and that a reasonable Board member would have understood that such prejudgment precluded sitting in judgment of the case.
Qualified immunity is an individual defense available to each individual defendant
For the foregoing reasons, the judgment of the district court denying the motion to dismiss on the ground of qualified immunity is affirmed.
Appellee's Motion to Dismiss Appeal at 3 (citations omitted). Because the law is clear, he maintains, an interlocutory appeal is inappropriate. See Elliott v. Thomas, 937 F.2d 338, 341 (7th Cir.1991) ("When rules of law clearly establish public officials' duty, the immunity defense is unavailable. So, too, the interlocutory appeal to vindicate the right not to be tried is unavailable when there is no legal uncertainty; there is no separate `right not to be tried' on the question whether the defendants did the deeds alleged; that is precisely the question for trial."), cert. denied, ___ U.S. ___, 112 S.Ct. 973, 117 L.Ed.2d 138 (1992). However, the defendants claim that there is uncertainty in the law. They argue: "Under the existing law at the time of Dr. Bakalis's termination, it would not have been apparent to the Individual Defendants that because of their disputes with Dr. Bakalis over the management and operation of Triton College their participation in the proceedings relating to Dr. Bakalis's termination would deprive Dr. Bakalis of an impartial decision-maker." Appellants' Br. at 26. The question which we must address is whether the constitutional right — in the case before us the right to have an employment termination determined by an impartial tribunal — was defined in a sufficiently detailed manner to apprise the defendants that their actions were unconstitutional. Whether a constitutional right is clearly established in a sufficiently particularized manner is a question of law properly before this court. See Sherman v. Four County Counseling Ctr., 987 F.2d 397, 401 (7th Cir.1993).