Kevin, Maureen v. Thompson, Perry R.

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2203
Maureen Kevin and Kevin and Associates,
Plaintiffs-Appellants,
v.
Perry R. Thompson,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 7882--Suzanne B. Conlon, Judge.
Argued December 5, 2000--Decided December 20, 2000
Before Posner, Easterbrook, and Evans, Circuit Judges.
Easterbrook, Circuit Judge. The State of Illinois
has issued social worker Maureen Kevin a license
that entitles her to practice as a "DUI
evaluator"--that is, to assess the prospects of
recidivism by persons who have been convicted of
driving under the influence of alcohol or other
drugs. Courts maintain lists of approved "DUI
evaluators" who may be appointed by judges to
provide advice about the appropriate disposition
of DUI cases. Except for a brief period, however,
Perry Thompson, the Presiding Judge of the
Misdemeanor and Traffic Division of the 18th
Judicial Circuit Court in DuPage County, has
excluded Kevin from its list of DUI evaluators.
Kevin contends in this suit under 42 U.S.C.
sec.1983 that Judge Thompson’s decision violates
the due process and equal protection clauses of
the fourteenth amendment. The district court
dismissed the complaint under Fed. R. Civ. P.
12(b)(6). 2000 U.S. Dist. Lexis 5985 (N.D. Ill.
Apr. 24, 2000).
Kevin’s due process argument is that the
court’s decision effectively stripped her of her
license (or her right to practice her occupation)
without notice or an opportunity for a hearing.
The argument makes no sense. A license to engage
in an occupation does not imply a right to be
hired. Is a lawyer stripped of his law license if
one court declines to appoint him to represent
criminal defendants? Must every social worker be
hired to write presentence reports in criminal
cases? Physicians do not lose their right to
practice medicine, or their medical licenses, if
a single hospital refuses to extend staff
privileges. Illinois Psychological Association v.
Falk, 818 F.2d 1337 (7th Cir. 1987). Just so with
social workers who want courts to hire some of
their time to make sentencing recommendations
about drunk drivers. Kevin has not been deprived
of any legitimate claim of entitlement, has not
lost liberty or property, and thus is not
entitled to a hearing. See O’Bannon v. Town Court
Nursing Center, 447 U.S. 773, 788 n.21 (1980);
Board of Regents v. Roth, 408 U.S. 564, 577
(1972); Upadhya v. Langenberg, 834 F.2d 661, 665
(7th Cir. 1987).
As for equal protection: again Kevin’s position
is based on a legal confusion, this time between
the government’s role as a regulator and its role
as a purchaser in the market. Absence from the
list means only that the court has decided not to
engage her services as a DUI evaluator, making the
decision as an institution rather than judge-by-
judge or case-by-case. Kevin supposes that every
agency of state government must hire her services
unless it can prove to a federal court’s
satisfaction that her work is inferior to that of
the DUI evaluators the court does engage, or that
there is some other rational basis for omitting
her from the list. She believes that, having
filed suit, she is entitled to conduct a
deposition of Judge Thompson and grill him about
his criteria for designating the court’s DUI
evaluators. But why would that be so? Courts
regularly obtain goods and services--furniture,
computers, court reporters, lawyers to represent
indigent defendants, and so on--without the need
to set up elaborate or even articulable methods
for choosing among those who are willing to
supply what is needed.
Like all other units of government, courts must
refrain from discriminating on improper grounds,
such as race or speech. Beyond that, however,
governmental bodies are free to participate in
markets just as other buyers do, which includes
a right to pick and choose among would-be
sellers. See O’Hare Truck Service, Inc. v.
Northlake, 518 U.S. 712, 724-25 (1996). Cf.
Waters v. Churchill, 511 U.S. 661, 672-75 (1994);
Building & Construction Trades Council v.
Associated Builders & Contractors, 507 U.S. 218(1993); Kelley v. Johnson, 425 U.S. 238 (1976).
When appointing lawyers to represent indigent
defendants (or for that matter when hiring law
clerks), judges consider many factors that cannot
be reduced to a neat, unidimensional index of
merit. So long as opportunities in private life
are unencumbered--both lawyers and social workers
have many private-sector opportunities, not to
mention openings at courts and agencies other
than the 18th Judicial Circuit--a public actor’s
hiring or appointment decisions are no more in
need of justification than a private actor’s. The
equal-protection clause should not be confused
with a civil-service system, or the federal
judiciary with the Merit Systems Protection
Board. This makes it unnecessary to consider
Kevin’s argument that Hilton v. Wheeling, 209
F.3d 1005 (7th Cir. 2000), misunderstands
Willowbrook v. Olech, 528 U.S. 562 (2000), when
holding that proof of malicious animus is
essential to an equal protection claim arising
from the government’s decision to single a person
out for adverse action. The 18th Judicial Circuit
Court has not heaped disabilities on Kevin or
regulated her in any way; it has simply decided
that the court will not buy her services in a
competitive market. Kevin does not contend that
any fact that public actors are not permitted to
consider was held against her, so her complaint
was properly dismissed.
Affirmed