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Sudduth v. Board of Fire & Police Com'rs

APRIL 29, 1964.

EARL SUDDUTH, PLAINTIFF-APPELLANT,

v.

BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF ROCKFORD, ILLINOIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Winnebago County; the Hon. WILLIAM R. DUSHER, Judge, presiding. Affirmed.

MORAN, J.

Rehearing denied May 27, 1964.

Appellant, a police officer with some nine and one-half years service on the Rockford police department, was tried by the Rockford Board of Fire and Police Commissioners on various charges of misconduct. At the conclusion of the hearing, the Board discharged Appellant from the force. He then filed a suit in the Circuit Court of Winnebago County under the Administrative Review Act seeking to reverse the order of the Board. The Circuit Court affirmed the Board's order of discharge and this appeal results.

In our view, the principal point in this appeal is Appellant's contention that the order of discharge was based upon alleged acts of misconduct other than those set forth in the written charges against him, and we shall discuss that contention first.

The pertinent section of the Cities and Villages Act, Ill Rev Stats 1961, c 24, sec 10-2-17 provides that:

". . . no officer or member of the fire or police department of any municipality . . . who has held that position for more than one year prior to the date this Division 2 becomes effective in that municipality, . . . shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. These charges shall be investigated by the board of fire and police commissioners, and in case an officer or member is found guilty, the board may remove or discharge him, or may suspend him not exceeding 10 days without pay."

The charges in these administrative proceedings need not be drawn with the same precision required of pleadings in judicial actions, Joyce v. City of Chicago, 216 Ill. 466, 471, 472, 75 N.E. 184 (1905), although the charge must be sufficiently clear and specific to allow the preparation of a defense. Schyman v. Department of Registration & Education, 9 Ill. App.2d 504, 510-512, 133 N.E.2d 551 (1st Dist 1956). Moreover, as the language of the statute itself implies, "The removal can only be for a cause set forth in (the) written charges against the officer. . ." City of Rockford v. Compton, 115 Ill. App. 406, 415 (2d Dist 1904); Cartan v. Gregory, 329 Ill. App. 307, 321, 322, 68 N.E.2d 193 (1st Dist 1946).

Appellant was served with the following written charges by the Chief of Police prior to the hearing:

"The charges are, one, conduct unbecoming an officer and detrimental to the police force. Second, gross inefficiency and incompetency in carrying out duties. Third, absence from duty without leave. Specific instances are as follows: (1) On September 25th and 26th, 1962 you failed to report for duty. (2) On September 25th, 1962 you attempted to commit suicide by taking an overdose of seconal tablets. (3) On numerous occasions you have been guilty of disobedience, inattention to duty and negligence involving the use of firearms. The date of your suspension was September 25, 1962."

As the hearing opened, the charge of failing to report for duty on September 25 was dismissed by agreement, it appearing that Appellant had not been scheduled to work that day.

The hearing before the Board took place on November 29, 1962, and Appellant was represented by counsel. The evidence pertinent to this appeal was, in substance, as follows:

Appellant, a divorced man, awoke with a headache the morning of September 24, 1962. He was not required to work that day nor the following day, September 25. He was not due back at work until 2:30 p.m. on September 26. At about 9:00 a.m. on September 24, Appellant telephoned a Mrs. Clausen, a married woman whom he had known for some years, and asked her to come over to his apartment. She did so, and both she and Appellant testified that they remained at his apartment, engaged in conversation, until about 11:00 a.m. Thereafter, they visited various taverns in the City of Rockford, where Appellant consumed an undetermined amount of alcoholic beverages. Appellant's headache persisted throughout the day, according to his testimony, and several bartenders and tavern patrons testified on his behalf that he did complain of a headache on various occasions that day. He was seen to take pills or capsules from time to time, the exact number, again, a matter of some uncertainty. He testified that he was taking two types of pills for his headaches — second, a pink capsule, and fiorinal, a white tablet. Appellant admits that he took a number of fiorinal pills on September 24, but states that he does not remember whether he took any seconal that day.

Mrs. Clausen testified that she and Sudduth went to their separate residences at about 1:15 a.m. on September 25. Shortly thereafter, appellant telephoned her, informing her that he still had his headache and mentioning that he either had taken or was going to take some more pills. She returned to his apartment, noticed that he looked a bit dizzy and eventually drove him to a hospital.

Appellant's own recollection of the events of September 24-25 was somewhat sketchy. He testified that he was in a "partial blackout" from about 2:00 p.m. on September 24 until he finally went home at about 1:15 a.m. the following morning. In fact, his "blackout" during that period seems almost complete. He did not remember all of the drinks he had and had only a faint recollection of the last tavern he visited, although the evidence indicates he was there for six or seven hours. He testified that he had no recollection of leaving this last tavern, nor of going home, nor of telephoning Mrs. Clausen and seeing her again at his apartment. His next recollection after his faint remembrance of the last tavern is that of waking up in the hospital on September 27, three days later.

Appellant testified that he purchased two bottles of seconal, each containing 100 capsules, about a week and one half before September 24. He stated that his mother had been taking seconal for years, and that he purchased these two bottles for her, because her supply was running low. He stated that he did not purchase these capsules for himself. His mother was out of town when he bought them and did not return until September 27.

Appellant first testified that he purchased these seconal capsules for his mother pursuant to a prescription she had for them. Upon further inquiry it developed that his mother's prescription was some years old and was for thirty capsules, not 200. The purchase was made by appellant from one, Hall, a fellow police officer, who was also a registered pharmacist and worked as such on a part-time basis. However, Hall was given no prescription for the seconal, and the capsules he sold Appellant were obtained by him from a wholesale drug house. This transaction between Sudduth and Hall took place at the police station. Hall, called as a rebuttal witness by the City, testified that he thought the capsules were for Sudduth's mother. He was not asked when the sale to Appellant had taken place.

Appellant testified that he had obtained seconal capsules from Hall on two or three previous occasions during 1961 and 1962. No doctor ever prescribed seconal for Appellant. He stated that he has had headaches for a number of years, and that he has been taking seconal since 1957 or 1958. He denied, however, that he ever purchased any for his own use. All purchases, he says, were for his mother.

Appellant testified that he has had "blackouts" of this kind on two or three prior occasions. He has never seen a doctor about it. He testified that, "Sometimes when I take a half pill it happens." (From the context, Appellant apparently was referring to seconal.) He then retracted his previous testimony somewhat, saying that he had never really blacked out, "except sometimes I don't remember some things."

Mrs. Clausen found one bottle of the seconal capsules at Appellant's apartment when she responded to his call early on September 25, and she delivered that bottle to the hospital. Another bottle was found in Appellant's pocket at the hospital. One of Appellant's witnesses was Dr. Paul Johnson, a Rockford physician and surgeon of some twenty-eight years experience, who had been called to attend Appellant at the hospital. He testified that he saw Appellant at about 4:30 a.m. on September 25, and found him to be incoherent, violent on occasion to the extent that he had to be restrained, and smelling of alcohol. It was his impression that Appellant was under the influence of alcohol. He also saw the two bottles of grain and one half seconal capsules. He testified, on direct examination, that a count had been made of the capsules in the two seconal bottles, and eight capsules were missing from one bottle, six from the other. He testified, in response to a question by Appellant's attorney, that in his opinion a combination of alcohol and seconal ". . . is a bad combination. Both are depressants individually. If you drink enough alcohol you will go into a coma. If one drinks (sic) enough seconal he will go into a coma. Combine the two and you have a peculiar behavior many times. There will be excitation, so much so it is a well known fact that there are some people who like that combination. It gives them excitation and they become violent."

Appellant's stomach was pumped, but no analysis of the contents was made. Dr. Johnson testified that a dosage of fourteen seconal tablets would result in a deep coma, or possibly death, if the stomach were not pumped.

Dr. Johnson's initial diagnosis was "delirium induced by alcohol and barbiturates." Appellant was hospitalized four and one-half days and was in restraint for about the first 36 hours. The hospital records showed that Appellant was admitted at 3:00 a.m. on September 25 and discharged the afternoon of September 29. Dr. Johnson's final diagnosis was the same as his admitting diagnosis, and he testified that, as of the date of the hearing, nothing had happened to change his opinion.

Appellant's testimony concerning the number of pills and capsules he took during this eventful period of September 24-25 is extremely vague. At one point he testified that he did not know whether he had taken any seconal capsules at all during the period in question. Whether the mystery is attributable to the "blackout" or not is unclear. In any event, Appellant does not deny that he took seconal on September 24-25, and, from a review of the entire record, we believe the conclusion that he did take a sufficient quantity of seconal to induce the "delirium" referred to by Dr. Johnson is not against the manifest weight of the evidence. Appellant attempted to account for the 14 missing capsules with the explanation that he had taken four capsules prior to September 24, and that his mother, upon her return from her vacation on September 27, had found six more capsules on the floor of his apartment. His mother did not testify, nor was any reason offered for her failure to do so. No capsules had been found by police Captain Pirello who searched Appellant's apartment in company with Mrs. Clausen the morning of September 25, and it appears that the apartment was unoccupied thereafter until the alleged discovery by Appellant's mother on September 27.

Joe Carsolini, a registered pharmacist, called as a witness by the City, testified that seconal is a barbiturate used as a sedative. It cannot ...


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