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Clark v. Morris

SEPTEMBER 12, 1968.

FOREST R. CLARK, PLAINTIFF-APPELLANT,

v.

WILLIAM H. MORRIS, SUPERINTENDENT, ILLINOIS STATE HIGHWAY POLICE, AND ROSS

v.

RANDOLPH, DIRECTOR, DEPARTMENT OF PUBLIC SAFETY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Champaign County; the Hon. FREDERICK S. GREEN, Judge, presiding. Affirmed.

TRAPP, J.

Rehearing denied October 7, 1968.

Plaintiff, a member of the Illinois State Highway Police, was suspended for thirty days without pay by order of its Superintendent. By the prayer of a complaint for declaratory judgment, the trial court was requested to declare unconstitutional the statute, chapter 121, § 307.13, Ill Rev Stats 1967, and Rule 9 of the Merit Board of the Illinois State Highway Police, which authorized such order of suspension. The trial court dismissed the complaint and plaintiff appeals.

It is the theory of the complaint, and of this appeal, that the statutory provision and the Rule violate the Illinois and Federal constitutional requirements of due process in that there is no requirement of notice of charges and hearing thereon prior to making such order a suspension. It is urged that this form of discipline is a punitive measure which deprives plaintiff of a property right in status.

The statutory provision, chapter 121, § 307.13, Ill Rev Stats says:

"Disciplinary measures prescribed by the Board (Merit Board) may be taken by the Superintendent for the punishment of infractions of the rules and regulations of the division as promulgated by the Department. Such disciplinary measures may include suspension of any State highway policeman for a reasonable period, not exceeding thirty days, without complying with the provisions of Section 14 hereof." (Parenthetical material supplied.)

Such provision is complimented by § 307.14:

"Except as is otherwise provided in this Act, no State highway policeman shall be removed, demoted or suspended except for cause, upon written charges filed with the Board by the superintendent and a hearing before the Board thereon upon not less than 10 days' notice at a place to be designated by the chairman thereof. At such hearing, the accused policeman shall be afforded full opportunity to be heard in his own defense and to produce proof in his defense. . . ."

The portion of Rule 9 specifically concerned in this proceeding:

"The Superintendent of State Police may impose the following disciplinary measures without presenting the matter to the Merit Board and without a hearing before the Merit Board:

"1. Suspend any highway policeman for infractions of the Rules and Regulations of the State Highway Police for any period in his discretion, not to exceed 30 days."

The statutory scheme provided for the administration of Illinois State Highway Police as provided in chapter 121, Ill Rev Stats, includes (1) § 307.1 — The Department of Public Safety shall maintain a division known as Illinois State Highway Police, and its Superintendent shall be appointed by the Governor; (2) § 307.2 — The Superintendent shall be responsible for the administration and control of the division and with the approval of the Director of Public Safety, ". . . shall make and adopt rules and regulations for the direction, control, discipline and conduct of the members of the division . . ."; and (3) § 307.3 — The Governor, with the advice and consent of the Senate, shall appoint a State Police Merit Board consisting of three members. In brief, the Superintendent and the Director of Public Safety establish the rules of conduct and discipline, while the Merit Board serves as a hearing entity and prescribes disciplinary measures. The statute expressly authorizes suspension as discipline, and expressly finds that suspension for not more than thirty days is a reasonable period. The Rule at issue is in the language of such statute.

Due process is compounded of history, reason and the past course of decisions, and is neither an inflexible procedure, nor a technical concept with a fixed content unrelated to time, place and circumstances. The procedures required to provide due process follow determination of the governmental function, as well as the private interest that is affected. Cafeteria Workers v. McElroy, 367 U.S. 886, 6 L Ed2d 1230, 81 S Ct 1743.

In the historical development of the policy of recognizing merit in public employment in this State, the Legislature has consistently authorized suspension without pay for limited periods as an appropriate disciplinary measure, and it has consistently determined that suspension for a period of thirty days, without written charges and hearing, is reasonable. The Legislature has as consistently provided for written charges and hearings where sterner measures of discipline were imposed. We find that while the State Civil Service System, created in 1905, did not provide for suspension, but rather for separation or reduction in rank or pay as discipline, the Legislature did, in 1895, provide for civil service in cities and determined that suspension without pay for a period not to exceed thirty days without a hearing was reasonable. The Cities and Villages Act of 1961 retains the provision in substance, although it does authorize an employee to request a hearing if suspension is for more than thirty days. Chapter 24, § 10-1-18, Ill Rev Stats 1967. The Act of 1911 providing for civil service in park systems, authorized the precise form of discipline, and this statute as amended in 1963 retains the provision with a slight change in language. ...


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