Before Pell, Circuit Judge, and Perry and Decker, District
Judges.
The opinion of the court was delivered by: Pell, Circuit Judge.
MEMORANDUM OPINION AND ORDER
The present action is based upon a claimed violation of the
plaintiff Napolitano's civil rights and is brought pursuant to
28 U.S.C. § 1343 and 42 U.S.C. § 1983. Napolitano requested the
convening of a three-judge district court pursuant to 28 U.S.C. § 2281
and 2284. The three-judge court was designated and
argument has been heard and briefs have been submitted heretofore
on the matters raised by Napolitano's complaint and the amendment
thereto.
Briefly, the facts are as follows:
Napolitano, who was a circuit judge of Cook County, Illinois,
was the subject of disciplinary proceedings before the Illinois
Courts Commission pursuant to the provisions of Article 6, § 18
of the Illinois Constitution, S.H.A., and Rule 51 of the Illinois
Supreme Court, Ill.Rev.Stat. 1969, c. 110A, § 51, which
implements the constitutional provisions. This action was filed
prior to the commencement of the disciplinary hearing before the
Commission. A temporary restraining order to prevent the
Commission hearing was denied by the single judge before whom
this action was originally filed and this action of denial was
affirmed by the three-judge panel. The Commission proceeded with
the hearing and by order dated July 14, 1970 removed Napolitano
from his office as a judge of the Circuit Court of Illinois,
effective immediately.
As an initial matter it is necessary that we determine whether
the continuance of a three-judge court is required.
Napolitano contends that his rights under the United States
Constitution are violated by the proceedings before the Illinois
Courts Commission. These contentions fall into two main
categories: first, that the Illinois Constitution provision and
the Illinois Supreme Court rule thereunder are void on their face
as being unconstitutionally vague and overly broad, on the basis
of his rights being violated under Article 1, § 10 and the
Fourth, Fifth, Sixth and Fourteenth Amendments to the
Constitution of the United States; and secondly, that the state
constitutional provision and rule thereunder have been applied
unconstitutionally, federally speaking, to this plaintiff.
It is our opinion that if Napolitano's first contention is
without merit, i.e., that it does not raise a substantial
constitutional question, then the reason for the convening of a
three-judge court no longer exists and the factual issues
presented by the second contention should be determined by a
single judge, Phillips v. United States, 312 U.S. 246, 61 S.Ct.
480, 85 L.Ed. 800 (1941); Metcalf v. Swank, 293 F. Supp. 268
(N.D.Ill. 1968); Weisberg v. Powell, 417 F.2d 388 (7th Cir.
1969); Sarisohn v. Appellate Div., Second Dept., S.Ct. of St. of
N.Y., D.C., 265 F. Supp. 455 (1967).
To determine whether there is any merit to Napolitano's first
contention, we must look at the challenged provisions. Article 6,
§ 18 of the Illinois Constitution reads in part as follows:
Illinois Supreme Court Rule 51 has five subsections dealing with
the Organization of the Commission, Secretary, Complaint and
Answer, Hearing, and Conduct of the Proceedings. The pertinent
part of the last subsection reads as follows:
"(e) Conduct of the Proceedings. In the exercise of
its jurisdiction the commission is vested with full
judicial power and authority. * * * The failure of
the respondent to testify in his own behalf * * * may
be considered, unless it appears that such failure
was due to circumstances beyond his control * * *.
The commission may order the respondent removed * * *
or suspended without pay for a fixed period or until
further order of the commission. The concurrence of
three commissioners shall be necessary to a
decision * * *."
The Illinois Constitutional provision is similar to that of the
state of New York and the matters here presented were presented
for determination to a federal district judge in that state in
Sarisohn v. Appellate Div., Second Dept., S.Ct. of St. of N.Y.,
265 F. Supp. 455 (1967). The judge in Sarisohn resolved the
question as follows:
"There is a distinction between the question
whether the phrase `for cause' is unconstitutionally
vague and what the Appellate Division may decide
constituted such `cause'. The issue in the latter
case as well as the issues of disqualification and
bias do not involve the enforcement of an allegedly
unconstitutional statutory provision. They involve
only conduct of state officials under color of the
statute. Plaintiff seeks, as to such action, to
restrain not the enforcement of a statute but to
restrain only certain judicial action thereunder, and
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