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NAPOLITANO v. WARD

July 31, 1970

RICHARD A. NAPOLITANO, PLAINTIFF,
v.
HON. DANIEL P. WARD, JUSTICE OF THE ILLINOIS SUPREME COURT; THE HONORABLES JOSEPH BURKE AND SAMUEL O. SMITH, JUSTICES OF THE APPELLATE COURT OF ILLINOIS; AND THE HONORABLES ROBERT JEROME DUNNE AND SEELY P. FORBES, JUDGES OF THE CIRCUIT COURT OF ILLINOIS; INDIVIDUALLY AND AS EX OFFICIAL MEMBERS OF THE ILLINOIS COURTS COMMISSION. HON. WILLIAM J. SCOTT, ATTORNEY GENERAL OF ILLINOIS, INDIVIDUALLY AND AS DESIGNATED COUNSEL FOR THE ILLINOIS COURTS COMMISSION; THE HON. JUSTIN TAFT, CLERK OF THE ILLINOIS SUPREME COURT, INDIVIDUALLY AND AS CLERK OF THE ILLINOIS COURTS COMMISSION; AND THE HON. ROY O. GULLEY, ADMINISTRATOR OF THE ILLINOIS COURTS, INDIVIDUALLY AND AS PERMANENT SECRETARY OF THE ILLINOIS COURTS COMMISSION. HON. RICHARD A. HOLLIS, INDIVIDUALLY AND AS STATE'S ATTORNEY OF SANGAMON COUNTY, ILLINOIS, DEFENDANTS.



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:

  "* * * subject to rules of procedure to be
  established by the Supreme Court and after notice and
  hearing, any judge may be retired for disability or
  suspended without pay or removed for cause by a
  commission composed of one judge of the Supreme Court
  selected by that court, two judges of the Appellate
  Court selected by that court, and two circuit judges

  selected by the Supreme Court. Such commission shall
  be convened by the Chief Justice upon order of the
  Supreme Court or at the request of the Senate."

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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