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Boner v. Drazek





APPEAL from the Circuit Court of Sangamon County; the Hon. PAUL C. VERTICCHIO, Judge, presiding.


This appeal arises out of a complaint filed on November 30, 1972, in the circuit court of Sangamon County against Alan A. Drazek, the then Director of the Department of Personnel of the State of Illinois, by several former employees in the office of the Secretary of State who were discharged in 1970. The complaint sought a permanent injunction restraining the defendant from certifying for civil service status certain probationary employees who had succeeded to the positions formerly held by the plaintiffs, and a judgment declaring that the provisions of the Personnel Code (Ill. Rev. Stat. 1971, ch. 127, par. 63b101 et seq.) under which the defendant had purported to act were unconstitutional. Upon the plaintiffs' application the court issued a temporary restraining order against the defendant on November 30, and on December 21 issued a temporary injunction. The defendant prosecuted an interlocutory appeal from the temporary injunction to the Appellate Court for the Fourth District, and the appeal was transferred to this court under the provisions of Rule 302(b).

The complaint alleged in count I that five of the named plaintiffs were former employees of the Secretary of State, and that following the appointment in October, 1970, of John W. Lewis, a Republican, as Secretary of State to fill the vacancy created by the death of his Democratic predecessor, Paul Powell, numerous employees of the Secretary, including the plaintiffs, were discharged "because of their political affiliation with the Democratic Party and because they refused to become Republicans or support the Republican Party." The complaint went on to allege that after the plaintiffs' discharge their positions were filled with Republican patronage appointments.

Under section 4c of the Personnel Code (Ill. Rev. Stat. 1971, ch. 127, par. 63b104c) certain positions, among them those under the Secretary of State, were initially exempt from the jurisdiction of the Department of Personnel, which administers the Code. Section 4b of the Code (Ill. Rev. Stat. 1971, ch. 127, par. 63b104b) provides a procedure for extending the Code to such exempt positions, and that procedure was followed in the present case: On February 16, 1972, the Secretary of State, as the officer in charge of appointments to his department, requested the Governor to extend the provisions of the Code to certain units in the Secretary's office. The necessary concurrence and approval of the Governor and the defendant were granted, and the defendant issued a rule by which the extension became effective as of April 1, 1972.

Paragraph (5) of section 4b provides that when civil service status is extended to new positions, the employees then holding those positions shall be continued in them subject to certain conditions. The pertinent language of paragraph (5) is:

"(5) Employees * * * shall be continued in their respective positions provided that they pass a qualifying examination prescribed by the Director within 6 months after such jurisdiction is extended to such positions, and provided they satisfactorily complete their respective probationary periods. Such qualifying examinations shall be of the same kind as those required for entrance examinations for comparable positions. Appointments of such employees shall be without regard to eligible lists and without regard to the provisions of this Code requiring the appointment of the person standing among the three highest on the appropriate eligible list to fill a vacancy or from the highest category ranking group if the list is by rankings instead of numerical ratings."

Section 4b has been implemented by rules adopted by the Department of Personnel. Rule 2-310 specifies that the probationary period shall be six months, and Rule 2-330 provides: "A probationary employee shall attain certified status only after he has successfully completed his probationary period. Notice of certification will be sent the employee and the agency by the Director."

The complaint alleged that the probationary periods of the employees who had been hired following Lewis's appointment and whose positions had been brought under the Code on April 1, 1972, would terminate on various dates between December 1, 1972, and January 8, 1973. The latter date coincides with the one on which those persons elected on November 7, 1972, to the offices of Governor and Secretary of State were to be inaugurated.

The complaint charged that the firing of the plaintiffs violated their rights to freedom of expression, due process of law, and the equal protection of the laws guaranteed by the Federal and State constitutions. The prospective certification of the plaintiffs' successors was also said to be unconstitutional, seemingly on the ground that it would, as it were, legitimatize the plaintiffs' illegal discharge by creating a situation in which they would be denied the opportunity to be reinstated or to apply for employment. As an additional ground for challenging certification, the complaint alleged that the plaintiffs' replacements had not been given examinations in compliance with section 4b of the Code. The factual predicate for this allegation is not disclosed in the complaint, but from the plaintiffs' brief it appears that the point of objection is not an outright failure to give any examination at all but rather a failure to give examinations of the same kind as those given to new applicants under section 8b.1 of the Code (Ill. Rev. Stat. 1971, ch. 127, par. 63b108b.1).

Despite their allegation that their discharge had been unconstitutional, the plaintiffs did not include in their complaint a prayer that they be reinstated in their former jobs or a declaration that their discharge had been unlawful, and they did not name the Secretary of State as a party defendant. Nor did the complaint explicitly allege that the replacement of the plaintiffs with patronage employees was invalid. As noted previously, the relief sought, both permanent and temporary, was directed against the Director of the Department of Personnel and related only to the prospective certification of the plaintiffs' successors.

Count I of the complaint was brought by the plaintiffs not only on their own behalf but on behalf of all other former employees similarly situated. A parallel class action was framed in a second count, which was brought by another plaintiff who was not a former employee but who allegedly was qualified and desirous of employment in the office of the Secretary of State.

Prior to issuance of the injunction, the circuit court allowed a petition to intervene filed on December 11 on behalf of persons who allegedly had been employees in the office of the Secretary of State since prior to April 1, 1972, had passed their qualifying examinations, and had completed their probationary periods on various dates between November 30 and December 6 but had received no notice of certification.

In specific terms, the injunction issued by the circuit court restrained the defendant from certifying probationary employees in the office of the Secretary of State to positions under the Personnel Code, from issuing notice of such certification to such employees, and from advising them that they had satisfactorily completed their probationary period or had otherwise acquired certified status. The injunction also contained, in paragraphs 4 and 5, certain additional provisions which had been inserted at the instance of the defendant. Paragraph 4 required that before discharging or demoting any probationary employee, or taking any other action which, in the case of a certified employee, would warrant an appeal to the Civil Service Commission, the defendant must notify the court of the action proposed to be taken. Paragraph 5 provided that as to matters not otherwise prohibited by the injunction all terms and conditions of the Personnel Code and the rules promulgated pursuant thereto should apply to those positions in the Secretary's office to which Code jurisdiction had been extended on April 1, 1972. The plaintiffs have taken a cross-appeal seeking the deletion of paragraphs 4 and 5. The intervenors, although taking no appeal from the issuance of the injunction, with leave given by this court have filed a brief as cross-appellees as to paragraphs 4 and 5.

In order to put the present proceeding in proper perspective, it is necessary to take note of a suit filed against the Secretary of State on January 23, 1971, in the United States District Court for the Southern District of Illinois by the Illinois State Employees Union and several individuals who are also former employees of the office of the Secretary of State. That suit, which was brought under the Civil Rights Act of 1871 (42 U.S.C. ยง 1983), was brought as a class action "on behalf of the entire class of union members employed by the Defendant, as Secretary of State." The suit involves claims closely similar to those made here, for the plaintiffs there alleged that they had been fired by the Secretary in 1970 and 1971 because they were not, and refused to become, Republicans. Unlike the ...

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