Appeal from the United States District Court for the Southern District of Illinois. S CIV 73 46 OMER POOS, Judge.
Cummings, Pell, and Stevens, Circuit Judges. Stevens, Circuit Judge (concurring). Pell, Circuit Judge, dissenting.
Plaintiff, a practicing lawyer, is the former chairman of the Illinois Liquor Control Commission. On May 4, 1972, former Governor Ogilvie appointed plaintiff to a term expiring on February 1, 1978. In January 1973, plaintiff refused to resign his part-time position as requested by representatives of Governor Walker. On February 1, 1973, Governor Walker sent the following letter to plaintiff:
"Pursuant to the constitutional powers vested in me as Governor of the State of Illinois, I hereby remove you, for cause and effective immediately, from your position as a member and as Chairman of the Illinois Liquor Control Commission."
On the same date, Governor Walker sent plaintiff the following telegram:
I HEREBY REMOVE YOU, EFFECTIVE IMMEDIATELY, FROM YOUR POSITION AS A MEMBER AND AS CHAIRMAN OF THE ILLINOIS LIQUOR CONTROL COMMISSION FOR INCOMPETENCE, NEGLECT OF DUTY AND MALFEASANCE IN OFFICE AND OTHER CAUSE PURSUANT TO THE CONSTITUTIONAL AND STATUTORY POWERS VESTED IN ME AS GOVERNOR OF THE STATE OF ILLINOIS.
On February 2, 1973, Governor Walker appointed Elroy Sandquist, Jr., to succeed plaintiff as a member of the Commission and subsequently designated Lawrence E. Johnson as its chairman. In March 1973, plaintiff filed this action against Governor Walker, seeking reinstatement as a member and chairman of the Commission. Plaintiff also sought damages allegedly incurred as a result of his dismissal.
On April 2, 1973, the district court entered a temporary restraining order in plaintiff's favor and five weeks thereafter sua sponte issued a preliminary injunction. On May 31, 1973, the district court entered an order requiring defendant to show cause why he should not be held in contempt for disobeying the temporary restraining order and preliminary injunction. On the following day, defendant appealed from the issuance of the preliminary injunction. We reverse.
Article V, Section 10, of the 1970 Illinois Constitution provides:
"The Governor may remove for incompetence, neglect of duty, or malfeasance in office any officer who may be appointed by the Governor."
A virtually identical provision in the 1870 State Constitution was construed by the Illinois Supreme Court as making "power of removal from office by the Governor co-extensive with his power of appointment." Wilcox v. The People ex rel. Lipe, 90 Ill. 186, 198 (1878).*fn1 The court expressly rejected the argument that notice and hearing were required, stating:
"Undoubtedly, the Governor can only remove for some one of the causes specified; but the removal here was for one of these causes -- incompetency. The Governor ascertained the existence of the cause here, and made the removal on account of it. The constitution is silent as to who shall ascertain the cause of removal or the mode of its ascertainment. It simply gives to the Governor the power to remove any officer whom he may appoint, in case of incompetence, etc. It follows, then, that it is with the Governor, who is to act in the matter, to determine, himself, whether the cause of removal exists, from the best lights he can get, and no mode of inquiry being prescribed for him to pursue, it rests with him to adopt that method of inquiry and ascertainment as to the charge involved which his judgment may suggest as the proper one, acting under his official responsibility, and it is not for the courts to dictate to him in what manner he shall proceed in the performance of his duty, his action not being subject to their revision. The constitution of this State not only declares that the powers of the government of the state shall be divided into three distinct departments, but has expressly prohibited the exercise of any of the powers properly belonging to one by either of the others." 90 Ill. at 204-205.
Plaintiff's argument for an alternative interpretation of the Illinois constitutional provision is essentially that the Illinois Supreme Court did not mean what it said. That court said in Wilcox, "We think the intention [of the 1870 Convention] was to adopt the rule which had become established under the Constitution of the United States with respect to appointments made by the President, * * * namely" the rule quoted above. Plaintiff contends that the true meaning of Wilcox is that Illinois will follow the federal rule, whatever it may be, and that the Illinois Supreme Court misunderstood the federal rule because it subsequently did not cite Shurtleff v. United States, 189 U.S. 311, 47 L. Ed. 828, 23 S. Ct. 535 (1903).*fn2 Of course, the 1870 Convention could not possibly have intended to adopt the rule of a 1903 decision. More fundamentally, the federal rule announced in Shurtleff was that in the absence of a contrary constitutional or statutory provision, "the President can by virtue of his general power of appointment remove an officer, even though appointed by and with the advice and consent of the Senate." 189 U.S. at 314-315. This rule was held to be so well established that a statutory provision specifying grounds for removal did not by implication forbid the President to remove on other grounds. Instead the President retained an "unlimited power of removal." Id. at 317. Undoubtedly this was the federal rule cited by the Illinois court in Wilcox. The Shurtleff language relied on by plaintiff construed the Customs Administrative Act of 1890 as requiring notice and hearing if the President announced that he was removing appraisers for one of the grounds specified in the statute. Id. at 314. There is no indication that this construction was constitutionally compelled. Rather, the Court said that without a requirement of notice and hearing the statutory specification of grounds for removal would "fulfill no function." Id. at 317. As already noted, in Wilcox the Illinois Supreme Court has held squarely to the contrary in construing the Illinois Constitution, and its construction is binding on us.
Wilcox construed the removal provision of the 1870 Constitution, but it also controls the meaning of the corresponding provision of the 1970 Constitution. The two Sections are nearly identical, and it is clear that the 1970 Convention intended no change in meaning. The entire committee report on this Section read as follows:
"The only alteration made as this section is carried forward from its existing counterpart is the deletion of clearly superfluous language." VI Rec. of Proceedings 6th Ill. Const. Conv. 387 (hereafter cited Rec. ) (Executive Comm. Proposal 1, p. 51).
During debate at first reading on the floor of the 1970 Convention, the meaning of the Section was explained by reference to earlier Illinois Supreme Court decisions. III Rec. 1324-1327 (Verbatim Transcript). The Section as passed at first reading was amended without explanation by the Committee on Style, Drafting and Submission. VI Rec. 432 (Style, etc. Comm. Proposal 6, p. 18). That Committee's report indicated that some changes were submitted without explanation because the reasons were "self-evident" (VI Rec. 415 (Style, etc. Comm. Proposal 6, p. 1)), and it is clear that the changes were purely stylistic. The Section as proposed by the Committee on Style was adopted without further debate (V Rec. 4753 (Index to Verbatim Transcript)) and is the Section before us. See also VII Rec. 2709 (Official Text With Explanation, p. 29).
Whether plaintiff has a right to a due process hearing before he can be dismissed is a matter of federal law. He has such a right if his dismissal infringes his liberty, or if, as a matter of state law, he has a property interest in the job. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701; Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694. The rule that plaintiff has no right to a hearing under state law is persuasive on the issue whether he has a property interest, but it cannot be conclusive. Wilcox was decided long before Roth and Sindermann, and did not decide any question of property rights. Thus the law of Illinois could conceivably be that plaintiff has a property interest but no right to a hearing to protect that interest. Cf. Shirck v. Thomas, 486 F.2d 691, 692 (7th Cir. 1973).
Plaintiff argues that since he was appointed for a six-year term, he has a property right to hold the job for six years. He relies on Ill. Rev. Stats. ch. 43, § 98, which provides that liquor commissioners shall be appointed for periods of six years, and on a letter from then Governor Ogilvie appointing him, subject to Senate confirmation, "for a term expiring February 1, 1978." Plaintiff's commission makes no reference to a six-year term, but instead says that he is "To have and to hold the said office, with all the rights and emoluments thereto legally pertaining, until his successor shall be duly appointed and qualified to office."
"A term of employment set by contract has been recognized as a property interest which the state cannot extinguish without conforming to the dictates of procedural due process." Hostrop v. Board of Junior College District No. 515, 471 F.2d 488, 494 (7th Cir. 1972). The issue is whether the statute and letter referred to give rise to an implied contract for a six-year term, or to a "legitimate claim of entitlement" to such a term. Roth, 408 U.S. at 577. As we understand Illinois law, they do not.
First, the provision for six-year terms must be read in light of the constitutional removal provision. It is reasonable to assume that had the legislature intended its provision for six-year terms to confer vested property rights on the office holder, it would have included specific language attempting to limit the Governor's power to remove without notice, hearing or right of review. This is particularly true since it is not at all clear that the legislature can, by statute, modify the constitutional removal provision, and the Illinois courts would construe an ambiguous statute so as to avoid constitutional doubt. Craig v. Peterson, 39 Ill.2d 191, 233 N.E.2d 345, 351 (1968). Second, although the legislature has enacted an elaborate Personnel Code giving civil service protection to many state employees (Ill. Rev. Stats. ch. 127, § 63b101 et seq. (1971)), it has specifically exempted "members of boards and commissions, and all other positions appointed by the Governor by and with the consent of the Senate." § 63b104c(7). Third, there is no allegation that plaintiff was unfamiliar with the Governor's removal power. Freedom from gubernatorial removal could not have been a claim upon which plaintiff relied in his daily life, so that there was no "legitimate claim of entitlement" to a full term. See Roth, 408 U.S. at 577.
Fourth, the trial court's finding that the Illinois Senate would probably confirm plaintiff's successor is not consistent with a legislative intent to create a property right not subject to the Governor's removal power.
Fifth, members of the Illinois Liquor Control Commission have substantial quasi-legislative and quasi-judicial responsibilities; in a very real sense they are vested with part of the sovereignty of the state. See Ill. Rev. Stats. ch. 43, § 97 et seq. The statute provides for only three liquor control commissioners. § 97. Unlike teachers and junior college presidents, they have no supervisors to guide their work; subject only to judicial review or statutory amendment, these three commissioners hold ultimate regulatory authority over the liquor industry in Illinois. The Commission's powers and duties include the power to hold hearings to determine whether liquor licensees have violated the law and to suspend or revoke the licenses of those found guilty. § 108(1). The Commission has rule-making authority (§ 108(2)), which has been used to adopt substantive regulations. See Shoot v. Illinois Liquor Control Comm., 30 Ill.2d 570, 198 N.E.2d 497 (1964). In short, these commissioners do not merely implement policies formulated with reasonable specificity by others; they formulate the policy of the state.
While a state might give an individual property rights in such a sensitive position, it would be unusual if it did so. Even in the First Amendment area, we have recognized that political philosophy or affiliation may be relevant to the selection of policy-making officials. State Employees Council 34 v. Lewis, 473 F.2d 561, 574 (7th Cir. 1972); see also Gould v. Walker, 356 F. Supp. 421 (N.D. Ill. 1973); cf. Pickering v. Board of Education, 391 U.S. 563, 570, 20 L. Ed. 2d 811, 88 S. Ct. 1731. While the parameters of this exception to the normal protection given public employees have not been fully defined, and even though it would seem to be a small category (cf. Hostrop v. Board of Junior College Dist. No. 515, 471 F.2d 488 (7th Cir. 1972)), the considerations which justify the exception are certainly relevant here. Ultimate policy-making authority in Illinois is retained by the people. Before we could determine that an individual had been ceded a property right in a policy-making position, we would expect a clear statement by the legislature or the Illinois courts. For example, Section 98 might have included a sentence along the following lines: "No commissioner shall be removed from office before the expiration of his term, except on a finding of [list of grounds for removal] after due notice and hearing." The six-year term provisions relied on by plaintiff are not such clear statements.
This conclusion does not render the six-year term meaningless. The legislature could have provided six-year staggered terms so that subject only to the Governor's removal power, there would always be experienced members on the Commission. Further, the limitation to six-year terms requires that the Governor periodically review the performance of each commissioner and determine whether to reappoint or replace him. It is not necessary in this case to determine exactly what the legislators had in mind. It is sufficient to conclude that they did not intend to create a property right.
Nor did the dismissal infringe any liberty interest. The use of the talismanic phrase "incompetence, neglect of duty, and malfeasance in office" in effecting plaintiff's discharge was plainly to satisfy the state constitutional provision and did not take liberty without due process of law. General characterizations of behavior must be read in context. In Jeffries v. Turkey Run Consolidated School District, 492 F.2d 1 (7th Cir. 1974), plaintiff was charged with "highly unethical conduct." But the specification of that charge made clear that the School Board meant only that plaintiff had "openly contradict[ed] the directives given to students" by another teacher. We held that this statement did not deprive the plaintiff of liberty. Slip Opinion at p. 2, n. 1. Similarly here, given the Governor's absolute discretion to dismiss his appointees, coupled with the requirement that he invoke the constitutional language, his statement means nothing more than if he had said, "I am dismissing you because I think I can find a better liquor commissioner." Proof that "nonretention in one job, taken alone, might make him somewhat less attractive to some other employees would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of 'liberty.'" Roth, 408 U.S. at 574 n. 13, 33 L. Ed. 2d 548, 92 S. Ct. 2701.
A careful reading of the passage in Roth under which plaintiff has attempted to plead a deprivation of liberty makes clear that the Court contemplated one of two quite different situations. The opinion suggests two distinct liberty ...