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Boner v. Jones

OPINION FILED MARCH 24, 1975.

JOHN BONER ET AL., APPELLEES,

v.

NOLAN B. JONES, DIRECTOR OF PERSONNEL. — (ILLINOIS STATE EMPLOYEES ASSOCIATION ET AL., APPELLANTS.)



Appeal from the Circuit Court of Sangamon County; the Hon. Paul C. Verticchio, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

This case is concerned with events that took place after the death of Paul Powell, a Democrat, who was Secretary of State of Illinois. He died in October of 1970, and later that month the then Governor of Illinois, Richard B. Ogilvie, appointed John W. Lewis, a Republican, as Secretary of State to fill the unexpired term of Paul Powell. Thereafter, between October 13, 1971, and April 1, 1972, approximately 2,000 non-civil-service employees in the office of the Secretary of State were discharged. No cause was stated for these discharges, but the persons summarily discharged were Democrats who had been appointed to their positions by Powell. During the same period approximately the same number of Republicans were then hired to replace the Democratic employees who had been discharged.

On January 22, 1971, the Illinois State Employees Union and 19 former employees in the office of the Secretary of State, who sued in their own behalf and in behalf of all others similarly situated, brought an action in the United States District Court for the Southern District of Illinois against John W. Lewis, individually and as Secretary of State of the State of Illinois. The relief sought was a declaratory judgment holding that the conduct of the defendant "violates the due process, equal protection and freedom of speech and assembly guarantees of Title 42 United States Code Section 1983 and the First and Fourteenth Amendments to the Constitution of the United States." The plaintiffs also sought an order directing the defendant to reinstate the individual plaintiffs and an injunction restraining him from terminating the employment of other employees without a hearing and from discriminating against employees because of their membership or non-membership in any political party. The plaintiffs also sought to be made whole for loss of income and other damages incurred by reason of the allegedly unlawful acts of the defendant.

The district court entered a summary judgment in favor of the defendant, but this judgment was reversed by the court of appeals, which held "that the district court committed error when he entered judgment for the defendant. The record does not support a factual finding that no plaintiff was dismissed for an impermissible reason or the legal conclusion that defendant was justified in prescribing active support of the Republican Party as a condition of continued public employment." The judgment of the court of appeals was entered on September 18, 1972. Illinois State Employees Union, Council 34 v. Lewis (7th Cir. 1972), 473 F.2d 561, cert. denied, 410 U.S. 928 and 943, 35 L.Ed.2d 590 and 609, 93 S.Ct. 1364 and 1370.

Thereafter, on November 30, 1972, the present action was filed in the circuit court of Sangamon County. The plaintiffs in this action are several former employees in the office of the Secretary of State who allege that they were discharged by the defendant, Alan A. Drazek, Director of the Department of Personnel, "because of their political affiliation with the Democratic Party and because they refused to become Republicans or support the Republican Party," and that their positions were filled by Republican patronage appointees. The complaint further alleges that on February 16, 1972, John W. Lewis, Secretary of State, acting under section 4b of the Personnel Code (Ill. Rev. Stat. 1971, ch. 127, par. 63b104b), requested the Governor or to extend the provisions of the Code to certain positions in the office of the Secretary of State. The Governor approved, and the defendant Drazek issued a rule by which the provisions of the Code were so extended as of April 1, 1972.

The complaint further alleges that the discharge of the plaintiffs and the other Democratic employees on political grounds violated their constitutional rights under the first and fourteenth amendments to the Constitution of the United States; that examinations which did not comply with the provisions of the statute were given to the political patronage employees appointed to the positions formerly held by the plaintiffs, and that those replacement employees began the service of their probationary periods. It also alleges that the acts described in the complaint are an unconstitutional encroachment upon the office of Secretary of State by the Governor. The complaint prays for an injunction restraining Drazek as Director of the Department of Personnel from certifying any probationary employees under the Personnel Code and asks that the court hold section 4b of the Personnel Code unconstitutional, or, in the alternative, hold that the actions of the defendant violated the provisions of the Personnel Code. A second count of the complaint was filed in behalf of Terry R. David, who alleges that he is qualified for and desirous of employment in the office of the Secretary of State and reiterates the paragraphs of the first count.

The Illinois State Employees Association and certain named employees who had been appointed by the defendant Drazek sought and were granted leave to intervene on behalf of all members of the Illinois State Employees Association employed by the Secretary of State and entitled to certification under the Personnel Code. These intervenors filed a motion to dismiss the complaint. They also filed a counterclaim for a writ of mandamus commanding the Director of Personnel to send notice of their status as certified employees under the Code to the intervening petitioners. Thereafter, upon consideration of affidavits, a temporary injunction was granted as prayed in the complaint, and on appeal that order was affirmed by this court in Boner v. Drazek, 55 Ill.2d 279, on October 1, 1973.

After the cause had been remanded to the circuit court, Nolan B. Jones, the present Director of Personnel, was substituted as defendant in lieu of the former Director, Alan A. Drazek. In addition, Michael J. Howlett, who took office as Secretary of State in January of 1973, was granted leave to intervene. His intervening petition challenged the validity of section 4b of the Personnel Code and also alleged that the examinations given to the replacement employees were not examinations designed to establish a system of personnel administration, but rather were purported examinations designed to give an appearance of validity to examinations improperly conducted and improperly scored in order to grant civil service status to political patronage employees. Interrogatories were submitted to Alan Drazek and others, and affidavits were filed. After considering the interrogatories and their answers and the affidavits, the court granted the motion for summary judgment and entered a permanent injunction restraining the defendant Jones from certifying the replacement employees or notifying them of their certification.

The judgment of the trial court was based upon alternative grounds, the first of which was that section 4b of the Personnel Code (Ill. Rev. Stat. 1971, ch. 127, par. 63b104b) is invalid because it "constitute[s] encroachment upon the independent constitutional executive authority of the Secretary of State and infringement by the Governor upon the constitutional independence granted the Secretary of State in violation of Art. 2, Sec. 1, and Art. 5, Sec. 1 of the Illinois Constitution."

The Personnel Code deals with the classification and pay of State employees, their merit and fitness, and the conditions of their employment. Numerous positions are normally exempt from the Code, including all positions in the office of the Secretary of State (Ill. Rev. Stat. 1971, ch. 127, par. 63b104c). The provision of the Code that is attacked in this case is section 4b, which provides a method by which the Code may be made applicable to positions in those offices otherwise exempt. That section provides that the officer legally charged with control over appointments may request in writing to the Governor the extension of the provisions of the Code to a named group of employees. If the Governor concurs, he may forward the request to the Director of Personnel, who shall survey the practicability of the request, approve or disapprove it, and notify the Civil Service Commission of his decision. If he approves, he is to submit rules to accomplish the extension to the Civil Service Commission. Such an extension of jurisdiction of the Department of Personnel may be terminated at any time after four years from its original effective date by the same process of amendment to the rules.

It is difficult to understand the contention that section 4b somehow involves an unconstitutional "infringement by the Governor upon the constitutional independence" of the Secretary of State with respect to the hiring of employees in his office. The extension of the Code that is involved in this case was not the result of infringement by the Governor. It took place because it was requested by John W. Lewis, the then Secretary of State, and the provisions governing the extension, its scope, duration and method of termination remain today as they were when the extension was requested.

It is said also that section 4b "amounts to a legislative encroachment upon the doctrine of the separation of powers; i.e., upon the executive authority of the Secretary of State." This position, too, is untenable.

Under the Constitution the Secretary of State is the keeper of the Great Seal of the State, and he is to maintain the official records of the acts of the General Assembly and such official records of the executive branch as provided by law. (Ill. Const. (1970), art. V, sec. 16.) All of the other duties of the Secretary of State are prescribed by the General Assembly.

The contentions here advanced were rejected long ago in People ex rel. Gullett v. McCullough (1912), 254 Ill. 9, when an earlier statute which brought certain positions in the office of the Secretary of State under the Civil Service Commission was similarly challenged on constitutional grounds. Extensive quotation from the decision in the McCullough case is unnecessary. The holding ...


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