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Reich v. City of Freeport

decided: December 24, 1975.


Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 74 C 29 WILLIAM J. BAUER, Judge.

Stevens, Circuit Justice,*fn* Sprecher, Circuit Judge, and Grant, Senior District Judge.*fn**

Author: Per Curiam

This action was brought by a former policeman of the City of Freeport, Illinois, alleging (1) that certain municipal ordinances were unconstitutional as violations of the First Amendment; (2) that the ordinance prescribing the procedure to be followed by the Board of Police and Fire Commissioners in deciding whether to discharge a policeman for cause is unconstitutional as a violation of Due Process, and (3) that the plaintiff's discharge from the force was in violation of his due process rights both because of procedural defects and because it was based in part on his violation of a statute found to be void as in conflict with the Illinois Constitution. The District Court dismissed the complaint, and the plaintiff appealed.

We do not reach the merits on any of the claims, as plaintiff does not have standing to attack the ordinances except insofar as they were applied to him in his discharge, and, as to his discharge, all the claims have been heard and determined by the Illinois State Courts. We have no power to review the final decision of the state court.

The following facts, drawn from the record, are undisputed. On January 7, 1971, while Mr. Reich (the plaintiff) was walking his beat in downtown Freeport, he received a radio call instructing him to report to the Balz Travel Agency. When he arrived, he found two members of the Freeport Board of Fire and Police Commissioners and the Freeport Chief of Police. The three men appeared to have been in conference for some time. Mr. Balz informed Reich that he had "heard bad things" about him, but refused to detail what they were and would not allow Mr. Reich to look at a "thick file" which was lying on the desk. The three men then attempted for half an hour to convince Reich to resign.*fn1

When Mr. Reich refused to resign, a formal hearing was held at which Mr. Reich was charged with five counts.*fn2 After the hearing, the Board ordered that Reich should be discharged. Following the procedures of the Illinois Administrative Review Act,*fn3 Reich had judicial review of the Board's action in the Circuit Court of Stephenson County. The Circuit Court found the Board's action to be justified, and this judgment was affirmed by the Illinois Appellate Court.*fn4 Mr. Reich then filed this action in the District Court for the Northern District of Illinois.


The District Court properly had jurisdiction of this case founded on 28 U.S.C. § 1331, general federal question jurisdiction, since the complaint alleged that certain ordinances and procedures were in conflict with the United States Constitution and since the amount in controversy exceeded $10,000. Since this is so, it is immaterial that jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, also alleged by the plaintiff, did not exist against the defendant City of Freeport and may not exist against the defendant Board of Fire and Police Commissioners.*fn5


The plaintiff's position as a citizen and taxpayer of the City of Freeport does not give him standing to attack the ordinances here involved.*fn6

The doctrine of "standing" has its roots both in Article III of the Constitution and in certain discretionary considerations which go to the question of the justiciability of a particular controversy -- whether or not a certain question can properly be decided by a court. It is because these latter considerations can vary that much of the confusion exists in the standing doctrine. But underlying every question of standing is the Constitutional requirement that there be a real "case or controversy" sufficient to provide that degree of adversariness which is necessary for a court to decide the case properly. Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691. And it is of the essence of this question to ask whether the plaintiff, as he comes into court, has in fact been injured by the conduct he challenges.*fn7 Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361. There are two interests which Mr. Reich might assert, the first as a citizen, and the second as a taxpayer. His interest as a citizen lies in having every member of the local police department free to criticize other members of the department so that the department can be improved. This interest would relate, of course, only to those ordinances relating to speech. The second interest, as a taxpayer, is to avoid having his tax monies spent in enforcing an unconstitutional ordinance. Both of these interests exist; however, in the circumstances of this case, neither is sufficiently immediate to give plaintiff standing to attack these ordinances.

In Flast v. Cohen, 392 U.S. 83, 20 L. Ed. 2d 947, 88 S. Ct. 1942, the Supreme Court recognized the standing of federal income tax payers to challenge the use of federal funds to support instructional activities and materials in religious schools. The Court carefully limited its holding in that case, however, to attacks on the use by Congress of its general power to tax and spend for the general welfare, where the use is allegedly in violation of a specific restriction imposed on Congress by the Constitution -- in Flast, the First Amendment prohibition against the establishment of religion. The Court specifically noted that there was no logical nexus between the taxpayer status and the "incidental expenditure of tax funds in the administration of an essentially regulatory statute." 392 U.S. at 102. The Freeport ordinances here in issue are exercises of regulatory rather than spending power;*fn8 thus, Mr. Reich's position is very similar to the position of the plaintiff in United States v. Richardson, 418 U.S. 166, 41 L. Ed. 2d 678, 94 S. Ct. 2940, where the Court held that a federal taxpayer did not have standing to challenge the constitutionality of the Central Intelligence Agency Act on the ground that it violated Art. I, § 9, cl. 7 of the Constitution, which requires a regular statement and account of the use of all public funds. In Richardson, the Court reaffirmed the principle that a taxpayer may not use "'a federal court as a forum in which to air his generalized grievances about the conduct of government . . ..'" 418 U.S. at 173.

What then of Mr. Reich's general interest as a citizen? The Supreme Court has never found the generalized interest of a citizen to be sufficient to confer standing. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361. This has been true even where a more ...

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