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Lunding v. Walker

OPINION FILED NOVEMBER 15, 1976.

FRANKLIN J. LUNDING, JR., APPELLEE,

v.

DANIEL WALKER, GOVERNOR, APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Nathan M. Cohen, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 28, 1977.

In May, 1975, plaintiff was notified by letter from the Governor that he was being "removed as a member of the State Board of Elections for `neglect of duty.'" The neglect of duty involved plaintiff's failure to file the financial disclosure statement required by Executive Order No. 4-73. Plaintiff sued in the circuit court of Cook County to restrain the Governor from any further action implementing the removal. A temporary injunction was entered prohibiting the Governor or his agents from interfering with plaintiff's performance of his duties as a member of the Board. Defendant appealed from this interlocutory order under Rule 307 (58 Ill.2d R. 307), and we allowed defendant's petition under Rule 302(b) to transfer that appeal here.

This case requires a determination of the extent of the Governor's power to remove appointed executive officers. Specifically, the issues may be summarized as: (1) Does the removal power of the Governor as set forth in article V, section 10, of the 1970 Illinois Constitution extend to members of the State Board of Elections, and (2) may that power be exercised summarily and without judicial review? We hold that in this particular instance, because of the unique character of the office held by plaintiff, the Governor could only remove plaintiff for cause. Further, we hold that the determination of the adequacy of the cause for removal is, in this case, judicially reviewable. Consequently, we affirm the issuance of the temporary injunction.

Section 10 of article V 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."

This provision first appeared, in essentially its present form, as section 12 of article V of the 1870 Illinois Constitution. It had been incorporated into that constitution, partially at least, as a response to this court's decision in Field v. People ex rel. McClernand (1839), 3 Ill. 79. There it had been held that while the Governor could, with the advice and consent of the Senate, appoint a Secretary of State, he had no corresponding power to remove the Secretary from office. Thus, in explaining the proposed section on removals to the delegates to the 1870 constitutional convention, the chairman of the Committee on the Executive stated:

"Under the present Constitution the Governor may appoint a person to an important office, and when appointed he has no power whatever to remove him, though he may be incompetent. * * * The executive should have some power as well as responsibility, and he should have power enough, at least, to execute the laws; and if he is first to appoint men and be held responsible for his appointments, and then, in case they should prove failures, not have the power to remove then [sic], what ridiculous spectacle would be presented. This power of removal is for the benefit of the people and for their security, and not for the glory of the executive." G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis, 285-86, citing 1 Debates and Proceedings of the Constitutional Convention of the State of Illinois 748 (1870).

The removal provision was first construed in Wilcox v. People ex rel. Lipe (1878), 90 Ill. 186, in which members of the West Chicago Park Commissioners challenged their removal by the Governor. There this court said:

"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 incompetency, 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." 90 Ill. 186, 205.

A close reading of the Wilcox decision, however, raises doubts as to the actual breadth of the holding there. In speaking of the adoption of section 12 of article V of the 1870 Constitution, the court stated:

"We think the intention was to adopt the rule which had become established under the Constitution of the United States with respect to appointments made by the President, but was denied in this State in the case of Field v. The People, 2 Scam. 79, arising under the constitution of 1818, namely, that the power of removal was incident to the power of appointment; and that the constitution of 1870 makes the power of removal from office by the Governor co-extensive with his power of appointment." 90 Ill. 186, 198.

In Ramsay v. VanMeter (1921), 300 Ill. 193, 201-02, which dealt with the validity of the Governor's removal of the public administrator of Cook County, this court confirmed that "it was the intention of the framers of the constitution of 1870 to adopt the rule which had been established under the constitution of the United States * * * that the power of removal * * * was incident to and co-extensive with his power of appointment."

Thus the true holding of Wilcox was not that the Governor's removal power was unlimited and unbridled, but that it was "incident to and co-extensive with his power of appointment." And in determining the extent of the power, it was clear that the courts in both Wilcox and Ramsay had found Supreme Court interpretations of the President's removal power to be analogous and persuasive.

At the time of the adoption of section 12 of article V, and at the time of the construction of that section in Wilcox, it was clear from Federal decisional law that "in the absence of all constitutional provision, or statutory regulation, it would seem to be a sound and necessary rule, to consider the power of removal as incident to the power of appointment." (Ex parte Hennen (1839), 38 U.S. (13 Pet.) 230, 259, 10 L.Ed. 138, 159.) Further, it was the "settled and well understood construction of the Constitution, that the power of removal was vested in the President alone." Ex parte Hennen (1839), 38 U.S. (13 Pet.) 230, 259, 10 L.Ed. 138, 153. See also 2 B. Schwartz, A Commentary on the Constitution of the United States 48 (1963).

The first modern Federal decision construing the extent of the President's removal power was Myers v. United States (1926), 272 U.S. 52, 71 L.Ed. 160, 47 S.Ct. 21. That case arose from the removal of a first-class postmaster by the Postmaster General, at the specific direction of the President. Speaking through Chief Justice (and former President) Taft, the court went beyond the President's power to remove a postmaster and "announced the broad doctrine that the Constitution endows the President with an illimitable power to remove all officers in whose appointment he has participated, with the exception of the federal judges." 2 B. Schwartz, A Commentary on the Constitution of the United States 49 (1963).

Less than 10 years later, however, the court felt obligated to limit the Myers case to its specific facts. In Humphrey's Executor v. United States (1935), 295 U.S. 602, 79 L.Ed. 1611, 55 S.Ct. 869, the court was presented with the removal by President Roosevelt of a member of the Federal Trade Commission. Humphrey had been removed, according to President Roosevelt, because "the aims and purposes of this Administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection." Section 1 of the Federal Trade Commission Act (15 U.S.C. § 41) provided: "Any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office."

The court determined that the Myers decision should be confined to purely executive officers because "such an officer is merely one of the units in the executive department and hence inherently subject to the exclusive and illimitable power of removal by the chief executive, whose subordinate and aid he is." 295 U.S. 602, 627, 79 L.Ed. 1611, 1619, 55 S.Ct. 869.

In determining whether officers of the Federal Trade Commission should fall within the Myers rule, the court noted that:

"The commission is to be nonpartisan; and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. * * * Its members are called upon to exercise the trained judgment of a body of experts `appointed by law and informed by experience.'

Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control." (295 U.S. 602, 624-28, 79 L.Ed. 1611, 1617-19, 55 S.Ct. 869.)

The court also noted that "one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will." (295 U.S. 602, 629, 79 L.Ed. 1611, 1620, 55 S.Ct. 869.) Since the "coercive influence [of the power of removal] threatens the independence of a commission" (295 U.S. 602, 630, 79 L.Ed. 1611, 1620, 55 S.Ct. 869), "no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute" (295 U.S. 602, 632, 79 L.Ed. 1611, 1621, 55 S.Ct. 869).

In 1958 the Supreme Court reaffirmed the holding of Humphrey's Executor in Wiener v. United States (1958), 357 U.S. 349, 350, 2 L.Ed.2d 1377, 1379, 78 S.Ct. 1275. Wiener had been removed from the War Claims Commission because President Eisenhower wanted to staff the Commission "with personnel of my own selection." In finding that the removal was unauthorized, the court, relying on Humphrey's Executor, commented:

"It drew a sharp line of cleavage between officials who were part of the Executive establishment and were thus removable by virtue of the President's constitutional powers, and those who are members of a body `to exercise its judgment without the leave or hindrance of any other official or any department of the government,' 295 U.S. at 625, 626, as to whom a power of removal exists only if Congress may fairly be said to have conferred it. This sharp differentiation derives from the difference in functions between those who are part of the Executive establishment and those whose tasks require absolute freedom from Executive interference." 357 U.S. 349, 353, 2 L.Ed.2d 1377, 1380-81, 78 S.Ct. 1275.

The court decided that "the most reliable factor for drawing an inference regarding the President's power of removal in our case is the nature of the function that Congress vested in the War Claims Commission." (357 U.S. 349, 353, 2 L.Ed.2d 1377, 1381, 78 S.Ct. 1275.) Since claims before the Commission "were to be `adjudicated according to law,' that is, on the merits of each claim, supported by evidence and governing legal considerations, by a body that was `entirely free from the control or coercive influence, direct or indirect,' Humphrey's Exr. v. United States, supra, 295 U.S. at 629, of either the Executive or the Congress" (357 U.S. 349, 355-56, 2 L.Ed.2d 1377, 1382, 75 S.Ct. 1275), the removal without cause by the President was unauthorized.

Therefore, to summarize the Federal law on removals by the President:

"Within the executive branch itself, the President must be master, with the complete removal power recognized by the Myers case. All officers in the ordinary departments are executive officers within Myers, regardless of the nature of the functions which they perform. [Footnote omitted.] Such result is justified by the power of the Congress, at any time, to remove quasi-judicial authority from a department and vest it in an independent agency, whose members would be insulated from unfettered removal under Humphrey-Wiener." 2 B. Schwartz, A Commentary on the Constitution of the United States 55 (1963).

We do not mean to imply by our extensive discussion of Federal law that we feel inexorably bound by Federal decisions in this matter. However, this court in both Wilcox and Ramsay indicated that it was disposed to follow the Federal rule, and we now find the reasoning of the Myers-Humphrey's-Wiener trilogy persuasive. The holding of Myers closely parallels this court's decision in Wilcox, and while neither Humphrey's nor Wiener is directly on point, the same considerations of "independence" make those cases analogous to the case at bar.

As we noted earlier, the section on the Governor's removal power was carried over from the 1870 Constitution with only minor changes. During the debates on that section at the 1970 constitutional convention, however, Delegate Netsch proposed that the section be amended to read: "The governor may remove any officer whom he appoints." (3 Record of Proceedings, Sixth Illinois ...


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