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Schrader v. Krok

OPINION FILED SEPTEMBER 16, 1980.

ROBERT SCHRADER ET AL., PLAINTIFFS-APPELLEES,

v.

DONALD J. KROK ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Lake County; the Hon. WILLIAM J. GLEASON, Judge, presiding.

MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 24, 1980.

Defendants, Donald J. Krok, Donald M. Anderson, John Aman, James J. Winfrey and Roy Ellis, individually and as members of the Lake County Sheriff's Office Merit Commission (hereinafter the Commission), bring this interlocutory appeal from an order of the Circuit Court of Lake County enjoining them from enforcing the Commission's rule concerning political activities against plaintiffs, Robert Schrader and Willie R. Smith.

Plaintiffs are sheriff's deputies in Lake County. On May 16, 1980, they received a letter from the Commission informing them that a complaint had been filed charging that they violated the Commission's rules and regulations prohibiting political activities. The letter also notified the plaintiffs that a hearing on these charges was set for June 2, 1980. On May 29, 1980, plaintiffs filed a complaint for injunction alleging that actions of the Commission violated plaintiffs' constitutional rights in a number of respects including that the Commission acted outside its legislatively granted authority, that the rule prohibiting political activities was overbroad, and that the charges were improper in form. After hearing the arguments of counsel, the trial court issued a temporary restraining order prohibiting the Commission from proceeding on the charges against plaintiffs.

On June 5, 1980, the Commission moved to dismiss the complaint, alleging that it failed to state a cause of action and that intervention in the administrative process was premature. After further argument of counsel, the trial court took the commission's motion under advisement and extended the temporary restraining order. On June 16, 1980, the trial court issued a memorandum opinion finding that the Commission had no authority to enact and enforce its rule concerning political activity. Accordingly the trial court denied the Commission's motion to dismiss and granted plaintiffs a preliminary injunction. The Commission filed a timely notice of interlocutory appeal pursuant to Supreme Court Rule 307 (Ill. Rev. Stat. 1979, ch. 110A, par. 307).

• 1 The requirements for the issuance of a preliminary injunction are well settled. For such an injunction to issue, the plaintiff must establish: (1) that he possesses a certain and clearly ascertained right which needs protecting, (2) that he will suffer irreparable injury without the protection of an injunction, (3) that there is no adequate remedy at law for his injuries, and (4) that he is likely to be successful on the merits. (Crest Builders, Inc. v. Willow Falls Improvement Association (1979), 74 Ill. App.3d 420, 393 N.E.2d 107; Bromberg v. Whitler (1977), 57 Ill. App.3d 152, 372 N.E.2d 837.) At issue in the instant case are the requirements of the lack of an adequate remedy at law, of irreparable injury, and the likelihood of success on the merits.

I.

• 2 As a general rule a plaintiff must exhaust his administrative remedies before he seeks access to the courts>. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill.2d 350, 326 N.E.2d 737.) However, it is now well settled that a party need not exhaust his administrative remedies where, as here, an administrative rule is attacked on its face. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540, 370 N.E.2d 223; Landfill, Inc. v. Pollution Control Board (1978), 74 Ill.2d 541, 387 N.E.2d 258.) Thus, at least that portion of plaintiffs' complaint challenging the Commission's rule on its face is a proper subject for injunctive relief.

The Commission also argues that the plaintiffs have failed to establish the existence of irreparable injury. While the complaint could have been more articulate in this regard, this case is concerned with plaintiffs' political rights as well as their continued employment. In such instances, injunctive relief is the customary remedy. (See, for example, United States Civil Service Com. v. National Association of Letter Carriers (1973), 413 U.S. 548, 37 L.Ed.2d 796, 93 S.Ct. 2880; Broadrick v. Oklahoma (1973), 413 U.S. 601, 37 L.Ed.2d 830, 93 S.Ct. 2908.) Also, in Bio-Medical Laboratories our supreme court held that the alternative remedy must be as complete and prompt as the equitable remedy in order to preclude injunctive relief. (68 Ill.2d 540, 549, 370 N.E.2d 223, 227.) In the instant case, where the plaintiffs are challenging an administrative rule on its face, injunctive relief is the most direct, prompt and complete remedy. If plaintiffs' court challenge is successful, there would be no need to hold an administrative hearing to determine the factual basis of the charges.

II.

The pivotal question in this case is whether the plaintiffs are likely to succeed on the merits of their claim that the Commission is without statutory authority to promulgate and enforce the rule in question. Section 58.1 of "An Act to revise the law in relation to counties" (Ill. Rev. Stat. 1979, ch. 34, par. 859.1) provides that in any county having a population of less than 1,000,000, the county board may provide by ordinance that sheriff's deputies be subject to a merit system, administered by a merit commission. Under such a merit system deputies would "[b]e appointed, promoted, disciplined and discharged pursuant to recognized merit principles of public employment * * *." The Commission is also specifically empowered to "[p]romulgate rules, regulations and procedures for the operation of the merit system * * *." The Commission has adopted a set of Rules and Regulations, article II, section 7 of which provides:

"No classified personnel in the Sheriff's Office shall participate in any manner in the activities or interest of any political party or of any candidate for public office or for the nomination therefor, nor participate in any manner in any political campaign for the nomination or election of candidates for public office. Violation of any provisions hereof shall be cause for removal of any such person in the Sheriff's Office so offending and such a decision by the Commission shall be binding. Nothing contained herein shall be deemed to interfere with the right of any person to sign a petition or vote for any candidate or upon any issue as his reason and conscience may dictate."

The issue thus becomes whether or not a rule concerning political activities can be considered a disciplinary rule pursuant to recognized merit principles of public employment.

The language of article II, section 7, is almost identical to that found in section 13 of "An Act in relation to the Cook County Police and Corrections Merit Board" (concerning the creation of the Cook County Merit Board), and section 14 of the County Police Department Act (concerning the creation of merit boards in counties with less than 1,000,000 in population) (Ill. Rev. Stat. 1979, ch. 125, pars. 63, 114). The Commission argues that given these provisions and given the United States Supreme Court decisions upholding similar provisions (United States Civil Service Com. and Broadrick v. Oklahoma), it must be concluded that its rule on political activities is in line with recognized principles. The plaintiffs, on the other hand, argue that under accepted rules of statutory construction the fact that in some instances the legislature has specifically provided a prohibition ...


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