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PIENTA v. VILLAGE OF SCHAUMBURG

April 7, 1982

ROBERT PIENTA, THEODORE PRYKA, RICHARD MCGRAW, AND VINCENT DEGEORGE, PLAINTIFF,
v.
THE VILLAGE OF SCHAUMBURG, ILLINOIS, MARTIN J. CONROY, INDIVIDUALLY AND IN HIS CAPACITY AS CHIEF OF POLICE OF THE VILLAGE OF SCHAUMBURG, AND MARTIN CONIGLIO, FRED VOLKENING AND BEN BAREN, IN THEIR CAPACITIES AS MEMBERS OF THE FIRE AND POLICE COMMISSION OF THE VILLAGE OF SCHAUMBURG, DEFENDANTS.



The opinion of the court was delivered by: Leighton, District Judge.

MEMORANDUM

This is an action brought pursuant to 42 U.S.C. § 1983 and the First, Fourth, Ninth and Fourteenth Amendments to the United States Constitution, challenging the constitutionality of two regulations of the Schaumberg Police Department (SPD), General Order 79-59 and Administrative General Order 79-9, Schaumberg Police Department Standard Operating Procedure Code. Plaintiffs are two present and one former officer in the SPD and one civilian employee. Defendant Martin Conroy is and at all relevant times has been the Chief of Police of the Village of Schaumberg; as such he is responsible for the promulgation and enforcement of the rules in question. Defendants Martin Coniglio, Fred Volkening and Ben Baran are presently and at all relevant times have been members of the Fire and Police Commission of the Village of Schaumberg. Plaintiffs allege that the regulations, which provide that employees on injury leave or sick leave must remain in their residences at all times except for matters relating to their injury or illness, violate their constitutionally protected rights. Defendants contend that Orders 79-59 and 79-9 are a valid exercise of the SPD's power to regulate its employees. The cause is before the court on plaintiffs' motion for summary judgment. After careful consideration of the parties' submissions, the court concludes that the regulations are unconstitutional in that they infringe upon fundamental constitutional rights; they are not closely tailored to meet a compelling state interest.

Plaintiff Theodore Pryka was injured on duty on November 11, 1980 and was on injured-on-duty leave from that date until March 9, 1981. Plaintiff Robert Pienta was on injured-on-duty leave from July 11, 1980 until December 17, 1980. Plaintiff Richard McGraw was on injured-on-duty leave from September 3, 1980 until December 15, 1980. Plaintiff Vincent DeGeorge was on injured-on-duty leave from August 2, 1980 until February 15, 1981 when he voluntarily terminated his employment with the SPD. General Order 79-59 and Administrative General Order 79-9 were enacted on September 16, 1980, effective immediately, to include the provisions at issue in this case. After the amendment of the Orders, plaintiffs and their families were subjected to frequent calls and unannounced visits by police department personnel, and surveillance by police department personnel both inside and outside their homes.

The Orders in pertinent part provide:

General Order 79-59

F. Absence from Home:

    (2) Employees on injury leave must remain at
  their residences at all times except for matters
  that relate to their injury. (Exception:
  hospitalized personnel.) Each time it is
  necessary for an employee to leave their
  residence to go to a hospital or visit a doctor
  or secure medicine, they must notify the
  Schaumberg Police Department Communications
  Section and leave notice with the Communications
  officer as to the doctor's name and address that
  they are going to visit (hospital, drugstore,
  etc.). Upon returning home, they will again
  notify the Communications Section by phone of
  their return. G. Personnel on injury leave will
  not change their place of recuperation or leave
  the state without authorization from the Chief of
  Police

Administrative General Order 79-9

  B. It shall be the responsibility of all
  personnel reporting sick to remain at their
  residences until their next tour of duty.
  (exception — if a scheduled day off immediately
  follows a sick day, the residency requirement will
  end at 0001 hours on the scheduled day off), unless
  they must go to a hospital or visit their doctor or
  secure medicine for their illness. However, if any
  personnel must leave their residence during the
  sick period, it shall be their responsibility to
  notify the Schaumberg Police Department
  Communications Section and leave notice with the
  Communications officer as to the doctor's name and
  address that they are going to visit, drug store,
  hospital, etc., and they will notify the
  Communications officer upon their return to their
  residence.
  C. Personnel on sick leave will not change their
  place of recuperation or leave the state without
  authorization from the Chief of Police.
 
  I. The Administrative Division Commander with
  approval of the Chief of Police may grant
  personnel stricken with serious illness or injury
  permission to leave their residence during the
  period of recuperation without requiring
  telephone notification to the Police Department
  (i.e. heart attacks, major operations, broken
  limbs or serious injuries).

A violation of these regulations is punishable, at the Chief's discretion, by a five-day suspension without pay. Further, the Fire and Police Commission may, upon a filing of a complaint by the Police Chief, impose a longer suspension or may terminate the violator's employment.

Under these regulations, SPD employees on injured-on-duty leave or on sick leave cannot leave their homes for any reason other than one medically related to their injury. By placing such restrictions on the activities of injured or sick SPD employees, the regulations infringe on several constitutionally protected rights, including the right to vote, the right to free exercise of religion and the right to travel. That these rights are "fundamental" under our constitution cannot be questioned. See School District of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 1328, 22 L.Ed.2d 600 (1969); Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972). The regulations impinge on more than just these specific recognized rights, however, for the SPD employees who fall under their coverage are denied "the freedom to care for [their] health and person; freedom from bodily restraint or compulsion [and the] freedom to walk, stroll or loaf." Roe v. Wade, 410 U.S. 113, 213, 93 S.Ct. 705, 758, 35 L.Ed.2d 147 (1973) (Douglas, J., concurring). They are, in effect, made prisoners in their own homes, and are deprived of their personal, individual liberty. Defendants contend that the regulations do not infringe on any constitutional rights because they do not on their face prohibit any protected activity and there are alternative means for any affected employees to exercise their rights. Defendants miss the point. A law neutral on its face may still infringe upon constitutional rights; it need not explicitly bar a protected activity. See Thomas v. Review Board of Indiana Employment Services Division, 450 U.S. 707, 101 S.Ct. 1425, 1431, 67 L.Ed.2d 624 (1981); Dunn, 405 U.S. at 339, 92 S.Ct. at 1001; Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 534, 11 L.Ed.2d 481 (1964). Accordingly, the court finds that the regulations at issue impinge on "fundamental" constitutional rights.

When rights of this nature are affected, the infringing regulations may only be justified by a showing of "compelling state interest." Further, the regulations "must be narrowly drawn to express the legitimate interests at stake." Roe, 410 U.S. at 155, 93 S.Ct. at 727. Defendants argue that because this case involves public employees, the proper test is whether the regulations are rationally related to a legitimate state interest. In support of this proposition, they rely on two cases, Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976) and Loughran v. Codd, 432 F. Supp. 259 (E.D.N.Y. 1976). In Kelley, the plaintiff, a police officer, challenged the constitutionality of a hair length regulation which he contended violated his liberty rights as protected by the Fourteenth Amendment. The court upheld the regulation on a finding that it was not so irrational as to be arbitrary. Kelley, 425 U.S. at 248, 96 S.Ct. at 1446. The Loughran case involved a police department regulation that is similar, although not identical, to the one challenged here. The district court interpreted Kelley as establishing a rational relationship test for all regulations governing public employees, and upheld the regulations without evaluating the rights affected by them. The approach taken by the court in Loughran and urged upon this court by defendants is based upon a misreading of the Kelley decision. The question of which test should be applied in determining the constitutionality of a particular regulation is governed by the nature of the rights affected. Memorial Hospital v. Maricopa County, 415 U.S. 250, 253, 94 S.Ct. 1076, 1079, 39 L.Ed.2d 306 (1974).The court in Kelley did not change this rule for public employees. Instead, it ...


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