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Diiulio v. Board of Fire and Police Commissioners of City of Northlake

decided*fn*: June 30, 1982.

DOMENIC DIIULIO, ET AL., PLAINTIFFS-APPELLANTS,
v.
BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF NORTHLAKE, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78-C-2335 -- Nicholas J. Bua, Judge.

Cummings, Chief Judge, Pell, Circuit Judge, and Cudahy, Circuit Judge.

Author: Pell

PELL, Circuit Judge.

At issue in this case is the constitutional validity of an examination required for the promotion of appellants, police patrolmen, to the position of police sergeant.*fn1

I

In our appraisal of appellants' claims we must accept their version of the facts properly before the district court because that court granted summary judgment against them.*fn2 Bishop v. Wood, 426 U.S. 341, 345, 347, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976).

Appellants were hired prior to December 10, 1977, as police patrolmen by the Board of Fire and Police Commissioners of the City of Northlake, Illinois. Promotion within the Northlake Police Department is governed by state law and the Rules and Regulations of the Board of Fire and Police Commissioners of the City of Northlake (the Board), Ill. Rev. Stat. ch. 24, § 10-2.1-1, et seq., pursuant to which, promotions are based upon merit, seniority, and competitive examinations. In all cases where it is practicable, vacancies are to be filled by promotion. A promotion roster must be prepared based on the competitive examinations, ascertained merit, and seniority. Vacancies must be filled by one of the three candidates at the top of the roster, and a high ranking candidate cannot be passed over more than twice.

"In determining next in order of rank in promotional examinations,. . . [the Board] extends the examination successively through all the orders of rank in the services in an endeavor to qualify suitable eligible or eligibles for the vacancy or vacancies existing before extending the examination to the general public." And "no examination shall be given if a vacancy exists at that time and an eligibility list is in existence." The names of candidates on the promotional roster may be removed by the Board after two years only if all existing vacancies are filled prior to cancellation. Ill. Rev. Stat. ch. 24, § 10-1-13.

The competitive written promotional exam accounts for 55% of the total score in the promotional scheme.*fn3 A score of 70 is required to pass the written exam. It is statutorily provided that the examination shall be conducted by the Board and that the "examinations shall be practical in character and relate to the matters which will fairly test the capacity of the persons examined to discharge the duties of the positions to which they seek [promotion]." Ill. Rev. Stat. ch. 24, § 10-2.1-6.

On December 10, 1977, the Board held a promotional examination for the rank of sergeant.*fn4 The plaintiffs, seeking promotion to that rank, unsuccessfully participated in said examination.*fn5

Appellants' cause of action is based on their claim that the promotional examination was "arbitrary, capricious, and discriminatory and lacked and was devoid and not in furtherance of any substantial, rational, reasonable an [sic]/or compelling, relationship to any legitimate promotional scheme for the rank of sergeant, purpose or objective, in violation and derogation of due process of law and the equal protection of the laws guaranteed under the Fourteenth Amendment . . . because it was not validated nor job related."*fn6 This case is not moot as we cannot state with assurance that there is no reasonable expectation that the alleged violation will recur, nor have interim relief or events completely and irrevocably eradicated the effects of the alleged violation. County of L.A. v. Davis, 440 U.S. 625, 631, 59 L. Ed. 2d 642, 99 S. Ct. 1379 (1979).

II

To satisfy the prerequisite for an assertion of the constitutional requirements of due process, a party must implicate a protected interest in either life, liberty, or property. Board of Regents v. Roth, 408 U.S. 564, 569, 570, 571, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). The district court disposed of appellants' due process claim by concluding that since state law does not grant appellants "a proprietary interest in a validated or otherwise certified job-related promotional examination, it is clear that no constitutionally protected interests are involved in the present matter." We believe that the district court's sole focus on a property interest without regard to a liberty interest was in error. Appellants' promotion was not a matter subject to the Board's grace, nor was it a matter left to the unfettered discretion of the Board. Compare, Board of Regents v. Roth, 408 U.S. at 567. As we explained in Part I, the promotion scheme was based on evaluation of merit, seniority, and competitive examination. While the state can require high standards of qualifications, these standards must have a rational connection with the applicant's fitness or capacity to be a police sergeant. Schware v. Board of Bar Examiners, 353 U.S. 232, 1 L. Ed. 2d 796, 77 S. Ct. 752 (1957). Attaching unreasonable and arbitrary requirements is violative of constitutional due process. Smith v. Texas, 233 U.S. 630, 639, 58 L. Ed. 1129, 34 S. Ct. 681 (1914); Smith v. Alabama, 124 U.S. 465, 480, 31 L. Ed. 508, 8 S. Ct. 564 (1888); State v. Walker, 48 Wash. 8, 92 P. 775 (1907).*fn7 In the instant case, at issue is not the state's right to require an examination, but the rational relation between the particular questions formulating the examination and the functions of the job of police sergeant. We hold that appellants have sufficiently implicated a liberty interest in promotion which cannot be denied without constitutional due process.*fn8

While the state may test a person for the job, it may not test a person in the abstract. Constitutional due process guarantees that no person will be arbitrarily deprived by the government of his liberty to engage in any occupation. "The liberty guaranteed by the Fourteenth Amendment . . . without doubt . . . denotes not merely freedom from bodily restraint but also the right of the individual . . . to engage in any of the common occupations of life. . . ." Meyer v. Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625 (1923), cited in Board of Regents v. Roth, 408 U.S. at 572; Hampton v. Mow Sun Wong, 426 U.S. 88, 102, 48 L. Ed. 2d 495, 96 S. Ct. 1895 (1976); Truax v. Raich, 239 U.S. 33, 41, 60 L. Ed. 131, 36 S. Ct. 7 (1915). In Graves v. Minnesota, 272 U.S. 425, 71 L. Ed. 331, 47 S. Ct. 122 (1926), the Supreme Court upheld the constitutionality of a state statute prohibiting the practice of dentistry without a diploma from a dental college of good standing, as against the contention that the requirement violated constitutional due process. The Court did not uphold the requirement of a diploma per se, but rather the rationale ...


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