Appeal from the Circuit Court of Sangamon County; the Hon.
Jerry S. Rhodes, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Plaintiff, a Springfield city policeman, brought this action for declaratory judgment and injunctive relief in the Sangamon County Circuit Court. Plaintiff sought to have a Springfield city ordinance, which conditions employment as a Springfield policeman upon membership and participation in the Springfield police pension fund, declared invalid and unconstitutional and sought to enjoin enforcement of such ordinance. The trial court found that the ordinance was valid and entered an order denying injunctive relief, from which plaintiff appeals.
On appeal, plaintiff contends that the Springfield ordinance should be declared invalid because: (1) the ordinance is preempted by the provisions of the statute which governs administration of the pension program; (2) the ordinance is preempted by provisions of the Illinois Civil Service Act; (3) the ordinance violates the equal protection guarantees of the Illinois Constitution; and (4) the ordinance is void for vagueness. In addition, plaintiff argues in the alternative that the city of Springfield should be estopped from enforcing the ordinance against him by seeking his discharge.
The facts of this case are undisputed. On September 4, 1979, plaintiff was hired by the city of Springfield as a police officer after passing a physical examination. Plaintiff applied for membership in the Springfield Police Pension Fund (Fund) but was denied membership by the board of trustees of the Fund (Board) based upon a finding that plaintiff was not physically fit. The circuit court of Sangamon County ultimately set aside the decision of the Board and ordered that plaintiff be admitted to membership in the Fund. This court reversed the order of the circuit court and remanded with directions that the Board's decision denying plaintiff membership in the Fund be reinstated. Sanders v. Board of Trustees (1983), 112 Ill. App.3d 1087, 445 N.E.2d 501.
On October 21, 1983, the city of Springfield filed a petition with the Springfield Civil Service Commission seeking plaintiff's discharge on the sole ground that he had failed to become a member of the policemen's pension fund as required by Springfield City Ordinance No. 65-1-77. Ordinance No. 65-1-77, enacted on January 25, 1977, provides in pertinent part:
"[I]t is a condition of employment with the Springfield City Police Department that all Springfield City Police Officers shall actively participate and become members of the Policemen's Pension Fund * * *. The failure of any police officer to participate in said Pension Fund shall be grounds for cause for removal from his position as a Springfield City Police Officer."
On October 28, 1983, plaintiff filed a complaint in two counts with the circuit court of Sangamon County seeking a declaratory judgment that ordinance No. 65-1-77 is unconstitutional and invalid and requesting an injunction to enjoin enforcement of the ordinance. The parties entered a stipulation requesting a stay of the proceedings before the Civil Service Commission to allow the circuit court to pass upon the validity of the ordinance. On May 9, 1984, the trial judge entered a written order finding that jurisdiction was proper in the circuit court and denying plaintiff's request for injunctive relief on the ground that ordinance No. 65-1-77 is valid.
Given the procedural posture of this case, a threshold question is raised of whether the trial court should have dismissed this action for the failure by plaintiff to exhaust his administrative remedies. Generally, a person challenging decisions of a civil service commission must exhaust his administrative remedies before invoking judicial review. Parties in a discharge proceeding cannot circumvent the exhaustion requirement by stipulating to jurisdiction in the circuit court. Ellison v. Kane County Sheriff's Office Merit Com. (1982), 108 Ill. App.3d 1065, 440 N.E.2d 331, cert. denied (1983), 462 U.S. 1118, 77 L.Ed.2d 1347, 103 S.Ct. 3086.
• 1 We find that exceptions to the exhaustion requirement are applicable to the instant case. Thus, where, as here, a party challenges a statute or ordinance as being facially invalid, rather than invalid as applied to the party, administrative remedies need not be pursued and exhausted. (Walker v. State Board of Elections (1976), 65 Ill.2d 543, 359 N.E.2d 113.) Further, the doctrine of exhaustion of administrative remedies does not apply where it would be futile to proceed initially via administrative channels, especially where a challenge is made to the facial validity of a statute or where the administrative agency cannot provide adequate relief. (Dock Club, Inc. v. Illinois Liquor Control Com. (1980), 83 Ill. App.3d 1034, 404 N.E.2d 1050.) We believe that this exception also obtains in the instant case, and consequently plaintiff was not required to defend himself in discharge proceedings prior to seeking relief in the circuit court.
• 2 Plaintiff's first argument on appeal is that ordinance No. 65-1-77 is preempted by section 3-150 of the Police Pension Fund Act of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 108 1/2, par. 3-150), which provides that:
"No home rule unit, as defined in the 1970 Illinois Constitution or any amendment thereto, shall have the power to change, alter, or amend in any way the provisions contained in this Article, and no such home rule unit which is a municipality, as defined in Section 3-103, shall provide for, singly or as a part of any plan or program, by any means whatsoever, any type of retirement or annuity benefit to a policeman other than through establishment of a fund as provided in this Article as now or hereafter amended."
Plaintiff contends that ordinance No. 65-1-77 changes or amends the act by making membership in the pension fund mandatory although the Act itself does not mandate membership. Defendant agrees that membership is not expressly mandated by the Act, but denies that the ordinance affects any provision of the Act and states that the ordinance is a proper exercise of the city's home rule powers.
Under the 1970 Illinois Constitution, a home rule municipality such as the city of Springfield has broad governmental powers, including the regulation of the public safety (Ill. Const. 1970, art. VII, sec. 6(a)). Any statute enacted subsequent to the 1970 Constitution which purports to limit home rule powers must be specific in that regard. Ill. Const. 1970, art. VII, sec. 6(i); Village of Hoffman Estates v. Union Oil Co. (1977), 56 Ill. App.3d 52, 370 N.E.2d 1304.
Upon a plain reading of section 3-150 and a review of the section's legislative history, it is clear that the purpose of the provision is to insure that Illinois policemen receive uniform pension benefits. Excerpts from the legislative debate indicate that the intent of section 3-150 is to prevent home rule units from enacting ordinances which conflict with the provisions of the pension code or alter the pension rights of policemen. (See also Board of Trustees v. Mathias (1982), 109 Ill. App.3d 894, 441 N.E.2d 362, which involved an identical provision in the Firemen's Pension Fund Act of 1919 (Ill. Rev. Stat. 1983, ch. 108 1/2, par. 4-142) prohibiting home rule regulation of pension benefits to firemen.) Further, application of the doctrine of ejusdem generis confirms that the prohibited ...