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11/21/88 John M. Dineen Et Al., v. the City of Chicago Et Al.

November 21, 1988

JOHN M. DINEEN ET AL., APPELLANTS

v.

THE CITY OF CHICAGO ET AL., APPELLEES



SUPREME COURT OF ILLINOIS

531 N.E.2d 347, 125 Ill. 2d 248, 126 Ill. Dec. 52 1988.IL.1685

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Joseph M. Wosik, Judge, presiding.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

This is an action for declaratory and injunctive relief challenging a requirement of the Chicago police department that officers take unpaid leaves of absence upon becoming candidates for public office. In their complaint, the plaintiffs contended that a recently enacted State statute preempted and invalidated the police department's leave-of-absence rule. The circuit court of Cook County agreed with the plaintiffs, striking down the rule and enjoining its enforcement. The appellate court reversed, holding that the State law had no effect on the department's rule. (152 Ill. App. 3d 90.) We allowed the plaintiffs' petition for leave to appeal (107 Ill. 2d R. 315(a)), and we now affirm the judgment of the appellate court.

The present action was brought by Lodge 7 of the Fraternal Order of Police, Lodge 7 president John M. Dineen, and police officers George Gottlieb and George J. Preski; Lodge 7 serves as the exclusive bargaining representative for those Chicago police officers who serve in positions below the rank of sergeant. In existence at the time the action was brought was a collective-bargaining agreement between Lodge 7 and the City, and the city council had adopted the agreement as an ordinance. Section 10.3 of the agreement provided, in part, "Any officer who runs for political office shall take a leave of absence upon the filing of the petition for office pursuant to the Employer's regular leave of absence policy"; leaves of absence are without pay. It came to the attention of the police department that Officers Gottlieb and Preski were candidates for public office, and each of them received a letter dated January 13, 1986, from the deputy superintendent of police regarding the department's leave-of-absence requirement for political candidates. The deputy superintendent advised Officers Gottlieb and Preski to apply for a leave of absence by January 22, 1986, in accordance with the department's rule or face disciplinary action.

Rather than comply with the leave-of-absence rule, the plaintiffs filed the instant complaint for declaratory and injunctive relief on January 22, 1986. Named as defendants in the action were the City of Chicago, its mayor, and the superintendent and deputy superintendent of the police department. In their complaint the plaintiffs contended that the police department's leave-of-absence requirement for police officers running for political office could not stand in light of a recently enacted State statute. The plaintiffs believed that the new law superseded and invalidated such restrictions imposed by home rule units of local government, like the City of Chicago, on the political activities of their employees, and the plaintiffs asked that the police department's rule be declared invalid and that the defendants be enjoined from enforcing it. The plaintiffs prosecuted the action on their own behalf and as representatives of their bargaining unit. At an early stage in the proceedings Officer Preski, having ended his political candidacy, withdrew as a plaintiff.

The new law relied on by the plaintiffs was Public Act 84-1018, which took effect on October 30, 1985, when the General Assembly voted to override the Governor's veto of the legislation. Public Act 84-1018 amended article 10, divisions 1 and 2.1, of the Illinois Municipal Code (see Ill. Rev. Stat. 1985, ch. 24, pars. 10-1-1 through 10-1-48; ch. 24, pars. 10-2.1-1 through 10-2.1-30) and "An Act in relation to fire protection districts" (see Ill. Rev. Stat. 1985, ch. 127 1/2, pars. 21 through 38.6) (the Fire Protection District Act) by adding to them provisions prohibiting public bodies covered under those statutes from restricting the political activities of their employees. Public Act 84-1018 also contained a separate provision preempting inconsistent activity by home rule units of local government. The preemption provision denied to home rule units the power to act inconsistently with the act and declared that "all existing laws and ordinances which are inconsistent with this Act are hereby superseded."

It was the plaintiffs' theory in the circuit court that the preemptive force of Public Act 84 -- 1018 was not limited to municipalities covered under article 10, divisions 1 or 2.1, of the Illinois Municipal Code and to fire protection districts. Rather, the plaintiffs believed that the preemption provision applied to all home rule units in the State and invalidated all restrictions imposed by the home rule units on the political activities of their employees. The trial Judge initially granted the plaintiffs' request for a temporary restraining order barring the defendants from enforcing the police department's leave-of-absence requirement. Later, following a hearing, the trial Judge accepted the plaintiffs' interpretation of the intended scope of the act. Concluding that the preemption provision in the act operated to supersede and invalidate the leave-of-absence requirement, the trial Judge declared the rule invalid and enjoined its enforcement.

The defendants appealed the circuit court's decision. The appellate court reversed, ruling that Public Act 84 -- 1018 did not apply to the City of Chicago and therefore had no effect on the police department's leave-of-absence requirement for police officers running for political office. Under the appellate court's construction, the preemption provision of Public Act 84 -- 1018 affected only municipalities covered under division 1 or division 2.1 of article 10 of the Illinois Municipal Code and fire protection districts. The appellate court found that the City did not operate under any of those provisions -- a Conclusion that the plaintiffs did not at that time dispute -- and the court accordingly held that Public Act 84 -- 1018 did not invalidate the department's leave-of-absence requirement.

Public Act 84-1018 consisted of four sections. Section 1 of the public act text added sections 10-1-27.1 and 10-2.1-5.1 to article 10, divisions 1 and 2.1, respectively, of the Illinois Municipal Code. (Ill. Rev. Stat. 1985, ch. 24, pars. 10-1-27.1, 10-2.1-5.1.) Division 1 supplies a civil service system for those municipalities that choose to adopt its provisions (see Ill. Rev. Stat. 1985, ch. 24, par. 10-1-43); division 2.1 establishes a board of fire and police commissioners for those municipalities that choose to adopt the division or that are required to operate under it (see Ill. Rev. Stat. 1985, ch. 24, par. 10-2.1-1; see also Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 131). Section 2 of the public act text added section 37.16a to the Fire Protection District Act (Ill. Rev. Stat. 1985, ch. 127, par. 37.16a). The Fire Protection District Act permits the creation of fire protection districts in this State and applies to districts organized under its provisions.

The new provisions added by Public Act 84 -- 1018 to the Municipal Code and the Fire Protection District Act are identical in all material respects. Section 10 -- 1 -- 27.1 of the Municipal Code provides:

"No municipality covered under this Division 1 may make or enforce any rule or ordinance which will in any way inhibit or prohibit any employee from exercising his full political rights to engage in political activities, including the right to petition, make speeches, campaign door to door, and to run for public office, so long as the employee does not use his official position to coerce or influence others and does ...


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