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11/14/94 VINCE DAVIS v. CHICAGO POLICE BOARD

November 14, 1994

VINCE DAVIS, SR., PLAINTIFF-APPELLEE,
v.
CHICAGO POLICE BOARD, ALBERT MAULE, CHAIRMAN BRIAN L. CROW, VICTOR P. ARMENDARIZ, SCOTT J. DAVIS, EDNA SELAN EPSTEIN, RUSSEL H. EWERT, NANCY JEFFERSON, MAXINE C. LEFTWICH, DEFENDANTS, AND MATT L. RODRIGUEZ, SUPERINTENDENT OF POLICE, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE THOMAS J. O'BRIEN, JUDGE PRESIDING.

Rehearing Denied January 31, 1995.

Campbell, Buckley, O'connor, Jr.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Defendant superintendent of police Matt L. Rodriguez ("superintendent") appeals an order of the circuit court of Cook County granting summary judgment to plaintiff Vince Davis Sr. in an action for administrative review of the decision of the defendant Chicago Police Board ("Board") to discharge plaintiff as a Chicago police officer.

The record on appeal indicates the following facts. On November 8, 1990, plaintiff filed a complaint for administrative review against the Board. The complaint alleges that plaintiff was appointed a Chicago police officer on December 7, 1987. The complaint alleges that plaintiff was instructed to appear before the Board on July 23, 1990, for a hearing of charges made against him.

Plaintiff's complaint further alleges that the Board decided that plaintiff should be discharged on October 3, 1990. Plaintiff attached a copy of the Board's decision as an exhibit to the complaint. The written decision indicates that the Board found him guilty of possession of cocaine, based on a urine sample tendered on April 20, 1990. The written decision also found plaintiff guilty of failing to notify the Secretary of State that plaintiff had changed his residence regarding both his automobile registration and driver's license. The written decision also found plaintiff guilty of failing to notify his commanding officer that his driver's license was suspended on October 20, 1989.

Plaintiff's complaint alleged that the Board lacked subject matter jurisdiction over plaintiff's case because plaintiff was not given ahearing within the time specified by the Board's rules of procedure ("Police Board Rules"). Plaintiff cited Police Board Rule I(E), which provides in relevant part as follows:

"The initial hearing for each case will be at the regularly scheduled calendar call of the Police Board, which in no event shall occur less than five (5) days nor more than thirty days after the respondent is personally served with the charges."

Plaintiff also claimed that the Board failed to establish an unbroken chain of custody of the evidence upon which its decision was based.

On December 13, 1990, the Board filed a motion to strike and dismiss plaintiff's complaint, alleging that plaintiff failed to name or serve the superintendent of Police as required by the Administrative Review Act ("Act") (Ill. Rev. Stat. 1990, ch. 110, par. 3-101 et seq.). Consequently, the Board contended, plaintiff failed to file a complaint conferring jurisdiction on the circuit court within the 35 day limit imposed by the Administrative Review Act as interpreted by our supreme court in Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, 140 Ill. Dec. 394. On December 14, 1990, plaintiff sought and was granted leave to file an amended complaint naming the superintendent of police as a defendant.

On December 19, 1991, the Board filed a transcript of the July 23, 1990, hearing, which appears to be the extent of the Board's formal answer. On February 5, 1992, plaintiff moved for summary judgment, arguing that the Board lacked subject matter jurisdiction because the record did not affirmatively show that the initial hearing of plaintiff's case occurred within the 30 day limit established by Police Board Rule I(E).

The trial court held a hearing on the motion for summary judgment on July 7, 1992. The transcript of proceedings for the hearing indicates that it was undisputed that the record did not contain evidence showing that the initial hearing was held within the 30 day limit established by Police Board Rule I(E). The transcript also indicated that defendants did not have a transcript of the initial hearing to produce that day in court. Defendants, however, had brought a document that would evidence the date upon which plaintiff was served with the charges. The transcript is unclear whether this document is a document later described by counsel as showing both the date of service and the date of the initial hearing. The trial court did not permit defendants to supplement the record. After hearing argument on the motion, the trial court found that the Board lacked subject matter jurisdiction, granted summary judgment in favor of plaintiff and remanded the matter to the Board with orders to reinstate plaintiff as a police officer.

Defendants moved for reconsideration on August 6, 1992. The trial court held a hearing on the motion on November 5, 1992. Defendants argued that the trial court should remand the case to permit the Board to supplement the record in order to show that the initial hearing was conducted in a timely manner. Defendants also reiterated the argument presented in its motion to dismiss that plaintiff failed to timely file his complaint for administrative ...


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