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Cannici v. The Village of Melrose Park

Court of Appeals of Illinois, First District, Third Division

June 28, 2019

JOHN CANNICI, Plaintiff-Appellant,
THE VILLAGE OF MELROSE PARK, THE BOARD OF FIRE AND POLICE COMMISSIONERS OF MELROSE PARK, MICHAL CAPUTO, Commissioner; MARK RAUZI, Commissioner; PASQUALE ESPOSITO, Commissioner; RICHARD BELTRAME, Individually and in His Official Capacity as Melrose Park Fire Chief; RONALD SERPICO, Individually and in His Official Capacity as Mayor of Melrose Park, Defendants The Village of Melrose Park, The Board of FireandPolice Commissioners of Melrose Park, Michal Caputo, Mark Rauzi, Pasquale Esposito, and Richard Beltrame, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County. No. 16 CH 12700 Honorable Neil H. Cohen, Judge, presiding.

          JUSTICE COBBS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Ellis concurred in the judgment and opinion.


          COBBS JUSTICE.

         ¶ 1 Plaintiff, John Cannici, appeals the circuit court order affirming the decision of the Board of Fire and Police Commissioners of Melrose Park (Board) to terminate his employment as a firefighter for violation of the residency requirement set forth by local ordinance No. 2.52.020. Melrose Park Municipal Code § 2.52.020 (adopted 1997). He further challenges the circuit court's failure to provide any remedy despite finding that there was a due process violation during the administrative proceedings. Cannici requests that this court vacate the Board's decision, order his reinstatement with back pay, and award him attorney fees.

         ¶ 2 I. BACKGROUND

         ¶ 3 Richard Beltrame, the fire chief of the Village of Melrose Park, filed an official statement of charges against Cannici on June 28, 2016.Chief Beltrame alleged that Cannici did not maintain a bona fide residence in Melrose Park because it was not his principal place of residence and abode. Chief Beltrame submitted the matter to the Board to set a hearing date and take appropriate actions in accordance with the Board's rules and regulations and the Illinois Municipal Code (see 65 ILCS 5/10-2.1-17 (West 2016). Cannici was charged with violating the residency ordinance, which required that

"[e]ach and every officer and employee of the village, unless exempted by this chapter, must be a resident of the village as that term has been defined herein. *** Each and every employee must maintain resident status during his or her period of employment." Melrose Park Municipal Code § 2.52.020 (adopted 1997).

         The Village ordinance defines residence as "a dwelling place used as a home, located within the corporate boundaries of the village, and includes single-family dwellings, rental apartments and property, mobilehomes, condominiums, and dwelling units in multifamily, multidwelling or multipurpose buildings." Melrose Park Municipal Code § 2.52.010 (adopted 1997). Correspondingly, a resident is defined as "a natural person who occupies a residence, as hereinbefore defined, as his or her principal place of residence and abode." Melrose Park Municipal Code § 2.52.010 (adopted 1997). Under the rules and regulations of the Board, Cannici's failure to abide by the residency ordinance[1] was cause for termination.

         ¶ 4 A. Board Proceedings

         ¶ 5 Cannici was the only witness called at the hearing before the Board, and the evidence adduced was as follows. Cannici was raised in Melrose Park, left the village for college, and returned after completing his bachelor's degree. In 2000, around the same time he began his employment with the Village, he purchased and moved into a duplex at 1722 Broadway Avenue, Melrose Park. In 2002, he married, and his wife also moved into the duplex. A year later, Cannici purchased a two-story single family home at 906 Norwood Street, Melrose Park, and sold the duplex in anticipation of growing his family. His son was born in 2004, followed by his daughter in 2006. The Cannici family lived together at the Norwood house until 2008.

         ¶ 6 In 2008, Cannici purchased a second house in Orland Park. According to Cannici, the new property was an investment property. Nonetheless, his wife and two children moved into the new house and had no intention of returning to the Norwood house. From 2008 through the spring of 2013, Cannici testified that he lived in the Norwood house alone and would spend the weekends with his family in Orland Park. He and his wife had no marital problems and were not living separately in anticipation of seeking a divorce.

         ¶ 7 Cannici's wife had many ties to the Orland Park community. Her parents and sister lived there, she was registered to vote there, she had long worked in the area, and in 2007 she became the owner of an Orland Park hair salon. Cannici and his wife agreed that they would live separately. The decision came after the couple worried about the children starting school and their work schedules interfering with school pick-ups and after-school care. They believed that moving the children to Orland Park, so that the children's maternal grandparents and aunt could offer more assistance, was the best solution.[2] Thus, the children moved to Orland Park with their mother and enrolled in school as "in-district" students.

         ¶ 8 Two years into this living arrangement, Cannici hired a realtor and listed the Norwood house for sale. For the next three years, Cannici demonstrated a persistent effort to sell the Norwood house. He renewed his contract with the realtor twice and periodically lowered the sales price. Throughout this time, he continued to live in the Norwood house alone. He explained that, as the only one using the house in Melrose Park, he planned to sell the house in order to buy a smaller place. In May 2013, Cannici abandoned his efforts to sell the house after the third sales contract expired, entered a leasing agreement with John and Angellica Cichon, and moved into the Orland Park house with his family.

         ¶ 9 The "Basic Rental Agreement or Residential Lease" signed on May 26, 2013, designated the Cichons as temporary residents with the lease running from June 1, 2013 through May 31, 2014. Rent payments of $1400 each month were due to Cannici at his Orland Park house by the fifteenth of each month, and the lease would automatically renew on a month-to-month basis after May 31, 2014. Either party could submit written notice 30 days prior to the desired end date in order to terminate the month-to-month contract. The lease further provided that the Cichons would be responsible for payment of utilities and property maintenance needs such as plumbing, mowing, or snow removal. According to the inventory clause, Cannici left a washer, dryer, some wicker furniture, and a coffee table on the premises that the Cichons were authorized to use. Additionally, a handwritten clause provided, "Temporary Resident shall have use of laundry room only in the basement of premises." Cannici explained that he wanted to be clear that the Cichons were only renting the main floors. The basement remained his space, as he left a number of personal items there and only granted limited permission to enter the basement for using the laundry machines. Cannici also explained that he reserved a right of entry into the Norwood house in his arrangement with the Cichons. The lease, however, only provided for entry with notice in regards to showing the premises to prospective renters, buyers, and lenders or for inspections and repairs. Entry without notice was only provided for by the lease in cases of emergency or suspected abandonment.

         ¶ 10 Although he physically lived at the Orland Park house throughout the term of the rental lease, Cannici continued to use the Norwood house as his mailing address for a number of items, and he would call whenever he intended to drop by to pick up his mail. In support of his claim of maintaining his residency, Cannici submitted over 600 pages of documents, which included his bills, credit card and investment statements, voter registration, retirement benefits, etc., which continuously listed the Norwood house as the mailing address between 2013 and 2016.

         ¶ 11 During the hearing, Cannici testified regarding an e-mail between himself and his realtor, from November 30, 2010, in which the realtor asked Cannici if he knew anyone who would be interested in a one-bedroom apartment, available at the beginning of 2011. Cannici responded the next day, "I will take it if we could sell before then." The realtor also asked if Cannici wanted to rent out the Norwood house, to which Cannici offered no response. Cannici explained in his testimony that he had received several inquiries as to whether he was willing to rent out the house; however, he did not initially plan to do so.

         ¶ 12 He changed his mind in 2013 after he was approached by a neighbor who was a relative of the Cichons. His neighbor explained that he knew of Cannici's situation and thought Cannici could offer some assistance to the Cichons, who had recently suffered a personal tragedy. Cannici explained that, at first, he did not agree to rent to the Cichons because he did not want to "mess with that." Cannici's neighbor approached him a couple more times, and Cannici eventually agreed. Cannici noted that these requests came after the Rahm Emanuel case (Maksym v. Board of Election Commissioners, 242 Ill.2d 303 (2011)) had come out, which he "read up on." He figured that, if "[he] could help this family out and maintain [his] residence" without it being a problem under the Emanuel case, then he would do it. The Cichons moved out shortly before Cannici's interview with the Village's investigators in June 2016. Cannici stated that his move back to the Norwood house was only coincidental to the investigation into his resident status.

         ¶ 13 The Board determined that cause existed for Cannici's termination where he admitted that he did not live at the Norwood house for this period of three years. The Board ruled that "[t]he residency ordinance is not satisfied by virtue of ownership of the property" where "ownership of the property is not required by the ordinance at all." The Board recognized that Cannici had since moved back into the Norwood house[3] after the investigation was opened but found that continuous residency was required and the three-year gap during his employment for the Village constituted a violation of the ordinance. The Board further commented that it rejected the credibility of Cannici's testimony that he terminated the lease with the Cichons coincidentally after the investigation began, and it found that Cannici's actions exhibited an intent to try and emulate the facts of the Maksym to improperly circumvent the Village ordinance.

         ¶ 14 B. Administrative Review

         ¶ 15 Cannici filed a verified complaint for administrative review challenging the Board's decision to terminate him based on the ordinance violation. Cannici argued that his residency had been clearly established and could only be lost if the Village demonstrated his physical absence and intent to abandon. He asserted that the evidence overwhelmingly demonstrated that he had no intention of abandoning his Melrose Park residency. Thus, the Board's decision should be reversed because it was contrary to law, it was an abuse of discretion, it was against the manifest weight of the evidence, and the Board did not comply with the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2016)).

         ¶ 16 Counts II and III asserted that defendants violated both 42 U.S.C. § 1983 and the fourteenth amendment of the United States Constitution where they acted with malice or recklessly to disregard Cannici's due process and equal protection rights. Specifically, Cannici complained of a due process violation where there were ex parte communications between the Board's counsel and the prosecuting attorney. Cannici also complained that the Board disregarded the law, ignored undisputed testimony, and misrepresented the evidence in its decision which further denied him due process. Cannici asserted that defendants also denied him equal protection of the law where they engaged in a pattern of selective investigation and enforcement of the residency ordinance.

         ¶ 17 The allegations of ex parte contacts included when Chief Beltrame was invited to appear before the Board without notice to Cannici to discuss scheduling. In addition to this meeting, Cannici asserts that ex parte discussions took place in e-mails sent from the Board's counsel to the prosecuting attorney. In response to the perceived injustice, Cannici's counsel filed a motion for "reappointment of counsel to the Board and disqualification of prosecutor" in combination with a motion to dismiss the statement of charges. This motion was denied by the Board, and no hearing transcript or written opinion regarding the motion is in the record.

         ¶ 18 1. Federal Claims in the District Court

         ¶ 19 Counts II and III were removed to federal court and reviewed by the Eastern Division of the Northern District Court of Illinois. Cannici v. Village of Melrose Park, 262 F.Supp.3d 591 (N.D. Ill. 2017). Defendants filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 12(b)(6)), which was granted by the district court. The district court found that, although Cannici had a protected interest in his employment, Cannici did not allege any deficiency in the postdeprivation remedies available to him. The district court explained that under a § 1983 due process claim (42 U.S.C. § 1983 (2012)), an aggrieved party can challenge the established state procedure or the actions of a state employee in implementing the procedure. Cannici's claim entailed challenging the latter, in that defendants failed to implement or abide by the established state procedure in a fair manner. The district court stated that" 'the state's obligation under the Due Process Clause [in such cases] is to provide sufficient remedies after its occurrence, rather than to prevent it from happening.'" Cannici, 262 F.Supp.3d at 594 (quoting Michalowicz v. Village of Bedford Park, 528 F.3d 530, 535 (7th Cir. 2008)). Such requirement left Cannici with the option of invoking the state's postdeprivation remedy, review under the Administrative Review Law ...

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