2019 IL App (1st) 181422
Ill. App. Ct.2019Background
- Plaintiff John Cannici, a Melrose Park firefighter, was charged and terminated for violating the village residency ordinance after he leased his Melrose Park house (Norwood) and lived with his family in a house he owned in Orland Park from 2013–2016.
- Melrose Park ordinance required employees to "occupy" a dwelling in the village as their "principal place of residence and abode" and to "maintain resident status" during employment; ownership was not required.
- Cannici produced extensive documentary evidence (mailing address on bills, voter registration, taxes) and testified he intended to return and that the Norwood lease to tenants was temporary; he later moved back during the investigation and ultimately sold the Norwood house.
- The Board found Cannici had not continuously occupied the Norwood house for three years and terminated him; it also questioned his credibility and found he attempted to mimic facts from Maksym to evade the ordinance.
- Cannici filed administrative review and federal claims (42 U.S.C. § 1983, due process and equal protection). Federal courts dismissed the federal claims and remanded the administrative count; circuit court affirmed the Board, found a procedural due process issue (ex parte communications) but declined to grant relief because Cannici showed no prejudice; plaintiff sought reinstatement and fees on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Interpretation and enforcement of Melrose Park residency ordinance | Cannici: once residency established, loss requires proof of intent to abandon; Maksym test (physical presence + intent) controls | Village: ordinance plainly requires actual occupation/physical presence as principal residence during employment; continuous residency required | Court: ordinance language controls; "occupy" and "principal place of residence" require living in Melrose Park throughout employment; Board decision affirmed |
| Whether Maksym intent test applies | Cannici: Maksym governs and supports his retained residency despite temporary leasing | Defendants: Maksym interprets a different statutory scheme and is inapplicable where local ordinance defines residency plainly | Court: Maksym not controlling here; even under Maksym facts show abandonment (family moved, new house, lease, intent inconsistent) |
| Procedural due process — ex parte communications and remedy | Cannici: ex parte contacts by Board counsel deprived him of due process and require remedy (reinstatement/back pay) | Defendants: finding of a procedural error does not automatically require reversal; plaintiff must show prejudice unless structural error; administrative review cures deprivation | Court: any ex parte communications did not establish prejudice to Cannici or biased adjudication; rehearing or other remedy not warranted; Board’s factual finding stands |
| Attorney fees under § 1988 and Illinois Civil Rights Act | Cannici: seeks fees for civil rights/due process claims | Defendants: plaintiff not prevailing on federal/state constitutional claims | Court: federal claims were dismissed; Cannici is not prevailing party and is not entitled to fees; fee requests denied |
Key Cases Cited
- Maksym v. Board of Election Commissioners, 242 Ill. 2d 303 (Ill. 2011) (defines residency for municipal office as requiring physical presence plus intent to remain; presumption of continued residency until abandonment shown)
- DiFoggio v. Retirement Board of the County Employees Annuity & Benefit Fund, 156 Ill. 2d 377 (Ill. 1993) (administrative review standard: facts reviewed for manifest weight, law de novo)
- Exelon Corp. v. Department of Revenue, 234 Ill. 2d 266 (Ill. 2009) (statutory construction is a question of law reviewed de novo)
- Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (U.S. 2008) (limits certain class-of-one equal protection claims against government employment decisions)
- Cannici v. Village of Melrose Park, 885 F.3d 476 (7th Cir. 2018) (Seventh Circuit affirmed dismissal of plaintiff’s § 1983 claims and noted Illinois administrative review provides adequate postdeprivation remedies)
- Waste Management of Illinois, Inc. v. Pollution Control Board, 175 Ill. App. 3d 1023 (Ill. App. Ct. 1988) (presumption of administrative impartiality; reversal requires showing of prejudice)