Donald G. Adams v. Daniel Walker, A/K/A Dan Walker, Individually and as Governor of the State of Illinois

Plaintiff-Appellee, ADAMS, Donald G. Walker, WALKER, In Dan

Daniel a/k/a dividually and as Governor Illinois, Defendant-Appellant.

No. 73-1491. Appeals,

United States Court of

Seventh Circuit.

Heard Dec.

Decided Feb. also, Cir.,

See 488 F.2d 1064. Gen., Atty. Scott, Herbert William J. Ill., Chicago, Gen., Atty. Caplan, Asst.

L. defendant-appellant. 1973, Ill., April 2, Springfield, en- Hollis, for On the restraining court A. district Richard temporary plaintiff-appellee. tered a order plaintiff’s favor and five weeks thereaf- CUMMINGS, PELL and STE Before sponte preliminary ter in- sua issued Judges. VENS, Circuit junction. 1973, May 31, On the district requiring entered an court order defend- Judge. CUMMINGS, Circuit why ant to show cause he should not practicing Plaintiff, lawyer, is the contempt disobeying held in for tem- Liquor of former chairman the Illinois porary restraining prelimi- order and May 1972, On Control Commission. nary following injunction. day, On the Ogilvie appointed former Governor plaintiff appealed defendant of from the issuance February expiring to a injunction. preliminary We reverse. January 1973, plaintiff resign position part-time to refused his I. by representatives requested as Gov- V, Article Section 1970 Illi- February 1, 1973, ernor Walker. On provides: Constitution, nois S.H.A. following Governor Walker sent let- may “The Governor remove plaintiff: to ter competence, neglect duty, or mal- pow- “Pursuant to the constitutional feasance in office officer who ers vested as Governor me may appointed by the Governor.” hereby you, Illinois, remove virtually A identical in the immediately, and for cause effective 1870 State Constitution was construed your position from as a member and Supreme making the Illinois Court as Liquor Chairman the Illinois as “power of removal from office Commission.” power Governor co-extensive with his date, the same Governor Walker On appointment.” People ex Wilcox The telegram: plaintiff following sent Lipe, (1878).1 rel. 90 Ill. you, hereby I diately, remove effective imme- expressly rejected argument court your position mem- required, notice and were and ber as chairman the Illinois Li- stating: quor incompe- Control Commission for “Undoubtedly, the Governor can tence, neglect duty and malfeasance remove for some one causes pursuant in office and other cause to specified; but removal here was statutory pow- the constitutional and incompeten- one of these causes— ers vested me Governor cy. The Governor ascertained the ex- State of Illinois. here, istence of the cause and made February 2, 1973, On Governor Walk- the removal on account it. appointed Elroy Jr., Sandquist, er constitution is silent as to who shall succeed member ascertain the cause of removal or the designated subsequently Commission and simply mode of its ascertainment. gives Lawrence Johnson E. as its chairman. power to the Governor the re- 1973, plaintiff In March filed this action may ap- move officer whom he against seeking Walker, Governor point, rein- incompetence, in case of etc. It statement aas member and follows, chairman of then, that it is with the Gov- sought the Commission. Plaintiff ernor, matter, who is to act in the damages allegedly incurred as determine, himself, a result of whether the cause his dismissal. exists, of removal lights from the best Ramsay 1. This rule was reiterated nor’s decision to remove an officer is not VanMeter, judicial Ill. N.E. generally review. See (1921). Eckfeldt, Colin, Fiedler v. 335 Ill. Braden and The Illinois Constitution : 23-24, (1929) People 166 N.E. Comparative Analysis, An Annotated Deatherage, Ill. 81 N.E.2d 285-287 (1948), state in dicta that the Gover- grounds did not specifying for removal inquiry get, mode can by implication forbid President pursue, being prescribed for him grounds. Instead on other remove adopt method him to rests an “unlimited retained the President toas inquiry ascertainment judgment of removal.” Id. involved which acting Undoubtedly rule federal one, suggest proper as the The by Illinois court Wilcox. cited the responsibility, his official under language by relied on dictate for courts is not it Shurtleff proceed construed the Customs Administrative shall he manner him in what requiring duty, hear- his ac notice and Act performance in the ing being revi if the President announced their not tion removing appraisers was one this State The constitution sion. grounds specified powers at Id. only the statute. declares There is no indication government state shall 23 S.Ct. 535. depart this construction was constitution- distinct that ally compelled. Rather, three divided into prohibited expressly said ments, the Court but powers requirement any of that without a hearing notice exercise by statutory specification belonging either to one properly grounds at 204-205. for removal “fulfill others.” Ill. would As at function.” Id. 23 S.Ct. 535. argument an alterna Plaintiff’s already noted, in the Illinois Su- Wilcox interpretation the Illinois consti tive preme squarely held Court has provision essentially that the tutional contrary construing Illinois Con- Supreme did not mean Illinois Court binding stitution, and its construction Wilcox, That what said. court said it on us. the 1870 think intention [of “We provi- Wilcox construed removal adopt was to the rule which Convention] Constitution, of the sion it but become under the Con had established meaning correspond- controls re stitution of the United States ing provision of the 1970 Constitution. spect appointments by made the Pres identical, nearly The two Sections are * * * ident, namely” quot the rule and it is clear the 1970 Convention ed above. Plaintiff contends that meaning. change intended no meaning true of Wilcox that Illinois report entire committee on Section rule, it will follow the federal whatever read as follows: be, Supreme and that the Illinois “The alteration this sec- Court misunderstood the federal rule be made as subsequently it cause cite tion is carried forward its exist- did not Shurt ing counterpart States, leff deletion of v. United is the clearly language.” superfluous (1903).2 VI Of L.Ed. Proceedings course, Rec. 6th Ill.Const.Conv. the 1870 Convention could - -) (hereafter possibly adopt cited Rec. intended to the rule (Executive 1, p. 51). Proposal fundamentally, Comm. 1903 decision. More the federal rule announced During reading Shurtleff debate at on the first contrary was absence of a Convention, floor of the 1970 the mean statutory provision, constitutional or ing explained of the Section ref was can, by gen “the President virtue of his Supreme erence to earlier Illinois Court appointment eral remove of (Verba decisions. III Rec. 1324-1327 ficer, though appointed by even Transcript). passed tim Section as with the advice and reading consent the Sen at first without was amended 314-315, ate.” 189 U.S. at 23 S.Ct. explanation by Style, the Committee on 536. This Submission, rule held to be so well es Drafting and VI Rec. 432 tablished statutory that a (Style, Proposal 6, p. 18). etc. Comm. 1, supra.

2. See note report employment That Committee’s indicated that “A term of set con- changes recognized some were submitted without tract has been explanation because the reasons were interest state cannot extin- (VI (Style, guish “self-evident” Rec. 415 etc. conforming without to the dictates Proposal 6, p. 1)), procedural process.” Comm. is clear Hostrop changes stylistic. purely College were Board of Junior District No. proposed 1972). Section the Commit 471 F.2d Style adopted tee without fur The issue is whether the and let- statute (Index (V give ther debate implied Rec. 4753 to Ver ter referred to to an rise Transcript)) six-year term, batim and is Section contract for a toor a “le- (Offi gitimate before us. also VII Rec. 2709 See claim of entitlement” to such p. Explanation, cial With Roth, Text term. 408 U.S. at law, 2701. As we understand Illinois II. they do not. plaintiff right Whether has First, provision six-year for terms process hearing to a due he can before light must read in be the constitu dismissed is matter of federal law. provision. tional removal reason It is right He has such a if his dismissal in legislature able to assume that had the fringes liberty, if, matter of six-year intended its terms for law, property state he has a interest property rights to confer vested on the job. Regents Board of Col holder, spe office it would included have leges Roth, language attempting cific to limit 548; Perry L.Ed.2d v. Sinder power Governor’s to remove without no mann, L. tice, hearing right is of review. This plaintiff Ed.2d The rule that particularly true since at all right hearing no to a under state law statute, legislature can, by clear that the persuasive on the he issue whether has a modify provi the constitutional removal interest, property cannot but it be con sion, and the con Illinois courts would long Wilcox was clusive. decided before ambiguous strue an statute so as to Roth and Sindermann and did not de Craig avoid constitutional doubt. v. Pe rights. any question property cide terson, 39 Ill.2d N.E.2d Thus the law of Illinois could conceiva although legisla Second, bly plaintiff property be that has a in ture has enacted an Personnel elaborate right pro terest but no to a to protection giving Code civil service to tect v. Thom Cf. Shirck interest. many (Ill.Rev.Stats. employees ch. state as, 486 F.2d (1971)), seq. spe 63b101 et it has § cifically exempted “members of boards argues Plaintiff he since commissions, positions and and other all six-year appointed term, for by appointed the Governor and with right job property has a hold the for to consent Senate.” § years. six He ch. relies on Ill.Rev.Stats. 63b104c(7). Third, allega no there is provides liquor 98, which com § plaintiff tion that was unfamiliar with appointed periods missioners shall be for power. the Governor’s removal Freedom years, of six from then and a letter gubernatorial removal could not Ogilvie appointing him, Governor sub upon have been a claim ject confirmation, to “for a term Senate daily life, relied in his so that there was expiring February 1, 1978.” Plaintiff’s “legitimate no claim of entitlement” commission makes no reference to a six- U.S., Roth, a full term. See year term, says but instead that he 92 S.Ct. 2701. office, “To have and to the said hold rights finding Fourth, there with all and the trial emoluments court’s pertaining, probably legally until his successor the Illinois Senate would con- plaintiff’s duly qualified to firm appointed shall be successor is not consist- legislative office.” ent with a intent to create right subject to the Gover- nois property people. is retained Before power. we could removal nor’s determine that an individual had pol- been ceded a in a Liquor Fifth, of the Illinois members icy-making position, expect we would have substantial Commission legislature clear statement or the quasi-judicial re quasi-legislative and example, Illinois courts. For Section 98 very they sponsibilities; in a real sense might along have included a sentence sovereignty part of the vested with following lines: “No commissioner shall Ill.Rev.Stats., ch. of the state. See expi- be removed from office before the only provides seq. et The statute except term, finding ration of his on a liquor commissioners. § control three grounds [list after removal] junior college teachers 97. Unlike hearing.” six-year notice and they supervisors to presidents, provisions by plaintiff term relied on work; judi guide their are not such clear statements. amendment, statutory cial review or This does not hold ultimate conclusion render commissioners these three six-year meaningless. legisla- authority liquor in regulatory over the stag- provided six-year ture could have dustry The Commission’s in Illinois. gered subject only powers so include terms duties liq hearings power, whether Governor’s removal there would hold to determine always experienced the law violated members on the uor licensees have Further, suspend licenses of those Commission. limitation to or revoke the six-year 108(1). requires guilty. Commis terms that the found Gover- authority periodically performance rule-making (§ nor 108 review sion has adopt of each determine (2)), sub commissioner and has been used to which replace regulations. reappoint whether Il him. It v. stantive Shoot See necessary Comm., is not Liquor Ill.2d case to deter- 30 this linois exactly short, legislators mine 570, had in N.E.2d 497 In what 198 mind. merely is sufficient conclude that im these commissioners do not they did intend to plement policies create a reason formulated with right. others; by specificity they formu able policy late the of the state. Ill might give individual While a state infringe property rights posi Nor did dismissal such a sensitive any liberty tion, it interest. The use the tal would be unusual it did so. phrase neglect area, “incompetence, Even in ismanic the First Amendment we recognized duty, philosophy political and in office” in ef have malfeasance fecting discharge plaintiff’s plainly or affiliation be relevant satisfy policy-making provi selection the state officials. constitutional Employees liberty Lewis, sion and did Council 34 not take without v. process 561, (7th 1972); F.2d Cir. see General characteri 473 574 law. F.Supp. Walker, zations of behavior in con Gould v. 356 421 must be read (N.D.Ill.1973); Turkey Pickering text. Jeffries Run Consol v. Board v. cf. District, Education, idated 391 F.2d 1 U.S. 88 S.Ct. School 492 (7th 1974), charged plaintiff 1731, para Cir. 20 L.Ed.2d 811. While “highly exception But unethical conduct.” meters to the normal specification given protection public employees of that made only though fully defined, clear not been and even School Board meant plaintiff category (cf. “openly would contradict seem to a small had [ed] given College by Hostrop v. Board Dist. directives an of Junior to students” 515, 1972)), No. F.2d other teacher. We held that this state justify deprive plaintiff the considerations which the ex ment did of lib ception certainly erty. Similarly Opinion 2, p. relevant here. Ul at n. here, given policy-making authority in timate Illi- absolute dis- Governor’s appointees, cou- ma” is clarified examination of cretion to dismiss his quotes pled requirement that he invoke cases cited. The Court state- with the concurring language, Jackson, his state- ment of Justice the constitutional nothing Refugee had if he v. ment means more than Joint Anti-Fascist Committee dismissing said, McGrath, you deprived “I am because “not to be liquor present government employment think I can find better commis- but certainly opportunity sioner.” Proof “nonretention of future for it job, might alone, injury.” him one taken make small at U.S. somewhat attractive to some other less at then S.Ct. 655. The Court cites employees hardly striking limiting would establish down a statute opportunities percentage kind of any employer foreclosure of aliens which ” amounting ‘liberty.’ deprivation (Truax Raich, could hire. U.S. Roth, n. 92 S.Ct. 2708. 131), 36 S.Ct. two L.Ed. peti- cases in which had denied states reading passage A careful bar, tioners to the admission Sehware Roth under which attempt- plaintiff Examiners, Board of Bar 353 U.S. plead liberty deprivation ed to 796; L.Ed.2d Willner v. contemplated makes clear that the Court Fitness, Committee on Character one quite of two different situations. 373 U.S. 10 L.Ed.2d 83 S.Ct. opinion suggests two liber- distinct paragraph This also concludes ty might interests which be involved with a reference Cafeteria Workers a dismissal situation. McElroy, Local 473 First, Court said that notice precluded jobs had not been at person’s are essential “where a government any- other installation good name, integri reputation, honor, or economy. private where in the ty (408 is at stake” U.S. at at 81 S.Ct. 1743. examples mentioned overlap There is some these between charges dishonesty Court are categories, because foreclosure of other immorality. The cases cited involve opportunities accompanied is often charges (Wisconsin of alcoholism v. Con charges. serious v. Thus in Suarez stantineau, 433, 507, 400 91 U.S. S.Ct. Weaver, (7th 1973), 484 F.2d 678 Cir. 515); disloyalty (Wieman 27 L.Ed.2d charged where a doctor activi- was Updegraff, 344 73 S.Ct. U.S. gave ties which rise to an inference 216; 97 Hobby, L.Ed. Peters v. violating laws, he was and narcotics 1129); U.S. S.Ct. 99 L.Ed. this information li- to the state sent (Joint Refugee Communism Anti-Facist censing authorities, lib- elements both McGrath, Committee erty stake, interests were we at and 817) S.Ct. 95 L.Ed. and subversive unnecessary found it inde- to treat them (United activities Lovett, States v. pendently. Thomas, in But Shirck U.S. 90 L.Ed. (7th Lipp 1973), 486 F.2d 691 Cir. The Court concludes with a reference to Education, v. Board of 470 F.2d Cafeteria McElroy, Workers Local 473 v. analyzed 1972), inter- we these 6 L.Ed.2d concluding separately ests before 1230, where requiring it was held that infringed. neither was badge giv surrender of an identification ing gun factory access to a Naval did We are satisfied that imply charge not disloyalty. a has failed to state a claim-under either In the paragraph, next of the Roth liberty branch the Court said An test. hearing might a required “incompetence, unelaborated if the imposed neglect stigma state duty on Roth “a or oth of malfeasance disability er magni fice” is of foreclosed freedom a different order of his advantage charges to take employment dishonesty, than tude immor other opportunities.” ality, Communism, disloyalty, 92 S. subversive U.S. at “stig- activities, Ct. at 2707. The or narcotics viola- use of the alcoholism word sig- especially Judge difference cate preliminary injunction, tions. Poos’ light interpretation since, Judge nificant points correctly Pell Supreme out, has which the Illinois Court the rationale of that decision is not placed removal on those words holding today, consistent with our can- requires explain change of the Illinois Constitution. dor that I nothing complaint my even re- And motely suggests views. legal future barrier to a Quite frankly, preliminary when the employment analogous to denial ad- injunction question us, was first before bar, disqualification mission to from fully I did appreciate impact not government employment, the alien all Supreme Illinois Court decisions Raich, su- limitation statute in Truax v. construing scope of the Governor’s pra, sending or adverse substantial question removal on the whether licensing professional formation to a Liquor a member of the Control Com- agency. allege complaint does not property mission has a in his interest lead to fear this dismissal job. incorrectly I therefore assumed Lynch, In In re disbarment. 238 S.W.2d legislative provision a six- (Ky.1951), attorney where year gave property Adams such his disbarred for misconduct as Alcoholic premise, On interest. he could Beverage Administrator, the disbarment process. have been without removed showing 250-page on a was based record question whether Adams had Here, public embezzlement of funds. position interest his specifically alleged that there was * ** Liquor Commis- member of specification “charges acts, is, course, purely question of sion grounds” supporting the Gov- conduct appraise It for us to Illinois law. is not magic ernor’s invocation of the words.3 between of the State’s choice wisdom appeal on This case is before us giving fixed ten- such a Commissioner preliminary injunction, and no motion making ure, hand, em- the one on appears certified dismiss ployment the unfettered terminable complaint However, record. since the Governor, other. discretion fails to state a on which relief can claim identify job simply our granted, injunction should made, to re- has choice that Illinois have been entered.4 Judge Cum- spect As that decision. and remanded with direc- Reversed demonstrated, mings matter May 18, 1973, prelim- tions to vacate the removed could be law Illinois Adams inary injunction. recite fit to saw whenever Governor neglect “incompetence, magic words, STEVENS, Judge (concur- Circuit Ad- office.” duty, in or malfeasance ring). deprived an in- therefore not ams was meaning of panel property the Since was member terest within I of the a 27, 1973, which, Amendment.1 va- the Fourteenth declined to June. contemporaneous press L.Ed.2d 84 S.Ct. 3. The Governor’s U.S. figures public a required requires to legally that the statement that substantially hearing name-clearing cur eight liquor to Western revoke licenses of open ques Finally, the Concessions, fining leave also we Inc. it tailed. instead for liberty whether, plaintiff’s had been making political campaign if tion contributions infringed, the relief clearly entitled to he would be under York Times not libeloiis New hearing. name-clearing pending granted Sullivan, a below Co. v. Daniel, F.2d Garcia v. L.Ed.2d 686. f. C 292-293 holding complaint 4. Because of our the that six-year statutory term upon of a fails a relief to state claim which can impression certainly that the granted, unnecessary creates it is decide other to in his interest by has a raised It Commissioner issues defendant this Court. however, dispelled, position. unnecessary is The illusion is also to decide whether might analogy. by Sullivan, The President federal a rationale of New York Times v. questions procedure question whether Governor about kind “liberty” required deprived that if an interest Adams of his would be obviously, meaning liberty Quite impaired. of the Fourteenth were within presents require a issue. does a different the Due Process Clause Amendment hearing Cummings’ analysis hearing, agree Judge purpose I with testing applied brief add two the standards to be issue but would be defined.3 the Governor’s action must comments. gubernato- respect With to this kind of First, as “mal a word such whether action, rial form almost stigma kind of feasance” creates I can envision either would in cases like Court concerned meaningless nothing op- more than an largely — upon may depend Constantineau2 portunity to Gov- test the firmness is used. the word in which the context If, prior else would ernor’s decision—or finding example, of “malfea a by volve an excessive the feder- invasion gradu disqualified school a law sance” making policy judiciary al into the practice, or re to admission ate from but- the State.4 These considerations prison in of a in the forfeiture sulted my Judge Cum- conviction that tress liberty good credits, inter time mate’s legally, mings’ analysis sound is impaired. if the term But est would be gives appropriate consideration but also important in which in a is context used respect sovereign to owes one which uncompli figures routinely political use system. to another in federal our language mentary about one another —a Judge sum, agree in completely First Amendment I in which In context legal Cummings’ cogent en analysis interest of the a State’s terests override forcing presented, of defamation —it concur which and I its own law issues conclude opinion. anomalous most in his would be comment the robust (dissenting). PELL, Judge Circuit deprived interest which of an has been protected Fourteenth at once is majority opinion it as I read Constitution the Federal Amendment lawyer, reaches the conclusion that prohib Amendment the First but which rights possessing the same constitutional protecting. its the State summarily citizens,1 re- as other who is policy Second, ap- decision completion fact that a of his moved before the sovereign is pointed govern- the Governor office from a particularly difficult position part raises involved mental “vested with appoint, opportunity and consent of with the advice with an Commissioner a, Attorney General, (cid:127)Senate, serve for explain position an to inform four-year ap- years. period important my public four Such issue. is about however, pointment, limit impression, however, would not First unqualified respect Amendment, Fourteenth, per- the Executive’s at will. keeping his cabinet a member of remove forms office of the channels effect, Illinois Con- public open. understand the now debate communication statutes, Li- a member stitution comparable quor Adapting Douglas Commission the words of Mr. Justice and, cabinet, al- Spevack Klein, of the Executive’s member specific term, though appointed nev- (1967) L.Ed.2d : “Lawyers the Governor. removable at will excepted ertheless are not from the words “property” greater deprive person He therefore has no shall [‘nor Attorney job in his than does the liberty, property, terest of ... with- process the States. ; General of United due im- out of and we can law’] ply exception. Like the school teacher 433, Constantineau, 2. v. 400 U.S. Wisconsin Education, v. 350 Slochower Board of 507, 91 27 L.Ed.2d 515. S.Ct. U.S. 76 S.Ct. 100 L.Ed. Thomas, v. F.2d See Shirck policeman Garrity Jersey, the v. New (7th opinion). 1971) (dissenting Cir. U.S. 17 L.Ed.2d [385 87 S.Ct. lawyers 562], enjoy first-class citizen- “name-clearing possible a sort is of ship.” hearing” provide [Footnote omitted.] desirable to both would state,” stay pending panel sovereignty appeal, is the and who a a this of of. the state on chief executive of court the basis the case as then told presented unanimously stay is, alia,, denied the inter because that his removal less in office is somehow because Governor Walker had not made malfeasance showing stigmatized requisite resident of than is an adult substantial inability probable Wisconsin, appeal. Hartford, to on whose success his Adams pub- (7th Walker, liquor2 v. a F.2d 1064 Cir. hold her is the agree 1973). the rea- I cannot with We stated there: lic notice.

soning majority opinion or result of the appellant un “While was entitled respectfully dissent. and therefore der Article 10 of the Illinois Con § appellee noted that initial matter it is stitution remove the for in

As an neglect competence, duty, is for decision what we have before us or mal properly office, court been whether district feasance it has not granted preliminary injunction. It is demonstrated to in the a us thus far reviewing pre- appellee a established that in case of well who held his office liminary injunction, appellate pursuant Chap. court for a six year opinion 43, 98, Ill.Rev.Stat., for the does not substitute its that he was guar process whether the trial court’s decision as to entitled to due law as granted. injunction should been anteed the Fourteenth Amendment exer- The of the court’s to the part a review trial United States Constitution as is discretion, not a retrial of Re cise of its the removal. Board of gents Corrick, Roth, case. United States (1936). Fiat 80 L.Ed. 33 L.Ed. 548 does not meet the standard and thus reviewing the en- function “[0]ur nothing far has been demonstrated injunction try preliminary is regarding pretext us even circum- limited one .... process. conclusory language of pre- under motions stances which discharge telegram merely repeat injunction liminary are made ing wording consti Illinois for the heard illustrate the reasons tutional with the added am scope The district narrow judge of review. biguous certainly ‘and cause’ other typically presented process require not sufficient for due facts, ‘requiring a abbreviated set of Id., ments.” 488 F.2d at 1065. balancing probabilities delicate Notwithstanding foregoing, we hear- of ing at the final ultimate success expressing any opinion disclaimed consequences immedi- with the appeal. ultimate I turn injury merits irreparable could ate presented then to those merits on full pre- possibly flow from the denial briefing argument dis- and oral and as liminary relief’ .... Absent opinion. majority cussed discretion, normal clear abuse of committing wisely bal- course this unnecessary spend much I deem it judge ancing process district People ex rel. attention on Wilcox v. will not be Scherr disturbed.” (1878), progeny Lipe, 90 and its Ill. Volpe, F.2d complete plaintiff’s bar to action majority opinion appears to since the holding majority opinion, concede that whether complaint right process he a matter of law fails to a due before upon can be can of federal state a claim which relief dismissed a matter appeal granted, does not treat law and he does have such a infringed liberty, point of discretion. his view abuse dismissal Yet, present if, law, before when the case was as a matter of state has citing job, the defendant’s motion court on interest in the (1971). Constantineau, 433, 507, v. 515

2. Wisconsin S. 91 L.Ed.2d U. S.Ct. Regents Colleges magic v. “incompe- Board of State that once the words Roth, 564, 2701, neglect tence, duty L. 92 S.Ct. or malfeasance (1972), Perry Ed. v. Sinder office” are uttered that ends the matter. mann, flimsy saying 33 L. I bootstrap 408 U.S. 92 S.Ct. find this a for legislature Ed.2d 570 that the the state of Illi- provide specific nois cannot term of a my opinion, In such a sub- there was thereby creating office, property a in- infringement liberty here stantial terest, any appointed official who is vestige process that we without a of due department. to office the executive prong need no further than look grant preliminary majority opinion present affirm the As the in the junction. Nevertheless, notes, appellant jus- relies, because it case appears tifiably my opinion, me did have that Adams so in Shurtleff property position, States, interest I will United 189 U.S. aspect (1903), advert also. 47 L.Ed. 828 in which the Supreme Court enunciated what the ma- only significant obstacle to the jority opinion apparently deems appellee’s claim of lies only a federal rule: cases, in the Wilcox line of appellant is, course, in effect contends establishes “There no doubt of the gubernatorial velleity power Congress virtual for remov- to create such an ing appointed provided officials. some- read office as is for in above thing approval other than constitutional section. Under the that the might of whim as a basis for removal in these officer be removed from office neglect cases. inefficiency, time for duty, office, or all, malfeasance in First of we we treat the Illinois opinion are sought establishing that if power cases removal is as causes, to made for power removal those or co-éxtensive with the them, either of appointment, appointment power the officer is entitled hearing. Reagan to notice and a under the statute at will but for States, United specified period years. power 425, 21 of six A 46 L.Ed. In removal at will would not be co-exten- speaking power appoint removal, sive year causes of with the Mr. for a six Chief Justice Fuller said but would seem to sub- case: be a stantially greater power. On the other inquiry is, therefore, ‘The whether hand, controlling if the been statute had there were pre- causes of removal appointment in terms of an without scribed law .March or at specifying office, the term of the remov- time of the were, the removal. If there appear equate al at will would apply then the rule would power ap- be co-extensive with the specified where causes removal are pointment. statute, constitution or as also term, Secondly, recognized the Wilcox court where the of office fixed “ [undoubtedly, period, can Governor notice and essen- only remove for some one of the causes tial. If not, appoint- there were specified ing the state [in pleasure constitution].” could remove at present case, the Governor not for such cause as it deemed suffi- threw the whole constitutional book at cient.’ appellee good but for measure tossed “Various state courts have also held unspecified in an “other cause.” To the that, where officer be re extent the “other cause” was causes, moved for certain enti course, discharge, it, basis for the hearing. tled to notice and a See Dul goes beyond the Wilcox authorization Willson, lam v. 53 Mich. for removal. Am.Rep. Page 128; N.W. read, apparently Wilcox can be (8 B.Mon.) 672; Ky. Hardin majority concluding opinion does, Appeal, 597; Willard’s ex R.I. Com. Liquor Slifer, 25 Pa. “97. Illinois Control Com- rel. Bowman Atty. 680; rel. mission 1. There is here- State ex created.] 64 Am.Dec. § Liquor Hawkins, 44 St. created an Illinois Ohio Gen. v. McBride, consisting (3) 228; Biggs 17 Or. Commission of three 5 N.E. 115; appointed by L.R.A. members to be the Gov- P. Police, 142 of consent Boston Bd. of ernor with advice and Ham v. the Senate, (2) at more of 540.” the than two Mass. 7 N.E. (emphasis 313-14, add of same at 536 whom shall the members [by party. ed). political act As amended approved] June 1951. L. Laws appli- pronged has a several Shurtleff 1951, p. 263. cability present The statute case. to the — — Appointment Va- Terms “98. hearing. require notice there did not Immediately, or soon cancies]. clearly § read to have been That seems date be after the effective process of where one matter of due [1934], of this Act the Goevmor grounds specified for removal the appoint (3) shall three members Recognition afforded the utilized. commission, one of whom shall be the designated Reagan portion quoted from the ‘Chairman’, to hold one hearing essentiality of notice and period (2) years, office of two for a involved, period term is where a fixed period four one to hold office for a process again presumably due because of pe- (4) years, one to hold for a office requirements. Finally, makes Shurtleff. expi- (6) years, and at the riod of six rationale that clear that the Wilcox it com- ration the term such power Illinois Governor to re- reap- the Governor shall missioner the Presb is the as that of move same point appoint a said commissioner dent States is a miscon- of the United for a successor of said commissioner period power ception latter execu- years. (6) The Gover- six Shurtleff, held tive. Court shall to fill vacancies hearing nor have process while due notice commissioner.” office of required constitu- where one of the were grounds Ill.Rev.Stats. ch. statutory for removal tional or utilized, power was the President’s statutory hold office words “to grounds specified, and not limited to the (6) years” mean- period for a of six required so notice and were not ingless appointee removed can be if an purport long did not as the President which, course, situation will, is the premise upon one of the uttering the removal hearing, if, sans notice grounds. case, specified present In the apparently im- incantatory, squarely did rest the Governor Walker precatory, required words is all specified upon removal grounds all three of of- of a term to immolate the balance unspecified “oth- as well as fice. any differ- er cause.” I am unaware of analysis proper- Turning in this context between federal due ence majority opinion, can ty I issue applicable process un- and that which is legislature scarcely conceive der Amendment. the Fourteenth plain needed to buttress would have meaning six-year that a speaking recognize that I been statutory con- No rule of addressing was meant. process of due while terms requires state- the additional rights struction myself to matter of what we mean “and furthermore ment opinion appears majority and that meaning just when the requirements we said” recognize process opinion majority is clear. proper- words from the existence of would flow legislature wording suggests ty rights, but the two I do believe might clearer make even have used to pertinent separated. sec- can be they they had said. meant what fol- read as tions of the Illinois statutes lows; litigation area in this The vast extent negative the arises from fact that constitu factor nonaetion the the involved hearing requirement lapse tional of notice and in automatic confirmation in time, was not in statutes but had to be read by I fail to see how this reference to course, any event, judge’s finding the courts. Of the trial dis- throws majority opinion Wilcox the as the reads cernible illumination on intention of the additionally suggested legislature enacting words would the have and §§ efficacy present chapter had no than the more provision. constitutional fact re Finally, majority opinion the indicates legislature purported mains that the importance that because of the of the period years, create a fixed six position leg- it would be unusual which case “notice and are es rights property islature to accord there- sential,” Shurtleff, supra. argument policy in. This seems to be a legislature which the Also, chose not to follow. is no contention in lit- there this determining igation poli- If we position any type were involved in that is cy, not, which we job, very properly are we would want civil and it service bipartisan note that the Commission a would not be is included in ramifica- one, legisla- dealing it well tions of be that the Code, the Personnel preferred ture in employees its wisdom that does with that career selected necessarily Commissioners not tenured on the be the basis of merit and fit- ness.3 handmaidens of the incumbent We are not Governor. concerned here with subjective sum, agree legisla- thoughts ap- what cannot pellee may ture property did not intend been at time to create a of the right. acceptance appointment of the but rather what law the Governor’s Whether or not a of removal was. involved, I can see no basis whatsoever present on the facts of Further, significance for char- I find in the acterizing peremptory judge’s finding of the trial removal that the Illinois appellee being other than an probably Senate unconsti- plain- would confirm protected liberty tutional invasion of un- tiff’s this, successor. As I read all that recognized der Roth, the standard was meant was that because of the time supra, person’s good name, that where a element under the Illinois Constitution a reputation, honor, integrity is at nomination sent to the Senate automati- government stake doing cally because of what the is deemed to have been confirmed him, upon opportunity notice and an lapse specified number of to days. heard are essential. 408 U.S. at Even the Senate affirmative 573, 92 S.Ct. at 2701. vote had successor, confirmed a this at implied most would have that the mem- necessary would not seem deter- body thought bers of position charges mine incompe- whether the was vacant. In the tency neglect absence some duty stig- are such showing that the Senators were aware mas liberty as to invoke protec- Roth’s of the purported tion; circumstances of the of malfeasance in of- removal, we do not even have the 1973 fice is sufficient. This term not rendering advisory Senate interpreta- an judicial fleshing. lacked A few exam- tion of passed by ples statute a different should suffice to demonstrate that Assembly. General With the addition of op- characterization is indeed one of obviously suggest This is not intended to positions Thus, tion is removable at will. for exam persons holding exempted ple, the Governor as an elected officer coverage from the Personnel exempt Code are not from the Personnel Code. The possessed Many of merit or fitness. categories same is true of some fifteen exempted positions positions operation for definite terms involved in the questionable which renders governmental processes. conclusion state Ill.Rev.Stats. being exempt the Personnel Code ch. 63b104e. person holding posi- indicates sought strengthen This, perhaps it needs have probrium. their own particularly housekeeping practices. Thus, in to- saying, true in recent credibility years fading day’s the American Bar Association and climate legal many profession adopted seems often local bar associations have which professional responsibility. codes of A. itself. find Disciplinary 1-102(A)(6) B.A. provides Rule doing of “Malfeasance consists lawyer shall wrongful wholly which is an act unlawful; “[e]ngage that ad- other conduct act involves versely practice on reflects his to fitness Mal- authority do. no to officer has law.” charged in office cannot feasance except positive statu- If the contention made of a should here be for breach appellee tory duty performance practicing of a was law or for the not improper serving discretionary or he at the was a member act with an time as Schneider, Liquor Commission, corrupt People aside motive.” many lawyers from the that Colo. 173 fact as a P.2d part professional (1956). of their careers engaged public service, in office it seems evil has to “Malfeasance reference reflecting adversely clear that conduct doing illegal deed, an conduct or practice on to fitness is not confined to ought do, the one not to of that which practice per se. performance of an act an officer Thus, Wilson, in the case of In re wholly capacity ille official that is his Supreme (Mo.1965), S.W.2d gal wrongful, he has which Missouri, observing Court of after right perform he has con to or which right power discipline the torney an at- to rel. Har to do.” ex tracted not State noted, court, is inherent Coleman, 132, 115 die v. 155 So. 918: (1934). Fla. 119 power not limited to those “This a an with done act] “[Malfeasance he has stances of misconduct wherein corrupt corrupt purpose, from or pro- employed, acted, or in a been has knowledge by motive, of- or awith capacity; but, on con- fessional act time his official ficer at the may trary, be exercised law, or . is a violation outside the where his misconduct carelessly negligently or or done so scope professional relations of his recklessly want of as to an utter show person to him to unfit shows be an concern, would care or of such as ” practice law.” , . to a . be tantamount fraud . Wood, S.W. Commonwealth ap- case, quoted court In the same Ky. (1903). provingly from an Missouri earlier respondent disci- had been doing, the which “Malfeasance means evil charges wholly plined relat- doing of misconduct of an act which is county ing wrongful official to as a his duties and unlawful.” good just proof Langley, 309-310, 214 the effect that 323 P.2d indispensable req- character is an moral Or. 445 bar, the con- for admission uisite to the generally de- office “Malfeasance possession equally es- tinued thereof is unjust wrongful fined doing be the or sential. of some official act which following passage afford perform, would accom- doer has no person been to a who has panied motive.” small comfort evil intent or some from office based Wallace, of removal A.2d State v. charge part malfea- (Del.1963). at least sance office: today’s Earlier, reference was made per- provides, lawyer a conviction credibility. “While Bar asso- climate grounds disbar- haps, clearest situation ciations not unmindful of this sary attorney’s many society conduct be ment, an actions for imposed as would render him liable to criminal sanctions such attorney's prosecution criminal in order to dis- indicate the unfitness conduct, although practice. him. bar If dealings, professional outside his in deter- makes no “It difference unworthy him to be of confi- shows practice mining for continued fitness dence, may be disbarred.” involving turpitude, moral an act dishonesty, corruption com- clear me on the basis It seems serving attorney. foregoing concerning mitted while authorities legal impact questioned act of malfeasance That at time serving today’s empha- member of the office combined bar commissioner, liquor propriety part of trustee, sheriff, on the sis on ethical notary judge, broker, lawyers discipli- possibility detective in a proceedings per- nary no defense to a toward a coroner’s office is dis- directed enough proceeding. public It is not barment son who has been removed attorney charge practice; to in in on a of malfeasance be honest office vague good every in character idle threat but must exhibit that office is no capacity activity potentiality. and in It form of is a real and distinct acting.” subjected may Note, may Adams, in to he be well which be that L.Q. (foot- (1958) disciplinary proceedings, Cornell 491-92 could success- omitted). fully against charges However, the constitution which is not stat- sion status the state exists. ordinance, or ute, regulation, custom, repeat, opinion majority and to the does disagree usage. not that if a or liberty an invasion of exists the federal contentions, to the first of As these courts will examine to if there see monetary did while seek dam- Adams process. been I am to think inclined ages, only here concerned we that the Illinois courts would also. phase litigation. injunctive the against not a suit This was state aspect type One other case against an officer Illinois but individual reference was made my opinion appli- In that state. majority opinion but which should Judge correctly cable law was stated ignored stigmatic is whether Holloway in Tenth Circuit: made in such a manner as to injunc- “Insofar as claims public impact upon have a the one declaratory relief are con- tive and charged. present In the we do not principles cerned, the are well estab- have confidential communication the settled lished. ‘It is doctrine parties known to the to this law- against individu- this court that a suit complaint alleges suit. The purpose preventing als for the them general public was informed of the enforcing of a state from officers charges through press conferences and an unconstitutional enactment to news releases. Attached the com- rights injury plaintiff, of the of the plaint example is one of the of the result against the state within suit alleged publicity. an article meaning Smyth of that amendment.’ Chicago February 1973, 2, Tribune of 418, 422, Ames, v. 18 169 U.S. S.Ct. reporting Adams, removal of 819; 466, 518, 42 Ex L.Ed. see also following appeared: “Asked whether 155-156, parte Young, 209 U.S. incompetence, Adams was removed for 714; 441, 52 L.Ed. v. Larson neglect, malfeasance, press Walker’s Foreign Corporation, & 337 Domestic secretary, Kay, replied: Norton ‘All 69 L.Ed. S.Ct. 93 U.S. ” three.’ 1628; McCoy v. Louisiana State 1018 “usage.” Education, F.2d 915 See Adickes S. H.

Board Kress & City Co., Cir.); Board School 26 L. S.Ct. Charlottesville, Allen, F. Ed.2d 213 Va. (4th Cir.). 2d And 62-63 herein, forth For the reasons set plaintiffs a violation of Fed establish would affirm the action district rights entitle eral constitutional granting preliminary court civil under the Federal ment to relief junction. rights acts, Wyoming Constitution not immunize the defendants the Federal override constitutional Supremacy

principles in view of the Therefore, if a violation of Clause. rights is estab Federal constitutional immunity by plaintiffs, un

lished Amendment and the der the Eleventh Wyoming Thomas TREBOTICH Jeanne not bar Constitution would Trebotich, Appellants, injunctive declaratory relief against the other than the defendants Wyoming. McCoy COMMISSIONER OF INTERNAL REV State of v. Louisi ENUE, Appellee. Education, supra, ana State Board of Dorsey and sion, v. State Athletic Commis No. 72-1714. F.Supp. (E.D.La.), aff’d Appeals, United States Court S.Ct. L.Ed.2d U.S. Ninth Circuit. 1028. And Federal would Court Feb. grant jurisdiction relief, such though money even the claim for dam

ages immunity, is barred as we Hopkins

discuss below. See v. Clem Agricultural College,

son 649, Wil 55 L.Ed. 890.” Eaton,

liams v. 443 F.2d 428-429 express opinion as to whether Ad- damages. monetary

ams can recover applicability As to the as § long ago Holmes, Mr. Justice conceding argu

while that a forceful might “statute,

ment made ordi

nance, regulation, usage” custom, or did deprivation rights

not extend ato un constitution,

der color of a state never disposing

theless assumed

that the statute did so extend. Giles v.

Harris, 48 L. )5 (1903 Further, Ed. 909 in the

present case, argument a forceful based supra, Wilcox, could be made

deprivation founded on “custom” any event, treatment, in more required recent action’ under Fourteenth Supreme Court has stated: “In cases under Price, Amendment.” United States consistently ‘under color’ of 787, 794, law has 16 L.Ed. thing been treated as the same ‘state 2d n. 7 notes defend based on though is it malfeasance accusation even liquor The text reference to a commis strengthened by removal. here actual Lynch, sioner was on In re based 238 S. simple The answer to this is he should (Ky.1951). case, In that W.2d exposed possibility in the to this not be rejected practice necessity court aof process of a due determination absence stating: nexus charge. validity of the argued Lynch’s lastly is “It say Nor is it answer to that the was with his conduct not connected complaint allege fear of does disbar- professional duties, and did not charge ment. The seriousness of the plead guilty criminal to a offense by in office a malfeasance as established confessing fine for misfeasance a legion eases, a few of which have office, which should be taken facts herein, been cited is such that the exact fixing pun- into consideration impact stigma potential of the on a law- necessary that the ishment. It is not yer’s scarcely professional career needs attorney connect- misconduct of an be spelling Adams, couse, did not out. bring professional ed acts to with his even have consolation afforded about his torney ‘At- disbarment. Am.Jur. Lynch (In Lynch, supra) of knowl- re Law’, p. 426. at As § edge going specificity of acts to make Com., said was Underwood stigmatic up impor- More cloud.4 Ky.Law Rep. a certif- S.W. having discipli- to do with tantly, those good prerequi- icate of character is nary here matters would not site for to the Bar and the admission knowledge. benefit of that good possession char- continuous Douglas in The words of Mr. Justice continue as acter is essential Constantineau, supra, are Underwood Wisconsin member opinion thereof. particularly apt. appellee not neces- “This was further' states it is however, citing majority was not cited in the as an opinion, re dissent pertinent, distinguish Lynch, apparently identical factual situation. intends it however, cited, although point case, present on the both cases which from the namely, lawyer may commissioners, liquor dis- be because involve procedures ciplinary arising (cid:127)Lynch’s out conduct in office” known “misfeasance practice nonspecific egregious other than the direct law. than more be Lynch, of Adams. “malfeasance office” a chance to [himself. afforded defend shows that The record Governor Walk- purported have been the victim an of- to name He] er had a successor to caprice. Only position question ficial’s proceedings leading when the whole and that pinning appointment arguably purported to the of an could unsavory person label on a aired can are under become effective Illinois law auto- oppressive prevented.” matically lapse by results time without legislative necessity 91 S.Ct. at 510. confirmation. salary position sup- amply Loss of necessary I do not conceive it to be ports irreparable do harm. claim magnitude determine order or the granting prelimi- not find that stigmatic impact relative of the injunction, nary and that are is what we of malfeasance in contrasted office as here, to concerned with abuse being dishonest, alcoholic, immoral, discretion. disloyal, Communistic, et cetera. Each by points appel- are Other raised “unsavory label” own brand carries its disposition lant. Because reached stigma and, cited above cases by majority opinion points these were indicate, the mark made “malfea- however, I find merit, not treated. in office” not inconsiderable. sance contentions. the other practical do I Nor think as a matter sting principal additional contentions is lessened the Wilcox cases, basically line is barred the Eleventh does not suit stigmatic and that 42 hold these Amendment U.S.C. 1983 terms are not merely to the but not available because courts will not dis- gubernatorial pursuant nor taken turb examine the deci- Governor’s action was.

Case Details

Case Name: Donald G. Adams v. Daniel Walker, A/K/A Dan Walker, Individually and as Governor of the State of Illinois

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Feb 25, 1974

Citation: 492 F.2d 1003

Docket Number: 73-1491

Court Abbreviation: 7th Cir.