*1 MILLER, BOARD OF THE CITY Plaintiff-Appellee, DAVID THE POLICE al., Defendants-Appellants.
OF CHICAGO et Division) (1st First District No. May upon rehearing
Opinion 10, 1976. Supplemental opinion filed denial of filed 21, 1976.
June SIMON, dissenting. J., Counsel, Quinlan, Corporation Chicago (Daniel
William R. Pascale and Hughes, Corporation Counsel, counsel), appellants. Marsile Assistant J. Fornelli, Ltd., Fins, Harry Winkler & Chicago (Charles R. Winkler G. counsel), appellee.
Mr. BURKE delivered the of the court: JUSTICE Miller, Lieutenant, David charged violating Department. prohibits any rules Rule 2 conduct impedes Department’s goals brings Department; discredit prohibits requires rule 24 all making reports; false City Chicago. officers to reside boundaries of the After a hearing, City found that David Miller guilty of discharged these rules ordered Police Department. Miller then filed an action for administrative review *2 110, under the ch. (Ill. pars. Administrative Review Act Rev. Stat. 264-279) in circuit the County. court of Cook The court reversed findings and decision and of Police Board. the other (1) defendants appeal, contending requirement that: the residential for Chicago Miller; (2) binding officers is a trial court Lieutenant body not substitute its an judgment expert for that of administrative Board; (3) such reversing Police erred in court Board’s findings decision because Board’s were not manifest weight of the evidence.
At hearing by Board, a hearing conducted for the Police five officer testified; Miller, witnesses Paul namely, Sergeant Lieutenant David Bendis, investigated who Department, Sergeant for Police Miller, Edward a Chicago apartment Police who shared an Miller, Lieutenant David It apartment building. and two tenants of that was stipulated that the charges relating requirement to the residential police officers would deal of whether Lieutenant Miller residing Chicago during October and November of
Sergeant Paul Bendis Chicago Department of the testified that he was assigned commanding investigate complaint a residing Lieutenant Miller was Chicago. first Bendis obtained copy of Miller’s 1973 Residence-Auto Information Card filed with which showed that 1969 David Miller owned a Illinois, Chevrolet Camaro and at lived 2025 North Harlem in wife, Miller, while his Margaret owned a Oldsmobile convertible Park, and lived at then Washington 311 West in Villa Illinois. Bendis D. obtained a Illinois Company statement from Northern Gas that a gas Miller was subscriber at his wife’s Park address the months of October and of 1973. The name of the November 1, 1973, changed subscriber was to an M. Miller. on or about December David first Margaret. Miller’s wife’s name is
Bendis Lieutenant Miller’s testified he established surveillance of movements Chicago to and from the addresses. Bendis’ 16, 17, testimony 24 and November concerned surveillance on October On neither and 27. 17 and he saw Lieutenant Chicago Park parked Miller nor his red or Villa Camaro either leaving address. On Miller the Villa November he observed shortly arriving Park at the 15th District p.m. address after 11 morning On of November station short time thereafter. returning at 9:15a.m. Miller to Villa Park address. He he observed morning. also observed Miller at the address on that On Park he did not see Miller at either the Villa address but did see his Camaro address. parked red the Villa Park
Bendis 2025 North Harlem testified he visited the address Miller, Sergeant discovered that Lieutenant Miller and a Edward L. who Miller, is not a shared apartment relative of Lieutenant there. The clothes, apartment uniforms, family photographs contained civilian furniture belonging telephone to Lieutenant Miller. The there was registered in Sergeant both David and Edward Millers’names. Bendis Moore, apartment building. interviewed a Robert Moore resident of identified picture Lieutenant at the Miller’s stated lived address.
Sergeant L. Edward Millertestified that he and Lieutenant David Miller jointly apartment rented at 2025North for three Harlem years, paying each rent. one-half the not related to bedroom, testified, Miller. The has one apartment, Sergeant Miller living slept room and a small the bedroom Sergeant kitchenette. while Lieutenant Miller in the bed. In October slept living room on sofa Sergeant of 1973 at their Lieutenant Miller on four occasions saw Sergeant in October. Chicago apartment. out of town *3 November, In both and Miller were Sergeant when shift, times at working the seven ten day he saw lieutenant about apartment. for 20 police he had Lieutenant David Miller testified that been years. had three years and a lieutenant for 4/2 He was married and college in with daughters and the third lived daughters. Two of Park, Washington, His wife and at 311 West Villa Illinois. her mother years and were at the Villa Park address 16 or daughters lived in and of 1973. Lieutenant residing there October November his separated that is not from wife. testified he divorced and during that October Lieutenant Miller testified Illinois, Avenue, Chicago, for three at where 2025North Harlem he lived dining L. Miller and that Sergeant rent Edward years he shared the nights at his or five a week spent average of four period same he his Villa address. a week at Park nights Chicago address two or working Park the Villa address spent that he his off at testified He Park, in he property Villa good in condition. premises keep He said he beneficiary. testified, by a trust and his wife is owned also listed property Park the bills on the Villa paid 90 percent as subscriber property tax that real estate payer as the wife, he 1973. His and November of bills for water testified, turn his family.” was the of the He would over “financier her, included paychecks the finances which she would handle apartment his giving money pay Chicago his half of the rent for phone and the electric and bills there. testified, he
During October and November of Lieutenant Miller his registered and his at wife each owned a car which were both which address/ Information Card signed He the Residence-Auto had listed Park one car at the address and one at the Villa address. Oldsmobile, address, testified that the listed at the Villa Park was at the time. majority address the vast of the He stated registered voter at his address and submitted voter card, registration license, license, hunting Federal income tax driver’s return for him by Department, various notices sent to Harlem, listing Chicago, his address as 2025 North Illinois. Moore, Harlem, P.
Robert a tenant at 2025 that he had North testified been a in building years tenant for 22 and that he knew Lieutenant as a building. resident of that He stated that he saw Lieutenant Miller twice a week most and some times two or three times Esker, Josephine month. building, also a tenant of that testified that she in building years lived for 12 and had seen Lieutenant never Miller. only policeman in Sergeant uniform she had seen there was Edward Miller. She stated she about 10 building knew of the tenants worked 11 a.m. p.m. to 9:30 reviewing
After the evidence the Police Board found Lieutenant rules; Miller guilty three specified 2 by conduct impeding Department’s goals bringing discredit Department; by making report a false he resided Park, 2025 North residing Harlem when he fact was Illinois; and rule 24 failing to reside within the boundaries of Chicago. discharged. The Board ordered him
The Police Board that its contends decision the manifest evidence, weight its substituting of the and that the trial court erred in judgment responds for that of the Board. Lieutenant Miller Board’s decision is against the manifest of the evidence.
We are
that a
requirement
of the
of rule 24
Chicago synonymous
requirement
“reside”
“reside” and “residence” have
“residence”
the terms
*4
Garrison,
(See
Ill.
generally
synonymous.
been held to be
Garrison v.
107
311,
9;
597.)
App.
App.
2d
246
In
283 Ill.
Quinn,
N.E.2d
re Estate of
has a
person
permanent
terms “reside” and
denote that a
“residence”
Barrett,
Ill.
(Routt
in a
v.
particular place
abode or home
660;
Com.,
374, 118 N.E.2d
v.
2 Ill. 2d
Hughes
N.E.2d
Illinois Public Aid
14;
Garrison,
While Lieutenant Miller testified Park off at spent at Villa address and address than address, these testimony other witnesses put who had Miller under Sergeant statements in doubt. Bendis his car at the Villa observing Lieutenant Miller or surveillance testified to him his nights observing Park address four of seven while out Bendis Sergeant On address on one of the seven occasions. occasions address, Park he traveled to Lieutenant Miller at the Villa observed had never seen work. One at Miller’s address tenant there, tenant saw three both lived while another years a month. two or times Lieutenant Miller there twice a week or seven to ten Miller there Sergeant Edward Miller saw Lieutenant day had the when both times month shift. (1975), Com. 19Pa. Cmwlth Philadelphia Civil McCarthy
In Service ours, similar facts to 339 A.2d case with recent dealt with the Pennsylvania Commonwealth Court *5 whether there was substantial support Philadelphia evidence to Civil Service finding Commission’s department that a fire a city officer violated ordinance requiring city employees to maintain a “bona fide residence” city of Philadelphia. department The fire officer sold home Philadelphia children, and family, moved his a wife and nine to a New Jersey suburb where the children attended evenly split school. The officer his time off living between at the Jersey New address and in Philadelphia stayed on allegedly at the fire station or at his home where he mother’s The marital duty days, registered received mail and was to vote. Jersey the New relationship with his wife continued after the move to family. suburb and support the officer was the sole placing held that special emphasis family relationship, on the marital and provided the evidence substantial Service support Civil was in the New finding Commission’s that the officer’sbona fide residence Jersey Philadelphia. suburb and (Ill.
Section 11 of the Act Rev. Stat. Administrative Review 110, par. 274) ch. an findings states that the and conclusions of agency administrative facie questions prima of fact “shall be held to be true and correct.” This limit statutory language has been construed to reviewing findings against courts to determine whether the agency were Com., weight manifest v. Ill. evidence. (Davern Civil Service Board, 2d 269 N.E.2d v. Ill. 2d Basketfield 371.) N.E.2d This court has that reviewing held courts should accord agencies administrative in construing applying substantial discretion Commissioners, (Scheffki their rules. Ill. Fire & Police App. 3d 371.) opinion that the Police We are of the finding Board’s by residing that Lieutenant Miller violated rule 24 limits of the manifest evidence. This view findings judgment also includes the as to rules and 13. argues by stipulation hearing restricted consideration to where he in October and November of resided urges January that the Board’s decision handed down on
1975, that residing Washington, he violated rule 24 “in that 311W. Park, Illinois,” (emphasis added) Villa fact that he nullity is a because the “is” residing in Villa Park at decision does not the time of the Board’s establish that he “was” of 1973. residing there October November We are of the that the use of the word “is” the decision merely July charges inadvertence. We note that the formal filed on 1974, also used Park. residing Washington, the word “is” at 311 W. officer, During hearing Lieutenant Miller’s hearing before the Board’s attorney pointed charge out the word “is” in the and stated charges understood that the only related to October hearing agreed Department’s 1973.Both the Police counsel and only to October and November of 1973and charges period hearing proceeded. stipulation There was also 1973.It was which the related was October and November of only considering the parties clear to and the Police Board that Furthermore, was no October and November of 1973. presented We any which would relate to events after November of 1973. therefore, opinion, are of that the Board’s decision encompassed only and the use of November of “is” word in the decision was inadvertent. judgment cause the circuit court reversed remanded to judgment restoring findings
with directions to enter a and decision *6 City Chicago. the Police of of
Judgment reversed and cause remanded with directions. O’CONNOR, J., concurs. SIMON,
Mr. dissenting: JUSTICE I find respectfully wording I dissent because of too Department discharge rule on which Lieutenant Miller’s was based police a who vague adequately indefinite to deal with homes, easy maintains and within two one of which commuting Department distance. The rules of conduct of Police provided: preferred against the time Lieutenant Miller Rule Failure within the “Prohibited acts include: to reside City boundaries Chicago.” transportation, it is not
In view shorter and better workweeks as people, police public uncommon officers as well other including for other. employees, commuting within distance of each two homes 23, 27, 52N.E.2d Supreme (1943), in v. Carman 385Ill. Court in abiding place; as a pointed “reside” “defined out the word live, dwell, abide, sojurn, “It is synonym one who and that resides” seriously stay disputed I do it can lodge.” or not see how Harlem at his Avenue respondent dwelling, staying lodging was apartment Chicago. in in reside Department requirement an officer
The Police than the residence adopted purposes entirely different for dealt majority. Those cases by in the determinations cases relied on public aid right to receive rights, registration voting, for inheritance cases None of those jurisdiction may in one seek a divorce. and the which himself frequently absent may regularly person that a hold any in in the from his in State of domicile or residence Illinois or Ill. (1969), App. State. in 2d example, For Garrison v. Garrison fall, stayed every a woman who went to Florida throughout in the winter a home her husband owned and whose she children went school in Kane regarded Florida as a resident of County, Illinois, purpose seeking pointed The court for divorce. that, may variety meanings out “The word ‘residence’ have a it Ill. depending upon (107 App. in is used.” 2d context which 314.) Quinn In In 283 Ill. (1936), App. re Estate widow was held be “residing receiving in this state” a widow’s purpose for the award though even her deceased husband 8-year marriage entire to her she had in any lived with him Ireland she had time in life never at her been physically present States. The facts of the cases the United majority relies have no relevance to the reason the Police Department requires officers to applying reside language of dealing those cases with domicile and to the residence Department rule before us in supply guidelines this case does not dealing reality dwelling that some police may officers maintain or home in and a dwelling commuting second or home distance of Chicago.
The rationale It rule is threefold: to have police support city by which are employed presence, with their taxes, their money, their and their as city. license fees well as vote It also to have available the event of an emergency. Finally, knowledge acquires of his own neighborhood living in it prove solving useful crimes. Notwithstanding purpose, be, its it may the rule as it salutary read *7 it, the time Miller Lieutenant was did charged prevent not police officer maintaining city a second home outside the his spending offdays and nights several or weeks a month there. Even the of a presence police Chicago during him in officer’swife with the he is in spend the does that guarantee they well not much their in city. difficulty of time a second home the rule outside with the that it recognize is failed pattern living. employee to this A is public to entitled have the rules of so that applicable conduct to defined are clear on their face without need to case law. For that the refer to reason, I in notify police precise believe that unless to redrafted clearly manner which explains elements the Board will what look in to determining police where a officer resides under what city, circumstances an home the the rule may use second incapable is fair enforcement. in a
The fact much his time home a short spent the Lieutenant Miller trust his was by distance outside owned land of which wife beneficiary in in period she the 2-month which resided question paid of his that the daughters expenses one he that in home does not establish that Lieutenant Miller did not reside Chicago within the the rule. In the absence of requirements of view of “reside,” in I any explanation the rule the do not believe the meaning Board has by demonstrated the manifest of the evidence that Lieutenant Miller did reside at his Harlem Avenue address even though that may dwelling purpose maintained for the complying rule. If it clear that controlling, appears with the intention in in Lieutenant Miller intended to reside so would be compliance with the rule. opinion his majority by referring to the residence of wife and in
daughter that strongest the Lieutenant Miller’s permanent has the that not must requiring residence effect of in an in the officer reside but his wife and children must also live city. I reside majority opinion, way As read the there is no officer could his wife and children also meaning the of the rule unless if If that is the Chicago, except separated lived in he was his from wife. rule, than be the intention of the the Police Board rather this court should authority clearly stating Apparently to draft a rule that. the Police Board itself regarded inadequate preferred its rule as because after inserting the defendant rule was amended the word I “actually” before word affirm the circuit court with “reside.” would it its rule set recommendation to the Police Board that amend forth circumstances, in a specific clear if which a any, manner the under police city. occupy own and a second home outside OF REHEARING OPINION UPON DENIAL
SUPPLEMENTAL court: delivered BURKE Mr. JUSTICE petititon in his issues has raised three Appellee David (1) this original appeal court: not raised in rehearing which were that wrong rule David applied that the court rules; (2) rule had violated the Police void; (3) and therefore unconstitutionally vague for the raised vagueness was regarding rule’s question constitutional right entitling thereby petitioner appellate first time on that issue. Supreme Court appeal Illinois rehearing petition Miller’s first contention Lieutenant offense took when the effect this in applying court erred case when subsequent rule which was effect rather than Board, it hearing before During this court. appeal before had violated whether stipulated
903 the to reside within requiring police rule officers limited to corporate boundaries of the was the months 1973 During November of October November of must all police rule 24 was in which stated that officers effect City Chicago.” the corporate “reside boundaries of 1973, 13, According to rule 24 on December appellee was revoked to published requiring police when the Police Board rule “actually Chicago.” of the city reside within the boundaries opinion In upholding our the Police Board’s termination of Lieutenant employment officer, Miller’s as a that the Board’s we held that had supported by he violated rule 24 was the evidence. Lieutenant argues Miller now effect applied that we should have rule which was in appeal when the at the pending was not rule 24 which was effect time violation.
We first note that the first time that appellee point raised the rule 25 and petition not rule 24 be was in his Rule 25 rehearing. came into effect its according appellee before the Police Board held hearing. argued that before Police Board the evidence did not support finding that he had violated rule 24. No contention was made petitioner that rule 25 should be that applied. Board found Lieutenant Miller violated rule 24 no 25. In and made mention of rule appellee’s action only for administrative in the circuit review references were made to rule no there was contention that applied. On appeal, directed his arguments to rule 24 and not 25, citing to rule the language of rule 24 and not that of 25. Where a party Birnbaum, fails to raise an at the trial (City Chicago issue level v. 250, Amerman, 49 Ill. 2d N.E.2d v. 50 Ill. 2d 353) 110A, N.E.2d appeal (Ill. pars. his brief on Stat. ch. Rev. 341(e)(7) 341(f)), any right he waives to have a court reviewing consider the issue. point
We also out that the cases Miller cites in support proposition reviewing during court must apply law effect appeal not the in effect trial In distinguishable. law are v. Thorpe 268, 21 L. 474, 89 Housing Authority, 393U.S. Ed. 2d S. Ct. question tenant housing whether a should be evicted from federal tenant at the case was occupying appeal time the before 274, 109 In Supreme Whitney, Court. Dolan 413 Ill. N.E.2d Community Lincoln School 404 v. High Community District No. Elkhart High School District No. 414 Ill. N.E.2d question was whether to divide two school districts. Those cases all dealt actions which had yet place taken and the was whether changes the law should affect the final outcome events which were take the future. The instant case deals with violations of disciplinary alleged rule which before new rule are have occurred took effect. are of applying changes We the laws *9 actions which to take in the place analogous applying are future not to changes past the laws to offenses which took before the law was changed. us to did exist at appellee asking apply rule which not This analogous imposing the time violations occurred. would be I, Const., it post (U.S. §8.) him. art. We do find ex rule facto necessary to into the this go merits of contention. ruge if has a this issue Finally, appellee right we observe that even agreed would same. The applied, and we rule outcome be the is that requires difference between the rules rule requires “actually “reside” within reside” while supports within We find that Chicago. requiring
Lieutenant Miller violated the rule limits rule 24 or rule 25 to reside whether applied. petition rehearing
Lieutenant Miller next in his contends for vague. This issue was raised police residency unconstitutionally rule Board, circuit court this and the lieutenant’s before argument this was not attorney his oral before court stated Department’s rule. He waived raising constitutionality of the Police Birnbaum, Chicago v. 49 Ill. 2d any right urge (City the issue. Amerman, 353.) He Ill. 2d 279 N.E.2d first time issue for the “when asserts the constitutional arose Miller, If vague Lt. rule.” by applying court decided appellate it, then it was also unconstitutionally vague 24 was when we charged unconstitutionally vague when the Police it. The violating it it guilty and when found done although raise at that he could have appellee did not the issue time it or this court. did he raise before circuit court so nor petition rehearing denied. Petition denied.
O’CONNOR, J., concurs. SIMON, dissenting:
Mr. JUSTICE and those rehearing petition forth in the I the reasons set dissent. For rehearing. I allow a my dissenting would opinion, stated