Richard A. NAPOLITANO, Plaintiff, v. Hon. Daniel P. WARD, Justice of the Illinois Supreme Court; the Honorables Joseph Burke and Samuel O. Smith, Justices of the Appellate Court of Illinois; and the Honorables Robert Jerome Dunne and Seely P. Forbes, Judges of the Circuit Court of Illinois; individually and as Ex Official Members of the Illinois Courts Commission. Hon. William J. Scott, Attorney General of Illinois, individually and as designated counsel for the Illinois Courts Commission; the Hon. Justin Taft, Clerk of the Illinois Supreme Court, individually and as Clerk of the Illinois Courts Commission; and the Hon. Roy O. Gulley, Administrator of the Illinois Courts, individually and as permanent secretary of the Illinois Courts Commission. Hon. Richard A. Hollis, individually and as State‘s Attorney of Sangamon County, Illinois, Defendants.
No. 70 C 1597
United States District Court, N. D. Illinois.
July 31, 1970
Frank J. McGarr, First Asst. Atty. Gen., State of Ill., for defendants.
Before PELL, Circuit Judge, and PERRY and DECKER, District Judges.
MEMORANDUM OPINION AND ORDER
PELL, Circuit Judge.
The present action is based upon a claimed violation of the plaintiff Napolitano‘s civil rights and is brought pursuant to
Briefly, the facts are as follows:
Napolitano, who was a circuit judge of Cook County, Illinois, was the subject of disciplinary proceedings before the Illinois Courts Commission pursuant to the provisions of
As an initial matter it is necessary that we determine whether the continuance of a three-judge court is required.
Napolitano contends that his rights under the
It is our opinion that if Napolitano‘s first contention is without merit, i.e., that it does not raise a substantial constitutional question, then the reason for the convening of a threе-judge court no longer exists and the factual issues presented by the second contention should be determined by a single judge, Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1941); Metcalf v. Swank, 293 F.Supp. 268 (N.D.Ill. 1968); Weisberg v. Powell, 417 F.2d 388 (7th Cir.1969); Sarisohn v. Appellate Div., Second Dept., S.Ct. of St. of N. Y., D.C., 265 F.Supp. 455 (1967).
To determine whether there is any merit to Napolitano‘s first contention, we must look at the challenged provisons.
“* * * subject to rules of procedure to be established by the Supreme Court and after notice and hearing, any judge may be retired for disability or suspended without pay or removed for cause by a commission composed of one judge of the Supreme Court selected by that court, two judges of the Appellate Court selected by that court, and two circuit judges
selected by the Supreme Court. Such commission shall be convened by the Chief Justice upon order of the Supreme Court or at the request of the Senatе.”
Illinois Supreme Court Rule 51 has five subsections dealing with the Organization of the Commission, Secretary, Complaint and Answer, Hearing, and Conduct of the Proceedings. The pertinent part of the last subsection reads as follows:
“(e) Conduct of the Proceedings. In the exercise of its jurisdiction the commission is vested with full judicial power and authority. * * * The failure of the respondent to testify in his own behalf * * * may be considered, unless it appears that such failure was due to circumstances beyond his control * * *. The commission may order the respondent removed * * * or suspended without pay for a fixed period or until further order of the commission. The concurrence of three commissioners shall be necessary to a decision * * *”
The Illinois Constitutional provision is similar to that of the state of New York and the matters here presented were presented for determination to a federal district judge in that state in Sarisohn v. Appellate Div., Second Dept., S.Ct. of St. of N. Y., 265 F.Supp. 455 (1967). The judge in Sarisohn resolved the question as follows:
“There is a distinction between the question whether the phrase ‘for cause’ is unconstitutionally vаgue and what the Appellate Division may decide constituted such ‘cause‘. The issue in the latter case as well as the issues of disqualification and bias do not involve the enforcement of an allegedly unconstitutional statutory provision. They involve only conduct of state officials under color of the statute. Plaintiff seeks, as to such action, to restrain not the enforcement of a statute but to restrain only certain judicial action thereunder, and of course this is not a subject for a three-judge court. Phillips v. United States, 1941, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800.” (at 459)
We approve of and adopt the reasoning in Sarisohn noting that the phrase “for cause” is one which has had common usage in a variety of statutes thrоughout the United States. In our opinion, the words connote the necessity for a hearing; but Napolitano was accorded a hearing. The words also mean that there must be a legal cause and not merеly a cause which the Governmental authority in the exercise of unlimited discretion may deem sufficient. It does not mean removal by arbitrary or capricious action, but there must be some cause affecting and concerning the ability and fitness of the official to perform the duty imposed on him. The cause must be one in which the law and sound public policy will recognize as a cause for his no longer occuрying the office. See also: Friedman v. State, 24 N.Y.2d 528, 301 N.Y.S.2d 484, 249 N.E.2d 369, 376 (1969).
The words “for cause” are, in our opinion, sufficiently definite and are not overly broad and they therefore do not raise a question of constitutionality of the Illinоis Constitutional provision and the rule thereunder. The other matters raised by Napolitano pertain to the application of the Illinois constitutional provison and rule thereunder and a determination оf whether their application to him was “cause“, which in our opinion does not contemplate, nor require, a three-judge decision.
We are not unmindful that an argument may be advanced that once the three-judge panel has been convened it should continue to handle all issues involved in the case before it. However, as we read the statute,
For the reasons hereinbefore indicated, we are therefore terminating thе three-judge panel and hereby remand the matter to the Honorable Joseph Sam Perry, distict judge before whom this matter was originally filed, for determination of the remaining issues raised by Napolitano‘s comрlaint.
DECKER, District Judge (dissenting in part):
While I completely agree with that part of the foregoing opinion which holds
The central issues raised in this complaint are whether the “for cause” removal standard for judges in the Illinois Constitution violates the due process clause and whether plaintiff‘s exercise of his privilege against self-incrimination, and his subsequent testimony given under a grant of immunity, may constitute such “cause” for removal without offending the
But even assuming that a three judge court is not required to determine all these issues, there is nothing in
Moreover, whether appeal from a final judgment on the merits in this case lies in the Court of Appeals or the Supreme Court depends not on whether the decision was made by a single judge or by three judges, but on whether it was “required” to be decided by a three judge court.