Robert HAMEETMAN, Plaintiff-Appellant, Cross-Appellee, v. The CITY OF CHICAGO, et al., Defendants-Appellees, Cross-Appellants.
Nos. 83-1986, 83-2070.
United States Court of Appeals, Seventh Circuit.
Argued May 30, 1985. Decided Sept. 30, 1985.
776 F.2d 636
This grand jury has been delayed for a significant period. Even under our decision today, proceedings on particular assertions of privilege may lie ahead. Further delay is inappropriate. The judgments are affirmed. The mandates will issue today.
J. Peter Dowd, Jacobs, Burns, Sugarman & Orlove, Chicago, Ill., for plaintiff-appellant.
Mary Kay Rochford, Asst. Corp. Counsel, Chicago, Ill., for defendants-appellees.
Before WOOD and POSNER, Circuit Judges, and WEIGEL, Senior District Judge.*
POSNER, Circuit Judge.
In 1978 Robert Hameetman, a fireman employed by the City of Chicago, was charged by his superiors with violating a city ordinance which requires that “all officers and employees in the classified civil service of the City shall be actual residents of the City.” A hearing officer of the city‘s Personnel Board conducted a hearing on whether Hameetman was as he claimed a resident of Chicago although his wifе and children lived in Indiana. After summarizing the sharply conflicting evidence, the hearing officer‘s report stated under “findings and recommendations“: “The City met its’ [sic] burden of proving that [Hameetman] was not an actual resident of the City of Chicago on April 10, 1978. It is respectfully submitted that [Hameetman] be discharged.” The report was forwarded to the Personnel Board together with a transcript of the testimony at the hearing. The Board‘s opinion repeats the hearing officer‘s conclusion and adds: “On the basis of the foregoing and upon the reviеw of the transcript, and after a full discussion, the decision of the Personnel Board is as follows: That the Respondent, Robert Hameetman, be discharged.” And so, in 1979, he was discharged.
Hameetman filed a timely notice of appeal to this court. The city filed a cross-appeal cоmplaining about the “remand” order, but went ahead and complied with the order and issued new findings, again concluding that Hameetman was not an actual resident of Chicago and should be discharged. Since by issuing new findings within 60 days the Board had complied with the district court‘s condition precedent to firing Hameetman, it was not required to reinstate him. So he remains fired. There have been no further proceedings in the district court; the parties did not even submit the Board‘s new findings to that court.
The unusual action of the judge in attempting to remand the case before him
In this case, howеver, the district judge‘s use of the word “remand” was a misnomer. A suit under
What the district judge called a “remand” really was a mandatory injunction that the Personnel Board give Hameetman procedural relief in the form of a new set of findings. The state therefore could have appealed under
But the defendants did not do this. They filed a cross-appeal after Hameetman filed his appeal. The cross-appeal did not have to be and was not filed within 30 days of the judge‘s order of “remand,” see Fed.R. App.P. 4(a)(3), as an appeal would have had to be filed in order to give us jurisdiction; but by the same token the cross-appeal is within our jurisdiction only if Hameetman‘s appeal, from which it depends, successfully invoked our jurisdiction. Therefore, to dispose of Hameetman‘s appeal as well as the cross-appeal, we must decide whether Hameetman‘s appeal is within our jurisdiction.
It is not so by virtue of
This assumes that the dismissal was definitive. If it had not been—if the injunction had just been an interim order and the judge had held on to the case so that he could grant additional relief on Hameetman‘s claims depending on the outcome of the “remand,” that is, depending on the city‘s compliance with the injunction—then Hameetman would have had to wait. Cf. Save the Bay, Inc. v. United States Army, 639 F.2d 1100, 1103 (5th Cir.1981); Silver v. Secretary of the Army, supra, 554 F.2d at 665. But the judge‘s order concludes, “plaintiff is entitled to no further relief from this court,” which is pretty definitive. If Hameetman had been dissatisfied with the new set of findings made by the Personnel Board he would have had to bring a fresh lawsuit.
So we have jurisdiction, and can come to the merits. Hameetman‘s claim that the enforcement of the ordinance against him was arbitrary requires little discussion. He does not argue that he was singled out for an invidious reason, such as race or political beliefs. The Constitution does not require states to enforce their laws (or cities their ordinances) with Prussian thoroughness as the price of being allowed to enforce them at all. See, e.g., Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962); Dauel v. Board of Trustees, 768 F.2d 128, 131 (7th Cir.1985); Harrington v. United States, 673 F.2d 7, 11 (1st Cir.1982); cf. Wayte v. United States, — U.S. —, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985); United States v. Batchelder, 442 U.S. 114, 124-26, 99 S.Ct. 2198, 2204-05, 60 L.Ed.2d 755 (1979). Otherwise few speeders would have to pay traffic tickets. Selective, incomplete enforcement of the law is the norm in this country.
Hameetman‘s claim that the key term in the ordinance, “actual resident,” is unconstitutionally vague also requires little discussion. Although the term was not authoritatively construed to mean domiciliary till after Hameetman was fired, see Fagiano v. Police Bd. of City of Chicago, 98 Ill.2d 277, 71 Ill.Dec. 525, 456 N.E.2d 27 (1983), there could have been little doubt that this is what it meant. For reasons that, whether right or wrong, are constitutionally sufficient, McCarthy v. Philadelphia Civil Service Comm‘n, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976) (per curiam), the City of Chicago wants its emplоyees to have the commitment to their work for the city that comes from living there. There is not much doubt about
Hameetman also claims that the city deprived him of liberty by refusing to let him live outside of Chicago when the well-being of a child required him to do so. He had a hyperkinetic child who was doing well in the Indiana school system and might have found adjustment to Chicagо difficult, and he argues that the city may not put him to a choice between living with his child and giving up his job as a fireman. He presented little evidence on this point, thus inviting us to speculate that he moved from Chicago to Indiana merely because the Chicago residency requirement was not being enforced—in which event he could not escape the consequences of violating the ordinance by pointing out that moving his child back to Chicago when the ordinance began to be enforced might be stressful for the child. He would be the author of his own dilemma in that case. But in the absence of findings on his motive for leaving Chicago we hesitate to resolve the issue on factual grounds, and shall therefore assume that the motive for his leaving was to improve his child‘s welfare, and ask what constitutional difference this makes.
A state or city that forces a man to live apart from his family deprives him of a form of liberty protected by the due process clause, and therefore violates the
That task is complicated, however, by the fact that the scope of the doctrine is unsettled. It has been narrowly construed in cases such as Califano v. Jobst, 434 U.S. 47, 53-55, 98 S.Ct. 95, 100, 54 L.Ed.2d 228 (1977), which held that “the general rule, terminating upon marriage the benefits payable to a secondary beneficiary, is unquestionably valid,” notwithstanding that “some persons who might otherwise have married were deterred by the rule,” id. at 54, 98 S.Ct. at 99, and in the legion of cases that have allowed the government to break up families by deporting a father who is an illegal alien, see, e.g., Delgado v. INS, 637 F.2d 762, 763-64 (10th Cir.1980). But it has been broadly construed in cases such as Moore v. City of East Cleveland, supra, which invalidated a zoning ordinance that forbade people to live together who were not members of the same nuclear family (and so prevented a grandmother from living with her grandson), and Wilson v. Taylor, 733 F.2d 1539, 1543-44 (11th Cir.1984), which held that firing a policeman because he was dating the daughter of a convicted
From the welter of precedents we can extract at least the principle that state or local regulations are not unconstitutional deprivations of the right of family association unless they regulate the family directly, as in the ordinance struck down in Moore v. City of East Cleveland, or the “adult-only” rental policy invalidated in Halet v. Wend Investment Co., 672 F.2d 1305, 1310-11 (9th Cir.1982)—and even Wilson v. Taylor was such a case, at least if “family” is construed very broadly. The collateral consequences of regulations not directed at the family, such as regulations designed to keep illegal aliens out of the country, do not bring the constitutional rights of family association into play. We admit that this distinction does not reconcile Moore with Jobst; but that cannot help Hameetman, since Jobst rejected the asserted right, and Moore as we said is a different type of case from the present. We have our doubts whether Halet was correctly decided. Although an adults-only rental policy might in a rare case result in parents’ living apart from their children, the real purpose and dominant effect of such policies is not to break up families but to spare people who do not have young children of their own the noise and commotion of other people‘s children; the incidental effects on families with small children must be very small. But this is just to say that the case law in this area, maybe because the subject matter is so emotional and the constitutional guideposts so sparse, is untidy. Still, we can find no case invalidating a regulation merely because it might, as in the present case, have the incidental and unintended effect of inducing family members to live apart. This is no accident. Breathtaking vistas of liability would open up if the doctrine of constitutional family rights reached as far as Hameetman would press it. Every award of custody would raise a constitutional issue. Persons employed by state or local governments in jobs involving frequent travel, long hours, or heavy stress could complain that their family associations were being adversely affected, as well they might be. Residency requirements would have no bite at all, since people who prefer suburban to city living usually do so because they think their family will be better off, and they might therefore bе induced to live apart from their family—as Hameetman was.
Despite what we have said, maybe there are extreme cases where a city‘s refusal to make an exception to a residency requirement would be so cruel and arbitrary an interference with a family as to be deemed a denial of due process of law; but this is not so extreme a case. Hameetman does not argue that Chicago has no facilities for treating hyperkinetic children. He did not, when he left Chicago years ago, tell his superiоrs about his child‘s condition, ask to be exempted from the residency requirement, and thus enable a contemporaneous record to be made on the bona fides of his request. The impact of the residency requirement on his child and through the child on Hameetman‘s familial associations is too indirect to compel the City to waive the requirement in Hameetman‘s favor, when the requirement is not a regulation of the composition or location of the family, though like almost everything that government does it may affect particular families.
We come to the procedural objections to Hameetman‘s discharge. There were no deficiencies in the administrative proceedings themselves, as distinct from the findings issued at their conclusion. A full evidentiary hearing, upon adequate notice, before an impartial hearing officer, with a right of appeal to a higher administrative board, also impartial, is certainly all the process that is constitutionally due an employee whom his employer wants to re-
The order was indeed an inadequate remedy, if a wrong was done to the plaintiff. The findings that the Personnel Board issued on “remand,” although extremely brief, are good enough on their face; but when there is conflicting oral testimony going to the heart of the question to be decided, so that an evaluation of the witnesses’ demeanor may be critical to deciding the question correctly, an appellate tribunal—especially, as we shall see, the City of Chicago‘s Personnel Board—will have a hard time making responsible findings of fact. Administrative agencies are, it is true, allowed to make findings on issues of credibility without taking live testimony, see Universal Camera Corp. v. NLRB, 340 U.S. 474, 492-97, 71 S.Ct. 456, 466-69, 95 L.Ed. 456 (1951)—even without getting recommended findings from the subordinate officer before whom the testimony was taken, see, e.g., Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129, 132 (2d Cir.1967) (Friendly, J.); Guerrero v. New Jersey, 643 F.2d 148, 149-50 (3d Cir.1981) (per curiam) (dictum). So the fact that the district judge required an appellate body to make independent findings of credibility did not in itself deny Hameetman due process of law. See Moore v. Ross, 687 F.2d 604, 609 (2d Cir.1982); Bates v. Sponberg, 547 F.2d 325, 331-32 (6th Cir.1976). But that does not mean it was an adequate procedure to cure a denial of due process. Indeed, the cure seems not to have been suited to the particular disease, which was not just the Personnel Board‘s failure to make findings but also and more important the failure of the hearing officer, before whom sharply conflicting testimony was given, to do so. And whether or not findings by the Board would have been an apt cure in some other circumstances, they were not here. The members of the Board are defendants in the action. To ask them to make findings that may affect their own liability, at least for attorneys’ fees (for as adjudicative officers they have absolute immunity from damage liability), is to ask them to be judges in their own case, which violates elementary notions of due process. Maybe in light of this fact the procedure “on remand” was an independent violation of the due process clause, though we shall not have to decide that.
On the other hand, maybe there was no disease—maybe the original findings, skimpy as they were, did not violate Hameetman‘s constitutional rights. The shorthand definition of due process as notice and an opportunity for a hearing is incomplete. We have mentioned the requirement that the hearing officer be impartial. We may assume without having to decide that another requirement is that the hearing officer explain the basis of his action or recommendation. We state this proposition tentatively because it is apparent that the duty (if any) to explain the grounds of decision is not always a requirement of due process. Juries, when they render general verdicts, do not explain the basis of the verdict. While federal district judges are required by
Yet there is considerable authority that due рrocess of law requires that the nonjudicial decision maker—the agency or its hearing officer as distinct from a judge or a jury—“should state the reasons for his determination and indicate the evidence he relied on.” Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970). This is a back-up safeguard, designed to make sure, so far as it is possible to do so, that the hearing which due process requires is a meaningful one, as it would not be if the decision maker based his decision on materials outside of the record that was compiled at the hearing, other than such extra-record materials as the agency could properly take official notice of. See, e.g., id.; Wolff v. McDonnell, 418 U.S. 539, 565, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974); Linwood v. Board of Education, 463 F.2d 763, 770 (7th Cir.1972). Maybe, since administrative agencies are not so confined by rules of evidence as judges and juries are, they are more likely to base decision on matters outside of the hearing record. Assuming therefore that state hearing officers are under a federal constitutional obligation to explain the basis of their decisions, as judges and juries are not, still we do not think that the failure to comply with that duty is actionable in this case, as there is very little doubt what the basis of the hearing officer‘s (and Personnel Board‘s) decision was. The duty to explain presupposes that the explanation is not obvious; where it is, a statement of reasons is not required.
Having recited the testimony of the opposing parties and added his conclusion that the city had carried its burden of proof, the hearing officer made reasonably clear that he disbelieved Hameetman‘s testimony that he lived most of the time in Chicago and considered the city his domicile. If the hearing оfficer had believed Hameetman, he would surely have found against the city. There was, however, much evidence against Hameetman—including the testimony of a city investigator who camped outside Hameetman‘s Chicago apartment for several days and saw neither hide nor hair of him, the testimony of the same investigator who saw Hameetman living with his family in Indiana, testimony about a neighbor of Hameetman‘s in Chicago who laughed at the idea that Hameetman lived in the apartment he rented from his daughter, and the fact that the aрartment had no kitchen or bathroom. It is conceivable, but highly improbable, that the hearing officer believed Hameetman‘s testimony but thought that to be an actual resident of Chicago Hameetman would have had to spend seven days a week there, or thought that a person‘s actual residence is the domicile of his wife and children, or something equally wide of the mark. It would have been better if the hearing officer had negated the possibility that his decision was based on findings of fact favorable to Hameetman followed by a zany legal conclusion against him, but the omission of an explanation does not violate due process of law where the agency‘s path can reasonably be discerned even without the usual signposts. A familiar principle of judicial review of federal administrative decisions, see, e.g., Amoco Production Co. v. FERC, 763 F.2d 265, 268 (7th Cir.1985), we think it also applicable to the scrutiny of state administrative decisions for compliance with the due process clause of the
Since the district judge erred in holding that the original administrative findings were inadequate, the inadequacy of his curative order is harmless. The defendants were entitled to judgment in their favor on all issues and the judgment of the district court will be modified accordingly and as modified affirmed. No costs in this court.
MODIFIED AND AFFIRMED.
WEIGEL, Senior District Judge, concurs in the result.