Kaske v. City of Rockford

• Decision Date: 24 January 1983
• Docket Number: 55599,Nos. 55501,s. 55501
• Citation: 70 Ill.Dec. 841,96 Ill.2d 298,450 N.E.2d 314
• Parties: , 70 Ill.Dec. 841 John KASKE, et al., Appellants, v. The CITY OF ROCKFORD et al., Appellees. Robert COLLURA, Appellant, v. The BOARD OF FIRE AND POLICE COMMISSIONERS OF the VILLAGE OF ITASCA, Appellee.
• Court: Illinois Supreme Court

Page 314

450 N.E.2d 314

96 Ill.2d 298, 70 Ill.Dec. 841

John KASKE, et al., Appellants, v. The CITY OF ROCKFORD et al., Appellees.

Robert COLLURA, Appellant, v. The BOARD OF FIRE AND POLICE COMMISSIONERS OF the VILLAGE OF

ITASCA, Appellee.

Nos. 55501, 55599.

Supreme Court of Illinois.

Jan. 24, 1983.

Rehearing Denied April 8, 1983.

Rock, Fusco, Reynolds & Heneghan, Chicago, for appellants; Philip J. Rock, William Paul Jones, Chicago, of counsel.

North, Ohlson, Boyd, Condon & Ellsworth, Rockford, for appellants; Scott M. Boyd, Rockford, of counsel.

Heckenkamp & Simhauser, P.C., Springfield, for Policemen's Benevolent and Protective Ass'n; I.J. Feuer and Mark Rabin, Springfield, of counsel.

Stanley H. Jakala, Berwyn, for amicus curiae, Fraternal Order of Police, State of Ill.

Richard F. McPartlin, Chicago, for amicus curiae, Illinois Police Ass'n.

Thomas F. McGuire, Long Grove, City of Rockford Dept. Of Law, Charles E. Box, Legal Director, Rockford, for appellees; Kathleen Elliott, City Atty., of counsel.

James A. Murphy, Legal Advisor, Peoria Police Dept., Peoria, James P. Manak, and William E. Hornsby, Jr., Chicago, for amicus curiae. CLARK, Justice.

This case is a consolidation of two different appeals concerning the giving of polygraph examinations to public law-enforcement officials and the admissibility of the polygraph results in administrative disciplinary proceedings. In cause No. 55501, the plaintiffs, Rockford police officers John Kaske and Paul A. Triolo, brought suit against the city of Rockford and its police chief seeking to prohibit the defendants from compelling the plaintiffs to undergo polygraph examinations. In cause No. 55599, the plaintiff, Itasca police officer Robert Collura, is challenging a decision of the Itasca board of fire and police commissioners ordering his discharge following a hearing in which the results of a polygraph examination were admitted into evidence. We discuss the latter case first.

Collura v. Board of Fire and Police Commissioners of the Village of Itasca.

On January 26, 1980, the chief of police of the village of Itasca, Stanley J. Rosol, filed charges before the Itasca board of fire and police commissioners against Itasca police officer Robert Collura. It was alleged that Officer Collura had on December 27, 1979, while on duty, made improper physical contact with Alicia Martinez. Officer Collura was also charged with making an untruthful report about what happened between him and Alicia Martinez. Alicia Martinez had made a statement to the chief of police that Officer Collura had sexually touched her while she was being detained on December 27 at the scene of a reported burglary.

Prior to the filing of charges by the chief of police, the plaintiff had been ordered to submit to a polygraph examination or face disciplinary action. Plaintiff appeared for the polygraph examination on January 8, 1980, and asserts that the polygraph examiner prejudged the plaintiff's veracity before the test was administered. The plaintiff also testified that the examiner was abusive and argumentative, which caused the plaintiff to become angry and hostile.

At the hearing before the Itasca board of fire and police commissioners the polygraph examiner was called as an expert witness and the results of the polygraph examination were admitted into evidence. The polygraph examiner testified that the plaintiff lied in answering questions concerning his alleged improper contact with Alicia Martinez. The operator indicated that he had four years of experience conducting examinations, and denied that he had prejudged Collura or had acted in a hostile or argumentative way toward the plaintiff. Counsel for the plaintiff attacked the competency of the examiner and objected to the admissibility of the examiner's testimony and the results of the polygraph test.

The board found Collura guilty of the charges and determined that his conduct warranted a discharge. Officer Collura filed for administrative review of the board's order pursuant to the Administrative Review Act (Ill.Rev.Stat.1979, ch. 110, par. 264 et seq.). The circuit court of Du Page County affirmed the decision of the board of fire and police commissioners, and the appellate court, under Supreme Court Rule 23 (73 Ill.2d R. 23), found no error in the admission of polygraph results which were founded upon the testimony of a properly qualified and certified examiner. 97 Ill.App.3d 1199, 55 Ill.Dec. 911, 426 N.E.2d 1285.

Kaske v. City of Rockford

On February 2, 1981, the plaintiffs filed a complaint for declaratory judgment with the circuit court of Winnebago County, asking that the defendants, the city of Rockford and Delbert Peterson, the chief of police of the Rockford police department, be restrained and enjoined from ordering the plaintiffs to undergo polygraph examinations. A temporary restraining order was granted and then extended on four occasions by the agreement of the parties. The plaintiffs also filed a motion for a preliminary injunction on February 3, 1981. The defendants filed a motion to dismiss which the circuit court granted with leave to amend.

An amended complaint was filed with the court on March 13, 1981, and an amendment to that complaint was allowed to be filed on March 20, 1981. The defendants filed a motion to dismiss on March 30, 1981.

On April 16, 1981, the circuit court entered an order dismissing the amended complaint, finding that it was insufficient to state a cause of action for declaratory judgment. The court denied the motion for a preliminary injunction, dissolved the temporary restraining order, and granted the plaintiffs' leave to file a further amended complaint if "they chose to do so." The plaintiffs elected to stand on their amended complaint and filed their notice of appeal the same day.

On August 12, 1981, the appellate court, in a Rule 23 order (73 Ill.2d R. 23), affirmed the trial court's denial of the preliminary injunction and dismissed the appeal. (98 Ill.App.3d 1203, 56 Ill.Dec. 648, 427 N.E.2d 1053.) We granted plaintiffs leave to appeal (73 Ill.2d R. 315).

Plaintiffs Kaske and Triolo are close personal friends. In December of 1980 plaintiff Triolo brought an action for dissolution of marriage. When his wife was informed, she told Triolo that she would "take his job." Shortly thereafter, plaintiff Triolo's wife contacted supervisory officers of the Rockford police department and arranged a meeting with the plaintiffs' immediate supervisory lieutenants. At the meeting Mrs. Triolo made oral statements that the plaintiffs had smoked marijuana on different social occasions. A week later Mrs. Triolo contacted one of the lieutenants with whom she had met and recanted her previous allegations, indicating that what she had said was not true.

The chief of police ordered both plaintiffs to submit written reports concerning the allegations. The plaintiffs did submit reports in which each denied the use of any drugs.

The plaintiffs were then ordered to undergo polygraph examinations. They were informed that any information obtained as a result of the examinations might be used against either or both of the plaintiffs (in bringing charges) before the board of fire and police commissioners of Rockford. The plaintiffs were told by the chief of police that their refusal to obey the order would subject them to charges before the board of fire and police commissioners of Rockford.

Prior to the order of the chief of police that plaintiffs prepare reports concerning the allegations of drug use, Officer Kaske had submitted a letter of resignation to the police department and soon thereafter asked the chief of police to accept a withdrawal of the resignation. Kaske was informed that he had to appear before the board of fire and police commissioners of the city of Rockford to request withdrawal of his resignation. At the January 6, 1981, meeting of the board, the chief of police informed the board that Kaske was under investigation for alleged drug use. The board allowed Kaske to withdraw his letter of resignation.

The defendants suggest that because Officers Kaske and Triolo did not exhaust administrative review procedures that this court should not review the case since the plaintiffs fail to state a cause of action for declaratory judgment. While our judiciary does not function as an original forum for immediate review of the propriety of all of a chief's orders to his subordinates in that department, the exhaustion of the administrative review process is not the exclusive remedy in the instant case. (See also People ex rel. Fahner v. American Telephone & Telegraph Co. (1981), 86 Ill.2d 479, 485, 56 Ill.Dec. 680, 427 N.E.2d 1226.) A declaratory judgment is not barred because other relief can be obtained. It is rather an optional, alternative remedy. Kupsik v. City of Chicago (1962), 25 Ill.2d 595, 598, 185 N.E.2d 858.

The appellate court in Buege v. Lee (1978), 56 Ill.App.3d 793, 14 Ill.Dec. 416, 372 N.E.2d 427, correctly recognized that a plaintiff is not required to "provoke a disciplinary proceeding against himself so as to provide a forum to challenge the chief's order. It is central to the purpose of the declaratory judgment procedure that it allow 'the court to take hold of a controversy one step sooner than normally--that is, after the dispute has arisen, but before steps are taken which give rise to claims for damages or other relief. The parties to the dispute can then learn the consequences of their action before acting.' (Ill.Ann.Stat., ch. 110, par. 57.1, Historical and Practice Notes, at 132 (Smith-Hurd (1968).)" 56 Ill.App.3d 793, 798, 14 Ill.Dec. 416, 372 N.E.2d 427.

Section 57.1 of our Civil Practice Act permits declaratory judgments to be rendered in instances when an "actual controversy" exists. (Ill.Rev.Stat.1979, ch. 110, par. 57.1.) An actual controversy means that the case presents " 'a concrete dispute admitting of an immediate and definitive...