492 F.2d 1003 (7th Cir. 1974), 73-1491, Adams v. Walker

Docket Nº:73-1491.
Citation:492 F.2d 1003
Party Name:Donald G. ADAMS, Plaintiff-Appellee, v. Daniel WALKER, a/k/a Dan Walker, Individually and as Governor of the State of Illinois, Defendant-Appellant.
Case Date:February 25, 1974
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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492 F.2d 1003 (7th Cir. 1974)

Donald G. ADAMS, Plaintiff-Appellee,

v.

Daniel WALKER, a/k/a Dan Walker, Individually and as Governor of the State of Illinois, Defendant-Appellant.

No. 73-1491.

United States Court of Appeals, Seventh Circuit.

February 25, 1974

Heard Dec. 10, 1973.

William J. Scott, Atty. Gen., Herbert L. Caplan, Asst. Atty. Gen., Chicago, Ill., for defendant-appellant.

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Richard A. Hollis, Springfield, Ill., for plaintiff-appellee.

Before CUMMINGS, PELL and STEVENS, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiff, a practicing lawyer, is the former chairman of the Illinois Liquor Control Commission. On May 4, 1972, former Governor Ogilvie appointed plaintiff to a term expiring on February 1, 1978. In January 1973, plaintiff refused to resign his part-time position as requested by representatives of Governor Walker. On February 1, 1973, Governor Walker sent the following letter to plaintiff:

'Pursuant to the constitutional powers vested in me as Governor of the State of Illinois, I hereby remove you, for cause and effective immediately, from your position as a member and as Chairman of the Illinois Liquor Control Commission.'

On the same date, Governor Walker sent plaintiff the following telegram:

I hereby remove you, effective immediately, from your position as a member and as chairman of the Illinois Liquor Control Commission for incompetence, neglect of duty and malfeasance in office and other cause pursuant to the constitutional and statutory powers vested in me as Governor of the State of Illinois.

On February 2, 1973, Governor Walker appointed Elroy Sandquist, Jr., to succeed plaintiff as a member of the Commission and subsequently designated Lawrence E. Johnson as its chairman. In March 1973, plaintiff filed this action against Governor Walker, seeking reinstatement as a member and chairman of the Commission. Plaintiff also sought damages allegedly incurred as a result of his dismissal.

On April 2, 1973, the district court entered a temporary restraining order in plaintiff's favor and five weeks thereafter sua sponte issued a preliminary injunction On May 31, 1973, the district court entered an order requiring defendant to show cause why he should not be held in contempt for disobeying the temporary restraining order and preliminary injunction. On the following day, defendant appealed from the issuance of the preliminary injunction. We reverse.

I.

Article V, Section 10, of the 1970 Illinois Constitution, S.H.A. provides:

'The Governor may remove for incompetence, neglect of duty, or malfeasance in office any officer who may be appointed by the Governor.'

A virtually identical provision in the 1870 State Constitution was construed by the Illinois Supreme Court as making 'power of removal from office by the Governor co-extensive with his power of appointment.' Wilcox v. The People ex rel. Lipe, 90 Ill. 186, 198 (1878). 1 The court expressly rejected the argument that notice and hearing were required, stating:

'Undoubtedly, the Governor can only remove for some one of the causes specified; but the removal here was for one of these causes-- incompetency. The Governor ascertained the existence of the cause here, and made the removal on account of it. The constitution is silent as to who shall ascertain the cause of removal or the mode of its ascertainment. It simply gives to the Governor the power to remove any officer whom he may appoint, in case of incompetence, etc. It follows, then, that it is with the Governor, who is to act in the matter, to determine, himself, whether the cause of removal exists, from the best lights

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he can get, and no mode of inquiry being prescribed for him to pursue, it rests with him to adopt that method of inquiry and ascertainment as to the charge involved which his judgment may suggest as the proper one, acting under his official responsibility, and it is not for the courts to dictate to him in what manner he shall proceed in the performance of his duty, his action not being subject to their revision. The constitution of this State not only declares that the powers of the government of the state shall be divided into three distinct departments, but has expressly prohibited the exercise of any of the powers properly belonging to one by either of the others.' 90 Ill. at 204-205.

Plaintiff's argument for an alternative interpretation of the Illinois constitutional provision is essentially that the Illinois Supreme Court did not mean what it said. That court said in Wilcox, 'We think the intention (of the 1870 Convention) was to adopt the rule which had become established under the Constitution of the United States with respect to appointments made by the President, * * * namely' the rule quoted above. Plaintiff contends that the true meaning of Wilcox is that Illinois will follow the federal rule, whatever it may be, and that the Illinois Supreme Court misunderstood the federal rule because it subsequently did not cite Shurtleff v. United States, 189 U.S. 311, 23 S.Ct. 535, 47 L.Ed. 828 (1903). 2 Of course, the 1870 Convention could not possibly have intended to adopt the rule of a 1903 decision. More fundamentally, the federal rule announced in Shurtleff was that in the absence of a contrary constitutional or statutory provision, 'the President can, by virtue of his general power of appointment remove an officer, even though appointed by and with the advice and consent of the Senate.' 189 U.S. at 314-315, 23 S.Ct. at 536. This rule was held to be so well established that a statutory provision specifying grounds for removal did not by implication forbid the President to remove on other grounds. Instead the President retained an 'unlimited power of removal.' Id. at 317, 23 S.Ct. 535. Undoubtedly this was the federal rule cited by the Illinois court in Wilcox. The Shurtleff language relied on by plaintiff construed the Customs Administrative Act of 1890 as requiring notice and hearing if the President announced that he was removing appraisers for one of the grounds specified in the statute. Id. at 314, 23 S.Ct. 535. There is no indication that this construction was constitutionally compelled. Rather, the Court said that without a requirement of notice and hearing the statutory specification of grounds for removal would 'fulfill no function.' Id. at 317, 23 S.Ct. 535. As already noted, in Wilcox the Illinois Supreme Court has held squarely to the contrary in construing the Illinois Constitution, and its construction is binding on us.

Wilcox construed the removal provision of the 1870 Constitution, but it also controls the meaning of the corresponding provision of the 1970 Constitution. The two Sections are nearly identical, and it is clear that the 1970 Convention intended no change in meaning. The entire committee report on this Section read as follows:

'The only alteration made as this section is carried forward from its existing counterpart is the deletion of clearly superfluous language.' VI Rec. of Proceedings 6th Ill.Const.Conv. 387 (hereafter cited Rec. ) (Executive Comm. Proposal 1, p. 51).

During debate at first reading on the floor of the 1970 Convention, the meaning of the Section was explained by reference to earlier Illinois Supreme Court decisions. III Rec. 1324-1327 (Verbatim Transcript). The Section as passed at first reading was amended without explanation by the Committee on Style, Drafting and Submission. VI Rec. 432 (Style, etc. Comm. Proposal 6, p. 18).

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That Committee's report indicated that some changes were submitted without explanation because the reasons were 'self-evident' (VI Rec. 415 (Style, etc. Comm. Proposal 6, p. 1)), and it is clear that the changes were purely stylistic. The Section as proposed by the Committee on Style was adopted without further debate (V Rec. 4753 (Index to Verbatim Transcript)) and is the Section before us. See also VII Rec. 2709 (Official Text With Explanation, p. 29).

II.

Whether plaintiff has a right to a due process hearing before he can be dismissed is a matter of federal law. He has such a right if his dismissal infringes his liberty, or if, as a matter of state law, he has a property interest in the job. Board of Regents of State Colleges v. Roth,408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570. The rule that plaintiff has no right to a hearing under state law is persuasive on the issue whether he has a property interest, but it cannot be conclusive. Wilcox was decided long before Roth and Sindermann and did not decide any question of property rights. Thus the law of Illinois could conceivably be that plaintiff has a property interest but no right to a hearing to protect that interest. Cf. Shirck v. Thomas, 486 F.2d 691, 692 (7th Cir. 1973).

Plaintiff argues that since he was appointed for a six-year term, he has a property right to hold the job for six years. He relies on Ill.Rev.Stats. ch. 43, § 98, which provides that liquor commissioners shall be appointed for periods of six years, and on a letter from then Governor Ogilvie appointing him, subject to Senate confirmation, 'for a term expiring February 1, 1978.' Plaintiff's commission makes no reference to a six-year term, but instead says that he is 'To have and to hold the said office, with all the rights and emoluments thereto legally pertaining, until his successor shall be duly appointed and qualified to office.'

'A term of employment set by contract has been recognized as a property interest which the state cannot extinguish without conforming to the dictates of procedural due process.' Hostrop v. Board of Junior College District No. 515, 471 F.2d 488, 494 (7th Cir. 1972). The issue is whether the statute and letter referred to give rise to an implied contract for a six-year term, or to a 'legitimate claim of entitlement' to such a term. Roth, 408 U.S. at...

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