Clark v. Weeks

• Decision Date: 24 February 1976
• Docket Number: No. 75 C 2009.,75 C 2009.
• Citation: Clark v. Weeks, 414 F.Supp. 703 (N.D. Ill. 1976)
• Parties: James CLARK, Treasurer of DuPage County, et al., Plaintiffs, v. Gerald R. WEEKS, Individually and as Chairman of the DuPage County Board of Commissioners, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

414 F. Supp. 703

James CLARK, Treasurer of DuPage County, et al., Plaintiffs, v. Gerald R. WEEKS, Individually and as Chairman of the DuPage County Board of Commissioners, et al., Defendants.

No. 75 C 2009.

United States District Court, N. D. Illinois, E. D.

February 24, 1976.

Thomas P. Sullivan, Alan L. Metz and Jeffrey D. Colman, Jenner & Block, Chicago, Ill., Paul T. Kalinich, Glen Ellyn, Ill., for plaintiffs.

Terry M. Grimm and Ellen C. Newcomer, Winston & Strawn, Chicago, Ill., for defendants.

Before FAIRCHILD, Chief Circuit Judge, and DECKER and MARSHALL, District Judges.

DECKER, District Judge.

MEMORANDUM OPINION

James Clark is the Treasurer of DuPage County. He was re-elected to that office on November 5, 1974, and his term of office runs until November 5, 1978. In April, 1975, an organization known as the DuPage Citizens Organization made public through the press and through meetings with members of the DuPage County Board (Board) allegations that Clark had obtained substantial personal loans during his term as Treasurer from banks in which he had deposited County funds; had defaulted or was unable to service the debt on some of those loans; and had personally profited as a result of his holding the office of Treasurer in a manner in addition to the amount of his salary and remuneration as fixed by law.

In response to these allegations, and pursuant to Ill.Rev.Stat. ch. 36 § 15, which provides:

"If any county treasurer shall neglect or refuse to render an account, or make settlement at any time when required by law, or by the county board, or refuse to answer any question propounded to him by the county board, or is a defaulter, and in arrears with the county, or is guilty of any other misconduct in his office, the county board may remove him from office, and the presiding officer of the county board, with the advice and consent of the county board, may appoint some suitable person to perform the duties of treasurer until his successor is elected, or appointed and qualified; . . .",

the Board passed Resolution F-842-75. The resolution directed the chairman of the Board to appoint a Special Investigative Committee (Committee)

"To make all inquiries, investigations, and to take testimony and receive documentation relating to the following:

a) To investigate and inquire into the activities of the County Treasurer in order to make findings of fact and to make a determination as to whether there is cause to remove the County Treasurer for any of the following reasons:

Neglect or refusing to render an account, or make settlement at any time when required by law, or by the county board.

Refusing to answer any question propounded to him by the county board. Is a defaulter and in arrears with the County.

Is guilty of any other misconduct in his office.

b) To investigate and inquire whether there are activities of the County Treasurer which constitute a conflict of interest.

c) That said investigation shall also include, but not be limited to whether there has been a violation of the following statutes:

Chapter 36, Sections 36, 37, 38, which reads as follows:

The county treasurer shall retain no fees, commissions or other compensation whatsoever, except his salary or other compensation fixed by law, for his services when acting as such county treasurer or in any other official capacity incident to his incumbency of that office. . . .

No bank or other depositary holding county moneys deposited therewith by the county treasurer in accordance with the provisions in this act, or otherwise, and no officer of any such bank, depositary, or other person, shall pay to, withhold for the benefit of, or contract in any manner for the payment to such county treasurer, . . . of any interest or other fee, prerequisite or emolument, on account of the deposit of such county moneys, except such interest as shall be paid to such county treasurer for the benefit of the county. The making of a personal profit or emolument by the incumbent of the office of county treasurer or by any other county officer out of any county moneys by loaning, depositing or otherwise using or disposing of the same in any manner whatsoever, shall be deemed a Class 3 felony. Any county officer or other person who wilfully violates any provision of this act, other than that above specified in this section, or who wilfully neglects or refuses to perform any duty imposed upon such person by the terms of this act, shall be guilty of a Class 4 felony."

Pursuant to this Resolution, defendant Gerald R. Weeks, as chairman of the Board, appointed a Committee consisting of a majority of the members of the Board. Defendants Robert A. Morris and Frank H. Bellinger were appointed chairman and vice-chairman of the Committee, respectively. The Committee retained counsel, adopted rules of procedure and issued subpoenas duces tecum for certain of Clark's bank records. On June 19, 1975, before any of these subpoenas were returned or any witnesses were called by the Committee, Clark and Michael Dutton, who claims to have voted for Clark in November, 1974, filed this lawsuit.

In this action brought under 42 U.S.C. § 1983, plaintiffs claim that the part of Ill.Rev.Stat. ch. 36 § 15 which allows the Board to remove the County Treasurer from office for "other misconduct in office" is unconstitutionally vague on its face and thus deprives Clark of due process and Dutton of his right to vote (Count I); that the rules of procedure adopted by the Committee deprive Clark of his liberty and property and Dutton of his right to vote without due process (Count III); and that the subpoenas issued by the Committee violate Clark's Fourth and Fourteenth Amendment right to privacy (Count IV).¹ Plaintiffs seek declaratory and injunctive relief on each count.

On June 23, 1975, Judge Lynch, acting as emergency judge, issued a temporary restraining order which brought the Committee's activities to an abrupt halt. The order restrained defendants from:

". . . enforcing as to JAMES CLARK Illinois Revised Statutes Ch. 36 § 15, DuPage County Board Resolution F-842-75 and the `Rules of Procedure' promulgated by the DuPage County Board."

". . . or from causing or accepting return on any subpoenas duces tecum caused to be issued by the defendants or their counsel for the production of any documents pertaining to JAMES CLARK."

Judge Lynch also granted plaintiffs' application to convene a three-judge district court pursuant to 28 U.S.C. §§ 2281, 2284. On July 3, 1975, the temporary restraining order was continued in effect until such time as the three-judge court could hear and decide plaintiffs' motion for a preliminary injunction.²

Defendants have now moved to dissolve the temporary restraining order and to dismiss the complaint. Plaintiffs resist these motions and have moved for summary judgment on their claim that the statute under which the Committee is proceeding is unconstitutionally vague on its face. For the reasons set forth below, plaintiffs' motion for summary judgment is denied; defendants' motion to dismiss the complaint is granted with respect to plaintiffs' claim of unconstitutional vagueness; and this three-judge court is dissolved. The remaining issues in this case shall be decided by a single judge district court.

I.

Before proceeding to the merits of plaintiffs' claims, we must consider defendants' assertion that the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny require this court to refrain from taking any action in this case in deference to the proceedings pending before the DuPage County Board. The question is, of course, one which must be decided by a three-judge court. Jones v. Wade, 479 F.2d 1176, 1180 (5th Cir. 1973); Abele v. Markle, 452 F.2d 1121, 1125 (2d Cir. 1971); cf. Steffel v. Thompson, 415 U.S. 452, 457 n. 7, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).

Younger held that even where a federal plaintiff asserts a federal constitutional claim, a federal court may not, absent special circumstances, enjoin a pending state criminal prosecution. 401 U.S. at 43, 91 S.Ct. 746. While it is true that Younger has been extended to bar federal court injunctions against certain civil proceedings in the state courts, Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Cousins v. Wigoda, 463 F.2d 603, 606 (7th Cir. 1972), Younger has never been read to preclude a federal injunction against a state administrative proceeding which violates the federal plaintiff's civil rights. Administrative proceedings, such as those challenged in this case, clearly do not provide the "opportunity to raise and have timely decided by a competent state tribunal the federal issues involved," which is a prerequisite to Younger abstention. Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973). Thus, this court is not precluded by Younger from considering the merits of plaintiffs' claims.

II.

Plaintiffs' challenge to Ill.Rev. Stat. ch. 36 § 15 is based on the well-established principle of constitutional law that a statute which forbids or requires the doing of an act "in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). This requirement of statutory specificity is based on two concepts. First, due process requires that the citizenry be specifically informed of their rights, responsibilities and the legal prohibitions with which they must abide. See Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). Second, due process requires that judges, jurors and other governmental decision-makers resolve disputes based on legally fixed standards. Thus, the due process clause condemns statutes which delegate unchartered discretionary powers to decision-makers...