DiIulio v. Board of Fire and Police Com'rs of City of Northlake

• Citation: 682 F.2d 666
• Decision Date: 06 April 1982
• Docket Number: No. 80-1966,80-1966
• Parties: Domenic DiIULIO, et al., Plaintiffs-Appellants, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF NORTHLAKE, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 666

682 F.2d 666

Domenic DiIULIO, et al., Plaintiffs-Appellants, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF

NORTHLAKE, et al., Defendants-Appellees.

No. 80-1966.

United States Court of Appeals, Seventh Circuit.

Submitted April 6, 1982. ^*

Decided June 30, 1982.

Stanley H. Jakala, Berwyn, Ill., for plaintiffs-appellants.

Donald N. Novelle, Serpico, Novelle, Dvorak & Navigato, Ltd., Bellwood, Ill., for defendants-appellees.

Before CUMMINGS, Chief Judge, PELL, Circuit Judge, and CUDAHY, Circuit Judge.

PELL, Circuit Judge.

At issue in this case is the constitutional validity of an examination required for the promotion of appellants, police patrolmen, to the position of police sergeant. ¹

I

In our appraisal of appellants' claims we must accept their version of the facts properly before the district court because that court granted summary judgment against them. ² Bishop v. Wood, 426 U.S. 341, 345, 347, 96 S.Ct. 2074, 2077, 2078, 48 L.Ed.2d 684 (1976).

Appellants were hired prior to December 10, 1977, as police patrolmen by the Board of Fire and Police Commissioners of the City of Northlake, Illinois. Promotion within the Northlake Police Department is governed by state law and the Rules and Regulations of the Board of Fire and Police Commissioners of the City of Northlake (the Board), Ill.Rev.Stat. ch. 24, § 10-2.1-1 et seq., pursuant to which, promotions are based upon merit, seniority, and competitive examinations. In all cases where it is practicable, vacancies are to be filled by promotion. A promotion roster must be prepared based on the competitive examinations, ascertained merit, and seniority. Vacancies must be filled by one of the three candidates at the top of the roster, and a high ranking candidate cannot be passed over more than twice.

"(I)n determining next in order of rank in promotional examinations, ... (the Board) extend(s) the examination successively through all the orders of rank in the services in an endeavor to qualify suitable eligible or eligibles for the vacancy or vacancies existing before extending the examination to the general public." And "(n)o examination shall be given if a vacancy exists at that time and an eligibility list is in existence." The names of candidates on the promotional roster may be removed by the Board after two years only if all existing vacancies are filled prior to cancellation. Ill.Rev.Stat. ch. 24, § 10-1-13.

The competitive written promotional exam accounts for 55% of the total score in the promotional scheme. ³ A score of 70 is required to pass the written exam. It is statutorily provided that the examination shall be conducted by the Board and that the "examinations shall be practical in character and relate to the matters which will fairly test the capacity of the persons examined to discharge the duties of the positions to which they seek (promotion)." Ill.Rev.Stat. ch. 24, § 10-2.1-6.

On December 10, 1977, the Board held a promotional examination for the rank of sergeant. ⁴ The plaintiffs, seeking promotion to that rank, unsuccessfully participated in said examination. ⁵

Appellants' cause of action is based on their claim that the promotional examination was "arbitrary, capricious, and discriminatory and lacked and was devoid and not in furtherance of any substantial, rational, reasonable an (sic)/or compelling, relationship to any legitimate promotional scheme for the rank of sergeant, purpose or objective, in violation and derogation of due process of law and the equal protection of the laws guaranteed under the Fourteenth Amendment ... because it was not validated nor job related." ⁶ This case is not moot as we cannot state with assurance that there is no reasonable expectation that the alleged violation will recur, nor have interim relief or events completely and irrevocably eradicated the effects of the alleged violation. County of L. A. v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979).

II

To satisfy the prerequisite for an assertion of the constitutional requirements of due process, a party must implicate a protected interest in either life, liberty, or property. Board of Regents v. Roth, 408 U.S. 564, 569, 570, 571, 92 S.Ct. 2701, 2705, 2706, 33 L.Ed.2d 548 (1972). The district court disposed of appellants' due process claim by concluding that since state law does not grant appellants "a proprietary interest in a validated or otherwise certified job-related promotional examination, it is clear that no constitutionally protected interests are involved in the present matter." We believe that the district court's sole focus on a property interest without regard to a liberty interest was in error. Appellants' promotion was not a matter subject to the Board's grace, nor was it a matter left to the unfettered discretion of the Board. Compare, Board of Regents v. Roth, 408 U.S. at 567, 92 S.Ct. at 2704. As we explained in Part I, the promotion scheme was based on evaluation of merit, seniority, and competitive examination. While the state can require high standards of qualifications, these standards must have a rational connection with the applicant's fitness or capacity to be a police sergeant. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). Attaching unreasonable and arbitrary requirements is violative of constitutional due process. Smith v. Texas, 233 U.S. 630, 639, 34 S.Ct. 681, 683, 58 L.Ed. 1129 (1914); Smith v. Alabama, 124 U.S. 465, 480, 8 S.Ct. 564, 570, 31 L.Ed. 508 (1888); State v. Walker, 48 Wash. 8, 92 P. 775 (1907). ⁷ In the instant case, at issue is not the state's right to require an examination, but the rational relation between the particular questions formulating the examination and the functions of the job of police sergeant. We hold that appellants have sufficiently implicated a liberty interest in promotion which cannot be denied without constitutional due process. ⁸

While the state may test a person for the job, it may not test a person in the abstract. Constitutional due process guarantees that no person will be arbitrarily deprived by the government of his liberty to engage in any occupation. "(T)he liberty guaranteed by the Fourteenth Amendment ... without doubt ... denotes not merely freedom from bodily restraint but also the right of the individual ... to engage in any of the common occupations of life ...." Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), cited in Board of Regents v. Roth, 408 U.S. at 572, 92 S.Ct. at 2706; Hampton v. Mow Sun Wong, 426 U.S. 88, 102, 96 S.Ct. 1895, 1904, 48 L.Ed.2d 495 (1976); Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131 (1915). In Graves v. Minnesota, 272 U.S. 425, 47 S.Ct. 122, 71 L.Ed. 331 (1926), the Supreme Court upheld the constitutionality of a state statute prohibiting the practice of dentistry without a diploma from a dental college of good standing, as against the contention that the requirement violated constitutional due process. The Court did not uphold the requirement of a diploma per se, but rather the rationale for requiring a particular type of diploma in that case. As the Court stated, "clearly the fact that an applicant for a license holds a diploma from a reputable dental college has a direct and substantial relation to his qualification to practice dentistry." Id. at 428, 47 S.Ct. at 123 (emphasis added).

Similarly, at issue in the instant case is whether the particular promotion examination has a direct and substantial relation to appellants' qualifications to be police sergeants. ⁹ In Konigsberg v. State Bar of California, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961), (Konigsberg II ) the Supreme Court upheld the state's refusal to license an applicant to the bar because of his refusal to answer questions. Again Konigsberg II did not sanction the asking of any questions regardless of their rational relation to the functions of the profession. What was critical in Konigsberg II was that the particular questions at issue were found to be substantially relevant to the applicant's qualification and thus in accordance with due process guarantees. Appellants' assertion in the instant case is analogous to the assertion of an applicant for admission to the State Bar whose prior membership in the Communist party and his use of aliases were not rationally related to the qualifications required for membership in the legal profession as to serve as a rational basis for the state to deny him permission to take the bar exam. Schware v. Board of Bar Examiners, supra. In Schware the Supreme Court held that plaintiff had sufficiently asserted a liberty interest to employment guaranteed by the due process clause. ¹⁰

III

Normally in a case such as this, where only constitutional due process interests are sufficiently asserted, a plaintiff has the burden of moving forward and the ultimate burden of proving that the state-established requirements for the employment he sought are not rationally related to the functions of the job. ¹¹ The state is not constitutionally mandated to establish an examination as a requirement for promotion. Constitutional due process requires only that whatever requirements are established by the government must have a rational relation to the job's performance. Once the plaintiff puts into question the rationality of the requirements, the defendants may, but they are not constitutionally required to, articulate the rationality of the requirements by relying on the results of a professional validation study. There is no one method which is required for appropriately evaluating the relationship of an employment requirement to job performance. ¹² Washington v. Davis, 426 U.S. at 247, 96 S.Ct. at 2051.

The distinction elucidated between constitutional claims under the Fifth and Fourteenth Amendments and a Title VII claim, is crucial because, unlike under Title VII, the inquiry in the instant case, resting solely on alleged...