Kammerer v. Board of Fire and Police Com'rs of Village of Lombard

• Decision Date: 28 January 1970
• Docket Number: No. 41757,41757
• Citation: 256 N.E.2d 12,44 Ill.2d 500
• Parties: John J. KAMMERER, Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF the VILLAGE OF LOMBARD et al., Appellees.
• Court: Illinois Supreme Court

Page 12

256 N.E.2d 12

44 Ill.2d 500

John J. KAMMERER, Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF the VILLAGE OF LOMBARD et al., Appellees.

No. 41757.

Supreme Court of Illinois.

Jan. 28, 1970.

Rehearing Denied March 23, 1970.

Richard F. McPartlin, Jr., Chicago, and William E. Corrigan, Wheaton, for appellant.

Walter C. Wellman, Lyons, and Peregrine, Stime & Henninger, Wheaton, for appellees.

SCHAEFER, Justice.

The plaintiff, John J. Kammerer, had been a patrolman on the Village of Lombard police force since 1958. He was dismissed from the force after a hearing before the Board of Fire and Police Commissioners of the Village upon charges that he had violated certain rules and regulations of the police department. In this administrative review action, the circuit court of Du Page County affirmed the order of the Board, and the plaintiff has appealed directly to this court. His contentions are that he was denied the assistance of counsel in his hearing before the Board and that he was forced to testify against himself in violation of his constitutional rights under the fifth and fourteenth amendments to the United States constitution and sections 2 and 10 of article II of the Illinois constitution, S.H.A.

Some of the charges against the plaintiff were dismissed at the conclusion of the hearing before the Board. Those which were sustained were that he had disobeyed the order of a superior officer to accept an issue of mace; violated a rule of the police department by improper absence from duty; and violated other rules of the department, as well as a rule of the Federal Communications Commission and a section of the Illinois Criminal Code (Ill.Rev.Stat.1965, ch. 38, par. 21--1), in that he kicked and damaged a squad car while he was off duty and, during the same incident, made an unauthorized transmission over the car radio impugning the character of the chief of police.

Officer Kammerer was suspended from duty as of July 19, 1967. He received notice of the charges filed against him on July 20, 1967; supplementary charges were served on July 26, 1967. The hearing on the charges was originally set for August 12, 1967. Kammerer wrote to the Board on August 7, 1967, stating that he would be unable to appear on August 12 because 'I have not been able, financially, to secure the services of an attorney.' He further stated that he hoped to be able to secure legal assistance 'within the week,' and requested a three-to-five-week continuance 'depending on the availability of an attorney and my ability to secure his services.'

Kammerer appeared Pro se before the Board on August 12 and offered to proceed without counsel if the chief of police would agree to do the same. When the chief refused this offer, Kammerer, who was employed elsewhere on a part-time basis during his suspension, stated that he had discussed retainer fees with several attorneys and that 'it would take me at least two, possibly three weeks for me to save up the money necessary to have a retainer.' He said that his own personal attorney had declined to handle the case for 'reasons which are basically political.' The Board urged him to obtain legal assistance and suggested that he contact police associations, the Legal Aid Society, or the Du Page County Bar Association. Over his objection, the Board continued the hearing for one week until August 19, 1967, to permit him to secure counsel.

On August 19, the plaintiff stated that he had retained an attorney to represent him but that his attorney would be unable to appear at the hearing on that date. Although his attorney had assured him that he would arrange for an appropriate continuance, none of the members of the Board had received any request for a continuance. Over Kammerer's objection, the Board concluded that he had been given sufficient time to obtain counsel and decided to proceed with the presentation of evidence. Kammerer refused to plead to the charges against him without counsel, so a plea of not guilty was entered for him. He was permitted to reserve an opening statement until his retained counsel could be present. He was also granted permission to cross-examine witnesses and was assured that if and when his attorney appeared at a subsequent hearing he would be allowed to recall witnesses for further cross-examination. With this understanding, the plaintiff conducted his own defense, including the cross-examination of all the witnesses against him. At the conclusion of the hearing on August 19 the matter was continued until August 30.

On August 30 the plaintiff's attorney did not appear, although he had been notified of the date and had received a transcript of the testimony heard on August 19. During the proceedings on August 30, Officer Kammerer continued to conduct his own defense and to cross-examine witnesses. He made no further objection or request for a continuance.

The hearing was resumed on September 2, 1967. Officer Kammerer's attorney still did not appear. Officer Kammerer called six witnesses in his own behalf and examined them extensively. At the conclusion of all the evidence, he made a closing argument before the Board in which he stated: 'First of all, let me say that I ultimately chose to go without counsel in this matter insomuch as we went this far, not purely on my own. I explained it was financial. I had, as you know, contacted an attorney and it was dependent upon my supplying him with a retainer.'

He contends in this court that by refusing to grant him a three-to-five-week continuance to obtain an attorney, the board forced him to proceed through the hearing without counsel in violation of his due-process right to a fair trial. We do not agree. It is true that 'Administrative as well as judicial proceedings are governed by the fundamental principles and requirements of due process of law.' (Brown v. Air Pollution Control Bd., 37 Ill.2d 450, 454, 227 N.E.2d 754, 756). But the Board was under no constitutional obligation to appoint counsel for Officer Kammerer in the disciplinary proceeding if he could not afford, or for other reasons could not or did not obtain, counsel for himself. Whether and how long a respondent may delay a proceeding of this kind in order to secure the counsel of his choice is primarily within the discretion of the Board. People ex rel. Mercer v. Zearing, 305 Ill. 503, 137 N.E. 481; Leathers v. Leathers, 13 Ill.2d 348, 148 N.E.2d 773; Brown v. Air Pollution Control Bd., 37...