Mandarino v. Village of Lombard

• Decision Date: 17 December 1980
• Docket Number: No. 80-190,80-190
• Citation: 46 Ill.Dec. 624,92 Ill.App.3d 78,414 N.E.2d 508
• Parties: , 46 Ill.Dec. 624 Joseph MANDARINO, Plaintiff-Appellant, v. VILLAGE OF LOMBARD, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 508

414 N.E.2d 508

92 Ill.App.3d 78, 46 Ill.Dec. 624

Joseph MANDARINO, Plaintiff-Appellant, v. VILLAGE OF LOMBARD, Defendant-Appellee.

No. 80-190.

Appellate Court of Illinois, Second District.

Dec. 17, 1980.

Donahue & Duffy, John F. Donahue, Oak Brook, for plaintiff-appellant.

Klein, Thorpe & Jenkins, Sarah A. Hansen, Chicago, Ancel, Glink, Diamond & Murphy, Chicago, for defendant-appellee.

LINDBERG, Justice:

Plaintiff, Joseph Mandarino, filed this action in the Circuit Court of DuPage County seeking a declaratory judgment that his employment as chief of police of the Village of Lombard had been wrongfully terminated and that a certain ordinance of the defendant village was contrary to section 10-2.1-4 of the Municipal Code (Ill.Rev.Stat. 1979, ch. 24, par. 10-2.1-4), and for injunctive relief. The circuit court allowed defendant's motion for judgment on the pleadings and entered judgment in favor of defendant. Plaintiff appeals.

The few pertinent facts are largely undisputed. Plaintiff was hired as chief of police by the village manager of the defendant village on November 28, 1977, pursuant to section 2.40.020 of the Lombard Village Code which provides in pertinent part that "(t)he Village Manager is authorized to appoint, suspend or discharge the Chief of Police without the consent of the Board of Trustees." On June 11, 1979, plaintiff received written notice from the village manager that his employment as chief of police was terminated; no written charges were filed against him, nor was board approval obtained prior to his termination. Plaintiff's subsequent requests for specification of charges and a public hearing were refused.

In his complaint filed on September 11, 1979, plaintiff alleged that there is a conflict between section 2.40.020 of the Lombard Village Code and section 10-2.1-4 of the Illinois Municipal Code (Ill.Rev.Stat. 1979, ch. 24, par. 10-2.1-4), governing the hiring and firing of police chiefs; and that the village ordinance violates the due process and equal protection clauses of the Illinois Constitution (Ill.Const. 1970, Art. I, § 2). Following a hearing held on January 9, 1980, the trial court granted defendant's motion for judgment on the pleadings. This appeal followed.

Plaintiff first contends that section 10-2.1-4 of the Illinois Municipal Code (Ill.Rev.Stat. 1979, ch. 24, par. 10-2.1-4) preempts section 2.40.020 of the Lombard Village Code. Section 10-2.1-4 of the Code sets forth the procedure for appointment and discharge of the chief of police in municipalities which have appointed a board of fire and police commissioners. As amended effective October 1, 1977, section 10-2.1-4 requires that the appointing authority file the reasons for removal or discharge with, the corporate authorities, and further that such discharge is not effective unless confirmed by a majority vote of the corporate authorities.

Section 2.40.020 of the Lombard Village Code, as noted earlier, authorizes the village manager to hire and terminate the police chief at will, without written notice of the charges, hearing or approval of the board of trustees. As plaintiff points out, the ordinance was enacted by the defendant village pursuant to its home-rule powers on November 5, 1976, prior to the amendment of section 10-2.1-4 of the Municipal Code. Subsequent to this amendment, however, defendant renewed the ordinance in May, 1979. Plaintiff therefore argues that his termination as chief of police was controlled by the amended statute, and not the village ordinance, inasmuch as the former is clearly intended to afford the police chief an opportunity to have written charges filed against him and a review of the village manager's decision by the corporate authority.

It is defendant's position that the village ordinance supercedes the Illinois Statute governing procedures for hiring and firing the chief of police. Citing Stryker v. Village of Oak Park (1976), 62 Ill.2d 523, 343 N.E.2d 919, defendant argues that since the statute in question contains no restrictive language, and its subject matter has been held not to be of state-wide concern, it cannot preempt the power of Lombard, a home-rule unit, to enact its own procedures for discharging its police chief (appellee's brief, at p. 3). We agree.

Article VII, § 6(a), of the 1970 Constitution, confers a broad grant of powers on home-rule units:

"(a) * * * Except as limited by this Section, a home-rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt."

The supreme court has consistently held that "a home rule unit's exercise of its power will supercede any conflicting pre-1970-Constitution legislation." (See, e. g., Sommer v. Village of Glen View (1980), 79 Ill.2d 383, 392, 38 Ill.Dec. 170, 174, 403 N.E.2d 258, 262, and cases cited therein; County of Cook v. John Sexton Contractors Co. (1979), 75 Ill.2d 494, 513, 27 Ill.Dec. 489, 495, 389 N.E.2d 553, 559, and City of Rockford v. Gill (1979), 75 Ill.2d 334, 340, 26 Ill.Dec. 669, 672, 388 N.E.2d 384, 387.) Moreover, it has repeatedly been held that a statute enacted subsequent to the Constitution and which purports to limit home-rule powers must, to that effect, be specific. (City of Rockford v. Gill, 75 Ill.2d at 341, 26 Ill.Dec. at 672, 388 N.E.2d at 387; Stryker, 62 Ill.2d at 528, 343 N.E.2d at 923; Mulligan v. Dunne (1975), 61 Ill.2d 544, 550, 338 N.E.2d 6, 11; Rozner v. Korshak (1973), 55 Ill.2d 430, 435, 303 N.E.2d 389, 392; Village of Hoffman Estates v. Union Oil Co. (1977), 56 Ill.App.3d 52, 56, 13 Ill.Dec. 277, 280, 370 N.E.2d 1304, 1307.) The present section 10-2.1-4 nowhere denotes a specific purpose to limit home-rule powers and we thus do not so interpret section 10-2.1-4. Accordingly, we conclude that section 10-2.1-4 has no restrictive effect on home-rule powers. See Aurora Pizza Hut, Inc. v. Hayter (1979), 79 Ill.App.3d 1102, 1108-09, 35 Ill.Dec. 200, 205, 398 N.E.2d 1150, 1155; Village of Hoffman Estates v. Union Oil Co., 56 Ill.App.3d at 56, 370 N.E.2d at 1307.

Our conclusion is further supported by section 1106 of "An Act to revise the law in relation to the construction of statutes" (Ill.Rev.Stat. 1979, ch. 1, par. 1106), which provides:

"No law enacted after Jan. 12, 1977, denies or limits any power or function of a home rule unit, pursuant to paragraphs (g), (h), (i), (j), or (k) of Section 6 of Article VII of the Illinois Constitution, unless there is specific language limiting or denying the power or function and the language specifically sets forth in what manner and to what extent it is a limitation on or denial of the power or function of a home rule unit."

As defendant points out in his brief, section 10-2.1-4 in its current form became effective on October 1, 1977, and contains "no specific language limiting or denying the power or function" of home-rule units.

Plaintiff also contends that the village ordinance cannot supercede section 10-2.1-4 because the procedure for appointment and discharge of chiefs of police is a matter of statewide concern. Although section 6(a) of Article VII gives a home-rule unit authority to exercise only those powers and to perform only those functions pertaining to its government and affairs (Baum, A Tentative Survey of Illinois Home Rule (Part I): Powers and Limitations, 1972 U.Ill.L.F. 137), the Committee on Local Government explained the intended limitation in this manner:

" 'It is clear * * * that the powers of home-rule units relate to their own problems, not those of the state or the nation * * *.

(Home rule powers) should not extend to such matters as divorce, real property law, trusts, contracts, etc. which are generally recognized as falling within the competence of state rather than local authorities.' " 1972 U.Ill.L.F. at 153.

In Stryker, the court rejected the argument that the procedure for discharge of a police chief is a matter of statewide concern. 62 Ill.2d at 527-28, 343 N.E.2d at 922.

For these reasons, we hold that section 10-2.1-4 is not a limitation on the home-rule village's power to adopt different procedures for discharging its police chief.

Plaintiff next contends that his removal as police chief by the village manager was a denial of equal protection of the laws. Plaintiff points out that there are various procedures for the discharge of a police chief in Illinois, depending both upon the type of municipality and whether it comes under the Civil Service Act. The essence of plaintiff's argument, therefore, is that he is being treated differently from other police chiefs in Illinois insofar as his substantive rights to written notice of the charges and hearing and review of the decision by corporate authorities are concerned. Citing Kropel v. Conlisk (1975), 60 Ill.2d 17, 322 N.E.2d 793, and Palcek v. City of Chicago Heights (1979), 74 Ill.App.3d 702, 30 Ill.Dec. 871, 393 N.E.2d 1218, plaintiff maintains that the various statutory provisions must be read in pari materia to obviate equal protection problems. We disagree.

The supreme court in Kropel ruled that the...