Pienta v. Village of Schaumburg, Ill., 82-1651

• Decision Date: 28 June 1983
• Docket Number: No. 82-1651,82-1651
• Citation: 710 F.2d 1258
• Parties: Robert PIENTA, et al., Plaintiffs-Appellees, v. VILLAGE OF SCHAUMBURG, ILLINOIS, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1258

710 F.2d 1258

Robert PIENTA, et al., Plaintiffs-Appellees, v. VILLAGE OF SCHAUMBURG, ILLINOIS, et al., Defendants-Appellants.

No. 82-1651.

United States Court of Appeals Seventh Circuit.

Argued Feb. 18, 1983.

Decided June 28, 1983.

Jack M. Siegel, Chicago, Ill., for defendants-appellants.

Harvey Grossman, The Roger Baldwin Foundation, Chicago, Ill., for plaintiffs-appellees.

Before CUMMINGS, Chief Judge, PELL and POSNER, Circuit Judges.

CUMMINGS, Chief Judge.

In April 1981, plaintiffs filed their First Amended Complaint under 42 U.S.C. Sec. 1983. Three of the plaintiffs, Robert Pienta, Theodore Pryka and Vincent DeGeorge, ¹ were officers employed by the Village of Schaumburg, Illinois, Police Department, and plaintiff Richard McGraw was a civilian employee of that Department. Defendants were the Village of Schaumburg, its Chief of Police, and three members of its Fire and Police Commission. Plaintiffs sought a declaratory judgment that parts of two Police Department rules (reproduced in the Appendix hereto)--Administrative General Order 79-9 governing sick leave, and General Order 79-59 governing injury-on-duty leave--facially violated their First, Fourth, Fifth, Ninth and Fourteenth Amendment rights. They also sought an injunction against enforcing those regulations as well as $20,000 compensatory and $50,000 punitive damages for each plaintiff.

On February 5, 1982, the district court granted plaintiffs' motion for summary judgment. 536 F.Supp. 609. The Memorandum Opinion (App. 32) noted that the plaintiffs had been on injured-on-duty leave for varying periods from three to six months during which they were confined to their homes pursuant to the regulations. Plaintiffs and their families were also subjected to surveillance inside and outside their homes, frequent telephone calls and unannounced visits by Police Department personnel. The court decided that the regulations infringed plaintiffs' right to vote, right to free exercise of religion, and right to travel, and that an infringement of those fundamental rights must be justified by compelling state interests. Judge Leighton concluded that the state's interests in enacting the regulations were not compelling, but even if they were, the regulations were overbroad and unnecessarily infringed upon constitutionally protected activity. In addition to declaratory relief, the judgment under Civil Rule 54(b) granted a permanent injunction but reserved plaintiffs' claims for damages, costs and attorney fees "for negotiation between the parties or, if necessary, adjudication by the court" (App. 45). We affirm.

The morale-chilling regulations invalidated by the court below confine police and civilian employees of the Schaumburg Police Department on injury or sick leave to their residences. Those injured on duty but not hospitalized may only leave home when necessary to go to a hospital, visit a doctor In effect, these regulations put plaintiffs under house arrest until their return to work. Their rights to vote, to exercise freely their religion by church attendance, to go to court, to attend political or family gatherings, and to travel were infringed. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (vote); Abington School District v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844 (religion); Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 1328, 22 L.Ed.2d 600 (travel); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (association). See also Gissi v. Codd, 391 F.Supp. 1333 (E.D.N.Y.1974) (in similar circumstances, plaintiff has right to visit attorney when necessary, and visit children at least once every two weeks). Since these regulations prohibit the exercise of constitutional rights, plaintiffs have standing to challenge them without attempting to disobey. Muller v. Conlisk, 429 F.2d 901, 903 (7th Cir.1970).

                or secure medicine and even then only after leaving notice with a Police Department official as to the name and address of the doctor, hospital or pharmacy.  They also cannot change their place of recuperation or leave Illinois without authorization from the Chief of Police.  Similar restrictions are imposed upon those on sick leave, except if a scheduled day off immediately follows a sick day, "the residency requirement will end at 0001 hours on the scheduled day off."    Those stricken with heart attacks, major operations, broken limbs or other serious illness or injury may be permitted to leave their residences during recuperation if their Administrative Division Commander, with the approval of the Chief of Police, grants such permission
                

Defendants apparently concede that the regulations infringe some of plaintiffs' constitutional rights. ² They argue, however, that the rights infringed are not absolute, and that state regulation of the rights of a public employee must be evaluated under the rational basis test of Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708. This Court has already held that the test to be applied in determining the constitutionality of a government regulation of a public employee depends on the nature of the right affected. Division 241 Amalgamated Transit Union v. Suscy, 538 F.2d 1264, 1266 (7th Cir.1976), certiorari denied, 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d 632. If a plaintiff's claim is grounded solely in the general liberty language of the due process clause as in Kelley, supra, the state need only demonstrate a rational relationship between the regulation and a legitimate state interest. If the public employee challenges limitations on rights specifically protected by other parts of the Constitution, the state must demonstrate that the regulation is necessitated by a compelling state interest and is narrowly tailored to meet that objective. Suscy, supra; contra, Loughran v. Codd, 432 F.Supp. 259, 263 (E.D.N.Y.1976) (applying rational basis test to police regulation).

Because several of the rights infringed by the regulations are protected by specific provisions of the Bill of Rights, defendants must demonstrate a compelling state interest to justify the regulations. See Elrod v. Burns, 427 U.S. 347, 362-363, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547. Defendants' stated interests in avoiding abuse of the liberal sick leave policy and protecting the public fisc; efficiently allocating manpower by fostering an expeditious return to work and requiring those on leave to stay by the phone in case they are needed; and maintaining the morale of those who must fill in for those on leave, do not rise to the level of compelling interests. In addition, these interests can surely be achieved without a blanket prohibition on Finally, even under the rational basis test these regulations are of questionable validity. Defendants' basic argument is that an employee who is too sick or injured to report even for restricted duty is by definition too sick or injured to leave the house for any purpose--to go to court, to church, to a polling place, to a family picnic, or to respond to an emergency call on a personal matter. Yet an employee injured with a broken arm may not be able to report even for restricted duty desk jobs, but he is perfectly able to go to church or to court on a parking ticket. An employee with the flu may not qualify even for restricted duty but is perfectly able to leave the house to pick up his child at school if she gets sick or injured and suddenly has to come home. In addition, enforcement of the policy will not necessarily serve the Department's stated purpose of preventing abuse so as to save money and conserve manpower. Because the regulations do not require a doctor's certificate for sick leave for less than three days, for example, the dishonest employee can feign illness for such time and simply collect sick pay as long as he stays in his home. The "stay at home" requirement thus...