holding an “unelaborated charge of ‘incompetence, neglect of duty and malfeasance of office’ ” insufficient to make out a due process claim
How later courts described this case
- holding an “unelaborated charge of ‘incompetence, neglect of duty and malfeasance of office’ ” insufficient to make out a due process claim
- no violation of liberty interest because defendant’s “unelaborated charge of ‘incompetence, neglect of duty and malfeasance of office’ [was] of a different order of magnitude than charges of dishonesty, immorality, disloyalty, Communism, subversive activities, alcoholism or narcotics violations.”
- "An unelaborated charge of 'incompetence, neglect of duty and malfeasance of office' is of a different order of magnitude than charges of dishonesty, immorality, disloyalty, Communism, subversive activities, alcoholism or narcotics violations.”
- discussing Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)
Written by the judges who cited it.
The opinion
STEVENS, Circuit Judge
(concurring).
Since I was a member of the panel which, on June. 27, 1973, declined to vacate Judge Poos’ preliminary injunction, and since, as Judge Pell correctly points out, the rationale of that decision is not consistent with our holding today, candor requires that I explain the change in my views.
Quite frankly, when the preliminary injunction question was first before us, I did not fully appreciate the impact of the Illinois Supreme Court decisions construing the scope of the Governor’s removal power on the question whether a member of the Liquor Control Commission has a property interest in his job. I therefore incorrectly assumed that the legislative provision for a six-year term gave Adams such a property interest. On that premise, he could not have been removed without due process.
The question whether Adams had a property interest in his position as a member of the Liquor Control Commission is, of course, purely a question of Illinois law. It is not for us to appraise the wisdom of the State’s choice between giving such a Commissioner fixed tenure, on the one hand, or making his employment terminable at the unfettered discretion of the Governor, on the other. It is simply our job to identify the choice that Illinois has made, and to respect that decision. As Judge Cummings has demonstrated, as a matter of Illinois law Adams could be removed whenever the Governor saw fit to recite the magic words, “incompetence, neglect of duty, or malfeasance in office.” Adams was therefore not deprived of an interest in property within the meaning of the Fourteenth Amendment. 1
*1010 The question whether the Governor has deprived Adams of his “liberty” within the meaning of the Fourteenth Amendment presents a different issue. I agree with Judge Cummings’ analysis of that issue but would add two brief comments.
First, whether a word such as “malfeasance” creates the kind of stigma that concerned the Court in cases like Constantineau 2 may depend largely upon the context in which the word is used. If, for example, a finding of “malfeasance” disqualified a law school graduate from admission to practice, or resulted in the forfeiture of a prison inmate’s good time credits, a liberty interest would be impaired. But if the term is used in a context in which important political figures routinely use uncomplimentary language about one another — a context in which First Amendment interests override a State’s interest in enforcing its own law of defamation — it would be most anomalous to conclude that the subject of the robust comment has been deprived of an interest which at once is protected by the Fourteenth Amendment to the Federal Constitution but which the First Amendment prohibits the State from protecting.
Second, the fact that a policy decision by the Governor of a sovereign State is involved raises particularly difficult questions about the kind of procedure that would be required if an interest in liberty were impaired. Quite obviously, if the Due Process Clause does require a hearing, the purpose of that hearing and the standards to be applied in testing the Governor’s action must be defined. 3 With respect to this kind of gubernatorial action, almost any form of hearing that I can envision either would be meaningless — nothing more than an opportunity to test the firmness of the Governor’s prior decision — or else would involve an excessive invasion by the federal judiciary into the making of policy by the State. 4 These considerations buttress my conviction that Judge Cummings’ analysis is not only sound legally, but also gives appropriate consideration to the respect which one sovereign owes to another in our federal system.
In sum, I agree completely with Judge Cummings’ cogent analysis of the legal issues which are presented, and I concur in his opinion.
. The statutory provision of a six-year term certainly creates the impression that the Commissioner has a property interest in his position. The illusion is dispelled, however, by a federal analogy. The President might *1010 appoint, with the advice and consent of the •Senate, an Attorney General, to serve for a, period of four years. Such a four-year appointment, however, would not limit in any respect the Executive’s unqualified power to remove a member of his cabinet at will. In effect, as I now understand the Illinois Constitution and statutes, a member of the Liquor Control Commission is comparable to a member of the Executive’s cabinet, and, although appointed for a specific term, is nevertheless removable at will by the Governor. He therefore has no greater “property” interest in his job than does the Attorney General of the United States.
. Wisconsin v. Constantineau, 400 U.S. 433 , 91 S.Ct. 507 , 27 L.Ed.2d 515 .
. See Shirck v. Thomas, 447 F.2d 1025, 1028 (7th Cir. 1971) (dissenting opinion).
. It is possible that a sort of “name-clearing hearing” would be desirable both to provide the Commissioner with an opportunity to explain his position and also to inform the public about an important issue. It is my impression, however, that it is the First Amendment, not the Fourteenth, which performs the office of keeping the channels of communication and public debate open.