Kaske v. City of Rockford

JUSTICE MORAN, concurring in part and dissenting in part:

I disagree with that portion of the majority opinion which holds that police officers cannot be compelled to submit to a polygraph examination. The majority reasons that “[i]t would be inconsistent for us to find that the polygraph results are not admissible in front of the board of fire and police commissioners *** and then hold an officer’s refusal to submit to such a test could be grounds for a disciplinary action.” (96 Ill. 2d at 310-11.) For a number of reasons I consider unfounded the concern over this supposed inconsistency.

Polygraph evidence is disallowed during an administrative hearing or court proceeding because the reliability of the examination results has not been sufficiently established. Consequently, it would be improper to subject an individual to the substantial risk that the fact finder would consider this evidence conclusive on the issue of his or her guilt or innocence. (People v. Baynes (1981), 88 Ill. 2d 225 .) However, there is a distinction between the use of polygraph examinations as evidence upon which the outcome of a proceeding may depend and their use as an investigatory tool. “Such tests are recognized as having some value in investigation, even though they are not yet sufficiently reliable to be admitted in evidence.” McCain v. Sheridan (1958), 160 Cal. App. 2d 174, 177 , 324 P.2d 923, 926 ; see, e.g., Seattle Police Officers’ Guild v. City of Seattle (1972), 80 Wash. 2d 307 , 494 P.2d 485 (en banc).

As an investigatory tool, police chiefs utilize polygraph examinations to narrow the focus of inquiry and, frequently, to exonerate the accused officer. The majority’s decision will serve only to impede and lengthen these investigations while at the same time allowing individuals to perform their duties in the face of other officers’ and the public’s distrust. No one can possibly benefit when the public loses respect for those individuals sworn to uphold the law. Further, both criminal suspects and complainants are frequently requested to take polygraph tests as an aid in investigations. It is incongruous that officers may refuse to submit to the very examinations which they expect other citizens to undergo.

It also seems to me that today’s opinion disregards the fact that police officers are not simply ordinary citizens. Rather, they are members of a “paramilitary [institution] in which systematic authority and discipline are required to ensure orderly and effective law enforcement.” (E.g., Piotrowski v. State Police Merit Board (1980), 85 Ill. App. 3d 369, 376 ; cf. Gardner v. Broderick (1968), 392 U.S. 273 , 20 L. Ed. 2d 1082 , 88 S. Ct. 1913 (police officers, as trustees of the public interest, can be dismissed for failing to answer questions relating to official duties) (dicta).) I consider it anomalous that, although officers have a sworn duty to cooperate in the investigation of crime, they now have the unfettered right to obstruct those investigations.

The majority relies upon two decisions for the proposition that police officers may not be required to submit to a polygraph examination. (Burrough of Elmwood Park v. Fallon (1974), 128 N.J. Super. 51 , 319 A.2d 72 ; Stape v. Civil Service Com. (1961), 404 Pa. 354 , 172 A.2d 161 .) Of these, Stape was essentially “overruled” by subsequent legislation. (See 18 Pa. Cons. Stat. Ann. sec. 7321 (Purdon 1973) (law enforcement agencies are exempted from the statutory ban on the administration of polygraph examinations).) On the other hand, numerous cases have recognized a police chief’s inherent authority to compel submission to polygraph tests in an effort to maintain an efficient and honest police force. (E.g., Seattle Police Officers’ Guild v. City of Seattle (1972), 80 Wash. 2d 307 , 494 P.2d 485 (en banc); Sorbello v. City of Maplewood (Mo. App. 1980), 610 S.W.2d 375 ; Eshelman v. Blubaum (1977), 114 Ariz. 376 , 560 P.2d 1283 ; Roux v. New Orleans Police Department (La. App. 1969), 223 So. 2d 905 , cert. denied (1970), 397 U.S. 1008 , 25 L. Ed. 2d 421 , 90 S. Ct. 1236 ; McCain v. Sheridan (1958), 160 Cal. App. 2d 174 , 324 P.2d 923 .) Our appellate court has also held that officers may be disciplined for failure to submit to the examination. Piotrowski v. State Police Merit Board (1980), 85 Ill. App. 3d 369 ; Myers v. Cook County Police & Corrections Merit Board (1978), 67 Ill. App. 3d 223 ; Buege v. Lee (1978), 56 Ill. App. 3d 793 ; Williams v. Police Board (1972), 8 Ill. App. 3d 345 ; Coursey v. Board of Fire & Police Commissioners (1967), 90 Ill. App. 2d 31 .

For the reasons stated herein, I believe the aforementioned cases represent the better view, and would accordingly affirm the judgment of the appellate court in cause No. 55501. However, I do concur with the majority in cause No. 55599.

JUSTICE UNDERWOOD joins in this partial concurrence and partial dissent.