Petition — City of Rockford v. Kaske

ne me ©

Office - supreme Pourt nS

, FILED

83-22

runs ju, 7 198

IN THE ee caer ie

SUPREME COURT OF THE UNITED STATES

October TERM 1983

CITY OF ROCKFORD, a Municipal Corporation,

and DELBERT PETERSON, individually and as

Chief of Police, Rockford Police Department,

Petitioners,

vs.

JOHN KASKE and PAUL A. TRIOLO,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

CHARLES E. BOX, Legal Director*

KATHLEEN ELLIOTT, City Attorney

CITY OF ROCKFORD DEPARTMENT OF LAW

425 E. State St., Suite 504

Rockford, IL 61104

(815) 987-5549

Attorney for Petitioner

*Counsel of Record

Date: July 7, 1983

cle

QUESTIONS PRESENTED

1. Whether the order of a police chief

to a police officer to undergo a polygraph

examination regarding a question of

serious misconduct, such as the use of

illegal drugs, violates the officer's

Fifth Amendment or other constitutional

rights.

2. Whether the Supreme Court of

Illinois violated the doctrine of separa-

tion of powers in adopting a rule banning

the executive branch from disciplining

police officers who disobey an order from

a superior to undergo a polygraph test

in the absence of a statute prohibiting

such disciplinary action, or evidence

and a finding that such disciplinary actions

are a violation of the police officers'

Fifth Amendment or other constitutional

rights.

afte

3. Whether a police officer has a

constitutionally protected property interest

in his continued employment, and does this

interest outweigh the public interest in

maintaining the integrity of public

employees so as to prohibit a police chief

from requiring a police officer to undergo

a polygraph test regarding alleged mis-

conduct.

-iii-

TABLE OF CONTENTS

QUESTIONS PRESENTED ....+++ee«e &

TAREE OF GUEROEe sk tet 6 ee eee

TABLE OF AUTHORITIES

OPINIONS BELOW

CONSTITUTIONAL PROVISIONS INVOLVED

V

2

JURISDICTIONAL STATEMENT ...... 3

3

STATEMENT OF THE CASE 5

- REASONS FOR GRANTING THE WRIT:

z:

THE ORDER OF A POLICE CHIEF TO A POLICE

OFFICER TO UNDERGO A POLYGRAPH TEST ON A

QUESTION OF SERIOUS MISCONDUCT, SUCH AS

USE OF ILLEGAL DRUGS, DOES NOT VIOLATE

THE POLICE OFFICER'S FIFTH AMENDMENT OR

CONSTITUTIONAL RIGHTS ws 8

bbs

THE SUPREME COURT OF ILLINOIS VIOLATED

THE DOCTRINE OF SEPARATION OF POWERS IN

ADOPTING A RULE BANNING THE EXECUTIVE

BRANCH FROM TAKING DISCIPLINARY ACTION

AGAINST POLICE OFFICERS WHO DISOBEY AN

ORDER FROM A SUPERIOR TO UNDERGO A POLY-

GRAPH TEST, IN THE ABSENCE OF A STATUTE

PROHIBITING SUCH DISMISSAL, OR EVIDENCE

AND A FINDING THAT SUCH DISMISSALS “ARE

A VIOLATION OF THE POLICE OFFICERS'

FIFTH AMENDMENT OR OTHER CONSITUTIONAL

7: eae 14

-iv-

Ill.

WHETHER A POLICE OFFICER HAS A CONSTITU-

TIONALLY PROTECTED PROPERTY INTEREST

IN HIS CONTINUED EMPLOYMENT, AND IF SO,

DOES THIS INTEREST OUTWEIGH THE PUBLIC

INTEREST IN MAINTAINING THE INTEGRITY

OF PUBLIC EMPLOYEES SO AS TO PROHIBIT A

POLICE CHIEF FROM REQUIRING A POLICE

OFFICER TO UNDERGO A POLYGRAPH TEST at

GARDING ALLEGED MISCONDUCT .... . 21

APPENDIX:

Order of the Illinois Supreme Court,

Jamenny 24, 1963 - . + «© «+ en

Order denying the oe rete ee

April 8, 1983 ‘ee . .B-

Opinion of the Second District ——

Court, August 12, 1981 .. . .C-1

-Ve

TABLE OF AUTHORITIES

Cases

Barker v. Hardway, 399 F.2d 638 (4th Cir.

1968) cert. Tented 394 U.S. 905, 89 S.Ct.

Be go 8 & .) er rere .

Buege v. Lee, 56 I1l1.App. 3d — 372 N.E.

2d 427 (2nd Dist. 197 7 5

Burrowgh of Elmwood Park v. Fallon, 128

N.J.Super. 51, 319 A.2d 72 C(IS7Z) . 12

Buttny v. Smiley, 281 F.Supp. 280, 285, 286

(D. aSIS- 563} a aoe en eee

Charles v. Wilson, 52 I1l.App.2d 14, 25, 26,

Sk we gy ae |’) ees |

Clayton v. New Orleans Police Dept., 236

So.2Zd 548 ta, § 1970), cert.den. 256

La. 867, 239 So.2d 363 Tes es

Coffin v. Retcharé 143 F.2d 443, 445, 155

irc. 1945) cert. denied,

325, U.S. 887, “65 S.Ct. 1568, 89 L.Ed. 2001

(1945) Pree Cake Ge et 5 atk ie

Conte v. Horcher, 50 111.App.3d 151, 154,

8 Til.Dec. 329, 365 N.E.2d 567 (1977) .18

Coursey v. Board of Fire & Police Com'rs

of Skokie, 90 11l.App.2d 31, G3, 256 N.E.

= 2) ip ian riSS |

Creadeur v. Department of Public Safety,

Div. of State Police, 364 50.20 Ld» :

(La. sibs « 8 6 2.0 6 6 Se

Decatur v. Paulding, 14 Pet. 497, 516, are

-vi-

Dickey v. Alabama State Bd. of Educ., 273

F.Supp. ols, OLO (M.D. Ala. i. S

Dieck v. Department of Police, 266 So.2d

500 (La. App. 1972). kc eee ue

Dolan v. IE 76 Mise.2d 151, 348 m.t.8,.

Engel Vv. worst ee 124 N.J.Super. 307,

Eshelman v. Blubauam, 114 Ariz. 376, 560 ft

pp. , ‘ i tae tas

Esteban v. Central iit pee College,

GI5 F.2d 1077, 1L0ed (eth cir. 1969). as

Farmer v. City of Fort Lauderdale, 12

So.24 a as wee

Fichera v. State Personnel Board, 217 Cal.

pp. : al.Reptr. st Dist. 13

1963) . 4 oe eee ee ae

Frazee v. Civil Service Board. 170 Cal. 198,

: st 959)

candy Vv. State, 607 P.2d tee anes fea: 19

gare Vv. Broderick. 392 U.S. 273, 20 L.

, t. 1913 (1968) .. 8, 23

Gulden ve McCorkle, 680 F.2d 1070, 1076

cert. denied February 22,

1983, 51. U.S. Law Week 3611

Jones v. State Bd. of Educ., 279 F.Supp.

: .D. Tenn. ), aff'd 409 F.2d

Dae eee Gee. BPOOPs 6 6 cs tw oe ee se 28

Kaske and Triolo, et al. v. City of

Rockrord, etc., et al., 96 111,20 298

T1983) . . . . . . .

- 2

-vii-

Kilbourn v. Thome son, 193 U.S. 168, 190, 26

ee SUR ll ote Cee ee

Knuckles v. Prasse, 9 F, endo 1036 (E.D.

Penn. 1969) ary . 18

Larson v. Domestic & Foreign core. 237 U.S.

i . ‘ P je

Long v. Parker, 390 F.2d 816, 820 abies

“s- i68) 2h

McCain v. Sheridan, 160 Cal.App.2d 174, 324

Se wees Bee? se 6 ee BB

Molino v. Board of Public Safety, 154 ee

Piotrowski v. State Police Merit Board

85 Il1l1.App.3d 369, 376 (1980) ... 23

Roux v. New Orleans Police Dept., 223

30.20 905 (La.App. 1969) cert. den. 254

La. 815, 227 So.2d 7 cert.den. 397 U.S.

- ie j . sp a ee a

Seattle Police Officers' Guild v. Seattle,

80 Wash. 2a 307, 494 P.2d 235 tlyras 13, 18

Sewell v. Pegelow, 291 F.2d 196, 197

(4th Cir. 1961) a ae 19

Sorbello v. Maplewood, 610 S. W. od 375

(Mo. App. 1980) .

Springer v. Government of Philippine

Ye lande; 277 U.S. 185, 201, 48 S.ctt. 480,

A Rn pe 15

72 L.Ed. 845 .

Stave v. Civil Service Com., 404 Pa. a

oe Ge 8.) & peel ee 1

-viii-

Uniformed Sanitation Men's Assoc. v. Com-

“missioner of Sanitation of the city of

New York, 392 0.5. 260, 66 5.Ct. [ory

(1968). « & cer te Omen ae ee

United States v. Butler, 297 U.S. 1, 78, 87,

. Gt. : : , 8 L.Ed. 477 (1936)

soles abe , 15

United States v. Stewart, 234 F.Supp. 94,

-98, . 3 (Dist. of Col.

Cir. 1964) Pe ik, ee 15

Washington v. Lee, 263 F.Supp. 327, 331

bee D. Ra. sbingeor ee ae wet

ee v ashington U.S. 96

OST IS LES 8a 57 Coeere « % «« ts

Constitution

United States gue tei ema Fifth Amend-

ment . 5 meen ; -10, 14

United States Constitution, Fourteenth

Amendment ......++-«-« 4 164

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October TERM 1983

CITY OF ROCKFORD, a Municipal Corporation,

and DELBERT PETERSON, individually and as

Chief of Police, Rockford Police Department,

Petitioners,

vs.

JOHN KASKE and PAUL A. TRIOLO,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

The Petitioner respectfully prays that a

writ of certiorari be issued to review the

opinion of the Supreme Court of Illinois

in this case.

aie

OPINIONS BELOW

The decision of the Supreme Court of

Illinois, holding that petitioner, Delbert

Peterson, chief of police, City of Rockford

Police Department, could not under any

circumstances order respondents to undergo

é polygraph test in connection with a dis-

ciplinary investigation, nor bring any

disciplinary action against respondents

for their refusal to undergo the test, was

filed on January 24, 1983. A copy of that

decision is attached hereto as Appendix A.

The citation to the decision of the

Illinois Supreme Court is Kaske and Triolo,

et al. v. City of Rockford, etc., et al.,

96 I11.2d 298 (1983). A petition for re-

hearing was timely filed and was denied on

April 8, 1983. A copy of the order denying

the petition for rehearing is attached

hereto as Appendix B. The opinion of the

Second District Appellate Court is not to

ate

be published or otherwise reported pur-

suant to Rule 23 of the Illinois Supreme

Court Pules and is attached hereto as

Appendix C.

JURISDICTIONAL STATEMENT

The Supreme Court of Illinots' opinion

was filed on January 24, 1983. The

Supreme Court of Illinois’ order denying

the City of Rockford's Petition for Re-

hearing was filed April 8, 1983. This

petition for a writ of certiorari is filed

within the time permitted pursuant to

28 U.S.C. Sec. 2101(c). The jurisdiction

of this Court is invoked pursuant to 28

U.S.C. Sec. 1257(3).

CONSTITUTIONAL PROVISIONS

INVOLVED

United States Constitution,

Article V of Amendments:

. . nor shall be compelled in any

criminal case to be a witness against

=F ws

himself, nor be deprived of life,

liberty, or property, without due pro-

cess of law...

Article XIV of Amendments:

Section l. . . . No state shall make

or enforce any law which shall abridge

the privileges or immunities of citizens

of the United States; nor shall any

state deprive any person of life, li-

berty, or property without due process

of law; nor-deny to any person within

its jurisdiction the equal protection

of the laws.

of

STATEMENT OF THE CASE

The respondents, John Kaske and Paul A.

Triolo, were police officers for the City

of Rockford, Illinois, police department.

In December, 1980, the City of Rockford

police department received reports in-

dicating the respondents had been using

illegal drugs during the time they had

been employed by the police department.

The respondents were ordered by petitioner

Delbert Peterson, chief of police for the

City of Rockford police department, to

submit officer's reports concerning these

allegations. The respondents submitted

reports denying the allegations. Peti-

tioner Peterson then ordered respondents

to undergo a polygraph examination on

February 2, 1981, as part of a discirlin-

ary investigation concerning the charges.

Respondents then filed a declaratory

judgment action on February 2, 1981, in the

Circuit Court of the 17th Judicial Circuit,

ef«

Winnebago County, Illinois requesting

declaratory and injunctive releif pro-

hibiting petitioner Peterson from ordering

respondents to undergo polygraph examina-

tions or taking any disciplinary action in

any manner as a result of the subject

matter in the premises set forth in the

complaint.

The circuit court granted petitioner's

motion to dismiss respondents’ amended

complaint and amendment thereto, denied

respondents’ motion for issuance of a

preliminary injunction, and dissolved the

temporary restraining order granted on the

day the complaint was filed.

Respondents filed an appeal with the

Illinois Appellate Court, 2nd District.

The appellate court affirmed the trial

court's denial of the preliminary in-

junction and otherwise dismissed the

appeal.

The Illinois Supreme Court granted

ath

respondents’ petition for leave to appeal

and consolidated the case with another

case, Collura v. Board of Fire and Police

Commissioners of the Village of Itasca.

The Collura case involved the admissibility

of the polygraph examinations in an

administrative disciplinary hearing before

the Board. The Illinois Supreme Court re-

versed the judgments of the appellate

and circuit courts, holding that the

police chief could not under any circum-

stances require officers to submit to

polygraph examinations and that the

officers' refusal cannot be used as a

basis for disciplinary charges to be

brought against them. Justices Underwood

and Moran dissented from this holding of

the court.

Petitioners timely filed a petition for

rehearing with the Illinois Supreme Court,

which was denied April 8, 1983.

oie.

REASONS FOR GRANTING

THE WRIT

Be

THE ORDER OF A POLICE CHIEF TO A POLICE

OFFICER TO UNDERGO A POLYGRAPH TEST ON A

QUESTION OF SERIOUS MISCONDUCT, SUCH AS

USE OF ILLEGAL DRUGS, DOES NOT VIOLATE

THE POLICE OFFICER'S FIFTH AMENDMENT OR

CONSTITUTIONAL RIGHTS

In Gardner v. Broderick, 392 U.S. 273,

88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968),

this Court ruled that police officers

could not be dismissed for refusing to

waive their Fifth Amendment protection

against self-incrimination. However,

police officers could be dismissed for re-

fusing to answer questions specifically,

directly and narrowly relating to the

performance of their official duties

without giving up their Fifth Amendment

rights against self-incrimination.

In the instant case, the Supreme Court

of Illinois adopted a rule banning the

~ =

executive branch from taking disciplinary

action against police officers who dis-

obeyed an order to undergo a polygraph

test. The rule extends to all situations

regardless of the circumstances. This in-

cludes the instant situation of a

disciplinary (as opposed to criminal)

investigation wherein the respondent

police officers were not required to waive

their Fifth Amendment protection against

self-incrimination and wherein the poly-

graph test was specifically, directly and

narrowly related to a question of serious

misconduct, i.e., illegal use of drugs.

Unlike the Court in the instant case, the

Fifth Circuit Court of Appeals recently

addressed the question of whether the

dismissal of city employees for refusing

to undergo polygraph tests violated their

Fifth Amendment rights. Gulden v.

McCorkle, 680 F.2d 1070, 1076 (5th Cir.

ibe

1982), cert. denied February 22, 1983, 51

U.S. Law Week 3611. In Gulden, two City

of Dallas Public Works Department employees

were discharged following their refusal

of polygraph tests, requested by their

superiors, in connection with a telephoned

bomb threat. They claimed that because the

defendants failed to tender them immunity

in regard to the use of their polygraph

answers in subsequent criminal proceedings,

they were implicitly required to waive

such immunity in contravention of the

Fifth Amendment right against self in-

crimination. They alleged that they were

then justified in refusing to take the

polygraph tests and could not be discharged

for so doing.

The Court of Appeals affirmed the dis-

trict court in upholding that the plain-

tiffs were properly discharged for refusing

polygraph tests and stated:

tie

"In conclusion, the discharges imposed

upon Gulden and Sage were not imposed

because they refused to waive their

Fifth Amendment rights to be free from

self-incrimination. No explicit or

implicit waiver of their right to

immunity had been requested of them.

Any answers given by them could not,

under Garrity, be used against them.

Moreover, because the inquiry had not

advanced to a level of specificity in

which the competing concerns of immunity

could be properly addressed, no

affirmative duty (if any such duty may

ever be found) had developed upon the

employer to advise Gulden and Sage that

immunity was available. Gulden and Sage

were told only that they must take the

polygraph exams to retain employment.

TALS was a permissible requirement.

(Emphasis Added)

This Supreme Court of Illinois, in the

instant case, did not find that the

respondents’ constitutional rights were

violated by the order from the police

chief to take a polygraph test. Nor did

it find that the test, if taken, would

have violated the respondents’ constitu-

tional rights.

In fact, no reported decisions have

been located by petitioner in which a

te

court has found that a police officer's

constitutional rights have been violated

either by an order to take a polygraph test,

the test itself, or his dismissal for re-

fusing the test.1/

1/In addition to Illinois, the courts in New

Jersey, Pennsylvania, Connecticut, Nevada and

Florida have ruled that it is improper to dis-

miss a police officer for failure to comply

with an order to undergo a polygraph test under

various circumstances. Stape v. Civil Service

Com., 404 Pa. 354, 172 A.2d 161 (1961), which

was subsequently displaced by legislation, 18

Nos.Pa.Stat. §7321 (1973), which exempted law

enforcement agencies and drug dispensers from

the statute's restriction on polygraph tests

in the employment field. Molino v. Board of

Public Safety, 154 Conn. 368, 225 A.2d 805

(1966). Engel v. Woodbridge, 124 N.J.Super.

307, 306 A.2d 485 (1973); Burrough of Elmwood

Park v. Fallon, 128 N.J.Super. 51, 319 A.2d 72

(1974); and Gandy v. State, 607 P.2d 581 (Nev.

1980); Farmer v. City of Fort Lauderdale,

So.2d » 198 _ . None of these cases

found a violation of the police officer's

constitutional rights.

On the other hand, the courts in Arizona,

California, Louisiana, Missouri, New York and

Washington have upheld the police chief's pre-

rogative to order an officer to undergo poly-

graph tests under the sanction of dismissal for

refusal to do so. Eshelman v. Blubauam, 114

Ariz. 376, 560 P.2d 1283 (App. 1977); McCain

v. Sheridan, 160 Cal.App.2d 174, 324 P.2d 923

(lst Dist. 1958); Frazee v. Civil Service Board,

170 Cal.App.2d 333 P.2d 943 (lst Dist. 1959);

+f 3-

The question of whether it is constitu-

tionally permissable to dismiss a police

officer from his employment for refusing

to submit to a polygraph examination in

connection with an ongoing criminal in-

vestigation is pending before this court

in the form of a petition for a Writ of

Certiorari to the Supreme Court of Florida

in City of Fort Lauderdale, Florida, No.

82-1814.

The petitioner in that case has pointed

out the need to resolve the conflict be-

tween state courts of last resort in

1/, cont., Fichera v. State Personnel Board, 217

Cal.App.2d 613, 32 Ca.Reptr. 159 (lst Dist. 1963);

Roux v. New Orleans Police Dept., 223 So.2d 905

(La.App. 1969), cert.den. 254 La. 815, 227 So.2d

148, cert.den. 397 U.S. 1008; Clavton v. New

Orleans Police Dept., 236 So.2d 548 (La.App. 1970),

cert.den. 256 La. 867, 239 So.2d 363; Dieck v.

Department of Police, 266 So.2d 500 (La.App.

1972); Creadeur v. Department of Public Safety,

Div. of State Police, 364 So.2d 155 (La.App.

1978); Sorbello v. Maplewood, 610 S.W.2d 375

(Mo.App. 1980); Dolan v. Kelly, 76 Misc.2d 151,

348 N.Y.S.2d 478 (1973); Seattle Police Officers'

Guild v. Seattle, 80 Wash.2d 307, 494 P.2d 485

(1972).

otike

decisions regarding the federal question

of whether discharging a police officer

for refusing to take a polygraph examina-

tion violates the officer's rights under

the 5th and 14th Amendments.

II.

WHETHER THE SUPREME COURT OF ILLINOIS

VIOLATED THE DOCTRINE OF SEPARATION OF

POWERS IN ADOPTING A RULE BANNING THE

EXECUTIVE BRANCH FROM DISCIPLINING

POLICE OFFICERS WHO DISOBEY AN ORDER

FROM A SUPERIOR TO UNDERGO A POLYGRAPH

TEST IN THE ABSENCE OF A STATUTE PRO-

HIBITING SUCH DISCIPLINARY ACTION, OR

EVIDENCE AND A FINDING THAT SUCH

DISCIPLINARY ACTIONS ARE A VIOLATION

OF THE POLICE OFFICERS' FIFTH AMENDMENT

OR OTHER CONSTITUTIONAL RIGHTS

In our system of government, the courts

may not and do not interfere with the

internal administration of the executive

branch of government, in the absence of a

«3 5~

violation of constitutional rights or

failure tc comply with statutory require-

ments.2/ Early in our nation's history,

Chief Justice Taney, in Decatur v. Paulding,

14 Pet. 497, 516, 10 L.Ed. 559, stated:

"The interference of the courts with

the performance of the ordinary duties

of the executive departments of the

government would be productive of

nothing but mischief and we are quite

satisfied that such a power was never

intended to be given them."

Also, in United States v. Stewart, 234

F.Supp. 94, 96-98, Affd. 339 F.2d 753

(Dist. of Col. Cir. 1964), the court

2/The doctrine of separation of powers is not

clearly stated in the federal Constitution, but

has been deemed to flow naturally from the di-

vision of the federal government into three

branches, each given enumerated powers. It is

clearly a concept which operates as a constitu-

tional limitation as between the branches of

the federal government. See Kilbourn v.

Thompson, 103 U.S. 168, 190, 26 L.Ed. 372;

Springer v. Government of Philippine Islands,

277 U.S. 189, 201, 48 S.Ct. 480, 72 L.Ed. 845.

On the other hand, the Illinois Constitution

specifically provides that "The legislative,

executive and judicial branches are separate.

No branch shall exercise powers properly be-

longing to another." I11.Cont. Art. II Sec. l.

aif

carefully analyzed the scope of its

authority, and stated:

"At the outset it is necessary to con-

sider the scope of the authority of

this court to review executive action,

such as was taken in this instance.

There seems to be a growing tendency

to resort to the courts for relief

from governmental acts claimed to be

harsh, unjust, inexpedient or un-

desirable. Such efforts ignore some

basic fundamental principles that are

well known but often overlooked in

the turmoil of activities of every-day

life. Simple and elementary as they

are, it appears desirable to recall

and analyze them from time to time."

- * *

"In the United States supreme power is

not vested in the judiciary. The

courts are not superior to either of

the other two branches of Government

and have no power of supervision or

control over them... As it is, the

courts may not step in and stay or

control executive action unless the

executive or administrative officer

acts in excess of his statutory

authority, or in a manner repugnant to

a provision of the Constitution of the

United States."’

* * *

"The Supreme Court crystallized the

application of these principles in

connection with the authority of the

Courts vis-a-vis the executive officers

et

of the Government in Larson v. Domestic

& Forei Co , 337 U.S. 682, 69 S.Ct.

1457, 3 = oro 1628 .. . The Supreme

Court held that the courts may not ste

in and either stay orc el executive

action unless the axetutios Orticial

was acti in excess of his statutor

authority or transgressed a constitu-

tional fiattation, The mere tact that

he might be acting erroneously or

erhaps even tortiously does not vest

the courts with Farledterion to inter-

tere.” (Emphasis added)

The Illinois Appellate Court has also

recognized the scope of its authority

under the doctrine of separation of

powers. In Buege v. Lee, 56 I1ll.App.3d

793, 372 N.E.2d 427 (2nd Dist. 1978), the

court stated:

"It is axiomatic, of course, that the

chief of police has the duty to protect

the public from the evil effects of

crime and corruption. Inherent in that

duty is the responsibility to maintain

an efficient, effective and honest

police force which deals fairly with

citizens. A police chief is certainly

justified in maintaining necessary

discipline in his department, in seek-

ing to purge the force of members who

may have engaged in criminal or dis-

reputable acts or to otherwise deter-

mine whether his subordinates are able

to perform their required duties.

Clearly, the actions of a police chief

in implementing these responsibilities

-18-

should not, except in the most extra-

ordinary circumstances, be subject to

a continuing review or supervision by

the courts. This has been uniformly

recognized by the authorities in

Illinois and elsewhere. See, e.g.,

Charles v. Wilson, 52 I1l.App.2d 14, 25,

26, OL N.E.2d 627 (1964); Coursey v.

Board of Fire & Police Com'rs of erobie.

-App. . , oe

(1967); Conte v. Horcher, 50 I11.App.3d

151, 154, 8 Yil.Ddec. 329, 365 N.E.2d

567 (1977); See also, Seattle Police

Officers' Guild v. City of Seattle, 80

ash. te

Buege v. Lee, 56 I1l.App.3d 793, 372

a » 14 111.Dec. 416 at 420

(2nd Dist. 1978).

The courts have maintained a hands-off

approach to the review of decisions by

prison administrators unless necessary to

protect the inmates from unconstitutional

actions carried out under color of state

law.3/ "It is a rule grounded in

necessity and common sense, as well as

3/See, e.g., Knuckles v. Prasse, 302 F.Supp. 1036

(E.D.Penn. 1969); Washington v. Lee, 263 F.Supp.

327, 331 (M.D.Ala., aff'd. per curiam, sub nom

Lee v. Washington, 389 U.S. 967, 88 S.Ct. 457,

19 L.Ed.2d 457 (1967); and Coffin v. Reichard,

143 F.2d 443, 445, 155 A.L.R. 143 (6th Cir. 1945)

cert. denied, 325 U.S. 887, 65 S.Ct. 1568, 89

L.Ed. 2001 (1945).

it.

authority, that the maintenance of disci-

pline in prison is an executive function

with which the federal branch ordinarily

will not interfere."' Sewell v. Pegelow,

291 F.2d 196, 197 (4th Cir. 1961).

In a similar vein, on March 11, 1983,

President Ronald Reagan ordered that all

federal employees who have access to classi-

fied information may be required to undergo

polygraph tests when appropriate in the

course of investigations of unauthorized

disclosures of such information. The

President's order provides that depart-

mental regulations shall permit an agency

to decide what appropriate adverse con-

sequences (including dismissal) will

follow from an employee's refusal to

cooperate with a polygraph test.4/

4/National Security Decision, Directive No. 84;

Steven Garfinkel, director of the Information

Security Oversight Office, was quoted in the

press as estimating that 60 government agencies

and hundreds of thousands of government employees

have access to classified information.

-20-

If President Reagan's March 11, 1983

order is challenged, the federal courts

will no doubt follow the admonition of

Chief Justice Stone, who, when an

Associate Justice, eloquently discussed

the doctrine of separation of powers in

his dissenting opinion in United States v.

Butler, 297 U.S. 1, 78, 87, 56 S.Ct. 312,

325, 328, 8 L.Ed. 477 (1936) :5/

", , . While unconstitutional exercise

of power by the executive and legisla-

tive branches of the government is sub-

ject to judicial restraint, the only

check upon our own exercise of power is

our own sense of self-restraint."

* * *

"Courts are not the only agency of

government that must be assumed to

have capacity to govern."

5/While these statements are in a dissenting

opinion, there appears to have been no differ-

ence of views as to these basic principles, the

disagreement between the majority and minority

being only in their specific application.

we

ait

IIl.

WHETHER A POLICE OFFICER HAS A CONSTI-

TUTIONALLY PROTECTED PROPERTY INTEREST

IN HIS CONTINUED EMPLOYMENT, AND IF SO,

DOES THIS INTEREST OUTWEIGH THE PUBLIC

INTEREST IN MAINTAINING THE INTEGRITY

OF PUBLIC EMPLOYEES SO AS TO PROHIBIT A

POLICE CHIEF FROM REQUIRING A POLICE

OFFICER TO UNDERGO A POLYGRAPH TEST RE-

GARDING ALLEGED MISCONDUCT

The Illinois Supreme Court has failed to

balance any property interest of the

respondents may have in their employment

against the public's interest in main-

taining an effective and honest police

force. This court in niformed Sanitation

Men's Assoc. v. Commissioner of Sanitation

of the City of New York, 392 U.S. 280, 88

S.Ct. 1917 (1968), recognized that a public

employee cannot be compelled to give up

his constitutional privilege against self-

incrimination upon penalty of the loss of

employment. However, this court did not

relate that holding to a specific con-

stitutionally protected right of employ-

=22-

ment; rather this court in Uniformed Sani-

tation Men held that public employees,

like all other persons, were entitled to

the benefit of the Constitution.

In Roux v. New Orleans Police Dept.,

supra (see footnote 1 herein), the court

Stated that an officer has no unalienable

right to employment as a police officer,

while the paramount right of the people

to protection far transcends any right an

officer has to employment as such.

The cases cited herein in the second

paragraph of footnote 1 all recognize a

police chief's inherent authority to

order officers to undergo a polygraph

examination as a part of his duty to

operate an effective police force. Justice

Moran in his dissenting opinion in this

case (see Appendix A725) noted this.

Justice Moran also stated:

"As an investigatory tool, police chiefs

utilize polygraph examinations to

narrow the focus of inquiry and, fre-

o24-

quently, 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 fre-

quently 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

pp. Gardner Vv.

Broderick (1968), 302, U. S. 213, 20m.-k4.

2d I08Z, 88 S.Ct. 1913 (police officers,

as trustees of the public interest, can

be dismissed for oe to answer

uestions relating to official duties)

téteea). ) 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." See

Appendix A-26 to A-28 herein.

The courts have also recognized the need

to balance the public interest in execu-

~2be

‘tive officials having the inherent authority

to maintain order and discipline among

those persons under their charge, such as

prison administrators.

"The power of promulgating regulations

necessary for the safety of the prison

population and the public as well as for

the maintenance and proper functioning

of the institution, is vested in cor-

rectional officials with expertise in the

field and not in the courts. There must

be granted wide discretion in the exercise

of such authority." Long v. Parker, 390

F.2d 816, 820 (3rd Cir. 1968).

Likewise, the courts have consistently

ruled that schools have inherent

authority to maintain order and to

discipline students and have latitude

and discretion in their formulation of

«25.

rules and regulations and general standards

of conduct. 6/

In Esteban v. Central Missouri State

College, 415 F.2d 1077, 1989 (8th Cir.

1969), the court affirmed the dismissal of

a suit brought by state college students

who had been suspended after a hearing in

which they had been found guilty of

participating in a mass rally that engaged

in potentially disruptive conduct, aggres-

sive action, disorder and disturbance, acts

of violance and destructive interference

with the rights of others. The court

stated:

"Let there be no misunderstanding as to

our precise holding. We do not hold

That any college regulation, however

loosely framed, is necessarily valid.

6/Jones v. State Bd. of Educ., 279 F.Supp. 190,

202 (M.D. Tenn. 1968), aff'd 407 F.2d 834 (6th

Cir. 1969); Buttny v. Smiley, 281 F.Supp. 280

285, 286 (D. Colo. 1968); Barker v. Hardway,

399 F.2d 638 (4th Cir. 1968) cert. denied 394

U.S. 905, 89 S.Ct. 1009, 22 L.Ed.2d 217; and

Dickey v. Alabama State Bd. of Educ., 273 F.

Supp. 613, 618 (M.D. Ala. 1967).

=26.

We do not hold that a school has the

authority to require a student to dis-

card any constitutional right when he

matriculates. We do hold that a college

has the inherent right to promulgate

rules and regulations; that it has the

inherent power to discipline; that it

has the power to protect itself and

its property .. . that school regula-

tions are not to be measured by the

standards which prevail for the criminal

law and criminal procedure; and that the

courts should interfere only where there

is a clear case of constitutional in-

fringement.”

Maintaining discipline in a police depart-

ment is no less important than the need to

maintain discipline in prisons or univer-

sities. Police officers are entrusted

with a grave responsibility. Our personal

safety and the safety of our property is

in their hands. Police officers are

authorized by law to carry and, when

necessary, use weapons. The proper

administration of a police force re-

quires appropriate discipline. Police

officers must cooperate with internal

investigations of police brutality,

bribery, theft and other serious mis-

o33~

conduct. As public employees holding

positions of public trust, police officers

are subject to a high degree of scrutiny

involving their performance of their

official duties. Their superiors should

be allowed to conduct internal dis-

ciplinary investigations and make the

appropriate orders thereto without in-

ference by the courts in matters not of

a constitutional magnitude.

-28-

CONCLUSION

For the foregoing reasons, it is re-

spectfully urged that a writ of certiorari

should be issued from this Court to re-

view the decision of the Supreme Court of

Illinois.

Respectfully submitted,

CHARLES E. BOX, Legal Director*

KATHLEEN ELLIOTT, City Attorney

CITY OF ROCKFORD DEPARTMENT OF LAW

425 E. State St., Suite 504

Rockford, IL 61104

(815) 987-5549

Counsel for Petitioner

*Counsel of Record

Date: July 7, 1983

APPENDIX

APPENDIX A

A-1

OPINION

SUPREME COURT

OF ILINOIS

United States of America

State of Illinois )

) ss.

Supreme Court )

At a Term of the Supreme Court, begun and

held in Springfield, on Monday, the Tenth

day of January in the year of our Lord, one

thousand nine hundred and Eighty-three,

within and for the State of Illinois.

Present: Howard C. Ryan, Chief Justice

Justice Robert C. Underwood

Justice Joseph H. Goldenhersh

Justice Thomas J. Moran

Justice Daniel P. Ward

Justice William G. Clark

Justice Seymour Simon

Neil F. Hartigan, Attorney General

Louie F. Dean, Marshal

Attest: Juleann Hornyak, Clerk

Be it Remembered, that afterwards, to-wit,

on the 24th day of January, 1983, the

A-2

opinion of the Court was filed in said

cause and entered of record in the words

and figures following, to-wit:

John Kaske and Paul A. Triolo, et al.,

Appellants,

No. 55501

55599 vs.

Cons.

City of Rockford, etc., et al.,

Appellees.

Appeal from

Appellate Court

Second District

JUSTICE CLARK delivered the opinion of

the court:

This case is a consolidation of two

different appeals concerning the giving

of polygraph examinations to public law-en-

forcement officials and the admissibility of

the polygraph results in administrative dis-

ciplinary proceedings. In cause No. 55501,

the plaintiffs, Rockford police officers

A-3

John Kaske and Paul A. Triolo, brought

suit against the city of Rockford and its

police chief seeking to prohibit the

defendants from compelling the plaintiffs

to undergo polygraph examinations. In

cause No. 55599, the plaintiff, Itasca

police officer Robert Collura, is

challenging a decision of the Itasca board

of fire and police commissioners ordering

his discharge following a hearing in which

the results of a polygraph examination were

admitted into evidence. We discuss the

latter case first.

Collura v. Board of Fire and Police

Commissioners of the Village of Itasca

On January 26, 1980, the chief of police

of the village of Itasca, Stanley J. Rosol,

filed charges before the Itasca board of

fire and police commissioners against

Itasca police officer Robert Collura.

It was alleged that Officer Collura had on

December 27, 1979, while on duty, made

A-4

improper physical contact with Alicia

Martinez. Officer Collura was also

charged with making an untruthful report

about what happened between him and Alicia

Martinez. Alicia Martinez had made a

statement to the chief of police that Offi-

cer Collura had sexually touched her while

she was being detained on December 27 at

the scene of a reported burglary.

Prior to the filing of charges by the

chief of police, the plaintiff had been

ordered to submit to a polygraph exami-

nation or face disciplinary action.

Plaintiff appeared for the polygraph

examination on January 8, 1980, and asserts

that the polygraph examiner prejudged the

plaintiff's veracity before the test was

administered. The plaintiff also testified

that the examiner was abusive and argu-

mentative, which caused the plaintiff to

become angry and hostile.

A-5

At the hearing before the Itasca board

of fire and police commissioners the poly-

graph examiner was called as an expert

witness and the results of the polygraph

examination were admitted into evidence.

The polygraph examiner testified that the

plaintiff lied in answering questions con-

cerning his alleged improper contact with

Alicia Martinez. The operator indicated

that he had four years of experience con-

ducting examinations, and denied that he

had prejudged Collura or had acted in a

hostile or argumentative way toward the

plaintiff. Counsel for the plaintiff at-

tacked the competency of the examiner and

objected to the admissibility of the

examiner's testimony and the results of

the polygraph test.

The board found Collura guilty of the

charges and determined that his conduct

warranted a discharge. Officer Collura

filed for administrative review of the

A-6

board's order pursuant to the Administra-

tive Review Act (I11. Rev. Stat. 1979, ch.

110, par. 264 et seq.). The circuit

court of Du Page County affirmed the

decision of the board of fire and police

commissioners, and the appellate court,

under Supreme Court Rule 23 (73 I11.2d R.

23), found no error in the admission of

polygraph results which were founded upon

the testimony of a properly qualified and

certified examiner. 97 I11l.App.3d 1199.

Kaske v. City of Rockford

On February 2, 1981, the plaintiffs

filed a complaint for declaratory judg-

ment with the circuit court of Winnebago

County, asking that the defendants, the

city of Rockford and Delbert Peterson,

the chief of police of the Rockford

police department, be restrained and en-

joined from ordering the plaintiffs to

undergo polygraph examinations. A

temporary restraining order was granted

A-7

and then extended on four occasions by the

agreement of the parties. The plaintiffs

also filed a motion for a preliminary

injunction on February 3, 1981. The

defendants filed a motion to dismiss which

the circuit court granted with leave to

amend.

An amended complaint was filed with the

court on March 13, 1981, and an amendment

to that complaint was allowed to be filed

on March 20, 1981. The defendants filed

a motion to dismiss on March 30, 1981.

On April 16, 1981, the circuit court

entered an order dismissing the amended

complaint, finding that it was insufficient

to state a cause of action for declaratory

judgment. The court denied the motion for

a preliminary injunction, dissolved the

temporary restraining order, and granted

the plaintiffs' leave to file a further

amended complaint if "they chose to do so".

The plaintiffs elected to stand on their

A-8

notice of appeal the same day.

On August 12, 1981, the appellate court,

in a Rule 23 order (73 I11.2d R. 23),

affirmed the trial court's denial of the

preliminary injunction and dismissed the

appeal. (98 I1l.App.3d 1203.) We granted

plaintiffs leave to appeal (73 I11.2d R.

315).

Plaintiffs Kaske and Triolo are close

personal friends. In December of 1980

plaintiff Triolo brought an action for

dissolution of marriage. When his wife

was informed, she told Triolo that she

would "take his job." Shortly thereafter,

plaintiff Triolo's wife contacted super-

visory officers of the Rockford police

department and arranged a meeting with the

plaintiffs' immediate supervisory lieuten-

ants. At the meeting Mrs. Triolo made

oral statements that the plaintiffs had

smoked marijuana on different social

occasions. A week later Mrs. Triolo con-

A-9

tacted one of the lieutenants with whom

she had met and recanted her previous

allegations, indicating that what she had

said was not true.

The chief of police ordered both plain-

tiffs to submit written reports concerning

the allegations. The plaintiffs did sub-

mit reports in which each denied the use of

any drugs.

The plaintiffs were then ordered to under-

go polygraph examinations. They were in-

formed that any information obtained as a

result of the examinations might be used

against either or both of the plaintiffs

(in bringing charges) before the board

of fire and police commissioners of Rock-

ford. The plaintiffs were told by the

chief of police that their refusal to

obey the order would subject them to

charges before the board of fire and

police commissioners of Rockford.

Prior to the order of the chief of

A-10

police that plaintiffs prepare reports

concerning the allegations of drug use,

Officer Kaske had submitted a letter of

resignation to the police department and

soon thereafter asked the chief of police

to accept a withdrawal of the resignation.

Kaske was informed that he had to appear

before the board of fire and police conm-

missioners of the city of Rockford to re-

quest withdrawal of his resignation. At

the January 6, 1981, meeting of the board,

the chief of police informed the board

that Kaske was under investigation for

alleged drug use. The board allowed

Kaske to withdraw his letter of resigna-

tion.

The defendants suggest that because

Officers Kaske and Triclo did not exhaust

administrative review procedures that

this court should not review the case

since the plaintiffs fail to state a cause

of action for declaratory judgment. While

A-1l

our judiciary does not function as an

original forum for immediate review of

the propriety of all of a chief's orders to

his subordinates in that department, the

exhaustion of the administrative review

process is not the exclusive remedy in the

instant case. (See also People ex rel.

Fahner v. American Telephone & Telegraph

Co. (1981), 86 I111.2d 479, 485.) A

declaratory judgment is not barred because

other relief can be obtained. It is rather

an optional, altnerative remedy. Kupsik v.

City of Chicago (1962), 25 I11.2d 595, 598.

The appellate court in Buege v. Lee (1978),

56 Ill.App.3d 793, correctly recognized that

a plaintiff is not required to "provoke a

disciplinary proceeding against himself so

as to provide a forum to challenge the

chief's order. It is central to the pur-

pose of the declaratory judgment pro-

cedure that it allow ‘the court to take

hold of a controversy one step sooner

A-12

than normally--that is, after the dispute

has arisen, but before steps are taken

which give rise to claims for damages or

other relief. The parties to the dispute

can then learn the consequences of their

action before acting’. (I11. Ann. Stat.,

ch. 110, par. 57.1, Historical and Practice

Notes, at 132 (Smith-Hurd (1968).)" 56 I11l.

App.3d 793, 798.

Section 57.1 of our Civil Practice Act

permits declaratory judgments to be

rendered in instances when an "actual

controversy" exists. (Ill. Rev. Stat. 1979,

ch. 110, par. 57.1) An actual controversy

means that the case presents '''a concrete

dispute admitting of an immediate and

definitive determination of the parties’

rights, the resolution of which will aid

in the determination of the controversy or

some part thereof. [Citations.]'" Miller

v. County of Lake (1980), 79 I11.2d 481,

487, quoting Underground Contractors

A-13

Association v. City of Chicago (1977), 66

I11.2d 371, 375; accord Howlett v. Scott

(1977), 69 I11.2d 135, 141-142.

The requirement of an "actual contro-

versy'’ was intended to distinguish justi-

ciable issues from hypothetical disputes.

(A.S. & W. Club v. Drobnick (1962), 26

I11.2d 521, 524.) We find that the dispute

between the plaintiffs and the chief of

police over submitting to the examination

and the consequences of taking it or those

resulting from a refusal to take the test

establish an actual controversy here.

We next address the issue of whether the

results of the polygraph examination are

admissible at an administrative hearing

before the board of fire and police

commissioners.

Decisions of our appellate court have

been divided on the admission of poly-

graph evidence. In Washington v. Civil

Service Com. (1981), 98 I1l.App.3d 49, the

A-14

appellate court concluded that the results

are admissible at an administrative hear-

ing provided that the examiners are present,

their qualifications are established, and

they are subject to cross-examination.

The court in Washington relied upon

decisions in Chambliss v. Board of Fire

& Police Commissioners (1974), 20 I11l.App.

3d 24, 31-32, and Coursey v. Board of

Fire & Police Commissioners (1967), 90

Il1l.App.2d 31, appeal denied (1968), 38

I11.2d 627, for the proposition that

because an unhindered inquiry into sub-

ordinates actions is absolutely necessary

where a police chief is attempting to run

an effective department, the results of a

polygraph test that an officer is compelled

to undergo are admissible at an administra-

tive hearing where the board of fire and

police commissioners is investigating the

conduct of the police officer.

The reasoning of the appellate court in

A-15

Washington incorporated the rationale of

Chambliss and Coursey that the police

chief should not be deprived of a useful

investigative tool where the examination

is administered and the results inter-

preted by a qualified examiner. The

findings of the appellate court in McGowen

v. City of Bloomington (1981), 99 I1l.App.

3d 986, and Sommer v. Goetz (1981), 102 Ill.

App.3d 117, contradict the holding in

Washington.

In MceGowen the court found that the

admission of polygraph results materially

affected the decision of the board of fire

and police commissioners, recognizing that

"the polygraph has attained a stature and

an acceptance in the public mind far in

advance of that achieved in the world of

jurisprudence," and that it remains "in-

competent evidence". (99 I1l.App.3d 986,

990, 991, citing People v. Monigan (1979),

72 I1l.App.3d 87.) The court concluded

A-16

that the admission of such evidence

amounted to error as an abrogation of a

fundamental rule of evidence. 99 I11l.App.

3d 986, 991.

In Sommer v. Goetze (1981), 102 I1l1l.App.

3d 117, the appellate court determined

that the sheriff's merit commission of

Taxewell County erred in admitting poly-

graph results as substantive evidence

against a deputy sheriff where the po-

tential jeopardy was the loss of employ-

ment.

We now find that in view of our holdings

in People v. Baynes (1981), 88 Ill1.2d 225,

and People v. Szabo (Jan. 24, 1983), No.

52626, slip op. at 24-25, that the results

of a polygraph examination are not admis-

sible before the board of fire and police

commissioners. It is unnecessary to re-

iterate the exhaustive review of poly-

graph evidence we undertook in People

v. Baynes. It is enough to say that in

A-17

holding that admission of stipulated-to

polygraph evidence at a criminal trial

constituted error, we recognized that the

process of accurately recording the in-

strument's results and then correctly

interpreting those results "has not

reached a level of sophistication that

makes it generally more probative than

prejudicial.'' (People v. Baynes (1981),

88 I11.2d 225, 239.) We found in Baynes

that the stipulation of the parties did

not make evidence otherwise considered

not reliable enough admissible because it

was agreed to. 88 I11.2d 225, 240.

In People v. Szabo this court held that

the trial court acted properly in excluding

the results of polygraph examinations at a

death sentencing hearing, where the rules

governing the admission of evidence are not

applicable (Ill. Rev. Stat. 1979, ch. 38,

par. 9-l(e)). In Szabo we again pointed

to the doubts about the polygraph's

A-18

reliability and the risk that a jury would

find results of the examination to be

conclusive.

We agree with the words of the appellate

court in Sommer v. Goetze (1981), 102 I11l.

App.3d 117, 121, that while the rules

of evidence are not as rigidly applied at

an administrative hearing, such a re-

laxation of rules "cannot abrogate the right

to a just, fair and impartial hearing".

Without the benefit of this court's opinion

in Baynes the appellate court in Sommer

correctly saw that if a petty criminal

“whose potential jeopardy does not exceed

a few hundred dollars" cannot have polygraph

results admitted at his trial, then evi-

dence admitted against a deputy sheriff

facing a "loss of merit employment" should

be no less reliable. 102 I11.App.3d 117,

121.

Our opinion in Baynes highlighting, the

inherent deficiencies of the polygraph

A-19

examination supports our holding today

that the results of the examination are

not admissible at an administrative

hearing before the board of fire and

police commissioners.

The plaintiffs face the potential of the

loss of their livelihood. There is a real

danger that the board of fire and police

commissioners will find the results of the

polygraph examination completely deter-

minative of guilt or innocence. We feel

that the Sommer case articulates the cor-

rect rule that polygraph evidence is not

reliable enough to be used as substantive

evidence in an administrative proceeding

before the board. The findings before a

board of fire and police commissioners

must be based upon facts proved by com-

petent evidence. Fantozzi v. Board of

Fire & Police Commissioners (1962), 35

I1ll.App.2d 248, 257, aff'd (1963), 27 Ill.

2d 352.

A-20

Admission of polygraph evidence at a

hearing before the board of fire and

police commissioners would also com-

promise our role in undertaking any re-

view of an agency's decision under the

Administrative Review Act (I1l. Rev. Stat.

1979, ch. 110, par. 264 et seq.), in those

cases where polygraph evidence had been

considered in the board's decision-making

process.

We next address whether the refusal of a

police officer to take a polygraph examina-

tion can be grounds for disciplinary action

against the officer. Our appellate court

on four different occasions has held that

refusal was cause for disciplinary action.

Myers v. Cook County Police & Corrections

Merit Board (1978), 67 Ill.App.3d 223;

Piotrowski v. State Police Merit Board

(1980), 85 Ill.App.3d 369; Williams v.

Police Board (1972), 8 I1l.App.3d 345;

Coursey v. Board of Fire & Police

A-21

Commissioners (1976), 90 I1l1.App.2d 31.

We are mindful of the need for public

employers to maintain personal integrity

in the eyes of those they serve; we also

undérstand that a police chief has to have

the authority to require officers to

answer questions specifically related to

the performance of the officer's offical

duties in cooperatior. with the investiga-

tion into an officer's official conduct.

And while we recognize that a polygraph

examination is an instrument of some

investigatory utility and value, we never-

theless conclude in view of our disposition

as to the inadmissibility of polygraph

results at the officer's administrative

hearing that a municipal police officer

can refuse to submit to a polygraph

examination and such a refusal cannot be

used as the basis for filing of charges

seeking disciplinary action against the

officer.

A-22

We do not lighly rule that an internal

order of a municipal police department is

improper. We are not attempting in finding

in favor of the plaintiffs to, as the

appellate court in Coursey v. Board of

Fire & Police Commissioners (1967), 90

I1l.App.2d 31, 43, described it, 'vitiate

the systematic authority and discipline

upon which proper enforcement of the law

is dependent”. (90 I11.App.2d 31, 43.)

It would be inconsistent for us to find

that the polygraph results are not admis-

sible in front of the board of fire and

police commissioners because the examina-

tion is not reliable enough, and then hold

an officer's refusal to submit to such a

test could be grounds for a disciplinary

action being brought by the police chief.

In DeVito v. Civil Service Com. (1961),

404 Pa. 354; 172 A2d 161, the Supreme

Court of Pennsylvania held that refusal

of Philadelphia police officers to take

A-23

the polygraph examination did not

establish "just cause’ to warrant the

officers' dismissal. The court took cog-

nizance of the questionable accuracy of the

test, recognized that the examination was

not judicially acceptable in Pennsylvania,

and found that the willingness or the

unwillingness of an officer to submit to

the test is inadmissible before the Civil

Service Commission (404 Pa. 354, 360, 172

A.2d 161, 164.) See also Burrough of

Elmwood Park v. Fallon (1974), 128 N.J.

Super. 51, 319 A.2d 72, where the court

said that a police officer is entitled to

refuse to take a polygraph examination

and that refusal cannot be used against

him as a basis for a disciplinary action.

128 N.J. Super. 51, 57, 319 A.2d 72, 76.

In conclusion we hold that the chief of

police of the Rockford police department

cannot compel Officers Kaske and Triolo

to submit to polygraph examinations. We

A-24

find that the officers refusal cannot be

used as a basis for disciplinary charges

to be brought against them. The judgment

of the appellate court affirming the dis-

missal by the circuit court of Winnebago

County is reversed, as is the judgment of

the circuit court.

We also hold that the decision to dis-

charge Officer Robert Collura by the board

of fire and police commissioners of the

village of Itasca cannot stand. The

appellate court's order affirming the

circuit court's order affirming the deci-

sion of the Board is reversed, as is the

judgment of the circuit court. We remand

Officer Collura's cause to the board of

fire and police commissioners’ of the

village of Itasca for a new hearing, in

which any results of the police officer's

polygraph examination, any opinions offered

by the polygraph examiner, or any refer-

A-25

ences to the polygraph examination are

inadmissible as evidence.

55501 - Judgments reversed.

55599 - Judgments reversed;

cause remanded,

with directions.

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 dis-

ciplinary action." (Slip op. at 8.) For

a number of reasons I consider unfounded

the concern over this supposed incon-

sistency.

Polygraph evidence is disallowed during

an administrative hearing or court pro-

A-26

ceeding 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 ~ itcome of a

proceeding may depend and their use as an

investigatory tool. "Such tests are

recognized as having some value in investi-

gation, 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

A-27

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 pub-

lic 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 [(in-

stitution) in which systematic authority

A-28

and discipline are required to ensure or-

derly and effective law enforcment,"'

(E.g., Piotrowski v. State Police Merit

Board (1980), 85 Ill.App.3d 369, 376; ef.

Gardner v. Broderick (1968), 392 U.S. 273,

20 L. Ed.2d 1082, 88 S.Ct. 1913 (police

officers, as trustees of the public in-

terest, can be dismissed for failing to an-

swer 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 poly-

graph 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"

A-29

by subsequent legislation. (See 18 Pa.

Cons. Stat. Ann. sec. 7321 (Purdon 1973)

(law enforcement agencies are exempted

from the statutory ban on the administra-

tion of polygraph examinations).) On the

other hand, numerous cases have recognized

a police chief's inherent authority to com-

pel 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 disci-

plined for failure to submit to the

A-30

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 Commis-

sioners (1967), 90 Il1l.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.

Fh thes

APPENDIX B

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

April 8, 1983

Mr. Charles Box

Attorney at Law

425 E. State St.

Rockford, IL 61104

Nos. 55501 - John Kaske, et al., appel-

55599 lates, vs. City of Rockford,

Cons. a municipal corporation, et

al., etc., et al., appel-

lees. Appeal, Appellate

Court, Second District.

Ths Supreme Court today DENIED the

petition for rehearing in the above

entitled cause.

Very truly yours,

/s/ Juleann Hornyak

Clerk of the Supreme

Court

APPENDIX C

C-1

SECOND DISTRICT

Filed August 12, 1981

IN THE

APPELLATE COURT OF ILLINOIS

SECOND JUDICIAL DISTRICT

JOHN KASKE and PAUL A. TRIOLO,

Plaintiffs-Appellants,

81-278 v.

CITY OF ROCKFORD, a municipal corporation,

and DELBERT PETERSON, individually and as

Chief of Police, Rockford Police Depart-

ment.,.

Defendants-Appellees.

Appeal from the Circuit

of Winnebago County.

The Honorable Harris H. Agnew,

Judge Presiding.

ORDER DISPOSING OF APPEAL

PURSUANT TO SUPREME COURT RULE 23

This is an action for declaratory judg-

ment brought on February 2, 1981, by two

patrol officers for the City of Rockford

Police Department. The complaint re-

C-2

quested the court to (1) declare the rights

of the parties regarding an order by

defendant city's Chief of Police that the

plaintiffs undergo a polygraph examination

and (2) restrain and enjoin the defendants

from ordering the plaintiffs to undergo

such an examination or disciplinary action

resulting from the subject matter set

forth in the complaint. A temporary re-

straining order was granted on the day the

complaint was filed and extended four times

by agreement of the parties. On February

3, 1981, plaintiffs filed a motion for a

preliminary injunction. After the

defendants’ first motion to dismiss was

granted with leave to amend, plaintiffs

filed an amended complaint, which they

supplemented by a later amendment adding a

second count.

On March 30, 1981, defendants filed a

second motion to dismiss. On April 16,

1981, the trial court denied the plain-

C-3

tiffs' motion for issuance of a pre-

liminary injunction, dissolved the tem-

porary restraining order and dismissed the

complaint. In its order that day, the

court granted the plaintiffs twenty-one

days to file an amended complaint. The

plaintiffs filed their notice of appeal

the same day.

Before we may reach the merits of the

issues raised on appeal, we must sua

sponte consider whether this is a final

and appealable order. Where there is no

final and appealable order the reviewing

court must dismiss the appeal on its own

motion even though, as here, the ques-

tion has not been raised by the parties.

(In re Estate of Tingos (1979), 72 Ill.

App.3d 703, 708-09.) The order appealed

from in the instant case granted the

plaintiffs twenty-one days to amend the

complaint, and the appeal was filed the

same day. At the time the appeal was

C-4

filed, the trial court had not entered

any final order. Appellate Courts, sub-

ject to statutory exceptions, are with-

out jurisdiction to review judgments,

orders or decrees which are not final.

(Curtis v. Albion-Brown's Post 590 Am.

Legion (1965), 65 I1l.App.2d 473, 477.) If

the plaintiffs desired to stand by their

complaint after the dismissal, they should

have so indicated to the trial court so

that words indicating the finalty of judg-

ment could have been entered for the

defendants. Robinson v. City of Geneseo

(1966), 77 Ill.App.2d 308, 310.

One issue in plaintiffs' appeal is the

propriety of the trial court order denying

the preliminary injunction and dissolving

the temporary restraining order pre-

viously entered. Under Supreme Court Rule

307(a) (1) (I111.Rev.Stat. 1979, ch. 110A,

par. 307(a)(1)), an appeal may be taken as

a matter of right from an interlocutory

C-5

trial court order granting, modifying, re-

fusing, dissolving, or refusing to dis-

solve or modify an injunction. We have

considered this issue as an interlocutory

appeal, and we find that the decision of

the trial court denying the preliminary

injunction must be upheld.

The requirements for the issuance of a

preliminary injunction are set out in

McCormick v. Empire Accounts Service, Inc.

(1977), 49 I11.App.3d 415, 417:

"For a preliminary injunction to issue,

the party seeking the injunction must

carry the burden of persuasion on four

issues: (1) that he has no adequate

remedy at law and will be irreparably

injured if the injunction is not granted;

(ii) that the threatened injury to him

will be immediate, certain and great if

the injunction is denied while the loss

or inconvenience to the opposing party

will be comparatively small and in-

significant if it is granted; (iii) that

he has a reasonable likelihood of pre-

vailing on the merits of the case; and

(iv) that ingy the preliminary in-

junction will not have an injurious

effect upon the general public."

In its April 16, 1981, order the trial

court found that the plaintiffs had no

C-6

sufficient likelihood of success on the

merits, had an adequate remedy at law and

would not suffer irreparable injury by the

denial of the preliminary injunction. The

plaintiffs have not contested these find-

ings, which themselves support the denial

of the preliminary injunction even if the

trial court had, in fact, erred in finding

that the complaint failed to state a cause

of action.

We therefore affirm the trial court's

denial of the preliminary injunction and

otherwise dismiss the appeal.

AFFIRMED IN PART, DISMISSED IN PART.

VAN DEUSEN, HOPF, JJ. SEIDENFELD, P.J.