Miller v. Police Board

SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING

Mr. JUSTICE BURKE

delivered the opinion of the court:

Appellee David Miller has raised three issues in his petititon for rehearing which were not raised in his original appeal to this court: (1) that the court applied the wrong police rule in finding that David Miller had violated the Police Department rules; (2) that the rule applied is unconstitutionally vague and therefore void; and (3) that the constitutional question regarding the rule’s vagueness was raised for the first time in the appellate court, thereby entitling the petitioner the right to appeal to the Illinois Supreme Court on that issue.

Lieutenant Miller’s first contention in his petition for rehearing is that this court erred in applying the police rule in effect when the offense took place rather than a subsequent rule which was in effect when the case was on appeal before this court. During the hearing before the Police Board, it was stipulated that the question whether Lieutenant Miller had violated the Police Department rule requiring police officers to reside within the corporate boundaries of the city of Chicago was limited to the months of October and November of 1973. During October and November of 1973 police rule 24 was in effect which stated that all police officers must “reside within the corporate boundaries of the City of Chicago.” According to the appellee rule 24 was revoked on December 13, 1973, when the Police Board published rule 25 requiring police officers to “actually reside within the corporate boundaries of the city of Chicago.” In our opinion upholding the Police Board’s termination of Lieutenant Miller’s employment as a police officer, we held that the Board’s finding that he had violated rule 24 was supported by the evidence. Lieutenant Miller now argues that we should have applied rule 25 which was in effect when the appeal was pending and not rule 24 which was in effect at the time of the violation.

We first note that the first time the appellee raised the point that rule 25 and not rule 24 be applied was in his petition for rehearing. Rule 25 came into effect according to the appellee before the Police Board held its hearing. He argued before the Police Board that the evidence did not support a finding that he had violated rule 24. No contention was made by the petitioner that rule 25 should be applied. The Board found that Lieutenant Miller violated rule 24 and made no mention of rule 25. In appellee’s action for administrative review in the circuit court, only references were made to rule 24 and there was no contention that rule 25 be applied. On appeal, he directed his arguments only to rule 24 and not to rule 25, citing the language of rule 24 and not that of rule 25. Where a party fails to raise an issue at the trial level (City of Chicago v. Birnbaum, 49 Ill. 2d 250, 274 N.E.2d 22; People v. Amerman, 50 Ill. 2d 196, 279 N.E.2d 353) or in his brief on appeal (Ill. Rev. Stat. 1973, ch. 110A, pars. 341(e)(7) and 341(f)), he waives any right to have a reviewing court consider the issue.

We also point out that the cases Lieutenant Miller cites in support of the proposition that a reviewing court must apply the law in effect during the appeal and not the law in effect during the trial are distinguishable. In Thorpe v. Housing Authority, 393 U.S. 268, 21 L. Ed. 2d 474, 89 S. Ct. 518, the question was whether a tenant should be evicted from federal housing that the tenant was occupying at the time the case was on appeal before the Supreme Court. In Dolan v. Whitney, 413 Ill. 274, 109 N.E.2d 198, and Lincoln Community High School District No. 404 v. Elkhart Community High School District No. 406, 414 Ill. 466, 111 N.E.2d 532, the question was whether to divide two school districts. Those cases all dealt with actions which had not yet taken place and the question was whether changes in the law should affect the final outcome of events which were to take place in the future. The instant case deals with violations of a disciplinary rule which are alleged to have occurred before the new rule took effect. We are of the opinion that applying changes in the laws to actions which are to take place in the future is not analogous to applying changes in the laws to past offenses which took place before the law was changed. The appellee is asking us to apply a rule which did not exist at the time the violations occurred. This would be analogous to imposing an ex post facto rule upon him. (U.S. Const., art. I, §8.) We do not find it necessary to go into the merits of this contention.

Finally, we observe that even if appellee has a right to ruge this issue and we agreed rule 25 applied, the outcome would be the same. The only difference between the rules is that rule 24 requires a police officer to “reside” within Chicago while rule 25 requires that he “actually reside” within Chicago. We find that the evidence supports a finding that Lieutenant Miller violated the Chicago Police Department rule requiring police officers to reside within the city limits whether rule 24 or rule 25 be applied.

Lieutenant Miller next contends in his petition for rehearing that the police residency rule is unconstitutionally vague. This issue was not raised before the Police Board, the circuit court or this court, and the lieutenant’s attorney in his oral argument before this court stated that he was not raising the constitutionality of the Police Department’s rule. He waived any right to urge the issue. (City of Chicago v. Birnbaum, 49 Ill. 2d 250, 274 N.E.2d 22; People v. Amerman, 50 Ill. 2d 196, 279 N.E.2d 353.) He asserts that the constitutional issue arose for the first time “when the appellate court decided against Lt. Miller, by applying a vague rule.” If rule 24 was unconstitutionally vague when we applied it, then it was also unconstitutionally vague when the Police Board charged Lieutenant Miller with violating it and when it found him guilty of violating it. The appellee did not raise the issue at that time although he could have done so nor did he raise it before the circuit court or this court.

The petition for a rehearing is denied.

Petition denied.

O’CONNOR, J., concurs.