Lawrence Cholewin v. City of Evanston

899 F.2d 687, 1990 WL 42284
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 15, 1990
Docket89-2707
StatusPublished
Cited by9 cases

This text of 899 F.2d 687 (Lawrence Cholewin v. City of Evanston) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lawrence Cholewin v. City of Evanston, 899 F.2d 687, 1990 WL 42284 (7th Cir. 1990).

Opinion

FLAUM, Circuit Judge.

Plaintiff Lawrence Cholewin filed a § 1983 action claiming that defendant, the City of Evanston (“Evanston”) deprived him of property without due process of law when it denied Cholewin injured-on-duty pay under Ill.Rev.Stat., ch. 70, § 91. Prior to the denial, Evanston provided Cholewin with notice of the investigation concerning his eligibility and an interview with the investigator at which Cholewin was represented by counsel. Cholewin claims this was insufficient to satisfy due process because he maintains that he was entitled to a full evidentiary hearing at which he could cross-examine witnesses and review documentary evidence. The district court, 716 F.Supp. 369, held that the procedures provided by Evanston satisfied due process, and we affirm.

I.

Cholewin has been employed as a police officer by Evanston for about twelve years. In September, 1988, he reported to Evans-ton that he had been injured in the line of duty while assisting several other officers unhitch a boat trailer from a police van. It is undisputed that Cholewin was injured, but several of the officers who were with Cholewin at the time did not see Cholewin help unhitch the trailer and therefore, there is some question about whether he was injured during this incident and not at some other time. The injury, a herniated cervical disk, rendered him unable to work as a police officer.

Beginning in September, 1988, Evanston paid Cholewin injured-on-duty benefits pursuant to Ill.Rev.Stat., ch. 70 § 91. 1 At the same time, the Internal Affairs Bureau of the Evanston Police Department began investigating the veracity of Cholewin’s claims that he had been injured while on duty. The Internal Affairs Bureau interviewed the officers who had been present at the alleged time of injury and collected memos and other documents which pertained to the incident.

On October 4, 1988, Cholewin was given written notice of the investigation informing him of the nature of the investigation and its factual basis. Cholewin was further informed that he would be interviewed *689 concerning the events at issue and that he had the option of obtaining counsel to represent him at the interview. Cholewin promptly retained an attorney from the police officers’ union to represent him.

On December 22, 1988, Cholewin was interviewed in the presence of his counsel regarding the events at issue. Cholewin told his version of the story regarding his injury, the nature of his injury and his report to the police department. At the end of the interview, Cholewin was asked if he had anything further to say and he replied that he did not.

The information from the investigation was then assembled and presented to a committee. The members of the committee were experts on workers’ compensation and job safety, and to insure impartiality, they were not members of the police department. The committee concluded that Cholewin had not suffered an on-duty injury and as a result, he was not eligible for injured-on-duty pay. Although Cholewin was denied this benefit, he was not subject to any disciplinary action. In light of the fact that he was diagnosed as physically incapable of performing his duties as a police officer, he has been given an unpaid leave of absence. He is potentially eligible for workers’ compensation benefits.

Cholewin then filed this § 1983 suit. He claimed that he was deprived of property without due process of law. At trial he argued that he had a right to a full eviden-tiary hearing which included the right to examine all of the documents gathered during the investigation and to confront the witnesses interviewed during the investigation. After a two-day bench trial, the district court entered judgment for the defendant. The district court held that injured-on-duty pay was a protectible property right. Applying Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the court found that Evanston “provided Officer Cholewin with adequate notice of the proposed action against him.... Evanston also provided Officer Cholewin with sufficient opportunity to respond to the charge against him.” Consequently, the district court found the requirements of due process satisfied and held for Evanston. Cholewin appeals the district court’s ruling.

II.

The due process clause of the fourteenth amendment guarantees that a person be given notice and an opportunity to be heard at a meaningful time and in a meaningful manner before being deprived of a significant protected property interest. Loudermill, 105 S.Ct. at 1495. “In general, ‘something less’ than a full evidentiary hearing is sufficient prior to adverse administrative action.” Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 907, 47 L.Ed.2d 18 (1976)). “The Fifth Amendment does not require a trial-type hearing in every conceivable case of government impairment of private interest.... The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria & Rest. Workers, Union, Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). The Supreme Court has reiterated that “[t]he judicial model of decisionmaking is neither a required, nor even the most effective method of decisionmaking in all circumstances.” Mathews, 96 S.Ct. at 909.

It is undisputed that Cholewin was provided with notice and an opportunity to respond. In addition, the district court found that the notice and opportunity to respond were meaningful. Cholewin was given written notice which advised him of the nature of the charge against him and its factual basis. Cholewin was also given an opportunity to respond in writing or orally with the assistance of an attorney. These procedures would appear to satisfy the requirements of the due process clause.

Cholewin’s only argument is that he was entitled to a full evidentiary hearing with a right to examine all of the documents and confront all of the witnesses. He cites Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) to support his position. Goldberg held that persons could not be deprived of welfare benefits without an appearance “before the official who fi *690 nally determines continued eligibility” and without an opportunity “to present evidence to that official orally, or to confront or cross-examine adverse witnesses.” Id. 397 U.S. at 268, 90 S.Ct. at 1021. Cholew-in, analogizing injured-on-duty pay to welfare benefits, claims that he is entitled to similar procedures.

We disagree. The facts of this case are not sufficient under Goldberg and subsequent Supreme Court precedent to require a formal hearing.

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Bluebook (online)
899 F.2d 687, 1990 WL 42284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawrence-cholewin-v-city-of-evanston-ca7-1990.