Lacny v. Police Board

                                                  FIRST DIVISION
                                                  August 4, 1997
      
                   




No. 1-94-3160


ROGER LACNY,                            )    Appeal from the  
                                        )    Circuit Court of
               Plaintiff-Appellant,     )    Cook County.
                                        )
    v.                                  )    
                                        )
POLICE BOARD OF THE CITY OF CHICAGO,    )    The Honorable
                                        )    Albert Green,
               Defendant-Appellee.      )    Judge Presiding.    


     JUSTICE GALLAGHER delivered the opinion of the court:

     This case involves the constitutionality of sections 3--103
and 3--107(a) of the Administrative Review Law (the Act) (735
ILCS 5/3--103, 3--107(a) (West 1994)).  We are asked to determine
whether section 3--103, as amended by Public Act 88--110, section
5, effective July 20, 1993, is special legislation in violation
of article IV, section 13, of the Illinois Constitution of 1970
(Ill. Const. 1970, art. IV, 13) or whether section 3--107(a) is
void for vagueness. 
     On January 25, 1993, the superintendent of police filed
charges against plaintiff, Roger Lacny, before the Police Board
of the City of Chicago, the defendant herein.  On February 1,
1994, the defendant ordered that plaintiff be discharged from his
duty as a Chicago police officer.  On March 8, 1994, within the
35 days required by the Act, plaintiff filed a complaint in the
circuit court seeking review of the defendant's decision.  In his
complaint, plaintiff named the Police Board of the City of
Chicago as a defendant, but he failed to name the superintendent
of police.  On March 23, 1994, the superintendent filed a motion
to dismiss based upon plaintiff's failure to name him as a
defendant.  On August 19, 1994, the trial court entered an order
dismissing the case based upon plaintiff's failure to comply with
the relevant statutory requirements of the Act.  Plaintiff
appeals from that order.
      Plaintiff raises several issues on appeal, some of which
challenge the constitutionality of the relevant statutory
provisions of the Act.  It is well established that
constitutional questions will not be considered where the case
can be determined on other, nonconstitutional grounds.  See
People v. McDaniel, 164 Ill. 2d 173, 180, 647 N.E.2d 266, 269,  
(1995); People v. Mitchell, 155 Ill. 2d 344, 356, 614 N.E.2d 1213, 1218 (1993); Clark v. Han, 272 Ill. App. 3d 981, 990, 651 N.E.2d 549, 555 (1995).  Thus, we first consider those issues
that do not involve constitutional questions.
     In support of its motion to dismiss, the superintendent
contended that the supreme court's decision in Lockett v. Chicago
Police Board, 133 Ill. 2d 349, 549 N.E.2d 1266 (1990) was
dispositive in the instant case.  In Lockett, similar to the case
below, a Chicago police officer failed to name the superintendent
of police in his timely filed complaint for administrative review
of a decision of the police board. Lockett, 133 Ill. 2d 349, 549 N.E.2d 1266.  The Lockett case was decided upon nonconstitutional
grounds.  The supreme court held that the superintendent was a
necessary party to the action pursuant to section 3--107(a) of
the Act and that plaintiff's failure to name as a defendant and
issue summons on the superintendent within the 35-day time period
required under section 3--103 of the Act barred his action for
administrative review. Lockett, 133 Ill. 2d 349, 549 N.E.2d 1266. 
In so doing, the Lockett court specifically stated that it was
overruling previous appellate court decisions which had held that
the failure to name and issue summons on necessary parties within
the 35-day time limit could be cured by subsequent amendment.
Lockett, 133 Ill. 2d  at 356, 549 N.E.2d  at 1269.
     The first argument advanced by plaintiff that does not
involve a constitutional attack upon the statute in question is
that his conduct falls within the good-faith exception discussed
in Lockett whereby, "due to some circumstances beyond their
control, summons was not issued [upon the necessary party] within
the statutory period." Lockett, 133 Ill. 2d  at 355, 549 N.E.2d  at
1268.  Plaintiff bases his argument on the mere fact that he
sought to amend his defective complaint, contending that his
efforts constituted a good-faith exception to the statutory
requirements of section 3--107(a), which requires that "all
persons, other than the plaintiff, who were *** parties of record
to the proceedings before the administrative agency shall be made
defendants." 735 ILCS 5/3--107(a)(West 1994).
     The Lockett court noted that the clear and unambiguous
language of section 3--107, which specified who shall be made
defendants, is a requirement that "is mandatory and specific, and
admits of no modification." (Emphasis added.) Lockett, 133 Ill. 2d  at 354, 549 N.E.2d  at 1268.  The plaintiff in Lockett had also
sought to amend his complaint, far more expediently than did
plaintiff here.  In spite of this, the court stated that its
"review of the record fail[ed] to disclose[] any evidence of a
good-faith effort to comply with [any of] the [relevant]
requirements of the [A]ct," thus justifying the circuit court's
dismissal. Lockett, 133 Ill. 2d  at 355-56, 549 N.E.2d  at 1269. 
The court noted that "[i]n cases where the 35-day requirement has
been relaxed, the plaintiffs had made a good-faith effort to
issue summons within the statutory period." (Emphasis added.)
Lockett, 133 Ill. 2d  at 355, 549 N.E.2d  at 1268.
     It is inordinately clear that the good faith effort must be
made within the 35 day period to justify an exception to the
Act's requirements.  Plaintiff here made no attempt to do
anything within the statutory period; thus, his argument that the
good-faith exception should apply fails.  Lockett's progeny
confirm this conclusion.  See Davis v. Chicago Police Board, 268
Ill. App. 3d 851, 645 N.E.2d 274 (1994); Central States Co. v.
Department of Employment Security, 248 Ill. App. 3d 86, 618 N.E.2d 430 (1993); Murray v. Board of Review, 237 Ill. App. 3d
792, 604 N.E.2d 1040 (1992); Poturalski v. Police Board, 228 Ill.
App. 3d 864, 593 N.E.2d 781 (1992); Gilty v. Oak Park Board of
Fire & Police Commissioners, 218 Ill. App. 3d 1078, 578 N.E.2d 1294 (1991); Marozas v. Board of Fire & Police Commissioners, 222
Ill. App. 3d 781, 584 N.E.2d 402 (1991).  A plaintiff's
inadvertence in failing to name a necessary party is not
considered to be a good-faith effort. See Central States, 248
Ill. App. 3d at 90, 618 N.E.2d  at 433.  We hold that an attempt
to amend a complaint that has failed to name all necessary
parties as required by section 3--107(a) of the Act (735 ILCS
5/3--107(a) (West 1994)) does not constitute the good faith
effort discussed in Lockett, regardless of how soon the attempt
is made after the 35 day period expires.
     The next nonconstitutionally based argument offered by
plaintiff is that the failure to name parties of record is not a
jurisdictional defect and is therefore waivable.  He then
contends that the right to dismissal pursuant to Lockett was
waived in this case because the superintendent voluntarily
appeared and filed a motion to dismiss.  This argument fails for
several reasons.  First, the requirements of the Act, generally
speaking, are not waivable. Gilty v. Oak Park Board of Fire &
Police Commissioners, 218 Ill. App. 3d 1078, 578 N.E.2d 1294
(1991).  Second and more specifically, since the defendant's
defense here is not a jurisdictional argument, the plaintiff
cannot contend that the defendant waived the issue by appearing
and filing a motion to dismiss.  The superintendent did not file
a response on the merits but, instead, filed a motion to dismiss
based on plaintiff's failure to comply with the mandatory
requirements of the statute.  Since the time limit in which to
name the necessary parties is a mandatory requirement and not a
jurisdictional one, the superintendent was not required to file a
special and limited appearance and could raise the issue in a
motion to dismiss at any time before responding to the merits of
the complaint.  See, e.g., Johnson v. Department of Public Aid, 
251 Ill. App. 3d 604, 606, 622 N.E.2d 50, 52-53 (1993); see also
Zientara v. Lottery Control Board, 214 Ill. App. 3d 961, 574 N.E.2d 747 (1991) (director's interjection of herself into the
proceedings did not waive the mandatory duty imposed upon
plaintiff to name her as a defendant).  Finally, appearance is
irrelevant because although all named defendants wishing to
appear may do so by filing a written appearance within the time
fixed by supreme court rule, the only answer that is required in
an administrative review proceeding is the administrative
agency's record. Biscan v. Village of Melrose Park Board of Fire
& Police Commissioners, 277 Ill. App. 3d 844, 847, 661 N.E.2d 424, 427 (1996).
     Because the foregoing analysis of plaintiff's arguments does
not warrant disposal of this case on nonconstitutional grounds,
we next address plaintiff's constitutional arguments.  Plaintiff
first contends that section 3--103 of the Act, as amended in
1993, denies him equal protection under the law and violates the
special legislation provision of the Illinois Constitution, which
states in pertinent part that "[t]he General Assembly shall pass
no special or local law when a general law is or can be made
applicable."  Ill. Const. 1970, art. IV, 13.
     Subsequent to the Lockett decision, the General Assembly
amended section 3--103 of the Act as follows:
          "3--103. Commencement of action.  Every action to
     review a final administrative decision shall be commenced by
     the filing of a complaint and the issuance of summons within
     35 days from the date that a copy of the decision sought to
     be reviewed was served upon the party affected by the
     decision, except that in municipalities with a population of
     500,000 or less a complaint filed within the time limit
     established by this Section may be subsequently amended to
     add a police chief or a fire chief in cases brought under
     the Illinois Municipal Code's provisions providing for the
     discipline of fire fighters and police officers.***
          ***
          This amendatory Act of 1993 applies to all cases
     involving discipline of fire fighters and police
     officers pending on its effective date and to all cases
     filed on or after its effective date." (Emphasis
     added.) 735 ILCS 5/3--103 (West 1994).
This amendment thus alleviated the harsh result of the Lockett
decision, so that timely filed complaints that were defective
merely because they failed to name the police chief (or fire
chief) could now be amended, but only in municipalities with a
population of 500,000 or less.  We take judicial notice of the
fact that Chicago is the only municipality whose population is
not 500,000 or less and, therefore, is the only municipality in
which amendments to timely filed complaints would not be allowed. 
     Plaintiff contends that, apart from the population
classification, he would be allowed to file an amendment to add
the superintendent, thus curing the deficiency and avoiding
dismissal of his complaint.  He alleges that the language in the
statute creating the population classification has the effect of
excluding him from those rights which other police officers in
the state have been afforded and thereby both deprives him of
equal protection and violates the special legislation provision
of the Illinois Constitution.  We agree, but not for the specific
reasons put forth by plaintiff.
     Legislation which confers a benefit on one class and denies
the same to another may be attacked both as special legislation
and as a denial of equal protection, but both claims are
generally judged by the same standard. Chicago National League
Ball Club, Inc. v. Thompson, 108 Ill. 2d 357, 367-68, 483 N.E.2d 1245, 1250 (1985).  The appropriate standard for review is the
rational basis test, under which we must determine whether the
classification at issue is rationally related to a legitimate
state interest. Cutinello v. Whitley, 161 Ill. 2d 409, 417-18,
641 N.E.2d 360, 363-64 (1994); Nevitt v. Langfelder, 157 Ill. 2d 116, 125-26, 623 N.E.2d 281, 285 (1993).  For a statutory
classification to survive constitutional attack, the
classification must be based upon a rational difference of
situation or condition found to exist in the persons or objects
upon which such classification rests. In re Belmont Fire
Protection District, 111 Ill. 2d 373, 380, 489 N.E.2d 1385, 1388
(1986).  Classifications made by the General Assembly are
presumed valid, and all doubts will be resolved in favor of
upholding them. In re Petition of the Village of Vernon Hills,
168 Ill. 2d 117, 122-23, 658 N.E.2d 365, 367 (1995).  A statute
will be upheld "if any set of facts can be reasonably conceived
which justify distinguishing the class to which the law applies
from the class to which the statute is inapplicable."  Bilyk v.
Chicago Transit Authority, 125 Ill. 2d 230, 236, 531 N.E.2d 1, 3
(1988).
     The plaintiff interprets the population classification as
correlating with the residence of the complainant or the
municipality in which the police officer resides, thus excluding
only police officers who reside in Chicago from the right to
amend a complaint.  He contends that such discrimination against
Chicago police officers is not reasonable since, for example, a
police officer from Evanston would have the right to make a
curative amendment even though both parties would file their
complaints in the chancery division in downtown Chicago. 
Plaintiff is correct regarding where such complaints will be
filed.  The applicable circuit court general order provides that
the chancery division's "General Chancery Section hears actions
and proceedings *** concerning *** all administrative review".
Cook Co. Cir. Ct. General Order No. 1.2 (Amended, eff. August 1,
1996).  Nevertheless, plaintiff's argument that the statute
treats Chicago police officers differently from other Cook County
police officers is misplaced and rests upon an incorrect
interpretation of the statute.
     The cardinal goal of statutory construction, to which all
other goals are subordinate, is to ascertain and give effect to
the true intent and meaning of the legislature. In re Application
for Judgment & Sale of Delinquent Properties for the Tax Year
1989, 167 Ill. 2d 161, 168, 656 N.E.2d 1049, 1053 (1995).  If the
language of the statute is plain and unambiguous, courts must
give effect to it without considering additional indicia of
legislative intent. First of America Bank of Rockford, N.A. v.
Netsch, 166 Ill. 2d 165, 181, 651 N.E.2d 1105, 1112 (1995). 
Courts are not at liberty to depart from the plain language and
meaning of the statute by reading into it exceptions,
limitations, or conditions that the legislature did not express.
Klem v. First National Bank, 275 Ill. App. 3d 64, 67, 655 N.E.2d 1211, 1213 (1995).  The plain language and meaning of the phrase
"in municipalities with a population of 500,000 or less" is
defining the location of a "complaint filed" and makes no mention
of the residence of the plaintiff.  Nowhere does the amendment
refer to "inhabitants" of municipalities, nor does it contain any
language that refers to the location of the administrative agency
or board that issued the decision.  Thus, the effect of the
amendment is that complaints timely filed anywhere in Illinois,
except Chicago, may be amended.  Therefore, contrary to
plaintiff's interpretation, the amendment does not discriminate
solely against Chicago police officers in favor of all others in
the state.  The amendment instead discriminates against all
police officers (and firefighters) who must file complaints in
Chicago, namely, at the Richard J. Daley Center, and in favor of
all other police officers (and firefighters) in the state.
     Had the General Assembly wanted to prohibit only police
officers and firefighters who "reside in" or who "are inhabitants
of" Chicago from the benefits of the new amendment, the language
of the amendment would have stated so.  Also, had the General
Assembly intended that the population classification refer to
actions to review decisions of police boards in those
municipalities, the language of the amendment would have stated
such similar to the language contained in section 3--107(b) of
the Act.  Although our decision here does not address whether
such a distinction would similarly be subject to constitutional
attack, the General Assembly there clearly stated that the
provision applied "[w]ith respect to actions to review decisions
of a zoning board of appeals in a municipality with a population
of 500,000 or more inhabitants." (Emphasis added.) 735 ILCS 5/3-
107(b) (West 1994).
     Not all classifications are prohibited by the special
legislation clause; rather, the purpose of the constitutional
provision is to prevent those classifications which are arbitrary
and irrational. In re Petition of the Village of Vernon Hills,
168 Ill. 2d 117, 122, 658 N.E.2d 365, 367 (1995).  Thus, the
pertinent inquiry for this court is whether any set of facts can
be reasonably conceived which justify differentiating complaints
of parties filed in Chicago from those complaints of parties
filed elsewhere in the state.  Our review is deferential, and the
plaintiff bears the burden of establishing the unreasonableness
of the legislative action. Cutinello v. Whitley, 161 Ill. 2d 409,
417-18, 641 N.E.2d 360, 363-64 (1994).  Because plaintiff put
forth evidence to meet this burden based upon a misinterpretation
of the statute (namely, that it excluded Chicago police officers
but not other police officers who filed complaints in Cook
County), some of his arguments in this regard are inapplicable. 
Nevertheless, when a law is attacked as special legislation or as
violative of equal protection, it is still the duty of the courts
to decide whether the classification is unreasonable because it
preferentially and arbitrarily includes a class (special
legislation) to the exclusion of all others, or improperly denies
a benefit to a class (equal protection). Illinois Polygraph
Society v. Pellicano, 83 Ill. 2d 130, 138, 414 N.E.2d 458, 563
(1980).  Our evaluation also considers the broad discretion of
the legislature to create statutory classifications for the
general welfare. Bilyk v. Chicago Transit Authority, 125 Ill. 2d 
at 236, 531 N.E.2d  at 3.
     The defendant raises a variety of arguments which identify
practical considerations that the defendant asserts may have
prompted the General Assembly to carve out this exception. 
Because we are required to uphold the statute if any set of facts
can be reasonably conceived which justify distinguishing the
class to which the law applies from the class to which the
statute is inapplicable, we have considered the various
suggestions offered by the defendant, but find them unpersuasive. 
We specifically reject those submissions based upon the erroneous
interpretation that the amendment's exclusion related to the
plaintiff's residence as opposed to the location where the
complaint was filed.  Even if the amendment prohibited only
Chicago-based plaintiffs from amending timely filed complaints,
we would particularly find meritless the defendant's argument
that Chicago police officers and firefighters, partly because of
the "higher level of employment benefits" they could "garner" and
because of their strong union representation, are better
represented by trained, specialized, and competent counsel, a
benefit supposedly not available to their non-Chicago
counterparts.  In fact, the majority of the defendant's arguments
do not offer any rational basis why a class of plaintiffs would
not be allowed to amend their timely filed complaints.  Instead,
defendant points out reasons that would better support an
argument that administrative review should not be allowed in the
first place for this class of plaintiffs.  We recognize that in
Illinois there is no absolute constitutional right to
administrative review but, rather, the right to administrative
review is a limited right. Collins Oil Co. v. Department of
Revenue, 119 Ill. App. 3d 808, 816, 457 N.E.2d 118, 123 (1983). 
Courts in Illinois derive their power to review administrative
actions from the state constitution, which provides that "Circuit
Courts shall have such power to review administrative action as
provided by law." Ill. Const. 1970, art. VI, 9.  Nevertheless,
the intent of the legislature is to afford parties this right as
evidenced by section 3--103 of the Act, whereby the legislature
allows administrative review.  
     The defendant raised one point that could have some validity
under different circumstances but does not provide a sound basis
for the special legislation at issue here.  The defendant
speculates that the legislature could have been concerned about
court crowding in Cook County.  It is appropriate to consider the
congestion of court dockets as a factor of public concern, and
the Annual Report of the Administrative Office of the Illinois
Courts is a proper source of reference in assessing court
congestion. See Washington v. Illinois Power Co., 144 Ill. 2d 395, 403, 581 N.E.2d 644, 647 (1991); Meyers v. Bridgeport
Machines Division of Textron, Inc., 113 Ill. 2d 112, 122, 497 N.E.2d 745, 749 (1986).  This court has several times taken
judicial notice of the fact that, according to the Annual Report
of the Administrative Office of the Illinois Courts, the court
dockets in Cook County were congested.  See, e.g., Blakey v.
Gilbane Building Co., 264 Ill. App. 3d 626, 632, 637 N.E.2d 442,
447 (1994); Trent v. Caterpillar, Inc., 234 Ill. App. 3d 839,
846, 599 N.E.2d 1145, 1150 (1992); Walsh v. Ramada Inns, Inc.,
194 Ill. App. 3d 945, 949-50, 551 N.E.2d 249, 252-53 (1989). 
Since we must presume that the legislature, at the time it
enacted the amendment in question, surveyed the conditions
existing in the population centers of this state (see People v.
Palkes, 52 Ill. 2d 472, 477, 288 N.E.2d 469, 472 (1972)); Lee v.
Retirement Board of the Policemen's Annuity & Benefit Fund, 22
Ill. App. 3d 600, 606, 317 N.E.2d 758, 762 (1974)), we also
presume that the legislature would have been aware of this
situation regarding court dockets.
     We do not believe that the congested court dockets in Cook
County constitute a rational basis for prohibiting plaintiffs
from amending timely filed complaints.  Again, since the
legislature has already allowed such complaints to be filed in
the first instance, with no distinctions between those filed
inside or outside Chicago, it is highly unlikely that a mere
right to amend would be forbidden because of crowded court
dockets.  Such amendments are routinely allowed as a matter of
course in the majority of cases filed in Cook County pursuant to
the Illinois Code of Civil Procedure. 735 ILCS 5/2--616 (West
1994).
     The question we must address is whether the provision of the
amended section 3--103 limiting its application to municipalities
with a population of 500,000 or less is unconstitutional.  The
supreme court in In re Belmont Fire Protection District, 111 Ill. 2d 373, 380, 489 N.E.2d 1385, 1388 (1986) established that, in
order for legislation to survive a challenge as unconstitutional
special legislation, it must satisfy a so-called "two-prong
test."  This label was later qualified by the supreme court when
it emphasized that the "two-prong test" was not a distinct test
in and of itself, but rather a description of how rational basis
review is conducted by the courts. In re Petition of Village of
Vernon Hills, 168 Ill. 2d 117, 127, 658 N.E.2d 365, 369-70
(1995).  The two prongs are: (1) the classification (by
population) must not be arbitrary but must have a reasonable
basis, that is, it "must be based upon a rational difference of
situation or condition found to exist in the persons or objects
upon which the classification rests"; and (2) "the classification
must also bear a rational and proper relation to the evil to be
remedied and the purpose to be attained by the legislation." In
re Belmont Fire Protection District, 111 Ill. 2d 373, 380, 489 N.E.2d 1385, 1388 (1986).  
     Application of this two-pronged analysis leads us to the
conclusion that no rational difference of situation or condition
exists between the complaints filed by plaintiffs in Chicago and
the complaints filed by plaintiffs outside Chicago, since both
are allowed to file complaints for administrative review in the
first instance.  We can perceive no rational reason why a
plaintiff who timely files a complaint in a municipality with a
population greater than 500,000 can be said to differ from a
plaintiff who timely files a complaint in a municipality with a
population less than 500,000.  The purpose of the amendment was
to allow those police officers and firefighters who had filed a
timely complaint for administrative review an additional time
period during which to amend such a complaint.  If a real need
exists to eliminate the problem of complaints being dismissed for
failure to name a necessary party, then the same need to remedy
this evil exists for all plaintiffs, regardless of the level of
the population of the municipality.  Because the amendment to
section 3--103 denies plaintiffs who file complaints in Chicago
and who have needs similar to those of plaintiffs in the rest of
the state the privilege of amending their timely filed
complaints, the population classification is an arbitrary
distinction not founded upon any rational or substantial
difference of situation or condition and therefore violates our
constitution.
     Even if we were to consider that the congested Cook County
docket creates a rational difference between the two classes of
plaintiffs, as to the second prong of the test, the population
classification bears no rational relationship to the purpose of
the amendment and the evil it seeks to remedy.  We see no
connection between the population classification and the
necessity of excluding only complaints filed in Chicago.  There
is no basis on which to distinguish Chicago from any other
municipality for purposes of section 3--103.  There is nothing
that would justify the development of two divergent procedural
standards for the review of administrative matters depending on
whether the destination of the case is the circuit court located
in Chicago or a court located outside Chicago.  We do not believe
that the requirements should vary from courthouse to courthouse. 
     We are mindful of the principles that the state may address
a problem one step at a time (Friedman & Rochester, Ltd. v.
Walsh, 67 Ill. 2d 413, 421-22, 367 N.E.2d 1325, 1328-29 (1977))
and also that the state may address itself first to what it
decides is the most acute need (Chicago National League Ball
Club, Inc. v. Thompson, 108 Ill. 2d 357, 371, 483 N.E.2d 1245, 1252 (1985)), but neither principle is a justification for
prohibited special legislation.  Keeping these principles in
mind, we conclude that the amendment to section 3--103 of the Act
violates the constitutional proscription against special
legislation and denies plaintiff equal protection under the law. 
The population classification is an arbitrary distinction not
founded upon any rational or substantial difference of situation
or condition and therefore violates our constitution.   
     The defendant additionally contends that, should this court
conclude that the language in question is constitutionally
invalid, then that decision necessitates the destruction of the
entire statute.  We disagree.  "If what remains after the invalid
portion is stricken is complete in itself and capable of being
executed wholly independently of that which is rejected, the
invalid portion does not render the entire section
unconstitutional unless it can be said that the General Assembly
would not have passed the statute with the invalid portion
eliminated."  People ex rel. Adamowski v. Wilson, 20 Ill. 2d 568,
582, 170 N.E.2d 605, 613 (1960).  We see no reason why the
legislature would not have passed the statute without the invalid
classification.  The law recognizes no presumption that the
General Assembly would not have enacted the statute in the
absence of the unconstitutional provision. McDougall v. Lueder,
389 Ill. 141, 155, 58 N.E.2d 899, 906 (1945).  Therefore, that
portion of the statute which states "in municipalities with a
population of 500,000 or less" is stricken as constitutionally
invalid.
       Plaintiff also contends that the language of section 3--
107(a) of the Act which requires that "all persons, other than
the plaintiff, who were named by the administrative agency in its
final order as parties of record to the proceedings before the
administrative agency shall be made defendants" (735 ILCS
5/3-107(a)(West 1994)) is unconstitutionally vague, specifically
the phrase "parties of record."
     It is well established that due process requires that a
statute must not be so vague that men of common intelligence must
necessarily guess at its application or meaning. See, e.g.,
People v. Fabing, 143 Ill. 2d 48, 570 N.E.2d 329 (1991). 
Plaintiff asserts that it is unclear as to whether "parties of
record" includes the superintendent, even though it was the
superintendent who filed the original charges against plaintiff.
      We note that this issue was not addressed directly by the
supreme court in Lockett, but that plaintiff nevertheless could 
have taken counsel from the decision, which made abundantly clear
that the superintendent was a party of record in that case.
Lockett, 133 Ill. 2d 349, 549 N.E.2d 1266.  Statutory language
that might otherwise be vague but that has been clarified or
defined by judicial interpretations presents no constitutional
problem after such clarification.  See, e.g., People v. Anderson,
148 Ill. 2d 15, 29, 591 N.E.2d 461, 468 (1992); Easter
Enterprises, Inc. v. Illinois Liquor Control Comm'n, 114 Ill.
App. 3d 855, 859-60, 449 N.E.2d 1013, 1017 (1983).  "When a
statute has been judicially construed by the highest court having
jurisdiction to pass on it, such a construction is as much a part
of the statute as if plainly written into it originally ***." Ray
Schools-Chicago-Inc. v. Cummins, 12 Ill. 2d 376, 380, 146 N.E.2d 42, 45 (1957).  Nevertheless, having concluded that the
challenged portion of amended section 3--103 of the Act violates
the equal protection and special legislation provisions of the
Illinois Constitution, we need not address this additional
constitutional issue.  It is well settled that constitutional
questions will not be decided unnecessarily. Haughton v.
Haughton, 76 Ill. 2d 439, 447-48, 394 N.E.2d 385, 389 (1979).
     For the foregoing reasons, we conclude that the trial court
erred in dismissing plaintiff's complaint and denying leave to
amend.  We hold that the language "in municipalities with a
population of 500,000 or less" of section 3--103 of the Act
violates section 13 of article IV of the Illinois Constitution. 
The judgment of the circuit court is reversed, and the cause is
remanded to the circuit court to enter an order denying
defendant's motion to dismiss and granting plaintiff leave to
amend his complaint.
     Reversed and remanded with directions.
     TULLY, P.J., and CERDA, J., concur.