Krain v. Department of Professional Regulation

Sixth Division
8/8/97





Nos. 1-96-2527, 1-96-2874     (Consolidated)


LAWRENCE S. KRAIN, M.D.,                )  In the 
                                        )  Circuit Court of
     Plaintiff-Appellee,                )  Cook County.
                                        )
     v.                                 )
                                        )  No. 96-CH-6929
DEPARTMENT OF PROFESSIONAL              )
REGULATION, STATE OF ILLINOIS, and      )
NIKKI M. ZOLLAR, Director, Illinois     )
Department of Professional              )
Regulation,                             )  Honorable 
                                        )  Ellis Reid,
     Defendants-Appellants.             )  Judge Presiding.


     JUSTICE ZWICK delivered the opinion of the court:
     Appellants, Department of Professional Regulation and Nikki
M. Zollar, its Director, appeal from an order entered by the
circuit court which stayed the Department's suspension of
plaintiff's medical license. Appellants simultaneously filed a
second appeal challenging the circuit court's order remanding the
matter to the Department for consideration of "new evidence." We
have jurisdiction in number 1-96-2527 pursuant to Supreme Court
Rule 307(a)(1)(134 Ill. 2d R. 307(a)(1)). Jurisdiction in number
1-96-2874 is pursuant to Supreme Court Rule 306(a)(6)(134 Ill. 2d
R. 306(a)(6)). We have consolidated these appeals for purposes of
our disposition.
     This is not the first time this matter has been before the
appellate court. On January 5, 1996, in an unpublished order (No.
1-93-4559), we reviewed an order of the circuit court which
reversed the Department's March 22, 1993 suspension of
plaintiff's medical license. In that order we noted, contrary to
the findings of the circuit court, that the Department had relied
upon substantial evidence in concluding plaintiff's medical
license should be suspended for a minimum of 1 year. We therefore
reversed the circuit court and affirmed the Department's
determination that petitioner suffered from a mental illness or
disability which resulted in his inability to practice medicine
with reasonable skill and safety. See 225 ILCS
60/21(A)(3),(A)(27)(West 1994). 
     Six months after our decision reversing the circuit court
and affirming the Department, plaintiff filed this second action
for administrative review in the circuit court. Plaintiff cited
the discovery of certain "new evidence" which he claimed
warranted new proceedings. One week later, on July 19, 1996, the
circuit court entered the now-challenged orders staying
plaintiff's license suspension and remanding the matter to the
Department to reconsider the matter. We stayed the circuit
court's orders pending resolution of these appeals.
     We find that the circuit court lacked jurisdiction to
consider petitioner's second administrative review complaint.
Section 3-103 of the Administrative Review Law is clear. It
requires that an administrative review action be commenced within
35 days of the decision from which review is sought. 735 ILCS
5/3-103 (West 1994); Lockett v. Chicago Police Board, 133 Ill. 2d 349, 354-55, 549 N.E.2d 1266 (1990). Plaintiff's second complaint
seeking administrative review was filed more than 3 years after
the final administrative decision he sought to challenge had been
rendered. This was long after the circuit court's "final
disposition" of the case, when the circuit court lost its
jurisdiction over the plaintiff's initial complaint. See 735 ILCS
5/3-104 (West 1994). Accordingly, the orders of the circuit court
staying the proceedings and remanding the case to the Department
are void. Swope v. Northern Illinois Gas Co., 221 Ill. App. 3d
241, 243, 581 N.E.2d 819 (1991). 
     Plaintiff raises the novel argument that, pursuant to the
provisions of section 3-111(a)(7) of the Administrative Review
Law, the circuit court has the power to remand a case to an
administrative agency for the limited purpose of taking
additional evidence, even after the circuit court has lost
jurisdiction over the matter. Section 3-111 provides in pertinent
part:
          "(a) The Circuit Court has power:
                                   * * *
          "(7) where a hearing has been held by the
          agency, to remand for the purpose of taking
          additional evidence when from the state of
          the record of the administrative agency or
          otherwise it shall appear that such action is
          just." 735 ILCS 5/3-111(a)(7) (West 1996).
We disagree with plaintiff's expansive reading of section 3-
111(a)(7).
     When the circuit court considers a matter on administrative
review, it sits as a court of review, giving deference to the
findings of fact made by the agency from which the appeal is
taken. See 735 ILCS 5/3-110 (West 1994). Like other Illinois
courts of review, the circuit court must have the power to remand
the case during the proceedings if it determines that remand is
required by the record presented to it. Section 3-111(a)(7)
merely codifies this rule of appellate procedure, in much the
same way as Supreme Court Rule 366(a)(5) codifies the law of
remandment for our appellate and supreme courts. Cf. 134 Ill. 2d
R. 366(a)(5)("the reviewing court may *** grant any relief,
including remandment, *** that the case may require"). 
     Allowing the circuit court to order remand during the course
of the proceedings is far different, however, from allowing the
court to re-exert its jurisdiction after final disposition. To
allow litigants to re-invoke the circuit court's jurisdiction
simply by alleging the existence of newly discovered evidence in
the circuit court, long after an administrative proceeding has
been concluded, would fatally undermine the finality of
administrative decisions and would directly contravene the
jurisdictional language of sections 3-103 and 3-104.
     Because the circuit court lacked jurisdiction to consider
the plaintiff's second administrative review action, the orders
of the circuit court are void and are hereby vacated.
     GREIMAN, P.J., and QUINN, J., concur.