May 8, 1998
Nunc pro tunc
VILLAGE OF MAYWOOD BOARD OF FIRE AND ) Appeal from the
POLICE COMMISSIONERS, ) Circuit Court of
) Cook County.
DEPARTMENT OF HUMAN RIGHTS OF THE STATE )
OF ILLINOIS, ILLINOIS HUMAN RIGHTS )
COMMISSION, TIMOTHY KINGSMILL, and )
MICHAEL CASANAVE, ) Honorable
) Lester D. Foreman,
Defendants-Appellees. ) Judge Presiding.
JUSTICE HARTMAN delivered the opinion of the court:
Plaintiff, the Village of Maywood Board of Fire and Police
Commissioners (Board), appeals the circuit court's order granting
summary judgment in favor of defendants, contesting the court's
finding that defendant Department of Human Rights (Department)
possessed the authority to investigate discrimination charges
brought by two white males who applied, but were not hired, for
firefighter positions with the Maywood Fire Department. On appeal,
the Board contends that the charges are barred by the doctrine of
res judicata because of a previous action filed against the Board
by defendants Timothy Kingsmill and Michael Casanave, which
subsequently was dismissed with prejudice. The Board also argues
that a writ of prohibition should be issued against the Department
and the Human Rights Commission (Commission) because neither agency
has the authority to review employment decisions made by municipal
In the earlier suit against the Board, Kingsmill and Casanave
claimed the procedures used by the Board in hiring firefighters
violated several provisions of the Illinois Municipal Code (65 ILCS
5/10-2.1-6 (West 1994)), as well as the Board's own rules and
regulations. In their two-count complaint, Kingsmill and Casanave
alleged that they were white males with previous experience and
training as firefighters, who responded to an October 1994
advertisement placed by the Board, soliciting applications for
firefighter positions. They paid a $390 application fee and took
a written examination and physical aptitude test and, although they
met the minimum qualifications for the position, they were not
placed on the Initial Eligibility List, released on February 1,
1995, or permitted to complete the remaining portions of the
Kingsmill and Casanave asserted that two out of the four
candidates whose names were on the Initial Eligibility List,
Stephen Thomas and Fred Saffold, were black males who were
appointed to the fire department before completing the application
process, nor did they have previous experience or training as
firefighters. Kingsmill and Casanave alleged the Board improperly
charged an application fee, hired Thomas and Saffold before they
completed their applications, and prevented Kingsmill and Casanave
from applying for the firefighter openings. They requested a court
order nullifying the Initial Eligibility List and allowing them to
finish the application process.
The Board moved to dismiss this complaint, arguing that the
claims were time-barred because Kingsmill and Casanave failed to
name and serve all necessary parties as defendants within the
required limitations period. On June 12, 1995, the court entered
an agreed order submitted by the parties, dismissing the complaint
Kingsmill and Casanave next filed charges with the Department,
alleging that the Board discriminated against them on the basis of
their race. Attorneys for the Board informed the Commission by
letter of their belief that the Department lacked jurisdiction to
consider the charges, and the issues involved were res judicata
because they already had been litigated in the circuit court.
When the Department refused to dismiss the charges, the Board
filed the present claim in the circuit court against Kingsmill,
Casanave, the Department, and the Commission. Count I of the
Board's two-count complaint sought a declaration that the
Department and Commission lacked jurisdiction over the charges, and
that the charges were barred by the doctrine of res judicata. In
count II, the Board requested a writ of prohibition barring further
proceedings against the Board by the Department or Commission.
The Board moved for summary judgment. Kingsmill and Casanave
filed a cross-motion for summary judgment. Counsel for the
Department and the Commission submitted oral motions for summary
judgment. After a hearing, the circuit court denied the Board's
motion and granted summary judgment for defendants. The court
found that res judicata did not bar the administrative claims, as
they involved different causes of action and different facts from
the previous claim. The Board appeals.
As a preliminary matter, this court must address the
contention of two of the defendants, the Commission and the
Department, that the circuit court should have dismissed the
Board's complaint for lack of subject matter jurisdiction, because:
(1) the action was not yet ripe for adjudication; (2) the Board
failed to exhaust its administrative remedies; and (3) the
Commission and the Department are State agencies, which cannot be
sued in the circuit court pursuant to the doctrine of sovereign
immunity. Although defendants did not raise all these arguments
before the circuit court, the issue of subject matter jurisdiction
is never waived and may be raised for the first time on appeal.
Currie v. Lao, 148 Ill. 2d 151, 157, 592 N.E.2d 977 (1992).
The Department and Commission first argue that the present
action did not present a justiciable controversy ripe for decision.
The ripeness doctrine precludes courts from entering a declaratory
judgment unless an actual controversy is presented. 735 ILCS 5/2-
701(a) (West 1994); Big River Zinc Corp. v. Illinois Commerce
Comm'n, 232 Ill. App. 3d 34, 38, 597 N.E.2d 256 (1992). An actual
controversy exists if there is a legitimate dispute requiring an
immediate and definite determination of the parties' rights, the
resolution of which would help terminate all or part of the
dispute. First of America Bank, N.A. v. Netsch, 166 Ill. 2d 165,
173, 651 N.E.2d 1105 (1995). In other words, a plaintiff must have
a personal claim or right which is capable of being affected.
Netsch, 166 Ill. 2d at 174.
In cases involving challenges to administrative actions,
application of the ripeness doctrine prevents courts "from
entangling themselves in abstract disagreements over administrative
policies" and "protect[s] the agencies from judicial interference
until an administrative decision has been formalized and its
effects felt in a concrete way by the challenging parties."
National Marine, Inc. v. Illinois Environmental Protection Agency,
159 Ill. 2d 381, 388, 639 N.E.2d 571 (1994); see also Big River
Zinc, 232 Ill. App. 3d at 39. In determining whether an issue is
ripe for review, courts must evaluate the fitness of the issues for
judicial decision and the hardship to the parties of withholding
court consideration. National Marine, 159 Ill. 2d at 389.
The Department and Commission contend that the counts directed
against them are not yet ripe for review because the Department has
not begun investigating the claims against the Board, and no
complaint has been filed with the Commission. The Human Rights Act
provides an administrative procedure by which parties alleging
employment discrimination may pursue a claim against the employer.
775 ILCS 5/1-103(Q) (West 1994); Jabbari v. Human Rights Comm'n,
173 Ill. App. 3d 227, 231, 527 N.E.2d 480 (1988). First, the
complaining party must file a charge of discrimination with the
Department within 180 days after the employer allegedly committed
the discriminatory act. 775 ILCS 5/7A-102(A) (West 1994). The
Department will send notice of the charge to the employer, who must
file a response, or the Department shall enter a default order.
775 ILCS 5/7A-102(B) (West 1994). After notifying the employer of
the charge, the Department begins its investigation, for which it
may subpoena witnesses and documents. 775 ILCS 5/7A-102(C)(1)-(2)
(West 1994). The Department then conducts a factfinding
conference; failure to attend by either party could result in
dismissal or default. 775 ILCS 5/7A-102(C)(4) (West 1994). Once
the Department completes its investigation, it may file a written
complaint with the Commission, which has jurisdiction to hear the
complaints, as well as requests for review of the Department's
decision to dismiss the charge or enter a default order. 775 ILCS
5/7A-102(F), 8-103 (West 1994).
Notifying a party that it is subject to an investigation,
which might lead to the institution of an action against the party,
does not create a claim capable of judicial resolution. National
Marine, 159 Ill. 2d at 389. Unlike plaintiff in National Marine,
however, who was seeking "an advisory opinion concerning future
events," the Board here is not requesting judicial review of a
decision made by the Department relating to the merits of
Kingsmill's and Casanave's discrimination charges. In contrast,
the Board argues that the Department lacks the authority to render
such a decision or to investigate the charges.
Assuming the Department has not yet begun its investigation,
an actual controversy has been presented. After receiving notice
of the charges, the Board is required by statute to file a response
within a specific period of time, or risk the entry against it of
a default order. There exists more than "an abstract
disagreement"; the Department's refusal to dismiss the charge
presents a justiciable controversy that is ripe for review.
The Commission correctly asserts, however, that the Board has
failed to present an actual controversy at this time. The charges
at issue are presently pending before the Department; they may not
be brought before the Commission unless, after the Department
completes its investigation, the Department decides to file a
complaint with the Commission, or one of the parties seeks review
of the Department's decision. 775 ILCS 5/8-103 (West 1994).
The Commission, not yet having been presented with the
charges, should have been dismissed from the suit.
The Department and Commission also argue that the Board's
action is barred by the doctrine of exhaustion of remedies because
the Board failed to raise its res judicata argument before the
Commission prior to filing its complaint in the circuit court.
Generally, parties may not seek judicial review of the actions of
an administrative agency, such as the Department or the Commission,
without first pursuing all administrative remedies available to
them. Castaneda v. Illinois Human Rights Comm'n, 132 Ill. 2d 304,
308, 547 N.E.2d 437 (1989); Midland Hotel Corp. v. Director of
Employment Security, 282 Ill. App. 3d 312, 319, 668 N.E.2d 82
(1996). Requiring a party to exhaust available administrative
remedies allows the agency to utilize its expertise and develop and
consider the facts of the matter before it, and provides an
opportunity for the aggrieved party ultimately to succeed before
the agency, thereby avoiding unnecessary judicial action.
Castaneda, 132 Ill. 2d at 308; Midland Hotel, 282 Ill. App. 3d at
Where strict adherence to this rule would produce harsh and
inequitable results, however, the aggrieved party is not required
to comply with the exhaustion of remedies doctrine, such as when no
issues of fact are presented or agency expertise is not involved,
or irreparable harm will result from further pursuit of
administrative remedies. Castaneda, 132 Ill. 2d at 309; Midland
Hotel, 282 Ill. App. 3d at 319. The Board contends that the
exceptions listed above apply to the present case because the Board
did not raise any factual issues for the administrative agencies to
decide, and pursuing its administrative remedies through the
Department and the Commission would cause onerous delays.
With regard to the first exception, if questions of fact are
not involved and agency expertise would not aid the resolution of
the issue before the court, the exhaustion of remedies doctrine
does not bar judicial review of that issue. Office of the Cook
County State's Attorney v. Illinois Local Labor Relations Board,
166 Ill. 2d 296, 306, 652 N.E.2d 301 (1995). Where, as here, the
issue involves the agency's own assertion of authority, a party
should not be required to exhaust administrative remedies because
there is virtually no chance the aggrieved party will succeed.
Landfill, Inc. v. Pollution Control Board, 74 Ill. 2d 541, 550-51,
387 N.E.2d 258 (1978). Further, if the issue involves
interpretation of statutory or case law, it falls within the scope
of the court's expertise, rather than the agency's. Cook County,
166 Ill. 2d at 306.
In the present case, the Board's assertion of the res judicata
doctrine involves legal issues rather than factual questions, which
are within the scope of the court's expertise, rather than the
Department's or Commission's. The doctrine of res judicata
provides that a final judgment, rendered on the merits by a court
of competent jurisdiction, constitutes an absolute bar to a
subsequent action involving the same claim, demand, or cause of
action. Airtite v. DPR Limited Partnership, 265 Ill. App. 3d 214,
217, 638 N.E.2d 241 (1994). The prior adjudication of an issue,
however, does not establish a jurisdictional bar to relitigation of
that question. Borcherding v. Anderson Remodeling Co., 253 Ill.
App. 3d 655, 662, 624 N.E.2d 887 (1993). Res judicata is an
affirmative defense and, unlike subject matter jurisdiction, it can
be waived. American National Bank & Trust Co. of Chicago v.
Village of Libertyville, 269 Ill. App. 3d 400, 404, 645 N.E.2d 1013
(1995); Borcherding, 253 Ill. App. 3d at 662. The issue of whether
a subsequent claim is barred by res judicata is a question of law.
See 735 ILCS 5/2-619(a)(4) (West 1994); American National Bank, 269
Ill. App. 3d at 403.
Here, the issue raised by the Board does not involve questions
of fact within the expertise of the Department or the Commission.
The Board is not questioning the merits of the charges brought
against it, and does not raise any factual dispute regarding
whether it discriminated against white male job applicants. In
fact, when the Department moved to dismiss this action before the
circuit court, it asked the court to decide the res judicata issue
as a matter of law.
Under the foregoing circumstances, the Board was not required
to exhaust its administrative remedies before filing this action in
the circuit court.
The Department and Commission also argue that the Board's
action is barred by the doctrine of sovereign immunity. The
Department previously raised, and lost, this issue in Rockford
Memorial Hospital v. Department of Human Rights, 272 Ill. App. 3d
751, 651 N.E.2d 649 (1995). In ruling that sovereign immunity did
not bar a claim against the Department, the Rockford court noted
the well-established rule that where a plaintiff is not seeking to
enforce a present claim against the State, but wishes only to
obtain prospective injunctive relief, the complaint will not be
considered a claim against the State for sovereign immunity
purposes. Rockford, 272 Ill. App. 3d at 755. The "prospective
injunction relief exception" is often invoked where a party wishes
to enjoin a State agency or official from taking actions in excess
of statutory or constitutional authority. Bio-Medical
Laboratories, Inc. v. Trainor, 68 Ill. 2d 540, 548, 370 N.E.2d 223
(1977); Rockford, 272 Ill. App. 3d at 755, citing Landfill, 74 Ill.
2d at 552; Magna Trust Co. v. Department of Transportation, 234
Ill. App. 3d 1068, 1070, 600 N.E.2d 1317 (1992).
The Department and Commission argue that the Rockford case was
erroneously decided in light of the supreme court's decision in
Smith v. Jones, 113 Ill. 2d 126, 132, 497 N.E.2d 738 (1986). In
Smith, the court stated that "because of sovereign immunity the
State or a department of the State can never be a proper party
defendant in an action brought directly in the circuit court."
Smith, 113 Ill. 2d at 132. The supreme court has also held,
however, that the State's immunity is determined by the issues
involved and the relief sought, not the formal designation of the
parties. In re Lawrence M., 172 Ill. 2d 523, 527, 670 N.E.2d 710
(1996); Smith, 113 Ill. 2d at 131. In addition, supreme court
cases decided both before and after Smith have upheld complaints
filed against State agencies. For instance, in Landfill, the court
upheld plaintiff's claim against the Pollution Control Board.
Landfill, 74 Ill. 2d at 552. More recently, in Lawrence M., the
court held that the sovereign immunity doctrine did not bar the
entry of an order against the Department of Children and Family
Services. Lawrence M., 172 Ill. 2d at 527.
In this case, the Department also was named as a party in the
complaint filed by the Board. The Board is not, however,
attempting to enforce a present claim against the Department, but
is seeking only prospective injunctive relief. Additionally,
although the Department nominally was named as a party to the suit,
the Board's complaint represents an attempt to prevent State
officials representing the Department from taking action that the
Board believes exceeds the officials' authority. The Board's
complaint therefore does not contravene principles of sovereign
immunity and is not barred by that doctrine.
The circuit court possessed subject matter jurisdiction over
the Board's complaint against the Department, Kingsmill, and
The Board argues that the circuit court improperly granted
summary judgment in favor of defendants, because the charges filed
by Kingsmill and Casanave were barred by the doctrine of res
judicata. A motion for summary judgment should be granted when the
pleadings, depositions, exhibits, and affidavits on file reveal no
genuine issue of material fact and establish that the moving party
is entitled to judgment as a matter of law. 735 ILCS 5/2-1005
(West 1994); Mobil Oil Co. v. Maryland Casualty Co., 288 Ill. App.
3d 743, 751, 681 N.E.2d 552 (1997); Young v. Lemons, 266 Ill. App.
3d 49, 51, 639 N.E.2d 610 (1994). The court must construe all
evidence in the light most favorable to the nonmoving party, and
strictly against the moving party. Gatlin v. Ruder, 137 Ill. 2d
284, 293, 560 N.E.2d 586 (1990); Soderlund Brothers, Inc., v.
Carrier Corp., 278 Ill. App. 3d 606, 614, 663 N.E.2d 1 (1995).
Summary judgment is a drastic remedy and should be granted only if
the right of the moving party is clear and free from doubt.
McCullough v. Gallaher & Speck, 254 Ill. App. 3d 941, 948, 627
N.E.2d 202 (1993). Appellate review of orders granting summary
judgment motions is de novo, and the order may be affirmed upon any
ground warranted, regardless of whether it was relied upon by the
circuit court or whether the reason given by the circuit court was
correct. Zoeller v. Augustine, 271 Ill. App. 3d 370, 374, 648 N.E.
2d 939 (1995); Rognant v. Palacios, 224 Ill. App. 3d 418, 420, 586
N.E.2d 686 (1991).
The doctrine of res judicata applies to issues actually
decided in the original action, as well as matters that could have
been decided. People ex rel. Burris v. Progressive Land
Developers, Inc., 151 Ill. 2d 285, 294, 602 N.E.2d 820 (1992). A
judgment entered by consent of the parties operates in the same
manner as any other judgment for res judicata purposes, and is
conclusive with respect to matters settled by the judgment. Barth
v. Reagan, 146 Ill. App. 3d 1058, 1064, 497 N.E.2d 519 (1986). On
the other hand, res judicata does not apply to bar an independent
claim that is part of the same cause of action if the court in the
first action lacked subject matter jurisdiction over that claim.
Airtite, 265 Ill. App. 3d at 219.
The legislature established the Human Rights Act as the
exclusive source for redress of civil rights violations.
Castaneda, 132 Ill. 2d at 322; Bellwood Board of Fire and Police
Commissioners v. Human Rights Comm'n, 184 Ill. App. 3d 339, 346,
541 N.E.2d 1248 (1989). The Act provides that, unless otherwise
provided by law, "no court of this state shall have jurisdiction
over the subject of an alleged civil rights violation other than as
set forth in this Act." 775 ILCS 5/8-111(C) (West 1994). The
limited exceptions to this general rule of exclusive jurisdiction
have been construed narrowly by the courts; the legislature
intended for the Commission to be the exclusive vehicle for
deciding and settling civil rights matters, including employment
discrimination claims. Castaneda, 132 Ill. 2d at 322.
In the present case, Kingsmill and Casanave are not barred by
the doctrine of res judicata from bringing their discrimination
charges before the Department. Regardless of whether Kingsmill and
Casanave attempted to allege employment discrimination in their
previous complaint against the Board, in light of the Commission's
exclusive jurisdiction over employment discrimination charges under
the Human Rights Act, the circuit court lacked jurisdiction over
such issues. Kingsmill and Casanave therefore could not have
brought their discrimination claims before the circuit court.
Progressive, 151 Ill. 2d at 294.
The Board cites several cases in support of its argument that
the circuit court possesses jurisdiction over employment
discrimination actions, all of which are distinguishable. In Coler
v. Redd, 100 Ill. App. 3d 992, 427 N.E.2d 622 (1981) and Fox v.
Civil Service Comm'n, 66 Ill. App. 3d 381, 383 N.E.2d 1201 (1978),
the parties did not allege unlawful discrimination. Similarly,
plaintiff in Basketfield v. Daniel, 71 Ill. App. 3d 877, 390 N.E.2d
492 (1979) appealed the police board's decision to discharge him,
but did not assert that he was discriminated against for an
unlawful purpose. The decision in Strobeck v. Illinois Civil
Service Comm'n, 70 Ill. App. 3d 772, 388 N.E.2d 912 (1979),
involved an equal protection claim, but the plaintiff did not
assert that his employer used a suspect classification. The case
of People ex rel. Smith v. Board of Fire and Police Commissioners
of Maywood, 51 Ill. App. 3d 221, 366 N.E.2d 554 (1977), was decided
before the Human Rights Act became effective (775 ILCS 5/1-101
(West 1994)), and it is unclear from the facts whether the
plaintiffs even made any allegations of unlawful discrimination.
The Board argues that a writ of prohibition should be entered
because the Commission has no legal authority to review the
decisions of a municipal agency. Alternatively, the Board argues
that the Board of Fire and Police Commissioners Act and
Administrative Review Law should have priority over the Human
The purpose of a writ of prohibition is to prevent judicial or
quasi-judicial action that would be taken without jurisdiction or
would be beyond the scope of legitimate jurisdictional authority.
Office of the Lake County State's Attorney v. Illinois Human Rights
Comm'n (Lake County), 200 Ill. App. 3d 151, 155, 558 N.E.2d 668
(1990). A writ of prohibition may be issued under the following
circumstances: the disputed action must be judicial or quasi-
judicial in nature; the jurisdiction of the tribunal against which
the writ is sought must be inferior to that of the issuing court;
the action must be outside the tribunal's jurisdiction or beyond
its legitimate authority; and the petitioner must be without any
other adequate remedy. Lake County, 200 Ill. App. 3d at 155,
quoting Orenic v. Illinois State Labor Relations Board, 127 Ill. 2d
453, 468, 537 N.E.2d 784 (1989).
The cases cited by the Board addressed narrow exceptions to
the Commission's retention of exclusive jurisdiction in employment
discrimination claims, where the courts found that public employers
properly challenged the Commission's jurisdiction over employment
discrimination claims by filing a writ of prohibition. Lake
County, 200 Ill. App. 3d at 157-58; Board of Trustees of the Police
Pension Fund of the City of Urbana v. Illinois Human Rights Comm'n
(Urbana), 141 Ill. App. 3d 447, 490 N.E.2d 232 (1986). Accord The
Board of Trustees of Southern Illinois University v. Department of
Human Rights, 159 Ill. 2d 206, 213, 636 N.E.2d 528 (1994) (holding
that the Department had no jurisdiction over institutions of higher
education); City of Benton Police Department v. Illinois Human
Rights Comm'n, 160 Ill. App. 3d 55, 58, 513 N.E.2d 29 (1987)
(applying Urbana). Neither of the two exceptions discussed in
Urbana and Lake County, however, are applicable to the present
case. Unlike the municipal board in Urbana, the Board cannot point
to a state law granting it the exclusive authority over its hiring
decisions, to the effect that the Commission would not retain
exclusive jurisdiction over employment discrimination claims filed
against it. In contrast to the municipal defendant in Lake County,
the Board does not argue that it does not fit within the Human
Rights Act's definition of an employer.
The issues raised in the present case are identical to those
discussed in Bellwood, where a police board argued that the
Commission had no authority to review its discharge of a police
officer. Bellwood, 184 Ill. App. 3d at 345. The Bellwood court
disagreed, distinguishing Urbana, and noting that the portion of
the Municipal Code pertaining to the police board (see 65 ILCS
5/10-2.1-1 et seq. (West 1994)) did not give it the "exclusive
power and duty to manage the policy [sic] department." (Emphasis
in original.) The court concluded that nothing in the Municipal
Code conflicted with the Commission's exclusive authority to hear
matters involving civil rights violations. Bellwood, 184 Ill. App.
3d at 347. In addition, the court expressed the opinion that the
legislature could not have intended to bar access to the Commission
"when a governmental body has committed an unfair employment
practice." 184 Ill. App. 3d at 348.
The Board also argues that the Administrative Review Law
should be given priority over the Human Rights Act. The cases
cited by the Board in support of this proposition consistently hold
that decisions of boards of police officers and firefighters are
reviewable under the Administrative Review Law. For instance, in
Mueller v. The Board of Fire and Police Commissioners of the
Village of Lake Zurich, 267 Ill. App. 3d 726, 642 N.E.2d 255
(1994), the court held that "the Review Law provides the exclusive
method of review of all final decisions of boards under [division
2.1] - unless some limited exception applies or the Review Law is
deemed otherwise inapplicable." Mueller, 267 Ill. App. 3d at 731.
In this case, the Administrative Review law is inapplicable to
employment discrimination charges filed with the Department. In
contrast to other Board decisions, which involve whether they
properly interpreted their own rules and regulations, Kingsmill and
Casanave are alleging civil rights violations. The Department and
the Commission have the exclusive authority to investigate and
adjudicate such claims. In Urbana, the court found an apparent
conflict between the Human Rights Act and another statute; in the
present case, no such conflict was presented.
The Department is not precluded from exercising jurisdiction
over the employment discrimination charges filed by Kingsmill and
For the foregoing reasons, the circuit court's order granting
summary judgment in favor of defendants is affirmed.
HOFFMAN, P.J., and SOUTH, J., concurring.