Bunnell v. Civil Service Comm'n

No. 2--97--0328
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

ROGER BUNNELL, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
) No. 96--MR--622
v. )
)
CIVIL SERVICE COMMISSION OF )
WAUKEGAN; CITY OF WAUKEGAN )
POLICE DEPARTMENT; and DONALD )
SCOTT BURLESON, Chief of )
Police, City of Waukegan Police )
Department, ) Honorable
) Terrence J. Brady,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________

JUSTICE INGLIS delivered the opinion of the court:
Plaintiff, Roger Bunnell, appeals following the circuit
court s denial of his motion to reconsider the court s order
dismissing his complaint for administrative review with prejudice.
The complaint was filed on December 16, 1996. On January 28, 1997,
the trial court dismissed the complaint for lack of jurisdiction on
the basis that plaintiff had failed to name as necessary party-
defendants the individual members of the defendant Civil Service
Commission of Waukegan (Commission). In his complaint, plaintiff
had named as defendants the Commission, the Waukegan police
department, and Donald Scott Burleson, the chief of police of the
City of Waukegan police department. As a result of the decision of
the Commission, plaintiff was discharged from his position as a
patrolman. We reverse the judgment of the circuit court and remand
the cause for further proceedings.
On appeal, plaintiff argues that he should have been allowed
to amend his complaint to name the individual members of the
Commission pursuant to the second paragraph of section 3--107(a) of
the Administrative Review Law (Review Law) (735 ILCS 5/3--107(a)
(West 1996)). Under that provision, the trial court must grant a
plaintiff 21 days to amend his complaint when it determines that a
party of record to the administrative proceedings was not made a
defendant as required by the first paragraph of section 3--107(a)
and where that party was not named by the administrative agency in
its final order as a party of record.
Plaintiff maintains that he should be allowed to amend the
complaint where the final order of the Commission contained only
two scrawled signatures of individual Commission members but the
order did not clearly name the members parties of record. In
asserting that he should have been allowed to amend his complaint,
plaintiff attempts to distinguish several decisions of this court
interpreting Lockett v. Chicago Police Board, 133 Ill. 2d 349
(1990) (complaint for administrative review properly dismissed
without leave to amend where no good-faith effort was made within
35-day period to name and serve superintendent of police department
as necessary party). See, e.g., International Precision Components
Corp. v. Lake County Zoning Board of Appeals, 282 Ill. App. 3d 735
(1996) (trial court erred in granting plaintiff 21 days to name and
serve individual members of board where they were named as parties
of record in board s final order); Orlowski v. Village of Villa
Park Board of Fire & Police Commissioners, 273 Ill. App. 3d 42
(1995) (failure to name individual members of board mandated
dismissal of complaint); Trettenero v. Police Pension Fund, 268
Ill. App. 3d 58 (1994) (trial court erred in dismissing individual
trustees of board where report of proceedings listed each trustee
as party of record and each trustee signed written decision
contrary to requirement of section 3--107(a) of Review Law).
Relying on Lockett, 133 Ill. 2d 349, plaintiff also argues
that, because he made a good-faith effort to comply with the
joinder provisions, he should have been allowed to amend his
complaint to name the individual members of the Commission. We
reverse the trial court s judgment for the reasons that follow.
It is unnecessary for this court to consider whether the
precedents cited by plaintiff must be distinguished in the present
case, as those precedents interpreted the statutory scheme as it
existed prior to the current amendments. We hold that the failure
to name the individual members of the Commission does not require
the dismissal of the complaint for administrative review because
the newly amended version of section 3--107(a), effective June 1,
1997, no longer requires the joinder of individual Commission
members to invoke jurisdiction under the Review Law where the
administrative agency has been named as a defendant. 735 ILCS 5/3-
-107(a) (West 1996); Rhoads v. Board of Trustees of the City of
Calumet City Policemen s Pension Fund, No. 1--96--1920, slip op. at
2 (December 26, 1997).
The amendment, which is underscored below, now causes section
3--107(a) to read as follows:
(a) Except as provided in subsection (b), in any action
to review any final decision of an administrative agency, the
administrative agency and all persons, other than the
plaintiff, who were parties of record to the proceedings
before the administrative agency shall be made defendants. No
action for administrative review shall be dismissed for lack
of jurisdiction based upon the failure to name an employee,
agent, or member, who acted in his or her official capacity,
of an administrative agency, board, committee, or government
entity, where the administrative agency, board, committee, or
government entity, has been named as a defendant as provided
in this Section. Naming the director or agency head, in his
or her official capacity, shall be deemed to include as
defendant the administrative agency, board, committee, or
government entity that the named defendants direct or head.
No action for administrative review shall be dismissed for
lack of jurisdiction based upon the failure to name an
administrative agency, board, committee, or government entity,
where the director or agency head, in his or her official
capacity, has been named as a defendant as provided in this
Section.
If, during the course of a review action, the court
determines that a party of record to the administrative
proceedings was not made a defendant as required by the
preceding paragraph, and only if that party was not named by
the administrative agency in its final order as a party of
record, then the court shall grant the plaintiff 21 days from
the date of the determination in which to name and serve the
unnamed party as a defendant. The court shall permit the newly
served defendant to participate in the proceedings to the
extent the interests of justice may require. 735 ILCS 5/3--
107(a) (West 1996).
Similarly, the amended portion of section 5/3--105, effective
June 1, 1997, concerning the service of summons, states:
No action for administrative review shall be dismissed for
lack of jurisdiction based upon the failure to serve summons
on an employee, agent, or member of an administrative agency,
board, committee, or government entity, acting in his or her
official capacity, where the administrative agency, board,
committee, or government entity has been served as provided in
this Section. 735 ILCS 5/3--105 (West 1996).
Previous judicial decisions construing the mandatory joinder
provision were based on the principle that, since the Review Law
is a departure from common law, the procedures it establishes must
be strictly adhered to. Lockett, 133 Ill. 2d at 353. Some
appellate judicial decisions treated the failure to name the
required parties within the 35-day time limit as a jurisdictional
defect. See McGaughy v. Illinois Human Rights Comm n, 165 Ill. 2d 1, 11 (1995) (citing cases; it is the filing of the complaint for
review within the 35-day period in the circuit court that is
jurisdictional, but the 35-day period for issuing summons is
mandatory but not jurisdictional); see also International
Precision, 282 Ill. App. 3d at 739.
The failure to name the parties properly may lead to harsh
results, as this court observed in Zelisko v. Board of Fire &
Police Commissioners, 285 Ill. App. 3d 323, 329 (1996). In
Lockett, for example, the plaintiff did not name the superintendent
of the police department as a defendant in the review action
because the plaintiff erroneously believed that naming the police
board constituted notice to the superintendent. Our supreme court
held that the complaint was nevertheless properly dismissed without
leave to amend the complaint where no good-faith effort was made
within the required 35-day period to name and serve a necessary
party-defendant. Lockett, 133 Ill. 2d at 355.
We believe that the obvious intent of the legislative
amendment is to reduce the possibility of error in naming and
serving individuals who are acting in their official capacities as
employees, agents, or members of the administrative agency or
governmental entity and to avoid the harsh result of dismissing the
complaint where the agency or entity has been named and served.
The implication of the amendment is that naming and serving the
agency or entity constitutes the joinder of and service on its
individual agents, employees, or members.
There is no argument in this case that the administrative
agency itself was not named and served as a defendant. The newly
amended version of the statutory scheme applies to the case at bar,
and the failure to name the individual board members is not fatal
to the complaint. The Appellate Court, First District, has come to
the same conclusion, and we agree with that decision. Rhoads, slip
op. at 2-3, relying in part on Martin v. Department of Professional
Regulation, 284 Ill. App. 3d 591 (1996).
Ordinarily, a reviewing court applies the law as it exists at
the time of the appeal, unless doing so would interfere with a
vested right. First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 289-90 (1996). A vested rights analysis is preferred where it
will avoid problems in determining the legislative intent or in
distinguishing between substantive and procedural changes in the
law. Harraz v. Snyder, 283 Ill. App. 3d 254, 261 (1996).
Although not capable of precise definition, a vested right is a
complete and unconditional demand or exemption that may be equated
with a property interest. Armstead, 171 Ill. 2d at 291. Where no
vested rights are involved, either because they are not yet
perfected or because the amendment is procedural in nature, the
amendment can be applied to the existing controversy without any
retroactive impact. Armstead, 171 Ill. 2d at 290.
There is no vested right to the mere continuance of a statute
because the legislature has a right to amend a statute. Armstead,
171 Ill. 2d at 291. The amendment amounted to a procedural change
in the Review Law and does not affect a vested right (Rhoads, slip
op. at 3; Martin, 284 Ill. App. 3d at 596). See Lockett, 133 Ill. 2d at 352-53 (treating statutory provisions as procedural
requirements ). The amendment did not create a new obligation or
duty with respect to a past transaction. Armstead, 171 Ill. 2d at
291. Thus, the amended provision can be applied to the existing
controversy without any truly retroactive impact, and it was error
for the trial court to dismiss the complaint with prejudice. In
view of our determination that the amended provisions apply, we
need not decide whether plaintiff should have been allowed to amend
his complaint because he made a good-faith effort to name the
necessary parties.
The judgment of the circuit court of Lake County is reversed,
and the cause is remanded for further proceedings not inconsistent
with the views expressed herein.
Reversed and remanded.
McLAREN and HUTCHINSON, JJ., concur.