Fontana v. Highwood Police Pension Bd.
Annotate this Case
No. 2--97--0815
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
DAVID F. FONTANA, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
)
v. ) No. 97--MR--97
)
THE HIGHWOOD POLICE PENSION )
BOARD, VINCE ROONEY, AL )
GUADAGNO, WILLIAM CURLEY, BRUNO )
PAGLIAI, and GARY SMITH, )
as Trustees, ) Honorable
) Jack Hoogasian,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________
JUSTICE INGLIS delivered the opinion of the court:
Plaintiff, David Fontana, appeals the order of the circuit
court of Lake County dismissing his complaint. Plaintiff contends
that the court erred in dismissing his complaint on the ground that
plaintiff requested a form of relief, a writ of certiorari, that is
prohibited by the Administrative Review Law (735 ILCS 5/3-102 (West
1996)). We reverse and remand.
Plaintiff, a former Highwood police officer, applied for a
line-of-duty disability pension. The Highwood Police pension board
(the board) denied his request. Plaintiff then filed in the
circuit court a pleading entitled PETITION FOR ADMINISTRATIVE
REVIEW. Defendants are the board and its individual members. The
complaint alleges that the purpose of the proceeding is to review
the board's determination denying plaintiff disability retirement
benefits. Plaintiff alleges the board made erroneous rulings and
misinterpretations of law. The prayer for relief requests that a
writ of certiorari [sic] or other appropriate writ be issued by
this Court, directed to respondents requiring them to certify
fully, within 35 days, the record or proceedings in respect of the
above mentioned matters and that the same may be reviewed by this
Court to the end that the [b]oard s decision be reversed, and that
petitioner be awarded a pension, or in the alternative that the
decision of the [board] may be quashed and the matter remanded to
the [b]oard for a new [h]earing; or any other relief this Court
deems just and equitable.
Defendants moved to dismiss the complaint on the ground that
section 3--102 of the Administrative Review Law (the Act) (735 ILCS
5/3--102 (West 1996)) provides that an action under the Act is the
exclusive means of obtaining review of an administrative decision
and specifically prohibits the use of common law writs. The trial
court agreed. The court further held that Lockett v. Chicago
Police Board, 133 Ill. 2d 349 (1990), holds that a complaint for
administrative review may not be amended after the 35-day
jurisdictional period. Therefore, the court dismissed the
complaint with prejudice. After the court denied his motion to
reconsider, plaintiff filed a timely notice of appeal.
Plaintiff contends that the court erred in dismissing his
complaint. He argues that the substance of his pleading
sufficiently states a cause of action under the Act and that the
single inappropriate reference to a writ of certiorari should not
be fatal. Defendants respond that the plain language of the Act
abolishes the use of common law writs to review administrative
decisions and that Lockett mandates that the Act's requirements be
strictly observed.
The court dismissed the complaint pursuant to section 2--
619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2--619(a)(9)
(West 1996)). In considering a section 2--619 motion to dismiss,
all well-pleaded facts are deemed admitted. Becker v. Zellner, 292
Ill. App. 3d 116, 122 (1997). The moving party "admits the legal
sufficiency of the complaint but asserts an affirmative defense or
other matter that avoids or defeats the claim." Brock v. Anderson
Road Ass'n, 287 Ill. App. 3d 16, 21 (1997). The granting of a
section 2--619 motion to dismiss is reviewed de novo. Kedzie &
103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116
(1993); Brock, 287 Ill. App. 3d at 21.
Defendants argue that section 3--102 of the Act mandates
dismissal of plaintiff's complaint. Section 3--102 provides that
Article III of the Code of Civil Procedure (the Code) (735 ILCS
5/1--101 et seq. (West 1996)), entitled Administrative Review,
applies to and governs every action to review judicially a final
decision of an administrative agency. 735 ILCS 5/3--102 (West
1996). The statute further provides, in relevant part,
In all such cases, any other statutory, equitable or common
law mode of review of decisions of administrative agencies
heretofore available shall not hereafter be employed.
Unless review is sought of an administrative decision
within the time and in the manner herein provided, the parties
to the proceeding before the administrative agency shall be
barred from obtaining judicial review of such administrative
decision. 735 ILCS 5/3--102 (West 1996).
This section thus provides that no other form of relief shall
be employed; it does not state that any reference to any other form
of relief shall automatically be fatal to the complaint. Here,
plaintiff's complaint specifically references the Act. The
substantive allegations provide a basis for reviewing the board's
decision. The prayer for relief specifically requests that
plaintiff be granted a pension and receive such additional relief
as the court deems just. The only mention of certiorari is a
request to require the board to certify the record of proceedings
before the agency. We note that the Act requires a defendant
agency to file the record with its answer. 735 ILCS 5/3--108(b)
(West 1996). Thus, the reference to certiorari is entirely
superfluous. The substance of the complaint clearly seeks
administrative review of the board's decision.
The Administrative Review Law is part of the Code. The Code
provides that it shall be liberally construed, to the end that
controversies may be speedily and finally determined according to
the substantive rights of the parties. 735 ILCS 5/1--106 (West
1996). Contrary to defendants' apparent contention, the Code's
general provisions do apply to administrative review actions. See
735 ILCS 5/1--108 (West 1996) (provisions of Civil Practice Law
apply to proceedings under Article III). Thus, section 2--617 (735
ILCS 5/2--617 (West 1996)), which provides that seeking the wrong
remedy is not fatal, applies to administrative review actions.
Therefore, even if plaintiff's request for certiorari were viewed
as a request for a writ to review the agency's decision, it would
not be fatal to plaintiff's complaint. In light of the Code's
policy of determining controversies on their merits rather than on
the basis of technical pleading requirements, plaintiff's
incidental reference to certiorari was not a sufficient basis to
dismiss the complaint.
Lockett, on which defendants chiefly rely, is distinguishable.
In that case, the court held that a provision of the Act requiring
that all parties of record in the administrative proceeding be made
parties to the review action was mandatory and jurisdictional
(Lockett, 133 Ill. 2d at 354), and that a complaint could not be
amended to name additional parties after the 35-day period had
expired (Lockett, 133 Ill. 2d at 354-55).
By contrast, section 3--102 states only that no other remedy
shall be employed. By its terms, that section is a restriction
on the trial court's power to grant a remedy, not a pleading
requirement. Quite simply, nothing in the plain language of the
statute provides that the failure to request the proper remedy is
a defect that deprives the court of jurisdiction over a complaint.
Moreover, we note that the legislature has amended the Act to
provide that an action shall not be dismissed for lack of
jurisdiction based on the failure to name an agency member or
employer as long as the agency is named as a party, and to permit
a plaintiff to amend his complaint to add such a party. Pub. Act
89--685, 25, eff. June 1, 1997 (amending 735 ILCS 5/3--107 (West
1996)). This court has held that the amendment applies retro-
actively. Richard's Tire Co. v. Zehnder, No. 2--96--1406, slip op.
at 11 (2d Dist. March 6, 1998); see also Bunnell v. Civil Service
Commission, No. 2--97--0328. slip op. at 7 (2d Dist. March 17,
1998)). It would be incongruous indeed if the failure to name a
proper party were not fatal to a complaint, but an incidental
reference to an unauthorized form of relief mandated immediate
dismissal. The statute does not require such a result.
The judgment of the circuit court of Lake County is reversed,
and the cause is remanded for further proceedings.
Reversed and remanded.
COLWELL and HUTCHINSON, JJ., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
DAVID F. FONTANA, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
)
v. ) No. 97--MR--97
)
THE HIGHWOOD POLICE PENSION )
BOARD, VINCE ROONEY, AL )
GUADAGNO, WILLIAM CURLEY, BRUNO )
PAGLIAI, and GARY SMITH, )
as Trustees, ) Honorable
) Jack Hoogasian,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________
JUSTICE INGLIS delivered the opinion of the court:
Plaintiff, David Fontana, appeals the order of the circuit
court of Lake County dismissing his complaint. Plaintiff contends
that the court erred in dismissing his complaint on the ground that
plaintiff requested a form of relief, a writ of certiorari, that is
prohibited by the Administrative Review Law (735 ILCS 5/3-102 (West
1996)). We reverse and remand.
Plaintiff, a former Highwood police officer, applied for a
line-of-duty disability pension. The Highwood Police pension board
(the board) denied his request. Plaintiff then filed in the
circuit court a pleading entitled PETITION FOR ADMINISTRATIVE
REVIEW. Defendants are the board and its individual members. The
complaint alleges that the purpose of the proceeding is to review
the board's determination denying plaintiff disability retirement
benefits. Plaintiff alleges the board made erroneous rulings and
misinterpretations of law. The prayer for relief requests that a
writ of certiorari [sic] or other appropriate writ be issued by
this Court, directed to respondents requiring them to certify
fully, within 35 days, the record or proceedings in respect of the
above mentioned matters and that the same may be reviewed by this
Court to the end that the [b]oard s decision be reversed, and that
petitioner be awarded a pension, or in the alternative that the
decision of the [board] may be quashed and the matter remanded to
the [b]oard for a new [h]earing; or any other relief this Court
deems just and equitable.
Defendants moved to dismiss the complaint on the ground that
section 3--102 of the Administrative Review Law (the Act) (735 ILCS
5/3--102 (West 1996)) provides that an action under the Act is the
exclusive means of obtaining review of an administrative decision
and specifically prohibits the use of common law writs. The trial
court agreed. The court further held that Lockett v. Chicago
Police Board, 133 Ill. 2d 349 (1990), holds that a complaint for
administrative review may not be amended after the 35-day
jurisdictional period. Therefore, the court dismissed the
complaint with prejudice. After the court denied his motion to
reconsider, plaintiff filed a timely notice of appeal.
Plaintiff contends that the court erred in dismissing his
complaint. He argues that the substance of his pleading
sufficiently states a cause of action under the Act and that the
single inappropriate reference to a writ of certiorari should not
be fatal. Defendants respond that the plain language of the Act
abolishes the use of common law writs to review administrative
decisions and that Lockett mandates that the Act's requirements be
strictly observed.
The court dismissed the complaint pursuant to section 2--
619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2--619(a)(9)
(West 1996)). In considering a section 2--619 motion to dismiss,
all well-pleaded facts are deemed admitted. Becker v. Zellner, 292
Ill. App. 3d 116, 122 (1997). The moving party "admits the legal
sufficiency of the complaint but asserts an affirmative defense or
other matter that avoids or defeats the claim." Brock v. Anderson
Road Ass'n, 287 Ill. App. 3d 16, 21 (1997). The granting of a
section 2--619 motion to dismiss is reviewed de novo. Kedzie &
103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116
(1993); Brock, 287 Ill. App. 3d at 21.
Defendants argue that section 3--102 of the Act mandates
dismissal of plaintiff's complaint. Section 3--102 provides that
Article III of the Code of Civil Procedure (the Code) (735 ILCS
5/1--101 et seq. (West 1996)), entitled Administrative Review,
applies to and governs every action to review judicially a final
decision of an administrative agency. 735 ILCS 5/3--102 (West
1996). The statute further provides, in relevant part,
In all such cases, any other statutory, equitable or common
law mode of review of decisions of administrative agencies
heretofore available shall not hereafter be employed.
Unless review is sought of an administrative decision
within the time and in the manner herein provided, the parties
to the proceeding before the administrative agency shall be
barred from obtaining judicial review of such administrative
decision. 735 ILCS 5/3--102 (West 1996).
This section thus provides that no other form of relief shall
be employed; it does not state that any reference to any other form
of relief shall automatically be fatal to the complaint. Here,
plaintiff's complaint specifically references the Act. The
substantive allegations provide a basis for reviewing the board's
decision. The prayer for relief specifically requests that
plaintiff be granted a pension and receive such additional relief
as the court deems just. The only mention of certiorari is a
request to require the board to certify the record of proceedings
before the agency. We note that the Act requires a defendant
agency to file the record with its answer. 735 ILCS 5/3--108(b)
(West 1996). Thus, the reference to certiorari is entirely
superfluous. The substance of the complaint clearly seeks
administrative review of the board's decision.
The Administrative Review Law is part of the Code. The Code
provides that it shall be liberally construed, to the end that
controversies may be speedily and finally determined according to
the substantive rights of the parties. 735 ILCS 5/1--106 (West
1996). Contrary to defendants' apparent contention, the Code's
general provisions do apply to administrative review actions. See
735 ILCS 5/1--108 (West 1996) (provisions of Civil Practice Law
apply to proceedings under Article III). Thus, section 2--617 (735
ILCS 5/2--617 (West 1996)), which provides that seeking the wrong
remedy is not fatal, applies to administrative review actions.
Therefore, even if plaintiff's request for certiorari were viewed
as a request for a writ to review the agency's decision, it would
not be fatal to plaintiff's complaint. In light of the Code's
policy of determining controversies on their merits rather than on
the basis of technical pleading requirements, plaintiff's
incidental reference to certiorari was not a sufficient basis to
dismiss the complaint.
Lockett, on which defendants chiefly rely, is distinguishable.
In that case, the court held that a provision of the Act requiring
that all parties of record in the administrative proceeding be made
parties to the review action was mandatory and jurisdictional
(Lockett, 133 Ill. 2d at 354), and that a complaint could not be
amended to name additional parties after the 35-day period had
expired (Lockett, 133 Ill. 2d at 354-55).
By contrast, section 3--102 states only that no other remedy
shall be employed. By its terms, that section is a restriction
on the trial court's power to grant a remedy, not a pleading
requirement. Quite simply, nothing in the plain language of the
statute provides that the failure to request the proper remedy is
a defect that deprives the court of jurisdiction over a complaint.
Moreover, we note that the legislature has amended the Act to
provide that an action shall not be dismissed for lack of
jurisdiction based on the failure to name an agency member or
employer as long as the agency is named as a party, and to permit
a plaintiff to amend his complaint to add such a party. Pub. Act
89--685, 25, eff. June 1, 1997 (amending 735 ILCS 5/3--107 (West
1996)). This court has held that the amendment applies retro-
actively. Richard's Tire Co. v. Zehnder, No. 2--96--1406, slip op.
at 11 (2d Dist. March 6, 1998); see also Bunnell v. Civil Service
Commission, No. 2--97--0328. slip op. at 7 (2d Dist. March 17,
1998)). It would be incongruous indeed if the failure to name a
proper party were not fatal to a complaint, but an incidental
reference to an unauthorized form of relief mandated immediate
dismissal. The statute does not require such a result.
The judgment of the circuit court of Lake County is reversed,
and the cause is remanded for further proceedings.
Reversed and remanded.
COLWELL and HUTCHINSON, JJ., concur.
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