Rochon v. Rodriquez

SECOND DIVISION
December 30, 1997

1-96-4180

JOHN P. ROCHON and TERRENCE JULIAN, ) APPEAL FROM
) THE CIRCUIT COURT
Petitioners, ) COOK COUNTY.
)
)
v. ) No. 96 CH 0002206
)
MATT RODRIGUEZ, Superintendent of )
Police, City of Chicago; )
Thomas P. Sadler, Director of Personnel;)
and THE CITY OF CHICAGO, ) THE HONORABLE
) STEPHEN A. SCHILLER,
Respondents. ) JUDGE PRESIDING.

JUSTICE COUSINS delivered the opinion of the court:
Appellants, John P. Rochon and Terrence Julian, were
discharged from their positions as probationary police officers
with the Chicago police department in February 1996. They appeal
from the trial court's dismissal of their petition for
administrative review in which they sought reinstatement of their
positions from appellees Matt Rodriguez, superintendent of police
for the City of Chicago, Thomas P. Sadler, director of personnel
for the City of Chicago, and the City of Chicago. Appellants also
appeal from the denial of their motion to reconsider. On appeal,
appellants contend, inter alia, that they were entitled to
judicial review of their claims and that they are entitled to
reinstatement because they were disciplined twice for the same
conduct.
BACKGROUND
In their petition for administrative review, appellants

allege the following facts. They began working as probationary
police officers with the City of Chicago on August 7, 1995. On
November 24, 1995, Rochon missed several classes at the Chicago
Basic Recruit Training Program because he went home to get an
inhaler for his asthma attack. On November 24, 1995, Julian
missed several classes because he ingested certain medicine for
his flu which caused him to oversleep his lunch hour. Appellants
had no prior record of absences. On November 27, 1995, when
appellants returned to work, they were removed from the training
program and placed on desk duty. Appellants also allege that
they were advised that they were being penalized for their
absences, that they would not be able to graduate with their class
on January 23, 1996, and that they would be required to begin
training again with a new class. Appellants did not graduate with
their class and were terminated from the police department on
February 2, 1996.
On March 5, 1996, appellants filed a petition for
administrative review pursuant to section 3-112 of the
Administrative Review Law (735 ILCS 5/3-112 (West 1992)) (Act), in
which they contended that they were entitled to reinstatement
because appellees did not have authority to punish them "multiple
and successive times for the same conduct." On April 10, 1996,
appellees filed a motion to dismiss appellants' petition pursuant
to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619
(West 1992)). Appellees argued that the trial court had no
jurisdiction over the action because there had been no final
decision of an administrative agency as required by the Act and
that the superintendent's decision to terminate appellants did not
constitute a final decision of an administrative agency.
Appellees further argued that the Act did not allow for review of
discretionary disciplinary decisions of the superintendent. After
a hearing, the trial court dismissed the petition.
Thereafter, appellants filed a motion to reconsider to which
appellees answered. A hearing was held on the motion at which the
trial court, relative to the merits of appellants' complaint,
stated that, in its view, appellants received one "continuous
sanction" for their actions and were not punished twice for the
same conduct. The trial court then dismissed the motion to
reconsider. This appeal followed.
We reverse and remand.
ANALYSIS
Appellants contend that the superintendent violated section
2--84--050 of the City of Chicago Municipal Code (Chicago
Municipal Code  2--84--050 (1990)), when he suspended and later
discharged them. Appellants further contend that they labeled
their complaint as a "Petition for Administrative Review" because
they believed that the superintendent rendered a final agency
decision by acting on behalf of the City of Chicago. Appellants
also argue that their complaint sufficiently stated a cause of
action for common law certiorari or a writ of mandamus even if
judicial review is not available under the Administrative Review
Law. We disagree with appellants on these issues.
The Administrative Review Law applies only where it is
adopted by express reference in the act creating or conferring
power upon the administrative agency involved. Philger, Inc. v.
Department of Revenue, 208 Ill. App. 3d 1066, 1069, 567 N.E.2d 773
(1991). In the instant case, appellants cite section 10-1-45 of
the Illinois Municipal Code (65 ILCS 5/10-1-45 (West 1992)), to
support their argument that the superintendent's decision is
reviewable under the Administrative Review Law. Section 10-1-45
of the Act provides:
" 10-1-45. The provisions of the Administrative
Review Law, and all amendments and modifications thereof, and
the rule adopted pursuant thereto, shall apply to and govern
all proceedings for the judicial review of final
administrative decisions of a Civil Service Commission, or of
the Police Board of a city of more than 500,000 population.
The term 'administrative decision' is defined in Section 3-
101 of the Code of Civil Procedure." 65 ILCS 5/10-1-45 (West
1992).
Here, the decision to discharge appellants was made by the
superintendent and not the Civil Service Commission or the police
board. Therefore, the superintendent's actions are not reviewable
under the Administrative Review Law.
Moreover, judicial review of appellants' petition was not
available by common law certiorari. The purpose of the common law
writ of certiorari is to have the entire record of an inferior
tribunal brought before a reviewing court to determine, from the
record alone, whether that body acted in accordance with
applicable law. Stratton v. Wenona Community Unit District No. 1,
133 Ill. 2d 413, 427, 551 N.E.2d 640 (1990). The writ has its
origins in chancery. Hartket v. Will County Board of Review, 106
Ill. App. 3d 950, 954, 436 N.E.2d 1073 (1982). Its application is
limited to obtaining review over a decision by an inferior court
or tribunal where that body has acted without jurisdiction,
exceeded its jurisdiction or where it is shown that the court or
tribunal did not follow the essential procedural requirements
applicable to the cases before it. City of Highwood v. Obenberger,
238 Ill. App. 3d 1066, 1075, 605 N.E.2d 1079 (1992). Appellants
cite several cases to support their argument that they are
entitled to judicial review under a writ of certiorari. However,
these cases are distinguishable as they involved decisions by
tribunals or lower courts. See Maddox v. Williamson County Board
of Commissioners, 131 Ill. App. 3d 816, 475 N.E.2d 1349
(1985)(former county supervisor of assessments brought action for
review of county board of commissioners); Philger, Inc. v.
Department of Revenue, 208 Ill. App. 3d 1066, 567 N.E.2d 773
(1991)(purchaser of restaurant business brought action seeking
administrative review of decision of the Board of Appeals of the
Department of Revenue); People ex rel. Vestuto v. O'Connor, 351
Ill. App. 539, 115 N.E.2d 810 (1953)(discharged employee brought
mandamus suit against Civil Service Commission); People ex rel.
Dever v. Wilson, 107 Ill. App. 2d 223, 246 N.E.2d 863
(1969)(appointee brought mandamus suit against Civil Service
Commission).
In the case sub judice, the superintendent is not a tribunal
or inferior court. Moreover, the superintendent's decisions to
discipline appellants were not judicial or quasi-judicial acts.
Therefore, upon review of appellants' petition, it is our view
that judicial review per a writ of certiorari is wholly
inappropriate in this case.
Furthermore, mandamus was not an appropriate remedy in this
case either. Mandamus relief is an extraordinary remedy used to
direct a public official or body to perform a duty that the
plaintiff has a clear right to have performed and that is
ministerial, i.e., a duty that does not involve the exercise of
judgment or discretion. Crump v. Illinois Prisoner Review Board,
181 Ill. App. 3d 58, 60, 536 N.E.2d 875 (1989). Mandamus cannot
be used to direct a public official or body to reach a particular
decision or to exercise its discretion in a particular manner,
even if the judgment or discretion has been erroneously exercised.
Daley v. Hett, 113 Ill. 2d 75, 80, 495 N.E.2d 513 (1986). In the
instant case, appellants had not established a clear right to be
reinstated. Therefore, the trial court could not use mandamus to
direct the superintendent to exercise its discretion.
However, even though the trial court could not order mandamus
relief and had no jurisdiction to review appellants' petition
under the Administrative Review Law or per a writ of certiorari,
we believe appellants' petition stated a cause of action for which
the chancery court had subject matter jurisdiction. In general
terms, the subject matter jurisdiction of the circuit courts of
this state is the power to hear a given class of cases. City of
Chicago v. Chicago Board of Education, 277 Ill. App. 3d 250, 261,
660 N.E.2d 74 (1995). As derived from the Illinois Constitution,
that jurisdiction extends to all justiciable matters with only
limited exceptions. City of Chicago, 277 Ill. App. 3d at 261.
Circuit courts have "original jurisdiction of all justiciable
matters" with only limited exceptions. Ill. Const. 1970, art. VI,
 9. A justiciable question is one that involves the adverse
legal interests of the parties. Ligon v. Williams, 264 Ill. App.
3d 701, 707, 637 N.E.2d 633 (1994). In application to any
particular case, the subject matter jurisdiction of the court is
the power to hear and determine those interests. City of Chicago,
277 Ill. App. 3d at 261. The circuit court's authority to
exercise its jurisdiction and resolve a justiciable question is
invoked through the filing of a complaint or petition. Ligon, 264
Ill. App. 3d at 707. These pleadings function to frame the issues
for the trial court and to circumscribe the relief the court is
empowered to order. Ligon, 264 Ill. App. 3d at 707. In our
view, the petition filed in the instant case sufficiently framed
the issues such that a justiciable question existed as to whether
the superintendent had imposed a double punishment in
contravention of section 2--84--050 of the Chicago Municipal Code
(Chicago Municipal Code  2--84--050 (1990)). Section 2--84--
050 of the Chicago Municipal Code provides in pertinent part:
"Subject to the rules of the department and the instruction
of the board, said superintendent shall have the power and
the duty:
***
(4) To appoint, discharge, suspend or transfer the
employees of the department other than the secretary of
the board and to issue instructions to said employees
other than the secretary in the line of their duties."
Appellants pled the following allegations in their petition
regarding the discipline they received for their absences:
"6. On November 27, 1995, when both of the officers
returned to work, they were removed from the Chicago Basic
Recruit Training Program, placed on desk duty, and were
advised that they were being penalized for the absence
transgression and would not be able to graduate with the
class on January 23, 1996, and would be required to start
anew with a new class.
7. Both officers were then continued on duty but were
not allowed to graduate with their class on January 23, 1996.
8. On Friday, February 2, 1996, each of the officers
was terminated from the Chicago Police Department.
* * *
12. *** No rule of the Chicago Police Department
allows for successive and/or multiple punishments for the
same conduct, and responents [sic] have no authority to order
successive and/or multiple punishments."
In denying appellants' motion to reconsider, the trial court
stated:
"I believe that I was correct when I ruled originally.
I think facially, we have a situation here where I suppose
you could characterize it as double discipline, but, really,
even taking the Plaintiffs' [sic] position at face value, in
essence, it is one sanction. It is a continuous sanction."
In our view, the trial court erred.
We recognize that the police department is not required to
grant review of the superintendent's discretionary terminations of
probationary police officers. Brzana v. Martin, 211 Ill. App. 3d
415, 421, 570 N.E.2d 411 (1991); Romanik v. Board of Fire & Police
Commissioners, 61 Ill. 2d 422, 425, 338 N.E.2d 397 (1975).
However, this general rule is not an absolute. Superintendents
may fire probationary officers for any legal reason without a
hearing; however, they cannot do so in an improper manner.
Messina v. City of Chicago, 145 Ill. App. 3d 549, 556, 495 N.E.2d 1228 (1996). Thus, a probationary employee cannot be dismissed
for a reason that has been the basis of a previous disciplinary
sanction. Messina, 145 Ill. App. 3d at 556; see also Burton v.
Civil Service Comm'n, 76 Ill. 2d 522, 527-28 (1979). On that
point, Messina v. City of Chicago, 145 Ill. App. 3d 549 (1996), is
instructive.
In Messina, plaintiff, a bricklayer who was a probationary
employee with the department of public works for the City of
Chicago, was suspended for two days for allowing a racial insult
to remain inscribed in fresh cement. After the suspension,
plaintiff worked for the remainder of his probationary period
without incident. 145 Ill. App. 3d at 551. He was discharged
about four months later, one day before he would have attained
career service status. Plaintiff brought an action for
declaratory judgment challenging his discharge. In count I of the
action, plaintiff alleged that he had been discharged in violation
of the city' personnel rules, which provide that a department head
may suspend a probationary employee without review of the action.
145 Ill. App. 3d at 551. Defendants did not dispute that
plaintiff's suspension and discharge were based on the same
incident. Nevertheless, the trial court dismissed the plaintiff's
complaint for failure to state a cause of action. 145 Ill. App.
3d at 551. The appellate court reversed the trial court's
dismissal of count I of the plaintiff's complaint. The appellate
court stated that the city's personnel rules, which allowed the
department head either to suspend or to discharge a probationary
employee, did not allow the department head or anyone else to both
suspend and later discharge a probationary employee as discipline
for the same offense. 145 Ill. App. 3d at 555.
The facts in Messina are similar to the facts in the instant
case. Here, as in Messina, appellants alleged facts which
indicate that there is a material factual dispute as to whether
they received double punishment for the same offense. Appellants
alleged that, in November 1995, they were advised that they were
being removed from the training program and put on desk duty as
punishment for their absences. Appellants further alleged that,
over two months later, appellants were terminated on the basis of
the same absences. A motion for dismissal under section 2-619
(735 ILCS 5/2-619 (West 1992)) should only be granted in those
cases were there are no material facts in dispute and the
respondent is entitled dismissal as a matter of law. Frydman v.
Horn Eye Center, Ltd., 286 Ill. App. 3d 853, 857, 676 N.E.2d 1355
(1997). Accordingly, we apply a de novo standard of review.
Frydman, 286 Ill. App. 3d at 857.
Based on the facts alleged in appellants' petition, we hold
that the trial court erred in granting appellees' motion to
dismiss because material facts were in dispute as to whether
appellants received double punishment for their absences from the
training program in contravention of section 2--84--050 of the
Chicago Municipal Code (Chicago Municipal Code  2--84--050
(1990)). Accordingly, the trial court's dismissal of appellants'
petition is reversed and the cause is remanded for further
proceedings consistent with this opinion.
Reversed and remanded.
RAKOWSKI and TULLY, JJ., concur.