Zelisko v. Board of Fire & Police Commissioners

No. 2--96--0285
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

MARTIN ZELISKO, ) Appeal from the Circuit Court
) of Du Page County.
)
Plaintiff-Appellee, ) No. 95--MR--0051
)
v. )
)
THE BOARD OF FIRE AND POLICE )
COMMISSIONERS OF THE VILLAGE )
OF OAK BROOK; THE VILLAGE OF )
OAK BROOK; RICHARD ASCHER, )
as Chairman and Member of the )
Board of Fire and Police )
Commissioners of the Village )
of Oak Brook; SUE SANFORD, )
as Secretary and Member of the )
Board of Fire and Police )
Commissioners of the Village )
of Oak Brook; JOHN CRAIG, )
as Member of the Board of Fire )
and Police Commissioners of the )
Village of Oak Brook; JAMES R. )
FLEMING, as Police Chief of the )
Village of Oak Brook, ) Honorable
) Bonnie M. Wheaton,
Defendants-Appellants. ) Judge, Presiding.
_________________________________________________________________

JUSTICE DOYLE delivered the opinion of the court:

In August 1994, James Fleming (Chief), the chief of the Oak
Brook police department (Department), filed disciplinary charges
with the Board of Fire and Police Commissioners of the Village of
Oak Brook (Board) against plaintiff, Martin Zelisko, a police
officer with the Department. On December 15, 1994, the Board, with
one of its three members dissenting, determined that plaintiff was
guilty of wrongdoing and issued a final order imposing a 30-day
suspension of plaintiff without pay.
On January 18, 1995, plaintiff filed a complaint in the
circuit court of Du Page County for administrative review of the
Board's decision pursuant to the Administrative Review Law (735
ILCS 5/3--101 et seq. (West 1994)). Plaintiff's complaint named as
defendants: the Board, the Village of Oak Brook (Village), the
Chief, and the two Board members who decided that plaintiff was
guilty of wrongdoing. The complaint did not name the dissenting
Board member as a defendant. A summons was issued and served on
each of the named defendants.
On October 3, 1995, the trial court concluded that the Board's
findings that plaintiff was guilty of wrongdoing were against the
manifest weight of the evidence and clearly erroneous. The court
entered an order reversing the Board's finding of guilty and the
30-day suspension of plaintiff.
On October 24, 1995, the named defendants motioned to vacate
the trial court order of October 3, 1995, and to dismiss
plaintiff's complaint. The named defendants based their motion on
plaintiff's failure to name the dissenting Board member, John W.
Craig, as a defendant.
On January 4, 1996, after a hearing on the matter, the trial
court found that the Board did not name Craig as a party, but that
Craig was a party of record to the proceedings. The court entered
an order which denied defendants' motion to vacate and dismiss.
During the hearing, the trial court stated the following:
"And I will grant the Plaintiff an additional 21 days
to serve [Craig] in the manner set forth in Section 3-103 of
this Act [735 ILCS 5/3--103 (West 1994)].
I think any other construction or application of the
statute would unduly penalize the Plaintiff by depriving him
of what I have already found was a valid cause of action.
And I believe that there was good faith on the part of
the Plaintiff and his counsel in naming all the persons who
apparently took an adverse stand to that of the Plaintiff."
On January 11, 1996, plaintiff filed his first amended
complaint and a summons was issued on Craig. The first amended
complaint added Craig as a named defendant.
On February 8, 1996, the trial court conducted a hearing to
determine if it was impermissible to join Craig at this juncture in
the proceedings as argued by Craig's attorney. After the hearing,
the trial court entered an order reaffirming its order of October
3, 1995 (reversing the Board's decision).
Defendants' timely appeal followed. Defendants appeal from
the trial court's orders of October 3, 1995, January 4, 1996, and
February 8, 1996.
On appeal, defendants first contend that the trial court
should have dismissed plaintiff's complaint because plaintiff
failed to name Craig as a defendant within the time period mandated
by the Administrative Review Law. The parties agree that the
Administrative Review Law (735 ILCS 5/3--101 et seq. (West 1994))
governs the procedural requirements for judicial review of the
Board's decision. Our supreme court has determined that these
procedural requirements must be strictly adhered to because the
Administrative Review Law is a departure from the common law.
Lockett v. Chicago Police Board, 133 Ill. 2d 349, 353 (1990).
Section 3--102 of the Administrative Review Law cautions
parties seeking administrative review that review may be barred if
the procedures set out in the Administrative Review Law are not
followed. Specifically, section 3--102 provides, in relevant part,
that "[u]nless 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 1994).
Section 3--103 of the Administrative Review Law sets out the
general rule for the commencement of an administrative review
action. Section 3--103 requires that an action for administrative
review "shall be commenced by the filing of a complaint and the
issuance of summons within 35 days from the date that a copy of the
decision sought to be reviewed was served upon the party affected
by the decision." 735 ILCS 5/3--103 (West 1994).
Section 3--107(a) of the Administrative Review Law defines the
persons who must be made defendants in an action for administrative
review. Section 3--107(a), as in effect at the time plaintiff
filed his complaint, provided, in pertinent part, as follows:
"[I]n any action to review any final decision of an
administrative agency, the administrative agency and all
persons, other than the plaintiff, who were named by the
administrative agency in its final order as parties of
record to the proceedings before the administrative agency
shall be made defendants.
If the court determines that a person or party not
named by the administrative agency as a party in its final
order was a party of record to the proceedings ***, the
court shall grant the plaintiff an additional 21 days to
serve the unnamed party *** in the manner set forth in
Section 3--103 of this Act." 735 ILCS 5/3--107(a) (West
1994).
In International Precision Components Corp. v. Lake County
Zoning Board of Appeals, 282 Ill. App. 3d 735 (1996), this court
construed the language in section 3--107(a) quoted above. We
determined that this language created two classes of persons who
were parties of record to the proceedings and therefore were
mandatory defendants. 282 Ill. App. 3d at 740. These classes are:
persons who were named by the administrative agency in its final
order as parties of record to the proceedings, and persons who were
not so named. 282 Ill. App. 3d at 740. We held that the 35-day
jurisdictional limit set out in section 3--103 of the
Administrative Review Law applied to persons named by the
administrative agency as parties of record to the proceedings and
that the additional 21 days applied only to persons who were
parties of record to the proceedings but were not so named by the
administrative agency in its final order. 282 Ill. App. 3d at 740.
In this case, after the trial court ruled in plaintiff's favor
to reverse the Board's decision, defendants motioned to dismiss
plaintiff's complaint on the ground that plaintiff failed to name
Craig as a defendant. The trial court subsequently determined that
the Board had not named Craig as a party of record to the
proceedings, but that Craig was a party of record to the
proceedings. This determination placed Craig in the second class
of mandatory defendants under section 3--107(a), and the trial
court allowed plaintiff 21 additional days to name and serve Craig.
However, the trial court erred when it determined that the
Board did not name Craig as a party of record to the proceedings.
In International Precision, we determined that the administrative
agency in that case named the individual members of the
administrative agency as parties of record to the proceedings
where: the individual members' names appeared in the text of the
final order; the individual members' names appeared throughout the
hearing transcripts; and each individual member signed the
administrative agency's final decision. International Precision,
282 Ill. App. 3d at 740. Similarly, in this case, Craig's name
appears in the text of the Board's final order, Craig's name
appears throughout the hearing transcripts, and Craig signed his
dissent which was attached to the Board's final order. Thus,
contrary to the trial court's determination, the Board did name
Craig in its final order as a party of record to the proceedings.
Because the Board named Craig in its final order as a party of
record to the proceedings, Craig was a Class 1 defendant under
section 3--107(a) of the Administrative Review Law and not a
Class 2 defendant as the trial court determined. Section 3--107(a)
does not provide for any additional time beyond that set out in
section 3--103 for a plaintiff to name as defendants and serve
summons on Class 1 defendants. See International Precision, 282
Ill. App. 3d at 740. Thus, plaintiff was required to name Craig as
a defendant and issue summons on him within 35 days after the
Board's decision was served on plaintiff. 735 ILCS 5/3--103 (West
1994). It is undisputed that plaintiff did not do this, and
plaintiff was therefore barred from obtaining judicial review of
the Board's decision. 735 ILCS 5/3--102 (West 1994).
Plaintiff argues that the section 3--107(a) requirements apply
only to adverse parties and that because Craig was not adverse to
plaintiff it was not necessary to name him as a defendant under
section 3--107(a). However, the plain language of section 3--
107(a) does not support plaintiff's contention. Section 3--107(a)
requires that "all persons, other than the plaintiff, who were
named by the administrative agency in its final order as parties of
record to the proceedings before the administrative agency shall be
made defendants." 735 ILCS 5/3--107(a) (West 1994). There is no
provision for an exception to the requirements of section 3--107(a)
on the basis of nonadversity in this language as contended by
plaintiff. Moreover, it is clear from cases that have considered
this question that section 3--107(a) requires that a plaintiff in
an administrative action generally must name as defendants all the
individual members of the administrative agency who are parties of
record to the proceedings. Orlowski v. Village of Villa Park Board
of Fire & Police Commissioners, 273 Ill. App. 3d 42, 46 (1995).
This is true even if some of the individual members of the
administrative agency supported the plaintiff's position.
International Precision, 282 Ill. App. 3d at 740. Thus,
plaintiff's nonadversity argument fails.
Plaintiff next contends that the trial court correctly
determined that plaintiff had made a good-faith effort to comply
with the Administrative Review Law. Plaintiff argues that because
of this good-faith effort he should not be barred from obtaining
judicial review of the Board's decision even if he did not strictly
comply with the section 3--107(a) requirements regarding naming
defendants within the time limits prescribed by section 3--103.
In Lockett, our supreme court considered whether to apply a
good-faith-effort exception to the 35-day time limit prescribed by
section 3--103 for filing a complaint and issuing and serving
summonses on parties to the proceedings. Lockett, 133 Ill. 2d at
354-55. The court determined that a good-faith-effort exception
applied only in cases where the plaintiff had made a good-faith
effort to issue summons within the 35-day period, but, due to some
circumstance beyond the plaintiff's control, summons was not issued
within that period. 133 Ill. 2d at 355. The court decided that
because it was undisputed that the plaintiff in that case had not
named the party of record to the proceedings as a defendant or
issued summons on him within the 35-day period the good-faith-
effort exception did not apply and the complaint was properly
dismissed. 133 Ill. 2d at 355-56.
In this case, it is undisputed that plaintiff did not name
Craig as a defendant or issue summons on him within the 35-day
period following the serving of the Board's decision on plaintiff.
Plaintiff does not contend that he made a good-faith effort to name
and serve defendant within the 35-day period. Rather, plaintiff
argues that he believed, in good faith, that he was not required to
name and serve Craig because Craig was not adverse to plaintiff and
because Craig had not signed the part of the Board's decision which
found plaintiff guilty of wrongdoing.
In Lockett, the plaintiff did not name the superintendent of
the police department as a defendant because the plaintiff
erroneously believed that naming the police board constituted
notice to the superintendent. 133 Ill. 2d at 352. The Lockett
court concluded that the good-faith-effort exception did not apply.
133 Ill. 2d at 355-56.
Similarly, in this case, plaintiff's belief that section 3--
107(a) did not require him to name and serve Craig does not
constitute a good-faith effort to name and serve a mandatory
defendant. Accordingly, as in Lockett, the good-faith-effort
exception does not apply in this case.
Finally, plaintiff contends that dismissal of his complaint
would deny him due process of law because it would be fundamentally
unfair to him. We recognize that granting defendants' motion to
dismiss the complaint on the grounds of plaintiff's failure to name
a defendant after the trial court ruled on the merits of
plaintiff's complaint is a harsh result. However, the section 3--
107(a) requirements regarding persons who must be named as
defendants are mandatory and specific and admit of no modification.
Lockett, 133 Ill. 2d at 354. In Orlowski, this court determined
that the dismissal of a complaint on the ground of the failure to
name a mandatory defendant was warranted even though the issue was
first raised on appeal in a reply brief. Orlowski, 273 Ill. App.
3d at 48.
In this case, plaintiff failed to name as a defendant and to
serve one of the Board members who was named as a party of record
to the proceedings in the Board's final order within the time
period mandated by the Administrative Review Law. Consequently, we
must dismiss plaintiff's complaint for administrative review.
Because of this disposition, it is unnecessary for us to
address defendants' other contentions of error.
Based on the foregoing, the judgment of the circuit court of
Du Page County is reversed.
Reversed.
INGLIS and HUTCHINSON, JJ., concur.