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Gutierrez v. Board of Review

OPINION FILED DECEMBER 23, 1975.

RUBEN GUTIERREZ, PLAINTIFF-APPELLANT,

v.

THE BOARD OF REVIEW, DEPARTMENT OF LABOR, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court, dismissing plaintiff's complaint for administrative review. In his complaint, plaintiff sought to overturn an order of the Board of Review of the Illinois Department of Labor (the Department) which had affirmed the dismissal of his appeal by a referee of its appeals section.

• 1 Originally, a hearing was held by a claims adjudicator of the Department at which plaintiff and his wife appeared. Inasmuch as they neither spoke nor understood English, a Spanish interpreter was provided. In the course of the proceeding, evidence was presented from which the claims adjudicator determined that plaintiff had received unemployment compensation benefits for which he was ineligible; that such benefits had been obtained fraudulently; and that plaintiff was therefore liable to repay all benefits received and, in addition, to pay a penalty in an equal amount. *fn1 Notice of the "Claims Adjudicator's Reconsidered Determination" was mailed to plaintiff written entirely in English. This notice stated the ruling of the adjudicator and also included a notice of his appeal rights. This latter portion of the notice stated:

"APPEAL RIGHTS: IF YOU DISAGREE WITH THIS RECONSIDERED DETERMINATION; you may file an appeal * * * within nine (9) days after the date of this notice if it was mailed to you, or within seven (7) days after the date of this notice if it was given to you."

Upon receipt of the notice, plaintiff's 13-year-old daughter translated for plaintiff the determination of the adjudicator but did not translate the provisions relating to an appeal and its attendant time limitations. Later, plaintiff received a notice informing him of a criminal prosecution based on the claims adjudicator's finding of fraud. He then sought legal counsel who filed an appeal with the Department's Board of Review 48 days after the mailing date of the adjudicator's decision. The matter was assigned to a department referee who held the appeal to have been untimely because it was filed more than nine days after notice had been mailed and received by plaintiff and that therefore he lacked jurisdiction to review the adjudicator's decision. This holding was affirmed by the Department's Board of Review. The circuit court then sustained that action, and this appeal was taken from its order.

OPINION

Article VI, section 9 of the 1970 Illinois Constitution provides:

"Circuit Courts shall have such power to review administrative action as provided by law."

In accordance with this constitutional authority, the legislature enacted the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.) delineating the subject matter jurisdiction of the courts in the review of administrative procedures. Section 2 of the Act (Ill. Rev. Stat. 1973, ch. 110, par. 265) provides:

"If under the terms of the Act governing the procedure before an administrative agency an administrative decision has become final because of the failure to file any document in the nature of objections, protests, petition for hearing or application for administrative review within the time allowed by such Act, such decision shall not be subject to judicial review hereunder excepting only for the purpose of questioning the jurisdiction of the administrative agency over the person or subject matter."

Section 800 of the Unemployment Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 470) (the Act), establishes the time limitations applicable herein. It provides in pertinent part:

"Unless the claimant or any other party entitled to notice of the claims adjudicator's `finding' or `determination,' as the case may be, or the Director, within seven days after the delivery of the claims adjudicator's notification of such `finding' or `determination,' or within nine days after such notification was mailed to his last known address, files an appeal therefrom, such `finding' or `determination' shall be final as to all parties given notice thereof."

To aid in the interpretation of the above language, both parties call our attention to Huggins v. Board of Review, 10 Ill. App.3d 140, 294 N.E.2d 32. Defendants cite the following language from that opinion wherein it was explicitly held that a timely filing of an appeal within the seven or nine day period is jurisdictional:

"It is our considered opinion that the requirements of the Illinois statute are clear and unambiguous; hence unavoidably mandatory. The decision of the Deputy or of the Referee, as the case may be, becomes final if appeal is not timely filed within the plain language of the statute. There is no provision in this statute for late filing of notice of appeal. * * ...


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