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Flores v. Bd. of Review





APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.


In an action under the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.), the circuit court of Cook County reversed a determination by the Unemployment Compensation Board of Review that it lacked jurisdiction to hear plaintiff's appeal from its referee's decision. The trial court also remanded the case for a hearing on the merits of plaintiff's claim for unemployment compensation. The Board of Review, its members, the Director of the Department of Labor, and plaintiff's employer appeal.

Notice of the referee's decision was mailed to plaintiff on March 15, 1976. Plaintiff filed an appeal to the Board of Review on April 7, 1976. On June 24, 1976, the Board dismissed plaintiff's appeal for lack of jurisdiction because the appeal had not been filed within 10 days after the date of mailing of the referee's decision as required by the Unemployment Insurance Act. Ill. Rev. Stat. 1977, ch. 48, par. 471.

Plaintiff then filed a complaint in the circuit court seeking administrative review of the Board's decision. On February 17, 1977, the trial court remanded the cause to the Board for a hearing to determine whether plaintiff had actual notice of the referee's decision. The court directed that the guidelines set forth in Gutierrez v. Board of Review (1975), 35 Ill. App.3d 186, 341 N.E.2d 115, were applicable and should govern the Board's determination.

The Board held a hearing on March 8, 1977. Plaintiff testified that neither she nor members of her family speak or read English. She received the notice of the referee's decision on or about March 15, 1976, and opened it immediately. The next day she asked a friend to translate the notice into Spanish. When asked what her friend said, plaintiff, through a translator, stated: "She [plaintiff's friend] read it, all the letter and then she told her the letter said the meeting was OK and if they had anything else to tell her they would get in touch with her in 10 days." Plaintiff's friend did not tell her the letter meant that she was ineligible for unemployment compensation. Plaintiff, after receiving a recoupment notice dated March 31, 1976, consulted an attorney who filed her appeal.

On May 31, 1977, the Board again dismissed plaintiff's appeal. It found that the actual notice requirement had been satisfied since the notice had been translated for plaintiff. The Board held that it lacked jurisdiction to hear the appeal because plaintiff had not appealed within 10 days of receiving notice. The Board also affirmed the referee's decision on the grounds that plaintiff was not available for or actively seeking work during the period under review.

On June 6, 1977, plaintiff filed the present action for administrative review. Plaintiff charged that the Board had incorrectly construed and applied the requirement of Gutierrez and that its determinations both as to actual notice and as to the merits of plaintiff's claim were contrary to the manifest weight of the evidence. On June 21, 1978, the trial court reversed the Board's decision on the jurisdictional issue and remanded the cause for a de novo hearing on the merits of plaintiff's claim.

• 1 At the outset, we reject plaintiff's argument that the propriety of the trial court's first order directing the Board to apply the Gutierrez standards is not properly before this court. The initial remanding order was interlocutory and not appealable. (Downey v. Industrial Com. (1969), 44 Ill.2d 28, 253 N.E.2d 371; Clark v. Department of Labor (1966), 71 Ill. App.2d 365, 219 N.E.2d 143.) We therefore may consider whether the trial court correctly found that Gutierrez was applicable to the present case.

Gutierrez involved an appeal from a claim adjudicator's decision under section 800 of the Unemployment Insurance Act (Ill. Rev. Stat. 1977, ch. 48, par. 470). Plaintiff, who could neither read nor speak English, received a notice of the decision. Plaintiff's daughter translated that portion of the notice stating the adjudicator's determination, but she did not translate the provisions relating to appeals. After receiving notice of a criminal prosecution based upon the adjudicator's finding of fraud, plaintiff consulted an attorney who filed an appeal 48 days after the notice was mailed. Section 800 provides in part:

"Unless the claimant or any other party entitled to notice of the claims adjudicator's `finding' or `determination,' as the case may be * * * 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."

The court noted that the above provisions are mandatory and, therefore, the filing of a timely appeal is a jurisdictional prerequisite. (Huggins v. Board of Review (1973), 10 Ill. App.3d 140, 294 N.E.2d 32.) The court concluded that plaintiff did in fact have actual notice of the decision since that portion of the notice was translated for him. Before reaching that conclusion, the court did consider the question of actual notice, stating at page 190:

"There would be little logic in declaring a legislative intent requiring the filing of an appeal within nine days of the mailing of the [adjudicator's determination] when the party entitled to notice thereof may never have actually received the notice. In view thereof, we construe the statute to intend that the finding or determination is final only as to all parties given actual notice thereof." (35 Ill. App.3d 186, 190.)

The court went on to say that if the portion of the notice reciting the adjudicator's determination had not been translated for plaintiff, a question as to whether plaintiff received the actual notice required by section 800 might have been raised.

Defendants contend that the rationale of Gutierrez applies only to appeals brought under section 800. They maintain that an actual notice requirement may be inferred from the phrases "any other party entitled to notice" and "shall be final as to all parties given notice thereof" found in that section. Since this language is not found in section 801, defendants argue that the ...

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