Appeal from the Circuit Court of Kane County; the Hon. John A.
Krause, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
The plaintiff, Leonard Ellison, appeals from an order of the trial court which denied his request for declaratory judgment (Ill. Rev. Stat. 1979, ch. 110, par. 57.1), and entered summary judgment for the defendants, the Kane County Sheriff's Office Merit Commission and George Kramer, sheriff of Kane County. The plaintiff's twofold contention on appeal is that section 24-3.1(a)(5) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 24-3.1(a)(5)), violates the due process and equal protection clauses of the United States Constitution (U.S. Const., amends. V, XIV), and that the trial court erred in concluding otherwise.
Plaintiff, a deputy sheriff in Kane County, voluntarily committed himself to a mental hospital for two days in June 1980. After treatment as an outpatient, and an eight-week leave of absence, a psychiatric report concluded that plaintiff could return to duty.
Kane County Sheriff Kramer filed a complaint against plaintiff with the merit commission. After referring to his two-day hospitalization, the complaint quoted section 24-3.1(a)(5) of the Criminal Code of 1961, which provides:
"(a) A person commits the offense of unlawful possession of firearms or firearm ammunition when:
(5) He has been a patient in a mental hospital within the past 5 years and has any firearms or firearm ammunition in his possession * * *." (Ill. Rev. Stat. 1979, ch. 38, par. 24-3.1(a)(5).)
The complaint further alleged that because he was a patient in a mental institution within the past five years, the plaintiff violated two rules of the personal conduct standards of the sheriff's department, viz: (1) Rule 7.32; "Engaging in conduct on or off duty which adversely affects the * * * efficiency of the Department * * *"; and (2) Rule 7.39; "Lack of maintenance of good * * * mental condition which interfered with the proper handling of Departmental business." The sheriff prayed that the commission commence a hearing on the charges.
Plaintiff then instituted a declaratory judgment action alleging that section 24-3.1(a)(5) violated the due process and equal protection clauses of the United States Constitution. He also requested that the court grant a temporary restraining order as well as preliminary and permanent injunctions to enjoin defendants from conducting a disciplinary hearing relating to the violation of section 24-3.1(a)(5). The parties then filed cross-motions for summary judgment, including affidavits in support thereof, and trial briefs.
The parties agreed, in response to the trial court's inquiry whether plaintiff had exhausted his administrative remedies, that they would seek a declaratory judgment prior to the hearing before the merit commission.
The court, in ruling on the cross-motions for summary judgment and complaint for declaratory judgment, found (1)that section 24-3.1(a)(5), of the Criminal Code of 1961 did apply to the plaintiff, and (2) that the statutory provision in question was a rational exercise of the police power and hence constitutional. Plaintiff appeals.
Prior to addressing the contentions raised by the plaintiff a threshold question must be considered: could the trial court have dismissed plaintiff's complaint where plaintiff had yet to exhaust his administrative remedies?
Although the parties to this declaratory judgment action agreed that their claims should be brought before the circuit court prior to proceeding with the statutorily required administrative hearing before the Kane County merit commission (Ill. Rev. Stat., 1980 Supp., ch. 125, par. 164), we are of the opinion that plaintiff failed to exhaust his administrative remedies and that they cannot stipulate this requirement away.
The general, well-settled law in this State is that where administrative remedies are available, they must be exhausted before resort may be had to judicial review in the circuit court. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill.2d 350, 358, 326 N.E.2d 737; Dock Club, Inc. v. Illinois Liquor Control Com. (1980), 83 Ill. App.3d 1034, 1037, 404 N.E.2d 1050.) However, the doctrine of exhaustion of remedies does not apply in situations where it would be futile to proceed initially via administrative channels. The fact that there are clear indications that the administrative agency will rule adversely is generally insufficient to abort the administrative process. (83 Ill. App.3d 1034, 1037.) A possibility exists that upon remand the determination of the commission would be largely perfunctory and not based upon any particular expertise. (Saldana v. American Mutual Corp. (1981), 97 Ill. App.3d 334, 337, 422 N.E.2d 860.) Nonetheless we choose not to anticipate the actions the commission may take. Further, orderly procedure dictates resort to the administrative agency first. Bank of Lyons v. County of Cook (1958), 13 Ill.2d 493, 497, 150 N.E.2d 97.
• 1 While there are broad statements in the cases that a declaratory judgment action can be maintained without first seeking prior relief before the administrative agency when the validity of a statute or municipal ordinance is challenged on its face (see, e.g., Illinois Bell Telephone Co.; Cushing v. Pitman (1978), 56 Ill. App.3d 930, 932, 372 N.E.2d 714; Broccolo v. Village of Skokie (1972), 14 Ill. App.3d 27, 31, 302 N.E.2d 74), that rule does not apply in circumstances where charges are already pending against the plaintiff in an administrative disciplinary proceeding (see Buege v. Lee (1978), 56 Ill. App.3d 793, 798, 372 N.E.2d 427; Eckells v. City Council (1959), 23 Ill. App.2d 360, 363, 163 N.E.2d 107), or where the issue of the validity of the ordinance sought to be determined in the action for declaratory judgment is currently pending before the administrative agency. (Coles-Moultrie Electric Cooperative v. City of Charleston (1972), 8 Ill. ...