Appeal from the Circuit Court of Lake County; the Hon. E.
Thomas Lang, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the circuit court of Lake County denying plaintiff Gerard Kloss' motions for declaratory judgment and injunctive relief. Kloss, a 10-year police veteran with an otherwise unblemished service record, was discharged by the defendant Board of Fire and Police Commissioners on December 11, 1978, from the police force of the village of Mundelein for alleged wilful misconduct during an incident involving the use of his service revolver.
On administrative review, the circuit court of Lake County reversed the board's findings and ordered Kloss reinstated with back pay. The board appealed, and this court, in a divided opinion, reversed and remanded the cause for imposition of a sanction less severe than discharge. Kloss v. Board of Fire & Police Commissioners (1982), 108 Ill. App.3d 8.
The supreme court granted leave to appeal, reversed this court's decision, vacated the circuit court's order to reinstate Kloss, and remanded the matter to the board. (Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill.2d 252.) After remand, Kloss filed a motion for declaratory judgment that the board had lost jurisdiction of the matter, and for an injunction against the board to prevent further proceedings by it with regard to Kloss' discharge.
The circuit court denied both motions, electing to treat each as a complaint for the relief requested based on stipulated facts, rather than as motions in the context of an administrative review proceeding.
During the pendency of this appeal, Gerard Kloss died and we allowed his executor to be substituted.
The plaintiff contends on appeal that the relief requested was erroneously denied by the circuit court because the board's delay in commencing a hearing after remand caused it to lose jurisdiction and denied him due process.
The supreme court's mandate was filed in the circuit court on June 20, 1983. The board requested medical history information from the plaintiff on July 11, and he supplied a list of 24 doctors, psychiatrists, and hospitals on August 10. Upon his return from vacation, the board's attorney requested information from each source on August 30 and September 1. As of September 19, counsel for the board advised the plaintiff's attorney that responses from only six of the sources had been received. The plaintiff filed the instant suit for declaratory and injunctive relief on September 21.
Plaintiff requests this court to reverse the circuit court's denial of the relief requested, and to remand the cause back to the circuit court of Lake County for a hearing on the amount of back salary and benefits owed to the estate of Gerard Kloss.
The facts underlying the filing of the misconduct charge in 1978 are sufficiently detailed in the previous appeals of this cause, and further reception here is unwarranted and unnecessary to resolution of the present appeal. (Kloss v. Board of Fire & Police Commissioners (1982), 108 Ill. App.3d 8, rev'd and remanded (1983), 96 Ill.2d 252.) Of note briefly, however, is the prior disposition in each of the courts> during the course of administrative review of the board's decision to discharge Kloss. The circuit court found that the board's decision was against the manifest weight of the evidence, and that the record did not support a finding that Kloss was guilty of wilful misconduct. Accordingly, the court reversed the board's decision and ordered Kloss reinstated with back pay and other benefits. On appeal, this court concluded that the board's findings of fact were not against the manifest weight of the evidence. This court also determined, however, that the plaintiff's misconduct was unrelated to the requirements of service, and accordingly remanded the cause to the trial court with direction to remand to the board for appropriate disciplinary action short of discharge. In making that determination, this court noted that the incident in question marred "an otherwise unblemished career, and occurred while Kloss was off duty in his home reacting to family problems. Further, it is likely he was suffering the effects of a combination of alcohol and prescription drugs." (108 Ill. App.3d 8, 14.) The parties agreed that the trial court lacked the authority to order Kloss reinstated and awarded back pay and other benefits.
In reversing this court's decision, the supreme court agreed with the circuit court's determination that the record did not support a finding that Kloss was guilty of wilful misconduct; therefore, the board's determination was contrary to the manifest weight of the evidence. The court did not agree, however, with this court's conclusion that Kloss' behavior was unrelated to the needs of the police force or the village of Mundelein. It determined that it was unreasonable for the board in view of Kloss' otherwise unblemished record to have discharged him "without availing itself of the opportunity to examine in greater detail the medically related aspects of the basis for his discharge." (96 Ill.2d 252, 259.) The court there had noted that the evidence presented to the board raised the strong possibility that Kloss' irrational behavior stemmed from an inadvertently induced adverse reaction to his medication.
In addition to reversing this court's judgment, the court there determined that the circumstances of the case required it to vacate the circuit court's order to reinstate Kloss.
The question presented here is whether the board lost its jurisdiction of the matter because no hearing was held within 30 days after issuance of the supreme court's mandate.
The supreme court's judgment was filed with the clerk of that court on May 18, 1983. Thus, it was "entered of record" and became final on that date. (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill.2d 291, 304-05.) As noted in Illinois State Chamber of Commerce v. Pollution Control Board (1978), 67 Ill. App.3d 839, 843, a reviewing court in Illinois is not divested of jurisdiction until the parties' rights of appeal have been exhausted. "`* * * [A] reviewing court is divested of jurisdiction in a cause before it when its mandate issues to a lower court (thereby restoring jurisdiction in that court) or when a petition for leave to appeal from the appellate court to the Illinois Supreme Court has been allowed or when a petition for leave to appeal or certiorari to the United States Supreme Court has been granted (thereby passing jurisdiction to the higher court).' 2 Ill. App.3d at 898, 274 N.E.2d at 360." See also Bank of Viola v. Nestrick (1981), 94 Ill. App.3d 511, 514-15.
Supreme Court Rule 368(a) provides that the mandate of the reviewing court shall not be transmitted earlier than 21 days after the entry of the judgment unless the court orders otherwise. (87 Ill.2d R. 368(a).) A petition for rehearing may be filed for a period of up to 21 ...