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Dep't of Comm. v. Sec. of St. Merit Com.

OPINION FILED MARCH 27, 1985.

DEPARTMENT OF COMMUNICATIONS, SECRETARY OF STATE, PLAINTIFF-APPELLANT,

v.

SECRETARY OF STATE MERIT COMMISSION ET AL., DEFENDANTS-APPELLEES (DEPARTMENT OF PERSONNEL, SECRETARY OF STATE, DEFENDANT).



Appeal from the Circuit Court of Sangamon County; the Hon. Jerry S. Rhodes, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Plaintiff, Department of Communications of the Office of the Secretary of State of the State of Illinois (Department of Communications)/(Office of the Secretary), brought this action for administrative review (see Ill. Rev. Stat. 1981, ch. 110, par. 3-101 et seq.; Ill. Rev. Stat. 1981, ch. 124, par. 109b) of the final decision of the Merit Commission of the Office of the Secretary (Commission) in favor of James Daniels (Commission Case No. 82-14). By written order of March 29, 1983, the circuit court of Sangamon County struck count II of the complaint and affirmed the Commission's decision in its entirety. This appeal followed.

Defendant Daniels has raised in argument matters which pose several issues preliminary to those posed by plaintiff Department of Communications. First, was the Department of Personnel of the Office of the Secretary (Department of Personnel) made party to the administrative review action? Second, is it properly a party to this appeal? If not, the appeal must be dismissed as to the Department of Personnel. Third, if the Department of Personnel was made party to the administrative review action, what is the effect of the lack of service on it, or appearance by it, as to the judgment below and the jurisdiction of this court on appeal?

A careful examination of the record is necessary to explain the caption on appeal, the arguments of the parties, and the resolution of these issues.

The Commission proceeding was captioned "JAMES DANIELS, Petitioner, vs. DEPARTMENT OF PERSONNEL, SECRETARY OF STATE, STATE OF ILLINOIS, AND THE DEPARTMENT OF COMMUNICATIONS, Respondent." (Emphasis added.) The decision of the Commission was, by its terms, certified to the Director of the Department of Personnel for enforcement on October 12, 1982.

This action was timely filed in the circuit court for administrative review on November 5, 1982, captioned "Department of Communications, Secretary of State, State of Illinois, Plaintiff, vs. Secretary of State Merit Commission, State of Illinois, and James Daniels, Defendant." (Emphasis added.) Summonses were accordingly issued to the Commission and Daniels as defendants.

On December 8, 1982, plaintiff Department of Communications filed a petition for stay of order pending administrative review. On January 28, 1983, defendant Daniels filed a motion to strike and objections to the motion for stay, a motion to dismiss the complaint for administrative review, and a memorandum. Both the motion to dismiss and the memorandum stated that the complaint did not name or make the Department of Personnel a party plaintiff or defendant; that the Department of Personnel had filed no appeal; that the complaint was improper and in violation of section 3-107 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3-107); and that the final order appealed from required enforcement by the Department of Personnel. Defendant Daniels' memorandum supplied further argument, with citations, in this regard.

On February 24, 1983, plaintiff Department of Communications filed a motion which moved the court to "add as an additional party Defendant * * * the Defendant Department [of] Personnel," and stated:

"(1) On November 8, 1982 a Complaint for Administrative Review was filed with the Circuit Court of Sangamon County. The named Plaintiff was the Secretary of State, Department of Communications.

(2) The Secretary of State, Department of Personnel, was not included as a party Defendant, although they were a party to the proceedings before the Merit Commission.

(3) Ill. Rev. Stat., ch. 110, sec. 3-111(a)(3) and (4) provides that, in Administrative Review, the Circuit Court has the power to allow substitution of parties and to realign parties Plaintiff and Defendant.

(4) The Circuit Court maintains the discretionary authority to permit amendment of a Complaint in Administrative Review by the addition of additional parties Defendant. [Citation.] Plaintiffs should be given a reasonable opportunity to amend a pleading to add Defendants. [Citation.]

Wherefore, the plaintiff asks that this Court grant it leave to amend its Complaint by adding as an additional Defendant the Secretary of State Department of Personnel." (Emphasis added.)

On March 1, 1983, defendant Daniels filed objections to the motion to add additional party defendant, objecting to the addition of a party by the plaintiff after the expiration of the statutory period provided for administrative review. He stated that (1) the court had power to review administrative action only as provided by law (Ill. Const. 1970, art. VI, sec. 9); (2) the court was without statutory authority to allow such an addition of parties (Ill. Rev. Stat. 1981, ch. 110, par. 3-111); and (3) as the plaintiff did not comply with the requirements of article III of the Code of Civil Procedure (see Ill. Rev. Stat. 1981, ch. 110, pars. 3-101 through 3-112) in seeking administrative review of the Commission's decision, it should be barred from judicial review and from the addition of parties (Ill. Rev. Stat. 1981, ch. 110, par. 3-102).

At the hearing on March 1, 1983, plaintiff Department of Communications was given leave to file an appropriate petition for stay containing a verification on or before March 7, 1983, with defendant Daniels given leave to file response to such petition. On March 7, 1983, plaintiff Department of Communications filed a petition for stay. On March 15, 1983, defendant Daniels filed a "Motion to Strike, Answer and Objections to the Petition for Stay Order."

Following argument on March 22, 1983, the court's written order of March 23, 1983, included a provision stating "[t]he Motion of the Plaintiff to add the Secretary of State Department of Personnel as an additional party Defendant is ...


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