Appeal from the Circuit Court of Champaign County; the Hon.
John R. DeLaMar, Judge, presiding.
JUSTICE SPITZ DELIVERED THE OPINION OF THE COURT:
Joseph C. Tharp applied to participate in the police pension fund of the city of Urbana. Tharp's application was denied by the board of trustees (board) of the police pension fund (fund) of the city of Urbana. Instead of appealing this denial, Tharp filed a charge of discrimination with the Illinois Department of Human Rights against the board. The Department issued a complaint against the board with the Illinois Human Rights Commission. Alfred G. Burton was assigned as the administrative law judge to hear the complaint. The board moved to dismiss the complaint, and this motion was denied. Subsequently, the board instituted the present action, seeking an order of prohibition to prevent Burton and the Commission from proceeding on the discrimination complaint. A temporary order of prohibition was granted; however, the circuit court subsequently dissolved said order and dismissed the board's complaint.
On or about September 22, 1983, Tharp applied to become a participant in the fund. At this time, Tharp had applied for a position as a policeman for the city of Urbana, but he had not been appointed to said position. Tharp's application to participate in the fund was denied by a unanimous vote of the board at the regular board meeting on October 11, 1983, on the basis of the medical evidence presented with the application. Tharp has the medical condition "diabetes melitis," and he is insulin dependent. On January 23, 1984, Tharp was appointed to the position of policeman for the city of Urbana. The board then served Tharp with a notice of hearing informing Tharp that a "final hearing" on his application to become a participant in the fund would be held.
Tharp appeared at the hearing personally and through counsel. The board rendered a "final" decision dated March 3, 1984, denying Tharp's application and specifically finding that Tharp "is more prone to disability than the average policeman without said condition, and as such petitioner is physically unfit to perform the duties of a policeman." The board further found that "petitioner could become disabled and thus eligible for disability benefits, at the time of his choice by simply not taking the medication for his condition."
Tharp did not seek judicial review of the board's decision, and the time limitation prescribed for such review has expired. Instead, Tharp filed a charge of discrimination pursuant to the provisions of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1983, ch. 68, par. 1-101 et seq.) with the Department. Tharp alleged in his complaint that he had been personally aggrieved by practices prohibited by section 2-102(A) of the Act (Ill. Rev. Stat. 1983, ch. 68, par. 2-102(A)). The Department issued and filed a complaint with the Commission. This complaint alleged as follows: that the board was an "employer" subject to the provisions of the Act; that Tharp is qualified to participate in the fund; that Tharp's handicap is unrelated to his ability to participate in the fund; that the board refused to allow Tharp to participate in the fund; and that the board discriminated against Tharp because of his handicap in violation of section 2-102(A) of the Act by refusing to allow Tharp to participate in the fund because of a handicap unrelated to ability. The complaint requested the following relief: that the board allow Tharp to participate in the fund; that the board pay Tharp a sum equal to any loss of money he may have suffered as a result of the civil rights violations; that Tharp be made whole regarding all benefits and seniority status that would have accrued to him if not for the civil rights violations committed against him by the board; that the board clear Tharp's record of all information regarding this charge; that the board cease and desist from its practice of refusing to allow individuals to participate in the fund because of handicaps unrelated to ability; and that the board pay attorney fees.
Alfred G. Burton was assigned by the Commission as the administrative law judge to hear the complaint. The board filed a motion to dismiss the complaint on the grounds that the Commission did not have jurisdiction over the board and did not have jurisdiction or authority to determine the matters alleged in the complaint. Burton denied the board's motion to dismiss for lack of jurisdiction.
On January 30, 1985, the board filed a verified complaint for order of prohibition in the circuit court of Champaign County. Count I of said complaint, which is the only count to be considered in this action, sought an order of prohibition which would prevent defendants Burton and the Commission from proceeding further upon the complaint filed under the Act. On January 31, 1985, the circuit court granted the board a temporary order of prohibition, and the matter was scheduled for a hearing on the merits of the prohibition request.
On March 13, 1985, the circuit court of the Sixth Circuit entered an order dissolving the temporary order of prohibition. The order also granted defendant's oral motion to dismiss the board's complaint, stating that "said count does not and cannot state a cause of action."
Pursuant to the board's motion, on March 27, 1985, the circuit court entered an order pursuant to Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)) holding that "there was no just reason for delaying enforcement or appeal pursuant to Supreme Court Rule 304(a)." Subsequently, the circuit court entered a memorandum opinion, dated April 12, 1985, regarding the order entered March 13, 1985. On April 26, 1985, the board filed a notice of appeal seeking to have the March 13, 1985, order issued by the circuit court reversed, and to have a writ of prohibition entered.
• 1 The sole issue raised by this appeal is whether the circuit court erred in ruling that the Commission has jurisdiction and authority to proceed on the discrimination complaint issued by the Department, and in denying the board's request for an order of prohibition.
The requirements which must be met in order for an order of prohibition to be issued are not in dispute. They are as follows:
"First, the action sought to be prohibited must be judicial or quasi-judicial in nature. * * * Second, the jurisdiction of the tribunal against whom the writ is sought must be inferior to that of the issuing court. * * * Third, the action sought to be prohibited must be either outside the jurisdiction of the tribunal or, if within its jurisdiction, beyond its legitimate authority. * * * Fourth, the party seeking the writ must be without any other adequate remedy." People ex rel. No. 3 J. & E. Discount, Inc. v. Whitler (1980), 81 Ill.2d 473, 479-80, 410 N.E.2d 854, 857.
All parties agree that the first two requirements stated above have been met. Additionally, none of the briefs submitted by the parties challenge the determination that the fourth requirement stated above has been met. Therefore the issue in this case is whether or not the board has ...