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Benton Police Dep't v. Human Rights Com.

OPINION FILED SEPTEMBER 8, 1986.

THE CITY OF BENTON POLICE DEPARTMENT ET AL., PETITIONERS-COUNTERRESPONDENTS

v.

THE HUMAN RIGHTS COMMISSION ET AL., RESPONDENTS (PAUL LAMPLEY, RESPONDENT-COUNTERPETITIONER).



Petition for review of order of Human Rights Commission.

JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

The Human Rights Commission moves to dismiss the petitions for review of the city of Benton police department and the city of Benton pension board (collectively referred to as the city of Benton) and Paul Lampley on the basis that the petitions are untimely under Supreme Court Rules 335(h) and 303(a) (103 Ill.2d Rules 335(h), 303(a)). The city of Benton responds by asserting that its petition for direct appellate review was timely filed pursuant to amended section 8-111(A)(1) of the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 8-111(A)(1) (amended by Public Act 84-717, eff. Jan. 1, 1986)). Lampley responds by adopting the rationale of the Commission and asserts that the city of Benton's petition is untimely; however, he does not expressly concede the untimeliness of his own petition filed one day after that of the city of Benton.

The facts pertinent to the jurisdictional issue presented to this court are as follow. Lampley brought an action before the Commission alleging that the city of Benton discriminated against him on the basis of physical and mental handicaps. Pursuant to a final administrative decision entered on February 13, 1986, the Commission found in favor of Lampley and directed that the city of Benton reinstate him on its police force with back pay and with such benefits and seniority as would have accrued to him had he remained on the force. Moreover, the city of Benton was directed to cease and desist from discriminating against Lampley on the basis of his physical and mental handicaps and was directed to pay his reasonable attorney fees in the amount of $13,864. In addition, the Commission ruled against Lampley with respect to money he would have received as a uniform allowance during the time he was absent from the police force. The Commission also ruled that it was appropriate to set off the amount of money received by Lampley as disability payments during the relevant period in question from the overall award for back pay. Finally, the Commission rejected Lampley's contention that the amount of attorney fees awarded was inadequate.

The city of Benton sought direct administrative review of this decision by filing with this court a petition for review pursuant to Supreme Court Rule 335 and section 8-111(A)(1) of the Illinois Human Rights Act. The petition was received and filed by the clerk of this court on March 20, 35 days after entry of the decision. Lampley, as counterpetitioner, filed a petition for review from those portions of the administrative decision not in his favor. This petition was received and filed by this office on March 21; however, because it was postmarked on March 20, this date would serve as the constructive date of filing pursuant to Supreme Court Rule 373 (103 Ill.2d R. 373), assuming, of course, that the applicable appeal period is 35 days.

The Commission moves to dismiss the petitions for review as untimely under Supreme Court Rules 335(h) and 303(a). Paragraph (h) from Supreme Court Rule 335 provides in pertinent part:

"(1) Insofar as appropriate, the provisions of Rules 301 through 373 (except for the Rules 321 through 326) are applicable to proceedings under this rule. * * *

(2) Sections 3-101, 3-108(c), 3-109, 3-110, and 3-111 of the Code of Civil Procedure are applicable to proceedings to review orders of the agency."

It is the Commission's position that the language under subparagraph (1) expresses an intention on the part of the supreme court to apply the 30-day appeal period as set forth under Supreme Court Rule 303(a) to cases of direct administrative review of final agency decisions. As the 30-day period following entry of the February 13 administrative decision expired on Saturday, March 15, the appeal period was extended to Monday, March 17. The Commission therefore contends that the petitions for review are untimely as filed.

In response to the motion to dismiss, the city of Benton contends that the applicable appeal period is governed by section 8-111(A)(1) of the amended Act, which in turn makes reference to section 3-103 of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-103). Section 8-111(A)(1) states as follows:

"Any complainant or respondent may apply for and obtain judicial review of an order of the Commission entered under this Act in accordance with the provisions of the Administrative Review Law, as amended."

Section 3-103 states in pertinent part as follows:

"Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby."

The city of Benton therefore argues that its petition for review filed on March 20, 35 days after entry of the final agency decision, is timely and properly vests this court with jurisdiction.

Lampley in his response to the motion to dismiss essentially adopts the analysis of the Commission and asserts that the petition of the city of Benton is untimely. With respect to his own petition, he makes reference to Supreme Court Rule 303(a)(3), which provides that a party may file a cross-appeal within 10 days after service of the notice of appeal or within 30 days after entry of the order disposing of the last pending post-trial motion, whichever is later. This reliance assumes that his petition is in the nature of a cross-appeal under Supreme Court Rule 303(a)(3). This court need not independently address the timeliness of Lampley's petition, however, because its timeliness is dependent on the city of Benton's petition. If the latter petition is untimely, so too is Lampley's, filed ...


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