APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
524 N.E.2d 1177, 171 Ill. App. 3d 208, 121 Ill. Dec. 129 1988.IL.852
Appeal from the Circuit Court of Cook County; the Hon. Robert L. Sklodowski, Judge, presiding.
JUSTICE BILANDIC delivered the opinion of the court. STAMOS* and SCARIANO, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC
Plaintiff, William Wolfe, a tenured teacher of the Board of Education of the City of Chicago (hereinafter Board of Education), filed a complaint in the circuit court of Cook County under the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.). He urged the court to reverse an administrative decision of the Illinois State Board of Education (hereinafter ISBE) by hearing officer Allen D. Schwartz ordering plaintiff's dismissal. On administrative review, the circuit court entered an order remanding the cause to the ISBE for a new hearing on the grounds that plaintiff was inadequately represented by counsel at the administrative hearing. The Board of Education and ISBE filed this timely appeal.
The sole issue presented is whether the circuit court, under the Administrative Review Law, has the authority to order a new hearing due to the inadequate legal representation of the losing party.
In an administrative review proceeding, the circuit court is limited to those powers specifically granted under the Administrative Review Law. (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.) The law provides that the circuit court has the power to affirm or reverse the decision of the administrative agency in whole or in part; to reverse and remand the decision of the administrative agency in whole or in part, and, in such cases, to state the questions requiring further hearing or proceedings; or to remand for the purpose of taking additional evidence. (Ill. Rev. Stat. 1985, ch. 110, par. 3-111(a).) None of the enumerated powers contemplates remand to the administrative agency due to inadequate representation of the losing party. On administrative review, the circuit court is limited to determining if the findings and decision of the administrative agency are against the manifest weight of the evidence. Ill. Rev. Stat. 1985, ch. 110, par. 3-110; Burke v. Board of Review (1985), 132 Ill. App. 3d 1094, 477 N.E.2d 1351, appeal denied (1985), 106 Ill. 2d 553.
The proceedings to remove a teacher for cause are governed by section 34-85 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 34-85). "The State Board of Education shall promulgate uniform standards and rules of procedure for such hearings including reasonable rules of discovery. . . . The teacher . . . has the privilege of being present at the hearing with counsel and of cross-examining witnesses and may offer evidence and witnesses and present defenses to the charges." (Ill. Rev. Stat. 1985, ch. 122, par. 34-85.) The provisions of the Administrative Review Law "shall apply to and govern all proceedings instituted for the judicial review." Ill. Rev. Stat. 1985, ch. 122, par. 34-85b.
There is no requirement that a teacher be represented by counsel during the dismissal hearing. The regulations provide only that the parties may be represented by counsel -- not that they must be. (23 Ill. Admin. Code 52.70(b), (c)(1) (1985).) In the proceedings before the ISBE, plaintiff was represented by two attorneys from a firm that is actively engaged in this type of litigation. One of the attorneys was an experienced Illinois attorney with a significant role at the hearing. This attorney actively participated during the direct and cross-examination of the principal witnesses. The basis for the assertion of incompetence is that plaintiff's other attorney was not admitted to the Illinois bar and was a member of the Pennsylvania bar for only six weeks prior to the hearing. This inexperienced counsel had a limited role at the hearing.
In certain criminal cases, there is a constitutional right to counsel. (U.S. Const., amends. VI, XIV.) These constitutional provisions require adequate representation by counsel. Stringent and carefully constructed standards have evolved in the area of criminal law where the personal liberty of the accused is at stake. Those cases reveal that the burden of proof of inadequacy of counsel is on the defendant, who must affirmatively show the fact of inadequacy and its prejudicial impact on and undermining of the reliability of the outcome. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061, rehearing denied (1985), 472 U.S. 1013, 86 L. Ed. 2d 730, 105 S. Ct. 2715.
Plaintiff has not cited, and we are not aware of, any comparable constitutional right to be adequately represented by counsel in a civil matter or an administrative hearing. Plaintiff also failed to cite any Illinois case which holds that inadequacy of counsel constitutes grounds for a new trial or new hearing in a civil proceeding.
"Plaintiff's final contention is that it was deprived of a fair trial because plaintiff's trial counsel, now deceased, was too ill during trial to present plaintiff's case adequately, and that a new trial should be granted for that reason. The factual support for this contention is little more than a bare assertion, and no authority is cited for the proposition that a civil judgment may be reversed because of a party's dissatisfaction with its chosen attorney. It has been held that it is an abuse of discretion to allow a motion for a new trial in a civil case when the basis of the motion is inadequacy of counsel for the losing party." (Emphasis added.)
Other jurisdictions agree with the position taken by the Illinois courts. After reviewing cases from other jurisdictions, the Indiana Appellate Court in the case of In re Marriage of ...