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03/02/89 the Secretary of State, v. Edward Mikusch Et Al.

March 2, 1989

THE SECRETARY OF STATE, PLAINTIFF-APPELLANT

v.

EDWARD MIKUSCH ET AL., DEFENDANTS-APPELLEES

"NO PERSON MAY BE RETAINED IN SERVICE AS AN INVESTIGATOR UNDER THIS SECTION AFTER HE HAS REACHED 60 YEARS OF AGE." ILL. RE

v.

STAT. 1981, CH. 95 1/2, PAR. 2-115.

"DISCRIMINATION AGAINST A PERSON BECAUSE OF HIS OR HER . . . AGE." (ILL. RE

v.

STAT. 1981, CH. 68, PAR. 1-103.) THE ACT FURTHER PROVIDED:



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

536 N.E.2d 1237, 181 Ill. App. 3d 431, 130 Ill. Dec. 26 1989.IL.261

Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Plaintiff Secretary of State (Secretary), pursuant to section 2-115 of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-115), retired the individual defendants, investigators within the Secretary's office, who had reached the age of 60. Individual defendants filed a charge of discrimination with the Illinois Department of Human Rights, alleging the Secretary discriminated against them on the basis of age. The Illinois Human Rights Commission (Commission) held section 2-115 of the Vehicle Code, which compels the Secretary to retire investigators upon their reaching age 60, in irreconcilable conflict with the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1-101 et seq.). Accordingly, the Commission found that the Secretary discriminated on the basis of age. (In re Mikusch, 17 Ill. Hum. Rights Comm'n Rep. 241 (1985).) On administrative review, the circuit court of Sangamon County initially reversed the determination of the Commission; however, upon a motion for reconsideration, the circuit court affirmed the Commission's determination. The Secretary appeals from the circuit court's order.

We reverse.

On June 20, 1979, section 2-115 of the Vehicle Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 2-115) was amended to mandate the age-60 retirement of Secretary of State investigators. The section as amended became effective October 1, 1979. In pertinent part, the amended section 2-115 provided:

The same General Assembly which amended section 2-115 of the Vehicle Code also created the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1981, ch. 68, par. 1-101 et seq.) on November 8, 1979. The Act became effective July 1, 1980. The Act replaced "An Act to prohibit unjust discrimination in employment because of age . . ." (Ill. Rev. Stat. 1979, ch. 48, pars. 881 through 887), which became effective July 26, 1967, and was repealed effective July 1, 1980 (Ill. Rev. Stat. 1981, ch. 48, pars. 881 through 887), the day the Act became effective. The Act, as it existed when the action which led to this cause occurred, provided that it is a civil rights violation:

"For any employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination." (Ill. Rev. Stat. 1981, ch. 68, par. 2-102.)

The Act defined unlawful discrimination as

"'Age' means the chronological age of a person who is 40 but not yet 70 years old." Ill. Rev. Stat. 1981, ch. 68, par. 1-103.

On July 1, 1981, the Secretary informed defendant Edward Mikusch that he was to be retired on September 14, 1981, Mikusch's sixtieth birthday, according to the legislative mandate of the Vehicle Code. The notice quoted the recently amended section 2 -- 115 of the Vehicle Code and stated:

"According to our records, you will be 60 years of age on September 14, 1981 thus requiring your mandatory retirement effective as ...


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