Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

05/24/89 Sherwin Dubin, v. the Personnel Board of the

May 24, 1989

SHERWIN DUBIN, APPELLEE

v.

THE PERSONNEL BOARD OF THE CITY OF CHICAGO, APPELLANT



SUPREME COURT OF ILLINOIS

539 N.E.2d 1243, 128 Ill. 2d 490, 132 Ill. Dec. 437 1989.IL.786

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Richard Curry, Judge, presiding.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court. JUSTICE CALVO took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

Sherwin Dubin filed a petition in the circuit court of Cook County requesting that the court stay an order of the Personnel Board of the City of Chicago (the Board) discharging him from employment. Following a hearing, the Judge allowed Dubin's petition and entered an order staying the discharge order and remanding the matter to the Personnel Board. The Personnel Board then appealed. In an unpublished order, the appellate court dismissed the appeal for lack of appellate jurisdiction. (163 Ill. App. 3d 1154 (unpublished order under Supreme Court Rule 23).) We allowed the Board's petition for leave to appeal pursuant to Supreme Court Rule 315(a) (107 Ill. 2d R. 315(a)).

Sherwin Dubin is a career service employee with the City of Chicago's Department of Inspectional Services. Sometime prior to March 1984, the department brought charges against Dubin claiming that he had violated the city's residency requirement by failing to live within Chicago's city limits (Chicago Municipal Code § 25 -- 30 (1984)). On March 1, 1984, a hearing was held by the Personnel Board to investigate the charges. Almost three years later, on January 13, 1987, the Personnel Board issued its findings and decision. The Board's findings regarding Dubin's residency consisted solely of the following statement: "As of March 1, 1984and prior theretothe Respondent, Sherwin Dubin, did not intend to reside and did not in fact physically reside within the corporate boundaries of the City of Chicago." The Board then found Dubin in violation of the municipal code and discharged him from his position with the Department of Inspectional Services.

After receiving the Personnel Board's decision, Dubin filed in the chancery division of the circuit court of Cook County on January 22, 1987, a petition styled "Petition for Stay of Order or in the Alternative a Temporary Restraining Order Against the Personnel Board of the City of Chicago." In the petition, Dubin asserted that the Board's findings of fact were insufficient and that without additional findings by the Board the discharge order was incapable of review under the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, pars. 3-101 through 3-112). Dubin requested that either the discharge order be stayed pending the Board's filing of more specific findings of fact, or that a temporary restraining order be entered enjoining the Board from enforcing its order.

Later in the day on which the petition was filed, a hearing was held on the petition. At the hearing, the Personnel Board, through counsel, argued that the Board's findings were sufficient for purposes of review and also pointed out that Dubin had not filed a complaint seeking judicial review of the Board's decision. In response, Dubin's attorney stated that he believed filing a complaint would be premature at that time. The attorney explained that, without further findings by the Board, he was unsure whether or not he would advise Dubin to seek review of the Board's discharge order in the courts. The trial Judge expressed concern over the lack of a complaint but then stayed the discharge order, concluding that the Board's findings were insufficient to allow meaningful judicial review. The trial Judge then remanded the matter to the Board for further findings.

The Personnel Board appealed the circuit court's order staying the discharge. In a Rule 23 order, the appellate court found that it did not have jurisdiction to review the stay order entered by the circuit court. In its opinion, the appellate court found that the jurisdiction of the appellate court is limited to the review of final judgments unless an order falls within a category that qualifies for an interlocutory appeal. (See 107 Ill. 2d Rules 301, 306, 307, 308.) Without analyzing the exceptions for interlocutory appeals contained in Rule 307, the appellate court decided that the stay order under consideration was not a final order and therefore was not appealable.

One Justice specially concurred, believing that a split of authority currently exists among the appellate districts regarding the appealability of stay orders entered under the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.). The Concurring opinion noted that while in the first and fifth appellate districts such stay orders are appealable under Rule 307 (Coordinating Committee of Mechanical Specialty Contractors Association v. O'Connor (1st Dist. 1980), 92 Ill. App. 3d 318; Cahokia Sportservice, Inc. v. Illinois Liquor Control Comm'n (5th Dist. 1975), 32 Ill. App. 3d 801), such stay orders are not considered appealable under Rule 307 in the second district (Gorr v. Board of Fire & Police Commissioners (2d Dist. 1984), 129 Ill. App. 3d 327). The Concurring Justice chose to follow Gorr, believing that case afforded more protection for municipal employees.

The Personnel Board then petitioned this court for leave to appeal, asking that we resolve the apparent conflict among the appellate districts regarding the appealability of orders staying final decisions of administrative agencies. We granted the petition. In its brief to this court, however, the Board raises a threshold argument contending that the circuit court never had jurisdiction in this case. Because we agree, although not for the reasons suggested by the Board, that the circuit court did not have the authority to stay the Personnel Board's discharge order in this case, we have no reason to decide here whether the stay order was appealable under either the Administrative Review Law or a common law writ of certiorari.

The Personnel Board contends that, although it did not challenge the circuit court's jurisdiction in the appellate court, it has not waived this argument since arguments concerning subject matter jurisdiction may be raised at any time. The Board claims that, in order for a circuit court to have jurisdiction to review administrative decisions, the plaintiff must file a complaint. The Board reasons that under article VI, section 9, of the Illinois Constitution (Ill. Const. 1970, art. VI,

While we agree with the Board that arguments concerning subject matter jurisdiction may be raised at any time (see Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 215), we believe that the remainder of the Board's argument is flawed. First, the Board's argument presupposes that Dubin has sought judicial review of the Board's discharge order. Dubin has maintained throughout the proceedings, however, that he is seeking not the review of the Board's decision to discharge him, but rather a determination by the court that the Board's findings of fact were insufficient to allow him to decide whether to seek review of the Board's discharge order in the circuit court. Because Dubin did not seek review of the Board's final decision but only an order staying that decision and remanding the case to the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.