have been raised in state court through this common law certiorari option, had Holstein taken advantage of it. Defendant City contends that Holstein's failure to seek timely administrative review of the determination against him at his post-tow hearing amounts to a waiver of his rights. The court agrees.
If an individual intentionally relinquishes a known right, either expressly or by conduct inconsistent with an intent to enforce that right, he has waived it. J. H. Cohn & Co. v. American Appraisal Associates, Inc., 628 F.2d 994, 1000 (7th Cir. 1980). Constitutional rights are no different; they too may be waived. Sapir v. City of Chicago, 749 F. Supp. 187, 191 (N.D. Ill. 1990). By ignoring the proper course of action in appealing an administrative hearing, plaintiff Holstein has waived his right to have his appeal heard.
Holstein had six months from the date of his post-tow hearing, which took place on March 25, 1991, in which to seek review of that hearing in state court under the mechanism of common law certiorari. Although the instant action was filed within that six month window of opportunity, on August 28, 1991, this court is not the forum for such an action to be brought directly from the administrative hearing. Also, it does not appear that Holstein has a reasonable excuse for missing the six-month deadline. Holstein argues that he filed his claim in this court because he had noted a tendency on the part of the City to "instantly remove state actions that posed constitutional questions to federal court pursuant to 28 U.S.C. § 1441(b)." While Holstein may expect to be commended for saving the City the trouble of removal to federal court, choosing the federal court was not an option properly before him. It is clear that common law certiorari dictates that Holstein's only available forum for this matter was the state court. It is further clear that the choice of defendant City to remove such actions to federal court is the exclusive prerogative of the City, as dictated by 28 U.S.C. § 1441 (b). Finally, because the time allowed Holstein for his writ of certiorari to state court has long since past, his right to certiorari has been effectively waived, and the underlying administrative determination has become final. See Koch, 39 Ill. App. 2d 51, 187 N.E.2d 340 .
Accordingly, plaintiff Holstein has waived his right to common law certiorari, which in itself justifies the dismissal of Count III with prejudice.
City additionally maintains that Holstein is also barred by res judicata from bringing Count III. City points out that res judicata principles apply when a party seeks to raise a constitutional challenge in a federal civil rights action, which could have been, but was not, raised as a defense in prior state proceedings. See, e.g., Button v. Harden, 814 F.2d 382 (7th Cir. 1987). Because Holstein makes his constitutional challenge to the city's post-tow hearings for the first time in the instant action, City properly asserts that this claim must be scrutinized in the light of Illinois law regarding res judicata.
Illinois law states that a prior judgment may have preclusive effects in a subsequent action under res judicata. Housing Authority for LaSalle County v. YMCA of Ottawa, 101 Ill. 2d 246, 461 N.E.2d 959, 961, 78 Ill. Dec. 125 (1984). The doctrine of res judicata provides that a valid judgment in a previous action between the parties bars a subsequent action between those parties on the same claim or cause of action. The doctrine apples not only to those issues which were actually raised in the first proceeding, but also to any issues which might have been raised in that proceeding. Edwards v. City of Quincy, 124 Ill. App. 3d 1004, 1008, 464 N.E.2d 1125, 1129, 80 Ill. Dec. 142 (1984).
The res judicata effect affixes to administrative decisions which are judicial in nature. Godare v. Sterling Steel Casting Co., 103 Ill. App. 3d 46, 430 N.E.2d 620, 58 Ill. Dec. 588 (1981). After a review of such a decision, the reviewing court's judgment is res judicata to all issues raised before it, and all issues, which could have been raised on the record but were not, are deemed waived. Pedigo v. Johnson, 130 Ill. App. 3d 392, 394, 474 N.E.2d 430, 432, 85 Ill. Dec. 702 (1985). Here, Holstein has foregone review of the post-tow hearing in state court.
Holstein could have--and should have--raised his constitutional claims in a certiorari action in the Circuit Court of Cook County. As discussed above, the state court is the proper forum for appeals of post-tow hearing decisions in Illinois. Now, however, it is too late for Holstein to bring his constitutional claims in state court; moreover his amended complaint does not contain a state law claim for certiorari. Clearly, Holstein did not raise his constitutional claims in the prior proceedings--as he should have--and his window of opportunity for bringing such claims in state court has since been shut. Thus, his inaction below has led to the entry of a final judgment on all issues which would have been properly raised in an appeal of the post-tow hearing. For this reason, the City contends, res judicata should operate to bar Holstein's collateral attack on the constitutionality of the post-tow hearings.
In response to this, Holstein cites authority for the proposition that the doctrine of res judicata does not preclude him from pursuing the instant action. Holstein argues that a court will not give res judicata effect to judgments that "do not provide the parties with an adequate opportunity to litigate the issues." See, Buckhalter v. Pepsi-Cola General Bottlers, Inc., 820 F.2d 892 (7th Cir. 1987). However, this court does not agree with that assertion in this context.
Holstein may feel that the post-tow hearing he was given did not afford him an adequate opportunity to litigate the validity of his tow. However, such an opportunity to litigate is clearly provided in the process of administrative review in state court, of which Holstein did not properly avail himself. It was precisely this inaction on Holstein's part which doomed his post-tow hearing decision to finality to begin with. Even if the post-tow hearing was inadequate, the process of review in the state court would remedy any such deficiencies by giving appellants their "day in court." Holstein will not be heard to complain that he was not afforded an adequate opportunity to litigate his issues after having foregone an appeal in the proper forum.
Finally, Holstein has proffered the argument that this court should not give res judicata effect to the post-tow hearing because that judgment is "void ab initio." See, Pedigo v. Johnson, 130 Ill. App. 3d 392, 474 N.E.2d 430, 85 Ill. Dec. 702 . Holstein contends, inter alia, that the post-tow hearing decision is void because unconstitutional (because conducted without authority), and proceeds to attempt to illustrate this alleged unconstitutionality before this court. Thus, Holstein attempts to force this court into deciding the merits of his claim--the constitutionality of City's post-tow hearings--by including them as something which must be overcome in order to dismiss the claim. However, this court need not--and will not--reach the merits of Holstein's claim of unconstitutionality in dismissing it.
A void judgment is one that, from its inception, is a complete nullity and without legal effect. Id. at 395, 474 N.E.2d 430, 432. Furthermore, although Holstein at no point offers the following proposition, it has been held that an agency's order that is void may be attacked at any time and in any court either directly or collaterally. Id. (citing City of Chicago v. Fair Employment Practices Comm., 65 Ill. 2d 108, 112, 357 N.E.2d 1154, 1155, 2 Ill. Dec. 711 (1976)). However, the word "void" is interpreted in several different ways, and in this case its proper interpretation does Holstein little good.
The word "void" is often ambiguous, and it may mean a complete nullity, or it may mean only susceptible of being held to be a nullity. Thus, the word has various meanings and has been applied to that which has no legal effect and is an absolute nullity, and to that which, by reason of some inherent vice or defect, may be adjudged void by a court when the question is presented to it. Pedigo at 396, 474 N.E.2d 430, 433. The court finds that this latter category is applicable in the instant case. Pedigo addressed the interpretation of the word "void" in "cases in which the individual subjected to agency action has ample opportunity to protect himself both at the hearing and on review." Id. at 397, 474 N.E.2d 430, 433. That court determined that the latter interpretation was appropriate. "If used with respect to individuals, who are capable of protecting themselves, [the word void] will often be interpreted as voidable only." Id. Thus, this suggests that the very existence of a process of administrative review indicates that even in the best light, Holstein's claim must be read as asserting that the post-tow hearing decision is only "susceptible of being held a nullity." Thus, the defendants argument that res judicata does not apply because the judgment rendered at the post tow hearing at issue was void on its face, is rejected.
Moreover, it seems apparent that this court could not find the administrative decision void ab initio on a collateral attack. As noted above, review of decisions made in the post-tow hearings is the same as that for any administrative review action. The proper vehicle for such administrative review is a common law certiorari action in state court. Hence, the state court's review process presented Holstein with the "opportunity to protect himself" from enforcement of an allegedly voidable administrative decision. A direct attack on the validity of an administrative decision is clearly the mechanism that Illinois has chosen to protect individuals from decisions which lack legal validity. Such a direct attack may only be brought in state court in an administrative review action. Hence, even a collateral attack on the administrative hearing challenging it as void ab initio has no place in this court given the doctrine of res judicata.
This holding is in keeping with the policies underpinning the doctrine. Res judicata is premised on the notion that the law affords every man his day in court along with the opportunity to present his case on the issues involved. Pedigo at 395, 474 N.E.2d 430, 433. Holstein was given just such an opportunity; however, this opportunity comes with an obligation. "It also requires him to bring forth all grounds of recovery or defense that he has." Id. By failing both to avail himself of this opportunity and to fulfill his obligation to properly and fully litigate his case below, Holstein has allowed the decision reached at the post-tow hearing to become final through the operation of a six-month time limit for filing certiorari actions. His argument that the decision is void--raised for the first time here--cannot be used to allow him to skirt around the very mechanism which is in place to protect him from such allegedly void administrative decisions.
Accordingly, because Holstein has waived his right to common law certiorari, and is barred by res judicata from bringing his claim before this court in a collateral attack, Count III must be dismissed with prejudice.
For the aforementioned reasons, the court grants defendant's motion for dismissal as to Counts I, II, and III of plaintiffs First Amended Complaint.
Ann Claire Williams, Judge
United States District Court
Dated: SEP 29 1992