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March 31, 1995


Appeal from the Circuit Court of Cook County. No. 92 CH 5860. Honorable Lester D. Foreman, Judge Presiding.

Rehearing Denied May 10, 1995. Released for Publication May 26, 1995.

The Honorable Justice McCORMICK delivered the opinion of the court: Scariano, P.j., and DiVITO, J., concur.

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

In 1991 Congregation Kol Ami (Kol Ami), a Reform Jewish religious congregation in Chicago, terminated Jeanne Diamond from the position of cantorial soloist. When she learned that Kol Ami offered this position to a male, Diamond filed a sex discrimination complaint with the Chicago Commission on Human Relations (Commission). She sought compensatory damages but not reinstatement. Kol Ami brought a motion to dismiss the complaint before the Commission because Kol Ami claimed a religious exemption from the Commission's proceedings.

The Commission held that it did not have jurisdiction to review a decision of a religious body concerning employment of its ministers. However, the Commission noted that Diamond alleged that she was not a member of the clergy, and said:

"Taking [Diamond's] allegations as true, as we must for purposes of a motion to dismiss, the Commission finds that it is not now required to dismiss the complaint. [Kol Ami] is free to renew its motion at the hearing on this matter. At that time, [Kol Ami] will have an opportunity to persuade the Hearing Officer and the Commission that the Complainant's factual assertions relied upon here should not be credited. Factual findings which are contrary to the ones on which this decision rests may well dictate a different outcome."

Kol Ami then brought this action in circuit court for a writ of prohibition to prevent the Commission from hearing the facts it deemed necessary to determine whether it had jurisdiction. The trial court granted the writ and Diamond's motion to intervene. Diamond appeals.

A court should not issue a writ of prohibition unless the writ will prohibit the judicial or quasi-judicial action of a tribunal of inferior jurisdiction whose proposed action must be either outside the tribunal's jurisdiction or, if within its jurisdiction, beyond its legitimate authority. ( Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, 468, 537 N.E.2d 784, 130 Ill. Dec. 455.) Also, because a writ of prohibition is an extraordinary remedy ( Hughes v. Kiley (1977), 67 Ill. 2d 261, 266, 367 N.E.2d 700, 10 Ill. Dec. 247), the court should not issue the writ unless "the petitioner [is] without any other adequate remedy." Orenic, 127 Ill. 2d at 468.

Both the Commission and Diamond contend that Kol Ami has an adequate remedy, through administrative review of a final Commission decision. Kol Ami argues that this remedy is inadequate because Kol Ami will sustain litigation costs and suffer delay due to the administrative proceedings, and because the Commission, by investigating the decision to dismiss Diamond, will infringe on Kol Ami's constitutional rights.

The United States Supreme Court has held that "mere litigation expenses, even substantial and unrecoupable cost, does not constitute irreparable injury," and such costs do not justify court interruption of agency proceedings. ( Renegotiation Board v. Bannercraft Clothing Co., Inc. (1974), 415 U.S. 1, 24, 39 L. Ed. 2d 123, 139, 94 S. Ct. 1028, 1040.) However, delay for completion of administrative proceedings can lead to irreparable harm under some circumstances. In Orenic a union petitioned the Labor Relations Board for an election to determine whether the union could represent court employees whom the union alleged were jointly employed by the county and the chief judge of the trial court. The chief judge petitioned for a writ to prohibit the Board from certifying any bargaining unit which listed the county as a joint employer of judicial branch employees. ( Orenic, 127 Ill. 2d at 459.) Our supreme court found that the chief judge showed that administrative review would not provide an adequate remedy, by

"pointing to appellate delay during any review as threatening the smooth operation of the court system and possibly causing irreparable harm to [his] employment relationship with [his] employees." ( Orenic, 127 Ill. 2d at 469.)

The court agreed, stating:

"The effects of improperly ordered certification or bargaining would not easily be undone, if at all. Positions taken, agreements reached, and appropriations made would be on public view and formalized ...

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