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05/31/96 SHELBY MUDD v. DEPARTMENT CHILDREN &

May 31, 1996

SHELBY MUDD, PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF CHILDREN & FAMILY SERVICES AND THE CIVIL SERVICE COMMISSION, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Sangamon County. No. 94MR23. Honorable Sue E. Myerscough, Judge Presiding.

As Corrected August 29, 1996.

Justices: Honorable Frederick S. Green, J., Honorable Robert J. Steigmann, J., Honorable Rita B. Garman, J., Concurring, Justice Green delivered the opinion of the court:

The opinion of the court was delivered by: Green

The Honorable Justice GREEN delivered the opinion of the court:

Plaintiff Shelby Mudd appeals a judgment of the circuit court of Sangamon County entered on March 28, 1995, affirming a January 19, 1994, final administrative decision of the Illinois Civil Service Commission (Commission). That decision upheld the September 1, 1993, discharge of plaintiff from her position of child welfare supervisor with the Illinois Department of Children and Family Services (DCFS). The Commission adopted a hearing officer's report which found that several of the charges against plaintiff had been proved and recommended that these findings were enough to require dismissal. Plaintiff has appealed. We affirm.

Plaintiff maintains that (1) the decision of the Commission was contrary to the manifest weight of the evidence; (2) the charged failures of the plaintiff which the Commission found to have been proved did not constitute grounds for discharge; and (3) the Commission erred in precluding plaintiff from presenting defenses. Defendants assert that we should remand the cause to the circuit court with directions to dismiss the administrative review on grounds that court lacked jurisdiction because plaintiff failed to join all necessary parties in seeking judicial review in that court. We also disagree with that contention.

Section 3-107(a) of the Code of Civil Procedure (Code) states:

"Except as provided in subsection (b), in any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were named by the administrative agency in its final order as parties of record to the proceedings before the administrative agency shall be made defendants." (Emphasis added.) 735 ILCS 5/3-107(a) (West 1994).

Defendants argue that the Director of Central Management Services, State of Illinois (CMS), was a necessary party under section 3-107(a) of the Code because the final order of the Commission stated that order was "certified to [him]" for enforcement and also stated he had approved the charges for dismissal.

In Lockett v. Chicago Police Board, 133 Ill. 2d 349, 354, 549 N.E.2d 1266, 1268, 140 Ill. Dec. 394 (1990), the supreme court said that the joinder requirement of section 3-107 of the Code is "mandatory." However, the Lockett court did not say that the joinder was a jurisdictional requirement. In McGaughy v. Illinois Human Rights Comm'n, 165 Ill. 2d 1, 12-13, 649 N.E.2d 404, 410, 208 Ill. Dec. 348 (1995), the supreme court explained that although the joinder requirement was mandatory, it was not jurisdictional. The supreme court approved the decision of this court in Board of Education of Bethany Community School District No. 301 v. Regional Board of School Trustees of Clark, Coles, Cumberland, Edgar, Moultrie & Shelby, 255 Ill. App. 3d 763, 765-66, 627 N.E.2d 1175, 1177, 194 Ill. Dec. 533 (1994), which had reached the same result.

As the question of lack of joinder was not raised before the circuit court and does not involve jurisdiction, it was waived. We need not determine whether the reference to the Director of CMS in the final order made him a necessary party to the judicial review of the administrative decision in the circuit court.

The underlying facts in this case are largely undisputed. At times pertinent plaintiff was employed by DCFS and was the immediate supervisor of child protective investigator Frank Myers. On April 16, 1993, Myers was assigned to investigate the "hot line" report of child abuse to two-year-old M.C. which allegedly had caused a broken arm. M.C. was then living with his mother and her male friend, Keith Bennett. At that time, Myers and plaintiff knew that approximately two years earlier, Bennett had been living with M.C.'s aunt, Laurie Whewell, and her three-month-old child, B.W., when that child died of cranial cerebral blunt trauma. They also knew that a medical examiner had ruled the death resulted from homicide. In addition, they knew that although Bennett had not been prosecuted, many people believed Bennett had killed the child.

The undisputed evidence indicated that Myers began his investigation pursuant to the April 16, 1993, "hot line" call within two hours of receiving the call. He went from his office at Jerseyville to Roodhouse where M.C., his mother, and Bennett lived. He met and talked with M.C., his mother, and Bennett at the Roodhouse police station. Myers testified Bennett told him that earlier M.C. had fallen off a bed but appeared to be all right, but the next day M.C. had fallen from a 15-inch-high stool and appeared hurt. Apparently M.C. was first taken to Boyd Hospital at Carrollton and then to the larger Passavant Hospital in Jacksonville. There, Dr. Harvey Scott, an orthopedic surgeon, reduced the child's fracture and applied a cast on his arm from the wrist to the elbow. The child was held overnight and released.

Myers testified that after two months of investigation, he determined that the incident whereby M.C. broke his arm was "unfounded," meaning that he could not find credible evidence that abuse occurred in the breaking of M.C.'s arm. On June 11, 1993, Myers turned in a report to plaintiff of his investigation. Both Myers and plaintiff testified they had also consulted during the investigation. Plaintiff signed ...


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