Appeal from the Circuit Court of Cook County. The Honorable Albert Green, Judge Presiding.
Released for Publication September 11, 1997.
The Honorable Justice Gallagher delivered the opinion of the court. Tully, P.j., and Cerda, J., concur.
The opinion of the court was delivered by: Gallagher
The Honorable Justice GALLAGHER delivered the opinion of the court:
This case involves the constitutionality of sections 3--103 and 3--107(a) of the Administrative Review Law (the Act) (735 ILCS 5/3--103, 3--107(a) (West 1994)). We are asked to determine whether section 3--103, as amended by Public Act 88--110, section 5, effective July 20, 1993, is special legislation in violation of article IV, section 13, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IV, § 13) or whether section 3--107(a) is void for vagueness.
On January 25, 1993, the superintendent of police filed charges against plaintiff, Roger Lacny, before the Police Board of the City of Chicago, the defendant herein. On February 1, 1994, the defendant ordered that plaintiff be discharged from his duty as a Chicago police officer. On March 8, 1994, within the 35 days required by the Act, plaintiff filed a complaint in the circuit court seeking review of the defendant's decision. In his complaint, plaintiff named the Police Board of the City of Chicago as a defendant, but he failed to name the superintendent of police. On March 23, 1994, the superintendent filed a motion to dismiss based upon plaintiff's failure to name him as a defendant. On August 19, 1994, the trial court entered an order dismissing the case based upon plaintiff's failure to comply with the relevant statutory requirements of the Act. Plaintiff appeals from that order.
Plaintiff raises several issues on appeal, some of which challenge the constitutionality of the relevant statutory provisions of the Act. It is well established that constitutional questions will not be considered where the case can be determined on other, nonconstitutional grounds. See People v. McDaniel, 164 Ill. 2d 173, 180, 647 N.E.2d 266, 269, 207 Ill. Dec. 304, (1995); People v. Mitchell, 155 Ill. 2d 344, 356, 614 N.E.2d 1213, 1218, 185 Ill. Dec. 528 (1993); Clark v. Han, 272 Ill. App. 3d 981, 990, 651 N.E.2d 549, 555, 209 Ill. Dec. 371 (1995). Thus, we first consider those issues that do not involve constitutional questions.
In support of its motion to dismiss, the superintendent contended that the supreme court's decision in Lockett v. Chicago Police Board, 133 Ill. 2d 349, 549 N.E.2d 1266, 140 Ill. Dec. 394 (1990) was dispositive in the instant case. In Lockett, similar to the case below, a Chicago police officer failed to name the superintendent of police in his timely filed complaint for administrative review of a decision of the police board. Lockett, 133 Ill. 2d 349, 549 N.E.2d 1266, 140 Ill. Dec. 394. The Lockett case was decided upon nonconstitutional grounds. The supreme court held that the superintendent was a necessary party to the action pursuant to section 3--107(a) of the Act and that plaintiff's failure to name as a defendant and issue summons on the superintendent within the 35-day time period required under section 3--103 of the Act barred his action for administrative review. Lockett, 133 Ill. 2d 349, 549 N.E.2d 1266, 140 Ill. Dec. 394. In so doing, the Lockett court specifically stated that it was overruling previous appellate court decisions which had held that the failure to name and issue summons on necessary parties within the 35-day time limit could be cured by subsequent amendment. Lockett, 133 Ill. 2d at 356, 549 N.E.2d at 1269.
The first argument advanced by plaintiff that does not involve a constitutional attack upon the statute in question is that his conduct falls within the good-faith exception discussed in Lockett whereby, "due to some circumstances beyond their control, summons was not issued [upon the necessary party] within the statutory period." Lockett, 133 Ill. 2d at 355, 549 N.E.2d at 1268. Plaintiff bases his argument on the mere fact that he sought to amend his defective complaint, contending that his efforts constituted a good-faith exception to the statutory requirements of section 3--107(a), which requires that "all persons, other than the plaintiff, who were *** parties of record to the proceedings before the administrative agency shall be made defendants." 735 ILCS 5/3--107(a) (West 1994).
The Lockett court noted that the clear and unambiguous language of section 3--107, which specified who shall be made defendants, is a requirement that "is mandatory and specific, and admits of no modification. " (Emphasis added.) Lockett, 133 Ill. 2d at 354, 549 N.E.2d at 1268. The plaintiff in Lockett had also sought to amend his complaint, far more expediently than did plaintiff here. In spite of this, the court stated that its "review of the record failed to disclose any evidence of a good-faith effort to comply with [any of] the [relevant] requirements of the Act," thus justifying the circuit court's dismissal. Lockett, 133 Ill. 2d at 355-56, 549 N.E.2d at 1269. The court noted that "in cases where the 35-day requirement has been relaxed, the plaintiffs had made a good-faith effort to issue summons within the statutory period." (Emphasis added.) Lockett, 133 Ill. 2d at 355, 549 N.E.2d at 1268.
It is inordinately clear that the good faith effort must be made within the 35 day period to justify an exception to the Act's requirements. Plaintiff here made no attempt to do anything within the statutory period; thus, his argument that the good-faith exception should apply fails. Lockett's progeny confirm this conclusion. See Davis v. Chicago Police Board, 268 Ill. App. 3d 851, 645 N.E.2d 274, 206 Ill. Dec. 269 (1994); Central States Co. v. Department of Employment Security, 248 Ill. App. 3d 86, 618 N.E.2d 430, 187 Ill. Dec. 839 (1993); Murray v. Board of Review, 237 Ill. App. 3d 792, 604 N.E.2d 1040, 178 Ill. Dec. 517 (1992); Poturalski v. Police Board, 228 Ill. App. 3d 864, 593 N.E.2d 781, 170 Ill. Dec. 892 (1992); Gilty v. Oak Park Board of Fire & Police Commissioners, 218 Ill. App. 3d 1078, 578 N.E.2d 1294, 161 Ill. Dec. 648 (1991); Marozas v. Board of Fire & Police Commissioners, 222 Ill. App. 3d 781, 584 N.E.2d 402, 165 Ill. Dec. 223 (1991). A plaintiff's inadvertence in failing to name a necessary party is not considered to be a good-faith effort. See Central States, 248 Ill. App. 3d at 90, 618 N.E.2d at 433. We hold that an attempt to amend a complaint that has failed to name all necessary parties as required by section 3--107(a) of the Act (735 ILCS 5/3--107(a) (West 1994)) does not constitute the good faith effort discussed in Lockett, regardless of how soon the attempt is made after the 35 day period expires.
The next nonconstitutionally based argument offered by plaintiff is that the failure to name parties of record is not a jurisdictional defect and is therefore waivable. He then contends that the right to dismissal pursuant to Lockett was waived in this case because the superintendent voluntarily appeared and filed a motion to dismiss. This argument fails for several reasons. First, the requirements of the Act, generally speaking, are not waivable. Gilty v. Oak Park Board of Fire & Police Commissioners, 218 Ill. App. 3d 1078, 578 N.E.2d 1294, 161 Ill. Dec. 648 (1991). Second and more specifically, since the defendant's defense here is not a jurisdictional argument, the plaintiff cannot contend that the defendant waived the issue by appearing and filing a motion to dismiss. The superintendent did not file a response on the merits but, instead, filed a motion to dismiss based on plaintiff's failure to comply with the mandatory requirements of the statute. Since the time limit in which to name the necessary parties is a mandatory requirement and not a jurisdictional one, the superintendent was not required to file a special and limited appearance and could raise the issue in a motion to dismiss at any time before responding to the merits of the complaint. See, e.g., Johnson v. Department of Public Aid, 251 Ill. App. 3d 604, 606, 622 N.E.2d 50, 52-53, 190 Ill. Dec. 640 (1993); see also Zientara v. Lottery Control Board, 214 Ill. App. 3d 961, 574 N.E.2d 747, 158 Ill. Dec. 634 (1991) (director's interjection of herself into the proceedings did not waive the mandatory duty imposed upon plaintiff to name her as a defendant). Finally, appearance is irrelevant because although all named defendants wishing to appear may do so by filing a written appearance within the time fixed by supreme court rule, the only answer that is required in an administrative review proceeding is the administrative agency's record. Biscan v. Village of Melrose Park Board of Fire & Police Commissioners, 277 Ill. App. 3d 844, 847, 661 N.E.2d 424, 427, 214 Ill. Dec. 570 (1996).
Because the foregoing analysis of plaintiff's arguments does not warrant disposal of this case on nonconstitutional grounds, we next address plaintiff's constitutional arguments. Plaintiff first contends that section 3--103 of the Act, as amended in 1993, denies him equal protection under the law and violates the special legislation provision of the Illinois Constitution, which states in pertinent part that "the General Assembly shall ...