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Pernalski v. Illinois Racing Board

March 11, 1998

MICHAEL PERNALSKI, PLAINTIFF-APPELLANT,
v.
ILLINOIS RACING BOARD, GARY L. STARKMAN, RICHARD BALOG, RALPH M. GONZALEZ, WILLIAM E. JACKSON, JOSEPH F. KINDLON, GENE LAMB, LORNA E. PROPES, JOHN B. SIMON, THOMAS J. GARVEY, MEMBERS OF THE ILLINOIS RACING BOARD, BALMORAL PARK TROT, INC., AN ILLINOIS CORPORATION; BALMORAL RACING CLUB, INC., AN ILLINOIS CORPORATION, JOHN A. JOHNSTON, AND DAN NEMETH, APPELLEES.



Appeal from the Circuit Court of Cook County. The Honorable Defendant- Margaret McBride, judge Presiding.

The opinion of the court was delivered by: Justice Gordon

BACKGROUND

This is an appeal under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 1994)) from the affirmance by the circuit court of the determination of the Illinois Racing Board (IRB) affirming the action taken by defendant, Balmoral Park Trot, Inc. (Balmoral), banning plaintiff, an owner and trainer of harness horses, from racing on its track.

There is no dispute in the record that in January 1995 Balmoral excluded plaintiff from racing at Balmoral pursuant to section 9(e) of the Illinois Horse Racing Act of 1975 (230 ILCS 5/9(e)(West 1994)) (the Act). Pursuant to Pernalski's request, the IRB held a hearing as required by section 14a of the Act (230 ILCS 5/14a (West 1994)). The evidence adduced at the hearing established that plaintiff drew two separate one-year suspensions from the IRB, in 1990 and 1994 respectively. In 1990, plaintiff was suspended for one year after a horse which he trained (Edgewood Dandy) tested positive for thiobendazol, promazine sulphoxide and etorphine, all of which were drugs whose use was prohibited. In 1993, a horse trained by plaintiff (Mountain Shannon) tested positive for caffeine resulting in plainitff's second suspension by the IRB for a period of one year commencing January 9, 1994. The evidence also established that in 1991, following the first suspension in 1990, plaintiff was found to have engaged in the prohibited practice known as "milkshaking" which involves forced ingestion by a horse of high levels of sodium bicarbonate potassium and/or lactic acid or related substances within hours prior to a race.

On January 15, 1995, after plaintiff served his second suspension terminating on January 8, 1995, the IRB approved plaintiff's application for a new license. Plaintiff thereupon met with the management of Balmoral to advise them of his intent to resume racing there. About one week thereafter, Balmoral advised plaintiff that it decided to exclude plaintiff from racing on its track pursuant to section 9(e) of the Act. The reasons attributed by Balmoral management for its exclusion were plaintiff's past conduct, including his foregoing two suspensions, and his milkshaking violation.

Plaintiff thereafter obtained a temporary restraining order against enforcement of the Balmoral exclusion. Over plaintiff's objection, the IRB heard testimony about misconduct by the plaintiff which occurred within the duration of the temporary restraining order after the Balmoral decision to exclude him from its track. The nature of the misconduct involved plaintiff's attempt to secretly stable two horses on Balmoral's track without Balmoral's authorization.

After the hearing, the IRB issued its order upholding Balmoral's exclusion of Pernalski from its race track. Pernalski thereafter filed his complaint for administrative review. The circuit court affirmed the IRB's decision; and Pernalski appeals. On appeal, plaintiff claims that the exclusion by Balmoral based upon events which preceded the IRB's 1994 suspension and subsequent license renewal, disciplined the plaintiff twice for the same misconduct in violation of our Supreme Court's decision in Coleman v. Illinois Racing Board, 124 Ill.2d 218, 529 N.E.2d 520 (1988). Plaintiff further claims that the IRB should not have heard evidence concerning any misconduct of the plaintiff with regard to his alleged illicit stabling since that act occurred after Balmoral made its exclusion decision. Lastly, plaintiff contends that, without the foregoing stabling evidence, Balmoral's determination to exclude plaintiff lacks the support of any competent evidence and is therefore contrary to the manifest weight of the evidence.

THE JURISDICTION QUESTION

Before reaching the merits of plaintiff's appeal, we must first consider the IRB's contention that we lack subject matter jurisdiction to entertain this appeal. The IRB contends that plaintiff filed his complaint for administrative review prematurely before the IRB issued a written order of Disposition. There is no dispute that plaintiff filed his complaint for administrative review on September 11, 1995, eight days before the Board issued its written order dated September 19, 1995. Accordingly, IRB contends that the trial court had no jurisdiction to consider plaintiff's appeal pursuant to a prematurely filed complaint.

Section 3-103 of the Administrative Review Law (735 ILCS 5/3-103 (West 1994)) provides that an action for administrative review must commence "within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision." A "copy of the decision" denotes a writing. Moreover, the Board's internal regulations provide that "rders disposing of contested matters upon the merits shall set forth the Board's findings of fact and Conclusions of law and shall be served by certified mail." 11 Ill. Adm. Code §204.140 (1996).

Collectively, these provisions have been construed to require the filing of a written decision as a prerequisite for the commencement of an action for administrative review. See Batka v. Board of Trustees, 227 Ill. App. 3d 735, 592 N.E.2d 230 (1992). In Batka, the defendant was asked to determine the amount and effective date of the benefits to which plaintiff was entitled. Instead of issuing a written order, the agency simply commenced to pay a certain amount as of a given date. The court in Batka held that the plaintiff was entitled, via an action for mandamus, to compel the defendant agency to issue a written decision because without it the plainitff would be deprived of his right to appeal the administrative order.

Defendant IRB also purports to derive support for its jurisdiction argument from our decision in Lutheran General Health Care System v. Department of Revenue, 231 Ill. App. 3d 652, 595 N.E.2d 1214 (1992). In that case, the Illinois Department of Revenue omitted a page of its written decision from the written order which it served upon the plaintiffs denying them a charitable real estate tax exemption. The plaintiffs failed to file their complaint for administrative review within 35 days of their receipt of the fragmented decision. Defendant, in seeking dismissal of the appeal for lack of jurisdiction, contended that "the portion of the decision mailed to plaintiff * * * was sufficient to advise plaintiffs of Nafziger's [the administrative law Judge] findings of fact and Conclusions of law." Lutheran General, 231 Ill. App. 3d at 659, 595 N.E.2d at 1219. In holding that the 35 days did not commence to run from receipt of the incomplete order, the court held that although the portion sent included the determination to deny the exemption, it did not fully inform the defendants of what claim should be addressed in their complaint stating,

"The failure to include a full page of the 7 1/2-page decision was not a minor omission. Until a complete copy of the decision was received, plaintiffs had no way of knowing that Nafziger failed to address the school exemption issue; nor could they know the precise grounds on which Nafziger relied in denying them tax-exempt status. While plaintiffs could have filed a complaint for administrative review without this information, we believe it would be unfair to require them to file a complaint where they can only guess at the contents of the decision they are seeking to have reviewed." 231 Ill. App. 3d at 660, 595 N.E.2d at 1219.

Plaintiff contends that neither Batka nor Lutheran General should control in this case. He argues that, in this case, the decision of the IRB was announced from the bench and fully transcribed in the report of proceedings by the court reporter and that a copy of that transcript was obtained by plaintiff's counsel (apparently on his own initiative prior to filing the complaint for administrative review). He also contends that he submitted an affidavit of his counsel, which is not factually challenged, that the IRB advised his counsel that its written ruling may be delayed but that, if he proceeded to appeal before its issuance, the Board would not object thereto. Plaintiff therefore contends that the appeal was not premature in ...


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