The opinion of the court was delivered by: Justice Hartman
Appeal from the Circuit Court of Cook County.
Honorable Lester D. Foreman, judge Presiding.
Plaintiff, the Village of Maywood Board of Fire and Police Commissioners (Board), appeals the circuit court's order granting summary judgment in favor of defendants, contesting the court's finding that defendant Department of Human Rights (Department) possessed the authority to investigate discrimination charges brought by two white males who applied, but were not hired, for firefighter positions with the Maywood Fire Department. On appeal, the Board contends that the charges are barred by the doctrine of res judicata because of a previous action filed against the Board by defendants Timothy Kingsmill and Michael Casanave, which subsequently was dismissed with prejudice. The Board also argues that a writ of prohibition should be issued against the Department and the Human Rights Commission (Commission) because neither agency has the authority to review employment decisions made by municipal boards.
In the earlier suit against the Board, Kingsmill and Casanave claimed the procedures used by the Board in hiring firefighters violated several provisions of the Illinois Municipal Code (65 ILCS 5/10-2.1-6 (West 1994)), as well as the Board's own rules and regulations. In their two-count complaint, Kingsmill and Casanave alleged that they were white males with previous experience and training as firefighters, who responded to an October 1994 advertisement placed by the Board, soliciting applications for firefighter positions. They paid a $390 application fee and took a written examination and physical aptitude test and, although they met the minimum qualifications for the position, they were not placed on the Initial Eligibility List, released on February 1, 1995, or permitted to complete the remaining portions of the application process.
Kingsmill and Casanave asserted that two out of the four candidates whose names were on the Initial Eligibility List, Stephen Thomas and Fred Saffold, were black males who were appointed to the fire department before completing the application process, nor did they have previous experience or training as firefighters. Kingsmill and Casanave alleged the Board improperly charged an application fee, hired Thomas and Saffold before they completed their applications, and prevented Kingsmill and Casanave from applying for the firefighter openings. They requested a court order nullifying the Initial Eligibility List and allowing them to finish the application process.
The Board moved to dismiss this complaint, arguing that the claims were time-barred because Kingsmill and Casanave failed to name and serve all necessary parties as defendants within the required limitations period. On June 12, 1995, the court entered an agreed order submitted by the parties, dismissing the complaint with prejudice.
Kingsmill and Casanave next filed charges with the Department, alleging that the Board discriminated against them on the basis of their race. Attorneys for the Board informed the Commission by letter of their belief that the Department lacked jurisdiction to consider the charges, and the issues involved were res judicata because they already had been litigated in the circuit court.
When the Department refused to dismiss the charges, the Board filed the present claim in the circuit court against Kingsmill, Casanave, the Department, and the Commission. Count I of the Board's two-count complaint sought a declaration that the Department and Commission lacked jurisdiction over the charges, and that the charges were barred by the doctrine of res judicata. In count II, the Board requested a writ of prohibition barring further proceedings against the Board by the Department or Commission.
The Board moved for summary judgment. Kingsmill and Casanave filed a cross-motion for summary judgment. Counsel for the Department and the Commission submitted oral motions for summary judgment. After a hearing, the circuit court denied the Board's motion and granted summary judgment for defendants. The court found that res judicata did not bar the administrative claims, as they involved different causes of action and different facts from the previous claim. The Board appeals. I As a preliminary matter, this court must address the contention of two of the defendants, the Commission and the Department, that the circuit court should have dismissed the Board's complaint for lack of subject matter jurisdiction, because: (1) the action was not yet ripe for adjudication; (2) the Board failed to exhaust its administrative remedies; and (3) the Commission and the Department are State agencies, which cannot be sued in the circuit court pursuant to the doctrine of sovereign immunity. Although defendants did not raise all these arguments before the circuit court, the issue of subject matter jurisdiction is never waived and may be raised for the first time on appeal. Currie v. Lao, 148 Ill. 2d 151, 157, 592 N.E.2d 977 (1992).
The Department and Commission first argue that the present action did not present a justiciable controversy ripe for decision. The ripeness doctrine precludes courts from entering a declaratory judgment unless an actual controversy is presented. 735 ILCS 5/2-701(a) (West 1994); Big River Zinc Corp. v. Illinois Commerce Comm'n, 232 Ill. App. 3d 34, 38, 597 N.E.2d 256 (1992). An actual controversy exists if there is a legitimate dispute requiring an immediate and definite determination of the parties' rights, the resolution of which would help terminate all or part of the dispute. First of America Bank, N.A. v. Netsch, 166 Ill. 2d 165, 173, 651 N.E.2d 1105 (1995). In other words, a plaintiff must have a personal claim or right which is capable of being affected. Netsch, 166 Ill. 2d at 174.
In cases involving challenges to administrative actions, application of the ripeness doctrine prevents courts "from entangling themselves in abstract disagreements over administrative policies" and "protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." National Marine, Inc. v. Illinois Environmental Protection Agency, 159 Ill. 2d 381, 388, 639 N.E.2d 571 (1994); see also Big River Zinc, 232 Ill. App. 3d at 39. In determining whether an issue is ripe for review, courts must evaluate the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. National Marine, 159 Ill. 2d at 389.
The Department and Commission contend that the counts directed against them are not yet ripe for review because the Department has not begun investigating the claims against the Board, and no complaint has been filed with the Commission. The Human Rights Act provides an administrative procedure by which parties alleging employment discrimination may pursue a claim against the employer. 775 ILCS 5/1-103(Q) (West 1994); Jabbari v. Human Rights Comm'n, 173 Ill. App. 3d 227, 231, 527 N.E.2d 480 (1988). First, the complaining party must file a charge of discrimination with the Department within 180 days after the employer allegedly committed the discriminatory act. 775 ILCS 5/7A-102(A) (West 1994). The Department will send notice of the charge to the employer, who must file a response, or the Department shall enter a default order. 775 ILCS 5/7A-102(B) (West 1994). After notifying the employer of the charge, the Department begins its investigation, for which it may subpoena witnesses and documents. 775 ILCS 5/7A-102(C)(1)-(2) (West 1994). The Department then conducts a factfinding conference; failure to attend by either party could result in dismissal or default. 775 ILCS 5/7A-102(C)(4) (West ...