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Fragakis v. Police and Fire Commission

February 11, 1999

THOMAS FRAGAKIS, PLAINTIFF-APPELLANT,
v.
THE POLICE AND FIRE COMMISSION OF THE VILLAGE OF SCHILLER PARK, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Greiman

Appeal from the Circuit Court of Cook County.

Honorable Michael B. Getty, Judge Presiding.

Plaintiff Thomas Fragakis, a Schiller Park police sergeant, appeals from the dismissal of his complaint for administrative review of the five-day suspension imposed on him by the Board of Fire and Police Commissioners of the Village of Schiller Park (Board). Plaintiff argues that the circuit court erred in dismissing his complaint because of his failure to name the individual members of the Board and the chief of the Schiller Park police (Chief) as parties in his complaint for administrative review.

We reverse and remand by reason of the recent amendment to the Administrative Review Law (735 ILCS 5/3--103, 3--107(a) (West 1996) (as amended by Pub. Act 89-685, §25, eff. June 1, 1997)) and by judicial pronouncements seeking to bring peace to the dangerous minefield created by Lockett v. Chicago Police Board, 133 Ill. 2d 349 (1990).

Plaintiff initially received a one-day suspension by the Chief on October 2, 1996, for various infractions of police rules. Upon review of that determination, the Board determined on December 17, 1996, that plaintiff should be suspended for five days. The Board's order recited that the Chief initially suspended plaintiff and had appeared at the hearing through counsel. The order also named the chairman and two Board members who heard the testimony of witnesses on review of the Chief's decision, although the order was only signed by the Board's chairman. When plaintiff filed his complaint for administrative review of the Board's decision, he named and served only the Board. He did not name or serve any of the individual Board members, nor did he name or serve the Chief.

The Board moved to dismiss plaintiff's complaint for lack of jurisdiction because the complaint failed to identify the individual Board members and the Chief as defendants. At the hearing on the motion, plaintiff contended that he was not required to name the Chief and the individual Board members because they were not parties of record or necessary parties. However, plaintiff also asked the court for 21 days to name any additional parties that the court deemed necessary. The court granted the motion to dismiss, ruling that the Board members and the Chief were parties of record to the proceedings and plaintiff was required to name them. Because the parties were named in the final order, the court stated that plaintiff could not file an amended complaint to add these parties as defendants. Plaintiff appeals, arguing that the circuit court erred in granting the dismissal for lack of jurisdiction and erred in denying plaintiff leave to file an amended complaint.

Section 3--102 of the Administrative Review Law (the Act) (735 ILCS 5/3--102 (West 1996)) provides: "Unless review is sought of an administrative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision."

Section 3--103 of the Act (735 ILCS 5/3--103 (West 1996)) requires that every action for review of a final administrative decision be commenced by filing a complaint and issuing a summons 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.

At the time of the filing of plaintiff's complaint, section 3-- 107(a) of the Act stated in pertinent part:

"(a) 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 parties of record to the proceedings before the administrative agency shall be made defendants.

If, during the course of a review action, the court determines that a party of record to the administrative proceedings was not made a defendant as required by the preceding paragraph, and only if that party was not named by the administrative agency in

--its final order as a party of record, then the court shall grant the plaintiff 21 days from the date of the determination in which to name and serve the unnamed party as a defendant. The court shall permit the newly served defendant to participate in the proceedings to the extent the interests of Justice may require." 735 ILCS 5/3-107(a) (West 1996).

In light of this section, the Board contends that plaintiff's complaint was properly dismissed for failing to name and serve the individual Board members and the Chief as defendants.

In Lockett v. Chicago Police Board, 133 Ill. 2d 349 (1990), a Chicago police officer failed to name the superintendent of police in his complaint for administrative review of a decision of the Chicago police board. The Illinois Supreme Court held that the superintendent was a necessary party to the action under a prior version of section 3-- 107 (Ill. Rev. Stat. 1985, ch. 110, par. 3--107). Lockett, 133 Ill. 2d at 354. The court stated that the Act's procedural requirements must be strictly adhered to because the Act is a departure from common law. Lockett, 133 Ill. 2d at 353. Under section 3--103, the requirement that a complaint be filed within the 35-day limit is jurisdictional and if a complaint is not timely filed, no jurisdiction is conferred on the circuit court and judicial review is barred. Lockett, 133 Ill. 2d at 354-55. The 35-day period for issuance of summons, on the other hand, is a mandatory requirement rather than jurisdictional. The court ruled that the complaint for judicial review filed by the police officer was properly dismissed where the superintendent was a necessary party, but the officer failed to name and serve the superintendent within the 35- day time period. Lockett, 133 Ill. 2d at 354. This court later explained that although section 3--107 does not specify a time limit ...


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