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Giovenco v. Board of Fire and Police Commissioners

March 21, 2000

JOSEPH GIOVENCO, PLAINTIFF-APPELLANT,
V.
BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF RIVER GROVE, ILLINOIS, DEFENDANT-APPELLEE



The opinion of the court was delivered by: Justice McNULTY

Appeal from the Circuit Court of Cook County. Honorable Lester Foreman, Judge Presiding.

In Carver v. Nall, 186 Ill. 2d 554, 561-62, 714 N.E.2d 486 (1999), our supreme court held that a final order of a unit of local government need not include notice to its recipients of the right to administrative review. We now must determine whether Carver applies retroactively. We hold that it does.

In April 1998 Joseph Giovenco applied to the Village of River Grove Board of Fire and Police Commissioners for a position as a police officer. The board notified him, by letter dated April 27, 1998, that it rejected his application. The letter did not mention the right to administrative review.

Giovenco filed his complaint for administrative review of July 21, 1998, 85 days after he received notice of the board's decision. He alleged in the complaint that the board's failure to notify him of his right to administrative review rendered his complaint timely. The board admitted both the failure to notify and the legal effect of that failure under applicable case law. See, e.g., Keller v. Retirement Board of the Firemen's Annuity & Benefit Fund, 245 Ill. App. 3d 48, 53-54, 614 N.E.2d 323 (1993). The board moved to dismiss on grounds that Giovenco failed to plead facts showing that he met the applicable age requirements. The trial court granted the board's motion. Giovenco filed a timely notice of appeal.

Before Giovenco presented his initial brief on appeal, our supreme court decided Carver. In that case the Adams County sheriff's merit commission suspended the plaintiff for 10 days. The letter that gave the plaintiff notice of the decision made no reference to the right to administrative review. The plaintiff filed a timely complaint for administrative review, but she did not have summons timely issued. She claimed the inadequacy of the notice tolled the time period for filing and issuing summons.

Our supreme court noted that the Illinois Administrative Procedure Act (5 ILCS 100/10-50(b) (West 1996)) requires all agency orders to specify whether they are subject to the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 1996)). However, the Administrative Procedure Act does not apply to units of local government, including the Adams County commission. Carver, 186 Ill. 2d at 561-62. Because the plaintiff showed no inadequacy in the notice, she showed no grounds for tolling the time period for filing the complaint and having summons issued. Our supreme court affirmed the trial court's decision dismissing the case for failure to file summons within the statutory time period.

The parties agree that Carver effectively overrules Keller. Giovenco also concedes that, because he failed to file his complaint within 35 days of notification of the decision, if Carver applies then the trial court lacked jurisdiction to consider his complaint. See Carver, 186 Ill. 2d at 559; Weissinger v. Edgar, 180 Ill. App. 3d 806, 812, 536 N.E.2d 237 (1989). He asks this court to apply Carver prospectively only and not to apply it to this lawsuit.

Our supreme court discussed prospective application of judicial decisions in Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 679 N.E.2d 1224 (1997). In that case the defendant administered an examination for police department promotions. Applicable case law at the time held that the Administrative Review Law did not apply to promotions. See Barrows v. City of North Chicago, 32 Ill. App. 3d 960, 336 N.E.2d 596 (1975). Relying on the case law, four aggrieved officers filed an action for declaratory and injunctive relief almost one year after the decision. The trial court dismissed the complaint.

Pending the appeal, the appellate court overruled Barrows and held that the Administrative Review Law applied to most of the defendant's employment decisions, including decisions regarding promotions. See Mueller v. Board of Fire & Police Commissioners, 267 Ill. App. 3d 726, 643 N.E.2d 255 (1994). If Mueller applied retroactively, the trial court should have dismissed the complaint as an improper evasion of the jurisdictional requirements of the Administrative Review Law. The appellate court decided not to apply Mueller retroactively. Our supreme court said:

"Generally, when a court issues an opinion, the decision is presumed to apply both retroactively and prospectively. [Citations.] That presumption can be overcome in two types of circumstances. First, the issuing court itself may expressly state that its decision will be applied prospectively only. [Citation.] Second, a later court may, under certain circumstances, override the presumption by declining to give the previous opinion retroactive effect, at least with respect to the parties appearing before the later court." Aleckson, 176 Ill. 2d at 86.

A decision must apply retroactively unless it "established a new principle of law, either by overruling clear past precedent on which litigants have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed." Aleckson, 176 Ill. 2d at 92. Once the threshold requirement is met:

"the question of prospective or retroactive application turns on considerations of (i) whether, given the purpose and prior history of the new rule, its operation will be retarded or promoted by prospective application, and (ii) whether prospective application is mandated by the balance of equities." Aleckson, 176 Ill. 2d at 88.

Our supreme court found that the plaintiffs relied on clear precedent, a prospective application of the rule protected its operation, and the equities favored permitting the case to proceed. Therefore, the appellate court properly decided not to apply Mueller retroactively.

In the context of the case before this court, we find that the first factor in Aleckson has two distinct aspects: whether the case to be applied either prospectively or retroactively overruled clear past precedent, and whether the parties actually relied on that precedent. The threshold requirement is met: Carver overruled clear past precedent. But we see no indication Giovenco relied on that ...


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