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Billy Hurst v. the Board of the Fire and Police

July 12, 2011

BILLY HURST, PLAINTIFF-APPELLANT,
v.
THE BOARD OF THE FIRE AND POLICE
COMMISSION FOR THE CITY OF CLINTON, AN ADMINISTRATIVE AGENCY; AND MICHAEL REIDY, CHIEF
OF POLICE FOR THE CITY OF CLINTON, ILLINOIS,
DEFENDANTS-APPELLEES.



Appeal from Circuit Court of DeWitt County No. 09MR28 Honorable Chris E. Freese, Judge Presiding.

The opinion of the court was delivered by: Justice Pope

2011 Ill. App. (4th) 100964

JUSTICE POPE delivered the judgment of the court, with opinion. Justices Turner and Steigmann concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Billy Hurst, appeals a circuit court order which dismissed his amended complaint for declaratory judgment and administrative review. In his amended complaint for administrative review, plaintiff sought reversal of an order of the Board of Fire and Police Commission of the City of Clinton (Board) which discharged plaintiff from his employment as a City of Clinton (Clinton) police officer. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On January 30, 2009, Michael Reidy (Reidy), the Clinton chief of police, filed with the Board written charges against plaintiff. Reidy alleged plaintiff viewed pornography on the employer-owned mobile data terminal while on duty in violation of "certain rules and regulations of the City of Clinton Police Department."

¶ 4 On May 15, 2009, plaintiff filed a complaint against defendants for declaratory judgment that (1) Reidy obtained evidence of plaintiff viewing pornography in violation of the eavesdropping statute contained in the Criminal Code of 1961 (720 ILCS 5/14--1 through 14--9 (West 2008)), and (2) the Board "must conduct a fair and impartial hearing."

¶ 5 The Board held a hearing on the charges on August 13, 2009, and entered an order discharging plaintiff from his position as a police officer on October 13, 2009.

¶ 6 On October 20, 2009, plaintiff filed his motion for leave to file an amended complaint and an amended complaint, which included a count requesting administrative review of the Board's discharge order. The certificate of service shows the motion and the proposed amendment were mailed to counsel for defendants on October 19, 2009. On December 16, 2009, the trial court granted plaintiff's motion. (Although the motion to amend and the first amended complaint are file-stamped October 20, 2009, there is no contemporaneous docket entry. Nevertheless, all parties agreed they received the motion and amended complaint on or around October 20, 2009.)

¶ 7 In response, Reidy filed a motion to dismiss plaintiff's amended complaint on December 28, 2009, arguing (1) plaintiff failed to file his action seeking administrative review in a timely manner and, alternatively, (2) Reidy did not violate the eavesdropping statute (720 ILCS 5/14--1 through 14--9 (West 2008)) when he obtained evidence of plaintiff viewing pornography on the employer-owned mobile data terminal while on duty. The Board filed a motion to dismiss plaintiff's amended complaint on December 30, 2009, alleging plaintiff failed to file his action seeking administrative review in a timely manner. On November 17, 2010, the trial court granted defendants' motions, dismissing with prejudice plaintiff's amended complaint.

¶ 8 II. ANALYSIS

¶ 9 A. Jurisdiction

ΒΆ 10 Defendants argue the trial court was without jurisdiction to consider plaintiff's amended complaint because plaintiff failed to file his action seeking administrative review in a timely manner. We review an order granting a section 2--619 motion to dismiss de ...


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