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Shaw v. Department of Employment Security

Court of Appeals of Illinois, First District, First Division

August 26, 2013

IRWIN W. SHAW, Plaintiff-Appellee,

Appeal from the Circuit Court of Cook County No. 12 L 50538, Honorable Robert Lopez Cepero, Judge Presiding.

Justices Cunningham and Rochford concurred in the judgment and opinion.



¶ 1 This appeal was taken from an administrative review judgment in the circuit court of Cook County. The underlying dispute between the employer, the Chicago Transit Authority (CTA), and a former employee, Irwin Shaw (Shaw), involves Shaw's unemployment benefits. The circuit court reversed a decision of the Illinois Department of Employment Security (IDES) Board of Review (Board) to deny Shaw benefits. The IDES, its Director, and the Board (collectively, the state parties) all appealed to this court from that reversal. We raised the issue of this court's jurisdiction to hear the appeal and requested the state parties to submit additional briefing on that topic. We find that we lack jurisdiction and, accordingly, dismiss the appeal.


¶ 3 Plaintiff-appellee Irwin Shaw, an employee of the CTA, was terminated from his employment and applied to the IDES for unemployment insurance benefits. The local IDES office issued a determination letter informing Shaw that he was not eligible for benefits. Shaw requested further review, and a hearing was held before an IDES referee. The CTA participated at that hearing. The referee affirmed the decision of the local office, issuing a written ruling which summarized the evidence and testimony and applied the relevant law to the facts adduced at the hearing. Shaw filed a notice of further appeal to the Board. The Board did not take additional evidence or testimony, and eventually issued a written decision that adopted the referee's decision by reference, affirming the denial of benefits. Shaw then filed a complaint for administrative review in the circuit court of Cook County. The record shows that the employer, the CTA, never filed an appearance or otherwise participated in the circuit court proceedings. The IDES, its Director, and the Board did, through the Attorney General. The circuit court heard arguments and issued a brief written order reversing the Board's decision, without any specific explanation.

¶ 4 The state parties, through the Illinois Attorney General, filed a notice of appeal from the circuit court's ruling and filed briefs in this court. The employee also filed a brief. The CTA, as employer, neither appealed from the circuit court's adverse decision nor filed any brief in this court. On our own motion, we found there was a legitimate question as to whether we had jurisdiction to hear an appeal of a reversal of an administrative agency's decision when only the agency, and not the losing party in interest (the employer), appealed that reversal or filed a brief in this court. We ordered the Attorney General to file a supplemental brief addressing the issue of jurisdiction. We specifically ordered the Attorney General to address the applicability of the decisions in Speck v. Zoning Board of Appeals, 89 Ill.2d 482 (1982); Kozenczak v. Du Page County Officers Electoral Board, 299 Ill.App.3d 205, 207-08 (1988); Greer v. Illinois Liquor Control Comm'n, 185 Ill.App.3d 219 (1989); Wallman v. Zoning Board of Appeals, City of Fairview Heights, 181 Ill.App.3d 680 (1989); and Carbondale Liquor Control Comm'n v. Illinois Liquor Control Comm'n, 227 Ill.App.3d 71 (1992).

¶ 5 The Attorney General complied with our order and submitted a supplemental brief on the issue of this court's jurisdiction to hear this appeal. We have considered the Attorney General's arguments and the precedents listed above. For the following reasons, we find we lack jurisdiction and dismiss the appeal.


¶ 7 We begin by acknowledging that the employee did not raise any concerns about this court's jurisdiction, but instead has argued the merits of the underlying unemployment claim. Nonetheless, it is axiomatic that "[a] reviewing court has an independent duty to consider its jurisdiction and to dismiss an appeal if jurisdiction is lacking." Uesco Industries, Inc. v. Poolman of Wisconsin, Inc., 2013 IL App (1st) 112566, ¶ 73. We also note that "appellate jurisdiction cannot be conferred by laches, agreement, waiver or estoppel, and [t]his includes the failure of one party *** to call the appellate court's attention to a jurisdictional defect." (Internal quotation marks omitted.) Manning v. City of Chicago, 407 Ill.App.3d 849, 856 (2011). Thus, we review the authorities that led this court to question whether the state parties can invoke this court's jurisdiction to overturn a reversal of their own administrative decision.

¶ 8 The Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2010)) sets forth the basic rules. " 'Administrative decision' or 'decision' means any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency." 735 ILCS 5/3-101 (West 2010). "Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of 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 ***." 735 ILCS 5/3-103 (West 2010). "[T]he right to review a final administrative decision is limited to parties of record to the proceeding before the administrative agency whose rights, privileges, or duties are affected by the decision." Winston v. Zoning Board of Appeals of Peoria County, 407 Ill. 588, 593 (1950). The administrative rules governing unemployment benefit hearings define "parties" only as employers and employees, and not the Director, the Board, or IDES itself. 56 Ill. Adm. Code 2720.1 (2011).

¶ 9 In Speck, our supreme court reviewed an appeal from an administrative decision by the Chicago zoning board of appeals approving the issuance of a special use permit. The parties objecting to the issuance of the special use permit sought administrative review in the circuit court of Cook County. The circuit court reversed the zoning board, and the zoning board itself appealed to the appellate court. Speck, 89 Ill.2d at 484. The appellate court found that the zoning board had standing to challenge a reversal of its own decision, vacated the zoning board's order, and remanded the cause to the zoning board for further proceedings. Id. at 484-85. Our supreme court granted the objectors' petition for leave to appeal, and determined that the dispositive question was: "Does the Board have standing to appeal a reversal of its own decision?" Id. at 485.

¶ 10 Our supreme court began by discussing the powers and responsibilities of the zoning board, as forth in the Chicago zoning ordinance. Id. The court concluded that the ordinance clearly indicated that the zoning board is intended to function in an adjudicatory or quasi-judicial capacity and found it "noteworthy that nowhere in the ordinance is the Board authorized, expressly or implicitly, to assume the role of advocate for the purpose of prosecuting an appeal." Id. The court could not infer that the zoning board had that authority because " '[a]n administrative agency *** has no greater powers than those conferred upon it by the legislative enactment creating it.' " Id. (quoting Village of Lombard v. Pollution Control Board, 66 Ill.2d 503, 506 (1977)).

¶ 11 Because of the zoning board's limited authority, the Speck court held that it was not a party "whose rights, privileges, or duties [were] affected by the decision." (Internal quotation marks omitted.) Id. at 486. The court acknowledged that the zoning board, like all administrative agencies, must be joined as a nominal party defendant when its decisions are appealed on administrative review. See Environmental Protection Agency v. Pollution Control Board, 69 Ill.2d 394, 398 (1977) (stating that the Illinois Pollution Control Board and Industrial Commission were tribunals and thus only nominal parties in administrative review cases). As a nominal party, ...

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