Rodriguez v. Du Page County Sheriff's Comm'n.

Case Date: 04/12/2002
Court: 2nd District Appellate
Docket No: 2-00-1398 Rel

No. 2--00--1398


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


 

CARLOS RODRIGUEZ, ) Appeal from the Circuit Court
) of Du Page County.
          Plaintiff-Appellant, )
)
v. ) No. 00--MR--486
)
DU PAGE COUNTY SHERIFF'S MERIT )
COMMISSION and SHERIFF RICHARD )
DORIA, ) Honorable
) Edward R. Duncan,
          Defendants-Appellees. ) Judge, Presiding.
)
)

 


JUSTICE KAPALA delivered the opinion of the court:

Plaintiff, Carlos Rodriguez, timely appeals the circuitcourt's order dismissing with prejudice his complaint foradministrative review of the June 19, 1996, final order of the DuPage County Sheriff's Merit Commission (Commission). TheCommission's decision ordered the removal of plaintiff from hisposition as a deputy sheriff. Plaintiff's complaint foradministrative review, which named the Commission and SheriffRichard Doria (the sheriff) as defendants, was filed in the circuitcourt on June 8, 2000. The trial court granted defendants' motionto dismiss the complaint pursuant to sections 2--619(a)(1) and(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(1), (a)(5) (West 2000)) because the complaint for review wasuntimely. It was filed nearly four years after the date of theCommission's final order and well beyond the 35-day period forfiling such a complaint under the provisions of the AdministrativeReview Law (Review Law) (see 735 ILCS 5/3--102, 3--103 (West2000)). On appeal, plaintiff's central argument is that thecircuit court acquired jurisdiction to hear such an untimelycomplaint where he claims there was "newly discovered evidence"that would permit a circuit court to remand the cause to the agencyto take additional evidence pursuant to section 3--111(a)(7) of theReview Law (735 ILCS 5/3--111(a)(7) (West 2000)). He claims thisnewly discovered evidence is available because Michael Hener, ajail inmate who had testified at the administrative hearing beforethe Commission, has recanted his testimony.

Plaintiff argues that section 3--111(a)(7) of the Review Lawin effect provides for an extended or open-ended jurisdictionaltime limitation for an administrative review proceeding where thereis a claim of newly acquired evidence. He analogizes thisproceeding based on newly discovered evidence to one forpostconviction relief under the Post-Conviction Hearing Act (725ILCS 5/122--1 et seq. (West 2000)) (providing for the review ofconstitutional violations in criminal trials up to three years fromthe date of conviction under certain conditions), or to aproceeding for relief from a final judgment under section 2--1401of the Code (735 ILCS 5/2--1401 (West 2000)) (providing for relieffrom final judgments under certain conditions within two years ofthe date of judgment). We disagree with plaintiff, and we affirm.

We recite only those facts necessary to an understanding ofour disposition of this appeal. The record reveals that on January31, 1996, Sheriff Doria filed a disciplinary complaint with theCommission charging that plaintiff, a deputy sheriff, had violatedcertain policies and procedures of the sheriff's department when hearranged for a private meeting in December 1995 between fourinmates incarcerated within the county jail. At least three of theinmates were reputedly members of the Latin Kings street gang; theremaining inmate was Michael Hener. The gist of plaintiff'stestimony at the hearing was that plaintiff was trying to diffuse,or intervene in, a potentially violent situation where a gangmember, who was being sent to the jail from the Department ofCorrections, was to carry out a "hit" on one of the inmates. Henerwas one of several witnesses, and his testimony was apparentlyfavorable to the sheriff. The Commission determined that plaintiffhad violated the policies and procedures of the sheriff'sdepartment and, on June 19, 1996, ordered that plaintiff be removedfrom his position as a deputy sheriff.

Plaintiff did not seek direct review of that order within the35-day period for review. Instead, plaintiff filed his complaint,purportedly based on newly discovered evidence, on July 8, 2000,nearly four years later. Plaintiff provided the affidavit ofMichael Hener, which stated, in effect, that Hener was coerced byofficials of the sheriff's department and the special State'sAttorney into giving false testimony at the hearing. The affidavitrecited an apparently different version of the events surroundingthe jail incident and how Hener was induced to testify againstplaintiff.

On July 12, 2000, defendants filed a motion to dismissplaintiff's complaint for review, claiming that the trial court didnot have subject matter jurisdiction over the complaint because itwas not filed within the 35-day period for review, that the ReviewLaw was the exclusive method of review, and that, therefore,judicial review must be barred.

We note initially that we are not concerned here with themerits of plaintiff's claims regarding the Commission's findingsand order. Rather, we must decide whether the trial court waswithout jurisdiction to review plaintiff's claims where he neverfiled a timely complaint for review when he had the opportunity todo so.

The Review Law is the sole and exclusive method to obtainjudicial review of a final administrative decision. Midland HotelCorp. v. Director of Employment Security, 282 Ill. App. 3d 312, 316(1996); Mueller v. Board of Fire & Police Commissioners, 267 Ill.App. 3d 726, 731 (1994). The Review Law was enacted to eliminateconflicting and inadequate common-law and statutory remedies forthe judicial review of administrative decisions and to substitutea single, uniform, and comprehensive remedy. Mueller, 267 Ill.App. 3d at 733. It was also intended to make available to personsaggrieved by administrative decisions a judicial review consonantwith due process standards without unduly restricting the exerciseof administrative judgment and discretion essential to theeffective working of the administrative process. Mueller, 267 Ill.App. 3d at 733. However, a court reviewing an administrativedecision is limited to ascertaining whether the decision of theadministrative agency is against the manifest weight of theevidence and is also limited to a consideration of the evidencesubmitted in the administrative hearing; the court may not itselfhear additional evidence or conduct a hearing de novo. Acevedo v.Department of Employment Security, 324 Ill. App. 3d 768, 771, 773(2001).

Where, as here, the Review Law is applicable, any otherstatutory, equitable, or common-law mode of review that wasformerly available cannot be employed; furthermore, unless judicialreview is sought within the time and in the manner provided by theReview Law, the parties to the proceeding before the administrativeagency shall be barred from obtaining judicial review of theadministrative decision. 735 ILCS 5/3--102 (West 2000). Everyaction to review a final administrative decision shall be commencedby the filing of a complaint and the issuance of summons within 35days from the date that a copy of the decision sought to bereviewed was served upon the party affected by the decision. 735ILCS 5/3--103 (West 2000). The 35-day period for filing thecomplaint is jurisdictional. Brazas v. Property Tax Appeal Board,309 Ill. App. 3d 520, 526 (1999). Thus, it appears that the trialcourt never acquired jurisdiction of the cause unless plaintiff canpoint to some clearly established exception to the above rules oflaw. We believe plaintiff cannot do so.

Plaintiff argues that, under the Review Law, the circuit courthas the power to remand a cause to the administrative agency forthe limited purpose of taking additional evidence even when thetrial court has lost jurisdiction over the matter. He notes thatsection 3--111(a)(7) of the Review Law, which describes one of thepowers of the circuit court, states:

"(7) [W]here a hearing has been held by the agency, [thecircuit court has the power] to remand for the purpose oftaking additional evidence when from the state of the record*** it shall appear that such action is just. However, noremandment shall be made on the ground of newly discoveredevidence unless it appears to the satisfaction of the courtthat such evidence has in fact been discovered subsequent tothe termination of the proceedings before the administrativeagency and that it could not by the exercise of reasonablediligence have been obtained at such proceedings; and thatsuch evidence is material to the issues and is notcumulative[.]" 735 ILCS 5/3--111(a)(7) (West 2000).

A similar argument was rejected in a second appeal in Krain v.Department of Professional Regulation, 291 Ill. App. 3d 988 (1997)(Krain II). In Krain II, the plaintiff filed a second complaintseeking administrative review of the agency's decision (to suspendhis physician's license) more than three years after the finaladministrative decision was rendered. In the second appeal, whichwas brought by the agency, the appellate court first determinedthat the trial court was without jurisdiction to hear the casebecause the second complaint was filed outside the statutory 35-dayperiod. Relying on section 3--111(a)(7), the plaintiff argued, asplaintiff does here, that the circuit court had the power to remandthe cause for the taking of additional evidence. The appellatecourt concluded that section 3--111(a)(7) does not allow a circuitcourt to reassert its jurisdiction after a final disposition in anadministrative review case.

The Krain II court explained that, when a circuit courtconsiders a matter on administrative review, it sits as a court ofreview, giving deference to the findings of fact made by the agencyfrom which the appeal is taken. Like other courts of review, acircuit court must have the power to remand the cause during theproceedings if it determines that a remand is required by therecord presented. The Krain II court likened the provisions ofsection 3--111(a)(7) to the rule of appellate procedure thatempowers a reviewing court to remand a cause for furtherproceedings. The Krain II court rejected the plaintiff's argumentthat litigants could reinvoke the circuit court's jurisdictionmerely by alleging the existence of newly discovered evidence longafter the administrative proceeding had been concluded, becausedoing so would fatally undermine the finality of administrativedecisions and contravene the jurisdictional requirements of theReview Law such as section 3--103. Krain II, 291 Ill. App. 3d at990-91.

We agree with the decision in Krain II. The term "remand"implies that the case has been properly brought before thereviewing court before it can be sent back to the fact finder,agency, or inferior tribunal from which it came. The language ofsection 3--111(a)(7) does not imply or even suggest that acomplaint for administrative review can be initiated at any timeafter the conclusion of the administrative proceeding merely on thebasis of newly discovered evidence.

Plaintiff also argues that section 3--111(a)(7) allows for atype of collateral or equitable review by petition such as is foundin section 2--1401 of the Code. Under that section, a petition for relief from a final judgment may be filed after 30 days but within2 years of the entry of the judgment, if certain requirements aremet. The petition, which is directed against the judgment, must befiled in the same proceeding in which the order or judgment wasentered, but it is not a continuation thereof and is a collateralattack on that judgment. Krain v. Department of ProfessionalRegulation, 295 Ill. App. 3d 577, 579-80 (1998) (Krain III); see735 ILCS 5/2--1401(b) (West 2000). The petitioner must show by apreponderance of the evidence (1) a meritorious defense or claim inthe original action; (2) due diligence in pursuing the defense orclaim in the trial court; and (3) due diligence in presenting thepetition. Krain III, 295 Ill. App. 3d at 580.

Plaintiff's argument that this type of collateral review isavailable to review an administrative agency decision has also beenrejected by the reviewing court in Krain III, which involved anappeal by the same plaintiff physician as in Krain II. In KrainIII, the appellate court determined that section 2--1401 relief wasnot available to review an administrative decision that had becomefinal, because the Review Law was the exclusive method ofchallenging an agency decision and courts were expressly precludedfrom granting any other statutory, equitable, or common-law mode ofreview or collateral review. Krain III, 295 Ill. App. 3d at 580-81(effectively overruling Rizzo v. Board of Fire & PoliceCommissioners, 11 Ill. App. 3d 460 (1973)). This determination isin accord with the precedent of this court, which states that,where the Review Law provides the exclusive method of review,alternate methods of direct review or collateral attack are notpermitted. Weissinger v. Edgar, 180 Ill. App. 3d 806, 810 (1989). We again observe at this juncture that, in the present case, therewas never a final judicial judgment resulting from a direct reviewof the merits of the administrative decision because plaintiffnever filed a timely complaint for such a review. There was nojudicial judgment to vacate by means of a collateral attack.

Similarly inappropriate is plaintiff's analogy to a collateralattack on a final judgment in a criminal case as provided for bythe Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West2000)). Such a proceeding applies only to a criminal case wherethere is a claim of a constitutional violation at trial, and it hasunique and particular pleading requirements and time limitations. See 725 ILCS 5/122--1 et seq. (West 2000). Section 3--111(a)(7)does not provide an analogous remedial procedure. This section ofthe Review Law is silent regarding the provision of any collateralattack on an administrative decision and regarding any timelimitations, and we will not create such a procedure by reading itinto the Review Law.

Finally, plaintiff argues in conclusory fashion that "Sheriff's officials" coerced or threatened Hener and this resulted

in the fraudulent concealment of evidence. Therefore, plaintiffargues, the jurisdictional time limits for initiating a section 2-1401 proceeding or for seeking a direct review of theadministrative decision are inapplicable. Plaintiff has not citedany authority directly on point regarding the applicability of sucha rule to the circumstances here, where the plaintiff has failed toseek a direct judicial review of an agency's administrativedecision. Neither has plaintiff argued specifically, withsufficient supporting references to the record or to pertinentlegal authority, that the Commission's decision was void and thathe is therefore entitled to have that decision vacated and obtaina new administrative hearing. To the extent that plaintiff haspresented an inadequate argument regarding fraud or the concealmentof evidence, we do not consider it further. See Allegro Services,Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243,269 (1996) (inadequate argument results in waiver of issue).

We conclude that Krain II and Krain III are applicable to thiscase. We hold that section 3--111(a)(7) of the Review Law does notallow plaintiff to invoke the jurisdiction of the circuit court toseek an untimely review of the Commission's decision and remand thecause for the taking of additional evidence. Furthermore, aproceeding to collaterally attack the Commission's final decisionlong after it was rendered is not available to plaintiff under thefacts and circumstances presented.

The judgment of the circuit court of Du Page County isaffirmed.

Affirmed.

McLAREN and BYRNE, JJ., concur.