Cesario v. Board

• Decision Date: 22 September 2006
• Docket Number: No. 1-04-3882.,1-04-3882.
• Citation: 305 Ill.Dec. 695,856 N.E.2d 500,368 Ill. App.3d 70
• Parties: David CESARIO, Petitioner-Appellee, v. BOARD OF FIRE, POLICE AND PUBLIC SAFETY COMMISSIONERS OF the TOWN OF CICERO, Wayne Johnson as Chief of Police, and the Town of Cicero, Illinois, Respondents-Appellants.
• Court: United States Appellate Court of Illinois

856 N.E.2d 500

368 Ill. App.3d 70

305 Ill.Dec. 695

David CESARIO, Petitioner-Appellee, v. BOARD OF FIRE, POLICE AND PUBLIC SAFETY COMMISSIONERS OF the TOWN OF CICERO, Wayne Johnson as Chief of Police, and the Town of Cicero, Illinois, Respondents-Appellants.

No. 1-04-3882.

Appellate Court of Illinois, First District, Sixth Division.

September 22, 2006.

Paul M. Levy, Brian D. Saucier, Deutsch, Levy & Engel, Chartered, Chicago, for Appellant Board of Fire, Police and Public Safety Commissioners of the Town of Cicero.

Louis F. Cainkar, Ltd., Chicago, for Appellant Town of Cicero.

homas J. Pleines, Law Offices of Thomas J. Pleines, Chicago, for Appellee.

Justice McNULTY delivered the opinion of the court:

The Town of Cicero (Town) charged officer David Cesario with misconduct. The Town voluntarily dismissed the charges and later refiled the dismissed charges. The Board of Fire, Police and Public Safety Commissioners (Board) began the evidentiary hearing about nine months after the Town moved for leave to refile the charges. Following the evidentiary hearing the Board terminated Cesario's employment. On administrative review, the trial court vacated the Board's order, holding that the Board lost jurisdiction before the evidentiary hearing began. Because the record on appeal does not show when the Board permitted the refiling of the charges, or the cause for the delay between the refiling and the hearing, we cannot infer that the Board retained jurisdiction over the case. Accordingly, we affirm the trial court's decision vacating the Board's order.

BACKGROUND

On February 8, 1998, several Cicero police officers, including Cesario, chased and arrested Javier Leal. A doctor who treated Leal following the arrest found several lacerations to Leal's scalp, a chipped tooth, a fractured nose and other indications that Leal had suffered a beating. Investigators from the internal affairs division of Cicero's police department interviewed Cesario and other officers about the arrest.

In April 1998 the Town of Cicero filed a complaint against Cesario with the Town's Board of Fire, Police and Public Safety Commissioners, charging Cesario with using excessive force when arresting Leal. The Town also accused Cesario of lying to investigators from internal affairs.

The Board promptly began proceedings on the charges. Cesario requested several continuances and agreed to several further continuances the Town requested. At a hearing on May 5, 1998, the parties discussed the status of discovery. Cesario's attorney agreed to set June 8, 1998, as the date to determine whether the parties had completed discovery. The Town's attorney raised "the nettlesome issue of the thirty-day rule." Cesario's attorney answered:

"We made a motion for continuance.

* * *

* * * There is no problem with the thirty-day rule. We will waive it and see you on the 8th for status hearing. We will set a hearing date that night."

Later that year Cesario sought pension benefits for disability. The Board, with the agreement of both parties, held no proceedings on the charges against Cesario pending a decision on his petition for disability benefits.

Cesario eventually won the disability benefits. In November 1999 the Town moved to recommence the proceedings against Cesario for use of excessive force and for lying to investigators. The Town's attorney, in summarizing prior proceedings, told the Board:

"There were charges filed * * *. The case was voluntarily dismissed. It was dismissed, by agreement, without prejudice."

The Board granted Cesario's new attorney two weeks to respond to the motion to recommence the proceedings.

The trial court and the parties refer to the motion as one to reinstate the charges. We find that this is a misnomer. Following a voluntary dismissal, the plaintiff has 30 days in which to move to vacate the dismissal. Hawes v. Luhr Brothers, Inc., 212 Ill.2d at 93, 105-06, 287 Ill.Dec. 583, 816 N.E.2d 345 (2004). Once the 30-day period has elapsed, the court has no power to reinstate the cause of action, unless the court granted the plaintiff, at the time of the voluntary dismissal, leave to move to set aside the dismissal. Layfield v. Village of University Park, 267 Ill.App.3d 347, 349, 204 Ill.Dec. 628, 641 N.E.2d 1247 (1994); Weisguth v. Supreme Tribe of Ben Hur, 272 Ill. 541, 543, 112 N.E. 350 (1916); but see Hawes, 212 Ill.2d at 104-07, 287 Ill.Dec. 583, 816 N.E.2d 345 (Weisguth rule partially superceded by statute). Absent such leave to set aside the dismissal, the plaintiff must begin the action anew by filing a new complaint or by refiling the original complaint. Layfield, 267 Ill. App.3d at 349, 204 Ill.Dec. 628, 641 N.E.2d 1247; Weisguth, 272 Ill. at 543, 112 N.E. 350. The record here shows no reservation of a right to set aside the dismissal, and we see no indication that the Town sought to set aside the voluntary dismissal. In effect the Town sought leave to begin a new action by refiling the charges against Cesario. We will refer to the Town's motion as one for leave to refile the charges. When the parties in the transcript discuss the motion for reinstatement, we will treat that as a reference to the motion for leave to refile the charges.

The Board heard evidence related to the charges on August 29, 2000, and October 10, 2000. In the final order dated September 9, 2003, the Board assessed the credibility of the witnesses and concluded that the evidence substantiated the charges. Accordingly, the Board terminated Cesario's employment as a Cicero police officer.

Cesario petitioned for administrative review of the Board's order. The Board filed the record of the evidentiary hearing in response to the petition. Cesario moved to compel the Board to file a complete record of all pretrial proceedings. The court granted the motion. The Board filed transcripts of all proceedings in 1998 leading up to the voluntary dismissal, and transcripts of proceedings held in November and December 1999. The Board produced no record concerning any proceedings in 2000 prior to the beginning of the evidentiary hearing on August 29, 2000. In the transcript of the August hearing, the parties refer to earlier proceedings in 2000. The Board produced no transcript from those proceedings.

The Board supplemented the record with the affidavit of the attorney who represented Cesario at the evidentiary hearing. The attorney swore:

"I did not file any motions or pleadings regarding the reinstatement of the charges. The charges were previously dismissed without prejudice and by agreement of the parties."

The trial court held:

"At the December 6, 1999 hearing, the matter of reinstatement was taken under consideration with ruling on the motion to be made in writing. Much of the record has been lost and while it is clear that at some point the motion to reinstate was granted, there is no record of this. There is no indication anywhere in the record of the date when the motion to reinstate was granted.

* * *

* * * There is no presumption of jurisdiction of an administrative review board. [Citation.] The facts upon which jurisdiction is founded must be contained in the administrative record. [Citation.]

* * *

In the instant case, there is no information in the Record as to when the charges against Plaintiff were reinstated. Therefore, it is impossible to determine whether a hearing on the reinstated charges was commenced within thirty days. Nor can this court assume that any delay in the commencement of the hearing on the reinstated charges was by agreement of Plaintiff as there is nothing in the Record which indicates this.

* * * [T]he order of dismissal is void for lack of jurisdiction."

The Board now appeals.

ANALYSIS

We review the Board's decision, not the trial court's judgment. Sangirardi v. Village of Stickney, 342 Ill.App.3d 1, 10, 276 Ill.Dec. 28, 793 N.E.2d 787 (2003). We defer to the Board's findings of fact, but we review de novo issues of law. Sangirardi, 342 Ill.App.3d at 10, 276 Ill.Dec. 28, 793 N.E.2d 787.

The Illinois Municipal Code provides:

"Except as hereinafter provided, no officer or member of the fire or police department of any municipality * * * shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. * * * The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time." 65 ILCS 5/10-2.1-17 (West 1998).

Failure to comply with the statutory time limit for beginning the hearing divests the Board of jurisdiction over the case. Kvidera v. Board of Fire & Police Commissioners of Village of Schiller Park, 192 Ill.App.3d 950, 956, 140 Ill.Dec. 96, 549 N.E.2d 747 (1989).

"However, where the delay in commencing the hearing within the 30-day period is not attributable to the Board, but rather to the plaintiff, the statute is not violated. [Citations.]

* * * [R]egardless of the exact cause, the relevant inquiry is whether the delay was the result of the plaintiff's behavior or, in the alternative, whether it was attributable to the Board." Kvidera, 192 Ill.App.3d at 956-57, 140 Ill.Dec. 96, 549 N.E.2d 747.

The Board claims that it retained jurisdiction because Cesario agreed to several continuances in 1998, and on May 5, 1998, Cesario's attorney expressly waived the 30-day rule. However, the waiver and the 1998 continuances preceded the voluntary dismissal of the charges. When the Town refiled the charges, it began a new action against Cesario. See Neuman v. Burstein, 230 Ill.App.3d 33, 36, 172 Ill.Dec. 298, 595 N.E.2d 659 (1992); Moran v. Ortho Pharmaceutical Corp., 907 F.Supp. 1228, 1229 (N.D.Ill.1995); 735 ILCS 5/13-217 (West 1998). We cannot construe the waiver of the 30-day rule at one stage in the initial proceedings as a waiver of that rule for any proceedings in the new action the Town commenced by...