Hardee's Food Systems, Inc. v. Illinois Human Rights Com'n

• Decision Date: 29 April 1987
• Docket Number: No. 5-86-0202,5-86-0202
• Parties: , 107 Ill.Dec. 931 HARDEE'S FOOD SYSTEMS, INC., Petitioner-Appellant, v. ILLINOIS HUMAN RIGHTS COMMISSION and Mark D. Bradford, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 1300

507 N.E.2d 1300

155 Ill.App.3d 173, 107 Ill.Dec. 931

HARDEE'S FOOD SYSTEMS, INC., Petitioner-Appellant, v. ILLINOIS HUMAN RIGHTS COMMISSION and Mark D. Bradford Respondents-Appellees.

No. 5-86-0202.

Appellate Court of Illinois Fifth District.

April 29, 1987.

Lewis & Rice, John J. Gazzoli, Jr., Curtis C. Calloway, St. Louis, for petitioner-appellant.

Carr, Korein, Kunin, Schlichter, Montroy & Brennan by G. Richard Jones, East St. Louis, for Mark D. Bradford.

Thomas P. Marnell, Asst. Atty. Gen. (Adopted Brief of Mark D. Bradford), Chicago, for Illinois Human Rights Comm.

Justice JONES delivered the opinion of the court:

This is a proceeding for judicial review of an order of the Illinois Human Rights Commission (Commission) pursuant to section 8-111(A)(3) of the Illinois Human Rights Act (Act) (Ill.Rev.Stat.1985, ch. 68, par. 8-111(A)(3)), brought by Hardee's Food Systems, Inc. (Hardee's). However, we find that we are without authority to proceed with the review because the jurisdiction of this court to review the order of the Commission was not properly invoked.

On June 15, 1983, Mark Bradford filed a charge of race discrimination with the Illinois Department of Human Rights (Department). The charge asserted that Bradford had been discharged from his job at Hardee's because of his race. The Department filed a complaint with the Commission on April 10, 1984, asserting that Hardee's had discriminated against Bradford because of his race. A hearing was held before an Administrative Law Judge on October 3, 1984, and on June 27, 1985, the judge issued her recommended order and decision, finding that with respect to Bradford's discharge he had been discriminated against because of his race. Hardee's filed exceptions to the decision and findings, and the Commission conducted a review hearing. On December 16, 1985, the Commission issued its order affirming the Administrative Law Judge. It is this latter order that is the subject of these proceedings.

On January 17, 1986, Hardee's filed its "Complaint-Judicial Review of Administrative Decision" in the circuit court of Clinton County, Illinois, the county wherein the Hardee's restaurant involved in this case was located. On March 4, 1986, the Commission filed a motion to dismiss for lack of jurisdiction, the assertion being based upon the fact that the petition for judicial review should have been filed in the appellate court. The motion to dismiss was denied by the circuit court with the following record sheet order:

"3-20-86 Motion for leave to file motion to dismiss is granted. Motion to Dismiss is argued. Timeliness is confessed by dft. Motion to Dismiss for lack of jurisdiction even to transfer is denied. Plaintiff's motion to transfer to the Appellate Court is sustained."

The record from the circuit court of Clinton County was filed in this court on April 3, 1986.

It is our duty to determine whether our jurisdiction for direct judicial review of an administrative order has been properly invoked even though the matter has not been raised by the parties. In re Marriage of Lawrence (1986), 146 Ill.App.3d 307, 99 Ill.Dec. 845, 496 N.E.2d 538; Trizzino v. Kline Bros. Co. (1982), 106 Ill.App.3d 230, 62 Ill.Dec. 160, 435 N.E.2d 958.

The pertinent facts are as follows: The Commission's final decision was handed down on December 16, 1985. Under the version of the Human Rights Act in effect at that time, proceedings brought on administrative review were to "be commenced in the circuit court in and for the county wherein the civil rights violation which is the subject of the Commission's order was committed." (Ill.Rev.Stat.1983, ch. 68, par. 8-111(C).) Under subparagraph (A)(1) of former section 8-111, a complaint for administrative review was to be brought in accordance with the provisions of the Administrative Review Law. Under section 3-103 of the Administrative Review Law (Ill.Rev.Stat.1983, ch. 110, par. 3-103), administrative review was commenced by the filing of a complaint and the issuance of summons by a party within 35 days after service of a copy of the final agency decision from which the appeal is taken. Thus, under the law in existence at the time of entry of the December 16, 1985, final decision of the Commission, the time within which to file a complaint for administrative review in the circuit court and issue summons extended to and included January 20, 1986.

On January 1, 1986, P.A. 84-717 came into effect and amended section 8-111 to provide for direct administrative review to the appellate court thereby bypassing the circuit court. Subparagraph 8-111(A)(3) provides in pertinent part:

"Proceedings for judicial review shall be commenced in the appellate court for the district wherein the civil rights violation which is the subject of the Commission's order was committed."

Subparagraph (A)(1) of the statute as amended provides that the time for seeking administrative review is governed by the provisions of the Administrative Review Law. This court in City of Benton Police Department v. Human Rights Commission (1986), 147 Ill.App.3d 7, 100 Ill.Dec. 698, 497 N.E.2d 876, held that the 35-day appeal period under section 3-103 of the Administrative Review Law is applicable to petitions filed in the appellate court pursuant to Supreme Court Rule 335 for direct administrative review of final decisions of the Commission.

Hardee's elected to proceed under former section 8-111 and filed its complaint for administrative review in the circuit court of Clinton County on January 17, 1986. Summons also issued on that date. On March 4, 1986, the Commission filed a motion to dismiss for lack of subject matter jurisdiction. On March 12, 1986, Hardee's filed a motion for transfer of venue to the appellate court. Thereafter, on March 20, 1986, the motion to transfer was granted with the record sheet order we have noted. To date, no petition for review pursuant to Supreme Court Rule 335 has been filed with this court.

A preliminary issue concerns whether amended section 8-111 is prospective or retrospective in application. If it is prospective only, then the trial court improperly transferred venue to this court and the appeal should be dismissed and the cause remanded to the trial court for further proceedings. On the other hand, if amended section 8-111 may be applied retroactively to this pending litigation, then the complaint for administrative review was indeed filed in the wrong court and this court would be required to consider the resulting jurisdictional consequences of that act.

Generally, and in the absence of an express provision to the contrary, statutory enactments or amendments are given prospective effect. (Village of Wilsonville v. SCA Services, Inc. (1981), 86 Ill.2d 1, 55 Ill.Dec. 499, 426 N.E.2d 824.) An exception applies, however, to statutes and amendments enacted in the areas of procedures and remedies. (Songer v. State Farm Fire & Casualty Co. (1980), 91 Ill.App.3d 248, 46 Ill.Dec. 715, 414 N.E.2d 768, appeal after remand (1982), 106 Ill.App.3d 141, 62 Ill.Dec. 150, 435 N.E.2d 948.) In the absence of a savings clause, an amendatory act may be retroactively applied without regard to whether the right of action accrued prior to the change of law where the legislature expressly intended or where the amendment is procedural or remedial in scope. (Maiter v. Chicago Board of Education (1980), 82 Ill.2d 373, 47 Ill.Dec. 721, 415 N.E.2d 1034; Sostak v. Sostak (1983), 113 Ill.App.3d 954, 69 Ill.Dec. 658, 447 N.E.2d 1345.) Nevertheless, retroactive application of a procedural or remedial statutory amendment will not occur where to do so would impair a vested right. Boyd v. Madison Mutual Insurance Co. (1986), 146 Ill.App.3d 420, 99 Ill.Dec. 862, 496 N.E.2d 555 (affirmed (1987), 116 Ill.2d 305, 107 Ill.Dec. 702, 507 N.E.2d 855); Board of Managers of Dominion Plaza One Condominium Ass'n. v. Chase Manhattan Bank (1983), 116 Ill.App.3d 690, 72 Ill.Dec. 257, 452 N.E.2d 382; Maiter.

In the case sub judice, section 8-111 of the Human Rights Act was amended to permit direct administrative review in the appellate court. This change is merely procedural in scope affecting the court in which administrative review is to take place and does not impair or affect any rights and liabilities set forth under the Act. Moreover, the amendment contains no savings clause with respect to proceedings pending before the Commission at the time the amendment takes effect. Under the analysis discussed above, the amendment must be given retroactive effect, as no one has a vested right to any particular form of procedure. (Songer.) On the January 1, 1986, effective date, Hardee's still had 19 days within which to file its petition for review in the appellate court pursuant to section 8-111(A)(3) and Supreme Court Rule 335. Given the 35-day framework within which to perfect administrative review, 19 days provided it ample time to secure this court's jurisdiction. This retroactive application presents no due process obstacle. In Anderson v Wagner (1979), 79 Ill.2d 295, 37 Ill.Dec. 558, 402 N.E.2d 560, the supreme court retroactively applied an amendment to section 21.1 of the Limitations Act (Ill.Rev.Stat.1977, ch. 83, par. 22.1) limiting the repose period for medical malpractice actions from five years to four years. Even under the shortened period, the court held that plaintiffs had a reasonable period of time of 8 months within which to bring their claim. They failed to do so and the court held that the action was properly dismissed, even though the right of action accrued when the statute provided a five-year repose period and the action was timely with respect to that period. In Burgdorff v. Siqueira (1982), 109 Ill.App.3d 493, 65 Ill.Dec. 65, 440 N.E.2d 920, the court applied amended section 21.1 retroactively where plaintiffs had over nine months to file their medical malpractice action. Proportionally, 19 days in which to file a petition for...