Marozas v. Board of Fire and Police Com'rs of City of Burbank, 1-90-2050

• Decision Date: 04 December 1991
• Docket Number: No. 1-90-2050,1-90-2050
• Citation: 584 N.E.2d 402,165 Ill.Dec. 223,222 Ill.App.3d 781
• Parties: , 165 Ill.Dec. 223 John MAROZAS, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF BURBANK, Illinois, Edward J. Skrypek, Commissioner, Dan M. Foy, Commissioner, Larry R. Fischer, Commissioner, and City of Burbank, Illinois, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 402

584 N.E.2d 402 222 Ill.App.3d 781, 165 Ill.Dec. 223 John MAROZAS, Plaintiff-Appellant,
v.
BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF
BURBANK, Illinois, Edward J. Skrypek, Commissioner, Dan M.
Foy, Commissioner, Larry R. Fischer, Commissioner, and City
of Burbank, Illinois, Defendants-Appellees. No. 1-90-2050. Appellate Court of Illinois,
First District, Third Division. Dec. 4, 1991.

Page 403

[222 Ill.App.3d 782] [165 Ill.Dec. 224] Frank J. Hucek and Ann M. Hucek, Berwyn, for plaintiff-appellant.

[222 Ill.App.3d 783] Louis F. Cainkar, Ltd., Chicago (Michael G. Cainkar, of counsel), for defendants-appellees.

Presiding Justice CERDA delivered the opinion of the court:

At issue in this appeal is the trial court's dismissal of Counts I and II of plaintiff's complaint, and the denying of plaintiff's three motions to amend his complaint. On appeal, plaintiff, John Marozas, asserts that (1) the trial court erred in dismissing Count I of his complaint, which did not name the chief of police as a party defendant; (2) the trial court erred in dismissing Count II of his complaint, which sought declaratory relief to void the board's proceedings, raised constitutional issues, and sought other relief; (3) the trial court erred in denying his three motions seeking to add a count for attorney fees under the city's indemnity ordinance, to amend by naming the chief of police as a party defendant, and to consolidate with Case No. 84 L 50289; (4) he was deprived of his property rights without procedural due process; and (5) he is entitled to back pay, lost benefits, and damages.

In October 1982, the city of Burbank hired plaintiff as a police officer. In December 1983, the Burbank chief of police recommended to the city police commission that plaintiff be terminated. On December 28, 1983, plaintiff was given a letter signed by the members of the police commission, terminating his employment, effective immediately. Prior to that notice, plaintiff received no other notice; there were no charges filed against him; no investigation was conducted; and no hearing was held.

On February 1, 1984, plaintiff filed a complaint for administrative review and other relief. In Case No. 84 L 50289, plaintiff challenged his summary discharge without notice and hearing. The complaint asked for administrative review and a declaratory judgment voiding the discharge and reinstating plaintiff with back pay. The central issue was whether plaintiff had completed his probationary period so that he was not subject to summary discharge.

The trial court found that the probationary period was 90 days, that plaintiff had completed his probationary period, and that plaintiff was not subject to summary discharge. On March 15, 1985, the trial court ordered that the board conduct a hearing on the discharge within 30 days. If such a hearing was not conducted within 30 days or the decision was not appealed, the court directed, plaintiff was to be reinstated. The issue of back pay was reserved by the trial court. Remanding the matter to the board for a full hearing, the trial court's [222 Ill.App.3d 784] opinion stated that plaintiff was not entitled to automatic reinstatement.

Defendants appealed the trial court decision. On April 29, 1986, the appellate court affirmed, holding that the probationary period was 90 days, and remanding the case back to the board. Even though the trial court did not order reinstatement or backpay, the appellate court stated, those issues were not reviewed since they were not raised in the appeal.

Page 404

[165 Ill.Dec. 225] On June 8, 1986, plaintiff's attorney received a copy of a notice from the board's attorney advising of a June 17, 1986, hearing regarding charges filed against plaintiff. Plaintiff filed various motions for reinstatement and dismissal of the charges, but all were denied. A hearing was set for August 26, 1986, and began on September 9, 1986. At that time, plaintiff renewed his motions to dismiss and for reinstatement. He also filed written motions to object to the board's jurisdiction and authority, and to dismiss the charges on grounds of laches. All the motions were denied by the board. At the hearing, which took place over a period of three days, various witnesses gave testimony. On December 11, 1986, after the close of the hearing, the board found plaintiff guilty of eight charges and not guilty of eight charges, ordering a 48-day suspension instead of discharge. Plaintiff was reinstated to active duty on December 31, 1986.

Subsequently, plaintiff filed a complaint. Count I sought administrative review of the findings, decision, and sentence of the board, and Count II sought a declaratory judgment to void the proceedings and charges, and to order plaintiff's reinstatement. Count II also alleged deprivation of unspecified constitutional rights.

The trial court granted defendants motions to dismiss Counts I and II. Following Lockett v. Chicago Police Board (1990), 133 Ill.2d 349, 140 Ill.Dec. 394, 549 N.E.2d 1266, the trial court dismissed Count I because the city's chief of police was not named as a party defendant. Count II was dismissed because the Administrative Review Act (Ill.Rev.Stat.1985, ch. 110, par. 3-101 et seq.) was the sole remedy available to plaintiff. The trial court then denied plaintiff's motions to add a count for attorney fees and costs under the city's indemnity ordinance, to amend by naming the chief of police as a party defendant, and to consolidate with Case No. 84 L 50289.

Contrary to plaintiff's assertions on appeal, this case and Lockett are factually similar. The Illinois Supreme Court in Lockett affirmed the trial court's dismissal for lack of jurisdiction because the superintendent of police, who filed the charges, was not named as a party defendant and served summons within 35 days of the agency's decision. [222 Ill.App.3d 785] (133 Ill.2d at 354-56, 140 Ill.Dec. 394, 549 N.E.2d 1266.) In Lockett, a police officer sought judicial review of a police board decision terminating his employment. The superintendent of police, who filed the initial disciplinary charges, was not named as a party defendant in the administrative review action. The board filed a motion to dismiss the complaint, alleging that the superintendent was a necessary party to the administrative review action and that the failure to name him in the complaint was a fatal defect. In his response, the plaintiff argued that notice to the board was notice to the superintendent since he was an agent of the board. In the alternative, the plaintiff sought to amend his complaint and join the superintendent as a defendant. Lockett, 133 Ill.2d at 351-52, 140 Ill.Dec. 394, 549 N.E.2d 1266.

Dismissing the complaint without granting leave to amend, the Lockett trial court ruled that it did not have jurisdiction because the failure to name the superintendent as a party defendant was a fatal defect. (133 Ill.2d at 352, 140 Ill.Dec. 394, 549 N.E.2d 1266.) The appellate court reversed, holding that the superintendent was not a necessary party since the board's decision was being reviewed, not the decision of the person filing the charges, whose interest was the same as the board's. Lockett v. Chicago Police Board (1988), 176 Ill.App.3d 792, 794, 126 Ill.Dec. 210, 531 N.E.2d 837.

The Illinois Supreme Court, however, reversed the appellate court, ruling that the trial court properly dismissed the administrative review claim for lack of jurisdiction. The supreme court also explicitly overruled the appellate court cases that had earlier ruled a failure to name and issue summons against necessary parties within the 35-day time limit could be cured by subsequent amendment. Lockett, 133 Ill.2d at 356, 140 Ill.Dec. 394, 549 N.E.2d 1266.

Page 405

[165 Ill.Dec. 226] In reaching its decision, the supreme court stated that the appellate court ignored the clear and...