People ex rel. Petersen v. Turner Co., No. 75--37

CourtUnited States Appellate Court of Illinois
Writing for the CourtSEIDENFELD; GUILD, P.J., and HALLETT
Citation37 Ill.App.3d 450,346 N.E.2d 102
Docket NumberNo. 75--37
Decision Date15 April 1976
Parties, 16 Fair Empl.Prac.Cas. (BNA) 1479, 11 Empl. Prac. Dec. P 10,949 The PEOPLE of the State of Illinois ex rel. Eleanor P. PETERSEN, Chairperson, Illinois Fair Employment Practices Commission, Petitioner, v. TURNER COMPANY, Respondent.

Page 102

346 N.E.2d 102
37 Ill.App.3d 450, 16 Fair Empl.Prac.Cas. (BNA) 1479,
11 Empl. Prac. Dec. P 10,949
The PEOPLE of the State of Illinois ex rel. Eleanor P.
PETERSEN, Chairperson, Illinois Fair Employment
Practices Commission, Petitioner,
v.
TURNER COMPANY, Respondent.
No. 75--37.
Appellate Court of Illinois, Second District, First Division.
April 15, 1976.

Page 104

[37 Ill.App.3d 451] William J. Scott, Atty. Gen., Jerome Webb, Asst. Atty. Gen., Chicago, for petitioner.

Castle, burns, O'Mally & Countryman, John Countryman, DeKalb, Wm. Dickinson, Stamford, Conn., for respondent.

[37 Ill.App.3d 452] SEIDENFELD, Justice.

Petitioner, the chairperson of the Illinois Fair Employment Practices Commission, (hereinafter FEPC) appeals from the order of the trial court which denied its motion to strike affirmative defenses of the respondent, Turner Company, (hereinafter Turner) and from the order which thereafter denied petitioner's motion to reconsider and vacate that order. We granted leave to appeal pursuant to Supreme Court Rule 308 (Ill.Rev.Stat.1973, ch. 110A, par. 308).

The trial court found that (1) Turner, although it was the losing party in a proceeding before the Fair Employment Practices Commission and had not pursued judicial review pursuant to Section 10 of the Fair Employment Practices Act (Ill.Rev.Stat.1973, ch. 48, par. 860) and Sections 2, 11, and 12 of the Administrative Review Act (Ill.Rev.Stat.1973, ch. 110, pars. 265, 274, 275), could plead affirmative defenses in reply to an enforcement proceeding brought under Section 11 (par. 861) of the

Page 105

Fair Employment Practices Act; 1 and (2) the affirmative defenses disclosed by the pleadings were proper.

The FEPC contends that judicial review of the Commission's decisions is provided for under par. 860 and constitutes the sole method of challenging the substance of any final order and decision of the FEPC. Therefore, the petitioner argues that the trial court erred in refusing to strike respondent's defenses which allegedly involve only challenges to the merits of the agency's decision. Turner claims that par. 861 of the Act delineates an alternative method of obtaining judicial review.

In October, 1972, Betty Elliott and Kathy Bennett, employees of Turner, filed charges with the FEPC against the employer, alleging that its medical benefits program was sexually discriminatory. The FEPC on December 12, 1973, issued a final order and decision which found discrimination and ordered respondent to take certain steps regarding its medical benefits program to avoid sexual discrimination. Turner intentionally did not comply and so informed the FEPC. Thereafter, on February 8, 1974, the FEPC filed a petition for judicial enforcement pursuant to par. 861 of the FEPA. Turner Company filed an answer which set forth four affirmative defenses which may be summarized as follows: (1) that in the enforcement proceedings it is entitled to contest the validity of the FEPC's order even though it knowingly allowed the time period for filing a complaint under the ARA to lapse; (2) that the Commission's conclusion that pregnancy is a temporary physical disability which must be treated like any other such disability is without evidentiary support and without foundation in law; (3) that the Commission's conclusion that [37 Ill.App.3d 453] respondent's failure to treat pregnancy as any other temporary physical disability under its accident and sickness insurance policy constitutes unlawful discrimination is erroneous as a matter of law; and (4) that the Commission's guidelines which require employers to treat pregnancy like any other temporary disability for the purpose of paying insurance benefits, by creating a unwarranted irrebuttable presumption that pregnancy of itself is a temporary disability, deprives respondent of due process of law, constitutes an unwarranted intrusion upon the employer-employee relationship and is beyond the Commission's legal authority.

The court refused to strike these defenses on petitioner's motion and certified the questions of law to this court.

We must first resolve the question of whether the proceedings under the Administrative Review Act constitute the sole method of challenging the substance of a final order and decision of the FEPC, as the petitioner contends; or whether the legislature has provided an alternative means of obtaining judicial review of the legal findings and conclusions of the Commission by providing for enforcement proceedings to be brought in the Circuit Court under par. 861, as Turner contends. Resolution of this issue, which is acknowledged to be one of first impression in Illinois, involves essentially the reconciliation of two sections of the FEPA, pars. 860 and 861.

Par. 860 provides:

'Review under Administrative Review Act. Any complainant or respondent may apply for and obtain judicial review of an order of the Commission entered under this Act in accordance with the provisions of the 'Administrative Review Act,' approved May 8, 1945, as heretofore or hereafter amended; and the Commission in proceedings under this Section may obtain an order of Court for the enforcement of its order.'

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Par. 861 provides:

'Judicial enforcement. Whenever the Commission concludes that any person has violated a valid order of the Commission issued pursuant to Sections 8, 8.01 and 8.02 of this Act, and the violation and its effects are not promptly corrected, the Commission shall commence an action in the name of the People of the State of Illinois by petition, alleging the violation, attaching a copy of the order of the Commission and praying for the issuance of an order directing such person, his or her or its officers, agents, servants, successors and assigns to comply with the order of the Commission. Upon the commencement of such action the Court shall have jurisdiction of the proceedings and power to grant or refuse, in whole or in part, the relief sought or such other remedy as the Court may deem proper, provided that the Court may stay [37 Ill.App.3d 454] an order of the Commission in accordance with paragraph (1)(a), Section 12 of the 'Administrative Review Act,' pending disposition of the proceedings. The Court may punish for any violation of its order as in case of civil contempt. * * *'

The FEPC asserts that the provisions of the Administrative Review Act (Ill.Rev.Stat.1973, ch. 110, pars. 264--279) are adopted by express reference in par. 860 of the Fair Employment Practices Act. Therefore, the agency contends, the use of other methods of obtaining judicial review of the agency's decisions is precluded by par. 265 of the Administrative Review Act, which provides that when the Administrative Review Act is applicable, 'any other statutory, equitable or common law mode of review of decisions of administrative agencies heretofore available shall not be employed * * *.' In support of its contention that par. 861 of the Fair Employment Practices Act was not intended to provide an alternate method of review, the agency notes that the stated purpose of the FEPA (Ill.Rev.Stat.1973, ch. 48, par. 851) is to protect equal employment opportunity and that the adoption of the ARA as the method of judicial review evidences a legislative intent to encourage prompt resolution of employment practice disputes since the ARA requires action to be filed within 35 days of the disputed order. (See Ill.Rev.Stat.1973, ch. 110, par. 267). The agency also argues that its construction of pars. 860 and 861 supports the stated legislative policy of protecting the interests of both employers and employees when an unfair employment practice is charged (See Ill.Rev.Stat.1973, ch. 48, par. 851) because the ARA places the burden of review on the losing party before the administrative agency. If par. 861 of the FEPA is interpreted to provide an alternative method of review when the agency moves in the circuit court to enforce its order, the FEPC contends that this legislative scheme would thereby be thwarted. It argues that upholding the alternate method of challenging the agency orders would result in encouraging a losing respondent not to file for administrative review since no rights would be lost through inaction. The respondent could therefore refuse to comply and then wait to defend when the agency reached the enforcement stage. It concludes that the powers given to the circuit court in an enforcement proceeding brought under par. 861 were intended to permit the court to respond to proper jurisdictional challenges, to prevent proceedings under par. 860 and par. 861 from going forward simultaneously before different judges in the same court, and to make minor nonsubstantive changes in the agency's orders when necessary.

Turner argues that the legislature may provide alternate methods of review of administrative agencies' decisions. It notes that the legislature in par. 860 provided only that the complainant or respondent 'may' apply [37 Ill.App.3d 455] for judicial review under the Administrative Review Act. It contrasts this language with 'shall apply' language used in other acts and argues that this distinguishes the case before us from Peo. ex

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rel. Chi. & N.W. Ry. v. Hulman, 31 Ill.2d 166, 201 N.E.2d 103 (1964) and Goldfarb v. White, 54 Ill.App.2d 483, 203 N.E.2d 599 (1964). It also points out the absence of language similar to that used in the Environmental Protection Act (Ill.Rev.Stat.1973, ch. 111 1/2, par. 1041), which also contains both judicial review and general court enforcement provisions but specifically states that no challenge to the validity of a board order can be made in any enforcement proceedings as to any issue that could have been raised in a timely review under the Administrative Review Act.

Turner also contends that the language of par. 861 clearly indicates the right to raise substantive defenses to the enforcement proceedings. It argues that the legislature would not have...

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12 practice notes
  • Montgomery Ward Life Ins. Co. v. State, Dept. of Local Government Affairs, No. 79-1612
    • United States
    • United States Appellate Court of Illinois
    • September 26, 1980
    ...of its authority is subject to judicial review concerning its propriety. People ex rel. Petersen v. Turner Co. (2d Dist. 1976), 37 Ill.App.3d 450, 462, 346 N.E.2d 102, 112; Brown v. Sexner (1980), 85 Ill.App.3d 139, 152, 39 Ill.Dec. 947, 957, 405 N.E.2d 1082, Section 19.4 of the Revenue Act......
  • Board of Ed. of Hawthorne School Dist. No. 17, Marengo v. Eckmann, No. 81-860
    • United States
    • Illinois Appellate Court
    • February 19, 1982
    ...methods of direct review or collateral attack are not permitted. (People ex rel. Petersen v. Turner Co. [103 Ill.App.3d 1130] (1976), 37 Ill.App.3d 450, 456, 346 N.E.2d 102.) However, when a party is attacking a statute or an administrative rule on its face, he need not exhaust administrati......
  • Newkirk v. Bigard, No. 60754
    • United States
    • Supreme Court of Illinois
    • September 20, 1985
    ...(Pocahontas Mining Co. v. Industrial Com. (1922), 301 Ill. 462, 474, 134 N.E. 160; People ex rel. Petersen v. Turner Co. (1976), 37 Ill.App.3d 450, 461 n. 3, 346 N.E.2d 102; Beam v. Erven (1971), 133 Ill.App.2d 193, 196, 272 N.E.2d 685. See Chicago v. Fair Employment Practices Com. (1976), ......
  • Brown v. Sexner, No. 79-1153
    • United States
    • United States Appellate Court of Illinois
    • May 5, 1980
    ...authority, subject to judicial review as to the proper exercise of such authority. People ex rel. Petersen v. Turner Co. (1976), 37 Ill.App.3d 450, 346 N.E.2d In our opinion, the Board's rules differentiating between suspension not to exceed 30 days (Rule 1) and suspension pending discharge......
  • Request a trial to view additional results
12 cases
  • Montgomery Ward Life Ins. Co. v. State, Dept. of Local Government Affairs, No. 79-1612
    • United States
    • United States Appellate Court of Illinois
    • September 26, 1980
    ...of its authority is subject to judicial review concerning its propriety. People ex rel. Petersen v. Turner Co. (2d Dist. 1976), 37 Ill.App.3d 450, 462, 346 N.E.2d 102, 112; Brown v. Sexner (1980), 85 Ill.App.3d 139, 152, 39 Ill.Dec. 947, 957, 405 N.E.2d 1082, Section 19.4 of the Revenue Act......
  • Board of Ed. of Hawthorne School Dist. No. 17, Marengo v. Eckmann, No. 81-860
    • United States
    • Illinois Appellate Court
    • February 19, 1982
    ...methods of direct review or collateral attack are not permitted. (People ex rel. Petersen v. Turner Co. [103 Ill.App.3d 1130] (1976), 37 Ill.App.3d 450, 456, 346 N.E.2d 102.) However, when a party is attacking a statute or an administrative rule on its face, he need not exhaust administrati......
  • Newkirk v. Bigard, No. 60754
    • United States
    • Supreme Court of Illinois
    • September 20, 1985
    ...(Pocahontas Mining Co. v. Industrial Com. (1922), 301 Ill. 462, 474, 134 N.E. 160; People ex rel. Petersen v. Turner Co. (1976), 37 Ill.App.3d 450, 461 n. 3, 346 N.E.2d 102; Beam v. Erven (1971), 133 Ill.App.2d 193, 196, 272 N.E.2d 685. See Chicago v. Fair Employment Practices Com. (1976), ......
  • Brown v. Sexner, No. 79-1153
    • United States
    • United States Appellate Court of Illinois
    • May 5, 1980
    ...authority, subject to judicial review as to the proper exercise of such authority. People ex rel. Petersen v. Turner Co. (1976), 37 Ill.App.3d 450, 346 N.E.2d In our opinion, the Board's rules differentiating between suspension not to exceed 30 days (Rule 1) and suspension pending discharge......
  • Request a trial to view additional results

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