Rasky v. Anderson, 77-1932

• Citation: 62 Ill.App.3d 633,379 N.E.2d 1,19 Ill.Dec. 486
• Decision Date: 26 May 1978
• Docket Number: No. 77-1932,77-1932
• Parties: , 19 Ill.Dec. 486 Benjamin A. RASKY, Plaintiff-Appellant, v. Joan G. ANDERSON, as Director of the Department of Registration and Education, and the Department of Registration and Education of the State of Illinois, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1

379 N.E.2d 1 62 Ill.App.3d 633, 19 Ill.Dec. 486 Benjamin A. RASKY, Plaintiff-Appellant,
v.
Joan G. ANDERSON, as Director of the Department of
Registration and Education, and the Department of
Registration and Education of the State
of Illinois, Defendants-Appellees. No. 77-1932. Appellate Court of Illinois, First District, Fifth Division. May 26, 1978.
Supplemental Opinion On Denial of Rehearing July 28, 1978.

[62 Ill.App.3d 634] Benjamin A. Rasky, pro se.

William J. Scott, Atty. Gen. of Ill., Chicago (Gail Moreland, Asst. Public Defender, Chicago, of counsel), for defendants-appellees.

MEJDA, Justice.

Plaintiff, Benjamin A. Rasky, filed suit against defendants, the Department of Registration and Education (Department) and its director, Joan Anderson, seeking a declaratory judgment and injunctive relief. The trial court granted defendants' motion to dismiss plaintiff's suit "because the Court finds that the present action is premature and that plaintiff has failed to exhaust his administrative remedies." Plaintiff on appeal argues that the trial court erred, since the law is that one may attack the constitutionality of a statute on its face without prior resort to related administrative remedies. See People ex rel. Kreda v. Fitzgerald (1975), 33 Ill.App.3d 209, 338 N.E.2d 76; Hill v. Daley (1975), 28 Ill.App.3d 202, 328 N.E.2d 142.

We dismiss the appeal. The pertinent facts follow.

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[19 Ill.Dec. 487] On or about January 25, 1977, plaintiff received notice and a complaint stating that the Department would seek the suspension or revocation of his real estate broker's license. The complaint charged that plaintiff owned and operated several buildings which violated the Municipal Code of Chicago, and that in allowing certain conditions (I. e. roach infestation, debris and dirt in the hallways, lack of hot water) to persist plaintiff had violated sections 15(e)11 and 21 of the Real Estate Brokers and Salesmen License Act (Ill.Rev.Stat.1975, ch. 1141/2, pars. 115(e)11 and 21), ¹ as well as rule XI of the rules promulgated by the Department [62 Ill.App.3d 635] pursuant to said Act. A hearing was set for February 22, 1977; however, the matter was continued until June 14, 1977.

On June 14, 1977, defendant filed the instant action in the circuit court seeking a declaratory judgment that certain pertinent provisions of the Act, ² as well as the Department's rule XI, were unconstitutional and requesting that the court stay any proceedings by the...