State v. Mikusch

• Decision Date: 04 October 1990
• Docket Number: No. 68775,68775
• Citation: 562 N.E.2d 168,138 Ill.2d 242,149 Ill.Dec. 704
• Parties: , 149 Ill.Dec. 704, 59 Fair Empl.Prac.Cas. (BNA) 424, 55 Empl. Prac. Dec. P 40,511 The STATE of Illinois, Secretary of State, Appellee, v. Edward MIKUSCH et al., Appellants.
• Court: Illinois Supreme Court

Page 168

562 N.E.2d 168

138 Ill.2d 242, 149 Ill.Dec. 704,

59 Fair Empl.Prac.Cas. (BNA) 424,

55 Empl. Prac. Dec. P 40,511

The STATE of Illinois, Secretary of State, Appellee, v. Edward MIKUSCH et al., Appellants.

No. 68775.

Supreme Court of Illinois.

Oct. 4, 1990.

Richard F. McPartlin, Chicago, Wayne Klocke, Long, Rabin & Young, Ltd., Springfield, for appellants Edward Mikusch et al.

Neil F. Hartigan, Atty. Gen., Springfield (Robert J. Ruiz, Sol. Gen., William H. London, Asst. Atty. Gen., Chicago, of counsel), for appellant Human Rights Commission.

Steven Nardulli, and Daniel Maher, Stratton, Dobbs, Nardulli & Lestikow, Springfield, for appellee Secretary of State.

Justice WARD delivered the opinion of the court:

The defendants-appellants, Edward Mikusch and George Bender, Secretary of State investigators who were mandatorily retired at age 60, six other investigators whose mandatory retirement was stayed by agreement and the Human Rights Commission, appeal from a holding of the appellate court that investigators of the Secretary of State who had reached the age of 60 were subject to mandatory retirement from service under section 2-115 of the Illinois Vehicle Code (Ill.Rev.Stat.1981, ch. 95 1/2, par. 2-115). The court stated that the involved provision of section 2-115 was not violative of, but stood as an exception to, the age discrimination provisions of the Illinois Human Rights Act.

Section 2-115 of the Vehicle Code (Ill.Rev.Stat.1981, ch. 95 1/2, par. 2-115) was amended on June 20, 1979, to provide, "No person may be retained in service as an investigator under this section after he has reached 60 years of age." The Human Rights Act (Ill.Rev.Stat.1981, ch. 68, par. 1-101 et seq.), enacted on November 8, 1979, prohibits discrimination in employment because of age.

Under section 2-115, the Secretary of State notified certain of his investigators that each would be retired on his upcoming sixtieth birthday. The notice cited section 2-115 and stated:

"According to our records, you will be 60 years of age on [date] thus requiring your mandatory retirement effective as of the cease of business that date."

The Secretary of State sought administrative review of the Human Rights Commission's decision that the Secretary of State had violated the Human Rights Act by discriminating against the Secretary of State investigators on the basis of age. Upon notification of their mandatory retirement, the investigators had filed a complaint with the Department of Human Rights.

Under the Human Rights Act it is illegal, subject to certain exceptions, for an employer to act against an employee with "unlawful discrimination." (Ill.Rev.Stat.1981, ch. 68, par. 2-102(A).) Unlawful discrimination includes discrimination against a person because of his or her age. (Ill.Rev.Stat.1981, ch. 68, par. 1-103(Q).) Age is specifically defined to mean "the chronological age of a person who is 40 but not yet 70 years old." (Ill.Rev.Stat.1981, ch. 68, par. 1-103(A).) The defendants contend too that even if the appellate court was correct in concluding that the mandatory retirement of investigators of the Secretary of State pursuant to section 2-115 was consistent with the Human Rights Act, the section cannot stand because it is in violation of the Federal Age Discrimination in Employment Act (29 U.S.C. § 621 et seq. (1988)).

The Human Rights Commission held that the mandatory retirement provision of section 2-115 of the Vehicle Code was in irreconcilable conflict with the age discrimination prohibition of the Human Rights Act. The circuit court of Sangamon County, after initially reversing the Commission's decision, affirmed it. The Secretary of State appealed to the appellate court, which reversed the circuit court, holding that section 2-115 of the Vehicle Code was not so antagonistic to pertinent provisions of the Human Rights Act that both statutes could not be operative (181 Ill.App.3d 431, 130 Ill.Dec. 26, 536 N.E.2d 1237 (1989)). We granted the defendants' petition for leave to appeal under our Rule 315 (107 Ill.2d R. 315).

The basic question is whether the Secretary of State could, pursuant to the mandatory retirement provision in section 2-115 of the Vehicle Code, retire Secretary of State investigators upon their reaching 60 years of age without violating the age discrimination provisions of the Human Rights Act.

In order to regard the apparently conflicting provisions of section 2-115 and the Human Rights Act as capable of being harmonized, we will consider, as the appellate court did, whether the legislature intended that the mandatory retirement provisions of the Vehicle Code be considered an exception to the Human Rights Act's general prohibition against forced retirement prior to 70 years of age. The language of neither the Human Rights Act nor the Vehicle Code is directed to this question and we must consider general rules of statutory construction.

The fundamental rule of statutory construction, of course, is to give effect to the intent of the legislature. (People v. Parker (1988), 123 Ill.2d 204, 209, 121 Ill.Dec. 941, 526 N.E.2d 135.) In seeking to ascertain legislative intent, courts consider the statutes in their entirety, noting the subject they address and the legislature's apparent objective in enacting them. (Gill v. Miller (1983), 94 Ill.2d 52, 56, 67 Ill.Dec. 850, 445 N.E.2d 330.) It is presumed that the legislature, in enacting various statutes, acts rationally and with full knowledge of all previous enactments. (Pliakos v. Illinois Liquor Control Comm'n (1957), 11 Ill.2d 456, 143 N.E.2d 47.) It is further presumed that the legislature will not enact a law which completely contradicts a prior statute without an express repeal of it and that statutes which relate to the same subject are to be governed by one spirit and a single policy. (People v. Maya (1985), 105 Ill.2d 281, 286, 85 Ill.Dec. 482, 473 N.E.2d 1287; S. Buchsbaum & Co. v. Gordon (1945), 389 Ill. 493, 59 N.E.2d 832; People ex rel. Martin v. Village of Oak Park (1939), 372 Ill. 488, 24 N.E.2d 571.) As this court observed in People ex rel. Adamowski v. Metropolitan Sanitary District (1958), 14 Ill.2d 271, 283, 150 N.E.2d 361, it is not unusual for two or more bills to be passed at the same session of the legislature which pertain to the same subject. For the later enactment to operate as a repeal by implication of the earlier one, therefore, there must be such manifest and total repugnance that the two cannot stand together. A construction, if possible, of the two statutes which allows both to stand will be favored. See also People ex rel. Young v. Chicago & North Western Ry. Co. (1960), 20 Ill.2d 462, 467, 170 N.E.2d 614.

The legislature suggested what its intent should be considered to be when these situations appear by enacting the Statute on Statutes (Ill.Rev.Stat.1989, ch. 1, par. 1105):

"Two or more Acts which relate to the same subject matter and which are enacted by the same General Assembly shall be construed together in such a manner as to give full effect to each Act except in case of an irreconcilable conflict."

The Secretary argued and the appellate court judged that the mandatory retirement provision of section 2-115 of the Vehicle Code was not in irreconcilable conflict with the Human Rights Act on the ground that section 2-115 could be harmonized with the Human Rights Act by reading section 2-115 as an exception to the Human Rights Act. We consider this to be error. Reading section 2-115 as an exception to the Human Rights Act (prior to its 1987 amendment) is not consistent with the plain language of the Act or with the actions taken by the legislature. Section 2-115 and the Human Rights Act are directly in conflict.

The general provisions of the Human Rights Act make it clear that discrimination based on age is prohibited. The introductory section of the Act declares that the State's public policy is to "secure for all individuals within Illinois the freedom from discrimination because of * * * age * * * in connection with employment." (Ill.Rev.Stat.1981, ch. 68, par. 1-102(A).) This court has considered the intent of the legislature regarding the Human Rights Act as it applies to mandatory retirement. In Board of Trustees of Community College District No. 508 v. Human Rights Comm'n (1981), 88 Ill.2d 22, 29, 57 Ill.Dec. 844, 429 N.E.2d 1207, it was held that retirement was sufficiently connected to employment to include it within the broad range of discriminatory practices prohibited by the Act and, thus, that the Human Rights Act prohibits involuntary retirement based on age. The Human Rights Act bars the compelled retirement of all employees prior to 70 years of age except those exempted under the Act.

The Human Rights Act, in section 2-104, does provide employers with certain exceptions for conduct which would otherwise violate the Act. For example, under section 2-104(A), an employer can justify an employee's mandatory retirement prior to becoming 70 years of age if the decision is based on a bona fide occupational qualification. (Ill.Rev.Stat.1981, ch. 68, par. 2-104(A).) Section 2-104, however, does not include among its listed exceptions one permitting mandatory retirement of Secretary of State investigators at age 60. The plaintiff, nevertheless, argues that although not explicitly included in section 2-104 as an exception under the Human Rights Act, the legislature intended that section 2-115 operate as an exception to the Act. We do not agree.

It is established in statutory construction that the expression of certain exceptions in a statute will be construed as an exclusion of all others. (Weast Construction Co. v. Industrial Comm'n (1984), 102 Ill.2d 337, 340, 80 Ill.Dec. 763, 466 N.E.2d 215; People ex rel. Difanis v. Barr (1980), 83 Ill.2d 191, 199, 46 Ill.Dec. 678, 414 N.E.2d 731; Roth v. Department of Public Health (1982), 109 Ill.App.3d 457, 460, 65 Ill.Dec. 55, 440 N.E.2d 910.) Here, the...