Van Milligen v. Dept. of Employment Sec.

• Decision Date: 22 May 2007
• Docket Number: No. 2-06-0098.,2-06-0098.
• Citation: 868 N.E.2d 1083
• Parties: Frank VAN MILLIGEN, Plaintiff-Appellant, v. The DEPARTMENT OF EMPLOYMENT SECURITY, Brenda Russell, as Director of the Department of Employment Security, Bond Drug Company of Illinois, and Walgreens Company, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

868 N.E.2d 1083

Frank VAN MILLIGEN, Plaintiff-Appellant, v. The DEPARTMENT OF EMPLOYMENT SECURITY, Brenda Russell, as Director of the Department of Employment Security, Bond Drug Company of Illinois, and Walgreens Company, Defendants-Appellees.

No. 2-06-0098.

Appellate Court of Illinois, Second District.

May 22, 2007.

Frank Van Milligen, Appellant pro se.

Lisa Madigan, Attorney General, Gary S. Feinerman, Solicitor General, Richard S. Huszagh, Assistant Attorney General, Chicago, for Brenda Russell, Director and State of Illinois Dept. of Employment Security.

Justice GILLERAN JOHNSON delivered the opinion of the court:

The plaintiff, Frank Van Milligen, appeals, pro se, the trial court's dismissal of his complaint seeking the review of a decision of the Board of Review (the Board) of the Illinois Department of Employment Security (IDES). The trial court dismissed the plaintiff's complaint because he did not name the Board as a defendant in the complaint as required by section 3-107(a) of the Administrative Review Law (the Review Law) (735 ILCS 5/3-107(a) (West 2004)). On appeal, the plaintiff argues that the trial court erred by not allowing him leave to amend his complaint to name the Board as a defendant. We affirm.

In February 2005, the plaintiff was terminated from his employment with Bond Drug Company of Illinois (Bond Drug) and Walgreens Co. (Walgreens) for violating their policy against harassment and discrimination. The plaintiff applied for unemployment benefits, but on June 22, 2005, the Board issued a final decision finding him ineligible to receive benefits, for misconduct under section 602(A) of the Unemployment Insurance Act (the Act) (820 ILCS 405/602(A) (West 2004)). Section 1100 of the Act (820 ILCS 405/1100 (West 2004)) expressly adopts the Review Law (735 ILCS 5/3-101 et seq. (West 2004)) as the sole means to review any final decision of the Board.

On July 27, 2005, 35 days after the Board's decision, the plaintiff filed a complaint for administrative review in which he named as defendants Bond Drug, Walgreens, the IDES, and Brenda Russell in her capacity as the Director of the IDES (the Director). The plaintiff did not name the Board as a defendant. Thereafter, the IDES and the Director moved to dismiss the plaintiff's action pursuant to section 2-619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619 (West 2004)), because his complaint did not name the Board as a defendant as required by section 3-107(a) of the Review Law. In response to the motion, the plaintiff argued that due process mandated application of equitable tolling principles, and he requested leave to amend his complaint to add the Board as a defendant. The trial court found these principles inapplicable and dismissed the plaintiff's complaint for lack of jurisdiction. The plaintiff filed a timely notice of appeal. On appeal, the plaintiff argues that he is entitled to amend his complaint pursuant to: (1) section 3-103 of the Review Law; (2) the "good faith" exception to the Review Law's requirements; (3) equitable tolling principles; (4) due process requirements; and (5) section 2-616(d) of the Code and Rule 15 of the Federal Rules of Civil Procedure (Fed.R.Civ.P. 15).

A motion to dismiss pursuant to section 2-619 of the Code admits the legal sufficiency of the plaintiff's complaint, but asserts an affirmative defense or other matter that avoids or defeats the plaintiff's claim. DeLuna v. Burciaga, 223 Ill.2d 49, 59, 306 Ill.Dec. 136, 857 N.E.2d 229 (2006). "Section 2-619 motions present a question of law, and we review rulings thereon de novo." DeLuna, 223 Ill.2d at 59, 306 Ill. Dec. 136, 857 N.E.2d 229.

"Under the Illinois Constitution, final judgments from the circuit courts are appealable as a `matter of right,' but final administrative decisions are appealable only `as provided by law.' Ill. Const.1970, art. VI, §§ 6, 9. Because review of a final administrative decision may only be obtained as provided by statute, a court is said to exercise `special statutory jurisdiction' when it reviews an administrative decision. [Citation.] Special statutory jurisdiction `is limited to the language of the act conferring it and the court has no powers from any other source.' Fredman Brothers Furniture Co. v. Department of Revenue, 109 Ill.2d 202, 210 [93 Ill.Dec. 360, 486 N.E.2d 893] (1985). A party seeking to invoke a court's special statutory jurisdiction must strictly comply with the procedures prescribed by statute." Collinsville Community Unit School District No. 10 v. Regional Board of School Trustees of St. Clair County, 218 Ill.2d 175, 181-82, 300 Ill.Dec. 15, 843 N.E.2d 273 (2006).

Circuit courts are granted jurisdiction to review decisions by the Board through section 1100 of the Act (820 ILCS 405/1100 (West 2004)). That statute specifies that decisions by the Board are reviewable "only under and in accordance with" the Review Law. 820 ILCS 405/1100 (West 2004); McGaw Medical Center of Northwestern University v. Department of Employment Security, 369 Ill. App.3d 37, 40, 307 Ill.Dec. 817, 860 N.E.2d 471 (2006). The Review Law is a departure from common law, and the procedures it establishes must be strictly followed. Lockett v. Chicago Police Board, 133 Ill.2d 349, 353, 140 Ill.Dec. 394, 549 N.E.2d 1266 (1990). As to the time and manner of proceeding, the Review Law states that an action to review a final administrative decision "shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision." 735 ILCS 5/3-103 (West 2004). The Review Law also specifies who must be made a defendant within the 35-day period: "the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency, shall be made defendants." 735 ILCS 5/3-107(a) (West 2004). "Noncompliance with the joinder provisions of the Review Law requires dismissal of the review proceeding." Collinsville, 218 Ill.2d at 183, 300 Ill.Dec. 15, 843 N.E.2d 273; see also Lockett, 133 Ill.2d at 354, 140 Ill.Dec. 394, 549 N.E.2d 1266 (the joinder requirements are mandatory and specific and admit of no modification). "Sections 3-103 and 3-107 have been interpreted by our supreme court to require dismissal of a cause of action for administrative review, without leave to amend, where a necessary party was not made a defendant within the 35-day limitation period." McGaw, 369 Ill.App.3d at 40, 307 Ill.Dec. 817, 860 N.E.2d 471; see Collinsville, 218 Ill.2d at 183, 300 Ill.Dec. 15, 843 N.E.2d 273; Lockett, 133 Ill.2d at 354-56, 140 Ill.Dec. 394, 549 N.E.2d 1266.

In the present case, the plaintiff does not dispute that the Board is a necessary party in this case or that he failed to join the Board within the 35-day time period. Rather, the plaintiff argues only that he should have been allowed to amend his complaint to name the Board as a defendant. The plaintiff first contends, relying on section 3-107(a) of the Review Law, that he should be allowed to amend his complaint because he properly named the Director as a defendant. Section 3-107(a) states, in relevant part, as follows:

"Naming the director or agency head, in his or her official capacity, shall be deemed to include as defendant the administrative agency, board, committee, or government entity that the named defendants direct or head. No action for administrative review shall be dismissed for lack of jurisdiction based upon the failure to name an administrative agency, board, committee, or government entity, where the director or agency head, in his or her official capacity, has been named as a defendant as provided in this Section." 735 ILCS 5/3-107(a) (West 2004).

The plaintiff argues that the Board is part of the IDES, that the Director is the head of the IDES, and that therefore the Director is the head of the Board. Therefore, pursuant to section 3-107(a), the plaintiff argues that naming the Director as a defendant was sufficient to join the Board under the Review Law. We disagree.

As stated, the plaintiff acknowledges that where a claimant seeks administrative review of the Board's denial of unemployment compensation, the Board is the "administrative agency" that must be joined as a defendant. Veazey v. Baker, 322 Ill. App.3d 599, 602-03, 255 Ill.Dec. 578, 749 N.E.2d 1060 (2001); Fedorev v. Doherty, 305 Ill.App.3d 355, 360, 238 Ill.Dec. 562, 711 N.E.2d 1223 (1999). The relevant inquiry then becomes whether the Director "directs or heads" the Board. The argument that the Director is the head of the Board has previously been rejected by this court in Fedorev, 305 Ill.App.3d at 360, 238 Ill.Dec. 562, 711 N.E.2d 1223, and by the Illinois Appellate Court, First District, in Veazey, 322 Ill.App.3d at 604-05, 255 Ill. Dec. 578, 749 N.E.2d 1060. In Fedorev, this court considered whether the Director "directs or heads" the Board as contemplated by section 3-107(a). Fedorev, 305 Ill.App.3d at 360, 238 Ill.Dec. 562, 711 N.E.2d 1223. In finding that the Director does neither, the court relied on section 44a of the Civil Administrative Code of Illinois (20 ILCS 1005/44a (West 1996)), which provides in relevant part that the Board "shall exercise all powers and be subject to all duties conferred or imposed upon [it] by the provisions of the Unemployment Compensation Act * * * without any direction, supervision, or control by the Director of Employment Security." (Emphasis added.) The Fedorev court determined that the plain language of this statute indicated that the Director did not direct the Board. Fedorev, 305 Ill.App.3d at 360, 238 Ill.Dec. 562, 711 N.E.2d 1223. The Fedorev court noted that this determination was supported by the fact that the Director's signature did not appear on the determination by the Board finding the plaintiff ineligible for unemployment insurance benefits. Fedor...