Worthen v. Village of Roxana

• Decision Date: 23 November 1993
• Docket Number: No. 5-91-0807,5-91-0807
• Citation: 623 N.E.2d 1058,191 Ill.Dec. 468,253 Ill.App.3d 378
• Parties: , 191 Ill.Dec. 468 Richard WORTHEN, Clarence Bohm, Harry Parker, George Arnold, Charles Criswell, Thomas Gibson, City of Edwardsville, City of Troy, Village of Maryville, Village of Glen Carbon, Save All Farmland and Environmental Resources, and Madison County Conservation Alliance, Petitioners-Appellants, v. VILLAGE OF ROXANA, Laidlaw Waste Systems (Madison), Inc., and The Pollution Control Board, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 1058

623 N.E.2d 1058

253 Ill.App.3d 378, 191 Ill.Dec. 468

Richard WORTHEN, Clarence Bohm, Harry Parker, George Arnold Charles Criswell, Thomas Gibson, City of Edwardsville, City of Troy, Village of Maryville, Village of Glen Carbon, Save All Farmland and Environmental Resources, and Madison County Conservation Alliance, Petitioners-Appellants, v. VILLAGE OF ROXANA, Laidlaw Waste Systems (Madison), Inc. and The Pollution Control Board, Respondents-Appellees.

No. 5-91-0807.

Appellate Court of Illinois Fifth District.

Nov. 23, 1993.

George J. Moran, Sr., Callahan & Moran, P.C., Trenton, for petitioners-appellants.

Brian Konzen, Lueders, Robertson & Konzen, Granite City, for Laidlaw Waste Systems (Madison), Inc.

Roland W. Burris, Atty. Gen., Rosalyn B. Kaplan, Sol. Gen., Chicago (Mark E. Wilson, Asst. Atty. Gen., of counsel), for The Illinois Pollution Control Bd.

Merle C. Bassett, Bassett Law Offices, P.C., Wood River, for Village of Roxana--no brief filed.

Justice WILLIAM A. LEWIS delivered the opinion of the court:

This case is on appeal from a decision of the Illinois Pollution Control Board (PCB) affirming the decision of the Village of Roxana Board of Trustees (Village) which granted site approval to Laidlaw Waste Systems (Madison), Inc. (Laidlaw), for expansion of its Cahokia Road landfill. Petitioners appeal to this court pursuant to the provisions of section 41(a) of the Illinois Environmental Protection Act (Act). (Ill.Rev.Stat.1991, ch. 111 1/2, par. 1041(a) (now 415 ILCS 5/41(a) (West 1992)).) The issues which we consider in this appeal are: (1) whether this court lacks jurisdiction because the petitioners failed to name the PCB as a party in its original petition for review to this court; (2) whether petitioners have exhausted their administrative remedies; and (3) whether the evidence presented below supports the PCB's order approving the expansion of the landfill. For the reasons stated, we affirm the order of the PCB.

The PCB issued its order affirming the Village's grant of approval to Laidlaw to expand the Cahokia Road landfill on October 10, 1991. On November 14, 1991, petitioners filed their petition for review of the PCB order, naming only the Village and Laidlaw as respondents. However, petitioners served the PCB with a copy of the petition for review at the same time as they served the Village and Laidlaw. The PCB does not dispute the fact that it was served with the petition for review and, therefore, had actual notice of this appeal. On December 16, 1991, Laidlaw filed a motion to dismiss the appeal for failure to name the PCB as a party in the petition for review, and on the same date, petitioners filed a motion for leave to amend its petition for review. Petitioner's motion to amend was granted by this court on March 25, 1992. Even though petitioners have been granted leave to amend, we now consider the merits of the argument that failure to name the PCB as a party is a fatal defect depriving this court of all jurisdiction to consider this appeal.

We first note that appellate review of administrative decisions, including decisions of the PCB, is an exercise of special statutory jurisdiction, and as such, jurisdiction is strictly limited to the language of the statutes conferring jurisdiction. (Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill.2d 202, 93 Ill.Dec. 360, 486 N.E.2d 893.) Unless the parties strictly and completely follow the statutory procedures for initially bringing the case before the court's jurisdiction, the court is without any jurisdiction to decide the case. Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill.2d 202, 93 Ill.Dec. 360, 486 N.E.2d 893.

As stated, the Act permits judicial review of PCB decisions via section 41(a), which requires that the petitioner file a petition for review within 35 days after entry of the order or other final action complained of. (Ill.Rev.Stat.1991, ch. 111 1/2, par. 1041(a) (now 415 ILCS 5/41(a) (West 1992)).) Under section 41(a), therefore, petitioners completed the first jurisdictional step by filing their petition for review on November 14, 1991, which was within 35 days after the PCB decision was issued.

Nevertheless, Supreme Court Rule 335 sets up additional requirements to be met before the appellate court is vested with jurisdiction to review an order of the PCB.

"The petition for review shall be filed in the Appellate Court and shall specify the parties seeking review and shall designate the respondent and the order or part thereof to be reviewed. The agency and all other parties of record shall be named respondents." (134 Ill.2d R. 335.)

Thus, under the clear and unambiguous words of Rule 335, the agency, in this case the PCB, must be named as a respondent in the petition for review. However, the exact parameters of what is required under Rule 335 is the subject of a growing body of case law.

The PCB argues that the ruling in Lockett v. Chicago Police Board (1990), 133 Ill.2d 349, 140 Ill.Dec. 394, 549 N.E.2d 1266, requires us to find that this court is without jurisdiction to decide the instant appeal. We disagree. While several appellate cases have held that Lockett imposes a jurisdictional requirement that all necessary parties must be named in the petition for review within the applicable statutory period (Marozas v. Board of Fire & Police Commissioners (1991), 222 Ill.App.3d 781, 165 Ill.Dec. 223, 584 N.E.2d 402; Spicer, Inc. v. Regional Board of School Trustees (1991), 212 Ill.App.3d 16, 156 Ill.Dec. 202, 570 N.E.2d 678; Strang v. Department of Transportation (1990), 206 Ill.App.3d 368, 151 Ill.Dec. 284, 564 N.E.2d 261), to our knowledge, no case has decided the specific question presented by this appeal. The question we must decide herein is whether the failure to name a necessary party in the caption of the petition for review is a fatal defect where the unnamed party is properly served with a copy of the petition for review and petitioner, without delay, requests leave to amend the petition for review to add the unnamed party to the caption.

Although the supreme court has not yet ruled on the specific issue under consideration herein, we believe that Lockett and its progeny provide a framework that supports our decision. Lockett established that failure to name and serve a necessary party in a judicial review of an administrative decision is a fatal defect that cannot be cured by amendment absent a showing that the petitioner made a timely and good faith effort to both name and serve all parties of record in the administrative proceeding but had failed in that effort due to some problem not within the petitioner's control. (Lockett v. Chicago Police Board (1990), 133 Ill.2d 349, 140 Ill.Dec. 394, 549 N.E.2d 1266.) The ruling in Lockett was based upon section 3-107 of the Administrative Review Law (Ill.Rev.Stat.1991, ch. 110, par. 3-107 (now 735 ILCS 5/3-107 (West 1992))), which does not apply to cases such as this decided under Rule 335. (County of Cook, Cermak Health Services v. Illinois State Local Labor Relations Board (1991), 144 Ill.2d 326, 162 Ill.Dec. 52, 579 N.E.2d 866.) Nevertheless, we feel that the express words of Rule 335 requiring that "[t]he agency and all other parties of record shall be named respondents" and that the "petitioner shall serve the petition for review on the agency and on all other parties of record to the proceeding before the agency" are sufficiently similar to section 3-107 of the Administrative Review Law that the same rationale applies to naming and serving parties under Rule 335. 134 Ill.2d R. 335(a), (b); Ill.Rev.Stat.1991, ch. 110, par. 3-107 (now 735 ILCS 5/3-107 (West 1992)).

Based upon the facts presented in this appeal, and only these facts, we hold that because petitioners timely filed their petition for review and timely served the PCB with a copy of the petition for review, petitioners have demonstrated a sufficient good faith effort to comply with the rules, as required by our supreme court. (Lockett v. Chicago Police Board (1990), 133 Ill.2d 349, 140 Ill.Dec. 394, 549 N.E.2d 1266.) Courts, as a general rule, should not find hypertechnical excuses to avoid deciding the merits of disputes, when no delay or harm was caused by the technical violation to any party. This especially should be the case where an administrative agency, which is only marginally involved in an appeal and which is not harmed, delayed, or impacted by the technical violation, is seeking dismissal of the appeal. We, therefore, do not find that what appears to be a clerical error in failing to add the PCB's name to the caption of the petition for review, where the PCB was timely served with a copy of the petition for review and where there was a timely motion to add the PCB to the caption of the petition, is a defect that justifies this court finding that it is without jurisdiction.

The next issue is whether petitioners have exhausted their administrative remedies, since they did not request the PCB to reconsider its ruling of October 10, 1991, but filed their petition for review on November 14, 1991, instead. Although the PCB forcefully argues that petitioners have not exhausted their administrative remedies, recent appellate decisions hold otherwise on the same issue.

In the third district case of Strube v. Pollution Control Board (1993), 242 Ill.App.3d 822, 182 Ill.Dec. 848, 610 N.E.2d 717, as in the present case, the PCB alleged that the petitioners' failure to request a rehearing constituted a failure to exhaust administrative remedies and cited the Illinois Supreme Court case of Castaneda v. Illinois Human Rights Comm'n (1989), 132 Ill.2d 304, 138 Ill.Dec. 270, 547 N.E.2d 437, as authority for the contention. The court in Strube reasoned that the Illinois Human Rights Commission procedure that applied in Castaneda is distinguishable from procedures applicable to the Pollution Control Board. Under the Human Rights...