No. 2--96--0244
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
LYNNE A. SCHWARTZ, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
) No. 95--MR--698
v. )
)
THE DEPARTMENT OF EMPLOYMENT )
SECURITY; THE BOARD OF )
REVIEW OF THE DEPARTMENT OF )
EMPLOYMENT SECURITY; and THE )
DIRECTOR OF EMPLOYMENT SECURITY,) Honorable
) Bonnie M. Wheaton,
Defendants-Appellees. ) Judge, Presiding.
________________________________________________________________
JUSTICE BOWMAN delivered the opinion of the court:
Plaintiff, Lynne Schwartz, appeals the circuit court's order
dismissing her complaint for administrative review of the decision
of defendant, the Illinois Department of Employment Security
(IDES). Plaintiff contends that the court erred in determining
that her employer, Du Page Public Safety Communications (Du Page),
was a necessary party.
Plaintiff worked as an operations manager for Du Page for
approximately 11 years until Du Page terminated her on August 29,
1994. Plaintiff applied for unemployment benefits. Du Page
opposed her application on the ground that plaintiff had committed
intentional misconduct. The IDES referee agreed with Du Page and
denied benefits. The Board of Review affirmed the referee's
decision. The Board of Review's decision listed plaintiff as
claimant and Du Page as respondent. The Board of Review mailed
copies of its decision to plaintiff and Du Page.
Plaintiff filed a complaint for administrative review in the
circuit court, naming as defendants IDES, the Director of IDES, and
the Board of Review. Du Page was not named in the complaint or
served with a summons.
Defendants moved to dismiss the complaint for lack of subject
matter jurisdiction. They asserted that Du Page, as a party to the
proceeding before the Board of Review, had to be named as a
defendant and served with summons for the court to acquire
jurisdiction. The circuit court dismissed the action and plaintiff
filed a timely notice of appeal.
Plaintiff contends that she was not required to name Du Page
as a defendant in the administrative review complaint. Plaintiff's
argument is as follows. The Administrative Review Law (the Act)
requires that "all persons, other than the plaintiff, who were ***
parties of record" to the agency proceedings "shall be made
defendants." 735 ILCS 5/3--107(a) (West 1994). Because the Act
does not define "person," the word must be given its plain and
ordinary meaning. Plaintiff quotes a dictionary definition of
"person" as "a living human being." Because Du Page is not a
living human being, but is some unspecified type of business
entity, it did not have to be made a party to the administrative
review action.
The Unemployment Insurance Act provides that decisions of the
Board of Review must be reviewed pursuant to the Act. 820 ILCS
405/1100 (West 1994). Because the Act is a departure from the
common law, its procedures must be strictly followed to obtain
judicial review. Fredman Brothers Furniture Co. v. Department of
Revenue, 109 Ill. 2d 202, 210 (1985).
As noted, section 3--107 of the Act requires that all
"persons" who were parties of record to the administrative
proceedings be named as defendants and served with summons in an
administrative review action. 735 ILCS 5/3--107 (West 1994).
Courts have repeatedly held that the failure to comply with this
section mandates dismissal of the action. Lockett v. Chicago
Police Board, 133 Ill. 2d 349, 354 (1990); Board of Education of
Bethany Community Unit School District No. 301 v. Regional Board of
School Trustees of Clark, Coles, Cumberland, Edgar, Moultrie and
Shelby Counties, 255 Ill. App. 3d 763, 765-66 (1994).
When interpreting a statute, we are bound by the principles of
statutory construction. We agree with plaintiff that when a word
in a statute is not defined, it should be given its plain and
ordinary meaning. Collins v. Board of Trustees of the Firemen's
Annuity & Benefit Fund, 155 Ill. 2d 103, 111 (1993). Plaintiff
argues that the plain meaning of "person" is a living human being.
However, we note that another dictionary definition of "person" is
"one (as a human being, a partnership, or a corporation) that is
recognized by law as the subject of rights and duties." Webster's
Ninth New Collegiate Dictionary 877 (1990). Thus, applying the
dictionary definitions of "person" does not lead inexorably to the
conclusion that the legislature intended to exclude corporations
and partnerships from being named as parties to administrative
review actions.
Furthermore, another principle of statutory construction is
that a statute should be construed whenever possible to avoid
absurdity, inconvenience, or injustice. Collins, 155 Ill. 2d at
111. Plaintiff's proposed construction of section 3--107 would
certainly lead to absurd consequences: an individual employer
would be entitled to an opportunity to appear before the circuit
court and contest the employee's claim to benefits, but a corporate
or partnership employer would not. Such a construction is not only
absurd, but also would likely violate the due process and equal
protection rights of corporate and partnership employers. We
decline to adopt such a construction.
Although it appears that no Illinois court has considered this
specific issue, decisions in slightly different factual contexts
lend support to our conclusion. In Board of Education of Bethany
Community Unit School District No. 301 v. Regional Board of School
Trustees of Clark, Coles, Cumberland, Edgar, Moultrie and Shelby
Counties, 255 Ill. App. 3d 763 (1994), the court held that
plaintiff's administrative review complaint should have been
dismissed for failing to name the Sullivan School District as a
defendant. The court did not specifically consider the definition
of "person" in section 3--107. However, the court held that the
Sullivan School District should have been named a defendant.
Clearly, the Sullivan School District is not a living human being.
In McGaughy v. Illinois Human Rights Comm'n, 165 Ill. 2d 1
(1995), plaintiff Barnes filed a petition for administrative review
of the dismissal of her charge against her employer, Central
Illinois Light Company. The petition failed to name her employer
as a defendant. The supreme court held that this failure mandated
the dismissal of the review proceeding. McGaughy, 165 Ill. 2d at
12. We are aware that McGaughy was decided under Supreme Court
Rule 335(a), providing for direct review of administrative agency
orders in the appellate court. The rule requires that "all other
parties of record shall be named as respondents." 155 Ill. 2d R.
335(a). However, the supreme court stated that the joinder
requirements of section 3--107 and Rule 335(a) are "substantively
similar." The court went on to say:
"There is nothing in the plain language of the statute or
the rule that would justify the development of two divergent
procedural standards for the review of administrative
matters, and we do not believe that the meanings of these
similar requirements should vary, depending on whether the
destination of the case is the circuit court or the
appellate court." McGaughy, 165 Ill. 2d at 13.
McGaughy strongly intimates that the supreme court views
"persons *** who were *** parties of record" as used in section 3--
107 as the functional equivalent of "parties of record" as used in
Rule 335(a). Since "parties of record" would clearly include all
parties, regardless of their corporate form, the same should be
true of section 3--107 as well.
Plaintiff contends in her reply brief that it would be an
"injustice" to deprive her of her day in court because of "legal
technicalities." However, we are bound by those decisions which
have repeatedly held that the requirements of section 3--107 are
mandatory. Plaintiff does not cite any authority holding that an
equitable exception to section 3-107 may excuse strict compliance
with its requirements. See Shaw v. Department of Employment
Security, 243 Ill. App. 3d 844, 849 (1993) ("plaintiffs' assertions
of good faith cannot cure the jurisdictional defects").
The judgment of the circuit court of Du Page County is
affirmed.
Affirmed.
McLAREN, P.J. and THOMAS, J., concur.