dissenting:
The doctrine of exhaustion of administrative remedies is a rule which requires that a party aggrieved by administrative action ordinarily cannot seek judicial review in the courts without pursuing all administrative remedies available to him. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 357-58, 326 N.E.2d 737.) An exception to this general rule is that a party need not exhaust administrative remedies if the alleged constitutional infirmity is found in the terms of a statute. (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 552, 359 N.E.2d 113.) However, if the statute is valid on its face but is applied in a discriminatory or arbitrary manner, the challenging party must pursue administrative remedies before seeking judicial relief. (65 Ill. 2d 543, 552.) Also, in order to come within this exception, a plaintiff must point to language in the statute which, without more, reasonably can be said to violate a specific constitutional guarantee. Northwestern University v. City of Evanston (1978), 74 Ill. 2d 80, 87, 383 N.E.2d 964.
In the instant case, plaintiff’s complaint for declaratory judgment alleged that section 24 — 3.1(a)(5) (Ill. Rev. Stat. 1979, ch. 38, par. 24— 3.1(a)(5)) violated his rights both under the equal protection and due process clauses of the fifth and fourteenth amendments of the United States Constitution. An attack on equal protection grounds may be a facial attack and as such fall within the above exception. (See, e.g., Director of the Department of Agriculture v. Carroll Feed Service, Inc. (1980), 83 Ill. App. 3d 164, 403 N.E.2d 762.) Plaintiff has raised the argument that the statute unconstitutionally differentiates between police officers confined in a mental hospital within the past five years and other police officers who have been a patient in a mental hospital beyond the five-year period or who have been treated on an out-patient basis. Thus, there is a sufficient attack facially as to the constitutionality of the statute to warrant judicial review without requiring exhaustion of administrative remedies.
The substance of plaintiff’s due process argument is that the statute making it a criminal offense to possess a firearm if the person has been a patient in a mental hospital within the past five years does not provide for a discretionary administrative hearing to rebut the presumption of unfitness which the appellate court in Rawlings v. Department of Law Enforcement (1979), 73 Ill. App. 3d 267, 391 N.E.2d 758, held was present under sections of “An Act relating to acquisition, possession and transfer of firearms ***” (Ill. Rev. Stat. 1979, ch. 38, par. 83 — 1 et seq.) for persons making application for a firearm owner’s identification card. In my opinion, the challenge here brings into question the constitutionality of the statute beyond its application to the specific facts of this case but as applied to all law enforcement officers. There is no question of fact which requires the administrative agency’s expertise for determination, nor does the majority opinion indicate what factual question requires the administrative agency’s review. The issue presented is one of statutory interpretation.
The majority opinion relies on Eckells v. City Council (1960), 23 Ill. App. 2d 360, 163 N.E.2d 107, for the proposition that where charges are already pending against the plaintiff in an administrative disciplinary hearing one cannot proceed into court to challenge even facially the validity of a statute or ordinance. I think that the holding in Eckells has long since ceased to be the law. (See, e.g., Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 359 N.E.2d 113; City of Chicago v. Pollution Control Board (1975), 59 Ill. 2d 484, 322 N.E.2d 11; Board of Education v. Eckmann (1982), 103 Ill. App. 3d 1127, 432 N.E.2d 298.) Moreover, Coles-Moultrie Electric Cooperative v. City of Charleston (1972), 8 Ill. App. 3d 441, 289 N.E.2d 491, also relied upon by the majority is not pertinent authority on the issue raised here. In Coles-Moultrie, the appellate court found no abuse of discretion in the trial court’s dismissal of a complaint seeking a declaratory judgment where the issue sought to be decided was pending before the Hlinois Commerce Commission. The decision was not based upon exhaustion of administrative remedies doctrine, but upon the trial court’s exercise of discretion in declining to grant declaratory relief. For these reasons I would review the constitutional issues raised before this court by the plaintiff.