dissenting:
I dissent. Under the authority of Board of Education of Bethany Community Unit School District No. 301 v. Regional Board of School Trustees, 255 Ill. App. 3d 763 (1994) (Bethany), even an absent party who has a substantial interest and will be bound and affected by the judgment must be joined as a necessary party to the proceedings and served as a party of record under the Administrative Review Law. In my opinion, the majority misinterprets the holding of Bethany and ignores its true import.
Quite simply, Bethany, 255 Ill. App. 3d at 767, held that where a party who is entitled to notice of the administrative proceeding would be bound and necessarily affected by the judgment, it must be considered a party of record for purposes of section 3 — 107(a) of the Administrative Review Law (735 ILCS 5/3 — 107(a) (West 2006)) regardless of whether it participated in the proceedings below:
“Once [Sullivan School District] received notice of the initial Regional Board hearing, it was a party to the proceedings and had to be made a defendant in the review action. To hold otherwise would suggest Sullivan School District was not a party which would be bound by the judgment. Its status as a party is not affected by its failure to appear and participate. Sullivan School District’s rights, as the annexing district, would necessarily be affected by the decision to grant or deny the petition. Therefore, it must be considered a party of record, regardless of whether it participated in the hearing.”
The majority asserts that the decision in Bethany relied on the School Code and precedent interpreting the School Code and that its holding does not extend to cases brought under the Property Tax Code. To the contrary, the decision in Bethany was based on principles of due process that extend to every proceeding, whether under the School Code or the Property Tax Code. By its own terms, Bethany only finds “[additional support” for its decision in the School Code, but it is not based primarily thereon. 255 Ill. App. 3d at 767.
In Fayhee v. State Board of Elections, 295 Ill. App. 3d 392, 402 (1998), the court explained its decision in Bethany as follows:
“There are at least two bases for dismissal of an action for failure to join a party. The first is a due-process concern that there is an absent party with a substantial interest in the matter being litigated and[ ] in whose absence! ] the matter cannot be fully resolved. This is a separate inquiry and is related to, but not dependent upon, application of section 3 — 107(a) of the Administrative Review Law. It was this concern that informed our decision in [Bethany]. ***
The second basis for dismissal is failure to comply with the statutory procedural requirements.”
Clearly, the decision in Bethany was not based on the School Code or on statutory procedural requirements, but on the fact that the Sullivan school district had a substantial interest in the matter being litigated and the matter could not be fully resolved without the inclusion of that entity.
The petitioners in the case at bar were entitled to and did receive notice of the proceeding before the board of review and thereupon became parties to the proceeding. Because they would be bound by the judgment ultimately entered and their tax revenues necessarily would be affected by the judgment, they must be considered parties of record regardless of whether they participated in the proceedings below. Accordingly, I would have answered the certified question in the affirmative.