dissenting:
Unlike my colleagues, I do not believe that Citizens Organizing Project (C.O.E) is entitled to recover all the attorney fees and litigation expenses it incurred in the underlying litigation. Accordingly, I dissent.
Section 10 — 55(c) of the Administrative Procedure Act states:
“In any case in which a party has any administrative rule invalidated by a court for any reason, including but not limited to the agency’s exceeding its statutory authority or the agency’s failure to follow statutory procedures in the adoption of the rule, the court shall award the party bringing the action the reasonable expenses of the litigation, including reasonable attorney’s fees.” 5 ILCS 100/ 10 — 55 (West 1998).
As an initial matter, I do not agree with the majority that the circuit court properly invalidated the administrative regulation concerning the standard of review of the Department’s decision. Notably, the hearing officer did not apply the challenged standard in ruling against C.O.E, and therefore the standard was not properly before the circuit court when the court heard the case on administrative review. C.O.E had no standing to challenge an administrative regulation that did not apply to it. See Pre-School Owners Ass’n of Illinois, Inc. v. Department of Children & Family Services, 119 Ill. 2d 268, 287 (1988). For these reasons, I do not believe that the circuit court’s action, on administrative review, in purporting to invalidate the regulation should qualify under section 10 — 55(c) as a decision invalidating a rule or regulation, triggering application of the fee-recovery provision.
Even if section 10 — 55(c) is applicable in this case, I do not agree with the majority that C.O.E’s “reasonable expenses of the litigation” include fees and expenses that are entirely unrelated to its challenge to the invalidated administrative regulation, or that are computed without regard to its lack of success in other aspects of the proceedings. C.O.E seeks an award of nearly $50,000 for its expenses, representing the sum of the attorney fees, expert witness fees, and other costs it incurred in the underlying litigation, in which it failed to overturn the Department’s adverse decision. Only a small fraction of the amount sought, however, can be said to be associated with C.O.E’s challenge to the administrative regulation concerning the standard of review — the one area in which its litigation efforts were successful.
Besides not prevailing on the merits of the case, C.O.E seeks reimbursement for some legal work that seems entirely unnecessary. As one example, in proceedings before the hearing officer, C.O.E moved to dismiss briefs filed by the Department and the mining company, arguing that the briefs were filed late. In the alternative, C.O.E asked the hearing officer to strike the portions of the briefs that referred to evidence admitted in an earlier case; C.O.E insisted that the evidence had not been properly introduced in these proceedings. Both of C.O.E’s requests for relief were wholly without merit. The briefs had been filed in a timely manner: the deadline was a Sunday, and, by administrative rule, as well as standard practice, the other parties had until the next day to submit them. 62 Ill. Adm. Code § 1700.15 (1996). C.O.E’s further assertion in the motion that the one-day delay was prejudicial in reducing its own time to file a reply brief strikes a false note, for C.O.E filed its reply on the same day it submitted the dismissal motion, and long before its own deadline. Finally, C.O.E’s challenge to the other parties’ discussion of the evidence from the other matter was also groundless. At an earlier point in these proceedings, C.O.E had in fact stipulated, rather than objected, to the admission of the evidence from the other case.
As this case illustrates, under the majority’s interpretation of the fee statute, a party can succeed in obtaining the invalidation of an incidental administrative rule or regulation, fail on every other issue, and still recover all its litigation fees and expenses. I do not believe that the legislature, in enacting section 10 — 55(c), could have intended that result. The recovery of attorney fees was unknown at common law, and therefore statutes permitting their award must be construed narrowly. Carson Pirie Scott & Co. v. State of Illinois Department of Employment Security, 131 Ill. 2d 23, 49 (1989). Moreover, in interpreting statutes, this court will seek to avoid absurd or unjust results. State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 541 (1992). “Where the language of a statute admits of two constructions, one of which would make the enactment absurd and illogical, while the other renders it reasonable and sensible, the construction which leads to an absurd result must be avoided.” Mulligan v. Joliet Regional Port District, 123 Ill. 2d 303, 312-13 (1988). Given the tangential nature of the issue on which C.O.E prevailed and C.O.E’s lack of success in every other aspect of the proceedings, I do not believe that the legislature could have intended an award of litigation expenses of the magnitude sought here; if C.O.E must be reimbursed for any of its expenses, I would limit recovery under section 10 — 55(c) accordingly.
JUSTICE BILANDIC joins in this dissent.