dissenting:
I respectfully dissent and would address this case on the merits.
This Human Rights Act case involves an application for review under section 8 — 111(A)(1) of the Human Rights Act. 775 ILCS 5/8— 111(A)(1) (West 2000). Direct review of such administrative orders is controlled by the Review Law (735 ILCS 5/3 — 101 through 3 — 113 (West 2000)). See 735 ILCS 5/3 — 113 (West 2000) (“Direct review of administrative orders by the appellate court”). Section 8 — 111(A)(1) of the Human Rights Act formerly provided that judicial review under that section would be “in accordance with Supreme Court Rule 335,” but that language was deleted effective January 1, 1994. Pub. Act 88 — 1, § 7, eff. January 1, 1994 (1993 Ill. Laws 1, 22).
Under the Review Law:
“No action for administrative review shall be dismissed for lack of jurisdiction based upon the failure to name an employee, agent, or member, who acted in his or her official capacity, of an administrative agency, board, committee, or government entity, where the administrative agency, board, committee, or government entity, has been named as a defendant as provided in this [s]ection.” 735 ILCS 5/3 — 107(a) (West 2000) (language added by Pub. Act 89 — 685, § 25, eff. June 1, 1997 (1996 Ill. Laws 3706, 3721)).
The complaint alleges that James McCaslin, an employee of the Illinois Secretary of State, was acting in his official capacity at the time of the alleged sexual harassment. The Secretary of State was named as a respondent in this direct appeal. By the terms of section 3 — 107(a) of the Review Law, it was not necessary to name McCaslin, individually, as a respondent.
The Review Law further provides that if a party was not named by the administrative agency in its final order as a party of record, then petitioner shall be granted 21 days to name and serve the unnamed party. 735 ILCS 5/3 — 113 (West 2000) (added by Pub. Act 88 — 1, § 6, eff. January 1, 1994 (1993 Ill. Laws 1, 20)). The agency final order here referred to the Secretary of State as “Respondent [No.] 1,” and to McCaslin as “Respondent [No.] 2.” The order found that the complainant failed to establish “that [Respondents sexually harassed [c]omplainant” and that the petition for review need only name “Respondent,” apparently the Secretary of State. Under the terms of section 3 — 113 of the Review Law, I suggest that we cannot dismiss this petition for review, but must grant leave to add McCaslin, if that is necessary at all.
The majority says that “[s]ection 3 — 107(a) applies only to administrative review actions in the circuit court and, thus, is not applicable here.” 334 Ill. App. 3d at 663. The majority cites McGaughy for that proposition. Actually, the supreme court in McGaughy noted the addition of section 3 — 113 of the Review Law and changes to section 8 — 111(A)(1) of the Human Rights Act and section 3 — 107(a) of the Review Law, but it concluded “[t]hese changes, however, do not pertain to the instant appeals, and we intimate here no view on the application or construction of the new provisions.” McGaughy, 165 Ill. 2d at 15-16, 649 N.E.2d at 411-12. The Review Law clearly applies to this case. See 735 ILCS 5/3 — 113 (West 2000).
McGaughy in fact rejected the proposition that there should be “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, 649 N.E.2d at 410.
The majority tells us that a party seeking to invoke special statutory jurisdiction must strictly adhere to the prescribed procedures in the statute. 334 Ill. App. 3d at 662. It is clear that the legislature disagrees with the hypertechnical arguments that have been advanced to defeat jurisdiction in these cases. If we strictly adhere to the statutes in this case, we should not dismiss this appeal. Nor should we establish two divergent procedures, one for circuit court review and another for direct review in the appellate court.
This case is not controlled by ESG Watts. ESG Watts arose under the Illinois Environmental Protection Act (415 ILCS 5/1 et seq. (West 1994)); this case arises under the Human Rights Act. As discussed above, Supreme Court Rule 335, which was applied in ESG Watts, has not applied in Human Rights Act cases since January 1, 1994. ESG Watts involved the complete failure to name a party, the State, as a respondent; this case involves the naming of a government entity, the Illinois Secretary of State, which naming includes an employee (Mc-Caslin) who acted in his official capacity. ESG Watts noted the changes to section 3 — 107(a) of the Review Law and noted further that (1) the changes to section 3 — 107(a) did not apply to Watts and (2) the changes would not help Watts if they did apply. ESG Watts, 191 Ill. 2d at 35-36, 727 N.E.2d at 1028.
Addressing the first point, the suggestion that section 3 — 107(a) did not apply to Watts, why should the section not apply? The section is one of “the provisions of the Review Law” that must be strictly complied with before an appellate court may consider the appeal. ESG Watts, 191 Ill. 2d at 30-31, 727 N.E.2d at 1025. Perhaps the reasoning is that of the majority, that section 3 — 107(a) applies only to administrative review actions in the circuit court, and only section 3 — 113 applies to direct review of administrative review actions in the appellate court. Section 3 — 107, however, states that it applies “in any action to review any final decision of an administrative agency.” (Emphases added.) 735 ILCS 5/3 — 107(a) (West 2000). When section 3 — 107 was originally enacted, the only review available was in the circuit court; appellate review was not possible until section 3 — 113 of the Review Law was enacted. Nevertheless, nothing in the language of section 3 — 107 suggests that it applies only, to actions in the circuit court, and there is no apparent reason why that should be the case. Even if only section 3 — 113 applies to the present case, section 3 — 113 itself provides that if the appellate court determines that a party of record was not made a defendant in the review proceedings, and the party was not named by the administrative agency in its final order, “the court shall grant the plaintiff 21 days from the date of the determination in which to name and serve the unnamed party as a defendant.” 735 ILCS 5/3 — 113(b) (West 2000).
The second point, that none of the exceptions carved out by the legislature would help Watts, is not the fact in the present case. Section 3 — 107 prohibits dismissal for lack of jurisdiction based upon the failure to name an employee who acted in his official capacity where the administrative agency has been named as a defendant. 735 ILCS 5/3 — 107(a) (West 2000). That was not the situation in ESG Watts, where there was a complete failure to name the State as a defendant. It is, however, exactly the situation in the present case, where the employee was not named but the governmental entity was. ESG Watts recognizes that the legislature has “carved out” exceptions. ESG Watts, 191 Ill. 2d at 36, 727 N.E.2d at 1028. ESG Watts does not hold that those exceptions are ineffective, only that they did not apply there. ESG Watts recognizes that the matter is one for the legislature, that “ ‘the Illinois appellate court has only such power of direct review as the legislature may provide.’ ” ESG Watts, 191 Ill. 2d at 29, 727 N.E.2d at 1024, quoting Central City Education Ass’n v. Illinois Educational Labor Relations Board, 149 Ill. 2d 496, 526-27, 599 N.E.2d 892, 906 (1992). The legislature has spoken in the present case. There is no justification for not accepting the naming of the Illinois Secretary of State as sufficient to include the employee, McCaslin, or in the alternative, for not allowing petitioner 21 days to name McCaslin.