specially concurring:
I concur specially to respond to the dissenting opinion. I believe the crux of the problem is the question of when the aggrieved party must file for administrative review from a decision of the Pollution Control Board. Few would disagree, I believe, that the rigid rule that a complaint for administrative review must be filed within a prescribed period leads often to harsh results. The reports abound with cases wherein the unlucky, or unwary, appellant has learned to his dismay that he has run afoul of the often-confusing rules requiring that he file his complaint for administrative review in either the circuit court or appellate court within a certain period. The rule is jurisdictional, and reviewing courts have often, sua sponte, dismissed administrative appeals because of the lapse of time.
The dissent observes that the Board entered its final order on July 13, 1989, and, that “[tjheoretically, petitioner could have immediately filed its appeal in this court [on July 13, 1989].” (201 Ill. App. 3d at 630.) The dissent concludes, “From a ‘pragmatic’ and ‘flexible’ approach, the Board order on July 13 was final.” (201 Ill. App. 3d at 630.) Those observations of the dissent pinpoint the issue; for I believe that if the order of July 13, 1989, was final and appealable the dissenting opinion is correct and the majority is wrong. In my judgment, the order of July 13 was not appealable, and to use a “pragmatic” and “flexible” approach in deciding whether an order is appealable would place all litigants before the Pollution Control Board in a jurisdictional wilderness.
The dissent refers to four Federal cases in support of its conclusion that the order of July 13 was appealable. Those cases are more persuasive for the position of the majority than that of the dissent. Two of the cases and the Federal statute cited in the dissent, 5 U.S.C. §553 (1988), involve the rulemaking, not adjudicatory, powers of the agencies.
One of the other two cases was ITT World Communications; Inc. v. Federal Communications Comm’n (2d Cir. 1980), 621 F.2d 1201. The dispute in that case was over which of two final orders was entitled to priority for the purpose of determining which Federal district had jurisdiction. No one contended that the orders were not final, and no one argued that any order was not final until the full text of the agency’s decision had been released. The case was decided by a three-judge panel. I find noteworthy the fact that two judges of the Second Circuit refused to base their decision on determination of which final judgment had priority on equitable grounds. They held that the prior final order which contained the minutes of the meeting of the agency and the description of its decision and order was sufficient. Even more noteworthy, all three judges deplored uncertainty in any rule which would leave the parties guessing as to the appropriate procedural steps to be followed.
In the last case, Westinghouse Electric Corp. v. United States Nuclear Regulatory Comm’n (3d Cir. 1979), 598 F.2d 759, the Third Circuit Court of Appeals was again presented with the same question as in ITT World Communications, Inc., that is, which of two Federal circuits had jurisdiction. Significantly, the court expressly refrained from deciding which of two orders was a “final order.” (598 F.2d at 768.) Of equal significance is other language from Westinghouse Electric following the language'quoted in the dissent:
“On the other hand, there is something to be said in favor of the position that when the agency promises to provide in a short time a statement of reasons, its order is not ‘final’ until the statement is published, particularly since the practice of separating the order and its underlying reasons has received judicial sanction [citation]. That way, parties will not feel compelled to file unnecessary ‘protective’ orders out of uncertainty, [citation], and those parties that delayed in filing petitions for review in reliance upon the agency’s promise to issue a statement of reasons in due course will not be penalized for so relying.” (Emphasis added.) 598 F.2d at 768 n.35.
I emphasize the last part of the quote because it is particularly pertinent here. In this case, the Board told the petitioner on July 13, 1989, that the time period within which the Board would entertain any motions for reconsideration would begin with the issuance of its August 10, 1989, opinion. If the dissent is correct, this was a promise the Board was powerless to keep. Jurisdiction is not to be retained or surrendered depending on the Board’s whim, discretion or largesse. On August 17, jurisdiction of the Board would end (and so would the jurisdiction of this court). The petitioner would simply be “penalized for so relying” on the Board’s promise.
The dissent states that the fact that the Board told the petitioner that the time for filing a motion to reconsider would not begin until August 10 did “not indicate the Board did not intend the July 13 order not to have legal effect until August 10.” (201 Ill. App. 3d 633.) I find that conclusion impossible to accept. The Board’s own regulation provides as follows:
“Within 35 days after the adoption of a final order, any party may file a motion for rehearing or modification of the order or to vacate the order or for other relief. Response to said motion shall be filed within 14 days from the filing thereof. A motion filed within 35 days stays enforcement of the final order and the time for appeal from such order runs anew after the Board rules upon motion.” (Emphasis added.) (35 Ill. Adm. Code §103.240 (1985).)
It seems obvious to me that under that regulation the Board considered its August 10 opinion to be the “final order.”
It should also be observed that none of the Federal cases involves any statute like section 33(a) (Ill. Rev. Stat. 1987, ch. HVk, par. 1033(a)) that could be construed as a requirement that a final order must contain the written reasons for the agency’s action.
The specific language of the statute in question is as follows:
“(a) After due consideration of the written and oral statements, the testimony and arguments that shall be submitted at the hearing, or upon default in appearance of the respondent on return day specified in the notice, the Board shall issue and enter such final order, or make such final determination, as it shall deem appropriate under the circumstances. In all such matters the Board shall file and publish a written opinion stating the facts and reasons leading to its decision. The Board shall immediately notify the respondent of such order in writing by registered mail.” Ill. Rev. Stat. 1987, ch. HV-k, par. 1033(a).
It must be more than coincidence that the legislature saw fit to put the sentences in the sequence that it did. It seems inescapable to me that the legislature intended that the “final order” or “final determination” should contain the written opinion stating' the facts and reasoning leading to the Board’s decision. If the dissenting opinion is correct, the second sentence is merely a collection of precatory words, and the Board need never file a written opinion. After a petition for review is filed in the appellate court, thus divesting the Board of jurisdiction, could the Board properly file a written opinion?
The dissent also states that the Board’s opinion was filed within the 35-day time period in which the petitioner could have filed a motion for reconsideration, or a petition for review in this court, neither of which it chose to do at that time. Understandably, it did not choose to do so in light of the Board’s statement that the time for filing a motion to reconsider would not begin until the Board filed its written opinion on August 10. Surely all recognize that in order to file an intelligent motion to reconsider, the movant must know the Board’s reasons for its decision. Under the dissent’s holding, the petitioner would be faced with a Hobson’s choice: either to forego the right to seek any further relief before the agency and file a petition for review in the appellate court or to file a meaningless, pro forma motion to reconsider.
The dissent refers to the conscientiousness of the Board and the lack of prejudice to the petitioner. I have no reason to believe that the Board was not conscientious, nor do I believe that prejudice to the petition has been shown. But when we are deciding whether a tribunal has jurisdiction, such equitable considerations are not relevant.
The dissent also speaks of the severe burden that would be imposed on the community involved and on the resources of the municipal and administrative agencies involved if judicial review is denied “under the circumstances before us.” The opinion cites Citizens Against Randolph Landfill (CARL) v. Pollution Control Board (1988), 178 Ill. App. 3d 686, 533 N.E.2d 401, for a holding that the statutory deadline was considered waived where the court found that injustice would result, including the denial of the right of citizens of a county to an adjudication on the merits. I believe the dissent has misinterpreted the holding of that case.
In the appellate court the county, which objected to the application for a landfill site approval, argued that the applicant had waived the right to claim that the deadline had expired before the Board acted because of procedural steps the applicant had taken before the Board. In the appellate court, the applicant argued that the county had waived the right to argue, in the appellate court, waiver on the part of the applicant before the Board, because the county allegedly had not raised that argument before the Board. The appellate court permitted the county to advance the argument that the applicant had waived certain rights before the Board and invoked an exception to the general rule that matters not advanced in the tribunal below may not be raised for the first time on appeal. The appellate court then considered the county’s claim and determined that the applicant had waived the right to claim the expiration of the deadline because of certain actions the applicant had taken before the Board. The appellate court did not say that the applicant waived any right because of any hardship that the citizens of the county would incur by a denial of their right to an adjudication on the merits.
I would not be honest if I were to refuse to acknowledge that a reversal of the Board’s decision in this case might be unfair to the Village of Bensenville. Regrettably, every case barring relief because of the expiration of a statute of limitations or because a court has lost jurisdiction may lead to a harsh result, as I indicated in the beginning of this opinion. The potential for injury to litigants lies in the statute itself. As originally enacted, the statute imposed a 90-day limitation. It was amended to provide for a 30-day tolling period when the Board might be unable to muster a quorum. It was amended again to extend the limitation period from 90 days to 120 days; it retained the same tolling period. It is fair to assume that complaints from the Board prompted the amendments. If problems still exist, the solution to the problems is in the hands of the legislature; it is not the province of a court to amend a statute by judicial interpretation.
In Cummings v. Daley (1974), 58 Ill. 2d 1, 317 N.E.2d 22, three individuals made complaints against the plaintiffs with the City of Chicago Commission on Human Relations. After a hearing, the commission found the plaintiffs guilty of violations of the city fair housing ordinance. The ordinance provided that the commission was to render a written report after a hearing; it further provided that no report should be delayed more than 60 days after the commencement of the hearing. The supreme court held, since the commission rendered its report three days late, that the commission had lost jurisdiction and its order was void. The supreme court so held despite the fact that the complainants in the case were the truly aggrieved parties and not the commission itself.
In summary, pragmatism, flexibility, conscientiousness and prejudice are not considerations in determining appealability. Otherwise, reviewing courts would be judging appealability of lower tribunal’s orders under an abuse of discretion standard. Whatever weakness the majority holding may have, it possesses an overriding strength that the dissenting opinion’s holding does not — certainty for the litigants; they will know when they must file a petition for review.