Schwartz v. Department of Employment Security ( 1996 )

                             No. 2--96--0244

________________________________________________________________

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             SECOND DISTRICT

________________________________________________________________

LYNNE A. SCHWARTZ,                   )  Appeal from the Circuit Court

                                    )  of Du Page County.

    Plaintiff-Appellant,            )

                                    )  No. 95--MR--698

v.                                   )

                                    )

THE DEPARTMENT OF EMPLOYMENT    )

SECURITY; THE BOARD OF          )

REVIEW OF THE DEPARTMENT OF     )

EMPLOYMENT SECURITY; and THE    )

DIRECTOR OF EMPLOYMENT SECURITY,)  Honorable

                                    )  Bonnie M. Wheaton,

    Defendants-Appellees.           )  Judge, Presiding.   

________________________________________________________________

    JUSTICE BOWMAN delivered the opinion of the court:

    Plaintiff, Lynne Schwartz, appeals the circuit court's order

dismissing her complaint for administrative review of the decision

of defendant, the Illinois Department of Employment Security

(IDES).  Plaintiff contends that the court erred in determining

that her employer, Du Page Public Safety Communications (Du Page),

was a necessary party.

    Plaintiff worked as an operations manager for Du Page for

approximately 11 years until Du Page terminated her on August 29,

1994.  Plaintiff applied for unemployment benefits.  Du Page

opposed her application on the ground that plaintiff had committed

intentional misconduct.  The IDES referee agreed with Du Page and

denied benefits.  The Board of Review affirmed the referee's

decision.  The Board of Review's decision listed plaintiff as

claimant and Du Page as respondent.  The Board of Review mailed

copies of its decision to plaintiff and Du Page.

    Plaintiff filed a complaint for administrative review in the

circuit court, naming as defendants IDES, the Director of IDES, and

the Board of Review.  Du Page was not named in the complaint or

served with a summons.

    Defendants moved to dismiss the complaint for lack of subject

matter jurisdiction.  They asserted that Du Page, as a party to the

proceeding before the Board of Review, had to be named as a

defendant and served with summons for the court to acquire

jurisdiction.  The circuit court dismissed the action and plaintiff

filed a timely notice of appeal.

    Plaintiff contends that she was not required to name Du Page

as a defendant in the administrative review complaint.  Plaintiff's

argument is as follows.  The Administrative Review Law (the Act)

requires that "all persons, other than the plaintiff, who were ***

parties of record" to the agency proceedings "shall be made

defendants."  735 ILCS 5/3--107(a) (West 1994).  Because the Act

does not define "person," the word must be given its plain and

ordinary meaning.  Plaintiff quotes a dictionary definition of

"person" as "a living human being."  Because Du Page is not a

living human being, but is some unspecified type of business

entity, it did not have to be made a party to the administrative

review action.

    The Unemployment Insurance Act provides that decisions of the

Board of Review must be reviewed pursuant to the Act.  820 ILCS

405/1100 (West 1994).  Because the Act is a departure from the

common law, its procedures must be strictly followed to obtain

judicial review.  Fredman Brothers Furniture Co. v. Department of

Revenue, 109 Ill. 2d 202, 210 (1985).  

    As noted, section 3--107 of the Act requires that all

"persons" who were parties of record to the administrative

proceedings be named as defendants and served with summons in an

administrative review action.  735 ILCS 5/3--107 (West 1994).

Courts have repeatedly held that the failure to comply with this

section mandates dismissal of the action.  Lockett v. Chicago

Police Board, 133 Ill. 2d 349, 354 (1990); Board of Education of

Bethany Community Unit School District No. 301 v. Regional Board of

School Trustees of Clark, Coles, Cumberland, Edgar, Moultrie and

Shelby Counties, 255 Ill. App. 3d 763, 765-66 (1994).

    When interpreting a statute, we are bound by the principles of

statutory construction.  We agree with plaintiff that when a word

in a statute is not defined, it should be given its plain and

ordinary meaning.  Collins v. Board of Trustees of the Firemen's

Annuity & Benefit Fund, 155 Ill. 2d 103, 111 (1993).  Plaintiff

argues that the plain meaning of "person" is a living human being.

However, we note that another dictionary definition of "person" is

"one (as a human being, a partnership, or a corporation) that is

recognized by law as the subject of rights and duties."  Webster's

Ninth New Collegiate Dictionary 877 (1990).  Thus, applying the

dictionary definitions of "person" does not lead inexorably to the

conclusion that the legislature intended to exclude corporations

and partnerships from being named as parties to administrative

review actions.

    Furthermore, another principle of statutory construction is

that a statute should be construed whenever possible to avoid

absurdity, inconvenience, or injustice.  Collins, 155 Ill. 2d at

111.  Plaintiff's proposed construction of section 3--107 would

certainly lead to absurd consequences:  an individual employer

would be entitled to an opportunity to appear before the circuit

court and contest the employee's claim to benefits, but a corporate

or partnership employer would not.  Such a construction is not only

absurd, but also would likely violate the due process and equal

protection rights of corporate and partnership employers.  We

decline to adopt such a construction.

    Although it appears that no Illinois court has considered this

specific issue, decisions in slightly different factual contexts

lend support to our conclusion.  In Board of Education of Bethany

Community Unit School District No. 301 v. Regional Board of School

Trustees of Clark, Coles, Cumberland, Edgar, Moultrie and Shelby

Counties, 255 Ill. App. 3d 763 (1994), the court held that

plaintiff's administrative review complaint should have been

dismissed for failing to name the Sullivan School District as a

defendant.  The court did not specifically consider the definition

of "person" in section 3--107.  However, the court held that the

Sullivan School District should have been named a defendant.

Clearly, the Sullivan School District is not a living human being.

    In McGaughy v. Illinois Human Rights Comm'n, 165 Ill. 2d 1

(1995), plaintiff Barnes filed a petition for administrative review

of the dismissal of her charge against her employer, Central

Illinois Light Company.  The petition failed to name her employer

as a defendant.  The supreme court held that this failure mandated

the dismissal of the review proceeding.  McGaughy, 165 Ill. 2d at

12.  We are aware that McGaughy was decided under Supreme Court

Rule 335(a), providing for direct review of administrative agency

orders in the appellate court.  The rule requires that "all other

parties of record shall be named as respondents."  155 Ill. 2d R.

335(a).  However, the supreme court stated that the joinder

requirements of section 3--107 and Rule 335(a) are "substantively

similar."  The court went on to say:

      "There is nothing in the plain language of the statute or

      the rule that would justify the development of 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.

         McGaughy strongly intimates that the supreme court views

"persons *** who were *** parties of record" as used in section 3--

107 as the functional equivalent of "parties of record" as used in

Rule 335(a).  Since "parties of record" would clearly include all

parties, regardless of their corporate form, the same should be

true of section 3--107 as well.

    Plaintiff contends in her reply brief that it would be an

"injustice" to deprive her of her day in court because of "legal

technicalities."  However, we are bound by those decisions which

have repeatedly held that the requirements of section 3--107 are

mandatory.  Plaintiff does not cite any authority holding that an

equitable exception to section 3-107 may excuse strict compliance

with its requirements.  See Shaw v. Department of Employment

Security, 243 Ill. App. 3d 844, 849 (1993) ("plaintiffs' assertions

of good faith cannot cure the jurisdictional defects").

    The judgment of the circuit court of Du Page County is

affirmed.

    Affirmed.

    McLAREN, P.J. and THOMAS, J., concur.