Cesario v. Board of Fire, Police and Public Safety Commissioners ( 2006 )

SIXTH DIVISION
September 22, 2006
No. 1-04-3882
DAVID CESARIO, ) Appeal from the
) Circuit Court of
Petitioner-Appellee, ) Cook County
)
v. )
)
BOARD OF FIRE, POLICE AND PUBLIC SAFETY )
COMMISSIONERS OF THE TOWN OF CICERO, )
WAYNE JOHNSON as Chief of Police, and )
the TOWN OF CICERO, ILLINOIS, ) Honorable
) David Donnersburger,
Respondents-Appellants. ) Judge Presiding
JUSTICE McNULTY delivered the opinion of the court:
The Town of Cicero (Town) charged officer David Cesario with
misconduct. The Town voluntarily dismissed the charges and later
refiled the dismissed charges. The Board of Fire, Police and
Public Safety Commissioners (Board) began the evidentiary hearing
about nine months after the Town moved for leave to refile the
charges. Following the evidentiary hearing the Board terminated
Cesario's employment. On administrative review, the trial court
vacated the Board's order, holding that the Board lost
jurisdiction before the evidentiary hearing began. Because the
record on appeal does not show when the Board permitted the
refiling of the charges, or the cause for the delay between the
refiling and the hearing, we cannot infer that the Board retained
jurisdiction over the case. Accordingly, we affirm the trial
court's decision vacating the Board's order.
BACKGROUND
On February 8, 1998, several Cicero police officers,
including Cesario, chased and arrested Javier Leal. A doctor who
1-04-3882
treated Leal following the arrest found several lacerations to
Leal's scalp, a chipped tooth, a fractured nose and other
indications that Leal had suffered a beating. Investigators from
the internal affairs division of Cicero's police department
interviewed Cesario and other officers about the arrest.
In April 1998 the Town of Cicero filed a complaint against
Cesario with the Town's Board of Fire, Police and Public Safety
Commissioners, charging Cesario with using excessive force when
arresting Leal. The Town also accused Cesario of lying to
investigators from internal affairs.
The Board promptly began proceedings on the charges.
Cesario requested several continuances and agreed to several
further continuances the Town requested. At a hearing on May 5,
1998, the parties discussed the status of discovery. Cesario's
attorney agreed to set June 8, 1998, as the date to determine
whether the parties had completed discovery. The Town's attorney
raised "the nettlesome issue of the thirty-day rule." Cesario's
attorney answered:
"We made a motion for continuance.
* * *
*** There is no problem with the thirty-day rule.
We will waive it and see you on the 8th for status
hearing. We will set a hearing date that night."
Later that year Cesario sought pension benefits for
disability. The Board, with the agreement of both parties, held
-2-
1-04-3882
no proceedings on the charges against Cesario pending a decision
on his petition for disability benefits.
Cesario eventually won the disability benefits. In November
1999 the Town moved to recommence the proceedings against Cesario
for use of excessive force and for lying to investigators. The
Town's attorney, in summarizing prior proceedings, told the
Board:
"There were charges filed ***. The case was
voluntarily dismissed. It was dismissed, by agreement,
without prejudice."
The Board granted Cesario's new attorney two weeks to respond to
the motion to recommence the proceedings.
The trial court and the parties refer to the motion as one
to reinstate the charges. We find that this is a misnomer.
Following a voluntary dismissal, the plaintiff has 30 days in
which to move to vacate the dismissal. Hawes v. Luhr Brothers,
Inc., 212 Ill. 2d at 93, 105-06 (2004). Once the 30-day period
has elapsed, the court has no power to reinstate the cause of
action, unless the court granted the plaintiff, at the time of
the voluntary dismissal, leave to move to set aside the
dismissal. Layfield v. Village of University Park, 267 Ill. App.
3d 347, 349 (1994); Weisguth v. Supreme Tribe of Ben Hur, 272
Ill. 541, 543 (1916); but see Hawes, 212 Ill. 2d at 104-07
(Weisguth rule partially superceded by statute). Absent such
leave to set aside the dismissal, the plaintiff must begin the
-3-
1-04-3882
action anew by filing a new complaint or by refiling the original
complaint. Layfield, 267 Ill. App. 3d at 349; Weisguth, 272 Ill.
at 543. The record here shows no reservation of a right to set
aside the dismissal, and we see no indication that the Town
sought to set aside the voluntary dismissal. In effect the Town
sought leave to begin a new action by refiling the charges
against Cesario. We will refer to the Town's motion as one for
leave to refile the charges. When the parties in the transcript
discuss the motion for reinstatement, we will treat that as a
reference to the motion for leave to refile the charges.
The Board heard evidence related to the charges on August
29, 2000, and October 10, 2000. In the final order dated
September 9, 2003, the Board assessed the credibility of the
witnesses and concluded that the evidence substantiated the
charges. Accordingly, the Board terminated Cesario's employment
as a Cicero police officer.
Cesario petitioned for administrative review of the Board's
order. The Board filed the record of the evidentiary hearing in
response to the petition. Cesario moved to compel the Board to
file a complete record of all pretrial proceedings. The court
granted the motion. The Board filed transcripts of all
proceedings in 1998 leading up to the voluntary dismissal, and
transcripts of proceedings held in November and December 1999.
The Board produced no record concerning any proceedings in 2000
prior to the beginning of the evidentiary hearing on August 29,
-4-
1-04-3882
2000. In the transcript of the August hearing, the parties refer
to earlier proceedings in 2000. The Board produced no transcript
from those proceedings.
The Board supplemented the record with the affidavit of the
attorney who represented Cesario at the evidentiary hearing. The
attorney swore:
"I did not file any motions or pleadings regarding
the reinstatement of the charges. The charges were
previously dismissed without prejudice and by agreement
of the parties."
The trial court held:
"At the December 6, 1999 hearing, the matter of
reinstatement was taken under consideration with ruling
on the motion to be made in writing. Much of the
record has been lost and while it is clear that at some
point the motion to reinstate was granted, there is no
record of this. There is no indication anywhere in the
record of the date when the motion to reinstate was
granted.
* * *
*** There is no presumption of jurisdiction of an
administrative review board. [Citation.] The facts
upon which jurisdiction is founded must be contained in
the administrative record. [Citation.]
* * *
-5-
1-04-3882
In the instant case, there is no information in
the Record as to when the charges against Plaintiff
were reinstated. Therefore, it is impossible to
determine whether a hearing on the reinstated charges
was commenced within thirty days. Nor can this court
assume that any delay in the commencement of the
hearing on the reinstated charges was by agreement of
Plaintiff as there is nothing in the Record which
indicates this.
*** [T]he order of dismissal is void for lack of
jurisdiction."
The Board now appeals.
ANALYSIS
We review the Board's decision, not the trial court's
judgment. Sangirardi v. Village of Stickney, 342 Ill. App. 3d 1,
10 (2003). We defer to the Board's findings of fact, but we
review de novo issues of law. Sangirardi, 342 Ill. App. 3d at
10.
The Illinois Municipal Code provides:
"Except as hereinafter provided, no officer or member
of the fire or police department of any municipality
*** shall be removed or discharged except for cause,
upon written charges, and after an opportunity to be
heard in his own defense. *** The board of fire and
police commissioners shall conduct a fair and impartial
-6-
1-04-3882
hearing of the charges, to be commenced within 30 days
of the filing thereof, which hearing may be continued
from time to time." 65 ILCS 5/10-2.1-17 (West 1998).
Failure to comply with the statutory time limit for beginning the
hearing divests the Board of jurisdiction over the case. Kvidera
v. Board of Fire & Police Commissioners of Village of Schiller
Park, 192 Ill. App. 3d 950, 956 (1989).
"However, where the delay in commencing the hearing
within the 30-day period is not attributable to the
Board, but rather to the plaintiff, the statute is not
violated. [Citations.]
*** [R]egardless of the exact cause, the relevant
inquiry is whether the delay was the result of the
plaintiff's behavior or, in the alternative, whether it
was attributable to the Board." Kvidera, 192 Ill. App.
3d at 956-57.
The Board claims that it retained jurisdiction because
Cesario agreed to several continuances in 1998, and on May 5,
1998, Cesario's attorney expressly waived the 30-day rule.
However, the waiver and the 1998 continuances preceded the
voluntary dismissal of the charges. When the Town refiled the
charges, it began a new action against Cesario. See Neuman v.
Burstein, 230 Ill. App. 3d 33, 36 (1992); Moran v. Ortho
Pharmaceutical Corp., 907 F. Supp. 1228, 1229 (N.D. Ill. 1995);
735 ILCS 5/13-217 (West 1998). We cannot construe the waiver of
-7-
1-04-3882
the 30-day rule at one stage in the initial proceedings as a
waiver of that rule for any proceedings in the new action the
Town commenced by refiling the charges. See Kern v. Peabody Coal
Co., 151 Ill. App. 3d 807, 811 (1987) (jury waiver in initial
action does not affect right to jury trial on refiled complaint
following voluntary dismissal).
Both parties compare this case to cases involving hearings
on remand following an appeal. Cesario cites Bridges v. Board of
Fire & Police Commissioners of City of Zion, 83 Ill. App. 3d 190
(1980), as authority showing that the Board lost jurisdiction,
while the Board claims that under Jones v. Board of Fire & Police
Commissioners of Village of Mundelein, 127 Ill. App. 3d 793
(1984), it retained jurisdiction to hear the charges against
Cesario even if it did not begin the hearing within 30 days of
the refiling of the charges.
In Bridges the Zion board discharged the plaintiff without
holding an evidentiary hearing. The trial court reversed the
judgment and remanded the case to the Zion board for a hearing.
The Zion board began the hearing more than 30 days after the
trial court issued the order. The board discharged the plaintiff
and the plaintiff appealed. The appellate court held that the
Zion board lost jurisdiction over the case when it failed to
commence the hearing within 30 days of the remand order.
Bridges, 83 Ill. App. 3d at 195.
In Jones the Mundelein board discharged the plaintiff
-8-
1-04-3882
following a full evidentiary hearing. Our supreme court reversed
the decision and remanded to the Mundelein board for "'the
opportunity to take further evidence to determine a proper
disposition.'" Jones, 127 Ill. App. 3d at 801. The Mundelein
board did not begin the proceedings on remand within 30 days of
the issuance of our supreme court's mandate. On a second appeal
the appellate court rejected the argument that the Mundelein
board lost jurisdiction. The court emphasized that the Mundelein
board commenced the proceedings in accord with the 30-day
provision, before the initial appeal. The court distinguished
Bridges:
"No hearing had been held in the Bridges case [prior to
the remand] ***. In contrast, the remand here was not
for a de novo hearing, or even specifically for a
hearing. *** [I]t is clear that the proceedings at the
original timely commenced hearing on the charges in
November 1978 were not abrogated by the supreme court's
mandate." Jones, 127 Ill. App. 3d at 801.
The remand did not require the refiling of charges.
The court in Jones acknowledged the continuing vitality of
Bridges and its holding that the Board loses jurisdiction if it
fails to begin the hearing within 30 days of the filing of the
charges, unless the person charged causes the delay. Jones, 127
Ill. App. 3d at 799-800. In Bridges, as interpreted in Jones,
the proceedings following the appeal continued the preappeal
-9-
1-04-3882
proceedings on the charges. Because the Zion board in Bridges
failed to begin the evidentiary hearing before the appeal, the
court order remanding the case for an evidentiary hearing
triggered the 30-day jurisdictional period for the hearing. The
Zion board's failure to begin the hearing within 30 days of the
order for remand, through no fault of the plaintiff, deprived the
board of jurisdiction over the charges.
Here, following the voluntary dismissal, proceedings could
not recommence without the refiling of the charges against
Cesario. The Board allowed the Town to refile the charges
against Cesario, thereby starting a new action against Cesario.
The proceedings in 1998, prior to the voluntary dismissal, have
no bearing on the jurisdictional requirements for proceedings on
the refiled charges. This case, unlike Jones and Bridges,
involves a new action, not a continuation of the proceedings
begun prior to the voluntary dismissal. To assert jurisdiction,
the Board needed to begin the hearing within 30 days of the
refiling of the charges, unless Cesario caused the delay. See 65
ILCS 5/10-2.1-17 (West 1998).
The record here does not show when the Board allowed the
Town to refile the charges against Cesario. "[B]ecause there is
no presumption in favor of the jurisdiction of administrative
agencies, the facts upon which their jurisdiction is founded must
appear in the record." Kahn v. Civil Service Comm'n, 40 Ill.
App. 3d 615, 618 (1976). The record here cannot support the
-10-
1-04-3882
conclusion that the Board began proceedings on the refiled
charges within 30 days of refiling.
The Board argues nonetheless that the record shows that it
had jurisdiction because Cesario waived the 30-day provision.
First, the Board notes that Cesario asked for some time to
respond to the motion to refile the charges. We do not see how
the request makes Cesario responsible for a delay between the
Board's decision to allow the Town to refile the charges and the
commencement of the hearing.
The Board also notes that Cesario's attorney admitted that
he never demanded a hearing following the refiling of the
charges. As the court held in Bridges:
"There is no requirement in section 10-2.1-17 *** to
the effect that the plaintiff must file a demand for a
hearing. Consequently we see no basis in the argument
that the demand for a hearing should start the running
of the 30-day period." Bridges, 83 Ill. App. 3d at
194.
The Board must meet its statutory duty of commencing proceedings
in a timely manner. The respondent need not demand a hearing to
receive the benefit of the jurisdictional timing provisions.
Because the Board has not shown that Cesario caused the delay
between the refiling of the charges and the start of the hearing,
the Board has failed to show that it had jurisdiction to hear the
charges.
-11-
1-04-3882
Finally, the Board argues that if it lost jurisdiction,
jurisdiction revested in the Board when Cesario participated in
the hearings without objection. Under the narrow doctrine of
revestment, "litigants may revest a court which has general
jurisdiction over the matter with both personal and subject
matter jurisdiction over the particular cause after the 30-day
period following final judgment during which post-judgment
motions must ordinarily be filed." People v. Kaeding, 98 Ill. 2d
237, 240 (1983). But "[a]n administrative agency is different
from a court because an agency only has the authorization given
to it by the legislature through the statutes. Consequently, to
the extent an agency acts outside its statutory authority, it
acts without jurisdiction." Business & Professional People for
Public Interest v. Illinois Commerce Comm'n, 136 Ill. 2d 192, 243
(1989). Where our legislature has carefully proscribed the
jurisdiction of an administrative body, litigants cannot by
consent sidestep the proscriptions. City of West Frankfort v.
Industrial Comm'n, 406 Ill. 452 (1950); Rockford Township Highway
Department v. Illinois State Labor Relations Board, 153 Ill. App.
3d 863, 875 (1987). Thus, the doctrine of revestment does not
apply to administrative agencies. Cesario could not revest the
Board with jurisdiction when the statute terminated that
jurisdiction.
The record does not show that the Board began hearings in
this case within 30 days of the refiling of charges following the
-12-
1-04-3882
voluntary dismissal of the original charges. The record also
gives no indication that Cesario delayed the hearing on the
refiled charges. Thus, we cannot conclude from this record that
the Board had jurisdiction over the case when it began the
evidentiary hearing. Accordingly, we hold that the trial court
correctly vacated the Board's order.
Affirmed.
TULLY and O'MALLEY, JJ., concur.
-13-