
                              No. 2--96--0285

_________________________________________________________________



                                  IN THE



                        APPELLATE COURT OF ILLINOIS



                              SECOND DISTRICT

_________________________________________________________________



MARTIN ZELISKO,                      )  Appeal from the Circuit Court

                                     )  of Du Page County.

                                     )

     Plaintiff-Appellee,             )  No. 95--MR--0051

                                     )

v.                                   )

                                     )

THE BOARD OF FIRE AND POLICE         )

COMMISSIONERS OF THE VILLAGE         )

OF OAK BROOK; THE VILLAGE OF    )

OAK BROOK; RICHARD ASCHER,           )

as Chairman and Member of the        )

Board of Fire and Police             )

Commissioners of the Village         )

of Oak Brook; SUE SANFORD,           )

as Secretary and Member of the       )

Board of Fire and Police             )

Commissioners of the Village         )

of Oak Brook; JOHN CRAIG,            )

as Member of the Board of Fire  )

and Police Commissioners of the )

Village of Oak Brook; JAMES R.  )

FLEMING, as Police Chief of the )

Village of Oak Brook,                )  Honorable 

                                     )  Bonnie M. Wheaton,

     Defendants-Appellants.          )  Judge, Presiding.

_________________________________________________________________



     JUSTICE DOYLE delivered the opinion of the court:



     In August 1994, James Fleming (Chief), the chief of the Oak

Brook police department (Department), filed disciplinary charges

with the Board of Fire and Police Commissioners of the Village of

Oak Brook (Board) against plaintiff, Martin Zelisko, a police

officer with the Department.  On December 15, 1994, the Board, with

one of its three members dissenting, determined that plaintiff was

guilty of wrongdoing and issued a final order imposing a 30-day

suspension of plaintiff without pay.

     On January 18, 1995, plaintiff filed a complaint in the

circuit court of Du Page County for administrative review of the

Board's decision pursuant to the Administrative Review Law (735

ILCS 5/3--101 et seq. (West 1994)).  Plaintiff's complaint named as

defendants: the Board, the Village of Oak Brook (Village), the

Chief, and the two Board members who decided that plaintiff was

guilty of wrongdoing.  The complaint did not name the dissenting

Board member as a defendant.  A summons was issued and served on

each of the named defendants.  

     On October 3, 1995, the trial court concluded that the Board's

findings that plaintiff was guilty of wrongdoing were against the

manifest weight of the evidence and clearly erroneous.  The court

entered an order reversing the Board's finding of guilty and the

30-day suspension of plaintiff.

     On October 24, 1995, the named defendants motioned to vacate

the trial court order of October 3, 1995, and to dismiss

plaintiff's complaint.  The named defendants based their motion on

plaintiff's failure to name the dissenting Board member, John W.

Craig, as a defendant.

     On January 4, 1996, after a hearing on the matter, the trial

court found that the Board did not name Craig as a party, but that

Craig was a party of record to the proceedings.  The court entered

an order which denied defendants' motion to vacate and dismiss. 

During the hearing, the trial court stated the following:

          "And I will grant the Plaintiff an additional 21 days

       to serve [Craig] in the manner set forth in Section 3-103 of

       this Act [735 ILCS 5/3--103 (West 1994)].

          I think any other construction or application of the

       statute would unduly penalize the Plaintiff by depriving him

       of what I have already found was a valid cause of action.

          And I believe that there was good faith on the part of

       the Plaintiff and his counsel in naming all the persons who

       apparently took an adverse stand to that of the Plaintiff."

          On January 11, 1996, plaintiff filed his first amended

complaint and a summons was issued on Craig.  The first amended

complaint added Craig as a named defendant.  

     On February 8, 1996, the trial court conducted a hearing to

determine if it was impermissible to join Craig at this juncture in

the proceedings as argued by Craig's attorney.  After the hearing,

the trial court entered an order reaffirming its order of October

3, 1995 (reversing the Board's decision).

     Defendants' timely appeal followed.  Defendants appeal from

the trial court's orders of October 3, 1995, January 4, 1996, and

February 8, 1996.

     On appeal, defendants first contend that the trial court

should have dismissed plaintiff's complaint because plaintiff

failed to name Craig as a defendant within the time period mandated

by the Administrative Review Law.  The parties agree that the

Administrative Review Law (735 ILCS 5/3--101 et seq. (West 1994))

governs the procedural requirements for judicial review of the

Board's decision.  Our supreme court has determined that these

procedural requirements must be strictly adhered to because the

Administrative Review Law is a departure from the common law. 

Lockett v. Chicago Police Board, 133 Ill. 2d 349, 353 (1990).

     Section 3--102 of the Administrative Review Law cautions

parties seeking administrative review that review may be barred if

the procedures set out in the Administrative Review Law are not

followed.  Specifically, section 3--102 provides, in relevant part,

that "[u]nless review is sought of an administrative decision

within the time and in the manner herein provided, the parties to

the proceeding before the administrative agency shall be barred

from obtaining judicial review of such administrative decision." 

735 ILCS 5/3--102 (West 1994).

     Section 3--103 of the Administrative Review Law sets out the

general rule for the commencement of an administrative review

action.  Section 3--103 requires that an action for administrative

review "shall be commenced by the filing of a complaint and the

issuance of summons within 35 days from the date that a copy of the

decision sought to be reviewed was served upon the party affected

by the decision."  735 ILCS 5/3--103 (West 1994).

     Section 3--107(a) of the Administrative Review Law defines the

persons who must be made defendants in an action for administrative

review.  Section 3--107(a), as in effect at the time plaintiff

filed his complaint, provided, in pertinent part, as follows:

          "[I]n any action to review any final decision of an

       administrative agency, the administrative agency and all

       persons, other than the plaintiff, who were named by the

       administrative agency in its final order as parties of

       record to the proceedings before the administrative agency

       shall be made defendants.

          If the court determines that a person or party not

       named by the administrative agency as a party in its final

       order was a party of record to the proceedings ***, the

       court shall grant the plaintiff an additional 21 days to

       serve the unnamed party *** in the manner set forth in

       Section 3--103 of this Act."  735 ILCS 5/3--107(a) (West

       1994).

          In International Precision Components Corp. v. Lake County

Zoning Board of Appeals, 282 Ill. App. 3d 735 (1996), this court

construed the language in section 3--107(a) quoted above.  We

determined that this language created two classes of persons who

were parties of record to the proceedings and therefore were

mandatory defendants.  282 Ill. App. 3d at 740.  These classes are: 

persons who were named by the administrative agency in its final

order as parties of record to the proceedings, and persons who were

not so named.  282 Ill. App. 3d at 740.  We held that the 35-day

jurisdictional limit set out in section 3--103 of the

Administrative Review Law applied to persons named by the

administrative agency as parties of record to the proceedings and

that the additional 21 days applied only to persons who were

parties of record to the proceedings but were not so named by the

administrative agency in its final order.  282 Ill. App. 3d at 740.

     In this case, after the trial court ruled in plaintiff's favor

to reverse the Board's decision, defendants motioned to dismiss

plaintiff's complaint on the ground that plaintiff failed to name

Craig as a defendant.  The trial court subsequently determined that

the Board had not named Craig as a party of record to the

proceedings, but that Craig was a party of record to the

proceedings.  This determination placed Craig in the second class

of mandatory defendants under section 3--107(a), and the trial

court allowed plaintiff 21 additional days to name and serve Craig.

     However, the trial court erred when it determined that the

Board did not name Craig as a party of record to the proceedings. 

In International Precision, we determined that the administrative

agency in that case named the individual members of the

administrative agency as parties of record to the proceedings

where: the individual members' names appeared in the text of the

final order; the individual members' names appeared throughout the

hearing transcripts; and each individual member signed the

administrative agency's final decision.  International Precision,

282 Ill. App. 3d at 740.  Similarly, in this case, Craig's name

appears in the text of the Board's final order, Craig's name

appears throughout the hearing transcripts, and Craig signed his

dissent which was attached to the Board's final order.  Thus,

contrary to the trial court's determination, the Board did name

Craig in its final order as a party of record to the proceedings.

     Because the Board named Craig in its final order as a party of

record to the proceedings, Craig was a Class 1 defendant under

section 3--107(a) of the Administrative Review Law and not a

Class 2 defendant as the trial court determined.  Section 3--107(a)

does not provide for any additional time beyond that set out in

section 3--103 for a plaintiff to name as defendants and serve

summons on Class 1 defendants.  See International Precision, 282

Ill. App. 3d at 740.  Thus, plaintiff was required to name Craig as

a defendant and issue summons on him within 35 days after the

Board's decision was served on plaintiff.  735 ILCS 5/3--103 (West

1994).  It is undisputed that plaintiff did not do this, and

plaintiff was therefore barred from obtaining judicial review of

the Board's decision.  735 ILCS 5/3--102 (West 1994). 

     Plaintiff argues that the section 3--107(a) requirements apply

only to adverse parties and that because Craig was not adverse to

plaintiff it was not necessary to name him as a defendant under

section 3--107(a).  However, the plain language of section 3--

107(a) does not support plaintiff's contention.  Section 3--107(a)

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

named by the administrative agency in its final order as parties of

record to the proceedings before the administrative agency shall be

made defendants."  735 ILCS 5/3--107(a) (West 1994).  There is no

provision for an exception to the requirements of section 3--107(a)

on the basis of nonadversity in this language as contended by

plaintiff.  Moreover, it is clear from cases that have considered

this question that section 3--107(a) requires that a plaintiff in

an administrative action generally must name as defendants all the

individual members of the administrative agency who are parties of

record to the proceedings.  Orlowski v. Village of Villa Park Board

of Fire & Police Commissioners, 273 Ill. App. 3d 42, 46 (1995). 

This is true even if some of the individual members of the

administrative agency supported the plaintiff's position. 

International Precision, 282 Ill. App. 3d at 740.  Thus,

plaintiff's nonadversity argument fails.

     Plaintiff next contends that the trial court correctly

determined that plaintiff had made a good-faith effort to comply

with the Administrative Review Law.  Plaintiff argues that because

of this good-faith effort he should not be barred from obtaining

judicial review of the Board's decision even if he did not strictly

comply with the section 3--107(a) requirements regarding naming

defendants within the time limits prescribed by section 3--103.  

     In Lockett, our supreme court considered whether to apply a

good-faith-effort exception to the 35-day time limit prescribed by

section 3--103 for filing a complaint and issuing and serving

summonses on parties to the proceedings.  Lockett, 133 Ill. 2d at

354-55.  The court determined that a good-faith-effort exception

applied only in cases where the plaintiff had made a good-faith

effort to issue summons within the 35-day period, but, due to some

circumstance beyond the plaintiff's control, summons was not issued

within that period.  133 Ill. 2d at 355.  The court decided that

because it was undisputed that the plaintiff in that case had not

named the party of record to the proceedings as a defendant or

issued summons on him within the 35-day period the good-faith-

effort exception did not apply and the complaint was properly

dismissed.  133 Ill. 2d at 355-56.

     In this case, it is undisputed that plaintiff did not name

Craig as a defendant or issue summons on him within the 35-day

period following the serving of the Board's decision on plaintiff. 

Plaintiff does not contend that he made a good-faith effort to name

and serve defendant within the 35-day period.  Rather, plaintiff

argues that he believed, in good faith, that he was not required to

name and serve Craig because Craig was not adverse to plaintiff and

because Craig had not signed the part of the Board's decision which

found plaintiff guilty of wrongdoing. 

     In Lockett, the plaintiff did not name the superintendent of

the police department as a defendant because the plaintiff

erroneously believed that naming the police board constituted

notice to the superintendent.  133 Ill. 2d at 352.  The Lockett

court concluded that the good-faith-effort exception did not apply. 

133 Ill. 2d at 355-56.

     Similarly, in this case, plaintiff's belief that section 3--

107(a) did not require him to name and serve Craig does not

constitute a good-faith effort to name and serve a mandatory

defendant.  Accordingly, as in Lockett, the good-faith-effort

exception does not apply in this case.

     Finally, plaintiff contends that dismissal of his complaint

would deny him due process of law because it would be fundamentally

unfair to him.  We recognize that granting defendants' motion to

dismiss the complaint on the grounds of plaintiff's failure to name

a defendant after the trial court ruled on the merits of

plaintiff's complaint is a harsh result.  However, the section 3--

107(a) requirements regarding persons who must be named as

defendants are mandatory and specific and admit of no modification. 

Lockett, 133 Ill. 2d at 354.  In Orlowski, this court determined

that the  dismissal of a complaint on the ground of the failure to

name a mandatory defendant was warranted even though the issue was

first raised on appeal in a reply brief.  Orlowski, 273 Ill. App.

3d at 48.

     In this case, plaintiff failed to name as a defendant and to

serve one of the Board members who was named as a party of record

to the proceedings in the Board's final order within the time

period mandated by the Administrative Review Law.  Consequently, we

must dismiss plaintiff's complaint for administrative review. 

     Because of this disposition, it is unnecessary for us to

address defendants' other contentions of error.

     Based on the foregoing, the judgment of the circuit court of

Du Page County is reversed.

     Reversed.

     INGLIS and HUTCHINSON, JJ., concur.





