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                                       Appellate Court                        Date: 2017.01.10
                                                                              12:28:13 -06'00'




                 Hofrichter v. City of Chicago Heights, 2016 IL App (1st) 153106



Appellate Court           BENJAMIN HOFRICHTER, Plaintiff-Appellant, v. THE CITY OF
Caption                   CHICAGO HEIGHTS, THE CITY OF CHICAGO HEIGHTS
                          POLICE AND FIRE BOARD, and CHARLES GUILIANI,
                          Defendants-Appellees.



District & No.            First District, Second Division
                          Docket No. 1-15-3106


Filed                     October 18, 2016



Decision Under            Appeal from the Circuit Court of Cook County, No. 14-CH-18280; the
Review                    Hon. Thomas R. Allen, Judge, presiding.



Judgment                  Affirmed in part and reversed in part.
                          Cause remanded.


Counsel on                Policemen’s Benevolent Labor Committee, of Springfield (Shane M.
Appeal                    Voyles, of counsel), for appellant.

                          Del Galdo Law Group, LLC, of Chicago (K. Austin Zimmer and
                          Joseph A. Giambrone, of counsel), for appellees.



Panel                     JUSTICE MASON delivered the judgment of the court, with opinion.
                          Presiding Justice Hyman and Justice Neville concurred in the
                          judgment and opinion.
                                               OPINION

¶1        Plaintiff-appellant Benjamin Hofrichter filed suit against his employer, defendant-appellee
     city of Chicago Heights, as well as defendants-appellees city of Chicago Heights police and
     fire board and Charles Guiliani (collectively, defendants), on November 13, 2014, after he was
     passed over for a promotion one year earlier on November 13, 2013. Defendants moved to
     dismiss the suit on the basis that it was barred by laches or, alternatively, that Hofrichter’s sole
     cause of action was administrative review. The circuit court granted the motion and dismissed
     the complaint in its entirety. Hofrichter appeals. For the reasons that follow, we affirm in part
     and reverse in part and remand for further proceedings.

¶2                                         BACKGROUND
¶3       Hofrichter is a police officer for the city of Chicago Heights. On December 14, 2009, the
     city of Chicago Heights police and fire board (Board) promulgated a promotion eligibility list
     (2009 roster) that named Hofrichter as the number one candidate for promotion to sergeant.
     Pursuant to article 10 of the Illinois Municipal Code (Code) (65 ILCS 5/10-2.1-15 (West
     2008)), the Board was required to make promotions from the three candidates having the
     highest rating. The Code permits the Board to strike the eligibility list after three years,
     providing that no vacancy exists that can be filled at that time. Id.
¶4       In September 2011, the Board promoted candidates two and three from the 2009 roster,
     leaving only Hofrichter remaining from the original top three. No further promotions were
     made until 2013.
¶5       On October 23, 2013, the secretary of the Board sent an e-mail to all candidates, including
     Hofrichter, advising them that they could submit a request for military points to the Board for
     the new promotion eligibility list (2013 roster) through regular mail or via e-mail. Hofrichter
     responded via e-mail requesting to apply his military points.
¶6       On November 12, 2013, the Board drafted an agenda for its November 13 meeting, and the
     order of business included the cancellation of the 2009 roster, the promulgation of a new 2013
     roster, and the promotion of two officers to replace sergeants who had retired in January 2012
     and May 2013. The agenda was e-mailed to all sergeant candidates, including Hofrichter, the
     day before the meeting. Along with the agenda, the Board e-mailed the candidates the final
     2013 roster, on which Hofrichter placed ninth.
¶7       The day of the meeting, the Board effectuated its agenda and cancelled the 2009 roster (on
     which Hofrichter was the highest ranked candidate for promotion to sergeant), approved the
     2013 roster, and promoted two individuals (ranked first and second) from the latter roster. That
     same day, according to the Board’s secretary, the Board “published” the 2013 roster.
¶8       Hofrichter’s first challenge to the November 13, 2013, promotions occurred on November
     13, 2014, when he filed a complaint in the circuit court seeking a declaratory judgment and
     alleging a violation of the Civil Rights Act of 1991 (42 U.S.C. §§ 1983, 1985 (2012)).
     Defendants moved to dismiss the complaint alleging, inter alia, that Hofrichter’s sole remedy
     to challenge the Board’s action was administrative review. On March 23, 2015, the trial court
     granted the motion to dismiss without prejudice.
¶9       Hofrichter filed an amended complaint one month later, in April 2015, repeating the
     allegations of the original complaint and adding a count labeled “Administrative Review.” In

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       that count, Hofrichter sought “review of all questions of law and fact” regarding the Board’s
       conduct on November 13, 2013. Hofrichter further alleged that “[n]o notice of the Board’s
       actions *** w[as] personally delivered or mailed to the Plaintiff.” In his prayer for relief,
       Hofrichter sought a declaration that defendants had violated his rights, promotion to the
       position of sergeant, and back pay.
¶ 10       Defendants again moved to dismiss the amended complaint contending that the court
       lacked subject matter jurisdiction because the administrative review count was untimely and
       laches barred relief under that theory in any event. Alternatively, assuming the court had
       subject matter jurisdiction, defendants argued that Hofrichter waived his right to promotion
       under the 2009 roster by participating in determining his eligibility for the 2013 roster. Finally,
       defendants urged dismissal of all remaining counts because the sole remedy for challenging a
       final decision of the Board was administrative review. Following a hearing, the transcript of
       which is not in the record,1 the circuit court dismissed the case with prejudice. This appeal
       followed.

¶ 11                                              ANALYSIS
¶ 12       We review a circuit court’s order of dismissal de novo. Rodriguez v. Sheriff’s Merit
       Comm’n, 218 Ill. 2d 342, 349 (2006). Turning first to the counts for administrative review and
       declaratory judgment, defendants raised numerous bases for their dismissal, but we conclude
       that defendants’ reliance on laches is dispositive. (Although the circuit court did not specify in
       its written order the basis for its dismissal of the complaint in its entirety, we may affirm on any
       basis in the record. Moody v. Federal Express Corp., 368 Ill. App. 3d 838, 841 (2006)).
¶ 13       Laches is “ ‘the neglect or omission to assert a right which, taken in conjunction with a
       lapse of time and circumstances causing prejudice to the opposite party, will operate as a bar to
       a suit.’ ” Lee v. City of Decatur, 256 Ill. App. 3d 192, 195-96 (1994) (quoting People ex rel.
       Heavey v. Fitzgerald, 10 Ill. App. 3d 24, 26 (1973)). A successful laches defense requires a
       showing that plaintiff’s delay in bringing suit was unreasonable and that the delay prejudiced
       the defendant. Wabash County v. Illinois Municipal Retirement Fund, 408 Ill. App. 3d 924,
       933 (2011). Laches may be invoked to bar administrative review complaints (Christ Hospital
       & Medical Center v. Human Rights Comm’n, 271 Ill. App. 3d 133, 137 (1995)), as well as
       complaints for declaratory judgment, notwithstanding the fact that the complaint seeks
       monetary relief in the form of back pay (Coleman v. O’Grady, 207 Ill. App. 3d 43, 51-52
       (1990)).
¶ 14       In this case, Hofrichter delayed filing suit for one year after learning that he had not been
       promoted to sergeant. In civil service cases, an unexplained delay longer than six months is
       per se unreasonable. See, e.g., Hauser v. Chicago Park District, 263 Ill. App. 3d 39, 41 (1994);
       Kadon v. Board of Fire & Police Commissioners, 45 Ill. App. 2d 425, 430 (1964). Typically,
       this six-month time limit has been applied to cases involving public-sector employees who
       have been discharged and seek reinstatement as well as back pay; courts have explained that a
       delay longer than six months may “impair orderly procedures and work to the disadvantage of

           1
            Hofrichter includes a transcript of the hearing on the Board’s motion in an appendix to his brief,
       but because the transcript was not made part of the record, we cannot consider it. See Whittmanhart,
       Inc. v. CA, Inc., 402 Ill. App. 3d 848, 852 (2010) (“[T]he record on appeal cannot be supplemented by
       attaching documents to the appendix of a brief.”).

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       third parties.” Kadon, 45 Ill. App. 2d at 430. But we see no reason not to extend this logic to
       Hofrichter merely because he is seeking a promotion rather than reinstatement. Thus, because
       Hofrichter offers no reason for his 12-month delay, we conclude that the delay was
       unreasonable. See People ex rel. Cifaldi v. Wilson, 38 Ill. App. 2d 302, 305 (1962)
       (unexplained delay of 16 months was unreasonable and operated to bar suit); Coleman, 207 Ill.
       App. 3d at 51 (15-month delay unreasonable).
¶ 15       Turning then to the issue of prejudice, Hofrichter contends that defendants were not
       prejudiced because his failure to promptly file suit did not influence defendants’ conduct. Not
       so. Courts have found that prejudice to public entities is inherent in cases where an employee
       delays filing suit seeking back pay because if that employee is successful, the employer, if it
       has hired or promoted a third party, must pay the plaintiff for services already rendered by that
       third party and for which that party has already been compensated. Coleman, 207 Ill. App. 3d
       at 48; see also People ex rel. Casey v. Health & Hospitals Governing Comm’n, 69 Ill. 2d 108,
       115 (1977). In other words, prejudice results because the employer is “required to pay for the
       same services twice.” See Bill v. Board of Education of Cicero School District 99, 351 Ill. App.
       3d 47, 62 (2004); Lee, 256 Ill. App. 3d at 197.
¶ 16       In this case, the Board promoted two officers in lieu of Hofrichter and has paid their
       salaries since November 2013. Thus, it would suffer inherent prejudice if Hofrichter’s suit
       succeeded and it was required to compensate Hofrichter for the services those officers
       rendered over the past three years. For these reasons, we conclude that Hofrichter’s claims for
       administrative review and declaratory judgment were properly dismissed on the basis of
       laches.
¶ 17       This leaves us to consider Hofrichter’s section 1983 and section 1985 claims. Defendants
       contend that these claims were properly dismissed because Hofrichter’s sole cause of action is
       administrative review. In response, Hofrichter maintains first, that the Administrative Review
       Law (735 ILCS 5/3-101 et seq. (West 2014)) does not apply to his cause of action (despite
       having pled it), and second, that even if it did, it does not preclude him from seeking relief
       under federal law.
¶ 18       Because we agree with Hofrichter that the Administrative Review Law does not bar a
       cause of action under sections 1983 and 1985, we need not address the initial question of
       whether the Administrative Review Law applies at all. Nevertheless, we take this opportunity
       to note that several cases have held that the Administrative Review Law is applicable to all
       final decisions rendered by boards of fire and police commissioners constituted under the Act.
       See, e.g., Stover v. Board of Fire & Police Commissioners, 291 Ill. App. 3d 784, 790 (1997);
       Burgess v. Board of Fire & Police Commissioners, 275 Ill. App. 3d 315, 320 (1995); Mueller
       v. Board of Fire & Police Commissioners, 267 Ill. App. 3d 726, 732-33 (1994); Schickedanz v.
       City of O’Fallon, 248 Ill. App. 3d 746, 748 (1993). However, we believe that treating these
       cases as arising under the Administrative Review Law is problematic. To be sure, the Code
       provides that the Administrative Review Law applies to and governs “final administrative
       decisions” of the Board. 65 ILCS 5/10-2.1-17 (West 2014). But the Administrative Review
       Law defines “administrative decision” as “any decision, order or determination of any
       administrative agency rendered in a particular case, which affects the legal rights, duties or
       privileges of parties and which terminates the proceedings before the administrative agency.”
       735 ILCS 5/3-101 (West 2014). The reference to “proceedings before the administrative
       agency” suggests that the provisions of the Administrative Review Law are triggered by a

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       hearing at the agency level where matters of law and fact are adjudicated. See Lenard v. Board
       of Education of Fairfield Schools District No. 112, 26 Ill. App. 3d 188, 190 (1975); see also
       Chestnut v. Lodge, 34 Ill. 2d 567, 571-72 (1966). Here, not only was there no hearing on
       Hofrichter’s claim that he was entitled to a promotion, but there was no factual record or
       agency decision for the circuit court to review. Thus, we question whether a more appropriate
       vehicle for adjudicating claims such as these is a timely filed declaratory judgment action.
¶ 19       In any event, even assuming that the Administrative Review Law is applicable to
       Hofrichter’s claim, we conclude that he is nevertheless entitled to pursue a claim for relief
       under sections 1983 and 1985. Our holding finds support in Stykel v. City of Freeport, 318 Ill.
       App. 3d 839 (2001). In that case, the plaintiffs appealed the dismissal of their section 1983 and
       constitutional claims on the basis that they were preempted by the Administrative Review
       Law. Id. at 848. We agreed with the plaintiffs that dismissal was improper, reasoning that “an
       agency lacks the authority to question the validity or constitutionality of a statute.” Id. at
       849-50 (citing Board of Education of Rich Township High School District No. 227 v. Brown,
       311 Ill. App. 3d 478 (1999)). We explained that because the issues of whether the plaintiffs’
       civil rights were violated were not (and could not have been) before the administrative agency,
       they could not be the subject of administrative review. Id. at 850; see also Brown, 311 Ill. App.
       3d at 490 (trial court has original jurisdiction over constitutional issues raised in administrative
       review complaint). For the same reason, we conclude that Hofrichter’s federal claims, because
       they could not have been before the Board, were properly raised in the circuit court.
¶ 20       Defendants urge us to reach the contrary conclusion, relying on Marozas v. Board of Fire
       & Police Commissioners, 222 Ill. App. 3d 781 (1991), but that case is inapposite. There, the
       plaintiff filed a complaint for administrative review and declaratory judgment; he also alleged
       deprivation of his constitutional rights as well as a section 1983 violation. Id. at 784. We
       upheld the dismissal of the plaintiff’s section 1983 claim, but our decision rested on the fact
       that the pleadings “failed to allege anything resembling a cause of action for a section 1983
       claim.” Id. at 791. In addition, we found that because the plaintiff did not press his section 1983
       claim in the circuit court, it was waived. Id.
¶ 21       In contrast, here there is no suggestion that Hofrichter did not state a section 1983 and
       section 1985 claim. Nor did Hofrichter waive these claims before the circuit court. As such,
       Marozos does not compel us to conclude that Hofrichter’s claims were properly dismissed.

¶ 22                                         CONCLUSION
¶ 23       For these reasons, we affirm the dismissal of counts I through III of Hofrichter’s complaint,
       but reverse the dismissal of counts IV and V and remand for further proceedings consistent
       with this opinion.

¶ 24      Affirmed in part and reversed in part.
¶ 25      Cause remanded.




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