Van Milligen v. The Department of Employment Security

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-06-0098 Rel

Case Date: 05/22/2007

Preview:No. 2--06--0098 Filed: 5-22-07 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ FRANK VAN MILLIGEN, ) Appeal from the Circuit Court ) of McHenry County. Plaintiff-Appellant, ) ) v. ) No. 05--MR--163 ) THE DEPARTMENT OF EMPLOYMENT ) SECURITY, BRENDA RUSSELL, as ) Director of the Department of Employment ) Security, BOND DRUG COMPANY OF ) ILLINOIS, and WALGREENS COMPANY, ) Honorable ) Michael J. Sullivan, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE GILLERAN JOHNSON delivered the opinion of the court: The plaintiff, Frank Van Milligen, appeals, pro se, the trial court's dismissal of his complaint seeking the review of a decision of the Board of Review (the Board) of the Illinois Department of Employment Security (IDES). The trial court dismissed the plaintiff's complaint because he did not name the Board as a defendant in the complaint as required by section 3--107(a) of the Administrative Review Law (the Review Law) (735 ILCS 5/3--107(a) (West 2004)). On appeal, the plaintiff argues that the trial court erred by not allowing him leave to amend his complaint to name the Board as a defendant. We affirm. In February 2005, the plaintiff was terminated from his employment with Bond Drug Company of Illinois (Bond Drug) and Walgreens Co. (Walgreens) for violating their policy against

No. 2--06--0098 harassment and discrimination. The plaintiff applied for unemployment benefits, but on June 22, 2005, the Board issued a final decision finding him ineligible to receive benefits, for misconduct under section 602(A) of the Unemployment Insurance Act (the Act) (820 ILCS 405/602(A) (West 2004)). Section 1100 of the Act (820 ILCS 405/1100 (West 2004)) expressly adopts the Review Law (735 ILCS 5/3--101 et seq. (West 2004)) as the sole means to review any final decision of the Board. On July 27, 2005, 35 days after the Board's decision, the plaintiff filed a complaint for administrative review in which he named as defendants Bond Drug, Walgreens, the IDES, and Brenda Russell in her capacity as the Director of the IDES (the Director). The plaintiff did not name the Board as a defendant. Thereafter, the IDES and the Director moved to dismiss the plaintiff's action pursuant to section 2--619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619 (West 2004)), because his complaint did not name the Board as a defendant as required by section 3--107(a) of the Review Law. In response to the motion, the plaintiff argued that due process mandated application of equitable tolling principles, and he requested leave to amend his complaint to add the Board as a defendant. The trial court found these principles inapplicable and dismissed the plaintiff's complaint for lack of jurisdiction. The plaintiff filed a timely notice of appeal. On appeal, the plaintiff argues that he is entitled to amend his complaint pursuant to: (1) section 3--103 of the Review Law; (2) the "good faith" exception to the Review Law's requirements; (3) equitable tolling principles; (4) due process requirements; and (5) section 2--616(d) of the Code and Rule 15 of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 15). A motion to dismiss pursuant to section 2--619 of the Code admits the legal sufficiency of the plaintiff's complaint, but asserts an affirmative defense or other matter that avoids or defeats the

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No. 2--06--0098 plaintiff's claim. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). "Section 2--619 motions present a question of law, and we review rulings thereon de novo." DeLuna, 223 Ill. 2d at 59. "Under the Illinois Constitution, final judgments from the circuit courts are appealable as a 'matter of right,' but final administrative decisions are appealable only 'as provided by law.' Ill. Const. 1970, art. VI,

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