No. 3-03-0185

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE McDADE delivered the opinion of the court:

BACKGROUND

On August 16, 2002, Merisant received notice from PTAB that the Board of Review hadfiled a motion to dismiss its appeal for lack of jurisdiction by PTAB. The motion assertedMerisant filed a complaint with the Board of Review on November 6, 2001; on November 16,2001, the Board of Review notified Merisant a hearing was scheduled for December 20, 2001;that neither petitioner nor its representative appeared at the hearing; and no continuance wasgranted. The Board of Review cited section 16-160 of the Property Tax Code (35 ILCS 200/16-160 (West 2000)) which states, in pertinent part, as follows:

"In any appeal where the board of review *** has given written notice of thehearing to the taxpayer 30 days before the hearing, failure to appear at the board ofreview *** shall be grounds for dismissal of the appeal unless a continuance isgranted to the taxpayer. If an appeal is dismissed for failure to appear at a boardof review *** hearing, [PTAB] shall have no jurisdiction to hear any subsequentappeal on that taxpayer's complaint."

Manteno Community Unit School District No. 5 (Manteno) filed a request to intervene inMerisant's appeal proceedings as a taxing district with a revenue interest in the subject property. The school district subsequently moved to dismiss the appeal on the same grounds.

Merisant filed responses to those motions from which the following facts are taken. Merisant filed a complaint regarding the subject property and the Board of Review scheduled ahearing on the complaint for December 20, 2001, at 10:30 a.m. Merisant, through its attorney inSpringfield, Illinois, retained local counsel in Kankakee County to represent it at the hearing. Local counsel failed to appear due to a mistake by his secretary. Upon learning of the mistake,local counsel filed a document titled "Request to Reset Hearing" with the Board of Review andsupported his request with an affidavit. According to Merisant, local counsel was informed therequest would be presented to the Board of Review the following week. In response to localcounsel's letter following up on his unanswered request, the Board of Review, by letter datedMarch 7, 2002, sent local counsel a copy of the original notice of hearing. The Board of Reviewnever ruled on Merisant's request to reset the hearing. Also in its response, Merisant states theBoard of Review never issued a notice of final decision on assessed value (Notice of FinalDecision) regarding the subject property. Merisant claims it was waiting for that notice beforefiling an appeal with PTAB "as an exhaustion of remedies requirement," but "[a]fter it becameclear that the Board of Review was not going to issue such a Notice of Final Decision," Merisantfiled its appeal to PTAB.

PTAB, by letter to the Board of Review, asked whether the Board had issued a writtennotice to Merisant of the dismissal of its complaint for failure to appear at the scheduled hearing. If no such notice was sent, the Board of Review was to submit a brief explaining why the failureto give notice does not preclude dismissal of Merisant's appeal to PTAB. The Board of Reviewhad not sent such written notice to Merisant. In its brief, the Board of Review asserted "[t]hebasis of the Motion to Dismiss is [Merisant's] failure to comply with state statutory exhaustion ofremedies as required [by section 16-160 of the Property Tax Code (35 ILCS 200/16-160 (West2000))]." The Board of Review argued that "[s]ection 16-160 does not require that writtennotice of dismissal be issued. The [notice of hearing] from the Board of Review very plainlystated the consequences of failure to appear for the hearing." That notice read as follows:

"Failure to appear at the time and place indicated will forfeit your right tosuch a hearing before the Board of Review on this property for the year(s)indicated and the tentative calculation shown above will be fixed as the finalvaluation. Due to time constraints no continuance will be granted; however, ifcontacted soon after receipt of notice an earlier hearing MAY be scheduled uponrequest, by calling (815) 937-2995." (Emphasis in original.)

The Board of Review distinguished earlier PTAB decisions that found an exhaustion of remedieshad occurred when the Board of Review issued a written notice of dismissal. The brief concludedthat "[f]ailure to appear before the board of review for hearing after having been given thirty daysnotice of said hearing *** is fatal for establishing jurisdiction before [PTAB]."

PTAB dismissed Merisant's appeal, concluding it did not have jurisdiction. PTAB stated,in pertinent part, as follows:

"The record is clear that [Merisant] *** was given more than thirty days notice ofthe scheduled board of review hearing[,] *** counsel did not attend the scheduledhearing[,] and no continuance was granted. Additionally, the hearing notice ***was unambiguous in stating that the failure to appear *** [would] forfeit the ***right to a hearing *** and that the tentative valuation would be the finalassessment of the subject property[,] *** for all practical purposes a dismissal ofthe appellant's board of review complaint. Based on these facts [PTAB] finds thatit does not have jurisdiction over the appeal and grants the motions to dismiss***."

This appeal followed.

ANALYSIS

Final decisions of PTAB are subject to judicial review under the Administrative ReviewLaw. (735 ILCS 5/3-101 et seq. (West 2002)). Under this statute, the factual findings of anadministrative agency are prima facie true and correct and will not be disturbed by a reviewingcourt unless they are against the manifest weight of the evidence. Kankakee County Board ofReview v. Property Tax Appeal Board, 337 Ill. App. 3d 1070, 1074, 787 N.E.2d 865, 868 (2003). However, "'[the] court is not bound by the administrative agency's conclusions of law,'" whichare reviewed de novo. Kankakee County Board of Review v. Property Tax Appeal Board, 316 Ill.App. 3d 148, 151, 735 N.E.2d 1011, 1014 (2000), quoting Citizens for Preservation of KnoxCounty, Inc. v. Illinois Department of Mines & Minerals, 149 Ill. App. 3d 261, 264, 500 N.E.2d75, 77 (1986). PTAB's jurisdiction is a question of law (County of Knox ex rel. Masterson v.The Highland, L.L.C, 188 Ill. 2d 546, 555, 723 N.E.2d 256, 262 (1999)), and therefore thestandard of review is de novo.

Generally, review of a final decision of an administrative agency extends to all questions oflaw and fact presented by the record. Kankakee County Board of Review v. Property Tax AppealBoard, 305 Ill. App. 3d 799, 801-02, 715 N.E.2d 274, 276 (1999). The Property Tax Codecreated the county boards of review (35 ILCS 200/6-5 through 6-55 (West 2002)) but that articledid not expressly adopt the Administrative Review Law. (The Property Tax Code adopted theAdministrative Review Law for review of all final administrative decisions of the Department ofRevenue (35 ILCS 200/8-40 (West 2002)) and PTAB (35 ILCS 200/16-195 (West 2002)).

"When an administrative agency has rendered a final decision, the lawprovides that the courts may review the decision through either statutory orcommon law procedures [citation]. If the statute creating or conferring power onan administrative agency expressly adopts the Administrative Review Law, theprovisions of the statute govern every action to review that agency's decisions[citation]. If, as here, the Administrative Review Law is inapplicable, a party mayseek review of a final agency decision through a common law writ of certiorari[citation]. The differences which once existed between the statutory and commonlaw methods of reviewing decisions of administrative agencies have been all butlost, and now the nature and extent of judicial review is virtually the same underboth methods." Dubin v. Personnel Board of the City of Chicago, 128 Ill. 2d 490,497-98, 539 N.E.2d 1243, 1246 (1989).

The Administrative Review Law defines an administrative decision as one that "terminates theproceedings before the administrative agency." 735 ILCS 5/3-101 (West 2002). PTAB found theBoard of Review's action in this case to be "for all practical purposes a dismissal of [Merisant's]board of review complaint." It also found that the Board's action deprived it of jurisdiction overMerisant's appeal. If PTAB was correct, then the action of the Board of Review terminatedproceedings before the administrative agency. Although no writ of certiorari has been filed in thiscase, given the fact the Board of Review's actions effectively terminated proceedings before theadministrative agency, and the fact that "[t]he differences which once existed between thestatutory and common law methods of reviewing decisions of administrative agencies have beenall but lost" (Dubin, 128 Ill. 2d at 498, 539 N.E.2d at 1246), this court will review the actions ofthe Board of Review.

A. PTAB's Jurisdiction

Merisant first argues equity requires that its case be heard on the merits because theevidence shows that its property was overassessed. Merisant relies on its appraisal report andManteno's appraisal report, each of which shows an assessed value lower than that used by theBoard of Review. "[A]n administrative agency derives its jurisdiction from the enablinglegislation and lacks power to act beyond that grant." Villegas v. Board of Fire & PoliceCommissioners, 167 Ill. 2d 108, 126, 656 N.E.2d 1074, 1083 (1995). Merisant cites no authorityfor the proposition that equitable principles can overcome a statutory bar to the exercise ofjurisdiction. Further, section 16-180 of the Property Tax Code requires only that PTAB establish,by rules, "informal procedure[s] for the determination of the correct assessment of property." 35ILCS 200/16-180 (West 2002). Merisant cites no rule or other authority for the propositionPTAB would have to accept the appraisals it relies upon or what weight they would be given.

Next, Merisant argues PTAB has found it had jurisdiction to hear appeals from complaintsdismissed by the Board of Review for failure to present specific evidence in support of thecomplaint in violation of the Board of Review's rules. (The Board of Review has, in the past, moved to dismiss appeals before PTAB "where the taxpayer failed to present the evidencerequired" to the Board of Review for failure to exhaust administrative remedies.) Merisantcontends any distinction between cases where a complaint is dismissed for failure to presentevidence, and one where it is dismissed where the taxpayer failed to appear and the Board ofReview failed to reschedule hearing, is arbitrary and unreasonable. The basis for Merisant'sassertion that these situations are similar is its position that the Board of Review "has a history oftrying to deny due process to taxpayers who are trying to obtain property tax relief." Merisanturges, in essence, that PTAB should not allow its jurisdiction to be limited by the Board'swrongful efforts to deny taxpayers due process. Merisant argues "[a]dministrative agencies arebound by prior custom and practice in interpreting their rules and if a past practice is departedfrom, the action is arbitrary and unlawful." Merisant has included with its brief previous letterdecisions from PTAB making those rulings it relies upon for this argument.

Merisant's arguments regarding the Board's motives are unsupported by evidence. Norcan this court conclude the PTAB's earlier decisions were based on an effort to thwart theBoard's alleged attempt to deny taxpayers due process. PTAB's decision to reject the Board'smotion to dismiss where the Board claims a failure to exhaust administrative remedies is based inlaw. One of PTAB's letter decisions included in Merisant's brief cites to an Attorney GeneralOpinion addressing the issue of whether a board of review may establish rules requiring taxpayersto submit specific evidence before filing a complaint for review of an assessment. The AttorneyGeneral concluded "specific types" of evidence (specifically, an independent appraisal) could notbe required because to do so would place on unreasonable burden on the taxpayer's right to beheard. See 1991 Ill. Att'y Gen. Op. 87. Further, section 16-160 did not speak to dismissals forfailure to comply with the Board's rules requiring the presentation of specific evidence. Section16-160 does, however, speak clearly to dismissal for failure to appear, and states that the failureto appear "shall be grounds" to dismiss the appeal. Therefore, the situations are not analogousand Merisant's argument must fail.

Next, Merisant argues PTAB's rationale is arbitrary and unreasonable in that, wherePTAB found the notice of hearing was clear in explaining that a failure to appear would result inno consideration of the complaint and that Merisant's absence caused "for all practical purposes adismissal," a taxpayer would assume the Board would then issue a final decision and the taxpayerwould then be allowed to appeal to PTAB. Merisant's argument appears to be based on thosecases included in its brief where PTAB has found it had jurisdiction following a written dismissalby the Board of Review. Again, those cases involved the taxpayer's failure to present evidence incompliance with the Board's rules and not a failure to appear. Therefore, this argument must alsofail.

The plain language of the statute provides that the failure to appear at hearing shall begrounds for dismissal. Here, it is uncontroverted that Merisant failed to appear. Accordingly,PTAB's order is affirmed.

B. Failure To Set a New Hearing Date

Merisant alleges the Board of Review has enacted procedures in an attempt to "deny thetaxpayer the ability to have a fair hearing on the merits and to obtain a fair assessment" while ithas "acted reasonably and diligently to attempt to get the matter before the [Board of Review]." Merisant acknowledges that boards of review have authority to "make and publish reasonablerules" (35 ILCS 200/9-5 (West 2002)), but contends it is not reasonable to only allow acontinuance when the Board is contacted immediately after receipt of the notice. Merisant furtherargues that "there must also be some reasonable application of those rules, to provide any dueprocess to taxpayers." The rule at issue reads as follows:

"Failure to appear at hearing after notice shall result in the tentativevaluation becoming final and SHALL NOT BE CONSIDERED ANEXHAUSTION OF REMEDIES FOR PURPOSES OF APPEAL OROBJECTION." (Emphasis in original.)

Merisant argues the Board acted unreasonably because it presented legitimate grounds to reset itshearing and the Board had ample time to do so. The Board responds that "[t]he first opportunity[it] had to consider [Merisant's] request to reset the hearing was *** also the last day [it] hadscheduled hearings" and therefore a new hearing could not be scheduled.

Merisant cites Lake County Board of Review v. Property Tax Appeal Board, 140 Ill. App.3d 1042, 1051, 489 N.E.2d 446, 452 (1986), which held a reviewing court should interfere in anadministrative agency's application of its rules "only if the interpretation is plainly erroneous orinconsistent with long-settled constructions." Here, Merisant offers no other constructions of thisrule by either the Board of Review or another body for a determination of whether thisconstruction is inconsistent with "long-settled constructions." Further, the Board has applied therule precisely as it was written. Therefore, its application was not plainly erroneous.

Merisant also argues the Board "worked actively" to deny it due process, asserting theBoard acted in a "calculating manner" in ignoring its motion to reset hearing. However, as hasbeen shown, the Board simply acted in strict compliance with its rules. In Pierce v. IllinoisEducational Labor Relations Board, 334 Ill. App. 3d 25, 36, 777 N.E.2d 570, 580 (2002), theFirst District addressed petitioner's argument that the agency's rules requiring the filing ofexceptions within 21 days conflicted with his due process rights. The petitioner had failed tocomply with the rule. The court held:

"'[T]here is no due process violation in an administrative agency proceeding wherethe negligence or intentional conduct of a party results in the dismissal of itsclaim.' Pierce, 334 Ill. App. 3d at 36, 777 N.E.2d at 580, quoting Metz v. IllinoisState Labor Relations Board, 231 Ill. App. 3d 1079, 1093 (1992).

The court specifically found application of the rule was not arbitrary and its requirements werenot onerous. Nothing suggests a similar conclusion should not result here. Accordingly,Merisant's argument must fail.

CONCLUSION

Because we find (1) the rule of the Board of Review is not inherently unreasonable and itwas followed as published and (2) the Property Tax Appeal Board decided consistently with pastconstructions and decisions that it lacked jurisdiction, the order dismissing Merisant's appeal isaffirmed.

Affirmed.

LYTTON and SLATER, JJ., concur.