author: JUSTICE DiVITO JUSTICE SCARIANO,

text:
      In re ILLINOIS BELL SWITCHING STATION LITIGATION
    First District (2nd Division)
    No. 1—89—0974
    Opinion filed June 30, 1992.

      SCARIANO, J., dissenting.

      Joyce & Kubasiak, P.C., William J. Harte, Ltd., and Karla Wright, Ltd., all of Chicago, and DiTommaso & Berman, of Oak Brook (Edward T. Joyce, William J. Harte, and Karla Wright, of counsel), for appellants.
    Kirkland & Ellis, of Chicago (Frank Cicero, Jr., P.C., J. Andrew Langan, Susan P. Jordan, and Walter R. Lancaster, of counsel), for appellee.

      On October 23, 1992, the Appellate Court, First District, withdrew the July 30, 1991, opinion in case No. 1 — 89—0974, published at 218 Ill. App. 3d 224. A new opinion was subsequently filed June 30,1992.

   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiffs filed a complaint, framed as a class action representing customers of defendant Illinois Bell Telephone Company (Bell), against Bell, alleging economic damages as a result of a fire in Bell’s Hinsdale, Illinois, switching station which disrupted service for one month. Counts I and II of plaintiffs’ complaint alleged violations of the Illinois Public Utilities Act (the Act) (Ill. Rev. Stat. 1987, ch. 111⅔, par. 1 — 101 et seq.), count III alleged common law willful and wanton misconduct, count IV alleged breach of contract, and count V sought a declaratory judgment that a provision in Bell’s tariff did not bar their claims. The circuit court dismissed counts I through IV and granted summary judgment for Bell on count V. Plaintiffs appeal the court’s order pertaining to counts I, II, and V, raising as issues (1) whether a limitation of liability clause in Bell’s tariff bars recovery for economic losses resulting from interruptions in telephone service; and (2) whether the Moorman doctrine (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443) bars tort claims for economic losses due to alleged willful and wanton misconduct in actions brought pursuant to the Act. Ill. Rev. Stat. 1987, ch. 111⅔, par. 5-201.

The subject of the present litigation is Bell’s telephone switching station in Hinsdale, Illinois. Bell has five such switching stations, which route and direct telephone calls over particular geographic areas. The Hinsdale station services the western and southwestern suburbs of Chicago and is able to process 3.5 million calls per day.

In order to protect the computer equipment and cables housed in its Hinsdale station from fire, Bell equipped it with an automatic fire sensor which would detect the presence of fire. In addition, Bell equipped the Hinsdale station with a fire alarm which would sound if a fire was detected; the alarm was connected so that, if sounded, it would register in Bell’s office in Springfield, Illinois. Bell, however, did not connect the alarm to a local fire or police department. Further, although the Hinsdale station was automated and usually devoid of people, Bell did not install automatic firefighting equipment, but merely bolted manual extinguishers on the walls of the station.

On the afternoon of May 8, 1988, a fire started in Bell’s Hinsdale switching station. No one was in the station at this time; however, the fire alarm was triggered and, at 3:50 p.m., registered for nine consecutive minutes in Bell’s Springfield office. After the alarm sounded, Bell did not respond. The fire triggered a second alarm in Bell’s Springfield office at 4:20 p.m.; however, Bell again did not respond in any manner to the fire.

At 4:50 p.m., someone passing the Hinsdale station saw smoke coming from the building and alerted the fire department. Although the fire department arrived within minutes, the Hinsdale station was already consumed by fire and the contents of the station destroyed. Consequently, telephone service to the western and southwestern suburbs of Chicago ceased.

Because of the fire damage, telephone service to the area affected was disrupted for approximately one month; as a result of the disruption in service, numerous Bell customers filed class action lawsuits against Bell. The cases were eventually consolidated and an amended joint class action complaint was filed. Bell moved to dismiss the complaint for failure to state a cause of action, and the circuit court granted Bell’s motion.

Plaintiffs then filed a second amended joint class action complaint containing five counts: counts I and II contained allegations that Bell violated several provisions of the Act and the Illinois Commerce Commission rules, count III alleged willful and wanton negligence, count IV alleged breach of contract, and count V sought a declaratory judgment that the exculpatory language in Bell’s tariff did not bar the action. Bell again moved to dismiss the complaint and the circuit court granted Bell’s motion, dismissing counts I through IV and awarding summary judgment for Bell on count V. Plaintiffs appeal the court’s dismissal of counts I and II, and the award of summary judgment on count V.

I

Plaintiffs initially contend that Bell’s tariff, filed with the Illinois Commerce Commission (ICC) in accordance with the Act, is in contravention of the Act, and thus does not protect Bell from liability for interruption in service. Moreover, although the tariff, which describes the “terms and conditions of service,” preempts any contract expectancy from customers and contains an exculpatory clause which bars recovery for consequential damages due to interruptions in service, plaintiffs maintain that it is against public policy and should thus not bar plaintiffs’ claims.

In response, Bell contends that the tariff is not against public policy and, further, that the tariff, accepted by the legislature for 50 years, legally defines the limits of its liability for interruptions in service. Consequently, Bell maintains that the tariff bars plaintiffs’ claims.

The most recent tariff, like other tariffs filed by Bell going back several decades, lists among its general “regulations” a service interruption liability exclusion. That exclusion provides as follows:

“The liability of the Company for damages arising out of mistakes, omissions, interruptions, delays, errors or defects in transmission occurring in the course of furnishing service *** shall in no event exceed an amount equivalent to the proportionate charge to the customer for the period of service during which such mistake, omission, interruption, delay, error or defect in transmission occurs. No other liability shall in any case attach to the Company.” Illinois Bell Telephone Company Tariff, Illinois Commerce Commission No. 5, pt. 1, §5, par. 3.1.

Plaintiffs predicate their claims upon Bell’s duties pursuant to the Act and the ICC rules. The Act requires a public utility to provide “adequate, efficient,” and “reliable” service. (Ill. Rev. Stat. 1987, ch. 111⅔, pars. 8—101, 8—401.) The ICC rules require Bell to “adopt and pursue a maintenance program aimed at preventing service interruptions” and to “make reasonable provisions to meet emergencies resulting from *** fire[s].” (83 Ill. Adm. Code §§730.402(a), 730.408(a) (1985).) Plaintiffs assert that Bell, in failing to provide automatic fire-fighting equipment and in failing to respond to the alarms which sounded in its Springfield office, violated both the Act and ICC rules. Consequently, plaintiffs argue that Bell should not be able to escape liability by use of exculpatory language in contravention of both the Act and the ICC rules.

Neither the Act nor the ICC rules, however, specify whether the duty to provide entirely uninterrupted phone service is included in the description of adequate, efficient and reliable service. Rather, both the Act and ICC rules are silent on this point and address only general requirements of reliable and efficient service. It cannot be said that reliable and efficient service necessarily includes continuous, uninterrupted service.

Bell is nowhere charged with the duty to provide completely uninterrupted service, but rather, is required to provide “service and facilities which are in all respects adequate, efficient, reliable and environmentally safe and which *** constitute the least-cost means of meeting the utility’s service obligations.” (Ill. Rev. Stat. 1987, ch. 111⅔, par. 8—401.) Furthermore, in enacting the Act, the legislature intended that “[telecommunications services should be available to all people of the State of Illinois at just, reasonable and affordable rates and be provided as widely and economically as possible.” (Joint Committee on Public Utility Regulation (April 1985), at 21.) Consistent, then, with the legislature’s dictate that Bell provide cost-effective service, Bell is required to file a tariff “which describes the nature of the service, applicable rates and other charges, [and] terms and conditions of service.” Ill. Rev. Stat. 1987, ch. 111⅔, par. 13-501.

Moreover, while plaintiffs contend that the ICC has never approved of the tariff and Bell’s customers had no input as to the contents of the tariff, the ICC has expressed an opinion that interruption of service complaints are limited by Bell’s tariff. (Menco v. Illinois Bell Telephone Co., No. 84—0277 (Illinois Commerce Commission, Oct. 17, 1984).) Correspondingly, a reasonable interpretation of a statute by an agency charged with enforcement of that statute is entitled to great weight. (See Pielet Brothers Trading, Inc. v. Pollution Control Board (1982), 110 Ill. App. 3d 752, 756, 442 N.E.2d 1374.) Though a court of review is not bound by an agency’s interpretation of law, “the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when [the legislature] has refused to alter the administrative construction.” Red Lion Broadcasting Co. v. Federal Communications Comm’n (1969), 395 U.S. 367, 381, 23 L. Ed. 2d 371, 383-84, 89 S. Ct. 1794, 1802; see NLRB v. Hendricks County Rural Electric Membership Corp. (1981), 454 U.S. 170, 177, 70 L. Ed. 2d 323, 330, 102 S. Ct. 216, 222.

In Meneo, a Bell customer brought suit against Bell to recover damages when its computer was put out of service for 15 days due to a malfunction in Bell’s equipment. After an evidentiary hearing, the ICC explicitly implemented the tariff by applying the liability exclusion provision in dismissing Menco’s complaint which sought recovery of economic losses suffered as a result of the temporary service interruption. Menco v. Illinois Bell Telephone Co., No. 84— 0277 (Illinois Commerce Commission, Oct. 17, 1984).

Furthermore, in J. Meyer & Co. v. Illinois Bell Telephone Co. (1980), 88 Ill. App. 3d 53, 409 N.E.2d 557, and Sarelas v. Illinois Bell Telephone Co. (1963), 42 Ill. App. 2d 372, 192 N.E.2d 451, this court held that Bell’s duty to its customers is determined by the particular provisions of the tariff on file with the ICC.

In Sarelas, a Bell customer filed suit against Bell alleging that Bell disconnected his telephone for 2xlz hours, thereby violating its legal duty to provide service. In affirming the dismissal of the plaintiff’s complaint, the Sarelas court held that “the extent to which [Bell] owed plaintiff ‘a legal duty’ is determined by the particular provisions of the tariff on file with the commission; there is no contract in this case on which plaintiff can rely, nor are his allegations of a breach of duty sufficient to constitute a claim in tort. He complains simply of the disconnection of his telephone ***.” Sarelas, 42 Ill. App. 2d at 375.

In J. Meyer & Co., the plaintiffs sued for damages sustained in a theft at their warehouse when burglars circumvented an alarm system which was connected to Bell’s equipment. The plaintiffs alleged willful and wanton misconduct by Bell because Bell allegedly knew of other, similar burglaries and placed its junction box, with easily identifiable alarm wires, in an easily accessible location. In affirming the dismissal of the plaintiffs’ suit, the appellate court held that “the source of any duty of Illinois Bell, as a public utility, to its subscribers is only in the tariff as filed.” J. Meyer & Co., 88 Ill. App. 3d at 55.

Like plaintiffs in the instant case, the J. Meyer & Co. plaintiffs sought to circumvent the tariff by relying upon the statutory language requiring utilities to provide service “as shall promote the safety, health, comfort and convenience of its patrons, employees, and public” (Ill. Rev. Stat. 1975, ch. 111⅔, par. 32, now Ill. Rev. Stat. 1987, ch. 111⅔, par. 8—101). The court rejected this argument, holding that “a review of the relevant decisions discloses that section 32 [now section 8 — 101] does not require that a public utility render particular types of primary services” and that “the tariff is the sole source of any duty owed” by Bell. J. Meyer & Co., 88 Ill. App. 3d at 56.

Plaintiffs further contend that to allow Bell to immunize itself against gross negligence and willful misconduct is unreasonable and does nothing to further the public good. Plaintiffs maintain that the courts of several States are split on the question of whether a telephone company may limit its liability for defects in service. Both plaintiffs and Bell cite to numerous jurisdictions for the proposition that the tariff’s exculpatory language is either against or not against public policy when damages result from allegedly willful and wanton misconduct on the part of Bell. A review of the cases, however, discloses that none are precisely on point; rather, several deal with exculpatory clauses in private contracts and others address advertising in telephone directories.

Further, it should be noted that the apparent diversity of opinion seems to a great extent to be merely a function of the diversity of legislation on this question and on closely related matters existing in the various jurisdictions in which this question has been addressed. However, as Bell argues, those cases are neither binding nor persuasive, particularly where Illinois courts have upheld the tariff’s liability exclusion on an allegation of willful and wanton misconduct. J. Meyer & Co., 88 Ill. App. 3d 53.

Notwithstanding plaintiffs’ arguments that the tariff should not operate to bar claims for damages resulting from Bell’s willful and wanton misconduct, “[without the limitations on liability set forth by the tariff, [Bell] would be uniquely vulnerable to claims based on signal transmission defects which may result from a variety of causes, adversely affecting its ability to fulfill the public need for reasonable telephone service charges.” J. Meyer & Co., 88 Ill. App. 3d at 57.

We agree with the California Supreme Court when it stated, in Waters v. Pacific Telephone Co. (1974), 12 Cal. 3d 1, 7, 523 P.2d 1161, 1164, 114 Cal. Rptr. 753, 756:

“The theory underlying [decisions upholding the right of regulated utilities to limit their liabilities] is that a public utility, being strictly regulated in all operations with considerable curtailment of its rights and privileges, shall likewise be regulated and limited as to its liabilities. In consideration of its being peculiarly the subject of state control, ‘its liability is and should be defined and limited.’ [Citation.] There is nothing harsh or inequitable in upholding such a limitation of liability when it is thus considered that the rates as fixed by the commission are established with the rule of limitation in mind. Reasonable rates are in part dependent upon such a rule.”

See also Stern v. General Telephone Co. (1975), 50 Cal. App. 3d 538, 123 Cal. Rptr. 373.

If Bell’s liability were extended to all those who suffered pecuniary loss, its liability would become grossly disproportionate to its fault. We hold that prior Illinois authority and legislative intent require the conclusion that the exculpatory language in Bell’s tariff properly limits claims from disruption of service to a rebate of the costs for the missed service. Because “[w]here the legislature chooses not to amend a statute after a judicial construction, it will be presumed that it has acquiesced in the court’s statement of legislative intent” (Miller v. Lockett (1983), 98 Ill. 2d 478, 483, 457 N.E.2d 14), we find that the exculpatory language in the tariff, accepted for decades in Illinois, is neither in contravention of the Act or ICC rules nor against public policy, and thus, bars plaintiffs’ claims.

II

Plaintiffs next contend that Bell failed to satisfy its duties pursuant to the Act (Ill. Rev. Stat. 1987, ch. 111⅔, pars. 8—101, 8—104, 8—501). Plaintiffs maintain that the statute requires utilities to provide “adequate,” “reliable,” and “efficient” service and facilities; if the utility fails to provide that which is required, it is “liable *** for all loss, damages or injury caused thereby.” Ill. Rev. Stat. 1987, ch. 111⅔, pars. 5-201, 8-401.

In response, Bell contends that, although the Act requires it to provide adequate, reliable, and efficient service, the Act does not provide standards for determining whether a utility is in compliance and, thus, common law tort principles apply. Bell maintains that because plaintiffs’ purely economic losses, based on expectation damages, have no legally cognizable basis in tort, plaintiffs’ claims are barred by the Moorman doctrine. Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443 (“When the defect is of a qualitative nature and the harm relates to the consumer’s expectation that a product is of a particular quality ***, contract, rather than tort, law provides the appropriate set of rules for recovery”).

The applicable provisions of the Act under which plaintiffs base their claims provide that “[ejvery public utility shall furnish *** facilities *** in all respects adequate, efficient, just and reliable” (Ill. Rev. Stat. 1987, ch. 111⅔, par. 8 — 101) and that “[ejvery public utility shall provide service and facilities which are *** adequate, efficient, reliable” (Ill. Rev. Stat. 1987, ch. 111⅔, par. 8 — 401). Plaintiffs assert that Bell failed to satisfy its duties pursuant to the foregoing statutes and that its omission gives rise to their claims under section 5 — 201, which provides:

“In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, the public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment.” Ill. Rev. Stat. 1987, ch. 111⅔, par. 5—201.

Plaintiffs assert that, in providing a statutory remedy, the legislature has precluded the use of the Moorman doctrine barring tort claims for economic losses. Plaintiffs maintain that no court in Illinois has applied the Moorman doctrine to claims arising from statutory liability, although several courts have addressed Moorman’s applicability to the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 1—101 et seq.), the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.), and the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.). See Cirilo’s, Inc. v. Gleeson, Sklar & Sawyers (1987), 154 Ill. App. 3d 494, 507 N.E.2d 81; Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464.

In Warren, plaintiff home purchasers brought a claim against a real estate broker and an exterminator under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) for misrepresentation and nondisclosure with respect to termite infestation. The applicable statute provided a remedy for fraud, prohibiting the “use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression, or omission of any material fact, with intent that others rely on the concealment, suppression or omission,” and permitted a private damages action for violations of the statute. (Ill. Rev. Stat. 1981, ch. 121½, pars. 262, 270a.) The Warren defendants attempted to apply the Moorman doctrine to bar purely economic damages in a tort claim. The court, however, refused to apply Moorman, reasoning that

“Moorman dealt with damages compensable under common law principles of negligence, misrepresentation and strict liability. Here, by contrast, defendant *** was found liable for violation of a statute which specifically authorizes the award of actual damages ***. In view of this express statutory authorization, the availability of a remedy for actual damages to plaintiffs is beyond doubt.” Warren, 142 Ill. App. 3d at 579.

In Cirilo’s, the third-party defendant argued that Moorman supported his claim that he was not jointly subject to liability in tort pursuant to the Contribution Act because he could be liable to the original plaintiff only for economic losses. The Cirilo’s court found the third-party defendant’s reliance on Moorman to be misplaced because “Moorman did not adjudicate a contribution claim, nor does it purport to define ‘liability in tort’ for Contribution Act purposes; it speaks only to the initial plaintiff-defendant relationship.” Cirilo’s, 154 Ill. App. 3d at 497.

Although Bell acknowledges that no court has held that Moorman defeats a statutory cause of action, it nevertheless contends that the Act’s liability provisions are in derogation of the common law and, thus, common law principles, including Moorman apply. See Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 384 N.E.2d 323.

In Barthel, the plaintiffs sued for personal injuries and wrongful death resulting from a collision between a car and one of the defendant’s freight trains. The Barthel plaintiffs sued under the same provision of the Act as the present plaintiffs, alleging violations by the defendant of various regulations relating to the safety of railroad crossings. The Barthel plaintiffs made the same argument made by plaintiffs here: that section 5 — 201’s provision that a utility violating the Act “shall be liable” for “all” damages was conclusive as to whether a common law doctrine, in Barthel, contributory negligence, could preclude damages.

The Barthel court found that the Act is in derogation of the common law and thus tort principles limiting a plaintiff’s claims under the Act will not be abrogated unless “it plainly appears that the intent of the statute” is to do so. (Barthel, 74 Ill. 2d at 221.) The Barthel court further found that “statutes in derogation of the common law are to be strictly construed in favor of persons sought to be subjected to their operation. The courts will read nothing into such statutes by intendment or implication.” (Barthel, 74 Ill. 2d at 220.) Thus, the court held that the common law defense of contributory negligence would bar recovery, despite the Act’s provision of liability for “all *** damages” resulting from a violation of the Act. Barthel, 74 Ill. 2d at 224.

In the instant case, it does indeed appear that section 5 — 201, which allows recovery for “all” damages, is incompatible with Moor-man’s common law tort principles, which do not allow recovery for economic damages in tort actions. (Compare Ill. Rev. Stat. 1987, ch. 111⅔, par. 5—201, with Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443.) However, despite the apparent incompatibility, courts will not abrogate common law tort principles unless statutes “plainly” evidence legislative intent to do so. (Barthel, 74 Ill. 2d at 221.) It does not appear from the language of the Act that the legislature intended to abrogate the common law doctrines of Moorman and, thus, plaintiffs should not escape the doctrine prohibiting recovery for economic losses in tort actions simply because they assert their claims pursuant to the Act.

While it is true that section 5 — 201 imposes liability for all loss resulting from a utility’s violation of the Act and that common law doctrines do not allow recovery for all loss, the Act must be “strictly construed” in favor of Bell. (Barthel, 74 Ill. 2d at 221.) The legislature did not “plainly” evidence its intent to dispose of common law principles. (See Barthel, 74 Ill. 2d at 221.) The Moorman doctrine is no less compatible with the Act than is the defense of contributory negligence; yet, the supreme court in Barthel held that violations of the Act imposed liability not for “all” loss, but just for those losses for which the plaintiff was not contributorily negligent.

Although plaintiffs argue that Warren and Cirilo’s preclude the application of the Moorman doctrine to limit recovery, both cases are consistent with such an application. The Consumer Fraud Act was designed to provide remedies for damages to expectation interests in the context of fraudulent business practices. (See Warren, 142 Ill. App. 3d 550; Ill. Rev. Stat. 1981, ch. 121½, par. 261 et seq.) Moorman’s inapplicability to the Consumer Fraud Act is consistent with the Act’s purposes. Further, the Contribution Act focuses on the relationship between the parties and the third-party defendant; it does not address the initial plaintiff-defendant relationship, as does Moorman. Cirilo’s, 154 Ill. App. 3d 494, 507 N.E.2d 81.

We conclude that Moorman is not rendered inapplicable merely because plaintiffs assert a statutory cause of action. Plaintiffs essentially seek damages because their economic affairs were disrupted. These types of damages are plainly not recoverable in tort; similarly, they should not be recoverable pursuant to the Act. See Barthel, 74 Ill. 2d 213, 384 N.E.2d 323.

We note that the Illinois Supreme Court has recently addressed Moorman’s applicability to the rendering of legal services. (Collins v. Reynard (1992), 154 Ill. 2d 48.) We are aware, however, that the supreme court has granted rehearing in Collins and we expect that, at the very most, the court might determine that Moorman is not applicable to legal malpractice claims.

In the alternative, plaintiffs argue that, if Moorman does apply, the sudden and dangerous occurrence exception allows their claims. Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 546 N.E.2d 580 (Moorman doctrine does not apply where damage to the defective product was due to a sudden and dangerous occurrence).

In response, Bell correctly asserts that any sudden and dangerous occurrence resulted in damage to its facility and not to plaintiffs’ property. Rather, it was only plaintiffs’ expectations of service which were affected due to the damage to Bell’s equipment. See also American Drug Stores, Inc. v. A T &T Technologies, Inc. (1991), 222 Ill. App. 3d 153, 583 N.E.2d 694.

Based on the foregoing, we find that the Moorman doctrine prohibits plaintiffs’ claims for purely economic losses and, further, that Bell’s tariff, which excludes recovery for expectation damages due to interruptions in service, bars plaintiffs’ claims.

Affirmed.

McCORMICK, J., concurs.

JUSTICE SCARIANO,

dissenting:

I most respectfully dissent.

Plaintiffs who live and/or have businesses or practice their profession in an area for which Bell is capable of processing up to 3x/2 million telephone calls per day, charge in counts I and II of their complaint that Bell violated several provisions of the Public Utilities Act (PUA) (Ill. Rev. Stat. 1987, ch. 111⅔, par. 5 — 201) and certain Illinois Commerce Commission rules which resulted in a fire that totally destroyed the Hinsdale switching station and left plaintiffs without telephone service for one full month. Count II further alleges that these violations were wilful, for which the statute explicitly provides a remedy. Count V seeks a declaratory judgment that Bell’s tariff does not bar plaintiffs’ claims.

The trial court dismissed counts I and II for failure to state a cause of action, and granted Bell summary judgment on count V. Accordingly, we must determine as a pure matter of law whether Bell’s tariff bars its liability for wilful violations of the PUA, and whether the doctrine enunciated in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, applies to private causes of action brought under the PUA.

The majority’s holding that Bell’s tariff does indeed bar its liability for the wilful and wanton wrongs it inflicts upon consumers directly contravenes the clear and express provisions of section 5 — 201 of the PUA which make Bell liable to plaintiffs for “all loss [or] damages,” caused by Bell’s violation of the PUA; and if the violation is wilful, “the court may in addition to the actual damages, award damages for the sake of example and by way of punishment.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 111⅔, par. 5 — 201.) The majority holds, for all intents and purposes, that a unilateral, ministerial act of a public utility, i.e., the filing of a tariff, in combination with the passivity of the Commerce Commission, is all that is needed in Illinois in order for the regulated to become the regulators! We are accordingly treated to the unprecedented and inexplicable phenomenon of having a plain and unambiguous legislative enactment nullified by Bell’s tariff and the inscrutable administrative procedures of the Illinois Commerce Commission. And while Bell and the majority insist on labeling the provision in Bell’s tariff a “limitation” of its liability, it is impossible to regard it as anything but a complete bar, given that the “foregoing” of a charge for services not rendered can hardly be deemed a “limitation of liability” in any sense of the term. I note that the trial court also came to that conclusion.

The majority claims to find support in a statement contained in the case of Waters v. Pacific Telephone Co. (1974), 12 Cal. 3d 1, 7, 523 P.2d 1161, 1164, 114 Cal. Rptr. 753, 756, in which the California Supreme Court, with all of the aplomb of the majority in this case, adopted the utility’s “limitation” of liability canard. Yet, neither Waters, nor the majority in the case at bar enlightens us in any way as to how or why mere administrative inaction, or action, for that matter, can overcome the plain meaning of a statute.

Moreover, neither Sarelas nor Meyer is relevant to the issue involved in this case, namely, whether Bell can unilaterally exculpate itself from liability, for its wilful misconduct committed in violation of the clear and unambiguous provisions of section 5 — 201 of the PUA.

The majority’s reliance on Pielet Brothers, Red Lion Broadcasting and Hendricks County is especially inapt inasmuch as the opinions in all three cases recognize that courts give deference to an interpretation of a statute by the agency charged with its administration and enforcement only if the statute is ambiguous, which is emphatically not the case here. I respectfully submit that the majority here simply suffers from an incredible blind spot that prevents it from acknowledging that section 5 — 201 is not an ambiguous law. Our supreme court has consistently held that although “the construction placed on a statute by a departmental agency is entitled to great weight in determining its validity or invalidity[,] *** courts must not be deprived of their judicial functions, nor can we allow a governmental agency to extend the operation of a statute by administrative regulation.” (P.H. Mallen Co. v. Department of Finance (1939), 372 Ill. 598, 601. Accord Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 153-54; Ruby Chevrolet, Inc. v. Department of Revenue (1955), 6 Ill. 2d 147, 151 (“A statute which is being administered may not be altered or added to by the exercise of a power to make regulations thereunder”).) And if Federal law is wanted, I refer the majority to United States v. Cartwright (1973), 411 U.S. 546, 550, 36 L. Ed. 2d 528, 533, 93 S. Ct. 1713, 1716, where it is held that administrative agency pronouncements are not binding on the courts, as the deference accorded an agency’s interpretation of a statute does not displace judicial analysis.

The majority also holds that the Moorman doctrine bars plaintiffs’ claims, noting that “Moorman is not rendered inapplicable merely because plaintiffs assert a statutory cause of action.” (234 Ill. App. 3d at 468.) Yet the legislative intent underlying section 5 — 201 of the PUA is explicitly to allow recovery for “all loss, damages or injury” caused by any wrongful act or omission on the part of a public utility. (Emphasis added.) It would be difficult to imagine how a statute could be made any clearer.

“The primary rule in the interpretation and construction of statutes is that the intention of the legislature should be ascertained and given effect. [Citation.] The legislative intent should be sought primarily from the language used in the statute. Where the language of the act is certain and unambiguous the only legitimate function of the courts is to enforce the law as enacted by the legislature. [Citations.] It is never proper for a court to depart from plain language by reading into a statute exceptions, limitations or conditions which conflict with the clearly expressed legislative intent. [Citations.]” (Emphasis added.) (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 84.)

“Although Bell acknowledges that no court has held that Moorman defeats a statutory cause of action, it nevertheless contends that the Act’s liability provisions are in derogation of the common law and, thus, common law principles, including Moorman apply. See Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 384 N.E.2d 323.” 234 Ill. App. 3d at 467.

After a discussion of Barthel, and in reliance on it, the majority states, “While it is true that section 5 — 201 imposes liability for all loss resulting from a utility’s violation of the Act and that common law doctrines do not allow recovery for all loss, the Act must be ‘strictly construed’ in favor of Bell. (Barthel, 74 Ill. 2d at 221.) The legislature did not ‘plainly’ evidence its intent to dispose of common law principles. (See Barthel, 74 Ill. 2d at 221.)” (234 Ill. App. 3d at 468.) The Barthel court held that since section 5 — 201 of the PUA was in derogation of the common law, “tort principles limiting a plaintiff’s claims under the act will not be abrogated unless ‘it plainly appears that the intent of the statute’ is to do so.” 234 Ill. App. 3d at 467, quoting Barthel, 74 Ill. 2d at 221.

I have not the organs to perceive that existing law requires the conclusion that the majority reaches in this case: that section 5 — 201 of the PUA and Moorman combine to confer on Bell the immunity we accord only to the sovereign; for immunity is incontestably the result when our courts, in effect, refuse to entertain an action created by the legislature and relegate the plaintiffs to seeking their relief in contract, but the “remedy” in contract turns out to be an illusory one, because here the damages, as we have seen, are “limited” to no damages at all as a consequence of Bell’s nullification of section 5— 201 which is quaintly nestled in a “tariff.” Shades of the regulated becoming the regulators!

Moreover, when we consider that deterrence is indisputably an essential element of our law, whether it be tort or contract, we may very well be entitled to wonder how it is fostered or advanced by the holding of the majority. In an article published in The New York Times of February 13, 1992, under the caption of “Businesses Criticize FCC on Phone Service Disruptions,” it is reported that in the third quarter alone of 1991, there were 204 “significant switching failures” (the type of occurrence complained of by plaintiffs in this case) on the part of seven “Baby Bells,” including the parent company of Illinois Bell, the defendant herein. The article also points out that business groups complain that our regulatory agencies are “failing to protect the reliability of the nation’s telephone networks.” The source of the information was given as the Federal Communications Commission.

Bell argues, however, that to hold it liable in negligence would result in damages that could be only speculative, or unknown and unlimited in scope, and grossly disproportionate to its fault. Yet, it cannot be successfully contended that the legislature naturalized section 5 — 201 into the PUA merely as a sterile attempt at lawmaking. Surely, the General Assembly must be conclusively presumed (Certain Taxpayers, 45 Ill. 2d 75) to mean what they so plainly stated in that provision, which the majority sets forth in full in its opinion; nor can we assume that the legislature was oblivious to the prospect that the damages which could result from the remedy it was affording to the customers of public utilities could be considerable. Thus, the General Assembly made actionable all acts of commission or omission resulting in a violation of the PUA or of the rules, regulations, orders or decisions of the Illinois Commerce Commission, whether those acts be negligent or wilful, and mandated that recovery be made available “for all loss, damages or injury caused thereby or resulting therefrom” (emphasis added), including punitive damages.

Moreover, our supreme court on more than one occasion has found it necessary to remind defendants who advance the argument made by Bell here that, “it is not the privilege of him whose wrongful act caused the loss to hide behind the uncertainties inherent in the very situation his wrong has created.” (Elliott v. Willis (1982), 92 Ill. 2d 530, 540-41, citing Smith v. City of Detroit (1972), 388 Mich. 637, 202 N.W.2d 300.) And in Zostautas v. St. Anthony De Padua Hospital (1961), 23 Ill. 2d 326, 334-35, the court recalled the words of that venerable jurist, Benjamin Cardozo, in Van Beeck v. Sabine Towing Co. (1937), 300 U.S. 342, 350-51, 81 L. Ed. 685, 690, 57 S. Ct. 452, 456, that “[i]t would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied.” At the very least, Bell ought not to be heard to complain about the difficulties of plaintiffs’ proof, for it is their burden, and not Bell’s, to establish the existence and extent of their damages. Besides, this case is before this court, as it was before the trial court, on motions which concede the well-pleaded fact of damages. Nor should we lose sight of the fact that it is still traditional in our law that after hearing any contrary evidence and weighing the facts, the trier of fact bears the ultimate responsibility of deciding whether to award damages.

I would reverse the judgment of the circuit court. At the very least, I would expect that we attend the result in Collins v. Reynard (1992), 154 Ill. 2d 48, presently pending on rehearing in the Illinois Supreme Court. I decline to join the majority in its prognostications as to what the court “might determine” in Collins; there are rigors enough in applying Moorman in its present state. It has not been brought to my attention that the science of hermeneutics has been extended to apply to what has yet to be revealed.

Accordingly, I dissent.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    SHIRLEY COOPER et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Defendant-Appellant.
    Fourth District
    No. 4—92—0046
    Opinion filed September 3, 1992.
    Rehearing denied October 6, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Carl R. Draper and Charles S. Watson, both of Feldman & Wasser, of Springfield, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Following a public hearing, defendant Illinois Department of Children and Family Services (DCFS) concluded the license of plaintiffs Shirley and William Cooper (Coopers) to operate a day-care center should be revoked because they “constantly, steadily, repeatedly, and continually violated the Department’s licensing standards.” The Coopers appealed that conclusion and, upon administrative review, the circuit court reversed, finding (1) DCFS lost jurisdiction over the Coopers’ hearing regarding the revocation of their center’s license because it failed to set the hearing within the statutorily prescribed time; (2) DCFS failed to follow its own regulations, thereby denying the Coopers due process; and (3) DCFS’s final administrative decision was against the manifest weight of the evidence. DCFS appeals, contending: (1) section 9(a) of the Child Care Act of 1969 (Act) (Ill. Rev. Stat. 1989, ch. 23, par. 2219(a)), which requires that a day-care license revocation hearing be held within 30 days of the date of the postmark of the notice of hearing, is directory; (2) DCFS did not violate its own regulations regarding complaints and investigations into violations of day-care licensing standards; (3) the Coopers were not denied due process of law by its alleged failure to follow its own regulations; (4) section 13 of the Illinois Administrative Procedure Act (Administrative Procedure Act) (Ill. Rev. Stat. 1989, ch. 127, par. 1013) does not require the proposed decision be served upon the Coopers, thereby allowing them an opportunity to object and respond to that decision; and (5) the decision to revoke the Coopers’ license to operate a daycare center was not against the manifest weight of the evidence. We reverse.

The Coopers own and operate the Little Moppet Day Care Center in Springfield, Illinois. The Coopers applied for a license to operate the day-care center in July 1987 and they operated Little Moppet under a permit issued by DCFS between the date of the application and the effective date of their license. On January 26, 1988, DCFS received an anonymous complaint regarding Little Moppet. The following day, a DCFS licensing representative made an unannounced monitoring visit to Little Moppet and found several licensing violations including inadequate lunches, improper mixing of children of different ages, cleaning supplies accessible by the children, and a child being left unattended. DCFS sent Mrs. Cooper a follow-up letter detailing the results of this visit, as well as of another such visit conducted on February 8, 1988, when similar violations were found. After a meeting between DCFS and the Coopers, DCFS sent the Coopers a letter dated February 26, 1988, stating that the violations cited on January 27, 1988, and February 8, 1988, had been corrected and the Coopers were now in compliance with the licensing standards.

On July 6, 1988, a DCFS licensing representative made an unannounced monitoring visit to Little Moppet. Several licensing violations were noted, including improper staff/child ratios, children being left unattended, uncovered electrical outlets, scissors left within reach of the children and an inadequate supply of toys. These violations were reported to Mrs. Cooper through a letter dated July 18, 1988. These violations were corrected and DCFS subsequently issued the Coopers a license to operate Little Moppet.

On December 5, 1988, and January 20, 1989, a licensing representative made unannounced monitoring visits to Little Moppet. Again, similar violations regarding the staff/child ratios and improper mixing of children of different ages were found. After each visit, a follow-up letter detailing these violations was sent to Mrs. Cooper. Both letters expressed DCFS’s concern about the numerous violations and continuing noncompliance with the licensing standards.

DCFS received an anonymous complaint from a parent regarding Little Moppet on December 1, 1989. This complaint noted there was only one staff member watching 10 infants and only two staff members for approximately 30 to 40 children. The complaint described the atmosphere as “chaotic.” A licensing representative visited Little Moppet that day and noted children were left unattended as well as staff/children ratio violations. On December 28, 1989, a follow-up letter was sent to Mrs. Cooper regarding these violations. This letter informed Mrs. Cooper that because of the violations found, the anonymous complaint was substantiated. This letter also informed the Coopers that DCFS would be making future monitoring visits to confirm compliance with the licensing standards.

Additional monitoring visits were made on December 6, 1989, January 26, 1990, and March 20, 1990; on each occasion, violations of the staff/child ratio requirements were found. However, Little Moppet was found to be in compliance with the standards on visits on February 2,1990, February 20,1990, and March 9,1990.

On May 21, 1990, DCFS sent the Coopers a letter indicating its intent to revoke their license to operate Little Moppet. The letter indicated this decision was based on a recent licensing investigation and a determination that the Coopers had failed to maintain the minimum licensing standards prescribed by DCFS.

Between the date of the letter of intent to revoke the license and the date of the public hearing, DCFS made approximately 13 more monitoring visits to Little Moppet. Little Moppet was found to be in compliance on July 6,1990, and July 11,1990.

Howard Powell, the last licensing representative for Little Moppet, made the majority of the visits during this time period. Powell made visits on the following days with these findings:

(1) September 20, 1990: two uncovered electrical outlets next to the crib; nine toddlers being supervised by one worker.
(2) October 1, 1990: unanchored swingset on playground; 12 three- to five-year-old children in a room with capacity for 10; nine infants and toddlers in a room with capacity for five.
(3) October 9, 1990: no director or director qualified person on the premises; 10 infants and 1 toddler being supervised by one staff member; uncovered electrical outlets.
(4) October 15, 1990: no qualified director in charge; uncovered electrical outlet.
(5) October 29, 1990: five toddlers and one infant being cared for by one staff member; children out of visual range of staff; incomplete medical records; no drinks served with lunch meal; unmarked cribs and cots; failure to clean diaper area between diaper changes; unanchored swingset on playground; cot not sanitized after child urinated on it; improper mixing of children of different ages.
(6) November 7, 1990: six toddlers being supervised by one teacher; one high chair with a hole in it; unlabeled milk bottles in refrigerator; weekly menus not posted.
(7) November 13, 1990: workers not signed off on log after giving children medication; 11 children in three- to four-year-old age group being cared for by only one worker.

Marilyn Thornhill, the licensing supervisor for the Springfield licensing team, along with another licensing representative, visited Little Moppet on December 7, 1990. Certain violations were noted, including improper lighting, laundry detergent and fabric softener accessible to children, an unlocked medicine box, unlabeled and open food in the refrigerator, and remodeling being done without notice to DCFS. On December 28, 1990, a licensing representative visited Little Moppet and documented certain violations, including improper mixing of children of different ages, improper staff/child ratios and inadequate lighting.

Finally, after the Coopers contacted Senator John Davidson and Jess McDonald, the Director of DCFS, regarding what they considered to be harassment of them by DCFS, an independent assessment of Little Moppet was ordered by the DCFS central office. This independent assessment was conducted on December 11, 1990, by Beverly Howie, license administrator for DCFS of the Marion region, and Cynthia Yusko, a licensing representative from that region. They visited Little Moppet and found it to be not in compliance in critical areas related to the care and protection of children. These areas included staff qualifications, the child/staff ratio and group size. This investigation also revealed incomplete medical files on the children with regard to consent forms and appropriate enrollment forms.

On May 21, 1990, DCFS notified the Coopers of its intent to revoke their license to operate Little Moppet. The Coopers were informed they had 10 days to request a public hearing as well as to request a written statement of the charges which formed the basis of the action. The Coopers responded on May 29, 1990, requesting a public hearing and written statement of the charges against them. The Coopers were then informed by DCFS that they would be notified regarding the date of the hearing. On November 15, 1990, the Coopers were contacted by hearing officer Matthew E. Franklin, who told them that the date for the public hearing would be January 8, 1991. The Coopers were informed of their rights, the various procedures for the hearing, and they received a written statement of the charges concerning the alleged licensing violations on this date.

On January 8, 1991, the public hearing was held. Each of the licensing representatives that had made visits to Little Moppet during the past three years testified as to what he or she had witnessed. At the hearing, Robert Harris, the DCFS licensing administrator for the Springfield region, testified that following the monitoring visits in August 1988, April 1989, and January 1990, informal licensing review sessions were held with the Coopers. At each of these informal reviews, the Coopers were notified about the various recurring problems at Little Moppet especially with regard to the child/staff ratios and the improper mixing of children of different age groups.

Mrs. Cooper appeared pro se at the hearing. She testified that she perceived most of the problems with the licensing standards were due to different interpretations of the rules by the various licensing representatives. She characterized the facility as a clean, nice place and believed that anybody that came in would be willing to put his or her children in her day-care center. She testified that she would try to abide by the rules as best as she could. Finally, Mrs. Cooper testified that she did not believe any of the violations listed were severe enough to revoke her license. She felt her day-care center was very safe and the staff was very friendly and very conscientious about the children.

On May 1, 1991, the Director of DCFS issued her decision revoking the Coopers’ license. The Director indicated she had reviewed the recommendation of the hearing officer based on the testimony, evidence presented and the facts of the case, as he had determined from the public hearing. The hearing officer recommended the revocation of the license and the Director agreed. The Coopers were thus notified that their license was revoked and informed of their right to seek judicial review within 35 days of the final administrative decision.

On May 14, 1991, the Coopers filed a complaint for administrative review in the circuit court. A hearing was held before the circuit court on October 1, 1991. On October 22, 1991, the court entered an order finding that DCFS’s order revoking the Coopers’ license was void since DCFS had failed to follow the mandatory provisions of section 9(a) of the Act regarding the time for holding a hearing and serving the statement of charges upon the licensee. The circuit court also found DCFS failed to follow certain of its regulations contained within the Illinois Administrative Code, violated the Coopers’ due process rights during the investigation in 1990 and at the subsequent hearing to revoke the license, and that its decision to revoke the Coopers’ license was against the manifest weight of the evidence. After its motion to reconsider was denied, DCFS filed its notice of appeal on January 13,1992.

DCFS first contends the circuit court erred in concluding it lost jurisdiction over the hearing by failing to hold it within 30 days of the date of the postmark on the notice of hearing. DCFS suggests the provision of section 9(a) of the Act regarding the 30-day requirement in which a hearing on a license revocation must be held is directory rather than mandatory, and thus the failure to comply with this requirement did not cause it to lose jurisdiction over the revocation proceeding.

Section 9(a) of the Act provides:

“Upon written request by the licensee, the Department shall furnish such written statement of charges, and, at the same time, shall set the date and place for the hearing. The charges and notice of the hearing shall be delivered by registered mail with postage prepaid, and the hearing must be held within 30 days, dating from the date of the postmark of the registered mail, except that notification must be made at least 15 days in advance of the date set for the hearing.” Ill. Rev. Stat. 1989, ch. 23, par. 2219(a).

The date of the postmark on the notice of hearing is not apparent from this record. However, the parties have agreed, for purposes of argument, that the postmark was dated the same day as the notice, November 15, 1990. Thus, as the hearing was held on January 8, 1991, the hearing was not held within 30 days of the postmark of the notice of hearing. The question then becomes whether subsection (a) of section 9 of the Act is mandatory, thus leaving DCFS without jurisdiction to conduct the hearing, or merely directory.

There is no universal formula for distinguishing between mandatory and directory provisions. Rather, whether a particular statutory provision is mandatory or directory depends upon the intent of the legislature, which is ascertained by examining the nature and object of the statute and the consequences which would result from any given construction. (Pullen v. Mulligan (1990), 138 Ill. 2d 21, 46, 561 N.E.2d 585, 595.) A mandatory provision in a statute is one which the omission to follow renders the proceeding to which it relates illegal and void, while a directory provision is the one the observance of which is not necessary to the validity of the proceeding. (Shipley v. Stephenson County Electoral Board (1985), 130 Ill. App. 3d 900, 902, 474 N.E.2d 905, 907.) Proper interpretation of the provision cannot simply be based on its language, but it must be grounded on the nature, objects, and the consequences which would result from construing it one way or another. Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21, 373 N.E.2d 1332, 1335.

Ordinarily a statute which specifies the time for the performance of an official duty will be considered directory only where the rights of the parties cannot be injuriously affected by failure to act within the time indicated. However, where such statute contains negative words, denying the exercise of the power after the time named, or where a disregard of its provisions would injuriously affect public interests or private rights, it is not directory but mandatory.

“The general rule announced in People v. Jennings, 3 Ill. 2d 125, 127, is applicable here: ‘There are, undoubtedly, many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such, generally, are regulations designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of the parties interested cannot be injuriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated.’ ” Carrigan v. Illinois Liquor Control Comm’n (1960), 19 Ill. 2d 230, 233-34, 166 N.E.2d 574, 576.

Where, as here, a statute does not provide sanctions for failure to comply with the provision in dispute, the requirement in the statute may be interpreted as being merely directory rather than mandatory. (Peoples Independent Party v. Petroff (1989), 191 Ill. App. 3d 706, 708, 548 N.E.2d 145, 146.) If a provision of a statute states the time for performance of an official duty without any language denying performance after a specified time, it is directory. However, if the time period is provided to safeguard someone’s rights, it is mandatory, and the agency cannot perform its official duty after the time requirement has passed. Grove School v. Department of Public Health (1987), 160 Ill. App. 3d 937, 941, 513 N.E.2d 973, 976.

In Grove School, plaintiff was a private, not-for-profit school which was licensed and regulated by the Nursing Home Care Reform Act of 1979 (Nursing Home Act) (see Ill. Rev. Stat. 1985, ch. 111½, par. 4151 — 101 et seq.). An incident occurred between a staff member and a resident which resulted in an investigation and conclusion that a violation of the Nursing Home Act had occurred. Plaintiff requested a hearing on the matter pursuant to section 3 — 704 of the Nursing Home Act, which stated that upon request, the Department of Public Health “shall commence the hearing within 30 days of the receipt of request for hearing.” (See Ill. Rev. Stat. 1985, ch. 111½, par. 4153— 704(c).) The hearing was not held within the prescribed time limitation and plaintiff argued on appeal that the administrative decision concluding there was a violation of the Nursing Home Act was void because the hearing was not held within 30 days since the provision requiring such was mandatory.

The court rejected this argument, first noting that there was no negative language denying performance if the time requirement was not met. The court further noted that the rights of the persons whom the statute was intended to protect would not be adversely affected by the delay. The court stated the purpose of the Nursing Home Act was to protect nursing home residents from abuse and that these people’s rights would be more adversely affected if defendant was unable to address charges of abuse because of a mandatory interpretation of the statute which would require dismissal of the proceeding. Thus, defendant did not lose jurisdiction over the hearing as the statute was given a directory interpretation. Grove School, 160 Ill. App. 3d at 941, 513 N.E.2d at 977.

Although different acts are involved and the statute in Grove School used the word “shall,” we find the rationale used there persuasive. The Act provides the requirements and standards for the licensing and operation of day-care centers. We believe a purpose of the Act is to protect the children placed in day-care centers by a strict regulation of those facilities. Here, by allowing a mandatory interpretation of this provision, thereby depriving DCFS of jurisdiction over the hearing regarding the revocation of the license, the persons whom the statute was intended to protect, children, will be adversely affected. A delay in the revocation proceedings would mean a continued operation of the day-care center by the licensee, which could place the children in potential danger. Moreover, there is no negative language in the statute denying performance by DCFS for failure to comply with the statute. It appears that this provision is one that merely directs a manner of conduct for the guidance of the officials and specifies the time for performance of an official duty. Thus, since there is no negative language denying performance, and the persons the statute was intended to protect could be placed in danger by a mandatory interpretation, we hold this provision is directory. Thus, DCFS did not lose jurisdiction when it failed to hold the hearing within 30 days of the postmark of notice of the hearing.

DCFS next contends that the circuit court erred in finding that it violated the provisions of its own administrative rules. Specifically, the circuit court found DCFS violated sections 383.7(b) and 383.8(a) through (d) of title 89 of the Illinois Administrative Code (Code) (89 Ill. Adm. Code §§383.7(b), 383.8(a) through (d) (1985)). These violations were said to have occurred between June 8, 1990, and December 7,1990.

Section 383.7(b) of title 89 of the Code provides that for all complaints, other than those alleging abuse or neglect to the children, alleging licensing standards violations, DCFS is required to commence an investigation within two business days of receipt of the complaint. A “complaint” is defined as any report to DCFS alleging a violation of the laws and rules relating to licensing of child-care facilities. (See 89 Ill. Adm. Code §383.2 (1985).) An “investigation” is an information gathering and assessment process initiated and conducted by DCFS in order to determine compliance with DCFS rules and Federal and State laws. See 89 Ill. Adm. Code §383.2 (1985).

Section 383.3 of title 89 of the Code provides that in order to determine continued compliance with applicable statutes and rules, a licensed child-care facility shall be visited periodically and authorized representatives of DCFS may visit the facility without notice during its hours of operation. (See 89 Ill. Adm. Code §383.3 (1985).) Sections 383.8(a) through (d) of title 89 of the Code provide the time requirements for investigations and determinations of whether licensing violations have occurred. An investigation is to be completed within 30 calendar days of receipt of the complaint. Within 15 days after completing the investigation, DCFS shall make a formal determination of whether a licensing violation has occurred. Within five calendar days of that determination, a certified letter shall be sent to the licensee summarizing the findings of the investigation. If it is determined that a licensing rule or standard has been violated, this letter shall cite the rules violated, notify the licensee that within 10 days of the postmark date of the letter, he may request an informal review of the decision with the licensing representative, and the letter shall also notify the licensee that failure to correct the violations may result in DCFS seeking to revoke or refusing to renew a license.

The circuit court found that the visits between the date of the letter of intent to revoke the license and the date of the hearing constituted “complaints” as defined in the Code, and thus, for each complaint, an investigation followed by a certified letter detailing the findings of those investigations was required.

A plain reading of the regulations makes it clear that only when a “complaint” is filed with DCFS is it required to conduct an investigation and follow up with a certified letter within the prescribed time limitations. Only one “complaint,” as defined in the regulations, was ever filed with DCFS. The record on appeal does not contain a copy of the complaint; however, on October 1, 1990, at 10:55 a.m., Howard Powell commenced an investigation into the complaint. Powell’s interview notes from October 5, 1990, indicate he had separate telephone conversations with Randy and Lynn Skaggs, who appear to be the complainants. The case notes indicate Powell went to Little Moppet on October 1 to follow through on the complaint DCFS received from the Skaggs. A letter dated October 25, 1990, from DCFS to the Coopers summarizes the results of the investigation at Little Moppet conducted October 1, 1990. This letter specifies the violations observed on that date and explains to the Coopers that they could request an informal hearing regarding the decision that the complaint was substantiated. Finally, the letter indicates that in the future, further monitoring visits would be made at Little Moppet.

Thus, for the only “complaint” filed with DCFS, the requirements of sections 383.8(a) through (d) of title 89 of the Code were satisfied, as all time limitations in those sections were met. The trial court’s conclusion that each of the monitoring visits by DCFS required follow-up investigations is without merit. The Code simply does not require that for every monitoring visit authorized by section 383.3 of title 89 of the Code, a follow-up investigation by DCFS be conducted and subsequent determination of any violations be made. It belies common sense to suggest that for every single visit to a day-care center, a formal investigation and formal determination of any violations by DCFS need be made. Thus, DCFS did not violate its own regulations regarding investigations and determinations of whether licensing violations occurred.

DCFS next argues the circuit court erred in finding that the Coopers’ due process rights were violated by its failure to comply with the time limitations for holding the hearing and for investigating complaints and making determinations of licensing violations. The circuit court also concluded the Coopers’ due process rights were violated by the admission at the hearing of evidence regarding violations found after the letter of intent to revoke was mailed. Initially, DCFS indicates that at no time during the administrative hearing did the Coopers raise a due process argument. Generally, a failure to assert a particular argument during the proceedings before an administrative agency results in waiver of the point, and the argument may not be considered on appeal. (Kaufman Grain Co. v. Director of Department of Agriculture (1988), 179 Ill. App. 3d 1040, 1045, 534 N.E.2d 1259, 1263.) Thus, inasmuch as this argument was not raised earlier, it also cannot be raised in the courts on administrative review.

However, even addressing the merits of this argument, the circuit court erred in concluding the Coopers’ due process rights were violated by DCFS. In an administrative hearing, due process is satisfied by procedures that conform to the fundamental principles of justice. Procedural due process includes notice of what claims will be presented at the hearing and what consequences will result. (Aloha, Inc. v. Illinois Liquor Control Comm’n (1989), 191 Ill. App. 3d 523, 528-29, 548 N.E.2d 116, 120.) Due process before an administrative agency requires that a party have an opportunity to be heard. (Macoupin County Housing Authority v. Pollution Control Board (1984), 123 Ill. App. 3d 1092, 1095, 463 N.E.2d 958, 960.) Procedural due process in an administrative proceeding does not require a proceeding in the nature of a judicial proceeding but is satisfied by a form of procedure that is suitable and proper for the nature of determination to be made and conforms to fundamental principles of justice. (Telcser v. Holzman (1964), 31 Ill. 2d 332, 339, 201 N.E.2d 370, 373-74.) Due process requires a definite charge, adequate notice and a full, fair and impartial hearing in administrative as well as judicial proceedings. Giampa v. Illinois Civil Service Comm’n (1980), 89 Ill. App. 3d 606, 611, 411 N.E.2d 1110, 1114.

Since DCFS did not violate any of its own regulations, the Coopers were not denied due process. There is no evidence to show that they were in any way prejudiced by the delay in the setting of the hearing or by the fact that the hearing was held beyond the 30-day requirement. The Coopers were allowed to remain in business during this time and were given a chance to remedy any violations previously found by DCFS. Moreover, the due process rights of the Coopers were not violated at the hearing. They were provided with a written statement of the charges and notified of the fact that they could have an attorney represent them at the hearing. They did not have an attorney and Mrs. Cooper chose to represent herself. She cross-examined DCFS witnesses, and objected at appropriate times, as well as making a statement in her own behalf.

The circuit court concluded that the evidence of licensing violations that occurred after the notice of intent to revoke was improperly admitted. However, nothing in the Act or the Code indicates that this evidence could not be admitted. Section 383.9(i)(l) of title 89 of the Code provides that any evidence having probative value and force relevant and material to facts in issue shall be admitted. (See 89 Ill. Adm. Code §383.9(iXl) (1985).) Clearly, evidence of violations after being put on notice is probative and relevant.

Thus, since DCFS did not violate its own regulations and the Coopers were notified of the charges against them, the date of the hearing, and were allowed to present testimony and evidence at the hearing, there was no due process violation.

DCFS next argues the circuit court erred in finding that the Coopers were denied due process by the failure to be served with the Director’s final proposal for decision. DCFS alleges it did not have to serve the Coopers with this proposal for decision based on Donnelly v. Edgar (1987), 117 Ill. 2d 59, 509 N.E.2d 1015.

Section 13 of the Administrative Procedure Act provides, in pertinent part:

“[W]hen in a contested case a majority of the officials of the agency who are to render the final decision has not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency, shall not be made until a proposal for decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and to present a brief and, if the agency so permits, oral argument, to the agency officials who are to render the decision.” Ill. Rev. Stat. 1989, ch. 127, par. 1013.

Section 383.9(rX2) of title 89 of the Code provides that within 30 days of the receipt of the findings of fact, conclusions of law, recommendations to the Director and the report of proceedings, the Director of DCFS shall issue the final administrative decision. (See 89 Ill. Adm. Code §383.9(r)(2) (1985).) On May 1, 1991, DCFS director Sue Suter sent a letter to the Coopers informing them of the final decision to revoke their license. Attached to the letter was the hearing officer’s recommendations based on the evidence presented at the hearing. The Director adopted the hearing officer’s recommendation to revoke the Coopers’ license.

In Donnelly, the plaintiff’s petition for a restricted driving permit (RDP) (see Ill. Rev. Stat. 1985, ch. 95½, par. 6 — 205(c)) was denied. Plaintiff appealed, contending the Secretary of State’s decision was void because the Secretary of State failed to follow the requirements of section 13 of the Administrative Procedure Act. Plaintiff argued section 13 applied because the final administrative decision was made by the Secretary, who had neither heard the evidence presented at the hearing nor read the record made at the hearing. The Secretary had instead denied plaintiff’s petition based on the hearing officer’s recommendation. Plaintiff, on appeal, suggested that because the Secretary made the final decision, he violated section 13 by not providing plaintiff with a copy of the proposed decision and failing to allow him an opportunity to present exceptions to the decision before it became final.

The Secretary argued, and the supreme court agreed, that section 13 did not apply to the case. Specifically, the court stated:

“By its plain language, section 13 applies only to situations where the majority of the officials of an agency who are to render the final decision have not heard the case or read the record. In the present case, there is only one agency official who is to render the final decision in each case, and that official is the Secretary. Therefore[,] we conclude that section 13 does not control in this case.” (Emphasis in original.) (Donnelly, 117 Ill. 2d at 66, 509 N.E.2d at 1018.)

The court further noted that its conclusion was logical because to allow every party denied an RDP to file exceptions, submit briefs, and conduct oral arguments before the Secretary would impose too great a burden on the Secretary and would also impose substantial delays on the applicants themselves.

In the present case, the statutory scheme of the Act is similar to that regarding RDP’s. The hearing officer heard the evidence and presented his written recommendation to the Director. The Director made the final administrative decision with regard to the revocation of the license, as did the Secretary with respect to the issuance of the RDP. Accordingly, since only one agency official, the Director of DCFS, rendered the final administrative decision, section 13 does not apply. Similarly, the policy concerns present in Donnelly also exist with respect to the factual situation presented in this case. To impose the requirements of section 13 on every revocation and renewal proceeding would place an onerous burden on the Director as well as create long days for the licensees.

Thus, based on Donnelly and the policy reasons behind that decision, section 13 of the Administrative Procedure Act does not control in the present case. The Coopers were not required to be served with a copy of the proposed decision before the Director made a final decision, and the circuit court erred in concluding the Coopers were denied due process because they were not served with a copy of the proposed decision.

Last, DCFS contends its decision to revoke the Coopers’ license was not against the manifest weight of the evidence. On appeal from the judgment of the circuit court in administrative review, the appellate court must affirm the agency ruling unless the findings and the decision of the administrative agency are found to be contrary to the manifest weight of the evidence. (Central Illinois Public Service Co. v. Department of Revenue (1987), 158 Ill. App. 3d 763, 767, 511 N.E.2d 222, 224-25.) A decision is contrary to the manifest weight of the evidence only when, after viewing the evidence in the light most favorable to the administrative agency, the court determines that no rational trier of fact could have agreed with the agency’s decision. American Federation of State, County & Municipal Employees v. Illinois Educational Labor Relations Board (1990), 197 Ill. App. 3d 521, 525, 554 N.E.2d 476, 478.

The hearing officer decided to only consider those violations which occurred after August 1990. These included child/staff ratio violations, uncovered electrical outlets, the failure to lock the medicine box, inappropriate age mixing and medical record violations. The hearing officer stated these violations were both of a serious nature and part of a continuing pattern of violations stretching back to the initial issuance of the original permit to operate the day-care center. The hearing officer found that although the Coopers had committed no single violation which standing alone required the license to be terminated, they had constantly, steadily, repeatedly, and continually violated DCFS licensing standards. The evidence presented at the hearing established that the Coopers had in fact continually violated departmental licensing standards. Specifically, the inadequate staffing and the accessibility of medicine and cleaning supplies as well as the uncovered electrical outlets posed great danger to the children. The Coopers presented no evidence at the hearing to refute these licensing standards violations. Thus, we find the DCFS decision to revoke the Coopers’ license was not against the manifest weight of the evidence.

In summary, we note the following: first, section 9(a) of the Act requiring the hearing on a license revocation be set within 30 days of the postmark of the date of the notice of hearing is directory, since this provision merely serves as a guide to officials for time limitations to perform their official duties and such an interpretation will protect the persons for whom the statute was designed; second, DCFS did not violate its own regulations regarding complaints and investigations into licensing violations of day-care centers; every monitoring visit performed by a licensing representative does not require a follow-up investigation and formal determination of violations by DCFS; third, the Coopers were not denied due process at any time during these proceedings; fourth, section 13 of the Administrative Procedure Act does not apply in this case since the final administrative decision is made by only one agency official; finally, the decision of DCFS to revoke the Coopers’ license to operate the day-care center was not against the manifest weight of the evidence.

For the foregoing reasons, we reverse the circuit court and reinstate the DCFS decision to revoke the Coopers’ license to operate a day-care center.

Reversed; DCFS decision reinstated.

STEIGMANN and COOK, JJ., concur.


author: JUSTICE STEIGMANN

text:
    MATT PIDGEON, Chairperson, Citizens Advisory Committee, Plaintiff-Appellant, v. THE STATE BOARD OF ELECTIONS, Defendant-Appellee.
    Fourth District
    No. 4—91—0586
    Opinion filed September 3, 1992.
    Rehearing denied October 29, 1992.

      Donald M. Craven, of Donald M. Craven, P.C., of Springfield, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

On June 12, 1991, plaintiff, Matt Pidgeon, filed a complaint in Sangamon County circuit court for declaratory and injunctive relief against defendant, State Board of Elections (Board). Plaintiff’s complaint alleged that section 3 — 7 of the Public Community College Act (Act) (Ill. Rev. Stat. 1989, ch. 122, par. 103 — 7)—which governs the election of members of the board of trustees of a community college district that is contiguous to an experimental community college district — violates the Illinois Constitution in two respects: (1) section 3 — 7 constitutes special legislation in violation of article IV, section 13, of the Illinois Constitution (Ill. Const. 1970, art. IV, §13), and (2) section 3 — 7 constitutes an impermissible delegation of legislative authority to an administrative board in violation of article II, section 1, of the Illinois Constitution (Ill. Const. 1970, art. II, §1) (the separation of powers provision). On June 13, 1991, the Board filed a motion to dismiss plaintiff’s complaint. On June 14, 1991, the circuit court conducted a hearing on defendant’s motion and granted it. Plaintiff elected to stand on his complaint and now brings this appeal. We affirm.

I. Background

In his complaint, plaintiff described himself as “a resident, citizen taxpayer[,] and registered voter in the Belleville Area Community College District #522” (District), and also as chairman of the Citizens Advisory Committee, which he identified as “a group of citizens concerned with the future of the District.”

Plaintiff alleged in his complaint that a recent amendment to section 3 — 7 of the Act changed the manner in which district trustees were elected: trustees are now elected from within single-member electoral districts, rather than elected at large. (See Pub. Act 85— 765, §1, eff. Sept. 24, 1987 (1987 Ill. Laws 3243, 3244).) The complaint further alleged that (1) this new manner of electing trustees applied only to community college districts which are contiguous to an experimental community college district, and (2) because the District is contiguous to the sole experimental community college district in Illinois, the recent amendment to section 3 — 7 of the Act applies only to the District and nowhere else in the State of Illinois, thus constituting special legislation. Accordingly, plaintiff asked the court to declare unconstitutional these new election procedures in section 3 — 7 of the Act. Plaintiff also alleged that the Board had begun to draw a map for several single-member electoral districts to provide for the election of the District’s new board of trustees, and plaintiff asked the court to enjoin the Board from doing so.

Plaintiff’s separation of powers claim alleged that section 3 — 7 of the Act violates article II, section 1, of the Illinois Constitution because “drawing districts for electoral purposes is a legislative, not administrative function.” Plaintiff asserted that section 3 — 7 of the Act is the only exception to the rule in Illinois that legislative bodies draw the boundary lines of electoral districts.

The Board moved to dismiss plaintiff’s complaint for the following reasons: (1) plaintiff lacked standing; (2) the Board was entitled to sovereign immunity; (3) plaintiff’s claims were barred by laches-, (4) plaintiff did not allege any facts demonstrating irreparable harm; (5) section 3 — 7 of the Act constituted valid legislation; and (6) plaintiff failed to state a cause of action against the Board for which relief could be granted, and he was incapable of doing so.

On June 14, 1991, the trial court granted the Board’s motion to dismiss, finding that section 3 — 7 of the Act did not constitute special legislation.

On appeal, plaintiff again argues that section 3 — 7 of the Act constitutes special legislation and an improper delegation of legislative authority to an administrative body. Because we agree with the trial court that section 3 — 7 of the Act is not special legislation, and because we further find that there is no reason why the Board cannot be properly authorized to draw the boundaries of electoral districts, we affirm the trial court’s dismissal of plaintiff’s complaint, and we need not address the other grounds that the Board raised in circuit court and reasserts here.

II. Analysis

A. Special Legislation

In Chicago National League Ball Club, Inc. v. Thompson (1985), 108 Ill. 2d 357, 483 N.E.2d 1245, the Illinois Supreme Court extensively discussed the Illinois constitutional prohibition against special legislation and wrote the following:

“The provision in the Constitution of Illinois prohibiting special legislation states: ‘The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter of judicial determination.’ (Ill. Const. 1970, art. IV, sec. 13.) Special legislation confers a special benefit or privilege on a person or group of persons to the exclusion of others similarly situated. It discriminates in favor of a select group without a sound, reasonable basis. [Citations.] *** Though the constitutional protections involved are not identical, a claim that the special-legislation provision has been violated is generally judged by the same standard that is used in considering a claim that equal protection has been denied. [Citations.]
Unless legislation operates to the disadvantage of a suspect classification or infringes upon a fundamental right, the legislation, to be upheld as constitutional, must simply bear a rational relationship to a legitimate governmental interest.” Chicago National League Ball Club, 108 Ill. 2d at 367-68, 483 N.E.2d at 1250.

In County of Bureau v. Thompson (1990), 139 Ill. 2d 323, 337, 564 N.E.2d 1170, 1178, the supreme court added the following regarding the burden one bears who seeks to have a statute declared unconstitutional:

“As *** guidance in ruling on [legislative] validity ***, we note the presumption that legislative enactments are constitutional [citation]; to the same purpose, statutory classifications created by the legislature ‘are presumed to be valid’ [citations]. As a result, it is for the party challenging a statute’s constitutionality — here, plaintiffs — to rebut these presumptions and prove the unconstitutional nature of the statute.”

In Chicago National League Ball Club, the supreme court identified the focus of a court’s inquiry when a special legislation claim is made as follows:

“There is a presumption in favor of the validity of any legislation ***. *** When a classification under a statute is called into question, if any state of facts can reasonably be conceived to sustain the classification, the existence of that state of facts at the time the statute was enacted must be assumed.” (Emphasis added.) Chicago National League Ball Club, 108 Ill. 2d at 368-69, 483 N.E.2d at 1250-51.

Plaintiff argues that “[w]hatever evil is perceived in the existence of an at-large election scheme in the [District] must necessarily exist in all community college districts across the State of Illinois.” Based upon this assertion, plaintiff contends that “[n]o set of facts exist which would justify the distinction between this District and all other [community college] Districts in the State.” We disagree.

In Chicago National League Ball Club, the supreme court addressed a similar argument and wrote the following:

“The legislature need not choose between legislating against all evils of the same kind or not legislating at all. Instead it may choose to address itself to what it perceives to be the most acute need. [Citations.] An entire remedial scheme will not be invalidated ‘ “simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked.” ’ ” Chicago National League Ball Club, 108 Ill. 2d at 367, 483 N.E.2d at 1250, quoting Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill. 2d 413, 421-22, 367 N.E.2d 1325, 1329, quoting McDonald v. Board of Election Commissioners (1969), 394 U.S. 802, 809, 22 L. Ed. 2d 739, 746, 89 S. Ct. 1404, 1409.

We are aware, and we can presume the legislature is similarly aware, of extensive litigation in this State regarding alleged violations of section 2 of the Voting Rights Act of 1965 (Voting Rights Act) (42 U.S.C. §1973 (1988)). In each such instance, the alleged “evil” the plaintiffs challenged in Federal court was the at-large election of members of some political subdivision of the State of Illinois, as opposed to the election of the members of that political subdivision from single-member districts. (See McNeil v. Springfield Park District (7th Cir. 1988), 851 F.2d 937 (upholding the at-large system for electing members to the Springfield park district and the Springfield school board under the Voting Rights Act); see also McNeil v. City of Springfield (C.D. Ill. 1987), 658 F. Supp. 1015, 1033 (holding that the defendant city’s commission form of government, composed of commissioners elected in at-large elections, violated the Voting Rights Act).) It is conceivable that the legislature, by amending section 3 — 7 of the Act, sought to remedy the “evil” of at-large elections in this one political subdivision of the State — the District — in order to avoid requiring the District to litigate the appropriateness of such electoral districts in Federal court. That the legislature did not choose to eliminate all the “evils” of at-large elections in other community college districts at the same time it chose to remedy this “evil” regarding the District does not invalidate the remedial scheme of section 3 — 7 of the Act. Chicago National League Ball Club, 108 Ill. 2d at 367, 483 N.E.2d at 1250.

Having found at least one rational basis for the legislature’s action, and having further found that there is no reason why the legislature had to change every community college district at once as it seeks to remedy the “evil” of at-large elections, we need not consider plaintiff’s special legislation claim further.

We believe our holding in this case complies with the most recent decision of the Illinois Supreme Court on the subject of special legislation, People v. Anderson (1992), 148 Ill. 2d 15, 31, 591 N.E.2d 461, 469, wherein the court wrote the following:

“We note *** that the legislature has broad authority to make classifications for the general welfare, and its classifications are presumed to be valid. [Citation.] For a classification to be valid under either equal protection or special legislation analysis, it need only have a rational relation to a legitimate State objective. [Citations.] The State certainly has a legitimate interest in protecting people from physical injury, and we conclude that there is a rational basis for limiting the reach of the hazing statutef, the issue before the supreme court in Anderson,] since it is reasonable to assume that most hazing occurs in colleges, universities and other schools. We therefore hold that the hazing statute does not violate equal protection or the limitation on special legislation. Should the legislature see fit to broaden the scope of the statute to include other possible groups, it is free to do so. The legislature need not deal with all conceivable evils at once; it may proceed one step at a time. Chicago National League Ball Club, Inc. v. Thompson (1985), 108 Ill. 2d 357, 367.”

B. Separation of Powers

Plaintiff alleges that section 3 — 7 of the Act unconstitutionally delegates to an administrative body — the Board — the authority to draw the electoral districts from which the new trustees on the District’s board will be elected. Citing article II, section 1, of the Illinois Constitution, plaintiff argues that “legislative acts shall be done by legislative bodies, and [the constitution] prohibits usurpation of those powers by the judiciary or executive bodies.” Plaintiff then argues that section 3 — 7 of the Act provides the only instance in Illinois in which an administrative body, as opposed to á legislative body, “has been assigned the politically charged legislative task of drawing district boundaries.” Plaintiff concludes by asserting that drawing an election district boundary “is a legislative process and must be accomplished by a legislative body.” Plaintiff cites no authority in support of these bald assertions, nor are we aware of any.

The Illinois Constitution specifically addresses redistricting only in article IV, section 3 (Ill. Const. 1970, art. IV, §3), in which it directs how the legislative districts for the Illinois General Assembly shall be redistricted. Interestingly, the constitution directs that if the General Assembly cannot redistrict itself by June 30 of a year following a Federal decennial census, then a Legislative Redistricting Commission shall be constituted with the authority to redistrict the General Assembly. The constitution directs that the legislative leaders of the General Assembly shall appoint the members of this commission and specifically provides that of the two commission members to be appointed by each legislative leader, one must not also be a member of the General Assembly.

Clearly, the resulting commission is an administrative body, not a legislative one, yet the constitution mandates this administrative body to determine the district electoral boundaries of the most significant and important legislative body in the State of Illinois, namely, the General Assembly. At a minimum, this constitutional scheme suggests that the legislature’s decision in section 3 — 7 of the Act to delegate the drawing of the District’s electoral boundaries to a nonlegislative body is not beyond the pale of Illinois constitutional law.

Last, with regard to the question of the powers of the General Assembly, we find the following observation of the supreme court in Kluk v. Lang (1988), 125 Ill. 2d 306, 324, 531 N.E.2d 790, 798, to be relevant to the case before us:

“[T]he principle is well established that the Constitution is not a grant of power to the General Assembly but only checks the latter’s power. [Citations.] Thus, unless in the Constitution of Illinois or of the United States a restriction is found on the General Assembly’s discretion to determine how to fill legislative vacancies by appointment, its discretion should receive judicial deference.”

Similarly, where as here, the legislature has seen fit to designate the Board as the appropriate body to determine electoral boundaries for the District’s new single-member electoral districts, we will defer to the discretion of the General Assembly.

III. Conclusion

For the reasons stated, we affirm the judgment of the circuit court dismissing plaintiff’s complaint.

Affirmed.

GREEN, P.J., and COOK, J., concur.