Carroll v. Department of Employment Sec.

Decision Date27 March 2009
Docket NumberNo. 1-07-2267.,1-07-2267.
Citation907 N.E.2d 16,389 Ill. App. 3d 404
PartiesRonnie CARROLL, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY, Director of the ILLINOIS Department Of Employment Security, Board of Review, and Rexnord Industries, Inc., Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

J. Robert Robertson, P.C., Mark A. Pals, P.C., Alicia Frostick, Kirkland & Ellis LLP, Chicago, IL, for Plaintiff-Appellant.

William P. Dewyer, Power & Cronin, Ltd., Oak Brook, IL, for Rexnord Industries.

Lisa Madigan, Attorney General, State of Illinois, Michael A. Scodro, Solicitor General, Mary C. Labrec, Assistant Attorney General, Chicago, IL, for State Defendants-Appellees.

Justice O'MARA FROSSARD delivered the opinion of the court:

Plaintiff Ronnie Carroll appeals the circuit court's dismissal of his complaint for administrative review of the decision rendered by the Board of Review (the Board) of the Illinois Department of Employment Security (IDES). The circuit court dismissed plaintiff's complaint because it was not timely filed within 35 days from the mailing of the Board's decision denying him unemployment insurance benefits.

On appeal, plaintiff argues his complaint for administrative review should not be dismissed because: (1) the ambiguous language of the statute concerning the filing deadline should be construed to count business days rather than calendar days; (2) he was given vague information about the filing deadline and, thus, was denied due process; and (3) the evidence failed to establish when the Board actually mailed its decision. We affirm the circuit court's dismissal of plaintiff's complaint for administrative review.

I. BACKGROUND

In early 2007, plaintiff applied for unemployment insurance benefits after his termination from Rexnord Industries. The IDES denied plaintiff's application. Plaintiff then appealed to the Board, which affirmed the denial of benefits.

The Board mailed its two-page decision to plaintiff at his last known address in Nevada. Near the bottom of the second page, a stamped date indicated that the decision was mailed on April 11, 2007, and a notice informed plaintiff that if he was aggrieved by the decision and wanted to appeal, he must "file a complaint for administrative review and have summons issued in circuit court within 35 days from the above mailing date" of April 11, 2007. The notice also listed as legal references the Unemployment Insurance Act (820 ILCS 405/1100 et seq. (West 2006)) and the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2006)).

Acting pro se, plaintiff filed his complaint for administrative review on May 18, 2007, 37 days after the date of service of the Board's decision. The IDES, the Director of IDES, and the Board moved to dismiss plaintiff's complaint for lack of subject matter jurisdiction, pursuant to sections 2-619(a)(5), 3-102 and 3-103 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5), 3-102, 3-103 (West 2006)). The motion argued that the court did not have jurisdiction to consider the complaint because it was not timely filed.

The affidavit of Peter Zaper, the Secretary of the Board, was attached to the motion. He stated that he supervised the preparation and mailing of Board decisions and had knowledge of the facts of the preparation and mailing of the decision to plaintiff. Zaper explained how decisions ready for distribution are stacked and assigned a future certain mailing date, which is entered into the Board's computer record keeping system. The decisions are then stamped with the assigned mailing dates and duplicated as necessary to provide copies for distribution. On the morning of the mailing date, the decisions are transported to the mailing room for mailing that afternoon to all parties and representatives of record. A separate mailing/decision date is entered in the department's computer record keeping system and also marked on the jacket of the Board's file. Zaper stated that he personally checked the Board's case file and computer docket system, which indicated that the decision was mailed to plaintiff on April 11, 2007.

At the hearing on the motion held on July 10, 2007, the circuit court granted the motion to dismiss. Still acting pro se, plaintiff timely appealed the decision of the circuit court. Counsel was subsequently appointed to represent plaintiff.

II. ANALYSIS

A motion to dismiss pursuant to section 2-619 of the Code admits the legal sufficiency of the plaintiff's complaint, but asserts an affirmative defense or other matter that avoids or defeats the plaintiff's claim. DeLuna v. Burciaga, 223 Ill.2d 49, 59, 306 Ill.Dec. 136, 857 N.E.2d 229 (2006). "Section 2-619 motions present a question of law, and we review rulings thereon de novo." DeLuna, 223 Ill.2d at 59, 306 Ill. Dec. 136, 857 N.E.2d 229.

Defendants IDES, the Director of IDES, the Board, and Rexnord Industries argue that we cannot rely upon plaintiff's statement of the facts because his appellate brief contains documents not properly included in the record on appeal. Supreme Court Rule 329 provides that a party may supplement the record on appeal to include omissions or correct errors (210 Ill.2d R. 329), but the rule allows the record to be supplemented only with evidence that was actually before the circuit court (Jones v. Ford Motor Co., 347 Ill. App.3d 176, 180, 282 Ill.Dec. 896, 807 N.E.2d 520 (2004)). Accordingly, we limit our analysis to the documents properly included in the record on appeal.

Defendants also argue that plaintiff failed to preserve his current arguments on appeal because the record fails to show that he presented those arguments to the circuit court. Plaintiff concedes that he was unable to obtain a record of the hearing that took place on July 10, 2007. He also failed to obtain a bystander's report of that hearing. However, it is settled law that the forfeiture of an argument operates as a limitation on the parties and not as a limitation upon the jurisdiction of this court. Hux v. Raben, 38 Ill.2d 223, 224, 230 N.E.2d 831 (1967). Furthermore, when a court has all the evidence before it that it needs to decide the issues raised on appeal, the court may review the case despite the incompleteness of the record. Cambridge Engineering, Inc. v. Mercury Partners 90 BI, Inc., 378 Ill.App.3d 437, 446, 316 Ill.Dec. 445, 879 N.E.2d 512 (2007). Therefore, we will address plaintiff's arguments on appeal.

A. Filing Requirements under the Administrative Review Law

In Illinois, review of an administrative decision may only be obtained by a statutory provision, whereas review of circuit court decisions is guaranteed by the state's constitution. Ultsch v. Illinois Municipal Retirement Fund, 226 Ill.2d 169 178, 314 Ill.Dec. 91, 874 N.E.2d 1 (2007). Section 1100 of the Unemployment Insurance Act provides that Board decisions are reviewed in accordance with the Administrative Review Law. 820 ILCS 405/1100 (West 2006). The Administrative Review Law is codified as article III of the Code. 735 ILCS 5/3-101 et seq. (West 2006). Under that law, parties to a proceeding before an administrative agency are barred from obtaining judicial review of the agency's decision unless review is sought "within the time and in the manner" provided by the statute. 735 ILCS 5/3-102 (West 2006). If the statutory procedures are not strictly followed, the circuit court does not have jurisdiction to hear the case. Rodriguez v. Sheriff's Merit Commission, 218 Ill.2d 342, 350, 300 Ill.Dec. 121, 843 N.E.2d 379 (2006).

Section 3-103 of the Code provides that "[e]very action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision." 735 ILCS 5/3-103 (West 2006). The 35-day period begins to run upon the date that the decision was mailed. Nudell v. Forest Preserve District, 207 Ill.2d 409, 420, 278 Ill. Dec. 542, 799 N.E.2d 260 (2003). Furthermore, section 3-103 is read in the context of the governing Statute on Statutes. Rodriguez, 218 Ill.2d at 351, 300 Ill.Dec. 121, 843 N.E.2d 379. Section 1.11 of the Statute on Statutes states:

"The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded." 5 ILCS 70/1.11 (West 2006).

The 35-day time limit required by the Administrative Review Law is an essential element of one's statutory right to seek judicial review and therefore is a jurisdictional requirement that cannot be waived. Fredman Brothers Furniture Co. v. Department of Revenue, 109 Ill.2d 202, 212, 93 Ill.Dec. 360, 486 N.E.2d 893 (1985). Here, the affidavit of Board Secretary Zaper stated that the Board's file and computer docket system showed that it mailed its decision on April 11, 2007. Applying the 35-day time limit, plaintiff's deadline to file his complaint for administrative review was May 16, 2007, but he filed his complaint on May 18, 2007.

On appeal, plaintiff argues that the 35-day deadline in section 3-103 is vague because it does not define whether days should be counted as either business or calendar days for purposes of calculating the deadline. He argues that this vagueness necessitates application of section 1-106 of the Code, which states that the "Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties." 735 ILCS 5/1-106 (West 2006). Plaintiff contends it was reasonable for him, as a pro se litigant, to interpret...

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