Carver v. Nall

• Citation: 239 Ill.Dec. 567,186 Ill.2d 554,714 N.E.2d 486
• Decision Date: 01 July 1999
• Docket Number: No. 86641.,86641.
• Parties: Kathy CARVER, Appellant, v. Robert NALL, Sheriff of Adams County, et al., Appellees.
• Court: Supreme Court of Illinois

714 N.E.2d 486

186 Ill.2d 554

239 Ill.Dec. 567

Kathy CARVER, Appellant, v. Robert NALL, Sheriff of Adams County, et al., Appellees.

No. 86641.

Supreme Court of Illinois.

July 1, 1999.

Richard D. Frazier, Metnick, Wise & Cherry, Springfield, for Kathy Carver.

Matthew A. Hutmacher, Hutmacher, Rapp & Ortbal, P.C., Quincy, for Kelly Deaver.

Richard J. Ringhausen, Hardin, for other interested parties.

Chief Justice FREEMAN delivered the opinion of the court:

Plaintiff, Kathy Carver, appeals the dismissal by the circuit court of Adams County of her complaint for administrative review against defendants, Adams County Sheriff Robert Nall and the members of the Adams County sheriff's merit commission (hereinafter referred to collectively as Commission). See 735 ILCS 5/3-102 (West 1996). The circuit court dismissed the action because Carver failed to have summons timely issue. See 735 ILCS 5/3-103 (West 1996). The appellate court affirmed. 299 Ill.App.3d 810, 233 Ill.Dec. 906, 701 N.E.2d 1180. We allowed Carver's petition for leave to appeal (177 Ill.2d R. 315(a)), and now affirm the appellate court.

BACKGROUND

This cause is before us following a motion to dismiss pursuant to section 2-619(a) of the Code of Civil Procedure (735 ILCS 5/2-619(a) (West 1996)). The motion admits all well-pled allegations in the complaint and reasonable inferences to be drawn from the facts. Fireman's Fund Insurance Co. v. SEC Donohue, Inc., 176 Ill.2d 160, 161, 223 Ill.Dec. 424, 679 N.E.2d 1197 (1997). The appellate court detailed the facts of this case. We repeat only those facts that are necessary for our disposition of the issues presented in this appeal.

Carver was an Adams County deputy sheriff. Following a hearing, the Commission suspended her for 10 days without pay. On October 22, 1997, the Commission mailed its decision to Carver. The decision did not notify Carver of her right under the Administrative Review Law (Act) (735 ILCS 5/3-101 et seq. (West 1996)) to judicial review of the Commission's decision and of the 35-day time limit for exercising that right.

On November 25, 1997, Carver's attorney sent eight copies of the complaint to the clerk of the Adams County circuit court. In a cover letter, the attorney directed the circuit court clerk to return seven file-stamped copies to the attorney's office. The letter also stated: "It is imperative that this Complaint is filed no later than November 26, 1997" (emphasis in original), which was 35 days after the Commission mailed its decision to Carver. The letter did not request the circuit court clerk to issue summons; Carver's attorney assumed that the clerk would prepare summonses to serve with the complaint.

On December 3, 1997, Carver's attorney learned that the circuit court clerk did not issue the summonses. Carver's attorney returned the seven file-stamped copies of the complaint to the circuit court clerk with prepared summonses. In a cover letter, he directed the clerk to forward the complaints and the summonses to the appropriate offices for service.

On the Commission's motion, the circuit court dismissed the complaint because Carver failed to have summons issue within 35 days of her being notified of the Commission's decision. The appellate court upheld the dismissal. 299 Ill.App.3d 810, 233 Ill. Dec. 906, 701 N.E.2d 1180. The appellate court rejected Carver's arguments that: (1) she made a good-faith effort to have summons issue within the 35-day filing period; and (2) the Commission was required to notify her that she had a statutory right to administrative review, which she must exercise within 35 days of the Commission's decision. Carver appeals.

DISCUSSION

Section 2-619(a) of the Code of Civil Procedure permits dismissal where, inter alia, "the action was not commenced within the time limited by law" (735 ILCS 5/2-619(a)(5) (West 1996)) and where "the claim asserted * * * is barred by other affirmative matter avoiding the legal effect of or defeating the claim" (735 ILCS 5/2-619(a)(9) (West 1996)). When ruling on a motion to dismiss, the trial court must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party. The court should grant the motion only if the plaintiff can prove no set of facts that would support a cause of action. On appeal, review is de novo. In re Chicago Flood Litigation, 176 Ill.2d 179, 189, 223 Ill.Dec. 532, 680 N.E.2d 265 (1997)

.

This appeal involves the timeliness requirements of the Act. Section 3-102 mandates that "[u]nless review is sought of an administrative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision." (Emphasis added.) 735 ILCS 5/3-102 (West 1996). Section 3-103 of the Act provides:

"Every 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 * * *." (Emphasis added.) 735 ILCS 5/3-103 (West 1996).

In an administrative review action, the circuit court clerk "shall issue summons upon request of the plaintiff." See 735 ILCS 5/2-201 (West 1996); see also 166 Ill.2d R. 101. The clerk serves summons via certified or registered mail. The clerk knows the defendant's address because "[t]he plaintiff shall, by affidavit filed with the complaint, designate the last known address of each defendant upon whom service shall be made." 735 ILCS 5/3-105 (West 1996). This court has recognized that the Act is a departure from common law. Therefore, a party seeking judicial review of an administrative decision must strictly adhere to the Act's procedures. Lockett v. Chicago Police Board, 133 Ill.2d 349, 353, 140 Ill.Dec. 394, 549 N.E.2d 1266 (1990).

In this case, Carver failed to have summons issue within the 35-day filing period. Thus, the appellate court correctly reasoned that an applicable exception to this timeliness requirement must exist for her to prevail. 299 Ill.App.3d at 813, 233 Ill.Dec. 906, 701 N.E.2d 1180. Before this court, Carver relies on two exceptions to this timeliness requirement. First, Carver contends that her delay in having summons issue within the 35-day filing period should be excused due to her good-faith effort to do so. Second, Carver contends that the filing period was tolled because the Commission's notice to her was statutorily and constitutionally inadequate.

I. Good-Faith Effort

The good-faith-effort exception to the requirement that summons timely issue is established, but narrow. This court has emphasized that section 3-103 of the Act requires that an action for administrative review "be commenced `by the filing of a complaint and the issuance of summons within 35 days` of receipt of the decision being appealed. (Emphasis added.) (Ill.Rev.Stat. 1985, ch. 110, par. 3-103.)" Lockett, 133 Ill.2d at 354,140 Ill.Dec. 394,549 N.E.2d 1266. This court has distinguished the requirement of a timely filed complaint, which is jurisdictional, from the requirement of summons timely issued:

"The 35-day period for the issuance of summons, on the other hand, is mandatory, not jurisdictional, and failure to comply with that requirement will not deprive the court of jurisdiction. (City National Bank & Trust Co. v. Property Tax Appeal Board (1983), 97 Ill.2d 378, 382 [73 Ill.Dec. 555, 454 N.E.2d 652]; Cox v. Board of Fire & Police Commissioners (1983), 96 Ill.2d 399, 403-04 [71 Ill.Dec. 688, 451 N.E.2d 842].) However, as the 35-day period is intended to `hasten the procedure' of administrative review and avoid undue delay, a litigant must show a good-faith effort to file the complaint and secure issuance of summons within the 35 days in order to avoid dismissal. (City National Bank & Trust Co., 97 Ill.2d at 382 [73 Ill.Dec. 555, 454 N.E.2d 652]; Cox, 96 Ill.2d at 404 [71 Ill.Dec. 688, 451 N.E.2d 842].) In cases where the 35-day requirement has been relaxed, the plaintiffs had made a good-faith effort to issue summons within the statutory period. Nevertheless, due to some circumstance beyond their control, summons was not issued within the statutory period. See City National Bank & Trust Co., 97 Ill.2d at 382 [73 Ill.Dec. 555, 454 N.E.2d 652]; Cox, 96 Ill.2d at 404 [71 Ill.Dec. 688, 451 N.E.2d 842] (cases in which the plaintiffs had filed their complaints for administrative review and summons with the clerk of the circuit court within the 35-day period but, due to problems at the clerk's office which were beyond the plaintiff's control, the summonses were not issued until after the 35-day period)." Lockett, 133 Ill.2d at 355, 140 Ill.Dec. 394, 549 N.E.2d 1266.

Carver argues, as she did in the appellate court, that her attorney's assumption that the circuit court clerk would issue summons constitutes a "good-faith effort" to comply with the Act. We agree with the appellate court that such an assumption, by itself, does not constitute a "good-faith effort." 299 Ill. App.3d at 814, 233 Ill.Dec. 906, 701 N.E.2d 1180.

This case does not resemble those cases where plaintiffs made efforts to secure issuance of summons, but, "due to some circumstance beyond their control, summons was not issued within the statutory period." (Emphasis added.) Lockett, 133 Ill.2d at 355, 140 Ill.Dec. 394, 549 N.E.2d 1266 (and cases cited therein). Rather, this case more closely resembles those cases where plaintiffs did not diligently seek issuance of summons in accordance with the Act. See, e.g., Johnson v. Department of Public Aid, 251 Ill.App.3d 604, 190 Ill.Dec. 640, 622 N.E.2d 50 (1993)

; Moretti v. Department of Labor, 119 Ill. App.3d 740, 75 Ill.Dec. 324, 457 N.E.2d 114 (1983).

This case is distinguishable from Azim v. Department of Central Management Services, 164 Ill.App.3d 298, 115 Ill.Dec. 307, 517 N.E.2d 718 (1987), upon which Carver...