Gunther v. STATE OF ILLINOIS CIVIL SERVICE COM'N

• Decision Date: 09 December 2003
• Docket Number: No. 1-02-1734.,1-02-1734.
• Citation: 280 Ill.Dec. 127,344 Ill. App.3d 912,801 N.E.2d 1072
• Parties: Michael GUNTHER, Plaintiff-Appellant, v. STATE OF ILLINOIS CIVIL SERVICE COMMISSION, and its Members, George E. Richards, Chairman, John M. Dorgan, Raymond E. Ewell, Dan P. Fabrizio, Individually, and the Illinois Department of Transportation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

801 N.E.2d 1072

344 Ill. App.3d 912

280 Ill.Dec. 127

Michael GUNTHER, Plaintiff-Appellant, v. STATE OF ILLINOIS CIVIL SERVICE COMMISSION, and its Members, George E. Richards, Chairman, John M. Dorgan, Raymond E. Ewell, Dan P. Fabrizio, Individually, and the Illinois Department of Transportation, Defendants-Appellees.

No. 1-02-1734.

Appellate Court of Illinois, First District, Second Division.

December 9, 2003.

Robert S. Reda, Leonard A. Des Jardins, David G. Trout and Emily A. Chen, Fioretti, Des Jardins & Reda, Ltd., Chicago, for Appellant.

Lisa Madigan, Attorney General, Gary Feinerman, Solicitor General, and Erik G. Light, Assistant Attorney General, Chicago, for Appellees.

Presiding Justice WOLFSON delivered the opinion of the court:

Plaintiff Michael Gunther appeals from an order of the trial court dismissing his complaint pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2002)), for failing to serve summons on defendant Illinois Department of Transportation (IDOT).

IDOT filed a petition to discharge Gunther from his position as a highway maintainer. On September 27, 2001, following a hearing, the administrative law judge (ALJ) issued a written opinion recommending that Gunther's discharge be rescinded and Gunther be restored to his employment. On October 11, 2001, defendant Illinois Civil Service Commission (Commission) declined to adopt the ALJ's recommendation and upheld Gunther's discharge.

On November 15, 2001, Gunther filed a complaint for administrative review in the Circuit Court of Cook County. In the attached summons, he listed the defendants, including IDOT, in the caption. To the right of the caption, he noted, "Please Serve Defendants at: See Attached Service List Below." The "Certificate of Mailing" section at the bottom of the summons form listed the names and addresses of the Illinois Attorney General, the Commission, and the four individual members of the Commission. Neither IDOT nor IDOT's address was listed. Gunther did not file an affidavit designating the addresses of defendants. The clerk served summonses on the parties listed in the certificate of mailing. IDOT was never served with summons.

On December 18, 2001, IDOT filed an appearance and a motion to dismiss Gunther's complaint pursuant to section 2-619(a)(9), contending summons was not issued within the requisite time period. On April 15, 2002, the trial court granted IDOT's motion and dismissed Gunther's complaint with prejudice. The court denied Gunther's motion for reconsideration.

DECISION

Section 3-102 of the Administrative Review Law (the Act) provides a party shall be barred from obtaining judicial review of an administrative decision unless review is sought within the time and in the manner provided. 735 ILCS 5/3-102 (West 2002). Section 3-105 provides that summons must be issued on the administrative agency and on each of the other defendants. 735 ILCS 5/3-105 (West 2002).

Under section 3-103 of the Act, an affected party must file a complaint and issue summons within 35 days from the date that a copy of the final administrative decision was served on the party. 735 ILCS 5/3-103 (West 2002).

The 35-day period for issuance of summons by the clerk of the court is mandatory, not jurisdictional. Burns v. Department of Employment Security, 342 Ill.App.3d 780, 786-87, 277 Ill.Dec. 304, 795 N.E.2d 972 (2003). Nevertheless, the procedures for review must be strictly followed, because the Act is a departure from common law. Lockett v. Chicago Police Board, 133 Ill.2d 349, 353, 140 Ill.Dec. 394, 549 N.E.2d 1266 (1990). Absent a good faith effort on the part of the plaintiff to name and serve a necessary party as required by the Administrative Review Act, dismissal of the complaint for review is required. Lockett, 133 Ill.2d at 355,140 Ill.Dec. 394,549 N.E.2d 1266; Carver v. Nall, 186 Ill.2d 554, 559-60, 239 Ill.Dec. 567, 714 N.E.2d 486 (1999). We review de novo a dismissal of a complaint pursuant to section 2-619. Carver, 186 Ill.2d at 557,239 Ill.Dec. 567,714 N.E.2d 486.

A review of the record shows that Gunther did not strictly adhere to the procedures set forth in the Act. Gunther correctly named all the necessary defendants in his complaint and filed the complaint within the 35-day period. However, Gunther did not cause summons to issue against each defendant within the 35-day period. His request for summons did not list IDOT or IDOT's address in the list of defendants to receive summons. Summons never issued against IDOT, a necessary party. Gunther's failure to follow the requirements of the Act requires dismissal of his action. 735 ILCS 5/3-102 (West 2002). See Hanke v. Department of Professional Regulation, 296 Ill.App.3d 825, 828, 231 Ill.Dec. 283, 696 N.E.2d 12 (1998).

Gunther contends his failure to list IDOT in the certificate of mailing section of the summons form was de minimus, and he was in substantial compliance with the procedures in the Act. He also contends service on the Illinois Attorney General, as counsel for IDOT, was sufficient to notify IDOT of the complaint.

Gunther relies on Old Ben Coal Company v. Industrial Commission, 217 Ill. App.3d 70, 159 Ill.Dec. 967, 576 N.E.2d 890 (1991). In Old Ben Coal, the employer, Old Ben Coal Company, appealed the decision of the Illinois Industrial Commission that the claimant, Clifford Frye, was permanently and totally disabled. Old Ben Coal, 217 Ill.App.3d at 72, 159 Ill.Dec. 967, 576 N.E.2d 890. In the request for service of summons,...