Nudell v. FOREST PRESERVE DIST. OF COOK

• Decision Date: 17 October 2003
• Docket Number: No. 94679.,94679.
• Citation: 799 N.E.2d 260,278 Ill.Dec. 542,207 Ill.2d 409
• Parties: Michael NUDELL, Appellant, v. The FOREST PRESERVE DISTRICT OF COOK COUNTY, Appellee.
• Court: Illinois Supreme Court

799 N.E.2d 260

207 Ill.2d 409

278 Ill.Dec. 542

Michael NUDELL, Appellant, v. The FOREST PRESERVE DISTRICT OF COOK COUNTY, Appellee.

No. 94679.

Supreme Court of Illinois.

October 17, 2003.

Mark D. DeBofsky, of Daley, DeBofsky & Bryant, Chicago, for appellant.

Jonathan A. Rothstein and Frederick S. Rhine, of Gessler, Hughes, Socol, Piers, Resnick & Dym, Ltd., Chicago, for appellee.

Justice THOMAS delivered the opinion of the court:

At issue in this case is whether the 35-day period for filing a complaint under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 1998)) begins to run on the date that the agency decision is deposited in the United States mail or on the date that the decision is actually received by the party affected by the decision. The appellate court held that the 35-day period begins to run on the date that the agency decision is deposited in the United States mail. 333 Ill.App.3d 518, 267 Ill.Dec. 343, 776 N.E.2d 715. For the following reasons, we affirm the decision of the appellate court.

BACKGROUND

Plaintiff, Michael Nudell, filed a complaint for administrative review of a decision of the Civil Service Commission of Cook County (the Commission) terminating his employment as a police officer with defendant, Forest Preserve District of Cook County (the District). Plaintiff began his employment as a District police officer in October 1987. On June 12, 1997, plaintiff was suspended by the District for 29 days following an internal investigation and predisciplinary hearing concerning allegations of sexual harassment and insubordination. The Commission conducted an evidentiary hearing, found that the charges against plaintiff were sustained, and ordered termination of plaintiff's employment as a police officer. The Commission deposited a copy of its decision addressed to plaintiff's attorney in the United States mail on March 25, 1998. Due to the relocation of the attorney's office, the decision was not received by the attorney until April 6, 1998.

Plaintiff filed his complaint in the circuit court of Cook County on May 5, 1998. The District filed a motion to dismiss plaintiff's complaint on the ground, inter alia, that the complaint was not timely because it was filed more than 35 days from the date that the Commission mailed the decision to plaintiff. The circuit court denied the defendant's motion to dismiss. The circuit court then upheld the Commission's finding that plaintiff was insubordinate, but rejected a finding that plaintiff had violated Cook County's policy against sexual harassment. The circuit court found that there was an insufficient record to establish a violation of the policy against sexual harassment, and remanded the matter to the Commission for further findings on that issue.

Upon remand, and following further hearing, the Commission again found that the charges against plaintiff were sustained and ordered the termination of plaintiff's employment. Plaintiff filed a second complaint for administrative review in the circuit court on December 2, 1999. The circuit court set aside the findings of the Commission. The circuit court held that the charges of sexual harassment were vague and were not directed to specific conduct. The circuit court stated that the only charge surviving scrutiny was the charge of insubordination. The circuit court concluded that discharge was too harsh a penalty for the offense of insubordination, and held that plaintiff's punishment should be no more than the 29-day suspension that plaintiff already had served.

The Commission appealed the circuit court's ruling. The appellate court noted that section 3-103 of the Administrative Review Law (735 ILCS 5/3-103 (West 1998)) provides that a complaint for review of a final administrative decision must be filed within 35 days from the date that a copy of the decision to be reviewed is served upon the party affected by the decision. 333 Ill.App.3d at 522, 267 Ill.Dec. 343, 776 N.E.2d 715. The appellate court further noted that section 3-103 provides that a decision is served when it is deposited in the United States mail. 735 ILCS 5/3-103 (West 1998). In this case, the Commission deposited a copy of its decision in the United States mail on March 25, 1998. 333 Ill.App.3d at 522, 267 Ill. Dec. 343, 776 N.E.2d 715. The thirty-fifth day from March 25, 1998, was April 29, 1998. 333 Ill.App.3d at 522-23, 267 Ill. Dec. 343, 776 N.E.2d 715. Plaintiff's initial complaint, however, was not filed until May 5, 1998, and therefore was not timely. 333 Ill.App.3d at 522, 267 Ill.Dec. 343, 776 N.E.2d 715. The appellate court held that the circuit court should have granted the District's motion to dismiss plaintiff's initial complaint for administrative review because the circuit court lacked jurisdiction over the complaint. 333 Ill.App.3d at 523, 267 Ill.Dec. 343, 776 N.E.2d 715. Accordingly, the appellate court vacated the circuit court's order. 333 Ill.App.3d at 523, 267 Ill.Dec. 343, 776 N.E.2d 715.

This court then granted plaintiff's petition for leave to appeal. 177 Ill.2d R. 315(a).

ANALYSIS

The Administrative Review Law provides that parties to a proceeding before an administrative review agency shall be barred from obtaining judicial review of an agency's administrative decision unless review is sought within the time and manner set forth in the statute. 735 ILCS 5/3-102 (West 1998). With regard to the time for filing a complaint for administrative review, section 3-103 provides, in pertinent part:

"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[.]

* * *

The method of service of the decision shall be as provided in the Act governing the procedure before the administrative agency, but if no method is provided, a decision shall be deemed to have been served either when personally delivered or when a copy of the decision is deposited in the United States mail, in a sealed envelope or package, with postage prepaid, addressed to the party affected by the decision at his or her last known residence or place of business." 735 ILCS 5/3-103 (West 1998).

The parties agree that no method of service is provided in the statute governing the proceedings before the Commission (see 55 ILCS 5/3-14011 through 3-14015 (West 1998)), so that section 3-103 applies to determine the date of service of the administrative decision. The parties disagree, however, concerning whether the portion of section 3-103 providing that "a decision shall be deemed to have been served * * * when deposited in the United States mail" in fact means that a decision is deemed to have been served when deposited in the United States mail, or actually means that a decision is deemed to have been served when received by the party affected thereby. The parties note that there are conflicting decisions from this court that support either interpretation of section 3-103. Where this court has adopted conflicting interpretations of the same statute, the duty of this court is to clarify and resolve its previous decisions. Williams v. Crickman, 81 Ill.2d 105, 111, 39 Ill.Dec. 820, 405 N.E.2d 799 (1980). Because the issue in this case concerns the interpretation of a statute, the issue presents a question of law and our review is de novo. King v. Industrial Comm'n, 189 Ill.2d 167, 171, 244 Ill.Dec. 8, 724 N.E.2d 896 (2000)

.

In support of its interpretation, the District cites Cox v. Board of Fire & Police Commissioners, 96 Ill.2d 399, 71 Ill.Dec. 688, 451 N.E.2d 842 (1983), which the appellate court relied on in finding that plaintiff's initial complaint was untimely. In Cox, this court stated that the "statutory provision [section 3-103, formerly Ill.Rev. Stat.1979, ch. 110, par. 267] is clear and unequivocal. Since the statute which governed the proceeding before the defendant board [citation] provides no method of service, the decision was served when deposited in the United States mail." Cox, 96 Ill.2d at 403, 71 Ill.Dec. 688, 451 N.E.2d 842.

In response, plaintiff claims that Cox is both an aberration and is distinguishable. Plaintiff cites Lockett v. Chicago Police Board, 133 Ill.2d 349, 140 Ill.Dec. 394, 549 N.E.2d 1266 (1990), and Carver v. Nall, 186 Ill.2d 554, 239 Ill.Dec. 567, 714 N.E.2d 486 (1999), in support of his claim that his complaint was timely because it was filed within 35 days of his receipt of the administrative decision. In Lockett, this court stated: "[a]s noted previously, section 3-103 of the act provides that an action to review an administrative decision shall be commenced `by the filing of a complaint and the issuance of summons within 35 days' of receipt of the decision being appealed." (Emphases omitted.) Lockett, 133 Ill.2d at 354, 140 Ill.Dec. 394, 549 N.E.2d 1266. Subsequently, in Carver, this court quoted the preceding statement from Lockett. See Carver, 186 Ill.2d at 559, 239 Ill.Dec. 567, 714 N.E.2d 486.

Plaintiff argues that this court should reverse the appellate court's decision to follow Cox. Plaintiff claims that the language at issue in Cox is obiter dictum, and thus is not binding as authority or precedent. Plaintiff then argues that even if the remark in Cox would be considered judicial dictum rather than obiter dictum, the comments in Lockett and Carver have the same significance as the comment in Cox. Accordingly, because the comments in Lockett and Carver are this court's most recent pronouncements on the issue, those comments should supersede the earlier statement in Cox.

This court has explained the difference between obiter dictum and judicial dictum. We have noted that:

"The term `dictum' is generally used as an abbreviation of obiter dictum, which means a remark or opinion uttered by the way. Such an expression or opinion as a general rule is not binding as authority or

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