Stone Street Partners, LLC v. The City of Chicago Department of Administrative Hearings

2014 IL App (1st) 123654

FIRST DIVISION
Opinion filed May 20, 2014
Rehearing denied.

No. 1-12-3654

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

STONE STREET PARTNERS, LLC, ) Appeal from the Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. ) No. 12 M1 450026
)
THE CITY OF CHICAGO DEPARTMENT OF )
ADMINISTRATIVE HEARINGS, )
) Honorable Mark Ballard,
Defendant-Appellee. ) Judge Presiding.

JUSTICE DELORT delivered the judgment of the court, with opinion.
Justice Hoffman concurred in the judgment and opinion.
Presiding Justice Connors concurred in part and dissented in part, with opinion.

OPINION

¶1 This case involves a relatively small amount of money, but it provides an opportunity to

explore deficiencies in the manner in which the City of Chicago (City) handles in-house

adjudication of ordinance violations. Nearly 14 years ago, a City administrative hearing officer

fined plaintiff Stone Street Partners, LLC (Stone Street), for building code violations. Stone

Street never paid the fine and the City eventually recorded a lien against the subject property.

Stone Street did not, however, challenge the fine until over 11 years after the City imposed it,

allegedly because it had never been notified of the proceedings in the first place. After an
No. 1-12-3654

unsuccessful attempt to vacate the fine at the administrative level, Stone Street filed a complaint

in the circuit court for administrative review, equitable relief and monetary damages. The circuit

court dismissed plaintiff’s complaint in full. We affirm in part, reverse in part, and remand for

further proceedings.

¶2 BACKGROUND

¶3 In 1999, a City building inspector found several building code violations in one of

plaintiff’s buildings. Rather than mailing a notice of violation and a summons for the

administrative hearing to plaintiff’s registered agent or to its business address, as required by

City ordinance, the City sent the notice to the property itself. Although the Chicago Municipal

Code does provide for notice to be given to a property owner by posting the summons on the

front door of the property, this method is authorized only if notice by mail to the owner’s

registered agent or primary business address fails. See Chicago Municipal Code § 2-14-074(c)

(amended Apr. 29, 1998).

¶4 Despite the faulty notice, a person named Keith Johnson appeared at the hearing on Stone

Street’s behalf. The City has destroyed virtually all of the administrative record, but what

remains indicates that Johnson filed a written appearance for Stone Street and presented some

exhibits to the hearing officer in response to the notice of violation. The evidence was

apparently unpersuasive, as the hearing officer found plaintiff liable for the violations and fined

it $1,050. The final administrative judgment was “registered” with the circuit court in 2004, and

in 2009 the City recorded the court’s judgment with the Cook County recorder of deeds. 1

1
A bit of explanation is required with respect to the various dates and proceedings
involved in this record. The governing statute (65 ILCS 5/1-2.1-8(b) (West 2010)) provides that
a money judgment entered by a municipal hearing officer “may be enforced in the same manner
as a judgment entered by a court of competent jurisdiction.” Monetary court judgments are
valuable because the judgment creditor may issue garnishment process and attach the debtor’s

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¶5 Stone Street contends that it had no idea that the 1999 order existed until sometime in

2011. In September of that year, its attorney served a Freedom of Information Act (5 ILCS

140/1 et seq. (West 2010)) request on the City and received a copy of the 1999 order. In

October, it filed a motion to vacate and set aside the 1999 order with the City’s department of

administrative hearings (DOAH), contending that it had never received notice of the 1999

violations. The motion claimed, among other things, that Keith Johnson had never been

authorized to represent Stone Street in any capacity, much less a legal one. Stone Street’s

attorney provided an affidavit identifying Johnson as a nonattorney and a caretaker for a Stone

Street manager who had been gravely incapacitated in 1998 and who was no longer involved in

the management of the company. The administrative hearing officer, however, found that

DOAH lacked jurisdiction to vacate the order. The governing ordinance only allowed it to

consider vacating default judgments within 21 days of their entry. Additionally, Johnson’s

participation meant that Stone Street was not defaulted, but rather lost on the merits.

¶6 Stone Street then filed a multicount complaint in the circuit court. One count sought

administrative review of the DOAH’s 2011 order. Other counts sought a declaratory judgment,

assets to collect the judgment. 735 ILCS 5/12-701 et seq. (West 2010). When the legislature
elevated municipal administrative judgments to the dignity of court judgments, it neglected to
provide a parallel collection mechanism. Accordingly, municipalities like Chicago have “filed”
their own administrative judgments in circuit court and asked the court to “register” them as
court judgments, making them more easily collectible. That is apparently what the City of
Chicago did in 2004 – five years after the hearing. On May 3, 2012, after more than the requisite
seven years had passed since that “registration,” the circuit court entered a form order in that
case, numbered 04 M1 612624, “reviving” a judgment of $1,050 plus $350 in attorney fees
entered “in this Court” on September 9, 1999. However, that language in the order is wrong.
The 1999 date corresponds to the administrative judgment, not to any judgment of the circuit
court. The order states that Stone Street was given “due notice” of the 2012 revival proceedings
by substitute service.

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quiet title and damages for slander of title. 2 The City filed a motion to dismiss, which the circuit

court granted with prejudice as to all counts. This appeal followed.

¶7 ANALYSIS

¶8 Normally, vacating judgments after the passage of years is virtually impossible due to the

presumptions of validity that apply to the judicial process. However, the City of Chicago made

two critical errors in this case which invalidate the judgment. First, the City served the defendant

corporation not through its registered agent, as required by City ordinances, but at the property

address. Second, the City’s administrative hearing officer allowed a nonattorney to appear and

litigate the case on behalf of the corporation.

¶9 The court below dismissed all of Stone Street’s claims on a motion to dismiss filed

pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West

2010)). A section 2-619 motion to dismiss admits all well-pleaded facts as true, along with all

reasonable inferences that can be gleaned from those facts. Porter v. Decatur Memorial

Hospital, 227 Ill. 2d 343, 352 (2008). When ruling on a section 2-619 motion to dismiss, a court

must interpret all pleadings and supporting documents in the light most favorable to the

nonmoving party. Id. We review section 2-619 dismissals de novo. Id.

¶ 10 Putting the pieces to this puzzle together requires us to review the background of

municipal ordinance adjudications in some depth. Through a series of enactments over the last

20 years or so, our legislature has facilitated the removal of ordinance enforcement hearings

from the judiciary to the local administrative level. See generally Matthew W. Beaudet,

2
On appeal, plaintiff has abandoned another count alleging the unauthorized practice of
law by the City. This count alleged that the City could not initiate ordinance violation
complaints before its own administrative hearing department unless the complaint was signed by
an attorney representing the City. It did not, in any way, address nonattorney Johnson’s
participation at the hearing.

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No. 1-12-3654

Adjudication of Ordinance Violations, in Municipal Law § 9.1 (Ill. Inst. for Cont. Legal Educ.

2012). The underlying statute establishing in-house administrative adjudication, and raising their

judgments to the dignity of court judgments, was the result of Public Act 90-516, sponsored by

then-state senator Barack Obama. Pub. Act 90-516 (eff. Jan. 1, 1998). When discussing the

legislation, he declared that its purpose was to “give these administrative adjudication processes

some teeth” and that litigating the cases through regular courts was “overburden[ing]” them.

90th Ill. Gen. Assem., Senate Proceedings Mar. 19, 1997, at 114 (statements of Senator Obama).

The process has been so successful that the City of Chicago has established a large central

hearing facility that rivals Illinois county courthouses in its size and case volume. See City of

Chicago Administrative Hearings, available at http://www.cityofchicago.org/city/en/depts/ah/

supp_info/hearing_location.html (last visited Mar. 5, 2014.)

¶ 11 Despite the fact that circuit court judges do not preside, and the rules of evidence may be

relaxed, defendants in these hearings are still entitled to due process of law. It is well-settled that

“[a] fair hearing before an administrative agency includes the opportunity to be heard, the right

to cross-examine adverse witnesses, and impartiality in ruling upon the evidence.” Abrahamson

v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 95 (1992); see also

Waicekauskas v. Burke, 336 Ill. App. 3d 436, 438 (2002) (invalidating municipal adjudication

process on due process grounds).

¶ 12 Section 2-14-074(c) of the Chicago Municipal Code requires that notices to corporate

defendants for administrative hearings against them must be sent to the address of the

corporation’s registered agent. Chicago Municipal Code § 2-14-074(c) (amended Apr. 29,

1998). There is no dispute that, in this case, the City sent the notice to the property address and

not to the registered agent. Accordingly, the service was not accomplished by any of the various

5
No. 1-12-3654

manners authorized by the governing ordinance. To pass constitutional muster, notice in

administrative proceedings need only be “reasonably calculated, under all the circumstances, to

apprise [the respondents] of the pendency of the action and afford them an opportunity to present

their objections.” (Internal quotation marks omitted.) Horn v. City of Chicago, 860 F.2d 700,

704 (7th Cir. 1988). However, although administrative proceedings may relax formalities which

apply in courts of record, and notice to a defendant may be accomplished by many different

means, the City has imposed limitations on itself, and it is required to follow its own ordinances.

See 5 Eugene McQuillin, Municipal Corporations § 15.28, at 174-75 (3d rev. ed. 1996). As an

administrative agency created by ordinance, the DOAH may act only in accordance with the

power conferred on it by the City council. See, e.g., Pearce Hospital Foundation v. Illinois

Public Aid Comm’n, 15 Ill. 2d 301, 307 (1958).

¶ 13 Although service of the notice of hearing must be sent to the registered agent, the City

notes that no similar requirement applies to service of the order. Accordingly, the City claims,

its transmission of the 1999 order to Stone Street’s business address was sufficient. However, it

is well established that a “defendant’s actual knowledge that an action is pending or that service

has been attempted is not the equivalent of service of summons and would not relieve the

plaintiff of its burden or vest the court with jurisdiction.” Equity Residential Properties

Management Corp. v. Nasolo, 364 Ill. App. 3d 26, 35 (2006).

¶ 14 We must therefore turn to the question of whether Stone Street waived any objection to

service through Johnson’s participation at the hearing. Johnson was a nonattorney who worked

as a caretaker for a gravely ill corporate officer. He filed a written appearance on behalf of the

corporation. We have little information about what else happened at the hearing other than that

it ended with the imposition of a fine against the corporation. This dearth of information results

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No. 1-12-3654

from the City’s own destruction of most of the records from the hearing, a destruction it

undertook even though the fine had not been paid, and the City was pursuing collection of it –

albeit at a glacial pace. Appearance and active participation in a judicial proceeding, of course,

waives any objection regarding improper service. 735 ILCS 5/2-301(a) (West 2010); GMB

Financial Group v. Marzano, 385 Ill. App. 3d 978, 996 (2008). The same principle applies

regarding participation at administrative hearings. Greene v. Board of Election Commissioners,

112 Ill. App. 3d 862 (1983).

¶ 15 Nonattorneys, including paralegals and claims negotiators, provide valuable professional

services to corporations in the same manner as licensed attorneys do. Under the general

principles of agency, a nonattorney can represent the corporation in negotiations with customers,

sign contracts for the corporation, and the like. However, the City’s administrative hearings, like

judicial proceedings, involve the admission of evidence and examination and cross-examination

of sworn witnesses – all of which clearly constitute the practice of law. The City argues strongly

that these hearings are so inconsequential that corporations need not be represented by licensed

attorneys, but to counter that point, we need look no further than Express Valet, Inc. v. City of

Chicago, 373 Ill. App. 3d 838 (2007), where this court upheld the DOAH’s imposition of a fine

of $135,825 for multiple violations of a valet parking ordinance. The City also presents its

administratively-adjudicated traffic citations as an example of cases so simple that anyone can

successfully handle them, but corporations do not drive motor vehicles. Administrative hearings,

whether held by a municipality or state agency, necessarily implicate the full range of the powers

of sovereign governments over individuals and other entities. Their decisions can implicate the

ability to practice a chosen profession or engage in a business, and can result in the imposition of

crushing financial sanctions. This is true regardless of whether the rules of evidence are relaxed.

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Representation of a corporate defendant at these hearings requires expertise only a lawyer is

qualified to provide, such as drafting motions; interpreting laws and ordinances; determining

whether to call certain witnesses; how to examine the witnesses; how to properly secure, object

to, or admit evidence; and to analyze whether a settlement offer is favorable. Additionally, there

is little distinction between the range of remedies available in administrative proceedings and

those available in a court of law, with the exception of imprisonment and equitable relief. In a

court of law, corporations cannot represent themselves through a nonattorney except in the

simplest small claims cases. The similarity between modern administrative proceedings and

traditional judicial ones compels us to reject the City’s contention that the proceedings are so

manifestly different that corporations can appear at them through non-lawyers.

¶ 16 There is no bright-line test to distinguish what is, or is not, the practice of law. “It is

immaterial whether the acts which constitute the practice of law are done in an office, before a

court, or before an administrative body. The character of the act done, and not the place where it

is committed, is the factor which is decisive of whether it constitutes the practice of law.”

People ex rel. Chicago Bar Ass’n v. Goodman, 366 Ill. 346, 357 (1937). A different panel of this

court struggled with the question in Sudzus v. Department of Employment Security, 393 Ill. App.

3d 814, 823 (2009), finding, in a highly fact-based decision, that a lay representative of a

corporation attending an unemployment compensation hearing did not engage in the

unauthorized practice of law because “the character of the actions did not require legal

knowledge or skill; and he supplied simple, fact-based answers.” Similarly, in Grafner v.

Department of Employment Security, 393 Ill. App. 3d 791 (2009), a divided panel of this court

found that the relatively innocuous actions that had already been taken in a particular hearing by

a nonattorney representative of the employer did not rise to the level of the practice of law so as

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No. 1-12-3654

to cause the hearing to be a nullity. One justice specially concurred, noting “[t]his is the

unauthorized practice of law.” Id. at 805 (O’Malley, J., specially concurring.) Even so, the

Sudzus and Grafner analyses did not persuade the Board of Governors of the Illinois State Bar

Association (ISBA), which, in May 2010, reviewed the newly adopted Illinois Rules of

Professional Conduct of 2010 and reaffirmed its March 1994 advisory opinion holding that the

pervasive practice of nonattorneys giving legal advice, preparing evidence for presentation and

examining witnesses and otherwise participating at unemployment administrative hearings

constituted the unauthorized practice of law. Ill. State Bar Ass’n Op. No. 93-15 (Mar. 1994).

We find neither Sudzus nor Grafner to be persuasive on the larger issue presented here, but

instead find the ISBA’s position to be well-taken, and so hold that representation of corporations

at administrative hearings – particularly those which involve testimony from sworn witnesses,

interpretation of laws and ordinances, and can result in the imposition of punitive fines – must be

made by a licensed attorney at law.

¶ 17 Our supreme court quite recently reaffirmed a rule dating back to “as early as Lord

Coke’s time” 3 that a corporation must be represented by counsel in legal proceedings. See

Downtown Disposal Services, Inc. v. City of Chicago, 2012 IL 112040, ¶ 17 (citing Nixon,

Ellison & Co. v. Southwestern Insurance Co., 47 Ill. 444, 446 (1868)). The reason for this

requirement, the court stated, was that “[i]t is not every case where the views or interests of a

principal and the corporation mesh. By requiring an attorney to represent a corporation in legal

proceedings, this problem is mitigated. *** Courts in this country, including this court,

unanimously agree that a corporation must be represented by counsel in legal proceedings.”

(Emphases added.) Id. ¶¶ 17, 22. The Downtown Disposal court found that an administrative

3
Referring to English jurist Lord Edward Coke (1552-1634).

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review complaint filed by a nonattorney was not a complete nullity, but could be validated by

having a licensed attorney file an amended complaint, even after the normal administrative

review period had elapsed. The three dissenting justices noted that even creating that narrow

exception violated an “unbroken line of precedent dating back before the Civil War.” Id. ¶ 41

(Karmeier, J., dissenting, joined by Kilbride, C.J., and Thomas, J.) Despite the split on whether

the exception should be created to the nullity rule, all seven justices agreed that nonattorneys

cannot represent corporations in matters requiring the expertise of an attorney. Id. ¶¶ 22, 41.

¶ 18 The City presents several reasons why nonattorneys should be allowed to represent

corporations at administrative hearings; none of them is meritorious. First, it cites a series of

statutes and administrative regulations providing that nonattorneys can represent corporations at

various types of administrative hearings. The City notes that it specifically allows nonattorneys

to represent corporations at its administrative hearings. See City of Chicago Department of

Administrative Hearings R. 5.1, available at https://www.cityofchicago.org/city/en/depts/ah.html

(last visited Mar. 6, 2014) (select “Rules and Ordinances”; then select “Rules and Regulations”;

then select “Chapter 5. Right to Representation”). This grant of authority may be efficacious,

but it clearly usurps the authority of our supreme court to administer the practice of law. “The

General Assembly has no authority to grant a layman the right to practice law.” Goodman, 366

Ill. at 352 (citing In re Day, 181 Ill. 73, 84 (1899)). This problem apparently arises frequently at

Chicago administrative hearings. See Downtown Disposal Services, Inc., 2012 IL 112040, ¶ 8

(quoting trial judge who found that legal instructions given by Chicago administrative hearing

officers to nonattorneys representing corporate defendants that the nonattorney had the “right to

appeal this” were “clearly erroneous” (internal quotation marks omitted)). Since only the Illinois

Supreme Court can regulate the practice of law, the statutes and regulations on which the City

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relies are of highly doubtful validity. See Goodman, 366 Ill. at 349; Downtown Disposal

Services, Inc., 2012 IL 112040, ¶14.

¶ 19 In its petition for rehearing, the City, joined by the Attorney General as amicus curiae,

suggests that our holding regarding nonattorney representation of corporations at administrative

hearings and our questioning of administrative regulations purporting to allow unlicensed

persons to practice law would have deleterious consequences. We disagree. As we have noted,

except in a small claims case, no judge sitting in a circuit court would allow a corporation to

appear as a party through a nonattorney employee or officer. Judges routinely provide

admonitions in such situations and grant continuances to obtain counsel. Administrative

agencies vested with the power of government to punish, fine, and transfer property should, and

must, follow the same principle. If anything, our holding will protect the rights of corporations

which may lose valuable rights or property because they have lost administrative hearings due to

the presence of an unqualified representative working on their behalf. All that being said, we

note that this case hinges largely on the allegation of lack of proper service. When a corporate

administrative defendant has been properly served, and a judgment has been entered against it,

the judgment is properly cognizable as a standard default, regardless of whether the corporation

did not appear at all or appeared through a nonattorney.

¶ 20 Second, the City cites Illinois Supreme Court Rule 282(b) (Ill. S. Ct. R. 282(b) (eff. July

1, 1997)), which allows corporations to defend against small claims cases through a nonattorney

officer or manager. However, it neglects to cite Rule 281, which defines “small claim[s]” only

as including “civil action[s] based on either tort or contract for money not in excess of $10,000,

exclusive of interest and costs, or for the collection of taxes not in excess of that amount.” Ill. S.

Ct. R. 281 (eff. Jan. 1, 2006). Ordinance enforcement and the imposition of fines are not based

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in “tort or contract” and so clearly fall outside this definition. Rule 282(b) does not legitimize

Johnson’s representation of Stone Street at the 1999 hearing.

¶ 21 Johnson’s appearance at the hearing does not change the result. A defendant does not

waive objection to jurisdiction if it participated through someone who was unauthorized to do so

– even if the representative is a licensed attorney at law. When an attorney appears of record for

a party, there is a rebuttable presumption that the party authorized the attorney to do so. Gray v.

First National Bank of Chicago, 388 Ill. 124, 129 (1944). However, “when the facts show a lack

of authorization, express or implied, and there is no proof of ratification, the acts of counsel are a

nullity.” Id. at 129. Where affidavits establish that an attorney was not acting as the party’s

attorney, no general appearance is made. People v. Mickow, 58 Ill. App. 3d 780, 783 (1978).

¶ 22 That brings us to the question of the appropriate remedy and the various counts which

Stone Street presented in its complaint. In count I, Stone Street sought administrative review of

the DOAH’s 2011 order. Neither a court nor a governmental body gains jurisdiction over a non-

served defendant merely by the passage of a long period of time. A judgment entered without

jurisdiction – that is, because of lack of service – is void and can be vacated at any time, either

directly or collaterally. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103 (2002). In

January 2012, Stone Street sought relief by filing a motion before the DOAH which, while not

titled as such, was essentially a motion to quash service and void the 1999 order. However, the

DOAH determined that it had no jurisdiction to consider such a motion because the City

ordinances provided no mechanism for un-served defendants to vacate void orders. Stone Street

disagrees, relying on a City ordinance which states in part:

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“Petition to set aside default order.

(a) An administrative law officer may set aside any order

entered by default and set a new hearing date, upon a petition filed

within 21 days after the issuance of the order of default, if the

administrative law officer determines that the petitioner’s failure to

appear at the hearing was for good cause or, at any time, if the

petitioner establishes that the petitioner was not provided with

proper service of process. If the petition is granted, the

administrative law officer shall proceed with a new hearing on the

underlying matter as soon as practical.” Chicago Municipal Code

§ 2-14-108(a) (added Apr. 29, 1998).

¶ 23 A related code section provides that a “default” as entered only “[i]f at the time set for a

hearing the recipient of a notice of violation or a notice of hearing, or his or her attorney of

record, fails to appear.” Chicago Municipal Code § 2-14-078 (amended Apr. 29, 1998).

¶ 24 The City argues that section 2-14-108(a) only applies to default orders. We give

substantial weight to the agency’s opinion about an ambiguous statute or regulation, and we also

give deference when the agency’s interpretation relates to its own jurisdiction. See Aurora

Manor, Inc. v. Department of Public Health, 2012 IL App (1st) 112775, ¶ 9. Our supreme court

has long held that because “an administrative agency is a creature of statute, any power or

authority claimed by it must find its source within the provisions of the statute by which it is

created.” (Internal quotation marks omitted.) County of Knox ex rel. Masterson v. Highlands,

L.L.C., 188 Ill. 2d 546, 554 (1999).

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¶ 25 We agree with the City’s interpretation of section 2-14-108(a), noting that the title of the

section refers only to default orders, and further finding that the term “default” in the first clause

modifies both the clause regarding good cause and the clause following the “or” dealing with

service of process. Stone Street was not held in default at the 1999 hearing – perhaps it should

have been, on the basis that Johnson’s appearance was a nullity. Nonetheless, the 1999 order

mentions nothing about default, and it was clearly entered after some sort of adjudication on the

merits. Accordingly, the DOAH correctly determined it had no jurisdiction to consider Stone

Street’s motion to vacate, and the circuit court correctly confirmed that administrative decision

on review. We therefore affirm the dismissal of count I of the complaint.

¶ 26 Count II of the complaint is labeled both as a claim to quiet title and for a declaratory

judgment. Specifically, the forms of relief it requests are: (1) a declaration that the City’s lien on

Stone Street’s property is void; (2) a declaration that the 1999 administrative judgment is null

and void; and (3) a judgment against the City for slander of title and attorney fees. The City’s

failure to provide defendants with a procedure to quash service of process and vacate void orders

leaves Stone Street without an in-house remedy. As we explained above, the complaint and

affidavits set forth sufficient facts to support a valid claim based on voidness of the 1999 order.

The City contends here that Stone Street is left without a remedy because it failed to seek

administrative review of the 1999 order. Indeed, it is well settled that “[w]here the statute

creating or conferring power on an administrative agency expressly adopts the Administrative

Review Law, a circuit court has no authority to entertain an independent action.” Metzger v.

DaRosa, 209 Ill. 2d 30, 42 (2004). However, a defendant cannot be expected to timely seek

review of an order of which it was not properly notified.

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¶ 27 In Sarkissian, 201 Ill. 2d at 104-05, our supreme court noted that the Code of Civil

Procedure makes no “provision for the filing of a motion to challenge a judgment on voidness

grounds” and that section 2-1401(f) (735 ILCS 5/2-1401(f) (West 2000)) “expressly abolishes all

other common law means of attacking void judgments.” The court noted that a void order may

be attacked at any time. Id. at 103. It further held that the general requirements for a valid

section 2-1401 petition cannot, and do not, apply to petitions to invalidate service of process. Id.

at 105. In particular, the supreme court held that a petition challenging a void judgment in the

nature of a motion to quash: (1) need not allege either a meritorious defense or due diligence;

and (2) may be brought at any time, not merely within two years of the final order. Id. at 104.

To resolve the legislature’s failure to provide a specific mechanism to vacate void orders more

than two years after their entry, the Sarkissian court created one. It held that while a pleading to

challenge a void judgment based on invalid service must be brought under section 2-1401, it

could be brought more than two years after the judgment was entered, despite the time limitation

established by the legislature. Id.; see also Protein Partners, LLP v. Lincoln Provision, Inc., 407

Ill. App. 3d 709, 715 (2010) (noting that “[o]ur courts have repeatedly held that an untimely

postjudgment motion must be viewed as a section 2-1401 motion by the appellate court because

it is the only vehicle that a party may use once the 30 days have expired”).

¶ 28 Using Sarkissian as our guide, we hold that cases such as Metzger do not bar us from

providing a remedy. Because some sort of equitable relief must be available to remedy the

alleged wrong suffered by Stone Street, the circuit court erred in dismissing count II. However,

the relief available in count II on remand, should Stone Street prove the underlying facts, may

not include damages for slander of title, as that claim is barred for the reasons set forth below.

Additionally, we note that this remedy is only potentially available to Stone Street because of the

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unusual convergence of both of two qualifying factors: (1) the City’s failure to properly serve

defendant in the first instance, a situation normally addressed in courts by a motion to quash; and

(2) the fact that Stone Street did not waive jurisdiction merely because a non-authorized

representative of it appeared at the hearing. Administrative judgments against corporations

which were properly served must still be reviewed under the standards established in the

governing ordinance with respect to motions to vacate default judgments. While we reverse the

dismissal of the main portion of count II, we affirm the dismissal of the third portion of the

prayer for relief of count II.

¶ 29 Our dissenting colleague suggests that the 1999 judgment was somehow subject to

administrative review not merely for the usual 35 days, but for years and years until, at some

point, Stone Street found out about it. Section 3-103 of the Administrative Review Law provides

that a losing party may file for administrative review “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 2010). The “served upon” language seems to recognize there may be a

delay between the conclusion of the hearing and the issuance of the decision. Even so, one can

interpret the 35-day “was served” period as running from the date of mailing or from the date of

receipt. If the period ran from the date of receipt, the dissent would have a valid point.

However, in a case the City cites in its own brief, our supreme court has resolved the statutory

ambiguity, holding that decisions served by mail must be appealed 35 days after the date the

decision is placed in the mail. 735 ILCS 5/3-103 (West 2010); Nudell v. Forest Preserve District

of Cook County, 207 Ill. 2d 409, 424 (2003). Therefore, Stone Street could not have appealed

the 1999 decision in 2009 when it claims to have first found about it. As interpreted by the

Nudell court, the Administrative Review Law cannot toll the 35-day deadline when losing parties

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are unaware of the pending administrative hearing in the first instance, allowing them to file for

review five or ten years after the fact. Had Stone Street filed for administrative review of the

1999 judgment in 2009 or 2011, the City would have undoubtedly claimed it was untimely, and

it would have been correct.

¶ 30 Further, the dissents suggest that a different remedy was created to assist a similarly-

situated administrative defendant by In re Abandonment of Wells, 343 Ill. App. 3d 303 (2003).

In that case, however, the court remanded the case back to the circuit court “to resolve the

factual dispute and to determine whether the Department complied with the notice requirements

and satisfied due process requirements.” Id., 343 Ill. App. 3d at 308 [emphasis added]. In so

doing, the Abandonment of Wells court recognized that expired time limitations caused the

administrative agency to lose jurisdiction, but placed the manner in the hands of the circuit court,

which had plenary equitable jurisdiction to resolve the dispute. In short, that is precisely the

remedy we provide here, albeit under the framework of declaratory relief.

¶ 31 Count III is a claim for slander of title based on the City’s recording of the judgment lien

against Stone Street’s property. In that count, Stone Street claims that the City knew that the

1999 order was void at the time that the City recorded the order in 2009 and knowing it was

void. The City moved to dismiss the both because it was as time-barred and because section 2-

107 of the Local Governmental and Governmental Employees Tort Immunity Act immunizes it

from liability for libel and slander. See 745 ILCS 10/2-107 (West 2010). Stone Street glosses

over the tort immunity defense in its briefs before this court, preferring instead to focus only on

whether the claim pled the elements of a slander-of-title claim and the merits of a statute-of-

limitations argument raised by the City. See 745 ILCS 10/8-101(a) (West 2010) (one-year

statute of limitations applies for tort claims against government entities). We need not reach the

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limitations issue because the immunity provided by section 2-107 is absolute and there are no

exceptions. Plaintiff has not argued otherwise (see Ill. S. Ct. R. 341(h)(7) (eff. Feb 6, 2013)

(claims not raised are forfeited)), and we may affirm on any ground appearing in the record (see

Camper v. Burnside Construction Co., 2013 IL App (1st) 121589, ¶ 29). The circuit court

correctly dismissed this count.

¶ 32 On rehearing, the City has asked us to grant a certificate of importance under Ill. Sup. Ct.

R. 316 (eff. Dec. 6, 2006) to facilitate its appeal of this decision to the Illinois Supreme Court.

This court has consistently determined that it will use this power sparingly and defer to the

Illinois Supreme Court’s determination of which cases it deems worthy of review People v.

Cherry Valley Public Library District, 356 Ill. App. 3d 893, 900 (2005). We decline to do so

here.

¶ 33 To summarize: as to count I, we affirm the circuit court’s affirmance of the DOAH’s

administrative ruling; we reverse the circuit court’s dismissal of count II, less the prayer for

monetary damages, and remand it for further proceedings consistent with this order; and we

affirm the circuit court’s dismissal of count III.

¶ 34 Affirmed in part and reversed in part; cause remanded for further proceedings.

¶ 35 JUSTICE CONNORS, concurring in part and dissenting in part:

¶ 36 Fundamentally, this case is about the procedural methods that are available, and those

that are not, to litigants who claim that an administrative judgment is void. We all agree that the

procedures surrounding the DOAH hearing in 1999 were, if plaintiff’s allegations are true,

woefully inadequate. What the majority and I disagree about is how that proceeding and the

resulting administrative judgment can be reviewed by the courts. I agree with my colleagues that

plaintiff’s quiet-title and slander-of-title claims cannot stand and that DOAH’s 2011

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administrative decision should be confirmed, so I concur in the court’s judgment and opinion on

those points. But I must respectfully dissent from the majority’s conclusion that the declaratory

judgment claim should proceed.

¶ 37 The majority holds that an allegedly void administrative judgment may be challenged at

any time via a declaratory judgment action. In my opinion, however, our constitution, statutes,

and precedent preclude such a claim. This case is, to be blunt, a civil-procedure disaster. But

while the majority opinion amply documents the City’s procedural failures, plaintiff is not

blameless. In my opinion, regardless of the merits of plaintiff’s arguments about the validity of

the 1999 order, plaintiff made several procedural decisions that preclude the courts from granting

any relief in this case.

¶ 38 At the heart of this case is the inescapable fact that the 1999 order is a final

administrative judgment. While the circuit court has general subject-matter jurisdiction over

nearly every kind of claim, the Illinois Constitution of 1970 permits the courts to review

administrative orders only as provided by statute. See Ill. Const. 1970, art. VI sect. 9. As the

supreme court has explained, “[b]ecause review of a final administrative decision may be

obtained only as provided by statute, a court exercises ‘special statutory jurisdiction’ when it

reviews an administrative decision. Special statutory jurisdiction is limited to the language of

the statute conferring it and the court has no powers from any other source. A party seeking to

invoke a court's special statutory jurisdiction must strictly comply with the procedures prescribed

by the statute.” (Emphasis added.) Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d

169, 178 (2007).

¶ 39 As an administrative judgment, review of the 1999 order can only be had pursuant to the

Administrative Review Law, and it is undisputed that plaintiff failed to petition for review within

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35 days after service of the judgment as required by the law. See 735 ILCS 5/3-103 (West

2010). Yet this was not plaintiff’s fatal mistake. As the majority points out, a party can hardly

be expected to seek timely review of an administrative judgment when it does not know the

judgment exists. See supra ¶ 26. The fatal mistake was that plaintiff never sought

administrative review of the judgment even after plaintiff learned of it. To be fair, had plaintiff

done so it is very likely that the City would have moved to dismiss the petition as untimely. Yet

we have previously rejected such a motion where the party seeking administrative review did not

receive notice of the judgment, which is what plaintiff alleges happened here. In the case of In

re Abandonment of Wells Located in Illinois by Leavell, 343 Ill. App. 3d 303 (2003), the plaintiff

petitioned for administrative review after the 35-day deadline but argued that it had not received

notice of the judgment. We reversed the circuit court’s order dismissing the petition on

timeliness grounds and remanded for an evidentiary hearing, holding that if the administrative

agency had in fact failed to properly serve notice of the judgment on the plaintiff, then that alone

would be grounds for vacating the administrative judgment. See id. at 306-09.

¶ 40 Based on Abandonment of Wells, it is debatable whether a motion to dismiss on

timeliness grounds would have succeeded, since that would depend on whether the City could

prove that DOAH had properly served plaintiff with notice of the 1999 order. See 735 ILCS 5/3-

103 (West 2010) (requiring that, in the absence of contrary provisions in an enabling statute, an

administrative decision must be served either by personal delivery or by mail to “the party

affected by the decision at his or her last known residence or place of business.”). But we will

never know whether the City could have done so because plaintiff never bothered to seek

administrative review of the order when it learned of the order’s existence. Instead, plaintiff

filed a futile motion to vacate the 1999 order with DOAH and then, when that failed, attempted

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to bootstrap review of the 1999 order into a misguided petition for administrative review of the

new 2011 order. I agree with my colleagues that new petition was properly dismissed, given the

clear limitations the Chicago Municipal Code places on DOAH’s authority to vacate orders.

¶ 41 Plaintiff also attempted several collateral attacks on the 1999 order via claims for quiet

title, slander of title, and a declaratory judgment. In addition to the problems with the quiet-title

and slander-of-title claims that the majority has already mentioned, the fundamental problem

with these collateral attacks is that they are not viable methods of seeking review of an

administrative judgment. We considered this issue in detail in Stykel v. City of Freeport, 318 Ill.

App. 3d 839 (2001), and we determined that the express terms of the Administrative Review

Law preclude all common-law and equitable collateral challenges to an administrative decision.

See id. 845-47. Although the majority believes that there must be some equitable method of

reviewing the 1999 order (see supra ¶ 28), Stykel rejected that very notion and held that

declaratory judgments are not an available option for obtaining review of an administrative

judgment. See id. at 847; see also id. at 845 (“[W]here the Review Law embraces administrative

agencies subject to its terms, it becomes the sole means of securing judicial review of decisions

of administrative agencies and eliminates the heretofore conflicting and inadequate common-law

and statutory remedies.”); 735 ILCS 5/3-102 (West 2010) (stating that in all administrative

review cases, “any other statutory, equitable or common law mode of review of decisions of

administrative agencies heretofore available shall not hereafter be employed.” (Emphasis

added.)). In fact, not even section 2-1401 petitions (735 ILCS 5/2-1401 (West 2010)), which are

the traditional method of challenging a void or voidable judgment, are an available option in this

context. See Krain v. Illinois Department of Professional Regulation, 295 Ill. App. 3d 577, 580-

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81 (1998); Rodriguez v. DuPage County Sheriff’s Merit Comm’n, 328 Ill. App. 3d 899, 905

(2002).

¶ 42 This rule is known as the doctrine of exhaustion of administrative remedies, under which

“a party may not seek judicial relief from an administrative action unless the party has exhausted

all available administrative remedies.” Arvia v. Madigan, 209 Ill. 2d 520, 531 (2004). The

supreme court explained the purpose and scope of the rule in Arvia:

“Importantly, the exhaustion doctrine extends to

administrative review in the circuit court. [Citation.] That is,

where the Administrative Review Law is applicable and the circuit

court may grant the relief a party seeks within the context of

reviewing the agency’s decision, a circuit court has no authority to

entertain independent causes of action regarding the agency’s

actions. [Citations.] Any other conclusion would enable a party to

litigate separately every alleged error committed by an agency in

the course of the administrative proceedings.” (Internal quotation

marks omitted.) Id. at 532.

¶ 43 There are some exceptions to this doctrine, but they are extremely limited in number and

are strictly construed. See Castaneda v. Illinois Human Rights Commission, 132 Ill. 2d 304, 309

(1989); see also Stykel, , 318 Ill. App. 3d at 848-50 (finding that a civil-rights claim against an

administrative agency is not preempted by the Administrative Review Law). Yet even if an

exception might apply in this case, plaintiff has not raised one nor even acknowledged that the

doctrine exists, so the issue is forfeit. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 1, 2004) (points not

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argued are forfeit); Vine Street Clinic v. HealthLink, Inc., 222 Ill. 2d 276, 300-01 (2006) (issues

not raised in the circuit court are forfeit on appeal).

¶ 44 In my opinion, the law is clear that plaintiff cannot attempt an end run around the

Administrative Review Law by seeking relief from the 1999 order in the form of a declaratory

judgment, much less a claim for quiet title or slander of title. Plaintiff’s only option was a

petition for administrative review of the 1999 order, and plaintiff has not done that. Not even

plaintiff’s petition for administrative review of the 2011 order can save the issue, given that

plaintiff sought only review of DOAH’s 2011 order denying the motion to vacate.

¶ 45 I agree with my colleagues that the City’s actions in this case are troubling and that its

system of adjudicating ordinance violations deserves to be reviewed. But this is not the case to

do so. Plaintiff’s procedural decisions have fatally compromised our ability to review the merits

of its claims, and allowing plaintiff to mount a backdoor challenge to the 1999 order in the guise

of a declaratory judgment is contrary to our precedent and the express terms of the

Administrative Review Law. I would hold that plaintiff’s only option for challenging the 1999

order as void was to file a petition for administrative review of that order. Even given the

timeliness problem in this case, review would still have been possible if the City was unable to

prove that it had properly served plaintiff with notice of the administrative judgment. But

because plaintiff could have but did not seek review of the 1999 order as required by the

Administrative Review Law, the courts have no power to review the merits of plaintiff’s claims

under any other mechanism.

¶ 46 Aside from my disagreement with the majority on the viability of the declaratory-

judgment count, I also cannot join with the majority on three other points. The first point is the

majority’s holding that “representation of corporations at administrative hearings *** must be

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made by a licensed attorney at law.” Supra ¶ 16. The City, joined by the Illinois Attorney

General as amicus curiae, argued in its petition for rehearing in this case that this extremely

broad holding is inconsistent with our precedent and will have a significant impact on all

administrative hearings conducted throughout Illinois.

¶ 47 The majority does not say so explicitly, but it has in effect invalidated not only DOAH

Rule 5.1 but also every other administrative rule that allows for nonattorneys to appear on behalf

of corporations at an administrative hearing. There are several problems with the majority’s

approach to this issue, in my view. The first, and perhaps the most important, is that this issue

was not presented on appeal and in any event is not essential to the ultimate holding in the case.

Plaintiff’s argument on appeal was not that Keith Johnson’s appearance at the 1999 hearing

rendered the proceedings invalid because he was not an attorney, but rather that the proceedings

were invalid because Johnson was not authorized to represent plaintiff at all. In the affidavit of

Brian Farley, which plaintiff filed as part of its motion to vacate the default before DOAH,

Farley attests that Johnson “was not an employee of [plaintiff] and was not authorized to

represent [plaintiff] in this matter.” While plaintiff initially also contended in the circuit court

that the proceedings were invalid because Johnson was not an attorney, plaintiff failed to argue

that issue on appeal. The facial validity of DOAH’s practice of allowing nonattorney

representation at its hearings was therefore neither properly briefed nor argued in this court.

¶ 48 The question of whether Johnson’s status as a nonattorney invalidates the proceedings is

thus a moot point, given not only that plaintiff abandoned that issue on appeal but that we can

resolve the issue of whether the proceedings were invalid without examining the unauthorized

practice of law issue. If the fact that Johnson was not authorized to represent plaintiff in any

capacity renders the proceedings invalid, then it is irrelevant whether his status as a nonattorney

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would do so as well. We have no authority to issue advisory opinions, which are opinions that

“resolve[] a question of law which is not presented by the facts of the case.” People ex rel.

Partee v. Murphy, 133 Ill. 2d 402, 408 (1990); see also Duncan Publishing Co. v. City of

Chicago, 304 Ill. App. 3d 778, 783 (1999) (“Illinois courts are foreclosed from issuing advisory

opinions and can not indulge in rendering opinions simply for the sake of creating precedents to

govern future cases.”). The supreme court has not only cautioned us repeatedly about issuing

advisory opinions on issues not essential to the case, but more importantly has warned us against

invalidating statutes when it is not necessary to do so. See In re E.H., 224 Ill. 2d 172, 178-181

(2006). The admonition applies equally well to invalidating administrative rules, which “have

the force and effect of law and, like statutes, are presumed valid.” People v. Selby, 298 Ill. App.

3d 605, 611 (1998). Yet not only has the majority chosen to invalidate DOAH’s rules allowing

for nonattorney representation when it was not necessary to do so in order to resolve this case, it

has couched its holding in language that appears to invalidate all other similar rules used by other

administrative agencies. I cannot join in such a broad and unnecessary holding, and I express no

view on the merits of the issue because I do not believe it should be reached in this case.

¶ 49 My second point of disagreement is the method that the majority uses to reach its

conclusion that corporations cannot be represented in administrative proceedings by

nonattorneys. The majority has chosen to reject our holdings in Sudzus and Grafner, which

upheld administrative rules that allowed nonattorneys to appear on behalf of parties at

administrative hearings. See supra ¶ 16. I do not express any opinion on whether Sudzus and

Grafner were rightly or wrongly decided or even apply to this case, given that I do not think the

issue should even be reached. But having reached the issue, the majority chooses to reject this

court’s own precedent in favor of an advisory opinion by the ISBA. While there is ample

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precedent for giving weight to the opinions of an administrative agency on legal questions that

fall within its purview (see, e.g., Provena Convenant Medical Center v. Department of Revenue,

236 Ill. 2d 368, 387 n.9 (2010)), I am aware of no case that affords similar deference to the

advisory opinions of a nongovernmental body such as the ISBA. Indeed, the ISBA, while

venerable, is merely a voluntary professional association that has no authority over the regulation

of the practice of law in this state. I fail to see how an unreviewable advisory opinion of such a

body can have any persuasive effect when this court has issued not one but two opinions on the

same subject.

¶ 50 I also disagree with the majority’s reliance on Downtown Disposal, which the majority

contends stands for the proposition that a nonattorney cannot represent a corporation in legal

proceedings. See supra ¶ 17. Downtown Disposal does not, however, speak to the issue of

nonattorney representation in administrative proceedings, but instead dealt with that issue in the

context of judicial proceedings. In Downtown Disposal, the supreme court determined that the

act of filing a complaint for administrative review in the circuit court constituted the

unauthorized practice of law. See Downtown Disposal Services, 2012 IL 112040, ¶¶ 12-20. The

supreme court did not consider whether a similar action by a nonattorney in administrative

proceedings constituted the unauthorized practice of law, and so the case is inapposite here.

Even so, the supreme court also noted that the effect of the unauthorized practice of law depends

on the facts of each case, holding that there is no per se nullity rule. See id. ¶ 31. Yet the

majority does not take this fact-specific approach here, instead considering the broad legal

question of whether nonattorneys in general should ever be allowed to represent corporations in

administrative hearings. In my view, even if it were necessary to reach the issue of the effect of

nonattorney representation, Downtown Disposal Services requires that our analysis be limited to

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the specific facts of the case itself. Cf. id. ¶¶ 32-35 (examining the circumstances of the case and

finding that the nonattorney representation did not render the complaint a nullity).

¶ 51 My final point of disagreement is about further review of this case. Along with its

petition for rehearing, the City asked us to issue a certificate of importance to the supreme court

under Illinois Supreme Court Rule 316 (Ill. S. Ct. R. 316 (eff. Dec. 6, 2006)). I must respectfully

dissent from the decision to deny the City’s motion. While “the appellate court’s power to

certify a case to the supreme court should be used very sparingly” (John Crane, Inc. v. Admiral

Insurance Co., 2013 IL App (1st) 1093240-B, ¶ 73), I believe that this case is one of those rare

occasions that merit issuance of a certificate. There are no specific criteria for when a certificate

should be issued, but this case warrants the supreme court’s attention for two reasons. First, the

majority holding invalidates not only DOAH’s own rule allowing for nonattorney representation

during administrative hearings but also implicitly invalidates similar rules used by administrative

bodies throughout the state. Indeed, the implications of the majority holding are serious enough

that the Attorney General took the highly unusual step of filing a brief as amicus curiae in

support of the City’s petition for rehearing. Second, the majority opinion affects the definition of

the practice of law in this state, which we all agree is a subject that only the supreme court has

authority over. Taken together, I believe these two points are important enough to warrant

designating this case for the supreme court’s immediate attention by issuing a certificate of

importance. While the supreme court may choose to hear the case anyway through an ordinary

petition for leave to appeal, certification will allow the court to resolve this important issue in the

speediest possible manner. I would therefore grant the City’s request and issue the certificate.

27