Docket No. 100165.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
ERMA RODRIGUEZ, Appellee, v. THE SHERIFF=S MERIT
COMMISSION OF KANE COUNTY et al.,
Appellants.
Opinion filed January 20, 2006.
JUSTICE FREEMAN delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices McMorrow, Fitzgerald,
Kilbride, Garman, and Karmeier concurred in the judgment and
opinion.
OPINION
Plaintiff, Erma Rodriguez, sought administrative review of a
decision of the sheriff=s merit commission of Kane County
(commission). The circuit court of Kane County dismissed
plaintiff=s complaint for administrative review. The appellate
court reversed. 355 Ill. App. 3d 676. We allowed the
commission=s petition for leave to appeal. 177 Ill. 2d R. 315(a).
We now reverse the judgment of the appellate court, and affirm
the order of the circuit court dismissing plaintiff=s complaint,
albeit for a different reason than that upon which the circuit
court relied.
I. BACKGROUND
The commission filed a motion to dismiss plaintiff=s
complaint for administrative review pursuant to section
2B619(a) of the Code of Civil Procedure (735 ILCS 5/2B619(a)
(West 2002)). 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 (1997). We recite only those facts that are
necessary for our disposition of the issues presented in this
appeal.
Plaintiff was employed by the Kane County sheriff=s
department as a corrections officer. Following a hearing, the
commission terminated plaintiff=s employment effective May 23,
2003. Mary Gray, secretary for the commission, swore in an
affidavit that, on May 23, 2003, she mailed a copy of the
commission=s decision via certified mail to plaintiff. A postal
receipt bearing plaintiff=s name and address shows mailing via
certified mail on May 23, 2003. 1
1
We note that plaintiff ultimately filed an amended
counteraffidavit. She Adenied@ that the commission mailed a copy of
its decision on May 23, 2003. She further swore that she Anever
received notice from [the commission] by general delivery mail, at
any time, before or after May 24, 2003. The Commission=s order was
placed in plaintiff=s mailbox on May 27, 2003 by an unknown
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person.@
However, as against the positive, detailed statements of fact in
Mary Gray=s affidavit, plaintiff=s allegations, made on information and
belief, are insufficient. An affidavit not based on personal knowledge
is inadequate to rebut an affidavit which is based upon personal
knowledge. See, e.g., Longo v. AAA-Michigan, 201 Ill. App. 3d 543,
551 (1990); Allied American Insurance Co. v. Mickiewicz, 124 Ill.
App. 3d 705, 708-09 (1984). Plaintiff=s amended counteraffidavit
does not contain facts to establish any knowledge of plaintiff with
respect to the commission=s mailing practices.
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Plaintiff filed her complaint for administrative review on
June 30, 2003. In its motion to dismiss, the commission
contended that section 3B103 of the Administrative Review
Law (735 ILCS 5/3B103 (West 2002)) required plaintiff to file
her complaint within 35 days from the mailing of the
commission decision to confer subject matter jurisdiction on the
circuit court. The commission asserted that plaintiff was
required to have filed her complaint by June 27, 2003.
Therefore, according to the commission, the jurisdictional time
period for plaintiff to file her action lapsed, the circuit court was
without jurisdiction to hear the case, and the circuit court must
dismiss plaintiff=s complaint.
In her response to the commission=s motion to dismiss,
plaintiff asserted three alternative contentions. Plaintiff first
asserted that the 35-day period of section 3B103 of the
Administrative Review Law began to run when she received
the commission decision on May 24, 2003; the thirty-fifth day
thereafter was Saturday, June 28, 2003; and, consequently,
her complaint was timely filed on Monday, June 30, 2003.
Second, plaintiff contended that, even if the 35-day filing period
began to run on May 23, 2003, the first day is excluded and the
last day is included, thereby rendering her complaint timely.
Third, plaintiff contended that the 35-day time period was tolled
because the commission did not mail a copy of its decision to
her attorney of record.
In its reply, the commission agreed with plaintiff that, in
computing the 35-day filing period, the first day is excluded and
the last day is included. However, the commission maintained
that the crucial date, which began plaintiff=s filing period, was
May 23, 2003. The commission argued that 35 days thereafter,
beginning on May 24, 2003, was Friday, June 27, 2003. Since
plaintiff filed her complaint on Monday, June 30, 2003, it was
untimely. Also, the commission did not dispute that it mailed a
copy of its decision to plaintiff and not to her attorney.
However, the commission responded that plaintiff=s attorney
was aware of the commission=s service on plaintiff. The
commission contended that the dispositive issue was not who
received the commission=s decision, but rather when plaintiff
filed her complaint for administrative review.
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The circuit court denied the commission=s section 2B619
motion to dismiss. However, the Kane County sheriff
separately filed a motion to dismiss plaintiff=s complaint based
on section 3B109 of the Administrative Review Law (735 ILCS
5/3B109 (West 2002)), contending that plaintiff had not paid the
cost of preparing and certifying the record of the administrative
proceedings. 2 The circuit court granted the sheriff=s motion to
dismiss on this basis.
The appellate court reversed the circuit court=s dismissal of
plaintiff=s complaint. 355 Ill. App. 3d 676. Initially, the appellate
court upheld the circuit court=s dismissal of the commission=s
section 2B619 motion to dismiss. It was undisputed that plaintiff
was represented by her attorney, but the commission mailed its
decision to plaintiff personally and not to her attorney of record.
The appellate court concluded that the commission=s service of
its decision on plaintiff and not her attorney violated Supreme
Court Rule 11(a), which requires that service be made upon
the party=s attorney of record, and if the party is not
represented by an attorney of record, service shall be made
upon the party. 145 Ill. 2d R. 11(a). The appellate court held
that the commission Afailed to show that the trial court erred in
denying its motion to dismiss for lack of subject matter
jurisdiction.@ 355 Ill. App. 3d at 683.
However, the appellate court concluded that dismissal of
plaintiff=s complaint based on section 3B109 of the
Administrative Review Law was erroneous. The appellate court
reversed the circuit court=s dismissal of plaintiff=s complaint for
administrative review on this basis and remanded the cause to
2
We note that plaintiff, in her appellee=s brief, erroneously
describes the sheriff=s motion to dismiss as Aa 2B619 motion to
dismiss@ based on her failure to pay costs pursuant to section 3B109
of the Administrative Review Law. However, the sheriff=s motion to
dismiss is expressly based directly and solely on section 3B109.
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the circuit court for further proceedings. 355 Ill. App. 3d at 683-
85. The commission appealed to this court. 177 Ill. 2d R.
315(a).
II. ANALYSIS
Before this court, the commission=s sole contention is that
the circuit court should have granted its section 2B619 motion
to dismiss plaintiff=s complaint for administrative review based
on lack of subject matter jurisdiction. The commission argues
that the appellate court should have upheld the dismissal of
plaintiff=s complaint on this basis. Plaintiff, urging affirmance of
the appellate court, raises two contentions. First, plaintiff
contends that the appellate court properly upheld the circuit
court=s refusal to dismiss plaintiff=s complaint based on lack of
subject matter jurisdiction. Alternatively, plaintiff contends that
the appellate court correctly reversed the circuit court=s
dismissal of plaintiff=s complaint based on section 3B109 of the
Administrative Review Law. We find the commission=s
contention to be meritorious.
Section 2B619(a) of the Code of Civil Procedure permits
dismissal where, inter alia, Athe action was not commenced
within the time limited by law@ (735 ILCS 5/2B619(a)(5) (West
2002)) and where Athe claim asserted *** is barred by other
affirmative matter avoiding the legal effect of or defeating the
claim@ (735 ILCS 5/2B619(a)(9) (West 2002)). 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 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 (1997).
Enacted in 1945, the Administrative Review Law is now 60
years old, and its basic framework has remained unchanged.
See 1945 Ill. Laws 1144; Comment, The Illinois Administrative
Review Act, 42 Ill. L. Rev. 636 (1947); G. Mills, The Illinois
Administrative Review Act, 28 Chi. B. Rec. 7 (1946). The
Administrative Review Law was an innovation and a departure
from the common law, and the procedures established therein
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must be followed. Fredman Brothers Furniture Co. v.
Department of Revenue, 109 Ill. 2d 202, 210 (1985), quoting
Winston v. Zoning Board of Appeals, 407 Ill. 588, 595 (1950).
Section 3B102 of the Administrative Review Law mandates that
parties to a proceeding before an administrative agency shall
be barred from obtaining judicial review of the agency=s
administrative decision unless review is sought Awithin the time
and in the manner@ provided by the statute. 735 ILCS 5/3B102
(West 2002). Indeed, the circuit court exercises special
statutory jurisdiction pursuant to the Administrative Review
Law. If the statutorily prescribed procedures are not strictly
followed, Ano jurisdiction is conferred on the circuit court.@
Fredman Brothers, 109 Ill. 2d at 210.
Regarding the time for filing a complaint for administrative
review, section 3B103 provides in pertinent part:
A'3B103. Commencement of action. 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 a copy of the decision is 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 5/3B103 (West 2002).
The 35-day time period for filing a complaint for administrative
review Ais a jurisdictional requirement and that judicial review of
the administrative decision is barred if the complaint is not filed
within the time specified.@ Fredman Brothers, 109 Ill. 2d at 211;
accord Nudell v. Forest Preserve District, 207 Ill. 2d 409, 422-
23 (2003).
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In this case, as the appellate court recognized (355 Ill. App.
3d at 682), no method for service is provided in the statute
governing the proceedings before the Commission (55 ILCS
5/3B8002 et seq. (West 2002)). Consequently, the methods
specified in section 3B103 of the Administrative Review Law
apply.
In Nudell v. Forest Preserve District, 207 Ill. 2d 409 (2003),
this court clarified and reiterated the jurisdictional filing
requirement of section 3B103 of the Administrative Review
Law. Relying on the above-quoted plain language of section
3B103, this court in Nudell held that, where the administrative
agency serves its decision via United States mail, the 35-day
period for filing a complaint for administrative review begins on
the date that the agency decision is mailed, as opposed to the
date that the affected party actually receives the decision.
Nudell, 207 Ill. 2d at 414, 424; accord Cox v. Board of Fire &
Police Commissioners, 96 Ill. 2d 399, 402-03 (1983).
In the present case, the commission=s computation of
plaintiff=s 35-day filing period is correct. Plaintiff=s filing period
began on May 23, 2003, the date on which the commission
mailed its decision. In computing the 35-day filing period, the
first day is excluded and the last day is included. Cox, 96 Ill. 2d
at 402, citing Ill. Rev. Stat. 1979, ch. 1, par. 1012 (now codified
at 5 ILCS 70/1.11 (West 2002)). Plaintiff=s filing period ended
on Friday, June 27, 2003, and after that date the circuit court
lost subject matter jurisdiction to review the commission=s
decision. Since plaintiff filed her complaint on Monday, June
30, 2003, the complaint was untimely and the circuit court
should have granted the commission=s motion to dismiss on
this basis.
However, instead of simply applying section 3B103, as
clarified in Nudell, to this case, the appellate court
distinguished this dispositive authority from the facts of this
case:
AWhile the Commission focuses on when the
decision was mailed, it ignores another important
consideration: to whom it was mailed. The Commission
mailed the decision to plaintiff personally, not to the
attorney who represented her before the Commission.
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Conversely, in Nudell, the decision was mailed to the
plaintiff=s attorney, but was not mailed to the plaintiff.@
(Emphases in original.) 355 Ill. App. 3d at 682.
The appellate court concluded that Nudell would have applied
but for the belief that Supreme Court Rule 11(a) (145 Ill. 2d R.
11(a)) distinguished this case from Nudell.
Supreme Court Rule 11(a) states as follows:
ARule 11. Manner of Serving Papers Other Than
Process and Complaint on Parties Not in Default in the
Trial and Reviewing Courts
(a) On Whom Made. If a party is represented by an
attorney of record, service shall be made upon the
attorney. Otherwise service shall be made upon the
party.@ 145 Ill. 2d R. 11(a).
The appellate court in this case, after observing that the
appellate court in Nudell cited to Supreme Court Rule 11 for
authority that service to plaintiff=s attorney was sufficient,
reasoned as follows:
AAlthough the court did not rule that service on the
plaintiff would have been insufficient, that is the logical
extension of the court=s reasoning, inasmuch as Rule
11=s requirement that service be made upon the
attorney is stated in mandatory terms. Moreover, in
Nudell, the supreme court noted that the decision had
been served on the plaintiff=s attorney (Nudell, 207 Ill.
2d at 412), and although that court did not specifically
address the Rule 11 issue, the outcome of the appeal is
consistent with the view that Rule 11 applies to service
of the decision of an administrative agency. Accordingly,
Nudell appears to be distinguishable because in that
case the administrative decision was properly served in
accordance with Rule 11, whereas in this case the
Commission did not comply with that rule.@ 355 Ill. App.
3d at 683.
Based on this reasoning, the appellate court upheld the circuit
court=s denial of the commission=s motion to dismiss.
The commission contends that the dispositive question in
this case is not to whom the commission=s decision was
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mailed. It is undisputed that the decision was mailed to plaintiff,
as Athe party affected by the decision,@ pursuant to the plain
language of section 3B103. 735 ILCS 5/3B103 (West 2002).
Rather, according to the commission, the dispositive question
in this case is when did plaintiff file her complaint for
administrative review, so as to confer subject matter jurisdiction
on the circuit court.
In support of the appellate court, plaintiff argues that the
applicability of Supreme Court Rule 11(a) Adictates a
mandatory procedural requirement in notice.@ According to
plaintiff, if Athe party affected by the decision,@ in the words of
section 3B103 of the Administrative Review Law (735 ILCS
5/3B103 (West 2002)), is represented by an attorney of record,
then service must be made upon the attorney. Plaintiff
describes a mailing to the party and not to the party=s attorney
of record as Afatal.@
We disagree with the appellate court=s conclusion that
Supreme Court Rule 11(a) distinguishes this case from Nudell.
There is no ARule 11 issue,@ as the appellate court
characterized, because Supreme Court Rule 11 does not apply
to service of an administrative agency decision in the context of
section 3B103 of the Administrative Review Law. Of course,
supreme court rules A >are not aspirational. They are not
suggestions. They have the force of law, and the presumption
must be that they will be obeyed and enforced as written.= @
Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490, 494
(2002), quoting Bright v. Dicke, 166 Ill. 2d 204, 210 (1995).
AIndeed, we do expect litigants to comply with our rules.
As we expressed in Roth, >our rules would have little
force if the legal community perceived that we, as a
court, do not enforce the rules or tailor them to fit the
exigencies of the moment. *** [W]e must emphasize
that the supreme court rules are rules of procedure and
that it is incumbent upon litigants to follow them.= @
(Emphases added.) Wauconda Fire Protection District
v. Stonewall Orchards, LLP, 214 Ill. 2d 417, 428-29
(2005), quoting Roth, 202 Ill. 2d at 494-95.
Further, supreme court rules, together with article II of the
Code of Civil Procedure, i.e., the Civil Practice Law (735 ILCS
-10-
5/1B101(b) (West 2002)), apply to all proceedings in the trial
court, except to the extent that the procedure in a particular
type of action is regulated by a statute other than the Civil
Practice Law. 134 Ill. 2d R. 1.
However, in the present case, the commission can in no
way be considered a Alitigant@ prior to plaintiff filing her
complaint for administrative review. Consequently, the
commission was not required to comply with Rule 11. As its
title suggests, the Administrative Review Law is limited in
coverage to review proceedings; it does not include procedures
and practice before agencies. See 42 Ill. L. Rev. at 641.
Rather, an administrative review action begins with the filing of
a complaint within 35 days of the date on which the
administrative agency served its decision on the affected party.
Presumably the Administrative Practice and Review
Commission, the drafters of the Administrative Review Law,
hoped that the Acomplaint@ will be regarded as starting an
original action rather than an appeal. See 42 Ill. L. Rev. at 643;
accord 28 Chi. B. Rec. at 8 (AThe pleading initiating the review
action is designated as a >complaint= (emphasis added)@). In
this case, litigation commenced when plaintiff filed her
complaint for administrative review. Prior to plaintiff filing her
complaint, no litigation existed, hence no litigants existed and,
hence, supreme court rules did not yet apply.
Further, a careful reading of Supreme Court Rule 11 itself
supports our conclusion. Rule 11 refers to the AManner of
Serving Papers Other Than Process and Complaint.@
(Emphasis added.) Supreme Court Rule 2(b)(3) defines paper
as follows: A >Paper= means pleading, motion, notice, affidavit,
memorandum, brief, petition, or other paper or combination of
papers required or permitted to be filed.@ (Emphasis added.)
134 Ill. 2d R. 2(b)(3). Rule 11 falls squarely in the context of
motion practice. Rule 11 is recognized as amplifying Rule
104(b), which pertains to AFiling of papers and Proof of
Service@ (134 Ill. 2d R. 104(b)) and Rule 131, which pertains to
AForms of Papers@ (145 Ill. 2d R. 131). See generally 1A
Nichols Illinois Civil Practice ''11:1, 11:17 (rev. 2001); 4 R.
Michael, Illinois Practice '37.3 (1989). Obviously, motion
practice assumes a pending action. See 1A Nichols Illinois Civil
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Practice '12:1, at 241 (rev. 2001) (AObviously, a motion cannot
be filed until an action is pending@).
In the context of section 3B103 of the Administrative Review
Law, the administrative agency decision is not Afiled@ in the
circuit court. Rather, it is Aserved upon the party affected by the
decision@ (735 ILCS 5/3B103 (West 2002)), who then decides
whether to commence litigation by timely filing a complaint for
administrative review. Supreme court rulesBspecifically Rule
11Bbecome applicable only when litigation commences.
Moreover, a careful reading of Nudell itself dispels any
significance of the appellate court=s distinction. In Nudell, this
court listed exemplary appellate court decisions where Athe
appellate court has held that a complaint for administrative
review must be filed within 35 days of the mailing of the
decision.@ The question of to whom the agency decisions were
mailed in those cases was not dispositive. Nudell, 207 Ill. 2d at
421-22, citing Laristos, Inc. v. City of Chicago License Appeal
Comm=n, 309 Ill. App. 3d 59 (1999) (agency decision mailed to
attorney); Board of Education of St. Charles Community Unit
School District, No. 303 v. Adelman, 137 Ill. App. 3d 965
(1985) (agency decision mailed to attorney); Schlobohm v.
Police Board, 122 Ill. App. 3d 541 (1984) (agency decision
mailed to plaintiff, who informed attorney); Ellis v. Miller, 119 Ill.
App. 3d 579 (1983) (agency decision mailed to plaintiff and
attorney); Chin v. Department of Public Aid, 78 Ill. App. 3d
1137 (1979) (agency decision mailed to plaintiff); Thompson v.
Illinois Civil Service Comm=n, 63 Ill. App. 3d 153 (1978)
(agency decision mailed to attorney). Considered collectively, it
is clear that the dispositive question was whether the plaintiff
filed his or her complaint for administrative review within 35
days of the agency mailing its decision.
Further, in Nudell, this court affirmed the appellate court,
which likewise held that the 35-day filing period of section
3B103 began when the administrative decision was mailed.
Nudell v. Forest Preserve District, 333 Ill. App. 3d 518, 522
(2002), aff=d, 207 Ill. 2d at 424. However, citing Supreme Court
Rule 11(a), the appellate court in Nudell added that Aservice of
the decision on Nudell=s attorney, rather than Nudell, was
sufficient.@ Nudell, 333 Ill. App. 3d at 522. This statement was
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dicta and unnecessary to the appellate court=s holding in that
case and our affirmance thereof. Not only was this statement
dicta, but the citation to Supreme Court Rule 11(a) can cause
confusion, as the appellate court=s analysis in this cause aptly
demonstrates. We are confident that with our decision today,
this type of confusion will dissipate.
Returning to the facts of the present case, plaintiff filed her
complaint for administrative review more than 35 days after the
commission mailed its decision. Supreme Court Rule 11 had
no application prior to plaintiff filing her complaint.
Consequently, the circuit court lacked jurisdiction to hear the
cause. The court should have granted the commission=s motion
to dismiss pursuant to section 2B619(a) of the Code of Civil
Procedure (735 ILCS 5/2B619(a) (West 2002)) based on lack
of subject matter jurisdiction. The appellate court erred in
holding to the contrary. Although the circuit court dismissed
plaintiff=s complaint for a different reason, the reasons given for
a judgment or order are not material if the judgment or order
itself is correct. Keck v. Keck, 56 Ill. 2d 508, 514 (1974). AIt is
the judgment and not what else may have been said by the
lower court that is on appeal to a court of review. [Citations.]
The reviewing court is not bound to accept the reasons given
by the trial court for its judgment ***.@ Material Service Corp. v.
Department of Revenue, 98 Ill. 2d 382, 387 (1983). Rather, a
reviewing court Acan sustain the decision of the circuit court on
any grounds which are called for by the record regardless of
whether the circuit court relied on the grounds and regardless
of whether the circuit court=s reasoning was correct.@ Bell v.
Louisville & Nashville R.R. Co., 106 Ill. 2d 135, 148 (1985). Our
disposition of this jurisdictional issue obviates discussion of
plaintiff=s alternative contention.
III. CONCLUSION
For the forgoing reasons, the judgment of the appellate
court is reversed, and the order of the circuit court of Kane
County is affirmed.
Appellate court judgment reversed;
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circuit court judgment affirmed.
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