Carver v. Adams County Sheriff Nall

NO. 4-98-0180

October 20, 1998

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

KATHY CARVER, Plaintiff-Appellant, v. THE ADAMS COUNTY SHERIFF, ROBERT NALL; THE ADAMS COUNTY SHERIFF’S MERIT COMMISSION; KELLY DEAVER, Chairman of the Adams County Merit Commission; SCOTT TUTT, Secretary of the Adams County Merit Commission; JOE HAUBRICH, Board Member of the Adams County Merit Commission; RON SPARKS, Board Member of the Adams County Merit Commission; and LARRY HOOD, Board Member of the Adams County Merit Commission, Defendants-Appellees.

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Appeal from Circuit Court of Adams County No. 97MR121 Honorable Michael R. Roseberry, Judge Presiding.

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JUSTICE STEIGMANN delivered the opinion of the court:

On October 22, 1997, defendant Adams County Sheriff's Merit Commission (Commission) notified plaintiff, Kathy Carver, that it was sus­pend­ing her for 10 days without pay.  Thirty-five days later, on November 26, Carver filed a complaint for adminis­

tra­tive review in the cir­cuit court (735 ILCS 5/3-102 (West 1996)), but she did not have sum­mons­es issued until Decem­ber 3.  The circuit court dis­missed the com­plaint because Carv­er failed to have sum­monses issued within 35 days of the Commission's serving its decision upon her, as required by the Admin­is­trative Review Law (Act) (735 ILCS 5/3-103, 3-113 (West 1996)).  

Carver appeals, claiming that (1) she is entitled to the "good-faith effort" exception to the statutory requirement that she have summons issue within the 35-day time limit; and (2) the Commission's failure to notify her of her appeal right tolled the 35-day limit.  We affirm.

I. BACKGROUND

According to Carver's complaint for administrative review, defen­dant Robert Nall was the sheriff of Adams County, and Carver was an Adams County deputy sher­iff.  In March 1997, Nall re­quest­ed the Commis­sion to termi­nate Carver for her alleg­

edly dishonest conduct during the prepara­tion of a search war­

rant.  After providing notice to Carver, the Commission held a hearing, at which Carver was represented by counsel.

The Commission decided not to terminate Carver but suspended her for 10 days without pay.  It noti­fied her of its decision via mail on October 22, 1997.  However, the notice did not inform Carver of her right to appeal the decision in the circuit court.  Nor did the notice inform Carver of the time limit for filing such an appeal.

On November 25, 1997, Carver's attorney sent eight copies of the complaint to the Adams County circuit clerk.  A cover letter instructed the circuit clerk to return seven file-

stamped copies to the attorney's office.  The letter also indi­

cated that "it is imperative that this [c]omplaint is filed no later than November 26, 1997 [(35 days after the Commission mailed its decision to Carver)]." (Emphasis in original.)  The letter did not request the circuit clerk to issue summonses.  On Novem­ber 26, 1997, Carver filed a complaint for administrative review of the Commission's deci­sion, pursu­ant to the Act (735 ILCS 5/3-103 (West 1996)).

On December 3, 1997, Carver's attorney sent seven file-

stamped copies of the complaint back to the circuit clerk, along with prepared summonses for each of the seven defendants.  A cover letter in­struct­ed the circuit clerk to forward the com­

plaints and sum­monses to the appro­pri­ate offices for service.

Defendants subsequently moved to dis­miss the complaint, asserting that because section 3-103 of the Act required both the filing of the com­plaint and the issu­ance of summonses within 35 days of Carver's being notified of the Commission's decision (735 ILCS 5/3-103 (West 1996)), Carver's failure to have summonses issue within that time limit re­quired dis­missal.  In February 1998, the circuit court conducted a hearing on defendants' motions, granted them, and dis­missed Carver's com­plaint.

This appeal followed.

II. ANALYSIS

Carver appeals, arguing that (1) she is entitled to the "good-faith effort" exception to the statutory requirement that she have summons issue within 35 days of the Commission's serving its decision upon her; and (2) the Commission's failure to notify her of her appeal right tolled the 35-day period.  Addressing these arguments requires a review of the Act's timeliness requirements.

A. The Act's Timeliness Requirements

Section 3-102 of the Act provides as fol­lows:

" Unless review is sought of an adminis­

trative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial re­

view of such administrative decision."  (Emphasis added.)  735 ILCS 5/3-102 (West 1996).

Thus, the Act allows for review of administrative deci­sions only when the party seeking review strictly complies with its proce­

dures.   Lockett v. Chicago Police Board , 133 Ill. 2d 349, 353, 549 N.E.2d 1266, 1267 (1990); Straub v. Zollar , 278 Ill. App. 3d 556, 561, 663 N.E.2d 80, 83 (1996).

In addition, section 3-103 of the Act provides as fol­

lows:

" Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision ***." (Emphasis added.)  735 ILCS 5/3-103 (West 1996).

Thus, section 3-103 of the Act specifically requires both the filing of the com­plaint and the issuance of summons to be accom­

plished within 35 days of the administrative agency's serving its deci­sion on the plain­tiff.  735 ILCS 5/3-103 (West 1996).  

Carver failed to comply with these requirements.  Even though she filed her complaint on the last day of the 35-day time limit, she did not have summonses issue within that time.  For that reason, an applicable exception to the timeliness requirements must exist for her to prevail.

B. Exceptions to the Act's Timeliness Requirements

Carver asserts that two differ­ent judi­cial­ly crafted excep­tions to the Act's timeliness requirements excuse her noncom­pli­ance.  First, Carver contends that she relied in good faith on the circuit clerk to issue the sum­monses, and the circuit clerk's failure to do so cannot defeat Carver's claim.  Alterna­tively, Carver argues that the 35-day limita­tions period was tolled because the notice that the Commission sent to her of its deci­sion did not inform her of her appeal right.  We reject both of these arguments.

1. Good-Faith Effort To Have Summonses Issue

Carver contends that she made a good-faith effort to have summonses issue within the 35-day time limit, but that the time limit expired solely due to the circuit clerk's failure to timely issue the summonses.  According­ly, Carver asserts that her good-faith reliance on the circuit clerk entitles her to a relaxation of the 35-day time limit.  We disagree.

In actions brought under the Act, neither the parties nor their attorneys issue summons.  Instead, "[t]he [cir­cuit] clerk shall issue summons upon request of the plain­tiff."  735 ILCS 5/2-201 (West 1996); see also 166 Ill. 2d R. 101.  In addi­tion, the Act speci­fies that the circuit clerk shall serve summons on each of the defendants via certified or regis­tered mail.  To facili­tate this, the plaintiff must, along with the com­plaint, file an affida­vit speci­fy­ing the last known address for each of the defen­dants.  735 ILCS 5/3-105 (West 1996).

Because it would be unfair to deprive the plaintiff of her adminis­trative review due to the clerk's failure to issue summons in a timely manner, the supreme court recognizes a "good-

faith" exception under certain limited circumstances to the Act's 35-day time limit for the issu­ance of summons.   City National Bank & Trust Co. v. Proper­ty Tax Appeal Board , 97 Ill. 2d 378, 454 N.E.2d 652 (1983).  This exception is limited to those cases where "the plain­tiffs had made a good-faith effort to [have the circuit clerk] issue summons within the statu­to­ry period" but "[n]ever­theless, due to some circumstance beyond their control, summons was not issued within the statutory period."   Lockett , 133 Ill. 2d at 355, 549 N.E.2d at 1268-69.

Carver argues that her "good-faith effort" consists of her attorney's assump­tion that the circuit clerk would issue the sum­mons­es for her.  In support of her argument, Carver relies on the following passage from Azim v. Depart­ment of Central Manage­

ment Servic­es , 164 Ill. App. 3d 298, 302, 517 N.E.2d 718, 721 (1987):

"In many counties in this State, prepared summonses are not presented when a complaint is filed.  Rather, the clerk of the court prepares summonses and issues them to the defendants of record.  Accordingly, *** it was reasonable for [plaintiff's attorney] to expect summonses to be issued by the clerk's office *** within the 35-day period."

We do not read the above-quoted language to mean, as Carver con­tends, that the plaintiff may take advantage of the "good-faith" exception by doing nothing more than simply assuming that the circuit clerk will issue summonses without a request or in­struc­tion to do so.  In Azim , the plain­tiff's attorney spoke on the phone with an employee at the circuit clerk's office and told her that the complaint needed to be "file-stamped and served" that day.   Azim , 164 Ill. App. 3d at 300, 517 N.E.2d at 719.  Because the circuit clerk's employ­ee did not indi­cat­e that the plain­tiff needed to prepare the sum­monses before they would be issued, the Azim court con­clud­ed that the plaintiff's reli­ance on the circuit clerk's office was reason­able.   Azim , 164 Ill. App. 3d at 302-03, 517 N.E.2d at 721.

Here, Carver never asked the circuit clerk to issue sum­monses.  Instead, her attorney's cover letter asked for the return of seven file-stamped copies of the complaint, the same quantity as the number of defendants.  Furthermore, Carver failed to provide the circuit clerk with defendants' addresses, as re­

quired by the Act (735 ILCS 5/3-105 (West 1996)).  Under these circum­stanc­es, we conclude that the so-called "good-faith" exception to the Act's timeliness requirements, as explained in City National Bank and Lockett , does not apply to this case.

2. Tolling of the Limitations Period

Citing Johnson v. State Employees Retirement System , 155 Ill. App. 3d 616, 508 N.E.2d 351 (1987), Carver alternatively contends that the 35-day limitations period was tolled by the Commission's failure to notify her of her appeal right.  Specifi­

cally, Carver claims that the Commission's failure to do so excused her from having the sum­mons­es issue within the statu­tory time limit.  We dis­agree.

In Johnson , 155 Ill. App. 3d at 619, 508 N.E.2d at 353, the First District Appellate Court con­clud­ed that when an admin­

istrative agency renders a decision, its notice of that decision must inform the affected party both of the right to appeal under the Act and the time limit for doing so.  The Johnson court did not base this conclu­sion upon any interpreta­tion of the Act, but instead held that any notice of the agency's adverse ruling that failed to inform the plain­tiff of her appeal right was "constitu­

tion­ally inade­quate."   Johnson , 155 Ill. App. 3d at 619, 508 N.E.2d at 353.  The court con­clud­ed that enforce­ment of the Act's 35-day time limit in the wake of such "inade­quate" notice would violate the plaintiff's procedural due process rights.   Johnson , 155 Ill. App. 3d at 619, 508 N.E.2d at 353.  For the reasons that follow, we believe that Johnson was incor­rectly decided and decline to follow it.

The Johnson court expanded on cases holding that the limita­tions periods "do[] not begin to run until the agency has provided the plaintiff with adequate notice of its decision ," as required by the applicable statute. (Emphasis added.)   Johnson , 155 Ill. App. 3d at 618-19, 508 N.E.2d at 353, citing Isabell v. Depart­ment of Public Aid , 18 Ill. App. 3d 868, 873, 310 N.E.2d 742, 745 (1974), and Mann v. Department of Public Aid , 31 Ill. App. 3d 430, 432, 333 N.E.2d 233, 235 (1975).  However, these cases do not support Johnson 's conclusion.  Both Isabell and Mann engage in statu­to­ry--not consti­tu­tion­al--con­struc­tion.  After analyzing the plain language of the statute at issue (Ill. Rev. Stat. 1969, ch. 23, par. 11-8), those cases reject­ed the notion that a plain­tiff could receive con­structive notice of an adverse agency decision ( Isabell , 18 Ill. App. 3d 870-72, 310 N.E.2d at 743-45; Mann , 31 Ill. App. 3d at 432, 333 N.E.2d at 235 (follow­

ing Isabell )).  See 735 ILCS 5/3-103 (West 1996).  Unlike John­

son , neither Isabell nor Mann places any re­quire­ments on an agency beyond those enumer­at­ed by stat­ute.

The Johnson court justified its deviation from the lan­

guage of section 3-103 of the Act by concluding, for the first time, that constitutional due process concerns imposed require­

ments in addi­tion to those spelled out in the statute.  Before reaching this conclu­sion, the court cited only two due process deci­sions, which stand merely for the unalarm­ing proposi­tion that a person whose inter­ests are at stake in an adminis­tra­tive hearing has a right to be noti­fied of the time, place, and subject matter of that hearing.   Johnson , 155 Ill. App. 3d at 619, 508 N.E.2d at 353, citing Depart­ment of Revenue v. Jamb Discount , 13 Ill. App. 3d 430, 435, 301 N.E.2d 23, 27 (1973), and Hyon Waste Manage­ment Services, Inc. v. City of Chicago , 53 Ill. App. 3d 1013, 1018, 369 N.E.2d 179, 182 (1977).  This general propo­sition does not compel Johnson 's broad conclusion that after the administrative agency has provid­ed the plaintiff with notice, an opportunity to be heard, and a decision on the merits, it must also notify the plaintiff of the statutory right to appeal an adverse decision to the circuit court.

After discussing general principles of due process, the Johnson court never went on to squarely ask the question it purported to answer: what is the constitutionally minimal procedure due to a party who has been adversely affected by an administrative agency's decision?  This inquiry is required by the opinion of the supreme court that "due process is flexi­ble and calls for such proce­dur­al protections as the partic­ular situation demands."   East St. Louis Federation of Teachers, Local 1220 v. East St. Louis School Dis­trict No. 189 Finan­cial Over­

sight Panel , 178 Ill. 2d 399, 419, 687 N.E.2d 1050, 1062 (1997).

In seeking an answer to this inquiry, we draw an analogy to the proce­dur­al­ly similar posi­tion of a civil litigant subject to the final judg­ment of a trial court.  In Illinois, such a party must file a notice of appeal within 30 days of the adverse deci­sion.  155 Ill. 2d R. 303.  However, we are not aware of any Illinois decision--or any decision from any American juris­dic­tion--holding that civil litigants are entitled to be informed by the court of their appeal rights once the court has issued a final judg­ment.  See Local 799, American Federation of State, County & Municipal Employ­ees v. Henkhaus , 88 Ill. App. 3d 1034, 411 N.E.2d 68 (1980) (concluding that no notice of the right to appeal is necessary under Rule 303).  

If such a right to be notified of one's appeal rights were to exist, the differ­ences between civil lawsuits and admin­

is­tra­tive review suggest that in civil lawsuits liti­gants would have a greater need for such notice than those in­volved in admin­

istra­tive review.  After all, civil lawsuits frequently involve higher stakes than their admin­is­tra­tive counterparts, such as issues involving compensa­tion for serious injuries or disruptions of families.  

We note that rulings on several differ­ent types of pretrial motions may dispose of a case (such as granting motions for summary judgment or to dismiss with prejudice), yet no rule requires the trial court either to put its dispositive orders in formal written form or to tell the losing party that he has lost.   A civil liti­gant might become con­fused about whether a final judg­ment has been entered.  Mean­while, the 30-day clock may already be tick­ing.  See, e.g., Davis v. Carbondale Elemen­tary School District No. 95 , 170 Ill. App. 3d 687, 689-90, 525 N.E.2d 135, 136-37 (1988) (noting specifi­cally that appellant reason­ably be­lieved that the trial court's order was not final, yet strictly applying the 30-day time limit from the date of that order and dismissing ap­peal).  

The supreme court has consis­tent­ly refused to toll the 30-day filing period, even when a civil litigant does not receive notice of a trial court's final judg­ment.   Mitchell v. Fiat-

Allis, Inc. , 158 Ill. 2d 143, 149-50, 632 N.E.2d 1010, 1012 (1994);   Granite City Lodge No. 272 v. City of Granite City , 141 Ill. 2d 122, 126, 565 N.E.2d 929, 931 (1990).  Recently, the appellate court followed these opin­ions even when the circuit clerk failed to make a docket entry at the time that the judgment was en­tered.  Childers v. Kruse , 297 Ill. App. 3d 70, 76, 696 N.E.2d 1253, 1258 (1998).  These cases demonstrate that civil liti­gants lack any consti­tu­tional right to be noti­fied of the right to appeal and the time limit for doing so.  In fact, any sugges­tion to the con­trary would be so novel that apparently no one has even attempted to make it.  Against this backdrop, Johnson 's contrary conclusion with respect to adminis­trative review cannot be correct.

Having rejected Johnson , we note in passing that it has always been an anomalous decision with a meager following.  When parties have cited Johnson during an appeal, courts have general­

ly distin­guished it.  See, e.g., Poturalski v. Police Board , 228 Ill. App. 3d 864, 867-68, 593 N.E.2d 781, 783 (1992); Holmes v. Aurora Police Pension Fund Board of Trustees , 217 Ill. App. 3d 338, 345-47, 577 N.E.2d 191, 195-97 (1991).  

In the 11 years since its publication, Johnson has not determined the outcome of a single pub­lished decision, and only two cases pur­port to treat it as author­i­ty ( Illi­nois Wood Energy Part­ners, L.P. v. County of Cook , 281 Ill. App. 3d 841, 667 N.E.2d 477 (1995); Keller v. Retire­ment Board of the Firemen's Annuity and Benefit Fund , 245 Ill. App. 3d 48, 614 N.E.2d 323 (1993)).  Howev­er, in both of those cases, the admin­is­tra­tive agency not only failed to inform the plaintiff of the right to appeal, but also failed to serve the plaintiff with notice of the final agency deci­sion ( Illi­nois Wood Energy Part­ners , 281 Ill. App. 3d at 851, 667 N.E.2d at 483; Keller , 245 Ill. App. 3d at 53-54, 614 N.E.2d at 327).  Thus, the discussion in Johnson about the need to notify the aggrieved party of her appeal right had no role in the outcome of either of those cases, and our reexamina­

tion of Johnson 's due process analy­sis does not erode the impact of subsequent case law.

As the supreme court has noted, "[w]hether, and to what extent, action by an admin­is­trative agency is reviewable is a question of statutory inter­pre­tation."   Hanrahan v. Williams , 174 Ill. 2d 268, 273, 673 N.E.2d 251, 254 (1996).  The Act pro­vides a clear limita­tions period, and it does not toll that period when the adminis­trative agency fails to notify the plain­tiff of her appeal right.  The consti­tu­tion­al gloss that the Johnson court added to this statuto­ry procedure was inappropriate.

Accordingly, we hold that a strict application of the Act's 35-day limitations period does not violate due process.  Because Carver failed to secure the issuance of summonses within that time period, the circuit court properly dismissed her com­

plaint.

III. CONCLUSION

For the reasons stated, we affirm the circuit court's judg­ment.

Affirmed.

GARMAN, P.J., and GREEN, J., concur.