dissenting:
I respectfully dissent from the majority opinion. The majority holds that plaintiff cannot maintain an action for declaratory judgment because he failed to exhaust his administrative remedies. Three years after plaintiff filed his initial grievance, defendants have yet to respond to plaintiffs grievance, and defendants offer no justification. The majority essentially rewards the Department of Corrections for engaging in practices that effectively eliminate the relief authorized by the administrative remedies, while penalizing plaintiff for availing himself of the only other relief available.
I disagree with the majority’s determination that the time requirements for consideration of grievances are directory rather than mandatory. A statute that specifies the time for performance of an official duty is considered directory only when the rights of the parties cannot be injuriously affected by the failure to act within the time indicated. Corrigan v. Illinois Liquor Control Comm’n, 19 Ill. 2d 230, 233 (1960). When the disregard of a time requirement would injuriously affect private rights, the provision is mandatory. Corrigan, 19 Ill. 2d at 233. A proper analysis must consider whether the time requirement prescribed is intended for the protection of the person filing the grievance and to prevent a sacrifice of his property. See People v. Jennings, 3 Ill. 2d 125, 127 (1954). In this case, the lengthy delay has injuriously affected plaintiffs private rights, making the time requirement mandatory.
I also believe that defendants have waived the exhaustion of remedies defense. The majority cites the rule that “ The appellee may urge any point in support of the judgment on appeal, even though not directly ruled on by the trial court, so long as the factual basis for such point was before the trial court.’ ” 204 Ill. 2d at 370, quoting Shaw v. Lorenz, 42 Ill. 2d 246, 248 (1969). Curiously, the majority departs from a recent case where this court held that a defendant-appellee’s failure to raise the exhaustion of remedies issue in the trial court constituted a waiver of the issue on appeal. See People v. Fiorini, 143 Ill. 2d 318, 337 (1991), citing Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 508 (1988).
In the instant case, defendants did not present the issue of exhaustion of remedies in the circuit court, either in written motions, memoranda, or oral argument. Defendants did not raise exhaustion of remedies as an affirmative defense, and plaintiff was never put on notice that such proof was required. Accordingly, I believe that it is inappropriate to consider the exhaustion of remedies issue for the first time on appeal as a basis for affirming the decision of the circuit court. See Greer, 122 Ill. 2d at 509.
Finally, I believe that the allegations in plaintiffs pro se complaint were sufficient to state a claim for declaratory judgment. To bring a declaratory judgment action, the plaintiff must allege in sufficient detail an actual and legal controversy between the parties and must demonstrate that the plaintiff is interested in the controversy. 735 ILCS 5/2 — 701(a) (West 2000); Best v. Taylor Machine Works, 179 Ill. 2d 367, 382-83 (1997); First of America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 173 (1995). When reviewing a motion to dismiss, the court must take all well-pleaded facts in the plaintiffs complaint and supporting documentation as true. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86 (1996). “A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle the plaintiff to recover.” Bryson, 174 Ill. 2d at 86-87.
Here, plaintiffs complaint alleged facts that show a controversy between himself and the defendants regarding his ability to possess and use his art supplies. Plaintiff further requested a declaration that he had a first amendment right to possess and use those supplies. I believe that the appellate court correctly determined that the allegations in plaintiffs pro se complaint were sufficient to state a claim for declaratory judgment. Accordingly, I would affirm the appellate court’s order vacating the trial court’s dismissal of plaintiffs complaint and remand the case for further proceedings. I therefore respectfully dissent.