dissenting:
I agree with Justice Thomas that the jurisdictional issue in this case is not answered by our decision in Marvey and, under the facts and circumstances of this case, appellate jurisdiction was lacking. Therefore, I join in his dissent. Even if I agreed with the majority, however, that review of this case was appropriate, I would nonetheless disagree with the majority’s analysis and disposition of the substantive issue — whether service in this case complied with section 2 — 211 of the Code of Civil Procedure (735 ILCS 5/2 — 211 (West 2000)).
The summons and complaint in this case were served on the receptionist in the Board’s law department. Section 2 — 211 requires, however, that a summons issued to the Board be served on its “president or clerk or other officer corresponding thereto.” (Emphasis added.) 735 ILCS 5/2 — 211 (West 2000). Because the Board has a president, but no clerk, the parties have attempted to identify the “other officer” that corresponds to a clerk. Plaintiff has maintained that the Board’s attorney constitutes an “officer” for purposes of section 2 — 211, and that the attorney delegated her authority to accept service to the receptionist. As set forth in its September 1999 opinion, the appellate court found the “other officer” language in section 2 — 211 patently ambiguous, ultimately agreeing with plaintiffs position and holding that service in this case complied with the statute. 308 Ill. App. 3d 137, 149-52.
In February 2000, we allowed the Board’s petition for leave to appeal. Sarkissian v. Chicago Board of Education, 187 Ill. 2d 591 (2000). The Board maintained that the appellate court misconstrued section 2 — 211 and that the other officer corresponding to a clerk is the Board’s secretary — not the Board’s attorney. The brief of amici curiae echoed the Board’s argument. In January 2001, this court issued an opinion which squarely addressed this issue. Guided by well-settled principles of statutory construction, a majority of this court held that the phrase “other officer corresponding thereto,” contained in section 2 — 211, was not ambiguous and that the Board’s secretary, who performs clerical and record-keeping functions, is the other officer who corresponds to the position of a clerk. We thus concluded that service was not accomplished in the manner prescribed by section 2 — 211.
Thereafter, plaintiff petitioned for rehearing, pressing his contention that the Board’s attorney is a “corresponding” officer for purposes of section 2 — 211. Four members of this court voted to allow plaintiff’s petition for rehearing, and the case was argued again at the September 2001 term of court. Consistent with the position set forth in his initial brief before this court and his rehearing petition, plaintiff identified the issue at oral argument as: “Who is this ‘other officer corresponding thereto’ as is set forth in section 2 — 211?”
As the protracted history of this case illustrates, the substantive issue on review has always been one of statutory interpretation focusing on the “other officer” language in section 2 — 211. Indeed, the majority opinion summed up the parties’ positions before this court as follows:
“Plaintiff urges us to uphold the appellate court and find that ‘other officer corresponding thereto’ is ambiguous, but may be interpreted to include the Board’s attorney, who then delegated her authority to accept service of process to her receptionist. The Board, however, argues that the term ‘other officer corresponding thereto,’ properly construed, refers to the Board’s secretary.” 201 Ill. 2d at 108.
In light of the foregoing, I find it remarkable that the majority has decided this case without any reference to the “other officer” language in section 2 — 211 and without deciding the issue that has been debated before this court for over two years. Instead, the majority has based the outcome of this case on a newly identified delegation issue. Specifically, the majority has determined that a public entity, like the Board, may authorize persons to accept service of process, and that plaintiff met his “burden” of presenting “sufficient evidence to show that the Board president, by custom and practice, delegated his authority to accept service on behalf of the Board to the receptionist.” (Emphasis in original.) 201 Ill. 2d at 113. Plaintiff, however, never argued that the Board president had delegated his authority under section 2 — 211 to the law department’s receptionist. This was simply not the legal or factual basis on which plaintiff maintained that service was valid.
Additionally, the majority decision appears to be based on principles of equitable estoppel, even though, as noted in our earlier opinion in this case, plaintiff elected not to pursue any argument that the Board was estopped from challenging the sufficiency of service based on the Board’s past practices. Indeed, as the record demonstrates, plaintiff expressly withdrew and waived this argument.
Although plaintiff had argued estoppel in the appellate court, based on its holding, the appellate court did not consider this argument. Assuming that plaintiff would pursue his estoppel argument in this court, the Board, in its opening brief, presented a lengthy argument against application of estoppel principles in this case. The Board maintained that “[t]he circuit court properly found that principles of equitable estoppel did not provide a basis for plaintiff to disregard the requirements of section 2 — 211 or preclude the Board from requiring compliance with the statute.” Apparently deciding not to pursue an estoppel argument, plaintiff stated in his response brief before this court:
“Plaintiff hereby withdraws and waives any argument, assertion or pleading presented that Defendant (1) is estopped from asserting service of summons was invalid herein or (2) has waived the right to assert service of summons was invalid herein.”
Given plaintiffs express withdrawal of his estoppel argument as a basis for affirming the appellate court, I find the majority’s reliance on estoppel principles troubling.
To be sure, the term “equitable estoppel” appears nowhere in the majority opinion. Nonetheless, the majority holds:
“[W]here the evidence overwhelmingly established that the Board devised a regular system to accept service of summonses and invited litigants to abide by and rely on that system, it is impermissible to allow the Board, at its whim, to treat service made as directed by it as improper service. To allow the Board to acknowledge that service was made in accord with a procedure which it put in place for the ‘accommodation’ of the public, and then allow the Board to deny that proper service was made when the summons, though catalogued and processed in the appropriate fashion, later ‘fell through the cracks,’ would be unjust.” 201 Ill. 2d at 116.
This is, at bottom, equitable estoppel. See Geddes v. Mill Creek Country Club, Inc., 196 Ill. 2d 302, 313-14 (2001) (discussing the elements of estoppel and acknowledging that “ [although fraud is an essential element, it is sufficient that a fraudulent or unjust effect results from allowing another person to raise a claim inconsistent with his or her former declarations”).
Although the majority states that its decision was made after “having had the benefit of additional argument” (201 Ill. 2d at 100), I am at a loss to discern what the possible “benefit” could have been since the parties’ arguments focused on an issue entirely different than the one the majority now finds dispositive. Rather than determining that plaintiff met an evidentiary burden in the trial court of which neither party was aware, and implicitly adopting an argument that plaintiff expressly withdrew, I would decide the issue that the parties actually briefed, argued, rebriefed and reargued — the issue this court considered in its earlier opinion.
As a final matter, I note my disagreement with the majority’s assertion that:
“[I]t is well settled that ‘[a] judgment, order or decree entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved, is void, and may be attacked at any time or in any court, either directly or collaterally.’ ” (Emphasis added.) 201 Ill. 2d at 103, quoting Barnard v. Michael, 392 Ill. 130, 135 (1945).
This assertion is neither “well settled” nor accurate.
In Steinbrecher v. Steinbrecher, 197 Ill. 2d 514 (2001), this court clarified that the “inherent power” requirement is a relic of our pre-1964 judicial system in which courts of limited jurisdiction looked to the statutes for their authority to act. Our circuit courts today, however, enjoy original jurisdiction of all justiciable matters. Ill. Const. 1970, art. VI, § 9. The “inherent power” requirement is thus applicable only to administrative agencies, who are statutory creatures and powerless to act without statutory authority. Steinbrecher, 197 Ill. 2d at 529-30; see also Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002) (discussing effects of 1964 amendments to the judicial article of the 1870 Illinois constitution). The inclusion of the “inherent power” language in the majority opinion is ill-advised in light of our recent holdings and will only serve to create confusion in future cases. It is, moreover, unnecessary to the majority opinion.
There are only two issues in this case: whether this court has jurisdiction over this appeal, and if so, whether the circuit court acquired personal jurisdiction over the Board in the underlying suit. The majority’s commentary on the circuit court’s so-called “inherent power” is completely irrelevant and immaterial to these issues.
For the foregoing reasons, I dissent.