Rodriguez v. Sheriff's Merit Board of Kane County

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

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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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