Ultsch v. The Illinois Municipal Retirement Fund

Docket No. 102232.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

SHAREE ULTSCH, Appellant, v. THE ILLINOIS MUNICIPAL

RETIREMENT FUND, Appellee.

Opinion filed August 2, 2007.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Fitzgerald, Garman, and Burke

concurred in the judgment and opinion.

Justice Kilbride dissented, with opinion, joined by Justice

Karmeier.

OPINION

In the circuit court of Lake County, plaintiff, Sharee Ultsch,

sought to amend her complaint for administrative review to add the

Illinois Municipal Retirement Fund Board of Trustees as a defendant,

relying on section 3–103 of the Administrative Review Law (735

ILCS 5/3–103(2) (West 2004)), as amended by Public Act 89–685

(eff. June 1, 1997). The circuit court dismissed plaintiff’s complaint

based on its ruling that Public Act 89–685 was unconstitutional as

violative of the single subject clause of the Illinois Constitution (Ill.

Const. 1970, art. IV, §8(d)). This is the constitutional question

presented for review. However, we need not reach this constitutional

issue because we hold that section 3–103(2) of the Administrative

Review Law did not allow plaintiff to so amend her complaint.

Accordingly, we vacate the circuit court’s order declaring Public Act

89–685 unconstitutional, and affirm the dismissal of plaintiff’s

complaint for the reasons herein stated.

I. BACKGROUND

Plaintiff is a Lake County employee, and Lake County

participates in defendant, the Illinois Municipal Retirement Fund

(IMRF) (see 40 ILCS 5/7–101 et seq. (West 2004)). IMRF denied

plaintiff’s application for temporary disability benefits. Plaintiff

appealed the denial to the Benefit Review Committee of the IMRF

Board of Trustees. Following a hearing, the committee recommended

that the full Board of Trustees deny plaintiff’s application for

temporary disability benefits. The Board of Trustees adopted the

committee’s recommendation as the final administrative decision.

The Board of Trustees notified plaintiff of its decision via United

States mail on April 25, 2005.

On May 25, 2005, plaintiff filed a complaint for administrative

review of the denial of her claim. The complaint named IMRF as the

sole defendant and a single summons was served thereon. IMRF

moved to dismiss plaintiff’s complaint pursuant to section 2–619(a)

of the Code of Civil Procedure (735 ILCS 5/2–619(a) (West 2004)).

IMRF contended that dismissal was required because plaintiff failed

to name the IMRF Board of Trustees as a defendant.

Plaintiff subsequently moved for leave to amend the complaint to

add the Board of Trustees as a defendant. In her motion, plaintiff

claimed that section 3–103(2) of the Administrative Review Law

(735 ILCS 5/3–103(2) (West 2004)) “allows a complaint in an

administrative review action to be amended to add as a party

defendant the board that acted on behalf of a governmental entity in

effectuating the administrative action which is the basis of the claim.

Estate of Smida v. Illinois Municipal Retirement Fund, 353 Ill. App.

3d 551, 289 Ill. Dec. 699, 820 N.E.2d 475 (2nd Dist. 2004).”

IMRF filed an objection to plaintiff’s motion for leave to amend.

In a supporting memorandum, IMRF acknowledged that the appellate

court in Smida, with one justice dissenting on denial of rehearing,

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held that section 3–103(2) of the Administrative Review Law (735

ILCS 5/3–103(2) (West 2004)) allowed plaintiff to amend her

complaint to name the Board of Trustees as an additional defendant.

However, IMRF contended that “there is an additional issue, not

decided by the Smida court, for this Court to consider.” IMRF

thereupon raised the constitutional issue that Public Act 89–685,

which amended, among other statutes, section 3–103 of the

Administrative Review Law, violates the single subject clause of

section 8(d) of article IV of the Illinois Constitution of 1970.

The circuit court sustained IMRF’s objection. In a memorandum

order filed December 16, 2005, the court ruled that Public Act

89–685 was unconstitutional as violative of the single subject clause

of section 8(d) of article IV of the Illinois Constitution. Consequently,

the circuit court denied plaintiff’s motion for leave to amend her

complaint. In an order filed January 31, 2006, the circuit court,

pursuant to its prior ruling, granted IMRF’s motion to dismiss

plaintiff’s complaint for failure to add the Board of Trustees as a

defendant.

Because the circuit court declared a statute of this state

unconstitutional, this direct appeal followed. 134 Ill. 2d R. 302(a).

II. ANALYSIS

This court acquired jurisdiction of the present case because a

constitutional question is involved. However, while the case was

under advisement, we discerned a threshold issue of statutory

construction that could render adjudication of the constitutional issue

unnecessary.

A. Prudential Restraint

It is quite established that this court will not address constitutional

issues that are unnecessary for the disposition of the case. See, e.g.,

In re E.H., 224 Ill. 2d 172, 178 (2006) (collecting cases). This policy

derives from a sensitive understanding of American constitutional

government. The Illinois Constitution establishes three coequal

branches of government, each with its own powers and functions. Ill.

Const. 1970, art. II, §1. The constitution declares that the legislative

branch makes laws, and that the judicial branch decides cases. To

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properly perform its constitutional function, a court must occasionally

determine the constitutionally of a statute. In so doing, the court is

exercising the power to decide the case before it. The determination

of the constitutionality of a statute when not required to decide the

case can impinge upon the lawmaking function of the legislature.

Indiana Wholesale Wine & Liquor Co. v. State, 695 N.E.2d 99, 107

(Ind. 1998). The policy of prudential judicial restraint is grounded in

those considerations that form the unique character of judicial review

of government action for constitutionality. The policy is based on the

delicacy of that function, the necessity of each branch of government

keeping within its power, and the inherent limitations of the judicial

process. Indiana Wholesale Wine, 695 N.E.2d at 107, quoting Rescue

Army v. Municipal Court of Los Angeles, 331 U.S. 549, 571, 91 L.

Ed. 1666, 1679, 67 S. Ct. 1409, 1421 (1947).

Accordingly: “If [constitutional questions] become indispensably

necessary to a case, the court must meet and decide them; but if the

case may be determined on other points, a just respect for the

legislature requires, that the obligation of its laws should not be

unnecessarily and wantonly assailed.” Ex parte Randolph, 20 F. Cas.

242, 254 (C.C.D. Va. 1833) (Marshall, circuit judge) (quoted in

Indiana Wholesale Wine, 695 N.E.2d at 106 n.18). Illinois courts have

exercised this policy of prudential judicial restraint in cases

presenting constitutional issues arising from the legislative article of

the Illinois Constitution. See, e.g., Bender v. City of Chicago, 58 Ill.

2d 284, 287 (1974); Commissioners of Drainage District No. 5 v.

Arnold, 383 Ill. 498, 507 (1943); Town of Cicero v. Illinois Ass’n of

Firefighters, IAFF Local 717, 338 Ill. App. 3d 364, 377-78 (2003)

(declining adjudication of alleged single-subject clause violation).

In the present case, the seminal question must be whether the

Administrative Review Law, as amended by Public Act 89–685,

allowed plaintiff to amend her complaint for administrative review to

add the Board of Trustees as a defendant. Manifestly, if the

Administrative Review Law, as amended, does not allow plaintiff to

amend her complaint to add the Board of Trustees as a defendant,

then a nonconstitutional issue of statutory construction is presented,

and the alternative constitutional issue should not be reached. See,

e.g., Bismarck Hotel Co. v. Petriko, 21 Ill. 2d 481, 485-86 (1961);

City of Aurora ex rel. Egan v. Young Men’s Christian Ass’n, 9 Ill. 2d

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286, 290-91 (1956); Fairbanks, Morse & Co. v. City of Freeport, 5

Ill. 2d 85, 89-90 (1955). Subsequent to oral argument, we directed

both parties to file supplemental briefs on this nonconstitutional issue.

B. Statutory Construction

Plaintiff’s complaint for administrative review named IMRF only

and a single summons was served thereon. IMRF moved to dismiss

plaintiff’s complaint, pursuant to section 2–619(a) of the Code of

Civil Procedure (735 ILCS 5/2–619(a) (West 2004)), because

plaintiff failed to name the Board of Trustees as a defendant. The

circuit court granted IMRF’s motion. The purpose of a motion to

dismiss under section 2–619 of the Code of Civil Procedure is to

afford litigants a means to dispose of issues of law and easily proved

issues of fact at the outset of a case. People v. Philip Morris, Inc., 198

Ill. 2d 87, 94 (2001). An appeal from a section 2–619 dismissal is the

same in nature as one following a grant of summary judgment. In

both instances, the reviewing court must ascertain whether the

existence of a genuine issue of material fact should have precluded

the dismissal, or absent such an issue of fact, whether dismissal is

proper as a matter of law. Review is de novo. Carroll v. Paddock, 199

Ill. 2d 16, 22 (2002); Guzman v. C.R. Epperson Construction, Inc.,

196 Ill. 2d 391, 397 (2001).

As earlier discussed, this case turns on the correct interpretation

of several sections of the Administrative Review Law. IMRF’s

enabling legislation provides that “the Administrative Review Law,

and all amendments and modifications thereof and the rules adopted

pursuant thereto shall apply to and govern all proceedings for the

judicial review of final administrative decisions of the retirement

board.” 40 ILCS 5/7–220 (West 2004). Although the Illinois

Constitution grants an appeal as a matter of right from all final

judgments of the circuit court (Ill. Const. 1970, art. VI, §6), the

constitution provides that final administrative decisions are

appealable only “as provided by law” (Ill. Const. 1970, art. VI, §9).

Because review of a final administrative decision may be obtained

only as provided by statute, a court exercises “special statutory

jurisdiction” when it reviews an administrative decision. Special

statutory jurisdiction is limited to the language of the statute

conferring it and the court has no powers from any other source. A

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party seeking to invoke a court’s special statutory jurisdiction must

strictly comply with the procedures prescribed by the statute.

Collinsville Community Unit School District No. 10 v. Regional

Board of School Trustees of St. Clair County, 218 Ill. 2d 175, 181-82

(2006); ESG Watts, Inc. v. Pollution Control Board, 191 Ill. 2d 26,

29-30 (2000). The Administrative Review Law was an innovation and

a departure from the common law, and the procedures established

therein must be followed. Rodriguez v. Sheriff’s Merit Comm’n, 218

Ill. 2d 342, 349-50 (2006). Thus, whether dismissal of plaintiff’s

complaint was warranted depends on whether plaintiff strictly

complied with the requirements of the Administrative Review Law.

Section 3–102 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 “within the time and in the manner”

provided by the statute. 735 ILCS 5/3–102 (West 2002). Section

3–103 mandates: “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.” 735 ILCS 5/3–103 (West 2004). Section 3–107(a)

mandates that “the administrative agency and all persons, other than

the plaintiff, who were parties of record to the proceedings before the

administrative agency shall be made defendants.” 735 ILCS

5/3–107(a) (West 2004). This requirement “is mandatory and

specific, and admits of no modification.” Winston v. Zoning Board of

Appeals, 407 Ill. 588, 595 (1950). Noncompliance with the joinder

provisions of the Administrative Review Law requires dismissal of

the review proceeding. Collinsville Community Unit School District,

218 Ill. 2d at 183; McGaughy v. Illinois Human Rights Comm’n, 165

Ill. 2d 1, 12 (1995).

However, Public Act 89–685 (Pub. Act 89–685, eff. June 1, 1997)

amended, inter alia, these sections of the Administrative Review Law

by adding similarly worded exceptions. The legislature added the

following exception to the 35-day limitations period of section 3–103:

“(2) *** a complaint filed within the time limit

established by this Section may be amended to add an

employee, agent, or member of an administrative agency,

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board, committee, or government entity, who acted in an

official capacity as a party of record to the administrative

proceeding, if the administrative agency, board, committee, or

government entity is a party to the administrative review

action. If the director or agency head, in his or her official

capacity, is a party to the administrative review, a complaint

filed within the time limit established by this Section may be

amended to add the administrative agency, board, committee,

or government entity.” 735 ILCS 5/3–103(2) (West 2004).

Similarly, Public Act 89–685 inserted this corresponding exception

in section 3–107(a):

“No action for administrative review shall be dismissed ***

based upon the failure to name an employee, agent, or

member, who acted in his or her official capacity, of an

administrative agency, board, committee, or government

entity, where the administrative agency, board, committee, or

government entity, has been named as a defendant as

provided in this Section. Naming the director or agency head,

in his or her official capacity, shall be deemed to include as

defendant the administrative agency, board, committee, or

government entity that the named defendants direct or head.

No action for administrative review shall be dismissed ***

based upon the failure to name an administrative agency,

board, committee, or government entity, where the director or

agency head, in his or her official capacity, has been named as

a defendant as provided in this Section.” 735 ILCS 5/3–107(a)

(West 2004).1

We must determine whether these exceptions to the mandatory

joinder requirements of the Administrative Review Law allowed

plaintiff to amend her complaint to add the Board of Trustees as a

defendant.

The primary rule of statutory construction is to give effect to the

intent of the legislature. The best evidence of legislative intent is the

statutory language itself, which must be given its plain and ordinary

1

Public Act 89–685 also inserted a corresponding exception in the

summons requirement of section 3–105 (735 ILCS 5/3–105 (West 2004)).

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meaning. The statute should be evaluated as a whole. Where the

meaning of a statute is unclear from a reading of its language, courts

may look beyond the statutory language and consider the purpose of

the law, the evils it was intended to remedy, and the legislative

history of the statute. Stroger v. Regional Transportation Authority,

201 Ill. 2d 508, 524 (2002); see Advincula v. United Blood Services,

176 Ill. 2d 1, 16-19 (1996).

In her supplemental brief, plaintiff contends that section 3–103(2)

of the Administrative Review Law (735 ILCS 5/3–103(2) (West

2004)) allows a complaint for administrative review to be amended

after the initial 35-day period to add the board of an administrative

agency or public entity as a party defendant when the agency was

named as a party in the initial complaint. Plaintiff relies primarily on

Estate of Smida v. Illinois Municipal Retirement Fund, 353 Ill. App.

3d 551 (2004).

In Smida, the circuit court granted IMRF’s motion to dismiss the

plaintiff’s complaint for administrative review because the plaintiff

failed to comply with section 3–107(a) of the Administrative Review

Law by not naming as a defendant the Board of Trustees. Smida, 353

Ill. App. 3d at 552. The appellate court in Smida was presented with

the exact issue as presented in this case: “Our inquiry is whether the

Board [of Trustees], the party that plaintiff sought to add to the

complaint, qualified for amendment under section 3–103(2) of the

Review Law.” Smida, 353 Ill. App. 3d at 553. IMRF argued that the

statute permits the addition as a defendant of only “an employee,

agent, or member of an administrative agency, board, committee, or

government entity.” 735 ILCS 5/3–103(2) (West 2002). IMRF argued

that the Board of Trustees was the “administrative agency” and,

therefore, could not be an employee, agent, or member of the agency.

Thus, according to IMRF, the plaintiff was properly denied leave to

amend the complaint.

The Smida majority acknowledged case law holding that “a board

that renders the final decision of an administrative agency satisfies the

definition of ‘administrative agency’ in section 3–101 of the Review

Law (735 ILCS 5/3–101 (West 2002)) and therefore must be named

as a defendant under section 3–107(a) of the Review Law or the

complaint must be dismissed.” Smida, 353 Ill. App. 3d at 553.

However, the Smida majority then distinguished that rule because it

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addressed who must be named as a defendant pursuant to section

3–107(a), while the issue before the Smida court was whether

plaintiff could amend her complaint pursuant to section 3–103(2).

The court examined section 3–103(2) and discerned three

conditions to qualify for amendment. First, an administrative agency,

board, committee, or government entity must be a party to the action.

Second, the party sought to be added must be an “employee, agent, or

member of an administrative agency, board, committee, or

government entity.” Third, the employee, agent, or member of the

administrative agency must have “ ‘acted in an official capacity as a

party of record to the administrative proceeding.’ ” Smida, 353 Ill.

App. 3d at 553-54, quoting 735 ILCS 5/3–103(2) (West 2002). The

Smida majority considered this statutory language to be ambiguous

because it was “unclear” whether it applied to the Board of Trustees.

Smida, 353 Ill. App. 3d at 554.

The Smida majority then concluded that the Board of Trustees

qualifies for amendment for the following reasons. In the complaint,

plaintiff named a government entity, IMRF, as a party. Additionally,

there was no dispute that the Board of Trustees was a party of record

to the administrative proceeding. Lastly, whether the Board of

Trustees was an employee, agent, or member of IMRF, the Smida

majority concluded that the Board of Trustees was “a member of

IMRF.” Smida, 353 Ill. App. 3d at 554. The court stated that its

conclusion was consistent with the legislative intent behind section

3–103(2), which requires a liberal construction. Smida, 353 Ill. App.

3d at 554. The Smida court reversed the circuit court’s dismissal of

the plaintiff’s complaint. Smida, 353 Ill. App. 3d at 554-55.

Justice Gilleran Johnson dissented from the denial of rehearing.

Smida, 353 Ill. App. 3d at 554-A, 820 N.E.2d at 480 (Gilleran

Johnson, J., dissenting upon denial of rehearing). She was of the

opinion that the Board of Trustees was the administrative agency that

section 3–107(a) required the plaintiff to name as a defendant.

Further, she believed that section 3–103(2) “was intended to allow a

plaintiff to amend a complaint for administrative review to add an

individual as an adverse party, if the individual was an employee,

agent, or member of an agency, board, or entity, and the agency,

board, or entity had been named in the original complaint.”

(Emphases added.) Smida, 353 Ill. App. 3d at 554-C, 820 N.E.2d at

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480 (Gilleran Johnson, J., dissenting upon denial of rehearing). As the

Board of Trustees is not an individual, the dissent concluded that the

exceptions contained in sections 3–103(2) and 3–107(a) did not

apply. Smida, 353 Ill. App. 3d at 554-D, 820 N.E.2d at 481 (Gilleran

Johnson, J., dissenting upon denial of rehearing).

In its supplemental brief, IMRF contends that the Smida majority

misconstrued section 3–103(2) of the Administrative Review Law.

IMRF asserts that the above-quoted exceptions to the mandatory

joinder requirements, contained in sections 3–103(2) and 3–107(a),

do not apply to this case. IMRF contends that plaintiff, therefore, was

required to name the Board of Trustees as a defendant, and her failure

to do so required dismissal of her complaint for administrative

review.

We agree with IMRF’s contention. We reject the holding of the

Smida court, upon which plaintiff relies, that the Board of Trustees is

a “member” of IMRF. The reasoning that the Smida majority

employed to reach its conclusion was flawed in at least two respects.

First, the Smida majority’s attempt to construe section 3–103(2)

of the Administrative Review Law in isolation and without reference

to section 3–107(a) was erroneous. We repeat: a court determines the

legislative intent in enacting a statute by examining the entire statute

and by construing each material part of the legislation together, and

not each part or section alone. Castaneda v. Illinois Human Rights

Comm’n, 132 Ill 2d 304, 318-21 (1989) (construing together several

sections of the Administrative Review Law).

Second, the Smida court erred in concluding that section 3–103(2)

was ambiguous, thereby requiring the court to look beyond its

statutory language. There is no rule of statutory construction that

authorizes a court to declare that the legislature did not mean what the

plain language of the statute says. Midstate Siding & Window Co. v.

Rogers, 204 Ill. 2d 314, 320-21 (2003). We repeat that a court should

first look to the statutory language as the best indication of legislative

intent without resorting to other aids for construction. Where the

language of a statute is plain and unambiguous, a court need not

consider other interpretive aids. Envirite Corp. v. Illinois

Environmental Protection Agency, 158 Ill. 2d 210, 216-17 (1994);

DiFoggio v. Retirement Board of the County Employees Annuity &

Benefit Fund, 156 Ill. 2d 377, 382-83 (1993) (and cases cited therein).

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The plain language of sections 3–103(2) and 3–107(a), considered

together, clearly refutes the erroneous reasoning of the Smida court.

A complaint for administrative review, filed within the 35-day

limitations period, may be amended to add “an employee, agent, or

member” of an agency, board, committee, or entity, who acted in an

official capacity as a party of record in the administrative proceeding,

if the entity is a party to the administrative review action. 735 ILCS

5/3–103(2) (West 2004). Correspondingly, the complaint shall not be

dismissed for failure to name as a defendant the same series of

individuals, i.e., “an employee, agent, or member” of the same list of

entities, who acted in “his or her” official capacity, if the entity had

been named as a defendant. 735 ILCS 5/3–107(a) (West 2004). The

complaint may be amended to add the entity if the director or agency

head is a party to the administrative review action (735 ILCS

5/3–103(2) (West 2004)) and, further, naming the director or agency

head is deemed to include the agency (735 ILCS 5/3–107(a) (West

2004)). Correspondingly, the action shall not be dismissed for failure

to include as a defendant the entity where the director or agency head

has been named as a defendant. 735 ILCS 5/3–107(a) (West 2004).

We find no legislative intent in this statutory language to overrule the

long-established requirement that a complaint for administrative

review name as a defendant the administrative agency. Cuny v.

Annunzio, 411 Ill. 613, 617 (1952); 735 ILCS 5/3–107(a) (West

2004). The only exceptions the statutory language has carved out are

those specified above.

The plain meaning of these two provisions, considered together,

expressly allows amending a complaint for administrative review to

add an individual who is an employee, agent, or member of the

decisionmaking agency when the agency has been named as a

defendant. In other words, section 3–103(2) applies only to an

individual who is an employee, agent, or member of the

decisionmaking body that has already been named as a defendant in

the complaint for administrative review. However, this case does not

present that situation. IMRF was not the agency that rendered the

decision in this case. The Board of Trustees is not an individual who

is a “member” of IMRF.

The dissent views this reading of sections 3–103(2) and 3–107(a)

as “flawed” and “unsound.” Slip op. at 22 (Kilbride, J., dissenting,

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joined by Karmeier, J.). The dissent construes sections 3–103(2) and

3–107(a) separately, emphasizing the possessive pronouns “his or

her” in section 3–107(a), as to create a different exception in each

section. The dissent views section 3–107(a) as precluding the

dismissal of any administrative review action because an individual

who acted in his or her official capacity was not named as a

defendant, as long as the administrative agency, board, committee, or

government entity has already been named. However, according to

the dissent, section 3–103(2) allows administrative review plaintiffs

to amend their complaints belatedly to name any type of “employee,

agent, or member” who acted in an official capacity relevant to an

agency, board, committee, or government entity that is already a party

to the action. The dissent concludes that the plain language of

sections 3–103(2) and 3–107(a) does not prevent the application of

section 3–103(2) to cure plaintiff’s failure to name the Board. Slip op.

at 22-24 (Kilbride, J., dissenting, joined by Karmeier, J.).

By failing to read sections 3–103(2) and 3–107(a) in harmony and

as a whole, the dissent errs in concluding that the legislature intended

“to identify different groups in these two sections.” Slip op. at 22

(Kilbride, J., dissenting, joined by Karmeier, J.). Initially, the dissent

begins by quoting only to the first sentence of section 3–103(2),

overlooking the second sentence, which provides: “If the director or

agency head, in his or her official capacity, is a party to the

administrative review, a complaint filed within the time limit

established by this Section maybe amended to add the administrative

agency, board, committee, or government entity.” 735 ILCS

5/3–103(2) (West 2002). By this sentence the legislature plainly

describes the only circumstance whereby a plaintiff may amend a

complaint for administrative review to add a board. The dissent’s

construction of section 3–103(2), based solely on its first sentence,

would render the second sentence superfluous. “[O]ne of the

fundamental principles of statutory construction is to view all of the

provisions of a statute as a whole. [Citation.] Words and phrases

should not be construed in isolation, but interpreted in light of other

relevant portions of the statute so that, if possible, no term is rendered

superfluous or meaningless.” Land v. Board of Education of the City

of Chicago, 202 Ill. 2d 414, 422 (2002).

In addition, the dissent’s reading of section 3–103(2) would

render section 3–107(a) meaningless. Under the plain language of

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section 3–107(a), the plaintiff was required to name the Board of

Trustees as a defendant in her administrative review action, as the

Board of Trustees issued the “final decision” subject to review. See

735 ILCS 5/3–107(a) (West 2004) (“[I]n any action to review any

final decision of an administrative agency, the administrative agency

*** shall be made [a] defendant[ ]”). Because the plaintiff failed to

name the Board of Trustees as a defendant, her action clearly was

subject to dismissal pursuant to section 3–107(a). Yet, under the

dissent’s interpretation of section 3–103(2), a complaint that

improperly fails to name the Board of Trustees as a defendant could

never be dismissed for lack of jurisdiction, because the plaintiff could

amend the complaint to include the Board of Trustees as a defendant

whenever it saw fit.

Further, the dissent errs in giving undue importance to the

possessive pronouns “his or her” found in section 3–107(a) and the

indefinite article “an” in section 3–103(2). “Rather than meander

through the intricacies of the many principles of statutory

construction” (Scadron v. City of Des Plaines, 153 Ill. 2d 164, 185

(1992)), we simply conclude that, viewing sections 3–103(2) and

3–107(a) together, the legislature intended to establish the same

corresponding exceptions to statutory filing requirements.

Although we find sections 3–103(2) and 3–107(a) unambiguous,

our reading of these sections finds support in the legislative history.

As earlier noted, Public Act 89–685 (House Bill 346) added section

3–103(2). When introducing the legislation, Senator Hawkinson

stated:

“[House Bill 346] allows a plaintiff in an administrative

review action to obtain service on the agency if they have

already served the agency head or to refile against an

employee acting in his official capacity if they have already

served the agency. Without this change, we’re finding

them–some cases are being dismissed because all necessary

parties have not been named and served.” 89th Ill. Gen.

Assem., Senate Proceedings, May 8, 1996, at 12-13

(statements of Senator Hawkinson).

This explanation indicates the amendments to the Administrative

Review Law contained in Public Act 89–685 were intended to allow

a plaintiff to amend a timely filed complaint for administrative review

by adding an agency if the agency head was named, or by adding an

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individual if the individual was an employee of a properly named

agency.

In her supplemental brief, plaintiff characterizes this conclusion

as “spurious.” Citing IMRF’s enabling legislation, plaintiff argues

that IMRF is, within the meaning of section 3–103(2), an

administrative agency or governmental entity. Further, according to

plaintiff, the Board of Trustees would not exist without IMRF, and

the legislature created the Board of Trustees to carry out IMRF’s

various functions. Therefore, according to plaintiff, the Board of

Trustees is a “member,” or acts as an “agent,” of IMRF.

Consequently, since plaintiff’s initial complaint named IMRF as a

defendant, plaintiff argues that the Board of Trustees, as an agent or

member of IMRF, can be added as a party defendant pursuant to

section 3–103(2).2 Plaintiff argues that this conclusion accords with

the policy of the Code of Civil Procedure, in which the

Administrative Review Law is codified, that the Code “shall be

liberally construed, to the end that controversies may be speedily and

finally determined according to the substantive rights of the parties.”

735 ILCS 5/1–106 (West 2004).

This contention completely lacks merit. Section 3–101 of the

Administrative Review Law defines “administrative agency” as a

person or group having the power to make administrative decisions.

735 ILCS 5/3–101 (West 2004). Several sections of IMRF’s enabling

legislation, codified in article VII of the Pension Code, clearly define

the Board of Trustees as the “administrative agency.” 40 ILCS

5/7–178, 7–200, 7–220 (West 2004). While the Board of Trustees

may be an arm of IMRF, the Board of Trustees is the body that acted

as the administrative agency and entered the administrative decision

that is subject to administrative review. Therefore, we hold that the

Board of Trustees is the “administrative agency” as that term is

defined by the Administrative Review Law. Cuny, 411 Ill. at 616-17;

see Wilson v. State Employees’ Retirement System, 336 Ill. App. 3d

199, 203-05 (2002); Veazey v. Baker, 322 Ill. App. 3d 599, 602-03

(2001) (collecting cases). Consequently, the Board of Trustees cannot

be an “employee, agent, or member” of IMRF within the meaning of

2

The dissent accepts this argument. Slip op. at 18-22 (Kilbride, J.,

dissenting, joined by Karmeier, J.).

-14-

sections 3–103(2) and 3–107(a) of the Administrative Review Law.

The statutory language, being mandatory and specific, and admitting

of no modification (Cuny, 411 Ill. at 617), does not require any aids

for construction, such as section 1–106 of the Code of Civil

Procedure (735 ILCS 5/1–106 (West 2004)).

The Smida court summarily concluded that the language of

section 3–103(2) was “unclear” and, therefore, ambiguous. Smida,

353 Ill. App. 3d at 554. However, a court should not attempt to read

a statute other than in the manner in which it was written. In applying

plain and unambiguous language, it is not necessary for a court to

search for any subtle or not readily apparent intention of the

legislature. Envirite, 158 Ill. 2d at 217; DiFoggio, 156 Ill. 2d at 383.

The Smida court had to look no further than the plain language of the

Administrative Review Law itself. Estate of Smida v. Illinois

Municipal Retirement Fund, 353 Ill. App. 3d 551 (2004), is hereby

overruled.

In its supplemental brief, IMRF cites to McGaw Medical Center

of Northwestern University v. Department of Employment Security,

369 Ill. App. 3d 37 (2006), appeal allowed, 223 Ill. 2d 637 (2007)

(table). In McGaw, the plaintiff’s complaint for administrative review

named as defendants the Illinois Department of Employment Security

(IDES) and its Director, but failed to name the IDES Board of

Review. After the expiration of the 35-day limitations period, the

defendants moved to dismiss the complaint based on the plaintiff’s

failure to name the Board as a defendant. The plaintiff moved to

amend the complaint. However, the circuit court denied the plaintiff’s

motion for leave to amend and granted the defendants’ motion to

dismiss the complaint. Before the appellate court, the plaintiff

contended that it should have been allowed to add the Board as a

defendant pursuant to section 3–103(2), relying on Smida. McGaw,

369 Ill. App. 3d at 39-43. Expressly disagreeing with the reasoning

and conclusion of the Smida majority, the McGaw court construed

section 3–103(2) to not allow a plaintiff to amend a complaint for

administrative review to add a “board” as a defendant.

The McGaw court opined that “[s]ection 3–103 conforms to

section 3–107.” McGaw, 369 Ill. App. 3d at 44. Construing sections

3–103(2) and 3–107(a) together, the McGaw court reasoned:

“The statutes create exceptions to the rule that a complaint

for administrative review that fails to name all necessary

-15-

parties within the 35-day limitations period must be dismissed

without leave to amend. But the exceptions do not apply here.

Section 3–107 makes clear that the administrative agency

rendering the decision sought to be reviewed must be named

as a defendant. If the administrative agency is not named, it

may be joined if the agency’s director or agency head was

made a defendant. The administrative agency that rendered

the decision in this case is the Board. As such, plaintiff was

required to name the Board as a defendant or, under the

exceptions created by sections 3–107 and 3–103, the Board’s

director or agency head. Plaintiff failed to name either.”

McGaw, 369 Ill. App. 3d at 44-45.

The McGaw court concluded “that plaintiff’s complaint was properly

dismissed, without leave to amend, for failure to comply strictly with

sections 3–103 and 3–107 of the Review Law.” McGaw, 369 Ill. App.

3d at 45-46.

In the present case, the Board of Trustees was the administrative

agency that plaintiff, under section 3–107(a) of the Administrative

Review Law (735 ILCS 5/3–107(a) (West 2004)), was required to

name as a defendant. IMRF’s motion to dismiss plaintiff’s complaint

for administrative review is meritorious because plaintiff failed to

name the Board of Trustees as a defendant within the initial 35-day

limitations period, and because sections 3–103(2) and 3–107(a) of the

Administrative Review Law (735 ILCS 5/3–103(2), 3–107(a) (West

2004)) do not allow plaintiff to so amend her complaint. 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. It is the judgment that is on appeal to a court

of review and not what else may have been said by the lower court.

The reviewing court need not accept the reasons given by the circuit

court for its judgment. Rather, a reviewing court can uphold 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. Rodriguez, 218 Ill. 2d at 357, quoting Bell v. Louisville &

Nashville R.R. Co., 106 Ill. 2d 135, 148 (1985) (and cases cited

therein). Accordingly, we affirm the ultimate judgment of the circuit

court granting IMRF’s motion to dismiss plaintiff’s complaint for

administrative review for the reasons stated in this opinion.

-16-

“It remains the mandate of this court that constitutional issues be

considered only when the case may not be decided on

nonconstitutional grounds.” Mulay v. Mulay, 225 Ill. 2d 601, 611

(2007). Our disposition of this cause obviates the need to determine

the constitutionality of Public Act 89–685. See, e.g., Beahringer v.

Page, 204 Ill. 2d 363, 378 (2003); Bonaguro v. County Officers

Electoral Board, 158 Ill. 2d 391, 399 (1994).

III. CONCLUSION

For the foregoing reasons, the December 16, 2005, order of the

circuit court of Lake County, which declared Public Act 89–685

unconstitutional, is vacated. The January 31, 2006, order of the circuit

court, which granted IMRF’s motion to dismiss plaintiff’s complaint

for administrative review, is affirmed for the reasons stated in this

opinion.

Affirmed in part and vacated in part.

JUSTICE KILBRIDE, dissenting:

I respectfully dissent from the majority opinion because I believe

section 3–103(2) of the Administrative Review Law (735 ILCS

5/3–103(2) (West 2004)) permits Ultsch to add the Board of Trustees

as a defendant after the expiration of the 35-day limitations period.

Thus, I believe this court should address the constitutional issue

presented in this appeal.

Section 3–103(2) allows an otherwise timely complaint to be

amended belatedly:

“to add an employee, agent, or member of an

administrative agency, board, committee, or government

entity, who acted in an official capacity as a party of record to

the administrative proceeding, if the administrative agency,

board, committee, or government entity is a party to the

administrative review action ***.” 735 ILCS 5/3–103(2)

(West 2004).

Here, determining if this section applies requires us to consider

whether: (1) IMRF is an “administrative agency, board, committee,

or government entity”; (2) IMRF is “a party to the administrative

-17-

review action”; (3) the Board of Trustees is “an employee, agent, or

member” of IMRF; and (4) the Board acted “in an official capacity as

a party of record to the administrative proceeding.” 735 ILCS

5/3–103(2) (West 2004).

The answers to the second and fourth inquiries are undisputably

“yes.” IMRF is a party named in the administrative review action, and

the Board was a party of record when it rendered its final

administrative decision in its official capacity. Thus, the only pending

questions are whether IMRF is an “administrative agency, board,

committee, or government entity” and whether the Board is “an

employee, agent, or member” of IMRF within the meaning of the

statute. To resolve these questions, the court must employ our

traditional rules of statutory construction. As the majority notes (slip

op. at 7-8), the goal of statutory construction is to effectuate the

legislature’s intent, as best revealed by the plain and ordinary

meaning of the language used in the statute.

Applying this rule, the court must first consider the plain and

ordinary meaning of the word “entity.” The dictionary defines

“entity” to mean “BEING, EXISTENCE; esp.: independent, separate,

or self-contained existence.” Webster’s Third New International

Dictionary 758 (1993). To determine whether IMRF meets this

definition, the court looks to IMRF’s legislative roots and its real-

world functions.

The legislature created IMRF in section 7–101 of the Illinois

Pension Code (40 ILCS 5/7–101 (West 2004)) for the stated purpose

of “provid[ing] a sound and efficient system for the payment of

annuities and other benefits, *** to certain officers and employees,

and to their beneficiaries, of municipalities” (40 ILCS 5/7–102 (West

2004)). Its mission is “to efficiently and impartially develop,

implement and administer programs that provide income protection

to members and their beneficiaries on behalf of participating

employers in a prudent manner.” 40 ILCS 5/7–102 (West 2004).

Notably, the legislature expressly granted IMRF, not the Board,

statutory authority to institute litigation against participating

municipalities and instrumentalities to recover delinquent

contributions when other statutory measures have failed. 40 ILCS

5/7–172.1 (West 2004). Thus, the enabling legislation recognized

IMRF as a separate government entity, capable of actions independent

of the Board.

-18-

Indeed, the record on appeal further establishes IMRF as a

separate entity. In its supplemental brief, IMRF does not argue that it

is not a government entity. IMRF’s court filings, including its motion

to dismiss Ultsch’s complaint for administrative review and related

documents, were filed in its own name. IMRF has a main office, a

mailing address, its own letterhead, and a staff, including the

associate general counsel involved in this case. Ultsch’s 1987 “Notice

of Participation in IMRF” was on a form bearing only IMRF’s name

in the heading. In addition, Ultsch applied for disability benefits on

an IMRF form stating its mailing address and the phone number of its

own service representatives, with no reference to the Board.

Similarly, other forms in the record noted IMRF’s unique contact

information. IMRF and members of its disability claims department

were also expressly named in extensive correspondence with the

medical experts who reviewed Ultsch’s claim, but the Board was not

mentioned. Similar designations appear on correspondence between

IMRF and Ultsch, or her counsel. The record contains no evidence

that the Board originally received or sent any of these materials.

Moreover, Ultsch’s initial denial letter was from the IMRF

benefits manager on IMRF letterhead. That letter stated, “We

reviewed [Ultsch’s] disability claim to determine [her] eligibility for

temporary disability benefits. Our decision is that, based on the

medical evidence in our file, you do not meet IMRF’s definition of

temporary disability as defined by IMRF law.” (Emphases added.)

The letter further explained that any appeal hearings before the Board

of Trustee’s Benefit Review Committee would be conducted “in the

IMRF office.” Nothing in the denial letter indicated that IMRF was

simply acting on behalf of the Board. Similarly, the letter notifying

Ultsch’s employer, Lake County, of the denial of benefits was also

submitted by the IMRF benefits manager rather than the Board.

Based on the documentary evidence, it is apparent that IMRF was

the sole entity processing Ultsch’s disability claim. Perhaps most

importantly, the IMRF benefits manager, not the Board, sent the

official letter notifying Ultsch that both the Benefit Review

Committee’s decision and the Board of Trustees’ final administrative

decision had upheld the denial of her claim. That letter, submitted on

IMRF letterhead, also noted that the “action by the Board of Trustees

constitutes its final administrative decision, and IMRF will take no

further action regarding this disability claim.” (Emphasis added.)

-19-

Notably, this wording formally recognized the termination of IMRF’s

processing of the claim. The record establishes that IMRF actually

processed Ultsch’s disability claim through the issuance of the final

administrative decision. Accordingly, whether viewed from a

functional or a statutory perspective, IMRF is a government entity

separate from the Board, capable of independent action. Thus, I

conclude that IMRF is a “government entity.”

The majority does not address the effect that the IMRF’s status as

a government entity has on the application of section 3–103(2),

however. Instead, it avoids the question by simply concluding that

because IMRF is not the administrative “agency that rendered the

decision in this case,” section 3–103(2) does not apply. Slip op. at 11.

The majority’s analysis fails to address the critical language in section

3–103(2) that also allows the late addition of “an employee, agent, or

member of *** [a] government entity.” (Emphasis added.) 735 ILCS

5/3–103(2) (West 2004). The majority appears to recognize only the

portion of the statutory exception allowing the late naming of “an

employee, agent, or member of an administrative agency.” (Emphasis

added.) See 735 ILCS 5/3–101 (West 2004); slip op. at 14-15.

The majority’s position excludes the possibility that the Board can

fulfill dual roles, being both a decisionmaking administrative agency

and “an employee, agent, or member” of another government entity,

such as IMRF. See Cuny v. Annunzio, 411 Ill. 613, 616-17 (1952)

(recognizing that the Board of Review of the Department of Labor is

both an administrative agency and “a division or arm” of the

Department of Labor). Thus, the majority’s view improperly renders

the portion of the section allowing the addition of “an employee,

agent, or member *** of a government entity” mere surplusage. That

result effectively eliminates a portion of section 3–103(2) and violates

one of this court’s cardinal rules of statutory construction. See Fisher,

221 Ill. 2d at 115; slip op. at 12, citing Land v. Board of Education of

the City of Chicago, 202 Ill. 2d 414, 422 (2002). That rule mandates

that each word, clause, and sentence in a statute be given a reasonable

meaning whenever possible. Advincula v. United Blood Services, 176

Ill.2d 1, 26 (1996). Applying that rule here compels the court to

conclude that IMRF is covered by section 3–103(2) and is a

“government entity” within the plain meaning of that section.

Having made this determination, the court must next consider

whether the Board is “an employee, agent, or member” of IMRF

-20-

within the meaning of section 3–103(2). The Board is not an

“employee” of IMRF as that term is defined in the Pension Code

because its members do not “[r]eceive[ ] earnings as payment for the

performance of personal services or official duties out of the general

fund of a municipality, or out of any special fund or funds.” 40 ILCS

5/7–109 (West 2004). Indeed, section 7–175 of the Pension Code

specifically precludes Board members from receiving payments for

their services, stating that they “shall serve without compensation.”

40 ILCS 5/7–174(g) (West 2004).

The term “agent,” however, does fit the Board’s role with IMRF.

An “agent” is “[o]ne who is authorized to act for or in place of

another; a representative.” Black’s Law Dictionary 68 (8th ed. 2004).

See also Webster’s Third New International Dictionary 40 (1993)

(defining an “agent” as “one that acts for or in the place of another by

authority from him: as *** a representative, emissary, or official of

a government”). Among the powers and duties statutorily granted to

the Board (40 ILCS 5/7–178 (West 2004)) are preparing IMRF’s

operating budget (40 ILCS 5/7–180 (West 2004)), compelling

witnesses “to testify upon any necessary matter concerning the fund”

(40 ILCS 5/7–181 (West 2004)), requesting information “as is

necessary for the proper operation of the fund” (40 ILCS 5/7–183

(West 2004)), keeping permanent records of Board proceedings and

other records “necessary or desirable for administration of the Fund”

(40 ILCS 5/7–197 (West 2004)), and “carry[ing] on generally any

other reasonable activities, including, without limitation, the making

of administrative decisions on participation and coverage, which are

necessary for carrying out the intent of this fund” (40 ILCS 5/7–200

(West 2004)). By performing these duties, the Board acts as a

representative of IMRF, making it an agent of the fund.

Thus, adhering strictly to the plain language of the statute, the

Board is an agent of IMRF, a government entity already named as a

party on administrative review, that acted in its official capacity as a

party of record in this administrative proceeding. That is all that is

required under section 3–103(2) to allow Ultsch to amend her

administrative complaint to name the Board after the expiration of the

35-day limitations period. See 735 ILCS 5/3–103(2) (West 2004).

Nonetheless, the majority attempts to support its contrary

conclusion by reading section 3–103(2) with section 3–107(a) (735

ILCS 5/3–107(a) (West 2004)) and the definitions in section 3–101

-21-

(735 ILCS 5/3–101 (West 2004)). Slip op. at 11-14. The majority first

correctly states that section 3–107(a) mandates that “ ‘the

administrative agency *** shall be made [a] defendant[ ].’ ” Slip op.

at 6, quoting 735 ILCS 5/3–107(a) (West 2004). Relying on the

definitions in section 3–101 (735 ILCS 5/3–101 (West 2004)), the

majority next states that the Board is “the administrative agency” that

must be named because it had the power to make the administrative

decision denying Ultsch benefits. Slip op. at 14. While I agree with

these statements, I believe the majority’s subsequent statutory

construction, based on a flawed comparison of the language in section

3–103(2) and section 3–107(a), is unsound.

Section 3–107(a) precludes the dismissal for lack of jurisdiction

of any administrative review action “based upon the failure to name

an employee, agent, or member, who acted in his or her official

capacity, of an administrative agency, board, committee, or

government entity.” (Emphasis added.) 735 ILCS 5/3–107(a) (West

2004). Section 3–103(2), meanwhile, allows the late naming of “an

employee, agent, or member of an administrative agency, board,

committee, or government entity, who acted in an official capacity.”

(Emphasis added.) 735 ILCS 5/3–103(2) (West 2004). Although the

limiting language used in the two sections is similar, one critical

difference undeniably remains.

In section 3–107(a), the legislature chose to use the words “his or

her” to describe the type of “employee, agent or member” at issue;

i.e., “an employee, agent, or member, who acted in his or her official

capacity,” thus limiting its application to individuals. (Emphasis

added.) 735 ILCS 5/3–107(a) (West 2004). To its credit, the majority

recognizes the import of this language. Slip op. at 11 (recognizing

that the term “his or her” limited the application of section 3–107(a)

to individuals). Its analysis falters, however, when it carries that same

restriction over to the type of “employee, agent, or member”

addressed in section 3–103(2). Slip op. at 11.

A comparison of the plain language reveals the legislature’s intent

to identify different groups in these two sections. Unlike section

3–107(a), section 3–103(2) does not use the descriptive words “his or

her” in its restrictive language. Instead, the scope of the exception in

section 3–103(2) is limited to an “employee, agent, or member ***

who acted in an official capacity.” (Emphasis added.) 735 ILCS

5/3–103(2) (West 2004). Thus, the legislature’s decision to use

-22-

different words to describe the relevant limitations requires this court

to interpret those sections differently. While the “his or her” used in

section 3–107(a) is properly construed to limit the covered group to

individual persons, the broader, impersonal “an” of section 3–103(2)

suggests no such restriction.

If the legislature intended the two sections to address the same

group, it would have used identical descriptive language to signal that

intent. Indeed, the legislature chose to use virtually identical language

in the remaining portions of the two provisions. Compare 735 ILCS

5/3–103(2) (West 2004) (addressing “an employee, agent, or member

of an administrative agency, board, committee, or government entity,

***, if the administrative agency, board, committee, or government

entity is a party to the administrative review action”) with 735 ILCS

5/3–107(a) (West 2004) (addressing “an employee, agent, or member,

*** of an administrative agency, board, committee, or government

entity, where the administrative agency, board, committee, or

government entity, has been named as a defendant”). The legislature’s

decision to use different descriptions to identify the “employee[s],

agent[s], or member[s]” at issue in sections 3–103(2) and 3–107(a)

signals its intent to create distinct qualifications for each group.

As repeatedly noted by the majority (slip op. at 7-8, 10, 11, 15),

the plain meaning of the language adopted by the legislature is the

best indicator of its intentions. Town & Country Utilities, Inc. v.

Illinois Pollution Control Board, 225 Ill. 2d 103, 117 (2007). Despite

this overt acknowledgment, however, the majority strays from this

principle by overlooking the obvious linguistic differences in the

language used to describe the groups covered by the two sections,

thereby concluding that the legislature intended that both sections be

applied only to individuals. Slip op. at 11.

While the majority’s interpretation unduly limits the broad reach

of section 3–103(2) by ignoring the legislature’s language choices, the

proper statutory analysis reads section 3–103(2) and section 3–107(a)

in harmony, without rendering any portion of the statutes inoperative.

See Flynn v. Industrial Comm’n, 211 Ill. 2d 546, 555 (2004). Properly

construed, the two sections address different types of situations that

may arise on administrative review.

After mandating the naming of the administrative agency issuing

the final administrative decision, section 3–107(a) precludes the

dismissal of any administrative review action for want of jurisdiction

-23-

because an individual “employee, agent, or member, who acted in his

or her official capacity” was not named, as long as the administrative

agency, board, committee, or government entity has already been

named. 735 ILCS 5/3–107(a) (West 2004). On the other hand, section

3–103(2) extends a deadline for administrative review complainants,

allowing them to amend their complaints belatedly to name any type

of “employee, agent, or member *** who acted in an official

capacity” relevant to an administrative agency, board, committee, or

government entity that is already a party to the action. 735 ILCS

5/3–103(2) (West 2004). Nothing in the sections states, or even

implies, that the exception in section 3–103(2) cannot be used to cure

the defect addressed in section 3–107(a), namely, the failure to name

all appropriate parties.

The majority claims that this interpretation “overlooks” the

second sentence of section 3–103(2). That sentence allows the

addition of “the administrative agency, board, committee, or

government entity” when “the director or agency head, in his or her

official capacity, is a party to the administrative review.” 735 ILCS

5/3–103(2) (West 2004); slip op. at 12. The majority concludes that

the sentence “plainly describes the only circumstance whereby a

plaintiff may amend” an administrative review complaint to add a

board. (Emphasis added.) Slip op. at 12. That conclusion is flawed

because it does not comport with the plain wording of the second

sentence. That sentence simply provides one path for adding a board,

i.e., when its head has already been named. 735 ILCS 5/3–103(2)

(West 2004). Nothing in the sentence declares, or even suggests, that

this is the sole statutory means of adding a board. The first sentence

in section 3–103(2) presents additional ways the legislature has seen

fit for a plaintiff to add a board, or any other entity, falling within the

strictures in that sentence.

Here, Ultsch does not seek to invoke the second sentence of

section 3–103(2). In fact, that sentence is inapplicable here because

Ultsch did not make the head of the Board a party. Even though it is

not implicated here, however, that sentence continues to govern cases

where a complaint timely names a director or agency head in his or

her official capacity but fails to name the administrative agency,

board, committee, or government entity. The rationale in this dissent

does not render that sentence superfluous. There is no conflict

-24-

between this rationale and the continued application of the second

sentence of section 3–103(2) in appropriate cases.

Yet another flaw exists in the majority’s interpretation of the

second sentence of section 3–103(2). The majority’s conclusion that

the second sentence of section 3–103(2) provides the only way for a

plaintiff to add a board suffers from a fatal error already refuted in

this dissent. The majority’s interpretation erroneously presumes that

a board cannot fulfill multiple roles within the statutory scheme. See

Cuny, 411 Ill. at 616-17 (noting that a Board of Review may be both

an administrative agency and “a division or arm” of another

governmental department). Interestingly, the majority accepts this

very proposition, recognizing that here “the Board of Trustees may be

an arm of IMRF” as well as an administrative agency. Slip op. at 14.

In this case, the Board of Trustees also serves as “an employee, agent,

or member” of IMRF, a government entity, a proposition that remains

uncontradicted by the majority. It is the Board’s role as an agent of

IMRF that brings it within the control of the first sentence of section

3–107(3) and permits Ultsch to amend her complaint to name the

Board as a necessary party.

The majority argues that this interpretation of section 3–103(2)

makes section 3–107(a) “meaningless” because it would preclude the

dismissal for want of jurisdiction of any case where a board could be

later added as a defendant. Slip op. at 12-13. This argument fails for

a number of reasons. First, the sole purpose of the relevant portion of

section 3–103(2), as shown by its plain language, is to allow plaintiffs

to overcome their prior omissions by belatedly adding “an employee,

agent, or member of an administrative agency, board, committee, or

government entity” if they can fulfill all the statutory requirements.

735 ILCS 5/3–103(2) (West 2004). It is not the role of this court to

contravene the clear legislative purpose as expressed by the plain

language of the statute because it believes another result would be

preferable. See slip op. at 10 (“There is no rule of statutory

construction that authorizes a court to declare that the legislature did

not mean what the plain language of the statute says”), citing

Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 320-21

(2003). See also People v. Boclair, 202 Ill. 2d 89, 100 (2002) (noting

that if the legislature’s intent may be determined from the plain

language of the statute, this court cannot read into the statute

exceptions, limitations, or conditions in conflict with that intent).

-25-

Moreover, the majority’s view of the first sentence of section

3–107(a) infers that it is intended to provide defendants with a means

of dismissing plaintiffs’ complaints for want of jurisdiction. Slip op.

at 13 (“Because the plaintiff failed to name the Board of Trustees as

a defendant, her action clearly was subject to dismissal pursuant to

section 3–107(a)”). The actual purpose that portion of section

3–107(a) is simply to specify the parties that must be named as

defendants. Slip op. at 13 (quoting the first sentence of section

3–107(a)). The first sentence merely requires the plaintiff to name as

defendants “all persons, other than the plaintiff, who were parties of

record to the proceedings before the administrative agency,” as well

as the agency. 735 ILCS 5/3–107(a) (West 2004). Nothing in the

section states or implies that the legislature intended to make it

impossible for plaintiffs to overcome their initial failures to name

mandatory parties.

Indeed, the remainder of section 3–107(a) provides plaintiffs with

a variety of ways to avoid dismissal. The plain language of the statute

does not convey the same fatalistic approach taken by the majority,

making dismissals for want of jurisdiction the favored dispositions

when administrative plaintiffs’ original complaints mistakenly fail to

include all necessary parties. Rather, the legislature’s approach, as

expressed in the plain words of section 3–107(a), is to present the rule

specifying the necessary parties and then to provide multiple methods

for plaintiffs not initially meeting that hurdle to overcome it.

The same may be said for the savings provisions in section

3–103(2), at issue in this case. Simply permitting plaintiffs to use the

additional methods enacted by the legislature in section 3–103(2) to

add previously unnamed parties does not mean that those savings

provisions, read in full accord with their plain, uncontradicted,

meaning, render section 3–107(a) superfluous. On the contrary, this

interpretation upholds the clear intent of the legislature, namely, to

provide plaintiffs with the means to name additional parties, and thus

avoid dismissal, despite their initial failures to name all necessary

defendants.

In addition, the majority’s claim that the interpretation of sections

3–103(2) and 3–107(a) presented in this dissent will inevitably render

section 3–107(a) superfluous erroneously presupposes that every

plaintiff can satisfy the requirements of section 3–103(2). See slip op.

at 13 (“Yet, under the dissent’s interpretation of section 3–103(2), a

-26-

complaint that improperly fails to name the Board of Trustees as a

defendant could never be dismissed for lack of jurisdiction, because

the plaintiff could amend the complaint to include the Board of

Trustees as a defendant whenever it saw fit” (emphasis added)). There

is no guarantee, however, that a given plaintiff will successfully

exercise the savings provision of section 3–103(2). To be successful,

a plaintiff must satisfy the statutory requirements that the additional

defendant be “an employee, agent, or member of an administrative

agency, board, committee, or government entity, who acted in an

official capacity as a party of record to the administrative proceeding,

if the administrative agency, board, committee, or government entity

is a party to the administrative review action” (735 ILCS 5/3–103(2)

(West 2004)). The uncertainty of successfully making this showing

demonstrates the patent error of the absolutist approach taken by the

majority. The complaint of any plaintiff who could not make the

showing required in section 3–103(2) would still be subject to

dismissal for want of jurisdiction under section 3–107(a).

Finally, although the majority emphasizes that the statute is

unambiguous, thus requiring us to apply its plain words “without

resorting to other aids for construction” (slip op. at 10, 15) and

without making any “modification” of the “mandatory and specific”

statutory language (slip op. at 6, 15), it ignores these principles not

only by reading the controlling portions of section 3–103(2) out of the

statute but also by relying on an outside construction aid itself. The

majority cites legislative history in an attempt to bolster its flawed

construction of the plain statutory language by quoting from Senator

Hawkinson’s brief summary introduction of the amendments. Slip op.

at 13-14. Not only is this reliance sorely misplaced for the exact

reasons cited by the majority (slip op. at 6, 10, 15), but the cited

quotation does not even purport to outline the amendments in their

entirety.

In relevant part, the cited statements specifically acknowledge

only two aspects of the amendments, one allowing an agency to be

served if its head has already been served and one allowing an agency

employee acting in “his” official capacity to be added if the agency

has already been served. 89th Ill. Gen. Assem., Senate Proceedings,

May 8, 1996, at 12-13 (statements of Senator Hawkinson). The brief

summary comments do not address any of the other conditions

specifically set forth in the sections.

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The best indicator of the true intent of the amendments is derived

from the actual language enacted by the legislature. Unlike the

intentionally limited scope of Senator Hawkinson’s summary

comments, the plain language of sections 3–103(2) and 3–107(a)

expressly governs a far broader set of circumstances. It permits the

addition of any employee, agent or member, who acted in the

specified capacity, of an administrative agency, board, committee, or

government entity that was already a defendant or a party to the

administrative review action. 735 ILCS 5/3–103(2), 3–107(a) (West

2004). This language refutes the majority’s conclusion that the

amendments were only “intended to allow a plaintiff to amend *** by

adding an individual if the individual was an employee of a properly

named agency.” (Emphasis added.) Slip op. at 13. This conclusion

selectively acknowledges only one small portion of the legislation and

fails to implement the statutory language in its entirety, improperly

rendering the remainder mere surplusage. See Fisher v. Waldrop, 221

Ill. 2d 102, 115 (2006). Surely unambiguous statutory language

cannot be ignored merely because a brief oral introduction on the

Senate floor failed to incorporate a detailed description of all aspects

of the legislation. See slip op. at 10, 15 (rejecting the use of outside

aids to interpret an unambiguous statute and advocating the use of

only the plain statutory language).

Accordingly, I would hold that section 3–103(2) applies in this

case. Ultsch had a statutory right to amend her administrative review

complaint to name the Board as an agent of IMRF. This court should

address the constitutionality of section 3–103(2) as originally raised

by the parties to this appeal because Ultsch properly seeks relief

under the challenged statute. For these reasons, I respectfully dissent

from the majority opinion.

JUSTICE KARMEIER joins in this dissent.

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