FILED April 8, 2015 Carla Bender NO. 4-14-0531 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

MANNHEIM SCHOOL DISTRICT NO. 83, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Sangamon County TEACHERS' RETIREMENT SYSTEM OF ) No. 13MR795 ILLINOIS, ) Defendant-Appellee. ) Honorable ) John Madonia, ) Judge Presiding.

JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Harris and Steigmann concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Mannheim School District No. 83 (Mannheim), appeals the circuit

court's order dismissing with prejudice its complaint for administrative review filed against

defendant, Teachers' Retirement System of Illinois (TRS). The court dismissed the complaint

because plaintiff failed to sue and serve the correct defendant in compliance with the applicable

section of the Administrative Review Law (735 ILCS 5/3-107(a) (West 2012)). We affirm.

¶2 I. BACKGROUND

¶3 On September 13, 2013, plaintiff filed a complaint for administrative review,

seeking the circuit court's review of the August 15, 2013, decision of the Board of Trustees of the

Teachers' Retirement Systems (Board). Although the substantive content of the administrative decision is not at issue, suffice it to say the Board found plaintiff was required to contribute to

two of its administrators' retirement pay due to employment contract addendums.

¶4 Plaintiff served defendant by forwarding the complaint and summons via certified

mail to the executive director of the TRS. Defendant filed a motion to dismiss pursuant to

section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)), claiming the

circuit court lacked subject matter jurisdiction because plaintiff (1) was not the proper party to

bring the lawsuit, (2) sued the wrong defendant, and (3) did not issue a summons within 35 days

of the administrative decision as required by section 3-103 of the Administrative Review Law

(735 ILCS 5/3-103 (West 2012)).

¶5 In the motion to dismiss and accompanying memorandum in support, defendant

first claimed the Board is the proper party to be named as defendant, as it was the Board, not the

TRS itself, that made the underlying administrative decision. Second, defendant claimed

plaintiff was "incorrectly named" as well, as the complaint should have been brought by the

Board of Education of Mannheim School District 83, not the district itself. Finally, defendant

claimed plaintiff failed to have the summons issued within 35 days after the administrative

decision was mailed on August 16, 2013. The summons was not issued until September 30,

2013, 45 days after mailing.

¶6 In response to the motion to dismiss, plaintiff claimed the issue of naming the

incorrect parties was addressed in a 2008 amendment to section 3-107 of the Administrative

Review Law (735 ILCS 5/3-107 (West 2012)) in response to the supreme court's decision in

Ultsch v. Illinois Municipal Retirement Fund,

(2007) (administrative review

case dismissed for failure to name the proper defendant). In 2008, Public Act 95-831 (eff. Aug.

14, 2008) was enacted and amended section 3-111(a)(4) of the Administrative Review Law to

-2- authorize the circuit court to correct misnomers or join agencies or parties. 735 ILCS 5/3-

111(a)(4) (West 2012). Plaintiff claimed if the amendment itself did not save the lawsuit from

dismissal, public policy should govern and allow plaintiff the opportunity to amend. Further,

plaintiff argued the delay in issuing the summons did not lie with plaintiff.

¶7 On February 25, 2014, after a hearing on defendant's motion to dismiss, the

circuit court entered a memorandum of opinion, granting defendant's motion with prejudice. The

court found "the amendments made *** do not cover the specific circumstances in this case, and

the language of the amended statute does not qualify the plaintiff to add or join necessary

parties." Noting the precise language of the amendment did not save plaintiff's complaint, the

court stated:

"Specifically, section 3-107(a) still requires the plaintiff to

name, as defendants, either the administrative agency that made

the final decision at issue in the case, or the director or agency

head, in his or her official capacity. If a plaintiff names just the

administrative agency, but fails to name all persons who were

parties of record to the decision, then the amended language of the

statute would allow for the plaintiff to name and serve the

additional necessary parties within a renewed 35 day time limit.

Conversely, if plaintiff names just the director or agency head, in

his or her official capacity, as defendants in a complaint for

administrative review, and fails to name the administrative agency,

board, committee, or government entity, then the plaintiff would

again have the right to name the administrative agency as an

-3- additional defendant and provide for service within the 35 day

limit. This is how the court reads 735 ILCS 5/3-107(a) [(West

2012)].

In the instant case, plaintiff did not name any defendant in

its complaint that would have allowed for naming additional

parties under the strict language of section 3-107(a). In this case,

the plaintiff named the Teachers' Retirement System, Illinois as the

only defendant. The Illinois Teachers' Retirement System is

simply the name of the pension system at issue in the underlying

administrative decision. Clearly, the Illinois Teachers Retirement

System is not the administrative agency responsible for the final

decision, nor does this court consider it to be a board, committee,

or government entity, such that by naming it as a defendant,

plaintiff should be granted 35 additional days to name additional

parties, such as employees, agents, or members, in their official

capacities, and have them properly served. Equally as clearly, the

Illinois Teachers' Retirement System is not a director or agency

head, such that, by naming it as defendant, plaintiff should be

given 35 additional days to name the Board of Trustees of the

Teachers' Retirement System as an additional defendant in this

case. Therefore, based upon the unambiguous language of 735

ILCS 5/3-107 [(West 2012)], and the specific facts of this case as

they relate to the named defendant in plaintiff's complaint for

-4- administrative review, this court lacks jurisdiction to hear the

complaint and respondent's motion to dismiss shall be granted with

prejudice.

This decision necessarily requires the court to reject

plaintiff's additional contention that Illinois public policy indicates

that adding parties in the instant case should be allowed. This

court finds that position to be without sufficient merit to justify

plaintiff's request. The case of Ultsch [] is controlling in this case,

and based upon the previously stated position of the court, the facts

of this case do not trigger the legislature's reaction to the supreme

court's decision in the Ultsch case as seen by the legislature's

amendments to relevant statutes in the Administrative Review Act.

Time limits for bringing these type of actions are set forth in 735

ILCS 5/3-103 [(West 2012)], and such limits would be

circumvented, if not eliminated, by allowing for the adding of

parties and serving of summons outside of the exceptions

addressed earlier in this opinion as contained in the amended

language of 735 ILCS 5/3-107(a) [(West 2012)]." (Emphasis in

original.)

The court found plaintiff's request of the circuit clerk to issue a summons at the time it filed its

complaint was sufficient to constitute a good-faith effort to comply with the statutory

requirements regarding service of summons. The court denied plaintiff's motion to reconsider.

¶8 This appeal followed.

-5- ¶9 II. ANALYSIS

¶ 10 A. Standard of Review

¶ 11 Plaintiff appeals from an order granting defendant's motion for involuntary

dismissal pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West

2012)). This court conducts a de novo review of a section 2-619 dismissal order. Illinois Ass'n

of Realtors v. Stermer,

. Further, resolving this particular issue

requires us to construe a section of the Administrative Review Law, and issues of statutory

construction are likewise reviewed de novo. Bettis v. Marsaglia,

.

"When construing a statute, this court's primary objective is

to ascertain and give effect to the intent of the legislature.

[Citation.] The best indication of legislative intent is the language

used in the statute, which must be given its plain and ordinary

meaning. [Citation.] It is improper for a court to depart from the

plain statutory language by reading into the statute exceptions,

limitations, or conditions that conflict with the clearly expressed

legislative intent. [Citation.] Words and phrases should not be

viewed in isolation, but should be considered in light of other

relevant provisions of the statute. [Citation.] Further, each word,

clause and sentence of a statute must be given a reasonable

construction, if possible, and should not be rendered superfluous.

[Citation.] This court presumes that the legislature did not intend

absurdity, inconvenience, or injustice. [Citation.] Where statutory

language is clear and unambiguous, it will be given effect without

-6- resort to other aids of construction. [Citation.] However, where

the meaning of an enactment is unclear from the statutory language

itself, the court may look beyond the language employed and

consider the purpose behind the law and the evils the law was

designed to remedy. [Citation.]" Bettis,

, ¶ 13.

¶ 12 As mentioned, the statute we must interpret is part of the Administrative Review

Law, which consists of sections 3-101 to 3-113 of the Code of Civil Procedure (735 ILCS 5/3-

101 to 3-113 (West 2012)). Circuit courts may exercise jurisdiction over administrative review

cases only as the statute dictates. Slepicka v. Illinois Department of Public Health,

(if statutory procedures are not followed, the circuit court has no jurisdiction). That

is, a court has subject matter jurisdiction of a case only if it is conferred by the constitution or by

statute. Article VI, section 9, of the 1970 Constitution provides: "Circuit Courts shall have such

power to review administrative action as provided by law." Ill. Const. 1970, art. VI, § 9. Our

supreme court has held that when a court exercises special statutory jurisdiction, as in

administrative review, such jurisdiction is limited to the language of the statute conferring it.

The court has no powers from any other source. Fredman Brothers Furniture Co. v. Department

of Revenue,

(1985). If the statute conferring jurisdiction is not strictly

complied with, no jurisdiction is conferred on the circuit court. Fredman Brothers,

. Further, section 3-102 of the Administrative Review Law specifically provides that, unless

review is sought of an administrative decision within the time and in the manner provided

therein, the parties to the proceeding before the administrative agency shall be barred from

obtaining a judicial review. 735 ILCS 5/3-102 (West 2012).

-7- ¶ 13 B. Administrative Review Law

¶ 14 Plaintiff's argument rests on the interpretation of section 3-107(a) of the

Administrative Review Law, which provides as follows:

"Except as provided in subsection (b) or (c) [(referring to zoning

proceedings)], in any action to review any final decision of an

administrative agency, 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. ***

No action for administrative review shall be dismissed for

lack of jurisdiction 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 for lack of jurisdiction 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.

-8- If, during the course of a review action, the court

determines that an agency or a party of record to the administrative

proceedings was not made a defendant as required by the

preceding paragraph, then the court shall grant the plaintiff 35

days from the date of the determination in which to name and serve

the unnamed agency or party as a defendant. The court shall

permit the newly served defendant to participate in the proceedings

to the extent the interests of justice may require." (Emphases

added.) 735 ILCS 5/3-107(a) (West 2012).

¶ 15 C. Amendment to Statute

¶ 16 In this case, plaintiff named TRS as a defendant but did not name the Board. The

Board is the administrative agency which rendered the decision plaintiff sought to challenge, not

TRS itself. Therefore, plaintiff failed to name the necessary defendant in its review action

¶ 17 Plaintiff acknowledges it named the wrong defendant but insists it should be

allowed to amend the lawsuit to name and serve the Board. Plaintiff relies upon Public Act 95-

831, which amended provisions of the Administrative Review Law and presumably was passed

in response to the supreme court's decision in Ultsch. In Ultsch, a case factually similar to the

case sub judice, the supreme court determined the Administrative Review Law did not allow the

plaintiff to amend its complaint when it had named the Illinois Municipal Retirement Fund

instead of the Board of Trustees. Ultsch,

. The court held 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." Ultsch,

.

-9- ¶ 18 Presumably, in response to Ultsch, the Senate introduced Senate Bill 2111 for the

purpose of amending sections 3-103, 3-105, 3-107, 3-111, and 3-113 of the Administrative

Review Law (735 ILCS 5/3-103, 3-105, 3-107, 3-111, 3-113 (West 2006)). The proposed

amendments, among other changes, (1) defined the circumstances under which a plaintiff may

amend the complaint to include parties not previously named (735 ILCS 5/3-107(a) (West 2006))

and (2) afforded the circuit court the power to correct misnomers and join appropriate parties

(735 ILCS 5/3-111, 3-113 (West 2006)). To support its claim, plaintiff relies on the following

House debates, where the House sponsor states the following:

"Thank you, Mr. Speaker. Senate Bill 2111 deals with

administrative... the review of administrative law decisions and it

makes it easier to correct technical mistakes when naming the

parties in the... in that review... judicial review. And there have

been a lot of cases that have been thrown out simply because

somebody misnamed a defendant. For example, one of the more

recent ones was whether the defendant used the name the Illinois...

I'm sorry, the plaintiff named the Illinois Municipal Retirement

Fund and the case was thrown out because the true party that

should have been named was the Board of Trustees of the Illinois

Municipal Retirement Fund. So we're trying to make it... make it

more fair for people that are involved in these types of

proceedings." 95th Ill. Gen. Assem., House Proceedings, May 20,

2008, at 71-72 (statements of Representative Nekritz).

- 10 - ¶ 19 Plaintiff insists these comments demonstrate the legislature's intent to remedy the

seemingly harsh ramifications of Ultsch. According to plaintiff, it is clear the legislature

intended to "prevent future litigants from losing a review of the merits of an adverse

administrative decision due to a technical pleading deficiency."

¶ 20 Public Act 95-831 amended at section 3-107(a) states as follows:

"If, during the course of a review action, the court

determines that an agency or a party of record to the administrative

proceedings was not made a defendant as required by the

preceding paragraph, and only if that party was not named by the

administrative agency in its final order as a party of record, then

the court shall grant the plaintiff 35 21 days from the date of the

determination in which to name and serve the unnamed agency or

party as a defendant. The court shall permit the newly served

defendant to participate in the proceedings to the extent the

interests of justice may require." Pub. Act 95-831, § 5 (eff. Aug.

14, 2008).

¶ 21 D. Effect of Amendments on Plaintiff's Issue

¶ 22 Plaintiff insists this amended language allows the circuit court to grant the

plaintiff 35 days to name and serve the previously unnamed agency. We disagree with plaintiff's

interpretation of the statute. The strict language of section 3-107(a) does not allow plaintiff to

amend its complaint under the circumstances presented here. As the circuit court noted, the

statute outlines only two specific instances when a plaintiff may be allowed to amend: (1) the

individual employee, agent, or member who acted in his or her official capacity can be added

- 11 - when the plaintiff has named the administrative agency, board, committee, or government entity

"as provided in this section"; or (2) the administrative agency, board, committee, or government

entity can be added when the plaintiff has named the director or agency head, in his or her

official capacity, "as provided in this section." In other words, the circuit court may not dismiss

the action for lack of jurisdiction if plaintiff names either the agency or the individual

representative of the agency.

¶ 23 The "as provided in this section" language refers to the first sentence of section 3-

107(a), which states: "[I]n any action to review any final decision of an administrative agency,

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 2012). The parties of record in the administrative proceedings in this case were

plaintiff and the Board, as represented by the Claims Hearing Committee, consisting of three

individual board members. Plaintiff did not name any of these parties, but instead named TRS,

the agency, as the only defendant. However, the agency was not a party to the administrative

proceedings. It is the Board that makes final administrative decisions subject to judicial review

(40 ILCS 5/16-200 (West 2012)) and is the proper party "[t]o sue and be sued" (40 ILCS 5/16-

171 (West 2012)).

¶ 24 Because TRS was neither a "party of record" nor an "unnamed agency," plaintiff

cannot rely on the amendments provided by Public Act 95-831. This public act did not alter the

paragraph within section 3-107(a) that is ultimately fatal to plaintiff's claim. In other words, the

amendments to the particular sections of the Administrative Review Law did not remedy the

situation presented in Ultsch. And that situation is likewise presented here.

- 12 - ¶ 25 Despite plaintiff's claim to the contrary, the amendments to section 3-111(a)(4) do

not save plaintiff either. Public Act 95-831 changed this section as follows: "(a) The Circuit

Court has power: *** (4) to dismiss parties, to correct misnomers, or to realign parties, or to join

agencies or parties plaintiffs and defendants[.]" Pub. Act 95-831, § 5 (eff. Aug. 14, 2008). This

section cannot be read in isolation. Rather, it must be read in conjunction with the provisions of

section 3-107(a) that allow the addition of parties when either of those two specific conditions is

met. See 735 ILCS 5/3-107(a) (West 2012) (the action will not be dismissed for failure to name

individuals if the agency or board was named, or dismissed for failure to name the agency or

board if the individuals were named). "[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." Ultsch,

. The court does not have

unbridled discretion to correct misnomers or join agencies or parties as plaintiff would have us

believe. The court's discretion must be confined by the parameters of the appropriate parties as

specified in section 3-107(a).

¶ 26 E. Summary

¶ 27 Judicial review of a final administrative decision is confined to the Administrative

Review Law and the specific procedures prescribed within. "A party seeking to invoke a court's

special statutory jurisdiction [of administrative review] must strictly comply with the procedures

prescribed by the statute." Ultsch,

. The supreme court found the "joinder

provisions" of section 3-107(a) of the Administrative Review Law must be specifically and

strictly followed, and noncompliance requires dismissal. Ultsch,

. The issue

presented in Ultsch remains, even after the legislature amended the statute in 2008. That is, the

Administrative Review Law still does not allow a complaint to be amended after the initial 35-

- 13 - day period to add the board that rendered the final decision as a party defendant when the

agency, which was not a party to the administrative proceedings below, was named as a party in

the initial complaint.

¶ 28 TRS was not the agency that rendered the final decision in this case. The Board

rendered the final decision and is the entity, according to its enabling legislation, that is intended

"to sue and be sued," not TRS. The various sections of the Administrative Review Law do not

contemplate allowing an amendment to the complaint after the initial 35-day period to include

the agency that rendered the final decision as a defendant when an individual member of that

agency was not named. See Jones v. Cahokia Unit School District No. 187,

(2006). In fact, it is imperative that the administrative agency which rendered the final

administrative decision be named as a defendant, as it is that agency which must file an answer

consisting of a record of the proceedings before it. See 735 ILCS 5/3-106 (West 2012). As the

supreme court concluded in Ultsch, the Board is the "administrative agency" as that term is

defined by the Administrative Review Law. Ultsch,

; see also 735 ILCS 5/3-

101 (West 2012) (" 'Administrative agency' means a person, body of persons, group, officer,

board, bureau, commission or department (other than a court or judge) of the State, or of any

political subdivision of the State or municipal corporation in the State, having power under law

to make administrative decisions."). It is the Board that must be named as a defendant in

plaintiff's administrative review complaint. Plaintiff failed to name the Board as a defendant

and, therefore, the circuit court properly dismissed the complaint with prejudice.

¶ 29 III. CONCLUSION

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

¶ 31 Affirmed.

- 14 -