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No. 2--03--1168

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

Plaintiff, the estate of David F. Smida, appeals the trial court's dismissal of its complaintseeking the review of a decision of the Board of Trustees of the Illinois Municipal Retirement Fund(the Board). Plaintiff argues that the court erred by not allowing it leave to amend the complaint and,alternatively, that the court erred by dismissing the complaint. We reverse and remand.

On August 29, 2002, the Board decided the claims of plaintiff and defendant DonnaMarcinski, regarding Smida's retirement fund death benefit. It determined that the death benefitshould be paid to Marcinski.

On September 30, 2002, plaintiff filed a complaint for administrative review againstdefendants, the Illinois Municipal Retirement Fund (IMRF) and Marcinski. The complaint does notreference that IMRF rendered its final administrative decision through the Board.

On November 4, 2002, IMRF and Marcinski filed answers to the complaint. Thereafter, theappellate court released the decision in Wilson v. State Employees' Retirement System, 336 Ill. App.3d 199 (2002). The Wilson court held that, under section 3--107(a) of the Administrative ReviewLaw (Review Law) (735 ILCS 5/3--107(a) (West 2002)), in an action to review an administrativedecision, the administrative agency must be named as a defendant. Wilson, 336 Ill. App. 3d at 203. Thus, where a plaintiff failed to name in a complaint for administrative review the administrativeagency that rendered the final decision, the trial court must dismiss the complaint. Wilson, 336 Ill.App. 3d at 203. On January 22, 2003, Marcinski moved the court for leave to withdraw her answerand file a motion to dismiss. Relying on Wilson, she argued that plaintiff's complaint was fatallydefective because it did not name the Board as a defendant. That same day, plaintiff moved the courtfor leave to file an amended complaint to add the Board as a defendant.

On April 8, 2003, after a hearing, the court denied plaintiff's motion. IMRF also moved towithdraw its answer and file a motion to dismiss. The court granted IMRF's and Marcinski's motionsto withdraw their answers and to file motions to dismiss.

Defendants moved to dismiss the complaint pursuant to section 2--619 of the Code of CivilProcedure (735 ILCS 5/2--619 (West 2002)), arguing that plaintiff failed to comply with section 3--107(a) of the Review Law by not naming a party of record, the Board, as a defendant. The courtgranted the motions, dismissing the complaint with prejudice. Plaintiff appeals.

Initially, plaintiff argues that the trial court erred by concluding that, under section 3--103 ofthe Review Law (735 ILCS 5/3--103 (West 2002)), plaintiff could not file an amended complaint. We review de novo the trial court's interpretation of a statute. Puffer-Hefty School District No. 69v. Du Page Regional Board of School Trustees, 339 Ill. App. 3d 194, 206 (2003).

According to the Review Law, an "action to review a final administrative decision shall becommenced by the filing of a complaint and the issuance of summons within 35 days from the datethat a copy of the decision sought to be reviewed was served upon the party affected by the decision." 735 ILCS 5/3--103 (West 2002). The Review Law further provides that, if a complaint foradministrative review is timely filed, that complaint may be amended "to add an employee, agent, ormember of an administrative agency, board, committee, or government entity, who acted in an officialcapacity 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 2002). Therefore, section 3--103(2) of the Review Law creates a right to amend acomplaint under specific circumstances.

Our inquiry is whether the Board, the party that plaintiff sought to add to the complaint,qualified for amendment under section 3--103(2) of the Review Law. Defendants argue that theBoard is an "administrative agency" and, therefore, plaintiff was properly denied leave to amend itscomplaint, as the statute permits the addition of only "an employee, agent, or member of anadministrative agency, board, committee, or government entity." 735 ILCS 5/3--103(2) (West 2002). According to defendants, because the Board is an administrative agency, it cannot be an employee,agent, or member of an administrative agency. For support, defendants rely on Wilson.

The Wilson court determined that a board that renders the final decision of an administrativeagency satisfies the definition of "administrative agency" in section 3--101 of the Review Law (735ILCS 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. Wilson, 336 Ill. App. 3d at 203. However,the Wilson court did not consider whether, under section 3--103(2) of the Review Law, a plaintiffshould be granted leave to amend the complaint to add the board as a defendant. In fact, the plaintiffin Wilson never sought leave to amend the complaint. As a result, the holding in Wilson is of limitedrelevance to our analysis.

For a party to qualify for amendment under section 3--103(2) of the Review Law, threeconditions must be met. First, an administrative agency, board, committee, or government entitymust be a party to the action. Next, the party sought to be added must be an "employee, agent, ormember of an administrative agency, board, committee, or government entity." 735 ILCS 5/3--103(2) (West 2002). The Review Law does not define these terms. However, section 3--103(2)does explain that an employee, agent, or member of an administrative agency must have "acted in anofficial capacity as a party of record to the administrative proceeding" (735 ILCS 5/3--103(2) (West2002)), the third condition for amendment. Whether this language includes the Board is unclear;thus, the language is ambiguous.

When a statute is ambiguous, we may look beyond the language as written to discern thedrafters' intent and consider the purpose of the statute and the evils that it was designed to remedy. In re B.C., 176 Ill. 2d 536, 542-43 (1997). After carefully reviewing the statutory language, weconclude that the Board qualifies for amendment. In the complaint, plaintiff named a governmententity, IMRF, as a party. Additionally, there is no dispute that the Board was a party of record to theadministrative proceeding. As for the third condition, whether the Board is an employee, agent, ormember of IMRF, we conclude that the Board is a member of IMRF.

Our interpretation of section 3--103(2) of the Review Law is consistent with the legislature'sintent when it enacted the right to amend a complaint under specific circumstances. While analyzingsection 3--103 of the Review Law, the court in Fragakis v. Police and Fire Commission, 303 Ill. App.3d 141, 149 (1999), applied a liberal construction of that section. The Fragakis court stated that,when the legislature amended section 3--103 of the Review Law in 1997, it sought to "bring peaceto the dangerous minefield" created by cases denying a plaintiff leave to amend a timely complaintto name the appropriate party. Fragakis, 303 Ill. App. 3d at 142-43. "[T]he legislature hasrecognized that these [administrative review] cases should not be dismissed for such technicalviolations [in naming the parties]." Fragakis, 303 Ill. App. 3d at 149.

For these reasons, we conclude that the trial court erred when interpreting the statute andshould have granted plaintiff leave to amend the complaint to add the Board.

Next, plaintiff argues that the trial court erred by dismissing the complaint for failing to namea party of record as a defendant, as required by section 3--107(a) of the Review Law (735 ILCS 5/3--107(a) (West 2002)). Section 3--107(a) provides that "in any action to review any final decision ofan administrative agency, the administrative agency and all persons, other than the plaintiff, who wereparties of record to the proceedings before the administrative agency shall be made defendants." 735ILCS 5/3--107(a) (West 2002). Therefore, the trial court dismissed the complaint because theadministrative agency, the Board, was not named as a defendant. As we previously have concludedthat the trial court erred by not allowing plaintiff to amend the complaint to add the Board as adefendant, we need not address this argument.

For the foregoing reasons, the judgment of the circuit court of Du Page County is reversed,and the cause remanded for further proceedings.

Reversed and remanded.

HUTCHINSON and GILLERAN JOHNSON, JJ., concur.

JUSTICE GILLERAN JOHNSON, dissenting upon denial of rehearing:

Although I agree with the public policy set forth by the majority