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Docket No. 86641-Agenda 19-May 1999.

KATHY CARVER, Appellant, v. ROBERT NALL, Sheriff of Adams County, et al., Appellees.

Opinion filed July 1, 1999.

CHIEF JUSTICE FREEMAN delivered the opinion of the court:

Plaintiff, Kathy Carver, appeals the dismissal by the circuit court of Adams County of her complaint for administrativereview against defendants, Adams County Sheriff Robert Nall and the members of the Adams County sheriff's meritcommission (hereinafter referred to collectively as Commission). See 735 ILCS 5/3-102 (West 1996). The circuit courtdismissed the action because Carver failed to have summons timely issue. See 735 ILCS 5/3-103 (West 1996). Theappellate court affirmed. 299 Ill. App. 3d 810. We allowed Carver's petition for leave to appeal (177 Ill. 2d R. 315(a)), andnow affirm the appellate court.

BACKGROUND

This cause is before us following a motion to dismiss pursuant to section 2-619(a) of the Code of Civil Procedure (735ILCS 5/2-619(a) (West 1996)). The motion admits all well-pled allegations in the complaint and reasonable inferences tobe drawn from the facts. Fireman's Fund Insurance Co. v. SEC Donahue, Inc., 176 Ill. 2d 160, 161 (1997). The appellatecourt detailed the facts of this case. We repeat only those facts that are necessary for our disposition of the issues presentedin this appeal.

Carver was an Adams County deputy sheriff. Following a hearing, the Commission suspended her for 10 days without pay.On October 22, 1997, the Commission mailed its decision to Carver. The decision did not notify Carver of her right underthe Administrative Review Law (Act) (735 ILCS 5/3-101 et seq. (West 1996)) to judicial review of the Commission'sdecision and of the 35-day time limit for exercising that right.

On November 25, 1997, Carver's attorney sent eight copies of the complaint to the clerk of the Adams County circuit court.In a cover letter, the attorney directed the circuit court clerk to return seven file-stamped copies to the attorney's office. Theletter also stated: "It is imperative that this Complaint is filed no later than November 26, 1997" (emphasis in original),which was 35 days after the Commission mailed its decision to Carver. The letter did not request the circuit court clerk toissue summons; Carver's attorney assumed that the clerk would prepare summonses to serve with the complaint.

On December 3, 1997, Carver's attorney learned that the circuit court clerk did not issue the summonses. Carver's attorneyreturned the seven file-stamped copies of the complaint to the circuit court clerk with prepared summonses. In a coverletter, he directed the clerk to forward the complaints and the summonses to the appropriate offices for service.

On the Commission's motion, the circuit court dismissed the complaint because Carver failed to have summons issuewithin 35 days of her being notified of the Commission's decision. The appellate court upheld the dismissal. 299 Ill. App.3d 810. The appellate court rejected Carver's arguments that: (1) she made a good-faith effort to have summons issuewithin the 35-day filing period; and (2) the Commission was required to notify her that she had a statutory right toadministrative review, which she must exercise within 35 days of the Commission's decision. Carver appeals.

DISCUSSION

Section 2-619(a) of the Code of Civil Procedure permits dismissal where, inter alia, "the action was not commenced withinthe time limited by law" (735 ILCS 5/2-619(a)(5) (West 1996)) and where "the claim asserted *** is barred by otheraffirmative matter avoiding the legal effect of or defeating the claim" (735 ILCS 5/2-619(a)(9) (West 1996)). When rulingon a motion to dismiss, the trial court must interpret all pleadings and supporting documents in the light most favorable tothe nonmoving party. The court should grant the motion only if the plaintiff can prove no set of facts that would support acause of action. On appeal, review is de novo. In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997).

This appeal involves the timeliness requirements of the Act. Section 3-102 mandates that "[u]nless review is sought of anadministrative decision within the time and in the manner herein provided, the parties to the proceeding before theadministrative agency shall be barred from obtaining judicial review of such administrative decision." (Emphasis added.)735 ILCS 5/3-102 (West 1996). Section 3-103 of the Act provides:

"Every action to review a final administrative decision shall be commenced by the filing of a complaint and theissuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served uponthe party affected by the decision ***." (Emphasis added.) 735 ILCS 5/3-103 (West 1996).

In an administrative review action, the circuit court clerk "shall issue summons upon request of the plaintiff." See 735 ILCS5/2-201 (West 1996); see also 166 Ill. 2d R. 101. The clerk serves summons via certified or registered mail. The clerkknows the defendant's address because "[t]he plaintiff shall, by affidavit filed with the complaint, designate the last knownaddress of each defendant upon whom service shall be made." 735 ILCS 5/3-105 (West 1996). This court has recognizedthat the Act is a departure from common law. Therefore, a party seeking judicial review of an administrative decision muststrictly adhere to the Act's procedures. Lockett v. Chicago Police Board, 133 Ill. 2d 349, 353 (1990).

In this case, Carver failed to have summons issue within the 35-day filing period. Thus, the appellate court correctlyreasoned that an applicable exception to this timeliness requirement must exist for her to prevail. 299 Ill. App. 3d at 813.Before this court, Carver relies on two exceptions to this timeliness requirement. First, Carver contends that her delay inhaving summons issue within the 35-day filing period should be excused due to her good-faith effort to do so. Second,Carver contends that the filing period was tolled because the Commission's notice to her was statutorily andconstitutionally inadequate.

I. Good-Faith Effort

The good-faith-effort exception to the requirement that summons timely issue is established, but narrow. This court hasemphasized that section 3-103 of the Act requires that an action for administrative review "be commenced 'by the filing ofa complaint and the issuance of summons within 35 days' of receipt of the decision being appealed. (Emphasis added.) (Ill.Rev. Stat. 1985, ch. 110, par. 3-103.)" Lockett, 133 Ill. 2d at 354. This court has distinguished the requirement of a timelyfiled complaint, which is jurisdictional, from the requirement of summons timely issued:

"The 35-day period for the issuance of summons, on the other hand, is mandatory, not jurisdictional, and failure tocomply with that requirement will not deprive the court of jurisdiction. (City National Bank & Trust Co. v. PropertyTax Appeal Board (1983), 97 Ill. 2d 378, 382; Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399,403-04.) However, as the 35-day period is intended to 'hasten the procedure' of administrative review and avoidundue delay, a litigant must show a good-faith effort to file the complaint and secure issuance of summons within the35 days in order to avoid dismissal. (City National Bank & Trust Co., 97 Ill. 2d at 382; Cox, 96 Ill. 2d at 404.) Incases where the 35-day requirement has been relaxed, the plaintiffs had made a good-faith effort to issue summonswithin the statutory period. Nevertheless, due to some circumstance beyond their control, summons was not issuedwithin the statutory period. See City National Bank & Trust Co., 97 Ill. 2d at 382; Cox, 96 Ill. 2d at 404 (cases inwhich the plaintiffs had filed their complaints for administrative review and summons with the clerk of the circuitcourt within the 35-day period but, due to problems at the clerk's office which were beyond the plaintiff's control, thesummonses were not issued until after the 35-day period)." Lockett, 133 Ill. 2d at 355.

Carver argues, as she did in the appellate court, that her attorney's assumption that the circuit court clerk would issuesummons constitutes a "good-faith effort" to comply with the Act. We agree with the appellate court that such anassumption, by itself, does not constitute a "good-faith effort." 299 Ill. App. 3d at 814.

This case does not resemble those cases where plaintiffs made efforts to secure issuance of summons, but, "due to somecircumstance beyond their control, summons was not issued within the statutory period." (Emphasis added.) Lockett, 133Ill. 2d at 355 (and cases cited therein). Rather, this case more closely resembles those cases where plaintiffs did notdiligently seek issuance of summons in accordance with the Act. See, e.g., Johnson v. Department of Public Aid, 251 Ill.App. 3d 604 (1993); Moretti v. Department of Labor, 119 Ill. App. 3d 740 (1983).

This case is distinguishable from Azim v. Department of Central Management Services, 164 Ill. App. 3d 298 (1987), uponwhich Carver relies. In that case, plaintiff's attorney told an employee in the circuit court clerk's office via telephone thatthe complaint needed to be "file-stamped and served" that day. However, the employee did not indicate that the plaintiffneeded to prepare the summonses before they would be issued. The appellate court reversed the dismissal of the action,concluding:

"[T]he record before us supports a finding that the plaintiffs, in good faith, exercised due diligence in seekingissuance of summons in accordance with the mandatory provisions of the statute. The delay in the issuance ofsummonses was caused solely by errors committed by personnel in the clerk's office. *** [W]e find that the errors ofministerial officers whom the plaintiffs cannot control should not serve to deprive them of their right to appeal."Azim, 164 Ill. App. 3d at 303.

In this case, however, Carver did nothing but assume that the clerk's office would issue summons. She did not ask the clerkto issue summons, or even provide the clerk with the addresses of Commission members. Regarding the issuance ofsummons, she made no efforts whatsoever, much less those that could be considered diligent or made in good faith. Weconclude that the "good-faith effort" exception to this timeliness requirement does not apply to this case.

II. Adequacy of Notice

Carver asserts another exception to the timeliness requirements of section 3-103 of the Act. Carver contends that the 35-dayfiling period was tolled because the Commission's notice to her was statutorily and constitutionally inadequate.

A. Statutory Adequacy

Carver contends that the Commission provided her with statutorily inadequate notice of its decision. She points to section10-50(b) of the Illinois Administrative Procedure Act (Procedure Act), which mandates: "All agency orders shall specifywhether they are final and subject to the Administrative Review Law." 5 ILCS 100/10-50(b) (West 1996). TheCommission's decision did not include this information. Thus, according to Carver, the Commission's failure to follow thisprovision tolls the 35-day filing period.

We cannot accept this argument. The Commission was not required to inform Carver that its decision was reviewable underthe Act. The Procedure Act applies to every "agency," as defined therein (5 ILCS 100/1-5 (West 1996)), and defines"agency" as, inter alia, "each administrative unit or corporate outgrowth of the State government that is created by orpursuant to statute, other than units of local government and their officers, school districts, and boards of electioncommissioners ***." (Emphasis added.) 5 ILCS 100/1-20 (West 1996). "Counties" are "[u]nits of local government." Ill.Const. 1970, art. VII,