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Docket No. 94679-Agenda 11-May 2003.

MICHAEL NUDELL, Appellant, v. THE FOREST PRESERVE DISTRICT OF COOK COUNTY, Appellee.

Opinion filed October 17, 2003.

JUSTICE THOMAS delivered the opinion of the court:

At issue in this case is whether the 35-day period for filing acomplaint under the Administrative Review Law (735 ILCS 5/3-101et seq. (West 1998)) begins to run on the date that the agency decisionis deposited in the United States mail or on the date that the decisionis actually received by the party affected by the decision. The appellatecourt held that the 35-day period begins to run on the date that theagency decision is deposited in the United States mail. 333 Ill. App.3d 518. For the following reasons, we affirm the decision of theappellate court.

BACKGROUND

Plaintiff, Michael Nudell, filed a complaint for administrativereview of a decision of the Civil Service Commission of Cook County(the Commission) terminating his employment as a police officer withdefendant, Forest Preserve District of Cook County (the District).Plaintiff began his employment as a District police officer in October1987. On June 12, 1997, plaintiff was suspended by the District for 29days following an internal investigation and predisciplinary hearingconcerning allegations of sexual harassment and insubordination. TheCommission conducted an evidentiary hearing, found that the chargesagainst plaintiff were sustained, and ordered termination of plaintiff'semployment as a police officer. The Commission deposited a copy ofits decision addressed to plaintiff's attorney in the United States mailon March 25, 1998. Due to the relocation of the attorney's office, thedecision was not received by the attorney until April 6, 1998.

Plaintiff filed his complaint in the circuit court of Cook Countyon May 5, 1998. The District filed a motion to dismiss plaintiff'scomplaint on the ground, inter alia, that the complaint was not timelybecause it was filed more than 35 days from the date that theCommission mailed the decision to plaintiff. The circuit court deniedthe defendant's motion to dismiss. The circuit court then upheld theCommission's finding that plaintiff was insubordinate, but rejected afinding that plaintiff had violated Cook County's policy against sexualharassment. The circuit court found that there was an insufficientrecord to establish a violation of the policy against sexual harassment,and remanded the matter to the Commission for further findings onthat issue.

Upon remand, and following further hearing, the Commissionagain found that the charges against plaintiff were sustained andordered the termination of plaintiff's employment. Plaintiff filed asecond complaint for administrative review in the circuit court onDecember 2, 1999. The circuit court set aside the findings of theCommission. The circuit court held that the charges of sexualharassment were vague and were not directed to specific conduct. Thecircuit court stated that the only charge surviving scrutiny was thecharge of insubordination. The circuit court concluded that dischargewas too harsh a penalty for the offense of insubordination, and heldthat plaintiff's punishment should be no more than the 29-daysuspension that plaintiff already had served.

The Commission appealed the circuit court's ruling. Theappellate court noted that section 3-103 of the Administrative ReviewLaw (735 ILCS 5/3-103 (West 1998)) provides that a complaint forreview of a final administrative decision must be filed within 35 daysfrom the date that a copy of the decision to be reviewed is servedupon the party affected by the decision. 333 Ill. App. 3d at 522. Theappellate court further noted that section 3-103 provides that adecision is served when it is deposited in the United States mail. 735ILCS 5/3-103 (West 1998). In this case, the Commission depositeda copy of its decision in the United States mail on March 25, 1998.333 Ill. App. 3d at 522. The thirty-fifth day from March 25, 1998, wasApril 29, 1998. 333 Ill. App. 3d at 522-23. Plaintiff's initial complaint,however, was not filed until May 5, 1998, and therefore was nottimely. 333 Ill. App. 3d at 522. The appellate court held that thecircuit court should have granted the District's motion to dismissplaintiff's initial complaint for administrative review because thecircuit court lacked jurisdiction over the complaint. 333 Ill. App. 3dat 523. Accordingly, the appellate court vacated the circuit court'sorder. 333 Ill. App. 3d at 523.

This court then granted plaintiff's petition for leave to appeal.177 Ill. 2d R. 315(a).

ANALYSIS

The Administrative Review Law provides that parties to aproceeding before an administrative review agency shall be barredfrom obtaining judicial review of an agency's administrative decisionunless review is sought within the time and manner set forth in thestatute. 735 ILCS 5/3-102 (West 1998). With regard to the time forfiling a complaint for administrative review, section 3-103 provides,in pertinent part:

"Every action to review a final administrative decisionshall be commenced by the filing of a complaint and theissuance of summons within 35 days from the date that acopy of the decision sought to be reviewed was served uponthe party affected by the decision[.]

* * *

The method of service of the decision shall be as providedin the Act governing the procedure before the administrativeagency, but if no method is provided, a decision shall bedeemed to have been served either when personally deliveredor when a copy of the decision is deposited in the UnitedStates mail, in a sealed envelope or package, with postageprepaid, addressed to the party affected by the decision at hisor her last known residence or place of business." 735 ILCS5/3-103 (West 1998).

The parties agree that no method of service is provided in thestatute governing the proceedings before the Commission (see 55ILCS 5/3-14011 through 3-14015 (West 1998)), so that section3-103 applies to determine the date of service of the administrativedecision. The parties disagree, however, concerning whether theportion of section 3-103 providing that "a decision shall be deemedto have been served *** when deposited in the United States mail" infact means that a decision is deemed to have been served whendeposited in the United States mail, or actually means that a decisionis deemed to have been served when received by the party affectedthereby. The parties note that there are conflicting decisions from thiscourt that support either interpretation of section 3-103. Where thiscourt has adopted conflicting interpretations of the same statute, theduty of this court is to clarify and resolve its previous decisions.Williams v. Crickman, 81 Ill. 2d 105, 111 (1980). Because the issuein this case concerns the interpretation of a statute, the issue presentsa question of law and our review is de novo. King v. IndustrialComm'n, 189 Ill. 2d 167, 171 (2000).

In support of its interpretation, the District cites Cox v. Board ofFire & Police Commissioners, 96 Ill. 2d 399 (1983), which theappellate court relied on in finding that plaintiff's initial complaint wasuntimely. In Cox, this court stated that the "statutory provision[section 3-103, formerly Ill. Rev. Stat. 1979, ch. 110, par. 267] isclear and unequivocal. Since the statute which governed theproceeding before the defendant board [citation] provides no methodof service, the decision was served when deposited in the UnitedStates mail." Cox, 96 Ill. 2d at 403.

In response, plaintiff claims that Cox is both an aberration and isdistinguishable. Plaintiff cites Lockett v. Chicago Police Board, 133Ill. 2d 349 (1990), and Carver v. Nall, 186 Ill. 2d 554 (1999), insupport of his claim that his complaint was timely because it was filedwithin 35 days of his receipt of the administrative decision. In Lockett,this court stated: "[a]s noted previously, section 3-103 of the actprovides that an action to review an administrative decision shall becommenced 'by the filing of a complaint and the issuance of summonswithin 35 days' of receipt of the decision being appealed." (Emphasesomitted.) Lockett, 133 Ill. 2d at 354. Subsequently, in Carver, thiscourt quoted the preceding statement from Lockett. See Carver, 186Ill. 2d at 559.

Plaintiff argues that this court should reverse the appellate court'sdecision to follow Cox. Plaintiff claims that the language at issue inCox is obiter dictum, and thus is not binding as authority or precedent.Plaintiff then argues that even if the remark in Cox would beconsidered judicial dictum rather than obiter dictum, the comments inLockett and Carver have the same significance as the comment in Cox.Accordingly, because the comments in Lockett and Carver are thiscourt's most recent pronouncements on the issue, those commentsshould supersede the earlier statement in Cox.

This court has explained the difference between obiter dictumand judicial dictum. We have noted that:

"The term 'dictum' is generally used as an abbreviation ofobiter dictum, which means a remark or opinion uttered bythe way. Such an expression or opinion as a general rule isnot binding as authority or precedent within the stare decisisrule. [Citation.] On the other hand, an expression of opinionupon a point in a case argued by counsel and deliberatelypassed upon by the court, though not essential to thedisposition of the cause, if dictum, is a judicial dictum.[Citations.] And further, a judicial dictum is entitled to muchweight, and should be followed unless found to be erroneous.[Citation.] Even obiter dictum of a court of last resort can betantamount to a decision and therefore binding in the absenceof a contrary decision of that court. [Citation.]" Cates v.Cates, 156 Ill. 2d 76, 80 (1993).

With the foregoing distinctions in mind, we first must examine thestatements in Cox, Lockett and Carver to determine whether thosestatements were dictum, and if so, whether the statements were obiterdictum or judicial dictum.

In Cox, the plaintiff filed an action in the circuit court seekingreview of a decision of the board of fire and police commissioners ofthe City of Danville under the Administrative Review Law. Cox, 96Ill. 2d at 400-01. The circuit court granted defendant's motion todismiss the complaint on the ground that the complaint was not timelyfiled. Cox, 96 Ill. 2d at 401. The circuit court noted that the complainthad been filed within the 35-day period fixed by section 3-103, butnonetheless was not timely because the summons was not issued untilthe thirty-sixth day. Cox, 96 Ill. 2d at 401. The appellate courtaffirmed. Cox, 96 Ill. 2d at 401.

In his appeal to this court, the plaintiff argued that this court firsthad to "decide whether the 35-day period commenced with the dateof mailing of the notice of decision or whether the act of mailingserved merely to create a rebuttable presumption that the notice ofdecision was received." Cox, 96 Ill. 2d at 402. The plaintiff cited thiscourt's decision in Pearce Hospital Foundation v. Illinois Public AidComm'n, 15 Ill. 2d 301 (1958), in support of his claim that the timefor filing a complaint under the Administrative Review Law begins torun upon receipt of the notice of decision. Cox, 96 Ill. 2d at 402. Thiscourt disagreed with plaintiff, noting that the court in Pearce Hospitalwas not presented with the question of whether the section 3-103statutory period began to run from the date of mailing or the date ofreceipt of the notice of decision. Cox, 96 Ill. 2d at 402-03. We thenstated that:

"The statutory provision is clear and unequivocal. Sincethe statute which governed the proceeding before thedefendant board (Ill. Rev. Stat. 1979, ch. 24, par. 10-2.1-17)provides no method of service, the decision was served whendeposited in the United States mail." Cox, 96 Ill. 2d at 403.

This court then agreed with the plaintiff that he should not be deniedhis day in court due to the failure of the clerk's office to issue thesummonses on the day they were delivered, as the issuance ofsummons is mandatory and not jurisdictional. Cox, 96 Ill. 2d at 403-04. We noted that the plaintiff had acted with diligence in presentingthe summonses to the clerk and held that, on the record, plaintiff'saction was timely commenced. Cox, 96 Ill. 2d at 404.

Based upon the foregoing, it is clear that our statement in Coxthat the 35-day period commences when a decision is deposited in theUnited States mail is judicial dictum and not obiter dictum. The issueof whether the 35-day period begins to run upon the date that thedecision was mailed or the date that the decision was received wasargued by counsel and deliberately passed upon by this court. SeeCates, 156 Ill. 2d at 80.

In contrast, we find that the statements at issue in Lockett andCarver were obiter dictum. See Cates, 156 Ill. 2d at 80. At issue inLockett was whether the superintendent of the Chicago policedepartment was a necessary party to the plaintiff's action foradministrative review and, if so, whether the failure to join thesuperintendent as a party and to issue summons could be cured byamendment made after the expiration of the 35-day period. Lockett,133 Ill. 2d at 352. This court determined that the superintendent wasa necessary party and further held that plaintiff's failure to show thathe had made a good-faith effort to issue summons on thesuperintendent within the 35-day statutory period required dismissalof plaintiff's complaint. Lockett, 133 Ill. 2d at 355-56. It was inaddressing whether the circuit court had properly denied plaintiff leaveto amend his complaint to join the superintendent as a defendant thatthis court stated: "section 3-103 of the act provides that an action toreview an administrative decision shall be commenced 'by the filing ofa complaint and the issuance of summons within 35 days' of receiptof the decision being appealed. [Emphases omitted.] (Ill. Rev. Stat.1985, ch. 110, par. 3-103 [now 735 ILCS 5/3-103].)" Lockett, 133Ill. 2d at 354.

As a preliminary matter, we note that this statement may simplyhave been a misstatement concerning the language in section 3-103.In stating that a complaint must be filed within 35 days of receipt ofthe decision being appealed, this court cited section 3-103, whichexpressly provides that service occurs when a decision is deposited inthe United States mail, not when the decision is received by the party.In any event, the statement or misstatement concerning section 3-103did not address a point in the case argued by counsel or deliberatelypassed upon by this court. Accordingly, the statement was at bestobiter dictum, which is not binding as authority or precedent withinthe stare decisis rule. See Cates, 156 Ill. 2d at 80.

Similarly, in Carver, the issue was whether the trial court hadproperly dismissed the plaintiff's complaint for administrative reviewfor failure to have the summons issued timely. Carver, 186 Ill. 2d at556. In addressing whether the plaintiff had shown that she made a"good-faith" effort to comply with section 3-103 and have hersummons issued within 35 days after the defendant mailed its decisionto her, this court quoted the portion of Lockett stating that "section3-103 of the Act requires that an action for administrative review 'becommenced "by the filing of a complaint and the issuance of summonswithin 35 days" of receipt of the decision being appealed.'" Carver,186 Ill. 2d at 559, quoting Lockett, 133 Ill. 2d at 354. This court thennoted that it had distinguished the requirement of a timely filedcomplaint, which is jurisdictional, from the requirement of a timelyissued summons, which is mandatory but not jurisdictional. Carver,186 Ill. 2d at 559. This court concluded that plaintiff had not made a"good-faith" effort to secure issuance of summons in her case and,therefore, affirmed the dismissal of plaintiff's complaint for failure tohave the summons timely issued. Carver, 186 Ill. 2d at 561.

As in Lockett, the statement in Carver concerning section 3-103did not address a point in the case argued by counsel or deliberatelypassed upon by this court. The court in Carver simply quoted Lockettin generally discussing section 3-103. Accordingly, the statement inCarver also was at best obiter dictum. See Cates, 156 Ill. 2d at 80.Obiter dictum of a court of last resort can be tantamount to a decisionand therefore binding only in the absence of a contrary decision of thatcourt. Cates, 156 Ill. 2d at 80. Cox, which directly addressed the issueof when the 35-day period in section 3-103 begins to run, reached aholding which was contrary to the statements in Carver and Lockett.

Based upon the foregoing, we find that Cox rather than Lockettand Carver sets forth the correct statement of law concerning section3-103. In so holding, we note that in support of his claim that Cox isan aberration, plaintiff argues that on at least one other occasion, thiscourt has focused on the receipt of notice when determining whetherservice is effective. See Fredman Brothers Furniture Co. v.Department of Revenue, 109 Ill. 2d 202 (1985). In addition, plaintiffclaims that the appellate court on several occasions has applied thesame interpretation of section 3-103 as the courts in Lockett andCarver. See Keller v. Retirement Board of the Firemen's Annuity &Benefit Fund, 245 Ill. App. 3d 48 (1993); Poturalski v. Police Boardof the City of Chicago, 228 Ill. App. 3d 864 (1992); A-1 SecurityServices, Inc. v. Stackler, 61 Ill. App. 3d 285 (1978).

We are not persuaded that the decisions cited by plaintiff compela different result in this case. In Fredman, the issue was whether the35-day period set forth in section 3-103 ran from the date that theagency decision was issued or the date that the plaintiff's motion forrehearing was denied. Fredman Brothers, 109 Ill. 2d at 206. Thecourt in Fredman never addressed the issue of whether the 35-dayperiod set forth in section 3-103 runs from the date the decision isdeposited in the United States mail or the date the decision is receivedby the party. Similarly, the appellate court in both Keller andPoturalski never addressed the issue of whether a complaint foradministrative review must be filed within 35 days of the mailing of orthe receipt of an agency decision. In addition, although the court in A-1 Security Services did address whether a complaint for administrativereview must be filed within 35 days of receipt of the agency decisionor the mailing of the agency decision, the court in A-1 relied uponPearce Hospital Foundation v. Illinois Public Aid Comm'n, 15 Ill. 2d301 (1958), to find that the date of service of an administrativedecision is the date it is received. A-1 Security Services, 61 Ill. App.3d at 287. In Cox, this court rejected the argument that PearceHospital stands for the proposition that the time for filing a complaintfor administrative review runs from the date notice was received. Cox,96 Ill. 2d at 402. We noted in Cox that the issue in Pearce Hospital"was whether the order of the agency was an administrative decisionfrom which an appeal could be taken" and that the case "did notpresent the question whether the statutory period commenced to runfrom the date of mailing or the date of receipt." Cox, 96 Ill. 2d at 402-03.

In contrast, in those cases where the appellate court did addresswhether a complaint for administrative review must be filed within 35days of the mailing or the receipt of an agency decision, the appellatecourt consistently has held that a complaint for administrative reviewmust be filed within 35 days of the mailing of the decision. SeeLaristos, Inc. v. City of Chicago License Appeal Comm'n, 309 Ill.App. 3d 59, 65 (1999) ("the LAC served its order on [plaintiff] ***when the staff assistant deposited a copy of the order in the mail withthe correct address and postage"); Board of Education of St. CharlesCommunity Unit School District, No. 303 v. Adelman, 137 Ill. App.3d 965, 968 (1985) ("it has been provided by statute and rules ofprocedure that such a decision of this administrative agency will bedeemed served when mailed, and it is clear plaintiff's petition foradministrative review of this decision was thus not timely filed [on thethirty-sixth day after the date of mailing]"); Schlobohm v. PoliceBoard, 122 Ill. App. 3d 541, 544 (1984) ("Since service in this casewas not personally made, under the [Administrative Review] Act itwas served when deposited in the United States mails. *** Thelanguage of section 4 [now section 3-103] makes no exception forcertified or registered mail"); Ellis v. Miller, 119 Ill. App. 3d 579(1983) (affirming circuit court's dismissal of action as untimely whereplaintiff's complaint for administrative review was not filed within 35days of the date of mailing the final administrative decision); Chin v.Department of Public Aid, 78 Ill. App. 3d 1137, 1140 (1979) ("trialcourt did not err in dismissing plaintiff's complaint which was filed 42days after the decision was deposited in the mail"); Thompson v.Illinois Civil Service Comm'n, 63 Ill. App. 3d 153, 156 (1978) ("theexplicit language of section 4 [now section 3-103] states that adecision is deemed to have been served when deposited in the mail").

Plaintiff then claims that Cox can be read to support his position.Plaintiff observes that we stated in Cox that "[a]n established rule ofstatutory construction in this jurisdiction is that courts will 'liberallyconstrue a right to appeal so as to permit a case to be considered onits merits.'" Cox, 96 Ill. 2d at 403, quoting Glasco Electric Co. v.Department of Revenue, 86 Ill. 2d 346, 351-52 (1981).

This statement, however, concerned the issuance of summons,which is mandatory and not jurisdictional. See Cox, 96 Ill. 2d at 403-04. In contrast, the requirement that a complaint for administrativereview be filed within the specified time limit is jurisdictional.Fredman Brothers, 109 Ill. 2d at 210-11. As set forth in article VI,section 9, of the 1970 Constitution, the circuit court enjoys "originaljurisdiction of all justiciable matters" and "such power to reviewadministrative action as provided by law." (Emphasis added.) Ill.Const. 1970, art. VI,