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Court of Appeals of Illinois, Fifth District

December 3, 2015

LYNNE BEGGS, Plaintiff-Appellee,
THE BOARD OF EDUCATION OF MURPHYSBORO COMMUNITY UNIT SCHOOL DISTRICT NO. 186, Defendant-Appellant. (The Illinois State Board of Education and Jules Crystal, in His Official Capacity as Hearing Officer, Defendants)

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          Appeal from the Circuit Court of Jackson County. No. 13-MR-134. Honorable W. Charles Grace, Judge, presiding.

         For Appellant: Merry C. Rhoades, D. Shane Jones, Kameron W. Murphy, Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C., Edwardsville, IL.

         For Appellee: Ralph H. Loewenstein, Loewenstein & Smith, P.C., Springfield, IL (attorney for Lynne Beggs); Lisa Madigan, Attorney General, Michael A. Scodro, Solicitor General, Paul Racette, Assistant Attorney General, Chicago, IL (attorneys for Jules Crystal and Illinois State Board of Education).

         JUSTICE WELCH delivered the judgment of the court, with opinion. Presiding Justice Schwarm and Justice Stewart concurred in the judgment and opinion.


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          WELCH, JUSTICE.

          [¶1] The plaintiff, Lynne Beggs, a tenured teacher, was dismissed for cause from employment on April 30, 2012, following a resolution by the Board of Education of the Murphysboro Community Unit School District No. 186 (the Board) pursuant to section 24-12 of the Illinois School Code (the Code) (105 ILCS 5/24-12 (West 2012)). After the Board passed its resolution, the plaintiff requested a hearing before a hearing officer. The mutually selected hearing officer listened to four days of testimony and thereafter issued a " Findings of Fact, Analysis and Recommendation" (recommendation) on June 12, 2013, recommending that the Board's decision to dismiss the plaintiff be reversed. On July 30, 2013, the Board entered its decision to dismiss the plaintiff notwithstanding the hearing officer's recommendation,

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and on September 3, 2013, the plaintiff filed a complaint for administrative review in the circuit court of Jackson County pursuant to the Illinois Administrative Review Law (the Act) (735 ILCS 5/3-101 et seq. (West 2012)).

          [¶2] The issue was appealed to the circuit court. On December 11, 2014, the circuit court issued a letter regarding its finding and decision, which concluded with an order reversing the Board's decision to dismiss the plaintiff from her employment and thereafter granted judgment in the plaintiff's favor. The Board filed a notice of appeal. On January 21, 2015, the circuit court entered another order, this one structured as such, again reversing the Board's decision and ordering the plaintiff's reinstatement and back pay of wages and benefits. The Board filed another notice of appeal, and this court subsequently consolidated the two appeals.

          [¶3] We will first address the facts relevant to the procedural issue on appeal, as it concerns the ability of this appellate court to hear the substantive issue before us. On October 8, 2013, the Board filed a motion to dismiss the plaintiff's complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619(a) (West 2012)), on the basis that the plaintiff mailed the summons issued to the Board to an address other than the Board's address and directed the summons to an individual unaffiliated with the Board. The plaintiff's September 3, 2013, affidavit of last known addresses of the defendants, which was attached to the summons, properly identified " Murphysboro Community Unit School District 186" (the District) as a defendant but failed to correctly name the president of the Board or its current address.[1] Nevertheless, the summons with the complaint attached was ultimately routed to and signed as received by a Board employee on September 4, 2013. In its motion, the Board asserted that the plaintiff's failure to serve the Board at its proper address and upon the designated president within 35 days following the Board's decision did not strictly comply with the procedural requirements of the Act; therefore, the complaint must be dismissed with prejudice.

          [¶4] On October 15, 2013, the plaintiff filed a motion for leave to file an amended affidavit of last known addresses and requested an alias summons. The alias summons was issued on October 21, 2013, 50 days after the complaint for administrative review was filed and 49 days after the Board received, despite the error, the original summons with the complaint attached. The Board again moved to dismiss on the same grounds, arguing that the alias summons did not remediate her failure to comply. In a docket entry dated February 3, 2014, the trial court found that the Board's receipt of the original summons was within the requisite time period prescribed by the Act, and the plaintiff also had an alias summons issued with due diligence and served within 50 days. The court denied the Board's motion to dismiss.

          [¶5] The first issue presented for our consideration is whether the circuit court erred by denying the defendant's section 2-619 motion for involuntary dismissal of the plaintiff's complaint; we conduct a de novo review of the decision. Mannheim School District No. 83 v. Teachers' Retirement System of Illinois, 2015 IL App. (4th) 140531, ¶ 11,

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390 Ill.Dec. 954, 29 N.E.3d 1224.

          [¶6] As the Act grants special statutory jurisdiction to circuit courts to review decisions of administrative agencies when such decisions are properly appealed, the Act delimits the court's power to hear the case. ESG Watts, Inc. v. Pollution Control Board, 191 Ill.2d 26, 30, 727 N.E.2d 1022, 245 Ill.Dec. 288 (2000). Thus, a party seeking to invoke special statutory jurisdiction must strictly adhere to the prescribed procedures in the statute. 735 ILCS 5/3-102 (West 2012) (" Unless review is sought of an administrative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision." ); Ultsch v. Illinois Municipal Retirement Fund, 226 Ill.2d 169, 179, 874 N.E.2d 1, 314 Ill.Dec. 91 (2007). One such requirement is that a party must file its complaint and issue 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 2012). Thus, the Board asserts that the plaintiff's failure to strictly comply with this procedure means that her complaint must be dismissed with prejudice.

          [¶7] However, because the 35-day period for issuance of summons is mandatory, not jurisdictional, failure to strictly comply with the provision does not automatically deprive the court of jurisdiction in the instant case. Burns v. Department of Employment Security, 342 Ill.App.3d 780, 786-87, 795 N.E.2d 972, 277 Ill.Dec. 304 (2003). Even if the plaintiff's mistakes in her affidavit resulted in a failure to properly issue summons, thereby failing to strictly comply with the Act's requirement, our courts have recognized a narrow exception to dismissal in cases where the plaintiff has made a good-faith effort to comply. Id. at 787. Good faith is not contingent upon a finding of error by the clerk of the court, but has been interpreted in this context as " an effort by the plaintiff to effect service and a failure to strictly comply with the service requirements because of some factor beyond the plaintiff's control." Id. at 791-92.

          [¶8] We find this case distinguishable from those cited by the defendant, as the plaintiff has not failed to name a necessary party in her complaint or summons (see Mannheim, 2015 IL App. (4th) 140531, 390 Ill.Dec. 954, 29 N.E.3d 1224 (the plaintiff's complaint was properly dismissed where the plaintiff named the " Teachers' Retirement System" as a defendant instead of the board of trustees of the administrative agency)); nor has the plaintiff mistakenly requested service upon an incorrect party (see Gunther v. Illinois Civil Service Comm'n, 344 Ill.App.3d 912, 801 N.E.2d 1072, 280 Ill.Dec. 127 (2003) (the plaintiff's complaint was properly dismissed where the plaintiff requested that the summons be issued to the Attorney General rather than the defendant Illinois Department of Transportation (IDOT), and therefore IDOT was never served)). The Act expressly prohibits the dismissal of this action based on the plaintiff's failure to provide the correct name of the Board's president. See 735 ILCS 5/3-107(a) (West 2012) (prohibiting dismissal for lack of jurisdiction based upon the failure to name a board member, acting in his official capacity, where the board has been named as a defendant as provided in the Act). Thus, in this regard, the plaintiff has strictly complied. The remaining issue, then, is whether the service upon the Board at its former address constitutes proper service or at least

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a good-faith attempt at proper service under the Act.

          [¶9] We find that even if this mistake resulted in noncompliance with the strict measures of the Act (as we note that the relevant statutory requirement regarding an affidavit is to " designate the last known address of each defendant upon whom service shall be made" (735 ILCS 5/3-105 (West 2012)), which has been interpreted as permissible service procedure (see Burns, 342 Ill.App.3d at 788)), we nevertheless find that the plaintiff clearly demonstrated a good-faith effort to comply. The plaintiff immediately moved to amend to have an alias summons issued after the Board filed its motion to dismiss, despite the fact that the Board actually received the original complaint and summons with little to no delay and had, in fact, already entered appearance in the action. While this fact does not excuse improper service, it is a factor that we may consider. Burns, 342 Ill.App.3d at 794-95.

          [¶10] Further, the Board has not shown that it suffered any prejudice as a result of improper service on it. Indeed, as the plaintiff points out, it is apparent by the fact that the Board filed its motion to dismiss prior to the service of the alias summons that it had notice that the complaint had been filed. Frankly, the plaintiff had no reason to discover and correct the defect within the 35-day period because the error had no immediate consequences. We emphasize that the purpose of this 35-day period is to hasten the procedure of administrative review and avoid undue delay, and we " should not find hypertechnical excuses to avoid deciding the merits of disputes, when no delay or harm was caused by the technical violation to any party." (Internal quotation marks omitted.) Burns, 342 Ill.App.3d at 787. We therefore decline to reverse the trial court's ruling on this issue.

          [¶11] The Board next asserts that even if this court has jurisdiction, the plaintiff failed to demonstrate any basis for overturning the decision to dismiss her. The Code grants the Board the power to dismiss tenured teachers for sufficient cause when, in the Board's opinion, the interests of the schools require it. 105 ILCS 5/24-16.5 (West 2012). However, the Code prescribes significant procedural requirements that govern the process of dismissal. 105 ILCS 5/24-12 (West 2012). Following the conclusion of such procedures, the Board's decision to dismiss a tenured teacher is subject to review under the Act. 105 ILCS 5/24-12(d)(9), 24-16 (West 2012). Thus, we turn to the overarching facts relevant to the remaining issue on appeal.

          [¶12] The plaintiff was a tenured teacher in the District, beginning employment as a full-time high school teacher during the 1993-1994 school year. The plaintiff never received an unsatisfactory evaluation or one that rated her as needing improvement; however, after the death of her father in the summer of 2011, the plaintiff's mother's health began to deteriorate. As a result of assisting with her mother's care, the plaintiff was absent from school for a considerable number of days during the 2011-2012 school term. The administration, including the principal, Mr. Turner, the assistant principal, Mr. Keener, and the superintendent, Mr. Grode, was aware of the plaintiff's mother's declining health. After exhausting her accumulated sick leave for this purpose, the record reflects that the District's administration became increasingly frustrated and concerned by the plaintiff's late arrivals and failure to be prepared for her first-hour geometry class. The administration held multiple meetings with the plaintiff regarding

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her behavior, issuing a " letter of concern" on January 30, 3012. After the plaintiff's late arrival on February 10, 2012, the plaintiff was sent home on a suspension with pay and the Board was asked to intervene. The Board thereafter suspended the plaintiff without pay for the time between February 10 and 21, 2012, and adopted a resolution authorizing a notice of remedial warning ...

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