Rule 23 order filed                     NO. 5-07-0172
July 22, 2009;
Motion to publish granted                  IN THE
December 1, 2009.
                            APPELLATE COURT OF ILLINOIS

                             FIFTH DISTRICT
________________________________________________________________________

ROBIN ROSS,                                 ) Appeal from the
                                            ) Circuit Court of
   Plaintiff-Appellee,                      ) St. Clair County.
                                            )
v.                                          ) No. 06-MR-76
                                            )
ILLINOIS MUNICIPAL RETIREMENT FUND,         )
ILLINOIS MUNICIPAL RETIREMENT FUND          )
BOARD OF TRUSTEES, and THE ST. CLAIR        )
COUNTY HOUSING AUTHORITY,                   ) Honorable
                                            ) Andrew J. Gleeson,
   Defendants-Appellants.                   ) Judge, presiding.
________________________________________________________________________

        JUSTICE CHAPMAN delivered the opinion of the court:

        In July 2003, the Illinois Municipal Retirement Fund Board of Trustees (Board of

Trustees) issued a final administrative decision terminating temporary total disability benefits

to the plaintiff, Robin Ross. She filed an action seeking administrative review of that

decision, naming as defendants the Illinois Municipal Retirement Fund (IMRF) "and its

Board of Trustees." However, she served only one summons, which was addressed to the

IMRF. The defendants filed a motion to dismiss, arguing that the plaintiff had failed to

properly name or serve the Board of Trustees. Eventually, the plaintiff filed a motion for a

voluntary dismissal without prejudice. Nearly one year later, she filed a new complaint for

administrative review, this time serving separate summonses on the IMRF and the Board of

Trustees. The defendants moved to dismiss for a lack of jurisdiction. The circuit court

denied their motion to dismiss, found the Board of Trustees' decision to be against the

manifest weight of the evidence, and reversed the administrative decision. The defendants

appeal, arguing that (1) the court lacked jurisdiction and (2) the administrative decision was

                                               1
supported by the evidence. We reverse.

       The plaintiff, Robin Ross, began working for the St. Clair County Housing Authority

in January 1983. As an employee of a municipal agency, she participated in the IMRF. She

last worked as a public housing manager in May 2001, after which time she stopped working

due to various health problems, including back problems and anxiety. The plaintiff received

total temporary disability benefits from June 15, 2001, to August 31, 2002. In December

2002, the plaintiff appealed the decision to terminate her benefits. On July 24, 2003, the

benefit review committee of the Board of Trustees recommended to the Board of Trustees

that the decision to terminate the plaintiff's benefits should be upheld. The full Board of

Trustees met the following day and adopted this recommendation. In a letter dated July 29,

the Board of Trustees informed the plaintiff of this decision.

       On August 15, 2003, the plaintiff filed a complaint pursuant to the Administrative

Review Law (735 ILCS 5/3-101 et seq. (West 2002)). She named as defendants the "Illinois

Municipal Retirement Fund and its Board of Trustees and the St. Clair County Housing

Authority." She contended that the Board of Trustees' decision was contrary to section 7-147

of the Illinois Pension Code (40 ILCS 5/7-147 (West 2002)) because she was unable to

perform the duties of any position the housing authority might reasonably assign to her. On

August 18, she mailed one summons to the St. Clair County Housing Authority and another

to the IMRF. On August 21, the summons addressed to the IMRF was delivered to the legal

department that serves both the IMRF and the Board of Trustees.

       On September 15, the St. Clair County Housing Authority filed its answer. On

September 22, the IMRF and the Board of Trustees (collectively, defendants) filed a motion

to dismiss pursuant to section 2-619(a) of the Code of Civil Procedure (735 ILCS 5/2-619(a)

(West 2002)). In it, they alleged that the summons was addressed solely to the IMRF but

that the Board of Trustees was the party who had made the decision. They further alleged


                                             2
that the plaintiff "failed to properly name the Board of Trustees" in her complaint. They

argued that the failure to properly name and serve the Board of Trustees is a basis to dismiss

the complaint. As an alternative basis, the defendants asserted that the plaintiff failed to

serve the complaint within 35 days of the final administrative decision, as required by statute

(735 ILCS 5/3-103 (West 2002)).

       Eventually, on March 28, 2005, the plaintiff filed a motion for the voluntary dismissal

of her complaint without prejudice, pursuant to section 2-1009 of the Code of Civil

Procedure (735 ILCS 5/2-1009 (West 2004)). The court granted that motion the following

day and ruled that the defendants' pending motion to dismiss "is hereby held in abeyance and

may be refiled, and ruled upon by the Court, should [the] plaintiff choose to refile her

Complaint for Administrative Review."         The plaintiff contends, and the defendants

acknowledge, that the understanding of both parties at the time was that the plaintiff intended

to refile the complaint so she could properly name and serve the Board of Trustees as a

defendant.

       On March 27, 2006, the plaintiff filed her second complaint for administrative review.

This time, she named as defendants the IMRF, the "[IMRF] Board of Trustees," and the St.

Clair County Housing Authority. On March 28, she mailed three separate summonses, one

to each defendant. The summonses sent to the IMRF and the Board of Trustees were sent

to the same address.

       On April 28, 2006, the IMRF and the Board of Trustees filed a motion to dismiss

pursuant to section 2-619, along with a supporting memorandum. They argued that the

Administrative Review Law does not allow a plaintiff to refile a complaint for administrative

review after a voluntary dismissal. They also alleged that the bases for dismissal set forth

in their motion to dismiss the plaintiff's first complaint remained valid bases to dismiss the

second petition.


                                              3
       On July 18, 2006, the plaintiff filed a response to the defendants' motion to dismiss.

She alleged that she had filed her motion for voluntary dismissal pursuant to an agreement

of the parties. She explained that the understanding of both parties was that she would refile

the action. On July 25, the defendants filed a reply in support of their motion to dismiss.

They argued that it does not matter whether there was an agreement concerning the refiling

of the case, that the Administrative Review Law is a departure from common law, and that

its requirements must therefore be strictly complied with in order to vest the trial court with

jurisdiction.

       On August 2, 2006, the court held a hearing on the matter. The court took the matter

under advisement and ordered each party to prepare a proposed order. On September 6, the

court entered an order denying the defendants' motion to dismiss. The court then reviewed

the administrative record. The parties agreed to allow the court to make its decision based

solely on review of the record itself. On March 2, 2007, the court entered an order finding

that the Board of Trustees' decision was against the manifest weight of the evidence and

reversing the decision accordingly. The defendants then filed this appeal.

       The defendants argue first that the circuit court erred in denying their motion to

dismiss because it lacked subject matter jurisdiction over the plaintiff's complaint. The court

lacked jurisdiction, they argue, because the Administrative Review Law does not permit a

complaint for administrative review to be refiled after it has been dismissed voluntarily. See

735 ILCS 5/3-102 (West 2004). As an alternative to this argument, they contend that the

second petition should have been dismissed for the reasons asserted in their renewed motion

to dismiss. They further contend that the court erred in finding the administrative decision

to be against the manifest weight of the evidence. We conclude that the court lacked

jurisdiction to consider the petition because the Administrative Review Law specifically

provides that a voluntarily dismissed petition may not be refiled. Because we reverse on this


                                              4
basis, we will not address the other issues raised in this appeal.

       The Administrative Review Law provides statutory authority for courts to review the

decisions of administrative agencies.      Unlike most other types of cases, the courts'

jurisdiction to hear administrative review cases flows from the Administrative Review Law,

not the Illinois state constitution. Fredman Brothers Furniture Co. v. Department of

Revenue, 109 Ill. 2d 202, 210, 486 N.E.2d 893, 895 (1985) (relying on Ill. Const. 1970, art.

VI, §9). Thus, its requirements are jurisdictional. Fredman Brothers Furniture Co., 109 Ill.

2d at 210, 486 N.E.2d at 895-96 (explaining that when jurisdiction is conferred by statute,

"that jurisdiction is limited to the language of the act conferring it"). A failure to strictly

adhere to those requirements deprives a court of subject matter jurisdiction over a petition

seeking administrative review. Fredman Brothers Furniture Co., 109 Ill. 2d at 210, 486

N.E.2d at 896.

       The Administrative Review Law provides that a petition for administrative review

must be filed and served on the defendants within 35 days after the final administrative

decision is served on the party seeking review. 735 ILCS 5/3-103 (West 2004). In addition,

it is necessary to name as defendants all the parties of record in the administrative

proceedings. 735 ILCS 5/3-107(a) (W est 2004). It is also necessary to serve each necessary

party with a summons. 735 ILCS 5/3-105 (West 2004). Here, although the Board of

Trustees is "an arm of [the] IMRF," the administrative agency that rendered the decision at

issue was the Board of Trustees, not the IMRF. Ultsch v. Illinois Municipal Retirement

Fund, 226 Ill. 2d 169, 189, 874 N.E.2d 1, 13 (2007). Thus, the Board of Trustees itself had

to be named and served. As previously noted, these statutory requirements are jurisdictional.

       The statutes specifically provide certain exceptions to these requirements in order to

avoid potentially harsh results. For example, section 3-107(a) of the Administrative Review

Law (735 ILCS 5/3-107(a) (West 2004)) provides that a plaintiff's failure to name individual


                                              5
employees of the appropriate agency does not divest a court of jurisdiction over the

complaint. The same statute provides that even a failure to name the appropriate agency will

not deprive a court of jurisdiction as long as the head of the appropriate agency is named as

a defendant in his or her official capacity. 735 ILCS 5/3-107(a) (West 2004). Similarly,

section 3-105 provides that a failure to serve individual employees will not deprive a court

of jurisdiction as long as the appropriate agency is named, and it further provides that the

service of a summons on the head or director of an agency, in his or her official capacity,

will be deemed to be service on the agency itself. 735 ILCS 5/3-105 (West 2004). Under

very narrow circumstances, if the court determines that an agency that has not been named

in the complaint was a party to the administrative proceedings, the court can allow the

plaintiff to amend the complaint to add that agency and grant the plaintiff 21 days' leave to

serve the agency. This is limited to situations in which the final administrative decision does

not name the agency. 735 ILCS 5/3-107(a) (West 2004).

       In Worthen v. Village of Roxana, 253 Ill. App. 3d 378, 623 N.E.2d 1058 (1993), this

court ruled that under a very narrow circumstance, a plaintiff could amend her petition for

review, to comply with the relevant filing requirements, after it had been filed. There, the

plaintiffs had served all the necessary parties but failed to name one necessary party in the

caption of their petition. They promptly sought leave to add the unnamed party. Worthen,

253 Ill. App. 3d at 381, 623 N.E.2d at 1060-61. This court found that "what appears to be

a clerical error in failing to add the [name of the Pollution Control Board, which was a party

to the administrative proceedings,] to the caption of the petition for review" did not deprive

the court of jurisdiction to consider the petition. Worthen, 253 Ill. App. 3d at 382, 623

N.E.2d at 1061. Three facts were relevant to this conclusion: first, the Pollution Control

Board had actual notice because it had been properly served; second, the plaintiffs sought

to correct the error through a timely motion to amend the petition to add the Pollution


                                              6
Control Board to the caption; and third, as stated, the error appeared to be clerical in nature.

Worthen, 253 Ill. App. 3d at 382, 623 N.E.2d at 1061. We emphasized that the failure to

name the agency in the original petition did not deprive the court of jurisdiction based on the

facts presented by that case "and only [those] facts." Worthen, 253 Ill. App. 3d at 382, 623

N.E.2d at 1061.

       None of the statutory exceptions outlined are applicable here. The plaintiff contends

that, under Worthen, the court had jurisdiction to consider her complaint. This argument

assumes that the court's jurisdiction could survive her motion for a voluntary dismissal,

however, and we find that it could not.

       Just as the Administrative Review Law provides procedural requirements necessary

to vest courts of this state with jurisdiction over complaints for administrative review, it also

includes provisions that terminate that jurisdiction.      The Administrative Review Law

provides that, if a party seeks a voluntary dismissal, as the plaintiff did here, the court's

jurisdiction to review the administrative decision terminates and the decision becomes final

and unappealable. 735 ILCS 5/3-102 (West 2004) (providing that all administrative review

proceedings "shall terminate upon the date of the entry of any Order" (emphasis added)

voluntarily dismissing a petition under section 2-1009 of the Code of Civil Procedure (735

ILCS 5/2-1009 (West 2004))). Once the court's jurisdiction is terminated, the administrative

decision is no longer subject to review by any court. 735 ILCS 5/3-102 (W est 2004).

       The plaintiff contends, however, that she dismissed her petition voluntarily pursuant

to an agreement with the defendants. She contends that the understanding of all the parties

was that she would refile her petition and properly serve the Board of Trustees. As a result,

she argues, the defendants "voluntarily waived [their] right to raise [section 3-102 of the

Administrative Review Law] as a defense." This argument fails, however, because of the

jurisdictional nature of the statute. In administrative review, subject matter jurisdiction


                                               7
cannot be waived or "conferred by any form of laches, consent, *** or estoppel." Board of

Education of the City of Chicago v. Box, 191 Ill. App. 3d 31, 35, 547 N.E .2d 627, 630

(1989). Therefore, once the court entered an order dismissing the plaintiff's petition pursuant

to section 2-1009, it lost jurisdiction to review the agency's decision to terminate her

benefits. Because the court no longer had jurisdiction to review the administrative decision,

the court erred in denying the defendants' motion to dismiss the refiled petition.

       For the foregoing reasons, we reverse the order of the circuit court and reinstate the

decision of the Board of Trustees.



       Reversed; administrative decision reinstated.



       STEW ART and SPOMER, JJ., concur.




                                              8
                                         NO. 5-07-0172

                                            IN THE

                               APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      ROBIN ROSS,                                 ) Appeal from the
                                                  ) Circuit Court of
         Plaintiff-Appellee,                      ) St. Clair County.
                                                  )
      v.                                          ) No. 06-MR-76
                                                  )
      ILLINOIS MUNICIPAL RETIREMENT FUND,         )
      ILLINOIS MUNICIPAL RETIREMENT FUND          )
      BOARD OF TRUSTEES, and THE ST. CLAIR        )
      COUNTY HOUSING AUTHORITY,                   ) Honorable
                                                  ) Andrew J. Gleeson,
         Defendants-Appellants.                   ) Judge, presiding.
___________________________________________________________________________________

Rule 23 Order Filed:        July 22, 2009
Motion to Publish Granted:  December 1, 2009
Opinion Filed:              December 1, 2009
___________________________________________________________________________________

Justices:          Honorable Melissa A. Chapman, J.

                 Honorable Bruce D. Stewart, J., and
                 Honorable Stephen L. Spomer, J.,
                 Concur
___________________________________________________________________________________

Attorney         Michael B. W einstein, Illinois Municipal Retirement Fund, 2211 York Road, Suite
for              500, Oak Brook, IL 60523-2337
Appellants
___________________________________________________________________________________

Attorney         Gregory M. Skinner, 4010 North Illinois Street, Swansea, IL 62226
for
Appellee
___________________________________________________________________________________
