Stone Street Partners, LLC v. The City of Chicago Department of Administrative Hearings ( 2014 )

2014 IL App (1st) 123654
FIRST DIVISION
Opinion filed March 31, 2014
Modified upon denial of rehearing May 12, 2014
No. 1-12-3654
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
STONE STREET PARTNERS, LLC, ) Appeal from the Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. ) No. 12 M1 450026
)
THE CITY OF CHICAGO DEPARTMENT OF )
ADMINISTRATIVE HEARINGS, )
) Honorable Mark Ballard,
Defendant-Appellee. ) Judge Presiding.
JUSTICE DELORT delivered the judgment of the court, with opinion.
Justice Hoffman concurred in the judgment and opinion.
Presiding Justice Connors concurred in part and dissented in part, with opinion.
OPINION
¶1 This case involves a relatively small amount of money, but it provides an opportunity to
explore deficiencies in the manner in which the City of Chicago (City) handles in-house
adjudication of ordinance violations. Nearly 14 years ago, a City administrative hearing officer
fined plaintiff Stone Street Partners, LLC (Stone Street), for building code violations. Stone
Street never paid the fine and the City eventually recorded a lien against the subject property.
Stone Street did not, however, challenge the fine until over 11 years after the City imposed it,
allegedly because it had never been notified of the proceedings in the first place. After an
No. 1-12-3654
unsuccessful attempt to vacate the fine at the administrative level, Stone Street filed a complaint
in the circuit court for administrative review, equitable relief and monetary damages. The circuit
court dismissed plaintiff’s complaint in full. We affirm in part, reverse in part, and remand for
further proceedings.
¶2 BACKGROUND
¶3 In 1999, a City building inspector found several building code violations in one of
plaintiff’s buildings. Rather than mailing a notice of violation and a summons for the
administrative hearing to plaintiff’s registered agent or to its business address, as required by
City ordinance, the City sent the notice to the property itself. Although the Chicago Municipal
Code does provide for notice to be given to a property owner by posting the summons on the
front door of the property, this method is authorized only if notice by mail to the owner’s
registered agent or primary business address fails. See Chicago Municipal Code § 2-14-074(c)
(amended Apr. 29, 1998).
¶4 Despite the faulty notice, a person named Keith Johnson appeared at the hearing on Stone
Street’s behalf. The City has destroyed virtually all of the administrative record, but what
remains indicates that Johnson filed a written appearance for Stone Street and presented some
exhibits to the hearing officer in response to the notice of violation. The evidence was
apparently unpersuasive, as the hearing officer found plaintiff liable for the violations and fined
it $1,050. The final administrative judgment was “registered” with the circuit court in 2004, and
in 2009 the City recorded the court’s judgment with the Cook County recorder of deeds. 1
1
A bit of explanation is required with respect to the various dates and proceedings
involved in this record. The governing statute (65 ILCS 5/1-2.1-8(b) (West 2010)) provides that
a money judgment entered by a municipal hearing officer “may be enforced in the same manner
as a judgment entered by a court of competent jurisdiction.” Monetary court judgments are
valuable because the judgment creditor may issue garnishment process and attach the debtor’s
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¶5 Stone Street contends that it had no idea that the 1999 order existed until sometime in
2011. In September of that year, its attorney served a Freedom of Information Act (5 ILCS
140/1 et seq. (West 2010)) request on the City and received a copy of the 1999 order. In
October, it filed a motion to vacate and set aside the 1999 order with the City’s department of
administrative hearings (DOAH), contending that it had never received notice of the 1999
violations. The motion claimed, among other things, that Keith Johnson had never been
authorized to represent Stone Street in any capacity, much less a legal one. Stone Street’s
attorney provided an affidavit identifying Johnson as a nonattorney and a caretaker for a Stone
Street manager who had been gravely incapacitated in 1998 and who was no longer involved in
the management of the company. The administrative hearing officer, however, found that
DOAH lacked jurisdiction to vacate the order. The governing ordinance only allowed it to
consider vacating default judgments within 21 days of their entry. Additionally, Johnson’s
participation meant that Stone Street was not defaulted, but rather lost on the merits.
¶6 Stone Street then filed a multicount complaint in the circuit court. One count sought
administrative review of the DOAH’s 2011 order. Other counts sought a declaratory judgment,
assets to collect the judgment. 735 ILCS 5/12-701 et seq. (West 2010). When the legislature
elevated municipal administrative judgments to the dignity of court judgments, it neglected to
provide a parallel collection mechanism. Accordingly, municipalities like Chicago have “filed”
their own administrative judgments in circuit court and asked the court to “register” them as
court judgments, making them more easily collectible. That is apparently what the City of
Chicago did in 2004 – five years after the hearing. On May 3, 2012, after more than the requisite
seven years had passed since that “registration,” the circuit court entered a form order in that
case, numbered 04 M1 612624, “reviving” a judgment of $1,050 plus $350 in attorney fees
entered “in this Court” on September 9, 1999. However, that language in the order is wrong.
The 1999 date corresponds to the administrative judgment, not to any judgment of the circuit
court. The order states that Stone Street was given “due notice” of the 2012 revival proceedings
by substitute service.
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quiet title and damages for slander of title. 2 The City filed a motion to dismiss, which the circuit
court granted with prejudice as to all counts. This appeal followed.
¶7 ANALYSIS
¶8 Normally, vacating judgments after the passage of years is virtually impossible due to the
presumptions of validity that apply to the judicial process. However, the City of Chicago made
two critical errors in this case which invalidate the judgment. First, the City served the defendant
corporation not through its registered agent, as required by City ordinances, but at the property
address. Second, the City’s administrative hearing officer allowed a nonattorney to appear and
litigate the case on behalf of the corporation.
¶9 The court below dismissed all of Stone Street’s claims on a motion to dismiss filed
pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West
2010)). A section 2-619 motion to dismiss admits all well-pleaded facts as true, along with all
reasonable inferences that can be gleaned from those facts. Porter v. Decatur Memorial
Hospital, 227 Ill. 2d 343, 352 (2008). When ruling on a section 2-619 motion to dismiss, a court
must interpret all pleadings and supporting documents in the light most favorable to the
nonmoving party. Id. We review section 2-619 dismissals de novo. Id.
¶ 10 Putting the pieces to this puzzle together requires us to review the background of
municipal ordinance adjudications in some depth. Through a series of enactments over the last
20 years or so, our legislature has facilitated the removal of ordinance enforcement hearings
from the judiciary to the local administrative level. See generally Matthew W. Beaudet,
2
On appeal, plaintiff has abandoned another count alleging the unauthorized practice of
law by the City. This count alleged that the City could not initiate ordinance violation
complaints before its own administrative hearing department unless the complaint was signed by
an attorney representing the City. It did not, in any way, address nonattorney Johnson’s
participation at the hearing.
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Adjudication of Ordinance Violations, in Municipal Law § 9.1 (Ill. Inst. for Cont. Legal Educ.
2012). The underlying statute establishing in-house administrative adjudication, and raising their
judgments to the dignity of court judgments, was the result of Public Act 90-516, sponsored by
then-state senator Barack Obama. Pub. Act 90-516 (eff. Jan. 1, 1998). When discussing the
legislation, he declared that its purpose was to “give these administrative adjudication processes
some teeth” and that litigating the cases through regular courts was “overburden[ing]” them.
90th Ill. Gen. Assem., Senate Proceedings Mar. 19, 1997, at 114 (statements of Senator Obama).
The process has been so successful that the City of Chicago has established a large central
hearing facility that rivals Illinois county courthouses in its size and case volume. See City of
Chicago Administrative Hearings, available at http://www.cityofchicago.org/city/en/depts/ah/
supp_info/hearing_location.html (last visited Mar. 5, 2014.)
¶ 11 Despite the fact that circuit court judges do not preside, and the rules of evidence may be
relaxed, defendants in these hearings are still entitled to due process of law. It is well-settled that
“[a] fair hearing before an administrative agency includes the opportunity to be heard, the right
to cross-examine adverse witnesses, and impartiality in ruling upon the evidence.” Abrahamson
v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 95 (1992); see also
Waicekauskas v. Burke, 336 Ill. App. 3d 436, 438 (2002) (invalidating municipal adjudication
process on due process grounds).
¶ 12 Section 2-14-074(c) of the Chicago Municipal Code requires that notices to corporate
defendants for administrative hearings against them must be sent to the address of the
corporation’s registered agent. Chicago Municipal Code § 2-14-074(c) (amended Apr. 29,
1998). There is no dispute that, in this case, the City sent the notice to the property address and
not to the registered agent. Accordingly, the service was not accomplished by any of the various
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manners authorized by the governing ordinance. To pass constitutional muster, notice in
administrative proceedings need only be “reasonably calculated, under all the circumstances, to
apprise [the respondents] of the pendency of the action and afford them an opportunity to present
their objections.” (Internal quotation marks omitted.) Horn v. City of Chicago, 860 F.2d 700,
704 (7th Cir. 1988). However, although administrative proceedings may relax formalities which
apply in courts of record, and notice to a defendant may be accomplished by many different
means, the City has imposed limitations on itself, and it is required to follow its own ordinances.
See 5 Eugene McQuillin, Municipal Corporations § 15.28, at 174-75 (3d rev. ed. 1996). As an
administrative agency created by ordinance, the DOAH may act only in accordance with the
power conferred on it by the City council. See, e.g., Pearce Hospital Foundation v. Illinois
Public Aid Comm’n, 15 Ill. 2d 301, 307 (1958).
¶ 13 Although service of the notice of hearing must be sent to the registered agent, the City
notes that no similar requirement applies to service of the order. Accordingly, the City claims,
its transmission of the 1999 order to Stone Street’s business address was sufficient. However, it
is well established that a “defendant’s actual knowledge that an action is pending or that service
has been attempted is not the equivalent of service of summons and would not relieve the
plaintiff of its burden or vest the court with jurisdiction.” Equity Residential Properties
Management Corp. v. Nasolo, 364 Ill. App. 3d 26, 35 (2006).
¶ 14 We must therefore turn to the question of whether Stone Street waived any objection to
service through Johnson’s participation at the hearing. Johnson was a nonattorney who worked
as a caretaker for a gravely ill corporate officer. He filed a written appearance on behalf of the
corporation. We have little information about what else happened at the hearing other than that
it ended with the imposition of a fine against the corporation. This dearth of information results
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from the City’s own destruction of most of the records from the hearing, a destruction it
undertook even though the fine had not been paid, and the City was pursuing collection of it –
albeit at a glacial pace. Appearance and active participation in a judicial proceeding, of course,
waives any objection regarding improper service. 735 ILCS 5/2-301(a) (West 2010); GMB
Financial Group v. Marzano, 385 Ill. App. 3d 978, 996 (2008). The same principle applies
regarding participation at administrative hearings. Greene v. Board of Election Commissioners,
112 Ill. App. 3d 862 (1983).
¶ 15 Nonattorneys, including paralegals and claims negotiators, provide valuable professional
services to corporations in the same manner as licensed attorneys do. Under the general
principles of agency, a nonattorney can represent the corporation in negotiations with customers,
sign contracts for the corporation, and the like. However, the City’s administrative hearings, like
judicial proceedings, involve the admission of evidence and examination and cross-examination
of sworn witnesses – all of which clearly constitute the practice of law. The City argues strongly
that these hearings are so inconsequential that corporations need not be represented by licensed
attorneys, but to counter that point, we need look no further than Express Valet, Inc. v. City of
Chicago, 373 Ill. App. 3d 838 (2007), where this court upheld the DOAH’s imposition of a fine
of $135,825 for multiple violations of a valet parking ordinance. The City also presents its
administratively-adjudicated traffic citations as an example of cases so simple that anyone can
successfully handle them, but corporations do not drive motor vehicles. Administrative hearings,
whether held by a municipality or state agency, necessarily implicate the full range of the powers
of sovereign governments over individuals and other entities. Their decisions can implicate the
ability to practice a chosen profession or engage in a business, and can result in the imposition of
crushing financial sanctions. This is true regardless of whether the rules of evidence are relaxed.
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Representation of a corporate defendant at these hearings requires expertise only a lawyer is
qualified to provide, such as drafting motions; interpreting laws and ordinances; determining
whether to call certain witnesses; how to examine the witnesses; how to properly secure, object
to, or admit evidence; and to analyze whether a settlement offer is favorable. Additionally, there
is little distinction between the range of remedies available in administrative proceedings and
those available in a court of law, with the exception of imprisonment and equitable relief. In a
court of law, corporations cannot represent themselves through a nonattorney except in the
simplest small claims cases. The similarity between modern administrative proceedings and
traditional judicial ones compels us to reject the City’s contention that the proceedings are so
manifestly different that corporations can appear at them through non-lawyers.
¶ 16 There is no bright-line test to distinguish what is, or is not, the practice of law. “It is
immaterial whether the acts which constitute the practice of law are done in an office, before a
court, or before an administrative body. The character of the act done, and not the place where it
is committed, is the factor which is decisive of whether it constitutes the practice of law.”
People ex rel. Chicago Bar Ass’n v. Goodman, 366 Ill. 346, 357 (1937). A different panel of this
court struggled with the question in Sudzus v. Department of Employment Security, 393 Ill. App.
3d 814, 823 (2009), finding, in a highly fact-based decision, that a lay representative of a
corporation attending an unemployment compensation hearing did not engage in the
unauthorized practice of law because “the character of the actions did not require legal
knowledge or skill; and he supplied simple, fact-based answers.” Similarly, in Grafner v.
Department of Employment Security, 393 Ill. App. 3d 791 (2009), a divided panel of this court
found that the relatively innocuous actions that had already been taken in a particular hearing by
a nonattorney representative of the employer did not rise to the level of the practice of law so as
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to cause the hearing to be a nullity. One justice specially concurred, noting “[t]his is the
unauthorized practice of law.” Id. at 805 (O’Malley, J., specially concurring.) Even so, the
Sudzus and Grafner analyses did not persuade the Board of Governors of the Illinois State Bar
Association (ISBA), which, in May 2010, reviewed the newly adopted Illinois Rules of
Professional Conduct of 2010 and reaffirmed its March 1994 advisory opinion holding that the
pervasive practice of nonattorneys giving legal advice, preparing evidence for presentation and
examining witnesses and otherwise participating at unemployment administrative hearings
constituted the unauthorized practice of law. Ill. State Bar Ass’n Op. No. 93-15 (Mar. 1994).
We find neither Sudzus nor Grafner to be persuasive on the larger issue presented here, but
instead find the ISBA’s position to be well-taken, and so hold that representation of corporations
at administrative hearings – particularly those which involve testimony from sworn witnesses,
interpretation of laws and ordinances, and can result in the imposition of punitive fines – must be
made by a licensed attorney at law.
¶ 17 Our supreme court quite recently reaffirmed a rule dating back to “as early as Lord
Coke’s time” 3 that a corporation must be represented by counsel in legal proceedings. See
Downtown Disposal Services, Inc. v. City of Chicago, 2012 IL 112040, ¶ 17 (citing Nixon,
Ellison & Co. v. Southwestern Insurance Co., 47 Ill. 444, 446 (1868)). The reason for this
requirement, the court stated, was that “[i]t is not every case where the views or interests of a
principal and the corporation mesh. By requiring an attorney to represent a corporation in legal
proceedings, this problem is mitigated. *** Courts in this country, including this court,
unanimously agree that a corporation must be represented by counsel in legal proceedings.”
(Emphases added.) Id. ¶¶ 17, 22. The Downtown Disposal court found that an administrative
3
Referring to English jurist Lord Edward Coke (1552-1634).
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review complaint filed by a nonattorney was not a complete nullity, but could be validated by
having a licensed attorney file an amended complaint, even after the normal administrative
review period had elapsed. The three dissenting justices noted that even creating that narrow
exception violated an “unbroken line of precedent dating back before the Civil War.” Id. ¶ 41
(Karmeier, J., dissenting, joined by Kilbride, C.J., and Thomas, J.) Despite the split on whether
the exception should be created to the nullity rule, all seven justices agreed that nonattorneys
cannot represent corporations in matters requiring the expertise of an attorney. Id. ¶¶ 22, 41.
¶ 18 The City presents several reasons why nonattorneys should be allowed to represent
corporations at administrative hearings; none of them is meritorious. First, it cites a series of
statutes and administrative regulations providing that nonattorneys can represent corporations at
various types of administrative hearings. The City notes that it specifically allows nonattorneys
to represent corporations at its administrative hearings. See City of Chicago Department of
Administrative Hearings R. 5.1, available at https://www.cityofchicago.org/city/en/depts/ah.html
(last visited Mar. 6, 2014) (select “Rules and Ordinances”; then select “Rules and Regulations”;
then select “Chapter 5. Right to Representation”). This grant of authority may be efficacious,
but it clearly usurps the authority of our supreme court to administer the practice of law. “The
General Assembly has no authority to grant a layman the right to practice law.” Goodman, 366
Ill. at 352 (citing In re Day, 181 Ill. 73, 84 (1899)). This problem apparently arises frequently at
Chicago administrative hearings. See Downtown Disposal Services, Inc., 2012 IL 112040, ¶ 8
(quoting trial judge who found that legal instructions given by Chicago administrative hearing
officers to nonattorneys representing corporate defendants that the nonattorney had the “right to
appeal this” were “clearly erroneous” (internal quotation marks omitted)). Since only the Illinois
Supreme Court can regulate the practice of law, the statutes and regulations on which the City
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relies are of highly doubtful validity. See Goodman, 366 Ill. at 349; Downtown Disposal
Services, Inc., 2012 IL 112040, ¶14.
¶ 19 In its petition for rehearing, the City, joined by the Attorney General as amicus curiae,
suggests that our holding regarding nonattorney representation of corporations at administrative
hearings and our questioning of administrative regulations purporting to allow unlicensed
persons to practice law would have deleterious consequences. We disagree. As we have noted,
except in a small claims case, no judge sitting in a circuit court would allow a corporation to
appear as a party through a nonattorney employee or officer. Judges routinely provide
admonitions in such situations and grant continuances to obtain counsel. Administrative
agencies vested with the power of government to punish, fine, and transfer property should, and
must, follow the same principle. If anything, our holding will protect the rights of corporations
which may lose valuable rights or property because they have lost administrative hearings due to
the presence of an unqualified representative working on their behalf. All that being said, we
note that this case hinges largely on the allegation of lack of proper service. When a corporate
administrative defendant has been properly served, and a judgment has been entered against it,
the judgment is properly cognizable as a standard default, regardless of whether the corporation
did not appear at all or appeared through a nonattorney.
¶ 20 Second, the City cites Illinois Supreme Court Rule 282(b) (Ill. S. Ct. R. 282(b) (eff. July
1, 1997)), which allows corporations to defend against small claims cases through a nonattorney
officer or manager. However, it neglects to cite Rule 281, which defines “small claim[s]” only
as including “civil action[s] based on either tort or contract for money not in excess of $10,000,
exclusive of interest and costs, or for the collection of taxes not in excess of that amount.” Ill. S.
Ct. R. 281 (eff. Jan. 1, 2006). Ordinance enforcement and the imposition of fines are not based
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in “tort or contract” and so clearly fall outside this definition. Rule 282(b) does not legitimize
Johnson’s representation of Stone Street at the 1999 hearing.
¶ 21 Johnson’s appearance at the hearing does not change the result. A defendant does not
waive objection to jurisdiction if it participated through someone who was unauthorized to do so
– even if the representative is a licensed attorney at law. When an attorney appears of record for
a party, there is a rebuttable presumption that the party authorized the attorney to do so. Gray v.
First National Bank of Chicago, 388 Ill. 124, 129 (1944). However, “when the facts show a lack
of authorization, express or implied, and there is no proof of ratification, the acts of counsel are a
nullity.” Id. at 129. Where affidavits establish that an attorney was not acting as the party’s
attorney, no general appearance is made. People v. Mickow, 58 Ill. App. 3d 780, 783 (1978).
¶ 22 That brings us to the question of the appropriate remedy and the various counts which
Stone Street presented in its complaint. In count I, Stone Street sought administrative review of
the DOAH’s 2011 order. Neither a court nor a governmental body gains jurisdiction over a non-
served defendant merely by the passage of a long period of time. A judgment entered without
jurisdiction – that is, because of lack of service – is void and can be vacated at any time, either
directly or collaterally. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103 (2002). In
January 2012, Stone Street sought relief by filing a motion before the DOAH which, while not
titled as such, was essentially a motion to quash service and void the 1999 order. However, the
DOAH determined that it had no jurisdiction to consider such a motion because the City
ordinances provided no mechanism for un-served defendants to vacate void orders. Stone Street
disagrees, relying on a City ordinance which states in part:
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“Petition to set aside default order.
(a) An administrative law officer may set aside any order
entered by default and set a new hearing date, upon a petition filed
within 21 days after the issuance of the order of default, if the
administrative law officer determines that the petitioner’s failure to
appear at the hearing was for good cause or, at any time, if the
petitioner establishes that the petitioner was not provided with
proper service of process. If the petition is granted, the
administrative law officer shall proceed with a new hearing on the
underlying matter as soon as practical.” Chicago Municipal Code
§ 2-14-108(a) (added Apr. 29, 1998).
¶ 23 A related code section provides that a “default” as entered only “[i]f at the time set for a
hearing the recipient of a notice of violation or a notice of hearing, or his or her attorney of
record, fails to appear.” Chicago Municipal Code § 2-14-078 (amended Apr. 29, 1998).
¶ 24 The City argues that section 2-14-108(a) only applies to default orders. We give
substantial weight to the agency’s opinion about an ambiguous statute or regulation, and we also
give deference when the agency’s interpretation relates to its own jurisdiction. See Aurora
Manor, Inc. v. Department of Public Health, 2012 IL App (1st) 112775, ¶ 9. Our supreme court
has long held that because “an administrative agency is a creature of statute, any power or
authority claimed by it must find its source within the provisions of the statute by which it is
created.” (Internal quotation marks omitted.) County of Knox ex rel. Masterson v. Highlands,
L.L.C., 188 Ill. 2d 546, 554 (1999).
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¶ 25 We agree with the City’s interpretation of section 2-14-108(a), noting that the title of the
section refers only to default orders, and further finding that the term “default” in the first clause
modifies both the clause regarding good cause and the clause following the “or” dealing with
service of process. Stone Street was not held in default at the 1999 hearing – perhaps it should
have been, on the basis that Johnson’s appearance was a nullity. Nonetheless, the 1999 order
mentions nothing about default, and it was clearly entered after some sort of adjudication on the
merits. Accordingly, the DOAH correctly determined it had no jurisdiction to consider Stone
Street’s motion to vacate, and the circuit court correctly confirmed that administrative decision
on review. We therefore affirm the dismissal of count I of the complaint.
¶ 26 Count II of the complaint is labeled both as a claim to quiet title and for a declaratory
judgment. Specifically, the forms of relief it requests are: (1) a declaration that the City’s lien on
Stone Street’s property is void; (2) a declaration that the 1999 administrative judgment is null
and void; and (3) a judgment against the City for slander of title and attorney fees. The City’s
failure to provide defendants with a procedure to quash service of process and vacate void orders
leaves Stone Street without an in-house remedy. As we explained above, the complaint and
affidavits set forth sufficient facts to support a valid claim based on voidness of the 1999 order.
The City contends here that Stone Street is left without a remedy because it failed to seek
administrative review of the 1999 order. Indeed, it is well settled that “[w]here the statute
creating or conferring power on an administrative agency expressly adopts the Administrative
Review Law, a circuit court has no authority to entertain an independent action.” Metzger v.
DaRosa, 209 Ill. 2d 30, 42 (2004). However, a defendant cannot be expected to timely seek
review of an order of which it was not properly notified.
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¶ 27 In Sarkissian, 201 Ill. 2d at 104-05, our supreme court noted that the Code of Civil
Procedure makes no “provision for the filing of a motion to challenge a judgment on voidness
grounds” and that section 2-1401(f) (735 ILCS 5/2-1401(f) (West 2000)) “expressly abolishes all
other common law means of attacking void judgments.” The court noted that a void order may
be attacked at any time. Id. at 103. It further held that the general requirements for a valid
section 2-1401 petition cannot, and do not, apply to petitions to invalidate service of process. Id.
at 105. In particular, the supreme court held that a petition challenging a void judgment in the
nature of a motion to quash: (1) need not allege either a meritorious defense or due diligence;
and (2) may be brought at any time, not merely within two years of the final order. Id. at 104.
To resolve the legislature’s failure to provide a specific mechanism to vacate void orders more
than two years after their entry, the Sarkissian court created one. It held that while a pleading to
challenge a void judgment based on invalid service must be brought under section 2-1401, it
could be brought more than two years after the judgment was entered, despite the time limitation
established by the legislature. Id.; see also Protein Partners, LLP v. Lincoln Provision, Inc., 407
Ill. App. 3d 709, 715 (2010) (noting that “[o]ur courts have repeatedly held that an untimely
postjudgment motion must be viewed as a section 2-1401 motion by the appellate court because
it is the only vehicle that a party may use once the 30 days have expired”).
¶ 28 Using Sarkissian as our guide, we hold that cases such as Metzger do not bar us from
providing a remedy. Because some sort of equitable relief must be available to remedy the
alleged wrong suffered by Stone Street, the circuit court erred in dismissing count II. However,
the relief available in count II on remand, should Stone Street prove the underlying facts, may
not include damages for slander of title, as that claim is barred for the reasons set forth below.
Additionally, we note that this remedy is only potentially available to Stone Street because of the
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unusual convergence of both of two qualifying factors: (1) the City’s failure to properly serve
defendant in the first instance, a situation normally addressed in courts by a motion to quash; and
(2) the fact that Stone Street did not waive jurisdiction merely because a non-authorized
representative of it appeared at the hearing. Administrative judgments against corporations
which were properly served must still be reviewed under the standards established in the
governing ordinance with respect to motions to vacate default judgments. While we reverse the
dismissal of the main portion of count II, we affirm the dismissal of the third portion of the
prayer for relief of count II.
¶ 29 Our dissenting colleague suggests that the 1999 judgment was somehow subject to
administrative review not merely for the usual 35 days, but for years and years until, at some
point, Stone Street found out about it. Section 3-103 of the Administrative Review Law provides
that a losing party may file for administrative review “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 2010). The “served upon” language seems to recognize there may be a
delay between the conclusion of the hearing and the issuance of the decision. Even so, one can
interpret the 35-day “was served” period as running from the date of mailing or from the date of
receipt. If the period ran from the date of receipt, the dissent would have a valid point.
However, in a case the City cites in its own brief, our supreme court has resolved the statutory
ambiguity, holding that decisions served by mail must be appealed 35 days after the date the
decision is placed in the mail. 735 ILCS 5/3-103 (West 2010); Nudell v. Forest Preserve District
of Cook County, 207 Ill. 2d 409, 424 (2003). Therefore, Stone Street could not have appealed
the 1999 decision in 2009 when it claims to have first found about it. As interpreted by the
Nudell court, the Administrative Review Law cannot toll the 35-day deadline when losing parties
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are unaware of the pending administrative hearing in the first instance, allowing them to file for
review five or ten years after the fact. Had Stone Street filed for administrative review of the
1999 judgment in 2009 or 2011, the City would have undoubtedly claimed it was untimely, and
it would have been correct.
¶ 30 Further, the dissents suggest that a different remedy was created to assist a similarly-
situated administrative defendant by In re Abandonment of Wells, 343 Ill. App. 3d 303 (2003).
In that case, however, the court remanded the case back to the circuit court “to resolve the
factual dispute and to determine whether the Department complied with the notice requirements
and satisfied due process requirements.” Id., 343 Ill. App. 3d at 308 [emphasis added]. In so
doing, the Abandonment of Wells court recognized that expired time limitations caused the
administrative agency to lose jurisdiction, but placed the manner in the hands of the circuit court,
which had plenary equitable jurisdiction to resolve the dispute. In short, that is precisely the
remedy we provide here, albeit under the framework of declaratory relief.
¶ 31 Count III is a claim for slander of title based on the City’s recording of the judgment lien
against Stone Street’s property. In that count, Stone Street claims that the City knew that the
1999 order was void at the time that the City recorded the order in 2009 and knowing it was
void. The City moved to dismiss the both because it was as time-barred and because section 2-
107 of the Local Governmental and Governmental Employees Tort Immunity Act immunizes it
from liability for libel and slander. See 745 ILCS 10/2-107 (West 2010). Stone Street glosses
over the tort immunity defense in its briefs before this court, preferring instead to focus only on
whether the claim pled the elements of a slander-of-title claim and the merits of a statute-of-
limitations argument raised by the City. See 745 ILCS 10/8-101(a) (West 2010) (one-year
statute of limitations applies for tort claims against government entities). We need not reach the
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limitations issue because the immunity provided by section 2-107 is absolute and there are no
exceptions. Plaintiff has not argued otherwise (see Ill. S. Ct. R. 341(h)(7) (eff. Feb 6, 2013)
(claims not raised are forfeited)), and we may affirm on any ground appearing in the record (see
Camper v. Burnside Construction Co., 2013 IL App (1st) 121589, ¶ 29). The circuit court
correctly dismissed this count.
¶ 32 On rehearing, the City has asked us to grant a certificate of importance under Ill. Sup. Ct.
R. 316 (eff. Dec. 6, 2006) to facilitate its appeal of this decision to the Illinois Supreme Court.
This court has consistently determined that it will use this power sparingly and defer to the
Illinois Supreme Court’s determination of which cases it deems worthy of review People v.
Cherry Valley Public Library District, 356 Ill. App. 3d 893, 900 (2005). We decline to do so
here.
¶ 33 To summarize: as to count I, we affirm the circuit court’s affirmance of the DOAH’s
administrative ruling; we reverse the circuit court’s dismissal of count II, less the prayer for
monetary damages, and remand it for further proceedings consistent with this order; and we
affirm the circuit court’s dismissal of count III.
¶ 34 Affirmed in part and reversed in part; cause remanded for further proceedings.
¶ 35 JUSTICE CONNORS, concurring in part and dissenting in part:
¶ 36 Fundamentally, this case is about the procedural methods that are available, and those
that are not, to litigants who claim that an administrative judgment is void. We all agree that the
procedures surrounding the DOAH hearing in 1999 were, if plaintiff’s allegations are true,
woefully inadequate. What the majority and I disagree about is how that proceeding and the
resulting administrative judgment can be reviewed by the courts. I agree with my colleagues that
plaintiff’s quiet-title and slander-of-title claims cannot stand and that DOAH’s 2011
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administrative decision should be confirmed, so I concur in the court’s judgment and opinion on
those points. But I must respectfully dissent from the majority’s conclusion that the declaratory
judgment claim should proceed.
¶ 37 The majority holds that an allegedly void administrative judgment may be challenged at
any time via a declaratory judgment action. In my opinion, however, our constitution, statutes,
and precedent preclude such a claim. This case is, to be blunt, a civil-procedure disaster. But
while the majority opinion amply documents the City’s procedural failures, plaintiff is not
blameless. In my opinion, regardless of the merits of plaintiff’s arguments about the validity of
the 1999 order, plaintiff made several procedural decisions that preclude the courts from granting
any relief in this case.
¶ 38 At the heart of this case is the inescapable fact that the 1999 order is a final
administrative judgment. While the circuit court has general subject-matter jurisdiction over
nearly every kind of claim, the Illinois Constitution of 1970 permits the courts to review
administrative orders only as provided by statute. See Ill. Const. 1970, art. VI sect. 9. As the
supreme court has explained, “[b]ecause review of a final administrative decision may be
obtained only as provided by statute, a court exercises ‘special statutory jurisdiction’ when it
reviews an administrative decision. Special statutory jurisdiction is limited to the language of
the statute conferring it and the court has no powers from any other source. A party seeking to
invoke a court's special statutory jurisdiction must strictly comply with the procedures prescribed
by the statute.” (Emphasis added.) Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d
169, 178 (2007).
¶ 39 As an administrative judgment, review of the 1999 order can only be had pursuant to the
Administrative Review Law, and it is undisputed that plaintiff failed to petition for review within
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35 days after service of the judgment as required by the law. See 735 ILCS 5/3-103 (West
2010). Yet this was not plaintiff’s fatal mistake. As the majority points out, a party can hardly
be expected to seek timely review of an administrative judgment when it does not know the
judgment exists. See supra ¶ 26. The fatal mistake was that plaintiff never sought
administrative review of the judgment even after plaintiff learned of it. To be fair, had plaintiff
done so it is very likely that the City would have moved to dismiss the petition as untimely. Yet
we have previously rejected such a motion where the party seeking administrative review did not
receive notice of the judgment, which is what plaintiff alleges happened here. In the case of In
re Abandonment of Wells Located in Illinois by Leavell, 343 Ill. App. 3d 303 (2003), the plaintiff
petitioned for administrative review after the 35-day deadline but argued that it had not received
notice of the judgment. We reversed the circuit court’s order dismissing the petition on
timeliness grounds and remanded for an evidentiary hearing, holding that if the administrative
agency had in fact failed to properly serve notice of the judgment on the plaintiff, then that alone
would be grounds for vacating the administrative judgment. See id. at 306-09.
¶ 40 Based on Abandonment of Wells, it is debatable whether a motion to dismiss on
timeliness grounds would have succeeded, since that would depend on whether the City could
prove that DOAH had properly served plaintiff with notice of the 1999 order. See 735 ILCS 5/3-
103 (West 2010) (requiring that, in the absence of contrary provisions in an enabling statute, an
administrative decision must be served either by personal delivery or by mail to “the party
affected by the decision at his or her last known residence or place of business.”). But we will
never know whether the City could have done so because plaintiff never bothered to seek
administrative review of the order when it learned of the order’s existence. Instead, plaintiff
filed a futile motion to vacate the 1999 order with DOAH and then, when that failed, attempted
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to bootstrap review of the 1999 order into a misguided petition for administrative review of the
new 2011 order. I agree with my colleagues that new petition was properly dismissed, given the
clear limitations the Chicago Municipal Code places on DOAH’s authority to vacate orders.
¶ 41 Plaintiff also attempted several collateral attacks on the 1999 order via claims for quiet
title, slander of title, and a declaratory judgment. In addition to the problems with the quiet-title
and slander-of-title claims that the majority has already mentioned, the fundamental problem
with these collateral attacks is that they are not viable methods of seeking review of an
administrative judgment. We considered this issue in detail in Stykel v. City of Freeport, 318 Ill.
App. 3d 839 (2001), and we determined that the express terms of the Administrative Review
Law preclude all common-law and equitable collateral challenges to an administrative decision.
See id. 845-47. Although the majority believes that there must be some equitable method of
reviewing the 1999 order (see supra ¶ 28), Stykel rejected that very notion and held that
declaratory judgments are not an available option for obtaining review of an administrative
judgment. See id. at 847; see also id. at 845 (“[W]here the Review Law embraces administrative
agencies subject to its terms, it becomes the sole means of securing judicial review of decisions
of administrative agencies and eliminates the heretofore conflicting and inadequate common-law
and statutory remedies.”); 735 ILCS 5/3-102 (West 2010) (stating that in all administrative
review cases, “any other statutory, equitable or common law mode of review of decisions of
administrative agencies heretofore available shall not hereafter be employed.” (Emphasis
added.)). In fact, not even section 2-1401 petitions (735 ILCS 5/2-1401 (West 2010)), which are
the traditional method of challenging a void or voidable judgment, are an available option in this
context. See Krain v. Illinois Department of Professional Regulation, 295 Ill. App. 3d 577, 580-
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81 (1998); Rodriguez v. DuPage County Sheriff’s Merit Comm’n, 328 Ill. App. 3d 899, 905
(2002).
¶ 42 This rule is known as the doctrine of exhaustion of administrative remedies, under which
“a party may not seek judicial relief from an administrative action unless the party has exhausted
all available administrative remedies.” Arvia v. Madigan, 209 Ill. 2d 520, 531 (2004). The
supreme court explained the purpose and scope of the rule in Arvia:
“Importantly, the exhaustion doctrine extends to
administrative review in the circuit court. [Citation.] That is,
where the Administrative Review Law is applicable and the circuit
court may grant the relief a party seeks within the context of
reviewing the agency’s decision, a circuit court has no authority to
entertain independent causes of action regarding the agency’s
actions. [Citations.] Any other conclusion would enable a party to
litigate separately every alleged error committed by an agency in
the course of the administrative proceedings.” (Internal quotation
marks omitted.) Id. at 532.
¶ 43 There are some exceptions to this doctrine, but they are extremely limited in number and
are strictly construed. See Castaneda v. Illinois Human Rights Commission, 132 Ill. 2d 304, 309
(1989); see also Stykel, , 318 Ill. App. 3d at 848-50 (finding that a civil-rights claim against an
administrative agency is not preempted by the Administrative Review Law). Yet even if an
exception might apply in this case, plaintiff has not raised one nor even acknowledged that the
doctrine exists, so the issue is forfeit. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 1, 2004) (points not
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argued are forfeit); Vine Street Clinic v. HealthLink, Inc., 222 Ill. 2d 276, 300-01 (2006) (issues
not raised in the circuit court are forfeit on appeal).
¶ 44 In my opinion, the law is clear that plaintiff cannot attempt an end run around the
Administrative Review Law by seeking relief from the 1999 order in the form of a declaratory
judgment, much less a claim for quiet title or slander of title. Plaintiff’s only option was a
petition for administrative review of the 1999 order, and plaintiff has not done that. Not even
plaintiff’s petition for administrative review of the 2011 order can save the issue, given that
plaintiff sought only review of DOAH’s 2011 order denying the motion to vacate.
¶ 45 I agree with my colleagues that the City’s actions in this case are troubling and that its
system of adjudicating ordinance violations deserves to be reviewed. But this is not the case to
do so. Plaintiff’s procedural decisions have fatally compromised our ability to review the merits
of its claims, and allowing plaintiff to mount a backdoor challenge to the 1999 order in the guise
of a declaratory judgment is contrary to our precedent and the express terms of the
Administrative Review Law. I would hold that plaintiff’s only option for challenging the 1999
order as void was to file a petition for administrative review of that order. Even given the
timeliness problem in this case, review would still have been possible if the City was unable to
prove that it had properly served plaintiff with notice of the administrative judgment. But
because plaintiff could have but did not seek review of the 1999 order as required by the
Administrative Review Law, the courts have no power to review the merits of plaintiff’s claims
under any other mechanism.
¶ 46 Aside from my disagreement with the majority on the viability of the declaratory-
judgment count, I also cannot join with the majority on three other points. The first point is the
majority’s holding that “representation of corporations at administrative hearings *** must be
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made by a licensed attorney at law.” Supra ¶ 16. The City, joined by the Illinois Attorney
General as amicus curiae, argued in its petition for rehearing in this case that this extremely
broad holding is inconsistent with our precedent and will have a significant impact on all
administrative hearings conducted throughout Illinois.
¶ 47 The majority does not say so explicitly, but it has in effect invalidated not only DOAH
Rule 5.1 but also every other administrative rule that allows for nonattorneys to appear on behalf
of corporations at an administrative hearing. There are several problems with the majority’s
approach to this issue, in my view. The first, and perhaps the most important, is that this issue
was not presented on appeal and in any event is not essential to the ultimate holding in the case.
Plaintiff’s argument on appeal was not that Keith Johnson’s appearance at the 1999 hearing
rendered the proceedings invalid because he was not an attorney, but rather that the proceedings
were invalid because Johnson was not authorized to represent plaintiff at all. In the affidavit of
Brian Farley, which plaintiff filed as part of its motion to vacate the default before DOAH,
Farley attests that Johnson “was not an employee of [plaintiff] and was not authorized to
represent [plaintiff] in this matter.” While plaintiff initially also contended in the circuit court
that the proceedings were invalid because Johnson was not an attorney, plaintiff failed to argue
that issue on appeal. The facial validity of DOAH’s practice of allowing nonattorney
representation at its hearings was therefore neither properly briefed nor argued in this court.
¶ 48 The question of whether Johnson’s status as a nonattorney invalidates the proceedings is
thus a moot point, given not only that plaintiff abandoned that issue on appeal but that we can
resolve the issue of whether the proceedings were invalid without examining the unauthorized
practice of law issue. If the fact that Johnson was not authorized to represent plaintiff in any
capacity renders the proceedings invalid, then it is irrelevant whether his status as a nonattorney
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would do so as well. We have no authority to issue advisory opinions, which are opinions that
“resolve[] a question of law which is not presented by the facts of the case.” People ex rel.
Partee v. Murphy, 133 Ill. 2d 402, 408 (1990); see also Duncan Publishing Co. v. City of
Chicago, 304 Ill. App. 3d 778, 783 (1999) (“Illinois courts are foreclosed from issuing advisory
opinions and can not indulge in rendering opinions simply for the sake of creating precedents to
govern future cases.”). The supreme court has not only cautioned us repeatedly about issuing
advisory opinions on issues not essential to the case, but more importantly has warned us against
invalidating statutes when it is not necessary to do so. See In re E.H., 224 Ill. 2d 172, 178-181
(2006). The admonition applies equally well to invalidating administrative rules, which “have
the force and effect of law and, like statutes, are presumed valid.” People v. Selby, 298 Ill. App.
3d 605, 611 (1998). Yet not only has the majority chosen to invalidate DOAH’s rules allowing
for nonattorney representation when it was not necessary to do so in order to resolve this case, it
has couched its holding in language that appears to invalidate all other similar rules used by other
administrative agencies. I cannot join in such a broad and unnecessary holding, and I express no
view on the merits of the issue because I do not believe it should be reached in this case.
¶ 49 My second point of disagreement is the method that the majority uses to reach its
conclusion that corporations cannot be represented in administrative proceedings by
nonattorneys. The majority has chosen to reject our holdings in Sudzus and Grafner, which
upheld administrative rules that allowed nonattorneys to appear on behalf of parties at
administrative hearings. See supra ¶ 16. I do not express any opinion on whether Sudzus and
Grafner were rightly or wrongly decided or even apply to this case, given that I do not think the
issue should even be reached. But having reached the issue, the majority chooses to reject this
court’s own precedent in favor of an advisory opinion by the ISBA. While there is ample
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No. 1-12-3654
precedent for giving weight to the opinions of an administrative agency on legal questions that
fall within its purview (see, e.g., Provena Convenant Medical Center v. Department of Revenue,
236 Ill. 2d 368, 387 n.9 (2010)), I am aware of no case that affords similar deference to the
advisory opinions of a nongovernmental body such as the ISBA. Indeed, the ISBA, while
venerable, is merely a voluntary professional association that has no authority over the regulation
of the practice of law in this state. I fail to see how an unreviewable advisory opinion of such a
body can have any persuasive effect when this court has issued not one but two opinions on the
same subject.
¶ 50 I also disagree with the majority’s reliance on Downtown Disposal, which the majority
contends stands for the proposition that a nonattorney cannot represent a corporation in legal
proceedings. See supra ¶ 17. Downtown Disposal does not, however, speak to the issue of
nonattorney representation in administrative proceedings, but instead dealt with that issue in the
context of judicial proceedings. In Downtown Disposal, the supreme court determined that the
act of filing a complaint for administrative review in the circuit court constituted the
unauthorized practice of law. See Downtown Disposal Services, 2012 IL 112040, ¶¶ 12-20. The
supreme court did not consider whether a similar action by a nonattorney in administrative
proceedings constituted the unauthorized practice of law, and so the case is inapposite here.
Even so, the supreme court also noted that the effect of the unauthorized practice of law depends
on the facts of each case, holding that there is no per se nullity rule. See id. ¶ 31. Yet the
majority does not take this fact-specific approach here, instead considering the broad legal
question of whether nonattorneys in general should ever be allowed to represent corporations in
administrative hearings. In my view, even if it were necessary to reach the issue of the effect of
nonattorney representation, Downtown Disposal Services requires that our analysis be limited to
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the specific facts of the case itself. Cf. id. ¶¶ 32-35 (examining the circumstances of the case and
finding that the nonattorney representation did not render the complaint a nullity).
¶ 51 My final point of disagreement is about further review of this case. Along with its
petition for rehearing, the City asked us to issue a certificate of importance to the supreme court
under Illinois Supreme Court Rule 316 (Ill. S. Ct. R. 316 (eff. Dec. 6, 2006)). I must respectfully
dissent from the decision to deny the City’s motion. While “the appellate court’s power to
certify a case to the supreme court should be used very sparingly” (John Crane, Inc. v. Admiral
Insurance Co., 2013 IL App (1st) 1093240-B, ¶ 73), I believe that this case is one of those rare
occasions that merit issuance of a certificate. There are no specific criteria for when a certificate
should be issued, but this case warrants the supreme court’s attention for two reasons. First, the
majority holding invalidates not only DOAH’s own rule allowing for nonattorney representation
during administrative hearings but also implicitly invalidates similar rules used by administrative
bodies throughout the state. Indeed, the implications of the majority holding are serious enough
that the Attorney General took the highly unusual step of filing a brief as amicus curiae in
support of the City’s petition for rehearing. Second, the majority opinion affects the definition of
the practice of law in this state, which we all agree is a subject that only the supreme court has
authority over. Taken together, I believe these two points are important enough to warrant
designating this case for the supreme court’s immediate attention by issuing a certificate of
importance. While the supreme court may choose to hear the case anyway through an ordinary
petition for leave to appeal, certification will allow the court to resolve this important issue in the
speediest possible manner. I would therefore grant the City’s request and issue the certificate.
27