A checklist for judicial review of an administrative agency decision

By J.A. Sebastian, Carl R. Draper, & Jewel N. Klein

In the May 2010 Illinois Bar Journal, Judge Ron Spears suggested that it would seem a worthwhile project for legal associations to allocate space on their Web sites for checklists by practice areas. 98 IBJ 268-269 (2010). In response to “The Judge’s Corner” the following checklist may assist if seeking to review an Illinois administrative agency decision.

The governing statute for judicial review of an administrative agency decision is the Illinois Administrative Review Law (“ARL”). 735 ILCS 5/3-101 through 3/113 (West 2008). Begin by reading this statute and review the statute of the agency, whether Illinois Department of Revenue (IDOR) or Illinois Department of Employment Security (IDES) or Illinois Department of Children and Family Services (DCFS), Illinois Labor Relations Board, State or Local Panel (ILLRB or ISLRB), or whatever agency issued a final agency decision.

1. What is reviewed?

Section 3-101 of the ARL defines “administrative decision” as a determination by an agency which affects the rights and duties of the parties and terminates the proceedings. Thus, the action must be final. The rules and statutes governing practice before the specific agency should be carefully reviewed to determine if additional steps are necessary to exhaust administrative remedies before court review is allowed.

2. When is the complaint/petition filed?

Section 3-102 of the ARL provided that if a complaint is not filed within the time and in the manner provided in the ARL, no jurisdiction is conferred and judicial review is barred.

3. What does “in the manner” provided mean under the ARL?

Section 3-103 provides: “Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days….”

4. How do you calculate 35 days?

Weekends and holidays are excluded from a deadline computation only if they fall on the last day of the filing time period; thus, intervening weekends are counted in calculating the 35 day deadline within which a plaintiff must file his complaint under 735 ILCS 5/3-103. Carroll v. Dep’t of Empl. Sec., 389 Ill. App. 3d 404, 409 (1st Dist. 2009).

In computing the 35-day period, the first day is excluded and the last day included. Cox v. Board of Fire & Police Comm’rs, 96 Ill. 2d 399 (1983).

The statute and rules governing the agency’s practice should be reviewed to see when the 35-day period commences. They may specify that notices are effective when mailed, not when received.

5. Who must be named and served?

All parties of record to the proceeding, thus name the director of the agency, and the administrative agency, the board, committee, or other government entity, and name all other parties who participated in the administrative agency action, including, for example, if the proceeding had been held before the Cook County Sheriff’s Merit Board based on a complaint for hearing brought by the Sheriff of Cook County, name the Sheriff of Cook County in the complaint for judicial review because the Sheriff had been a party to the administrative Cook County Sheriff’s Merit Board proceeding; or name the Illinois Labor Relations Board, Local Panel, if the proceeding was held before the Illinois Labor Relations Board, Local Panel. Failure to name the “Local Panel” may result in dismissal of the review action. Similarly, where a former teacher, in the appeal of his termination, failed to name as a defendant the Illinois State Board of Education, which was charged with providing a termination hearing pursuant to 105 ILCS 5/2-3.8, and the hearing officer as parties of record under the Illinois School Code, may result in dismissal of the review action. See Jones v. Cahokia Unit Sch. Dist. No. 187, 363 Ill. App. 3d 939, 845 N.E.2d 866, (5th Dist. 2006).

The clerk of the circuit court will serve summons on all parties that plaintiff has identified, so be sure to include the names and addresses of each and every party to assure that the summons is served within the 35-day statutory time period. Note Supreme Court Rule 12, which specifies when service is effective by mail (12(d): 4 days); by commercial carrier (12(e): on 3d business day); and by fax (12(f): on next court day).

6. The complaint must request that the transcript of evidence shall be filed by the agency; the complaint must contain a statement of the decision or part of the decision sought to be reviewed, so many plaintiffs include the final agency decision as an exhibit to the complaint for judicial review.

THEREFORE, read the Administrative Review Law, and read the governing law of the administrative agency to determine where you file your complaint/petition for review. This could be direct appeal in the appellate court or complaint for review in the circuit court. Your petition should:

• Allege plaintiff was a party of record to the administrative proceeding;

• Request transcript of evidence be filed;

• Contain a statement that the decision of the agency be reviewed;

• File complaint within 35 days from the date that a copy of the decision was served upon plaintiff;

• Name, as a defendant, each and every party to the administrative proceeding;

• Serve summons upon all parties of record to the administrative proceeding;

Key components of the ARL are briefly summarized in the tables above and at the end of this article.

Note that the Circuit Court of Cook County has several official forms for use in different types of administrative review actions. Practitioners are cautioned that the forms are only a starting point. As noted above, there are agency-specific and ARL elements that need to be considered in all administrative appeals. The Cook County forms are:

Form No.	Divison	Description	Revision
CCG 0124	GENERAL	SUMMONS IN ADMINISTRATIVE REVIEW (VILLAGE OR TOWNSHIP)	5/4/2001
CCG 0125	GENERAL	PRO-SE COMPLAINT FOR IL ADMINISTRATIVE REVIEW	4/11/2006
CCG 0600	GENERAL	SUMMONS IN ADMINISTRATIVE REVIEW	8/23/2001
CCL 0040	LAW	SUMMONS IN ADMINISTRATIVE REVIEW	2/7/2001
CCL 0092	LAW	SUMMONS IN ADMINISTRATIVE REVIEW (DEPARTMENT OF EMPLOYMENT SECURITY)	3/29/2007
CCL 0093	LAW	PRO SE COMPLAINT FOR ADMINISTRATIVE REVIEW (DEPARTMENT OF EMPLOYMENT SECURITY)	9/6/2000
CCM 0002	CIVIL	ADMINISTRATIVE REVIEW PARKING VIOLATION - VEHICLE IMPOUNDMENT HEARING INFORMATION SHEET	4/27/2010
CCM 0005	CIVIL	PRO SE COMPLAINT FOR ILLINOIS ADMINISTRATIVE REVIEW	7/16/2001
CCM 0140	CIVIL	COMPLAINT FOR ILLINOIS ADMINISTRATIVE REVIEW	1/15/2009
CCM 0141	CIVIL	SUMMONS IN ADMINISTRATIVE REVIEW	4/7/2009
CCM 0142	CIVIL	ADMINISTRATIVE REVIEW COVER SHEET	4/7/2009

Additional Resource: The ISBA publishes a Handbook of Illinois Administrative Law, now in its Second Edition. Author Julie Ann Sebastian’s chapter on Administrative Review, Carl Draper’s chapter on Certiorari, and William A. Price’s chapter on Attorney Fees are all worth reviewing before preparing the paperwork for administrative review. ■

Section 3-108(a): Plaintiff’s Complaint

The complaint must allege that plaintiff was a party of record to administrative proceedings and that rights, privileges, or duties were adversely affected by the agency’s decision. Novosad v. Mitchell, 251 Ill. App. 3d 166 (4th Dist. 1993).

• The complaint must request that the transcript of evidence shall be filed by the agency as part of the record.

• The complaint must also contain a statement of the decision or part of the decision sought to be reviewed.

• The plaintiff has the burden of proving that the agency was wrong, and a court may not substitute its judgment for that of the agency. Water Pipe Extension v. City of Chicago, 195 Ill. App. 3d 50 (1st Dist. 1990).

Section 3-108(b): Defendant’s Answer

“The agency must file the original or a certified copy of the entire record of proceedings under review, including such evidence as may have been heard and the findings and decisions made.”

• This means that the agency does not have to frame the issues by filing an answer as provided for in other civil proceedings. Kaminski v. Illinois Liquor Control Comm’n, 20 Ill. App. 3d 416 (1st Dist. 1974).

• If the agency has not reached a final decision, motion to dismiss for failure to exhaust administrative remedies.

Section 3-103: Commencement of Action

• Every action to review shall be commenced by filing a complaint and issuance of summons within 35 days from the date that a copy of the decision was served upon the party affected by the decision

• Except….

• If case is filed outside 35-day-limit, file motion to dismiss under Section 2-619(a)(1) 735 ILCS 5/2-619(a)(5)

• If venue is prescribed by the agency’s statute, file motion to transfer venue under Sec. 3-104 (735 ILCS 5/3-104)

• If review is not applicable under ARL, file motion to dismiss under Section 2-615 735 ILCS 5/2-615

• If review should have been filed directly in the appellate court, file motion to dismiss. There is no mechanism for transfer of an action wrongly filed in the circuit court. County of Coles v. Property Tax Appeal Bd., 275 Ill. App. 3d 945 (4th Dist. 1995)

Improper service may be basis for motion to dismiss

Improper parties may be motion to dismiss, but see P.A. 95-831, eff. 8/14/08.

Section 3-105: Service of summons

• The method of service shall be as provided in the Act governing the procedure before the administrative agency, but if no method is provided, summons shall be deemed to have been served either when a copy of the summons is personally delivered or when a copy of the decision is deposited in the U.S. mail… postage prepaid, addressed to the party affected by the decision at his or her last known residence or place of business.

(P.A. 95-831, eff. 8/14/08)

• Service on the agency shall be made by the clerk of the court by sending a copy of the summons addressed to the agency at its main office in the State.

• Service on the director or agency head, in his or her official capacity, shall be deemed service on the administrative agency, board, committee, or government entity.

Section 3-106: Appearance of defendants

• The agency shall appear by filing an answer consisting of a record, or a written motion in the cause or a written appearance.

• All other defendants desiring to appear shall appear by filing a written appearance.

Section 3-107: Defendants

SB 2111, P.A. 95-831, effective August 14, 2008. See Senate Transcript, 95th General Assembly 4/16/2008.

Section 3-110: Scope of review

“The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.”

It is not a court’s function on administrative review to reweigh evidence or to make an independent determination of the facts. Cook County Republican Party v. Illinois State Board of Elections, 232 Ill. 2d 231, 244 (2009).

Questions of law are reviewed de novo, while mixed questions of law and fact are reviewed under the clearly erroneous standard. Outcom, Inc. v. Illinois Department of Transportation, 233 Ill. 2d 324 (2009); Cinkus v. Village of Stickney Municipal Officers Electoral Bd., 228 Ill. 2d 200 (2008); City of Belvidere v. Illinois State Labor Rels. Bd., 181 Ill. 2d 191, 205 (1998).

An administrative decision is clearly erroneous where the reviewing court is left with the definite and firm conviction that a mistake has been made. American Federation of State, County & Municipal Employees, Council 31 v. Illinois State Labor Rels. Bd., 216 Ill. 2d 569, 577-78 (2005).

Section 3-110:

“No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court.”

An administrative agency’s decision regarding the conduct of its hearing and the introduction of evidence is properly governed by an abuse of discretion standard and subject to reversal only if there is demonstrable prejudice to the party. Wilson v. Department of Prof’l Regulation, 344 Ill. App. 3d 897, 907 (1st Dist. 2003)

Section 3-111(a):

The Circuit Court has nine delineated powers including the power

• To dismiss parties, to correct misnomers, to realign parties, or to join agencies or parties (P.A. 95-831, eff. 8/14/08)

• to stay the decision of the agency in whole or in part upon notice to the agency and good cause shown;

• to affirm or reverse the decision in whole or in part;

• to reverse and remand the decision in whole or in part, and, in that case, to state questions requiring further hearing or to give such other instruction as may be proper;

• to remand for the purpose of taking additional evidence

(However, the court shall not remand upon grounds of newly discovered evidence, unless the evidence could not upon exercise of reasonable diligence have been obtained in the administrative proceeding).

Section 3-111(b):

• Technical errors in the proceedings before the agency or its failure to observe the technical rules of evidence shall not constitute grounds for reversal, unless such error or failure materially affected the rights of any party and resulted in substantial injustice.

Briefing and Court Hearing (typically):

• Plaintiff sets out what is sought to be reviewed in complaint

• Court sets briefing schedule

• Plaintiff files MEMORANDUM OF LAW IN SUPPORT OF COMPLAINT

• Plaintiff has the burden of proof. Marconi v. Chicago Heights Police Pension Bd., 225 Ill.2d 497 (2007).

• Plaintiff files a REPLY BRIEF, due either seven or 14 days from the filing of the RESPONSE BRIEF.

Check the court’s local rules and check judges’ standing orders:

some judges have maximum page limit, and require oral argument.

In the Circuit Court of Cook County, the Chancery Division hears some administrative review actions; County Division hears Cook County Electoral Board cases pursuant to the statute, based on a petition for judicial review;

Tax & Miscellaneous Remedies Section, Law Division, hears administrative review of IDOR cases and IDES cases; and, the First Municipal District, Civil Division, hears review of the City of Chicago’s Department of Administrative Review cases.

RESPONSE BRIEF:

Defendant’s RESPONSE BRIEF is typically due within 28 days of Plaintiff’s memorandum of law. Applicable standard of review may determine the direction the court takes on review. Standard depends on whether the question presented is one of fact, one of law, or a mixed question of fact and law. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008).

Section 3-112: Appeals

• Plaintiff may appeal final decision or order of judgment of the Circuit Court entered in an administrative review action, which is reviewable by appeal as in any other civil cases.

• Method of review is filing Notice of Appeal. See Sup.Ct. Rule 301.

File with clerk of the circuit court within 30 days of the entry of the final judgment. See Sup. Ct. Rule 303.

Section 3-112: Appeals

Defendant may file appeal as in any other civil cases.

File with clerk of the circuit court within 30 days of the entry of the final judgment. See Sup. Ct. Rule 303.

Agency may petition the court to stay its decision pending review.

Back to the July 2010 Newsletter

Member Comments (5)

From Ted Harvatin on July 29, 2010

Whenever I file an admin review of SOS decision, the AG files the record as the answer. Fine but they don't serve a copy on me. Their positon is that they are not required to provide a copy of the admin record to me. My position is, the answer is a pleading; all pleadings must be served on counsel of record. Of course, I relent instead of getting into argument over the 20 bucks they charge for providing me with a copy.

What do you think is correct?

From Abra C. Siegel on August 2, 2010

When an employment discrimination charge is dismissed by the Illinois Department of Human Rights and then the Chief Legal Counsel sustained the dismissal. do you seek review by filing a complaint and getting a summons issued per 735 ILCS 5/3-101 or by petition to the appellate court under 735 ILCS 5/3-113?

From Julie Ann Sebastian on August 4, 2010

In response to the question posted by Mr. Harvatin, though the answer is a pleading, it is treated differently under the ARL.The short answer is that in many cases the AG need not serve plaintiff with a copy of the answer because the enabling statute may require, as a condition of judicial review, payment of cost of preparing the record.
The Illinois Administrative Review Law (ARL) expressly provides that the plaintiff shall pay to the agency the costs of preparing and certifying the record but only if the enabling statutue that authorizes review pursuant to the ARL requires plaintiff to assume the costs of such payment. 735 ILCS 5/3-109 (West 2010); see also ISBA Handbook of Illinois Administrative Law at 266-277 (Price, W. ed., 2nd ed. 2008). For example, the Illinois School Code requires either party desiring a transcript of the hearing to pay for the cost of the transcript, thus, the Supreme Court held that as a condition of judicial review of the Board of Education's dismissal decision of tenured teacher Karen Gilliland under the ARL, plaintiff Gilliland was required to pay for the transcript. See Gilliland v. Board of Education of Pleasant View Consolidated School Dist. No. 622, 67 Ill. 2d 143, 156-157 (1977). However, in judicial review of a Cook County Merit Board dismissal decision of a correctional officer, the appellate court held that because the enabling statute does NOT require payment of cost for a transcript, the Merit Board was not authorized to require plaintiff to pay the costs of preparing and certifying the record of proceedings before the Merit Board. See Zurek v. Cook County Police & Corrections Merit Board, 42 Ill. App. 3d 1044, 1048 (1st Dist. 1976); accord Reich v. Board of Fire & Police Comm'rs, 13 Ill. App. 3d 1031, 1037 (2nd Dist. 1973).
Therefore, read the statute that authorizes judicial review of the administrative agency decision and if the statute is silent, then defendant/respondent is required to serve a copy of the answer on plaintiff because the ARL mandates that "the administrative agency shall file an answer which shall consist of the original or a certified copy of the entire record of proceedings under review." 735 ILCS 5/3-108(b)( West 2010).
Hope that helps.

In response to the question posted by Ms. Siegel, that's more interesting (based on personal experience). The Illinois Human Rights Act (775 ILCS 5/1-101 through5/10-104) provides, at 775 ILCS 5/7A-102(G)(3), that any final order entered by the Chief legal Counsel under this section is appealable in accordance with paragraph (A)(1) of Section 8-111. Section 8-111 (Court Proceedings) provides for judicial review under the Act by filing a petition for review in the Appellate Court within 35 days from teh date that a copy of the decision sought to be reviewed was served upon the party affected by the decision." 775 ILCS 5/8-111(A)(1) (West 2008). Thus, Section 3-113 of the ARL applies to review of final decisions of the agency's Chief Legal Counsel.
Venue is in the appellate court for the district where the civil rights violation allegedly was committed. 775 ILCS 5/8-111(A)(3).
Hope this helps.
JAS

From Andrea N. Giammicchio-Heckman on August 11, 2016

I filed my Petition for a Judicial Review of an Administrative Decision August 11, and the Case Management is set for December. Can I file my Memorandum after service is confirmed or must I wait until the court sets the schedule?

From Bradley K. Staubus on January 12, 2022

I successfully reversed an municipal land ordinance administrative law hearing decision. The circuit court reversed AND remanded for complete rehearing. It has been over 120 days since the remand. The municipality has not appealed the reversal and remand, nor has it sought to proceed with the rehearing.

Is there a time period withing the municipality must tee it up for a administrative re-hearing?

Thank you.