Hanke v. Dept. of Professional Regulation

FOURTH DIVISION
May 07, 1998



1-96-1173

LORNA C. HANKE, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. )
) No. 95 CH 10037
THE DEPARTMENT OF PROFESSIONAL )
REGULATION, NIKKI M. ZOLLAR, )
Director, and the MEMBERS OF THE )
COMMITTEE OF NURSE EXAMINERS, ) HONORABLE
) MICHAEL B. GETTY,
Defendants-Appellants. ) JUDGE PRESIDING.


JUSTICE McNAMARA delivered the opinion of the court:

Defendants Nikki Zollar, Director of the Illinois Department
of Professional Regulation; the Illinois Department of
Professional Regulation (Department); and the members of the
Committee of Nurse Examiners, appeal from an order of the circuit
court reversing the Department's decision denying plaintiff Lorna
C. Hanke, licensure as a professional registered nurse in
Illinois. For the following reasons, we reverse the order of the
circuit court. The relevant facts are as follows.
The National Council Licensure Examination (NCLEX) is a
standardized nationwide exam given to all applicants who want to
practice nursing in the United States. One must pass the exam
before becoming licensed as a registered nurse. Hanke first took
the NCLEX in Illinois in July 1979 and failed. Hanke took the
test for a second time in Illinois in February 1980 and again
failed. Before 1990, statutes existed in Illinois that allowed
applicants to take the exam six times before being required to
recomplete nurses training. In 1990, section 15 of the Illinois
Nursing Act of 1987 (225 ILCS 65/15 (West 1994)) was amended to
require that an applicant pass the NCLEX within three years.
Hanke next took the exam in Minnesota in February 1994,
and in November 1994, and failed both times. Finally, in July
1995, on her fifth attempt, Hanke passed the NCLEX in Minnesota.
She received her license as a registered nurse in Minnesota on
July 26, 1995. Hanke then applied for an Illinois license as a
registered nurse by endorsement based upon her Minnesota license.
Illinois allows licensure by endorsement where the requirements
of the state of licensure on the date of licensure are
substantially equal to the requirements then in force in
Illinois. In a letter dated September 19, 1995, the Department
denied Hanke licensure by endorsement, stating that the Minnesota
statute at the time of Hanke's licensure there was not
substantially equal to the licensing requirements in force in
Illinois at the time. Furthermore, the letter indicated that
Hanke was not eligible for licensure in Illinois because she had
not passed the NCLEX within the required three years.
Hanke filed a complaint for administrative review of the
Department's final decision on October 18, 1995, naming Nikki M.
Zollar, as Director of the Illinois Department of Professional
Regulation, Illinois Department of Professional Regulation, and
the members of the Committee of Nurse Examiners as defendants.
Hanke had summons issue on October 19, 1995, against "Nikki M.
Zollar, as Director."
On November 30, 1995, the Department moved to dismiss the
complaint on the grounds that Hanke failed to cause summons to
issue against the Department or the members of the Committee of
Nurse Examiners. The record contains no response to this motion,
nor any ruling on it. Summons was never issued against either
party.
After a hearing on the matter on February 22, 1995, the
circuit court reversed the Department's decision to deny
licensure and ordered the Department to issue a registered
professional nursing license to Hanke. The defendants appeal.
On appeal defendants contend: (1) that the circuit court
erred in failing to grant defendants' motion to dismiss; and (2)
that the circuit court erred when it reversed the Department's
decision since Hanke failed to satisfy the statutory requirements
for licensure either by endorsement or by independently meeting
the requirements.
Defendants first contend that the circuit court erred in
failing to dismiss this action since Hanke failed to cause
summons to issue against and failed to serve the Department and
the members of the Committee of Nurse Examiners. Specifically
defendants contend that in her complaint for administrative
review, Hanke named the Department, the Director of the
Department, and the members of the Committee of Nurse Examiners
as defendants. However, Hanke only listed the Director as a
defendant in the caption and body of the summons that was issued.
According to defendants, Hanke never caused summons to issue
against the Department or the members of the Committee of Nurse
Examiners and, therefore, her action should have been dismissed.
We agree. First we note that plaintiff failed to respond to this
argument either in her brief or at oral argument.
Where expressly adopted, the Administrative Review Law (735
ILCS 5/3 et seq (West 1994)), is the exclusive method of
reviewing the decision of an administrative agency. Straub v.
Zollar, 278 Ill. App. 3d 556, 663 N.E.2d 80 (1996); Siciliano v.
Illinois Racing Board, 264 Ill. App. 3d 1085, 637 N.E.2d 612
(1994). Section 44 of the Illinois Nursing Act of 1987 (225 ILCS
65/44 (West 1994)) unambiguously provides that all final
administrative decisions of the Department shall be reviewable
pursuant to the Administrative Review Law.
Section 3-102 of the Administrative Review Law (the Act)
(735 ILCS 5/3-102 (West 1994)) provides in pertinent part:
"Unless review is sought of an administrative
decision within the time and in the manner herein
provided, the parties to the proceeding before the
administrative agency shall be barred from obtaining
judicial review of such administrative decision." 735
ILCS 5/3-102 (West 1994)).
Sections 3-103, 3-105, and 3-107 of the Act (735 ILCS 5/3-103, 3-
105, 3-107 (West 1994)) provide the time and manner for seeking
administrative review. Section 3-103 of the Act provides in
pertinent part:
"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
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 1994)).
The 35-day period for issuance of summons is mandatory, not
jurisdictional, and failure to comply with the requirement will
not deprive the court of jurisdiction. Lockett v. Chicago Police
Board, 133 Ill. 2d 349, 549 N.E.2d 1266 (1990). Section 3-105 of
the Act (735 ILCS 5/3-105 (West 1994)) provides that summons must
be issued on the administrative agency and on each of the other
defendants.[fn1] Section 3-107 of the Act (735 ILCS 5/3-107
(West 1994)) dictates that "the administrative agency and all
persons, other than the plaintiff, who were * * * parties of
record to the proceedings before the administrative agency shall
be made defendants." The Act is a departure from the common
law, and parties seeking its application must adhere strictly to
its procedures. Lockett, 133 Ill. 2d at 353, 549 N.E.2d at 1267.
A review of the record reveals that plaintiff did not
strictly adhere to the procedures set forth in the Act.
Plaintiff correctly named all the necessary defendants in her
complaint and filed the complaint within the 35-day period.
However, plaintiff did not cause summons to issue against each
defendant within the 35-day period. The summons that was issued
listed only the Director as a defendant in the caption and body.
Summons never issued against the Department or the members of the
Committee of Nurse Examiners. Plaintiff failed to adhere to the
requirements of sections 3-103 and 3-105 of the Act (735 ILCS
5/3-103, 3-105 (West 1994)). Such a failure requires dismissal
of plaintiff's action. 735 ILCS 5/3-102 (West 1994)). See also
Johnson v. Department of Public Aid, 251 Ill. App. 3d 604, 622 N.E.2d 50 (1993)(trial court erred in denying motion to dismiss
where plaintiff failed to have summons issue within the statutory
period); Gaski v. Brzeczek, 165 Ill. App. 3d 964, 520 N.E.2d 879
(1988)(failure of plaintiff to have timely summons issued to all
defendants mandated dismissal of administrative review
complaint).
An exception to the 35-day requirement for issuance of
summons does exist where, due to circumstances beyond the
litigant's control, the summons was not filed within the 35-day
period. Lockett, 133 Ill. 2d at 355, 549 N.E.2d at 1268; Leghorn
v. Kraft, Inc., 172 Ill. App. 3d 311, 526 N.E.2d 547 (1988). In
the cases that have relaxed the 35-day requirement for issuance
of summons, the plaintiffs made a good-faith effort to issue
summons within the prescribed period of time but, due to some
circumstances beyond their control, summons was not issued within
the 35-day period.
For example, in Cox v. Board of Fire & Police Commissioners,
96 Ill. 2d 399, 451 N.E.2d 842 (1983), the plaintiff filed his
complaint for administrative review, unsigned summonses directed
to each of the proper defendants, and affidavits concerning their
addresses on the 35th day after service of the administrative
decision. The clerk did not sign and send the summonses until
the 36th day after service. The supreme court held that the
summonses were timely issued. The failure to issue the summonses
within the time prescribed by the statute occurred through no
fault of the plaintiff, but by error of the circuit clerk. See
also City National Bank & Trust Co. v. Property Tax Appeal Board,
97 Ill. 2d 378, 454 N.E.2d 652 (1983)(summons not served within
prescribed time period due to mistake by clerk's office); Piasa
Motor Fuels, Inc. v. Department of Revenue, 138 Ill. App. 3d 422,
486 N.E.2d 379 (1985)(same).
We find this exception to be inapplicable to the case at
bar, where plaintiff offered no explanation for the failure to
issue summons against the Department or the members of the
Committee of Nurse Examiners (Gaski v. Brzeczek, 165 Ill. App. 3d
964, 520 N.E.2d 879 (1988); Moretti v. Department of Labor, 119
Ill. App. 3d 740, 457 N.E.2d 114 (1983)); the record fails to
disclose any evidence of a good-faith effort to comply (Spicer,
Inc. v. Regional Board of School Trustees, 212 Ill. App. 3d 16,
570 N.E.2d 678 (1991); Gaski, 165 Ill. App. 3d at 967, 520 N.E.2d
at 881); and there is no indication that the omission was due to
some circumstances beyond the plaintiff's control (Stanley v.
Department of Employment Security, 235 Ill. App. 3d 992, 602 N.E.2d 73 (1992); Moretti, 119 Ill. App. 3d at 745, 457 N.E.2d at
117). Furthermore, plaintiff did not try to correct the
omission.
We find that the record does not support a finding that the
plaintiff made a good-faith effort to issue summons against the
Department or the members of the Committee of Nurse Examiners
within the prescribed period of time. Indeed, the record
reflects that plaintiff made no effort to issue summons against
the Department or the members of the Committee of Nurse
Examiners. We find that the trial court erred in not dismissing
plaintiff's action.
Recently, this court, in a case with the same issues as in
the present case, held that defendants' application of section 15
of the Illinois Nursing Act of 1987 (225 ILCS 65/15 (West 1994))
constituted a prohibited retroactive use of the statute. Yap v.
Zollar, 294 Ill. App. 3d 71, 691 N.E.2d 18 (1997). We also held
that Yap was deprived of a property or liberty interest despite
her vested right to a license. Yap v. Zollar, 294 Ill. App. 3d
71, 691 N.E.2d 18 (1997).
However, in Yap defendants offered no challenge to
plaintiff's service of summons. Conversely, in the present case
defendants filed a motion to dismiss the complaint on the ground
that summonses were not properly served on defendants.
Accordingly, for the reasons set forth above, the judgment
of the circuit court of Cook County is reversed.
Reversed.
SOUTH J., concurs, and WOLFSON J., specially concurs.
JUSTICE WOLFSON, specially concurring:
I agree that the order of the circuit court should be
reversed for the reasons given. I do not, however, want to be
understood as agreeing with the holding in Yap v. Zoller, 294
Ill. App. 3d 71, 691 N.E.2d 18 (1997).
[fn1]We note that section 5/3-105 of the Act (735 ILCS 5/3-
105 (West 1994)) was amended by P.A. 89-685, section 25,
effective June 1, 1997. As the complaint in this case was filed
in 1995, this amendment is inapplicable to the case at bar.