This court has held that the Act's provisions regarding joinder of necessary parties and service of summons upon those parties are “mandatory, interlocking and nonwaivable.” Gilty v. Village of Oak Park Board of Fire & Police Commissioners, 218 Ill.App.3d 1078, 1083, 161 Ill.Dec. 648, 578 N.E.2d 1294 (1991).¶ 13 Palos nevertheless contends that the circuit court erred in dismissing its action for two reasons: first, since Palos substantially complied with the requirements of the Act, the good-faith exception should excuse its errors in service; and second, the Board waived the issue of personal jurisdiction by seeking affirmative relief from the circuit court and by voluntarily appearing in the consolidated case.
While not depriving the court of jurisdiction, the failure to comply with the mandatory requirement that summons be issued within the 35-day time frame requires the dismissal of the action unless the exception for good-faith compliance with the statute applies. Gilty v. Oak Park Board of Fire Police Commissioners, 218 Ill. App.3d 1078, 1085 (1991); see Lockett, 133 Ill.2d at 355. For example, in Lockett, our supreme court allowed that the 35-day requirement may be relaxed where the petitioner has made a good-faith effort to have the summons issued by the clerk of the court within the statutory period but, due to circumstances beyond the petitioner's control, the summons was not issued. The supreme court has more recently concluded, however, that a litigant's mere assumption, without more, that the circuit clerk would issue the summons is insufficient to constitute a good-faith effort to comply.
Lockett's progeny confirm this conclusion. See Davis v. Chicago Police Board, 268 Ill. App.3d 851, 645 N.E.2d 274 (1994); Central States Co. v. Department of Employment Security, 248 Ill. App.3d 86, 618 N.E.2d 430 (1993); Murray v. Board of Review, 237 Ill. App.3d 792, 604 N.E.2d 1040 (1992); Poturalski v. Police Board, 228 Ill. App.3d 864, 593 N.E.2d 781 (1992); Gilty v. Oak Park Board of Fire Police Commissioners, 218 Ill. App.3d 1078, 578 N.E.2d 1294 (1991); Marozas v. Board of Fire Police Commissioners, 222 Ill. App.3d 781, 584 N.E.2d 402 (1991). A plaintiff's inadvertence in failing to name a necessary party is not considered to be a good-faith effort.
The relevant sections of the Review Law in effect at the time plaintiff filed his complaint for administrative review were sections 3-102, 3-103, and 3-107. Gilty v. Village of Oak Park Board of Fire Police Commissioners, 218 Ill. App.3d 1078, 1083, 578 N.E.2d 1294, 1298 (1991). The scope of the Review Law as defined in section 3-102 provides, in pertinent part:
The failure to comply with these mandatory, nonwaivable requirements mandates the dismissal of the complaint unless there has been a good-faith effort to comply with the statute. Lockett, 133 Ill. 2d at 355; Board of Education of Bethany Community School District No. 301 v. Regional Board of School Trustees of Clark, Coles, Cumberland, Edgar, Moultrie Shelby Counties (1994), 255 Ill. App.3d 763, 764-65; Gilty v. Village of Oak Park Board of Fire Police Commissioners (1991), 218 Ill. App.3d 1078, 1085-86. To further complicate matters, however, the Chief has raised this issue for the first time in his reply brief.
Other decisions of the appellate court have declined to describe the defect as a jurisdictional one, correctly noting that this court has not previously done so. See, e.g., Parsons v. National R.R. Passenger Corp. (1994), 259 Ill. App.3d 85, 88 (Rule 335); Board of Education of Bethany Community Unit School District No. 301 v. Regional Board of School Trustees (1993), 255 Ill. App.3d 763, 765-66 (Review Law); Gilty v. Village of Oak Park Board of Fire Police Commissioners (1991), 218 Ill. App.3d 1078, 1085 (Review Law); Zientara v. Lottery Control Board (1991), 214 Ill. App.3d 961, 970-72 (Review Law). Under either line of appellate authority, however, the consequences of noncompliance with the joinder requirements of the Review Law and Rule 335 are the same, requiring dismissal of the review proceeding.
This court found that "regardless of the Board's participation in the proceedings below, the service requirements of the Act cannot be waived. Id. ¶ 26 (citing Gilty v. Village of Oak Park Board of Fire and Police Commissioners, 218 Ill.App.3d 1078, 1083 (1991), for the proposition that "the Act's provisions regarding service of process upon necessary parties are 'mandatory' and 'nonwaivable' "). See also Lacny v. Police Board of the City of Chicago, 291 Ill.App.3d 397, 402 (1997) ("the requirements of the Act, generally speaking, are not waivable").
Regardless, "even in the absence of a timely objection, the requirements of the Administrative Review Law are not waivable." Gilty v. Village of Oak Park Board of Fire & Police Commissioners, 218 Ill.App.3d 1078, 1086, 161 Ill.Dec. 648, 578 N.E.2d 1294 (1991); see also Brazas v. Property Tax Appeal Board, 309 Ill.App.3d 520, 243 Ill.Dec. 124, 722 N.E.2d 1193 (1999). We turn now to PRN's objection to jurisdiction, which was brought under section 2-301 of the Code of Civil Procedure (735 ILCS 5/2-301 (West 2000)).
While not depriving the court of jurisdiction, failure to comply with this mandatory requirement, i.e., the joinder of all necessary parties as defendant and service of summons upon them within 35 days, mandates dismissal in the absence of a good-faith effort to comply with the statute. Lockett, 133 Ill.2d at 355, 549 N.E.2d at 1268; see also Zientara v. Lottery Control Board (1991), 214 Ill. App.3d 961, 969-71, 574 N.E.2d 747, 752-54; Gilty v. Village of Oak Park Board of Fire Police Commissioners (1991), 218 Ill. App.3d 1078, 1085, 578 N.E.2d 1294, 1299. Plaintiff did not name Sullivan School District as a defendant or serve it summons within the 35-day time frame.
Plaintiffs' attempt to come within the "good-faith effort" exception described above on the basis of filing an amended complaint within 35 days of the grant of leave to amend must fail. Lockett explicitly overruled those cases holding that a subsequent amendment can cure a failure to name and issue summons against a necessary party within the 35-day time limit. Plaintiffs have failed to comply with the requirements of the Administrative Review Law. (See Gilty v. Village of Oak Park Board of Fire Police Commissioners (1991), 218 Ill. App.3d 1078, 578 N.E.2d 1294.) We affirm the circuit court's dismissal of count I of plaintiffs' complaint.