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Court Clarifies “35 Day Rule” for Administrative Review Cases

January 14th, 2016

Grimm v. Calica, 2015 IL App (2nd) 140820


The Second District Appellate Court has issued a decision, which provides direction as to appropriate notice of a written decision by a public body, which triggers the 35-day period for seeking administrative review.


Following a finding evidence supported an indication of child-abuse findings relating the plaintiff, the plaintiff sought an expungement of that finding.  The Department of Children and Family Services (“Department”) conducted an administrative hearing.  Following the hearing the administrative law judge made a written recommendation to the Department against expungement.  The Department then issued a written decision in accordance with the recommendation of the administrative law judge.


The decision was issued on Department letterhead, in the form of a letter, addressed to the attorney representing the plaintiffs, dated July 30, 2013.  The plaintiff filed a complaint seeking administrative review on September 4, 2013, the 36th day.  The Department filed a motion to dismiss the complaint for administrative review, as untimely filed.  The letter contained language stating, “you may seek judicial review under the provisions of the Administrative Review Law…within 35 days of the date this decision was served on you.”


In response, plaintiff argued mailing the decision to her attorney was not adequate service, and that she did not receive the decision until August 12 or 13, 2013.  Plaintiff also argued the phrase “within 35 days of the date this decision was served on you,” was confusing.  Following arguments, the circuit court agreed with plaintiff and denied the motion, “in the interests of justice.”


On appeal, plaintiff argued the notice received was too confusing and misleading to satisfy due-process requirements.  The Appellate Court agreed, stating “the notice provided by the documents was not well calculated to appraise plaintiff that her 35 days to file an administrative-review complaint began to run on July 30, 2013.  Given the ease with which the Department could have made the notice more informative.”  Specifically, the Appellate Court noted, “Nothing in what the Department sent showed a date of mailing.  The letter decision was in the conventional format of a business letter, the date appears as  nothing more than the date of the letter…Thus the date on the letter did not appear to be a mailing date.”


The Appellate Court affirmed the denial of the motion to dismiss, finding the Department did not afford the plaintiff due process.  The Appellate Court noted, “Given that the Department could remove all necessary confusion by a change as simple as stating the mailing date and stating that the mailing date was the service date, the Department’s notice was unreasonably confusing and was not in a format that would be chosen by someone genuinely trying to convey the time limit for filing an administrative-review complaint.”