Editor's note: This article has been revised to correct errors. In an earlier version, the Cook County Record incorrectly reported that special process servers must be appointed by Cook County judges. In fact, the process servers must be specially appointed by a judge in the jurisdiction in which a lawsuit is filed, in order to serve lawsuits upon people who live, work, or otherwise may be located in Cook County, distinct from all other Illinois counties.
Anyone seeking to sue someone who needs to be served in Cook County must first secure special court authorization to do so, making Cook County distinct from all other counties in Illinois, a divided Illinois Supreme Court has ruled.
Justice Mary Jane Theis penned the decision for the 5-2 majority. Chief Justice Anne Burke and justices P. Scott Neville Jr., Michael Burke and David Overstreet concurred.
Justices Robert Carter and Rita Garman dissented. Carter, quoting a 2019 Illinois Supreme Court decision, said the majority decision could lead to '"absurdity, inconvenience or injustice.'"
The decision went against Municipal Trust and Savings Bank in an action it brought against property owner Dennis J. Moriarty.
In December 2016, Municipal Trust filed for foreclosure in Kankakee County, where the bank is located, on commercial property mortgaged by Moriarty in Kankakee County. Moriarty lives in Kankakee County. But he was served with notice of the action at Rush Hospital in Chicago by a process server from Diligent Detective Agency.
Moriarty made no initial legal response and the property was sold to Municipal Trust at a sheriff's sale in June 2017, according to court papers. Moriarty explained he was unable to take action before the sale, because he was in a nursing home.
After the sale, Moriarty objected, saying a private process server cannot serve a summons in Cook County without being specially appointed to do so. Moriarty claimed the server had not been so appointed, as required by Illinois Code of Civil Procedure.
Kankakee County Associate Judge Ronald Gerts, and then Illinois Third District Appellate Court, concluded a licensed or registered private detective may serve process, without appointment, anywhere in Illinois, as long as the summons was issued from a county outside Cook County. As a consequence, the foreclosure was voided.
The state high court found otherwise.
Justice Theis said the Code of Civil Procedure spells out that in any Illinois county with less than two million residents, a licensed or registered private detective may serve process without appointment. Because the only county with more than two million people is Cook County, a process server must be specially appointed by a court, Theis wrote.
"It logically follows that, for a private detective to serve process on a defendant in Cook County, he or she must be specially appointed by the court," Theis said, adding the Code is not concerned with where the complaint underlying the summons is filed.
Theis noted this interpretation "has long been the consistent construction of the statute" that created the Code.
Theis also determined Moriarty's action in the case after the property was sold, did not "retroactively validate" the improper process serving.
Theis admitted her finding could be cumbersome for plaintiffs in similar situations, but nothing could be done.
"We acknowledge the potential inconvenience to a party having to request special appointment of a private detective when the defendant is served in Cook County. However, where the language of a statute is clear, this court is not free to read into it exceptions that our legislature did not express and must give it effect as written," Theis noted.
Justice Carter disagreed.
"I would hold that a duly licensed or registered private detective may serve process, without special appointment, anywhere in the state so long as the summons was issued from a county with a population of less than 2 million," Carter wrote
Carter contended Theis' ruling means plaintiffs must determine whether a defendant is in Cook County before serving a summons, even if defendant's home is in a county that does not require special appointment.
Municipal Trust was represented by Marc Ansel, of the Meyer Capel firm in Champaign.
Moriarty was defended by Ruth E. Wyman, of Ruth E. Wyman Law Office in Urbana.