Goral v. Dart ( 2020 )

2020 IL 125085
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 125085)
MATTHEW GORAL et al., Appellees, v. THOMAS J. DART et al., Appellants.
Opinion filed October 22, 2020.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Anne M. Burke and Justices Kilbride and Karmeier concurred in
the judgment and opinion.
Justice Michael J. Burke dissented, with opinion, joined by Justices Garman
and Theis.
OPINION
¶1 Defendant, Thomas J. Dart, Sheriff of Cook County (Sheriff), instituted
employment disciplinary proceedings against plaintiffs, Matthew Goral, Kevin
Badon, Michael Mendez, Milan Stojkovic, David Evans III, Frank Donis, and
Lashon Shaffer, who were employed as officers for the Sheriff. The disciplinary
charges against plaintiffs were filed with the Cook County Sheriff’s Merit Board
(Merit Board) pursuant to section 3-7011 of the Counties Code (Code). 55 ILCS
5/3-7011 (West 2012). Plaintiffs filed motions with the Merit Board to dismiss the
disciplinary charges against them. While the administrative proceedings were
pending, plaintiffs filed an action in the circuit court of Cook County for
declaratory, injunctive, and monetary relief against the Sheriff, Cook County, the
Merit Board, and Toni Preckwinkle, president of the Cook County Board of
Commissioners (collectively, defendants). In that lawsuit, plaintiffs asserted that
the Merit Board was not legally constituted because several of its members had
been appointed to and/or served terms that did not comply with the statutory
requirements set forth in section 3-7002 of the Code. Id. § 3-7002. On defendants’
motions, the circuit court of Cook County dismissed plaintiffs’ action on the ground
that they had failed to exhaust their administrative remedies. The appellate court
reversed in part, holding inter alia that, since plaintiffs had challenged the authority
of the Merit Board to address the charges, the “authority” exception to the
exhaustion requirement applied. See 2019 IL App (1st) 181646, ¶ 39. We allowed
defendants’ petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. July 1, 2018). For
the reasons that follow, we affirm the judgment of the appellate court and remand
to the circuit court for further proceedings.
¶2 I. BACKGROUND
¶3 Plaintiffs are employees of the Cook County Sheriff whom the Sheriff charged
with disciplinary infractions and placed on unpaid administrative leave pending
decisions by the Merit Board. From the beginning of their disciplinary proceedings,
plaintiffs have challenged the authority of the Merit Board to hear their cases on
the ground that the Merit Board was illegally constituted.
¶4 On September 16, 2016, the Sheriff filed disciplinary complaints against
plaintiffs Goral, Badon, Mendez, and Stojkovic, seeking to terminate their
employment.
¶5 On September 23, 2016, the appellate court issued its first decision in Taylor v.
Dart, 2016 IL App (1st) 143684, ¶¶ 7-8, which held that Taylor’s termination as a
Sheriff’s employee was void because the Merit Board’s composition was illegal on
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the ground that a Merit Board member (Rosales) had been appointed on an interim
basis in violation of section 3-7002 of the Code (55 ILCS 5/3-7002 (West 2012)).
¶6 The Sheriff appealed that decision, and on January 25, 2017, this court entered
a supervisory order directing the appellate court to vacate its judgment and decide
an issue it had declined to address regarding Cook County’s home-rule authority.
See Taylor v. Dart, No. 121507 (Ill. Jan. 25, 2017) (supervisory order).
¶7 On February 22, 2017, the Sheriff filed a disciplinary complaint against plaintiff
Evans with the Merit Board seeking his termination.
¶8 On May 12, 2017, the appellate court issued its second decision in Taylor v.
Dart, 2017 IL App (1st) 143684-B. The appellate court again held that the interim
appointment of Rosales violated the Code and that the termination of Taylor’s
employment was void because the Merit Board lacked statutory authority to issue
that decision. Id. ¶¶ 37, 46. The court also addressed the home-rule issue and held
that it did not alter the result in its prior ruling. Id. ¶ 50.
¶9 On July 20, 2017, the Sheriff suspended plaintiff Shaffer without pay and filed
a disciplinary complaint with the Merit Board seeking his termination.
¶ 10 During the preliminary stages of their administrative proceedings, all plaintiffs
raised arguments challenging the Merit Board’s statutory authority to hear their
cases, based in part on the appellate court’s decision in Taylor. These challenges
were raised in motions to dismiss, which the Merit Board declined to address on
the ground that such motions were not authorized in its administrative rules.
¶ 11 On November 27, 2017, plaintiffs filed a lawsuit for declaratory, injunctive, and
monetary relief against the Sheriff. 1 The complaint challenged the legal
composition of the Merit Board and, therefore, the Merit Board’s statutory authority
to address the disciplinary charges against plaintiffs.
¶ 12 After that lawsuit was filed and in response to Taylor, the legislature amended
the Code provision governing Merit Board appointments. In particular, the
amendment to section 3-7002 of the Code, which became effective December 8,
1
The original complaint was filed by plaintiffs Goral, Badon, Mendez, and Stojkovic. On
December 11, 2017, the first amended complaint was filed adding Evans and Shaffer as plaintiffs.
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2017, made the following changes: (1) permitted the Sheriff to make interim
appointments to the Merit Board; (2) abolished all existing terms of each member
of the Merit Board; and (3) created a new schedule for staggered terms of Merit
Board members. See Pub. Act 100-562, § 5 (eff. Dec. 8, 2017) (amending 55 ILCS
5/3-7002).
¶ 13 On December 13, 2017, the Sheriff appointed a new Merit Board. The
composition of the new Merit Board included six of the seven members of the
previous board but with varying terms.
¶ 14 On January 23, 2018, the Sheriff filed with the new Merit Board “amended”
charges against each plaintiff. The amended charges simply restated the allegations
that had been filed previously.
¶ 15 On February 26, 2018, plaintiffs filed a second amended complaint against
defendants. That complaint, which is at issue in this appeal, challenged the legal
composition of both the previous Merit Board and the new Merit Board appointed
after December 8, 2017. The complaint’s allegations relating to the previous Merit
Board asserted that some members had been appointed to illegal interim terms; the
Merit Board was composed of only five members, not the required seven members;
some of the member’s terms were not staggered as required by the Code; and the
Merit Board’s chairperson and secretary held their positions longer than permitted
under the Code.
¶ 16 The complaint’s allegations against the new Merit Board asserted that the prior
board’s lack of authority could not be “cured” by filing amended charges with a
new Merit Board, the Merit Board’s political composition violated the Code, the
chairperson and secretary continued to hold their positions longer than permitted
under the Code, the Merit Board created “fatal due process problems” by now
requiring plaintiffs to pay the costs of disciplinary hearing transcripts, and the Merit
Board is biased against the plaintiffs.
¶ 17 On July 26, 2018, the circuit court granted defendants’ section 2-619(a)(1) (735
ILCS 5/2-619(a)(1) (West 2018)) motion to dismiss, ruling that plaintiffs were
required to exhaust their administrative remedies before seeking relief outside the
context of administrative review. The circuit court noted that the amended
disciplinary charges against plaintiffs were still pending before the Merit Board.
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The court determined that, since the administrative proceedings were ongoing and
plaintiffs could exhaust their claims for relief before the Merit Board, the court
lacked subject-matter jurisdiction. Plaintiffs appealed the circuit court’s dismissal
of their complaint.
¶ 18 While the appeal was pending, the Merit Board issued decisions on the charges
against Shaffer and Evans. In an order dated December 14, 2018, the Merit Board
found that Shaffer should be separated from the Cook County Sheriff’s Office,
effective July 25, 2017. The Merit Board found in favor of Evans and ordered that
he be reinstated, effective February 22, 2017.
¶ 19 On June 26, 2019, the appellate court reversed the dismissal of plaintiffs’
lawsuit. See 2019 IL App (1st) 181646, ¶¶ 114-15. 2 The court determined that
plaintiffs’ complaint alleged several defects in the Merit Board’s composition,
which would nullify the Merit Board’s authority to adjudicate the administrative
actions against plaintiffs. The court found that, as the allegations challenged the
Merit Board’s lawful composition and its authority to act, the complaint fell within
the “authority” exception to the exhaustion doctrine. Id. ¶¶ 38-39.
¶ 20 The appellate court relied on the authority exception to conclude that the circuit
court could hear plaintiffs’ claims challenging the composition of the Merit Board.
The court also determined that plaintiffs may proceed with their claims for back
pay, which resulted from the proceedings before the illegally constituted Merit
Board. Id. ¶¶ 52-53.
¶ 21 With regard to plaintiffs’ due process claims, the appellate court held that the
two claims that were premised on alleged bias of the Merit Board did not fall within
the “futility” exception to the exhaustion requirement and, therefore, were properly
dismissed for lack of subject-matter jurisdiction. Id. ¶¶ 62-70, 72-74. The court
found that the plaintiffs’ final due process claim, premised on the new imposition
of a fee to obtain hearing transcripts, may or may not fall within the “futility”
exception. The court ruled that plaintiffs must be given an opportunity to amend
their complaint to assert “futility,” if they can do so in good faith. Accordingly, that
claim was not subject to dismissal. Id. ¶¶ 76-81.
2
On the motion of defendants, the appellate court filed a corrected opinion on July 10, 2019,
deleting all references to plaintiff Frank Donis as a party to the appeal.
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¶ 22 The appellate court also addressed defendants’ alternative argument that the
“de facto officer” doctrine confers validity upon the Merit Board’s actions and,
thereby, precludes the circuit court from considering plaintiffs’ claims. The court
found that the de facto officer doctrine does not apply in this case because plaintiffs
had consistently challenged the Merit Board’s authority to adjudicate the
disciplinary complaints against them since their cases began and they were not
attempting to avoid the consequences of a concluded administrative action. Id.
¶¶ 96-112.
¶ 23 After the appellate court issued its opinion, the Merit Board adjudicated the
charges against Goral, Baden, Mendez, and Stojkovic. In orders dated July 10,
2019, the Merit Board found that all four plaintiffs should be reinstated to the Cook
County’s Sheriff’s Department, effective September 16, 2016.
¶ 24 In each plaintiff’s case, the Merit Board found its members to be duly appointed
under the December 2017 amendments to the Code. The Merit Board also found
that it had authority to receive the Sheriff’s complaints, as that was an
administrative function handled by agency staff members and not by Merit Board
members.
¶ 25 Defendants appeal the judgment of the appellate court. We granted the Illinois
Attorney General and the City of Chicago leave to submit an amici curiae brief in
support of defendants’ position. Ill. S. Ct. R. 345 (eff. Sept. 10, 2010).
¶ 26 II. ANALYSIS
¶ 27 At issue is whether the circuit court erred in granting defendants’ section 2-
619(a)(1) motion to dismiss plaintiffs’ complaint based on lack of subject-matter
jurisdiction. 735 ILCS 5/2-619(a)(1) (West 2018). A motion to dismiss pursuant to
section 2-619 admits the legal sufficiency of the complaint but asserts another
affirmative matter that defeats the claim. American Family Mutual Insurance Co.
v. Krop, 2018 IL 122556, ¶ 13. Such a motion also admits as true all well-pleaded
facts and all reasonable inferences that can be drawn from them. Id. Section 2-
619(a)(1) authorizes the dismissal of a complaint where the court does not have
jurisdiction of the subject matter of the action. 735 ILCS 5/2-619(a)(1) (West
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2018). In appeals from dismissal under section 2-619, the standard of review is
de novo. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009).
¶ 28 Before this court, defendants challenge the appellate court’s holding that the
circuit court had subject-matter jurisdiction to address plaintiffs’ complaint. In
particular, defendants contend that the appellate court erroneously applied the
authority exception to excuse plaintiffs from exhausting their administrative
remedies. Defendants further maintain that the Merit Board should receive
appointment challenges and complete a disciplinary case prior to the circuit court
acquiring jurisdiction. In the alternative, defendants contend that, even if the
exhaustion of remedies requirement does not apply, the de facto officer doctrine
precludes the circuit court from addressing plaintiffs’ claims.
¶ 29 In response, plaintiffs urge that the appellate court’s judgment be affirmed,
asserting that the authority exception to the exhaustion requirement was correctly
applied and, thus, the circuit court had jurisdiction to hear their challenge to the
composition of the Merit Board. Plaintiffs contend that the application of the
authority exception was justified because their challenges called into question the
authority of the Merit Board to conduct any proceedings against them. Plaintiffs
further contend that the de facto officer doctrine does not preclude their claims for
relief in the circuit court.
¶ 30 A. Statutory Overview
¶ 31 Article VIII of the Merit Board’s rules and regulations provides that the Sheriff,
without filing charges with the Merit Board, may suspend a Sheriff’s officer for
any reasonable amount of time not to exceed 30 days. If the Sheriff seeks to
terminate, demote or suspend an officer for a period of time in excess of 30 days,
he must file a charge against such an officer with the Merit Board.
¶ 32 The Merit Board has exclusive authority to remove, demote, or suspend in
excess of 30 days or terminate rank-and-file Sheriff’s officers as a disciplinary
sanction for violation of the Sheriff’s rules, regulations, and code of conduct. 55
ILCS 5/3-7011, 3-7012 (West 2012).
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¶ 33 Because an administrative agency is a creature of statute, it has no general or
common-law powers. Ferris, Thompson & Zweig, Ltd. v. Esposito, 2015 IL
117443, ¶ 16 (citing Alvarado v. Industrial Comm’n, 216 Ill. 2d 547, 553 (2005));
Landfill, Inc. v. Pollution Control Board, 74 Ill. 2d 541, 554 (1978). An
administrative agency’s powers are limited to those granted by the legislature, and
any action taken by an agency must be authorized by its enabling act. Ferris,
Thompson & Zweig, Ltd., 2015 IL 117443, ¶ 16; Alvarado, 216 Ill. 2d at 553; City
of Chicago v. Fair Employment Practices Comm’n, 65 Ill. 2d 108, 112-13 (1976).
¶ 34 The Illinois Constitution provides that circuit courts have jurisdiction to review
administrative decisions as provided by law. Ill. Const. 1970, art. VI, § 9. The
Administrative Review Law “shall apply to and govern every action to review
judicially a final decision of any administrative agency where the Act creating or
conferring power on such agency, by express reference, adopts the provisions of
*** the Administrative Review Act.” 735 ILCS 5/3-102 (West 2018). Where it is
adopted, the Administrative Review Law bars any other statutory, equitable, or
common-law mode of review of decisions of administrative agencies. Id.; Illinois
Bell Telephone Co. v. Allphin, 60 Ill. 2d 350, 355 (1975). The Code provides that
the Administrative Review Law applies to and governs proceedings for review of
the Merit Board. 55 ILCS 5/3-7012 (West 2012).
¶ 35 B. The Doctrine of Exhaustion of
Administrative Remedies
¶ 36 1. General Principles
¶ 37 The exhaustion doctrine is well established in administrative case law. McKart
v. United States, 395 U.S. 185, 193 (1969); Allphin, 60 Ill. 2d at 357-58. The
common-law doctrine provides that a party aggrieved by an administrative decision
ordinarily cannot seek judicial review without first pursuing all available
administrative remedies. Castaneda v. Illinois Human Rights Comm’n, 132 Ill. 2d
304, 308 (1989). An administrative decision “means any decision, order or
determination of any administrative agency rendered in a particular case, which
affects the legal rights, duties or privileges of parties and which terminates the
proceedings before the administrative agency.” 735 ILCS 5/3-101 (West 2018). In
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Illinois, the common-law doctrine of exhaustion is incorporated in the
Administrative Review Law. Castaneda, 132 Ill. 2d at 320-21.
¶ 38 Exhaustion of administrative remedies serves two main purposes. First,
exhaustion gives the agency an opportunity to correct its own mistakes with respect
to the programs it administers. Second, exhaustion promotes efficiency, in that
claims generally can be resolved much more quickly and economically in
proceedings before an agency. Woodford v. Ngo, 548 U.S. 81, 89 (2006);
Beahringer v. Page, 204 Ill. 2d 363, 375 (2003).
¶ 39 This court has further recognized that requiring the exhaustion of remedies
(1) allows the administrative agency to fully develop and consider the facts of the
cause before it, (2) allows the agency to utilize its expertise, and (3) allows the
aggrieved party to ultimately succeed before the agency, rendering judicial review
unnecessary. Castaneda, 132 Ill. 2d at 308; see also Allphin, 60 Ill. 2d at 358. The
doctrine also helps protect agency processes from impairment by avoidable
interruptions, allows the agency to correct errors, and conserves valuable judicial
time by avoiding piecemeal appeals. Castaneda, 132 Ill. 2d at 308.
¶ 40 As noted above, where the Administrative Review Law is applicable and
provides a remedy, a circuit court may not redress a party’s grievance through any
other type of action. Ill. Const. 1970, art. VI, § 9; Dubin v. Personnel Board of the
City of Chicago, 128 Ill. 2d 490, 498 (1989). The court’s power to resolve factual
and legal issues arising from an agency’s decision must be exercised within its
review of the agency’s decision and not in a separate proceeding. Dubin, 128 Ill.
2d at 498-99. Thus, administrative remedies must be exhausted before equitable
relief is sought from the courts. Id.
¶ 41 Although the exhaustion doctrine is firmly established and strict compliance
with the doctrine is generally required, there are several exceptions that are also
equally well established. County of Knox ex rel. Masterson v. The Highlands,
L.L.C., 188 Ill. 2d 546, 552 (1999); see also Castaneda, 132 Ill. 2d at 309. Two
such exceptions are “ ‘where no issues of fact are presented, or agency experience
is not involved *** or where the agency’s jurisdiction is attacked because it is not
authorized by statute.’ ” County of Knox, 188 Ill. 2d at 552 (quoting Castaneda,
132 Ill. 2d at 309); see also Board of Governors of State Colleges & Universities
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for Chicago State University v. Illinois Fair Employment Practices Comm’n, 78 Ill.
2d 143, 147-48 (1979); Landfill, Inc., 74 Ill. 2d at 551.
“ ‘ “The term ‘jurisdiction,’ while not strictly applicable to an
administrative body, may be employed to designate the authority of the
administrative body to act ***.” [Citation.] Thus, in administrative law, the
term “jurisdiction” has three aspects: (1) personal jurisdiction—the agency’s
authority over the parties and intervenors involved in the proceedings,
(2) subject matter jurisdiction—the agency’s power “to hear and determine
cases of the general class of cases to which the particular case belongs”
[citation], and (3) an agency’s scope of authority under the statutes.’ ” County
of Knox, 188 Ill. 2d at 553 (quoting Business & Professional People for the
Public Interest v. Illinois Commerce Comm’n, 136 Ill. 2d 192, 243 (1989)).
¶ 42 This court has explained that, where an agency’s statutory authority to exercise
jurisdiction is at issue, no questions of fact are involved, and the agency’s expertise
is not implicated in statutory interpretation. Board of Governors, 78 Ill. 2d at 147-
48; see also Landfill, Inc., 74 Ill. 2d at 550-51. Further, where the authority of an
administrative body is in question, the determination of the scope of its power and
authority is a judicial function, not a question to be finally determined by the
administrative agency itself. County of Knox, 188 Ill. 2d at 554. In addition, this
court has recognized that there is virtually no chance that the aggrieved party will
succeed before an agency where the issue is the agency’s own assertion of
authority. Board of Governors, 78 Ill. 2d at 148; Landfill, Inc., 74 Ill. 2d at 550-51.
¶ 43 2. The Exhaustion Doctrine Does Not Apply
¶ 44 In challenging the appellate court’s decision, defendants assert that the Merit
Board should retain jurisdiction to decide any challenges to its composition and
complete a disciplinary case prior to review in the circuit court. Defendants further
contend that an administrative agency is in a superior position to address
appointment deficiency challenges that are raised in the agency before a final
decision is reached. In essence, defendants argue that plaintiffs must fully litigate
the disciplinary charges and exhaust their administrative remedies before the Merit
Board, which they have alleged lacks statutory authority to adjudicate those
charges. We disagree.
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¶ 45 Here, plaintiffs alleged in their complaint that the preamendment Merit Board
was composed of illegal interim appointees and appointees to nonstaggered terms;
that after two members resigned, the Merit Board was composed of only five
members, as opposed to the statutorily required seven members; and that the
chairman and secretary of the Merit Board had violated their mandatory term limits.
Plaintiffs further alleged that the postamendment Merit Board failed to meet the
Code’s political affiliation requirements. Thus, plaintiffs have asserted
compositional defects with the Merit Board prior to the December 8, 2017,
amendments to the Code as well as after those amendments went into effect.
¶ 46 Further, plaintiffs raised their objections to the Merit Board’s authority to
adjudicate their cases shortly after the charges were filed, but the Merit Board
declined to rule on them until after the disciplinary proceedings were complete. In
responding to plaintiffs’ motions to dismiss, the Merit Board determined that,
because its rules and regulations did not provide for such motions, it could neither
grant nor deny plaintiffs’ requests for dismissal. Thus, the Merit Board took no
action and rendered no decision regarding plaintiffs’ claims prior to the filing of
plaintiffs’ lawsuit in the circuit court in November 2017.
¶ 47 As noted above, determining the scope of any agency’s power and authority is
a judicial function rather than a question for the agency to answer itself. County of
Knox, 188 Ill. 2d at 554; Gallaher v. Hasbrouk, 2013 IL App (1st) 122969, ¶ 19. In
their claims for declaratory, injunctive, and monetary relief, plaintiffs challenged
the Merit Board’s composition and, thus, its jurisdiction to conduct proceedings
against them. Because plaintiffs’ allegations fell within the authority exception, the
exhaustion doctrine did not bar them from pursuing their claims in the circuit court.
See County of Knox, 188 Ill. 2d at 552; Castaneda, 132 Ill. 2d at 309; see also Office
of the Lake County State’s Attorney v. Illinois Human Rights Comm’n, 200 Ill. App.
3d 151, 157 (1990) (holding that, where the remedy of administrative and judicial
review would come only after a hearing that the agency has no jurisdiction to
conduct, it can be said that, as a matter of law, plaintiffs have no other remedy at
law (citing People ex. rel. Olin Corp. v. Department of Labor, 95 Ill. App. 3d 1108,
1112 (1981))). We conclude that the exhaustion of remedies doctrine does not
preclude a challenge to the statutory jurisdiction of the Merit Board. See County of
Knox, 188 Ill. 2d at 555; see also Castaneda, 132 Ill. 2d at 309; Business &
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Professional People for the Public Interest, 136 Ill. 2d at 245 (finding, to the extent
an agency acts without statutory authority, it acts outside its jurisdiction).
¶ 48 In seeking to avoid this result, defendants contend that the appellate court
erroneously excused the exhaustion requirement by applying the authority
exception to plaintiffs’ complaints. Defendants argue that this court has narrowly
limited the authority exception to situations where an agency exceeds its authority
by promulgating a rule or regulation that falls outside the statutory subject matter
assigned to the agency’s jurisdiction by the legislature. Defendants maintain that
the authority exception has never been applied to procedural appointment
challenges, which are unrelated to the scope of the Merit Board’s statutory
rulemaking power and unrelated to the Merit Board’s subject-matter jurisdiction.
¶ 49 Defendants further argue that the appellate court erred in relying on Vuagniaux
v. Department of Professional Regulation, 208 Ill. 2d 173 (2003), and Daniels v.
Industrial Comm’n, 201 Ill. 2d 160 (2002), in applying the authority exception to
plaintiffs’ procedural appointment challenges because those two cases did not
involve the exhaustion doctrine. Although we agree that Vuagniaux and Daniels
have no bearing on the exhaustion doctrine per se, we reject defendants’ argument
that the authority exception cannot be applied under the circumstances presented
here.
¶ 50 In asserting that the authority exception applies only to improper rulemaking,
defendants rely on Crittenden v. Cook County Comm’n on Human Rights, 2013 IL
114876, ¶ 34, in which this court held that the Cook County Commission on Human
Rights lacked authority to award punitive damages because its enabling legislation
did not provide the commission with the express authority to award punitive
damages. Defendants also rely on County of Knox, 188 Ill. 2d at 555, which
similarly concluded that a zoning board did not have authority to regulate the
agricultural land at issue because its empowering statute did not allow it to do so.
Defendants further rely on City of Chicago, 65 Ill. 2d at 115, in which this court
held that, absent statutory authorization, the commission exceeded its jurisdiction
in awarding attorney fees. None of the decisions cited by defendants were premised
on the administrative agencies’ promulgation of a rule or regulation that fell outside
its subject-matter jurisdiction. Rather, they rested on a lack of authority as defined
by each administrative tribunal’s enabling statute. Thus, the precedent on which
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defendants rely does not support their contention that the exhaustion doctrine’s
authority exception is restricted to improper rulemaking by an agency.
¶ 51 Plaintiffs’ allegations that the Merit Board was not lawfully constituted call into
question the Merit Board’s authority to act and to proceed against them. Indeed,
plaintiffs have challenged the Merit Board’s inherent power and authority to
adjudicate where, if as alleged, any order in the proceedings would be void. See
Business & Professional People for the Public Interest, 136 Ill. 2d at 243-44
(finding that a decision by an agency that lacks jurisdiction or lacks the inherent
power to make or enter the particular order involved is void and may be attacked at
any time or in any court, either directly or collaterally). Consequently, we find that,
under the circumstances here, where plaintiffs have challenged the Merit Board’s
composition and its authority to act, the authority exception to the exhaustion
requirement applies. Board of Governors, 78 Ill. 2d at 147; see also Landfill, Inc.,
74 Ill. 2d at 550 (reasoning that the purposes for the exhaustion requirement are not
served where an administrative assertion of authority to hear or determine certain
matters is attacked on the grounds that the assertion of jurisdiction is not authorized
by statute). 3
¶ 52 3. The Merit Board’s Expertise Is Not Implicated
¶ 53 In support of their contention that the appellate court erroneously excused
plaintiffs from satisfying the exhaustion requirement, defendants posit that
plaintiffs’ disputes before the Merit Board are primarily factual or specialized legal
matters that call upon the Merit Board’s expertise. Defendants maintain that the
exhaustion of remedies requirement allows the agency to utilize its expertise, while
fully developing the record, to consider the facts at issue. Defendants assert that the
members of the Merit Board are either lawyers with experience in law enforcement
or government practices or are nonlawyers with law enforcement, local
government, or community organizing experience. Defendants contend that the
Merit Board routinely brings this expertise to bear, including its familiarity with
rules and regulations, in cases before it and should be allowed to employ that
3
Defendants also have argued that the futility exception to the exhaustion doctrine does not
apply. In light of our determination that the authority exception applies to plaintiffs’ challenges, we
need not address this argument.
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expertise regarding plaintiffs’ challenges to the Merit Board’s composition. This
argument is without merit.
¶ 54 Based on the comprehensive statutory scheme governing the Merit Board, we
observe that the legislature has deemed the Merit Board to be the proper entity in
making factual findings and decisions regarding disciplinary complaints against
Sheriff’s officers. See 55 ILCS 5/3-7001 (West 2012). In addition, the legislature
has provided that the Merit Board should employ its expertise in the appointment,
promotion, and disciplinary proceedings regarding the Sheriff’s officers. Id. § 3-
7006 (stating the Merit Board shall establish a classification of ranks of the deputy
sheriffs in the county police department); id. § 3-7008 (defining requirements for
certification of applicants for sworn Sheriff’s positions); id. § 3-7009 (defining
requirements for certification of promotions to sergeant and lieutenant); id. § 3-
7012 (providing for written charges to be filed by the Sheriff against sworn officers,
triggering a hearing before the Merit Board, and establishing its powers regarding
such hearings).
¶ 55 However, the Merit Board is not vested with the authority to make its own
appointments. See id. § 3-7002 (providing that the Sheriff appoints Merit Board
members, with confirmation by the Cook County Board). There is nothing in the
statutory language to suggest that the legislature intended for the Merit Board to
make decisions regarding its own members’ appointments or its composition.
Consequently, we conclude that it would be unreasonable to find that these
provisions direct the Merit Board to address such challenges. See Board of
Governors, 78 Ill. 2d at 148; see also Landfill, Inc., 74 Ill. 2d at 551 (finding that,
where an agency’s statutory authority to exercise jurisdiction is at issue, such a
determination involves no questions of fact and the agency’s particular expertise is
not implicated).
¶ 56 4. The Alleged Potential for Chaos
at the Administrative Level
¶ 57 Defendants next contend that allowing widespread exceptions to the exhaustion
doctrine would thwart the legislative intent of consigning certain disputes to agency
specialists and would create “unworkable chaos” at the Merit Board. Defendants
maintain that the decision by the appellate court imposes fact-finding burdens on
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the circuit courts that “fly in the face” of legislation about the role of courts in
reviewing agency actions. According to defendants, the result reached by the
appellate court would subject administrative agencies throughout Illinois to a wave
of declaratory or injunctive lawsuits based on interlocutory procedural challenges
to individual agency hearing officers. Defendants further contend that allowing
plaintiffs to “skip over” administrative processes by filing claims in the circuit court
is the opposite of judicial economy and efficiency. We do not agree.
¶ 58 Initially, we note that plaintiffs did not “skip over” the Merit Board but, rather,
raised the issue before the Merit Board, which refused to hear them until after the
disciplinary proceedings were complete. Further, there is no indication that there is
a plethora of challenges to the statutory authority of other agencies because of
appointment defects. Moreover, Illinois Rule of Professional Conduct 3.1 (eff. Jan.
1, 2010) prohibits the filing of frivolous lawsuits. Specifically, Rule 3.1 provides
that “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis in law and fact for doing so that is not frivolous,
which includes a good-faith argument for an extension, modification or reversal of
existing law.” Id. We are confident that the bar will adhere to that proscription.
Thus, there are adequate safeguards in place to protect against the chaos that
defendants allege.
¶ 59 5. The Alleged Risk of Piecemeal
and Simultaneous Litigation
¶ 60 We next consider defendants’ contention that the exhaustion doctrine applies
without exception to plaintiffs’ challenges since the doctrine conserves valuable
judicial time by avoiding piecemeal appeals. Defendants further contend that this
court has never allowed simultaneous litigation in the court and at the agency—
appointment challenges in the circuit court and disciplinary charges before the
Merit Board. Defendants assert that the exhaustion doctrine cautions against
disrupting and paralyzing an agency with a premature lawsuit in the circuit court
before the agency has decided a disputed case.
¶ 61 In support, defendants cite several decisions that forbid simultaneous litigation
in the agency and the circuit court. See Cinkus v. Village of Stickney Municipal
Officers Electoral Board, 228 Ill. 2d 200, 212-13 (2008) (requiring all issues to be
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resolved in an agency before they can be raised in circuit courts serves the purpose
of the orderly procedure and justice in forbidding new arguments on administrative
review); Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 278-79
(1998) (administrative review is confined to the proof before the agency and serves
the purpose of avoiding piecemeal litigation); Dubin, 128 Ill. 2d at 498 (holding
that the Administrative Review Law bars other types of actions against an agency).
This argument lacks merit.
¶ 62 The cases cited by defendants are inapplicable because they deal with
challenges to final administrative decisions made by an agency and the sufficiency
of the agency’s findings of fact. The present action was brought as a declaratory
and injunctive action, and the issue is not whether an order was correct but whether
the agency had the authority to enter any order at all.
¶ 63 In our view, the height of inefficiency and waste is to allow the proceedings to
continue before an administrative tribunal that is being challenged as illegally
comprised. Defendants fail to acknowledge that requiring the proceedings to
continue at the administrative level through hearings and decisions before an
allegedly illegally comprised Merit Board runs counter to judicial economy. If the
Merit Board is improperly constituted, a full administrative proceeding is an
expensive and time-consuming exercise in futility, where the circuit court would
have to undo all those proceedings because the Merit Board lacked the inherent
power to make or enter the order. In fact, if, as alleged, the Merit Board is illegally
comprised, any decision would be void. Business & Professional People for the
Public Interest, 136 Ill. 2d at 243-44; Newkirk v. Bigard, 109 Ill. 2d 28, 36 (1985);
City of Chicago, 65 Ill. 2d at 113 (finding that absent statutory authorization the
agency exceeded its jurisdiction with a void order). It is both logical and more
efficient to adjudicate plaintiffs’ composition challenges first and then proceed with
the disciplinary charges before a legally comprised Merit Board.
¶ 64 6. The Circuit Court Can Decide
Plaintiffs’ Claims for Back Pay
¶ 65 Lastly, defendants argue that questions regarding plaintiffs’ back pay is a
disputed question of fact that the Merit Board is best suited to address. Defendants
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contend that the circuit court should be limited to affirming or reversing the back
pay award, if and when made, on administrative review.
¶ 66 Defendants rely on Mitchem v. Cook County Sheriff’s Merit Board, 196 Ill.
App. 3d 528 (1990), for the proposition that the Administrative Review Law does
not provide the circuit court with the power to award back pay. In Mitchem,
petitioner was found to have been unlawfully suspended in excess of the statutory
time limit. Id. at 533. On appeal, the appellate court reasoned that the circuit court
was limited in its power by the Administrative Review Law and could only affirm
or reverse the order of suspension with or without remand. Id. The appellate court
found the circuit court had exceeded its powers by awarding back pay. Id. at 534.
The court was limited to the record before it, and the award of back pay and benefits
required the taking of additional evidence. Id.
¶ 67 Defendants contend that the Mitchem decision best serves the legislature’s
intent to put the discovery and fact-finding process with the Merit Board. In
support, defendants point out that other jurisdictions that have considered the issue
agree with Mitchem, that the issue of back pay is a question for the trier of fact. See
Senior Accountants Analysts & Appraisers Ass’n v. Detroit, 249 N.W.2d 121, 125
(Mich. 1976) (holding that calculation of back pay is a question of fact); Pegues v.
Mississippi State Employment Service, 899 F.2d 1449, 1455 (5th Cir. 1990)
(determining that back pay owed for employment discrimination is a question of
fact); Meacham v. Knolls Atomic Power Laboratory, 185 F. Supp. 2d 193, 236
(N.D.N.Y. 2002) (same).
¶ 68 In the case at bar, we agree with the appellate court’s determination that
plaintiffs’ claims for back pay were not subject to the exhaustion requirement
because the predominate questions were legal questions involving the Merit
Board’s statutory authority to act. 2019 IL App (1st) 181646, ¶¶ 52-53. As noted,
such claims need not be raised before the agency and would be subject to de novo
review. County of Knox, 188 Ill. 2d at 554 (recognizing that the scope of an
agency’s authority is a judicial determination). In addition, none of the statutory
provisions defining the scope of the Merit Board’s authority vest its particular
expertise in determining issues such as back pay, mitigation, and setoffs. Moreover,
this court has previously remanded a similar case to the circuit court for
computation of back pay owed to an employee who was improperly terminated.
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Thaxton v. Walton, 106 Ill. 2d 513, 520 (1985). Consequently, plaintiffs are
permitted to pursue their claims for back pay in the circuit court.
¶ 69 C. The De Facto Officer Doctrine
¶ 70 Defendants have asserted the de facto officer doctrine as an alternative and
independent ground for affirming the dismissal of plaintiffs’ complaint.
Specifically, defendants contest the appellate court’s determination that the de facto
officer doctrine protects the integrity of final agency decisions handed down before
a court has declared a board’s composition illegal. In addition, defendants argue
that the appellate court erred in holding that the “first challenger” exception to the
doctrine permitted plaintiffs to challenge the composition of the Merit Board under
the amended statute. According to defendants, the de facto officer doctrine
validates all actions of a public officer, regardless of any deficiency in the
officeholder’s title and regardless of whether those actions are recent or old. We
disagree.
¶ 71 The de facto officer doctrine is a common-law equitable doctrine that confers
validity upon acts performed by a person acting under the color of official title even
though it is later discovered that the legality of that person’s appointment to office
is deficient. Ryder v. United States, 515 U.S. 177, 180 (1995); Vuagniaux, 208 Ill.
2d at 186-87. Under the doctrine, the acts of a person actually performing the duties
of an office under color of title are valid so far as the public or third parties who
have an interest in them are concerned. People ex rel. Chillicothe Township v.
Board of Review, 19 Ill. 2d 424, 426 (1960). The doctrine originated as a means to
avoid the chaos that would result from multiple and repetitious suits challenging
every action taken by every official whose claim to office could be open to question.
Ryder, 515 U.S. at 180. It, therefore, serves to protect the public by ensuring the
orderly functioning of the government despite the existence of technical defects in
title to office. Id.
¶ 72 Significantly, the de facto officer doctrine is applied as a defense to an attack
on the acts of an officer or appointee in a collateral proceeding. Daniels, 201 Ill. 2d
at 166 (citing People ex rel. Rusch v. Wortman, 334 Ill. 298, 301-02 (1928)). The
initiation of a collateral proceeding necessarily requires a prior act or judgment that
is, or may be, subject to attack. See generally Black’s Law Dictionary 329 (11th ed.
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2019) (defining “collateral attack” as “[a]n attack on a judgment in a proceeding
other than a direct appeal”). Thus, the legal concept of a collateral attack presumes
that some official act or decision has occurred.
¶ 73 The de facto officer doctrine is not intended to preclude a timely challenge to
agency authority, and this court has recognized that a direct attack in the same
proceeding in which a board member is appointed is permissible. See Vuagniaux,
208 Ill. 2d at 187. Thus, our precedent embraces the notion that, before being
subjected to an administrative proceeding, a party should have some avenue to
timely question and verify that the agency has authority to act.
¶ 74 Permitting such a challenge does not thwart the de facto officer doctrine, which
serves to preserve the integrity of an official action that is complete and where the
authority of the agency or public officer was not challenged in a timely manner.
See Ryder, 515 U.S. at 180 (observing that the doctrine protects official actions
“even though it is later discovered that the legality of that person’s appointment or
election to office is deficient” (emphasis added)); see also id. at 182-83 (reasoning
that one who makes a timely challenge to the constitutionality of the appointment
of an officer who adjudicates his case is entitled to a decision on the merits of that
question and whatever relief may be appropriate); Equal Employment Opportunity
Comm’n v. Sears, Roebuck & Co., 650 F.2d 14, 17 (2d Cir. 1981) (noting that the
doctrine was developed to preserve the integrity of official actions that “could later
be invalidated by exposing defects in the officials’ titles” (emphasis added)).
¶ 75 Timing matters. Here, given that the Merit Board had not taken any substantive
action regarding plaintiffs’ disciplinary charges prior to the filing of their lawsuit
in circuit court, we conclude that the de facto officer doctrine does not apply.
Plaintiffs were not trying to unwind or undermine any administrative determination
by the Merit Board. At the time plaintiffs filed both their original and second
amended complaints, there had been no action or judgment by the Merit Board in
plaintiffs’ proceedings to which the doctrine could confer validity. 4 Because the
de facto officer doctrine has not been—and should not be—employed as an
4
The ministerial task of accepting the disciplinary charges against plaintiffs was not an “action”
by the Merit Board. The decision to file disciplinary charges is reserved to the Sheriff alone, and
neither section 3-7012 nor the Merit Board’s rules and regulations provide that the Board can reject
written charges. Plaintiffs’ lawsuit questioned whether the Board could address those charges by
conducting discovery, preliminary hearings, hearings on the merits, and issuing decisions.
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obstacle to preclude a timely challenge to the authority of an administrative agency,
it does not justify the dismissal of plaintiffs’ complaint.
¶ 76 In light of our conclusion that the de facto officer doctrine has no bearing on
this case, we need not address defendants’ argument that the appellate court erred
in holding that the “first challenger” principle operates as an exception to the
doctrine and is applicable to plaintiffs’ claims. Courts of review will not decide
moot or abstract questions, will not review cases merely to establish precedent, and
will not render advisory opinions. Peach v. McGovern, 2019 IL 123156, ¶ 64
(citing Italia Foods, Inc. v. Sun Tours, Inc., 2011 IL 110350, ¶ 41). In addition,
reviewing courts ordinarily will not consider issues that are not critical to the
disposition of the case presented or where the result will not be affected regardless
of how the issues are decided. Id. (citing Condon v. American Telephone &
Telegraph Co., 136 Ill. 2d 95, 99 (1990)). Accordingly, we leave the applicability
of the “first challenger” principle for another day.
¶ 77 D. Plaintiffs Were Not Required to
Bring a Quo Warranto Action
¶ 78 Finally, we address the contention of defendants and the amici supporting their
position that quo warranto exists as the exclusive means to challenge the
credentials of a public officer and resolve defects in an official’s appointment or
election. According to defendants and the amici, the legislature has provided that
quo warranto actions should be brought by either the attorney general or the state’s
attorney as the sole means of protecting the collective rights of the citizenry of the
State of Illinois. See 735 ILCS 5/18-102 (West 2018).
¶ 79 Historically, quo warranto was employed to question the right of a person who
is charged with usurping, intruding into, or unlawfully holding or executing any
office and to effectuate the ouster of an illegally appointed officer. People ex rel.
Chillicothe Township, 19 Ill. 2d at 427; People ex rel. Farrington v. Whitcomb, 55
Ill. 172, 176 (1870). Furthermore, when a court finds a person guilty in a
quo warranto proceeding, the court may enter a judgment of ouster to effectuate
that person’s removal from the office. 735 ILCS 5/18-108 (West 2018); People
ex rel. Rahn v. Vohra, 2017 IL App (2d) 160953, ¶ 35; (citing People ex rel.
Courtney v. Botts, 376 Ill. 476, 480-81 (1941)). The Illinois quo warranto statute
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codifies the common law and provides that such a proceeding may be initiated by
private parties only under special circumstances. People ex rel. Graf v. Village of
Lake Bluff, 206 Ill. 2d 541, 547 (2003) (citing 735 ILCS 5/18-102 (West 2000)).
Thus, the traditional common-law writ of quo warranto and the modern statutory
scheme both demonstrate that the purpose of bringing such an action is to correct
an improper appointment or election and to achieve the ouster of a person who is
illegally occupying a public office.
¶ 80 In this case, plaintiffs did not seek to oust the allegedly improperly appointed
members of the Merit Board but, rather, to have the proceedings against them
conducted and adjudicated by a legally constituted Merit Board. Further, plaintiffs
have challenged the qualifications of all of the members of the Merit Board
established under the preamendment statute as well as the members of the “newly
appointed” Merit Board under the December 8, 2017, amended statute. As a
consequence, requiring plaintiffs to pursue their claims in quo warranto
proceedings would lead to a multiplicity of litigation involving each Merit Board
member who is alleged to occupy his or her office in violation of the Code.
Obviously, that is neither a simple solution, as amici contend, nor is it a judicially
efficient or economical means of resolving plaintiffs’ claims.
¶ 81 Moreover, a private litigant may bring a quo warranto action only with leave
of court after the attorney general and the state’s attorney have declined to do so.
735 ILCS 5/18-102 (West 2018). The decision to grant or deny a petition for leave
to file a quo warranto action falls within the discretion of the circuit court. Village
of Lake Bluff, 206 Ill. 2d at 547. Therefore, if both the attorney general and the
state’s attorney refuse to file a quo warranto action and the circuit court denies
plaintiffs leave to do so, they would have no avenue whatsoever to present their
challenges to the Merit Board’s authority. Based on the aforementioned
considerations, we conclude that bringing an action for quo warranto is not the
most effective legal action for advancing plaintiffs’ challenges. See Andrade v.
Lauer, 729 F.2d 1475, 1488 (D.C. Cir. 1984) (observing that quo warranto can be
a cumbersome procedure that could easily deprive a plaintiff with an otherwise
legitimate claim of the opportunity to have his case heard). Accordingly, plaintiffs
were not prohibited from pursuing their claims for relief in circuit court without
filing a quo warranto action. Id. at 1499 (determining that individuals must have a
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legal process available to redress specific legitimate claims).
¶ 82 III. CONCLUSION
¶ 83 In sum, we hold as follows. Plaintiffs were excused from exhausting their
administrative remedies because their claims fell within the authority exception to
the exhaustion doctrine. Accordingly, the circuit court erred in dismissing
plaintiffs’ complaint. In addition, the circuit court can adjudicate plaintiffs’ requests
for back pay and other claims because they do not fall within the particular expertise
of the Merit Board. We further hold that the doctrines of de facto officer and
quo warranto are inapplicable to plaintiffs’ challenges. Consequently, we affirm
the judgment of the appellate court and remand to the circuit court for further
proceedings on all pending claims that have not been rendered moot.
¶ 84 Appellate court judgment affirmed.
¶ 85 Circuit court judgment reversed.
¶ 86 Cause remanded.
¶ 87 JUSTICE MICHAEL J. BURKE, dissenting:
¶ 88 At almost any point in this court’s history, this court would have summarily
disposed of the type of appointment challenges that plaintiffs bring here by
applying the de facto officer doctrine. This court applied that doctrine faithfully and
consistently until it issued its fractured decision in Daniels v. Industrial Comm’n,
201 Ill. 2d 160 (2002). That decision, along with the denial of rehearing in Baggett
v. Industrial Comm’n, 201 Ill. 2d 187 (2002), and the decision in Vuagniaux v.
Department of Professional Regulation, 208 Ill. 2d 173 (2003), created confusion
over how this court viewed the de facto officer doctrine. The decision under review
today is another in a line of cases where the appellate court struggled to discern a
coherent rule from this court’s jurisprudence. Unfortunately, a majority of this court
has issued a decision that further adds to that confusion and repeats many of the
same errors that were made in Daniels and Vuagniaux. The Illinois Attorney
General and the City of Chicago have filed a brief as amici curiae arguing that this
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court should return to the traditional understanding of the de facto officer doctrine.
I agree with that position, and I therefore cannot join the majority opinion.
¶ 89 Defendants raise two issues on appeal. First, the plaintiffs should have been
required to exhaust their administrative remedies before filing an action in the
circuit court challenging the Merit Board’s composition. Second, even if there were
deficiencies in the appointment process, the de facto officer doctrine validates the
official actions of the Merit Board. Because I believe that plaintiffs cannot
challenge the appointments to the Merit Board in any collateral proceeding—either
before the Merit Board itself or in the circuit court—I am not going to dwell on the
exhaustion issue. However, I will briefly address the majority’s analysis of that
issue, as it contains some misstatements of law that are ultimately relevant to the
de facto officer question.
¶ 90 EXHAUSTION OF REMEDIES
¶ 91 The majority correctly notes that “a party aggrieved by an administrative
decision ordinarily cannot seek judicial review without first pursuing all available
administrative remedies.” Supra ¶ 37. The majority holds, however, that plaintiffs
were not required to exhaust their administrative remedies because their complaint
fell within the “authority exception” to the exhaustion of remedies doctrine. The
majority cites County of Knox ex rel. Masterson v. The Highlands, L.L.C., 188 Ill.
2d 546 (1999), for the proposition that this exception applies “ ‘ “where the
agency’s jurisdiction is attacked because it is not authorized by statute.” ’ ” Supra
¶ 41 (quoting County of Knox, 188 Ill. 2d at 552, quoting Castaneda v. Illinois
Human Rights Comm’n, 132 Ill. 2d 304, 309 (1989)). The majority then explains:
“ ‘ “ ‘The term “jurisdiction,” while not strictly applicable to an
administrative body, may be employed to designate the authority of the
administrative body to act ***.’ [Citation.] Thus, in administrative law, the term
‘jurisdiction’ has three aspects: (1) personal jurisdiction—the agency’s
authority over the parties and intervenors involved in the proceedings,
(2) subject matter jurisdiction—the agency’s power ‘to hear and determine
cases of the general class of cases to which the particular case belongs’
[citation], and (3) an agency’s scope of authority under the statutes.” ’ County
of Knox, 188 Ill. 2d at 553 (quoting Business & Professional People for the
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Public Interest v. Illinois Commerce Comm’n, 136 Ill. 2d 192, 243 (1989)).”
Supra ¶ 41.
¶ 92 As the above quote demonstrates, the authority exception applies only when the
agency acts without jurisdiction. Clearly, then, under the majority’s own test, the
plaintiffs’ complaint fails to satisfy the authority exception. First, there is no
allegation the Merit Board lacked personal jurisdiction over the parties. Second,
plaintiffs have not alleged that the Merit Board does not have the power or authority
to hear this class of cases. And, finally, the complaint does not allege that the Merit
Board exceeded its scope of authority under the statutes. The Merit Board sought
to do nothing other than adjudicate disciplinary charges against these officers.
¶ 93 The majority appears to believe that the complaint falls within the third
category, i.e., that the Merit Board exceeded its statutory authority. But, as the
majority notes, the test is whether the agency exceeded the scope of its authority
under the statutes. The complaint simply does not allege this. Rather, it alleges
defects in the composition of the board. The majority rejects defendants’ argument
that this prong of the authority exception applies only to improper rulemaking. The
majority notes that the cases relied on by defendants—Crittenden v. Cook County
Comm’n on Human Rights, 2013 IL 114876, County of Knox, 188 Ill. 2d 546, and
City of Chicago v. Fair Employment Practices Comm’n, 65 Ill. 2d 108 (1976)—
were not “premised on the administrative agencies’ promulgation of a rule or
regulation that fell outside its subject matter jurisdiction.” Supra ¶ 50. Be that as it
may, all three cases involved an allegation that an agency acted beyond the scope
of its statutory authority. Crittenden involved the Cook County Commission on
Human Rights attempting to award punitive damages when its enabling legislation
did not provide it with that authority. Crittenden, 2013 IL 114876, ¶¶ 17, 24.
County of Knox involved an allegation that a zoning board was attempting to
regulate certain agricultural land when its empowering statute did not allow it to do
so. County of Knox, 188 Ill. 2d at 554-55. Finally, City of Chicago involved the Fair
Employment Practices Commission awarding attorney fees when it did not have
statutory authorization to do so. City of Chicago, 65 Ill. 2d at 112-13. Thus, each
of these cases involved an allegation that an agency was attempting to act beyond
the scope of its statutory authority. That is not the case here, where the Merit Board
simply sought to adjudicate a disciplinary action against officers of the Cook
County Sheriff. Nothing could be more squarely within the scope of its authority.
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¶ 94 As the majority concedes, plaintiffs’ complaint challenged the composition of
the Merit Board. Supra ¶¶ 15, 45. The majority simply asserts that such an
allegation falls within the authority exception without explaining how this is so. For
instance, the majority states that “plaintiffs challenged the Merit Board’s
composition and, thus, its jurisdiction to conduct proceedings against them.”
(Emphasis added.) Supra ¶ 47. But a mere five paragraphs earlier the majority set
forth the three ways that an agency can lack jurisdiction, not one of which is that
an appointment is defective. Supra ¶ 42. In support of its contention that plaintiffs’
allegations fell within the authority exception, the majority cites four cases, none
of which involved defective appointments. See supra ¶ 47 (citing County of Knox,
188 Ill. 2d at 552, Business & Professional People for the Public Interest, 136 Ill.
2d at 245, Castaneda, 132 Ill. 2d at 309, and Office of the Lake County State’s
Attorney v. Illinois Human Rights Comm’n, 200 Ill. App. 3d 151, 157 (1990)).
¶ 95 The majority claims that plaintiffs’ allegations call into question the Merit
Board’s authority to act because, if the Merit Board is illegally constituted, then it
lacks jurisdiction to proceed, and any order entered by it would be void. Supra
¶¶ 50, 63. The majority cites Business & Professional People for the Public
Interest, 136 Ill. 2d at 243-44, and Newkirk v. Bigard, 109 Ill. 2d 28, 36 (1985),
neither of which is an appointment case, for the proposition that a decision by an
agency that lacks jurisdiction or the inherent power to make the particular order is
void and may be attacked at any time or in any court, directly or collaterally. Supra
¶¶ 50, 63. But the idea that a statutorily invalid appointment renders an agency
without jurisdiction and its orders void is a radical proposition that contradicts over
a century’s worth of this court’s case law. Indeed, if the majority’s assertion is
correct, then the de facto officer doctrine could not exist.
¶ 96 DE FACTO OFFICER DOCTRINE
¶ 97 The de facto officer doctrine holds that “[a] person actually performing the
duties of an office under color of title is an officer de facto, and his acts as such
officer are valid so far as the public or third parties who have an interest in them
are concerned.” People ex rel. Chillicothe Township v. Board of Review, 19 Ill. 2d
424, 426 (1960). It “assumes that an individual suffers no judicially cognizable
injury when he is the subject of adverse governmental action that is legitimate in
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all respects save that the official taking the action lacks lawful title to office.”
Kathryn A. Clokey, Note, The De Facto Officer Doctrine: The Case for Continued
Application, 85 Colum. L. Rev. 1121, 1122 (1985). The doctrine has feudal origins,
dating back to the 15th century. Lopez v. Dart, 2018 IL App (1st) 170733, ¶ 48. It
was first expressed in The Abbe de Fontaine, YB 9 Hen. & M. 6, fol. 32b, Mich., pl. 3
(1430) (Eng.), https://www.bu.edu/phpbin/lawyearbooks/display.php?id=17322
[https://perma.cc/63J8-W6AU]. Clokey, supra, at 1125. “Over time, the doctrine
has achieved ‘practically universal acceptance by the courts.’ ” Iowa Farm Bureau
Federation v. Environmental Protection Comm’n, 850 N.W.2d 403, 423 (Iowa
2014) (quoting Herbst v. Held, 190 N.W. 153, 155 (Iowa 1922)).
¶ 98 This court adopted the doctrine in Schlenker v. Risley, 4 Ill. 483, 485 (1842),
and applied it faithfully for more than 150 years. See, e.g., Chillicothe Township,
19 Ill. 2d at 426 (“A person actually performing the duties of an office under color
of title is an officer de facto, and his acts as such officer are valid so far as the public
or third parties who have an interest in them are concerned); People v. O’Neill, 33
Ill. 2d 184, 187 (1965) (“We think it is clear beyond question that the members of
the Peoria County board of supervisors were at least de facto officers within the
traditional definition of Lavin v. Board of Commissioners of Cook County, 245 Ill.
496, 505-06 [(1910)]. Their acts in levying, extending and collecting taxes cannot
therefore be attacked because of some alleged defect in the apportionment of their
membership.”); People ex rel. Rusch v. Wortman, 334 Ill. 298, 302 (1928) (“The
courts uniformly hold that the acts of officers de facto, so far as they affect third
parties or the public, are as valid as those of officers de jure.”); Stott v. City of
Chicago, 205 Ill. 281, 286 (1903) (acts of a de facto officer are valid so far as the
rights of the public or of third persons having an interest in such acts); People ex rel.
Stuckart v. Knopf, 183 Ill. 410, 413 (1900).
¶ 99 The reason for this rule was expressed long ago in Barlow v. Standford, 82 Ill.
298, 302 (1876), where this court stated:
“An officer de facto is defined to be one who has the reputation of being the
officer he assumes to be, in the exercise of the functions of the office, and yet
is not a good officer in point of law. The official acts of such an officer are
always regarded as worthy of full faith and credit. Any other rule would be
disastrous to public interests.” (Emphasis added.)
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The United States Supreme Court has explained that
“ ‘[t]he de facto doctrine springs from the fear of the chaos that would result
from multiple and repetitious suits challenging every action taken by every
official whose claim to office could be open to question, and seeks to protect
the public by insuring the orderly functioning of the government despite
technical defects in title to office.’ ” Ryder v. United States, 515 U.S. 177, 180
(1995) (quoting 63A Am. Jur. 2d, Public Officers and Employees § 578, at
1080-81 (1984)).
See also Clokey, supra, at 1131 (“[w]ithout the doctrine, uncertainty would cloud
every action taken by officials who had not previously demonstrated perfect title”).
As the Supreme Court of North Carolina explained in In re Wingler, 58 S.E.2d 372,
376 (N.C. 1950):
“The de facto doctrine is indispensable to the prompt and proper dispatch
of governmental affairs. Endless confusion and expense would ensue if the
members of society were required to determine at their peril the rightful
authority of each person occupying a public office before they invoked or
yielded to his official action. An intolerable burden would be placed upon the
incumbent of a public office if he were compelled to prove his title to his office
to all those having occasion to deal with him in his official capacity. The
administration of justice would be an impossible task if every litigant were
privileged to question the lawful authority of a judge engaged in the full
exercise of the functions of his judicial office.”
¶ 100 In People ex rel. Hicks v. Lycan, 314 Ill. 590 (1924), this court specifically
addressed whether the official acts of an improperly constituted board of review
were void. In that case, a taxpayer raised a challenge about the political composition
of a board of review. The relevant statute required that each county board of review
“consist of two members affiliated with the political party polling the highest vote
and one member of the party polling the second highest vote at the general election
in the county prior to the time any appointment is made.” Id. at 592. The Edgar
County Board of Review was improperly composed of one member of the party
polling the highest vote and two members of the party polling the second highest
vote. This court held:
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“This fact did not, however, make the action of the board of review so
constituted void. A person actually performing the duties of an office under
color of title is an officer de facto, and his acts as such officer are valid so far
as the public or third parties who have an interest in them are concerned.
(People v. Lieb, 85 Ill. 484; People v. Bangs, 24 [Ill.] 184; Leach v. People, 122
[Ill.] 420.) Whether the board of review was legally constituted or not, the
persons acting as such board were performing the duties of the board with
apparent right under color of office, and their acts were valid as to the public
and persons having an interest in them.” (Emphasis added.) Id. at 593.
The majority is simply wrong when it states that any actions of the Merit Board
would be void if it was improperly constituted. Supra ¶¶ 50, 63.
¶ 101 This court has further held that a de facto officer’s authority continues until he
or she is removed by a proper authority in a quo warranto proceeding. In Samuels
v. Drainage Commissioners, 125 Ill. 536 (1888), the defendants argued that a
drainage assessment had been made by commissioners who were neither officers
de jure nor de facto and that therefore the assessments were void. This court
rejected that argument, explaining:
“The legislature, by statute, has created, under constitutional authority, such an
officer as commissioner of drainage districts. It is alleged the ‘Central Special
Drainage District,’ in Mason county, was duly organized under the act of the
General Assembly, in force July 1, 1885, and that afterwards petitioners were
elected commissioners, and that they entered upon their duties as such, and are
now acting. The default of defendants admits these allegations of the bill, and
the court found, from the evidence, such was the fact. There being such an
office, and petitioners having assumed the duties of such office, and now acting
commissioners of the drainage district, they are de facto officers, and their
official acts will be held to be valid until their right to exercise the duties of
such office is called in question by quo warranto, and they shall be dispossessed
of all power under the statute.” Id. at 540.
Here, the offices of the Merit Board members have not been called into question by
quo warranto, and thus their official acts are valid.
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¶ 102 This court first began to stray from the traditional understanding of the de facto
officer doctrine in Daniels, 201 Ill. 2d 160. The idea that an improper appointment
would render all the acts of an agency void was first introduced by two justices of
this court in the lead opinion in Daniels. The lead opinion held that the invalid
appointment of two members of the Industrial Commission (Commission) was void
and a nullity from its inception. Id. at 165. Thus, the lead opinion held that the
Commission’s actions could be attacked at any time, in any court, either directly or
collaterally. Id. at 166. 5 This court vacated the Commission’s award and remanded
for a decision by a legally constituted panel. The lead opinion rejected application
of the de facto officer doctrine on the following basis:
“Finally, we reject the Commission’s claim that the decision in this case can
be validated on the grounds that Kane and Reichart were de facto officers. The
doctrine recognizing de facto public officers prevents third parties or members
of the public from raising collateral challenges to a public officer’s
qualifications to hold office if considerations of public policy require the
officer’s acts to be considered valid. See People ex rel. Rusch v. Wortman, 334
Ill. 298, 301-02 (1928). No considerations of public policy militate in favor of
preventing workers’ compensation claimants from challenging the legal status
of the commissioners who passed on their claims where, as here, the challenge
is raised on direct review of the workers’ compensation award and the
commissioners were appointed in a manner that threatens the Act’s basic
objectives.” Id. at 166-67.
In other words, according to the lead opinion in Daniels, the way the de facto officer
doctrine works is that the court asks in every case in which the issue arises whether
it can identify a specific public policy reason to apply it. Only if the court can
identify such a specific public policy will it apply the doctrine. This position has no
foundation in this court’s jurisprudence, and it is not even supported by the one
5
Justices McMorrow and Freeman concurred in the result but did not agree with the lead opinion
that the participation of invalidly appointed commissioners rendered the Commission’s decisions
void. Daniels, 201 Ill. 2d at 173 (McMorrow, J., specially concurring, joined by Freeman, J.) The
specially concurring justices agreed that the de facto officer doctrine validated the Commission’s
decisions. Id. These justices, however, would have granted Daniels relief on the more limited basis
that he was the party that brought the illegalities to light. Thus, the concurring justices would have
allowed Daniels relief but no others who raised the same challenge. Id. at 176.
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decision cited in the lead opinion. Wortman did not hold that a court makes a case-
by-case determination of whether an identifiable public policy supports application
of the de facto officer doctrine. Rather, the Wortman court held:
“The law validates the acts of de facto officers as to the public and third persons
upon the ground, though not officers de jure, they are in fact officers whose acts
public policy requires should be considered valid. [Citations.]
The courts uniformly hold that the acts of officers de facto, so far as they
affect third parties or the public, are as valid as those of officers de jure.”
Wortman, 334 Ill. at 301-02.
In other words, Wortman held that there is a general public policy validating the
acts of de facto officers. The position of the Daniels lead opinion cannot be squared
with more than a century’s worth of this court’s case law. Justice Fitzgerald was
correct in his dissent in Daniels that the Commission’s award should have been
upheld because the invalidly appointed commissioners were de facto officers.
Daniels, 201 Ill. 2d at 178-81 (Fitzgerald, J., dissenting). The notion that the acts
of an improperly constituted agency are void cannot be reconciled with this court’s
case law, and this position has not been subscribed to by a majority of this court.
¶ 103 The lead opinion in Daniels also misunderstood the difference between
collateral and direct challenges for purposes of the de facto officer doctrine. As
noted above, the Daniels lead opinion recognized that members of the public or
third parties could not raise collateral challenges to a public officer’s qualifications
to hold office. Id. at 166 (lead opinion). It then noted that, in the case before it, the
challenge was raised on direct review of the commission’s award. Id. at 166-67.
However, for purposes of an officeholder’s right to hold office, the terms “direct
attack” and “collateral attack” have specialized meanings. As properly stated by the
appellate court in Lopez, 2018 IL App (1st) 170733, ¶ 49:
“Because at its core the doctrine limits the ability of a plaintiff ‘to challenge
governmental action on the ground that the officers taking that action are
improperly in office’ (Andrade, 729 F.2d at 1493-94), the doctrine operates in
a way that distinguishes between ‘direct’ and ‘collateral’ attacks on an officer’s
authority. SW General, Inc. v. National Labor Relations Board, 796 F.3d 67,
81 (D.C. Cir. 2015) (citing Andrade, 729 F.2d at 1496). A collateral attack
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challenges ‘government action on the ground that the officials who took the
action were improperly in office.’ (Emphasis in original and internal quotation
marks omitted.) Id. A direct attack by contrast, challenges ‘the qualifications of
the officer rather than the actions taken by the officer.’ (Emphasis in original
and internal quotation marks omitted.) Id. Under the traditional de facto officer
doctrine, only direct attacks are permitted and must be brought via a writ of quo
warranto. Id.; see also Vuagniaux, 208 Ill. 2d at 187 (‘Pursuant to the doctrine,
litigants may not assert collateral challenges to the officer’s qualifications to
hold office as a means of contesting the legality of the officer’s acts.’).”
(Emphasis in original.)
See also Clokey, supra, at 1124 (the de facto officer doctrine “bars collateral title
challenges—that is, attempts to litigate title via an attack on the actions taken, rather
than in a direct action where the sole issue is validity of title. Official titles may be
challenged directly through the statutorily prescribed quo warranto action.”).
¶ 104 The challenge in Daniels was clearly collateral. Daniels did not involve a
quo warranto proceeding to remove the invalidly appointed commissioners from
office. Rather, Daniels was trying to undo the Commission’s award in his case
because it had been entered by an improperly constituted panel. The issue in
Daniels’s case was whether he was entitled to compensation, not whether the
Commission’s members had been validly appointed, and the individual
commissioners were not parties in Daniels’s case. This was a textbook collateral
challenge. The lead opinion appears to have been thrown off track because the issue
was first raised on direct review. But this is an entirely different concept, and it did
not transform Daniels’s challenge to the Commission’s authority into a direct one.
See Daniels, 201 Ill. 2d at 184 (Thomas, J., dissenting, joined by Fitzgerald and
Garman, JJ.) (“some confusion is bound to creep in whenever the same adjective
precedes two distinct legal concepts”).
¶ 105 The court next considered the de facto officer doctrine in Vuagniaux. That case
involved a chiropractor, Thad Vuagniaux, who was reprimanded by the Department
of Professional Regulation (Department) for violating a provision of the Medical
Practice Act of 1987 (225 ILCS 60/26 (West 1998)). Vuagniaux, 208 Ill. 2d at 178.
In the disciplinary proceeding before the Department’s Medical Disciplinary
Board, Vuagniaux moved to exclude the sole chiropractic member on the Medical
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Disciplinary Board, Lacy Cook, on the basis that she would be prejudiced against
him and the chiropractic theories that he followed. Id. at 181-82. The administrative
law judge found that Cook was not prejudiced but agreed to grant Vuagniaux’s
motion. Id. at 182. After Cook was excluded, the Department moved to appoint a
“Special Chiropractor” to the Medical Disciplinary Board so that it would include
at least one chiropractic member when it considered Vuagniaux’s case. Id. The
Medical Disciplinary Board granted the motion and appointed Roger Pope to serve
on the Medical Disciplinary Board for the purposes of Vuagniaux’s case. Id.
Vuagniaux objected to Pope’s appointment on the basis that it violated the Medical
Practice Act’s requirement that appointments to the Medical Disciplinary Board are
to be made by the governor with the advice and consent of the Senate. Id. The
objection went unheeded. Id. The Medical Disciplinary Board recommended a fine
and a reprimand. The Department’s director adopted the recommendation, and the
Department issued a reprimand and ordered Vuagniaux to pay a $2500 fine. Id. at
183.
¶ 106 On administrative review, the circuit court set aside the Department’s decision
and dismissed the complaint. Id. at 184. Among the reasons that the court dismissed
the complaint were that the appointment of Pope was not authorized by law and
was unconstitutional and that the statutory composition of the Medical Disciplinary
Board violated due process and equal protection. Id. The Department appealed
directly to this court based on the circuit court’s ruling that portions of the Medical
Practice Act were unconstitutional. Id. This court determined, inter alia, that
Pope’s unlawful appointment meant the Medical Disciplinary Board was not
lawfully constituted at the time it recommended that Pope be reprimanded. Id. at
186. Thus, this court held that the Department’s decision was invalid because it was
based on recommendation of a board that was not lawfully constituted. Id.
¶ 107 This court noted that the Department had not argued that the de facto officer
doctrine validated the Medical Disciplinary Board’s recommendation. Id.
Nevertheless, this court went on to explain why it believed that the de facto officer
doctrine would not apply:
“Under the de facto officer doctrine, a person actually performing the duties of
an office under color of title is considered to be an officer de facto, and his acts
as such an officer are valid so far as the public or third parties who have an
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interest in them are concerned. People ex rel. Chillicothe Township v. Board of
Review, 19 Ill. 2d 424, 426 (1960). Pursuant to the doctrine, litigants may not
assert collateral challenges to the officer’s qualifications to hold office as a
means of contesting the legality of the officer’s acts. Daniels v. Industrial
Comm’n, 201 Ill. 2d at 174 (McMorrow, J., specially concurring, joined by
Freeman, J.).
The case before us does not involve the effects of an officer’s acts on a
member of the public or a third party, and the officer’s qualifications to act are
not being contested in a collateral proceeding. The challenge to Pope’s authority
to act as a member of the Board was raised in the proceeding in which Pope
was appointed, at the time the appointment was made, by a doctor whose case
was directly affected by the appointment, to the tribunal responsible for
considering the disciplinary charges against the doctor, and before the tribunal
considered the doctor’s case on the merits or made its recommendations. The
de facto officer doctrine is therefore inapplicable.” (Emphasis added.) Id. at
186-87.
¶ 108 The majority asserts that Vuagniaux stands for the proposition that, “before
being subjected to an administrative proceeding, a party should have some avenue
to timely question and verify that the agency has authority to act.” Supra ¶ 73. The
decision is much narrower than that. In Vuagniaux, the Medical Disciplinary Board
member who was challenged was appointed in that specific proceeding solely for
the purpose of hearing that one case, and his appointment was challenged in that
proceeding at the time it was made. This is a circumstance that will rarely occur.
¶ 109 Moreover, certain statements in Vuagniaux could cause confusion if applied
outside the context of the unusual facts of that case. Vuagniaux was challenging the
authority of the Medical Disciplinary Board to act in his case because of an
unlawful appointment. Typically, this is a collateral attack that is barred by the
de facto officer doctrine. Nevertheless, a quo warranto proceeding would not have
made sense, as the appointment was made solely for the purpose of deciding this
one case. Moreover, as the appointment was literally made in that case and the
challenge was made at the time of the appointment, the facts do not fit comfortably
into the typical direct-versus-collateral-attack dichotomy. Similarly, Vuagniaux’s
statement that Vuagniaux was not a third party could cause confusion if applied in
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a different context. Vuagniaux said that the case before it did not involve the
officer’s acts on a member of the public or a third party but rather on a doctor whose
case was directly affected by the appointment. Vuagniaux, 208 Ill. 2d at 187. But,
in a typical de facto officer situation, a person in Vuagniaux’s position would
unquestionably be a third party. For purposes of the de facto officer doctrine, the
first party is the officeholder, and the second party is the State. David M. Lawrence,
The Law of De Facto Officers, 124 U.N.C. Sch. Gov’t, at 2 n.1 (2010). “A person,
though, who applies to a de facto officer for specific action or who is the subject of
action by a de facto officer is clearly not a second party.” Id.
¶ 110 Our case law bears this out. In Lycan, the person who brought a challenge to
the composition of the board of review was a taxpayer who was contesting an
assessment imposed by the board. His objections to the board’s composition were
made in the proceeding in which he objected to the assessment. This court rejected
his challenge on the basis that the board members were officers de facto and
therefore their acts were valid so far as third parties or members of the public were
concerned. Lycan, 314 Ill. at 593. Thus, a person who is the subject of action taken
by a board is typically considered a third party for purposes of the de facto officer
doctrine. To the extent that Vuagniaux was not a third party, it was only because
under the unique facts of that case a quo warranto action would not have made
sense.
¶ 111 Neither Daniels nor Vuagniaux provides any reason for this court to stray from
the traditional understanding of the de facto officer doctrine. No position in Daniels
garnered a majority of the court, and Vuagniaux set forth a narrow holding
applicable to unusual facts. Moreover, the lead opinion in Daniels contained
significant misstatements of law that cannot be reconciled with this court’s cases or
the common-law de facto officer doctrine.
¶ 112 Unfortunately, the majority has chosen to repeat the mistakes of Daniels and to
broaden Vuagniaux’s holding rather than apply the de facto officer doctrine in the
manner this court did for more than a century. The majority states:
“Significantly, the de facto officer doctrine is applied as a defense to an
attack on the acts of an officer or appointee in a collateral proceeding. Daniels,
201 Ill. 2d at 166 (citing People ex rel. Rusch v. Wortman, 334 Ill. 298, 301-02
(1928)). The initiation of a collateral proceeding necessarily requires a prior act
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or judgment that is, or may be, subject to attack. See generally Black’s Law
Dictionary 329 (11th ed. 2019) (defining ‘collateral attack’ as ‘[a]n attack on a
judgment in a proceeding other than a direct appeal’). Thus, the legal concept
of a collateral attack presumes that some official act or decision has occurred.”
Supra ¶ 72.
Rather than citing or discussing any of the cases or secondary authorities that have
explained the difference between a direct and collateral proceeding for the purposes
of the de facto officer doctrine, the majority simply cites the Black’s Law
Dictionary definition of “collateral attack.” However, this definition does not help
the majority. Applying that definition, the majority holds that this cannot be a
collateral attack because no official act or decision has occurred. But what is being
attacked are the appointments to the Merit Board, and these have occurred. If the
right of these Merit Board members to hold office were being challenged in a quo
warranto action, that would be a direct attack. Here, plaintiffs are arguing that
allegedly invalid appointments deprive the Merit Board of the right to act in their
disciplinary proceedings. This attack on their office is unquestionably collateral.
See Lopez, 2018 IL App (1st) 170733, ¶ 49; see also Pietryla v. Dart, 2019 IL App
(1st) 182143, ¶ 13 (challenging actions of Merit Board on the basis of invalid
appointments is a “quintessential collateral attack that is ordinarily barred by the
de facto officer doctrine”); Clokey, supra, at 1124.
¶ 113 The majority further holds that the de facto officer doctrine does not apply
because plaintiffs raised their challenge before the Merit Board took any action in
their case. Supra ¶ 75. But, as already explained above, this court has held that
de facto officers retain authority to act until “their right to exercise the duties of
such office is called in question by quo warranto, and they shall be dispossessed of
all power under the statute.” Samuels, 125 Ill. at 540. Quo warranto is the proper
procedure to raise challenges to an officer’s title. See Osborn v. People ex rel.
Lewis, 103 Ill. 224, 228 (1882) (alleged improper organization of drainage district
could be challenged only by quo warranto; court explains this “must be so,”
otherwise “[e]very proceeding before tribunals and officers, if permitted, would
lead to an inquiry whether they were legally acting”); Lawrence, supra, at 2 (“[t]he
procedural element of the [de facto officer] doctrine holds that a court will not allow
a collateral attack on the status of an apparent officeholder but will hear such a
challenge only in a direct action in the nature of quo warranto”); Clokey, supra, at
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1124 (“[t]he de facto officer doctrine does not entirely insulate official titles from
judicial scrutiny. It merely bars collateral title challenges—that is, attempts to
litigate title via an attack on the actions taken, rather than in a direct action where
the sole issue is validity of title. Official titles may be challenged directly through
the statutorily prescribed quo warranto action”). No quo warranto proceeding was
brought against the members of the previous Merit Board, nor has one been brought
against the members of the current Merit Board.
¶ 114 In Illinois, the quo warranto procedure is set forth in article XVIII of the Code
of Civil Procedure. 735 ILCS 5/18-101 et seq. (West 2018). The statute allows an
action in quo warranto whenever “[a]ny person usurps, intrudes into, or unlawfully
holds or executes any office, or franchise, or any office in any corporation created
by authority of this State.” Id. § 18-101(1). The action is brought in the name of the
People of the State of Illinois by either the attorney general or the state’s attorney
of the proper county. Id. § 18-102. An interested citizen wishing to bring an action
must first ask the attorney general or state’s attorney to bring the action. If the
attorney general or state’s attorney refuses or fails to act, the citizen may bring the
action after providing notice to the attorney general, the state’s attorney, and the
adverse party and receiving leave of court. Id. As Presiding Justice Schmidt noted
in his dissent in Watson v. Waste Management of Illinois, Inc., 363 Ill. App. 3d
1101, 1106-07 (2006) (Schmidt, P.J., dissenting):
“It seems clear from the quo warranto statute that the legislature intended
to limit the ability of private individuals to file suit challenging the right of one
to hold public office. There can be no doubt that the statute requires a would-
be-private plaintiff to jump through enough hoops to fatigue an Olympic
gymnast. The intent is clear. If all of this can be avoided by simply filing a
declaratory judgment action, the quo warranto statute is meaningless. It would
seem that both the common law and the quo warranto statute were born of the
commonsense recognition that it is not in the public interest to allow
individuals, without restriction, to file lawsuits challenging the authority of
public officials to act. Such lawsuits, in sufficient number, could easily paralyze
or bankrupt a unit of government. Any suit challenging the right of an elected
public official to act must be brought in quo warranto. See People ex rel.
Turner v. Lewis, 104 Ill. App. 3d 75, 432 N.E.2d 665 (1982); People ex rel.
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Freeport Fire Protection District v. City of Freeport, 90 Ill. App. 3d 112, 412
N.E.2d 718 (1980).”
¶ 115 The majority contends that plaintiffs should not have to proceed in quo
warranto because they want to challenge all the members of the previous Merit
Board as well as all the members of the current Merit Board. Supra ¶ 80. Thus,
according to the majority, quo warranto would not be a judicially efficient or an
economical means of resolving plaintiffs’ claims. The statute, however, contains
no language indicating that it does not apply where a person wishes to challenge
more than one officeholder. The majority also notes that, if the attorney general and
the state’s attorney refused to act and if the circuit court denied plaintiffs leave to
file, then plaintiffs would have no avenue to challenge the Merit Board’s authority.
According to the majority, this is unacceptable because “individuals must have a
legal process available to redress specific legitimate claims.” Supra ¶ 81. But the
possibility of the state’s attorney and attorney general refusing to act and the circuit
court denying leave to file exists in every quo warranto case. If the majority is
correct that this possibility means that a plaintiff can simply ignore the quo
warranto statute, then the majority has rendered the statute a dead letter.
¶ 116 Moreover, the majority’s belief that the plaintiffs have suffered an injury that
needs redress is entirely speculative. As noted earlier, the de facto officer doctrine
“assumes that an individual suffers no judicially cognizable injury when he is the
subject of adverse governmental action that is legitimate in all respects save that
the official taking the action lacks lawful title to office.” Clokey, supra, at 1122.
The reason that collateral challenges to title are usually barred is that title
requirements generally protect public, rather than private, interests. Id. at 1129-30.
“The challenger, in most cases, can demonstrate only a speculative connection
between the title defect and the action taken. While the de facto officer would
not have taken this particular action if he had not been installed in office, there
is no indication that the impact on the individual would have been any different
if the acting official had held perfect title.” Id. at 1130.
¶ 117 As Justice McMorrow noted in her special concurrence in Daniels, there can be
situations in which a statute’s appointment procedures are designed to protect
individuals subject to the officer’s authority, and in these situations the de facto
officer doctrine should not apply:
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“It also has been held that the de facto officer doctrine should not be invoked
when an officer’s appointment is in violation of a statute and the officer lacks
certain qualifications which were statutorily required for the benefit and
protection of the individual subject to the officer’s authority. See, e.g., United
States v. Beltran, 306 F. Supp. 385 (N.D. Cal. 1969) (statutory requirement that
draft status be determined by ‘neighbors’ was held sufficiently important to
allow draft resister to challenge qualifications of draft board members).”
Daniels, 201 Ill. 2d at 175 (McMorrow, J., specially concurring, joined by
Freeman, J.).
Justice McMorrow did not believe that this exception precluded application of the
de facto officer doctrine to the Industrial Commission appointments at issue in that
case. Id.
¶ 118 Neither should that exception apply to the challenges at issue here. Taylor v.
Dart, 2017 IL App (1st) 143684-B, ¶ 37, held that an interim appointment to the
Merit Board was not authorized under section 3-7002 the Counties Code (55 ILCS
5/3-7002 (West 2012)). Accordingly, the court held that the Merit Board’s decision
in that case had to be vacated and the cause remanded for a new hearing before a
lawfully constituted board. Taylor, 2017 IL App (1st) 143684-B, ¶ 46. But the
legislature then amended the statute to allow for interim appointments. See Pub.
Act 100-562, § 5 (eff. Dec. 8, 2017) (amending 55 ILCS 5/3-7002). Clearly, then,
the previous disallowance of interim appointments was not for the benefit and
protection of deputy sheriffs who appear before the Merit Board. It is difficult to
see how deputy sheriffs would be in any way prejudiced by appearing before a
board that either did or did not have members who were appointed for less than six-
year terms. Similarly, it is difficult to see how provisions setting forth the number
of Merit Board members or providing for staggered terms could be considered
enacted for the benefit of deputy sheriffs who appear before the Merit Board. And
this court has already applied the de facto officer doctrine to a situation where a
party challenged the political composition of a board. See Lycan, 314 Ill. at 593.
Thus, the types of challenges plaintiffs bring here would not fit into the exception
to the de facto officer doctrine noted by Justice McMorrow in Daniels. The
majority has not even tried to argue that the statutory appointment procedures at
issue were designed to protect deputy sheriffs who appear before the Merit Board,
nor has the majority made the case that plaintiffs would be prejudiced by having
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their cases adjudicated by this Merit Board. I thus see no reason not to apply the
de facto officer doctrine.
¶ 119 That leaves only the question of whether this court should recognize a “first
challenger” exception to the de facto officer doctrine. In her Daniels special
concurrence, Justice McMorrow argued that, although the de facto officer doctrine
operated to validate the actions of the unlawfully appointed commissioners, the
party before the court should still be granted a new hearing before a lawfully
constituted panel. Daniels, 201 Ill. 2d at 176-77 (McMorrow, J., specially
concurring, joined by Freeman, J.) Justice McMorrow believed that such a rule
would give parties an incentive to bring illegal appointments to light, while still
preserving the public’s interest in “preserving the validity of a large multitude of
commission decisions.” Id. at 176. The Appellate Court, First District, has since
adopted the first challenger exception. See Lopez, 2018 IL App (1st) 170733, ¶ 58.
The exception, however, has never been explicitly endorsed by more than two
members of this court. Justice Thomas speculated in his dissent from denial of
rehearing in Baggett 201 Ill. 2d at 205 (Thomas, J., dissenting upon denial of
rehearing, joined by Fitzgerald and Garman, JJ.), that the majority was denying the
petition for rehearing on the basis that it had accepted the first challenger exception.
Nevertheless, the majority in Baggett did not state why it was denying the petition
for rehearing. The court in Bless v. Cook County Sheriff’s Office, No. 13 C 4271,
2019 WL 4345337, *9 (N.D. Ill. Sept. 12, 2019), warned against reading too much
into Baggett’s denial of rehearing and pointed out that “there is little indication that
Justice McMorrow’s first-challenger principle has been accepted by more than two
Justices on the Illinois Supreme Court.”
¶ 120 This court should not adopt the first challenger exception. The case against the
exception was thoroughly made by Justice Thomas in his dissent from denial of
rehearing in Baggett and need not be repeated in detail here. See Baggett, 201 Ill.
2d at 204-09 (Thomas, J., dissenting upon denial of rehearing, joined by Fitzgerald
and Garman, JJ.). In Bless, the court noted that “Justice Thomas’s concerns about
the rule’s unintended consequences help explain the Appellate Court’s recent
struggles to fashion a consistent and equitable rule.” Bless, 2019 WL 4345337, *9.
In sum, the exception violates the principle that identically situated litigants be
treated alike (Baggett, 201 Ill. 2d at 205 (Thomas, J., dissenting, joined by
Fitzgerald and Garman, JJ.)) and requires this court to breach its “fundamental duty
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to ensure that the law is administered fairly and equally” (id. at 209). Moreover,
determining who is a “first challenger” is fraught with difficulty (id. at 208), and
the “incentives” rationale endorsed by Justice McMorrow is problematic because
most litigants who attempt to bring illegal appointments to light will not get relief
(id. at 207-08). Finally, “[l]itigation is not a raffle, and appellate relief should not
be a door prize.” Id. at 208. For all these reasons, this court should not endorse a
first challenger exception.
¶ 121 CONCLUSION
¶ 122 The de facto officer doctrine, as it existed in this state for more than a century,
mandates dismissal of plaintiffs’ complaint. Nothing in this court’s decisions in
Daniels or Vuagniaux requires us to depart from the traditional understanding of
the de facto officer doctrine. Even if one or more of plaintiffs’ challenges are well
founded, the members of the Merit Board are at least de facto officers, and none of
them have been challenged in a quo warranto proceeding. No exception to the
de facto officer doctrine applies on these facts. Accordingly, the Merit Board had
the lawful authority to render decisions in plaintiffs’ cases. I would reverse the
appellate court.
¶ 123 JUSTICES GARMAN and THEIS join in this dissent.
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