Denham v. Dart , 2023 IL App (1st) 220745-U ( 2023 )

2023 IL App (1st) 220745-USECOND DIVISION
January 31, 2023
No. 1-22-0745
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
HOWARD DENHAM, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 2020 L 10893
)
THOMAS J. DART, in his official capacity as Sheriff )
of Cook County, and COOK COUNTY, ILLINOIS, ) Honorable
) Thomas More Donnelley,
Defendants-Appellees. ) Judge Presiding.
______________________________________________________________________________
JUSTICE HOWSE delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Ellis concurred in the judgment.
ORDER
¶1 Held: We affirm in part and reverse in part the judgment of the circuit court of Cook
County granting defendants’ motion to dismiss plaintiff’s complaint for violations of the
Illinois Whistleblower Act; the Administrative Review Law and pending administrative
proceedings require plaintiff to exhaust his administrative remedies as to specific claims
consigned to administrative review but plaintiff’s complaint for other claims raised under
the Illinois Whistleblower Act are within the circuit court’s subject matter jurisdiction
despite the existence of administrative proceedings.
¶2 Plaintiff, Howard Denham, filed a complaint against defendants, Thomas J. Dart in his
official capacity as Sheriff of Cook County and Cook County, Illinois for violations of the
Illinois Whistleblower Act (IWA) (740 ILCS 174/1 et seq. (West 2020)) based on defendant
Dart’s suspension of plaintiff without pay and efforts to terminate plaintiff allegedly because of
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emails plaintiff sent “to local government authorities and investigative news outlets requesting,
inter alia, that an investigation be conducted into Sheriff Dart being involved in a potential
domestic battery *** and discussing information circulating in person and on the internet about
such an incident,” in violation of Section 15 (count II) and section 20.1 (count III) of the IWA.1
Defendants moved to dismiss plaintiff’s complaint on the ground the circuit court of Cook
County lacked subject matter jurisdiction over plaintiff’s claims owing to the Cook County
Sheriff’s Office Merit Board’s “original subject matter jurisdiction over the pending disciplinary
dispute between the Sheriff and Plaintiff.” Following a hearing, the circuit court of Cook County
granted defendants’ motion to dismiss based on lack of subject matter jurisdiction. The court
held that the complaint was filed prematurely because plaintiff “only seeks relief from the
disciplinary actions against him” which “the Merit Board has exclusive authority over,” and
plaintiff filed the complaint before he exhausted his remedies before the Merit Board.
¶3 For the following reasons, we affirm in part and reverse in part, and remand for further
proceedings.
¶4 BACKGROUND
¶5 Inasmuch as this appeal is from an order dismissing a complaint the following facts are
taken from plaintiff’s well-pled allegations. 2 On October 13, 2020, at the time of filing the
1
Plaintiff’s complaint also sought administrative review of his claim to the Illinois Department of
Employment Security for which he was denied unemployment benefits, but that claim is not a part of this
appeal.
2
“In ruling on a section 2-619 motion to dismiss, a court must interpret the pleadings and
supporting materials in the light most favorable to the nonmoving party. [Citation.] ‘[A] court must accept
as true all well-pled facts in the plaintiff’s complaint and any reasonable inferences that arise from those
facts.’ [Citation.]” Omega Demolition Corp. v. Illinois State Toll Highway Authority, 2022 IL App (1st)
210158, ¶ 39.
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complaint, plaintiff remained employed as a Cook County Correctional Officer but on or about
December 8, 2019, defendant Cook County Sheriff Dart suspended plaintiff without pay and
placed him on administrative leave pending a termination hearing before the Cook County
Sheriff’s Merit Board (Merit Board or Board). The reason for the suspension and termination
proceeding was that plaintiff allegedly sent emails to local government authorities and news
agencies accusing Dart of being involved in a domestic battery, “discussing information
circulating” in public about “such and incident,” and requesting an investigation. However,
plaintiff claimed plaintiff had reasonable cause, based on certain facts, to believe that Dart had
engaged in a domestic battery at his home; that a “cover-up of the allegations was occurring;”
and that the occurrence and “cover-up” constituted “violations of federal, state, and/or local
laws.” Plaintiff sent the emails to “law enforcement agencies, investigative agencies, and media
*** external to the Sheriff’s Office,” and representatives of the Cook County Sheriff’s Office
which is also a law enforcement agency. Plaintiff alleges that plaintiff was “disclosing or
attempting to disclose public corruption or wrongdoing when he sent [the] email[s].” Plaintiff’s
complaint alleges that in “direct retaliation for Plaintiff’s protected reporting, Dart suspended
Plaintiff without pay and sent him to the Merit Board for termination.”
¶6 Plaintiff’s complaint sought the following specific relief, which is pivotal to the
disposition of this appeal:
“(1) rescind Plaintiff’s suspension without pay and reinstate him to his
prior position with the same seniority status with full back pay, benefits, pension
service credits and contributions, and other make whole relief with pre-judgment
interest;
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(2) pay damages to Plaintiff for actual, general, special, compensatory
damages, including emotional distress and reputational damage;
(3) pay compensation for all damages sustained as a result of Defendants’
violations, including litigation costs, expert witness fees, and reasonable
attorney’s [sic] fees;
(4) order Defendants to cease and desist from terminating and retaliating
against the Plaintiff in contravention of his state law whistle-blowing rights; and
(5) order such other relief as this Court deems just and proper.”
¶7 On November 30, 2021, defendants filed a motion to dismiss plaintiff’s complaint based
on “want of subject matter jurisdiction and in deference to the original jurisdiction of *** [the]
case pending *** before the [Merit Board.]” Defendants’ motion asserted that the Merit Board is
“an administrative agency with exclusive jurisdiction to try and [to] resolve disciplinary disputes
between the Sheriff and correctional officers,” and that “circuit courts lack original jurisdiction
over disputes assigned in the first instance to an agency.” Defendants argued the Administrative
Review Law is strictly construed to bar claims in the circuit court “seeking to attack or interfere
with administrative agency action” and plaintiff’s complaint “runs afoul of the settled statutory
regime assigning original jurisdiction *** to the Merit Board” because the complaint “attacks a
disciplinary complaint the Sheriff filed against [plaintiff] in the Merit Board.”
¶8 According to defendants, plaintiff is in effect asking the circuit court to “decide the
merits of the disciplinary charges against him.” Instead, defendants argued, plaintiff “must
complete his case at the Merit Board and exhaust all his remedies in the agency before filing suit
against the Sheriff in circuit court.” (As this disposition will later demonstrate, ironically,
defendants argue plaintiff “cannot tack on causes of action under the [IWA] to his
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[Administrative Review Law] claim” because “a cause of action in the circuit court after
exhausting all administrative remedies is limited to bringing a one-count cause of action under §
3-102 of the [Administrative Review Law,] which bars other statutory or common law claims
and limits circuit court review to determining whether the agency was arbitrary, unreasonable
or acted against the manifest weight of the evidence.” Thus plaintiff “cannot proceed with his
claims under the [IWA,] which sound outside the [Administrative Review Law] and are
precluded by § 3-102 [thereof.]” (Emphasis added.)) Defendants asked the circuit court to
dismiss plaintiff’s complaint for want of subject matter jurisdiction and require plaintiff to
exhaust his administrative remedies.
¶9 On May 11, 2022, following a hearing, the circuit court of Cook County entered a written
judgment granting defendants’ motion to dismiss. The court first noted that it “may review a
final decision entered by an administrative agency only if allowed by statute” and a party
“aggrieved by an administrative decision generally may not seek judicial review without first
pursuing all available administrative remedies.” The court also acknowledged that although the
Administrative Review Law “provides the exclusive remedy for cases of retaliatory action
involving discharge, demotion, or suspension,” there are exceptions for when “the agency cannot
provide an adequate remedy *** or for claims of civil rights violations.” The trial court
characterized plaintiff as seeking “relief from disciplinary actions” imposed before those actions
are “heard before the Merit Board,” noting plaintiff’s requests, and only plaintiff’s requests, “to
rescind his suspension and reinstate him to his prior position.” The court wrote: “He [sic] does
not *** claim a violation of his [sic] civil rights. He [sic] only seeks relief from the disciplinary
actions against him.”
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¶ 10 The trial court’s judgment concludes that the Sheriff suspended plaintiff pursuant to
Merit Board rules and that the pending hearing before the Merit Board “concerns disciplinary
actions, which the Merit Board has exclusive authority over.” At the same time, the court
concluded that plaintiff “fails to properly perfect an appeal for judicial review” by bringing his
claim before receiving a decision by the Merit Board. Therefore, trial court concluded, it did not
have jurisdiction and granted defendants’ motion to dismiss the complaint.
¶ 11 This appeal followed.
¶ 12 ANALYSIS
¶ 13 Section 2-619(a)(1) permits a defendant to file a motion for dismissal of the action on the
ground that the court does not have jurisdiction of the subject matter of the action. 735 ILCS 5/2-
619(a)(1) (West 2020). We review a judgment granting a motion to dismiss under section 2-
619(a)(1) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1) (West 2020)) de novo. Omega
Demolition Corp. v. Illinois State Toll Highway Authority, 2022 IL App (1st) 210158, ¶ 38 (“On
an appeal from a section 2-619 dismissal, our standard of review is also de novo.”) “De novo
review means that we perform the same analysis a trial court would perform.” Id. “Under the de
novo standard of review, this court owes no deference to the trial court. [Citation.]” Id. “Whether
a circuit court has subject matter jurisdiction to entertain a claim is a question of law that we
review de novo.” Kristen B. v. Department of Children & Family Services, 2022 IL App (1st)
200754, ¶ 31.
¶ 14 The claim as to which we must determine whether the trial court has subject matter
jurisdiction to entertain are plaintiff’s claims under the IWA. To aid in this determination this
court’s decision in Goral v. Dart, 2019 IL App (1st) 181646, in instructive. The facts in Goral
are similar but not identical to the facts in this case. In Goral, the plaintiff’s had termination
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proceedings pending before the Merit Board and “filed a separate lawsuit *** challenging the
Board’s authority to adjudicate their cases.” Goral, 2019 IL App (1st) 181646, ¶¶ 1, 7. The
plaintiff’s challenge to the Board’s authority was based on noncompliance with State law
governing the composition of the Board. See id. ¶¶ 8, 15, 19-20. The complaint sought
declaratory, injunctive, and monetary relief against the Sheriff. Id. ¶ 15. The pertinent issue this
court decided was whether the plaintiffs were required to exhaust their administrative
remedies—i.e., to complete the proceedings before the Merit Board—before raising their claims
challenging the composition of the Board. Id. ¶¶ 22, 26. In support of the decision in Goral this
court wrote as follows:
“The court’s subject-matter jurisdiction refers to its power to hear and
resolve cases. [Citation.] Generally, the constitution gives the court original
subject-matter jurisdiction over all ‘justiciable matters.’ Ill. Const. 1970, art. VI, §
9. One exception, however, is the review of administrative actions, which is
governed by statute. [Citations.]
The Administrative Review Law governs judicial review of most final
administrative decisions, including final decisions of the Board here. See 735
ILCS 5/3-101 et seq. (West 2016). More to the point, the Administrative Review
Law is ‘the sole and exclusive method to obtain judicial review of a final
administrative decision’ by the Board. [Citation.]
Thus, generally speaking, a party aggrieved by agency action cannot
involve the courts until the administrative process has run its course—that is, until
the plaintiff has exhausted all administrative remedies. [Citation.] But the
exhaustion requirement is subject to six exceptions. [Citation.] Two are relevant
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here. First, a party need not exhaust when ‘the agency’s jurisdiction is attacked
because it is not authorized by statute.’ [Citation.] Second, exhaustion is excused
when ‘the agency cannot provide an adequate remedy or where it is patently futile
to seek relief before the agency.’ [Citation.]” Goral, 2019 IL App (1st) 181646, ¶¶
28-30.
The Goral court applied the narrower “attack on agency jurisdiction” exception to the exhaustion
requirement, which plaintiff has not pursued in this case. See Goral, 2019 IL App (1st) 181646,
¶ 39 (holding the Goral plaintiffs’ claims “clearly fit within the authority exception to the
exhaustion requirement”).
¶ 15 “Agency jurisdiction” refers to an agency’s statutory authority to act. Id. ¶ 32. Thus,
“agency jurisdiction often involves a question of whether and to what extent an agency is
substantively empowered to act.” Id. ¶ 33. The key to our disposition in this case is the Merit
Board’s statutory empowerment. In this case, plaintiff’s complaint sought remedies directly
related to his employment status with the Cook County Sheriff’s Office (see supra, ¶ 6, elements
(1) and (4)) and also the following remedies:
“(2) pay damages to Plaintiff for actual, general, special, compensatory
damages, including emotional distress and reputational damage;
(3) pay compensation for all damages sustained as a result of Defendants’
violations, including litigation costs, expert witness fees, and reasonable
attorney’s [sic] fees.”
¶ 16 The Merit Board is not authorized to award plaintiff the damages plaintiff seeks, nor is an
award of such damages implied or necessary to achieve the express objectives provided by the
statute.
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“An administrative agency’s powers are limited to those granted by the
legislature, and any action taken by the agency must be authorized specifically by
statute. [Citations.] Where it acts outside that authority, the agency acts without
jurisdiction, and ‘[i]ts actions are void, a nullity from their inception.’ [Citation.]
‘Because agency action for which there is no statutory authority is void, it is
subject to attack at any time in any court, either directly or collaterally.’
[Citations.]” Potek v. City of Chicago, 2022 IL App (1st) 211286, ¶ 36.
Additionally, “[a]ny power or authority of an agency must come from the statutory provisions
under which the agency was created or ‘by fair implication and intendment from those express
provisions, as an incident to achieving the objectives for which the agency was created.’
[Citation.]” Mohorn-Mintah v. Board of Education of City of Chicago, 2019 IL App (1st)
182011, ¶ 19.
¶ 17 The Cook County Sheriff’s Merit Board Act (Act) (55 ILCS 5/3-7001 et seq. (West
2020)) provides, in pertinent part, as follows:
“Except as is otherwise provided in this Division, no deputy sheriff in the
County Police Department, no full-time deputy sheriff not employed as a county
police officer or county corrections officer and no employee in the County
Department of Corrections shall be removed, demoted or suspended except for
cause, upon written charges filed with the Board by the Sheriff and a hearing
before the Board thereon upon not less than 10 days’ notice at a place to be
designated by the chairman thereof.
***
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If the charges against an accused deputy sheriff are established by a
preponderance of evidence, the Board shall make a finding of guilty and order
either removal, demotion, suspension for a period of not more than 180 days, or
such other disciplinary punishment as may be prescribed by the rules and
regulations of the Board which, in the opinion of the members thereof, the offense
merits.
***
The provisions of the Administrative Review Law, and all amendments
and modifications thereof, and the rules adopted pursuant thereto, shall apply to
and govern all proceedings for the judicial review of any order of the Board
rendered pursuant to the provisions of this Section.” 55 ILCS 5/3-7012 (West
2020).
The Administrative Review Law prohibits any “new or additional evidence in support of or in
opposition to any finding, order, determination or decision of the administrative agency.” 735
ILCS 5/3-110 (West 2020).
¶ 18 The Act does not provide for a remedy in the event a charge against an accused is not
established by a preponderance of the evidence. See 55 ILCS 5/3-7012 (West 2020). Nothing in
the Act provides a party before the Merit Board the right to seek damages for emotional distress,
reputational damage, litigation costs, expert witness fees, or attorney fees. See id.; supra, ¶ 16.
(Defendants briefly maintain plaintiff could receive back pay should he prevail before the Merit
Board, but we need not render an opinion on that question for purposes of this appeal.)
Consequently, the Administrative Review Law also does not permit an accused to present
evidence of their actual damages. Thus, read together, under the statutory scheme in place there
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is no provision for an award of the type of damages plaintiff seeks in the IWA claim.
Conversely, the IWA expressly provides as follows:
“If an employer takes any action against an employee in violation of
Section 15 or 20, the employee may bring a civil action against the employer for
all relief necessary to make the employee whole, including but not limited to the
following, as appropriate:
(1) reinstatement with the same seniority status that the employee would
have had, but for the violation;
(2) back pay, with interest; and
(3) compensation for any damages sustained as a result of the violation,
including litigation costs, expert witness fees, and reasonable attorney’s [sic]
fees.” (Emphasis added.) 740 ILCS 174/30 (West 2020).
¶ 19 We find that plaintiff’s complaint under the IWA seeks damages that are beyond the
statutory authority of the Merit Board to award. Next, we must determine the consequence of this
finding. Instructive in this case, the Goral court noted that “[a]gencies have no inherent or
common-law authority; their power is limited to that given them by the legislative body that
created them. [Citation.] So if an agency acts beyond its statutory authority—if it acts without
‘jurisdiction’—its actions are invalid and void.” Id. ¶ 32. The Goral court noted several
examples of this court invalidating actions taken by an administrative agency that were beyond
their statutory authority to act. See id. ¶ 33 (and cases cited therein). This court also offered an
explanation as to why a party is not required to “exhaust administrative remedies”—i.e., to await
the conclusion of administrative proceedings—before pursuing a claim that is outside of an
agency’s statutory authority. The Goral court found that:
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“if the Board lacks the authority to hear the case, the merits of the
underlying case are irrelevant, so there is no reason why a court should wait for a
developed underlying record to decide that legal question.” Goral, 2019 IL App
(1st) 181646, ¶ 40.
¶ 20 The Goral court decided the issues before it based on whether or not the plaintiffs’ claims
directly challenged the Board’s statutory authority to act. See Goral, 2019 IL App (1st) 181646,
¶¶ 51, 57; cf. id. ¶ 70. We do not have such claims here. Rather, the issue before this court is
whether a claim that does not (at least directly) challenge the Board’s statutory authority to
adjudicate it but which instead seeks relief outside its statutory authority is subject to the
exhaustion requirement. This is a slightly different, but nonetheless closely related, question.
¶ 21 We find that implicit in the Goral court’s holdings is a concurrent finding that claims
beyond an agency’s statutory authority to act are not subject to the exhaustion requirement. See
Goral, 2019 IL App (1st) 181646, ¶ 40 (and cases cited therein) (explaining why underlying
record from administrative agency not required before deciding issue the agency generally does
not decide). For example, the Goral court found “no barrier to the circuit court’s review” where
the claim at issue did not ask “the Board to do anything” because the plaintiffs thought the Board
did not have “the power to do anything” about the claim. Goral, 2019 IL App (1st) 181646, ¶ 53.
There, the plaintiffs maintained they could proceed with the claim “regardless of whether they
win or lost their administrative hearings.” Id.¶ 22 In this case, plaintiff is not asking the Merit Board to award plaintiff’s “ancillary
damages” listed above, and plaintiff might recover those damages under the IWA regardless of
whether he wins or loses before the Merit Board. If plaintiff prevails, the Merit Board will not be
able to award him the damages plaintiff seeks that are not directly related to his employment
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status. See infra, ¶ 25. If plaintiff loses, that loss does not necessarily foreclose his IWA claims.
An agency decision invalidating an alleged act of “retaliation” is not a prerequisite to recovery
under the IWA; the IWA only requires “retaliation” and that the employee had “reasonable cause
to believe that the information discloses a violation of a State or federal law, rule, or regulation.”
See 740 ILCS 174/15(b) (West 2020) (“(b) An employer may not retaliate against an employee
for disclosing information to a government or law enforcement agency, where the employee has
reasonable cause to believe that the information discloses a violation of a State or federal law,
rule, or regulation”). The Merit Board’s decision might, at most, constitute an affirmative
defense 3 that the defendant would have to plead and prove. Razavi v. School of the Art Institute
of Chicago, 2018 IL App (1st) 171409, ¶ 18, Parkway Bank and Trust Co. v. Korzen, 2013 IL
App (1st) 130380, ¶ 24 (discussing defendant’s burden on motion to dismiss based on
affirmative defense).
¶ 23 More importantly, those claims cannot be subject to exhaustion before the administrative
agency because even if the Merit Board wanted to award plaintiff all of the damages he seeks,
for the categories of damages not directly tied to his employment status it cannot do so. Goral,
2019 IL App (1st) 181646, ¶ 79 (“It would be illogical to require plaintiffs to exhaust their
administrative remedies in that event, because their whole point is that they can’t exhaust them,
at least not in a fair and meaningful way.”). If the Board did award such damages, such award
3
“The supreme court has explained the nature of an affirmative defense:
‘An affirmative defense does not negate the essential elements of the plaintiff’s
cause of action. To the contrary, it admits the legal sufficiency of that cause of action.
[Citation.] It assumes that the defendant would otherwise be liable, if the facts alleged are
true, but asserts new matter by which the plaintiff’s apparent right to recovery is
defeated.’ [Citation.]” Stivers v. Bean, 2014 IL App (4th) 130255, ¶ 34.
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would be void and subject to attack at any time. See id. ¶¶ 32-33 (agency acts beyond statutory
authority are void) (citing Crittenden v. Cook County Comm’n of Human Rights, 2013 IL
114876, ¶ 34 (affirming judgment reversing award of punitive damages where “the Commission
lacked authority to award punitive damages”)). On the contrary, plaintiff’s claims for damages
for emotional distress, reputational damage, litigation costs, expert witness fees, or attorney fees
are authorized and recoverable under the IWA.
“Under the current Illinois Constitution, circuit courts have original
jurisdiction over all justiciable matters and the power to review administrative
actions as provided by law. [Citations.] A ‘justiciable matter’ is a controversy
appropriate for review by the court, in that it is definite and concrete, as opposed
to hypothetical or moot, touching upon the legal relations of parties having
adverse legal interests. [Citation.] Except in the area of administrative review, the
jurisdiction of the circuit court flows from the constitution and not the legislature.
[Citation.] Ultimately, the test for subject matter jurisdiction is found in the nature
of the case as made by the complaint and the relief sought. [Citation.]” Kristen B.,
2022 IL App (1st) 200754, ¶ 32.
¶ 24 Plaintiff’s complaint seeking recission of his suspension, reinstatement, and a cease-and-
desist order involve areas in which the Merit Board is expressly empowered to act and are
remedies provided by the Act permitting the Merit Board to decide whether a deputy sheriff can
be “removed, demoted or suspended.” 55 ILCS 5/3-7012 (West 2020). Therefore, those matters
lie within the original jurisdiction of the Merit Board and are subject to the exhaustion
requirement. Goral, 2019 IL App (1st) 181646, ¶¶ 32-33.
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¶ 25 There is no dispute in this appeal that at least some of the damages plaintiff seeks are
provided for under the IWA and are not available under the statute creating the Merit Board.
Those claims provide a justiciable matter that, on their own, fall within the subject matter
jurisdiction of the circuit court. Under the IWA plaintiff’s complaint makes a case and seeks
relief that presents a “justiciable matter.” Therefore, plaintiff’s claims for damages under the
IWA not involving his removal, demotion, or suspension (see 55 ILCS 5/3-1012 (West 2020))
are beyond the statutory authority of the Merit Board and outside of its jurisdiction and thus not
subject to the exhaustion requirement. See Goral, 2019 IL App (1st) 181646, ¶ 85.
¶ 26 That is not to say, however, that the trial court could not stay proceedings before it to
await the decision by the Merit Board. See id. ¶ 42. “A circuit court may stay proceedings as part
of its inherent authority to control the disposition of cases before it. [Citation.] It may consider
factors such as the orderly administration of justice and judicial economy in determining whether
to stay proceedings. [Citation.]” Estate of Bass ex rel. Bass v. Katten, 375 Ill. App. 3d 62, 68
(2007). However, that question has not been addressed to this court.
¶ 27 Accordingly, the portion of the trial court’s judgment granting defendants’ motion to
dismiss plaintiff’s complaint to the extent plaintiff seeks to “rescind Plaintiff’s suspension
without pay and reinstate him to his prior position with the same seniority status with full back
pay, benefits, pension service credits and contributions, and other make whole relief with pre-
judgment interest;” and an “order Defendants to cease and desist from terminating and retaliating
against the Plaintiff in contravention of his state law whistle-blowing rights;” is affirmed.
Conversely, the trial court’s judgment granting defendants’ motion to dismiss plaintiff’s
complaint to the extent plaintiff seeks from defendants damages other than reinstatement with
full back pay, benefits, pension service credits and contributions (i.e., “damages to Plaintiff for
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actual, general, special, compensatory damages, including emotional distress and reputational
damage;” and to “pay compensation for all damages sustained as a result of Defendants’
violations, including litigation costs, expert witness fees, and reasonable attorney’s [sic] fees”) is
reversed. The cause is remanded for further proceedings consistent with this order.
¶ 28 Plaintiff also argues the trial judge should have recused from this case sua sponte because
of the judge’s alleged friendship with the Sheriff. Plaintiff asks this court to remand the case for
proceedings before a different trial judge. We decline to order this case remanded to a different
trial judge. “When reviewing a trial judge’s recusal decision, we must determine whether the
decision was an abuse of the judge’s discretion.” Barth v. State Farm Fire & Casualty Co., 228
Ill. 2d 163, 175 (2008). The basis for plaintiff’s allegation of a friendship between the trial judge
and the Sheriff is the fact the two endorsed each other’s political campaigns and appeared in an
interview together in which they laughed and smiled with each other. We find that under former
Rule 63(c)(1)(a) the facts plaintiff presents are insufficient to cause a reasonable person knowing
them to recuse the judge or to reasonably give rise to questions regarding the trial judge’s
impartiality.
¶ 29 Rule 63 of the former Illinois Code of Judicial Conduct directed as follows:
“(1) A judge shall disqualify himself or herself in a proceeding in which
the judge’s impartiality might reasonably be questioned, including but not limited
to instances where:
(a) the judge has a personal bias or prejudice concerning a party.”
Illinois Code of Judicial Conduct Rule 63(C)(1)(a) (repealed January 1, 2023).
“[T]he test stated in Rule 63(C)(1) imposes an objective, reasonable person standard.” Barth, 228
Ill. 2d at 176. The court has interpreted this rule to require a trial judge
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“to recuse himself when his participation might reasonably give rise to
questions regarding his impartiality, including situations involving the appearance
of impropriety. [Citation.] For instance, our supreme court has recognized that a
judge should recuse himself where he has knowledge outside the record
concerning the truth or falsity of allegations, where the judge may be called as a
material witness, or where the judge has a direct, personal, and substantial
pecuniary interest in the litigation. [Citation.]” People v. Buck, 361 Ill. App. 3d
923, 931 (2005).
¶ 30 Thus, “our task is to assess whether a reasonable person, aware of the facts and the law,
would believe that [the trial judge] was impartial.” Buck, 361 Ill. App. 3d at 932. Here, plaintiff
does not suggest that any of these circumstances outlined by our supreme court are present in this
case. See id. That is, plaintiff does not allege the trial judge had knowledge about the case
outside the record, might be called as a material witness, or has a pecuniary interest in the
litigation. Nevertheless, plaintiff accuses the trial judge of a personal interest in the litigation due
to an alleged friendship with the Sheriff. We do not believe the facts would cause a reasonable
person to believe that such an interest exists.
¶ 31 Plaintiff’s suggestion of a close friendship between the trial judge and the Sheriff is
highly speculative. Speculation aside, the evidence of the friendship is tenuous at best. Two
persons behaving cordially by smiling and laughing during an interview during a political
campaign is hardly evidence of a close friendship that would cause a reasonable person to
believe one of them has a personal bias or prejudice in favor of the other. Indeed, reasonable
persons are well aware that oftentimes during campaigns, bitter enemies must treat each other
not only respectfully but sometimes friendly. Regardless, the court has noted that “[i]t is
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generally held that a judge need not disqualify himself just because a friend appears before him
in court.” Buck, 361 Ill. App. 3d at 933. Further, “[o]ne court has held that an attorney’s support
for a judge’s nomination to the bench did not require the judge to disqualify himself from a case
in which the attorney represented a party before the court.” Id.
¶ 32 We have carefully considered the evidence presented and, “considering the facts and
circumstances, we do not believe that a reasonable person would conclude that [the trial judge]
was incapable of ruling fairly in [plaintiff’s] case.” See id. at 934. Therefore, “we cannot say that
the trial judge abused his discretion by failing to recuse.” See Barth, 228 Ill. 2d at 176. We note
that our disposition goes only to the question of whether the trial judge should have voluntarily
recused. “All judges in Illinois are expected to consider, sua sponte, whether recusal is warranted
as a matter of ethics under the Judicial Code.” In re Marriage of O’Brien, 2011 IL 109039, ¶ 45.
The O’Brien court held that “[t]he Judicial Code *** says nothing that would give the
impression that its provisions could be used by a party or his lawyer as a means to force a judge
to recuse himself, once the judge does not do so on his own.” Id. Nothing in this disposition
should be construed to prejudice plaintiff’s right to file a motion to substitute the trial judge. See
In re Marriage of O’Brien, 2011 IL 109039, ¶¶ 45-46 (“recusal and substitution for cause are not
the same thing” and discussing each).
¶ 33 CONCLUSION
¶ 34 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in
part, reversed in part, and remanded.
¶ 35 Affirmed in part, reversed in part, and remanded.
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