Foley v. Godinez , 62 N.E.3d 286 ( 2016 )

2016 IL App (1st) 151814
No. 1-15-1814
Opinion filed August 2, 2016
Second Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
CONNIE FOLEY, CALVIN DREW, and ) Appeal from the Circuit Court
RAYMOND HAYES, ) of Cook County.
)
Plaintiffs-Appellants, )
) No. 13 CH 13589
v. )
)
S.A. “TONY” GODINEZ, as Director of ) The Honorable
Corrections, ) LeRoy Martin,
) Judge, presiding.
Defendant-Appellee. )
______________________________________________________________________________
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Pierce and Justice Neville concurred in the judgment and opinion.
OPINION
¶1 The Director of the Illinois Department of Corrections refused to certify that three former
Corrections officers satisfied a set of requirements necessary for them to obtain a concealed carry
permit under federal law. The officers then filed a complaint for mandamus relief to compel the
Director to certify. The parties filed cross-motions for summary judgment regarding plaintiffs’
right to the requested relief and whether the Director had a nondiscretionary, ministerial duty to
certify. The trial court granted the Director’s summary judgment motion and denied plaintiffs’
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motion. The court found that plaintiffs were not entitled to mandamus relief because certifying
their status was not a purely ministerial act and required the Director to exercise discretion.
¶2 We affirm. Under the Law Enforcement Officers Safety Act (18 U.S.C. § 926A through
C (2006)), the Director has authority to decide whether an applicant meets the statutory
requirements to be certified as a qualified retired law enforcement officer. Thus, the act of
certification was a discretionary, nonministerial act, and mandamus relief—ordering the Director
to certify and submit the form—was inappropriate.
¶3 BACKGROUND
¶4 Law Enforcement Officers Safety Act
¶5 The Law Enforcement Officers Safety Act of 2004 (LEOSA) (18 U.S.C. § 926A through
C (2006)) permits qualified active or retired “law enforcement officers” who possess the required
identification to lawfully carry a concealed firearm across state lines without being subject to
prosecution under state and local laws. Section 926(C), which applies to retired officers, provides
that “[n]otwithstanding any other provision” of state law, a “qualified retired law enforcement
officer” who has the requisite identification may carry a concealed firearm in any state, subject to
state law restrictions on carrying concealed weapons in certain places. 18 U.S.C. § 926C(a)
(2006).
¶6 To be deemed a “qualified retired law enforcement officer” under LEOSA, a person must
meet these seven requirements: (i) separation in good standing from service with a public agency
as a law enforcement officer; (ii) before separation, having been authorized by law to engage in
or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of
any person for, any violation of law, and having statutory powers of arrest; (iii) before
separation, having served as a law enforcement officer for an aggregate of 10 or more years or
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separated from service after completing any applicable probationary period due to a service-
connected disability; (iv) during the most recent 12-month period, at his or her expense, meeting
the standards for qualification in firearms training for active law enforcement officers; (v) not
officially having been found unqualified for reasons relating to mental health or not having
entered into an agreement with the agency acknowledging that he or she is not qualified for
reasons relating to mental health; (vi) not being under the influence of alcohol or another
intoxicating or hallucinatory drug or substance; and (vii) not being prohibited by federal law
from receiving a firearm. 18 U.S.C. § 926C(c) (2006).
¶7 As noted, under LEOSA, a qualified retired law enforcement officer must have proper
identification before carrying a concealed weapon. The identification requirement can be
satisfied in one of two ways. An individual can obtain a photo ID from his or her former agency
stating that he or she was previously employed as a police officer or law enforcement officer
and, within the last year, has met the active duty standards for qualification in firearms training
to carry a firearm of the same type as the concealed firearm. 18 U.S.C. § 926C(d)(1) (2006). Or
the individual can obtain two documents—a photo ID from his or her former agency stating that
he or she was employed as a police officer or law enforcement officer (18 U.S.C.
§ 926C(d)(2)(A) (2006)) and a certification from the state or a certified firearms instructor
stating that within the last year, he or she has met either the state’s active-duty standards for
qualification in firearms training to carry a firearm of the same type as the concealed firearm or,
if the state does not have standards, then standards set by any law enforcement agency within
that state. 18 U.S.C. § 926C(d)(2)(B) (2006).
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¶8 Illinois Retired Officer Concealed Carry Program
¶9 In Illinois, the Law Enforcement Training and Standards Board (Board) administers a
program called the Illinois Retired Officer Concealed Carry program (IROCC) through which
qualified retired law enforcement officers may obtain concealed carry permits. 20 Ill. Adm. Code
1720.200 through 1720.900. The Board develops and processes applications and certifies retired
law enforcement officers qualified under LEOSA. 50 ILCS 705/10, 710/3 (West 2012).
¶ 10 Before an applicant will be prequalified for firearm certification, he or she must provide
the Board with a complete application, which consists of three forms. The applicant completes
two of them—the application form and an affidavit attesting to the applicant’s law enforcement
service and qualifications for carrying a firearm. The third form, the “Retirement/Separation
Verification” form, referred to as “Form 3,” must be completed by an authorized representative
of the state agency where the applicant previously worked. Form 3 requires the agency
representative to certify, under penalty of perjury, that the applicant was regularly employed as a
“Law Enforcement Officer” as defined by LEOSA for a specified number of years or was
separated from service with the agency due to a service-connected disability. An applicant’s
failure to provide information necessary to complete the application precludes any further
processing and results in denial of the application. 20 Ill. Adm. Code 1720.250(d), adopted at 30
Ill. Reg. 7925 (eff. Apr. 11, 2006). An applicant who submits a completed application is
prequalified for the firearms testing and, on successfully completing the firearm certification,
receives a card indicating IROCC certification and compliance with state and federal laws.
¶ 11 Plaintiffs, Connie Foley, Calvin Drew, and Raymond Hayes, are former parole agents for
the Department of Corrections who retired in good standing between 2001 and 2012. (Eight
former Department employees were initially named as plaintiffs, but only Foley, Drew, and
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Hayes are now parties.) Hayes worked for the Department for 11 years, and Foley and Drew
were Department employees for more than 30 years. After their retirement, each plaintiff applied
for a concealed carry permit through the IROCC program. The Board advised plaintiffs that their
applications would be processed only after receiving Form 3, signed by the Department’s
administrator certifying that each applicant met its requirements. Plaintiffs asked the Department
to submit Form 3 to the Board, certifying under penalty of perjury that plaintiffs met the
requirements to be certified as qualified retirement law enforcement officers. The Department
refused and advised plaintiffs it would not process, verify, or certify the information on Form 3.
¶ 12 Plaintiffs filed a one-count complaint for a writ of mandamus, asking the trial court to
order the Director to certify Form 3 and submit it to the Board. Plaintiffs alleged they had a right
to mandamus relief because they met all of the requirements to be deemed “qualified retirement
law enforcement officers” under LEOSA. They retired from the Department in good standing
after more than 10 years of service and asserted that, as parole agents, they had engaged in or
supervised the prevention of crimes and the incarceration of people for violating state criminal
laws and had statutory powers of arrest. Plaintiffs also asserted that under section 3 of the Peace
Officer and Probation Officer Firearm Training Act (50 ILCS 710/3 (West 2012)), which
requires agencies to “cooperate with the Board by furnishing relevant information which the
Board may require,” the Director has a nondiscretionary duty to provide the requested
information to the Board.
¶ 13 The Director filed a motion to dismiss under section 2-615 of the Illinois Code of Civil
Procedure (Code) (735 ILCS 5/2-615 (West 2012)), asserting that plaintiffs failed to state a claim
for which relief may be granted because the Department is not obligated to certify Form 3 and
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plaintiffs were not law enforcement officers under LEOSA. The trial court denied the motion to
dismiss.
¶ 14 The parties then filed cross-motions for summary judgment. The Director attached to his
motion a declaration from Brad Curry, the Department’s chief public safety officer. Curry stated
that since 2003, the Department has declined to certify Form 3 to the Board because (1)
Department employees had “limited statutory powers of arrest” that did not make them qualified
retired law enforcement officers for purposes of IROCC, (2) the restrictions pertaining to off-
duty firearm use coupled with limited powers of arrest do not warrant the same level of training
that is provided to qualified retired law enforcement officers under IROCC, and (3) certifying
Department personnel as qualified law enforcement officers for purposes of IROCC raises
serious public policy concerns because the Department lacks knowledge as to whether its
personnel receive the same level of firearms and other training as local law enforcement officers
established by the Board. Further, the Director asserted that he did not have sufficient knowledge
to certify that the plaintiffs were not under the influence of alcohol or drugs or are not prohibited
by federal law from possessing a firearm, as required by sections 926C(c)(6), (7) of LEOSA. 18
U.S.C. § 926C(c)(6), (7) (2006)).
¶ 15 In their motion for summary judgment, plaintiffs again argued that they met the statutory
definition of “qualified retired law enforcement officers” under LEOSA, because they worked
for the Department for at least 10 years, retired in good standing, were not unqualified for mental
health reasons, and were authorized to “engage in or supervise the prevention *** or the
incarceration of any person for, any violation of law, and had statutory powers of arrest” under
section 926C(c)(2) of LEOSA. 18 U.S.C. 926C(c)(2) (2006).
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¶ 16 After argument, the trial court granted the Director’s motion for summary judgment and
denied the plaintiffs’ motion. The court found that mandamus relief could not be granted because
the plaintiffs were asking the court to order the Director to certify that they were qualified retired
law enforcement officers, which “requires some discretion on his part and is not a purely
ministerial act.” The court stated that “it would appear to me that the federal act contemplates
that former corrections officers would be eligible” but noted that Congress has “[ceded] certain
powers to the state in determining whether or not an individual meets that state’s definition of a
law enforcement officer.” Plaintiffs appealed.
¶ 17 ANALYSIS
¶ 18 Plaintiffs contend the trial court erred in denying their motion for summary judgment and
granting defendant’s summary judgment motion. Plaintiffs maintain that they are qualified
retired law enforcement officers under LEOSA, that certifying Form 3 was a purely ministerial
act requiring no exercise of discretion by the Director, and that they are thus entitled to
mandamus relief. Plaintiffs also contend the Peace Officer and Probation Officer Firearm
Training Act (50 ILCS 710/3 (West 2012) requires the Department to cooperate with the Board
by furnishing relevant information and thus, the Director had a mandatory duty to certify Form 3
on their behalf. Alternatively, plaintiffs argue that if mandamus relief is not warranted, the case
should be remanded and they should be permitted to amend their complaint to seek declaratory
relief.
¶ 19 Standard of Review
¶ 20 Summary judgment is appropriate where the pleadings, affidavits, depositions, and
admissions on file, when viewed in the light most favorable to the nonmoving party, demonstrate
that there is no genuine issue of material fact and that the moving party is entitled to judgment as
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a matter of law. 735 ILCS 5/2-1005 (West 2012); Direct Auto Insurance Co. v. Beltran, 2013 IL
App (1st) 121128, ¶ 43.We review de novo a trial court’s order granting summary judgment. Id.
When parties file cross-motions for summary judgment, they agree that only a question of law is
involved and invite the court to decide the issues based on the record. See Pielet v. Pielet, 2012
IL 112064, ¶ 28. Moreover, whether plaintiffs were entitled to mandamus relief—namely,
whether the trial court should have ordered the Director to certify that they were “qualified
retired law enforcement officers”—depends on the proper interpretation of LEOSA. The
interpretation of a statute is a question of law, which we also review de novo. People v. Simpson,
2015 IL 116512, ¶ 29.
¶ 21 Mandamus
¶ 22 Where a public official has failed or refused to comply with requirements imposed by
statute, the court may compel the official to comply by means of a writ of mandamus, provided
the requirements for the writ have been satisfied. Noyola v. Board of Education of the City of
Chicago, 179 Ill. 2d 121, 132 (1997). An extraordinary remedy, mandamus enforces the
performance of a public officer’s official nondiscretionary duties as a matter of right. Rodriguez
v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429, 433 (2007). For mandamus to issue, a
plaintiff must establish material facts that demonstrate (1) an unequivocal right to the requested
relief, (2) an unequivocal duty on the defendant to act, and (3) defendant’s unequivocal authority
to comply with an order granting mandamus relief. Id. at 433-34. Mandamus cannot be used,
however, to compel a public official to perform an act that requires the exercise of his or her
discretion. McFatridge v. Madigan, 2013 IL 113676, ¶ 17 (“A writ of mandamus is appropriate
when used to compel compliance with mandatory legal standards but not when the act in
question involves the exercise of a public officer’s discretion.”); Hadley v. Ryan, 345 Ill. App. 3d
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297, 301-02 (2003) (mandamus could not be used to compel attorney general to prosecute a
claim where statute provides decision to prosecute was discretionary). “ ‘Mandamus cannot be
used to direct a public official or body to reach a particular decision or to exercise its discretion
in a particular manner, even if the judgment or discretion has been erroneously exercised.’ ”
Mabwa v. Mendoza, 2014 IL App (1st) 142771, ¶ 36 (quoting Crump v. Illinois Prisoner Review
Board, 181 Ill. App. 3d 58, 60 (1989)).
¶ 23 Plaintiffs contend they are qualified retired law enforcement officers with a right to a
concealed carry permit under LEOSA and, accordingly, the Director had a duty to certify their
status as qualified retired law enforcement officers and was authorized to do so. Because all three
requirements were met, plaintiffs insist that certifying Form 3 is a purely ministerial act and the
trial court erroneously deferred to the Director’s interpretation of LEOSA and his conclusion that
plaintiffs do not meet the statutory requirements to be deemed qualified retired law enforcement
officers. Plaintiffs assert that the trial court, not the Director, should determine whether they
meet the LEOSA requirements and if the court finds that they do, it should order the Director to
perform the ministerial task of certifying the form.
¶ 24 For support, plaintiffs cite State Board of Elections v. Shelden, 354 Ill. App. 3d 506
(2004). In Shelden, the county clerk stopped including voters’ telephone numbers in the voter-
registration information sent to the State Board of Elections. The Board of Elections filed a
complaint for mandamus, requesting that the trial court enter an order directing the county clerk
to furnish and release to it the voters’ telephone numbers, as required by statute. Id. at 508. The
trial court granted the complaint, in part, and the appellate court affirmed. Section 4-8 of the
Election Code (10 ILCS 5/4-8 (West 2002)) expressly imposed a nondiscretionary duty on the
county clerk to furnish the Board of Elections with a copy of any electronic data-processing
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information containing voter-registration information, including the voter’s “telephone number,
if any.” Shelden, 354 Ill. App. 3d at 512. Thus, the clerk had no discretion to determine whether
to furnish those phone numbers to the State Board of Elections. Id. at 513.
¶ 25 Plaintiffs argue that in Shelden, rather than deferring to the county clerk’s decision to
stop providing voters’ telephone numbers to the Elections Board, the court analyzed the Election
Code and its related provisions to define the scope of the county clerk’s legal duty. Similarly,
plaintiffs assert, the trial court should not have deferred to the Director’s erroneous interpretation
of the statute but should have examined the statute to define his authority. Plaintiffs suggest that
if the court had done that, it would have concluded that the Director has no discretion under the
statute to determine whether former employees meet the statutory requirements to be deemed a
qualified retired law enforcement officer.
¶ 26 We disagree. First, Shelden is not analogous. In Shelden, a plainly nondiscretionary
statutory provision was in dispute. The statute required the county clerk to furnish the Board of
Elections with voter’s “telephone number, if any.” 10 ILCS 5/4-8 (West 2002). LEOSA does not
contain similar nondiscretionary language ordering an agency to certify a former employee; thus,
the trial court’s task was not as clear cut. Further, the trial court did not simply defer to the
Director’s interpretation of the statute. The learned judge was thorough. The judge carefully
reviewed LEOSA, finding “Congress has *** [ceded] certain powers to the state in determining
whether or not an individual meets that state’s definition of a law enforcement officer.” The
court also examined Form 3 and found that it “does not read ministerially. That form
contemplates that the Director has to decide whether or not the applicant is a law enforcement
officer.” The court noted that if the form simply asked whether the applicants worked for the
Department and asked the Director to check a yes or no box, completing the form would be a
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ministerial act. But because the form requires “an analysis of whether or not the person was a
law enforcement officer,” the Director is required to make a decision and thus exercise
discretion, and his or her actions are not ministerial.
¶ 27 Plaintiffs’ reliance on Duberry v. District of Columbia, No. 15-7062, 2016 WL 3125217
(D.C. App. June 3, 2016), is also misplaced. In Duberry, which was released shortly before oral
arguments, the plaintiffs were four retired correctional officers who filed a declaratory judgment
action under 42 U.S.C. § 1983 (2012), alleging that they met the requirements for a permit under
LEOSA but that they could not obtain the necessary firearms training because the District of
Columbia refused to certify that, as correctional officers, they had a statutory power to arrest.
Duberry, 2016 WL 3125217, at *2. The only question was whether, in enacting LEOSA,
Congress created a federal right that is remediable under section 1983. The court answered in the
affirmative but expressly stated that it was not addressing the issue before this court—whether
the Director has discretion to decide if an applicant meets the statutory requirements to be
verified as a qualified retired law enforcement officer. The Duberry court stated, “[a]lthough a
state may retain some discretion, for example, to the extent it concludes that a retired law
enforcement officer seeking to exercise a LEOSA concealed-carry right is currently either not
physically or mentally capable of being in responsible possession of a firearm *** [but] the issue
of any discretion it may retain is not before this court.” Id. at *5. Thus, Duberry does not support
the plaintiff’s argument that the Director had no discretion in deciding whether to certify Form 3.
¶ 28 The right conferred by LEOSA—to carry a concealed firearm across state lines without
being subject to prosecution—is conditioned on meeting certain, express qualifications. The
statute states that to obtain a permit, an individual must be a “qualified retired law enforcement
officer” possessing photo identification and certification issued by his or her former agency
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confirming that he or she was a law enforcement officer and has met certain firearms
qualification standards. 18 U.S.C. § 926C(a), (d) (2006). Unlike the Election Code provision at
issue in Shelden, LEOSA does not order the Director to certify that former employees met the
seven requirements. It requires the Director to determine whether a former employee was
regularly employed as a “law enforcement officer” as defined in LEOSA. In addition, it grants
the Director discretion in determining whether or not a former employee satisfied the seven
requirements under the statute. Thus, certification of Form 3 is not a ministerial act, like signing
the form, and therefore, mandamus relief was unwarranted.
¶ 29 Plaintiffs also assert the Director had a duty to certify Form 3 because the Peace Officer
Firearm Training Act provides that all “agencies which employ or utilize peace officers, or that
certify retired law enforcement officers qualified under federal law to carry a concealed weapon,
shall cooperate with the Board by furnishing relevant information which the Board may require.”
50 ILCS 710/3 (West 2012). Plaintiffs assert that because they are qualified retired law
enforcement officers and Form 3 is relevant information required by the Board, the Department
“shall” cooperate with the Board by furnishing that document. While Form 3 is required by the
Board, section 43 of the Act does not require the Director to certify plaintiffs as qualified retired
law enforcement officers. It only requires that once the Director makes that determination, he or
she submit the “relevant information,” that is, Form 3. As noted, under LEOSA, the Director has
discretion and authority to determine whether a former employee meets the requirements of a
retired qualified law enforcement officer. Section 3 of the Peace Officer Firearm Training Act
does not diminish that authority and discretion.
¶ 30 Plaintiffs next contend they met all of the statutory requirements to be deemed a qualified
retired law enforcement officer. They explain in detail how their positions as parole agents
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qualified them as law enforcement officers who were “authorized by law to engage in or
supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any
person for, any violation of law, and had statutory powers of arrest.” But having decided that the
Director had discretion to determine whether plaintiffs were qualified retired law enforcement
officers, we need not decide that issue. A plaintiff must not only prove his or her unequivocal
right to the requested relief but also that defendant had an unequivocal duty to act. The Director
had discretion in deciding whether to certify plaintiffs as qualified retired law enforcement
officer and therefore, did not have a duty to act. As noted, “ ‘[m]andamus cannot be used to
direct a public official or body to reach a particular decision or to exercise its discretion in a
particular manner, even if the judgment or discretion has been erroneously exercised.’ ” Mabwa,
2014 IL App (1st) 142771, ¶ 36 (quoting Crump v. Illinois Prisoner Review Board, 181 Ill. App.
3d 58, 60 (1989)). Thus, even if the Director erred in finding that plaintiffs were not qualified
retired law enforcement officers, mandamus cannot be used to reach a different decision.
¶ 31 Declaratory Judgment
¶ 32 Plaintiffs alternatively ask that even if this court decides that mandamus relief is not
warranted, we remand the case to permit amending the complaint to add a declaratory judgment
count. But, arguments raised for the first time in a reply brief will not be addressed by the
appellate court. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013); 1010 Lake Shore Ass’n v. Deutsche
Bank National Trust Co., 2014 IL App (1st) 130962, ¶ 20. And while plaintiffs mention remand
to amend in one sentence in their opening brief, a nominal argument appears in the concluding
paragraphs of the reply brief.
¶ 33 Waiver aside, section 2-616(a) of the Code provides, in part, that amendments to
pleadings may be allowed on “just and reasonable terms” at any time before final judgment to
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enable the plaintiff to sustain the claim brought in the suit. 735 ILCS 5/2-616(a) (West 2012)
(emphasis added). The right to amend is “neither absolute nor unlimited” (I.C.S. Illinois, Inc. v.
Waste Management of Illinois, Inc., 403 Ill. App. 3d 211, 219 (2010)). The general rule is that
where a trial court dismisses a complaint and a plaintiff does not seek leave to amend, the cause
of action must stand or fall on the sufficiency of the stricken pleading. Stamp v. Touche Ross &
Co., 263 Ill. App. 3d 1010, 1019 (1993). This general rule best serves the interests of judicial
economy and prevents a plaintiff from circumventing the rule against interlocutory appeals. Id.
(party should not ordinarily be permitted to stand on pleadings before trial court and then seek
leave to amend in the appellate court after adverse ruling).
¶ 34 An exception to this general rule occurs when the supreme court decides a case that
favorably affects a potential count while the case is pending before the appellate court. Miller v.
Gupta, 174 Ill. 2d 120, 128 (1996). That exception does not apply here. Further, a request to
amend that is nothing more than an attempt to evade an unfavorable summary judgment outcome
should not be granted. See Freedberg v. Ohio National Insurance Co., 2012 IL App (1st)
110938, ¶ 44. Plaintiffs had ample opportunity to amend their complaint before the entry of the
final judgment against them and, for unknown reasons, did not elect to act.
¶ 35 Plaintiffs also argue that section 2-617 of the Code (735 ILCS 5/2-617 (West 2012))
supports their argument that they should be permitted to amend their complaint. Under section 2-
617, where a plaintiff has sought the wrong remedy and the pleading contains facts entitling the
plaintiff to relief on a different legal theory, the court may permit the pleading to be amended.
735 ILCS 5/2-617 (West 2012). We make no judgment as to whether a declaratory judgment
action is a viable cause of action for individuals, like the plaintiffs, who assert they are qualified
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retired law enforcement officers. But in this case and at this stage of the proceedings, the request
to amend the complaint to add an alternate form of relief comes too late.
¶ 36 Under these circumstances, we refuse in the first instance to entertain remand for a matter
that should have, and could have, been raised and dealt with by the trial court before the appeal
was perfected.
¶ 37 Affirmed.
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