People el rel. Wofford v. Brown

Illinois Official Reports
Appellate Court
People ex rel. Wofford v. Brown, 2017 IL App (1st) 161118
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS ex rel. W.C.
Caption WOFFORD, KEITH PRICE, and DONALD NESBIT, Plaintiffs, v.
LAMONT D. BROWN, and THE CITY OF HARVEY, an Illinois
Municipal Corporation, Defendants-Appellees (Keith Price, Plaintiff-
Appellant).
District & No. First District, Sixth Division
Docket No. 1-16-1118
Filed February 17, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 2015-CH-09540;
Review the Hon. Thomas R. Allen, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Shiller Preyar Law Offices, of Chicago (Brendan Shiller and Stephen
Appeal Berrios, of counsel), for appellant.
No brief filed for appellees.
Panel JUSTICE ROCHFORD delivered the judgment of the court, with
opinion.
Presiding Justice Hoffman and Justice Cunningham concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff-appellant, Keith Price, appeals from the denial of a petition for leave to file a
quo warranto complaint seeking the removal of defendant-appellee, Lamont D. Brown, from
the office of alderman of the fourth ward of defendant-appellee, the City of Harvey (the
City). For the following reasons, we reverse and remand.
¶2 Mr. Brown was elected alderman of the fourth ward of the City and sworn into office on
May 11, 2015, as one of the seven members of the city council (comprised of six aldermen
and the mayor). Prior to his election, however, Mr. Brown was convicted of two felonies:
possession of a controlled substance in 1991 and possession of a stolen motor vehicle in
1994.
¶3 On June 18, 2015, W.C. Wofford, as a citizen and resident of the fourth ward, filed a
petition for leave to file a quo warranto complaint seeking the removal of Mr. Brown as
alderman. Mr. Wofford alleged in the petition and attached proposed complaint that, under
section 3.1-10-5(b) of the Illinois Municipal Code (65 ILCS 5/3.1-10-5(b) (West 2014)), Mr.
Brown was ineligible to hold an elected municipal office in that he had been twice convicted
of a felony. Mr. Wofford further maintained that, prior to Mr. Brown taking office, written
requests had been submitted to the offices of the Illinois Attorney General (AG) and the
State’s Attorney of Cook County (SA) to bring a quo warranto action against Mr. Brown, but
they had failed to do so. Certified records of Mr. Brown’s convictions were attached to the
petition.
¶4 On July 6, 2015, the circuit court granted Mr. Wofford leave to file the proposed
quo warranto complaint instanter against defendants-appellees, the City and Mr. Brown.
Subsequently, the court entered an order on July 22, 2015, granting Mr. Wofford’s
emergency motion for a temporary restraining order (TRO) which prohibited Mr. Brown
from exercising the powers and authority of the office of alderman. Mr. Brown was not
present in court.
¶5 On July 28, 2015, Mr. Brown filed a motion to dissolve the TRO arguing, in part, that
Mr. Wofford, as a private individual, did not have standing to bring the quo warranto action
because the relevant issue was one of public interest and Mr. Wofford had no distinct private
interest in the matter. Mr. Brown also maintained that Mr. Wofford was motivated to bring
the action for political reasons, as he was aligned with the mayor of the City on certain key
issues in opposition to Mr. Brown. The circuit court, on July 30, 2015, granted that motion
and entered an order which vacated and dissolved the TRO and set a schedule on a motion to
dismiss the complaint due to Mr. Wofford’s lack of standing to pursue a quo warranto action.
¶6 On August 7, 2015, Mr. Brown filed a motion under section 2-619 of the Code of Civil
Procedure (735 ILCS 5/2-619 (West 2014)) to dismiss the action on the ground that Mr.
Wofford lacked standing. The motion argued that the issue raised in the complaint, as to Mr.
Brown’s eligibility to hold office, was purely one of public interest and could only be
brought by the AG or SA. The motion further asserted that, even if the question was not one
of public interest, Mr. Wofford’s status as a citizen and taxpayer of the fourth ward did not
give him standing under established case law.
¶7 Mr. Wofford did not respond to the motion. Instead, on August 24, 2015, Mr. Wofford,
with Keith Price and Donald Nesbit as additional relators (collectively referred to as
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plaintiffs-aldermen), filed an amended petition for leave to file a quo warranto complaint
seeking to remove Mr. Brown as alderman.1 In the amended petition, Mr. Price alleged that
he is a resident, citizen, and duly elected alderman of the sixth ward of the City, and Mr.
Nesbit contended that he is a resident, citizen, and duly elected alderman of the fifth ward of
the City.
¶8 Mr. Brown filed a response in opposition to the amended petition contending that the
three named relators lacked standing to bring a quo warranto action. Plaintiffs-aldermen
replied that they, as aldermen, possessed private interests which were distinct and separate
from those of other citizens. Specifically, plaintiffs-aldermen alleged that they have been
forced to exercise their legislative authority—to enact legislation and determine public
policy—with Mr. Brown, who was not qualified to hold office. In support of their standing
argument, plaintiffs-aldermen cited the decision in People ex rel. Ballard v. Niekamp, 2011 IL
App (4th) 100796, which held that members of a local board of education had standing to
bring a quo warranto action seeking the removal of another member of the board for that
board member’s violation of the Public Officer Prohibited Activities Act (Act) (50 ILCS
105/1 (West 2008)). Niekamp, 2011 IL App (4th) 100796, ¶ 1.
¶9 On February 18, 2016, the circuit court entered an order which denied the amended
petition for leave to file a quo warranto complaint. In so doing, the court rejected the
applicability of Niekamp and found that plaintiffs-aldermen lacked standing to bring a
quo warranto action, as they possessed the same interest in the removal of Mr. Brown from
his office as those of all citizens of the City and the “public at large.” The court also
concluded that the suit would cause “chaos” and not benefit the public.
¶ 10 Mr. Price filed a motion for reconsideration of the order denying the amended petition,
which was adopted by Mr. Wofford and Mr. Nesbit. In his motion, Mr. Price argued that the
court erred in its conclusion that he lacked a private interest distinct from the public in
general. Mr. Price asserted that as an alderman, he was sworn to uphold the law and owed
fiduciary duties to the public in fulfilling his official duties. Further, Mr. Brown’s presence
on the city council subjected its work and actions to challenges and questions of validity. The
court denied the motion to reconsider.
¶ 11 Only Mr. Price (plaintiff-appellant) has appealed from the orders denying the amended
petition and reconsideration of that denial. In addition, defendants-appellees have not filed a
brief with this court. However, since the record is simple and the issues on appeal are such
that we can decide them without the aid of an appellee’s brief, we will review the case on the
appellant’s brief alone. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.
2d 128, 133 (1976).
¶ 12 Quo warranto proceedings provide an extraordinary remedy and are now codified under
article 18 of the Code of Civil Procedure (quo warranto statute) (735 ILCS 5/18-101 et seq.
(West 2014)). People ex rel. Graf v. Village of Lake Bluff, 206 Ill. 2d 541, 547 (2003). Section
18-102 of the quo warranto statute provides:
1
The amended petition did not refer to or seek to adopt the original quo warranto complaint brought
by Mr. Wofford individually, and thus, this “ ‘earlier pleading ceases to be a part of the record for most
purposes, being in effect abandoned and withdrawn.’ ” Foxcroft Townhome Owners Ass’n v. Hoffman
Rosner Corp., 96 Ill. 2d 150, 154 (1983) (quoting Bowman v. County of Lake, 29 Ill. 2d 268, 272
(1963)).
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“The proceeding shall be brought in the name of the People of the State of Illinois by
the [AG] or [SA] of the proper county, either of his or her own accord or at the
instance of any individual relator; or by any citizen having an interest in the question
on his or her own relation, when he or she has requested the [AG] and [SA] to bring
the same, and the [AG] and [SA] have refused or failed to do so, and when, after
notice to the [AG] and [SA], and to the adverse party, of the intended application,
leave has been granted by the circuit court.” (Emphasis added.) 735 ILCS 5/18-102
(West 2014).
¶ 13 Thus, where a case involves matters of purely public interest, only the AG or the SA “as
representatives of the people, have standing to institute quo warranto proceedings.”
Henderson v. Miller, 228 Ill. App. 3d 260, 266 (1992) (citing People ex rel. Raster v. Healy,
230 Ill. 280 (1907)). However, where the AG or the SA fails to file suit, a quo warranto
action may be pursued by an interested party, with leave of court, to challenge a public
official who “usurps, intrudes into, or unlawfully holds or executes any office, or franchise,
or any office in any corporation created by authority of this State.” 735 ILCS 5/18-101(1)
(West 2014); see also Parker v. Lyons, 757 F.3d 701, 704 (7th Cir. 2014) (“The purpose of a
quo warranto action generally ‘is to question whether a person lawfully holds title to
office.’ ” (quoting McCready v. Secretary of State, 382 Ill. App. 3d 789, 801 (2008), and
citing 735 ILCS 5/18-101 (West 2014))). If a quo warranto action is successful, the public
official may be removed from office. 735 ILCS 5/18-108 (West 2014).
¶ 14 Pursuant to the quo warranto statute, therefore, “a private citizen seeking to bring an
action in quo warranto on his own behalf must first request the [AG] or the [SA] to file the
action. [Citation.]” Henderson, 228 Ill. App. 3d at 267. Further, an individual seeking leave
to file suit “must demonstrate that he has standing by showing that he has a private interest
which is directly, substantially and adversely affected by the challenged act, which is either
then occurring or certain to occur, and which is distinct from the interests of the general
public, even though some members of the public might be affected in the same manner.” Id.
(citing People ex rel. Turner v. Lewis, 104 Ill. App. 3d 75 (1982)). The asserted private
interest must be pled with specificity and not by mere conclusory assertions. People ex rel.
Hanrahan v. Village of Wheeling, 42 Ill. App. 3d 825, 833 (1976).
¶ 15 Because an individual does not have a right to file a quo warranto action, “[g]ranting
leave to file a complaint in quo warranto is a matter within the sound discretion of the trial
court.” People ex rel. Durst v. Village of Germantown Hills, 51 Ill. App. 3d 969, 972 (1977).
The court must consider the conditions and circumstances of the case, the motives of the
relators in seeking to bring the action, the necessity for the requested remedy, and whether
the interests of the public will be served by the suit. People ex rel. Muhammad v.
Muhammad-Rahmah, 289 Ill. App. 3d 740, 746 (1997) (citing People ex rel. Hansen v.
Phelan, 158 Ill. 2d 445, 449 (1994)). A decision to grant or deny a petition for leave to file an
action will be overturned only where there has been a clear abuse of discretion or “an
application of impermissible legal criteria.” Graf, 206 Ill. 2d at 547 (citing Boatmen’s
National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314 (1993)). However, the issue of
whether a plaintiff has standing is reviewed de novo. Barber v. City of Springfield, 406 Ill.
App. 3d 1099, 1101 (2011).
¶ 16 Here, plaintiff-appellant specifically seeks to remove Mr. Brown from office pursuant to
section 3.1-10-5(b) of the Municipal Code, which provides:
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“A person is not eligible to take the oath of office for a municipal office if that person
is, at the time required for taking the oath of office, in arrears in the payment of a tax
or other indebtedness due to the municipality or has been convicted in any court
located in the United States of any infamous crime, bribery, perjury, or other felony.”
65 ILCS 5/3.1-10-5(b) (West 2014).
Section 3.1-10-5(b) has been interpreted to disqualify an individual with a felony conviction
from holding the office of alderman. See Bryant v. Board of Election Commissioners, 224 Ill.
2d 473, 474 (2007). This provision “ensure[s] public confidence in the honesty and integrity
of those serving in state and local offices.” People v. Hofer, 363 Ill. App. 3d 719, 723 (2006)
(citing People ex rel. Ryan v. Coles, 64 Ill. App. 3d 807, 811-12 (1978)).
¶ 17 As such, a quo warranto action is indisputably and generally a proper procedure for
seeking Mr. Brown’s removal from office due to his prior convictions, pursuant to section
3.1-10-5(b). See Alvarez v. Williams, 2014 IL App (1st) 133443, ¶ 3 (quo warranto action
against board of education member based on claim of ineligibility due to prior conviction);
Hofer 363 Ill. App. 3d at 720 (where quo warranto action was brought to remove trustee of
village for prior felony conviction).
¶ 18 The specific question raised on appeal is whether plaintiff-appellant, as alderman of the
sixth ward of the City, has standing under section 18-102 of the quo warranto statute to bring
a quo warranto action challenging Mr. Brown’s occupation of the office of alderman of the
fourth ward of the City. The quo warranto statute does not specifically define the term
“interest” as used in section 18-102. However, as we have discussed above, to establish
standing an individual must have a specific interest distinct from an injury common to the
public which is directly, substantially, and adversely affected by the challenged action. Graf,
206 Ill. 2d at 547-48; Lewis, 104 Ill. App. 3d at 77. With respect to this requirement, we note
that aldermen are elected officials of a municipality and vested with “purely legislative”
authority. 65 ILCS 5/6-4-6 (West 2014). Aldermen owe fiduciary duties to their municipality
(Chicago Park District v. Kenroy, Inc., 78 Ill. 2d 555, 564 (1980)) and “the people they
represent” (People v. Savaiano, 66 Ill. 2d 7, 15 (1976) (citing City of Chicago ex rel. Cohen v.
Keane, 64 Ill. 2d 559, 565 (1976))).
¶ 19 Plaintiff-appellant argues that, under this precedent, he has an interest in a quo warranto
action to remove Mr. Brown from the city council that is separate and distinct from the
interest possessed by other members of the public. As set forth in the amended petition,
plaintiff-appellant maintains that, if Mr. Brown is not removed from office,
plaintiff-appellant “will continuously be forced to exercise the duties of his office with [Mr.
Brown], who is not qualified to hold elected municipal office because he is a convicted
felon.” Plaintiff-appellant argues that his oath of office requires that he uphold the
constitution and statutes of this state and is obligated to fulfill his fiduciary duties.
¶ 20 On the issue of standing, we find the aforementioned Niekamp decision controlling. In
that case, the defendant was removed as a member of the board of education of Quincy
School District No. 172 (school board) for violating section 1 of the Act. Niekamp, 2011 IL
App (4th) 100796, ¶¶ 1-10. The defendant had violated the Act by being a member of the
county board at a time when he was a member of the school board. The quo warranto suit
was filed by other members of the school board and alleged that the defendant’s election to
the school board was void. Id.
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¶ 21 On appeal, the defendant challenged the standing of the plaintiffs to bring the suit. The
appellate court found that, as fellow members of the school board, the plaintiffs’ interests
“were sufficiently distinct from the interests of the general public” in that the defendant’s
“votes on issues before the school board clearly could affect the validity of board actions.”
Id. ¶ 26.
¶ 22 In reaching this conclusion, the Niekamp court found a decision from the West Virginia
Supreme Court persuasive. Id. ¶ 27 (citing State ex rel. Morrison v. Freeland, 81 S.E.2d 685,
687 (W. Va. 1954), overruled on other grounds by Marra v. Zink, 256 S.E.2d 581, 586 (W.
Va. 1979)). In that case, members of a city council, which was composed of a total of nine
members, sought leave to file a quo warranto action against another member. Similarly to
Illinois, the West Virginia quo warranto statute required that an individual seeking to bring
such an action must be “interested” in the prosecution in order to have standing. Morrison,
81 S.E.2d at 687. The West Virginia Supreme Court in Morrison noted that, because of the
size of the body, a vote of a single member “may often determine the success or failure of
any motion before that body.” Id. at 688. As the Niekamp court quoted extensively, the West
Virginia Supreme Court then found the plaintiffs in that case had standing, reasoning that:
“ ‘The precise question to be determined here is whether members of a city
council elected from certain wards have such an interest within the meaning of the
statute to enable them to prosecute a proceeding in the nature of quo warranto, to
have determined the right of another person to hold office as a member of that body
from a different ward. We are cited no authority, and have found none, which seems
directly in [sic] point. The charter of the City of Clarksburg provides for a city
council of nine members. It also provides that five members thereof shall constitute a
quorum, and that a majority vote of the members shall be necessary for the
transaction of business, including the enactment of ordinances under which the
municipality will be operated. Thus it will be seen that the vote of any member may
often determine the success or failure of any motion before that body. This being true,
can it be said, by any process of reasoning, that each member of the council is not
interested, as an individual and as an officer, in having only properly elected officers
participate in the transaction of the business of that body? Is not such interest of such
dignity as to make it the duty of each member, either as an individual or as a member
of that body, to prevent illegal or unauthorized participation in the voting on the
important issues which must be settled by that body? Is not the interest of each
member, because of the duties imposed, and the privileges granted, different and far
more substantial than the interest of a mere citizen and taxpayer? We think it must be
held that each member of the council is possessed of such an “interest” as entitles him
to prosecute such an action. We think it can not be argued with much force that one in
such position has no interest in seeing that the business of the council is not
controlled by a mere usurper of office. To so construe the statute does not unduly
extend or broaden the field of potential relators in such proceedings as to make
possible undue harassment of those willing to accept office. It is more likely to cause
only those who are in fact qualified to hold office to seek office. To hold otherwise
would so limit the use of the proceeding as to render it practically useless.’ ”
Niekamp, 2011 IL App (4th) 100796, ¶ 28 (quoting Morrison, 81 S.E.2d at 688).
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¶ 23 Like the Niekamp court, we too find Morrison persuasive. Because of the size of the
council of the City—seven members—the involvement and vote of one alderman is
significant. Plaintiff-appellant, as another member of the city council, has an interest in
assuring that the legislative process is not tainted by one who “usurps” an office of
government (735 ILCS 5/18-101(1) (West 2014)) and has a duty to prevent someone who is
not eligible to hold the office of alderman from participating in the council’s business.
Plaintiff-appellant, as an alderman and member of the city council, has a substantial interest
in a quo warranto action seeking the removal of Mr. Brown, based on his ineligibility to hold
the office of alderman. That interest is distinct from the interest of the general public.
¶ 24 Based on our de novo review of the standing issue, we therefore find that
plaintiff-appellant has standing to bring a quo warranto action seeking the removal of Mr.
Brown from the office of alderman of the fourth ward of the City. In reaching this
conclusion, we again note that defendants-appellees have not filed an appellate brief. Any
alternative arguments they might have raised are therefore forfeited, as a party forfeits points
not argued in their brief. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). We also again note that
neither Mr. Wofford nor Mr. Nesbit have participated in this appeal. However, because we
find plaintiff-appellant has standing as a sitting alderman of the City, we need not determine
whether either Mr. Wofford or Mr. Nesbit also have standing. Niekamp, 2011 IL App (4th)
100796, ¶ 29.
¶ 25 Finally, we note that in denying the amended petition, the circuit court also found that the
quo warranto action would cause “chaos” and would therefore not benefit the public. A court
“may consider the public interest in determining whether to grant or deny leave to file a
complaint in quo warranto.” People ex rel. Nelson v. Village of Long Grove, 169 Ill. App. 3d
866, 876-77 (1988) (citing People ex rel. Koplin v. Village of Hinsdale, 38 Ill. App. 3d 714,
718 (1976)). Here, plaintiff-appellant seeks to file a quo warranto action based on Mr.
Brown’s undisputed ineligibility to hold the office of alderman under section 3.1-10-5(b),
which as we have discussed seeks to protect the confidence of the public in the honesty and
integrity of local elected officials. Hofer, 363 Ill. App. 3d at 723. Thus, the public interest
would actually be well-served if plaintiff-appellant was allowed to pursue the action to
determine Mr. Brown’s eligibility to hold office under section 3.1-10-5(b).
¶ 26 Because plaintiff-appellant had standing to bring a quo warranto action against Mr.
Brown and the public interest would be served by such an action, we find the circuit court
abused its discretion by denying the amended petition for leave to file a quo warranto action
and the motion seeking reconsideration of that decision.
¶ 27 For the reasons stated above, we reverse the orders denying the amended petition to file a
quo warranto action and denying reconsideration of that order, and remand this matter with
directions to grant the amended petition for leave to file a complaint in quo warranto.
¶ 28 Reversed and remanded.
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