People v. Ross

SIXTH DIVISION
September 29, 2006
No. 1-04-2017
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff, ) Cook County
)
v. )
)
JOHNNIE ROSS, ) Honorable
) Stuart Palmer,
Defendant-Appellant. ) Judge Presiding
JUSTICE McNULTY delivered the opinion of the court:
Johnnie Ross requested certain documents from the Chicago
police department (the Department). The Department denied much
of the request. Ross then filed a pro se petition with the
circuit court, seeking an order directing the Department to
release the documents he sought. The trial court dismissed the
petition with prejudice on its own motion and without giving Ross
notice or an opportunity to argue in support of his petition.
Ross now appeals.
We find that the Code of Civil Procedure (735 ILCS 5/1-101
et seq. (West 2004)) does not permit dismissal of this petition
without notice to the petitioner. Because we cannot find the
procedural error harmless under the circumstances of this case,
we reverse and remand for further proceedings on the petition,
with proper notice to Ross.
BACKGROUND
On September 15, 1994, a jury found Ross guilty of murder,
attempted murder and armed robbery. The court sentenced Ross to
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90 years in prison. This court affirmed the convictions and
sentence on direct appeal. People v. Ross, No. 1-94-3964 (1997)
(unpublished order under Supreme Court Rule 23). Over the
following years Ross filed four pro se postconviction petitions.
The trial court summarily dismissed all four petitions, and this
court affirmed all four summary dismissals.
In July 2003 Ross asked the Department for all police
reports concerning the murder and robbery of which the jury found
him guilty. He expressly premised his request on the Freedom of
Information Act (5 ILCS 140/1 et seq. (West 2002)). The
Department provided some documents with some information deleted,
and it refused to provide several other documents.
In March 2004 Ross, pro se, filed in circuit court a
document he titled "Petition for Mandamus." Although he named
himself as plaintiff and the City of Chicago Department of Police
as defendant, the clerk assigned the petition to the criminal
case, effectively treating the document as another postconviction
petition. In the petition Ross claimed that the Department
failed to perform its duty to produce the requested records. He
appended to the petition the letter the Department sent him
notifying him of the denial of his request, along with a document
titled "Freedom of Information Appeal," addressed to the
superintendent of the Department.
The trial court, sua sponte and without notice to any party,
decided to dismiss the petition with prejudice. No party
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appeared at the hearing on March 25, 2004, when the court
disposed of the case. Ross now appeals.
ANALYSIS
Ross styled his pleading as a petition for mandamus. When
the court confronts such a petition, it has authority to
recharacterize the petition sua sponte (People v. Shellstrom, 216
Ill. 2d 45, 53 (2005)) or dismiss it sua sponte (Owens v. Snyder,
349 Ill. App. 3d 35, 43-44 (2004)). Several courts have
analogized mandamus petitions in a criminal context to petitions
for relief from judgment brought under section 2-1401 of the Code
of Civil Procedure (735 ILCS 5/2-1401 (West 2004)). See Owens,
349 Ill. App. 3d at 42-43; People v. Bramlett, 347 Ill. App. 3d
468, 472 (2004); People v. Winfrey, 347 Ill. App. 3d 987, 988-89
(2004). Statutory provisions governing mandamus, like the
provisions governing relief from judgment, give no explicit
guidance for proceedings when the court acts on its own motion.
735 ILCS 5/14-101 et seq., 2-1401 et seq. (West 2004); People v.
Dyches, 355 Ill. App. 3d 225, 229 (2005).
Our supreme court, in Shellstrom, set out the procedures for
the trial court to follow when it acts on its own motion to
recharacterize a pro se petition for mandamus. Before
recharacterizing the petition, the trial court must (1) notify
the petitioner of the court's intent to recharacterize the
pleading, (2) warn the petitioner of the consequences of the
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proposed recharacterization, and (3) "provide the litigant an
opportunity to withdraw the pleading or to amend it."
Shellstrom, 216 Ill. 2d at 57.
The various districts of the appellate court have not agreed
on the proper procedures for dismissal on the court's motion of
petitions labeled as mandamus actions or petitions for relief
from judgment. Compare Mason v. Snyder, 332 Ill. App. 3d 834
(4th Dist. 2002); People v. Gaines, 335 Ill. App. 3d 292, 296 (2d
Dist. 2002); Dyches, 355 Ill. App. 3d at 229. We follow the
well-reasoned approach adopted by this division in Dyches and by
the Third District in People v. Edwards, 355 Ill. App. 3d 1091,
1100 (2005).
In Edwards the appellate court acknowledged the court's
authority to dismiss frivolous petitions sua sponte, but held
that trial courts should not do so without notice to the
petitioner.
"Sua sponte action means only that the court initiates
a motion, which then follows the otherwise applicable
procedures, including notice of the proposed judicial
action and the opportunity to argue against such
action, as required in fairness to the litigants."
Edwards, 355 Ill. App. 3d at 1100.
The court held that because section 2-1401 did not explicitly
provide for dismissal without prior notice to the litigants, the
court must interpret the statute as disallowing such a summary
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dismissal.
This division similarly held that "summary dismissal, which
is a drastic procedure, should not be read into the procedures
provided by section 2-1401." Dyches, 355 Ill. App. 3d at 229.
The trial court in Dyches failed to provide the requisite notice
before summarily dismissing a petition brought pursuant to
section 2-1401. While the appellate court held that the trial
court erred, the appellate court found the error harmless because
the petition included "patently incurable" defects. Dyches, 355
Ill. App. 3d at 229.
The decision in Owens largely comports with the approach
taken in Dyches and Edwards. In Owens, the plaintiff filed a
complaint for mandamus and the trial court summarily dismissed
the complaint, without prior notice to the plaintiff and before
issuance of a summons to the defendant named in the complaint for
mandamus. The plaintiff argued that the court's failure to wait
for service of summons on the defendant rendered the decision
void for lack of jurisdiction. The appellate court held that the
trial court acquired both subject matter jurisdiction and
personal jurisdiction over the plaintiff when he filed the
complaint, and therefore the court had jurisdiction to dismiss
the complaint. Owens, 349 Ill. App. 3d at 41. The plaintiff did
not argue for reversal on grounds of the failure to provide
notice to the plaintiff of the trial court's own motion to
dismiss.
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The appellate court in Owens held that the plaintiff
suffered no prejudice due to the failure to serve summons on the
defendant. Owens, 349 Ill. App. 3d at 44. The court's reasoning
shows that it found any possible procedural defect harmless:
"If the trial court had followed the Code and
defendant had been served, plaintiff would be in the
same position he now is in. Dismissal of his complaint
was inevitable. Plaintiff requests this court to
reverse and remand for further proceedings. Such action
would have little remedial effect, only delaying
dismissal. ***
*** [P]laintiff did not demonstrate anything close
to a clear, affirmative right to relief ***. There was
nothing plaintiff could do to make it any better. He
simply was off the track and could not get back on. We
do not believe the legislature intended to require
judges and clerks to jump through useless hoops aimed
toward impossible goals." Owens, 349 Ill. App. 3d at
45.
Thus, the court in Owens, like the court in Dyches, found that
the failure to follow statutory procedures did not require
reversal because the complaint had patently incurable defects.
Following Dyches and Edwards, we hold that when a trial
court finds a mandamus petition insufficient to state a claim for
mandamus relief or for relief from a judgment, the court must
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first notify the petitioner of its intention to dismiss the
petition as insufficient, just as the court would need to notify
the petitioner before recharacterizing the petition. The
petitioner then should have the opportunity to withdraw or amend
his pleading and to argue in court for the sufficiency of the
petition. See People v. Anderson, 352 Ill. App. 3d 934, 944
(2004). If the trial court fails to follow proper procedures for
its own motion to dismiss, and the procedural defect prejudices
the petitioner, we must reverse. But this court will not reverse
the judgment if the trial court committed only harmless error by
dismissing a petition with patently incurable defects. Dyches,
355 Ill. App. 3d at 229.
Here, we find that the court erred by dismissing the
petition without providing Ross notice of its intent to dismiss
the case on the court's own motion. Ross contends that if he had
received notice, he could have amended his petition to state a
claim for administrative review of the denial of his request
under the Freedom of Information Act. See 5 ILCS 140/11 (West
2002).
The Department raises several procedural objections to the
petition, arguing that the trial court could not have construed
the petition Ross filed as a viable claim for review under the
Freedom of Information Act. For example, the Department contends
that Ross did not swear in an affidavit that he sought review by
the Department's superintendent of the denial of his document
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request. The Department concludes that Ross has not adequately
alleged exhaustion of administrative remedies.
Ross attached to his mandamus petition a form in which he
apparently requested review, by the Department's superintendent,
of the denial of his request for documents. The form supports
the conclusion that Ross might appropriately correct his petition
by a simple amendment to show that he exhausted his
administrative remedies.
The Department also notes that Ross did not object when the
clerk treated the petition as part of the criminal case against
Ross, rather than treating it as a separate civil action. The
Department does not show why Ross could not have corrected the
error by withdrawing his petition and filing a complaint with a
new case number. The Department castigates Ross because he
"never corrected the error[s]" he made in the petition. If the
trial court had followed the proper procedural steps, Ross would
have had the opportunity to correct the errors. On this record
we cannot say that the defects of his petition are so patently
incurable that he had no chance of amending his petition to state
a valid claim for administrative review of the denial of his
request for certain documents under the Freedom of Information
Act.
The trial court failed to follow proper procedures when it
failed to allow Ross a chance to amend the petition or otherwise
respond to the trial court's sua sponte motion to dismiss the
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complaint. The procedural error here prejudiced Ross because
Ross may have valid grounds for administrative review of the
denial of his request for certain documents in the possession of
the Department. Therefore, we reverse the judgment of the trial
court and we remand for further proceedings in accord with this
opinion.
Reversed and remanded.
FITZGERALD SMITH, P.J., concurs.
Justice O'Malley, specially concurring:
I concur with the opinion of the majority. The opinion, however, relies to some extent on
this court's opinion in People v. Anderson, 352 Ill. App. 3d 934 (2004), which held that the trial
court could not summarily dismiss a 2-1401 petition, without notifying defendant, even though
that court was cognizant of fatal flaws in the petition. However, the Anderson court did affirm
the summary dismissal by the trial court in that case. Nonetheless, the holding reflected that the
court erred in failing to follow notification procedures, albeit the error was harmless where
defendant's petition was completely without merit. Anderson, 352 Ill. App. 3d at 946-47.
I wrote a concurrence in Anderson expressing my opinion that while I agreed with the
outcome, it was my view that no error, harmless or otherwise, occurred in the court below. I
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continue to believe that if the appellate court is capable of recognizing that defendant's petition is
fatally flawed and not amendable to successful amendment, there is no reason that the trial court
cannot be trusted to do the same without useless procedural machinations. This view was also
expressed by Justice Wolfson in Owens v. Snyder, 349 Ill. App. 3d 41 (2004), cited in the
majority opinion as well.
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