Brown v. Grosskopf

ILLINOIS OFFICIAL REPORTS

Appellate Court

Brown v. Grosskopf, 2013 IL App (4th) 120402

Appellate Court THOMAS J. BROWN, State’s Attorney of Livingston County, Plaintiff-

Caption Appellant, v. MATTHEW E. GROSSKOPF and LISA MADIGAN,

Attorney General of the State of Illinois, Defendants-Appellees.

District & No. Fourth District

Docket No. 4-12-0402

Rule 23 Order filed February 13, 2013

Rule 23 Order

withdrawn March 18, 2013

Opinion filed February 13, 2013

Held The dismissal of the State’s Attorney’s complaint seeking a declaration

(Note: This syllabus that the State’s Attorney’s office is not a “public body” for purposes of

constitutes no part of the Freedom of Information Act was affirmed by the appellate court on

the opinion of the court the ground that no controversy existed, since the complaint was based on

but has been prepared a nonbinding opinion letter from the Attorney General’s Public Access

by the Reporter of Counselor and the issue of whether the State’s Attorney’s office is a

Decisions for the “public body” under the Act was not properly before the court.

convenience of the

reader.)

Decision Under Appeal from the Circuit Court of Livingston County, No.11-MR-41; the

Review Hon. Stephen R. Pacey, Judge, presiding.

Judgment Affirmed.

Counsel on Seth Uphoff (argued), State’s Attorney, of Pontiac (Randy A. Yedinak,

Appeal Assistant State’s Attorney, of counsel), for appellant.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,

Solicitor General, and Jane Elinor Notz (argued), Assistant Attorney

General, of counsel), for appellee Lisa Madigan.

Donald M. Craven and Esther J. Seitz, both of Donald M. Craven, P.C.,

of Springfield, for appellee Matthew E. Grosskopf.

Panel JUSTICE APPLETON delivered the judgment of the court, with opinion.

Presiding Justice Steigmann and Justice Harris concurred in the judgment

and opinion.

OPINION

¶1 Following a March 2012 hearing, the trial court granted defendant Attorney General of

the State of Illinois Lisa Madigan’s motion to dismiss, dismissing with prejudice plaintiff

Livingston County State’s Attorney Thomas J. Brown’s lawsuit for declaratory relief. Brown

appeals, arguing the trial court erred by finding the State’s Attorney’s office is a “public

body” within the meaning of the Freedom of Information Act (FOIA) (5 ILCS 140/1 to 11.5

(West 2010)) and, thus, subject to defendant Matthew E. Grosskopf’s request to produce

certain documents in accordance with FOIA. We affirm, but do so on the basis that there

exists no actual controversy, as Brown lacks standing to bring a declaratory judgment

lawsuit.

¶2 I. BACKGROUND

¶3 On April 8, 2011, Brown filed a complaint for declaratory relief seeking a court

determination as to whether the State’s Attorney’s office is a “public body” within the

meaning of section 2 of FOIA (5 ILCS 140/2(a) (West 2010)). The complaint alleged that

in February 2010, Grosskopf sent Brown’s office a FOIA request for documents, transcripts,

materials, memos, and photographs relating to a 2001 murder trial held in Livingston County.

Brown denied the request, believing his office was not a “pubic body” subject to a FOIA

request. Grosskopf appealed the denial to the Attorney General’s Public Access Counselor

(5 ILCS 140/9.5 (West 2010)), who, in March 2011, issued a letter finding that Brown’s

office “must disclose the requested documents to Mr. Grosskopf subject to the permissible

redactions.” Disputing the assistant Public Access Counselor’s opinion, Brown claims ethical

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issues and the burden upon his office, coupled with concerns over the victim’s privacy,

distinguish his office from a “public body” within the meaning of FOIA and that his office

should not be required to produce the requested information. Brown alleged in his complaint

that “an actual controversy exists among the parties” with respect to the interpretation of the

definition of “public body.” 5 ILCS 140/2(a) (West 2010).

¶4 In July 2011, Grosskopf filed an answer to Brown’s complaint and a counterclaim for

declaratory and injunctive relief to enforce the assistant Public Access Counselor’s “advisory

opinion” and compel Brown to release the documents requested.

¶5 In September 2011, Madigan filed a motion to dismiss the complaint against her office

pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West

2010)). In particular, she claimed Brown was unable to state a cause of action for declaratory

relief since no actual controversy existed. She asserted that the letter from the assistant Public

Access Counselor is a nonbinding and nonreviewable opinion, meaning it cannot be the basis

for an actual legal controversy.

¶6 In March 2012, the trial court conducted a hearing on Madigan’s motion to dismiss and,

after considering the arguments of counsel, took the matter under advisement. In April 2012,

the court entered a written order, finding (1) Brown’s office is a “public body” within the

meaning of FOIA, (2) Madigan had “most likely create[d] an actual controversy” by the

issuance of the assistant Public Access Counselor’s letter, and (3) Brown’s complaint was

“based entirely on the proposition that his office is not a public body.” Because the basis for

Brown’s complaint was, according to the court, an inaccurate statement of the law, the court

dismissed the complaint with prejudice. The court found no just reason to delay an appeal

and ordered Grosskopf’s counterclaim stayed during the pendency of an appeal.

¶7 Brown filed a motion to reconsider and, after conducting a hearing on the matter, the trial

court denied Brown’s motion. This appeal followed.

¶8 II. ANALYSIS

¶9 Brown appeals the dismissal of his complaint, arguing the trial court erred in (1) granting

Madigan’s motion to dismiss and (2) finding the State’s Attorney’s office is a “public body,”

subject to FOIA. A section 2-615 motion (735 ILCS 5/2-615 (West 2010)) attacks the legal

sufficiency of a complaint. Carr v. Koch, 2012 IL 113414, ¶ 27.

“A motion to dismiss pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West

2000)) attacks the legal sufficiency of a complaint by alleging defects on the face of the

complaint. [Citations.] In ruling on a section 2-615 motion, a court must accept as true

all well-pleaded facts in the complaint and all reasonable inferences therefrom.

[Citations.] The critical inquiry is whether the allegations of the complaint, when

construed in the light most favorable to the plaintiff, are sufficient to establish a cause

of action upon which relief may be granted.” Vitro v. Mihelcic, 209 Ill. 2d 76, 81 (2004).

This court’s review of a section 2-615 dismissal is de novo. Carr, 2012 IL 113414, ¶ 27.

¶ 10 In order to bring a declaratory judgment action, “ ‘there must be an actual controversy

between adverse parties, with the party requesting the declaration possessing some personal

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claim, status, or right which is capable of being affected by the grant of such relief.’ ” Village

of Chatham, Illinois v. County of Sangamon, Illinois, 216 Ill. 2d 402, 420 (2005) (quoting

Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 493 (1988)).

“ ‘ “Actual” in this context does not mean that a wrong must have been committed and

injury inflicted. Rather, it requires a showing that the underlying facts and issues of the

case are not moot or premature, so as to require the court to pass judgment on mere

abstract propositions of law, render an advisory opinion, or give legal advice as to future

events. [Citations.] The case must, therefore, present a concrete dispute admitting of an

immediate and definitive determination of the parties’ rights, the resolution of which will

aid in the termination of the controversy or some part thereof. [Citations.]

The second, and somewhat related requirement, is that the party seeking the

declaration must be “interested in the controversy.” [Citation.] The word, “interested”

does not mean merely having a curiosity about or a concern for the outcome of the

controversy. Rather, the party seeking relief must possess a personal claim, status, or

right which is capable of being affected. [Citations.] The dispute must, therefore, touch

the legal relations of parties who stand in a position adverse to one another.’ ” Village

of Chatham, 216 Ill. 2d at 420 (quoting Underground Contractors Ass’n v. City of

Chicago, 66 Ill. 2d 371, 375-76 (1977)).

¶ 11 All parties acknowledge that the assistant Public Access Counselor’s letter is a

nonbinding opinion. Indeed, section 9.5(f) of FOIA provides that the Attorney General may

choose to issue an advisory opinion, rather than a binding opinion. 5 ILCS 140/9.5(f) (West

2010) (“In responding to any request under this section 9.5, the Attorney General may

exercise his or her discretion and choose to resolve a request for review by mediation or by

a means other than the issuance of a binding opinion. The decision not to issue a binding

opinion shall not be reviewable.”). See also 15 ILCS 205/7(c)(4) (West 2010) (Through a

Public Access Counselor, the Attorney General has the power to issue advisory opinions with

respect to FOIA.). An advisory opinion is not subject to review. See also 5 ILCS 140/11.5

(West 2010) (“An advisory opinion issued to a public body shall not be considered a final

decision of the Attorney General for purposes of this Section.”). However, a binding opinion

is subject to administrative review. 5 ILCS 140/11.5 (West 2010) (“A binding opinion issued

by the Attorney General shall be considered a final decision of an administrative agency, for

purposes of administrative review under the Administrative Review Law [citation].”). Thus,

in this case, all parties agree the Attorney General chose to issue a nonreviewable,

nonbinding, and nonfinal opinion, leaving Grosskopf with merely the Attorney General’s

advisory and unenforceable statement on the matter. The assistant Public Access Counselor’s

letter has no legal effect.

¶ 12 With nothing more than an advisory or nonbinding opinion as support, Brown has no ripe

action or controversy against Madigan or Grosskopf. A nonbinding or advisory opinion

cannot be the basis for a lawsuit or subject to enforcement in a court of law. See 5 ILCS

140/11.5 (West 2010) (An advisory opinion shall not be considered a final decision of the

Attorney General or subject to review.). Borrowing language from a similar controversy in

the State of California, we find the effect of advisory opinions may be summarized as

follows: “[T]he Office of the Attorney General has a general obligation to prepare advisory

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opinions but none to participate as advisor or amicus curiae, let alone defendant, in every

lawsuit questioning the meaning of a state law.” State v. Superior Court, 229 Cal. Rptr. 74,

75-76 (Cal. Ct. App. 1986) (hereinafter California).

¶ 13 Because the only basis of Brown’s lawsuit against Madigan is the nonbinding opinion

letter, the lawsuit cannot survive Madigan’s motion to dismiss. Indeed, the showing made

by the Assistant Public Access Counselor in the form of his letter as to whether Brown’s

office is required to produce certain information as requested by Grosskopf “is not enough

to compel [the Attorney General] to defend the suit.” California, 229 Cal. Rptr. at 76.

¶ 14 Our legislature has prescribed the proper procedure for challenging a public body’s denial

of a FOIA request. Section 11(a) provides: “Any person denied access to inspect or copy any

public record by a public body may file suit for injunctive or declaratory relief.” 5 ILCS

140/11(a) (West 2010). The Illinois Attorney General Act (15 ILCS 205/0.01 to 7 (West

2010)) also provides a remedy for noncompliance if a binding opinion has been issued.

Section 7(f) provides that the Attorney General may file an action to compel compliance with

a binding opinion issued pursuant to a FOIA violation. 15 ILCS 205/7(f) (West 2010).

¶ 15 Thus, upon Brown’s denial of Grosskopf’s request, Grosskopf had the right to file a

lawsuit against Brown for injunctive or declaratory relief or request a second review from

the Attorney General, which may have prompted the issuance of a binding opinion. Either

way, at that point, the issue of whether Brown should produce or allow the inspection of the

information requested would properly be before the court. Until then, looking no further than

Brown’s complaint, no actual controversy exists between these parties, nor can Brown assert

a need for adjudication from the courts. Ruling on the merits of whether the State’s

Attorney’s office is a “public body” within the meaning of FOIA at this point, when that

issue is not properly before the court, would require both the trial court and this court to

effectively (1) pass judgment on a mere abstract proposition of law, (2) render an advisory

opinion, or (3) give legal advice as to future events, none of which is permissible.

¶ 16 III. CONCLUSION

¶ 17 For the foregoing reasons, we affirm the trial court’s order dismissing plaintiff’s

complaint, but do so on the basis no legal controversy exists. We do not form an opinion on

whether the State’s Attorney’s office is a “public body” within the meaning of FOIA, as that

issue is not ripe for adjudication.

¶ 18 Affirmed.

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