Acevedo v. Cook County Sheriff's Merit Board

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Appellate Court Date: 2019.08.12

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Acevedo v. Cook County Sheriff’s Merit Board, 2019 IL App (1st) 181128

Appellate Court JOSEPH ACEVEDO, ENRIQUE MEZA, and TAMARA

Caption WUERFFEL, as Individuals and on Behalf of All Others Similarly

Situated, Plaintiffs, v. THE COOK COUNTY SHERIFF’S MERIT

BOARD; JAMES P. NALLY, Chairman; BYRON BRAZIER, Vice

Chairman; JOHN J. DALICANDRO, Secretary; GRAY MATEO-

HARRIS, Board Member; VINCENT T. WINTERS, Board Member;

JENNIFER BAE, Board Member; PATRICK BRADY, Board

Member; KIM R. WIDUP, Board Member; THOMAS J. DART,

Sheriff of Cook County in His Official and Individual Capacity; and

THE COUNTY OF COOK, a Unit of Local Government and

Indemnor, Defendants-Appellees (Joseph Acevedo, Plaintiff-

Appellant).

District & No. First District, Second Division

Docket No. 1-18-1128

Filed May 7, 2019

Decision Under Appeal from the Circuit Court of Cook County, No. 17-CH-7092; the

Review Hon. Thomas R. Allen, Judge, presiding.

Judgment Affirmed.

Counsel on Jennifer W. Sprengel, Daniel O. Herrera, and Christopher P.T. Tourek,

Appeal of Cafferty Clobes Meriwether & Sprengel LLP, of Chicago, and Dana

L. Kurtz, Heidi Karr Sleper, and Jacob Exline, of Kurtz Law Offices,

Ltd., of Hinsdale, for appellant.

Stephanie A. Scharf, Sarah R. Marmor, and George D. Sax, of Scharf

Banks Marmor, LLC, of Chicago, for appellee Thomas J. Dart.

Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeil Stein,

Natalie N. Ellis, Nile N. Miller, and Jay Rahman, Assistant State’s

Attorneys, of counsel), for other appellees.

Panel JUSTICE PUCINSKI delivered the judgment of the court, with

opinion.

Justices Mason and Lavin concurred in the judgment and opinion.

OPINION

¶1 In this putative class action, plaintiff Joseph Acevedo, on his own behalf and on behalf of

those similarly situated, alleges that employment termination decisions issued by the Cook

County Sheriff’s Merit Board (Board) were void because the Board was illegally constituted

at the time it issued those decisions. The trial court dismissed Acevedo’s first amended

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

(West 2016)) on the basis that it lacked jurisdiction over Acevedo’s putative class action. The

trial court concluded that its jurisdiction to review an administrative decision was limited to

those review actions brought under the Administrative Review Law (Review Law) (735 ILCS

5/3-102 (West 2016)); thus, it lacked jurisdiction to entertain Acevedo’s collateral putative

class action. Acevedo challenges this conclusion, and for the reasons that follow, we affirm.

¶2 I. BACKGROUND

¶3 On January 12, 2015, the Board issued a decision terminating Acevedo’s employment as a

Cook County correctional officer. Acevedo filed an action for direct review under the Review

Law, and on February 24, 2016, the trial court affirmed the Board’s decision.

¶4 Over a year later, on May 18, 2017, Acevedo instituted the present action. Five months

later, on October 3, 2017, Acevedo, joined by Enrique Meza and Tamara Wuerffel, filed their

first amended complaint. In that first amended complaint, Acevedo alleged that he was a former

Cook County correctional officer, whose employment was terminated by Board decision on

January 12, 2015. He further alleged that his Board decision terminating his employment was

null and void because the Board was illegally constituted at the time, in that former Board

member John R. Rosales had not been properly appointed under the Cook County Sheriff’s

Merit Board Act (Merit Board Act) (55 ILCS 5/3-7001 et seq. (West 2014)). Meza alleged that

he was also a former Cook County correctional officer, whose termination by the Board was

null and void because the Board was illegally constituted at the time, in that defendants Gray

Mateo-Harris and Patrick Brady had been appointed for terms of less than six years. Wuerffel

alleged that she was a former Cook County Sheriff’s police sergeant, whose termination by the

Board was null and void because the Board was illegally constituted at the time, in that Brady

had been appointed for a term of less than six years. The three named plaintiffs—Acevedo,

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Meza, and Wuerffel—also alleged, on behalf of those unnamed class members similarly

situated, that any other terminations or suspensions by the Board in which Rosales, Mateo-

Harris, and Brady participated were null and void, as were any terminations or suspensions by

the Board in which defendants Byron Brazier, John J. Dalicandro, and Kim R. Widup

participated, as their appointments were improperly retroactively approved. Plaintiffs sought a

declaration that the Board’s decisions were null and void and that they were entitled to “make-

whole relief,” including reinstatement and back pay. Plaintiffs also sought declarations that

their terminations by an illegally constituted board violated their rights to due process and

equal protection, damages, attorney fees, and costs.

¶5 Shortly after the filing of the first amended complaint, plaintiffs filed a motion for class

certification, which the trial court entered and continued.

¶6 In December 2017, Meza and Wuerffel voluntarily dismissed their claims against the

defendants.

¶7 On January 12, 2018, defendant Thomas J. Dart filed an amended motion to dismiss the

first amended complaint pursuant to section 2-615 of the Code. Defendants the County of Cook

and the Board joined in Dart’s motion to dismiss. In that motion, defendants argued that the

equitable remedies and monetary damages sought by Acevedo were not authorized by law;

rather, at most, he was only entitled to a rehearing in front of a properly constituted Board.

They also argued that the trial court’s jurisdiction was limited under the Review Law to direct

review of an administrative agency’s specific decision and, therefore, the trial court lacked

jurisdiction to consider a putative class action. Third, defendants argued that Acevedo failed

to plead cognizable claims for equal protection and due process violations. Finally, defendants

argued that Acevedo was improperly attempting to do an end-run around the trial court’s prior

administrative review of his termination.

¶8 In response, Acevedo, individually and on behalf of the putative class, argued that every

action taken by the Board while it was illegally constituted, including receiving charges and

issuing decisions on termination and suspension, was null and void, and therefore, plaintiffs

were entitled to reinstatement and back pay. He also argued that the Review Law did not apply

to his claims, either to defeat the trial court’s jurisdiction or to otherwise limit his claims,

because he was not attacking the Board’s actions on their merits, but was, instead, arguing that

the Board lacked jurisdiction to take any action whatsoever. Thus, the Review Law did not

preclude him from bringing a class action or defeat the trial court’s jurisdiction. Finally, he

argued that his prior action for administrative review was not his only opportunity to challenge

the Board’s decisions on the basis that the Board was improperly constituted because void

orders could be challenged at any time, either directly or collaterally.

¶9 In their reply, defendants argued that Acevedo had an opportunity to present his claim

regarding the illegally constituted Board during the initial direct review of his termination

decision and that he should not be given a second bite at the apple. More specifically,

defendants argued that the trial court’s affirmance of Acevedo’s termination in the initial direct

review action was res judicata to Acevedo’s current claims; even if res judicata did not apply,

Acevedo’s current claims were barred under the Local Governmental and Governmental

Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/8-101(a) (West 2016)); the

trial court lacked jurisdiction to consider any claims outside of Acevedo’s initial direct review

or to award the relief sought by Acevedo; and the appropriate remedy for Acevedo’s claim

would be a rehearing in front of a properly constituted Board.

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¶ 10 The trial court permitted Acevedo to file a surreply on the issue of res judicata. In that

surreply, Acevedo argued that res judicata did not apply because the Board’s termination

decision was void ab initio. Moreover, Acevedo argued, res judicata should not be applied on

equitable grounds because the improper appointments of Board members were not known until

recently. Acevedo also argued that the Tort Immunity Act did not bar his current claims

because the void decision of the Board could be attacked at any time, his claims did not sound

in tort, and the Tort Immunity Act did not bar claims for equitable relief. In addition, he argued

that even if the Tort Immunity Act did apply, his claim was timely brought because he filed it

within a year of discovering the full extent of defendants’ alleged unlawful conduct.

¶ 11 A hearing was held on defendants’ motion to dismiss. After hearing arguments from the

parties, the trial court issued its ruling, granting defendants’ motion. In doing so, the trial court

acknowledged that its jurisdiction over administrative review cases is strictly limited to that

permitted by the Review Law and that it lacked original jurisdiction over any action seeking

any form of administrative review, such as Acevedo’s class action claims for declaratory

judgment. Concluding that Acevedo’s claims were, at their core, claims for administrative

review and that they were not brought pursuant to the Review Law, the trial court determined

that it lacked jurisdiction.

¶ 12 Not seeking to remedy the defects found by the trial court but instead wanting only to

include additional allegations of fact regarding improper appointments to the Board for

purposes of appeal, Acevedo requested that he be granted leave to amend his complaint. The

trial court granted his request. Thereafter, Acevedo filed a second amended complaint, which

removed certain Board members as defendants, added different Board defendants, and

modified its allegations regarding appointments. Defendants moved to strike or dismiss the

second amended complaint. At the hearing on that motion, the trial court concluded that it

would confuse the record to allow the matter to go up on appeal with two complaints naming

different parties and containing different allegations. Therefore, it granted defendants’ motion

to strike the second amended complaint and modified its dismissal of the first amended

complaint to be with prejudice.

¶ 13 Thereafter, Acevedo instituted this appeal.

¶ 14 II. ANALYSIS

¶ 15 On appeal, Acevedo argues that the trial court erred in dismissing his first amended

complaint on the basis that it lacked jurisdiction because all actions taken by the illegally

constituted Board were void and void actions may be attacked at any time, either directly or

collaterally. He also argues that defendants’ other arguments raised in support of their motion

to dismiss—that his only remedy is a rehearing in front of a properly constituted Board,

res judicata bars his claims, and the Tort Immunity Act bars his claims—are without merit. In

addition to reiterating the arguments they made in the trial court, defendants respond on appeal

by arguing that Acevedo’s claims are barred by the de facto officer doctrine. We agree with

defendants that the de facto officer doctrine bars Acevedo’s claims. Because the putative class

was never certified and because no other named plaintiffs remained after the dismissal of

Acevedo’s claims, dismissal of the entire complaint was appropriate.

¶ 16 A motion to dismiss under section 2-615 of the Code raises the question of whether the

complaint’s allegations, viewed in the light most favorable to the plaintiff, are sufficient to

state a cause of action upon which relief can be granted. Chandler v. Illinois Central R.R. Co.,

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207 Ill. 2d 331, 348 (2003). The complaint should be dismissed only if it is clearly apparent

that the plaintiff can prove no set of facts that would entitle him to relief. Id. at 349. Our review

of the trial court’s grant of a motion to dismiss under section 2-615 is de novo. Id.

¶ 17 Defendants argue on appeal that the trial court’s dismissal of the amended complaint should

be affirmed because Acevedo’s claims are barred by the de facto officer doctrine. As an initial

matter, Acevedo argues that defendants should not be allowed to raise this issue on appeal

because they failed to file a cross-appeal. Defendants, as appellees, were not required to file a

cross-appeal in order to raise the de facto officer doctrine as a basis for affirming the trial court,

however. “[A]n appellee may raise any argument or basis supported by the record to show the

correctness of the judgment below, even though he had not previously advanced such an

argument.” In re Veronica C., 239 Ill. 2d 134, 151 (2010); see also Olson v. Williams All

Seasons Co., 2012 IL App (2d) 110818, ¶ 41 (“[A]n appellee who fails to raise an issue in the

circuit court may raise it on appeal to affirm the circuit court’s order, if the factual basis for

the issue was before the circuit court.”). Likewise, we are not bound by the reasoning of the

trial court, and we may affirm on any basis found in the record, regardless of whether the trial

court relied on that basis or its reasoning was correct. Taylor, Bean, & Whitaker Mortgage

Corp. v. Cocroft, 2018 IL App (1st) 170969, ¶ 60.

¶ 18 In his amended complaint, Acevedo, relying on our decision in Taylor v. Dart, 2017 IL

App (1st) 143684-B, alleged that the Board’s decision to terminate his employment was void,

because Rosales, who participated in the decision, was improperly appointed to the Board. In

Taylor, the appellant sought direct administrative review of the Board’s decision to terminate

his employment as a Cook County Sheriff’s police officer. Id. ¶¶ 9-10. In that action, the

appellant challenged the validity of the Board’s decision on the basis that Rosales was

improperly appointed to a term of less than six years. Id. ¶ 10. The trial court agreed, vacated

the Board’s termination decision, and remanded to the Board for a rehearing before a properly

constituted Board. Id. ¶ 11. The trial court also certified two questions for review by the

appellate court:

“ ‘Is a Cook County Sheriff’s Merit Board member that was appointed on June 2, 2011

to serve a term which expired on March 19, 2012, a lawfully appointed member of the

Merit Board when he presided over Percy Taylor’s Merit Board Hearing on February

27, 2013? If the Merit Board member was not lawfully appointed to the Merit Board,

does the decision of October 30, 2013 remain valid or is it rendered void?’ ” Id. ¶ 1.

The Taylor court concluded that because Rosales was appointed to a term of less than six years

in violation of the Merit Board Act, he was not a lawfully appointed member of the Board at

the time he participated in the hearing on the appellant’s termination. Id. ¶ 37. The Taylor court

also concluded that because the Board was not legally constituted at the time of the appellant’s

hearing (because Rosales was not a legally appointed Board member), its decision to terminate

the appellant was void, and the appellant was entitled to a rehearing in front of a properly

constituted Board. Id. ¶ 46.

¶ 19 Since Taylor, other individuals who have been subject to decisions by the Board have

raised challenges to those decisions on the basis that Rosales or other Board members were

improperly appointed to the Board for terms of less than six years. Of specific note are this

court’s decisions in Lopez v. Dart, 2018 IL App (1st) 170733, and Cruz v. Dart, 2019 IL App

(1st) 170915. In Lopez, the appellant challenged the Board’s termination decision on the basis

that Rosales, who had been appointed to a term of less than six years, participated in the

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decision. Lopez, 2018 IL App (1st) 170733, ¶ 37. Similarly, the appellant in Cruz challenged

the Board’s termination decision on the basis that three Board members—Widup, Brady, and

Mateo-Harris—were unlawfully appointed to terms of less than six years. Cruz, 2019 IL App

(1st) 170915, ¶ 28. In both cases, this court concluded that because the appellant was not the

first litigant to raise the issue of invalid appointments of Board members for terms of less than

six years, the de facto officer doctrine applied to validate the Board’s termination decisions.

Id. ¶ 38; Lopez, 2018 IL App (1st) 170733, ¶ 59.

¶ 20 In Lopez, we explained the de facto officer doctrine as follows:

“The de facto officer doctrine is a common law equitable doctrine that ‘confers

validity upon acts performed by a person acting under the color of official title even

though it is later discovered that the legality of that person’s appointment or election to

office is deficient.’ Ryder v. United States, 515 U.S. 177, 180 (1995). In other words,

under the doctrine, ‘a person actually performing the duties of an office under color of

title is considered to be an officer de facto, and his acts[,] as such officer[,] are valid so

far as the public or third parties who have an interest in them are concerned.’ Vuagniaux

v. Department of Professional Regulation, 208 Ill. 2d 173, 186-87 (2003) (citing People

ex rel. Chillicothe Township v. Board of Review, 19 Ill. 2d 424, 426 (1960)).” Id. ¶ 47.

The purpose of the doctrine is to permit the public to rely on an officer’s authority and to ensure

the orderly administration of justice. Id. ¶ 48. The United States Supreme Court put it this way:

“ ‘The de facto doctrine springs from the fear of the chaos that would result from

multiple and repetitious suits challenging every action taken by every official whose

claim to office could be open to question, and seeks to protect the public by insuring

the orderly functioning of the government despite technical defects in title to office.’ ”

Ryder v. United States, 515 U.S. 177, 180-81 (1995) (quoting 63A Am. Jur. 2d Public

Officers and Employees § 578, at 1080-81 (1984)).

¶ 21 Under the doctrine, attacks on an officer’s authority are divided into “collateral” and

“direct” attacks. Lopez, 2018 IL App (1st) 170733, ¶ 49. A collateral attack challenges the

government’s action on the basis that it was taken by officers who were not properly in office.

Id. A direct attack, on the other hand, challenges the officer’s qualifications, not the actions

that he took. Id. Traditionally, direct attacks are the only ones that have been allowed under

the de facto officer doctrine but only via a writ of quo warranto. Id. Collateral attacks,

however, are not allowed. Id.

¶ 22 After reviewing a number of cases in which the Illinois Supreme Court had applied or

addressed the validity of the de facto officer doctrine, the Lopez court concluded that the

application of the doctrine depended on the balancing of two competing public interests: the

interest in the orderly functioning of the government and the interest in discovering and

bringing to light improper agency appointments as a method of ensuring that agencies comply

with their governing statutes. Id. ¶ 58. The best balance, the Lopez court concluded, was that

discussed by Justice McMorrow in her special concurrence in Daniels v. Industrial Comm’n,

201 Ill. 2d 160 (2002): in a collateral proceeding, only the first challenger of an improper

appointment would be permitted to invalidate the agency’s decision, and all others would be

barred by the de facto officer doctrine. Lopez, 2018 IL App (1st) 170733, ¶ 58. As Justice

McMorrow explained:

“By permitting the claimant who brought the illegal appointments to light to receive a

new hearing, the incentive to discover and pursue such illegality is maintained. Once

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the matter has been litigated and decided by the courts, however, the public interest in

uncovering and addressing illegality is served. At that juncture, the public interest in

preserving the validity of a large multitude of commission decisions takes precedence.”

Daniels, 201 Ill. 2d at 176 (McMorrow, J., specially concurring, joined by Freeman,

J.).

¶ 23 Applying this rule to the facts before it, the Lopez court held as follows:

“Since the plaintiff in this case is not the first claimant to have brought the illegal

appointment of Rosales to light, we conclude that public interest is better served by not

invalidating the plaintiff’s termination decision. This will circumvent the upheaval that

would doubtlessly result if we were to invalidate the Merit Board’s decision and invite

hundreds of plaintiffs to seek invalidation of all the decisions rendered by the illegally

constituted panel during Rosales’s unauthorized term. The Merit Board’s decisions are

not solely limited to disciplinary actions and terminations but rather include promotions

and job classifications, all of which could be jeopardized on the basis of Rosales’s

improper appointment. Accordingly, we apply the de facto officer doctrine in this case

to find that the decision of the Merit Board as to the plaintiff was valid.” Lopez, 2018

IL App (1st) 170733, ¶ 59.

¶ 24 Not long after the decision in Lopez, this court in Cruz again held that the de facto officer

doctrine applied to uphold the validity of Board decisions when collaterally attacked on

grounds that Board members were improperly appointed to terms of less than six years. Cruz,

2019 IL App (1st) 170915, ¶ 38. Although the appellant in Cruz challenged the appointment

of Board members Widup, Mateo-Harris, and Brady, not Rosales, the appellant’s challenge

was to the same appointment irregularity raised in Taylor and Lopez—the interim appointment

of Board members for terms of less than six years. Id. The court also noted that the legislature

had been made aware of the irregularity and, in response, had remedied the problem by

amending the statute to allow the sheriff to make interim appointments. Id. ¶ 39 (citing Pub.

Act 100-562, § 5 (eff. Dec. 8, 2017)). Because of this, the Cruz court concluded that the

balancing of the public interests at stake favored promoting the orderly functioning of the

Board instead of invalidating its decisions where the irregularity had been remedied. Id. In

addition, the court observed that any unfairness to litigants who came after Taylor and were

thus barred from challenging their terminations was “more theoretical than practical” because,

even if the court were to conclude that the Board decisions in the cases following Taylor were

void, the only remedy available to the challengers would be a rehearing in front of a properly

constituted Board. Id. ¶ 40. This was because conclusions that the Board’s decisions were void

did not necessitate a conclusion that the litigants were also entitled to reinstatement, as many

of them sought. Id. Accordingly, the Cruz court held that the de facto officer doctrine applied

to bar the appellant’s claim that his termination by the Board was void due to the participation

of Widup, Mateo-Harris, and Brady in the decision, after they had been improperly appointed

for terms of less than six years.

¶ 25 In light of the decisions in Lopez and Cruz, we are compelled to conclude that Acevedo’s

claim that his termination was void because Rosales participated in the decision is barred by

the de facto officer doctrine. We reach this conclusion for all the same reasons stated in the

Lopez and Cruz cases. Acevedo raises the same issue with Rosales’s appointment as was raised

in Taylor, Lopez, and Cruz—an appointment to a term of less than six years; thus, he is not the

first one to collaterally attack this appointment irregularity. Because of this, the public interest

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in exposing such irregularities has been served, and the public interest in preserving the validity

of the vast number of the Board’s decisions must be upheld. See Daniels, 201 Ill. 2d at 176

(McMorrow, J., specially concurring, joined by Freeman, J.). Accordingly, Acevedo’s claim

that his termination decision is void because Rosales participated in the decision is barred by

the de facto officer doctrine. See Cruz, 2019 IL App (1st) 170915; Lopez, 2018 IL App (1st)

170733.

¶ 26 Acevedo raises a number of arguments against the application of the de facto officer

doctrine to his claim. First, he argues that his claims involve his constitutional rights to due

process and equal protection and, thus, the doctrine should not apply. In support, Acevedo cites

to language used by the United States Supreme Court in Ryder that past cases in which the

doctrine had been applied “did not involve basic constitutional protections designed in part for

the benefit of litigants” and that “one who makes a timely challenge to the constitutional

validity of the appointment of an officer who adjudicates his case is entitled to a decision on

the merits of the question and whatever relief may be appropriate if a violation indeed

occurred.” (Internal quotation marks omitted.) Ryder, 515 U.S. at 182-83.

¶ 27 What Acevedo fails to acknowledge, however, is that Ryder dealt with a challenge to the

appointment of two civilian judges to a military court on the basis that their appointments

violated the appointments clause of article II of the United States Constitution (id. at 182), and

the Supreme Court’s statements were made in specific reference to challenges to the

“constitutional validity of the appointment.” Here, although Acevedo claims that his

constitutional rights were violated, his claim is that the violations occurred as a result of the

statutorily improper appointment of Rosales. He does not claim that the appointment, itself,

was constitutionally infirm. Thus, Ryder’s statement that timely challenges to the constitutional

validity of appointments should be addressed on the merits does not apply here. Acevedo cites

no authority for the proposition that a litigant who claims that his constitutional rights were

violated by a termination decision by a statutorily infirm Board is immunized from application

of the de facto officer doctrine.

¶ 28 Acevedo also argues that the Lopez decision “glossed over” Justice Thomas’s dissent in

the case of Baggett v. Industrial Comm’n, 201 Ill. 2d 187 (2002). There, Justice Thomas took

issue with allowing only the first challenger to an improper appointment procedure to have a

new hearing; he did not, however, take issue with the application of the de facto officer doctrine

in general. Id. at 209. Rather, his position was that in situations involving decisions issued by

an improperly constituted agency, all of those decisions should either be upheld under the

de facto officer doctrine or, in the alternative, all challengers to such decisions should be

granted a new hearing. Id. It appears Justice Thomas’s concerns lied in his opinion that

allowing the first challenger relief but not affording the same relief to subsequent challengers

was not in the public interest. Id. at 207-08. Specifically, it did not solve the underlying

appointment irregularity, and it would invite litigation from a large number of litigants, only

to deny them relief. Id.

¶ 29 Although it might not have specifically addressed each point raised by Justice Thomas in

his Baggett dissent, it is nevertheless clear to us from its well-reasoned analysis that the Lopez

court took into consideration the various interests at issue in cases involving improperly

constituted agencies and struck the best balance possible. The fact that Justice Thomas and

Acevedo might disagree with that approach does not require us to perform a wholesale

reconsideration of the Lopez and Cruz holdings. Accordingly, we are not persuaded that the

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Lopez court’s failure to specifically address the issues raised in Justice Thomas’s Baggett

dissent requires us to deviate from the holdings in Lopez and Cruz.

¶ 30 Acevedo next argues that the de facto officer doctrine should not be applied in this case

because the appointment irregularities at issue were not “merely technical” but instead violated

substantial policy considerations. In particular, according to Acevedo, the appointment

irregularities identified in his first amended complaint violated the Merit Board Act’s goals of

having an experienced, independent, balanced, and nonpolitical Board. As an initial matter, we

observe that Acevedo did not allege any facts in the first amended complaint that support his

claim on appeal that the improperly appointed Board members were inexperienced or biased

or that their appointments resulted in a Board that was improperly skewed in favor of one

political party.

¶ 31 Moreover, in support of his position, Acevedo cites Nguyen v. United States, 539 U.S. 69

(2003). Nguyen, however, is not helpful to Acevedo. At issue in that case was the validity of a

decision of a United States Court of Appeals panel comprised of two article III judges and one

article IV territorial judge. Id. at 72-73. The United States Supreme Court concluded that

because only article III judges could serve on the United States Court of Appeals and, because

the territorial judge did not have article III powers, that territorial judge was not qualified to

serve on the United States Court of Appeals. Id. at 80. The government argued that the panel’s

decision should nevertheless be upheld under the de facto officer doctrine. Id. at 77. In

addressing that contention, the Court noted that it typically applied the doctrine in situations

where the defect in statutory authority was “merely technical,” such as when an otherwise

qualified district court judge was improperly appointed for temporary service in another

district. Id. at 77-78. However, the Court observed that, in cases on direct review, it had

declined to apply the doctrine where the violations were of a statute that “embodies a strong

policy concerning the proper administration of judicial business.” (Internal quotation marks

omitted.) Id. at 78. The Court identified these as cases where the person appointed was

incompetent to hold the appointment because the statute prohibited him or her from doing so.

See id. at 78-79. In other words, the difference between the irregular appointments to which

the doctrine applied and the impermissible appointments to which the doctrine did not apply

was “the difference between an action which could have been taken, if properly pursued, and

one which could never have been taken at all.” Id. at 79. Because the territorial judge at issue

in Nguyen was not permitted to serve on the United States Court of Appeals under any

circumstances since he was not an article III judge, his was an appointment that could never

be made. Id. at 80. Therefore, the Court declined to apply the de facto officer doctrine. Id.

¶ 32 In the present case, all of the appointment defects alleged in the first amended complaint

relate only to the technical requirements of appointments—length of terms and timing of

appointment approval. At no point has Acevedo made any argument that any of the improperly

appointed Board members were incompetent to serve on the Board, i.e., that they lacked the

proper qualifications or were otherwise prohibited from serving. In other words, Acevedo does

not allege that the members at issue could never serve but instead only alleges that their

appointments were not properly pursued. Accordingly, it appears to us that the appointments

in this case fall within the technical defect category as defined by the Nguyen court.

¶ 33 Acevedo also argues that by applying the de facto officer doctrine, nothing is done to

redress the wrongs done to the litigant. In addition, he argues that the amendment to the Merit

Board Act that allowed the sheriff to make interim appointments to the Board does not apply

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retroactively to validate the Board decisions issued prior to the amendment. There can be no

dispute that application of the de facto officer doctrine results in some litigants not being

permitted to invalidate the challenged agency’s decision. This consequence, however, has

always been inherent in the use of the doctrine, and yet the doctrine has been repeatedly utilized

by Illinois courts after balancing the competing interests involved. See Lopez, 2018 IL App

(1st) 170733, ¶¶ 52-57 (summarizing the consistent use of the de facto officer doctrine in

Illinois jurisprudence). We see no reason, at this juncture, to conclude that the balance of those

competing interests has changed so dramatically that the doctrine must be completely

discarded.

¶ 34 Relying on the case of Andrade v. Lauer, 729 F.2d 1475 (D.C. Cir. 1984), Acevedo argues

that the doctrine should not be applied because Dart had notice and knew of the defects in the

Board appointments, yet continued to appoint members and allow the Board to hear cases.

Again, Acevedo’s reliance is misplaced. The Andrade court, recognizing some of the

drawbacks in the application of the de facto officer doctrine, concluded that, under certain

circumstances, the purposes of the doctrine could be served while still allowing litigants to

pursue relief. Namely, where the plaintiff brings his action “at or around the time that the

challenged government action is taken” and is able to demonstrate “that the agency or

department involved has had reasonable notice under all the circumstances of the claimed

defect in the official’s title to office,” he should be allowed to pursue his action without

application of the de facto officer doctrine. Id. at 1499. Notably, in making his argument that

Andrade supports relaxing application of the doctrine in this case, Acevedo fails to mention

Andrade’s requirement that the action be brought at or around the time of the challenged action,

i.e., the issuance of Acevedo’s termination decision. Here, Acevedo did not bring this

challenge to his termination at or around the time the Board issued its termination decision in

January 2015. On direct review, Acevedo did not raise the issue of Rosales’s improper

appointment; he only raised it for the first time when he instituted the present action in May

2017, over two years after the termination decision was issued. Accordingly, even if we were

to overlook the fact that the D.C. Circuit’s application of the doctrine is not binding in Illinois

(Huck v. Northern Indiana Public Service Co., 117 Ill. App. 3d 837, 840 (1983)), and even if

we were to agree that Dart had the required notice, Acevedo has failed to meet the first

requirement for relaxing the application of the doctrine under Andrade.

¶ 35 Acevedo next argues that the Cruz decision “lumped every challenge to the jurisdiction of

the illegal Merit Board to issue disciplinary decisions as ‘irregularities in appointment

procedures.’ [Citation.] The Cruz decision essentially nullifies the Merit Board Act and grants

Sheriff Dart immunity to violate the appointment requirements as he pleases.” In addition,

Acevedo argues that Lopez “bars any challenge to any Merit Board appointment into

perpetuity.” We disagree, and we find Acevedo’s contention in this respect to be

disingenuously overbroad. The Lopez court was careful to limit itself and its holding to cases

involving Rosales’s improper appointment. See Lopez, 2018 IL App (1st) 170733, ¶ 59

(referring repeatedly and specifically to challenges to the illegal appointment of Rosales). As

for Cruz, that decision did not lump all challenges to the jurisdiction of the Board into a single

category of appointment irregularities. Rather, the Cruz court noted that although the appellant

in that case challenged the appointment of Board members other than Rosales, he did so based

on “the same problem with the appointment procedure that was before us in both Taylor and

Lopez” and was challenging the “same ‘irregularity’ in appointment procedures of the Board

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that has already come to our attention and been addressed.” Cruz, 2019 IL App (1st) 170915,

¶ 38. We think it apparent that the Cruz court was referring to appointments of less than six

years—the particular irregularity at issue—and not all appointment irregularities in general.

We see nothing in the language of either Lopez or Cruz to suggest that future challengers to

appointment irregularities other than appointments for less than six years will be barred by the

de facto officer doctrine.

¶ 36 Finally, Acevedo points out that he alleges appointment irregularities other than Rosales’s

improper appointment for a term of less than six years, namely, the appointment of Brady and

Mateo-Harris for terms of less than six years and the retroactive approval of the appointments

of Brazier, Dalicandro, and Widup. First, with respect to the challenges to Brady and Mateo-

Harris, they raise the same appointment irregularity—interim appointments of less than six

years—as was raised in Taylor, Lopez, and Cruz. Accordingly, those challenges are barred by

the de facto officer doctrine. Cruz, 2019 IL App (1st) 170915, ¶ 28.

¶ 37 More importantly, however, is the fact that the only basis alleged in the first amended

complaint for the claim that Acevedo’s termination was issued by an improperly constituted

Board is that Rosales was appointed to a term of less than six years. He makes no claim in the

first amended complaint that any of the other allegedly improperly appointed members

participated in his termination. 1 We note that in his opening brief, Acevedo claims that Widup

“oversaw [his] hearing, administered oaths, and ruled on the admissibility of evidence.” The

first amended complaint does not, however, contain any such allegations or support such an

inference. Rather, Acevedo alleged that the Board decision terminating his employment was

null and void “because the Board was improperly constituted with former Member John R.

Rosales having been invalidly appointed under the [Merit Board] Act.” Later, he alleged:

“17. Plaintiff Acevedo is a former Cook County Correctional Officer who was

terminated by the Defendant Board in a decision dated January 12, 2015. Member

Rosales was a part of the deliberations on Acevedo’s termination decision, and signed

off on the final order terminating his employment.”

He made no allegations anywhere in the first amended complaint that Widup participated in

the decision to terminate his employment. Instead, the only allegations related to Widup were

that he “deliberated upon, and signed off on the cases of officers similarly-situated to

Plaintiffs.” Accordingly, we decline to consider any allegation raised for the first time on

appeal that Acevedo’s termination was null because Widup participated in the decision. See

Wells Fargo Bank, N.A. v. Maka, 2017 IL App (1st) 153010, ¶ 24 (stating that issues not raised

in the trial court cannot be raised for the first time on appeal).

¶ 38 We recognize that that the first amended complaint included allegations regarding the

improper appointments of Brazier, Dalicandro, and Widup as they relate to the putative,

1

We note that Dart’s brief on appeal states that after the dismissal of Wuerffel and Meza, “the

remaining factual allegations of the First Amended Complaint boiled down to Acevedo’s claim that

Rosales and Widup, as well as most of the other participants in the Merit Board decision against him,

were improperly appointed.” To the extent that Dart suggests that the first amended complaint contains

allegations that Widup or any other of the allegedly improperly appointed Board members participated

in Acevedo’s termination, he is incorrect. As we discuss, of the named Board members were allegedly

improperly appointed, only Rosales was identified in the first amended complaint as having participated

in Acevedo’s termination decision.

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unnamed class members. We need not consider these, however, because unless Acevedo, as

the last remaining named plaintiff and putative class representative, is able to state a valid

cause of action, the class action cannot be certified and maintained. See De Bouse v. Bayer

AG, 235 Ill. 2d 544, 560 (2009) (where the named plaintiff was unable to maintain a cause of

action against the defendant, she was not an appropriate representative of the putative class

and class certification was not appropriate); Landesman v. General Motors Corp., 72 Ill. 2d

44, 48-49 (1978) (holding that “[t]he requirement that the named representatives of the putative

class possess a valid cause of action is subsumed” in the class certification requirements that

common questions of law and fact predominate and that the representative parties will fairly

and adequately protect the interests of the class, and that if the trial court finds that the

complaint fails to state a cause of action, it should be dismissed); Spring Mill Townhomes Ass’n

v. OSLA Financial Services, Inc., 124 Ill. App. 3d 774, 779-80 (1983) (where none of the

named plaintiffs had a cause of action against the defendants, no class action could be

maintained and the trial court did not err in directing a verdict in favor of defendants on the

complaint).

¶ 39 We conclude, for all the reasons stated above, that Acevedo’s claim that the Board’s

decision terminating his employment was null and void due to Rosales’s improper appointment

is barred by the de facto officer doctrine, and thus, he was unable to state a cause of action

against defendants. In turn, because Acevedo does not have a valid cause of action against the

defendants, and because the other named plaintiffs—Meza and Wuerffel—voluntarily

dismissed their claims, the trial court properly dismissed the first amended complaint in its

entirety.

¶ 40 III. CONCLUSION

¶ 41 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 42 Affirmed.

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