Goral v. Dart

2020 IL 125085

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 125085)

MATTHEW GORAL et al., Appellees, v. THOMAS J. DART et al., Appellants.

Opinion filed October 22, 2020.

JUSTICE NEVILLE delivered the judgment of the court, with opinion.

Chief Justice Anne M. Burke and Justices Kilbride and Karmeier concurred in

the judgment and opinion.

Justice Michael J. Burke dissented, with opinion, joined by Justices Garman

and Theis.

OPINION

¶1 Defendant, Thomas J. Dart, Sheriff of Cook County (Sheriff), instituted

employment disciplinary proceedings against plaintiffs, Matthew Goral, Kevin

Badon, Michael Mendez, Milan Stojkovic, David Evans III, Frank Donis, and

Lashon Shaffer, who were employed as officers for the Sheriff. The disciplinary

charges against plaintiffs were filed with the Cook County Sheriff’s Merit Board

(Merit Board) pursuant to section 3-7011 of the Counties Code (Code). 55 ILCS

5/3-7011 (West 2012). Plaintiffs filed motions with the Merit Board to dismiss the

disciplinary charges against them. While the administrative proceedings were

pending, plaintiffs filed an action in the circuit court of Cook County for

declaratory, injunctive, and monetary relief against the Sheriff, Cook County, the

Merit Board, and Toni Preckwinkle, president of the Cook County Board of

Commissioners (collectively, defendants). In that lawsuit, plaintiffs asserted that

the Merit Board was not legally constituted because several of its members had

been appointed to and/or served terms that did not comply with the statutory

requirements set forth in section 3-7002 of the Code. Id. § 3-7002. On defendants’

motions, the circuit court of Cook County dismissed plaintiffs’ action on the ground

that they had failed to exhaust their administrative remedies. The appellate court

reversed in part, holding inter alia that, since plaintiffs had challenged the authority

of the Merit Board to address the charges, the “authority” exception to the

exhaustion requirement applied. See 2019 IL App (1st) 181646, ¶ 39. We allowed

defendants’ petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. July 1, 2018). For

the reasons that follow, we affirm the judgment of the appellate court and remand

to the circuit court for further proceedings.

¶2 I. BACKGROUND

¶3 Plaintiffs are employees of the Cook County Sheriff whom the Sheriff charged

with disciplinary infractions and placed on unpaid administrative leave pending

decisions by the Merit Board. From the beginning of their disciplinary proceedings,

plaintiffs have challenged the authority of the Merit Board to hear their cases on

the ground that the Merit Board was illegally constituted.

¶4 On September 16, 2016, the Sheriff filed disciplinary complaints against

plaintiffs Goral, Badon, Mendez, and Stojkovic, seeking to terminate their

employment.

¶5 On September 23, 2016, the appellate court issued its first decision in Taylor v.

Dart, 2016 IL App (1st) 143684, ¶¶ 7-8, which held that Taylor’s termination as a

Sheriff’s employee was void because the Merit Board’s composition was illegal on

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the ground that a Merit Board member (Rosales) had been appointed on an interim

basis in violation of section 3-7002 of the Code (55 ILCS 5/3-7002 (West 2012)).

¶6 The Sheriff appealed that decision, and on January 25, 2017, this court entered

a supervisory order directing the appellate court to vacate its judgment and decide

an issue it had declined to address regarding Cook County’s home-rule authority.

See Taylor v. Dart, No. 121507 (Ill. Jan. 25, 2017) (supervisory order).

¶7 On February 22, 2017, the Sheriff filed a disciplinary complaint against plaintiff

Evans with the Merit Board seeking his termination.

¶8 On May 12, 2017, the appellate court issued its second decision in Taylor v.

Dart, 2017 IL App (1st) 143684-B. The appellate court again held that the interim

appointment of Rosales violated the Code and that the termination of Taylor’s

employment was void because the Merit Board lacked statutory authority to issue

that decision. Id. ¶¶ 37, 46. The court also addressed the home-rule issue and held

that it did not alter the result in its prior ruling. Id. ¶ 50.

¶9 On July 20, 2017, the Sheriff suspended plaintiff Shaffer without pay and filed

a disciplinary complaint with the Merit Board seeking his termination.

¶ 10 During the preliminary stages of their administrative proceedings, all plaintiffs

raised arguments challenging the Merit Board’s statutory authority to hear their

cases, based in part on the appellate court’s decision in Taylor. These challenges

were raised in motions to dismiss, which the Merit Board declined to address on

the ground that such motions were not authorized in its administrative rules.

¶ 11 On November 27, 2017, plaintiffs filed a lawsuit for declaratory, injunctive, and

monetary relief against the Sheriff. 1 The complaint challenged the legal

composition of the Merit Board and, therefore, the Merit Board’s statutory authority

to address the disciplinary charges against plaintiffs.

¶ 12 After that lawsuit was filed and in response to Taylor, the legislature amended

the Code provision governing Merit Board appointments. In particular, the

amendment to section 3-7002 of the Code, which became effective December 8,

1

The original complaint was filed by plaintiffs Goral, Badon, Mendez, and Stojkovic. On

December 11, 2017, the first amended complaint was filed adding Evans and Shaffer as plaintiffs.

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2017, made the following changes: (1) permitted the Sheriff to make interim

appointments to the Merit Board; (2) abolished all existing terms of each member

of the Merit Board; and (3) created a new schedule for staggered terms of Merit

Board members. See Pub. Act 100-562, § 5 (eff. Dec. 8, 2017) (amending 55 ILCS

5/3-7002).

¶ 13 On December 13, 2017, the Sheriff appointed a new Merit Board. The

composition of the new Merit Board included six of the seven members of the

previous board but with varying terms.

¶ 14 On January 23, 2018, the Sheriff filed with the new Merit Board “amended”

charges against each plaintiff. The amended charges simply restated the allegations

that had been filed previously.

¶ 15 On February 26, 2018, plaintiffs filed a second amended complaint against

defendants. That complaint, which is at issue in this appeal, challenged the legal

composition of both the previous Merit Board and the new Merit Board appointed

after December 8, 2017. The complaint’s allegations relating to the previous Merit

Board asserted that some members had been appointed to illegal interim terms; the

Merit Board was composed of only five members, not the required seven members;

some of the member’s terms were not staggered as required by the Code; and the

Merit Board’s chairperson and secretary held their positions longer than permitted

under the Code.

¶ 16 The complaint’s allegations against the new Merit Board asserted that the prior

board’s lack of authority could not be “cured” by filing amended charges with a

new Merit Board, the Merit Board’s political composition violated the Code, the

chairperson and secretary continued to hold their positions longer than permitted

under the Code, the Merit Board created “fatal due process problems” by now

requiring plaintiffs to pay the costs of disciplinary hearing transcripts, and the Merit

Board is biased against the plaintiffs.

¶ 17 On July 26, 2018, the circuit court granted defendants’ section 2-619(a)(1) (735

ILCS 5/2-619(a)(1) (West 2018)) motion to dismiss, ruling that plaintiffs were

required to exhaust their administrative remedies before seeking relief outside the

context of administrative review. The circuit court noted that the amended

disciplinary charges against plaintiffs were still pending before the Merit Board.

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The court determined that, since the administrative proceedings were ongoing and

plaintiffs could exhaust their claims for relief before the Merit Board, the court

lacked subject-matter jurisdiction. Plaintiffs appealed the circuit court’s dismissal

of their complaint.

¶ 18 While the appeal was pending, the Merit Board issued decisions on the charges

against Shaffer and Evans. In an order dated December 14, 2018, the Merit Board

found that Shaffer should be separated from the Cook County Sheriff’s Office,

effective July 25, 2017. The Merit Board found in favor of Evans and ordered that

he be reinstated, effective February 22, 2017.

¶ 19 On June 26, 2019, the appellate court reversed the dismissal of plaintiffs’

lawsuit. See 2019 IL App (1st) 181646, ¶¶ 114-15. 2 The court determined that

plaintiffs’ complaint alleged several defects in the Merit Board’s composition,

which would nullify the Merit Board’s authority to adjudicate the administrative

actions against plaintiffs. The court found that, as the allegations challenged the

Merit Board’s lawful composition and its authority to act, the complaint fell within

the “authority” exception to the exhaustion doctrine. Id. ¶¶ 38-39.

¶ 20 The appellate court relied on the authority exception to conclude that the circuit

court could hear plaintiffs’ claims challenging the composition of the Merit Board.

The court also determined that plaintiffs may proceed with their claims for back

pay, which resulted from the proceedings before the illegally constituted Merit

Board. Id. ¶¶ 52-53.

¶ 21 With regard to plaintiffs’ due process claims, the appellate court held that the

two claims that were premised on alleged bias of the Merit Board did not fall within

the “futility” exception to the exhaustion requirement and, therefore, were properly

dismissed for lack of subject-matter jurisdiction. Id. ¶¶ 62-70, 72-74. The court

found that the plaintiffs’ final due process claim, premised on the new imposition

of a fee to obtain hearing transcripts, may or may not fall within the “futility”

exception. The court ruled that plaintiffs must be given an opportunity to amend

their complaint to assert “futility,” if they can do so in good faith. Accordingly, that

claim was not subject to dismissal. Id. ¶¶ 76-81.

2

On the motion of defendants, the appellate court filed a corrected opinion on July 10, 2019,

deleting all references to plaintiff Frank Donis as a party to the appeal.

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¶ 22 The appellate court also addressed defendants’ alternative argument that the

“de facto officer” doctrine confers validity upon the Merit Board’s actions and,

thereby, precludes the circuit court from considering plaintiffs’ claims. The court

found that the de facto officer doctrine does not apply in this case because plaintiffs

had consistently challenged the Merit Board’s authority to adjudicate the

disciplinary complaints against them since their cases began and they were not

attempting to avoid the consequences of a concluded administrative action. Id.

¶¶ 96-112.

¶ 23 After the appellate court issued its opinion, the Merit Board adjudicated the

charges against Goral, Baden, Mendez, and Stojkovic. In orders dated July 10,

2019, the Merit Board found that all four plaintiffs should be reinstated to the Cook

County’s Sheriff’s Department, effective September 16, 2016.

¶ 24 In each plaintiff’s case, the Merit Board found its members to be duly appointed

under the December 2017 amendments to the Code. The Merit Board also found

that it had authority to receive the Sheriff’s complaints, as that was an

administrative function handled by agency staff members and not by Merit Board

members.

¶ 25 Defendants appeal the judgment of the appellate court. We granted the Illinois

Attorney General and the City of Chicago leave to submit an amici curiae brief in

support of defendants’ position. Ill. S. Ct. R. 345 (eff. Sept. 10, 2010).

¶ 26 II. ANALYSIS

¶ 27 At issue is whether the circuit court erred in granting defendants’ section 2-

619(a)(1) motion to dismiss plaintiffs’ complaint based on lack of subject-matter

jurisdiction. 735 ILCS 5/2-619(a)(1) (West 2018). A motion to dismiss pursuant to

section 2-619 admits the legal sufficiency of the complaint but asserts another

affirmative matter that defeats the claim. American Family Mutual Insurance Co.

v. Krop, 2018 IL 122556, ¶ 13. Such a motion also admits as true all well-pleaded

facts and all reasonable inferences that can be drawn from them. Id. Section 2-

619(a)(1) authorizes the dismissal of a complaint where the court does not have

jurisdiction of the subject matter of the action. 735 ILCS 5/2-619(a)(1) (West

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2018). In appeals from dismissal under section 2-619, the standard of review is

de novo. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009).

¶ 28 Before this court, defendants challenge the appellate court’s holding that the

circuit court had subject-matter jurisdiction to address plaintiffs’ complaint. In

particular, defendants contend that the appellate court erroneously applied the

authority exception to excuse plaintiffs from exhausting their administrative

remedies. Defendants further maintain that the Merit Board should receive

appointment challenges and complete a disciplinary case prior to the circuit court

acquiring jurisdiction. In the alternative, defendants contend that, even if the

exhaustion of remedies requirement does not apply, the de facto officer doctrine

precludes the circuit court from addressing plaintiffs’ claims.

¶ 29 In response, plaintiffs urge that the appellate court’s judgment be affirmed,

asserting that the authority exception to the exhaustion requirement was correctly

applied and, thus, the circuit court had jurisdiction to hear their challenge to the

composition of the Merit Board. Plaintiffs contend that the application of the

authority exception was justified because their challenges called into question the

authority of the Merit Board to conduct any proceedings against them. Plaintiffs

further contend that the de facto officer doctrine does not preclude their claims for

relief in the circuit court.

¶ 30 A. Statutory Overview

¶ 31 Article VIII of the Merit Board’s rules and regulations provides that the Sheriff,

without filing charges with the Merit Board, may suspend a Sheriff’s officer for

any reasonable amount of time not to exceed 30 days. If the Sheriff seeks to

terminate, demote or suspend an officer for a period of time in excess of 30 days,

he must file a charge against such an officer with the Merit Board.

¶ 32 The Merit Board has exclusive authority to remove, demote, or suspend in

excess of 30 days or terminate rank-and-file Sheriff’s officers as a disciplinary

sanction for violation of the Sheriff’s rules, regulations, and code of conduct. 55

ILCS 5/3-7011, 3-7012 (West 2012).

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¶ 33 Because an administrative agency is a creature of statute, it has no general or

common-law powers. Ferris, Thompson & Zweig, Ltd. v. Esposito, 2015 IL

117443, ¶ 16 (citing Alvarado v. Industrial Comm’n, 216 Ill. 2d 547, 553 (2005));

Landfill, Inc. v. Pollution Control Board, 74 Ill. 2d 541, 554 (1978). An

administrative agency’s powers are limited to those granted by the legislature, and

any action taken by an agency must be authorized by its enabling act. Ferris,

Thompson & Zweig, Ltd., 2015 IL 117443, ¶ 16; Alvarado, 216 Ill. 2d at 553; City

of Chicago v. Fair Employment Practices Comm’n, 65 Ill. 2d 108, 112-13 (1976).

¶ 34 The Illinois Constitution provides that circuit courts have jurisdiction to review

administrative decisions as provided by law. Ill. Const. 1970, art. VI, § 9. The

Administrative Review Law “shall apply to and govern every action to review

judicially a final decision of any administrative agency where the Act creating or

conferring power on such agency, by express reference, adopts the provisions of

*** the Administrative Review Act.” 735 ILCS 5/3-102 (West 2018). Where it is

adopted, the Administrative Review Law bars any other statutory, equitable, or

common-law mode of review of decisions of administrative agencies. Id.; Illinois

Bell Telephone Co. v. Allphin, 60 Ill. 2d 350, 355 (1975). The Code provides that

the Administrative Review Law applies to and governs proceedings for review of

the Merit Board. 55 ILCS 5/3-7012 (West 2012).

¶ 35 B. The Doctrine of Exhaustion of

Administrative Remedies

¶ 36 1. General Principles

¶ 37 The exhaustion doctrine is well established in administrative case law. McKart

v. United States, 395 U.S. 185, 193 (1969); Allphin, 60 Ill. 2d at 357-58. The

common-law doctrine provides that a party aggrieved by an administrative decision

ordinarily cannot seek judicial review without first pursuing all available

administrative remedies. Castaneda v. Illinois Human Rights Comm’n, 132 Ill. 2d

304, 308 (1989). An administrative decision “means any decision, order or

determination of any administrative agency rendered in a particular case, which

affects the legal rights, duties or privileges of parties and which terminates the

proceedings before the administrative agency.” 735 ILCS 5/3-101 (West 2018). In

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Illinois, the common-law doctrine of exhaustion is incorporated in the

Administrative Review Law. Castaneda, 132 Ill. 2d at 320-21.

¶ 38 Exhaustion of administrative remedies serves two main purposes. First,

exhaustion gives the agency an opportunity to correct its own mistakes with respect

to the programs it administers. Second, exhaustion promotes efficiency, in that

claims generally can be resolved much more quickly and economically in

proceedings before an agency. Woodford v. Ngo, 548 U.S. 81, 89 (2006);

Beahringer v. Page, 204 Ill. 2d 363, 375 (2003).

¶ 39 This court has further recognized that requiring the exhaustion of remedies

(1) allows the administrative agency to fully develop and consider the facts of the

cause before it, (2) allows the agency to utilize its expertise, and (3) allows the

aggrieved party to ultimately succeed before the agency, rendering judicial review

unnecessary. Castaneda, 132 Ill. 2d at 308; see also Allphin, 60 Ill. 2d at 358. The

doctrine also helps protect agency processes from impairment by avoidable

interruptions, allows the agency to correct errors, and conserves valuable judicial

time by avoiding piecemeal appeals. Castaneda, 132 Ill. 2d at 308.

¶ 40 As noted above, where the Administrative Review Law is applicable and

provides a remedy, a circuit court may not redress a party’s grievance through any

other type of action. Ill. Const. 1970, art. VI, § 9; Dubin v. Personnel Board of the

City of Chicago, 128 Ill. 2d 490, 498 (1989). The court’s power to resolve factual

and legal issues arising from an agency’s decision must be exercised within its

review of the agency’s decision and not in a separate proceeding. Dubin, 128 Ill.

2d at 498-99. Thus, administrative remedies must be exhausted before equitable

relief is sought from the courts. Id.

¶ 41 Although the exhaustion doctrine is firmly established and strict compliance

with the doctrine is generally required, there are several exceptions that are also

equally well established. County of Knox ex rel. Masterson v. The Highlands,

L.L.C., 188 Ill. 2d 546, 552 (1999); see also Castaneda, 132 Ill. 2d at 309. Two

such exceptions are “ ‘where no issues of fact are presented, or agency experience

is not involved *** or where the agency’s jurisdiction is attacked because it is not

authorized by statute.’ ” County of Knox, 188 Ill. 2d at 552 (quoting Castaneda,

132 Ill. 2d at 309); see also Board of Governors of State Colleges & Universities

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for Chicago State University v. Illinois Fair Employment Practices Comm’n, 78 Ill.

2d 143, 147-48 (1979); Landfill, Inc., 74 Ill. 2d at 551.

“ ‘ “The term ‘jurisdiction,’ while not strictly applicable to an

administrative body, may be employed to designate the authority of the

administrative body to act ***.” [Citation.] Thus, in administrative law, the

term “jurisdiction” has three aspects: (1) personal jurisdiction—the agency’s

authority over the parties and intervenors involved in the proceedings,

(2) subject matter jurisdiction—the agency’s power “to hear and determine

cases of the general class of cases to which the particular case belongs”

[citation], and (3) an agency’s scope of authority under the statutes.’ ” County

of Knox, 188 Ill. 2d at 553 (quoting Business & Professional People for the

Public Interest v. Illinois Commerce Comm’n, 136 Ill. 2d 192, 243 (1989)).

¶ 42 This court has explained that, where an agency’s statutory authority to exercise

jurisdiction is at issue, no questions of fact are involved, and the agency’s expertise

is not implicated in statutory interpretation. Board of Governors, 78 Ill. 2d at 147-

48; see also Landfill, Inc., 74 Ill. 2d at 550-51. Further, where the authority of an

administrative body is in question, the determination of the scope of its power and

authority is a judicial function, not a question to be finally determined by the

administrative agency itself. County of Knox, 188 Ill. 2d at 554. In addition, this

court has recognized that there is virtually no chance that the aggrieved party will

succeed before an agency where the issue is the agency’s own assertion of

authority. Board of Governors, 78 Ill. 2d at 148; Landfill, Inc., 74 Ill. 2d at 550-51.

¶ 43 2. The Exhaustion Doctrine Does Not Apply

¶ 44 In challenging the appellate court’s decision, defendants assert that the Merit

Board should retain jurisdiction to decide any challenges to its composition and

complete a disciplinary case prior to review in the circuit court. Defendants further

contend that an administrative agency is in a superior position to address

appointment deficiency challenges that are raised in the agency before a final

decision is reached. In essence, defendants argue that plaintiffs must fully litigate

the disciplinary charges and exhaust their administrative remedies before the Merit

Board, which they have alleged lacks statutory authority to adjudicate those

charges. We disagree.

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¶ 45 Here, plaintiffs alleged in their complaint that the preamendment Merit Board

was composed of illegal interim appointees and appointees to nonstaggered terms;

that after two members resigned, the Merit Board was composed of only five

members, as opposed to the statutorily required seven members; and that the

chairman and secretary of the Merit Board had violated their mandatory term limits.

Plaintiffs further alleged that the postamendment Merit Board failed to meet the

Code’s political affiliation requirements. Thus, plaintiffs have asserted

compositional defects with the Merit Board prior to the December 8, 2017,

amendments to the Code as well as after those amendments went into effect.

¶ 46 Further, plaintiffs raised their objections to the Merit Board’s authority to

adjudicate their cases shortly after the charges were filed, but the Merit Board

declined to rule on them until after the disciplinary proceedings were complete. In

responding to plaintiffs’ motions to dismiss, the Merit Board determined that,

because its rules and regulations did not provide for such motions, it could neither

grant nor deny plaintiffs’ requests for dismissal. Thus, the Merit Board took no

action and rendered no decision regarding plaintiffs’ claims prior to the filing of

plaintiffs’ lawsuit in the circuit court in November 2017.

¶ 47 As noted above, determining the scope of any agency’s power and authority is

a judicial function rather than a question for the agency to answer itself. County of

Knox, 188 Ill. 2d at 554; Gallaher v. Hasbrouk, 2013 IL App (1st) 122969, ¶ 19. In

their claims for declaratory, injunctive, and monetary relief, plaintiffs challenged

the Merit Board’s composition and, thus, its jurisdiction to conduct proceedings

against them. Because plaintiffs’ allegations fell within the authority exception, the

exhaustion doctrine did not bar them from pursuing their claims in the circuit court.

See County of Knox, 188 Ill. 2d at 552; Castaneda, 132 Ill. 2d at 309; see also Office

of the Lake County State’s Attorney v. Illinois Human Rights Comm’n, 200 Ill. App.

3d 151, 157 (1990) (holding that, where the remedy of administrative and judicial

review would come only after a hearing that the agency has no jurisdiction to

conduct, it can be said that, as a matter of law, plaintiffs have no other remedy at

law (citing People ex. rel. Olin Corp. v. Department of Labor, 95 Ill. App. 3d 1108,

1112 (1981))). We conclude that the exhaustion of remedies doctrine does not

preclude a challenge to the statutory jurisdiction of the Merit Board. See County of

Knox, 188 Ill. 2d at 555; see also Castaneda, 132 Ill. 2d at 309; Business &

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Professional People for the Public Interest, 136 Ill. 2d at 245 (finding, to the extent

an agency acts without statutory authority, it acts outside its jurisdiction).

¶ 48 In seeking to avoid this result, defendants contend that the appellate court

erroneously excused the exhaustion requirement by applying the authority

exception to plaintiffs’ complaints. Defendants argue that this court has narrowly

limited the authority exception to situations where an agency exceeds its authority

by promulgating a rule or regulation that falls outside the statutory subject matter

assigned to the agency’s jurisdiction by the legislature. Defendants maintain that

the authority exception has never been applied to procedural appointment

challenges, which are unrelated to the scope of the Merit Board’s statutory

rulemaking power and unrelated to the Merit Board’s subject-matter jurisdiction.

¶ 49 Defendants further argue that the appellate court erred in relying on Vuagniaux

v. Department of Professional Regulation, 208 Ill. 2d 173 (2003), and Daniels v.

Industrial Comm’n, 201 Ill. 2d 160 (2002), in applying the authority exception to

plaintiffs’ procedural appointment challenges because those two cases did not

involve the exhaustion doctrine. Although we agree that Vuagniaux and Daniels

have no bearing on the exhaustion doctrine per se, we reject defendants’ argument

that the authority exception cannot be applied under the circumstances presented

here.

¶ 50 In asserting that the authority exception applies only to improper rulemaking,

defendants rely on Crittenden v. Cook County Comm’n on Human Rights, 2013 IL

114876, ¶ 34, in which this court held that the Cook County Commission on Human

Rights lacked authority to award punitive damages because its enabling legislation

did not provide the commission with the express authority to award punitive

damages. Defendants also rely on County of Knox, 188 Ill. 2d at 555, which

similarly concluded that a zoning board did not have authority to regulate the

agricultural land at issue because its empowering statute did not allow it to do so.

Defendants further rely on City of Chicago, 65 Ill. 2d at 115, in which this court

held that, absent statutory authorization, the commission exceeded its jurisdiction

in awarding attorney fees. None of the decisions cited by defendants were premised

on the administrative agencies’ promulgation of a rule or regulation that fell outside

its subject-matter jurisdiction. Rather, they rested on a lack of authority as defined

by each administrative tribunal’s enabling statute. Thus, the precedent on which

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defendants rely does not support their contention that the exhaustion doctrine’s

authority exception is restricted to improper rulemaking by an agency.

¶ 51 Plaintiffs’ allegations that the Merit Board was not lawfully constituted call into

question the Merit Board’s authority to act and to proceed against them. Indeed,

plaintiffs have challenged the Merit Board’s inherent power and authority to

adjudicate where, if as alleged, any order in the proceedings would be void. See

Business & Professional People for the Public Interest, 136 Ill. 2d at 243-44

(finding that a decision by an agency that lacks jurisdiction or lacks the inherent

power to make or enter the particular order involved is void and may be attacked at

any time or in any court, either directly or collaterally). Consequently, we find that,

under the circumstances here, where plaintiffs have challenged the Merit Board’s

composition and its authority to act, the authority exception to the exhaustion

requirement applies. Board of Governors, 78 Ill. 2d at 147; see also Landfill, Inc.,

74 Ill. 2d at 550 (reasoning that the purposes for the exhaustion requirement are not

served where an administrative assertion of authority to hear or determine certain

matters is attacked on the grounds that the assertion of jurisdiction is not authorized

by statute). 3

¶ 52 3. The Merit Board’s Expertise Is Not Implicated

¶ 53 In support of their contention that the appellate court erroneously excused

plaintiffs from satisfying the exhaustion requirement, defendants posit that

plaintiffs’ disputes before the Merit Board are primarily factual or specialized legal

matters that call upon the Merit Board’s expertise. Defendants maintain that the

exhaustion of remedies requirement allows the agency to utilize its expertise, while

fully developing the record, to consider the facts at issue. Defendants assert that the

members of the Merit Board are either lawyers with experience in law enforcement

or government practices or are nonlawyers with law enforcement, local

government, or community organizing experience. Defendants contend that the

Merit Board routinely brings this expertise to bear, including its familiarity with

rules and regulations, in cases before it and should be allowed to employ that

3

Defendants also have argued that the futility exception to the exhaustion doctrine does not

apply. In light of our determination that the authority exception applies to plaintiffs’ challenges, we

need not address this argument.

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expertise regarding plaintiffs’ challenges to the Merit Board’s composition. This

argument is without merit.

¶ 54 Based on the comprehensive statutory scheme governing the Merit Board, we

observe that the legislature has deemed the Merit Board to be the proper entity in

making factual findings and decisions regarding disciplinary complaints against

Sheriff’s officers. See 55 ILCS 5/3-7001 (West 2012). In addition, the legislature

has provided that the Merit Board should employ its expertise in the appointment,

promotion, and disciplinary proceedings regarding the Sheriff’s officers. Id. § 3-

7006 (stating the Merit Board shall establish a classification of ranks of the deputy

sheriffs in the county police department); id. § 3-7008 (defining requirements for

certification of applicants for sworn Sheriff’s positions); id. § 3-7009 (defining

requirements for certification of promotions to sergeant and lieutenant); id. § 3-

7012 (providing for written charges to be filed by the Sheriff against sworn officers,

triggering a hearing before the Merit Board, and establishing its powers regarding

such hearings).

¶ 55 However, the Merit Board is not vested with the authority to make its own

appointments. See id. § 3-7002 (providing that the Sheriff appoints Merit Board

members, with confirmation by the Cook County Board). There is nothing in the

statutory language to suggest that the legislature intended for the Merit Board to

make decisions regarding its own members’ appointments or its composition.

Consequently, we conclude that it would be unreasonable to find that these

provisions direct the Merit Board to address such challenges. See Board of

Governors, 78 Ill. 2d at 148; see also Landfill, Inc., 74 Ill. 2d at 551 (finding that,

where an agency’s statutory authority to exercise jurisdiction is at issue, such a

determination involves no questions of fact and the agency’s particular expertise is

not implicated).

¶ 56 4. The Alleged Potential for Chaos

at the Administrative Level

¶ 57 Defendants next contend that allowing widespread exceptions to the exhaustion

doctrine would thwart the legislative intent of consigning certain disputes to agency

specialists and would create “unworkable chaos” at the Merit Board. Defendants

maintain that the decision by the appellate court imposes fact-finding burdens on

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the circuit courts that “fly in the face” of legislation about the role of courts in

reviewing agency actions. According to defendants, the result reached by the

appellate court would subject administrative agencies throughout Illinois to a wave

of declaratory or injunctive lawsuits based on interlocutory procedural challenges

to individual agency hearing officers. Defendants further contend that allowing

plaintiffs to “skip over” administrative processes by filing claims in the circuit court

is the opposite of judicial economy and efficiency. We do not agree.

¶ 58 Initially, we note that plaintiffs did not “skip over” the Merit Board but, rather,

raised the issue before the Merit Board, which refused to hear them until after the

disciplinary proceedings were complete. Further, there is no indication that there is

a plethora of challenges to the statutory authority of other agencies because of

appointment defects. Moreover, Illinois Rule of Professional Conduct 3.1 (eff. Jan.

1, 2010) prohibits the filing of frivolous lawsuits. Specifically, Rule 3.1 provides

that “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an

issue therein, unless there is a basis in law and fact for doing so that is not frivolous,

which includes a good-faith argument for an extension, modification or reversal of

existing law.” Id. We are confident that the bar will adhere to that proscription.

Thus, there are adequate safeguards in place to protect against the chaos that

defendants allege.

¶ 59 5. The Alleged Risk of Piecemeal

and Simultaneous Litigation

¶ 60 We next consider defendants’ contention that the exhaustion doctrine applies

without exception to plaintiffs’ challenges since the doctrine conserves valuable

judicial time by avoiding piecemeal appeals. Defendants further contend that this

court has never allowed simultaneous litigation in the court and at the agency—

appointment challenges in the circuit court and disciplinary charges before the

Merit Board. Defendants assert that the exhaustion doctrine cautions against

disrupting and paralyzing an agency with a premature lawsuit in the circuit court

before the agency has decided a disputed case.

¶ 61 In support, defendants cite several decisions that forbid simultaneous litigation

in the agency and the circuit court. See Cinkus v. Village of Stickney Municipal

Officers Electoral Board, 228 Ill. 2d 200, 212-13 (2008) (requiring all issues to be

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resolved in an agency before they can be raised in circuit courts serves the purpose

of the orderly procedure and justice in forbidding new arguments on administrative

review); Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 278-79

(1998) (administrative review is confined to the proof before the agency and serves

the purpose of avoiding piecemeal litigation); Dubin, 128 Ill. 2d at 498 (holding

that the Administrative Review Law bars other types of actions against an agency).

This argument lacks merit.

¶ 62 The cases cited by defendants are inapplicable because they deal with

challenges to final administrative decisions made by an agency and the sufficiency

of the agency’s findings of fact. The present action was brought as a declaratory

and injunctive action, and the issue is not whether an order was correct but whether

the agency had the authority to enter any order at all.

¶ 63 In our view, the height of inefficiency and waste is to allow the proceedings to

continue before an administrative tribunal that is being challenged as illegally

comprised. Defendants fail to acknowledge that requiring the proceedings to

continue at the administrative level through hearings and decisions before an

allegedly illegally comprised Merit Board runs counter to judicial economy. If the

Merit Board is improperly constituted, a full administrative proceeding is an

expensive and time-consuming exercise in futility, where the circuit court would

have to undo all those proceedings because the Merit Board lacked the inherent

power to make or enter the order. In fact, if, as alleged, the Merit Board is illegally

comprised, any decision would be void. Business & Professional People for the

Public Interest, 136 Ill. 2d at 243-44; Newkirk v. Bigard, 109 Ill. 2d 28, 36 (1985);

City of Chicago, 65 Ill. 2d at 113 (finding that absent statutory authorization the

agency exceeded its jurisdiction with a void order). It is both logical and more

efficient to adjudicate plaintiffs’ composition challenges first and then proceed with

the disciplinary charges before a legally comprised Merit Board.

¶ 64 6. The Circuit Court Can Decide

Plaintiffs’ Claims for Back Pay

¶ 65 Lastly, defendants argue that questions regarding plaintiffs’ back pay is a

disputed question of fact that the Merit Board is best suited to address. Defendants

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contend that the circuit court should be limited to affirming or reversing the back

pay award, if and when made, on administrative review.

¶ 66 Defendants rely on Mitchem v. Cook County Sheriff’s Merit Board, 196 Ill.

App. 3d 528 (1990), for the proposition that the Administrative Review Law does

not provide the circuit court with the power to award back pay. In Mitchem,

petitioner was found to have been unlawfully suspended in excess of the statutory

time limit. Id. at 533. On appeal, the appellate court reasoned that the circuit court

was limited in its power by the Administrative Review Law and could only affirm

or reverse the order of suspension with or without remand. Id. The appellate court

found the circuit court had exceeded its powers by awarding back pay. Id. at 534.

The court was limited to the record before it, and the award of back pay and benefits

required the taking of additional evidence. Id.

¶ 67 Defendants contend that the Mitchem decision best serves the legislature’s

intent to put the discovery and fact-finding process with the Merit Board. In

support, defendants point out that other jurisdictions that have considered the issue

agree with Mitchem, that the issue of back pay is a question for the trier of fact. See

Senior Accountants Analysts & Appraisers Ass’n v. Detroit, 249 N.W.2d 121, 125

(Mich. 1976) (holding that calculation of back pay is a question of fact); Pegues v.

Mississippi State Employment Service, 899 F.2d 1449, 1455 (5th Cir. 1990)

(determining that back pay owed for employment discrimination is a question of

fact); Meacham v. Knolls Atomic Power Laboratory, 185 F. Supp. 2d 193, 236

(N.D.N.Y. 2002) (same).

¶ 68 In the case at bar, we agree with the appellate court’s determination that

plaintiffs’ claims for back pay were not subject to the exhaustion requirement

because the predominate questions were legal questions involving the Merit

Board’s statutory authority to act. 2019 IL App (1st) 181646, ¶¶ 52-53. As noted,

such claims need not be raised before the agency and would be subject to de novo

review. County of Knox, 188 Ill. 2d at 554 (recognizing that the scope of an

agency’s authority is a judicial determination). In addition, none of the statutory

provisions defining the scope of the Merit Board’s authority vest its particular

expertise in determining issues such as back pay, mitigation, and setoffs. Moreover,

this court has previously remanded a similar case to the circuit court for

computation of back pay owed to an employee who was improperly terminated.

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Thaxton v. Walton, 106 Ill. 2d 513, 520 (1985). Consequently, plaintiffs are

permitted to pursue their claims for back pay in the circuit court.

¶ 69 C. The De Facto Officer Doctrine

¶ 70 Defendants have asserted the de facto officer doctrine as an alternative and

independent ground for affirming the dismissal of plaintiffs’ complaint.

Specifically, defendants contest the appellate court’s determination that the de facto

officer doctrine protects the integrity of final agency decisions handed down before

a court has declared a board’s composition illegal. In addition, defendants argue

that the appellate court erred in holding that the “first challenger” exception to the

doctrine permitted plaintiffs to challenge the composition of the Merit Board under

the amended statute. According to defendants, the de facto officer doctrine

validates all actions of a public officer, regardless of any deficiency in the

officeholder’s title and regardless of whether those actions are recent or old. We

disagree.

¶ 71 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 to office

is deficient. Ryder v. United States, 515 U.S. 177, 180 (1995); Vuagniaux, 208 Ill.

2d at 186-87. Under the doctrine, the acts of a person actually performing the duties

of an office under color of title are valid so far as the public or third parties who

have an interest in them are concerned. People ex rel. Chillicothe Township v.

Board of Review, 19 Ill. 2d 424, 426 (1960). The doctrine originated as a means to

avoid 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.

Ryder, 515 U.S. at 180. It, therefore, serves to protect the public by ensuring the

orderly functioning of the government despite the existence of technical defects in

title to office. Id.

¶ 72 Significantly, the de facto officer doctrine is applied as a defense to an attack

on the acts of an officer or appointee in a collateral proceeding. Daniels, 201 Ill. 2d

at 166 (citing People ex rel. Rusch v. Wortman, 334 Ill. 298, 301-02 (1928)). The

initiation of a collateral proceeding necessarily requires a prior act or judgment that

is, or may be, subject to attack. See generally Black’s Law Dictionary 329 (11th ed.

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2019) (defining “collateral attack” as “[a]n attack on a judgment in a proceeding

other than a direct appeal”). Thus, the legal concept of a collateral attack presumes

that some official act or decision has occurred.

¶ 73 The de facto officer doctrine is not intended to preclude a timely challenge to

agency authority, and this court has recognized that a direct attack in the same

proceeding in which a board member is appointed is permissible. See Vuagniaux,

208 Ill. 2d at 187. Thus, our precedent embraces the notion that, before being

subjected to an administrative proceeding, a party should have some avenue to

timely question and verify that the agency has authority to act.

¶ 74 Permitting such a challenge does not thwart the de facto officer doctrine, which

serves to preserve the integrity of an official action that is complete and where the

authority of the agency or public officer was not challenged in a timely manner.

See Ryder, 515 U.S. at 180 (observing that the doctrine protects official actions

“even though it is later discovered that the legality of that person’s appointment or

election to office is deficient” (emphasis added)); see also id. at 182-83 (reasoning

that one who makes a timely challenge to the constitutionality of the appointment

of an officer who adjudicates his case is entitled to a decision on the merits of that

question and whatever relief may be appropriate); Equal Employment Opportunity

Comm’n v. Sears, Roebuck & Co., 650 F.2d 14, 17 (2d Cir. 1981) (noting that the

doctrine was developed to preserve the integrity of official actions that “could later

be invalidated by exposing defects in the officials’ titles” (emphasis added)).

¶ 75 Timing matters. Here, given that the Merit Board had not taken any substantive

action regarding plaintiffs’ disciplinary charges prior to the filing of their lawsuit

in circuit court, we conclude that the de facto officer doctrine does not apply.

Plaintiffs were not trying to unwind or undermine any administrative determination

by the Merit Board. At the time plaintiffs filed both their original and second

amended complaints, there had been no action or judgment by the Merit Board in

plaintiffs’ proceedings to which the doctrine could confer validity. 4 Because the

de facto officer doctrine has not been—and should not be—employed as an

4

The ministerial task of accepting the disciplinary charges against plaintiffs was not an “action”

by the Merit Board. The decision to file disciplinary charges is reserved to the Sheriff alone, and

neither section 3-7012 nor the Merit Board’s rules and regulations provide that the Board can reject

written charges. Plaintiffs’ lawsuit questioned whether the Board could address those charges by

conducting discovery, preliminary hearings, hearings on the merits, and issuing decisions.

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obstacle to preclude a timely challenge to the authority of an administrative agency,

it does not justify the dismissal of plaintiffs’ complaint.

¶ 76 In light of our conclusion that the de facto officer doctrine has no bearing on

this case, we need not address defendants’ argument that the appellate court erred

in holding that the “first challenger” principle operates as an exception to the

doctrine and is applicable to plaintiffs’ claims. Courts of review will not decide

moot or abstract questions, will not review cases merely to establish precedent, and

will not render advisory opinions. Peach v. McGovern, 2019 IL 123156, ¶ 64

(citing Italia Foods, Inc. v. Sun Tours, Inc., 2011 IL 110350, ¶ 41). In addition,

reviewing courts ordinarily will not consider issues that are not critical to the

disposition of the case presented or where the result will not be affected regardless

of how the issues are decided. Id. (citing Condon v. American Telephone &

Telegraph Co., 136 Ill. 2d 95, 99 (1990)). Accordingly, we leave the applicability

of the “first challenger” principle for another day.

¶ 77 D. Plaintiffs Were Not Required to

Bring a Quo Warranto Action

¶ 78 Finally, we address the contention of defendants and the amici supporting their

position that quo warranto exists as the exclusive means to challenge the

credentials of a public officer and resolve defects in an official’s appointment or

election. According to defendants and the amici, the legislature has provided that

quo warranto actions should be brought by either the attorney general or the state’s

attorney as the sole means of protecting the collective rights of the citizenry of the

State of Illinois. See 735 ILCS 5/18-102 (West 2018).

¶ 79 Historically, quo warranto was employed to question the right of a person who

is charged with usurping, intruding into, or unlawfully holding or executing any

office and to effectuate the ouster of an illegally appointed officer. People ex rel.

Chillicothe Township, 19 Ill. 2d at 427; People ex rel. Farrington v. Whitcomb, 55

Ill. 172, 176 (1870). Furthermore, when a court finds a person guilty in a

quo warranto proceeding, the court may enter a judgment of ouster to effectuate

that person’s removal from the office. 735 ILCS 5/18-108 (West 2018); People

ex rel. Rahn v. Vohra, 2017 IL App (2d) 160953, ¶ 35; (citing People ex rel.

Courtney v. Botts, 376 Ill. 476, 480-81 (1941)). The Illinois quo warranto statute

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codifies the common law and provides that such a proceeding may be initiated by

private parties only under special circumstances. People ex rel. Graf v. Village of

Lake Bluff, 206 Ill. 2d 541, 547 (2003) (citing 735 ILCS 5/18-102 (West 2000)).

Thus, the traditional common-law writ of quo warranto and the modern statutory

scheme both demonstrate that the purpose of bringing such an action is to correct

an improper appointment or election and to achieve the ouster of a person who is

illegally occupying a public office.

¶ 80 In this case, plaintiffs did not seek to oust the allegedly improperly appointed

members of the Merit Board but, rather, to have the proceedings against them

conducted and adjudicated by a legally constituted Merit Board. Further, plaintiffs

have challenged the qualifications of all of the members of the Merit Board

established under the preamendment statute as well as the members of the “newly

appointed” Merit Board under the December 8, 2017, amended statute. As a

consequence, requiring plaintiffs to pursue their claims in quo warranto

proceedings would lead to a multiplicity of litigation involving each Merit Board

member who is alleged to occupy his or her office in violation of the Code.

Obviously, that is neither a simple solution, as amici contend, nor is it a judicially

efficient or economical means of resolving plaintiffs’ claims.

¶ 81 Moreover, a private litigant may bring a quo warranto action only with leave

of court after the attorney general and the state’s attorney have declined to do so.

735 ILCS 5/18-102 (West 2018). The decision to grant or deny a petition for leave

to file a quo warranto action falls within the discretion of the circuit court. Village

of Lake Bluff, 206 Ill. 2d at 547. Therefore, if both the attorney general and the

state’s attorney refuse to file a quo warranto action and the circuit court denies

plaintiffs leave to do so, they would have no avenue whatsoever to present their

challenges to the Merit Board’s authority. Based on the aforementioned

considerations, we conclude that bringing an action for quo warranto is not the

most effective legal action for advancing plaintiffs’ challenges. See Andrade v.

Lauer, 729 F.2d 1475, 1488 (D.C. Cir. 1984) (observing that quo warranto can be

a cumbersome procedure that could easily deprive a plaintiff with an otherwise

legitimate claim of the opportunity to have his case heard). Accordingly, plaintiffs

were not prohibited from pursuing their claims for relief in circuit court without

filing a quo warranto action. Id. at 1499 (determining that individuals must have a

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legal process available to redress specific legitimate claims).

¶ 82 III. CONCLUSION

¶ 83 In sum, we hold as follows. Plaintiffs were excused from exhausting their

administrative remedies because their claims fell within the authority exception to

the exhaustion doctrine. Accordingly, the circuit court erred in dismissing

plaintiffs’ complaint. In addition, the circuit court can adjudicate plaintiffs’ requests

for back pay and other claims because they do not fall within the particular expertise

of the Merit Board. We further hold that the doctrines of de facto officer and

quo warranto are inapplicable to plaintiffs’ challenges. Consequently, we affirm

the judgment of the appellate court and remand to the circuit court for further

proceedings on all pending claims that have not been rendered moot.

¶ 84 Appellate court judgment affirmed.

¶ 85 Circuit court judgment reversed.

¶ 86 Cause remanded.

¶ 87 JUSTICE MICHAEL J. BURKE, dissenting:

¶ 88 At almost any point in this court’s history, this court would have summarily

disposed of the type of appointment challenges that plaintiffs bring here by

applying the de facto officer doctrine. This court applied that doctrine faithfully and

consistently until it issued its fractured decision in Daniels v. Industrial Comm’n,

201 Ill. 2d 160 (2002). That decision, along with the denial of rehearing in Baggett

v. Industrial Comm’n, 201 Ill. 2d 187 (2002), and the decision in Vuagniaux v.

Department of Professional Regulation, 208 Ill. 2d 173 (2003), created confusion

over how this court viewed the de facto officer doctrine. The decision under review

today is another in a line of cases where the appellate court struggled to discern a

coherent rule from this court’s jurisprudence. Unfortunately, a majority of this court

has issued a decision that further adds to that confusion and repeats many of the

same errors that were made in Daniels and Vuagniaux. The Illinois Attorney

General and the City of Chicago have filed a brief as amici curiae arguing that this

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court should return to the traditional understanding of the de facto officer doctrine.

I agree with that position, and I therefore cannot join the majority opinion.

¶ 89 Defendants raise two issues on appeal. First, the plaintiffs should have been

required to exhaust their administrative remedies before filing an action in the

circuit court challenging the Merit Board’s composition. Second, even if there were

deficiencies in the appointment process, the de facto officer doctrine validates the

official actions of the Merit Board. Because I believe that plaintiffs cannot

challenge the appointments to the Merit Board in any collateral proceeding—either

before the Merit Board itself or in the circuit court—I am not going to dwell on the

exhaustion issue. However, I will briefly address the majority’s analysis of that

issue, as it contains some misstatements of law that are ultimately relevant to the

de facto officer question.

¶ 90 EXHAUSTION OF REMEDIES

¶ 91 The majority correctly notes that “a party aggrieved by an administrative

decision ordinarily cannot seek judicial review without first pursuing all available

administrative remedies.” Supra ¶ 37. The majority holds, however, that plaintiffs

were not required to exhaust their administrative remedies because their complaint

fell within the “authority exception” to the exhaustion of remedies doctrine. The

majority cites County of Knox ex rel. Masterson v. The Highlands, L.L.C., 188 Ill.

2d 546 (1999), for the proposition that this exception applies “ ‘ “where the

agency’s jurisdiction is attacked because it is not authorized by statute.” ’ ” Supra

¶ 41 (quoting County of Knox, 188 Ill. 2d at 552, quoting Castaneda v. Illinois

Human Rights Comm’n, 132 Ill. 2d 304, 309 (1989)). The majority then explains:

“ ‘ “ ‘The term “jurisdiction,” while not strictly applicable to an

administrative body, may be employed to designate the authority of the

administrative body to act ***.’ [Citation.] Thus, in administrative law, the term

‘jurisdiction’ has three aspects: (1) personal jurisdiction—the agency’s

authority over the parties and intervenors involved in the proceedings,

(2) subject matter jurisdiction—the agency’s power ‘to hear and determine

cases of the general class of cases to which the particular case belongs’

[citation], and (3) an agency’s scope of authority under the statutes.” ’ County

of Knox, 188 Ill. 2d at 553 (quoting Business & Professional People for the

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Public Interest v. Illinois Commerce Comm’n, 136 Ill. 2d 192, 243 (1989)).”

Supra ¶ 41.

¶ 92 As the above quote demonstrates, the authority exception applies only when the

agency acts without jurisdiction. Clearly, then, under the majority’s own test, the

plaintiffs’ complaint fails to satisfy the authority exception. First, there is no

allegation the Merit Board lacked personal jurisdiction over the parties. Second,

plaintiffs have not alleged that the Merit Board does not have the power or authority

to hear this class of cases. And, finally, the complaint does not allege that the Merit

Board exceeded its scope of authority under the statutes. The Merit Board sought

to do nothing other than adjudicate disciplinary charges against these officers.

¶ 93 The majority appears to believe that the complaint falls within the third

category, i.e., that the Merit Board exceeded its statutory authority. But, as the

majority notes, the test is whether the agency exceeded the scope of its authority

under the statutes. The complaint simply does not allege this. Rather, it alleges

defects in the composition of the board. The majority rejects defendants’ argument

that this prong of the authority exception applies only to improper rulemaking. The

majority notes that the cases relied on by defendants—Crittenden v. Cook County

Comm’n on Human Rights, 2013 IL 114876, County of Knox, 188 Ill. 2d 546, and

City of Chicago v. Fair Employment Practices Comm’n, 65 Ill. 2d 108 (1976)—

were not “premised on the administrative agencies’ promulgation of a rule or

regulation that fell outside its subject matter jurisdiction.” Supra ¶ 50. Be that as it

may, all three cases involved an allegation that an agency acted beyond the scope

of its statutory authority. Crittenden involved the Cook County Commission on

Human Rights attempting to award punitive damages when its enabling legislation

did not provide it with that authority. Crittenden, 2013 IL 114876, ¶¶ 17, 24.

County of Knox involved an allegation that a zoning board was attempting to

regulate certain agricultural land when its empowering statute did not allow it to do

so. County of Knox, 188 Ill. 2d at 554-55. Finally, City of Chicago involved the Fair

Employment Practices Commission awarding attorney fees when it did not have

statutory authorization to do so. City of Chicago, 65 Ill. 2d at 112-13. Thus, each

of these cases involved an allegation that an agency was attempting to act beyond

the scope of its statutory authority. That is not the case here, where the Merit Board

simply sought to adjudicate a disciplinary action against officers of the Cook

County Sheriff. Nothing could be more squarely within the scope of its authority.

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¶ 94 As the majority concedes, plaintiffs’ complaint challenged the composition of

the Merit Board. Supra ¶¶ 15, 45. The majority simply asserts that such an

allegation falls within the authority exception without explaining how this is so. For

instance, the majority states that “plaintiffs challenged the Merit Board’s

composition and, thus, its jurisdiction to conduct proceedings against them.”

(Emphasis added.) Supra ¶ 47. But a mere five paragraphs earlier the majority set

forth the three ways that an agency can lack jurisdiction, not one of which is that

an appointment is defective. Supra ¶ 42. In support of its contention that plaintiffs’

allegations fell within the authority exception, the majority cites four cases, none

of which involved defective appointments. See supra ¶ 47 (citing County of Knox,

188 Ill. 2d at 552, Business & Professional People for the Public Interest, 136 Ill.

2d at 245, Castaneda, 132 Ill. 2d at 309, and Office of the Lake County State’s

Attorney v. Illinois Human Rights Comm’n, 200 Ill. App. 3d 151, 157 (1990)).

¶ 95 The majority claims that plaintiffs’ allegations call into question the Merit

Board’s authority to act because, if the Merit Board is illegally constituted, then it

lacks jurisdiction to proceed, and any order entered by it would be void. Supra

¶¶ 50, 63. The majority cites Business & Professional People for the Public

Interest, 136 Ill. 2d at 243-44, and Newkirk v. Bigard, 109 Ill. 2d 28, 36 (1985),

neither of which is an appointment case, for the proposition that a decision by an

agency that lacks jurisdiction or the inherent power to make the particular order is

void and may be attacked at any time or in any court, directly or collaterally. Supra

¶¶ 50, 63. But the idea that a statutorily invalid appointment renders an agency

without jurisdiction and its orders void is a radical proposition that contradicts over

a century’s worth of this court’s case law. Indeed, if the majority’s assertion is

correct, then the de facto officer doctrine could not exist.

¶ 96 DE FACTO OFFICER DOCTRINE

¶ 97 The de facto officer doctrine holds that “[a] person actually performing the

duties of an office under color of title is 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.” People ex rel. Chillicothe Township v. Board of Review, 19 Ill. 2d

424, 426 (1960). It “assumes that an individual suffers no judicially cognizable

injury when he is the subject of adverse governmental action that is legitimate in

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all respects save that the official taking the action lacks lawful title to office.”

Kathryn A. Clokey, Note, The De Facto Officer Doctrine: The Case for Continued

Application, 85 Colum. L. Rev. 1121, 1122 (1985). The doctrine has feudal origins,

dating back to the 15th century. Lopez v. Dart, 2018 IL App (1st) 170733, ¶ 48. It

was first expressed in The Abbe de Fontaine, YB 9 Hen. 6, fol. 32b, Mich., pl. 3

(1430) (Eng.), https://www.bu.edu/phpbin/lawyearbooks/display.php?id=17322

[https://perma.cc/63J8-W6AU]. Clokey, supra, at 1125. “Over time, the doctrine

has achieved ‘practically universal acceptance by the courts.’ ” Iowa Farm Bureau

Federation v. Environmental Protection Comm’n, 850 N.W.2d 403, 423 (Iowa

2014) (quoting Herbst v. Held, 190 N.W. 153, 155 (Iowa 1922)).

¶ 98 This court adopted the doctrine in Schlenker v. Risley, 4 Ill. 483, 485 (1842),

and applied it faithfully for more than 150 years. See, e.g., Chillicothe Township,

19 Ill. 2d at 426 (“A person actually performing the duties of an office under color

of title is 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); People v. O’Neill, 33

Ill. 2d 184, 187 (1965) (“We think it is clear beyond question that the members of

the Peoria County board of supervisors were at least de facto officers within the

traditional definition of Lavin v. Board of Commissioners of Cook County, 245 Ill.

496, 505-06 [(1910)]. Their acts in levying, extending and collecting taxes cannot

therefore be attacked because of some alleged defect in the apportionment of their

membership.”); People ex rel. Rusch v. Wortman, 334 Ill. 298, 302 (1928) (“The

courts uniformly hold that the acts of officers de facto, so far as they affect third

parties or the public, are as valid as those of officers de jure.”); Stott v. City of

Chicago, 205 Ill. 281, 286 (1903) (acts of a de facto officer are valid so far as the

rights of the public or of third persons having an interest in such acts); People ex rel.

Stuckart v. Knopf, 183 Ill. 410, 413 (1900).

¶ 99 The reason for this rule was expressed long ago in Barlow v. Standford, 82 Ill.

298, 302 (1876), where this court stated:

“An officer de facto is defined to be one who has the reputation of being the

officer he assumes to be, in the exercise of the functions of the office, and yet

is not a good officer in point of law. The official acts of such an officer are

always regarded as worthy of full faith and credit. Any other rule would be

disastrous to public interests.” (Emphasis added.)

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The United States Supreme Court has explained that

“ ‘[t]he 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

(1995) (quoting 63A Am. Jur. 2d, Public Officers and Employees § 578, at

1080-81 (1984)).

See also Clokey, supra, at 1131 (“[w]ithout the doctrine, uncertainty would cloud

every action taken by officials who had not previously demonstrated perfect title”).

As the Supreme Court of North Carolina explained in In re Wingler, 58 S.E.2d 372,

376 (N.C. 1950):

“The de facto doctrine is indispensable to the prompt and proper dispatch

of governmental affairs. Endless confusion and expense would ensue if the

members of society were required to determine at their peril the rightful

authority of each person occupying a public office before they invoked or

yielded to his official action. An intolerable burden would be placed upon the

incumbent of a public office if he were compelled to prove his title to his office

to all those having occasion to deal with him in his official capacity. The

administration of justice would be an impossible task if every litigant were

privileged to question the lawful authority of a judge engaged in the full

exercise of the functions of his judicial office.”

¶ 100 In People ex rel. Hicks v. Lycan, 314 Ill. 590 (1924), this court specifically

addressed whether the official acts of an improperly constituted board of review

were void. In that case, a taxpayer raised a challenge about the political composition

of a board of review. The relevant statute required that each county board of review

“consist of two members affiliated with the political party polling the highest vote

and one member of the party polling the second highest vote at the general election

in the county prior to the time any appointment is made.” Id. at 592. The Edgar

County Board of Review was improperly composed of one member of the party

polling the highest vote and two members of the party polling the second highest

vote. This court held:

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“This fact did not, however, make the action of the board of review so

constituted void. A person actually performing the duties of an office under

color of title is 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.

(People v. Lieb, 85 Ill. 484; People v. Bangs, 24 [Ill.] 184; Leach v. People, 122

[Ill.] 420.) Whether the board of review was legally constituted or not, the

persons acting as such board were performing the duties of the board with

apparent right under color of office, and their acts were valid as to the public

and persons having an interest in them.” (Emphasis added.) Id. at 593.

The majority is simply wrong when it states that any actions of the Merit Board

would be void if it was improperly constituted. Supra ¶¶ 50, 63.

¶ 101 This court has further held that a de facto officer’s authority continues until he

or she is removed by a proper authority in a quo warranto proceeding. In Samuels

v. Drainage Commissioners, 125 Ill. 536 (1888), the defendants argued that a

drainage assessment had been made by commissioners who were neither officers

de jure nor de facto and that therefore the assessments were void. This court

rejected that argument, explaining:

“The legislature, by statute, has created, under constitutional authority, such an

officer as commissioner of drainage districts. It is alleged the ‘Central Special

Drainage District,’ in Mason county, was duly organized under the act of the

General Assembly, in force July 1, 1885, and that afterwards petitioners were

elected commissioners, and that they entered upon their duties as such, and are

now acting. The default of defendants admits these allegations of the bill, and

the court found, from the evidence, such was the fact. There being such an

office, and petitioners having assumed the duties of such office, and now acting

commissioners of the drainage district, they are de facto officers, and their

official acts will be held to be valid until their right to exercise the duties of

such office is called in question by quo warranto, and they shall be dispossessed

of all power under the statute.” Id. at 540.

Here, the offices of the Merit Board members have not been called into question by

quo warranto, and thus their official acts are valid.

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¶ 102 This court first began to stray from the traditional understanding of the de facto

officer doctrine in Daniels, 201 Ill. 2d 160. The idea that an improper appointment

would render all the acts of an agency void was first introduced by two justices of

this court in the lead opinion in Daniels. The lead opinion held that the invalid

appointment of two members of the Industrial Commission (Commission) was void

and a nullity from its inception. Id. at 165. Thus, the lead opinion held that the

Commission’s actions could be attacked at any time, in any court, either directly or

collaterally. Id. at 166. 5 This court vacated the Commission’s award and remanded

for a decision by a legally constituted panel. The lead opinion rejected application

of the de facto officer doctrine on the following basis:

“Finally, we reject the Commission’s claim that the decision in this case can

be validated on the grounds that Kane and Reichart were de facto officers. The

doctrine recognizing de facto public officers prevents third parties or members

of the public from raising collateral challenges to a public officer’s

qualifications to hold office if considerations of public policy require the

officer’s acts to be considered valid. See People ex rel. Rusch v. Wortman, 334

Ill. 298, 301-02 (1928). No considerations of public policy militate in favor of

preventing workers’ compensation claimants from challenging the legal status

of the commissioners who passed on their claims where, as here, the challenge

is raised on direct review of the workers’ compensation award and the

commissioners were appointed in a manner that threatens the Act’s basic

objectives.” Id. at 166-67.

In other words, according to the lead opinion in Daniels, the way the de facto officer

doctrine works is that the court asks in every case in which the issue arises whether

it can identify a specific public policy reason to apply it. Only if the court can

identify such a specific public policy will it apply the doctrine. This position has no

foundation in this court’s jurisprudence, and it is not even supported by the one

5

Justices McMorrow and Freeman concurred in the result but did not agree with the lead opinion

that the participation of invalidly appointed commissioners rendered the Commission’s decisions

void. Daniels, 201 Ill. 2d at 173 (McMorrow, J., specially concurring, joined by Freeman, J.) The

specially concurring justices agreed that the de facto officer doctrine validated the Commission’s

decisions. Id. These justices, however, would have granted Daniels relief on the more limited basis

that he was the party that brought the illegalities to light. Thus, the concurring justices would have

allowed Daniels relief but no others who raised the same challenge. Id. at 176.

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decision cited in the lead opinion. Wortman did not hold that a court makes a case-

by-case determination of whether an identifiable public policy supports application

of the de facto officer doctrine. Rather, the Wortman court held:

“The law validates the acts of de facto officers as to the public and third persons

upon the ground, though not officers de jure, they are in fact officers whose acts

public policy requires should be considered valid. [Citations.]

The courts uniformly hold that the acts of officers de facto, so far as they

affect third parties or the public, are as valid as those of officers de jure.”

Wortman, 334 Ill. at 301-02.

In other words, Wortman held that there is a general public policy validating the

acts of de facto officers. The position of the Daniels lead opinion cannot be squared

with more than a century’s worth of this court’s case law. Justice Fitzgerald was

correct in his dissent in Daniels that the Commission’s award should have been

upheld because the invalidly appointed commissioners were de facto officers.

Daniels, 201 Ill. 2d at 178-81 (Fitzgerald, J., dissenting). The notion that the acts

of an improperly constituted agency are void cannot be reconciled with this court’s

case law, and this position has not been subscribed to by a majority of this court.

¶ 103 The lead opinion in Daniels also misunderstood the difference between

collateral and direct challenges for purposes of the de facto officer doctrine. As

noted above, the Daniels lead opinion recognized that members of the public or

third parties could not raise collateral challenges to a public officer’s qualifications

to hold office. Id. at 166 (lead opinion). It then noted that, in the case before it, the

challenge was raised on direct review of the commission’s award. Id. at 166-67.

However, for purposes of an officeholder’s right to hold office, the terms “direct

attack” and “collateral attack” have specialized meanings. As properly stated by the

appellate court in Lopez, 2018 IL App (1st) 170733, ¶ 49:

“Because at its core the doctrine limits the ability of a plaintiff ‘to challenge

governmental action on the ground that the officers taking that action are

improperly in office’ (Andrade, 729 F.2d at 1493-94), the doctrine operates in

a way that distinguishes between ‘direct’ and ‘collateral’ attacks on an officer’s

authority. SW General, Inc. v. National Labor Relations Board, 796 F.3d 67,

81 (D.C. Cir. 2015) (citing Andrade, 729 F.2d at 1496). A collateral attack

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challenges ‘government action on the ground that the officials who took the

action were improperly in office.’ (Emphasis in original and internal quotation

marks omitted.) Id. A direct attack by contrast, challenges ‘the qualifications of

the officer rather than the actions taken by the officer.’ (Emphasis in original

and internal quotation marks omitted.) Id. Under the traditional de facto officer

doctrine, only direct attacks are permitted and must be brought via a writ of quo

warranto. Id.; see also Vuagniaux, 208 Ill. 2d at 187 (‘Pursuant to the doctrine,

litigants may not assert collateral challenges to the officer’s qualifications to

hold office as a means of contesting the legality of the officer’s acts.’).”

(Emphasis in original.)

See also Clokey, supra, at 1124 (the de facto officer doctrine “bars collateral title

challenges—that is, attempts to litigate title via an attack on the actions taken, rather

than in a direct action where the sole issue is validity of title. Official titles may be

challenged directly through the statutorily prescribed quo warranto action.”).

¶ 104 The challenge in Daniels was clearly collateral. Daniels did not involve a

quo warranto proceeding to remove the invalidly appointed commissioners from

office. Rather, Daniels was trying to undo the Commission’s award in his case

because it had been entered by an improperly constituted panel. The issue in

Daniels’s case was whether he was entitled to compensation, not whether the

Commission’s members had been validly appointed, and the individual

commissioners were not parties in Daniels’s case. This was a textbook collateral

challenge. The lead opinion appears to have been thrown off track because the issue

was first raised on direct review. But this is an entirely different concept, and it did

not transform Daniels’s challenge to the Commission’s authority into a direct one.

See Daniels, 201 Ill. 2d at 184 (Thomas, J., dissenting, joined by Fitzgerald and

Garman, JJ.) (“some confusion is bound to creep in whenever the same adjective

precedes two distinct legal concepts”).

¶ 105 The court next considered the de facto officer doctrine in Vuagniaux. That case

involved a chiropractor, Thad Vuagniaux, who was reprimanded by the Department

of Professional Regulation (Department) for violating a provision of the Medical

Practice Act of 1987 (225 ILCS 60/26 (West 1998)). Vuagniaux, 208 Ill. 2d at 178.

In the disciplinary proceeding before the Department’s Medical Disciplinary

Board, Vuagniaux moved to exclude the sole chiropractic member on the Medical

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Disciplinary Board, Lacy Cook, on the basis that she would be prejudiced against

him and the chiropractic theories that he followed. Id. at 181-82. The administrative

law judge found that Cook was not prejudiced but agreed to grant Vuagniaux’s

motion. Id. at 182. After Cook was excluded, the Department moved to appoint a

“Special Chiropractor” to the Medical Disciplinary Board so that it would include

at least one chiropractic member when it considered Vuagniaux’s case. Id. The

Medical Disciplinary Board granted the motion and appointed Roger Pope to serve

on the Medical Disciplinary Board for the purposes of Vuagniaux’s case. Id.

Vuagniaux objected to Pope’s appointment on the basis that it violated the Medical

Practice Act’s requirement that appointments to the Medical Disciplinary Board are

to be made by the governor with the advice and consent of the Senate. Id. The

objection went unheeded. Id. The Medical Disciplinary Board recommended a fine

and a reprimand. The Department’s director adopted the recommendation, and the

Department issued a reprimand and ordered Vuagniaux to pay a $2500 fine. Id. at

183.

¶ 106 On administrative review, the circuit court set aside the Department’s decision

and dismissed the complaint. Id. at 184. Among the reasons that the court dismissed

the complaint were that the appointment of Pope was not authorized by law and

was unconstitutional and that the statutory composition of the Medical Disciplinary

Board violated due process and equal protection. Id. The Department appealed

directly to this court based on the circuit court’s ruling that portions of the Medical

Practice Act were unconstitutional. Id. This court determined, inter alia, that

Pope’s unlawful appointment meant the Medical Disciplinary Board was not

lawfully constituted at the time it recommended that Pope be reprimanded. Id. at

186. Thus, this court held that the Department’s decision was invalid because it was

based on recommendation of a board that was not lawfully constituted. Id.

¶ 107 This court noted that the Department had not argued that the de facto officer

doctrine validated the Medical Disciplinary Board’s recommendation. Id.

Nevertheless, this court went on to explain why it believed that the de facto officer

doctrine would not apply:

“Under the de facto officer 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 an officer are valid so far as the public or third parties who have an

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interest in them are concerned. People ex rel. Chillicothe Township v. Board of

Review, 19 Ill. 2d 424, 426 (1960). Pursuant to the doctrine, litigants may not

assert collateral challenges to the officer’s qualifications to hold office as a

means of contesting the legality of the officer’s acts. Daniels v. Industrial

Comm’n, 201 Ill. 2d at 174 (McMorrow, J., specially concurring, joined by

Freeman, J.).

The case before us does not involve the effects of an officer’s acts on a

member of the public or a third party, and the officer’s qualifications to act are

not being contested in a collateral proceeding. The challenge to Pope’s authority

to act as a member of the Board was raised in the proceeding in which Pope

was appointed, at the time the appointment was made, by a doctor whose case

was directly affected by the appointment, to the tribunal responsible for

considering the disciplinary charges against the doctor, and before the tribunal

considered the doctor’s case on the merits or made its recommendations. The

de facto officer doctrine is therefore inapplicable.” (Emphasis added.) Id. at

186-87.

¶ 108 The majority asserts that Vuagniaux stands for the proposition that, “before

being subjected to an administrative proceeding, a party should have some avenue

to timely question and verify that the agency has authority to act.” Supra ¶ 73. The

decision is much narrower than that. In Vuagniaux, the Medical Disciplinary Board

member who was challenged was appointed in that specific proceeding solely for

the purpose of hearing that one case, and his appointment was challenged in that

proceeding at the time it was made. This is a circumstance that will rarely occur.

¶ 109 Moreover, certain statements in Vuagniaux could cause confusion if applied

outside the context of the unusual facts of that case. Vuagniaux was challenging the

authority of the Medical Disciplinary Board to act in his case because of an

unlawful appointment. Typically, this is a collateral attack that is barred by the

de facto officer doctrine. Nevertheless, a quo warranto proceeding would not have

made sense, as the appointment was made solely for the purpose of deciding this

one case. Moreover, as the appointment was literally made in that case and the

challenge was made at the time of the appointment, the facts do not fit comfortably

into the typical direct-versus-collateral-attack dichotomy. Similarly, Vuagniaux’s

statement that Vuagniaux was not a third party could cause confusion if applied in

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a different context. Vuagniaux said that the case before it did not involve the

officer’s acts on a member of the public or a third party but rather on a doctor whose

case was directly affected by the appointment. Vuagniaux, 208 Ill. 2d at 187. But,

in a typical de facto officer situation, a person in Vuagniaux’s position would

unquestionably be a third party. For purposes of the de facto officer doctrine, the

first party is the officeholder, and the second party is the State. David M. Lawrence,

The Law of De Facto Officers, 124 U.N.C. Sch. Gov’t, at 2 n.1 (2010). “A person,

though, who applies to a de facto officer for specific action or who is the subject of

action by a de facto officer is clearly not a second party.” Id.

¶ 110 Our case law bears this out. In Lycan, the person who brought a challenge to

the composition of the board of review was a taxpayer who was contesting an

assessment imposed by the board. His objections to the board’s composition were

made in the proceeding in which he objected to the assessment. This court rejected

his challenge on the basis that the board members were officers de facto and

therefore their acts were valid so far as third parties or members of the public were

concerned. Lycan, 314 Ill. at 593. Thus, a person who is the subject of action taken

by a board is typically considered a third party for purposes of the de facto officer

doctrine. To the extent that Vuagniaux was not a third party, it was only because

under the unique facts of that case a quo warranto action would not have made

sense.

¶ 111 Neither Daniels nor Vuagniaux provides any reason for this court to stray from

the traditional understanding of the de facto officer doctrine. No position in Daniels

garnered a majority of the court, and Vuagniaux set forth a narrow holding

applicable to unusual facts. Moreover, the lead opinion in Daniels contained

significant misstatements of law that cannot be reconciled with this court’s cases or

the common-law de facto officer doctrine.

¶ 112 Unfortunately, the majority has chosen to repeat the mistakes of Daniels and to

broaden Vuagniaux’s holding rather than apply the de facto officer doctrine in the

manner this court did for more than a century. The majority states:

“Significantly, the de facto officer doctrine is applied as a defense to an

attack on the acts of an officer or appointee in a collateral proceeding. Daniels,

201 Ill. 2d at 166 (citing People ex rel. Rusch v. Wortman, 334 Ill. 298, 301-02

(1928)). The initiation of a collateral proceeding necessarily requires a prior act

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or judgment that is, or may be, subject to attack. See generally Black’s Law

Dictionary 329 (11th ed. 2019) (defining ‘collateral attack’ as ‘[a]n attack on a

judgment in a proceeding other than a direct appeal’). Thus, the legal concept

of a collateral attack presumes that some official act or decision has occurred.”

Supra ¶ 72.

Rather than citing or discussing any of the cases or secondary authorities that have

explained the difference between a direct and collateral proceeding for the purposes

of the de facto officer doctrine, the majority simply cites the Black’s Law

Dictionary definition of “collateral attack.” However, this definition does not help

the majority. Applying that definition, the majority holds that this cannot be a

collateral attack because no official act or decision has occurred. But what is being

attacked are the appointments to the Merit Board, and these have occurred. If the

right of these Merit Board members to hold office were being challenged in a quo

warranto action, that would be a direct attack. Here, plaintiffs are arguing that

allegedly invalid appointments deprive the Merit Board of the right to act in their

disciplinary proceedings. This attack on their office is unquestionably collateral.

See Lopez, 2018 IL App (1st) 170733, ¶ 49; see also Pietryla v. Dart, 2019 IL App

(1st) 182143, ¶ 13 (challenging actions of Merit Board on the basis of invalid

appointments is a “quintessential collateral attack that is ordinarily barred by the

de facto officer doctrine”); Clokey, supra, at 1124.

¶ 113 The majority further holds that the de facto officer doctrine does not apply

because plaintiffs raised their challenge before the Merit Board took any action in

their case. Supra ¶ 75. But, as already explained above, this court has held that

de facto officers retain authority to act until “their right to exercise the duties of

such office is called in question by quo warranto, and they shall be dispossessed of

all power under the statute.” Samuels, 125 Ill. at 540. Quo warranto is the proper

procedure to raise challenges to an officer’s title. See Osborn v. People ex rel.

Lewis, 103 Ill. 224, 228 (1882) (alleged improper organization of drainage district

could be challenged only by quo warranto; court explains this “must be so,”

otherwise “[e]very proceeding before tribunals and officers, if permitted, would

lead to an inquiry whether they were legally acting”); Lawrence, supra, at 2 (“[t]he

procedural element of the [de facto officer] doctrine holds that a court will not allow

a collateral attack on the status of an apparent officeholder but will hear such a

challenge only in a direct action in the nature of quo warranto”); Clokey, supra, at

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1124 (“[t]he de facto officer doctrine does not entirely insulate official titles from

judicial scrutiny. It merely bars collateral title challenges—that is, attempts to

litigate title via an attack on the actions taken, rather than in a direct action where

the sole issue is validity of title. Official titles may be challenged directly through

the statutorily prescribed quo warranto action”). No quo warranto proceeding was

brought against the members of the previous Merit Board, nor has one been brought

against the members of the current Merit Board.

¶ 114 In Illinois, the quo warranto procedure is set forth in article XVIII of the Code

of Civil Procedure. 735 ILCS 5/18-101 et seq. (West 2018). The statute allows an

action in quo warranto whenever “[a]ny person usurps, intrudes into, or unlawfully

holds or executes any office, or franchise, or any office in any corporation created

by authority of this State.” Id. § 18-101(1). The action is brought in the name of the

People of the State of Illinois by either the attorney general or the state’s attorney

of the proper county. Id. § 18-102. An interested citizen wishing to bring an action

must first ask the attorney general or state’s attorney to bring the action. If the

attorney general or state’s attorney refuses or fails to act, the citizen may bring the

action after providing notice to the attorney general, the state’s attorney, and the

adverse party and receiving leave of court. Id. As Presiding Justice Schmidt noted

in his dissent in Watson v. Waste Management of Illinois, Inc., 363 Ill. App. 3d

1101, 1106-07 (2006) (Schmidt, P.J., dissenting):

“It seems clear from the quo warranto statute that the legislature intended

to limit the ability of private individuals to file suit challenging the right of one

to hold public office. There can be no doubt that the statute requires a would-

be-private plaintiff to jump through enough hoops to fatigue an Olympic

gymnast. The intent is clear. If all of this can be avoided by simply filing a

declaratory judgment action, the quo warranto statute is meaningless. It would

seem that both the common law and the quo warranto statute were born of the

commonsense recognition that it is not in the public interest to allow

individuals, without restriction, to file lawsuits challenging the authority of

public officials to act. Such lawsuits, in sufficient number, could easily paralyze

or bankrupt a unit of government. Any suit challenging the right of an elected

public official to act must be brought in quo warranto. See People ex rel.

Turner v. Lewis, 104 Ill. App. 3d 75, 432 N.E.2d 665 (1982); People ex rel.

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Freeport Fire Protection District v. City of Freeport, 90 Ill. App. 3d 112, 412

N.E.2d 718 (1980).”

¶ 115 The majority contends that plaintiffs should not have to proceed in quo

warranto because they want to challenge all the members of the previous Merit

Board as well as all the members of the current Merit Board. Supra ¶ 80. Thus,

according to the majority, quo warranto would not be a judicially efficient or an

economical means of resolving plaintiffs’ claims. The statute, however, contains

no language indicating that it does not apply where a person wishes to challenge

more than one officeholder. The majority also notes that, if the attorney general and

the state’s attorney refused to act and if the circuit court denied plaintiffs leave to

file, then plaintiffs would have no avenue to challenge the Merit Board’s authority.

According to the majority, this is unacceptable because “individuals must have a

legal process available to redress specific legitimate claims.” Supra ¶ 81. But the

possibility of the state’s attorney and attorney general refusing to act and the circuit

court denying leave to file exists in every quo warranto case. If the majority is

correct that this possibility means that a plaintiff can simply ignore the quo

warranto statute, then the majority has rendered the statute a dead letter.

¶ 116 Moreover, the majority’s belief that the plaintiffs have suffered an injury that

needs redress is entirely speculative. As noted earlier, the de facto officer doctrine

“assumes that an individual suffers no judicially cognizable injury when he is the

subject of adverse governmental action that is legitimate in all respects save that

the official taking the action lacks lawful title to office.” Clokey, supra, at 1122.

The reason that collateral challenges to title are usually barred is that title

requirements generally protect public, rather than private, interests. Id. at 1129-30.

“The challenger, in most cases, can demonstrate only a speculative connection

between the title defect and the action taken. While the de facto officer would

not have taken this particular action if he had not been installed in office, there

is no indication that the impact on the individual would have been any different

if the acting official had held perfect title.” Id. at 1130.

¶ 117 As Justice McMorrow noted in her special concurrence in Daniels, there can be

situations in which a statute’s appointment procedures are designed to protect

individuals subject to the officer’s authority, and in these situations the de facto

officer doctrine should not apply:

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“It also has been held that the de facto officer doctrine should not be invoked

when an officer’s appointment is in violation of a statute and the officer lacks

certain qualifications which were statutorily required for the benefit and

protection of the individual subject to the officer’s authority. See, e.g., United

States v. Beltran, 306 F. Supp. 385 (N.D. Cal. 1969) (statutory requirement that

draft status be determined by ‘neighbors’ was held sufficiently important to

allow draft resister to challenge qualifications of draft board members).”

Daniels, 201 Ill. 2d at 175 (McMorrow, J., specially concurring, joined by

Freeman, J.).

Justice McMorrow did not believe that this exception precluded application of the

de facto officer doctrine to the Industrial Commission appointments at issue in that

case. Id.

¶ 118 Neither should that exception apply to the challenges at issue here. Taylor v.

Dart, 2017 IL App (1st) 143684-B, ¶ 37, held that an interim appointment to the

Merit Board was not authorized under section 3-7002 the Counties Code (55 ILCS

5/3-7002 (West 2012)). Accordingly, the court held that the Merit Board’s decision

in that case had to be vacated and the cause remanded for a new hearing before a

lawfully constituted board. Taylor, 2017 IL App (1st) 143684-B, ¶ 46. But the

legislature then amended the statute to allow for interim appointments. See Pub.

Act 100-562, § 5 (eff. Dec. 8, 2017) (amending 55 ILCS 5/3-7002). Clearly, then,

the previous disallowance of interim appointments was not for the benefit and

protection of deputy sheriffs who appear before the Merit Board. It is difficult to

see how deputy sheriffs would be in any way prejudiced by appearing before a

board that either did or did not have members who were appointed for less than six-

year terms. Similarly, it is difficult to see how provisions setting forth the number

of Merit Board members or providing for staggered terms could be considered

enacted for the benefit of deputy sheriffs who appear before the Merit Board. And

this court has already applied the de facto officer doctrine to a situation where a

party challenged the political composition of a board. See Lycan, 314 Ill. at 593.

Thus, the types of challenges plaintiffs bring here would not fit into the exception

to the de facto officer doctrine noted by Justice McMorrow in Daniels. The

majority has not even tried to argue that the statutory appointment procedures at

issue were designed to protect deputy sheriffs who appear before the Merit Board,

nor has the majority made the case that plaintiffs would be prejudiced by having

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their cases adjudicated by this Merit Board. I thus see no reason not to apply the

de facto officer doctrine.

¶ 119 That leaves only the question of whether this court should recognize a “first

challenger” exception to the de facto officer doctrine. In her Daniels special

concurrence, Justice McMorrow argued that, although the de facto officer doctrine

operated to validate the actions of the unlawfully appointed commissioners, the

party before the court should still be granted a new hearing before a lawfully

constituted panel. Daniels, 201 Ill. 2d at 176-77 (McMorrow, J., specially

concurring, joined by Freeman, J.) Justice McMorrow believed that such a rule

would give parties an incentive to bring illegal appointments to light, while still

preserving the public’s interest in “preserving the validity of a large multitude of

commission decisions.” Id. at 176. The Appellate Court, First District, has since

adopted the first challenger exception. See Lopez, 2018 IL App (1st) 170733, ¶ 58.

The exception, however, has never been explicitly endorsed by more than two

members of this court. Justice Thomas speculated in his dissent from denial of

rehearing in Baggett 201 Ill. 2d at 205 (Thomas, J., dissenting upon denial of

rehearing, joined by Fitzgerald and Garman, JJ.), that the majority was denying the

petition for rehearing on the basis that it had accepted the first challenger exception.

Nevertheless, the majority in Baggett did not state why it was denying the petition

for rehearing. The court in Bless v. Cook County Sheriff’s Office, No. 13 C 4271,

2019 WL 4345337, *9 (N.D. Ill. Sept. 12, 2019), warned against reading too much

into Baggett’s denial of rehearing and pointed out that “there is little indication that

Justice McMorrow’s first-challenger principle has been accepted by more than two

Justices on the Illinois Supreme Court.”

¶ 120 This court should not adopt the first challenger exception. The case against the

exception was thoroughly made by Justice Thomas in his dissent from denial of

rehearing in Baggett and need not be repeated in detail here. See Baggett, 201 Ill.

2d at 204-09 (Thomas, J., dissenting upon denial of rehearing, joined by Fitzgerald

and Garman, JJ.). In Bless, the court noted that “Justice Thomas’s concerns about

the rule’s unintended consequences help explain the Appellate Court’s recent

struggles to fashion a consistent and equitable rule.” Bless, 2019 WL 4345337, *9.

In sum, the exception violates the principle that identically situated litigants be

treated alike (Baggett, 201 Ill. 2d at 205 (Thomas, J., dissenting, joined by

Fitzgerald and Garman, JJ.)) and requires this court to breach its “fundamental duty

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to ensure that the law is administered fairly and equally” (id. at 209). Moreover,

determining who is a “first challenger” is fraught with difficulty (id. at 208), and

the “incentives” rationale endorsed by Justice McMorrow is problematic because

most litigants who attempt to bring illegal appointments to light will not get relief

(id. at 207-08). Finally, “[l]itigation is not a raffle, and appellate relief should not

be a door prize.” Id. at 208. For all these reasons, this court should not endorse a

first challenger exception.

¶ 121 CONCLUSION

¶ 122 The de facto officer doctrine, as it existed in this state for more than a century,

mandates dismissal of plaintiffs’ complaint. Nothing in this court’s decisions in

Daniels or Vuagniaux requires us to depart from the traditional understanding of

the de facto officer doctrine. Even if one or more of plaintiffs’ challenges are well

founded, the members of the Merit Board are at least de facto officers, and none of

them have been challenged in a quo warranto proceeding. No exception to the

de facto officer doctrine applies on these facts. Accordingly, the Merit Board had

the lawful authority to render decisions in plaintiffs’ cases. I would reverse the

appellate court.

¶ 123 JUSTICES GARMAN and THEIS join in this dissent.

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