2024 IL App (1st) 221088-U No. 1-22-1088
FIRST DIVISION March 11, 2024
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
R. SCOTT ALSTERDA, in his capacity as Bankruptcy ) Appeal from the Circuit Court Trustee for the estate of Jaime Mireles, ) of Cook County. ) Plaintiff-Appellant, ) ) No. 15 CH 03489 v. ) ) THOMAS J. DART and the COOK COUNTY ) SHERIFF’S MERIT BOARD, ) Honorable ) Neil H. Cohen, Defendants-Appellees. ) Judge presiding.
JUSTICE PUCINSKI delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶1 Held: We affirm the dismissal of plaintiff-appellant’s second amended complaint seeking to invalidate his termination by the Sheriff’s Merit Board based on defects in the appointments of the board members. Plaintiff’s attack on the validity of the board is barred by res judicata in light of plaintiff’s prior administrative review action and related appeal. Further, the circuit court correctly found that the de facto officer doctrine precludes his untimely challenge to the validity of the board. No. 1-22-1088
¶2 Plaintiff R. Scott Alsterda, in his capacity as bankruptcy trustee for the estate of Jamie
Mireles (“Mireles”) appeals from the circuit court’s June 2022 order dismissing his second
amended complaint with prejudice. For the following reasons, we affirm.
¶3 BACKGROUND
¶4 Mireles was formerly employed as a correction officer by the Cook County Sheriff’s
Department. On July 22 2014, Thomas J. Dart, in his capacity as Cook County Sheriff (Sheriff),
filed a complaint against Mireles with the Cook County Sheriff’s Merit Board (Board). The Sheriff
alleged that on March 31, 2012, Mireles used excessive force when he struck a detainee’s face
with his hand. The Sheriff also alleged that Mireles failed to submit an incident report documenting
the use or force or to present himself to be interviewed about the incident. The complaint requested
that Mireles’ employment be terminated.
¶5 The Board’s Termination Decision and Mireles’ Prior Appeal
¶6 The Board conducted a hearing on October 23, 2014. In January 2015, the Board issued a
final administrative decision upholding the charges against Mireles and terminating his
employment. The decision was signed by eight Board members, including John Rosales.
¶7 On February 27, 2015, Mireles filed a complaint for administrative review in the circuit
court of Cook County. On January 7, 2016, the circuit court entered an order affirming the Board’s
decision.
¶8 Mireles appealed to this court, raising a number of arguments. Among these, he claimed
that his use of force was not excessive; the investigation into the incident was insufficient; and the
Board’s determination that he failed to properly report the incident was against the manifest weight
of the evidence. Mireles v. Cook County Sheriff’s Merit Board, No. 1-16-0203 (March 8, 2017)
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(unpublished summary order), ¶ 7. Notably, Mireles did not raise any challenge to the composition
of the Board. In March 2017, this court affirmed the Board’s termination decision. Id.
¶9 The 2014 Circuit Court Decision in Taylor v. Dart and Affirmance By Our Court
¶ 10 In a separate proceeding involving a different employee’s termination by the Board, in
August 2014 the circuit court issued a decision that forms the basis of Mireles’ current appeal.
Specifically, in Taylor v. Dart, the circuit court vacated a termination decision on the basis that
one of the Board members, John Rosales, was not duly appointed under the governing statute.
Specifically, whereas section 3-7002 of the Counties Code (55 ILCS 5/3-7002 (West 2012))
required Board members to be appointed for six-year terms, Rosales was appointed for a term of
less than one year. The circuit court in Taylor found that the Board “was not lawfully constituted
at the time of the hearing and decision” so that the termination decision was invalid.
¶ 11 After the Sheriff and Board appealed, we agreed with the circuit court that the Board
decision was void because it was “illegally constituted” at the time of Taylor’s termination
decision. Taylor v. Dart, 2016 IL App (1st) 143684, ¶ 47. In January 2017, our supreme court
issued a supervisory order directing our court to additionally consider whether the Cook County
Board of Commissions had home rule authority to approve interim appointments to the Board.
Pursuant to that supervisory order, this court issued another opinion, holding that that (1) the Board
was not authorized to appoint an individual for less than a six-year term; (2) Rosales’ participation
in Taylor’s termination decision rendered it void; and (3) the Cook County Board of
Commissioners did not have home rule authority to approve interim appointments. Taylor v. Dart,
2017 IL App (1st) 143684-B.
¶ 12 Mireles Challenges His Termination Decision on the Basis of Taylor
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¶ 13 In October 2017, Mireles filed a petition pursuant to section 2-1401 of the Code of Civil
Procedure seeking to vacate the January 2016 circuit court judgment that affirmed the Board
decision. Mireles asserted, for the first time, that the Board’s decision was void because one or
more members “were not duly appointed” at time it rendered the January 2015 decision. He noted
that John Rosales (whose appointment was found invalid by our court’s decisions in Taylor) was
a member of the Board that rendered his termination decision. Thus, he urged that the Board was
“illegally constituted” pursuant to Taylor and the Board’s decision was void.
¶ 14 The Sheriff moved to dismiss Mireles’ section 2-1401 petition, arguing, inter alia, that
section 2-1401 could not be used to challenge an administrative decision and that Mireles “waived
or forfeited his argument that the Merit Board was not properly constituted” by not previously
raising it. In April 2018, the circuit court granted the Sheriff’s motion to dismiss the section 2-
1401 petition and remanded the case to the Board.
¶ 15 The Sheriff subsequently moved to reconsider the April 2018 remand order based on “new
and controlling law” applying the de facto officer doctrine to bar similar challenges based on the
invalidity of the Board members. Specifically, the Sheriff argued that Lopez v. Dart, 2018 IL App
(1st) 170733 and Cruz v. Dart, 2019 IL App (1st) 170915, had “altered the legal application of
Taylor v. Dart.” The Sheriff argued that in light of those decisions, the de facto officer doctrine
barred Mireles from relying on Taylor to collaterally attack his termination decision.
¶ 16 In his opposition to the Sheriff’s motion, Mireles argued that the de facto officer doctrine
did not apply to him. He also asserted that all eight of the Board members who participated in his
termination decision (not just Rosales) were illegally appointed for terms of less than six years.
¶ 17 The circuit court stayed any decision on the Sheriff’s motion to reconsider, citing the
pending appeal before our supreme court in Goral v. Dart, supreme court case no. 125085. Our
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supreme court issued that decision in October 2020. Goral v. Dart, 2020 IL 125085. In January
2021, the Sheriff filed a motion to “recall and dismiss the case,” arguing that the supreme court’s
decision in Goral made clear that the de facto officer doctrine bars a challenge to the composition
of the Board that is not asserted until after the Board has taken “substantive action.”
¶ 18 Substitution of Plaintiff and Filing of the Second Amended Complaint
¶ 19 In May 2021, R. Scott Alsterda, as bankruptcy trustee for Mireles’ estate, moved for
substitution as plaintiff.1 In January 2022, the circuit court granted the substitution motion.2 In the
same order, the circuit court granted leave to file a superseding amended complaint.
¶ 20 On January 14, 2022, Mireles filed a second amended complaint for judicial review of the
Board’s January 2015 decision. Mireles pleaded two counts, only one of which is germane to this
appeal. In count I, Mireles sought review under the administrative review law, but he explicitly
recognized “this count had already been ruled upon and it is included solely for the purpose of
preserving it for any appeal.” 3
¶ 21 The second count was entitled “declaratory judgment” and sought to invalidate Mireles’
termination decision based on the composition of the Board, combined with the fact that the Board
rendered its decision after the August 2014 circuit court order in Taylor. In that count, Mireles
alleged that the Board was defective in several respects when it rendered the January 2015
termination decision. First, John Rosales was one of the Board members, notwithstanding that he
The record reflects that in May 2015, Mireles filed for Chapter 7 bankruptcy in the U.S. 1
Bankruptcy Court for the Northern District of Illinois. 2 For ease of reference, we refer to plaintiff-appellant as “Mireles” notwithstanding the substitution of Mireles’ bankruptcy trustee as the party plaintiff. 3 In briefing in the circuit court, Mireles acknowledged he included this count to preserve it for appeal but was “not seeking to relitigate” that count.
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had “already been determined improperly-seated” by the prior August 2014 Taylor order. Further,
Mireles alleged that several other Board members had been appointed to terms of less than six-
years, and that certain of these were “non-staggered.” Mireles alleged that the August 2014 Taylor
order “put the Sheriff and the Board on notice of the defects,” yet his termination decision was
entered in January 2015 without “any action to fix the defects in the appointments.”
¶ 22 Mireles additionally pleaded that the Board decision “could not be protected by the de facto
officer doctrine” in light of the circuit court’s August 2014 Taylor order. Mireles acknowledged
that he did not raise these defects in his proceedings before the Board, but alleged “he did not need
to as a matter of law once Taylor’s challenge was made because the doctrine is ‘backward looking’
and does not allow a Board with defects to continue operating.”
¶ 23 Mireles’ second amended complaint thus sought declarations that the Board was illegally
constituted during his proceedings before the Board “from the [August 2014] Taylor order
onward,” including his January 2015 termination decision, and that the de facto office doctrine did
not apply to him.
¶ 24 In February 2022, the Sheriff moved to dismiss Mireles’ second amended complaint
pursuant to section 2-615 of the Code of Civil Procedure. The Sheriff argued that the de facto
officer doctrine warranted dismissal, because Mireles did not raise a timely challenge to the
composition of the Board. The Sheriff urged that application of the de facto officer doctrine was
supported by the 2020 supreme court decision in Goral and several other appellate court decisions.
The Board subsequently joined the Sheriff’s motion to dismiss. Mireles filed an opposition to the
motion.
¶ 25 The Circuit Court Dismisses the Second Amended Complaint
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¶ 26 On June 23, 2022, the circuit court dismissed the second amended complaint with
prejudice. The circuit court first acknowledged that “Count I is clearly pled solely to preserve the
issue for appeal.” The circuit court proceeded to agree with the Sheriff that count II was barred by
the de facto officer doctrine, relying on the supreme court decision in Goral and First District case
law. The circuit court rejected Mireles’ argument that the doctrine should not apply to his challenge
to the Board’s January 2015 decision because the Board was already “on notice” that it was
“illegally constituted” after the 2014 circuit court order in Taylor. The circuit court noted that the
First District had applied the de facto officer doctrine in Cruz v. Dart, 2019 IL App (1st) 170915
and Lopez v. Dart, 2018 IL App (1st) 170733, notwithstanding that the Board decisions at issue in
those cases were also rendered after the 2014 Taylor order.
¶ 27 Further, the circuit court found that in Malacina v. Cook County Sheriff’s Merit Board,
2021 IL App (1st) 191893, “the First District has now expressly held that the de facto officer
doctrine applies unless the plaintiff raised the issue of the illegal composition of the Merit Board
before the issuance of the final administrative decision.” The circuit court concluded that because
Mireles “never raised the issue of the Merit Board’s composition prior to the issuance of the final
administrative decision,” count II of the second amended complaint was barred by the de facto
officer doctrine. On that basis, it dismissed the second amended complaint.
¶ 28 Mireles filed a timely appeal.
¶ 29 ANALYSIS
¶ 30 On appeal, Mireles maintains that the January 2015 decision was invalid because Rosales
and other Board members were seated for less than six-year terms. He emphasizes that the decision
against him was issued after the circuit court’s 2014 decision in Taylor vacating a Board decision
due to Rosales’ illegal appointment. He thus reasons that the Sheriff and Board were “put on notice
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that such a defect violated the Act,” yet the Board issued the 2015 decision against him without
correcting the defects in its composition. Because he asserts that the circuit court in Taylor decision
put the Board on “notice” of the defects, he maintains that it is inequitable to apply the de facto
officer doctrine against him. In doing so, he emphasizes certain language in this court’s decision
in Goral that the doctrine “looks backward” but does not permit an illegally constituted board to
“keep doing business” after a court declares it invalid. Goral, 2019 IL App (1st) 181646, ¶ 101.
He suggests he raises a unique argument that distinguishes his case from other recent precedent
applying the de facto officer doctrine to bar similar challenges to Board decisions.
¶ 31 In response, the Sheriff first contends that, as a procedural matter, Mireles’ second
amended complaint was barred by waiver, forfeiture, or res judicata because Mireles did not
challenge the composition of the Board until after his prior appeal. Secondly, the Sheriff argues
that the circuit court correctly found that the de facto officer doctrine bars Mireles’ challenge, as
he did not raise any issue concerning the composition of the Board until long after it rendered in
its January 2015 termination decision.
¶ 32 For the following reasons, we affirm the dismissal of the second amended complaint.
¶ 33 Standard of Review
¶ 34 With respect to the standard of review, we note that Mireles’ brief recites the standards for
challenging a decision pursuant to the Administrative Review Law. See Medponics Illinois, LLC
v. Department of Agriculture, 2021 IL 125443, ¶ 29 (describing standard for reviewing
administrative agency’s determinations on questions of law, fact or mixed questions of law and
fact). However, in this appeal he is not directly challenging a decision of the Board. Rather, he
appeals from the dismissal of count II of his second amended complaint, in which he sought a
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declaratory judgment from the circuit court that, inter alia, the Board was not legally constituted
at the time of his termination decision and that de facto officer doctrine did not apply to him.
¶ 35 The trial court granted the motion to dismiss under section 2-615 of the Code of Civil
Procedure (735 ILCS 5/2-615 (West 2022)). Such a motion “challenges the legal sufficiency of a
complaint based on defects apparent on its face,” and an order granting such a motion is reviewed
de novo. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006); see also Cahokia Unit School
District No. 187 v. Pritzker, 2021 IL 126212, ¶ 24 (de novo review applies to a dismissal under
either section 2-1615 or section 2-619 of the Code of Civil Procedure). 4
¶ 36 Res Judicata Bars Mireles’ Current Claim Because It Could Have Been Raised Earlier
¶ 37 Before we delve into the parties’ arguments regarding the application of the de facto officer
doctrine, we address the Sheriff’s threshold arguments that Mireles’ second amended complaint is
procedurally barred by waiver, forfeiture, or res judicata. The Sheriff points out that Mireles did
not raise any argument disputing the validity of the Board that rendered his termination decision,
either in the prior administrative review action in the circuit court, or in his corresponding
unsuccessful appeal to this court. See Mireles v. Cook County Sheriff’s Merit Board, No. 1-16-
0203 (March 8, 2017) (unpublished summary order).
¶ 38 We find the Sheriff’s res judicata argument persuasive. “The doctrine of res judicata
provides that a final judgment on the merits rendered by a court of competent jurisdiction bars any
subsequent actions between the same parties or their privies on the same cause of action.” Hudson
4 We note that the Sheriff’s motion to dismiss could properly have been asserted as one under section 2-619, which “admits the legal sufficiency of the claim but asserts defenses or defects outside the pleading to defeat the claim.” Cahokia Unit School District No. 187, 2021 IL 126212, ¶ 23. In any event, the standard of review is the same.
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v. City of Chicago, 228 Ill. 2d 462, 467 (2008). “Three requirements must be satisfied for res
judicata to apply: (1) a final judgment on the merits has been rendered by a court of competent
jurisdiction; (2) an identity of cause of action exists; and (3) the parties or their privies are identical
in both actions.” Id. The doctrine “bars not only what was actually decided in the first action but
also whatever could have been decided.” Id.
¶ 39 In his reply brief, Mireles does not dispute that the parties or their privies in his original
action for administrative review and his current challenge are identical. However, he asserts that
the other two elements of res judicata are missing. First, he claims there was no “final judgment”
because “[t]he entire premise of Mireles’ 2-1401 petition was to aver that the Merit board’s
termination decision is void because the Board was not properly constituted.” Thus, he claims “res
judicata does not apply because the decision is void and does not constitute a final judgment.”
¶ 40 This argument is unpersuasive. Notwithstanding his current assertion that the Board’s
decision was void, his original complaint for administrative review and prior appeal resulted in
two final judgments on the merits rendered by courts of competent jurisdiction: the circuit court’s
January 2016 decision, as well as this court’s March 2017 order affirming the Board’s
determination. Mireles v. Cook County Sheriff’s Merit Board, 2017 IL App (1st) 160203-U.
Mireles does not attempt to suggest that this court’s prior decision in his original appeal was not a
final judgment rendered by a court without jurisdiction. We find that the prior court decisions
constituted final judgment on the merits that fulfilled this element of res judicata.
¶ 41 Mireles otherwise asserts there is no identity of cause of action because his “initial appeal
was about whether or not the Board’s decision was against the manifest weight of the evidence”
and the merits of whether his termination was justified, whereas “[t]he 2-1401 petition relates to
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the Board having improperly-seated members and the decision being void as a result.” 5 Thus, he
claims his prior appeal and this one do not have “the same body of operative facts.”
¶ 42 We disagree, keeping in mind that “Illinois has adopted the transactional test in
determining whether an identity of cause of action exists for purposes of res judicata.” Oshana v.
FCL Builders, Inc., 2013 IL App (1st) 120851, ¶ 34 (citing River Park, Inc. v. City of Highland
Park, 184 Ill. 2d 290, 309-11 (1998)). Under this test, “claims are part of the same cause of action
if they arise from the same transaction or series of connected transactions.” (Internal quotation
marks omitted.) Id. “Subsequent claims may be barred if they originate from a single group of
operative facts.” Id. Significantly, this proposition applies “regardless of whether the claims assert
different theories of relief or are based on evidence that does not substantially overlap, as long as
they arise from the same transaction.” Id.
¶ 43 Although Mireles’ instant challenge to the Board decision is based on a very different legal
theory from his prior appeal, both challenges are based on the same transaction: the January 2015
Board decision. All of the operative facts underlying the instant appeal—including the identity of
each Board member that participated in the decision—were already known at the time of his prior
challenge to the decision and related appeal. Although Mireles chose not to raise any claim
disputing the validity of any Board member’s appointment in the prior proceedings, that does not
mean his current challenge is based on a different “transaction” for purposes of res judicata. We
agree with the Sheriff that insofar as both challenges were premised on the same Board decision,
they arise from the same transaction.
5 We note that Mireles’ reference in his briefing to “the 2-1401 petition” is puzzling, since the record reflects that the section 2-140 petition was superseded by the second amended complaint, whose dismissal is the subject of this appeal.
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¶ 44 Finally, although Mireles does not dispute the point, we find that there is an “identity of
parties or their privies” for application of res judicata. Hudson, 228 Ill. 2d at 470. We recognize
that the prior challenge and related appeal were brought by Mireles personally, whereas his
bankruptcy trustee was substituted as the party plaintiff before filing the second amended
complaint that is the subject of this appeal. However, for res judicata purposes, “[a] nonparty may
be bound pursuant to privity if his interests are so closely aligned to those of a party that the party
is the virtual representative of the nonparty.” (Internal quotation marks omitted.) Oshana, 2013 IL
App (1st) 120851, ¶ 23. It is clear that a bankruptcy trustee is aligned with the interests of debtor
(Mireles), such that they are in privity for purposes of applying res judicata.
¶ 45 We thus agree with the Sheriff that the current challenge is barred by res judicata. This is
an independent ground for affirming dismissal of the second amended complaint. Nonetheless,
even assuming that res judicata did not apply, we otherwise agree with the circuit court that the
de facto officer doctrine independently warranted dismissal.
¶ 46 De Facto Officer Doctrine
¶ 47 “The de facto officer rule is a common law equitable doctrine that confers validity on acts
performed by an official acting under the color of official title, even though it is later determined
that the official’s appointment to that position was legally deficient.” Malacina v. Cook County
Sheriff’s Merit Board, 2021 IL App (1st) 191893, ¶ 20 (citing Goral, 2020 IL 125085, ¶ 71.)
“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.”
Goral, 2020 IL 125085, ¶ 71. The doctrine is meant 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. [Citation.]” Id.
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¶ 48 The doctrine “is applied as a defense to an attack on the acts of an officer or appointee in a
collateral proceeding”, which “necessarily requires a prior act or judgment that is, or may be,
subject to attack.” Id. 72. “[T]he doctrine was never intended to preclude a timely challenge to an
official’s authority; it is, instead, a defense to a collateral challenge brought after the official’s
action has been completed.” (Emphasis in original.) Malacina, 2021 IL App (1st) 191893, ¶ 21.
¶ 49 This district has applied a “first challenger exception” to the de facto officer doctrine, by
which “the first individual to raise a challenge to an official’s authority to act is entitled to relief—
a reward for exposing the defective appointment.” Id., ¶ 23. However, “once that first party secures
the court ruling invalidating the Board’s composition (and gets relief for having done so), any
previous final decisions from that illegally constituted board are insulated from challenge.” Goral,
2019 IL App (1st) 181646, ¶ 91. Consistent with this exception, the Taylor plaintiff—the first one
to raise the defect in the Board member Rosales’ appointment—received the benefit of having his
termination decision vacated. Taylor, 2017 IL App (1st) 143684-B. However, this district has
“taken a narrow view of the ‘first challenger’ exception. Malacina, 2021 IL App (1st) 191893, ¶
25 (recognizing that “in Cruz, 2019 IL App (1st) 170915, we held that a post-decision challenge
to the composition of the Board was barred by the de facto officer rule, even though Cruz identified
different invalidly appointed officials” than the one identified in Taylor.).
¶ 50 Following this court’s determination in Taylor that Rosales was invalidly appointed
(Taylor, 2017 IL App (1st) 143684-B), this court has consistently applied the de facto officer
doctrine to bar a number of similar challenges to Board’s authority, where the challenges were not
asserted until after the Board’s issued a final decision. See, e.g., Acevedo v. Cook County Sheriff’s
Merit Board, 2019 IL App (1st) 181128, ¶ 25 (plaintiff’s claim that his termination decision was
void because Rosales participated in it was barred by the de facto officer doctrine where “Acevedo
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raises the same issue with Rosales’ appointment as was raised in Taylor, Lopez, and Cruz—an
appointment to a term of less than six years); Cruz v. Dart, 2019 IL App (1st) 170915, ¶ 38 (de
facto officer doctrine applied to attempt to void decision based on appointments of three other
Board members to terms of less than six years, which was “the same problem with the appointment
procedure that was before us in Taylor and Lopez”); Lopez v. Dart, 2018 IL App (1st) 170733, ¶
59 (applying de facto officer doctrine where Lopez was “not the first claimant to have brought the
illegal appointment of Rosales to light,” reasoning this “will circumvent the upheaval that would
doubtlessly result if we were to invalidate the Merit Board’ decision and invite hundreds of
plaintiffs” to challenge decisions rendered during Rosales’ “unauthorized term.”).
¶ 51 By contrast, in Goral, both this court and our supreme court rejected the Sheriff’s reliance
on the de facto officer doctrine where the plaintiffs timely challenged the authority of the Board
by filing a complaint before the Board had rendered decisions against them. See Goral, 2019 IL
App (1st) 181646, ¶ 1 (explaining that Goral plaintiffs consisted of employees charged by the
Sheriff with disciplinary infractions who “from the outset of their administrative cases *** have
challenged the authority of the Board to hear their cases, based on claims that the Board is illegally
constituted.”) This court’s decision explained that the doctrine did not apply to the Goral plaintiffs
because at the time they filed a lawsuit challenging the validity of Board’s composition, “none of
plaintiffs’ administrative actions had gone to a final decision.” Id., ¶ 99. Rather, they “have been
raising statutory-authority arguments before the Board since their cases began ***.” Id.
¶ 52 Our court in Goral went on to emphasize that the timing of the challenge “makes all the
difference in the world.” Id. ¶ 100. Then, in language relied upon by Mireles in this appeal, we
went on to say:
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“The ‘de facto officer’ doctrine is concerned with the fear of
unearthing old decisions * * *. But that doctrine is not—and could
not—be concerned with pending or brand-new cases. Once a court
decides that a board is illegally constituted, that board can’t keep
hearing pending cases, much less entertain newly filed ones. To say
otherwise would be to say that court decisions mean nothing.
The ‘de facto officer’ doctrine looks backward. It does not
look forward. Once a court declares a board’s composition invalid,
we may protect its old decisions, but we absolutely do not allow it
to keep doing business—illegally—as if we had never issued our
ruling.” Id. ¶¶ 100-01.
¶ 53 Our supreme court affirmed, emphasizing that the timing of the plaintiffs’ challenge
precluded application of the de facto officer doctrine:
“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. Because the de facto
officer doctrine has not been—and should not be—employed as an
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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.” Goral, 2020 IL 125085, ¶ 75.
¶ 54 The De Facto Officer Doctrine Applies to Bar Mireles’s Challenge
¶ 55 Mireles urges that despite the above precedent, he presents an argument against application
of the de facto officer doctrine that is unique and unresolved by this court. His position is that
after the 2014 circuit court decision in Taylor, the Board was on notice of any defective
appointments and thus had an obligation to correct them before it issued the 2015 decision
terminating him. He suggests that this invalidates the decision, regardless of when he first raised a
challenge to the Board’s composition. That is, he argues that the “timing matters” language from
the supreme court decision in Goral does not address his “particular issue: what effect does the
original [circuit court] Taylor Order have on the application of the de facto officer doctrine given
that [our appellate court decision in Goral] recognized that the doctrine is ‘backwards looking’?”
¶ 56 To be clear, Mireles does not dispute that he did not challenge the Board’s composition
before it rendered a decision against him. Rather, relying on the language from this court’s opinion
in Goral that a board should not be permitted to “keep doing business” after a court declares its
composition invalid, (2019 IL App (1st) 181646, ¶ 101), he suggests the Board was obligated to
“fix[] itself” after it was put on notice by the circuit court’s 2014 Taylor order. He suggests there
should be no obligation to raise a timely challenge to the Board’s composition, as it is “unjust” to
“place the onus on officers to raise an objection” when the Board and the Sheriff “knew full well”
of defects in the composition. Mireles argues that application of de facto officer doctrine would
reward the Sheriff and Board’s “bad behavior” for failing to correct defects after the Taylor order.
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¶ 57 He asserts that our court has “never squarely confronted this issue, and has never explained
why the Taylor order does not matter.” He suggests that officers subject to an adverse Board
decision issued after the August 2014 Taylor order and “while the Board had the same defects”
should not be barred by de facto officer doctrine, regardless of whether they raised a challenge
before the Board’s decision. Mireles urges his position is supported by Justice McMorrow’s
concurrence in Daniels v. Industrial Commission, 201 Ill. 2d 160 (2002) insofar as it urged that
the de facto officer doctrine should not be applied “mechanically” and should not apply where
illegal appointments “were the result of malfeasance or a deliberate attempt to subvert” a governing
statute. Id. at 174-75. Indeed, he accuses the Board of “deliberate malfeasance” by continuing to
render decisions with “defective appointments” after the August 2014 Taylor order.
¶ 58 We find Mireles’ arguments unavailing in light of precedent from this court and the
supreme court reaffirming the validity of the de facto officer doctrine and the requirement of a
timely challenge to avoid its application. We point out that, notwithstanding Mireles’ reliance on
certain language of our 2019 decision in Goral, that decision still made clear that an officer has
the burden to make a timely challenge to avoid the de facto officer doctrine. Indeed, shortly after
stating that the doctrine “looks backward” and does not allow the Board to keep doing business
illegally, (2019 IL App (1st) 181646, ¶101) this court in Goral made clear that a party still needed
to assert a timely challenge to the Board’s composition, i.e. while the matter was still pending:
“To put it plainly: Once Taylor was decided, any Sheriff’s employee
whose case was then-pending before the Board, or who was charged
in a new case post-Taylor, had every right to challenge the Board’s
composition for the same reasons as in Taylor (or for different
reasons). Old cases already finally decided, no, but pending or new
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administrative cases, yes. Plaintiffs’ cases were pending *** and the
de facto officer doctrine did not prevent them from challenging the
Board’s composition.” (Emphasis added.) Goral, 2019 IL App (1st)
181646, ¶ 105.
¶ 59 Importantly, this statement of the law “not only survived the supreme court’s review of our
decision but was the very basis for the supreme court’s holding” affirming our decision in Goral.
Malacina, 2021 IL App (1st) 191893, ¶ 31 (citing Goral, 2020 IL 125085). As explained in
Malacina, our supreme court held that “[t]he Board’s then-illegal composition remained ripe for a
challenge by a party before the Board—as long as the party raised it at the time of those
administrative proceedings, and not merely afterward, post-final decision. Goral did so * * *
before the Board’s final administrative decision was rendered. And that is precisely why the
Illinois Supreme Court held that Goral’s claim was not subject to a de facto officer defense.”
(Emphases in original.) Id. (citing Goral, 2020 IL 125085, ¶ 75).
¶ 60 In short, our supreme court held that the de facto officer doctrine did not apply to the Goral
plaintiffs because they made a “timely challenge” before an adverse Board decision; that is, they
“were not trying to unwind or undermine any administrative determination by the Merit Board.”
Goral, 2020 IL 125085, ¶ 75. This is precisely what Mireles is attempting to do here with respect
to his 2015 termination decision by the Board, without having made a timely challenge.
¶ 61 Our supreme court’s holding in Goral controls. This is so notwithstanding Mireles’s claim
that it is “unjust” to require him to raise a challenge because the Board should have fixed any
defects after the circuit court’s 2014 decision in Taylor. 6
6 We note, as explained by our supreme court, that “in response to Taylor, the legislature amended the Code provision governing Merit Board appointments.” Goral, 2020 IL 125085, ¶ 12. The amendment permitted the
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¶ 62 Our supreme court in Goral reaffirmed that the de facto officer doctrine “serves to preserve
the integrity of an official action that is complete and where the authority of the agency or public
official was not challenged in a timely manner.” Id., ¶ 74. Goral makes clear that the doctrine is a
valid defense to a collateral attack on an old decision – which is exactly what Mireles attempted
through his second amended complaint. While Goral held that the doctrine does not apply to a
party who raised a “timely challenge to the authority of an administrative agency”, (id. ¶ 75), that
is, before the Board rendered a decision, it is undisputed that Mireles did not do so. Indeed, he did
not raise a challenge to the validity of the Board until October 2017, after this court rejected his
prior appeal from the same Board decision.
¶ 63 Goral is binding precedent that requires a timely challenge to the Board’s composition to
avoid the de facto officer defense. Therefore, we must reject Mireles’ various equitable and policy-
related arguments that he should be excluded from that requirement. Accordingly, the circuit court
correctly concluded that the de facto officer doctrine warranted dismissal.
¶ 64 CONCLUSION
¶ 65 In summary, we find that: (1) Mireles’ challenge to the composition of the Board that
rendered his termination decision is barred by res judicata given his failure to raise it in the prior
action and appeal and (2) in any event, the de facto officer doctrine operates to independently bar
his untimely collateral attack on the Board’s decision.
¶ 66 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 67 Affirmed.
Sheriff to make interim appointments, abolished all existing terms of each Board member, and created a new schedule for staggered terms of Board members. Id. (citing Pub. Act 100-562, § 5 (eff. Dec. 8, 2017) (amending 55 ILCS 5/3-7002)).
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