Beauchamp v. Dart

2022 IL App (1st) 210091-U

• Court: Appellate Court of Illinois
• Decided: May 17, 2022
• Docket: 1-21-0091
• Status: Unpublished

Opinion

2022 IL App (1st) 210091-U

SECOND DIVISION May 17, 2022

No. 1-21-0091

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 JUDICIAL DISTRICT ______________________________________________________________________________

MARQUIS BEAUCHAMP, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 19 CH 8869 ) THOMAS J. DART, in his official capacity as Sheriff ) of Cook County, THE COOK COUNTY SHERIFF’S ) MERIT BOARD, and COOK COUNTY, as indemnitor, ) Honorable ) Moshe Jacobius, Defendants-Appellees. ) Judge Presiding. ______________________________________________________________________________

JUSTICE HOWSE delivered the judgment of the court. Justices Lavin and Cobbs concurred in the judgment.

ORDER

¶1 Held: The judgment of the circuit court of Cook County is affirmed; the trial court properly granted the motion to dismiss plaintiff’s complaint for mandamus relief with prejudice where plaintiff cannot plead facts demonstrating a clear right to mandamus to compel the Cook County Sheriff to use the Cook County State’s Attorney as counsel in proceedings before the Cook County Sheriff’s Merit Board.

¶2 Plaintiff, Marquis Beauchamp, filed a complaint in the circuit court of Cook County

seeking administrative review of a decision by defendant, the Cook County Sheriff’s Merit

Board (Merit Board), terminating his employment as a correctional officer. Plaintiff’s complaint

included a count seeking mandamus relief (count III) against defendant, Thomas J. Dart, in his 1-21-0091

official capacity as Sheriff of Cook County (Sheriff), to compel the Sheriff to utilize the Cook

County State’s Attorney (State’s Attorney) as his attorney in the proceedings. The trial court

dismissed count III of plaintiff’s complaint with prejudice and entered an order pursuant to

Illinois Supreme Court Rule 304 that no just reason exists to delay appeal of that judgment. For

the following reasons, we affirm.

¶3 BACKGROUND

¶4 In April 2016, the Sheriff initiated disciplinary proceedings against plaintiff before the

Merit Board. The nature of those disciplinary proceedings is immaterial to this appeal. It is

undisputed that the State’s Attorney initially represented defendant Sheriff before the Merit

Board but that at some point during the proceedings the State’s Attorney withdrew representation

and the Sheriff proceeded with the proceedings represented by attorneys employed by the

Sheriff. In June 2019 the Merit Board issued its decision to terminate plaintiff’s employment as a

correctional officer. Plaintiff filed a three-count complaint in the circuit court of Cook County.

Count III of the complaint included claims for administrative review of the Merit Board’s

decision to terminate him and a complaint for mandamus directing the Sheriff to be represented

by the State’s Attorney in proceedings before the Merit Board (count III).

¶5 In March 2020, the trial court granted defendants’ motion to dismiss count III of

plaintiff’s complaint with prejudice.

¶6 This appeal followed.

¶7 On appeal, plaintiff argues only that the Counties Code requires the State’s Attorney to

represent the Sheriff at Merit Board proceedings and because that did not happen in this case the

Merit Board’s decision is void.

¶8 ANALYSIS

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¶9 The trial court granted defendants’ motion to dismiss as to count III of plaintiff’s

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

(West 2018)). “A motion to dismiss under section 2-615 of the Code *** is proper when the

complaint fails to state a claim on which relief can be granted. 735 ILCS 5/2–615 (West 2008).”

Duane v. Hardy, 2012 IL App (3d) 110845, ¶ 10. This court reviews a trial court’s judgment

granting a motion to dismiss a mandamus petition de novo. Id. ¶ 11. De novo review means that

we perform the same analysis the trial court would perform (Barry v. City of Chicago, 2021 IL

App (1st) 200829, ¶ 17) with no deference shown to the trial court’s judgment (Cummings v.

City of Waterloo, 289 Ill. App. 3d 474, 479 (1997)). The plaintiff is required to have pled facts

that are sufficient to state a claim on which relief can be granted to survive a motion to dismiss.

Duane, 2012 IL App (3d) 110845, ¶ 11 (citing Beahringer v. Page, 204 Ill. 2d 363, 369 (2003)).

When determining whether the complaint states a claim on which relief can be granted this court

must accept as true all well-pleaded facts and reasonable inferences drawn from them and view

those facts in a light most favorable to the plaintiff while disregarding “mere conclusions of law

or facts that are unsupported by the evidence.” Id.

¶ 10 Mandamus is used to enforce the plaintiff’s right to a public officer’s performance of an

official nondiscretionary duty. See Duane, 2012 IL App (3d) 110845, ¶ 11. See also Pate v.

Wiseman, 2019 IL App (1st) 190449, ¶ 25 (quoting Noyola v. Board of Education of the City of

Chicago, 179 Ill. 2d 121, 133 (1997) (quoting Madden v. Cronson, 114 Ill. 2d 504, 514 (1986))

(“Mandamus is an ‘extraordinary remedy’ that may be used to enforce the performance of

official duties by a public officer only where the petitioner is entitled to the performance ‘as a

matter of right’ and only ‘ “where no exercise of discretion” ’ on the part of the officer ‘ “is

involved.” ’ [Citations.]”). “Mandamus cannot be used to direct a public official or body to reach

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a particular decision or to exercise its discretion in a particular manner, even if the judgment or

discretion has been erroneously exercised. [Citation.]” (Internal quotation marks omitted.) Pate,

2019 IL App (1st) 190449, ¶ 25. Therefore, to state a cause of action for mandamus relief a

plaintiff must plead facts to establish “(1) a clear right to the relief requested, (2) a clear duty of

the public official to act, and (3) clear authority in the public official to comply with the writ.”

(Emphasis added.) Pate, 2019 IL App (1st) 190449, ¶ 26 (citing Burris v. White, 232 Ill. 2d 1, 7

(2009)).

¶ 11 Plaintiff brought count III of the complaint under the authority of the Mandamus Statute

(735 ILCS 5/14-101 et seq. (West 2018)) and sought independent mandamus relief against the

Sheriff based on the Sheriff’s use of “internal disciplinary officers” to represent the Sheriff in

proceedings before the Merit Board allegedly in violation of the Counties Code and the Illinois

constitution, which plaintiff asserts requires “such matters to be handled exclusively by [the

State’s Attorney.]” Plaintiff’s complaint alleges that this “unlawful representation” renders all

actions taken by the Sheriff at the Merit Board “null and void, and without legal effect.” Count

III of plaintiff’s complaint alleges that using the State’s Attorney “to commence and prosecute

the written charges and proceedings brought by him at the [Merit Board]” is “nondiscretionary

on the part of” the Sheriff, and the Sheriff “had a clear duty to utilize” the State’s Attorney to

prosecute the proceedings pursuant to section 3-9005(a) of the Counties Code and the Illinois

constitution. See infra, ¶ 14. The complaint also alleges the Sheriff “has and will have clear

authority to comply with a writ” directing him to use the State’s Attorney’s representation in

cases before the Merit Board.

¶ 12 Count III of plaintiff’s complaint alleges that plaintiff “has a clear right to a writ of

mandamus requiring” the Sheriff “to provide representation on behalf of the [Sheriff] at the

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[Merit Board] [sic].” The complaint alleges plaintiff has this “clear right” because the Sheriff’s

duty to comply with the Counties Code and the Illinois constitution “are of crucial importance to

the administration of justice at the [Merit Board] *** because of the objective viewpoints and

professional independence of” the State’s Attorney. Plaintiff alleges the State’s Attorney’s

independence is essential to protect the officers being prosecuted at the Merit Board. Plaintiff

alleges that proceedings before the Merit Board are “matters of grave public importance,”

therefore the State’s Attorney “must utilize her professional independence from the [Sheriff] to

commence and prosecute” cases before the Merit Board on the Sheriff’s behalf.

¶ 13 Plaintiff claims he was “deprived of the safeguards of the professional independence” of

the State’s Attorney and that the public interest favors the issuance of a writ because the State’s

Attorney “can advise and counsel the [Sheriff],” but the use of internal staff members undercuts

and usurps the State’s Attorney’s independent judgment which should be a part of the process.

Plaintiff seeks a writ of mandamus against the Sheriff requiring the Sheriff to utilize the State’s

Attorney’s representation in Merit Board proceedings in plaintiff’s case and in similarly situated

officers’ cases, and compensation for his losses in connection with the Sheriff’s failure to do so

including rescindment of the discipline against him and compensation for the consequences

(back pay, damages, attorney fees) thereof.

¶ 14 The relevant provisions of the Counties Code and the Illinois constitution are section 3-

9005(a)(3) of the Counties Code (55 ILCS 5/3-9005(a)(3) (West 2018)) and article 7, section

4(d) of the Illinois constitution (Ill. Const. 1970, art. VII, § 4(d)). Section 9005(a)(3) of the

Counties Code reads as follows:

“(a) The duty of each State’s Attorney shall be:

***

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(3) To commence and prosecute all actions and proceedings brought by

any county officer in the county officer’s official capacity.”

Article 7, section 4(d) of the Illinois constitution reads as follows:

“County officers shall have those duties, powers and functions provided

by law and those provided by county ordinance. County officers shall have the

duties, powers or functions derived from common law or historical precedent

unless altered by law or county ordinance.” Ill. Const. 1970, art. VII, § 4(d).

Additionally, section 3-7012 of the Merit Board Act reads as follows:

“Except as is otherwise provided in this Division, no *** county corrections

officer *** shall be removed, demoted or suspended except for cause, upon written

charges filed with the Board by the Sheriff.” (Emphasis added.) 55 ILCS 5/3-7012 (West

2018).

Moreover, the Rules and Regulations of the Cook County Sheriff’s Merit Board provide

that: “At the time and place of the [disciplinary] hearing, the Sheriff and the named

employee may be represented by counsel.” Administrative Procedures Rules and

Regulations Cook County Sherriff’s Merit Board, Art. VIII(E)(3).

¶ 15 The trial court concluded that pursuant to section 3-7006 of the Cook County Sheriff’s

Merit Board Act (Merit Board Act) (55 ILCS 5/3-7006 (West 2018))1 and the Board’s Rules and

Regulations, “[t]he Sheriff is not required to be represented by counsel [in proceedings before

the Board,] much less be represented by the State’s Attorney.” The trial court also concluded that

1 “Pursuant to recognized merit principles of public employment, the Board shall formulate, adopt, and put into effect rules, regulations and procedures for its operation and the transaction of its business.” 55 ILCS 5/3-7006 (West 2018).

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section 3-7012 of the Merit Board Act is clear that the Sheriff, not the State’s Attorney,

commences and prosecutes disciplinary actions before the Merit Board whereas section 3-9005

of the Counties Code “as a whole clearly addresses the State’s Attorney’s duty to represent the

county and its officers in civil and criminal proceedings” (emphasis added) and section 3-7012

controls any conflict between them “as the more specific statute.” The trial court held plaintiff

“has no clear right to the relief he requests in Count III,” without which “a writ of mandamus

cannot issue as a matter of law.” The court dismissed count III of plaintiff’s complaint with

prejudice.

¶ 16 On appeal, plaintiff argues that the plain language of section 3-9005 of the Counties Code

requires that the State’s Attorney prosecute matters before the Merit Board on behalf of the

Sheriff because a proceeding before the Merit Board is an action or proceeding brought by a

county officer (the Sheriff) in the county officer’s official capacity. See 55 ILCS 5/3-9005(a)(3)

(West 2018). Plaintiff argues section 3-9005 is not confined to civil and criminal matters because

construing section 3-9005 in the context of the Counties Code as a whole, as we must (see

Williams v. Miracle Center, Inc., 2022 IL App (1st) 210291, ¶ 43 (citing Colella v. Lombard

Park District, 2017 IL App (2d) 160847, ¶ 39)) 2, reveals that not only is the State’s Attorney not

confined to only providing representation in civil and criminal matters in the circuit court (see,

e.g., 55 ILCS 5/3-9005(a)(7) (West 2018)), but, when the legislature intended the State’s

Attorney to provide representation in the circuit court, it said so explicitly (see 55 ILCS 5/3-

2 “We must presume that several statutes relating to the same subject are governed by one spirit and a single policy, and that the legislature intended the several statutes to be consistent and harmonious.” Wade v. City of North Chicago Police Pension Board, 226 Ill. 2d 485, 512 (2007) (cited by Colella)

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9005(a)(1) (West 2018)). Plaintiff further argues that his interpretation of section 3-9005(a)(3) is

not in conflict with the Rules and Regulations of the Cook County Sheriff’s Merit Board because

harmonizing both results in finding that the Sheriff is to file matters before the Merit Board but

the State’s Attorney must then prosecute those matters. Finally, assuming the invalidity of the

Sheriff’s actions, plaintiff argues the Merit Board’s decision is void because it was not

prosecuted by a validly appointed State’s Attorney. See People v. Ward, 326 Ill. App. 3d 897,

902-03 (2002).

¶ 17 Defendants respond the trial court lacked jurisdiction over plaintiff’s complaint for

mandamus relief because the Administrative Review Law provides the exclusive means to

challenge the decision of an administrative agency like the Merit Board. See Porter v. Illinois

State Board of Education, 2014 IL App (1st) 122891, ¶ 23 (“The Review Law was intended to

replace writs for mandamus, certiorari, and other equitable, statutory, and common law actions

as methods of review and provide uniformity in reviewing administrative decisions.”).

Alternatively, defendants argue plaintiff lacks standing to bring this claim for mandamus because

plaintiff failed to plead that he suffered an injury from the Sheriff’s failure to use the State’s

Attorney to prosecute proceedings before the Merit Board. See O’Connell v. County of Cook,

2021 IL App (1st) 201031, ¶ 33. “Standing is ‘some injury in fact to a legally recognized

interest.’ [Citation.] The claimed injury must be distinct and palpable, fairly traceable to the

defendant’s actions, and substantially likely to be prevented or redressed by the grant of the

requested relief. [Citation.]” Id. Specifically, in this case defendants argue “there is no

discernible reason that the Sheriff’s choice of legal representation in a disciplinary proceeding

would have caused [plaintiff] any harm.” (Emphasis omitted.) As for plaintiff’s claims about the

State’s Attorney’s objectivity in the matter, defendants argue plaintiff’s claims are only

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speculation but an injury must be “palpable” to establish standing and, furthermore, plaintiff

“can only speculate that the State’s Attorney’s ‘objectivity’ and ‘independence’ would have

somehow inured to his benefit.” (Emphasis omitted.) Finally, defendants argue plaintiff’s

complaint for mandamus fails to state a claim for relief on its merits because, contrary to

plaintiff’s view, the plain language of the Counties Code “evinces the General Assembly’s intent

that the Sheriff—not the State’s Attorney—should both commence and prosecute disciplinary

hearings before the Merit Board.”

¶ 18 As an initial matter, we reject defendants’ argument that we need not address plaintiff’s

appeal because the trial court allegedly lacked jurisdiction over plaintiff’s complaint for

mandamus relief. Defendant argues that the circuit court lacked jurisdiction over plaintiff’s

complaint seeking mandamus because the Administrative Review Law provides the exclusive

means to challenge the final decisions of an administrative agency like the Merit Board.

Defendant ignores the fact plaintiff’s complaint for mandamus sought relief that was independent

and separate from plaintiff’s complaint for administrative review of the Merit Board’s final

decision. Plaintiff filed a three-count complaint in the circuit court of Cook County that included

clams for administrative review of the Merit Board’s decision to terminate him and a complaint

for mandamus directing the Sheriff to be represented by the State’s Attorney in proceedings

before the Merit Board (count III). The issue raised in count III of whether the Sheriff is required

to employ the services of the State’s Attorney to prosecute cases before the Merit Board instead

of attorneys he employs in his office is a justiciable issue, separate from any final decision of the

Merit Board. The circuit court has jurisdiction of all justiciable issues. See Belleville Toyota, Inc.

v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 340 (2002). Plaintiff brought count III of the

complaint under the authority of the Mandamus Statute (735 ILCS 5/14-101 et seq. (West 2018))

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based on the Sheriff’s use of “internal disciplinary officers” to represent the Sheriff at

proceedings before the Merit Board allegedly in violation of the Counties Code and the Illinois

constitution. “Illinois law unquestionably allows litigants to plead alternative grounds for

recovery, regardless of the consistency of the allegations, as long as the alternative factual

statements are made in good faith.” Heastie v. Roberts, 226 Ill. 2d 515, 557–58 (2007). The fact

count III of plaintiff’s complaint may contain a request for mandamus relief and a separate

request for administrative review is not fatal to the separate claims. See Knox College v. Celotex

Corp., 85 Ill. App. 3d 714, 724 (1980) (holding pleading that combined several causes of action

in one count should not have been stricken) reversed on other grounds Knox College, 88 Ill. 2d

407 (1981). Because count III of plaintiff’s complaint sought independent mandamus relief to

require the Sheriff to use the Cook County State’s Attorney to prosecute this case and did not

seek to secure reversal of an administrative decision with a writ of mandamus, we find the circuit

court had jurisdiction over plaintiff’s claims. Therefore, this court also has jurisdiction over

plaintiff’s appeal of the trial court’s judgment as to that claim. Compare Gantz v. McHenry

County Sheriff’s Department Merit Comm’n, 296 Ill. App. 3d 335, 340 (1998).

¶ 19 Next, we find plaintiff has failed to plead facts to state a claim upon which the mandamus

relief he seeks can be granted. As we stated previously, mandamus is an extreme remedy that is

only used to enforce a clear right to performance of a nondiscretionary duty. Pate, 2019 IL App

(1st) 190449, ¶ 25. Mandamus cannot be used to force a government official to make a

discretionary decision in a certain way. Id. Mandamus is not itself a right, but “rather, an

extraordinary remedy.” (Emphasis added.) Kramer v. City of Chicago, 58 Ill. App. 3d 592, 598

(1978). That is, “no rights can be acquired in a mandamus proceeding, the purpose being only to

enforce rights already lawfully vested.” Id. “There must be a ‘logical nexus’ between petitioner’s

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status and the relief sought and he must show that he has a clear and undoubted right to the

issuance of the writ.” Warden v. Byrne, 102 Ill. App. 3d 501, 506 (1981). A plaintiff seeking

mandamus may not simply make a conclusional statement that they have a clear right to the

issuance of the writ; the petitioner must “specifically allege the essential allegations of fact” that

they have a right to the performance of the duty. Solomon v. City of Evanston, 29 Ill. App. 3d

782, 790 (1975).

¶ 20 Moreover,

“[i]n mandamus cases, the burden is on the plaintiff to show that he has a

clear legal right to the writ. [Citation.] A complaint for a writ of mandamus must

set forth every material fact necessary to demonstrate the plaintiff’s clear right to

the writ. [Citation.] However, the presence of the legal right to a writ of

mandamus does not necessarily furnish a basis for its issuance. [Citation.] In

addition, while mandamus is an action at law, courts apply equitable principles in

deciding whether a plaintiff has shown a clear right to such an extraordinary

remedy ([citation]), and issue writs of mandamus within their discretion according

to what seems necessary and proper to achieve a just result ([citations]).” Thomas

v. Village of Westchester, 132 Ill. App. 3d 190, 196 (1985).

¶ 21 Based on the foregoing standards applicable to a petition for a writ of mandamus,

plaintiff has failed to state a claim a claim upon which relief can be granted, plaintiff cannot

allege sufficient facts to state a claim for the mandamus relief requested, and, therefore, the trial

court properly granted defendants’ motion to dismiss with prejudice. First, plaintiff has failed to

allege facts to state a claim for mandamus relief and we find plaintiff cannot allege such facts

because, contrary to plaintiff’s conclusory assertion in count III, we find that section 3-9005(a)

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of the Counties Code, based on its plain language, does not establish a “clear duty” on the part of

the Sheriff to utilize the State’s Attorney’s office to prosecute proceedings before the Merit

Board nor does the Illinois constitution.

¶ 22 Plaintiff’s constitutional argument fails on its merits because the applicable provision of

the constitution on which plaintiff relies (see supra, ¶ 14) does not speak to a duty, ministerial or

otherwise, on the part of the Sheriff to ask or compel the State’s Attorney to “commence and

prosecute all actions and proceedings brought by any county officer in the county officer’s

official capacity.” See Ill. Const. 1970, art. VII, § 4(d). We note that the duties of a constitutional

officer, like the Sheriff (Ill. Const. 1970, art. VII, § 4(c)) are limited to those powers possessed at

common law or conferred by statute. See Moy v. County of Cook, 159 Ill. 2d 519, 526 (1994);

People ex rel. Walsh v. Board of Comm’rs of Cook County, 397 Ill. 293, 300 (1947) (“the duties

of a constitutional officer may be added to by statute”); People ex rel. Devine v. Time Consumer

Marketing, Inc., 336 Ill. App. 3d 74, 81 (2002). Therefore, we cannot expand upon them through

statutory construction. Regardless, plaintiff failed to pursue his alleged constitutional argument

in this appeal thereby forfeiting it as a ground for relief. See Umrani v. Sindhi Ass’n of North

America, 2021 IL App (1st) 200219, ¶ 30.

¶ 23 Next, the plain language of section 3-9005 belies plaintiff’s claim. The plain language of

section 3-9005(a)(3) only imposes a duty on the State’s Attorney to “commence and prosecute”

actions “brought” by the county officer in the county officer’s official capacity. The statute does

not provide how an action or proceeding is “brought” by a county officer, such as whether it be

by the filing of a complaint or the submission of the action directly to the State’s Attorney to

“commence;” i.e., file. To construe this provision, we must read the plain language of the statute

it in context of the entire statutory scheme at play. See O'Connell v. County of Cook, 2021 IL

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App (1st) 201031, ¶ 23 (“we follow the cardinal rule of statutory construction, which is to

ascertain and give effect to the legislature’s intent, and the plain language of the statute is the

best indication of that intent. [Citation.] *** ‘The statute should be evaluated as a whole, with

each provision construed in connection with every other section.’ ”

¶ 24 Section 3-7012 of the Merit Board Act specifically requires the Sheriff to file written

charges with the Merit Board. 55 ILCS 5/3-7012 (West 2018). Furthermore, the Rules of the

Cook County Sheriff’s Merit Board provide that “the Sheriff *** may be represented by

counsel” but representation by counsel is not required by those Rules. Thus, we first find that in

this context section 3-9005(a)(3) is a general provision that permits the State’s Attorney to

“commence and prosecute” actions and proceedings that it may “bring” in the county officer’s

official capacity in proceedings other than those specifically enumerated in other sections of the

statute, including potentially, proceedings before the Merit Board, whereas section 3-7012 is a

specific provision mandating that the Sheriff is the county officer that files written charges for

discipline of an employee. It is well settled that a more specific statute on a topic controls over a

more generally worded statute. McCaskill v. Municipal Officers Electoral Board for City of

Harvey, 2019 IL App (1st) 190190, ¶ 24. Further, “[w]hen, as in this case, two statutes relate to

the same subject matter, we presume that the legislature intended both statutes to be operative

and harmonious, and we must construe them with reference to each other so as to give effect to

all of the provisions of each statute. Let Forest Park Vote on Video Gaming v. Village of Forest

Park Municipal Officers Electoral Board, 2018 IL App (1st) 180391, ¶ 12 (citing Cinkus v.

Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 218 (2008)).

Additionally, this court reads statutes and administrative rules together to make legislation

harmonious and sensical. Kankakeeland Community Action Program, Inc. v. Illinois Department

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of Commerce & Community Affairs, 197 Ill. App. 3d 1067, 1074 (1990) (When courts interpret

these rules in conjunction with a statute, they should construe the rules “together with the statute

to make, if possible, an effective piece of legislation in harmony with common sense and sound

reason”).

¶ 25 We find that the Counties Code does not contain a clear directive to the State’s Attorney

to “commence” proceedings before the Merit Board specifically (55 ILCS 5/3-9005(a)(3) (West

2018)), although the legislature did provide such clear directives in other contexts; and there is a

clear legislative directive that no employee of the Department of Corrections may be removed

“except for cause, upon written charges filed with the [Merit] Board” by the Sheriff. 55 ILCS

5/3-7012 (West 2018). Reading all of the relevant enactments harmoniously, we find that the

legislature intended, at minimum, that the Sheriff “commence” proceedings to remove an

employee of the Department of Corrections by filing written charges with the Merit Board. It

follows, then, that the legislature did not intend the State’s Attorney to be the sole entity to

“commence” proceedings before the Merit Board or, consequently, to be the sole entity to

“prosecute” all proceedings or actions before the Merit Board. If the legislature had so intended,

it would not have required the Sheriff to “commence” proceedings to discipline an employee by

filing written charges before the Merit Board nor could have the Board adopted a rule stating that

the Sheriff only “may” be represented by counsel (Hadley v. Illinois Department of Corrections,

224 Ill. 2d 365, 385 (2007) (“Where an administrative rule conflicts with the statute under which

it was adopted, the rule is invalid.”)) in the face of the language of section 3-9005 empowering

the State’s Attorney to “commence and prosecute” proceedings in county officers’ names.

Furthermore, nothing in the plain language of section 3-9005(a)(3) can be read, in light of the

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other more specific impositions of duties, to require the State’s Attorney to “commence and

prosecute” proceedings before the Merit Board specifically.

¶ 26 To receive the remedy of mandamus the petitioner’s right to the relief sought must be

clear and free from doubt. Pate, 2019 IL App (1st) 190449, ¶ 34 (citing People v. Latona, 184 Ill.

2d 260, 277 (1998); Wolf v. Village of Mount Prospect, 314 Ill. App. 23, 27 (1942)). The trial

court did not err in finding plaintiff failed to state a claim for relief that was clear and free from

doubt. There is no clear statutory requirement that the State’s Attorney is the only entity that can

represent the Sheriff in proceedings before the Merit Board. Because plaintiff’s interpretation of

the statutes is erroneous, there are no set of facts on which plaintiff would be entitled to the relief

sought. Kopnick v. JL Woode Management Co., LLC, 2017 IL App (1st) 152054, ¶ 21 (“A cause

of action should not be dismissed with prejudice ***, unless it is clearly apparent that no set of

facts can be proved that would entitle the plaintiff to recover.”); Pate, 2019 IL App (1st) 190449,

¶ 25 (“Mandamus cannot be used to direct a public official *** to exercise its discretion in a

particular manner, even if the judgment or discretion has been erroneously exercised.”).

Therefore, the trial court properly granted the motion to dismiss with prejudice.

¶ 27 Although (properly) not cited by either party, we are aware of Wilson v. County of

Marshall, 257 Ill. App. 220 (1930), a relevant but nonbinding decision from this court. Although

a decision may involve “some factual parallels, *** it is nonbinding Illinois authority because it

is an intermediate appellate court decision filed before 1935.” Greggs USA, Inc. v. 400 East

Professional Associates, LP, 2021 IL App (1st) 200959, ¶ 19 (citing Reichert v. Court of Claims

of the State of Illinois, 203 Ill. 2d 257, 262 n.1, 271 (2003) (Illinois appellate court opinions prior

to 1935 are not binding but can be persuasive authority)). Wilson could be interpreted to stand

for the proposition that in civil matters a county officer should seek representation by the State’s

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Attorney or Special State’s Attorney before contracting different counsel, which Wilson clearly

holds a county may do once those procedures are followed. See id. at 228-26. Nonetheless,

Wilson may be limited to its facts, which are readily distinguishable from the case at bar.

¶ 28 In Wilson, the action for which the county contracted private counsel was a prosecution

against the former County Treasurer for the embezzlement of tax funds. Id. at 221-22. The

Wilson court found that “the duty of prosecuting a county treasurer, either criminally or civilly,

on account of shortage in his accounts, primarily devolves upon the State’s Attorney, and his

duty and right to institute and carry on such prosecutions cannot be interfered with or curtailed

by the county board.” Wilson, 257 Ill. App. at 225. However, the court also found, but did not

expressly repudiate with regard to matters other than prosecuting a County Treasurer (see

Wilson, 257 Ill. App. at 224-25 3), that “[t]here are to be found decisions of the courts in this State

which appear to hold that the county board, as the fiscal agent of the county, may contract for the

employment of counsel of its own choice, to prosecute or defend actions which involve the

county’s concern” (Wilson, 257 Ill. App. at 223). Regardless, as stated Wilson is not binding

authority and, given its unique circumstances, is of no precedential value to us.

¶ 29 Based on the foregoing we hold that the trial court properly granted defendants’ motion

to dismiss with prejudice. In addition, we also find that the trial court properly granted the

motion to dismiss because plaintiff failed to plead specific facts to demonstrate a right to the

3 “Whatever conflict there may appear to be in earlier decisions, the law relating to the powers and duties of a constitutional officer, such as the State’s Attorney, is definitely stated in Fergus v. Russel, 270 Ill. 304, and we take it that the duty of prosecuting a county treasurer, either criminally or civilly, on account of shortage in his accounts, primarily devolves upon the State’s Attorney, and his duty and right to institute and carry on such prosecutions cannot be interfered with or curtailed by the county board.” Wilson v. County of Marshall, 257 Ill. App. 220, 224–25 (1930).

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remedy of mandamus in this case. To plead a claim upon which mandamus relief can be granted

a petitioner must allege facts that “establish a clear right to the requested relief, a clear duty of

the public officer to act, and clear authority of the public officer to comply with the order.

[Citation.]” Hughes v. Godinez, 2014 IL App (4th) 130056, ¶ 18 (quoting McFatridge v.

Madigan, 2013 IL 113676, ¶ 17). In this case, count III of plaintiff’s complaint alleges that

plaintiff “has a clear right to a writ of mandamus” because the State’s Attorney’s “independence

*** is essential to protect *** the Officers being prosecuted” and to enable “just and appropriate

decision-making as to the prosecution of cases.” Plaintiff alleges he was “deprived of the

safeguards of the professional independence of” the State’s Attorney. However, plaintiff’s

complaint fails to allege any facts that demonstrate that plaintiff was “deprived of the safeguards

of the professional independence” of the State’s Attorney.

¶ 30 Illinois is a fact pleading jurisdiction.

“Because Illinois is a fact-pleading jurisdiction, a plaintiff is required to

set forth a legally recognized claim and plead facts in support of each element that

bring the claim within the cause of action alleged. [Citation.] To survive a motion

to dismiss for the failure to state a cause of action, a complaint must be both

legally and factually sufficient. A liberal construction of pleadings will not allow

a litigant to resort to notice pleading, and conclusions of fact will not suffice to

state a cause of action regardless of whether they generally inform the defendant

of the nature of the claim against him.” (Emphasis in original and internal

quotation marks omitted.) Quinn v. Board of Election Comm’rs for City of

Chicago Electoral Board, 2019 IL App (1st) 190189, ¶ 42 (quoting Rodriguez v.

Illinois Prisoner Review Board, 376 Ill. App. 3d 429, 433-34 (2007)).

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¶ 31 Even where a right to mandamus relief might lie the petitioner still has the burden to

adequately plead facts that demonstrate a clear right to the mandamus relief sought. “Mandamus

will issue only where the plaintiff has fulfilled his burden [citation] to set forth every material

fact needed to demonstrate that (1) he has a clear right to the relief requested ***.” (Emphasis in

original.) Quinn, 2019 IL App (1st) 190189, ¶ 42. The trial court properly grants a motion to

dismiss a complaint for mandamus where the petitioner fails to plead every element required to

entitle the petitioner to mandamus relief regardless of whether some elements are adequately

pled. See Quinn, 2019 IL App (1st) 190189, ¶¶ 43, 47 (“Even if we assume that the amended

complaint properly pleaded both a clear right of the petitioners to their desired relief and a clear

duty on the part of the Board of Elections to perform a ministerial act, we would still conclude

that the amended complaint failed to properly plead clear authority on the part of the Board of

Elections to comply with the terms of the writ for mandamus requested in the amended

complaint” where the “scant allegations fail to meet the requirement that the petitioners set forth

every material fact needed to demonstrate that clear authority exists in the Board of Elections

and its members to comply.”). Accord, Wilson, 257 Ill. App. at 226.

¶ 32 As previously stated, we find that plaintiff failed to plead facts establishing a clear right

to the desired relief; i.e., that the State’s Attorney is the sole counsel permitted to prosecute the

disciplinary proceedings against him. There is no statutory authority for that position and,

therefore, plaintiff can have no clear right to it. See Hughes, 2014 IL App (4th) 130056, ¶ 22

(rejecting the plaintiff’s argument that the defendant “had a ‘clear duty’ to act in the manner he

contends” based on construction of applicable statutory provision). Our finding that the statutes

and rules as a whole do not expressly require the Sheriff to utilize the State’s Attorney’s

representation before the Merit Board also calls into question whether the Sheriff has a clear duty

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to act as requested. Nonetheless, we again note that “mandamus does not lie to correct an act

involving the exercise of judgment or discretion even if erroneous.” Daley v. Hett, 113 Ill. 2d 75,

80 (1986). Regardless, whether or not the Sheriff could comply with a writ by engaging the

State’s Attorney, plaintiff has failed to plead a clear right to the relief sought. Moreover, plaintiff

is unable to plead any set of facts to demonstrate a clear right to the relief sought because the

statutory scheme is contra to the existence of plaintiff’s alleged right.

¶ 33 Finally, we note that plaintiff’s argument the decision is void because he was allegedly

not prosecuted by a validly appointed State’s Attorney lacks merit. Administrative agencies have

no common-law authority; rather, their power is derived from and limited to the power given

them by the legislative body that created them. Goral v. Dart, 2019 IL App (1st) 181646, ¶ 32.

Therefore, an action by an administrative agency is ”void” when the agency acts beyond its

statutory authority. Id. In this case, the Merit Board did not act beyond its statutory authority;

therefore, its decision is not “void.” Accordingly, the trial court properly granted defendants’

motion to dismiss count III of plaintiff’s complaint with prejudice. See Quinn, 2019 IL App (1st)

190189, ¶ 47.

¶ 34 CONCLUSION

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

¶ 36 Affirmed.

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