Booker v. The Office of Madison County State's Attorney

2022 IL App (5th) 210349-U

• Court: Appellate Court of Illinois
• Decided: August 23, 2022
• Docket: 5-21-0349
• Status: Unpublished

Opinion

2022 IL App (5th) 210349-U NOTICE NOTICE Decision filed 08/23/22. The This order was filed under text of this decision may be NO. 5-21-0349 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

WILLIE J. BOOKER, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Madison County. ) v. ) No. 21-MR-428 ) THE OFFICE OF THE MADISON COUNTY ) STATE’S ATTORNEY, ) Honorable ) Ronald J. Foster, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Justices Moore and Wharton concurred in the judgment.

ORDER

¶1 Held: Plaintiff lacked standing to bring declaratory action against the Office of the Madison County State’s Attorney where plaintiff failed to allege that he was or would be subject to prosecution by the Office of the Madison County State’s Attorney, and the alleged unconstitutionality of section 3-9005(a)(1) of the Counties Code was not so pervasive as to render the entire code void.

¶2 Plaintiff appeals the circuit court’s dismissal of his declaratory action that requested the

court find section 3-9005(a)(1) of the Counties Code (55 ILCS 5/3-9005(a)(1) (West 2020))

unconstitutional and bar defendant, the Office of the Madison County State’s Attorney, from

commencing prosecutions on behalf of the People of Illinois. For the following reasons, we affirm.

1 ¶3 I. BACKGROUND

¶4 On April 15, 2021, plaintiff filed a declaratory action, requesting the court find section

3-9005(a)(1) of the Counties Code (id.) unconstitutional and bar defendant, the Office of the

Madison County State’s Attorney (Madison County State’s Attorney Office), from acting under

the same. The complaint alleged that section 3-9005(a)(1)—which allows the Madison County

State’s Attorney Office to commence criminal cases on behalf of the People of Illinois—violates

article V, section 15, of the Illinois Constitution (Ill. Const. 1970, art. V, § 15) because it allows

an officer other than the Illinois Attorney General to commence and prosecute criminal cases on

behalf of the State of Illinois. It further alleged an actual controversy existed between the parties

where the statute is active, and the Madison County State’s Attorney Office prosecutes criminal

cases on behalf of the State of Illinois pursuant to the authority provided in the statute.

¶5 On July 12, 2021, the Madison County State’s Attorney Office filed a motion to dismiss,

pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619

(West 2020)). It argued that plaintiff failed to show his current incarceration resulted from a

prosecution of the Madison County State’s Attorney Office or that he was in immediate danger of

being prosecuted by the Madison County State’s Attorney Office. Therefore, he failed to allege a

real interest in this controversy as it relates to the Madison County State’s Attorney Office or how

the Madison County State’s Attorney Office deprived him of being “free from unconstitutional

laws.” The Madison County State’s Attorney Office also contended that Illinois Supreme Court

Rule 19 (eff. Sept. 1, 2006) required plaintiff to promptly notify the Illinois Attorney General of

his constitutional challenge of section 3-9005(a)(1), and the failure to do so resulted in waiver.

Because plaintiff failed to give prompt notice to the Attorney General, the Madison County State’s

Attorney Office contended the complaint must be dismissed.

2 ¶6 On July 28, 2021, plaintiff filed a motion for summary judgment. Plaintiff contended that

article V, section 15, of the Illinois Constitution and People ex rel. Scott v. Briceland, 65 Ill. 2d

485 (1976), restricted the legislature from delegating the duty to represent the People of Illinois to

anyone other than the Attorney General in any litigation in which the People of Illinois were the

real party in interest. As such, plaintiff claimed section 3-9005(a)(1) was null and void.

¶7 On August 22, 2021, plaintiff responded to the motion to dismiss. In his response, citing

People v. Palkes, 52 Ill. 2d 472, 481 (1972), plaintiff contended that while a party does not have

standing to challenge a statute as it might apply to others, such party has standing to challenge the

constitutional validity of a statutory provision when the unconstitutional feature is so pervasive as

to render the entire act invalid. Plaintiff then reiterated his argument that section 3-9005(a)(1)

violates article V, section 15, of the Illinois Constitution and concluded he had standing to

challenge the constitutional validity of section 3-9005(a)(1) because it is invalid and void. With

respect to Rule 19 requirements, plaintiff argued that the rule was unconstitutionally vague,

because it encouraged arbitrary enforcement by failing to describe with sufficient particularity that

a party waived his constitutional challenge if he did not give the Illinois Attorney General notice

of a constitutional challenge to a statute. Alternatively, plaintiff cited Villareal v. Peebles, 299 Ill.

App. 3d 556, 560 (1998), and argued that a party does not waive his constitutional challenge by

failing to notify the Illinois Attorney General under Rule 19 where the affected governmental

agency—the Madison County State’s Attorney Office—was named as a party.

¶8 After a hearing on October 22, 2021, the court granted the Madison County State’s

Attorney Office’s motion to dismiss. The court found that plaintiff failed to comply with Rule 19

by failing to notify the Illinois Attorney General. It therefore held plaintiff’s claim was waived and

3 dismissed the case with prejudice. It also denied plaintiff’s motion for summary judgment as moot.

Plaintiff timely appealed.

¶9 II. ANALYSIS

¶ 10 From the outset we note that the Madison County State’s Attorney Office filed a hybrid

motion to dismiss, citing sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735

ILCS 5/2-615, 2-619 (West 2020)). While section 2-619.1 of the Code (id. § 2-619.1) allows a

party to combine motions to dismiss under sections 2-615 and 2-619 into one pleading, the Code

requires the combined motion be separated into parts. Phelps v. Land of Lincoln Legal Assistance

Foundation, Inc., 2016 IL App (5th) 150380, ¶ 13. “Each part shall be limited to and shall specify

that it is made under [the section under which it is being brought]” and “clearly show the points or

grounds relied upon under the Section upon which it is based.” 735 ILCS 5/2-619.1 (West 2020).

The Madison County State’s Attorney Office did not comply with these requirements, “and we

caution the defendants to conform to the standards set forth by the Code in presenting hybrid

motions in the future.” Phelps, 2016 IL App (5th) 150380, ¶ 13.

¶ 11 When ruling upon either a section 2-615 or section 2-619 motion to dismiss, all well-

pleaded facts, and reasonable inferences therefrom, are taken as true and construed in favor of the

nonmoving party. Cahokia Unit School District No. 187 v. Pritzker, 2021 IL 126212, ¶ 24. We

review the ruling of a motion to dismiss—under either section—de novo. Cedarhurst of Bethalto

Real Estate, LLC v. Village of Bethalto, 2018 IL App (5th) 170309, ¶ 10. We may affirm on any

basis found in the record. Schultz v. St. Clair County, 2020 IL App (5th) 190256, ¶ 9.

¶ 12 “It is well established that a court may not address the constitutionality of a statute unless

the party challenging the statute has standing to challenge it.” Northern Illinois Home Builders

Ass’n v. City of St. Charles, 297 Ill. App. 3d 730, 737 (1998). To have standing, plaintiff must

4 present an actual controversy between adverse parties. Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d

474, 489 (2008). Plaintiff “must have sustained or be in immediate danger of sustaining a direct

injury from enforcement of the challenged statute.” Kluk v. Lang, 125 Ill. 2d 306, 315 (1988). The

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 relief requested.” Village of Chatham v.

County of Sangamon, 216 Ill. 2d 402, 419-20 (2005). “It is a fundamental rule of constitutional

law that a court will not determine the constitutionality of a provision of a statute that does not

affect the parties to the cause under consideration.” Id. at 423.

¶ 13 Here, plaintiff made no attempt to assert that he would be directly injured from the Madison

County State’s Attorney Office’s authority provided by section 3-9005(a)(1). While the complaint

alleges section 3-9005(a)(1) deprives him of liberty without due process, he fails to assert the

Madison County State’s Attorney Office deprived him of said liberty. There is no allegation that

the Madison County State’s Attorney Office prosecuted plaintiff or intended to immediately

prosecute him. As such, plaintiff failed to present any injury fairly traceable to the conduct of the

Madison County State’s Attorney Office.

¶ 14 Plaintiff does not dispute that he lacks a direct injury here. Rather, citing to People v.

Mayberry, 63 Ill. 2d 1, 6 (1976), he contends that he has standing because the unconstitutional

feature of section 3-9005 is so pervasive as to render it invalid.

¶ 15 We first note that plaintiff fails to provide any explanation of his contentions beyond a

simple citation to Mayberry. His failure to provide argument results in forfeiture. Ill. S. Ct. R.

341(h)(7) (eff. Oct. 1, 2020). Nevertheless, we find no merit in this argument. In re James W.,

2014 IL App (5th) 110495, ¶ 23 (“Forfeiture is a limitation on the parties, but not the court.”).

5 ¶ 16 A party—who is not directly affected by a statutory provision—may challenge the

constitutionality of a statute if “the unconstitutional feature is so pervasive as to render the entire

act invalid.” Mayberry, 63 Ill. 2d at 6. The statute at issue here is one subsection of the Counties

Code (55 ILCS 5/1-1001 et seq. (West 2020)), an act that governs vast subjects concerning

counties such as county governing bodies, officers, and finances. The other provisions of the

Counties Code function independently of and can be administered without section 3-9001(a)(1).

Accordingly, the alleged unconstitutionality of section 3-9005(a)(1) would not be so pervasive as

to render the entire Counties Code void. See Gholson v. Engle, 9 Ill. 2d 454, 462 (1956) (one

statutory provision was not so integrated as to make the entire act unconstitutional where the

remaining act could be administered without that provision); People v. Cannon, 358 Ill. App. 3d

313, 319 (2005) (“invalidity of any particular subsection of a statute will only lead to its severance

and will not impact the validity of the remaining subsections, provided the remaining sections can

function independently”); People v. Siefke, 97 Ill. App. 3d 14, 15 (1981).

¶ 17 Because plaintiff failed to allege direct injury and the alleged unconstitutionality was not

so pervasive to render the entire Counties Code void, he lacks standing to bring this suit. Such

finding disposes of this appeal, and we therefore need not discuss whether Rule 19 required

plaintiff to notify the Illinois Attorney General.

¶ 18 III. CONCLUSION

¶ 19 For the foregoing reasons, we affirm the circuit court’s dismissal of plaintiff’s declaratory

action.

¶ 20 Affirmed.