Etten v. Lane

485 N.E.2d 1177, 138 Ill. App. 3d 439, 92 Ill. Dec. 934, 1985 Ill. App. LEXIS 2702
CourtAppellate Court of Illinois
DecidedNovember 8, 1985
Docket5-85-0187
StatusPublished
Cited by21 cases

This text of 485 N.E.2d 1177 (Etten v. Lane) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Etten v. Lane, 485 N.E.2d 1177, 138 Ill. App. 3d 439, 92 Ill. Dec. 934, 1985 Ill. App. LEXIS 2702 (Ill. Ct. App. 1985).

Opinion

JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Arthur Etten, appeals from an order of the circuit court of Clinton County involuntarily dismissing his pro se complaint for mandamus pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619). We reverse and remand with directions.

Plaintiff is an inmate at the Centralia Correctional Center serving a 25 to 75 year prison term for murder. On August 27, 1984, plaintiff was given a parole eligibility hearing by the Prisoner Review Board (hereinafter referred to as the Board). Parole was denied by the Board, en banc, on August 29, 1984. Approximately six months later, plaintiff filed his complaint for mandamus alleging: (1) that the Board failed to comply with its own rules governing en banc proceedings because one of its members did not participate in the disposition of plaintiff’s case; (2) that plaintiff had requested, but had been denied, complete access to the files of the Department of Corrections (his “master file”) and the files of the Board (his “Board file”) used by the Board in making its parole determination; and (3) that those files contained erroneous information prejudicial to plaintiff’s parole eligibility.

Plaintiff's complaint named as defendants Michael Lane, director of the Department of Corrections, and Paul Hincar, chairman of the Board. The complaint requested that defendants be compelled to permit plaintiff to inspect and copy all documents about him contained in his master file and Board file, that defendants be ordered to expunge from these respective files any documents about him found to be erroneous, and that he be granted a rehearing on his parole eligibility. Defendants moved for involuntary dismissal under section 2 — 619 of the Code of Civil Procedure (111. Rev. Stat. 1983, ch. 110, par. 2 — 619). A hearing on that motion was held before the circuit court on February 28, 1984, at the conclusion of which defendants’ motion was granted, and the case was dismissed. The sole issue on this appeal is whether the circuit court acted properly in dismissing that portion of plaintiff’s mandamus complaint requesting full disclosure of all documents in his master file and Board file.

Mandamus is not a writ of right, but an extraordinary remedy. (Kramer v. City of Chicago (1978), 58 Ill. App. 3d 592, 598, 374 N.E.2d 932, 938.) It is issued as an exercise of judicial discretion only where the plaintiff can demonstrate a clear right to the relief requested. (Walter v. Board of Education (1982), 93 Ill. 2d 101, 105, 442 N.E.2d 870, 872.) Where an administrative official or board has arbitrarily failed to act, mandamus will lie to compel performance of a duty which the plaintiff is entitled to have performed. (Walter v. Board of Education (1982), 93 Ill. 2d 101, 105, 442 N.E.2d 870, 872.) Accordingly, the Illinois supreme court has specifically held that a writ of mandamus may issue in an appropriate case to compel parole officers to comply with their own rules. People ex rel. Johnson v. Pate (1970), 47 Ill. 2d 172, 177, 265 N.E.2d 144, 147-48, cert. denied (1971) , 402 U.S. 976, 29 L. Ed. 141, 91 S. Ct. 1679.

Plaintiff here claims a clear right of access to his files under authority of Board Rule IV-C, which provides: “A parole candidate shall have access to all documents which the Board considers in determining parole or setting a release date.” Defendants, .for their part, argue that plaintiff has in fact already been granted full access to all such documents. At trial they argued in the alternative, that any documents withheld from plaintiff are exempt from disclosure under the Freedom of Information Act (Ill. Rev. Stat., 1984 Supp., ch. 116, par. 201 et seq.). On appeal they contend that any such documents are covered by the terms of a prior consent judgment, the release requirements of which plaintiff has failed to satisfy, or were not in fact prejudicial to the outcome of plaintiffs parole hearing.

As a preliminary matter, we note that defendants’ claim regarding the alleged effects of the prior consent judgment is not properly before this court. Defendants made no mention whatever of this claim before the circuit court and offered no evidence to support it. That defendants appended a copy of the consent judgment to their brief is of no consequence. Attachments to briefs not otherwise of record are not properly before the reviewing court and cannot be used to supplement the record. Tomlen Group, Ltd. v. Goldfarb (1981), 101 Ill. App. 3d 154, 157, 427 N.E.2d 1047, 1049.

There is also no merit to defendants’ suggestion to the trial court that Freedom of Information Act exemptions preclude access by plaintiff to otherwise disclosable documents considered by the Board in passing on plaintiff’s parole eligibility. As one federal court has observed, the terms of Board Rule IV-C are clear, mandatory, and without qualification. (Walker v. Prisoner Review Board (7th Cir. 1982), 694 F.2d 499, 503.) Under the plain language of the rule, the Board must grant an inmate access to all documents it considers in deciding whether or not to grant him parole. The ruling contains no exception for withholding documents pursuant to the Freedom of Information Act or for any other reason.

Defendants’ contention that nondisclosure of documents can be excused on the grounds that consideration of those documents did not prejudice plaintiff’s parole prospects must similarly fail. The unequivocal language of Board Rule IV-C does not permit any distinction to be drawn regarding document disclosure based on the effects of those documents on the Board’s final decision to grant or deny parole. Consideration of nonprejudicial documents by the Board may not entitle plaintiff to a new parole hearing, but that is not the question before us. This appeal is concerned solely with plaintiff’s right of access. We repeat that if the Board considers a document in passing on plaintiff’s parole eligibility, Board Rule IV-C grants plaintiff a clear right to review it.

Given that neither the prior consent judgment, the Freedom of Information Act, nor the alleged absence of prejudice diminish plaintiff’s right to review the documents considered by the Board in denying him parole, the only question remaining is whether the circuit court was otherwise justified on the facts before it in refusing to compel compliance -with Board Rule IV-C and involuntarily dismissing plaintiff’s case. Where, as here, a defendant moves for involuntary dismissal under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par 2 — 619), no jury issue or demand is involved, and genuine disputed questions of fact are present, the court has two options: it may deny the motion without prejudice to the right to raise the subject matter of the motion by answer (Mastroianni v. Curtis (1979), 78 Ill. App.

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Bluebook (online)
485 N.E.2d 1177, 138 Ill. App. 3d 439, 92 Ill. Dec. 934, 1985 Ill. App. LEXIS 2702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/etten-v-lane-illappct-1985.