2023 IL App (4th) 220622 FILED NO. 4-22-0622 September 5, 2023 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL OF ILLINOIS
FOURTH DISTRICT
THE STATE OF ILLINOIS ex rel. EMILY FOX, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Sangamon County ) No. 21L53 JENNY THORNLEY, ) Defendant ) ) (The State of Illinois, Intervenor-Appellee). ) ) Honorable ) Adam Giganti, ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Turner and Harris concurred in the judgment and opinion.
OPINION
¶1 In April 2021, Emily Fox brought a qui tam action pursuant to the Illinois False
Claims Act (Act) (740 ILCS 175/4(c)(2)(A) (West 2020)), under seal, on behalf of herself and the
State of Illinois against Jenny Thornley “to recover damages and civil penalties from false records,
statements and claims made, used and caused to be made or presented by Thornley to obtain
payments from the State of Illinois.”
¶2 In December 2021, the State filed a motion to dismiss Fox’s complaint pursuant to
section 4(c)(2)(A) of the Act, which the trial court later granted, concluding that the Act “affords
the State substantial prosecutorial discretion over what claims may be brought in the State’s name.”
¶3 Fox appeals, arguing that the trial court erred by granting the State’s motion to dismiss because the State provided neither (1) sufficient evidentiary or legal support for its motion
to dismiss nor (2) a “rationale for dismissal related to any legitimate governmental purpose,” in
violation of Fox’s constitutional rights. We disagree and affirm.
¶4 I. BACKGROUND
¶5 Because resolution of this case turns mainly on our interpretation of the Act and
case law applying it, we provide as background only that detail necessary to explain our resolution.
¶6 A. The Complaint
¶7 In April 2021, relator Fox brought a qui tam action, under seal, on behalf of herself
and the State of Illinois against defendant Thornley, “to recover damages and civil penalties from
false records, statements and claims made, used and caused to be made or presented by Thornley
to obtain payments from the State of Illinois.”
¶8 The complaint alleged that Thornley, who started working for the Illinois State
Police Merit Board (Board) in 2014, obtained (1) employment and promotions within the Board
by misrepresenting her academic qualifications; (2) more than $67,000 in overtime compensation
from the Board by submitting false overtime reports and forging the Board’s executive director’s
signature; (3) “thousands of dollars” in reimbursement for claimed travel expenses on trips she did
not take or that were for personal purposes, as well as reimbursement for other activities she falsely
claimed were work-related; and (4) “tens of thousands of dollars” in workers’ compensation
benefits by falsely claiming that she experienced psychological trauma after the executive director
sexually assaulted her. Fox’s complaint also alleged, without elaboration, that Fox was an “original
source” for the matters alleged and that they were not previously “publicly disclosed.”
¶9 According to the complaint, Fox worked for the Board and was a coworker of
Thornley. Fox first suspected that Thornley was making false overtime claims in late November
-2- 2019. In January 2020, Fox shared her suspicions with the executive director, who said he had not
approved any overtime for Thornley and asked Fox to help him investigate the issue. That same
month, the director submitted a complaint to the Office of the Executive Inspector General (OEIG),
asking the OEIG to investigate whether Thornley had obtained overtime compensation by
submitting false time reports. The following day, Thornley accused the executive director of
sexually assaulting her and reported that accusation to a contractor who administered workers’
compensation benefits for state employees.
¶ 10 The OEIG placed the executive director on administrative leave while an outside
law firm was retained to independently investigate the allegations against both Thornley and the
executive director. The firm later issued a report concluding that it found evidence “sufficient to
support a finding that Thornley caused payments to herself for overtime she did not work.” The
firm also concluded that the evidence it reviewed was “insufficient to support a finding that [the
executive director] sexually assaulted Thornley.” In July 2020, the Board terminated Thornley.
¶ 11 In addition to those allegations, Fox also made numerous allegations of fraud and
corruption regarding actions certain stakeholders within the Illinois government took—and did not
take—in response to Fox’s revealing information of Thornley’s fraud. The complaint generally
alleged that Thornley’s fraud against the State was perpetrated “most recently with the apparent
complicity of Illinois Governor J.B. Pritzker, his wife, *** and the Governor’s Office, including
Ann Spillane, the Governor’s General Counsel.”
¶ 12 Fox’s complaint did not assert that the Attorney General was in any way involved
in any of Thornley’s alleged misdeeds, nor did it assert that the Attorney General assisted or
participated in any way in the alleged misconduct by individuals in the Governor’s office.
¶ 13 B. The Motion To Dismiss
-3- ¶ 14 In June 2021, after receiving notice of Fox’s complaint in May 2021, the State,
represented in these proceedings by the Attorney General, filed its “Unopposed Motion for
Extension of The Seal and the Time to Elect to Intervene” pursuant to section 4(b)(3) of the Act
(id. § 4(b)(3)), requesting the trial court to extend the seal period and time to intervene until
December 2021. The court granted the State’s motion.
¶ 15 In December 2021, the State moved to dismiss Fox’s complaint under section
4(c)(2)(A) of the Act because it had “determined through its investigation that [the complaint was]
legally deficient and, as such, the costs to the State and the judicial system of litigating this matter
outweigh[ed] any benefits of permitting this action to proceed.” The State contended that the “court
should grant the State’s motion to dismiss a false claims case unless extraordinary circumstances
exist[ed] such as ‘glaring evidence of fraud or bad faith by the state.’ [Citations.]”
¶ 16 In January 2022, Fox objected to dismissal, filing “Relator’s Response in
Opposition to the State of Illinois’ Motion to Dismiss.” Fox argued that (1) her claims were
substantiated by documentary evidence, (2) the State did not provide any substantive justification
for dismissal of the case, (3) dismissal would render the hearing the Act requires before dismissal
a nullity, (4) federal case law interpreting the federal False Claims Act (31 U.S.C. § 3730 (2018))
does not give the State unfettered authority to dismiss a qui tam action under the Act, and (5) “there
[was] no apolitical explanation for the State’s motion to dismiss this case.”
¶ 17 Fox contended that for the trial court to dismiss the case, the State had to (1) show
the complaint was legally deficient or, as an alternative test, (2) identify a valid government
purpose and then a rational relationship between that purpose and dismissal of the case. Fox alleged
that the State met neither of those standards.
¶ 18 Later that same month, the State replied to Fox’s objection, arguing that the State
-4- had good-faith reasons to dismiss the case. Specifically, the State identified multiple legal and
factual defects with Fox’s claims that warranted dismissal, including that Fox did not meet the
requirements of the Act because (1) she was not an original source and (2) the factual allegations
were publicly known before the suit was filed. The State pointed to parallel proceedings in support
of its contentions and further argued that those proceedings were likely to independently remedy
the underlying harm to the State—namely, (1) Thornley v. State, Ill. Workers’ Comp. Comm’n,
No. 20-WC-25256, (2) Thornley v. Illinois State Police Merit Board, No. 20-CH-63 (Cir. Ct.
Sangamon County), (3) Thornley v. State, No. 21-cv-1922 (N.D. Ill.), and (4) a criminal case
against Thornley filed on September 22, 2021, People v. Thornley, No. 21-CF-811 (Cir. Ct.
Sangamon County). The State also explained it had “precedential concerns about inviting [Act]
cases based on an individual employee’s timekeeping and travel reimbursement fraud” and
believed recent lawsuits suggested “the State may not be able to collect any judgment if it were to
pursue this false claims case.”
¶ 19 The State further argued that Fox provided no evidence of bad faith on the part of
the State or evidence that the State’s actions were arbitrary.
¶ 20 C. The Trial Court’s Decision
¶ 21 In February 2022, the trial court conducted a hearing regarding the State’s motion
to dismiss at which Fox and the State were both present. At the outset of the hearing, the State
announced that it was intervening and asking that the case be dismissed. The parties argued
consistent with their written motions.
¶ 22 In March 2022, the trial court issued its written opinion and order granting the
State’s motion to dismiss. The court rejected Fox’s contention that the State was required to show
her complaint was legally insufficient, concluding instead that the Act required only that the relator
-5- be given notice and a hearing regarding the motion to dismiss. The court further wrote that Illinois
courts (1) are not permitted to second-guess the State’s decision to dismiss, (2) must presume the
State acted in good faith, and (3) could deny the motion only if there is “glaring evidence of fraud
or bad faith,” which the court found was not present in this case. The court also found that the
State provided multiple credible reasons for why it was exercising its prosecutorial discretion to
dismiss the action. Ultimately, the court concluded that because Fox had been given notice of the
motion to dismiss and had an opportunity for a hearing on the motion, the Act’s requirements for
dismissal had been met.
¶ 23 This appeal followed.
¶ 24 II. ANALYSIS
¶ 25 Fox appeals, arguing that the trial court erred by granting the State’s motion to
dismiss because the State provided neither (1) sufficient evidentiary or legal support for its motion
to dismiss nor (2) “rationale for dismissal related to any legitimate governmental purpose” in
violation of Fox’s constitutional rights. We disagree and affirm.
¶ 26 A. The Applicable Law and the Standard of Review
¶ 27 1. The Standard of Review
¶ 28 The issue on appeal is whether the trial court applied the correct standard when
granting the State’s motion to dismiss pursuant to section 4(c)(2)(A) of the Act. The appellate
court reviews issues regarding statutory construction de novo. People v. Taylor, 2023 IL 128316,
¶ 45. De novo review also applies when, as here, the trial court dismisses a qui tam action based
on the parties’ written submissions in the absence of live testimony. See Addison Insurance Co. v.
Fay, 232 Ill. 2d 446, 453 (2009). The trial court’s judgment may be affirmed on any basis
supported by the record, even if it is not the basis on which the court relied. Ultsch v. Illinois
-6- Municipal Retirement Fund, 226 Ill. 2d 169, 192 (2007).
¶ 29 2. The Act
¶ 30 a. The Act and How It Works
¶ 31 The Act was enacted in 1992 and “closely mirrors the Federal False Claims Act
[(31 U.S.C. §§ 3729-3733 (West 2018))] originally enacted in 1863.” Scachitti v. UBS Financial
Services, 215 Ill. 2d 484, 506 (2005). The Act makes it unlawful to obtain state funds based on
false or fraudulent claims (740 ILCS 175/3(a)(1) (West 2020)) and authorizes the attorney general
to bring a civil action against any person who violates this prohibition (id. §§ 3(a), 4(a)). The Act
also allows a private person, known as the relator, to bring a qui tam action “in the name of the
State” against anyone who obtains state funds by fraudulent means. Id. § 4(b)(1). The Act provides
that “[t]he Code of Civil Procedure shall apply to all proceedings under this Act, except when that
Code is inconsistent with this Act.” Id. § 7.
¶ 32 Procedurally, when a qui tam plaintiff brings an action under the Act, he or she
must serve the State with “[a] copy of the complaint and written disclosure of substantially all
material evidence and information.” Id. § 4(b)(2). The complaint is filed in camera and remains
under seal for at least 60 days, plus any extensions granted by the trial court. Id. During that time—
commonly referred to as the “seal period”—the State may investigate the claim and decide whether
to intervene. Id.
¶ 33 If the action is successful, whether prosecuted by the State or the relator, the relator
is entitled to a percentage of the proceeds of the action or settlement of the claim. Id. § 4(d).
¶ 34 Relevant to this appeal, section 4(c)(1)-(2)(A) of the Act provides, in part, the
following:
“(c) Rights of the parties to Qui Tam actions.
-7- (1) If the State proceeds with the action, it shall have the primary
responsibility for prosecuting the action, and shall not be bound by an act of the
person bringing the action. Such person shall have the right to continue as a party
to the action, subject to the limitations set forth in paragraph (2).
(2)(A) The State may dismiss the action notwithstanding the objections of
the person initiating the action if the person has been notified by the State of the
filing of the motion and the court has provided the person with an opportunity for
a hearing on the motion.” Id. § 4(c)(1)-(2)(A).
¶ 35 b. Illinois Cases Addressing Motions To Dismiss Under the Act
¶ 36 Illinois law is clear that, absent evidence of fraud or bad faith, the State has nearly
unfettered control over whether a suit pursuant to the Act is prosecuted.
¶ 37 The Illinois Supreme Court in Scachitti specifically relied upon the language of
section 4(c)(2)(A) of the Act when describing the many ways in which the Act gives the State
“complete control” over a qui tam action when rejecting the defendant’s claim that the Act
unconstitutionally usurped the State’s constitutional powers. Scachitti, 215 Ill. 2d at 512-13.
Ultimately, the supreme court concluded that the provision was constitutional, emphasizing that
“[m]ost critically, the Attorney General has authority to dismiss or settle the action at any time,
despite the objections of the qui tam plaintiff.” (Emphasis added.) Id. at 512. The court concluded
as follows:
“Even when the Attorney General declines to intervene, the Attorney General
retains complete control of the litigation. See 740 ILCS 175/4(c)(2)(A), (c)(2)(B)
(West 2002). For these reasons, we interpret the plain language of the Act to
provide that the Attorney General in all circumstances effectively maintains control
-8- over the litigation, consonant with the Attorney General’s constitutional role as the
chief legal officer of the state.” (Emphasis added.) Id. at 512-13.
¶ 38 By emphasizing the constitutional necessity of the State’s control over qui tam
actions, the supreme court effectively rejected the argument that the judiciary has any role in
second-guessing the State’s dismissal of a relator’s claim under the Act. To conclude otherwise
would be to unconstitutionally grant the judiciary veto authority over the State’s exercise of its
prosecutorial discretion. See People ex rel. Schad, Diamond & Shedden, P.C. v. QVC, Inc., 2015
IL App (1st) 132999, ¶ 14 (“[I]f we interpret [the Act] to require judicial review of the [State’s]
decision to dismiss an action, *** we give the court veto power over the [S]tate’s decision to
dismiss, essentially usurping the [State’s] power to direct the legal affairs of the [S]tate and putting
that power into the hands of the court.” (Internal quotation marks omitted.)).
¶ 39 In State ex rel. Beeler, Schad & Diamond, P.C. v. Burlington Coat Factory
Warehouse Corp., 369 Ill. App. 3d 507, 516-17 (2006), the First District analyzed the supreme
court’s decision in Scachitti and wrote the following:
“At its core, the issue here is whether the decision to proceed with a qui tam
action should be made by the executive branch or by the judicial branch. Only the
Attorney General is empowered to represent the state in litigation in which it is the
real party in interest. [Citation.] Legislation can add to the powers of the Attorney
General but it cannot reduce the Attorney General’s common law authority to direct
the legal affairs of the state. [Citation.] If we interpret section 4(c)(2)(A) of the Act
to require judicial review of the Attorney General’s decision to dismiss an action,
whether through application of the Sequoia Orange test or any other ‘checks and
balances’ approach, we give the court veto power over the state’s decision to
-9- dismiss, essentially usurping the Attorney General’s power to direct the legal affairs
of the state and putting that power into the hands of the court. The section 4(c)(2)(A)
requirement that the relator be given a hearing on the state’s decision to voluntarily
dismiss a case necessarily gives the court approval of that dismissal decision. It
does not, however, require that the court second-guess the state’s decision to
dismiss by conducting an inquiry into the state’s motivations. We hesitate to say
that the court’s role in a section 4(c)(2)(A) hearing is solely to ‘rubber-stamp’ the
state’s decision to dismiss a qui tam action over the relator’s objections. However,
the presumption is that the state is acting in good faith and, barring glaring evidence
of fraud or bad faith by the state, it is the state’s prerogative to decide which case
to pursue, not the court’s.”
¶ 40 Ultimately, the First District concluded that because neither fraud nor bad faith was
alleged, the trial court’s dismissal was proper. Id. at 517. We note that several other Illinois
appellate court decisions have expressly followed Burlington Coat Factory’s holding and
interpretation of section 4(c)(2)(A). See QVC, Inc., 2015 IL App (1st) 132999, ¶¶ 13-14
(concluding that to avoid dismissal, the relator must present “glaring evidence of fraud or bad faith
by the [S]tate” and not the merits of the State’s motion (internal quotation marks omitted) (citing
Burlington Coat Factory)); State ex rel. Krislov v. BMO Harris Bank, N.A., 2021 IL App (1st)
192273-U, ¶ 23 (same); State ex rel. Thulis v. City of Chicago, 2021 IL App (1st) 191675-U, ¶ 20
(same); see also State ex rel. Hurst v. Fanatics, Inc., 2021 IL App (1st) 192159, ¶ 21 (citing
Burlington Coat Factory and QVC, Inc. in support of its reasoning).
¶ 41 B. This Case
¶ 42 1. Motions To Dismiss by the State Are Governed by the Act and Not Section
-10- 2-619 of the Code of Civil Procedure
¶ 43 As an initial matter, Fox argues that a motion to dismiss under the Act should be
treated as a section 2-619 motion to dismiss pursuant to the Code of Civil Procedure (735 ILCS
5/2-619 (West 2020)), citing the decision of the Appellate Court, Third District, in State ex rel.
Saporta v. Mortgage Electronic Registration Systems, Inc., 2016 IL App (3d) 150336, ¶ 13, for
the proposition that “[a] dismissal of a qui tam action pursuant to section 4(c)(2)(A) of the Act
(740 ILCS 175/4(c)(2)(A) (West 2010)) is akin to a motion to dismiss brought pursuant to section
2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)) in that the motion alleges
a defense that defeats the claim.”
¶ 44 We disagree for two reasons: (1) the authority the Third District cited for its point
of law regarding section 4(c)(2)(A)—namely, State ex rel. Beeler, Schad & Diamond, P.C. v.
Target Corp., 367 Ill. App. 3d 860, 864 (2006)—is distinguishable from the present case and
(2) the Third District did not examine or apply that point of law in Saporta beyond its law section
on the standard of review; instead, the Third District discussed the section 4(c)(2)(A) motion in
the context of Scachitti, 215 Ill. 2d at 512-13.
¶ 45 In Target Corp., the First District reviewed the trial court’s granting of a motion to
dismiss pursuant to section 2-619 of the Code of Civil Procedure, and in doing so it analyzed
whether some affirmative matter barred the action, instead of analyzing the court’s dismissal as a
motion to dismiss pursuant to the Act. Target Corp., 367 Ill. App. 3d at 864. (We note that we do
not render any opinion regarding the propriety of the State’s filing of a section 2-619 motion to
dismiss in a qui tam action.) Accordingly, the First District did not reach the standard of review
for a motion to dismiss under the Act.
¶ 46 Even so, the Third District cited the First District for the holding that a section
-11- 4(c)(2)(A) motion under the Act is akin to a section 2-619 motion. However, because the Third
District neither explicitly applied the section 2-619 standard for dismissal to the facts of Saporta
nor discussed the standard for a section 4(c)(2)(A) motion to dismiss at all beyond the court’s
single sentence regarding the standard of review, we view the Third District’s statement to mean
only that we review dismissal under section 4(c)(2)(A) de novo, a point with which we agree, albeit
for different reasons—namely that a section 4(c)(2)(A) dismissal requires no factual findings by
the trial court.
¶ 47 Further, not only does Saporta not stand for the proposition that a section 4(c)(2)(A)
motion to dismiss is akin to a section 2-619 motion to dismiss, but the Third District rebuts such a
conclusion by referring to the supreme court’s discussion of section 4 of the Act, writing, “The
State is the real party in interest in qui tam actions—qui tam plaintiffs, acting as statutorily
designated agents for the State, may proceed only with the consent of the Attorney General and
remain completely subordinate to the Attorney General at all times.” Saporta, 2016 IL App (3d)
150336, ¶ 18. Accordingly, we view Saporta as consistent with our conclusion that a section
4(c)(2)(A) motion to dismiss is to be treated differently than a section 2-619 motion to dismiss.
¶ 48 2. The Plain Language of the Act
¶ 49 Next, we agree with the First District’s holding in Burlington that the State has
nearly unfettered discretion to dismiss qui tam cases because, in our view, that holding is fully
supported by the plain language of the Act. Indeed, the whole Act is written to make clear that the
actions of the relator are subordinate to those of the State, especially when the State proceeds with
the action or later intervenes. See Scachitti, 215 Ill. 2d at 515 (“[Q]ui tam plaintiffs, acting as
statutorily designated agents for the state, may proceed only with the consent of the [State], and
remain completely subordinate to the [State] at all times.”).
-12- ¶ 50 The Act explicitly provides that, “[i]f the State proceeds with the action, it shall
have the primary responsibility for prosecuting the action, and shall not be bound by an act of the
person bringing the action.” (Emphasis added.) 740 ILCS 175/4(c)(1) (West 2020). The Act also
provides, “[t]he State may dismiss the action notwithstanding the objections of the person initiating
the action if [(1)] the person has been notified by the State of the filing of the motion and [(2)] the
court has provided the person with an opportunity for a hearing on the motion.” Id. § 4(c)(2)(A).
Importantly, the Act does not provide any standard for that dismissal. Nonetheless, Fox asks this
court to read a requirement into the section that the legislature did not include—namely, that the
State has provided the trial court with an appropriate reason (in the court’s judgment) for seeking
to dismiss the complaint. We decline Fox’s invitation to restrict the State’s ability to dismiss a
qui tam case under the Act.
¶ 51 Beyond the explicit language of the Act, the Act’s structure supports our conclusion
that the Act grants the State nearly unfettered discretion to dismiss a qui tam complaint.
Conspicuously absent from section 4(c)(2)(A) is any standard the State must satisfy before
dismissing a qui tam case. The reason for that absence is quite simple—the Act was written to
avoid constitutional issues by (1) protecting the rights of the relator and (2) not infringing on the
State’s constitutional authority to control its own cases. Scachitti, 215 Ill. 2d at 510-15; see State
ex rel. Leibowitz v. Family Vision Care, LLC, 2020 IL 124754, ¶¶ 77-80 (upholding the qui tam
provisions of the Insurance Claims Fraud Prevention Act (740 ILCS 92/1 et seq. (West 2016))
because they were nearly identical to the Act, which was held constitutional in Scachitti).
¶ 52 Indeed, other sections of the Act explicitly provide the standards the parties must
meet to take some action under the Act. For example, section 4(c)(2)(B)-(D) and 4(c)(3)-(4) of the
Act contains no less than five burden-shifting requirements before various actions can be taken:
-13- (1) settlement of the relator’s claims must be “fair, adequate, and reasonable under all the
circumstances” (740 ILCS 175/4(c)(2)(B) (West 2020)); (2) limits on the relator’s participation
may be placed “[u]pon a showing by the State that [the relator’s] unrestricted participation ***
would interfere with or unduly delay the State’s prosecution of the case, or would be repetitious,
irrelevant, or for the purposes of harassment” (id. § 4(c)(2)(C)); (3) the defendant may move to
restrict the relator’s participation if he or she shows that the relator’s “unrestricted participation
*** would be for purposes of harassment or would cause the defendant undue burden or
unnecessary expense” (id. § 4(c)(2)(D)); (4) the State may intervene, if it had not done so at the
onset of the litigation, “upon a showing of good cause” (id. § 4(c)(3)); and (5) the relator’s ability
to participate in discovery may be limited upon “a showing by the State that certain actions of
discovery by [the relator] would interfere with” other related investigations or prosecutions by the
State (id. § 4(c)(4)).
¶ 53 Each of those provisions provides protection for the relator’s rights and interests,
save one section—namely, section 4(c)(2)(A) of the Act, which provides a relief valve for the
Act’s constitutionality, as the supreme court explained in Scachitti, 215 Ill. 2d at 512-13 (infra
¶¶ 38, 52), ensuring that the Act does not violate separation of powers principles by treading on
the prosecutorial province of the executive branch. Moreover, unlike section 4(c)(2)(A) of the Act,
which provides for the State’s dismissal of a case, the relator’s ability to dismiss is subject to the
State’s written consent to dismiss the action. 740 ILCS 175/4(b)(1) (West 2020). Once again, the
only qualifier for dismissal is whether the State believes that the case is not worth pursuing.
¶ 54 Accordingly, the Act explicitly and implicitly provides all that is required of the
State to dismiss a claim pursuant to section 4(c)(2)(A) of the Act—namely, (1) notice and (2) a
hearing. That hearing, however, is not meant to assess the merits of the State’s motion to dismiss.
-14- ¶ 55 3. United States ex rel. Polansky v. Executive Health Resources, Inc.
¶ 56 Further informing our conclusion that the State effectively has unfettered discretion
to dismiss qui tam cases is the recent United States Supreme Court opinion in United States ex rel.
Polansky v. Executive Health Resources, Inc., 599 U.S. ___, 143 S. Ct. 1720 (2023), which
interpreted the federal False Claims Act. In that case, the Court discussed “the Government’s
ability to dismiss a[ ] [federal False Claims Act] suit over a relator’s objection.” Id. at ___, 143 S.
Ct. at 1726. Because the Act closely mirrors the federal False Claims Act, we deem the United
States Supreme Court’s opinion instructive. See Scachitti, 215 Ill. 2d at 506-07 (discussing the
federal False Claims Act to interpret the Illinois Act).
¶ 57 In Polanksy, the relator filed a qui tam suit in 2012 pursuant to the federal False
Claims Act, claiming the defendant filed numerous false claims to Medicare. Polansky, 599 U.S.
___, 143 S. Ct. at 1729. The Government declined to intervene but moved to dismiss the case in
August 2019, asserting that ongoing litigation would tax its resources. The district court granted
the request, finding that the Government had “ ‘thoroughly investigated the costs and benefits of
allowing [Polansky’s] case to proceed and ha[d] come to a valid conclusion based on the results
of its investigation.’ ” Id. at ___, 143 S. Ct. at 1729 (quoting Polansky v. Executive Health
Resources, Inc., 422 F. Supp. 3d 916, 927 (E.D. Pa. 2019)). Ultimately, the Supreme Court
affirmed, concluding that a district court should assess a section (c)(2)(A) motion to dismiss using
the standard set forth in Rule 41 of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 41), which
governs voluntary dismissal. Polansky, 599 U.S. at ___, 143 S. Ct. at 1735. In so holding, the
Court wrote the following:
“The Third Circuit, though, was right to note that [section 4(c)](2)(A)
motions will satisfy Rule 41 in all but the most exceptional cases. *** The inquiry
-15- is necessarily ‘contextual.’ [Citation.] And in this context, the Government’s views
are entitled to substantial deference. A qui tam suit, as we have explained, is on
behalf of and in the name of the Government. The suit alleges injury to the
Government alone. And the Government, once it has intervened, assumes primary
responsibility for the action. Given all that, a district court should think several
times over before denying a motion to dismiss. If the Government offers a
reasonable argument for why the burdens of continued litigation outweigh its
benefits, the court should grant the motion. And that is so even if the relator presents
a credible assessment to the contrary.” Id. at ___, 143 S. Ct. at 1734.
¶ 58 Although voluntary dismissal under the Federal Rules of Civil Procedure differs
slightly from Illinois law governing voluntary dismissal (compare Fed. R. Civ. P. 41, with 735
ILCS 5/2-1009 (West 2020)), we nonetheless agree with the United States Supreme Court that
dismissal under the Act should be denied only in “the most exceptional cases.” Polansky, 599 U.S.
at ___, 143 S. Ct. at 1734. We do not, however, endorse the conclusion that the standard for a
voluntary motion to dismiss pursuant to section 2-1009 controls dismissal under the Act because
(1) in the present case, the State moved for dismissal during the seal period, entitling it to the
utmost deference and (2) Illinois courts have never applied the standards of section 2-1009 to
motions to dismiss by the State in qui tam suits. Instead, we opt to follow the supreme court’s lead
in Scachitti and hold that the language of section 4(c)(2)(A) of the Act sets the relevant standard.
¶ 59 4. The Propriety of the Dismissal
¶ 60 As case law and the statute plainly show, the State has broad discretion to dismiss
a qui tam case under the Act. Indeed, those cases confirm that the relator bears the burden of
persuasion to show in her objection that the State’s motion to dismiss was made in bad faith.
-16- However, that is the extent of the trial court’s review of the motion to dismiss. It is not the province
of the judiciary to commandeer the executive branch’s prosecutorial authority to the benefit of a
qui tam plaintiff once the State has determined for whatever legitimate reason that the action is not
worth pursuing.
¶ 61 Here, Fox alleges in her complaint that the Governor’s office is complicit in
Thornley’s continuing to take advantage of the Illinois taxpayers’ money and that the State appears
to have succumbed to “political pressure.” However, as the trial court concluded, those claims are
unsubstantiated. We need not address the merits of the State’s motion to dismiss, but we note, as
did the trial court, that the State’s reasoning for dismissing the case appears to cater to at least one
of Fox’s concerns—namely, her concern for wasted taxpayer dollars, which has been avoided by
dismissing a case (1) unlikely to result in any appreciable amount of clawed-back funds and
(2) that was duplicative of concurrent proceedings.
¶ 62 Fox’s complaint and briefing make clear that her issue is with the Governor’s office
and not with the State—particularly the Attorney General, who represents the State in these
proceedings. Fox’s complaint is replete with accusations of corruption, political intrigue, and fraud
at the highest levels of Illinois government—chiefly, allegations that Governor Pritzker and his
wife tampered with investigations of Thornley, allowing her to enrich herself at the Illinois
taxpayers’ expense. Indeed, the core of this appeal appears not to be Thornley’s conduct or the law
regarding qui tam actions, but a grand conspiracy to cover up the “truth,” as Fox put it in her
objection to the State’s motion to dismiss. We decline Fox’s invitation to speculate and, instead,
decide this case based solely on the evidence in the record and the applicable law.
¶ 63 Accordingly, because Fox makes no substantive allegations that the State acted in
bad faith, we affirm the trial court’s decision.
-17- ¶ 64 5. Fox’s Other Arguments
¶ 65 Fox argues that her substantive due process rights were violated by the State’s
dismissal. However, even assuming that Fox has some constitutionally protected interest in the
qui tam suit, the record does not support her contention that the State’s dismissal was “arbitrary
and unreasonable.” As we just explained, the trial court properly accepted the State’s various
justifications for dismissal, including a lack of legal and factual merit and unnecessary taxpayer
expense. The State’s reasons are neither arbitrary nor unreasonable.
¶ 66 Fox also raises the issue of whether the State actually intervened in the qui tam
action, pointing out that the Act treats the rights of the qui tam plaintiff differently dependent upon
whether the State intervened. Although we agree with Fox that the Act distinguishes rights based
on the procedural posture of the State’s participation, there is no question that the State here did in
fact intervene.
¶ 67 The State does not need to file a formal motion to intervene because in qui tam
actions, the State is the real party in interest to the suit. If, as occurred here, the State moves to
dismiss the case during the seal period, responds to the qui tam plaintiff’s objection, and shows up
at the trial court hearing regarding that motion, there can be no doubt that the State actually
intervened in the action. Further, the State in the present case stated on the record at the onset of
the hearing, and without objection, that it was appearing at the hearing to intervene and dismiss
Fox’s case. We will not reverse the court’s dismissal based on a formalistic argument when the
parties and the court clearly understood that the State was intervening, as was its right under the
Act.
¶ 68 C. Illinois Supreme Court Rule 341(h) (eff. Oct. 1, 2020)
¶ 69 Lastly, the State contends that Fox’s brief violates Illinois Supreme Court Rule
-18- 341(h)(6) (eff. Oct. 1, 2020)—specifically, by way of example, “Fox’s allegations that the
Governor’s office was guilty of ‘complicity’ and a ‘cover-up’ regarding Thornley’s alleged fraud
against the State.” We agree with the State.
¶ 70 Rule 341(h)(6) requires that the appellant include a “Statement of Facts, which shall
contain the facts necessary to an understanding of the case, stated accurately and fairly without
argument or comment, and with appropriate reference to the pages of the record on appeal.” Id.
However, Fox’s statement of facts section is argumentative and riddled with commentary. For
example, Fox comments that (1) the Governor’s general counsel’s participation in phone calls
about Thornley’s fraudulent claims “was, as Fox alleged, a raw display of political power”;
(2) without citation to the record, “Thornley defrauded the People of the State of Illinois out of
more than $500,000”; (3) “[t]he OEIG still did nothing to investigate Thornley; instead, the OEIG
opened a separate and unsubstantiated investigation into Fox, apparently based on either
Thornley’s request or Spillane’s direction”; and (4) “[i]n its boilerplate motion [to dismiss], the
Attorney General ignored the detailed allegations of Fox’s complaint.” Those statements are but a
few of the argumentative and unsubstantiated statements that should not have been included in
Fox’s statement of facts section.
¶ 71 We remind Fox’s counsel that the rules of procedure governing appellate briefs are
mandatory and not mere suggestions. Draves v. Thomas, 2023 IL App (5th) 220653, ¶ 16. A failure
to comply with those rules is grounds for this court (at our discretion) to strike an appellant’s brief
and dismiss the appeal. Id. However, because Fox loses on the merits of this case, we need not
take further action to address her brief’s violation of Rule 341(h)(6).
¶ 72 III. CONCLUSION
¶ 73 For the reasons stated, we affirm the trial court’s judgment.
-19- ¶ 74 Affirmed.
-20- People ex rel. Fox v. State, 2023 IL App (4th) 220622
Decision Under Review: Appeal from the Circuit Court of Sangamon County, No. 21-L- 53; the Hon. Adam Giganti, Judge, presiding.
Attorneys Robert M. Andalman and Diana Guler, of A&G Law, LLC, of for Chicago, for appellant. Appellant:
Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, for Solicitor General, and Richard S. Huszagh, Assistant Attorney Appellee: General, of counsel), for appellee.
-21-