2017 IL App (2d) 160953 No. 2-16-0953 Opinion filed September 29, 2017 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS ex rel. GREGORY RAHN, ) of De Kalb County. ) Plaintiff-Appellant, ) ) v. ) No. 16-MR-59 ) PROMOD VOHRA, ) Honorable ) Bradley J. Waller, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.
OPINION
¶1 Relator Gregory Rahn appeals a judgment dismissing his pro se complaint in
quo warranto (see 735 ILCS 5/18-101 et seq. (West 2016)) against defendant, Promod Vohra.
Rahn contends that the court erred in holding that the action became moot when defendant
resigned from the position from which Rahn sought his ouster. Defendant responds that the case
“may be moot,” but he urges affirmance on various other grounds, including that Rahn lacked
standing. We agree with Rahn that the case is not moot, but we agree with defendant that Rahn
lacked standing. Therefore, we affirm.
¶2 On March 1, 2016, Rahn applied for leave to file his complaint, alleging as follows.
Defendant was dean of the College of Engineering and Engineering Technology (College) of 2017 IL App (2d) 160953
Northern Illinois University (NIU). Rahn was a former visiting professor at the College. Since
2009, he had litigated federal claims against defendant and NIU based on discrimination,
retaliation, and copyright infringement. An action in quo warranto was proper under sections
18-101(1) and (3) of the Code of Civil Procedure (Code), which apply when “[a]ny person
usurps, intrudes into, or unlawfully holds or executes any office, or franchise, or any office in
any corporation created by authority of this State” (735 ILCS 5/18-101(1) (West 2016)) and
when “[a]ny public officer has done, or allowed any act which by the provisions of law, works a
forfeiture of his or her office” (735 ILCS 5/18-101(3) (West 2016)). Rahn could bring the action
as relator because the Illinois Attorney General and the De Kalb County State’s Attorney had
both declined to file a quo warranto action against defendant (see 735 ILCS 5/18-103 (West
2016)).
¶3 Rahn alleged further as follows. On June 16, 2005, the NIU Board of Trustees (Board)
appointed defendant dean of the College. However, he did not possess the minimum
qualifications for the position, as (1) he lacked a B.S. degree; (2) his M.A. thesis was plagiarized
and NIU leaked the names of whistleblowers, including Rahn, who were then harassed by the
NIU police; and (3) he lacked the required doctorate in engineering or technology. Defendant
was appointed only because the then-provost lowered the requirements and two ineligible people
served on the search committee. Later, one of them was rewarded for his role in the scheme with
a pay raise and a promotion.
¶4 Rahn alleged further that, since becoming dean, defendant had forfeited his position by
allowing his daughter to graduate without fulfilling the requirements, by covering up his
plagiarism, and by using the NIU police to intimidate whistleblowers.
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¶5 On March 1, 2016, the trial court allowed Rahn to file his complaint in quo warranto. On
April 14, 2016, defendant, represented by the Attorney General, filed an “Appearance and
12[-]Man Jury Demand” and an objection to Rahn’s application for leave.
¶6 The objection argued as follows. First, a private party has no absolute right to file a
complaint in quo warranto but must establish standing, which requires alleging a personal
interest, distinct from that of the general public, that is directly, substantially, and adversely
affected by the action that he seeks to challenge. See People ex rel. Turner v. Lewis, 104 Ill.
App. 3d 75, 77 (1982). Here, defendant argued, Rahn had alleged no facts to establish standing.
He no longer worked for NIU. His federal suit against defendant and NIU did not provide the
required personal interest; the district court had granted summary judgment against him on all
claims and the appellate court had affirmed, holding in part that defendant had not been
responsible for his failure to obtain a tenure-track position. See Rahn v. Board of Trustees of
Northern Illinois University, 803 F.3d 285 (7th Cir. 2015). The Supreme Court had denied
certiorari. Rahn v. Board of Trustees of Northern Illinois University, ___ U.S. ___, 136 S. Ct.
1685 (2016).
¶7 Second, Rahn had delayed unreasonably. Although defendant had been appointed dean
in 2005 and Rahn had filed a grievance against him in 2007, raising some of the allegations that
he now made, he had waited almost a decade to seek redress by quo warranto.
¶8 Rahn filed a reply. He argued that his interest in pursuing relief was distinct from that of
the general public because (1) his suits against defendant had alleged actual damages unique to
him, (2) he had alleged that defendant had committed wrongs against him specifically, and
(3) the required personal interest need not be restricted to current or ongoing harm, although he
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had alleged such harm in the continuing effects of defendant’s misconduct. Also, Rahn argued,
there is no statute of limitations for a quo warranto action for ouster.
¶9 Defendant filed a surresponse. He argued that Rahn had cited no authority holding either
that merely filing a lawsuit confers standing or that past harm creates the distinct personal
interest needed for a quo warranto action. Moreover, even could Rahn show that his damages
were connected to defendant’s position as dean of the College, that would not suffice; he was
required to allege a “professional relationship with [defendant’s] deanship,” such as being a
faculty or Board member. Also, defendant argued, Rahn had failed to support any contention
that nine years was a reasonable period to wait before seeking relief.
¶ 10 Rahn responded that defendant’s objection had been untimely as it was filed more than
30 days after he was served with process. Also, he argued, by allowing him to file the complaint,
the court had already found that he had standing. Finally, he had not delayed unreasonably by
seeking relief through standard grievance procedures at NIU.
¶ 11 On July 22, 2016, defendant moved to dismiss the complaint (see 735 ILCS 5/2-619(a)
(West 2016)). The motion contended first that the case was moot because, on June 30, 2016,
defendant had resigned as dean of the College. Thus, the court could not oust him as Rahn had
requested. Second, the complaint was barred by res judicata as it was based on the same core of
operative facts as the federal suit, which had gone to a final judgment against Rahn.
¶ 12 Rahn responded first that res judicata did not apply, because the prior federal litigation
was not based on defendant’s illegal usurpation of his office, his manipulation of the
investigation into his appointment, or the academic fraud involving his daughter. Moreover, by
allowing him to file the action, the trial court had already rejected the res judicata argument.
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¶ 13 Rahn contended second that, for several reasons, defendant’s resignation did not make
the case moot. First, under section 18-108 of the Code, ouster was not the sole remedy:
“Judgment. The court shall determine and adjudge the rights of all parties to the
proceeding. In case any person or corporation against whom such complaint is filed is
adjudged guilty as charged in the complaint, the court may enter judgment of ouster
against such person or corporation from the office or franchise, and fine such person or
corporation, and also enter judgment in favor of the relator for the cost of the prosecution.
Instead of entering judgment of ouster from a franchise for an abuse thereof, the court
may fine the person or corporation found guilty in any sum not exceeding $25,000 for
each offense.” 735 ILCS 5/18-108 (West 2016).
Rahn argued that he had identified numerous offenses that would each warrant defendant
forfeiting his office. These offenses also subjected defendant to substantial fines, whether or not
his term of office had expired, so the case was not moot.
¶ 14 Second, Rahn argued, without a finding of guilt, defendant could return to his office later.
Third, he maintained that a judgment that defendant had occupied his office illegally would
invalidate the contracts that he had signed under his ostensible authority as dean. That in turn
would affect the rights that Rahn had sought to vindicate in the federal litigation and would
provide relief to others who had been harmed by defendant’s illegal acts.
¶ 15 Defendant filed a reply. He argued first that the action was barred by res judicata
because his allegations of wrongdoing could have been included in the federal litigation. He
argued second that the case was moot and that Rahn could not rely on speculation that his
litigation would help him or others.
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¶ 16 In a surresponse, Rahn contended that res judicata did not apply, because the present
claims were different from those in the federal suit and because the allegations supporting his
claim that defendant was ineligible for the position of dean were not involved in the federal case.
¶ 17 The trial court held a hearing on defendant’s motion to dismiss. The court asked Rahn
what remedy it could provide were he to prevail on his complaint; defendant was already out of
office and Rahn could pursue claims for personal damages in other proceedings—but not in this
one. Rahn responded that the court could still fine defendant and that ouster would invalidate the
contracts that he had signed as dean. The court held that the case was moot and dismissed the
complaint without prejudice.
¶ 18 Rahn moved to reconsider. At the hearing on his motion, he argued that caselaw,
including People ex rel. Courtney v. Botts, 376 Ill. 476 (1941), and People ex rel. Ballard v.
Niekamp, 2011 IL App (4th) 100796, dictated that defendant’s resignation did not make the case
moot, because the court could still fine him for his wrongful acts. The court asked Rahn, “So
let’s assume that I adjudge him to be guilty of what you’re alleging. Where does that leave you
if I have the discretion to not award fines and costs and he’s already out of office?” Rahn
asserted that finding guilt would be “critical for me *** for a next lawsuit.” He also noted that
both parties had requested a jury trial. The court noted that the statute gave only defendant, and
not Rahn, the right to a jury trial.
¶ 19 The discussion returned to mootness. The court suggested that the statute provided for a
fine “in lieu of having the person or the corporation or whatever removed from office.” As to
ouster and a fine, the court had “the discretion to do one or both of those. Or, excuse me, one or
the other.” The court denied Rahn’s motion and made the dismissal one with prejudice. Rahn
timely appealed.
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¶ 20 On appeal, Rahn contends primarily that the trial court erred in holding that defendant’s
resignation made the case moot. Rahn’s exposition is somewhat diffuse, but we discern the
following grounds: (1) under Botts and succeeding supreme court authority, the court could still
fine defendant; (2) an action in quo warranto is a criminal proceeding, so defendant could not
avoid the prosecution by resigning; (3) section 18-108’s plain language—“The court shall
determine and adjudge the rights of all parties to the proceeding” (emphasis added) (735 ILCS
5/18-108 (West 2016))—required the court to decide the merits of the complaint; (4) a finding
that defendant had committed the alleged acts would enable Rahn to obtain damages in a
separate action by invalidating contracts that defendant signed as dean of the College; and
(5) under the “voluntary cessation” doctrine, defendant failed to show that misconduct would not
continue despite his resignation.
¶ 21 We agree with Rahn’s first ground. We do note, however, that all of the other grounds
appear to be unsound. First, in contending that a quo warranto action is a criminal prosecution,
Rahn relies primarily on (1) the use of the word “guilty” in the statute (see id.) and (2) dictum in
People v. Gartenstein, 248 Ill. 546, 551 (1911), that quo warranto in Illinois retained some of the
“ancient writ[’s]” character as a “criminal method of prosecution” in that “the proceedings
[were] in the name of the People and criminal in form.” (Emphasis added.) As a matter of
common sense, neither (1) nor (2) is persuasive. (Rahn also cites some foreign authority that is
neither binding nor pertinent.)
¶ 22 In any event, from at least 1879 on, our supreme court has stated that a proceeding in
quo warranto is not a criminal prosecution. In People ex rel. Bardill v. Holtz, 92 Ill. 426 (1879),
overruled in part on other grounds, People ex rel. Weber v. City of Spring Valley, 129 Ill. 169,
180 (1889), the court held that the appeal from a judgment in quo warranto should have been
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filed in the appellate court, not the supreme court. This was in part because this was “not a
criminal case” (Holtz, 92 Ill. at 428) and “not being criminal [or otherwise appealable directly to
the supreme court], should have been taken to the Appellate Court” (id. at 429). In 1907, the
court explained that, although quo warranto was originally “criminal in character” under a 1710
statute of Anne (9 Ann. c. 20 (1710) (Eng.)), the Illinois statute made it “a civil remedy when
used for the protection of private rights.” People ex rel. Raster v. Healy, 230 Ill. 280, 287
(1907). In 1919, the court again described a quo warranto action as “a civil remedy to call upon
the defendant to show by what warrant the exercise of the franchise or privilege is claimed.”
People ex rel. Moltz v. Barber, 289 Ill. 556, 559 (1919). Consistently with Holtz, Healy, and
Moltz, in People v. United Medical Service, Inc., 362 Ill. 442, 453 (1936), the court stated that,
unlike “the ancient writ,” quo warranto “is [now] a civil remedy.” See also People v. White
Circle League of America, 408 Ill. 564, 568 (1951) (in quo warranto, “[t]he remedy is *** civil
rather than criminal in character”).
¶ 23 Second, Rahn’s contention that Botts and other opinions support his construction of
section 18-108 is incorrect: as we shall note, these opinions relied on other reasoning.
¶ 24 Third, we cannot agree with Rahn that proceeding to a final judgment on the merits will
enable him to obtain damages in a separate action by invalidating contracts that defendant
executed on behalf of NIU. Aside from the fact that the result of Rahn’s federal action makes
further pursuit of his claims barred by res judicata (see generally Hudson v. City of Chicago, 228
Ill. 2d 462, 467 (2008)), Rahn overlooks that the contracts would not be invalidated. Even had
defendant occupied the position of dean illegally, his official actions would not be repealed as he
was still a de facto officer. See Arnold v. Mt. Carmel Public Utility, 369 Ill. App. 3d 1029, 1034
(2006). Although no Illinois case appears to be directly on point, foreign jurisdictions have
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applied that doctrine in quo warranto proceedings, holding that, even if an officer or entity acted
without legal authority, the acts that resulted from the exercise of de facto authority must stand.
See, e.g., Long v. Stemm, 7 N.E.2d 188, 192 (Ind. 1937); State ex rel. Attorney General v. Mayor,
Etc., of Town of Dover, 41 A. 98, 99 (N.J. 1898); Joyce v. Town of Taintor, 606 N.W.2d 284,
286-88 (Wis. Ct. App. 1999); see also Lueck v. Teuton, 219 P.3d 895, 902 n.3 (Nev. 2009).
¶ 25 Fourth, we agree with defendant that the voluntary-cessation doctrine (see, e.g., Friends
of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000))
does not apply to whether a proceeding in quo warranto is moot because the primary remedy,
ouster, is no longer available. Defendant correctly notes that the cases that Rahn cites involve
suits for declaratory and injunctive relief against continuing conduct by the same defendant.
¶ 26 Finally, insofar as Rahn raises other arguments against mootness (aside from the one that
we address below), these arguments are also without merit.
¶ 27 We return to Rahn’s first point under Botts. Whether a case is moot presents a question
of law, which we review de novo. In re James W., 2014 IL 114483, ¶ 18. Rahn contends
broadly that, under Botts, section 18-108 requires the trial court to continue the cause to a final
judgment even if no relief is available. He contends more narrowly that, under Botts and
succeeding authority, the case is not moot because, although defendant can no longer be ousted
from his office, the trial court can still fine him for the acts alleged in the complaint and award
Rahn costs.
¶ 28 Defendant does not unequivocally disagree: instead, he states that “[w]hether this action
is moot is not clear from the case law.” He concedes that both Botts and People ex rel. Daley v.
Datacom Systems Corp., 146 Ill. 2d 1 (1991), hold that a quo warranto action for ouster is not
rendered moot by the resignation of the defendant or the expiration of his term in office, as long
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as the trial court can still impose a fine. However, he contends that both holdings are
inconsistent with the intervening opinion in People ex rel. Black v. Dukes, 96 Ill. 2d 273 (1983).
Defendant notes that Dukes does not cite Botts and that Datacom Systems does not cite Dukes.
He also notes that, in Niekamp, the appellate court followed Botts while expressing doubt that the
supreme court would still do so itself. Niekamp, 2011 IL App (4th) 100796, ¶ 16. Defendant
laments, “These cases cannot be reconciled.”
¶ 29 We agree with Rahn’s narrower argument on the construction of section 18-108 in light
of Botts and Daley. We disagree with defendant that the authorities are irreconcilable.
¶ 30 We start with Botts. There, the State’s Attorney sought to oust Botts as director,
secretary, and second vice-president of a corporation, claiming that the board of directors had
improperly overridden the December 1938 shareholders’ vote in favor of his rival, Deering. The
defendants admitted the material allegations of the complaint. On December 11, 1939, the trial
court dismissed the complaint. On December 20, 1939, the shareholders duly elected Botts. He
moved to dismiss the appeal as moot. The supreme court refused to dismiss the case. Because
the interpretation of its reasoning is at issue here (and has been at issue in other cases), we quote
it at some length:
“Ordinarily when a reviewing court has notice of facts which show that only moot
questions or abstract propositions are involved it will dismiss the appeal, and will not
review the cause merely to decide such questions. [Citations.] The authorities sustaining
this proposition have not been applied in quo warranto proceedings where the term of
office of the contesting party has expired. *** Section 6 [of the statute (Ill. Rev. Stat.
1939, ch. 112, ¶ 14)] provides: ‘The court shall determine and adjudge the rights of all
parties to the proceeding. In case any person or corporation against whom such
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complaint is filed is adjudged guilty as charged in the complaint the court may give
judgment of ouster against such person or corporation from the office, or franchise, and
fine such person or corporation, and also give judgment in favor of the relator for the cost
of the prosecution,’ etc.
The Illinois statute is modeled on the statute of Anne relating to quo warranto (9
Anne, chap. 20,) which was enacted for the purpose of rendering proceedings in the
nature of quo warranto more speedy and effectual. It has been held that under that
statute, and the statutes of other States containing a provision for a fine, the case does not
become moot although the usurpation was not continued to the date of trial. [Citations.]
There are cases holding that the plaintiff or relator in a quo warranto proceeding
may prosecute the case to a final judgment, notwithstanding the expiration of the term of
office before the case is finally adjudicated. [Citations.]” Botts, 376 Ill. at 479-80.
The court quoted Gartenstein: quo warranto proceedings “ ‘are in the name of the People and
criminal in form for the double purpose of punishing the usurper and ousting him from the
enjoyment of the franchise.’ ” Id. at 481 (quoting Gartenstein, 248 Ill. at 551). It concluded
that, because section 6 provided for both ouster and a fine, “[t]he expiration of the office might
terminate the private right of the plaintiff, but it would not terminate the jurisdiction of the court
to adjudge punishment for the violation of the law.” Id.
¶ 31 We agree with Rahn that Botts held, quite straightforwardly, that because the predecessor
to section 18-108 (not materially different in substance) authorized both ouster and punishment,
the fact that a defendant no longer occupied the office would not make the case moot. 1 We
1 We do not decide Rahn’s argument that, by using the word “shall,” section 18-108 was
intended to prevent trial courts from ever dismissing quo warranto actions as moot. However,
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cannot agree with the trial court’s suggestion that ouster and a fine are mutually exclusive, as
that reading is not supported by the statutory language.
¶ 32 Defendant does not contest this reading of Botts, but he urges that the supreme court
departed from Botts, at least temporarily, in Dukes. There, the State’s Attorney alleged that the
defendant was violating the law by simultaneously serving on the village board of trustees and
the village school board and that, having been on the village board when he was elected to the
school board, he effectively resigned from the former at that time. The complaint sought to oust
him from the village board, but no other relief. Dukes, 96 Ill. 2d at 275. In 1981, the trial court
ruled for the State’s Attorney. In 1982, the defendant resigned from the village board. Id. at
276. The next day, the appellate court reversed the judgment. The State’s Attorney appealed to
the supreme court but filed no further briefs and did not appear for oral argument. Id. at 275.
we do not read Botts’s quotation of similar language from section 18-108’s predecessor as
implying such a conclusion. Moreover, statutes should be construed so as to avoid absurdity,
inconvenience, or injustice. DeLuna v. Burciaga, 223 Ill. 2d 49, 60 (2006). As a general rule,
Illinois courts do not render advisory opinions. In re Alfred H.H., 233 Ill. 2d 345, 351 (2009).
Plaintiff’s interpretation would require us to assume that the legislature intended to except
quo warranto proceedings from this salutary rule, regardless of the waste of time and judicial
resources. It would also imply that, by requiring trial courts to decide moot cases, the legislature
intended to require the appellate court to render advisory opinions on appeals in these cases.
Also, we note that the appellate court has affirmed at least one judgment dismissing a
quo warranto action as moot. People ex rel. O’Malley v. Village of Ford Heights, 261 Ill. App.
3d 571, 575 (1994). To the extent that case authority suggests that quo warranto might be
exempt from standard mootness doctrine, we note that in the main body of this opinion.
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¶ 33 The supreme court dismissed the appeal as moot and vacated the judgments of the trial
and appellate courts. Id. at 278. It reasoned that, because the defendant had resigned from the
office from which the State’s Attorney had sought his ouster, there was no longer a controversy
for which a court could have provided a remedy. Id. at 276. The court would not decide the
appeal merely to provide an advisory opinion. Id. at 276-77. Dukes did not mention Botts.
¶ 34 In Datacom Systems, the State’s Attorney filed a four-count complaint, including a count
in quo warranto, against the City of Chicago (City) and a private debt-collection agency
(Datacom) that had contracted with the City to collect monies due on delinquent parking tickets.
Datacom Systems, 146 Ill. 2d at 9. The quo warranto count asked the trial court both to enjoin
Datacom from exercising powers that it had allegedly usurped and to fine it for each act of
usurpation. Id. at 36. The third allegation in the quo warranto count was that Datacom had
exceeded its authority by depositing checks payable to the circuit clerk into its own corporate
bank account. Id. at 40.
¶ 35 The trial court dismissed the entire complaint as failing to state a cause of action. Id. at
10. Before the supreme court, the City and Datacom argued that the third allegation was moot
because, in the interim, all the checks at issue had been remitted to the circuit clerk. Id. at 40.
The court disagreed:
“Such an argument is outside the scope of quo warranto. To succeed against a claim
under quo warranto, the defendant must allege and prove it had the authority to act as it
did. A claim of mootness does not present justification for the acts of the City or
Datacom regarding the deposit of the checks.
Furthermore, section 18-108 *** provides that when a court adjudges a person or
corporation guilty in a quo warranto proceeding, the court may enter a judgment of
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ouster against the person or corporation from the office or franchise, or fine the person or
corporation in an amount not to exceed $25,000 for each offense. [Citation.] While the
circuit court in the case at bar may not need to oust or prevent the City and Datacom from
further engaging in the act in question, the court, if it should adjudge them guilty, may
still choose to punish them by imposing a fine. Therefore, we do not find the issue moot.
See [Botts, 376 Ill. at 480-81]; cf. Department of Illinois Disabled American Veterans v.
Bialczak, [38 Ill. App. 3d 848, 850 (1976)] (quo warranto is an ‘extraordinary
proceeding, prerogative in nature, addressed to preventing a continued exercise of
authority unlawfully asserted’).” Id. at 40-41.
¶ 36 Finally, the appellate court has weighed in. In Niekamp, the relators obtained a judgment
ousting the defendant from a school board, based on his having violated a statute by serving on
that board and the county board at the same time even though he had resigned from the county
board shortly thereafter. He appealed. In the meantime, he was duly elected to the school board.
The relators moved to dismiss the appeal as moot. Niekamp, 2011 IL App (4th) 100796, ¶ 14.
¶ 37 The appellate court denied the motion. It held that it was bound by Botts, while
expressing doubt that the supreme court would adhere to that opinion. Id. ¶ 16. The court held
that, under Botts, the ouster still left a justiciable issue: whether the defendant should also be
punished for serving on the two boards at the same time. While acknowledging that the matter
“appear[ed] minor and insignificant,” the court concluded that, because the defendant was still
subject to punishment, the case was not moot. Id. ¶ 19. The court went on to affirm the
judgment. Niekamp is consistent with Datacom Systems but does not cite that opinion, relying
on Botts.
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¶ 38 From the foregoing discussion, we hold that the authorities support Rahn. This appeal is
not moot merely because defendant has resigned as dean as, if Rahn can establish any of his
allegations of wrongdoing, the trial court can still punish defendant under section 18-108. 2
¶ 39 Defendant contends that Dukes cannot be reconciled with either Botts or Datacom
Systems, because it held that the ouster in that case made the case moot. We think, however, that
there is a logical reconciliation. In Dukes, the complaint sought only the ouster of the defendant
from the village board but no other relief. The plaintiff thus having forgone any request for
punishment, the defendant’s resignation left no controversy pending. In Botts and Datacom
Systems, by contrast, the plaintiffs prayed for fines as well as ouster. Thus, the opinions appear
to be compatible. (Of course, it might have been helpful had Dukes explained why it was
consistent with Botts and had Datacom Systems explained why it was consistent with Dukes.)
¶ 40 To the extent that Dukes cannot be reconciled with either Botts or Datacom Systems, we
take Datacom Systems, the last of the supreme court’s three pronouncements on mootness in
quo warranto proceedings, as the controlling authority. This does raise an issue as to the scope
of the court’s holding. While there is no doubt that the court echoed Botts’s holding that a
quo warranto proceeding does not become moot if the possibility of punishment remains even
after ouster becomes impossible, it appears to have gone much further.
¶ 41 Before endorsing Botts’s reasoning, the Datacom Systems court stated sweepingly that a
mootness argument “is outside the scope of quo warranto.” Datacom Systems, 146 Ill. 2d at 40.
2 Rahn reads the trial judge’s remarks during the hearings on defendant’s motion to
dismiss as showing that he had already decided that, even should Rahn prevail in the “guilt”
phase of the action, he would not punish defendant. We do not read the judge’s comments as
showing such a prejudgment or predisposition.
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The court based its statement on the quo warranto statute’s allocation of the burden of proof to
the defendant, and not on Botts. By then using “[f]urthermore” to introduce its endorsement of
Botts’s rationale (id.), the court made that rationale nonexclusive. Thus, besides reiterating that
the possibility of punishment defeated the mootness argument in that case, the court apparently
held that, even without that possibility, the case would not have been moot—and that no other
quo warranto case would be moot merely because neither form of relief that the statute provided
was still available. If this is what the court meant, it is hard to reconcile its opinion with Dukes,
or even Botts.
¶ 42 We need not decide this conundrum now. The narrower reading of supreme court
precedent disposes of the mootness argument. Because section 18-108 provides for both ouster
and punishment, the unavailability of only the first of these remedies does not make the case
moot. Thus, the judgment cannot be upheld on that ground. Whether the case would be moot
even without the availability of either remedy is not before us.
¶ 43 We hold that the trial court erred in determining that this case is moot. That does not end
our review, however. The judgment can be affirmed on any basis that the record calls for, even
if the court did not rely on that basis. See Rodriguez v. Sheriff’s Merit Comm’n of Kane County,
218 Ill. 2d 342, 357 (2006). In the trial court, defendant argued that the complaint should be
dismissed (or barred in the first instance) because Rahn lacked standing. We agree.
¶ 44 To have standing to file a quo warranto action, a private party must allege that he has an
interest in the matter distinct from the interests of the general public. People ex rel. Miller v.
Fullenwider, 329 Ill. 65, 70-71 (1928); Moltz, 289 Ill. at 559. This private interest must be
directly, substantially, and adversely affected by the challenged action, and the damage to the
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private interest must be then occurring or certain to occur. People ex rel. Wofford v. Brown,
2017 IL App (1st) 161118, ¶ 14; Turner, 104 Ill. App. 3d at 77.
¶ 45 The long-standing rule in Illinois was that, to have standing to challenge the defendant’s
right to occupy an office, a private party must have an interest “in the office itself.” (Emphasis
added.) People ex rel. Hiller v. Bevirt, 297 Ill. App. 335, 341 (1938). Thus, in Miller, the
supreme court held that the relator lacked standing to seek a writ of mandamus to compel the
Attorney General to file a quo warranto action to oust the current governor from office. (The
case preceded the 1937 statutory change that enabled a private party to file a quo warranto
complaint directly with leave of court. See id. at 339.) The court explained that the relator’s
interest was not “a direct interest in the subject matter of the litigation—the office of Governor—
but *** only an interest in the official acts which the incumbent of the office may do,” such as
influencing taxes and appropriations. Miller, 329 Ill. at 74. The court relied on the history of the
quo warranto proceeding in Illinois and elsewhere, noting the prevalent rule that the interest of a
relator who seeks to oust an officer must be one in the office itself, peculiar to the relator. Id. at
72-73 (citing Newman v. United States ex rel. Frizzell, 238 U.S. 537, 550 (1915),
Commonwealth ex rel. McLaughlin v. Cluley, 56 Pa. 270 (1867), and State ex rel. Depue v.
Matthews, 29 S.E. 994 (W. Va. 1898). 3
¶ 46 In Hiller, the relators, the town clerk of Caseyville Township and a justice of the peace
who served on the town’s board of auditors, alleged that the defendant had usurped the office of
township supervisor and had committed various misdeeds sufficient to forfeit his title to the
office. Hiller, 297 Ill. App. at 337. They also alleged that the defendant’s misfeasance had
3 See also Toncray v. Budge, 95 P. 26, 33-34 (Idaho 1908); Hovanec v. Diaz, 397 N.E.2d
1249, 1250 (Ind. 1979); Jackson v. Freeman, 905 P.2d 217, 219 (Okla. 1995).
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prevented them from performing their official duties. Neither claimed any right to the office of
township supervisor. Id. at 338. The appellate court affirmed the trial court’s denial of leave to
file an action in quo warranto. Id. at 341. The court reasoned that the relators’ interest in having
the office of supervisor filled by one who had met the legal prerequisites and would perform his
official duties was the same interest as that of every citizen and resident of the township and thus
insufficient to give them standing. Id. at 340-41. Moreover, their interest in being able to
perform their duties was insufficient as it was not an interest in the office itself. Id. at 341.
¶ 47 The rules for standing have been liberalized somewhat since Hiller. In Niekamp, the trial
court ousted the defendant from a school board on which two of the relators also sat. The court
found that the defendant had violated a statute by serving on the school board and the county
board at the same time. The appellate court affirmed, holding that the two fellow school-board
members had standing because their interest in the matter was distinct from that of the general
public. The appellate court explained that, as members of the same governmental body, on
which one vote could decide important questions, the fellow board members had a distinctive
interest in having only properly elected officers transact the business of that body. Niekamp,
2011 IL App (4th) 100796, ¶ 28; see State ex rel. Morrison v. Freeland, 81 S.E.2d 685, 687-88
(W. Va. 1954), overruled on other grounds, Marra v. Zink, 256 S.E.2d 581, 586 (W. Va. 1979).
¶ 48 In Wofford, the relators were a private citizen and two City of Harvey aldermen who
sought to remove the defendant alderman from the city council on the ground that he was
ineligible for the office because he had been twice convicted of a felony. Wofford, 2014 IL App
(1st) 161118, ¶¶ 3, 7. The trial court dismissed the complaint, holding that the relators lacked
standing. Id. ¶ 9. One alderman-relator appealed. The appellate court reversed and remanded.
Citing Niekamp and Morrison, it reasoned that, because the city council had only seven
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members, the vote of one member was significant. Thus, as another member of the city council,
the alderman had a distinctive interest, not shared by the general public, in ensuring that the
legislative process was not tainted by the participation of one who was not eligible to hold the
office. Id. ¶ 23.
¶ 49 Although Niekamp and Wofford have broadened the former rule that a person seeking to
use quo warranto to oust an officeholder must have an interest in the office itself, they have not
expanded the law of standing nearly far enough to rescue Rahn’s cause. Rahn has never asserted
any claim to defendant’s office (the College deanship) itself. Under the traditional rule of Miller
and Hiller, his lack of standing would be inarguable. But even under Niekamp and Wofford, he
has not alleged (much less documented) a distinctive personal interest sufficient to give him
standing. Rahn does not and cannot allege that his situation, even before he left the employ of
NIU, was analogous to those of the relators in Niekamp and Wofford. They were the fellow
officers of the respective defendants, belonging to the same governmental bodies and
participating in the same legislative processes. Even less after his departure from NIU can Rahn
fit his situation into Niekamp and Wofford. His federal action against defendant, even were it a
live controversy instead of having been terminated wholly in defendant’s favor, would not
approach the criteria of these authorities. No other facts that Rahn has alleged in his complaint
or afterward would even arguably give him standing to bring this quo warranto action.
¶ 50 We hold that, although the trial court erred in concluding that this case is moot, dismissal
was required on the basis that Rahn lacked standing. Therefore, the judgment of the circuit court
of De Kalb County is affirmed.
¶ 51 Affirmed.
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