NOTICE 2024 IL App (4th) 230537-U This Order was filed under FILED NO. 4-23-0537 August 5, 2024 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
GREGORY SMITH, ) Appeal from the Petitioner-Appellant, ) Circuit Court of v. ) Sangamon County THE DEPARTMENT OF AGRICULTURE; and ) No. 22MR463 JERRY COSTELLO II, in His Official Capacity as ) Acting Director of the Department of Agriculture, ) Honorable Respondents-Appellees. ) Rudolph M. Braud Jr., ) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court. Justices Knecht and Vancil concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in granting the Department of Agriculture’s combined motion for involuntary dismissal.
¶2 This matter has a protracted procedural history arising from the attempt of CU
Grow, LLC (CU), an Illinois limited liability company, to obtain a cannabis craft grower license
from respondents the Department of Agriculture (Department) and Jerry Costello II as the acting
director of the Department. CU’s attempt to obtain this licensure ultimately resulted in petitioner
Gregory Smith filing a petition for mandamus on CU’s behalf following the Department’s denial
of CU’s application. Smith sought an order from the circuit court of Sangamon County directing
the Department and its director to, among other things, rescind and nullify the denial of CU’s
application, rescore the application, and reissue a final decision. The circuit court denied the
motion for mandamus. Smith appeals, presenting numerous contentions of error. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 A. Overview of Statutory Framework
¶5 In June 2019, Governor J.B. Pritzker signed into law Public Act 101-27, amending
the Cannabis Regulation and Tax Act (Act) (410 ILCS 705/1-1 et seq. (West 2020)), legalizing
and regulating the use, sale, and cultivation of cannabis for recreational use by adults. In doing so
the legislature declared that “[i]n the interest of establishing a legal cannabis industry that is
equitable and accessible to those most adversely impacted by the enforcement of drug-related laws
in this State, including cannabis-related laws, the General Assembly finds and declares that a social
equity program should be established.” Id. § 7-1(b). The Act allowed an applicant to qualify as a
Social Equity Applicant (SEA) if more than half of the business is owned and controlled by
individuals who have (1) “resided for at least 5 of the preceding 10 years in a Disproportionately
Impacted Area” and (2) “have been arrested for, convicted of, or adjudicated delinquent for any
offense that is eligible for expungement under this Act,” or “is a member of an impacted family.”
Id. § 1-10. Moreover, applicants with more than 10 full-time employees can satisfy the SEA
requirements if 51% of their employees meet the aforementioned qualifications. Id.
¶6 Under the Act, the Department has the authority to license and regulate craft
growers, which are defined as businesses operated “to cultivate, dry, cure, and package cannabis
and perform other necessary activities to make cannabis available for sale at a dispensing
organization or use at a processing organization.” Id. §§ 30-5, 1-10, 5-10.
¶7 Although the legislature provided a framework for licensure and regulation under
the Act, it directed the Department to oversee the application process and engage in rulemaking to
implement it. This command by the legislature to engage in administrative rulemaking was
-2- accompanied by a requirement that the various agencies involved in administering the Act “adopt
permanent rules in accordance with their responsibilities under this Act” within 180 days of its
effective date. Id. § 55-35. The legislature also provided that if any of the various agencies,
including the Department, failed to adopt rules required to implement the Act, “any citizen may
commence a mandamus action in the circuit court to compel the agencies to perform the actions
mandated under section 55-35.” Id. § 55-40.
¶8 Regarding the applications of craft growers, the Act provided that the Department
“shall by rule develop a system to score craft grower applications to administratively rank
applications” and further provided a list of categories for points to be assigned. Id. § 30-15. Of
these designated categories, the Act directed the Department to consider “[t]he applicant’s status
as [an SEA], which shall constitute no less than 20% of total available points.” Id. § 30-15(a)(7).
¶9 The Department’s rules implemented a scoring system where a craft grower
applicant could receive a total score of 1002 points based on the designated criteria. 8 Ill. Adm.
Code 1300.307(a) (2020). Pursuant to the 20% requirement in the Act, an applicant could obtain
200 points by establishing SEA status. 410 ILCS 705/30-15(a)(7) (West 2020); 8 Ill. Adm. Code
1300.307(a)(7) (2020).
¶ 10 The required form and contents of an application are outlined in the Act, as
supplemented by administrative rules and the provisions of section 30-15. 410 ILCS 705/30-10
(a)(1)-(a)(22) (West 2020). For those applying as an SEA, the Department was directed to waive
50% of any nonrefundable license application fees, given certain qualifications. Id. § 7-20(a).
However, if the Department determined that an SEA did not qualify for that status, then the
applicant “shall” be given 10 days to cure any deficiency. Id. § 7-20(c). If the applicant was unable
to cure, they were allowed to pay the outstanding fee and be considered as a non-SEA. If the
-3- applicant failed to cure or pay, then the Department was allowed to keep the initial application fee
but the application “shall not be graded.” Id.
¶ 11 Regarding other sections of the application, “[i]f the [Department] receive[d] an
application with missing information, the [Department] may issue a deficiency notice to the
applicant.” Id. § 30-10(c). If the application remained incomplete 10 calendar days after the notice,
it would not be scored and would be disqualified. Id. The applicants that received the highest scores
under the Department’s rubric and received at least 75% of available points would receive craft
grower licensure from the Department. 8 Ill. Adm. Code 1300.315(a) (2020). The Act required
that the Department issue up to 40 craft grower licenses by July 1, 2020, and an additional 60
licenses by December 1, 2021. 410 ILCS 705/30-5 (West 2020). The total number of craft grower
licenses was not allowed to exceed 150. Id. The time frames set forth for the issuance of the two
rounds of licensing were delayed by the outbreak of the COVID-19 pandemic.
¶ 12 The Act also provides that “[a]ll final decisions of the *** [Department] *** are
subject to judicial review under the Administrative Review Law and the rules adopted under that
Law.” Id. § 55-55.
¶ 13 B. CU’s Application
¶ 14 In 2020, the Department accepted an unlimited number of applications for the first
two rounds of licensing. CU submitted a timely application, applying as an SEA and providing the
reduced $2500 application fee. CU received a deficiency notice requesting supplemental
information for the social equity portion of the application on August 6, 2020. Throughout the
proceedings below, and on the application itself, the social equity portion of the application was
referred to as Exhibit G. Specifically, the notice stated the Department required additional evidence
that a person “owning and controlling 51% of the proposed Craft Grower *** resided within a
-4- disproportionately impacted area for 5 of the preceding 10 years.” Despite technical difficulties in
uploading the requested documentation to the application portal, CU purportedly submitted the
requested information within the 10-day timeline.
¶ 15 On January 26, 2021, CU received a disqualification notice stating that it had
(1) failed to respond to a prior deficiency notice, (2) failed to respond to a notice within the
required timeline, and (3) responded to a notice but the response was inadequate to cure the
deficiency. CU initiated an “internal appeal” via e-mail by requesting that the Department review
the materials submitted and reverse the disqualification decision. On March 2, 2021, the
Department rescinded the disqualification of CU’s application, providing a notice that stated it had
“improperly disqualified the application” for submitting additional supporting documentation in
an untimely manner where, upon further review, the response was timely. As a result, scoring on
the application would continue.
¶ 16 While CU had received the January 26, 2021, disqualification notice, all other
applicants that were not disqualified received another deficiency notice providing a breakdown of
deficiencies in the application exhibits. CU did not receive this notice. The Department issued
another deficiency notice to all remaining applicants on March 19, 2021. CU received this notice,
which provided another breakdown, exhibit by exhibit, of the deficiencies in the application.
Regarding the social equity portion, Exhibit G, CU was directed to resubmit documentation
establishing its SEA status, and the notice stated that CU had received no points for this section.
CU uploaded documents that purported to remedy the deficiency in the application.
¶ 17 On August 17, 2021, CU once again received a disqualification notice stating that
(1) CU failed to respond to a prior deficiency notice, (2) CU failed to respond to a notice within
the required timeline, (3) CU responded to a notice but the response was inadequate to cure the
-5- deficiency, and (4) the application did not receive the minimum number of points to allow for
licensure. The notice further provided that:
“This Notice for the application identified above applies to both the first
round of 40 craft grower licenses pursuant to Sec. 30-5(a) of the Act and the second
round of 60 craft grower licenses pursuant to Sec. 30-5(b) of the Act.
Pursuant to Section 55-55 of the Act, this Notice serves as the Department’s
final administrative decision concerning the application identified above.”
¶ 18 This notice was followed by another disqualification notice on September 10, 2021,
that provided “further information” regarding the August 17 notice. The notice provided that the
application was disqualified because the score was insufficient to be eligible for licensing.
¶ 19 CU once again initiated an “internal appeal” by contacting the Department via e-
mail, requesting that the disqualification be rescinded. The Department responded that the
application was properly disqualified following CU’s failure to provide “sufficient documentation
to prove 5 years of residency for a Principal Officer that was leveraged on the application as the
[SEA].” This was the same documentation that was previously requested in two prior deficiency
notices and purportedly submitted by CU to supplement Exhibit G.
¶ 20 On September 27, 2021, the Department began its review of the applications for
the second round of licenses. It issued deficiency notices to the remaining applicants who scored
the minimum number of points to remain eligible for licensing in the first round but who were not
in the top 40 that received licenses.
¶ 21 C. Judicial Review
¶ 22 In October 2021, CU filed a complaint in the circuit court of Cook County seeking
review of the final administrative decision pursuant to the Administrative Review Law (735 ILCS
-6- 5/3-101 et seq. (West 2020)). That matter was consolidated with a number of other cases seeking
review from the same licensing process, and CU’s case was transferred to the circuit court of
Sangamon County. However, in December 2021, the Department issued another notice rescinding
its prior disqualification of CU’s application. The notice stated that the application was
“improperly disqualified” and that the Department determined that the application had received at
least 75% of the available points and, thus, scoring of the application would continue.
¶ 23 In the circuit court, the Department filed a motion to dismiss, arguing the request
for judicial review was moot since the final determination had been rescinded. Attached to the
motion was an affidavit from Sherri Baker, the bureau chief of licensing and administration,
division of cannabis. Baker attested that she was familiar with CU’s application for a craft grower
license and that “[a]t this time [CU] remains in consideration for licenses to be issued under Section
30-5(b) of the [Act].” Further, “[CU] may receive a craft grower license if it cures the deficiencies
identified in the December 6, 2021 deficiency notice in a timely manner, and receives a top score
on its application that qualifies it for a license.”
¶ 24 Although CU did not receive the September 27, 2021, deficiency notice, it did
receive the December 6, 2021, deficiency notice identified in Baker’s affidavit; that notice required
additional information on various sections of the application, but not the section concerning CU’s
SEA status under Exhibit G. CU responded to the notice by uploading supplemental information.
¶ 25 On December 14, 2021, the circuit court granted the Department’s motion to
dismiss, finding that, due to the recission, there was no final administrative decision, CU remained
under consideration for licensure, the matter was moot, and the court lacked subject matter
jurisdiction.
¶ 26 D. June 2022 Denial
-7- ¶ 27 On June 7, 2022, CU received a courtesy e-mail from the Department providing a
copy of its craft grower application scoring results sent by certified mail on June 2, 2022. The
notice stated that CU would not be receiving a license because its application fell below the second-
round cutoff score of 984 points. CU’s application only received 799 points. The notice also
informed the applicant how many points the application received per section. Regarding the social
equity section, CU received zero points. Moreover, the notice stated:
“Pursuant to Section 55-55 of the Act, this is the Department’s Final Administrative
Decision regarding these applications for craft grower licenses. Administrative
proceedings with respect to these applications are hereby terminated, and no further
administrative remedies are available with respect to these applications. This Final
Administrative Decision is subject to judicial review under the Administrative
Review Law, 735 ILCS 5/3-102. Accordingly, applicants that wish to seek judicial
review of this Final Administrative Decision have until July 6, 2022, to file a claim
for review as provided in the Administrative Review Law, which is 35 days from
the date of this Final Administrative Decision.”
CU did not file a complaint for judicial review. Similar to the first round, there were a number of
appeals from the denial of licensing in the second round under the Administrative Review Law
that were consolidated.
¶ 28 Unlike the prior instances where CU initiated an “internal appeal” via e-mail, CU
responded to the denial by sending correspondence to the Office of the Attorney General for the
State of Illinois. CU alleges the attorney general responded that it did not have jurisdiction over
the matter.
¶ 29 E. Mandamus
-8- ¶ 30 In October 2022, Smith, on behalf of CU, filed a multicount petition for mandamus
and other relief. Relevant on appeal is count I, requesting mandamus relief. Smith’s standing to
raise claims on behalf of CU has not been contested on appeal. See People v. Johnson, 2021 IL
125738, ¶ 33 (“[S]tanding is ordinarily an affirmative defense that must be pleaded and proven by
the defendant.”).
¶ 31 CU alleged that, based on the prior history of the matter and the communications
with the Department, CU’s application had been accepted as an SEA. However, due to technical
issues, CU was “stuck” in a situation where the Department continually failed to review the
information submitted to supplement the SEA section of the application. Further, the Department
lacked “rules or procedures regarding the administration” of these technical issues, resulting in
CU’s application receiving insufficient review as contemplated by the Act. Following the
December 2021 recission notice, CU did not receive a deficiency notice informing it that the SEA
documents were insufficient, and the Department accepted its application at the discounted fee;
these are actions which, by statute, the Department could not take without the SEA section being
deemed sufficient. CU alleged the Department had “a clear duty” to score the application properly
and that it remained “incumbent upon [the Department] to follow through with their promise and
award CU its 200 social equity points and the resultant license.” The prayer for relief requested
that the court order the Department to remedy the technical issues alleged in the petition, “rescind
and nullify” the June 2022 denial, complete the scoring process of the application, and issue a new
final order with the resultant score.
¶ 32 The Department filed a combined motion to dismiss pursuant to the Code of Civil
Procedure (Code) (735 ILCS 5/2-619.1 (West 2022)) and a supporting memorandum. Among
other things, the Department argued in its section 2-619 motion (id. § 2-619) that the circuit court
-9- lacked jurisdiction to consider the mandamus claim because the sole method of challenging the
Department’s final administrative decision pursuant to the Act was by filing a timely complaint
for judicial review under the Administrative Review Law within 35 days of that decision, which
Smith failed to do. See 410 ILCS 705/55-55 (West 2022). The Department further argued in its
section 2-615 motion (735 ILCS 5/2-615 (West 2022)) that Smith’s mandamus claim was
incomplete because he failed to identify a nondiscretionary duty that it neglected to perform;
explaining that the Department exercised discretionary duties when it promulgated particular rules
and scored CU’s application.
¶ 33 Smith responded that section 55-40 allowed mandamus actions to force the
Department to adopt rules to implement the Act and carry out its “responsibilities.” He then argued
that section 55-55 did not apply because, absent “the necessary[,] specific[,] and transparent rule
set outlining the Department’s responsibilities such as for scoring,” the decision rendered by the
Department was not final. Essentially, the petition was “based upon the Department’s rules,
policies and actions outside of the record.” Smith requested that if the circuit court dismissed his
petition, it do so with leave to amend the filing.
¶ 34 F. Circuit Court’s Judgment
¶ 35 The circuit court granted the Department’s motion to dismiss, finding that the
Administrative Review Law was Smith’s sole remedy to challenge the scoring of CU’s application.
Further, the court found that the June 2022 denial was a final administrative order as contemplated
by the Administrative Review Law (see 735 ILCS 5/3-101 (West 2022)). Moreover, Smith’s claim
that exceptions to administrative exhaustion applied was raised in a conclusory fashion and was
disregarded because it was not adequately developed. On the merits, the exceptions did not apply.
The court also found mandamus relief inappropriate because such relief would interfere with the
- 10 - Department’s discretionary duties. The court reasoned that, “Although [Smith] might prefer the
Department to adopt different rules, neither [Smith] nor the Court can dictate the rules the
Department chooses to promulgate, because that would interfere with the Department’s exercise
of the discretion afforded it by statute.”
¶ 36 This appeal followed.
¶ 37 II. ANALYSIS
¶ 38 At best, Smith’s briefing in this court can be described as meandering. His
arguments bleed into one another to form a morass of claimed errors. Generally, Smith claims that
his mandamus claim was viable and the circuit court erred in granting the Department’s combined
motion to dismiss. In an effort to better address the arguments presented, we attempt to sculpt them
into the following categories of contentions: (1) that mandamus was a viable claim under the plain
language of the Act to challenge the Department’s final score of CU’s application; (2) even if not
viable under the Act, the exceptions to administrative exhaustion applied to allow a mandamus
claim; and (3) that the claim for mandamus was sufficiently pled, and even if there was a
deficiency, the court erred in denying leave to amend. Inextricably woven into all these arguments
is the claim that the mandamus action was meant to force the Department to promulgate certain
rules to carry out its responsibilities under the Act and that the creation of those rules would
somehow retroactively cure any error in the scoring of CU’s application. Having framed the issues
as best we can, we now proceed to address them.
¶ 39 The circuit court in this matter granted the Department’s combined motion for
involuntary dismissal pursuant to section 2-619.1 of the Code. Section 2-619.1 allows a party to
combine motions to dismiss under sections 2-619 and 2-615 into one structured pleading. Kopf v.
Kelly, 2024 IL 127464, ¶ 63. A motion to dismiss under section 2-619 admits the legal sufficiency
- 11 - of the claim but asserts defenses or defects outside the pleading to defeat the claim, while a motion
to dismiss under section 2-615 challenges the legal sufficiency of the plaintiff’s claim. Id. (quoting
Cahokia Unit School District No. 187 v. Pritzker, 2021 IL 126212, ¶ 23).
¶ 40 Under section 2-619(a), the movant is essentially stating “ ‘ “Yes, the complaint
was legally sufficient, but an affirmative matter exists that defeats the claim.” ’ ” Reynolds v.
Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 31 (quoting Winters v. Wangler,
386 Ill. App. 3d 788, 792 (2008)). Under section 2-615, the movant is essentially saying “ ‘So
what? The facts the plaintiff has pleaded do not state a cause of action against me.’ ” Winters, 386
Ill. App. 3d at 792.
¶ 41 The combined motion, under either section 2-619 or 2-615, “ ‘admits as true all
well-pleaded facts and all reasonable inferences from those facts,’ and the court ‘must construe the
pleadings and supporting documents in the light most favorable to the nonmoving party.’ ” Kopf,
2024 IL 127464, ¶ 63 (quoting Cahokia Unit School District No. 187, 2021 IL 126212, ¶ 24). We
review dismissal under either section de novo. Id.
¶ 42 To the extent that we engage in statutory interpretation, the canons of construction
are well-established. The guiding principle of statutory construction, to which all other canons and
rules are subordinate, is to give effect to the intent of the legislature as determined by the express
language of the statute, given its plain and ordinary meaning. Bayer v. Panduit Corp., 2016 IL
119553, ¶ 18. Our review when construing the Act remains de novo. Id. ¶ 17.
¶ 43 A. Nature of Petition Below
¶ 44 The circuit court granted dismissal as to count I because it found that, at the heart
of the request for mandamus, Smith was actually requesting recission of the Department’s decision
denying CU a craft grower license. Smith disputes this assessment of his pleading. We find that a
- 12 - resolution of the character of the petition for mandamus will simplify our review. Count I of
Smith’s petition was titled “Mandate: Department Adopt Rules to Address Technicalities in the
Electronic Licensing Program Before Certain Final Administrative Decisions Apply.” However,
while the title references rulemaking, that alone does not determine the character of the pleading.
See In re Haley D., 2011 IL 110886, ¶ 67. Rather, the nature of a pleading is determined by its
content, and we are not bound by the title. Id.
¶ 45 Smith alleges in his petition that the Department failed to adopt necessary and
mandated rules that would have prevented the issues experienced by CU during the application
process. However, Smith also contended that CU could not properly be denied a license, that the
Department was unable to issue a final decision because of the technical issue, the Department
was required to award CU the 200 points under the SEA section of the application or provide
another chance to amend the application, and that the Department failed to properly score CU’s
application. In the prayer for relief of count I, Smith requests that the court direct the Department
to rescind and nullify the June 2022 denial, fix the technical defect, rescore CU’s application, and
issue another final administrative decision. We agree with the circuit court that, while Smith does
ask that the Department adopt a very specific set of rules relating to the technical difficulties
encountered by CU, the focus of the relief sought was recission and nullification of the June 2022
denial (i.e., so the Department could rescore the application and issue another administrative
decision). The petition’s request that the new rules be applied retroactively is a strong indication
that CU’s concern is the success of its own application, not the Department’s general duty to make
rules. Having determined that the substance of the petition sought to challenge the final
administrative decision, we continue with our review.
¶ 46 B. Statutory Basis for Mandamus
- 13 - ¶ 47 We find that a majority of Smith’s contentions on appeal can be resolved by
determining whether the Act provides for mandamus to challenge a final administrative decision
of the Department. Smith’s arguments on this point effectively challenge the circuit court’s finding
that it lacked jurisdiction absent a statutory basis supporting the mandamus claim and the explicit
adoption of the Administrative Review Law.
¶ 48 To support his claim that mandamus is available under the Act, Smith directs our
attention to section 55-40, which requires the agencies responsible for implementing the Act to
promulgate rules to that end within 180 days of the effective date; if they fail to do so, “any citizen
may commence a mandamus action in the circuit court to compel the agencies to perform the
actions mandated.” 410 ILCS 705/55-40 (West 2022). Pursuant to section 55-35(a) the Department
was mandated to “adopt permanent rules in accordance with [its] responsibilities under this Act.”
Id. § 55-35(a). More specifically, this section goes on to list several categories on which the
Department “may” promulgate rules, including “other matters under oversight by the Department
*** as are necessary for the fair, impartial, stringent, and comprehensive administration of this
Act.” Id. §§ 55-35(b), (b)(8). Further, he argues that mandamus is still viable because article 30
(id. § 30 et seq.), governing craft growers, does not contain a section expressly providing for
review under the Administrative Review Law, unlike article 15 (id. § 15-175) (governing licensing
and regulation of dispensing organization overseen by the Department of Financial and
Professional Regulation).
¶ 49 The Department points to section 55-55 of the Act, titled “Review of administrative
decisions,” which provides that “[a]ll final administrative decisions” of the various agencies tasked
with regulation under the Act, including the Department, “are subject to judicial review under the
Administrative Review Law and the rules adopted under that Law.” Id. § 55-55.
- 14 - ¶ 50 After reviewing the statutory framework, it becomes clear that the statute provides
a very narrow path to compel the agency to adopt rules if it has completely failed to do so, but just
one avenue for judicial review of an agency’s final decisions in an individual case. Section 55-55
provides that “[a]ll final administrative decisions” of the various agencies are subject to review
under the Administrative Review Law. It is axiomatic that
“[w]hen the Administrative Review Law applies, ‘any other statutory, equitable or
common law mode of review of decisions of administrative agencies’ shall not be
employed, and a party who fails to seek review of an administrative decision within
the time and manner provided by the statute ‘shall be barred from obtaining judicial
review.’ ” Pinkston v. City of Chicago, 2023 IL 128575, ¶ 25 (quoting 735 ILCS
5/3-102 (West 2018)).
Section 55-40 provides for mandamus actions in a specific and limited circumstance: when the
subject department “fails to adopt rules to implement” the Act within a specified time frame. 410
ILCS 705/55-40 (West 2022). Smith does not contend that rules have not been adopted, only that
he thinks they should be added to. That is a matter well beyond the statutory provision for
mandamus, applicable only when the agency has failed to adopt any rules at all. Section 55-55, on
the other hand, speaks to review of final decisions in individual cases, and it would be in that
context that Smith might argue against the validity of a rule as it affects him. The legislative intent
is clear from the plain language of the Act: mandamus is not a viable cause of action to challenge
a final administrative decision under the Act.
¶ 51 Smith argues against this conclusion, citing Quinn v. Board of Election
Commissioners for City of Chicago Electoral Board, 2019 IL App (1st) 190189, and Beauchamp
v. Dart, 2022 IL App (1st) 210091, for support. Reliance on these cases here is misguided, as both
- 15 - are readily distinguishable.
¶ 52 In Quinn, 2019 IL App (1st) 190189, ¶ 8, the circuit court was confronted with a
mandamus claim brought against an election authority seeking reversal of a final administrative
decision. On review, the appellate court found that the relevant section of the Election Code (10
ILCS 5/10-10.1(a)(West 2016)), did “not adopt the Administrative Review Law,” and therefore,
the restrictions on other modes of judicial review contained in section 3-102 of the Administrative
Review Law (735 ILCS 5/3-102 (West 2016)) did not apply. (Emphasis in original.) Quinn, 2019
IL App (1st) 190189, ¶¶ 33-34.
¶ 53 In Beauchamp, 2022 IL App (1st) 210091, ¶ 1, the plaintiff filed a complaint for
administrative review of a county board’s final decision, as well as a mandamus claim to force the
county sheriff to utilize the county state’s attorney as legal counsel during the proceedings. While
the appellate court ultimately found the plaintiff failed to sufficiently plead the mandamus claim,
the court refused to dismiss it for a lack of jurisdiction where the claim “sought independent
mandamus relief to require the Sheriff to use the Cook County State’s Attorney to prosecute this
case and did not seek to secure reversal of an administrative decision with a writ of mandamus.”
Id. ¶ 17.
¶ 54 Here, the Act explicitly adopted the Administrative Review Law as the sole method
to review administrative decisions, and Smith’s mandamus claim is not independent. Instead, it
attempts to invoke judicial review of the Department’s final decision. Neither case offers any
assistance.
¶ 55 Related to the statutory argument, Smith also argues that judicial review pursuant
to the Administrative Review Law is inappropriate because there is no final administrative decision
in this case. He goes on to present a tortured argument that styles his claim for mandamus as an
- 16 - attempt to compel rulemaking and misconstrues the proceedings in the initial judicial review.
Smith repeatedly claims he is challenging the Department’s “statements of general application and
policy” and that the June 2022 denial was not a final decision because “the circuit court order of
January 7, 2022 dismissing [CU’s] [administrative review complaint] show[s] there was no final
decision from the first process.” Essentially, he contends this matter was previously settled by the
circuit court in that initial proceeding and refers repeatedly to “promises” made and unfulfilled by
the Department therein.
¶ 56 Parsing these arguments, Smith’s first assertion once again shows an attempt to
bootstrap a challenge to the denial of CU’s application to a mandamus claim. Smith admits in his
reply brief that the petition was “not solely a request for rescoring, reviewing, reversing, or
rescinding the June 2022 Final Decision,” but there is no denying that this is effectively the relief
he seeks. While Smith is correct that he does request additional rulemaking, as explained above,
the nature of this petition sought to challenge the June denial of the application, and the proper
method to challenge the decision under the Act was by appeal under the Administrative Review
Law. Once again, the request that rules not only be made, but that they be applied retroactively in
this case, speaks volumes about the true nature of this action.
¶ 57 The second assertion that the initial judicial review settled this matter is rebutted
by the record. In that proceeding, the circuit court simply found it lacked jurisdiction because there
was no longer a final administrative order from which to appeal following the recission of the
August 2021 decision. Further, because CU was still being considered for a license, the appeal was
moot. The court did not engage in any further fact-finding or confirm any “promises” that CU
would receive a license. Smith similarly misrepresents the contents of Baker’s affidavit, as there
is an absence of a “promise” to issue a license anywhere in the document. Rather, Baker states CU
- 17 - “may” receive a license if deficiencies were cured and CU’s application received a top score in
the second round.
¶ 58 Smith also engages in a convoluted argument that the June 2022 decision was not
a final administrative decision because the Department was able to rescind the August 2021 final
decision approximately three months after issuing the decision. Of course, the key difference
between the two decisions is that, unlike the August 2021 notice, the June 2022 denial was not
rescinded. Further, he points to alleged irregularities on behalf of the Department during the prior
judicial review. However, that decision was not appealed and has no bearing on the finality of the
June 2022 denial. An administrative decision from the Department is defined as “any decision,
order or determination of any administrative agency rendered in a particular case, which affects
the legal rights, duties or privileges of parties and which terminates the proceedings before the
administrative agency.” 735 ILCS 5/3-101 (West 2022). That is precisely what the June 2022
decision accomplished in this matter.
¶ 59 Having accepted as true all well-pleaded facts from the petition and the reasonable
inferences that flowed from them and having construed the petition and attached documents in the
light most favorable to Smith, we find that the circuit court did not err in granting dismissal based
on a lack of jurisdiction pursuant to section 2-619(a)(1) of the Code (id. § 2-619(a)(1).
¶ 60 C. Exceptions to Administrative Exhaustion
¶ 61 Smith also argues that even if his interpretation of the Act is incorrect—which it
is—established exceptions to administrative exhaustion should allow him to proceed with his
mandamus claim, bypassing the Administrative Review Law. “The doctrine of exhaustion
provides that a party aggrieved by an administrative decision ordinarily cannot seek judicial review
without first pursuing all available administrative remedies.” Pinkston, 2023 IL 128575, ¶ 24. The
- 18 - exhaustion requirement allows agencies to fully consider matters before allowing an aggrieved
party to seek judicial review in the hopes of insulating agency review from interruption and
conserves judicial resources by allowing the agencies to correct their own errors. Id. “In Illinois,
the common-law doctrine of exhaustion is incorporated in the Administrative Review Law.” Id.
¶ 25. While, as discussed, when the Administrative Review Law applies, the aggrieved party is
generally barred from obtaining judicial review through other methods (supra ¶ 50), several
exceptions to the doctrine of exhaustion exist. See Pinkston, 2023 IL 128575, ¶ 26.
¶ 62 Smith directs our attention to several exceptions enumerated in Castaneda v.
Illinois Human Rights Comm’n, 132 Ill. 2d 304 (1989). He argues that he asserted facts in his
petition below that support the application of these exceptions but the “circuit court erred in not
considering the exceptions.” Smith’s pleading below and his briefing here discuss only three of
the several exceptions noted in Castaneda: futility, that the facts are not in controversy, and that
he exhausted at least one of multiple administrative remedies. The Department argues that Smith
forfeited his argument that the exceptions apply by failing to provide cogent arguments and citation
to authority. However, even ignoring forfeiture, these arguments are without merit.
¶ 63 While Smith argues that an appeal under the Administrative Review Law would
have been futile, he does not explain why. He merely states that in this case, the “circumstances
are similar to those where the futility exceptions have been applied, and the same must be applied
here.” He does not cite any authority. Aside from failing to support the argument with authority,
the dispositive defect is the failure to explain why it would have been futile to seek judicial review
under the Administrative Review Law. In fact, the last time CU initiated such an action, it resulted
in the rescission of the administrative decision and reinstatement of CU’s application for rescoring,
ostensibly the relief he seeks in his mandamus petition. Therefore, Smith has failed to show this
- 19 - exception applies.
¶ 64 Smith also argues the facts in this case are not in controversy. However, the crux
of this dispute is that CU believes it is entitled to a higher score on its application than it ultimately
received from the Department; this means that the facts are in dispute. Smith again points to the
judicial review in the first instance, arguing that this matter was decided at that juncture but, as we
have explained, that matter was dismissed, not adjudicated. The mandamus petition is the first time
this matter has been substantively reviewed by a circuit court.
¶ 65 We understand Smith’s concern that the Department made at least one admitted
mistake in CU’s application, and it may have made others. Given the strictures of the Act, it is
impossible an application leveraging social equity status that only submitted the reduced
application fee due to that alleged status would be scored by the Department while receiving a
score of zero on the social equity portion of the application. It would seem that either the
supplemental information provided by CU was never included in the Department’s review for
scoring, or the supplemental information provided was insufficient and the application should
never have been scored. We can draw no firm conclusions about such matters, however, for two
critical reasons: (1) we do not have a complete record of the proceedings before the Department,
a secondary effect of Smith eschewing review under the Administrative Review Law; and (2) more
fundamentally, these factual and legal issues were properly the subject of such judicial review of
the agency’s decision. Accordingly, Smith has failed to establish that there are no issues of fact,
so he is not excused from the requirement that he seek judicial review of these matters under the
Administrative Review Law.
¶ 66 The final exception argued is that CU exhausted one of multiple available
administrative remedies. While CU had obtained a prior recission from e-mail communications
- 20 - with the Department, which CU termed an “internal appeal,” the only available remedy under the
Act was to file a complaint under the Administrative Review Law. Further, CU did not contact the
Department or initiate a similar “internal appeal” following the June 2022 denial. Instead, it wrote
to the attorney general, who allegedly claimed to lack jurisdiction. Because CU failed to exhaust
the only remedy available to it under the Act, Smith has failed to show this exception applies.
¶ 67 Smith failed to sufficiently allege a factual basis supporting the application of the
exceptions to administrative exhaustion, which justifies dismissal under section 2-615 of the Code.
Further, affirmative matters rebut the application of the exceptions, resulting in dismissal under
section 2-619 for lack of jurisdiction. Accordingly, dismissal of the petition was warranted.
¶ 68 D. Pleading of Nondiscretionary Function
¶ 69 Having found that mandamus was not a cognizable claim under these
circumstances, and no amount of leave to amend would cure the fatal deficiencies identified
pursuant section 2-619, the circuit court properly dismissed the petition with prejudice. However,
we briefly address the issue of whether Smith’s mandamus claim was seeking to mandate the
performance of a nondiscretionary function with regard to rulemaking. In his petition, he sought
the promulgation of a very specific set of rules related to the technical issues CU faced during the
application process. In his reply brief, he expands upon this request to seek specific rules to further
implement the social equity program under the Act.
¶ 70 “Mandamus will lie in a proper case to compel an officer to proceed with the
exercise of discretion but not to compel him to act in a certain manner while exercising the
discretion [citation].” People ex rel. McGrady v. Carmody, 104 Ill. App. 2d 137, 141 (1968).
Discretion in performing an act arises when it may be performed in more than one lawful way, and
where it is left to the performer’s will or judgment to determine how the act shall be performed.
- 21 - The Y-Not Project, Ltd. v. Fox Waterway Agency, 2016 IL App (2d) 150502, ¶ 36. While the Act
imposes a duty to engage in rulemaking within a certain timeframe (see 410 ILCS 705/55-35, 55-
40 (West 2022)), the Department retained discretion in formulating those rules. Here the
Department has promulgated a whole host of rules to implement this statutory framework. See 8
Ill. Adm. Code 1300.300-395 (2020). The implementation of the social equity program is set forth,
in its entirety, by legislative command in the Act. If the Department failed to follow those
instructions, its failure would present an issue for judicial review under the Administrative Review
Law. Smith’s request for additional rulemaking to correct CU’s specific circumstance amounts to
nothing more than an attempt to compel the Department to exercise its discretion differently than
it has done in the adoption of its rules. Because Smith failed to sufficiently allege a
nondiscretionary duty of the Department, dismissal of the petition was warranted under section 2-
615 of the Code.
¶ 71 Moreover, there was no proposed amended complaint presented to the circuit court
pursuant to a motion to amend or motion to reconsider. Absent a proposed amended complaint,
our ability to determine whether the circuit court abused its discretion in denying leave to amend
has been inhibited. See Loyola v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992) (noting
a factor to consider in determining whether the court abused its discretion is “whether the proposed
amendment would cure the defective pleading”). There is also a body of caselaw that deems the
failure to provide an amended complaint as a forfeiture of the challenge to the court’s dismissal
with prejudice. See, e.g., Sellers v. Rudert, 395 Ill. App. 3d 1041, 1054-55 (2009); Illinois Non-
Profit Risk Management Ass’n v. Human Service Center of Southern Metro-East, 378 Ill. App. 3d
713, 726 (2008); Ignarski v. Norbut, 271 Ill. App. 3d 522, 532 (1995); Mendelson v. Ben A.
Borenstein & Co., 240 Ill. App. 3d 605, 619 (1992).
- 22 - ¶ 72 III. CONCLUSION
¶ 73 Accordingly, the circuit court did not err in granting dismissal pursuant to sections
2-615 and 2-619 where Smith’s petition sought to reverse the denial of the Department via a
challenge not authorized under the Act, where no exception to the administrative exhaustion
doctrine applied, and where the claim was not sufficiently pled. Having found the court below
lacked jurisdiction and the claim was not and could not be sufficiently pled, the court did not abuse
its discretion in denying leave to amend.
¶ 74 For the reasons stated, we affirm the circuit court’s judgment.
¶ 75 Affirmed.
- 23 -