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Romero v. O'Sullivan

January 13, 1999

CRAIG P. ROMERO, PETITIONER-APPELLANT,
v.
WILLIAM D. O'SULLIVAN, WARDEN, RESPONDENT-APPELLEE, AND IAN D. OLIVER AND DONALD RENTMEISTER, RESPONDENTS.



Appeal from Circuit Court of Brown County No. 97MR6 Honorable David K. Slocum, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

Petitioner, Craig Romero, appeals from the grant of summary judgment for respondent, William O'Sullivan, denying his petition for a writ of mandamus seeking to compel Illinois Department of Corrections (Department) officials at the Western Illinois Correctional Center (Center) to provide him access to Title 20 of the Illinois Administrative Code (Code) and the administrative directives (Directives) promulgated by the Department. The circuit court of Brown County found Title 20 was in the Center's law library and the Department was not mandated to provide public access to the Directives and granted summary judgment denying mandamus. Petitioner appeals, contending the Directives are part of Title 20 and he has a right of access to those documents. We affirm.

Petitioner has been incarcerated at the Center since June 5, 1996. The Center is operated by the Department. In July 1996, petitioner requested access to Title 20 of the Code from Janet Nicholas, librarian for the Center. The information provided by Nicholas was not satisfactory to petitioner and his request was forwarded to Ian Oliver, assistant warden for the Center. Oliver forwarded petitioner's request to Don Rentmeister, record office supervisor, and on July 19 Rentmeister provided petitioner with information regarding the Unified Code of Corrections (Unified Code) (730 ILCS 5/1-1-1 et seq. (West 1996)).

After receipt of Rentmeister's letter, petitioner responded by threatening legal action unless he was given personal access to Title 20. On August 16, Rentmeister informed petitioner access to the Code was available in the law library. Two days later petitioner responded by memorandum stating the law library contained only "D.R.'s" and he believed the information he was seeking was found in the "#800's" in the implementation and administration of the Department's rules and regulations. On August 28, Rentmeister responded by providing petitioner a copy of the table of contents for the Department rules reflecting the only rule in the "800's" was Rule 801 pertaining to secure residential youth care facilities.

On March 3, 1997, petitioner filed his petition for a writ of mandamus. The petition named as respondents O'Sullivan, the warden of the Center, Oliver, and Rentmeister. The petition sought the court to issue a writ of mandamus compelling the respondents to provide access to Title 20 of the Code by placing a copy in the Center law library. On March 7, petitioner moved to drop O'Sullivan and Oliver from the peti- tion but the record does not reflect the Disposition of this motion.

On April 3, respondents filed a motion for summary judgment. Accompanying the motion was an affidavit from Rentmeister stating the portions of Title 20 of the Code that deal specifically with the Department were already in the Center library. On May 5 petitioner filed a motion opposing summary judgment in which he contends administrative directives are part of Title 20 as it pertains to the Department and he argues he is entitled to access to the Directives that are not part of the law library of the Center.

A hearing was held on the summary judgment motion on July 2. No transcript of the proceedings is provided as part of the appellate record. The trial court found as much of Title 20 as pertains to the Department is contained in the Department rules, which are available in the Center law library. The court was unclear as to whether the Directives of the Department were also available in the library. There- fore, the Department, as represented by respondents, was ordered to de- termine whether the Directives are required to be accessible in Depart- ment law libraries and, if so, whether they are available in the Center's library. The court then granted summary judgment denying mandamus except as to the outstanding issue.

Petitioner filed a motion to reconsider on August 1.Respondents filed a response to the trial court's order on August 4 admitting the Directives were not in the Center library. An affidavit from Oliver was attached to the response in which he stated the Directives are the internal operating procedures of the Department. They are not a matter of public record and, if placed in the Center library, could jeopardize the safety and security of the institution as inmates would be familiar with the procedures to be used by Department personnel in handling situations arising at the institution.

On August 5, the trial court granted summary judgment denying mandamus on the issue of access to the Directives. Petitioner filed a motion to reconsider on August 14 which was denied on August 28. This appeal followed.

Summary judgment is properly granted when a court, after reviewing affidavits, depositions, admissions, and exhibits on file in the light most favorable to the non-movant, determines no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1996); Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333, 662 N.E.2d 397, 402 (1996). On appeal, a review- ing court conducts a de novo review of the trial court's grant of summary judgment. People ex rel. Hughes v. Walker, 278 Ill. App. 3d 116, 118, 662 N.E.2d 177, 178-79 (1996).

Petitioner filed a complaint for writ of mandamus. Mandamus is not a writ of right but an extraordinary remedy to be issued as an exercise of judicial discretion. Orenic v. Illinois State Labor Relations Board, 127 Ill. 2d 453, 467, 537 N.E.2d 784, 791 (1989). A writ of mandamus may be used only to compel a public official or body to perform a ministerial duty in which the official exercises no discretion. Johnson v. Theis, 282 Ill. App. 3d 966, 972, 669 N.E.2d 590, 594 (1996). Manda- mus is appropriate relief only where a petitioner can demonstrate a clear right to the requested relief, the respondent's clear duty to act, and the respondent's clear authority to comply with the terms of the writ. Orenic, 127 Ill. 2d at 467-68, 537 N.E.2d at 791. The party requesting a writ of mandamus bears the burden of demonstrating a clear right to the relief desired. Chicago Ass'n of Commerce & Industry v. Regional Transportation Authority, 86 Ill. 2d 179, 185, 427 N.E.2d 153, 156 (1981).

We turn, first, to the issue of the portions of Title 20 of the Code that are relevant to the Department. The respondents' uncontroverted affidavit establishes the Department rules as found in Title 20 are found in the Center's law library. Petitioner does not contest the presence of the Department rules but argues they are not the authority he is seeking. The presence of the Department rules in the Center's library is not in issue, so we need not determine if petitioner has a right to those materials. The remaining portions of Title 20 do not pertain to the Department and petitioner, failing to demonstrate his right to such materials, has no right to require their production pursu- ant to a writ of mandamus.

Petitioner contends, however, the Department rules found in Title 20 are not the entire authority that must be provided him pursuant to his request for Title 20 information. He contends the Department's Directives are also a part of Title 20 and he is entitled to this information. Petitioner refers to "Directives" as the current term used to describe administrative regulations or rules. He cites case law dealing with administrative regulations and states it is applicable to administrative directives. However, these are not one and the same. The administrative regulations that existed in the past were not simply renamed the "Administrative Directives," but were repealed in 1984 (see 8 Ill. Reg. 14346-80 (eff. August 1, 1984)) and replaced by the rules in the Code (8 Ill. Reg. 14568-656 (eff. August 1, 1984)). See 20 Ill. Adm. Code §103.10 et seq. (1996).The Department's rules found in the Code are distinct from its Directives. Administrative rules, found in the Code, set policy objectives for the Department. The Director of the Department then develops the means and methods of reaching the Department's policy objectives through the Directives. Finally, the warden of each facility within the Department makes institutional direc- tives to adopt and implement the Directives at that institution. See Department of Central Management Services v. Illinois State Labor Relations Board, 278 Ill. App. 3d 79, 89, 662 N.E.2d 131, 138 (1996); Illinois Nurses Ass'n v. Illinois State Labor Relations Board, 196 Ill. App. 3d 576, 580, 554 N.E.2d 404, 407 (1990). Thus, Directives are di- rected to the staff of the Department and relate to their responsibili- ties in implementing Department policy.

Petitioner argues the Department's Directives are required to be adopted and made available to the public pursuant to sections 5-35, 5-40 and 5-15 of the Illinois Administrative Procedure Act (Act) (5 ILCS 100/5-35, 5-40, 5-15 (West 1996)). Petitioner makes no argument concerning the legality of the Department's rule-making procedures but, instead, limits himself to arguing ...


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