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Bremen Community High School District No. 228, the v. the Cook County Commission On Human Rights and Richard Mitchell

November 8, 2012

BREMEN COMMUNITY HIGH SCHOOL DISTRICT NO. 228, THE BOARD OF EDUCATION OF BREMEN COMMUNITY
HIGH SCHOOL DISTRICT NO. 228 AND EVELYN GLEASON, PLAINTIFFS-APPELLANTS,
v.
THE COOK COUNTY COMMISSION ON HUMAN RIGHTS AND RICHARD MITCHELL,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 10CH44392 The Honorable Nancy J. Arnold, Judge Presiding.

The opinion of the court was delivered by: Justice Fitzgerald Smith

JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justice Sterba concurred in the judgment and opinion.

¶ 1 OPINION

¶ 2 Plaintiffs Bremen Community High School District No. 228, Board of Education of Bremen Community High School District No. 228, and Evelyn Gleason (collectively, the plaintiffs) appeal from an order of the circuit court dismissing with prejudice their complaint against defendants Cook County Commission on Human Rights and Richard Mitchell. We affirm.

¶ 3 I. BACKGROUND

¶ 4 The plaintiffs consist of the Board of Education of Bremen Community High School district No. 228 (Board), which serves as the governing authority for the Bremen Community High School District No. 228; Evelyn Gleason, who is the presiding officer of the Board; and the Bremen Community High School District No. 228 (school district). The defendants are the Cook County Commission on Human Rights (the Commission) and Richard Mitchell (Dr. Mitchell).*fn1

The Commission is an administrative agency created by the County of Cook through its home rule powers under section 6(a) of article VII of the 1970 State of Illinois Constitution to investigate and determine incidents of human rights violations within Cook County.

¶ 5 In March 2004, defendant Dr. Mitchell entered into an employment contract with the Board to serve as superintendent of Bremen Community High School District No. 228. He was terminated in 2006 following a disciplinary action.

¶ 6 In December 2006, Dr. Mitchell filed a complaint with the Commission claiming plaintiffs violated the Cook County Human Rights Ordinance (the Ordinance) (Cook County Ordinance No. 02-O-35 et seq. (Amended Nov. 19, 2002)) by terminating his employment as superintendent of the Bremen school district because of his sexual orientation.

¶ 7 The school district, the Board, and Gleason filed a motion to dismiss the complaint in January 2007. Through this motion, they argued that the Commission lacked subject matter jurisdiction to investigate or adjudicate the complaint because it would exceed the scope of home rule powers granted to Cook County by article VII, section 6(a), of the Illinois Constitution (Ill. Const. 1970, art. VII, § 6). They argued that the Commission lacked jurisdiction over school districts and officials. Dr. Mitchell then filed a response to the motion to dismiss, arguing that the Commission had previously ruled on this issue and determined that it does have jurisdiction. The Commission denied the motion to dismiss. In July 2010, the Commission issued an investigation report finding substantial evidence that plaintiffs violated the Ordinance by terminating Dr. Mitchell due to his sexual orientation. The case before the Commission, filed in 2006, remains pending.

¶ 8 The plaintiffs then brought the same jurisdictional challenge before the trial court against Dr. Mitchell and the Commission in a three-count complaint seeking mandamus, prohibition, and a preliminary injunction. Specifically, plaintiffs sought: (1) a mandamus order directing the Commission to dismiss Dr. Mitchell's complaint for lack of jurisdiction; (2) the issuance of a final order prohibiting the Commission from exercising jurisdiction over plaintiffs as it relates to Dr. Mitchell's complaint; and (3) a preliminary injunction enjoining the Commission from engaging in or conducting any activity in furtherance of Dr. Mitchell's complaint pending a final decision on the merits of the complaint.

¶ 9 In December 2010, the Commission filed a motion to dismiss this complaint under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)). The motion was fully briefed by the parties. This is the motion to dismiss at issue here. On May 17, 2011, following arguments by the parties, the trial court dismissed the complaint with prejudice, finding, in a written order:

"This matter coming on to be heard upon the Commission's motion to dismiss, the matter fully brief[ed] and argued and the court fully advised in the premises;

IT IS HEREBY ORDERED:

1) The Commission's motion is granted and the case is dismissed in its entirety with prejudice--the court finding that Plaintiff has no clear right to mandamus and that the Plaintiff made no showing that the Commission acted outside its home-rule powers, as fully stated in open court;

2) Plaintiffs' oral motion for leave to amend is denied."

In June 2011, plaintiffs filed a motion to amend and attached a copy of their proposed amended complaint. Thereafter, plaintiffs also filed a motion for rehearing of the May 17 order which dismissed the complaint with prejudice and denied plaintiff's oral motion for leave to file an amended complaint. In July 2010, the court denied the motion for reconsideration and gave the Commission leave to file a response to the motion to amend. Then, following oral arguments by the parties, the trial court denied the motion to amend.

¶ 10 Plaintiffs now appeal from: (1) the trial court's dismissal pursuant to section 2-615 following a determination that the Commission had jurisdiction and that plaintiffs failed to show a clear right upon which the trial court may grant the extraordinary relief of mandamus; and (2) the trial court's denial of their motion to amend the complaint.

¶ 11 II. ANALYSIS

¶ 12 Plaintiffs contend that the trial court erred when it denied their motion to dismiss pursuant to section 2-615 of the Code. Plaintiffs argue that the Commission lacked subject matter jurisdiction and, therefore, their complaint for a writ of mandamus was appropriate. We disagree.

¶ 13 "A section 2-615 motion to dismiss [citation] challenges the legal sufficiency of a complaint based on defects apparent on its face." Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). "In reviewing the sufficiency of a complaint, we accept as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts," and we "construe the allegations in the complaint in the light most favorable to the plaintiff." Marshall, 222 Ill. 2d at 429. "[A] cause of action should not be dismissed pursuant to section 2-615 unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recovery." Marshall, 222 Ill. 2d at 429; Canel v. Topinka, 212 Ill. 2d 311, 318 (2004). We review an order granting or denying a section 2-615 motion de novo. Marshall, 222 Ill. 2d at 429.

¶ 14 First, plaintiffs contend that the trial court erred in denying mandamus relief. They argue that mandamus was the appropriate relief here because plaintiffs had no other remedy for the Commission's "improper" exercise of jurisdiction, as well as because of the "continuing nature of the Commission's burdensome and wrongful conduct." In addition, plaintiffs argue that mandamus is appropriate here because the present case presents matters of great importance to the administration of justice. We disagree.

¶ 15 Mandamus is an extraordinary remedy traditionally used to compel a public official to perform a purely ministerial duty. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 192-93 (2009); People ex rel. Ryan v. Roe, 201 Ill. 2d 552, 555 (2002). Mandamus provides affirmative rather than prohibitory relief and can be used to compel the undoing of an act. People ex rel. Waller v. McKoski, 195 Ill. 2d 393, 398 (2001). Mandamus will be granted only if a plaintiff can establish: (1) a clear, affirmative right to relief; (2) a clear duty of the public officer to act; and (3) clear authority in the public officer to comply. People ex rel. Waller, 195 Ill. 2d at 400-01; 1350 Lake Shore Associates v. Hill, 326 Ill. App. 3d 788, 794 (2001) ("The issuance of a writ of mandamus is appropriate only where the plaintiff shows a clear, affirmative right to the requested relief, a clear duty to act on the defendant's part, and clear authority in the defendant to comply with the writ."). Mandamus is not a substitute for appeal. People ex rel. Waller, 195 Ill. 2d at 398. " 'It is not the office of the writ of mandamus to correct, direct, or control the action of a judge in any matter which he has jurisdiction to decide. For mere error, however gross or manifest, the remedy is an appeal or writ of error, and the writ of mandamus will not lie for its correction if the court has jurisdiction of the subject matter and the parties.' " People ex rel. Atchison, Topeka and Santa Fe Ry. Co. v. Clark, 12 Ill. 2d 515, 520 (1957), (quoting People ex rel. Barrett v. Shurtleff, 353 Ill. 248, 259 (1933)).

¶ 16 "Mandamus is an appropriate remedy to correct an order entered by a court that erroneously assumed jurisdiction which the court did not possess (People ex rel. Bradley v. McAuliffe, 24 Ill. 2d 75, 78 (1962) (collecting cases)) or to expunge a void order entered by a tribunal without jurisdiction (Daley v. Laurie, 106 Ill. 2d 33, 40 (1985); People ex rel. Carey v. White, 65 Ill. 2d 193, 197 (1976); People ex rel. Courtney v. Prystalski, 358 Ill. 198, 201-02 (1934)). A writ of mandamus will be awarded only if the petitioner establishes a clear right to the relief requested, a clear duty of the public official to act, and clear authority in the public official to comply with the writ." People ex rel. Alvarez v. Skryd, 241 Ill. 2d 34, 38-39 (2011). "The petitioner in a mandamus action has the burden of establishing every material fact necessary to show the plain duty of the respondent before a court will interfere." Machinis v. Board of Election Commissioners, 164 Ill. App. 3d 763, 767 (1987) (citing People ex rel. Council 19 of the American Federation of State, County & Municipal Employees v. Egan, 52 Ill. App. 3d 1042, 1045 (1977)).

¶ 17 "A petitioner seeking a writ of mandamus to command an officer to perform a duty must show a clear right to the relief asked by allegation of specific facts. (People ex rel. Thomas v. Board of Education of City of Chicago, 40 Ill. App. 2d 308, 188 N.E. 2d 237 [(1963)].)Petitioner must also show a duty on the part of the respondent by allegations of material facts; mere conclusions will not suffice. People ex rel. McGrady v. Carmody, 104 Ill. App. 2d 137, 243 N.E. 2d 19 [(1968)]." People ex rel. Vlahakis v. Hanrahan, 8 Ill. App. 3d 313, 314 (1972).

¶ 18 Here, the trial court dismissed the motion with prejudice, finding that plaintiffs had no clear right to mandamus and that the plaintiffs failed to show the Commission acted outside of its homerule powers. In open court, it stated:

"THE COURT: I'm going to grant the motion to dismiss because the Complaint for mandamus here and prohibition, and the third count seeking [injunction] does not set out a clear right as to which the Court should direct the Human Rights Commission of Cook County to dismiss the proceeding now pending before it."

The court continued:

"THE COURT: [Mandamus] clearly is not the proper vehicle here. As the Court said in Daley v. Laurie, mandamus is not the proper vehicle. It is an extraordinary writ not to be used as a substitute for the ordinary channels of appeal. In effect here, the plaintiff is seeking de novo and immediate appeal of an interlocutory order, denial of a motion to dismiss. In reality, the plaintiff is only seeking review of the Human Rights Commission's order interpreting it's [sic] only ordinance as to whether a school district is excluded from the definition of an employer in that ordinance. The plaintiff here is contending that is error. That is not enough to establish the clear right upon which the court should base the extraordinary writ of mandamus."

¶ 19 We find no error in the granting of the motion to dismiss where the plaintiffs failed to show they had a clear right on which the court should act. See People ex rel. Vlahakis, 8 Ill. App. 3d at 314 ("A petitioner seeking a writ of mandamus to command an officer to perform a duty must show a clear right to the relief asked by allegation of specific facts. (People ex rel. Thomas v. Board of Education of City of Chicago, 40 Ill. App. 2d 308, 188 N.E. 2d 237.)Petitioner must also show a duty on the part of the respondent by allegations of material facts; mere conclusions will not suffice. People ex rel. McGrady v. Carmody, 104 Ill. App. 2d 137, 243 N.E. 2d 19."). In their complaint, the plaintiffs alleged that: the Commission operates pursuant to the exclusive authority of the Ordinance, which was enacted pursuant to Cook County's home rule powers; and the school district is a quasi-municipal corporation possessing "the same degree of power as municipal corporations although it lacks the political and legislative authority." They alleged that the Commission lacks the authority to investigate, regulate, or impose penalties against the school district, its board and officers because:

"(a) The State of Illinois exercises plenary power over the Illinois school system, including the School District, Board and officers, and thus has preempted the use of home rule powers in this area.

(b) The Ordinance, as applied to plaintiffs herein, does not pertain to, and is beyond, the government and affairs of Cook County since the School District itself, and the State of Illinois, have a more vital and direct interest in Dr. Mitchell's contract than Cook County.

c) Nothing about the relationship between Cook County and the School District under the Illinois Constitution or statutes permits Cook County to exercise ...


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