Court of Appeals of Illinois, First District, Fifth Division
LYONS TOWNSHIP ex rel. JOHN H. KIELCZYNSKI, Plaintiff-Appellant,
VILLAGE OF INDIAN HEAD PARK, Defendant-Appellee.
from the Circuit Court of Cook County. No. 15 L 1442 The
Honorable Brigid Mary McGrath, Judge Presiding.
JUSTICE LAMPKIN delivered the judgment of the court, with
opinion. Justice Hall concurred in the judgment and opinion.
Presiding Justice Gordon specially concurred, with opinion.
1 Relator, John Kielczynski, appeals the dismissal of his
two-count complaint against defendant, Village of Indian Head
Park (Village), under the Illinois False Claims Act (Act)
(740 ILCS 175/1 et seq. (West 2014)) pursuant to
section 2-619 of the Code of Civil Procedure (735 ILCS
5/2-619 (West 2014)). Relator alleged the Village overbilled
for policing services (count 1) and failed to remit
collections from traffic fines (count 2) in violation of its
contract with plaintiff, Lyons Township. On appeal, relator
contends the circuit court erred in finding that his claims
were barred by the Act's public disclosure provision and
that the Village was immune from liability based on section
2-106 of the Illinois Local Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS
10/2-106 (West 2014)). Based on the following, we reverse and
remand for further proceedings.
During the relevant time period, relator was a retired Lyons
Township police officer. From June 2014 to October 2014,
relator submitted a number of Freedom of Information Act
(FOIA) requests. In response, relator received a 2014-2016
contract for police services between the Village and Lyons
Township, as well as copies of traffic tickets written by the
Village while in Lyons Township. The contract expressly
stated that its purpose was "to provide mobile,
well-equipped and trained police officers from [the Village]
police department to patrol and provide [p]olice [p]rotection
in unincorporated areas within [Lyons Township] on a contract
basis." Pursuant to the terms of the contract, the
Village was to provide a minimum of 3, 120 "man hours
per year" in police services for which Lyons Township
would compensate a specified dollar amount. Then, on February
11, 2015, relator filed a lawsuit, asserting that the Village
had billed Lyons Township for police services not actually
provided and that the Village retained revenue from tickets
written within Lyons Township in violation of the contract.
The Village responded by filing a section 2-619 motion to
dismiss the suit. The circuit court granted the motion with
prejudice, finding relator's claims were barred by the
public disclosure provision of the Act because relator's
investigation was based on records obtained under FOIA. In
addition, the circuit court found the Village was immune from
any liability pursuant to section 2-106 of the Tort Immunity
This appeal followed.
Relator contends the circuit court erred in dismissing his
claims where the public disclosure provision of the Act and
section 2-106 of the Tort Immunity Act do not apply to his
A motion to dismiss pursuant to section 2-619 admits the
legal sufficiency of the complaint, but asserts an
affirmative matter to otherwise defeat the claim. Patrick
Engineering, Inc. v. City of Naperville, 2012
IL 113148, ¶ 31. In considering a section 2-619 motion
to dismiss, a court reviews all pleadings and supporting
documents in a light most favorable to the nonmoving party.
Van Meter v. Darien Park District, 207 Ill.2d 359,
367-68 (2003). In so doing, the court must determine whether
the existence of a genuine issue of material fact precludes
dismissal or, absent such an issue of fact, whether the
asserted affirmative matter makes dismissal proper as a
matter of law. Kedzie & 103rd Currency Exchange, Inc.
v. Hodge, 156 Ill.2d 112, 116-17 (1993). We
review the dismissal of a complaint pursuant to section 2-619
de novo. Id. at 116.
I. False Claims Act
10 The Illinois False Claims Act is an anti-fraud statute
modeled after the federal False Claims Act (31 U.S.C.
§§ 3729-3733 (2006)). State ex rel. Schad,
Diamond & Shedden, P.C v. National Business Furniture,
LLC, 2016 IL App (1st) 150526, ¶ 28. Pursuant to
the Act, a party that perpetrates fraud against the State is
liable for civil penalties and triple damages. 740 ILCS
175/3(a)(1) (West 2014). A claim under the Act may be raised
on the State's behalf by the Attorney General or by a
private person, known as a "relator, " in a qui
tarn action. 740 ILCS 175/4(a)-(c) (West 2014). With
regard to a qui tarn action, the State may choose to
intervene or, as in this case, may allow the relator to
proceed with the litigation. 740 ILCS 1757(b)(4) (West 2014).
In the latter, the relator is considered a party to the
action and is entitled to a percentage of the proceeds or
settlement if the lawsuit is successful. 740 ILCS
175/4(c)(1), (d) (West 2014).
11 The following provisions of the Act are relevant to our
analysis and are considered the public disclosure bar to
qui tarn actions:
"(4)(A) The court shall dismiss an action or claim under
this Section, unless opposed by the State, if substantially
the same allegations or transactions as alleged in the action
or claim were publicly disclosed:
(ii) in a State legislative, State Auditor General, or other
State report, hearing, audit, or investigation; or
unless the action is brought by the Attorney General or the
person bringing the action is an original source of the
(B) For purposes of this paragraph (4), 'original
source' means an individual who either (i) prior to a
public disclosure under subparagraph (A) of this paragraph
(4), has voluntarily disclosed to the State the information
on which allegations or transactions in a claim are based, or
(ii) has knowledge that is independent of and materially adds
to the publicly disclosed allegations or transactions, and
who has voluntarily provided the information to the State
before filing an action under this Section." 740 ILCS
175/4(e)(4) (West 2014).
defines "State" as:
"(a) 'State' means the State of Illinois; any
agency of State government; the system of State colleges and
universities, any school district, community college
district, county, municipality, municipal corporation, unit
of local government, and any combination of the above under
an intergovernmental agreement that includes provisions for a
governing body of the agency created by the agreement."
740 ILCS 175/2 (West 2014).
there are four inquiries that must be conducted by a court to
determine whether it has jurisdiction to hear a qui
tarn suit. State ex rel. Beeler, Schad &
Diamond, P.C. v. Target Corp.,367 Ill.App.3d 860, 868
(2006); see also Glaser v. Wound Care Consultants,
Inc.,570 F.3d 907, 913 (7th Cir. 2009). The questions
are: (1) whether the alleged "public disclosure"
contains allegations or transactions from one of the listed
sources of section 4(e)(4)(A) of the False Claims Act (740
ILCS 175/4(e)(4)(A) (West 2014)); (2) whether the alleged
disclosure was made "public" within the meaning of
the False Claims Act; (3) whether the relator's complaint
is "based upon" the "public disclosure";
and (4) if the answer is positive for the prior three