Court of Appeals of Illinois, First District, Third Division
MATTHEW GORAL, KEVIN BADON, MICHAEL MENDEZ, MILAN STOJKOVIC, DAVID EVANS III, FRANK DONIS, and LASHON SHAFFER, on behalf of themselves and others similarly-situated, Plaintiffs-Appellants,
THOMAS J. DART (Official and Individual Capacity); COOK COUNTY, ILLINOIS; the COOK COUNTY SHERIFF'S MERIT BOARD; and TONI PRECKWINCKLE (Official and Individual Capacity), Defendants-Appellees
from the Circuit Court of Cook County. No. 17 CH 15546
Honorable Sophia H. Hall, Judge Presiding.
JUSTICE delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Cobbs
concurred in the judgment and opinion.
1 Plaintiffs here are employees of the Cook County Sheriff,
whom the Sheriff has charged with disciplinary infractions.
From the outset of their administrative cases before the Cook
County Sheriff's Merit Board (Board), almost all of which
remain pending, plaintiffs have challenged the authority of
the Board to hear their cases, based on claims that the Board
is illegally constituted. They also filed a separate
lawsuit-the one before us-likewise challenging the
Board's authority to adjudicate their cases.
2 The trial court dismissed the complaint for lack of
subject-matter jurisdiction, reasoning that plaintiffs were
required to first exhaust their administrative remedies
before proceeding with this claim.
3 In addition to urging us to affirm on this basis, the
Sheriff principally argues that the complaint's challenge
to the Board's authority is barred by the "de
facto officer" doctrine, which this court has
employed to reject several similar challenges by
Sheriff's employees to the Board's authority in the
last two years.
4 We hold that plaintiffs may proceed with nearly all of
their claims in this lawsuit, notwithstanding their failure
to exhaust administrative remedies. And we find the
"de facto officer" doctrine inapplicable
to this matter. We affirm in part as modified, reverse in
part, and remand with instructions.
6 The sequence of events is critical to our analysis. Some of
the facts are subject to judicial notice. See Thurman v.
Department of Public Aid, 25 Ill.App.3d 367, 370 (1977).
Others come from allegations in the complaint, which we
accept as true, as the complaint was dismissed at the
pleading stage. Callaghan v. Village of Clarendon
Hills, 401 Ill.App.3d 287, 290 (2010).
7 On February 3, 2016, Sheriff Dart filed charges against one
of the plaintiffs in this case, Frank Donis, and referred him
to the Board for termination proceedings. Seven months later,
in September 2016, Sheriff Dart filed individual complaints
against four other plaintiffs in this case-Matthew Goral,
Kevin Badon, Michael Mendez, and Milan Stojkovic-seeking to
terminate each employee.
8 Five days after Goral, Badon, Mendez and Stojkovic were
charged, on September 23, 2016, we issued our first decision
in Taylor v. Dart, 2016 IL App (1st) 143684,
vacated, 77 N.E.3d 86 (Ill. 2017). Taylor, a
Sheriff's employee who was terminated by the Board in a
final administrative decision, argued in court that the
Board's actions were void because the Board's
composition violated state law. He argued that one of the
Board members, Mr. Rosales, had been appointed on an interim
basis, but state law did not provide for interim
9 We agreed. We held that the interim appointment of Rosales
violated state law. Id. ¶ 36. And we held that
the illegal composition fatally compromised the Board's
authority to act, rendering its final decision against Taylor
void. Id. ¶ 47.
10 The Sheriff appealed. On January 25, 2017, the supreme
court denied review but, in a supervisory order, directed
this court to vacate our judgment and decide an issue we had
declined to consider regarding Cook County's home-rule
11 On February 21, 2017, the Sheriff suspended plaintiff
David Evans III. The next day, the Sheriff filed a complaint
against Evans with the Board, seeking his termination.
12 Our second decision in Taylor, 2017 IL App (1st)
143684-B, was issued on May 12, 2017.Our holding was the
same: the interim appointment of Rosales violated state law,
and the Board's final decision terminating Taylor was
void, because the Board lacked statutory authority to issue
the decision. Id. ¶¶ 37, 46.
13 On July 20, 2017, Sheriff Dart suspended without pay the
last of our plaintiffs, Lashon Shaffer, and filed a complaint
with the Board seeking Shaffer's termination.
14 During the preliminary stages of their administrative
proceedings before the Board, plaintiffs raised arguments
challenging the Board's statutory authority to hear their
cases, based in part but not entirely on Taylor. The
Board thus far has declined to consider those arguments.
15 More importantly, in November 2017, plaintiffs initiated
this lawsuit by filing a verified complaint for declaratory,
injunctive, and monetary relief against the Sheriff. At least
in part, the complaint challenged the legal composition of
the Board, and thus the Board's authority to enter final
decisions against them.
16 On December 8, 2017, the General Assembly, in response to
our decision in Taylor, amended the state law
governing Board appointments. See Pub. Act 100-562, § 5
(eff. Dec. 8, 2017) (amending 55 ILCS 5/3-7002). The
amendment worked three changes: (1) it permitted the Sheriff
to make interim appointments to the Board, (2) it abolished
all existing terms of each member of the Board, and (3) it
created a new schedule for staggering terms. Id.
17 On December 13, 2017, the Sheriff appointed a new Board
(many of whom had been on the previous Board as well).
18 On January 23, 2018, the Sheriff filed, and the new Board
received, "amended" complaints against each of the
19 On February 26, 2018, plaintiffs filed a second amended
verified complaint against the Sheriff, the one before this
court now, to which we will refer simply as the
"complaint." The complaint, among other things,
challenged the legal composition of the Board-both the
previous Board before which their charges were originally
brought and the new Board hearing the "amended"
charges against them.
20 The complaint's allegations involving the previous
Board were that (a) some members were illegal interim
appointees, essentially a Taylor objection; (b) the
Board had only five members, not the required seven; (c) some
of the members' terms were not staggered as required by
state law; and (d) the Board's chairperson and secretary
held their positions longer than permitted under state law.
21 The complaint's allegations against the new Board were
(a) the Board's previous lack of authority could not be
"cured" by filing "amended" charges with
a new Board; (b) the Board's political composition
violates state law; (c) the Board's chairperson and
secretary continue to hold their positions longer than
permitted under state law; (d) the Board created "fatal
due process problems" by now requiring plaintiffs to pay
the costs of their own hearing transcripts; and (e) the Board
is biased, in "lockstep" with the Sheriff's
22 On the Sheriff's motion, the circuit court dismissed
the complaint for lack of subject-matter jurisdiction. The
court ruled that plaintiffs were required to exhaust their
administrative remedies before raising these claims outside
the context of administrative review.
23 Since that ruling and while this appeal was pending, the
Board decided Evans's case. The Board found in favor of
Evans and ordered him reinstated effective February 22, 2017.
The Sheriff has appealed that decision, but that decision is
not before us.
25 The trial court dismissed the complaint for lack of
subject-matter jurisdiction pursuant to section 2-619(a)(1)
of the Code of Civil Procedure. See 735 ILCS 5/2-619(a)(1)
(West 2018). A section 2-619 motion admits the legal
sufficiency of the complaint; we accept as true the
complaint's allegations and interpret them in the light
most favorable to plaintiffs. American Family Mutual
Insurance Co. v. Krop, 2018 IL 122556, ¶ 13; In
re Appointment of Special Prosecutor, 2019 IL 122949,
¶ 28. Our review is de novo. Krop,
2018 IL 122556, ¶ 13.
26 The basis for the trial court's ruling was that each
plaintiff had pending an administrative hearing that had not
been completed, and that plaintiffs were required to exhaust
their administrative remedies before they could challenge the
agency's statutory authority before a court. The Sheriff
defends that ruling but adds other bases for affirmance as
well, as we may affirm on any basis in the record.
McDonald v. Lipov, 2014 IL App (2d) 130401, ¶
14. We will begin with the basis articulated by the trial
court, lack of subject-matter jurisdiction based on
plaintiffs' failure to exhaust administrative remedies,
because the question of the court's jurisdiction should
be resolved as a threshold question. People v.
Shinaul, 2017 IL 120162, ¶ 7.
28 The court's subject-matter jurisdiction refers to its
power to hear and resolve cases. In re Luis R., 239
Ill.2d 295, 300 (2010). Generally, the constitution gives the
court original subject-matter jurisdiction over all
"justiciable matters." Ill. Const. 1970, art. VI,
§ 9. One exception, however, is the review of
administrative actions, which is governed by statute.
Id.; see Belleville Toyota, Inc. v. Toyota Motor
Sales, U.S.A., Inc., 199 Ill.2d 325, 334 (2002).
29 The Administrative Review Law governs judicial review of
most final administrative decisions, including final
decisions of the Board here. See 735 ILCS 5/3-101 et
seq. (West 2018). More to the point, the Administrative
Review Law is "the sole and exclusive method to obtain
judicial review of a final administrative decision" by
the Board. Stykel v. City of Freeport, 318
Ill.App.3d 839, 843 (2001).
30 Thus, generally speaking, a party aggrieved by agency
action cannot involve the courts until the administrative
process has run its course-that is, until the plaintiff has
exhausted all administrative remedies. Castaneda v.
Illinois Human Rights Commission, 132 Ill.2d 304, 308
(1989). But the exhaustion requirement is subject to six
exceptions. Id. at 309. Two are relevant here.
First, a party need not exhaust when "the agency's
jurisdiction is attacked because it is not authorized by
statute." Id. Second, exhaustion is excused
when "the agency cannot provide an adequate remedy or
where it is patently futile to seek relief before the
32 We first consider whether the exhaustion exception for
challenges to an agency's authority applies to this case.
In the context of administrative agencies, the term
"jurisdiction" refers to an agency's statutory
authority to act. Van Dyke v. White, 2019 IL 121452,
¶ 43 n.4; Business & Professional People for the
Public Interest v. Illinois Commerce Commission, 136
Ill.2d 192, 243 (1989); Mercury Sightseeing Boats, Inc.
v. County of Cook, 2019 IL App (1st) 180439, ¶ 54
("When we speak of an administrative agency's
'jurisdiction,' we mean its authority to act.").
Agencies have no inherent or common-law authority; their
power is limited to that given them by the legislative body
that created them. ...