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Bless v. Cook County Sheriff's Office

United States District Court, N.D. Illinois, Eastern Division

September 12, 2019

ROBERT BLESS, Plaintiff,



         The de facto officer doctrine has existed for over a century in common law, but its development in Illinois has not been without controversy. Recent decisions by the Illinois Appellate Court require us to revisit that history here.

         This Court previously entered summary judgment in favor of Plaintiff Robert Bless as to his claim seeking review of an administrative decision by the Cook County Sheriff's Merit Commission (“Merit Board”) that terminated his employment as a police officer with the Cook County Sheriff's Office (“CCSO”). The Court vacated and remanded the Merit Board's decision because it concluded, pursuant to Taylor v. Dart, 81 N.E.3d 1 (Ill.App.Ct. 2017), that the Merit Board had been illegally constituted when it issued its decision terminating Bless.

         Defendants have moved to reconsider the Court's opinion, arguing that recent developments in Illinois law compel the Court to uphold the Merit Board's decision as having been made with de facto authority. For the reasons that follow, Defendants' motion to reconsider [400] is granted.


         The Court assumes the reader's familiarity with its prior opinions in this case, particularly with its decision entering summary judgment in favor of Bless on Count IV, his administrative-review claim. See 7/19/18 Mem. Op. & Order, ECF No. 352. In brief, this case arises from Bless's employment as an officer for the CCSO from 1997 until the Merit Board voted to terminate him in May 2013. The basis for the termination was that Bless had received workers' compensation benefits and salary while simultaneously working unauthorized second jobs from December 2008 through 2010. R. 18-28.[1]

         The Merit Board is an administrative body created by Illinois statute, and its members are appointed by the Cook County Sheriff and approved by the Cook County Board of Commissioners (“County Board”). 55 Ill. Comp. Stat. 5/3-7002 (West 2012). At the time of the decision in Bless's case, the Merit Board consisted of seven members appointed for six-year terms “and until their successors are appointed and qualified for a like term.” Id.

         In May 2011, Cook County Sheriff Thomas Dart requested approval from the County Board to appoint John R. Rosales to the Merit Board on an interim basis to fill the vacancy of Commissioner Daniel Lynch, whose term was set to expire on March 19, 2012. Taylor, 81 N.E.3d at 4. The County Board approved Rosales's appointment on June 1, 2011. Id. After Commissioner Lynch's term expired, Sheriff Dart did not reappoint Rosales to the Merit Board, yet Rosales continued to serve until at least May 2017. Id.

         In Bless's case, proceedings began in October 2011, when Sheriff Dart filed formal charges with the Merit Board. R. 18-23. The Merit Board-including Rosales-issued a written decision on May 6, 2013, terminating Bless's employment with the CCSO. R. 24-28. Bless filed suit in this Court soon thereafter seeking, among other things, review of the Merit Board's decision pursuant to Illinois's Administrative Review Law, 735 Ill. Comp. Stat. 5/3-110. See Compl., ECF No. 1.

         In May 2017, the Illinois Appellate Court concluded in Taylor that Rosales's appointment did not comply with 55 Ill. Comp. Stat. 5/3-7002 because the statute required appointment to a six-year term, yet Rosales was appointed only on an interim basis. 81 N.E.3d at 4-6. Accordingly, the Illinois Appellate Court concluded that the decision then under review-the termination of plaintiff Percy Taylor-was void due to Rosales's continued tenure and participation. Id. at 10. The court “vacated and remanded for a hearing before a legally constituted Merit Board.” Id.

         By that time, Bless's administrative-review claim was ripe for a decision by this Court. In his summary-judgment briefing as to that claim, Bless argued for the first time that, under Taylor, Rosales's appointment rendered the Merit Board's decision void. See Pl.'s Mem. Supp. Admin. Review Claim at 11, ECF No. 291.

         At the time of the Court's decision, no other court had passed on the effect of Taylor on subsequent challenges to Rosales's appointment. Accordingly, the Court accepted Taylor as a statement of the law in Illinois and ruled in favor of Bless as to his administrative-review claim. See 7/19/18 Mem. Op. & Order at 8. In accordance with Taylor and other precedent, the Court vacated the Merit Board's decision and remanded for a hearing before a lawfully constituted Merit Board. Id.

         Meanwhile, the parties completed briefing on Bless's remaining claims for discrimination and retaliation pursuant to Title VII and 42 U.S.C. § 1983. After a discussion with the parties, the Court concluded that Bless's race-discrimination claims were likely to be affected by the remanded Merit Board proceedings and, therefore, stayed briefing on those claims until the conclusion of that process. See 9/20/18 Minute Entry, ECF No. 365. The Court allowed re-briefing, however, as to Bless's claim for retaliation under the First Amendment and § 1983. Id.

         Since then-nearly a year later-the parties have informed the Court that proceedings have not resumed before the Merit Board, with each side blaming the other for its failure to move for a “new trial, ” and the Merit Board seeking “guidance” on whether to “place Plaintiff's case back on its docket.” See Joint Status Report, ECF No. 412. Additionally, although the parties have completed briefing as to Bless's retaliation claim, Defendants have also moved to reconsider the Court's administrative-review opinion. Because the validity of the Merit Board proceedings affects nearly every claim in this case, the Court considers Defendants' motion [400].

         Legal Standard

         District courts have discretion to entertain motions to reconsider prior decisions. See Patrick v. City of Chi., 103 F.Supp.3d 907, 911 (N.D. Ill. 2015); Fed.R.Civ.P. 54(b); see also Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983) (“[E]very order short of a final decree is subject to reopening at the discretion of the district judge.”). But while motions for reconsideration are permitted, “they are disfavored, ” Patrick, 103 F.Supp.3d at 911, and serve a very limited purpose: correcting manifest errors of law or fact and presenting newly discovered evidence. Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996).

         This is a heavy burden for the moving party and makes a motion for reconsideration an inappropriate medium to “rehash” past arguments, Patrick, 103 F.Supp.3d at 912 (citations omitted), or revisit improvident strategic decisions made earlier, Birdo v. Gomez, No. 13 C 6864, 2016 WL 6070173, at *1 (N.D. Ill. Oct. 17, 2016) (citation omitted). Accordingly, motions for reconsideration will be granted only where “the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension.” Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). One such instance is when there has been “a change in, or clarification of, law that makes clear that the earlier ruling was erroneous, ” Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 572 (7th Cir. 2006)). Given these exacting standards, issues appropriate for reconsideration “rarely arise and the motion to reconsider should be equally rare.” Bank of Waunakee, 906 F.2d at 1191 (citation omitted).


         In their motion to reconsider, Defendants contend that Taylor no longer controls the outcome of Bless's Merit Board proceedings. Instead, they point out, the Illinois Appellate Court has since confined Taylor to its facts. In Lopez v. Dart, 118 N.E.3d 580 (Ill.App.Ct. 2018), the Illinois Appellate Court held that the “de facto officer doctrine” prevents the invalidation of any Merit Board decisions involving Rosales, except as to the “first challenger of the improper appointment, ” namely, Percy Taylor. Id. at 594-95. Bless, however, contends that this Court should not reconsider its earlier decision because Defendants have waived reliance on the de facto officer doctrine, Lopez is not controlling, and the doctrine is inapplicable to the facts of this case.

         I. Waiver

         As an initial matter, Bless contends that Defendants cannot rely on the de facto officer doctrine because they failed to raise it in response to his administrative-review claim in the first instance. The Court disagrees. First, although the de facto officer doctrine predates the Taylor and Lopez decisions, Lopez was the first case to apply it to the situation at hand. See id. Before that, the court in Taylor had held clearly that the de facto officer doctrine did not apply, at least on the facts of that case. See 81 N.E.3d at 10. Accordingly, Defendants' failure to raise the de facto officer doctrine at a time when Taylor was the only relevant precedent was at least understandable.

         Not only that, but even if the Court were to hold that Defendants waived reliance on the de facto officer doctrine, it would be appropriate in this situation to overlook the waiver. Indeed, the Illinois Appellate Court has disregarded waiver or forfeiture in two of its cases on this very issue, explaining that “forfeiture serves as a limit on the parties, not on the court.” Cruz v. Dart, 127 N.E.3d 921, 930 (Ill.App.Ct. 2019); see Lopez, 118 N.E.3d at 589 (“[T]he waiver rule may be relaxed in order to maintain a uniform body of precedent or where the interests of justice so require.”). In those cases, the appellate court found it appropriate to reach the improper appointments and the de facto officer doctrine, because those issues went to “the validity of the [Merit Board's] decision.” Cruz, 127 N.E.3d at 930. The same is true here-in order to avoid vacating a possibly valid Merit Board order, the Court will take this opportunity to address all the relevant legal issues impacting the board's authority to issue that order. See Fleishman v. Cont'l Cas. Co., 698 F.3d 598, 608 (7th Cir. 2012) (explaining that a waiver is enforced “unless the interests of justice require otherwise”).

         II. De Facto ...

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