Acevedo v. Cook Cnty. Sheriff's Merit Bd.

• Decision Date: 07 May 2019
• Docket Number: No. 1-18-1128,1-18-1128
• Citation: 129 N.E.3d 658,2019 IL App (1st) 181128,432 Ill.Dec. 440
• Parties: Joseph ACEVEDO, Enrique Meza, and Tamara Wuerffel, as Individuals and on Behalf of All Others Similarly Situated, Plaintiffs, v. The COOK COUNTY SHERIFF'S MERIT BOARD; James P. Nally, Chairman; Byron Brazier, Vice-Chairman; John J. Dalicandro, Secretary; Gray Mateo-Harris, Board Member; Vincent T. Winters, Board Member; Jennifer Bae, Board Member; Patrick Brady, Board Member; Kim R. Widup, Board Member; Thomas J. Dart, Sheriff of Cook County in His Official and Individual Capacity ; and The County of Cook, a Unit of Local Government and Indemnor, Defendants-Appellees (Joseph Acevedo, Plaintiff-Appellant).
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 181128

129 N.E.3d 658

432 Ill.Dec. 440

Joseph ACEVEDO, Enrique Meza, and Tamara Wuerffel, as Individuals and on Behalf of All Others Similarly Situated, Plaintiffs,

v. The COOK COUNTY SHERIFF'S MERIT BOARD; James P. Nally, Chairman; Byron Brazier, Vice-Chairman; John J. Dalicandro, Secretary; Gray Mateo-Harris, Board Member; Vincent T. Winters, Board Member; Jennifer Bae, Board Member; Patrick Brady, Board Member; Kim R. Widup, Board Member; Thomas J. Dart, Sheriff of Cook County in His Official and Individual Capacity ; and The County of Cook, a Unit of Local Government and Indemnor, Defendants-Appellees(Joseph Acevedo, Plaintiff-Appellant).

No. 1-18-1128

Appellate Court of Illinois, First District, SECOND DIVISION.

May 7, 2019

Jennifer W. Sprengel, Daniel O. Herrera, and Christopher P.T. Tourek, of Cafferty Clobes Meriwether & Sprengel LLP, of Chicago, and Dana L. Kurtz, Heidi Karr Sleper, and Jacob Exline, of Kurtz Law Offices, Ltd., of Hinsdale, for appellant.

Stephanie A. Scharf, Sarah R. Marmor, and George D. Sax, of Scharf Banks Marmor, LLC, of Chicago, for appellee Thomas J. Dart.

Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeil Stein, Natalie N. Ellis, Nile N. Miller, and Jay Rahman, Assistant State’s Attorneys, of counsel), for other appellees.

JUSTICE PUCINSKI delivered the judgment of the court, with opinion.

¶ 1 In this putative class action, plaintiff Joseph Acevedo, on his own behalf and on behalf of those similarly situated, alleges that employment termination decisions issued by the Cook County Sheriff's Merit Board (Board) were void because the Board was illegally constituted at the time it issued those decisions. The trial court dismissed Acevedo's first amended complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615 (West 2016) ), on the basis that it lacked jurisdiction over Acevedo's putative class action. The trial court concluded that its jurisdiction to review an administrative decision was limited to those review actions brought under the Administrative Review Law (Review Law) ( 735 ILCS 5/3-102 (West 2016) ); thus, it lacked jurisdiction to entertain Acevedo's collateral putative class action. Acevedo challenges this conclusion, and for the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On January 12, 2015, the Board issued a decision terminating Acevedo's employment as a Cook County correctional officer. Acevedo filed an action for direct review under the Review Law, and on February 24, 2016, the trial court affirmed the Board's decision.

¶ 4 Over a year later, on May 18, 2017, Acevedo instituted the present action. Five months later, on October 3, 2017, Acevedo, joined by Enrique Meza and Tamara Wuerffel, filed their first amended complaint. In that first amended complaint, Acevedo alleged that he was a former Cook County correctional officer, whose employment was terminated by Board decision on January 12, 2015. He further alleged that his Board decision terminating his employment was null and void because the Board was illegally constituted at the time, in that former Board member John R. Rosales had not been properly appointed under the Cook County Sheriff's Merit Board Act (Merit Board Act) ( 55 ILCS 5/3-7001 et seq. (West 2014)). Meza alleged that he was also a former Cook County correctional officer, whose termination by the Board was null and void because the Board was illegally constituted at the time, in that defendants Gray Mateo-Harris and Patrick Brady had been appointed for terms of less than six years. Wuerffel alleged that she was a former Cook County Sheriff's police sergeant, whose termination by the Board was null and void because the Board was illegally constituted at the time, in that Brady had been appointed for a term of less than six years. The three named plaintiffs—Acevedo, Meza, and Wuerffel—also alleged, on behalf of those unnamed class members similarly situated, that any other terminations or suspensions by the Board in which Rosales, Mateo-Harris, and Brady participated were null and void, as were any terminations or suspensions by the Board in which defendants Byron Brazier, John J. Dalicandro, and Kim R. Widup participated, as their appointments were improperly retroactively approved. Plaintiffs sought a declaration that the Board's decisions were null and void and that they were entitled to "make-whole relief," including reinstatement and back pay. Plaintiffs also sought declarations that their terminations by an illegally constituted board violated their rights to due process and equal protection, damages, attorney fees, and costs.

¶ 5 Shortly after the filing of the first amended complaint, plaintiffs filed a motion for class certification, which the trial court entered and continued.

¶ 6 In December 2017, Meza and Wuerffel voluntarily dismissed their claims against the defendants.

¶ 7 On January 12, 2018, defendant Thomas J. Dart filed an amended motion to dismiss the first amended complaint pursuant to section 2-615 of the Code. Defendants the County of Cook and the Board joined in Dart's motion to dismiss. In that motion, defendants argued that the equitable remedies and monetary damages sought by Acevedo were not authorized by law; rather, at most, he was only entitled to a rehearing in front of a properly constituted Board. They also argued that the trial court's jurisdiction was limited under the Review Law to direct review of an administrative agency's specific decision and, therefore, the trial court lacked jurisdiction to consider a putative class action. Third, defendants argued that Acevedo failed to plead cognizable claims for equal protection and due process violations. Finally, defendants argued that Acevedo was improperly attempting to do an end-run around the trial court's prior administrative review of his termination.

¶ 8 In response, Acevedo, individually and on behalf of the putative class, argued that every action taken by the Board while it was illegally constituted, including receiving charges and issuing decisions on termination and suspension, was null and void, and therefore, plaintiffs were entitled to reinstatement and back pay. He also argued that the Review Law did not apply to his claims, either to defeat the trial court's jurisdiction or to otherwise limit his claims, because he was not attacking the Board's actions on their merits, but was, instead, arguing that the Board lacked jurisdiction to take any action whatsoever. Thus, the Review Law did not preclude him from bringing a class action or defeat the trial court's jurisdiction. Finally, he argued that his prior action for administrative review was not his only opportunity to challenge the Board's decisions on the basis that the Board was improperly constituted because void orders could be challenged at any time, either directly or collaterally.

¶ 9 In their reply, defendants argued that Acevedo had an opportunity to present his claim regarding the illegally constituted Board during the initial direct review of his termination decision and that he should not be given a second bite at the apple. More specifically, defendants argued that the trial court's affirmance of Acevedo's termination in the initial direct review action was res judicata to Acevedo's current claims; even if res judicata did not apply, Acevedo's current claims were barred under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) ( 745 ILCS 10/8-101(a) (West 2016)); the trial court lacked jurisdiction to consider any claims outside of Acevedo's initial direct review or to award the relief sought by Acevedo; and the appropriate remedy for Acevedo's claim would be a rehearing in front of a properly constituted Board.

¶ 10 The trial court permitted Acevedo to file a surreply on the issue of res judicata . In that surreply, Acevedo argued that res judicata did not apply because the Board's termination decision was void ab initio . Moreover, Acevedo argued, res judicata should not be applied on equitable grounds because the improper appointments of Board members were not known until recently. Acevedo also argued that the Tort Immunity Act did not bar his current claims because the void decision of the Board could be attacked at any time, his claims did not sound in tort, and the Tort Immunity Act did not bar claims for equitable relief. In addition, he argued that even if the Tort Immunity Act did apply, his claim was timely brought because he filed it within a year of discovering the full extent of defendants' alleged unlawful conduct.

¶ 11 A hearing was held on defendants' motion to dismiss. After hearing arguments from the parties, the trial court issued its ruling, granting defendants' motion. In doing so, the trial court acknowledged that its jurisdiction over administrative review cases is strictly limited to that permitted by the Review Law and that it lacked original jurisdiction over any action seeking any form of administrative review, such as Acevedo's class action claims for declaratory judgment. Concluding that Acevedo's claims were, at their core, claims for administrative review and that they were not brought pursuant to the Review Law, the trial court determined that it lacked jurisdiction.

¶ 12 Not seeking to remedy the defects found by the trial court but instead wanting only to include additional allegations of fact regarding improper appointments to the Board for purposes of appeal, Acevedo requested that he be granted leave to amend his complaint. The trial court granted his request. Thereafter, Acevedo filed a second amended complaint, which removed certain Board members as defendants, added different Board defendants, and modified its allegations regarding appointments.

Defendants moved to strike or dismiss the second amended complaint. At the hearing on that motion, the trial court concluded that it would confuse the record to allow the matter to go up on appeal with two...