People ex rel. Ulrich v. Stukel

• Decision Date: 31 December 1997
• Docket Number: Nos. 1-97-0698,1-97-1729,s. 1-97-0698
• Citation: 689 N.E.2d 319,294 Ill.App.3d 193
• Parties: , 228 Ill.Dec. 447 PEOPLE ex rel. William J. ULRICH, Sr., Plaintiff-Appellant, v. James J. STUKEL, as president of the University of Illinois; and The Board of Trustees of the University of Illinois, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 319

689 N.E.2d 319

294 Ill.App.3d 193, 228 Ill.Dec. 447

PEOPLE ex rel. William J. ULRICH, Sr., Plaintiff-Appellant, v. James J. STUKEL, as president of the University of Illinois and The Board of Trustees of the University of Illinois, Defendants-Appellees.

Nos. 1-97-0698, 1-97-1729.

Appellate Court of Illinois First District, Fifth Division.

Dec. 31, 1997.

Rehearing Denied Jan. 28, 1998.

Mark S. Simon and Jack Joseph, of counsel, Chicago, for Plaintiff-Appellant.

Baker and McKenzie, Chicago (Michael A. Pollard and Brent A. Hannafan, of counsel), The Office of University Counsel, Urbana (Mark D. Henss, for counsel), for Defendants-Appellees.

Presiding Justice HOFFMAN delivered the opinion of the court:

The plaintiff filed the instant action seeking injunctive and/or declaratory relief under the Freedom of Information Act (hereinafter "FOIA" or "the Act") (5 ILCS 140/1 et seq. (West 1994)), alleging that he was entitled to certain records held by the defendants, the board of trustees of the University of Illinois, and James Stukel, the University president. The defendants initially declined to produce the requested documents claiming certain exemptions under the Act; however, prior to trial, they waived the exemptions previously claimed and produced the documents sought by the plaintiff. The trial court then entered an order dismissing the case as moot, and denying a request for attorney fees filed by the plaintiff under section 11(i) of the Act (5 ILCS 140/11(i) (West 1994)). The plaintiff appealed under our docket No. 1-97-0698.

Thereafter, the plaintiff filed a petition under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 1994)), alleging the existence of new facts warranting relief from the initial judgment. The court denied the relief requested by the plaintiff and the plaintiff again appealed, under docket No. 1-97-1729. We consolidated the two appeals. The plaintiff now contends that the court erred in (1) refusing to consider his FOIA claim under the "public interest" exception to the mootness doctrine; (2) denying him relief under Code section 2-1401; and (3) denying his request for attorney fees under section 11(i) of the Act.

The plaintiff's FOIA request arose from an underlying suit he filed as a taxpayer against the University of Illinois (hereinafter "University") and Bruce Bosmann, an associate dean of its College of Medicine. People ex rel. William J. Ulrich Sr. v. Bruce Bosmann, No. 94 CH 5855 (Cir. Ct. Cook Co.). The Bosmann case was initially dismissed, but this court reversed the dismissal and remanded the case for further proceedings (People ex rel. William J. Ulrich, Sr. v. Bosmann, 279 Ill.App.3d 36, 215 Ill.Dec. 722, 664 N.E.2d 119 (1996)). The Bosmann case alleged that two former professors at the University's medical school, with the approval of Bosmann and other University officials, illegally removed medical research equipment belonging to the State when they transferred to the University of Texas. According to the plaintiff, the conduct of the professors and University officials was violative of the Recovery of Fraudulently Obtained Public Funds Act (735 ILCS 5/20-101 et seq. (West 1992)).

While the Bosmann suit remained pending, the plaintiff submitted the FOIA request at issue, seeking the following:

"[A]ll University monthly accounting statements * * * reflecting charges incurred in connection with:

a. the disbursement vouchers reflecting payments to the law firm of Keck, Mahin & Cate in connection with the suit generally known as [the Bosmann suit], and any appeals thereof;

b. the disbursement vouchers reflecting payments to the law firm of Burditt & Radzius, Chartered in connection with [the Bosmann suit], and any appeals thereof; and

c. the disbursement vouchers reflecting payments to the law firm of Siegan Barbakoff Gomberg & Kane, Ltd., in connection with [the Bosmann suit], and any appeals thereof."

According to the plaintiff, he allegedly needed the records to ascertain whether the University was illicitly using its own funds to pay for the defenses of the University defendants in the Bosmann suit. The plaintiff claimed that such funding by the University, in relevant part, circumvented the role of the attorney general under the State Employee Indemnification Act (5 ILCS 350/0.01 et seq. (West 1994)), and violated the University of Illinois Act (110 ILCS 305/7a (West 1994)).

The University's public records officer declined the plaintiff's request under section 7(1)(n) of the Act (5 ILCS 140/7(1)(n) (West 1994)). Section 7(1)(n) exempts from disclosure all "[c]ommunications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation* * *." According to the officer, documents containing information regarding payments to counsel on active cases constituted confidential communications under section 7(1)(n). The plaintiff appealed this decision to University president Stukel, who similarly found the records exempt under section 7(1)(n), and in addition, under section 7(1)(a) of the Act.

On September 23, 1996, the plaintiff filed the instant FOIA suit seeking declaratory and/or injunctive relief based upon the defendants' denial of the requested records. The plaintiff subsequently filed a motion for an in camera inspection of the records. On December 2, 1996, the court ordered that the defendants produce the documents for an in camera inspection, and set a January 6, 1997, hearing date on the complaint.

On December 23, 1996, the defendants notified the court and the plaintiff that they were waiving the exemptions previously asserted under the Act and were producing the documents sought by the plaintiff. The plaintiff then filed an application for reimbursement of its attorney fees pursuant to FOIA section 11(i). 5 ILCS 140/11(i) (West 1994).

The defendants moved to dismiss the case as moot in light of their voluntary production of the records sought in the complaint. In response, the plaintiff contended that the case was not moot because his demand for attorney fees remained unresolved. The plaintiff also argued that in any event, the court should consider the case under the "public interest exception" to the mootness doctrine, because his future entitlement to the requested documents or others similar to them were matters of public concern that were likely to recur.

On January 6, 1997, following a hearing, the court entered an order denying the plaintiff's application for attorney fees, and dismissing the case as moot. The court found that the case did not fall under the public interest exception to the mootness doctrine because, in relevant part, the plaintiff had failed to show that the issue was one that was likely to recur. The plaintiff's motion to reconsider was subsequently denied, and he filed a notice of appeal.

On March 11, 1997, the plaintiff filed a section 2-1401 petition to vacate the order of January 6, 1997. He alleged the existence of new facts, namely, the defendants' denial of a FOIA request made subsequent to January 6, which supposedly demonstrated that this case should have been considered under the public interest exception to the mootness doctrine. The trial court disagreed, and denied the requested relief under section 2-1401, finding that the new facts did not alter its determination in the January 6 judgment. The plaintiff appealed from this decision.

The plaintiff first argues that the court erred in dismissing his initial suit as moot. He admits the defendants produced the requested documents, which were accounting statements reflecting the fees the University paid its attorneys in the Bosmann case. He also agrees that, because the requested statements have been released, the question of whether or not they must be produced under FOIA is now moot. However, he urges that this matter should have been considered under the public interest exception to the mootness doctrine.

An issue is moot where an actual controversy no longer exists between the parties or where events have occurred that make it impossible for the court to grant effectual relief. Wheatley v. Board of Education of Township High School District 205, 99 Ill.2d 481, 484-85, 77 Ill.Dec. 115, 459 N.E.2d 1364 (1984); Indlecoffer v. Village of Wadsworth, 282 Ill.App.3d 933, 938-39, 219 Ill.Dec. 674, 671 N.E.2d 1127 (1996). Courts have a responsibility to decide actual controversies by rendering judgments which can be carried into effect; a court should not resolve a question simply to set precedent, or to provide governance for future actions. People ex rel. Partee v. Murphy, 133 Ill.2d 402, 410, 140 Ill.Dec. 873, 550 N.E.2d 998 (1990); see also People ex rel. Sklodowski v. State, 162 Ill.2d 117, 130-31, 205 Ill.Dec. 63, 642 N.E.2d 1180 (1994).

An exception to the mootness doctrine may be applied where the question at issue is one of "substantial public interest". In determining whether this exception applies, courts consider whether (1) the question is of a public nature; (2) an authoritative resolution of the question is desirable for the purpose of guiding public officers, and (3) the question is likely to recur. Lucas v. Lakin, 175 Ill.2d 166, 170, 221 Ill.Dec. 834, 676 N.E.2d 637 (1997); Bonaguro v. County Officers Electoral Board, 158 Ill.2d 391, 395, 199 Ill.Dec. 659, 634 N.E.2d 712 (1994). A clear showing on each of the above criteria is necessary to bring the case within the public interest exception. Bonaguro, 158 Ill.2d at 395, 199 Ill.Dec. 659, 634 N.E.2d 712. Our supreme court invokes the exception only on rare occasions where there is an extraordinary degree of public concern and interest (Murphy, 133 Ill.2d at 410, 140 Ill.Dec. 873, 550 N.E.2d 998; People ex rel. Cairo Turf Club, Inc. v. Taylor, 2 Ill.2d 160, 116 N.E.2d 880 (1954)). In determining whether or not a trial court properly considered the public interest exception, this...