People ex rel. Wofford v. Brown

• Decision Date: 17 February 2017
• Docket Number: No. 1-16-1118,1-16-1118
• Citation: 76 N.E.3d 34,2017 IL App (1st) 161118
• Parties: The PEOPLE of the State of Illinois EX REL. W.C. WOFFORD, Keith Price, and Donald Nesbit, Plaintiffs, v. Lamont D. BROWN; and The City of Harvey, an Illinois Municipal Corporation, Defendants-Appellees (Keith Price, Plaintiff-Appellant).
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 161118

76 N.E.3d 34

The PEOPLE of the State of Illinois EX REL. W.C. WOFFORD, Keith Price, and Donald Nesbit, Plaintiffs,

v. Lamont D. BROWN; and The City of Harvey, an Illinois Municipal Corporation, Defendants-Appellees(Keith Price, Plaintiff-Appellant).

No. 1-16-1118

Appellate Court of Illinois, First District, SIXTH DIVISION.

February 17, 2017

Shiller Preyar Law Offices, of Chicago (Brendan Shiller and Stephen Berrios, of counsel), for appellant.

No brief filed for appellees.

OPINION

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

¶ 1 Plaintiff-appellant, Keith Price, appeals from the denial of a petition for leave to file a quo warranto complaint seeking the removal of defendant-appellee, Lamont D. Brown, from the office of alderman of the fourth ward of defendant-appellee, the City of Harvey (the City). For the following reasons, we reverse and remand.

¶ 2 Mr. Brown was elected alderman of the fourth ward of the City and sworn into office on May 11, 2015, as one of the seven members of the city council (comprised of six aldermen and the mayor). Prior to his election, however, Mr. Brown was convicted of two felonies: possession of a controlled substance in 1991 and possession of a stolen motor vehicle in 1994.

¶ 3 On June 18, 2015, W.C. Wofford, as a citizen and resident of the fourth ward, filed a petition for leave to file a quo warranto complaint seeking the removal of Mr. Brown as alderman. Mr. Wofford alleged in the petition and attached proposed complaint that, under section 3.1-10.5(b) of the Illinois Municipal Code (65 ILCS 5/3.1-10-5(b) (West 2014)), Mr. Brown was ineligible to hold an elected municipal office in that he had been twice convicted of a felony. Mr. Wofford further maintained that, prior to Mr. Brown taking office, written requests had been submitted to the offices of the Illinois Attorney General (AG) and the State's Attorney of Cook County (SA) to bring a quo warranto action against Mr. Brown, but they had failed to do so. Certified records of Mr. Brown's convictions where attached to the petition.

¶ 4 On July 6, 2015, the circuit court granted Mr. Wofford leave to file the proposed quo warranto complaint instanter against defendants-appellees, the City and Mr. Brown. Subsequently, the court entered an order on July 22, 2015, granting Mr. Wofford's emergency motion for a temporary restraining order (TRO) which prohibited Mr. Brown from exercising the powers and authority of the office of alderman. Mr. Brown was not present in court.

¶ 5 On July 28, 2015, Mr. Brown filed a motion to dissolve the TRO arguing, in part, that Mr. Wofford, as a private individual, did not have standing to bring the quo warranto action because the relevant issue was one of public interest and Mr. Wofford had no distinct private interest in the matter. Mr. Brown also maintained that Mr. Wofford was motivated to bring the action for political reasons, as he was aligned with the mayor of the City on certain key issues in opposition to Mr. Brown. The circuit court, on July 30, 2015, granted that motion and entered an order which vacated and dissolved the TRO and set a schedule on a motion to dismiss the complaint due to Mr. Wofford's lack of standing to pursue a quo warranto action.

¶ 6 On August 7, 2015, Mr. Brown filed a motion under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2014) ), to dismiss the action, on the ground that Mr. Wofford lacked standing. The motion argued that the issue raised in the complaint, as to Mr. Brown's eligibility to hold office, was purely one of public interest and could only be brought by the AG or SA. The motion further asserted that, even if the question was not one of public interest, Mr. Wofford's status as a citizen and taxpayer of the fourth ward did not give him standing under established case law.

¶ 7 Mr. Wofford did not respond to the motion. Instead, on August 24, 2015, Mr. Wofford, with Keith Price and Donald Nesbit as additional relators (collectively referred to as plaintiffs-aldermen), filed an amended petition for leave to file a quo warranto complaint seeking to remove Mr. Brown as alderman.¹ In the amended petition, Mr. Price alleged that he is a resident, citizen, and duly elected alderman of the sixth ward of the City, and Mr. Nesbit contended that he is a resident, citizen, and duly elected alderman of the fifth ward of the City.

¶ 8 Mr. Brown filed a response in opposition to the amended petition contending that the three named relators lacked standing to bring a quo warranto action. Plaintiffs-aldermen replied that they, as aldermen, possessed private interests which were distinct and separate from those of other citizens. Specifically, plaintiffs-aldermen alleged that they have been forced to exercise their legislative authority—to enact legislation and determine public policy—with Mr. Brown, who was not qualified to hold office. In support of their standing argument, plaintiffs-aldermen cited the decision in People ex rel. Ballard v. Niekamp , 2011 IL App (4th) 100796, 356 Ill.Dec. 192, 961 N.E.2d 288, which held that members of a local board of education had standing to bring a quo warranto action seeking the removal of another member of the board for that board member's violation of the Public Officer Prohibited Activities Act (Act) (50 ILCS 105/1 (West 2008) ). Niekamp , 2011 IL App (4th) 100796, ¶ 1, 356 Ill.Dec. 192, 961 N.E.2d 288.

¶ 9 On February 18, 2016, the circuit court entered an order which denied the amended petition for leave to file a quo warranto complaint. In so doing, the court rejected the applicability of Niekamp and found that plaintiffs-aldermen lacked standing to bring a quo warranto action, as they possessed the same interest in the removal of Mr. Brown from his office as those of all citizens of the City and the "public at large." The court also concluded that the suit would cause "chaos" and not benefit the public.

¶ 10 Mr. Price filed a motion for reconsideration of the order denying the amended petition, which was adopted by Mr. Wofford and Mr. Nesbit. In his motion, Mr. Price argued that the court erred in its conclusion that he lacked a private interest distinct from the public in general. Mr. Price asserted that as an alderman, he was sworn to uphold the law and owed fiduciary duties to the public in fulfilling his official duties. Further, Mr. Brown's presence on the city council subjected its work and actions to challenges and questions of validity. The court denied the motion to reconsider.

¶ 11 Only Mr. Price (plaintiff-appellant) has appealed from the orders denying the amended petition and reconsideration of that denial. In addition, defendants-appellees have not filed a brief with this court. However, since the record is simple and the issues on appeal are such that we can decide them without the aid of an appellees' brief, we will review the case on the appellant's brief alone. First Capitol Mortgage Corp. v. Talandis Construction Corp. , 63 Ill.2d 128, 133, 345 N.E.2d 493 (1976).

¶ 12 Quo warranto proceedings provide an extraordinary remedy, and are now codified under article 18 of the Code of Civil Procedure (quo warranto statute) (735 ILCS 5/18-101 et seq . (West 2014)). People ex rel. Graf v. Village of Lake Bluff , 206 Ill.2d 541, 547, 276 Ill.Dec. 928, 795 N.E.2d 281 (2003). Section 18-102 of the quo warranto statute provides:

"The proceeding shall be brought in the name of the People of the State of Illinois by the [AG] or [SA] of the proper county, either of his or her own accord or at the instance of any individual relator; or by any citizen having an interest in the question on his or her own relation, when he or she has requested the [AG] and [SA] to bring the same, and the [AG] and [SA] have refused or failed to do so, and when, after notice to the [AG] and [SA], and to the adverse party, of the intended application, leave has been granted by the circuit court." (Emphasis added.) 735 ILCS 5/18-102 (West 2014).

¶ 13 Thus, where a case involves matters of purely public interest, only the AG or the SA "as representatives of the people, have standing to institute quo warranto proceedings." Henderson v. Miller , 228 Ill.App.3d 260, 266, 170 Ill.Dec. 134, 592 N.E.2d 570 (1992) (citing People ex rel. Raster v. Healy , 230 Ill. 280, 82 N.E. 599 (1907) ). However, where the AG or the SA fails to file suit, a quo warranto action may be pursued by an interested party, with leave of court, to challenge a public official who "usurps, intrudes into, or unlawfully holds or executes any office, or franchise, or any office in any corporation created by authority of this State." 735 ILCS 5/18-101(1) (West 2014); see also, Parker v. Lyons , 757 F.3d 701, 704 (7th Cir. 2014) ("The purpose of a quo warranto action generally ‘is to question whether a person lawfully holds title to office.’ " (quoting McCready v. Secretary of State , 382 Ill.App.3d 789, 801, 321 Ill.Dec. 183, 888 N.E.2d 702 (2008), and citing 735 ILCS 5/18-101 (West 2014) )). If a quo warranto action is successful, the public official may be removed from office. 735 ILCS 5/18-108 (West 2014).

¶ 14 Pursuant to the quo warranto statute, therefore, "a private citizen seeking to bring an action in quo warrantoon his own behalf must first request the [AG] or the [SA] to file the action. [Citation.]" Henderson , 228 Ill.App.3d at 267, 170 Ill.Dec. 134, 592 N.E.2d 570. Further, an individual seeking leave to file suit "must demonstrate that he has standing by showing that he has a private interest which is directly, substantially and adversely affected by the challenged act, which is either then occurring or certain to occur, and which is distinct from the interests of the general public, even though some members of the public might be affected in the same manner." Id. (citing People ex rel. Turner v. Lewis , 104 Ill.App.3d 75, 59 Ill.Dec. 879, 432 N.E.2d 665 (1982) ). The asserted private interest must be pled with...