Zander v. Carlson
| Decision Date | 21 November 2019 |
| Docket Number | No. 1-18-1868,1-18-1868 |
| Citation | 143 N.E.3d 1216,437 Ill.Dec. 124,2019 IL App (1st) 181868 |
| Parties | Russell ZANDER, Plaintiff-Appellant, v. Roy CARLSON and The Illinois Fraternal Order of Police Labor Council, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Thomas W. Gooch III and Sabina D. Walczyk, of The Gooch Firm, of Wauconda, for appellant.
Brendan J. Nelligan and Matthew J. Egan, of Pretzel & Stouffer, Chtrd., of Chicago, for appellees.
¶ 1 When the Village of Fox Lake (Village) sought to terminate Russell Zander's employment as a police officer, Zander waived his right to a hearing before the local police board and opted instead to challenge his dismissal through the arbitration process outlined in the collective bargaining agreement between the Village and his union, the Illinois Fraternal Order of Police Labor Council (FOP). He pursued this course on the advice of Roy Carlson, an FOP staff attorney who later represented him at the arbitration hearing. After the arbitrator ruled against him, Zander sued Carlson and the FOP for legal malpractice. In dismissing the complaint, the circuit court held that Carlson was immune from personal liability for actions taken on behalf of a union in the collective bargaining process and that Zander's claim against the FOP must be brought before the Illinois Labor Relations Board, which has exclusive jurisdiction over claims that a union has violated its duty to fairly represent its members. For the reasons that follow, we affirm.
¶ 3 We draw the following facts from Zander's complaint. In December 2014, the Village's police chief placed Zander on administrative leave based on allegations of misconduct. Sometime thereafter, the police chief filed formal charges recommending Zander's termination. In response to Zander's request for legal representation, the FOP assigned Carlson to represent him. Carlson is a licensed attorney and FOP employee who represents FOP members in grievance and termination proceedings. Zander did not pay Carlson (other than indirectly through his union dues), and the two did not sign a retainer agreement. According to Zander, the FOP forced him to accept Carlson's representation and gave him no input in the selection. Zander alleges that he formed an attorney-client relationship with Carlson through acquiescence.
¶ 4 Under the Illinois Municipal Code, a police officer facing discharge is entitled to a hearing before the local Board of Fire and Police Commissioners (police board), unless a collective bargaining agreement between the municipality and the officer's union provides for arbitration of such disputes. See 65 ILCS 5/10-2.1-17 (West 2018). The collective bargaining agreement between the Village and the FOP provides that an officer may elect to challenge his discharge either before the police board or through the agreement's ordinary grievance-arbitration procedure. On Carlson's advice, Zander elected to proceed via arbitration. After a two-day hearing, the arbitrator upheld the decision to terminate Zander's employment.
¶ 5 Zander then filed a two-count complaint against Carlson and the FOP. Count I alleged that Carlson owed Zander a duty of care arising from their attorney-client relationship and that Carlson breached that duty by negligently advising Zander to waive his right to a hearing before the police board and by inadequately representing him at the arbitration hearing. Count II alleged that the FOP assumed its own duty of care to Zander by providing him with legal representation and that it breached that duty by assigning him an inexperienced and incompetent lawyer. Alternatively, count II alleged that the FOP was vicariously liable for Carlson's negligence.
¶ 6 Carlson and the FOP moved to dismiss the complaint. Citing Atkinson v. Sinclair Refining Co. , 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), they argued that Zander's claim against Carlson should be dismissed pursuant to section 2-615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615 (West 2018) ) because a union agent is immune from personal liability for actions taken on the union's behalf in the collective bargaining process. And they argued that Zander's claim against the FOP should be dismissed under section 2-619(a)(1) of the Code ( 735 ILCS 5/2-619(a)(1) (West 2018)) because the Illinois Labor Relations Board (Board) has exclusive jurisdiction over claims that a union violated its duty to fairly represent its members.
¶ 7 In response, Zander argued that Carlson was not entitled to immunity under Atkinson because the arbitration proceeding challenging his termination was unrelated to the collective bargaining process and because Carlson acted on his (rather than the union's) behalf due to their attorney-client relationship. Zander argued, alternatively, that he should be able to sue Carlson for malpractice as a third-party beneficiary of the FOP's attorney-client relationship with Carlson. Finally, Zander argued that his claim against the FOP did not fall within the Board's exclusive jurisdiction because it was not based on the duty of fair representation but instead sought to hold the FOP vicariously liable for Carlson's malpractice.
¶ 8 The circuit court dismissed the complaint, holding that Carlson was immune from suit under Atkinson and that Zander's claim against the FOP fell within the Board's exclusive jurisdiction. In a motion to reconsider, Zander argued that Carlson should be subject to liability to the extent of his malpractice insurance coverage. The circuit court denied the motion, finding that Zander's new argument was forfeited. Zander then filed a timely notice of appeal.
¶ 10 We review the dismissal of a complaint under sections 2-615 and 2-619 of the Code de novo . Bogenberger v. Pi Kappa Alpha Corp. , 2018 IL 120951, ¶ 23, 423 Ill.Dec. 21, 104 N.E.3d 1110 ; Leetaru v. Board of Trustees of the University of Illinois , 2015 IL 117485, ¶ 41, 392 Ill.Dec. 275, 32 N.E.3d 583. A motion to dismiss under section 2-615 challenges the legal sufficiency of a complaint. Bogenberger , 2018 IL 120951, ¶ 23, 423 Ill.Dec. 21, 104 N.E.3d 1110. The question is whether the complaint's allegations, if proved, would entitle the plaintiff to relief. Id. In making this determination, we must accept the complaint's well-pleaded allegations as true. Id. "The critical inquiry is whether the allegations of the complaint, when construed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted." Id. A motion to dismiss under section 2-619, on the other hand, "admits the legal sufficiency of the plaintiff's complaint but asserts a defense defeating the claim." Ferris, Thompson & Zweig, Ltd. v. Esposito , 2015 IL 117443, ¶ 14, 388 Ill.Dec. 945, 25 N.E.3d 637. Under section 2-619(a)(1), a complaint should be dismissed if "the court does not have jurisdiction of the subject matter of the action." 735 ILCS 5/2-619(a)(1) (West 2018). When considering a motion to dismiss under section 2-619, we again must accept the complaint's well-pleaded allegations as true and view them in the light most favorable to the plaintiff. American Family Mutual Insurance Co. v. Krop , 2018 IL 122556, ¶ 13, 427 Ill.Dec. 915, 120 N.E.3d 982 ; Shirley v. Harmon , 405 Ill. App. 3d 86, 90, 342 Ill.Dec. 932, 933 N.E.2d 1225 (2010).
¶ 11 With those standards in mind, we turn to Zander's legal malpractice claim against Carlson. In Atkinson , the United States Supreme Court held that, under the Taft-Hartley Act ( 29 U.S.C. § 185 ), which amended the National Labor Relations Act (NLRA) ( 29 U.S.C. § 151 et seq. ), a union's agents may not be held individually liable for actions taken on the union's behalf in the collective bargaining process. 370 U.S. at 245-49, 82 S.Ct. 1318. That rule rests on the "view that only the union [should] be made to respond for union wrongs, and that the union members were not to be subject to levy." Id. at 247-48, 82 S.Ct. 1318. "This policy cannot be evaded or truncated by the simple device of suing union agents or members, whether in contract or tort, * * * for violation of a collective bargaining contract for which * * * the union itself is liable." Id. at 249, 82 S.Ct. 1318. Rather, "national labor policy" demands that "when a union is liable for damages for violation of [a collective bargaining agreement], its officers and members are not liable for these damages." Id. Following Atkinson , courts have repeatedly "cited Atkinson to foreclose state-law claims, however inventively cloaked, against individuals acting as union representatives within the ambit of the collective bargaining process." Montplaisir v. Leighton , 875 F.2d 1, 4 (1st Cir. 1989). "This principle has become so embedded in [NLRA] jurisprudence that it brooks no serious challenge." Id.
¶ 12 As noted above, Atkinson interpreted the NLRA, which governs labor relations in the private sector. The first question we must address is whether Atkinson immunity applies under the Illinois Public Labor Relations Act (Labor Relations Act), which "regulates labor relations between public employers and employees." 5 ILCS 315/2 (West 2018). We hold that it does. "[T]he legislative history of the [Labor Relations Act] indicates a close parallel between the Illinois act and the National Labor Relations Act * * *." Rockford Township Highway Department v. Illinois State Labor Relations Board , 153 Ill. App. 3d 863, 874-75, 106 Ill.Dec. 683, 506 N.E.2d 390 (1987). For that reason, Illinois courts regularly look to federal precedent interpreting the NLRA for guidance in construing the Labor Relations Act. See Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations Board , 178 Ill. 2d 333, 339, 227 Ill.Dec. 313, 687 N.E.2d 795 (1997) ; Illinois Fraternal Order of Police Labor...
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