See v. Ill. Gaming Bd.

2020 IL App (1st) 192200

170 N.E.3d 195

446 Ill.Dec. 369

Christopher SEE, Plaintiff-Appellant,

v.The ILLINOIS GAMING BOARD ; Francesco Spizzirri; Richard Gesiorski; Mark Fuesting; and James Pearce, Defendants-Appellees.

No. 1-19-2200

Appellate Court of Illinois, First District, Second Division.

Opinion filed August 18, 2020.

Modified upon denial of rehearing October 27, 2020.

John A. Baker, of Baker, Baker & Krajewski, LLC, of Springfield, for appellant.

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Carson R. Griffis, Assistant Attorney General, of counsel), for appellees.

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

¶ 1 In 2019, plaintiff Christopher See filed a complaint in the circuit court of Cook County against defendants the Illinois Gaming Board (Gaming Board), Francesco Spizzirri, Richard Gesiorski, Mark Fuesting, and James Pearce, alleging they violated the whistleblower protections of the State Officials and Employees Ethics Act (Ethics Act) ( 5 ILCS 430/15-5 et seq. (West 2018)). The circuit court granted defendants' motion to dismiss the suit under section 2-619(a)(9) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619(a)(9) (West 2018)), concluding that it was barred by the doctrine of res judicata due to a prior federal court ruling. See now appeals the circuit court's determination, arguing that the prior federal court ruling was jurisdictional and therefore cannot preclude him from bringing the present suit in state court. He also cites equitable principles in support. We affirm.

¶ 2 BACKGROUND

¶ 3 The Gaming Board administers the riverboat and video gambling industry in Illinois and, by statute, can use services from the Illinois State Police (State Police) to fulfill its duties. See 230 ILCS 10/5 (West 2018). See, a sworn law enforcement officer with the Gaming Board, was working as a "Gaming Special Agent" at Jumer's Casino (Jumer's) in Rock Island, Illinois, when the facts underlying the present suit arose. As a gaming special agent, See was responsible for investigating criminal activity related to gambling and taking appropriate law enforcement action when needed. Around August 2016, See filed a 79-page union grievance alleging corruption and favoritism within the Gaming Board and State Police. Following a series of events, See was placed on administrative leave and asked to take a fitness-for-duty examination, as there were concerns about his mental health based on his various statements. The tests resulted in a finding of "fit for duty," and See then returned to work at Jumer's (although he now no longer works there). Over the next several years, See repeated his grievances to other state and federal agencies.

¶ 4 Following these events, on February 10, 2017, See filed suit in the federal district court against the Gaming Board and a number of officials from the Gaming Board and State Police (federal defendants), alleging first amendment retaliation (count I), as well as violations of the Ethics Act (count II) and the Americans with Disabilities Act (ADA) ( 42 U.S.C. §§ 12101 – 12213 (2012) ) (count III). The federal defendants moved to dismiss the Ethics Act claim, arguing it was barred by the eleventh amendment, which generally prevents federal courts from hearing cases against states. More particularly, the eleventh amendment prohibits federal courts from hearing citizens' suits against a state, its agencies, or state officials in their official capacities unless Congress has abrogated the state's sovereign immunity, the state has waived sovereign immunity, or the suit is for prospective injunctive relief. Indiana Protection & Advocacy Services v. Indiana Family & Social Services Adm'n , 603 F.3d 365, 370-71 (7th Cir. 2010). As no exceptions applied, the federal defendants argued sovereign immunity barred See's claim, and See conceded the eleventh amendment dismissal.¹ Accordingly, the district court dismissed count II alleging the Ethics Act violation. In June 2019, the district court also granted the federal defendants' summary judgment motion as to the first amendment and ADA claims, thus ruling against See. See appealed that judgment.

¶ 5 Meanwhile, in April 2019, See had filed his present complaint in the circuit court of Cook County, this time solely for the Ethics Act violation, against the same defendants (or those in privity with the federal defendants). The Ethics Act expressly provides that Illinois circuit courts have jurisdiction to hear Ethics Act claims. 5 ILCS 430/15-25 (West 2018). See again asserted that defendants had retaliated against him for reporting corruption within the Gaming Board and State Police, which was a protected activity under the Ethics Act. See alleged that he had notified the State Police and state inspector general, as well as the attorney general, among others, of the alleged corruption. He added that, between August 2016, when he first filed his grievance, and March 2019, defendants had given him intentionally false performance reviews, issued defamatory memos, altered his work hours, declined to give job training, and filed disciplinary charges against him.

¶ 6 Defendants moved to dismiss the complaint under section 2-619(a)(9) of the Code as barred by res judicata and collateral estoppel since it was basically the same cause of action, same defendants, and the federal district court had already rendered a final judgment on the merits of the federal action. Defendants argued that to the extent See had raised new allegations in the state action, they could and should have been raised in the federal action. Defendants added that res judicata applied because See had "commenced a new action after part of [his] original cause of action [had] gone to final judgment" and, further, that he should be prohibited from claim splitting.

¶ 7 See countered that the federal ethics claim was dismissed under the eleventh amendment for lack of jurisdiction and so the dismissal was not final on the merits. Therefore, See argued that neither res judicata nor collateral estoppel applied.

¶ 8 Following responsive pleadings, the circuit court granted defendants' motion to dismiss under section 2-619(a)(9) based on res judicata . This appeal followed. The Illinois Attorney General's Office (Attorney General) has filed a brief in response on behalf of the Gaming Board and the named officials.

¶ 9 ANALYSIS

¶ 10 A motion to dismiss under section 2-619(a)(9) admits the legal sufficiency of the plaintiff's claim but asserts certain defects or defenses outside the pleadings that defeat the claim. Sandholm v. Kuecker , 2012 IL 111443, ¶ 55, 356 Ill.Dec. 733, 962 N.E.2d 418. When ruling on the motion, a court should construe the pleadings and supporting documents in the light most favorable to the nonmoving party. Czarobski v. Lata , 227 Ill. 2d 364, 369, 317 Ill.Dec. 656, 882 N.E.2d 536 (2008). The question on appeal is whether a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law. Sandholm , 2012 IL 111443, ¶ 55, 356 Ill.Dec. 733, 962 N.E.2d 418. We review such a dismissal de novo , and this requires no deference to the circuit court's reasoning. Benton v. Little League Baseball, Inc. , 2020 IL App (1st) 190549, ¶ 29, ––– Ill.Dec. ––––, ––– N.E.3d ––––. We can thus affirm on any basis present in the record. Id. ; see also American Service Insurance Co. v. City of Chicago , 404 Ill. App. 3d 769, 776, 343 Ill.Dec. 707, 935 N.E.2d 715 (2010) (a reviewing court may affirm the dismissal if the record supports a proper ground for dismissal).

¶ 11 On appeal, See argues the circuit court erred in granting the Attorney General's section 2-619(a)(9) dismissal motion based on res judicata . Although neither party relied on federal common law in the circuit court, on appeal the Attorney General correctly asserts that it applies when determining the preclusive effect of a federal court judgment, and See concedes this point in his reply brief. See Taylor v. Sturgell , 553 U.S. 880, 891, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) ; National Union Fire Insurance Co. of Pittsburgh, PA v. DiMucci , 2015 IL App (1st) 122725, ¶ 30, 393 Ill.Dec. 495, 34 N.E.3d 1023. Given that the Central District of Illinois issued the federal judgment, we turn to Seventh Circuit precedent as we proceed in our review. See DiMucci , 2015 IL App (1st) 122725, ¶ 30, 393 Ill.Dec. 495, 34 N.E.3d 1023.

¶ 12 Where it applies, res judicata prevents the relitigation of claims already litigated as well as those that could have been litigated but were not. Palka v. City of Chicago , 662 F.3d 428, 437 (7th Cir. 2011). The doctrine is designed to relieve parties of the costs and burdens of defending against repeated lawsuits, conserve judicial resources, and promote reliance on adjudications by preventing inconsistent decisions. Allen v. McCurry , 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Under federal law, res judicata has three elements: (1) identity of parties, (2) a final judgment on the merits, and (3) an identity of the cause of action (as determined by comparing the suits' operative facts). Palka , 662 F.3d at 437.

¶ 13 Here, there is no dispute as to the first and third elements. There was an identity of parties given that the Gaming Board, Spizzirri, and Fuesting were also named defendants in See's federal action, and the other named defendants in this case (Gesiorski and Pearce) are in privity with the federal defendants. See Donovan v. Estate of Fitzsimmons , 778 F.2d 298, 301 (7th Cir. 1985) (noting, privity applies to successive parties who adequately represent the same legal interests). There was likewise identity of the causes of action. Both lawsuits arise from the same operative facts involving the alleged retaliatory conduct against See in light of his whistleblowing.² See effectively concedes these points. See Humphrey v. Tharaldson Enterprises,...