Taylor v. Dart

64 N.E.3d 123

407 Ill.Dec. 745

Percy TAYLOR, Plaintiff–Appellee,

v.Thomas J. DART, Sheriff of Cook County, and The Cook County Sheriff's Merit Board, Defendants–Appellants.

No. 1–14–3684.

Appellate Court of Illinois, First District, Fifth Division.

Sept. 23, 2016.

Anita M. Alvarez, State's Attorney, of Chicago (Daniel F. Gallagher, James C. Pullos, Nicole K. Pasquinelli, Maureen O. Hannon and Thomas Cargie, Assistant State's Attorneys, of counsel), for appellants.

Richard F. Linden, of Law Offices of Richard F. Linden, of Chicago, for appellee.

OPINION

Justice HALL delivered the judgment of the court, with opinion.

¶ 1 The defendants, Thomas J. Dart, Sheriff of Cook County (Sheriff Dart), and the Cook County Sheriff's Merit Board (Merit Board) (collectively, the defendants) filed this interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). The circuit court certified the following questions for our review:

"Is a Cook County Sheriff's Merit Board member that was appointed on June 2, 2011 to serve a term which expired on March 19, 2012, a lawfully appointed member of the Merit Board when he presided over Percy Taylor's Merit Board Hearing on February 27, 2013? If the Merit Board member was not lawfully appointed to the Merit Board, does the decision of October 30, 2013 remain valid or is it rendered void?"

¶ 2 BACKGROUND

¶ 3 I. The Statute

¶ 4 Section 3–7002 of the Counties Code (Code) provides in pertinent part as follows:

"There is created the Cook County Sheriff's Merit Board, hereinafter called the Board, consisting of 7 members appointed by the Sheriff with the advice and consent of the county board, except that on and after the effective date of this amendatory Act of 1997, the Sheriff may appoint 2 additional members, with the advice and consent of the county board, at his or her discretion. * * *

Upon the expiration of the terms of office of those first appointed (including the 2 additional members first appointed under authority of this amendatory Act of 1991 and under the authority of this amendatory Act of the 91st General Assembly), their respective successors shall be appointed to hold office from the third Monday in March of the year of their respective appointments for a term of 6 years and until their successors are appointed and qualified for a like term. As additional members are appointed under authority of this amendatory Act of 1997, their terms shall be set to be staggered consistently with the terms of the existing Board members. No more than 3 members of the Board shall be affiliated with the same political party, except that as additional members are appointed by the Sheriff under the authority of this amendatory Act of 1997 and under the authority of this amendatory Act of the 91st General Assembly, the political affiliation of the Board shall be such that no more than one-half of the members plus one additional member may be affiliated with the same political party. No member shall have held or have been a candidate for an elective public office within one year preceding his or her appointment." 55 ILCS 5/3–7002 (West 2012).

¶ 5 II. Facts

¶ 6 On May 5, 2011, Sheriff Dart requested approval from the Cook County Board to appoint John R. Rosales to the Merit Board to fill the vacancy of Commissioner Daniel Lynch whose term on the Merit Board was to expire on March 19, 2012. The county board approved the Rosales appointment on June 1, 2011. After the expiration of Commissioner Lynch's term on March 19, 2012, Sheriff Dart did not reappoint Mr. Rosales to the Merit Board, and he has continued to serve as a member of the Merit Board.

¶ 7 On October 20, 2011, Sheriff Dart filed a complaint against the plaintiff alleging misconduct and seeking to terminate his employment as a Cook County sheriff's police officer. On February 27, 2013, Mr. Rosales presided over the hearing held on Sheriff Dart's complaint against the plaintiff. On October 30, 2013, the Merit Board issued its decision terminating the plaintiff's employment. The October 30, 2013, order was signed by Mr. Rosales and seven Merit Board members.

¶ 8 The plaintiff filed a complaint for administrative review of the Merit Board's decision. On May 7, 2014, the circuit court issued a memorandum and order affirming the Merit Board's decision terminating the plaintiff's employment. The plaintiff moved for reconsideration of the order arguing,inter alia, that the appointment of Mr. Rosales to the Merit Board was invalid because he was not appointed to a six-year term as required by section 3–7002 of the Code (55 ILCS 5/3–7002 (West 2012) ).

¶ 9 The circuit court granted the plaintiff's motion for reconsideration, finding that the appointment of Commissioner Rosales was invalid because he was appointed to less than a six-year term. The court rejected the defendants' argument that the decision of the Merit Board remained valid because seven lawful members voted to terminate the plaintiff's employment. The court found that the Merit Board was not lawfully constituted at the time it rendered its decision, and therefore, its decision could not be given effect. The circuit court vacated the Merit Board's October 30, 2013, decision terminating the plaintiff's employment and remanded the case for a new hearing on the charges against the plaintiff before a legally constituted Merit Board. The court denied the defendants' motion for reconsideration.

¶ 10 Following the circuit court's certification of the questions for review, the defendants filed their request for leave to appeal, which was granted by this court on December 23, 2014.

¶ 11 ANALYSIS

¶ 12 I. Standards of Review

¶ 13 Rule 308 requires that the certified questions presented to this court for review be questions of law. Therefore, our review is de novo. Zlatev v. Millette, 2015 IL App (1st) 143173, ¶ 17, 397 Ill.Dec. 826, 43 N.E.3d 153. This case also requires this court to construe section 3–7002 of the Code, which is also a question of law to which the de novo standard of review applies. Majid v. Retirement Board of the Policemen's Annuity & Benefit Fund, 2015 IL App (1st) 132182, ¶ 13, 393 Ill.Dec. 83, 33 N.E.3d 827.

¶ 14 II. Discussion

¶ 15 "The fundamental principle of statutory construction is to ascertain and give effect to the intent of the legislature." Gilchrist v. Human Rights Comm'n, 312 Ill.App.3d 597, 602, 245 Ill.Dec. 484, 728 N.E.2d 566 (2000). The court looks first at the statutory language as it is the best indication of the intent of the drafters. Majid, 2015 IL App (1st) 132182, ¶ 16, 393 Ill.Dec. 83, 33 N.E.3d 827. Unless defined therein, the unambiguous words in the statute are to be given their plain and ordinary meanings. Majid, 2015 IL App (1st) 132182, ¶ 16, 393 Ill.Dec. 83, 33 N.E.3d 827. The statute must be applied so that no part is rendered superfluous. Majid, 2015 IL App (1st) 132182, ¶ 16, 393 Ill.Dec. 83, 33 N.E.3d 827. " ‘Courts must also consider the reason and necessity for the law, the evils sought to be remedied and the purpose to be achieved.’ " Majid, 2015 IL App (1st) 132182, ¶ 16, 393 Ill.Dec. 83, 33 N.E.3d 827 (quoting DiFiore v. Retirement Board of the Policemen's Annuity & Benefit Fund, 313 Ill.App.3d 546, 551, 246 Ill.Dec. 227, 729 N.E.2d 878 (2000) ).

¶ 16 As an administrative body, the Merit Board obtains its power to act from the legislation creating it, and its power to act is strictly confined to that granted in the enabling statute. Gilchrist, 312 Ill.App.3d at 601, 245 Ill.Dec. 484, 728 N.E.2d 566. Administrative agencies have no general or common-law powers. Daniels v. Industrial Comm'n, 201 Ill.2d 160, 165, 266 Ill.Dec. 864, 775 N.E.2d 936 (2002). Where an administrative body acts outside of its specific statutory authority, it acts without jurisdiction, and its actions are void and a ity from their inception.

Daniels, 201 Ill.2d at 165, 266 Ill.Dec. 864, 775 N.E.2d 936. Where an agency's action is void, it may be attacked at any time, in any court, either directly or collaterally. Daniels, 201 Ill.2d at 166, 266 Ill.Dec. 864, 775 N.E.2d 936.

¶ 17 With these principles in mind, we address the first certified question.

¶ 18 A. Whether the Appointment of an Individual to the Merit Board for Less Than a Six–Year Term Is Valid?

¶ 19 From the plain language of the statute, we glean that the purpose of section 3–7002 is to select individuals to serve on the Merit Board with the goal of achieving an experienced and politically balanced Merit Board. In order to achieve these goals, the statute requires that the members' terms be staggered, insuring that the Merit Board would always contain some experienced members and limiting the number of members from any one political party.

¶ 20 Section 3–7002 provides that members and their respective successors "shall be appointed to hold office * * * for a term of 6 years and until their successors are appointed and qualified for a like term." 55 ILCS 5/3–7002 (West 2012). The term "shall" in a statute indicates a mandatory obligation, unless the context indicates otherwise. Newkirk v. Bigard, 109 Ill.2d 28, 33, 92 Ill.Dec. 510, 485 N.E.2d 321 (1985). " ‘[S]hall’ will not be given a permissive meaning where it is used with reference to any right or benefit to anyone, and the right and benefit depends upon giving a mandatory meaning to the word." Newkirk, 109 Ill.2d at 33, 92 Ill.Dec. 510, 485 N.E.2d 321.

¶ 21 Under the plain language of the statute, an individual appointed to serve as a member of the Merit Board has the right to be appointed to a full six-year term. This would be in keeping with the statutory goals of experience and political balance, which would be compromised if the sheriff could appoint a member for less than the six-year term provided in the statute.

¶ 22 The supreme court's analysis in Vuagniaux v. Department of Professional Regulation, 208 Ill.2d 173, 280 Ill.Dec. 635, 802 N.E.2d 1156 (2003), is instructive. In that case, the department brought a complaint against the...