Thomann v. Dep't of State Police

66 N.E.3d 834

408 Ill.Dec. 829

Matthew D. THOMANN; Samuel Finnigan, Jr.; Deanna M. Knoll ; and Carry Illinois, Plaintiffs–Appellants,

v.The DEPARTMENT OF STATE POLICE, a Division of the State of Illinois; Leo P. Schmitz, in His Official Capacity as Director of State Police; The Concealed Carry Licensing Review Board, an Independent State Authority Created by the Firearm Concealed Carry Act; Sergio Acosta, in His Official Capacity as Member of the Concealed Carry Licensing Review Board; Robinzina Bryant, in Her Official Capacity as Member of the Concealed Carry Licensing Review Board; James Cavanaugh, in His Official Capacity as Member of the Concealed Carry Licensing Review Board; Virginia Wright, in Her Official Capacity as Member of the Concealed Carry Licensing Review Board; John Chelsley, in His Official Capacity as Member of the Concealed Carry Licensing Review Board; John Diwik, in His Official Capacity as Member of the Concealed Carry Licensing Review Board; and G. Patrick Murphy, in His Official Capacity as Member of the Concealed Carry Licensing Review Board, Defendants–Appellees.

No. 4–15–0936.

Appellate Court of Illinois, Fourth District.

Oct. 18, 2016.

William N. Howard and Keith L. Gibson, of Locke Lord LLP, of Chicago, and David H. Thompson, Peter A. Patterson, and John D. Ohlendorf (argued), of Cooper & Kirk, PLLC, of Washington, D.C., for appellants.

Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and Paul Racette (argued), Assistant Attorney General, of counsel), for appellees.

OPINION

Presiding Justice KNECHT delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Illinois Carry, an organization supporting the concealed carrying of firearms, and three individuals, Matthew Thomann, Samuel Finnigan, Jr., and Deanna Knoll, appeal from the circuit court's order dismissing their petition for attorney fees and costs against defendants, the Illinois Department of State Police (Department), the Department's then director, the Concealed Carry Licensing Board (Board), and the Board's then members. The sole issue on appeal is whether the circuit court's dismissal was in error. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In July 2013, the General Assembly enacted the Firearm Concealed Carry Act (Concealed Carry Act) (430 ILCS 66/1 to 999 (West 2014)), granting eligible citizens the right to carry firearms in public. To be eligible for a concealed carry license, an applicant must be found to "not pose a danger to himself, herself, or others, or a threat to public safety." 430 ILCS 66/10(a)(4) (West 2014). Where an objection to a concealed carry license application is submitted on this ground, the Board is tasked with considering and ruling on the objection. 430 ILCS 66/15(a), 20(a) (West 2014); see Merritt v. Department of State Police, 2016 IL App (4th) 150661, ¶¶ 15–18, 404 Ill.Dec. 609, 56 N.E.3d 593 (overview of the Concealed Carry Act).

¶ 4 In April 2014, plaintiffs filed a two-count complaint against defendants, alleging the Board's procedures in evaluating objections to concealed carry license applications violated their due process rights (Ill. Const. 1970, art. I, § 2 ) by failing to provide notice or an opportunity to respond to the objections. Count I of plaintiffs' complaint—an action for declaratory and injunctive relief—sought a declaration defendants violated their due process rights and an injunction requiring they be given hearings that comport with due process. Count II of plaintiffs' complaint—an action for administrative review—sought an order reversing the Board's decision with respect to applications filed by Thomann and unidentified Illinois Carry members and remanding for further proceedings that comport with due process. Both counts sought attorney fees and costs under subsection 5(c) of the Illinois Civil Rights Act of 2003 (Civil Rights Act) (740 ILCS 23/5(c) (West 2014)).

¶ 5 In June 2014, defendants filed a motion to dismiss count I and a memorandum in support. Defendants asserted count I was an impermissible attempt to seek judicial review of the Board's decisions by means other than under the Administrative Review Law (735 ILCS 5/3–101 to 3–113 (West 2014)). Plaintiffs later filed a response to defendants' motion to dismiss count I, and defendants filed a reply to plaintiffs' response.

¶ 6 On July 23, 2014, defendants filed a motion to dismiss the entire action as it related to Finnigan, a motion to dismiss count II as it related to unnamed license applicants, and a memorandum in support of their motions. As to the motion to dismiss the entire action as it related to Finnigan, defendants asserted Finnigan had previously filed a separate action for administrative review, which was resolved by an agreed order remanding the matter to the Board for reconsideration. Defendants attached to their motion a copy of an emergency amendment (38 Ill. Reg. 19571 (emergency amendment eff. Sept. 18, 2014)), which provided applicants be given notice and an opportunity to respond to objections to their concealed carry license applications. The emergency amendment was later revised (39 Ill. Reg. 1518 (eff. Jan. 6, 2015)) and then became a permanent rule (20 Ill. Adm. Code 2900.140(e) (eff. Jan. 23, 2015)). As to the motion to dismiss count II relating to unnamed license applicants, defendants asserted it was impossible to file an answer, which would include an individual's administrative records, where plaintiffs failed to provide the applicants' identifying information. Plaintiffs later filed a response to defendants' motions to dismiss, and defendants filed a reply to plaintiffs' response.

¶ 7 In September 2014, the circuit court, without explicitly ruling on defendants' motions to dismiss, (1) remanded the matter to the Board for reconsideration of the applications filed by Thomann, Finnigan, and Knoll and (2) granted plaintiffs leave to amend to provide identifying information regarding those individuals on whose behalf relief was sought. The court reserved ruling on all other issues.

¶ 8 In October 2014, plaintiffs filed an amended complaint, largely mirroring their original complaint but including the names of 36 additional license applicants who sought relief under count I, 21 of whom also sought relief under count II.

¶ 9 In February 2015, defendants filed a motion to dismiss count I of plaintiffs' amended complaint and a memorandum in support. Defendants again asserted count I was an impermissible attempt to obtain judicial review of the Board's decisions by means other than under the Administrative Review Law (735 ILCS 5/3–101 to 3–113 (West 2014)). Defendants also noted, in the interest of finality, the circuit court should construe plaintiffs' amended complaint to request administrative review in count II for all identified individuals in count I and remand each case for reconsideration.

¶ 10 In March 2015, the circuit court entered an agreed order remanding to the Board under the Administrative Review Law (id. ) the license applications filed by 29 applicants for reconsideration. Plaintiffs withdrew their request for relief as to the seven additional applicants. The court further dismissed count I of plaintiffs' amended complaint as moot and ordered plaintiffs to file any fee petition within 30 days.

¶ 11 In April 2015, plaintiffs filed a petition for attorney fees and costs and a memorandum in support. Plaintiffs asserted, under subsection 5(c) of the Civil Rights Act (740 ILCS 23/5(c) (West 2014)), they were entitled to attorney fees and costs as they brought a suit "to enforce a right arising under the Illinois Constitution" and prevailed by (1) obtaining some of their requested relief through a judgment requiring the Board to reconsider their license applications under revised procedures and (2) serving as a catalyst for the unilateral change of the Board's procedures. Plaintiffs provided a detailed explanation of incurred fees and costs, which totaled $181,389.94.

¶ 12 On May 4, 2015, defendants filed a motion to dismiss plaintiffs' fee petition and a supporting memorandum. Defendants asserted dismissal was appropriate as (1) subsection 5(c) of the Civil Rights Act (id. ) included no express waiver of sovereign immunity and (2) plaintiffs failed to establish they were a prevailing party.

¶ 13 On May 28, 2015, plaintiffs filed a reply in support of their fee petition. Plaintiffs asserted, in relevant part, "an action brought under the administrative review law—no less than an action brought in chancery for injunctive relief—can, if the plaintiff prevails, form the basis for a fee award under [subsection 5(c) (id. ) ], so long as the underlying right at issue ‘aris[es] under the Illinois Constitution.’ " (Emphasis in original.)

¶ 14 In August 2015, the circuit court held a hearing on plaintiffs' fee petition. A transcript from the hearing or a bystander's report is not included in the record on appeal.

¶ 15 In October 2015, the circuit court issued a written order granting defendants' motion to dismiss plaintiffs' fee petition. As to count I, the court found, because the Administrative Review Law was the sole method by which the license denials could be judicially reviewed, the collateral attack on those decisions was frivolous, preventing plaintiffs from recovery under the catalyst theory. As to count II, the court rejected plaintiffs' assertion subsection 5(c) "provide[d] statutory authority for the recovery of attorney's fees for any claim in which a constitutional right is arguably implicated" as plaintiffs provided no authority and it was "unaware of any case relating to the Administrative Review Law in which the [Civil Rights Act] provid[ed] for attorney's fees based upon the allegation of insufficient procedural due process." Rather, the court found, "[t]he proper characterization of this matter is an action to enforce rights arising under a state statute, the Administrative Review Law[, and not] an action to enforce rights arising under the Illinois...