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
Docket No. 1-16-1118
Appellate Court of Illinois, First District, Sixth Division
February 17, 2017
2017 IL App (1st) 161118
Illinois Official Reports
Appellate Court
People ex rel. Wofford v. Brown, 2017 IL App (1st) 161118
Appellate Court Caption: 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).
District & No.: First District, Sixth Division
Docket No. 1-16-1118
Filed: February 17, 2017
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2015-CH-09540; the Hon. Thomas R. Allen, Judge, presiding.
Judgment: Reversed and remanded.
Counsel on Appeal: Shiller Preyar Law Offices, of Chicago (Brendan Shiller and Stephen Berrios, of counsel), for appellant.
No brief filed for appellees.
Presiding Justice Hoffman and Justice Cunningham concurred in the judgment and opinion.
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 (
¶ 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
¶ 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 (
¶ 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.
(quoting Bowman v. County of Lake, 29 Ill. 2d 268, 272 (1963)).¶ 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, 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) (
¶ 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
¶ 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 appellee’s 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 (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) (
“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 (1992) (citing People ex rel. Raster v. Healy, 230 Ill. 280 (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.”
¶ 14 Pursuant to the quo warranto statute, therefore, “a private citizen seeking to bring an action in quo warranto
¶ 15 Because an individual does not have a right to file a quo warranto action, “[g]ranting leave to file a complaint in quo warranto is a matter within the sound discretion of the trial court.” People ex rel. Durst v. Village of Germantown Hills, 51 Ill. App. 3d 969, 972 (1977). The court must consider the conditions and circumstances of the case, the motives of the relators in seeking to bring the action, the necessity for the requested remedy, and whether the interests of the public will be served by the suit. People ex rel. Muhammad v. Muhammad-Rahmah, 289 Ill. App. 3d 740, 746 (1997) (citing People ex rel. Hansen v. Phelan, 158 Ill. 2d 445, 449 (1994)). A decision to grant or deny a petition for leave to file an action will be overturned only where there has been a clear abuse of discretion or “an application of impermissible legal criteria.” Graf, 206 Ill. 2d at 547 (citing Boatmen’s National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314 (1993)). However, the issue of whether a plaintiff has standing is reviewed de novo. Barber v. City of Springfield, 406 Ill. App. 3d 1099, 1101 (2011).
¶ 16 Here, plaintiff-appellant specifically seeks to remove Mr. Brown from office pursuant to section 3.1-10-5(b) of the Municipal Code, which provides:
“A person is not eligible to take the oath of office for a municipal office if that person is, at the time required for taking the oath of office, in arrears in the payment of a tax or other indebtedness due to the municipality or has been convicted in any court located in the United States of any infamous crime, bribery, perjury, or other felony.”
65 ILCS 5/3.1-10-5(b) (West 2014).
Section 3.1-10-5(b) has been interpreted to disqualify an individual with a felony conviction from holding the office of alderman. See Bryant v. Board of Election Commissioners, 224 Ill. 2d 473, 474 (2007). This provision “ensure[s] public confidence in the honesty and integrity of those serving in state and local offices.” People v. Hofer, 363 Ill. App. 3d 719, 723 (2006) (citing People ex rel. Ryan v. Coles, 64 Ill. App. 3d 807, 811-12 (1978)).
¶ 17 As such, a quo warranto action is indisputably and generally a proper procedure for seeking Mr. Brown’s removal from office due to his prior convictions, pursuant to section 3.1-10-5(b). See Alvarez v. Williams, 2014 IL App (1st) 133443, ¶ 3 (quo warranto action against board of education member based on claim of ineligibility due to prior conviction); Hofer, 363 Ill. App. 3d at 720 (where quo warranto
¶ 18 The specific question raised on appeal is whether plaintiff-appellant, as alderman of the sixth ward of the City, has standing under section 18-102 of the quo warranto statute to bring a quo warranto action challenging Mr. Brown’s occupation of the office of alderman of the fourth ward of the City. The quo warranto statute does not specifically define the term “interest” as used in section 18-102. However, as we have discussed above, to establish standing an individual must have a specific interest distinct from an injury common to the public which is directly, substantially, and adversely affected by the challenged action. Graf, 206 Ill. 2d at 547-48; Lewis, 104 Ill. App. 3d at 77. With respect to this requirement, we note that aldermen are elected officials of a municipality and vested with “purely legislative” authority.
¶ 19 Plaintiff-appellant argues that, under this precedent, he has an interest in a quo warranto action to remove Mr. Brown from the city council that is separate and distinct from the interest possessed by other members of the public. As set forth in the amended petition, plaintiff-appellant maintains that, if Mr. Brown is not removed from office, plaintiff-appellant “will continuously be forced to exercise the duties of his office with [Mr. Brown], who is not qualified to hold elected municipal office because he is a convicted felon.” Plaintiff-appellant argues that his oath of office requires that he uphold the constitution and statutes of this state and is obligated to fulfill his fiduciary duties.
¶ 20 On the issue of standing, we find the aforementioned Niekamp decision controlling. In that case, the defendant was removed as a member of the board of education of Quincy School District No. 172 (school board) for violating section 1 of the Act. Niekamp, 2011 IL App (4th) 100796, ¶¶ 1-10. The defendant had violated the Act by being a member of the county board at a time when he was a member of the school board. The quo warranto suit was filed by other members of the school board and alleged that the defendant’s election to the school board was void. Id.
¶ 21 On appeal, the defendant challenged the standing of the plaintiffs to bring the suit. The appellate court found that, as fellow members of the school board, the plaintiffs’ interests “were sufficiently distinct from the interests of the general public” in that the defendant’s “votes on issues before the school board clearly could affect the validity of board actions.” Id. ¶ 26.
¶ 22 In reaching this conclusion, the Niekamp court found a decision from the West Virginia Supreme Court persuasive. Id. ¶ 27 (citing State ex rel. Morrison v. Freeland, 81 S.E.2d 685, 687 (W. Va. 1954), overruled on other grounds by Marra v. Zink, 256 S.E.2d 581, 586 (W. Va. 1979))). In that case, members of a city council, which was composed of a total of nine members, sought leave to file a quo warranto action against another member. Similarly to Illinois, the West Virginia quo warranto statute required that an individual seeking to bring such an action must be “interested” in the prosecution
“ ‘The precise question to be determined here is whether members of a city council elected from certain wards have such an interest within the meaning of the statute to enable them to prosecute a proceeding in the nature of quo warranto, to have determined the right of another person to hold office as a member of that body from a different ward. We are cited no authority, and have found none, which seems directly in [sic] point. The charter of the City of Clarksburg provides for a city council of nine members. It also provides that five members thereof shall constitute a quorum, and that a majority vote of the members shall be necessary for the transaction of business, including the enactment of ordinances under which the municipality will be operated. Thus it will be seen that the vote of any member may often determine the success or failure of any motion before that body. This being true, can it be said, by any process of reasoning, that each member of the council is not interested, as an individual and as an officer, in having only properly elected officers participate in the transaction of the business of that body? Is not such interest of such dignity as to make it the duty of each member, either as an individual or as a member of that body, to prevent illegal or unauthorized participation in the voting on the important issues which must be settled by that body? Is not the interest of each member, because of the duties imposed, and the privileges granted, different and far more substantial than the interest of a mere citizen and taxpayer? We think it must be held that each member of the council is possessed of such an “interest” as entitles him to prosecute such an action. We think it can not be argued with much force that one in such position has no interest in seeing that the business of the council is not controlled by a mere usurper of office. To so construe the statute does not unduly extend or broaden the field of potential relators in such proceedings as to make possible undue harassment of those willing to accept office. It is more likely to cause only those who are in fact qualified to hold office to seek office. To hold otherwise would so limit the use of the proceeding as to render it practically useless.’ ” Niekamp, 2011 IL App (4th) 100796, ¶ 28 (quoting Morrison, 81 S.E.2d at 688).
¶ 23 Like the Niekamp court, we too find Morrison persuasive. Because of the size of the council of the City—seven members—the involvement and vote of one alderman is significant. Plaintiff-appellant, as another member of the city council, has an interest in assuring that the legislative process is not tainted by one who “usurps” an office of government (
¶ 25 Finally, we note that in denying the amended petition, the circuit court also found that the quo warranto action would cause “chaos” and would therefore not benefit the public. A court “may consider the public interest in determining whether to grant or deny leave to file a complaint in quo warranto.” People ex rel. Nelson v. Village of Long Grove, 169 Ill. App. 3d 866, 876-77 (1988) (citing People ex rel. Koplin v. Village of Hinsdale, 38 Ill. App. 3d 714, 718 (1976)). Here, plaintiff-appellant seeks to file a quo warranto action based on Mr. Brown’s undisputed ineligibility to hold the office of alderman under section 3.1-10-5(b), which as we have discussed seeks to protect the confidence of the public in the honesty and integrity of local elected officials. Hofer, 363 Ill. App. 3d at 723. Thus, the public interest would actually be well-served if plaintiff-appellant was allowed to pursue the action to determine Mr. Brown’s eligibility to hold office under section 3.1-10-5(b).
¶ 26 Because plaintiff-appellant had standing to bring a quo warranto action against Mr. Brown and the public interest would be served by such an action, we find the circuit court abused its discretion by denying the amended petition for leave to file a quo warranto action and the motion seeking reconsideration of that decision.
¶ 27 For the reasons stated above, we reverse the orders denying the amended petition to file a quo warranto action and denying reconsideration of that order, and remand this matter with directions to grant the amended petition for leave to file a complaint in quo warranto.
¶ 28 Reversed and remanded.