Bless v. Cook County Sheriff's Office et al

Filing 414

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/12/19.Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT BLESS,
Plaintiff,
v.
COOK COUNTY SHERIFF’S OFFICE,
TOM DART in his official and individual
capacity; DEWAYNE HOLBROOK;
JOSEPH WAYS, SR.; ZELDA WITTLER,
SHERYL COLLINS; EDWARD DYNER;
HENRY HEMPHILL; ROSEMARIE
NOLAN; COOK COUNTY SHERIFF’S
MERIT COMMISSION; COOK COUNTY,
a unit of local government,
Defendants.

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No. 13 C 4271
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
The de facto officer doctrine has existed for over a century in common law, but
its development in Illinois has not been without controversy. Recent decisions by the
Illinois Appellate Court require us to revisit that history here.
This Court previously entered summary judgment in favor of Plaintiff Robert
Bless as to his claim seeking review of an administrative decision by the Cook County
Sheriff’s Merit Commission (“Merit Board”) that terminated his employment as a
police officer with the Cook County Sheriff’s Office (“CCSO”). The Court vacated and
remanded the Merit Board’s decision because it concluded, pursuant to Taylor v.
Dart, 81 N.E.3d 1 (Ill. App. Ct. 2017), that the Merit Board had been illegally
constituted when it issued its decision terminating Bless.

Defendants have moved to reconsider the Court’s opinion, arguing that recent
developments in Illinois law compel the Court to uphold the Merit Board’s decision
as having been made with de facto authority. For the reasons that follow, Defendants’
motion to reconsider [400] is granted.
Background
The Court assumes the reader’s familiarity with its prior opinions in this case,
particularly with its decision entering summary judgment in favor of Bless on Count
IV, his administrative-review claim. See 7/19/18 Mem. Op. & Order, ECF No. 352.
In brief, this case arises from Bless’s employment as an officer for the CCSO from
1997 until the Merit Board voted to terminate him in May 2013. The basis for the
termination was that Bless had received workers’ compensation benefits and salary
while simultaneously working unauthorized second jobs from December 2008
through 2010. R. 18–28.1
The Merit Board is an administrative body created by Illinois statute, and its
members are appointed by the Cook County Sheriff and approved by the Cook County
Board of Commissioners (“County Board”). 55 Ill. Comp. Stat. 5/3–7002 (West 2012).
At the time of the decision in Bless’s case, the Merit Board consisted of seven
members appointed for six-year terms “and until their successors are appointed and
qualified for a like term.” Id.

The court cites to the Administrative Review Record, filed as ECF Nos. 26–29, using
its original pagination. ECF Nos. 26-2 through 26-4 encompass pages 1–302 of the record;
ECF Nos. 27-1 through 27-3 encompass pages 303–672; ECF Nos. 28-1 through 28-3
encompass pages 673–932; and ECF Nos. 29-1 and 29-2 encompass pages 933 through 1091.
1

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In May 2011, Cook County Sheriff Thomas Dart requested approval from the
County Board to appoint John R. Rosales to the Merit Board on an interim basis to
fill the vacancy of Commissioner Daniel Lynch, whose term was set to expire on
March 19, 2012. Taylor, 81 N.E.3d at 4. The County Board approved Rosales’s
appointment on June 1, 2011. Id. After Commissioner Lynch’s term expired, Sheriff
Dart did not reappoint Rosales to the Merit Board, yet Rosales continued to serve
until at least May 2017. Id.
In Bless’s case, proceedings began in October 2011, when Sheriff Dart filed
formal charges with the Merit Board.

R. 18–23.

The Merit Board—including

Rosales—issued a written decision on May 6, 2013, terminating Bless’s employment
with the CCSO. R. 24–28. Bless filed suit in this Court soon thereafter seeking,
among other things, review of the Merit Board’s decision pursuant to Illinois’s
Administrative Review Law, 735 Ill. Comp. Stat. 5/3–110. See Compl., ECF No. 1.
In May 2017, the Illinois Appellate Court concluded in Taylor that Rosales’s
appointment did not comply with 55 Ill. Comp. Stat. 5/3–7002 because the statute
required appointment to a six-year term, yet Rosales was appointed only on an
interim basis. 81 N.E.3d at 4–6. Accordingly, the Illinois Appellate Court concluded
that the decision then under review—the termination of plaintiff Percy Taylor—was
void due to Rosales’s continued tenure and participation. Id. at 10. The court
“vacated and remanded for a hearing before a legally constituted Merit Board.” Id.
By that time, Bless’s administrative-review claim was ripe for a decision by
this Court. In his summary-judgment briefing as to that claim, Bless argued for the

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first time that, under Taylor, Rosales’s appointment rendered the Merit Board’s
decision void. See Pl.’s Mem. Supp. Admin. Review Claim at 11, ECF No. 291.
At the time of the Court’s decision, no other court had passed on the effect of
Taylor on subsequent challenges to Rosales’s appointment. Accordingly, the Court
accepted Taylor as a statement of the law in Illinois and ruled in favor of Bless as to
his administrative-review claim. See 7/19/18 Mem. Op. & Order at 8. In accordance
with Taylor and other precedent, the Court vacated the Merit Board’s decision and
remanded for a hearing before a lawfully constituted Merit Board. Id.
Meanwhile, the parties completed briefing on Bless’s remaining claims for
discrimination and retaliation pursuant to Title VII and 42 U.S.C. § 1983. After a
discussion with the parties, the Court concluded that Bless’s race-discrimination
claims were likely to be affected by the remanded Merit Board proceedings and,
therefore, stayed briefing on those claims until the conclusion of that process. See
9/20/18 Minute Entry, ECF No. 365. The Court allowed re-briefing, however, as to
Bless’s claim for retaliation under the First Amendment and § 1983. Id.
Since then—nearly a year later—the parties have informed the Court that
proceedings have not resumed before the Merit Board, with each side blaming the
other for its failure to move for a “new trial,” and the Merit Board seeking “guidance”
on whether to “place Plaintiff’s case back on its docket.” See Joint Status Report, ECF
No. 412. Additionally, although the parties have completed briefing as to Bless’s
retaliation claim, Defendants have also moved to reconsider the Court’s

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administrative-review opinion. Because the validity of the Merit Board proceedings
affects nearly every claim in this case, the Court considers Defendants’ motion [400].
Legal Standard
District courts have discretion to entertain motions to reconsider prior
decisions. See Patrick v. City of Chi., 103 F. Supp. 3d 907, 911 (N.D. Ill. 2015); Fed.
R. Civ. P. 54(b); see also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460
U.S. 1, 12 (1983) (“[E]very order short of a final decree is subject to reopening at the
discretion of the district judge.”).

But while motions for reconsideration are

permitted, “they are disfavored,” Patrick, 103 F. Supp. 3d at 911, and serve a very
limited purpose: correcting manifest errors of law or fact and presenting newly
discovered evidence. Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d
1264, 1270 (7th Cir. 1996).
This is a heavy burden for the moving party and makes a motion for
reconsideration an inappropriate medium to “rehash” past arguments, Patrick, 103
F. Supp. 3d at 912 (citations omitted), or revisit improvident strategic decisions made
earlier, Birdo v. Gomez, No. 13 C 6864, 2016 WL 6070173, at *1 (N.D. Ill. Oct. 17,
2016) (citation omitted). Accordingly, motions for reconsideration will be granted
only where “the Court has patently misunderstood a party, or has made a decision
outside the adversarial issues presented to the Court by the parties, or has made an
error not of reasoning but of apprehension.” Bank of Waunakee v. Rochester Cheese
Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). One such instance is when there has

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been “a change in, or clarification of, law that makes clear that the earlier ruling was
erroneous,” Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 572 (7th Cir. 2006)).
Given these exacting standards, issues appropriate for reconsideration “rarely arise
and the motion to reconsider should be equally rare.” Bank of Waunakee, 906 F.2d
at 1191 (citation omitted).
Analysis
In their motion to reconsider, Defendants contend that Taylor no longer
controls the outcome of Bless’s Merit Board proceedings. Instead, they point out, the
Illinois Appellate Court has since confined Taylor to its facts. In Lopez v. Dart,
118 N.E.3d 580 (Ill. App. Ct. 2018), the Illinois Appellate Court held that the “de facto
officer doctrine” prevents the invalidation of any Merit Board decisions involving
Rosales, except as to the “first challenger of the improper appointment,” namely,
Percy Taylor. Id. at 594–95. Bless, however, contends that this Court should not
reconsider its earlier decision because Defendants have waived reliance on the de
facto officer doctrine, Lopez is not controlling, and the doctrine is inapplicable to the
facts of this case.
I.

Waiver
As an initial matter, Bless contends that Defendants cannot rely on the de facto

officer doctrine because they failed to raise it in response to his administrative-review
claim in the first instance. The Court disagrees. First, although the de facto officer
doctrine predates the Taylor and Lopez decisions, Lopez was the first case to apply it
to the situation at hand. See id. Before that, the court in Taylor had held clearly that

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the de facto officer doctrine did not apply, at least on the facts of that case. See 81
N.E.3d at 10. Accordingly, Defendants’ failure to raise the de facto officer doctrine at
a time when Taylor was the only relevant precedent was at least understandable.
Not only that, but even if the Court were to hold that Defendants waived
reliance on the de facto officer doctrine, it would be appropriate in this situation to
overlook the waiver. Indeed, the Illinois Appellate Court has disregarded waiver or
forfeiture in two of its cases on this very issue, explaining that “forfeiture serves as a
limit on the parties, not on the court.” Cruz v. Dart, 127 N.E.3d 921, 930 (Ill. App.
Ct. 2019); see Lopez, 118 N.E.3d at 589 (“[T]he waiver rule may be relaxed in order to
maintain a uniform body of precedent or where the interests of justice so require.”).
In those cases, the appellate court found it appropriate to reach the improper
appointments and the de facto officer doctrine, because those issues went to “the
validity of the [Merit Board’s] decision.” Cruz, 127 N.E.3d at 930. The same is true
here—in order to avoid vacating a possibly valid Merit Board order, the Court will
take this opportunity to address all the relevant legal issues impacting the board’s
authority to issue that order. See Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 608 (7th
Cir. 2012) (explaining that a waiver is enforced “unless the interests of justice require
otherwise”).
II.

De Facto Officer Doctrine
The Court thus turns to the application of Lopez and the de facto officer

doctrine on the validity of the Merit Board’s decision in this case. As described in
Lopez, “[t]he de facto officer doctrine is a common law equitable doctrine that ‘confers

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validity upon acts performed by a person acting under the color of official title even
though it is later discovered that the legality of that person’s appointment or election
to office is deficient.’” 118 N.E.3d at 590 (quoting Ryder v. United States, 515 U.S.
177, 180 (1995)). Because the doctrine has evolved significantly from its origins to
the present, some discussion of the doctrine’s history and treatment by Illinois courts
is necessary.
A.

Development of the De Facto Officer Doctrine

As the Lopez court explained, the de facto officer doctrine has “feudal origins”
and has been widely accepted by a variety of courts for at least a century. 118 N.E.3d
at 590–91; see, e.g., Glidden Co. v. Zdanok, 370 U.S. 530, 535 (1962) (citing McDowell
v. United States, 159 U.S. 596, 601–02 (1895)); U.S. ex rel. Doss v. Lindsley, 148 F.2d
22, 23 (7th Cir. 1945); People v. O’Neill, 210 N.E.2d 526, 528–29 (Ill. 1965); People ex
rel. Chillicothe Twp. v. Bd. of Review of Peoria Cty., 167 N.E.2d 553, 554 (Ill. 1960);
Lavin v. Bd. of Comm’rs, 92 N.E. 291, 295 (Ill. 1910). The basic doctrine holds that
“[a] person actually performing the duties of an office under color of title is an officer
de facto, and his acts as such officer are valid so far as the public or third parties who
have an interest in them are concerned.” Chillicothe Twp., 167 N.E.2d at 554. This
doctrine developed essentially as a matter of practicality:
The de facto doctrine springs from the fear of the chaos that would result
from multiple and repetitious suits challenging every action taken by
every official whose claim to office could be open to question, and seeks
to protect the public by insuring the orderly functioning of the
government despite technical defects in title to office.
Ryder, 515 U.S. at 180 (citation omitted).

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In its earliest form, the de facto officer doctrine permitted only “direct”
attacks—that is, challenges to the qualifications of an officer—which, in Illinois, could
be brought only in a separate action for a writ of quo warranto.2 See Lopez, 118
N.E.3d at 591 (citing SW Gen., Inc. v. NLRB, 796 F.3d 67, 81 (D.C. Cir. 2015);
Andrade v. Lauer, 729 F.2d 1475, 1496 (D.C. Cir. 1984)). These “direct” attacks were
distinct from impermissible “collateral” attacks, which sought to challenge
government action on the basis of an official’s improper qualifications.

Id.; see

Chillicothe Twp., 167 N.E.2d at 554 (“[A] writ of quo warranto . . . may be employed
to try the validity of the organization and title of the officers of public bodies, but it is
not a proper proceeding to test the legality of the official acts of public officers.”).
Accordingly, throughout most of the twentieth century, challenges to
governmental actions on the basis of an official’s improper qualifications were
categorically barred. Common examples included challenges to wartime drafts based
upon the composition of the draft board, e.g., Wright v. Ingold, 445 F.2d 109, 113 (7th
Cir. 1971); the authority of malapportioned legislatures to reapportion themselves,
e.g., Maryland v. Comm. for Fair Rep. v. Tawes, 377 U.S. 656, 675 (1964); People ex
rel. Engle v. Kerner, 205 N.E.2d 33, 39 (Ill. 1965); and tax assessments made by
unlawfully elected county boards, e.g., O’Neill, 210 N.E.2d at 528; Chillicothe, 167
N.E.2d at 554–55.

In present-day Illinois, a writ of quo warranto must be brought on behalf of the people
of the State of Illinois by the Attorney General or the State’s Attorney or, if the State refuses
to pursue the action, by an interested party with leave of the Court. See 735 Ill. Comp. Stat.
5/18-101; id. 5/18-102.
2

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In recent times, however, the de facto officer doctrine has been relaxed in many
jurisdictions. For instance, the United States Supreme Court has eschewed the
doctrine in the face of challenges to violations of the Appointments Clause and
Article III power, concluding that the de facto officer doctrine does not apply where
the error “relates to basic constitutional protections designed in part for the benefit
of litigants,” Glidden Co., 370 U.S. at 536, or “violations of . . . statutory provision[s]
that ‘embod[y] a strong policy concerning the proper administration of judicial
business.’” Nguyen v. United States, 539 U.S. 69, 78 (2003). And courts like the D.C.
Circuit, focusing more on timing, have dispensed with the de facto officer doctrine
when (1) the plaintiff brought the action “at or around the time that the challenged
government action is taken” and (2) “the agency or department involved has had
reasonable notice under all the circumstances of the claimed defect in the official’s
title to office.” Andrade, 729 F.2d at 1499.
B.

The De Facto Officer Doctrine in the Illinois Supreme Court

The most recent discussion of the de facto officer doctrine by the Illinois
Supreme Court arose in a trio of cases decided nearly twenty years ago. These
decisions—Daniels v. Industrial Commission, 775 N.E.2d 936 (Ill. 2002), Baggett v.
Industrial Commission, 775 N.E.2d 908 (Ill. 2002), and Vuagniaux v. Dep’t of Prof’
Regulation, 802 N.E.2d 1156 (Ill. 2003)—form the basis of the rule the Illinois
Appellate Court articulated in Lopez. Each decision is worth examining in some
depth.

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1.

Daniels

In Daniels, the Illinois Supreme Court was confronted with a situation not
unlike that which occurred in Taylor. The claimant, Pervis Daniels, filed for an
adjustment of his workers’ compensation claim, and his case was reviewed by a panel
of the state Industrial Commission. 775 N.E.2d at 938. Two members of the panel
vacated their posts before Daniels’s case was heard, and the acting chairman of the
Commission appointed a succession of arbitrators to temporarily fill the vacated
posts—in violation of the Workers’ Compensation Act. Id. A majority of the Illinois
Supreme Court (four justices) agreed that this procedure violated the Act and, thus,
vacated and remanded the decision for a hearing before a properly appointed
Commission. Id. at 940, 946–47. The court was split, however, on the reasons for its
decision and the application of the de facto officer doctrine. Id.
In an opinion announcing the decision of the court,3 Chief Justice Harrison
wrote that “[w]here an administrative agency acts outside its specific statutory
authority, as the Commission did . . . it acts without jurisdiction. Its actions are void,
a nullity from their inception.” Id. at 940. As for the de facto officer doctrine, all
Chief Justice Harrison had to say was that “[n]o considerations of public policy
militate in favor of preventing workers’ compensation claimants from challenging the
legal status of the commissioners . . . where, as here, the challenge is raised on direct

Subsequent opinions have assumed that, in order to reach the four justices needed to
form a majority, Justice Kilbride must have joined Chief Justice Harrison in this opinion.
See Lopez, 118 N.E.3d at 593.
3

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review . . . and the commissioners were appointed in a manner that threatens the
Act’s basic objectives.” Id.
In a special concurrence joined by Justice Freeman, Justice McMorrow
explained her disagreement with Chief Justice Harrison’s view of the de facto officer
doctrine. See id. at 944 (McMorrow, J., specially concurring). Citing precedent from
the United States Supreme Court, Justice McMorrow explained the de facto officer
doctrine’s role in serving the “public’s interest in promoting the orderly functioning”
of government. Id. at 945. Still, she went on, that interest may in some cases be
counterbalanced by a competing public interest in “uncovering illegal appointment
procedures, thereby ensuring that administrative agencies comply with the statutory
mandates which govern them.” Id. Accordingly, Justice McMorrow advocated a novel
approach (which the Court will call the “first-challenger principle”): the “claimant
who brought the illegal appointments to light” should receive a new hearing, but the
de facto officer doctrine should be applied “to maintain the validity of the decisions
rendered by the illegally composed commission” in subsequent cases. Id. at 945–46.
Justice Fitzgerald, dissenting, agreed with Justice McMorrow that the de facto
officer doctrine applied, but disagreed with her novel first-challenger principle. Id.
at 947–48 (Fitzgerald, J., dissenting). Instead, drawing on Illinois Supreme Court
cases like Chillicothe Township, O’Neill, and Engle, Justice Fitzgerald emphasized
that Daniels’s challenge “amount[ed] to an improper collateral attack” on the office of
the unlawfully appointed commissioners. Id. at 948. Thus, “[e]ven assuming that

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[the commissioners] were not appointed in accordance with the governing statute,
they were at least de facto commissioners with authority to act.” Id.4
2.

Baggett

The next discussion by the Illinois Supreme Court of the de facto officer
doctrine arose under more atypical circumstances. The court issued its original
opinion in Baggett—another workers’ compensation case—shortly before its opinion
in Daniels. The initial opinion did not discuss the de facto officer doctrine or, for that
matter, any problem with the officers appointed to the Industrial Commission. After
Daniels, however, the employer (the Marion school district) petitioned for rehearing
based on the same unlawful appointment issue. 775 N.E.2d at 917–18.
The court denied rehearing. Id. at 917. But Justices Fitzgerald, Thomas, and
Garman dissented from the denial of rehearing based on concerns about the de facto
officer doctrine. Justice Thomas, in an opinion that Justices Fitzgerald and Garman
joined, voiced his suspicion that, in denying rehearing, the court implicitly was
applying Justice McMorrow’s first-challenger approach—an approach with which he
vigorously disagreed. Id. at 919–21 (Thomas, J., dissenting). In Justice Thomas’s
view,
[t]he bottom line is that there are only two legitimate means of
addressing the issue raised both by Daniels’ appeal and the District’s
petition for rehearing.
Either the decisions rendered by [the
commissioners] are de facto valid, in which case no one gets a new
hearing, or those decisions are void, in which case everyone gets a new
hearing. There is no middle ground, and in attempting to forge one, this
The two remaining justices—Justices Thomas and Garman—joined a separate dissent
that did not discuss the de facto officer doctrine. See 776 N.E.2d at 948–51 (Thomas, J.,
dissenting).
4

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court breaches its fundamental duty to ensure that the law is
administered fairly and equally.
Id. at 921. Justice Fitzgerald wrote a separate dissent expounding similar concerns
and reiterating his belief that all collateral challenges to administrative authority are
barred by the de facto officer doctrine. Id. at 918 (Fitzgerald, J., dissenting).
3.

Vuagniaux

The next (and most recent) Illinois Supreme Court discussion of the de facto
officer doctrine arose in Vuagniaux, which this Court addressed to some extent in its
ruling on Bless’s administrative-review claim. See 7/19/18 Mem. Op. & Order at 7–
8. In Vuagniaux, the court evaluated another unlawful appointment that occurred
during proceedings before the Medical Disciplinary Board, a division of the
Department of Professional Regulation. 802 N.E.2d at 1160, 1162. There, Thad
Vuagniaux—a chiropractic physician who was facing disciplinary proceedings—
moved for exclusion of a member of the Medical Disciplinary Board.

Id.

An

administrative law judge granted the motion, and the Medical Disciplinary Board
named a new member to serve in the proceedings. Id. Vuagniaux challenged this
appointment directly before the board as violating the Medical Practice Act’s
appointment scheme, which required members to be appointed by the Governor with
the advice and consent of the Senate. Id. Ultimately, the Illinois Supreme Court
agreed that the appointment violated the Act and set aside the Medical Disciplinary
Board’s decision. Id. at 1166.
Although a majority of the court concurred in this result, the opinion (written
by Justice Rarick, who joined the court after Daniels and Baggett) spent little time on

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the de facto officer doctrine. As to this point, the court noted that “the Department
makes no claim that its decision can be legitimized on the grounds that [the board
member] was a de facto officer.” 802 N.E.2d at 1165. Still, the court went on to add
this gloss:
The case before us does not involve the effects of an officer’s acts on a
member of the public or a third party, and the officer’s qualifications to
act are not being contested in a collateral proceeding. The challenge to
[the officer’s] authority to act as a member of the Board was raised in
the proceeding in which [he] was appointed, at the time the appointment
was made, by a doctor whose case was directly affected by the
appointment, to the tribunal responsible for considering the disciplinary
charges against the doctor, and before the tribunal considered the
doctor’s case on the merits or made its recommendations. The de facto
officer doctrine is therefore inapplicable.
Id. Although Justices McMorrow, Freeman, and Garman dissented from the court’s
opinion, they did not take issue with this aspect of the court’s analysis. See id. at
1172–74 (McMorrow, J., dissenting).
C.

Illinois Appellate Court Analysis of the De Facto Officer
Doctrine as Applied to the Merit Board

Daniels, Baggett, and Vuagniaux have been applied in varying ways by the
Illinois Appellate Court in cases involving improper appointments to the Merit Board.
First, in Taylor, the Appellate Court concluded that the doctrine did not apply.
81 N.E.3d at 9–10. Citing Vuagniaux, the Taylor court stated: “even if the Merit
Board’s decision was voidable, the de facto officer doctrine would not apply in this
case because the plaintiff raised the illegality of Mr. Rosales’s appointment to the
Merit Board on direct review, not in a collateral proceeding.” Id. at 10.

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In Lopez, the Illinois Appellate Court held otherwise, concluding that even if
Taylor was able to benefit from his challenge to Rosales’s appointment, no later
challengers could do so.

118 N.E.3d at 594–95.

On the way to reaching that

conclusion, the court acknowledged that the de facto officer doctrine has continuing
force in Illinois, correctly noting that five justices (McMorrow, Freeman, and
Fitzgerald in Daniels; Thomas and Garman in Baggett) had agreed that the doctrine
bars some challenges to official action based on improper qualifications. Id. But,
going further, the Appellate Court “agree[d] with the sound reasoning of Justice
McMorrow in Daniels . . . . that in a collateral proceeding, it is best to draw a line and
permit only the first challenger of the improper appointment to invalidate the
agency’s decision, but no others.” Id. Based upon this rationale, the court barred
Lopez’s challenge to Rosales’s appointment, distinguishing Taylor on the basis that
Percy Taylor was “the first to bring to light the improper appointment of Rosales
and . . . public interest was better served by permitting that improper appointment
to be brought to light.” Id. at 595.
Since Lopez, the Illinois Appellate Court has adopted the first-challenger rule,
see Acevedo v. Cook County Sheriff’s Merit Board, ___ N.E.3d ___, No. 1-18-1128, 2019
WL 2041270, at *6–9 (Ill. App. Ct. May 7, 2019); Cruz, 127 N.E.3d at 930–32; but it
has struggled to apply it in particular circumstances, both expanding and limiting
its reach. For example, in Cruz, the plaintiff tried to distinguish Lopez by arguing
that he was not contesting the validity of Rosales’s appointment, but that of other
Merit Board members. The Cruz court disagreed, expanding the first-challenger rule

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to include cases where the plaintiff challenged “the same problem with the
appointment procedure” that had been the subject of prior litigation, even where the
suit involved different officers. 127 N.E.3d at 931; see also Pietryla v. Dart, ___ N.E.3d
___, No. 1-18-2143, 2019 WL 3416670, at *2–3 (Ill. App. Ct. July 26, 2019).
By contrast, in Goral v. Dart, ___ N.E.3d ___, No. 1-18-1646, 2019 WL 2716196,
at *11–14 (Ill. App. Ct. June 19, 2019), the plaintiffs had been charged by an invalid
Merit Board (based on the appointment problem identified in Taylor) and then
subjected to “amended” charges after the Sheriff appointed a new Merit Board. Id.
at *2. The plaintiffs contended that the Merit Board’s previous lack of authority could
not be cured by the Sheriff’s filing of “amended” charges. Id. The court of appeals
went on to reach the plaintiffs’ challenge, concluding that the situation was
distinguishable from Lopez, Cruz, and Acevedo because “[i]n each of those decisions,
the Sheriff’s employee did not challenge the Board’s authority until after the Board’s
final decision was issued.” Id. at *12. In Goral, by contrast, “[p]laintiffs have been
raising statutory-authorization arguments before the Board since their cases began,
they continue to raise them, and they raised them in this separate lawsuit . . . before
a final administrative [decision] was rendered.” Id.
Based upon this reasoning, the Goral court announced a new twist in the Lopez
rule:
Once Taylor was decided, any Sheriff’s employee whose case was thenpending before the Board, or who was charged in a new case post-Taylor,
had every right to challenge the Board’s composition for the same
reasons as in Taylor (or for different reasons). Old cases already finally
decided, no, but pending or new administrative cases, yes. Plaintiffs’
cases were pending at the time of the Taylor [decision], and the “de facto

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officer” doctrine did not prevent them from challenging the Board’s
composition.
Id. at *13.
This limitation to the first-challenger principle was necessary, the court
explained, because if the de facto officer doctrine barred challenges to pending Merit
Board proceedings, the doctrine would be “inflate[d] . . . from a practical doctrine that
avoids chaos and promotes finality of old administrative decisions into a doctrine that
provides a board with carte blanche immunity to continue violating the law, going
forward, and perhaps forever, brushing aside the Taylor decision like a piece of lint
on a suit coat.” Id. Thus, the court said, its new rule was consistent with the twin
public interests discussed in Justice McMorrow’s Daniels concurrence. See id.
D.

Application of the De Facto Officer Doctrine

It is clear that, at this point, Taylor no longer controls the outcome of
challenges to the Merit Board’s composition. Accordingly, the Court turns to Lopez
and its progeny—as well as the Illinois Supreme Court cases discussed therein.
Ordinarily, the Court must apply state law the way it believes the Illinois
Supreme Court would apply it. Kaplan v. Pavalon & Gifford, 12 F.3d 87, 89 (7th Cir.
1993). In accordance with this principle, decisions of the Illinois Appellate Court are
typically considered persuasive, rather than binding, on the federal courts. See AAR
Aircraft & Engine Grp., Inc. v. Edwards, 272 F.3d 468, 470 (7th Cir. 2001). Still,
“[w]here the Illinois Supreme Court has not ruled on an issue, decisions of the Illinois
Appellate Courts control, unless there are persuasive indications that the Illinois
Supreme Court would decide the issue differently.” Nationwide Agribusiness Ins. Co.

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v. Dugan, 810 F.3d 446, 450 (7th Cir. 2015); see also AAR Aircraft & Engine Grp., 272
F.3d at 470 (explaining that state intermediate court decisions are “authoritative”
unless a federal court has a “compelling reason to doubt that they have stated the law
correctly”).
Although this Court has some misgivings about the Lopez court’s adoption of
the first-challenger rule (as will be explained below), it concludes that following the
rule established in Lopez is the most appropriate approach. The Appellate Court
decisions addressing the various challenges to the Merit Board provide the most
recent discussion of the de facto officer doctrine in the state courts by a margin of
nearly twenty years. These decisions are directly on point, as they address not only
the specific agency at issue in this case, but also the same procedural challenge.
Furthermore, although the Illinois Supreme Court discussed the de facto officer
doctrine in Daniels, Vuagniaux, and Baggett, those opinions do not set forth clear
contours for the doctrine or its exceptions. Rather, it is Lopez, and the cases following
it, that have crystallized the Supreme Court’s analysis into generally applicable
principles.
Applying these principles then, the Court must grant Defendants’ motion to
reconsider. In Lopez, the Illinois Appellate Court ruled that “the first plaintiff who
raise[s] the issue of the validity of [a board’s] decision should be granted a new
hearing, but, in other cases, the de facto officer doctrine should apply to maintain the
validity of the decisions rendered by [the board] in which the . . . illegally appointed
panel members participated.” 118 N.E.3d at 593–94. Accordingly, Bless’s challenge

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to Rosales’s confirmation cannot proceed, since he raised it for the first time after
Taylor was decided. Bless argues that his case is distinguishable from Lopez, Cruz,
and Acevedo, because the lawsuits in those cases were filed after Taylor; by contrast,
he argues, he had already initiated his administrative-review claim in this Court
when Taylor was issued.

But Goral confirms that this distinction makes no

difference. There, the Illinois Appellate Court explained that, in addition to Taylor
himself, the only litigants who may raise Taylor challenges to the Merit Board’s
composition are those whose cases were pending before the board when Taylor was
decided “or who [were] charged in a new case post-Taylor.” 2019 WL 2716196, at *13.
Bless’s Merit Board proceedings had already concluded when he raised his Taylor
challenge, so he does not fit into this narrow exception to the first-challenger rule.
Although the Court finds the Illinois Appellate Court’s analysis of the de facto
officer doctrine to be authoritative, the Court notes that there is reason to question
whether the Illinois Supreme Court will ultimately adopt the same approach. First,
the Court is not entirely convinced of the soundness of the first-challenger principle
enunciated by Justice McMorrow in Daniels. Only two justices—McMorrow and
Freeman—signed on to that concept in Daniels itself. Furthermore, despite the fears
expressed by Justice Thomas’s dissent in Baggett, the Court does not believe that the
Supreme Court’s denial of rehearing in that case necessarily compels the conclusion
that the Baggett court adopted the first-challenger rule. Like denials of petitions for
leave to appeal, the Court thinks it inadvisable to glean too much from a mere denial
of rehearing. See, e.g., In re Leona W., 888 N.E.2d 72, 81 (Ill. 2008) (“Denials of

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petitions for leave to appeal are not decisions on the merits.”); People v. Ortiz, 752
N.E.2d 410, 424 (explaining that denials of petitions for leave to appeal “carry no
connotation of approval or disapproval of the appellate court action, and signify only
that four members of this court, for reasons satisfactory to them, have not voted to
grant leave”). In the end, there is little indication that Justice McMorrow’s firstchallenger principle has been accepted by more than two Justices on the Illinois
Supreme Court.
Furthermore, Justice Thomas’s dissent in Baggett (with which Justices
Fitzgerald and Garman agreed) raises some valid concerns about the first-challenger
approach. 775 N.E.2d at 918–21 (Thomas, J., dissenting). Posing the hypothetical of
100 litigants who all filed lawsuits on the same day following an exposé of an unlawful
appointment, he posited:
Assuming the challenged decisions are de facto valid, only one of those
litigants will receive undeserved relief. This means that 99 other
litigants, all of whom invested a great deal of time, grief, and expense at
the invitation of this court, will have done so in vain. . . . Litigation is not
a raffle, and appellate relief should not be a door prize. For that matter
. . . how will this court decide who the lucky recipient of undeserved
appellate relief will be? . . . Will the door prize go to the first to have his
or her challenge adjudicated by the trial court? . . . The first case to be
decided by [the] appellate court? . . . The first petition for leave to appeal
filed in this court? . . . The first petition for leave to appeal allowed by
this court? . . . The answer, of course, is that there is no answer, because
courts should not be in the business of singling out and conferring upon
isolated litigants relief that the law clearly prohibits.
Id. at 920. Justice Thomas’s concerns about the rule’s unintended consequences help
explain the Appellate Court’s recent struggles to fashion a consistent and equitable
rule.

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That said, even if the Illinois Supreme Court were not inclined to follow Justice
McMorrow’s approach today, the Court thinks it likely that it would adopt some
version of the principles announced in Lopez, Cruz, Acevedo, and Goral. As the Lopez
court noted, the Supreme Court in Vuagniaux appeared to affirm the existence of the
de facto officer doctrine, and may have provided certain guiding principles for its
application. See 118 N.E.3d at 595.
There, the court permitted the plaintiff to challenge the appointment at issue,
noting that the challenge arose “in the proceeding in which the [appointee] was
appointed, at the time the appointment was made, by a doctor whose case was directly
affected by the appointment, to the tribunal responsible for considering the
disciplinary charges against the doctor, and before the tribunal considered the
doctor’s case on the merits or made its recommendations.” Vuagniaux, 802 N.E.2d at
1165. Here, as was the case in Lopez, Bless did not raise his challenge to Rosales’s
appointment before the Merit Board or even close to the time of the appointment
itself. See Lopez, 118 N.E.3d at 595; cf. Goral, 2019 WL 2716196, at *13.
Whatever reservations this Court may have about the first-challenger rule,
federalism is one of the cornerstones of our system of government, and the Court
believes that it is best left to the Illinois Supreme Court to determine whether it will
adopt the exceptions to the de facto officer doctrine currently being forged in the
Illinois Appellate Court; clarify its understanding of the doctrine as described in
Vuagniaux; or announce a different rule altogether. See Insolia v. Philip Morris Inc.,
216 F.3d 596, 607 (7th Cir. 2000) (“Federal courts are loathe to fiddle around with

22

state law.”); A.W. Huss Co. v. Cont’l Cas. Co., 735 F.2d 246, 253 (7th Cir. 1984) (noting
federal courts’ “limited discretion . . . with respect to untested legal theories brought
under the rubric of state law”); see also Knick v. Twp. of Scott, Pa., 139 S. Ct. 2162,
2188–89 (2019) (“[F]ederal courts should refrain whenever possible from deciding
novel or difficult state-law questions.”) (Kagan, J., dissenting) (citing cases). At this
point, the most directly applicable standards are found in the Illinois Appellate
Court’s cases following Lopez, and the Court cannot find a “compelling” reason to
deviate from them. See AAR Aircraft & Engine Grp., 272 F.3d at 470. What is more,
the outcome of Defendants’ motion would still be the same even if the Court were to
apply the general guidelines provided in Vuagniaux, rather than strictly following
the Illinois Appellate Court’s approach.
In the end, under either approach, Bless’s claim challenging Rosales’s
appointment simply came too late to present a meaningful challenge to the Merit
Board’s authority to adjudicate his case. Rather than raising Rosales’s unlawful
appointment at a time the Merit Board could have addressed it, Bless waited until
the Merit Board issued a decision on the merits and then sought to benefit from the
relief won by Percy Taylor. As a final note, remanding to the Merit Board at this
point would require it to start from scratch—a possible exercise in futility given the
fact that the board has already issued a decision on the merits that this Court can
substantively review.

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Conclusion
For the reasons stated, the Court grants Defendants’ motion to reconsider and
vacates its previous summary judgment opinion.

IT IS SO ORDERED.

ENTERED: 9/12/19

__________________________________
JOHN Z. LEE
United States District Judge

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