By:  Kimberly Glasford

Last week, in Goral v. Dart, 2020 IL 125085, the Illinois Supreme Court held that employees of the Sheriff of Cook County were not required to exhaust administrative remedies before challenging the statutory authority of the Cook County Sheriff’s Merit Board (Merit Board) to preside over pending disciplinary charges. The supreme court also determined that if the Merit Board lacked statutory authority, the de facto officer doctrine would not salvage the administrative proceeding.

Thomas Dart, the Sheriff of Cook County, filed disciplinary charges against several employees. While those administrative proceedings were pending before the Merit Board, the employees filed an action in the circuit court, seeking a declaration that the Merit Board’s composition did not comply with the Counties Code (55 ILCS 5/3-7011 (West 2012)). The plaintiffs argued that this negated the board’s authority to act.

The circuit court dismissed the action based on the plaintiffs’ failure to exhaust their administrative remedies, but the appellate court found the authority exception to that requirement applied. The appellate court also found that the de facto officer doctrine would not validate the Merit Board’s actions. The supreme court granted the plaintiffs leave to appeal.

On appeal, the supreme court recited the well-settled principle that a party may not seek judicial review of an unfavorable administrative decision unless he has exhausted all administrative remedies. This requirement furthers efficiency by giving agencies the opportunity to correct their own mistakes and defers to agencies’ factfinding and expertise. That said, an exception exists where a party challenges an agency’s “jurisdiction” as being not authorized by statute, a matter that involves neither factual issues nor agency experience.

The supreme court found that the plaintiffs’ challenge to the Merit Board’s composition, filed before any substantive action was taken by the board, fell within the authority exception.

In reaching this decision, the supreme court rejected the defendants’ assertion that the authority exception is limited to situations where an agency promulgates a rule outside the scope of the subject matter assigned by statute. Additionally, the legislature did not vest the Merit Board with the authority to make decisions regarding its own composition and such decisions did not fall within the board’s expertise. The supreme court also rejected the defendants’ assertion that the court’s ruling would expose the circuit court to a wave of interlocutory challenges, noting that lawyers are prohibited from filing frivolous lawsuits.

While defendants raised concerns about piecemeal litigation, the court found that “the height of inefficiency and waste is to allow the proceedings to continue before an administrative tribunal that is being challenged as illegally comprised,” which could lead to a void administrative decision. Goral, 2020 IL 125085, ¶ 63.

The supreme court also rejected the defendants’ assertion that the de facto officer doctrine saved the administrative proceedings and required dismissal of the circuit court action.

Under that doctrine, acts performed by a person acting under the color of official title are valid even though the legality of that person’s appointment is later discovered to be deficient. Such acts are valid to the extent that the public or interested third parties are concerned. The doctrine protects the public by preventing repetitious suits challenging actions by officials with questionable claims to office. Yet, the doctrine, a defense against collateral proceedings, does not preclude a timely challenge to an agency’s authority. “Thus, our precedent embraces the notion that, before being subjected to an administrative proceeding, a party should have some avenue to timely question and verify that the agency has authority to act.” Id. ¶ 73.

The supreme court found that the de facto officer doctrine did not apply because the plaintiffs challenged the Merit Board’s authority before the board had acted on the disciplinary charges.

The supreme court also disagreed with the notion that the plaintiffs were required to challenge the Merit Board’s authority via a quo warranto action, which is a proceeding to oust  an illegally appointed officer from office. The plaintiffs could not file a quo warranto action unless the State’s Attorney were to refuse to file the action and the circuit court granted the plaintiffs leave to do so. Consequently, a quo warranto action was not the most effective means of challenging the Merit Board’s authority.

Justice Michael J. Burke, joined by Justices Garman and Theis, dissented.  According to the dissent, the majority had misunderstood the historical context of the de facto officer doctrine and the authority exception to the requirement that parties exhaust administrative remedies did not apply. 

The Goral decision rewards prompt attacks on an administrative agency’s authority. Whether this results in an uptick in administrative litigants rushing to the circuit court remains to be seen.