Foley v. Godinez

2016 IL App (1st) 151814
No. 1-15-1814
Opinion filed August 2, 2016

Second Division
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

CONNIE FOLEY, CALVIN DREW, and ) Appeal from the Circuit Court
RAYMOND HAYES, ) of Cook County.
)
Plaintiffs-Appellants, )
) No. 13 CH 13589
v. )
)
S.A. “TONY” GODINEZ, as Director of ) The Honorable
Corrections, ) LeRoy Martin,
) Judge, presiding.
Defendant-Appellee. )

______________________________________________________________________________

JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Pierce and Justice Neville concurred in the judgment and opinion.

OPINION

¶1 The Director of the Illinois Department of Corrections refused to certify that three former

Corrections officers satisfied a set of requirements necessary for them to obtain a concealed carry

permit under federal law. The officers then filed a complaint for mandamus relief to compel the

Director to certify. The parties filed cross-motions for summary judgment regarding plaintiffs’

right to the requested relief and whether the Director had a nondiscretionary, ministerial duty to

certify. The trial court granted the Director’s summary judgment motion and denied plaintiffs’
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motion. The court found that plaintiffs were not entitled to mandamus relief because certifying

their status was not a purely ministerial act and required the Director to exercise discretion.

¶2 We affirm. Under the Law Enforcement Officers Safety Act (18 U.S.C. § 926A through

C (2006)), the Director has authority to decide whether an applicant meets the statutory

requirements to be certified as a qualified retired law enforcement officer. Thus, the act of

certification was a discretionary, nonministerial act, and mandamus relief—ordering the Director

to certify and submit the form—was inappropriate.

¶3 BACKGROUND

¶4 Law Enforcement Officers Safety Act

¶5 The Law Enforcement Officers Safety Act of 2004 (LEOSA) (18 U.S.C. § 926A through

C (2006)) permits qualified active or retired “law enforcement officers” who possess the required

identification to lawfully carry a concealed firearm across state lines without being subject to

prosecution under state and local laws. Section 926(C), which applies to retired officers, provides

that “[n]otwithstanding any other provision” of state law, a “qualified retired law enforcement

officer” who has the requisite identification may carry a concealed firearm in any state, subject to

state law restrictions on carrying concealed weapons in certain places. 18 U.S.C. § 926C(a)

(2006).

¶6 To be deemed a “qualified retired law enforcement officer” under LEOSA, a person must

meet these seven requirements: (i) separation in good standing from service with a public agency

as a law enforcement officer; (ii) before separation, having been authorized by law to engage in

or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of

any person for, any violation of law, and having statutory powers of arrest; (iii) before

separation, having served as a law enforcement officer for an aggregate of 10 or more years or

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separated from service after completing any applicable probationary period due to a service-

connected disability; (iv) during the most recent 12-month period, at his or her expense, meeting

the standards for qualification in firearms training for active law enforcement officers; (v) not

officially having been found unqualified for reasons relating to mental health or not having

entered into an agreement with the agency acknowledging that he or she is not qualified for

reasons relating to mental health; (vi) not being under the influence of alcohol or another

intoxicating or hallucinatory drug or substance; and (vii) not being prohibited by federal law

from receiving a firearm. 18 U.S.C. § 926C(c) (2006).

¶7 As noted, under LEOSA, a qualified retired law enforcement officer must have proper

identification before carrying a concealed weapon. The identification requirement can be

satisfied in one of two ways. An individual can obtain a photo ID from his or her former agency

stating that he or she was previously employed as a police officer or law enforcement officer

and, within the last year, has met the active duty standards for qualification in firearms training

to carry a firearm of the same type as the concealed firearm. 18 U.S.C. § 926C(d)(1) (2006). Or

the individual can obtain two documents—a photo ID from his or her former agency stating that

he or she was employed as a police officer or law enforcement officer (18 U.S.C.

§ 926C(d)(2)(A) (2006)) and a certification from the state or a certified firearms instructor

stating that within the last year, he or she has met either the state’s active-duty standards for

qualification in firearms training to carry a firearm of the same type as the concealed firearm or,

if the state does not have standards, then standards set by any law enforcement agency within

that state. 18 U.S.C. § 926C(d)(2)(B) (2006).

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¶8 Illinois Retired Officer Concealed Carry Program

¶9 In Illinois, the Law Enforcement Training and Standards Board (Board) administers a

program called the Illinois Retired Officer Concealed Carry program (IROCC) through which

qualified retired law enforcement officers may obtain concealed carry permits. 20 Ill. Adm. Code

1720.200 through 1720.900. The Board develops and processes applications and certifies retired

law enforcement officers qualified under LEOSA. 50 ILCS 705/10, 710/3 (West 2012).

¶ 10 Before an applicant will be prequalified for firearm certification, he or she must provide

the Board with a complete application, which consists of three forms. The applicant completes

two of them—the application form and an affidavit attesting to the applicant’s law enforcement

service and qualifications for carrying a firearm. The third form, the “Retirement/Separation

Verification” form, referred to as “Form 3,” must be completed by an authorized representative

of the state agency where the applicant previously worked. Form 3 requires the agency

representative to certify, under penalty of perjury, that the applicant was regularly employed as a

“Law Enforcement Officer” as defined by LEOSA for a specified number of years or was

separated from service with the agency due to a service-connected disability. An applicant’s

failure to provide information necessary to complete the application precludes any further

processing and results in denial of the application. 20 Ill. Adm. Code 1720.250(d), adopted at 30

Ill. Reg. 7925 (eff. Apr. 11, 2006). An applicant who submits a completed application is

prequalified for the firearms testing and, on successfully completing the firearm certification,

receives a card indicating IROCC certification and compliance with state and federal laws.

¶ 11 Plaintiffs, Connie Foley, Calvin Drew, and Raymond Hayes, are former parole agents for

the Department of Corrections who retired in good standing between 2001 and 2012. (Eight

former Department employees were initially named as plaintiffs, but only Foley, Drew, and

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Hayes are now parties.) Hayes worked for the Department for 11 years, and Foley and Drew

were Department employees for more than 30 years. After their retirement, each plaintiff applied

for a concealed carry permit through the IROCC program. The Board advised plaintiffs that their

applications would be processed only after receiving Form 3, signed by the Department’s

administrator certifying that each applicant met its requirements. Plaintiffs asked the Department

to submit Form 3 to the Board, certifying under penalty of perjury that plaintiffs met the

requirements to be certified as qualified retirement law enforcement officers. The Department

refused and advised plaintiffs it would not process, verify, or certify the information on Form 3.

¶ 12 Plaintiffs filed a one-count complaint for a writ of mandamus, asking the trial court to

order the Director to certify Form 3 and submit it to the Board. Plaintiffs alleged they had a right

to mandamus relief because they met all of the requirements to be deemed “qualified retirement

law enforcement officers” under LEOSA. They retired from the Department in good standing

after more than 10 years of service and asserted that, as parole agents, they had engaged in or

supervised the prevention of crimes and the incarceration of people for violating state criminal

laws and had statutory powers of arrest. Plaintiffs also asserted that under section 3 of the Peace

Officer and Probation Officer Firearm Training Act (50 ILCS 710/3 (West 2012)), which

requires agencies to “cooperate with the Board by furnishing relevant information which the

Board may require,” the Director has a nondiscretionary duty to provide the requested

information to the Board.

¶ 13 The Director filed a motion to dismiss under section 2-615 of the Illinois Code of Civil

Procedure (Code) (735 ILCS 5/2-615 (West 2012)), asserting that plaintiffs failed to state a claim

for which relief may be granted because the Department is not obligated to certify Form 3 and

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plaintiffs were not law enforcement officers under LEOSA. The trial court denied the motion to

dismiss.

¶ 14 The parties then filed cross-motions for summary judgment. The Director attached to his

motion a declaration from Brad Curry, the Department’s chief public safety officer. Curry stated

that since 2003, the Department has declined to certify Form 3 to the Board because (1)

Department employees had “limited statutory powers of arrest” that did not make them qualified

retired law enforcement officers for purposes of IROCC, (2) the restrictions pertaining to off-

duty firearm use coupled with limited powers of arrest do not warrant the same level of training

that is provided to qualified retired law enforcement officers under IROCC, and (3) certifying

Department personnel as qualified law enforcement officers for purposes of IROCC raises

serious public policy concerns because the Department lacks knowledge as to whether its

personnel receive the same level of firearms and other training as local law enforcement officers

established by the Board. Further, the Director asserted that he did not have sufficient knowledge

to certify that the plaintiffs were not under the influence of alcohol or drugs or are not prohibited

by federal law from possessing a firearm, as required by sections 926C(c)(6), (7) of LEOSA. 18

U.S.C. § 926C(c)(6), (7) (2006)).

¶ 15 In their motion for summary judgment, plaintiffs again argued that they met the statutory

definition of “qualified retired law enforcement officers” under LEOSA, because they worked

for the Department for at least 10 years, retired in good standing, were not unqualified for mental

health reasons, and were authorized to “engage in or supervise the prevention *** or the

incarceration of any person for, any violation of law, and had statutory powers of arrest” under

section 926C(c)(2) of LEOSA. 18 U.S.C. 926C(c)(2) (2006).

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¶ 16 After argument, the trial court granted the Director’s motion for summary judgment and

denied the plaintiffs’ motion. The court found that mandamus relief could not be granted because

the plaintiffs were asking the court to order the Director to certify that they were qualified retired

law enforcement officers, which “requires some discretion on his part and is not a purely

ministerial act.” The court stated that “it would appear to me that the federal act contemplates

that former corrections officers would be eligible” but noted that Congress has “[ceded] certain

powers to the state in determining whether or not an individual meets that state’s definition of a

law enforcement officer.” Plaintiffs appealed.

¶ 17 ANALYSIS

¶ 18 Plaintiffs contend the trial court erred in denying their motion for summary judgment and

granting defendant’s summary judgment motion. Plaintiffs maintain that they are qualified

retired law enforcement officers under LEOSA, that certifying Form 3 was a purely ministerial

act requiring no exercise of discretion by the Director, and that they are thus entitled to

mandamus relief. Plaintiffs also contend the Peace Officer and Probation Officer Firearm

Training Act (50 ILCS 710/3 (West 2012) requires the Department to cooperate with the Board

by furnishing relevant information and thus, the Director had a mandatory duty to certify Form 3

on their behalf. Alternatively, plaintiffs argue that if mandamus relief is not warranted, the case

should be remanded and they should be permitted to amend their complaint to seek declaratory

relief.

¶ 19 Standard of Review

¶ 20 Summary judgment is appropriate where the pleadings, affidavits, depositions, and

admissions on file, when viewed in the light most favorable to the nonmoving party, demonstrate

that there is no genuine issue of material fact and that the moving party is entitled to judgment as

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a matter of law. 735 ILCS 5/2-1005 (West 2012); Direct Auto Insurance Co. v. Beltran, 2013 IL

App (1st) 121128, ¶ 43.We review de novo a trial court’s order granting summary judgment. Id.

When parties file cross-motions for summary judgment, they agree that only a question of law is

involved and invite the court to decide the issues based on the record. See Pielet v. Pielet, 2012

IL 112064, ¶ 28. Moreover, whether plaintiffs were entitled to mandamus relief—namely,

whether the trial court should have ordered the Director to certify that they were “qualified

retired law enforcement officers”—depends on the proper interpretation of LEOSA. The

interpretation of a statute is a question of law, which we also review de novo. People v. Simpson,

2015 IL 116512, ¶ 29.

¶ 21 Mandamus

¶ 22 Where a public official has failed or refused to comply with requirements imposed by

statute, the court may compel the official to comply by means of a writ of mandamus, provided

the requirements for the writ have been satisfied. Noyola v. Board of Education of the City of

Chicago, 179 Ill. 2d 121, 132 (1997). An extraordinary remedy, mandamus enforces the

performance of a public officer’s official nondiscretionary duties as a matter of right. Rodriguez

v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429, 433 (2007). For mandamus to issue, a

plaintiff must establish material facts that demonstrate (1) an unequivocal right to the requested

relief, (2) an unequivocal duty on the defendant to act, and (3) defendant’s unequivocal authority

to comply with an order granting mandamus relief. Id. at 433-34. Mandamus cannot be used,

however, to compel a public official to perform an act that requires the exercise of his or her

discretion. McFatridge v. Madigan, 2013 IL 113676, ¶ 17 (“A writ of mandamus is appropriate

when used to compel compliance with mandatory legal standards but not when the act in

question involves the exercise of a public officer’s discretion.”); Hadley v. Ryan, 345 Ill. App. 3d

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297, 301-02 (2003) (mandamus could not be used to compel attorney general to prosecute a

claim where statute provides decision to prosecute was discretionary). “ ‘Mandamus cannot be

used to direct a public official or body to reach a particular decision or to exercise its discretion

in a particular manner, even if the judgment or discretion has been erroneously exercised.’ ”

Mabwa v. Mendoza, 2014 IL App (1st) 142771, ¶ 36 (quoting Crump v. Illinois Prisoner Review

Board, 181 Ill. App. 3d 58, 60 (1989)).

¶ 23 Plaintiffs contend they are qualified retired law enforcement officers with a right to a

concealed carry permit under LEOSA and, accordingly, the Director had a duty to certify their

status as qualified retired law enforcement officers and was authorized to do so. Because all three

requirements were met, plaintiffs insist that certifying Form 3 is a purely ministerial act and the

trial court erroneously deferred to the Director’s interpretation of LEOSA and his conclusion that

plaintiffs do not meet the statutory requirements to be deemed qualified retired law enforcement

officers. Plaintiffs assert that the trial court, not the Director, should determine whether they

meet the LEOSA requirements and if the court finds that they do, it should order the Director to

perform the ministerial task of certifying the form.

¶ 24 For support, plaintiffs cite State Board of Elections v. Shelden, 354 Ill. App. 3d 506

(2004). In Shelden, the county clerk stopped including voters’ telephone numbers in the voter-

registration information sent to the State Board of Elections. The Board of Elections filed a

complaint for mandamus, requesting that the trial court enter an order directing the county clerk

to furnish and release to it the voters’ telephone numbers, as required by statute. Id. at 508. The

trial court granted the complaint, in part, and the appellate court affirmed. Section 4-8 of the

Election Code (10 ILCS 5/4-8 (West 2002)) expressly imposed a nondiscretionary duty on the

county clerk to furnish the Board of Elections with a copy of any electronic data-processing

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information containing voter-registration information, including the voter’s “telephone number,

if any.” Shelden, 354 Ill. App. 3d at 512. Thus, the clerk had no discretion to determine whether

to furnish those phone numbers to the State Board of Elections. Id. at 513.

¶ 25 Plaintiffs argue that in Shelden, rather than deferring to the county clerk’s decision to

stop providing voters’ telephone numbers to the Elections Board, the court analyzed the Election

Code and its related provisions to define the scope of the county clerk’s legal duty. Similarly,

plaintiffs assert, the trial court should not have deferred to the Director’s erroneous interpretation

of the statute but should have examined the statute to define his authority. Plaintiffs suggest that

if the court had done that, it would have concluded that the Director has no discretion under the

statute to determine whether former employees meet the statutory requirements to be deemed a

qualified retired law enforcement officer.

¶ 26 We disagree. First, Shelden is not analogous. In Shelden, a plainly nondiscretionary

statutory provision was in dispute. The statute required the county clerk to furnish the Board of

Elections with voter’s “telephone number, if any.” 10 ILCS 5/4-8 (West 2002). LEOSA does not

contain similar nondiscretionary language ordering an agency to certify a former employee; thus,

the trial court’s task was not as clear cut. Further, the trial court did not simply defer to the

Director’s interpretation of the statute. The learned judge was thorough. The judge carefully

reviewed LEOSA, finding “Congress has *** [ceded] certain powers to the state in determining

whether or not an individual meets that state’s definition of a law enforcement officer.” The

court also examined Form 3 and found that it “does not read ministerially. That form

contemplates that the Director has to decide whether or not the applicant is a law enforcement

officer.” The court noted that if the form simply asked whether the applicants worked for the

Department and asked the Director to check a yes or no box, completing the form would be a

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ministerial act. But because the form requires “an analysis of whether or not the person was a

law enforcement officer,” the Director is required to make a decision and thus exercise

discretion, and his or her actions are not ministerial.

¶ 27 Plaintiffs’ reliance on Duberry v. District of Columbia, No. 15-7062, 2016 WL 3125217

(D.C. App. June 3, 2016), is also misplaced. In Duberry, which was released shortly before oral

arguments, the plaintiffs were four retired correctional officers who filed a declaratory judgment

action under 42 U.S.C. § 1983 (2012), alleging that they met the requirements for a permit under

LEOSA but that they could not obtain the necessary firearms training because the District of

Columbia refused to certify that, as correctional officers, they had a statutory power to arrest.

Duberry, 2016 WL 3125217, at *2. The only question was whether, in enacting LEOSA,

Congress created a federal right that is remediable under section 1983. The court answered in the

affirmative but expressly stated that it was not addressing the issue before this court—whether

the Director has discretion to decide if an applicant meets the statutory requirements to be

verified as a qualified retired law enforcement officer. The Duberry court stated, “[a]lthough a

state may retain some discretion, for example, to the extent it concludes that a retired law

enforcement officer seeking to exercise a LEOSA concealed-carry right is currently either not

physically or mentally capable of being in responsible possession of a firearm *** [but] the issue

of any discretion it may retain is not before this court.” Id. at *5. Thus, Duberry does not support

the plaintiff’s argument that the Director had no discretion in deciding whether to certify Form 3.

¶ 28 The right conferred by LEOSA—to carry a concealed firearm across state lines without

being subject to prosecution—is conditioned on meeting certain, express qualifications. The

statute states that to obtain a permit, an individual must be a “qualified retired law enforcement

officer” possessing photo identification and certification issued by his or her former agency

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confirming that he or she was a law enforcement officer and has met certain firearms

qualification standards. 18 U.S.C. § 926C(a), (d) (2006). Unlike the Election Code provision at

issue in Shelden, LEOSA does not order the Director to certify that former employees met the

seven requirements. It requires the Director to determine whether a former employee was

regularly employed as a “law enforcement officer” as defined in LEOSA. In addition, it grants

the Director discretion in determining whether or not a former employee satisfied the seven

requirements under the statute. Thus, certification of Form 3 is not a ministerial act, like signing

the form, and therefore, mandamus relief was unwarranted.

¶ 29 Plaintiffs also assert the Director had a duty to certify Form 3 because the Peace Officer

Firearm Training Act provides that all “agencies which employ or utilize peace officers, or that

certify retired law enforcement officers qualified under federal law to carry a concealed weapon,

shall cooperate with the Board by furnishing relevant information which the Board may require.”

50 ILCS 710/3 (West 2012). Plaintiffs assert that because they are qualified retired law

enforcement officers and Form 3 is relevant information required by the Board, the Department

“shall” cooperate with the Board by furnishing that document. While Form 3 is required by the

Board, section 43 of the Act does not require the Director to certify plaintiffs as qualified retired

law enforcement officers. It only requires that once the Director makes that determination, he or

she submit the “relevant information,” that is, Form 3. As noted, under LEOSA, the Director has

discretion and authority to determine whether a former employee meets the requirements of a

retired qualified law enforcement officer. Section 3 of the Peace Officer Firearm Training Act

does not diminish that authority and discretion.

¶ 30 Plaintiffs next contend they met all of the statutory requirements to be deemed a qualified

retired law enforcement officer. They explain in detail how their positions as parole agents

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qualified them as law enforcement officers who were “authorized by law to engage in or

supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any

person for, any violation of law, and had statutory powers of arrest.” But having decided that the

Director had discretion to determine whether plaintiffs were qualified retired law enforcement

officers, we need not decide that issue. A plaintiff must not only prove his or her unequivocal

right to the requested relief but also that defendant had an unequivocal duty to act. The Director

had discretion in deciding whether to certify plaintiffs as qualified retired law enforcement

officer and therefore, did not have a duty to act. As noted, “ ‘[m]andamus cannot be used to

direct a public official or body to reach a particular decision or to exercise its discretion in a

particular manner, even if the judgment or discretion has been erroneously exercised.’ ” Mabwa,

2014 IL App (1st) 142771, ¶ 36 (quoting Crump v. Illinois Prisoner Review Board, 181 Ill. App.

3d 58, 60 (1989)). Thus, even if the Director erred in finding that plaintiffs were not qualified

retired law enforcement officers, mandamus cannot be used to reach a different decision.

¶ 31 Declaratory Judgment

¶ 32 Plaintiffs alternatively ask that even if this court decides that mandamus relief is not

warranted, we remand the case to permit amending the complaint to add a declaratory judgment

count. But, arguments raised for the first time in a reply brief will not be addressed by the

appellate court. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013); 1010 Lake Shore Ass’n v. Deutsche

Bank National Trust Co., 2014 IL App (1st) 130962, ¶ 20. And while plaintiffs mention remand

to amend in one sentence in their opening brief, a nominal argument appears in the concluding

paragraphs of the reply brief.

¶ 33 Waiver aside, section 2-616(a) of the Code provides, in part, that amendments to

pleadings may be allowed on “just and reasonable terms” at any time before final judgment to

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enable the plaintiff to sustain the claim brought in the suit. 735 ILCS 5/2-616(a) (West 2012)

(emphasis added). The right to amend is “neither absolute nor unlimited” (I.C.S. Illinois, Inc. v.

Waste Management of Illinois, Inc., 403 Ill. App. 3d 211, 219 (2010)). The general rule is that

where a trial court dismisses a complaint and a plaintiff does not seek leave to amend, the cause

of action must stand or fall on the sufficiency of the stricken pleading. Stamp v. Touche Ross &

Co., 263 Ill. App. 3d 1010, 1019 (1993). This general rule best serves the interests of judicial

economy and prevents a plaintiff from circumventing the rule against interlocutory appeals. Id.

(party should not ordinarily be permitted to stand on pleadings before trial court and then seek

leave to amend in the appellate court after adverse ruling).

¶ 34 An exception to this general rule occurs when the supreme court decides a case that

favorably affects a potential count while the case is pending before the appellate court. Miller v.

Gupta, 174 Ill. 2d 120, 128 (1996). That exception does not apply here. Further, a request to

amend that is nothing more than an attempt to evade an unfavorable summary judgment outcome

should not be granted. See Freedberg v. Ohio National Insurance Co., 2012 IL App (1st)

110938, ¶ 44. Plaintiffs had ample opportunity to amend their complaint before the entry of the

final judgment against them and, for unknown reasons, did not elect to act.

¶ 35 Plaintiffs also argue that section 2-617 of the Code (735 ILCS 5/2-617 (West 2012))

supports their argument that they should be permitted to amend their complaint. Under section 2-

617, where a plaintiff has sought the wrong remedy and the pleading contains facts entitling the

plaintiff to relief on a different legal theory, the court may permit the pleading to be amended.

735 ILCS 5/2-617 (West 2012). We make no judgment as to whether a declaratory judgment

action is a viable cause of action for individuals, like the plaintiffs, who assert they are qualified

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retired law enforcement officers. But in this case and at this stage of the proceedings, the request

to amend the complaint to add an alternate form of relief comes too late.

¶ 36 Under these circumstances, we refuse in the first instance to entertain remand for a matter

that should have, and could have, been raised and dealt with by the trial court before the appeal

was perfected.

¶ 37 Affirmed.

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