dissenting:
I respectfully dissent.
Plaintiff, a DOC inmate, filed an amended petition for mandamus, alleging that DOC failed to comply with its regulations allowing him to call witnesses at his administrative disciplinary hearings. The trial court sua sponte appointed the Livingston County public defender to represent plaintiff. Defendants then filed a section 2 — 619(a)(9) motion to dismiss, alleging that plaintiff failed to exhaust his administrative remedies, he established no clear right to the relief he sought, his petition was time-barred, and his petition was barred by laches. On September 1, 2000, the trial court conducted a hearing by telephone conference call with the public defender and defendants’ attorney, granted the motion to dismiss, and immediately vacated the public defender’s appointment. Plaintiffs brief states he never asked for the appointment of an attorney, he never received a copy of the motion to dismiss, and the public defender never told him about it or spoke with him about it. Nothing in the record refutes plaintiffs allegations.
Appointment of counsel, while not required, is sometimes appropriate to ensure that prisoners have meaningful access to the courts. Tedder v. Fairman, 92 Ill. 2d 216, 225, 441 N.E.2d 311, 314-15 (1982). Where appointed counsel fails to exercise due diligence in proceeding with the case, however, the complaint should not be dismissed, and the cause will be remanded to allow plaintiff to amend to attempt to state a cause of action. Tedder, 92 Ill. 2d at 227, 441 N.E.2d at 316.
A section 2 — 619(a)(9) motion admits the legal sufficiency of plaintiffs complaint and goes on to suggest that the claim asserted is barred by other affirmative matter. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993). Defendant may not prevail on a section 2 — 619(a)(9) motion without establishing some affirmative matter which defeats the claim; simply negating the allegations of the plaintiffs complaint is not sufficient. Kedzie, 156 Ill. 2d at 115, 619 N.E.2d at 735.
The majority affirms because it concludes “that the trial court properly dismissed plaintiffs petition for fading to state a clear right to relief.” 333 Ill. App. 3d at 99. The majority’s action is contrary to established law. The section 2 — 619(a)(9) motion filed here admitted the legal sufficiency of plaintiffs complaint.
Despite the majority’s suggestion that mandamus does not afford a means to challenge or reverse an official’s discretionary acts, in particular “the decision not to interview an inmate’s witnesses” (333 Ill. App. 3d at 99), a number of cases have recognized that mandamus is an appropriate remedy to force DOC to comply with its rules regarding administrative disciplinary hearings, particularly the rules allowing the inmate to call witnesses. Tedder, 92 Ill. 2d at 227, 441 N.E.2d at 316; Durbin, 307 Ill. App. 3d at 343, 718 N.E.2d at 297; West v. Gramley, 262 Ill. App. 3d 552, 557, 634 N.E.2d 1261, 1265 (1994) (“We have previously recognized prisoners may file a complaint for mandamus to compel DOC officials to perform as required under the rules adopted by the DOC”). At the adjustment committee hearing, “[t]he committed person may make any relevant statement or produce any relevant documents in his or her defense.” 20 Ill. Adm. Code § 504.80(f)(1) (Conway Greene CD-ROM June 2002). “The [a]djustment [c]ommittee shall consider any statements of witnesses with relevant knowledge of the incident who are reasonably available.” 20 Ill. Adm. Code § 504.80(h) (Conway Greene CD-ROM June 2002). These rules are mandated by due process, which requires that when consistent with institutional safety and correctional goals, the inmate receive an opportunity to call witnesses and present documentary evidence in his defense. Durbin, 307 Ill. App. 3d at 343, 718 N.E.2d at 297.
The majority also discusses the evidence in this case, concluding that in one case plaintiffs witnesses were in fact called, and that in another case the witnesses were properly not called. 333 Ill. App. 3d at 98-99. The majority suggests that plaintiffs requests for witnesses were not properly submitted because “we have no way of knowing whether those requests were timely submitted or to whom they were submitted.” 333 Ill. App. 3d at 99. The majority concludes there is no support for plaintiffs claim that he sought to introduce documentary evidence but was denied that opportunity. 333 Ill. App. 3d at 99. This analysis is inappropriate on a section 2 — 619 motion (or for that matter, a section 2 — 615 motion). Simply negating the allegations of the plaintiffs complaint is not sufficient to prevail on a section 2 — 619 motion. Kedzie, 156 Ill. 2d at 115, 619 N.E.2d at 735. Complaining that there is no support for an allegation does not amount even to negating the allegations. The movant has the burden of proof on a section 2 — 619 motion. If the court has no way of knowing whether the allegations of the complaint or the motion are untrue, the motion should be denied.
The allegations in the section 2 — 619(a)(9) motion to dismiss that plaintiff failed to exhaust his administrative remedies and that his petition was time-barred do suggest “affirmative matter” which might defeat plaintiffs claim and warrant the granting of the motion. Such allegations might constitute those “easily proved issues of fact” independent of the overall merits of the case, which are appropriately decided at the outset of the case under section 2 — 619. People v. Philip Morris, Inc., 198 Ill. 2d 87, 94, 759 N.E.2d 906, 911 (2001); Byron Dragway, Inc. v. County of Ogle, 326 Ill. App. 3d 70, 76, 759 N.E.2d 595, 601 (2001). However, plaintiff was entitled to present “affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect.” 735 ILCS 5/2 — 619(c) (West 2000). In some cases plaintiff might even be entitled to present evidence. 735 ILCS 5/2 — 619(c) (West 2000). Plaintiff in this case, who was not even informed of the motion, was denied those rights, and the dismissal of the complaint should be reversed and remanded.
This case and other cases now before our court present the question whether a mandamus action is ever appropriate in this factual setting. If it is not, we should say so. Assuming mandamus is sometimes appropriate, the question is presented whether the summary procedures adopted by the trial court and by this court effectively separate the meritorious cases from those which are frivolous. I suggest they do not.
The majority mischaracterizes my dissent. I do not suggest that defendants’ motion to dismiss should have been brought under section 2 — 615 and not under section 2 — 619. Dismissal of a case under section 2 — 615 is not a satisfactory way to summarily terminate disfavored litigation: (1) such dismissal is proper only if it clearly appears that no set of facts can be proved under the pleadings which will entitle the plaintiff to recover (People ex rel. Ryan v. Telemarketing Associates, Inc., 198 Ill. 2d 345, 351, 763 N.E.2d 289, 293 (2001)) and (2) plaintiff is generally entitled to amend after a section 2 — 615 dismissal (see Mason v. Snyder, 332 Ill. App. 3d 834, 840 (2002), (Cook, J., dissenting)). Section 2 — 619, on the other hand, is a way to summarily terminate litigation. Section 2 — 619 provides a means for deciding easily proved issues of fact, independent of the overall merits of the case, at the outset of the case.
As the majority now appears to concede, a section 2 — 619 dismissal cannot be sustained here because plaintiff was never given the opportunity to respond to the affirmative matter raised in the motion. A section 2 — 615 dismissal cannot be sustained because complaints alleging that DOC failed to comply with its rules regarding administrative disciplinary hearings, resulting in a revocation of an inmate’s good-time credit, generally state a good cause of action in mandamus. If it is the majority’s position that a cause of action could be stated, but plaintiff has not used the right language to do so, plaintiff must be given leave to amend.
There is a logical progression to motions in civil cases. It is unusual to summarily terminate a civil case at an early stage, without leave to amend and without any opportunity to determine the facts. If we choose to apply special rules of practice and procedure to cases brought by inmates, we should not pretend that we are following the established rules.