                                       2017 IL App (3d) 150860

                              Opinion filed September 28, 2017
     ____________________________________________________________________________



                                                IN THE

                                 APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                  2017

     CHARLES BOCOCK,                                ) Appeal from the Circuit Court
                                                    ) of the 12th Judicial Circuit,
     Plaintiff-Appellant,                           ) Will County, Illinois.
                                                    )
             v.                                     ) Appeal No. 3-15-0860
                                                    ) Circuit No. 15-CH-1907
     PAMELA J. MCGUIRE, in Her Official             )
     Capacity as Circuit Court Clerk of the Twelfth )
     Judicial Circuit,                              ) Honorable
                                                    ) Cory D. Lund,
             Defendant-Appellee.                    ) Judge, presiding.
     ____________________________________________________________________________

           JUSTICE CARTER delivered the judgment of the court, with opinion.
           Presiding Justice Holdridge and Justice O’Brien concurred in the judgment and opinion.
     ____________________________________________________________________________

                                                OPINION

¶1            The plaintiff, Charles Bocock, appeals the dismissal of his complaint against defendant,

      Pamela J. McGuire, in her official capacity as the circuit court clerk of the Twelfth Judicial

      Circuit. We affirm the dismissal of Bocock’s complaint.

¶2                                                FACTS

¶3            On September 1, 2015, Bocock filed a pro se complaint against defendant in her official

      capacity as the circuit court clerk of the Twelfth Judicial Circuit (clerk). The allegations in
     Bocock’s complaint against the clerk in this case are based on the manner in which the clerk

     docketed two complaints filed by Bocock in the Twelfth Judicial Circuit (case Nos. 15-CH-976

     and 15-CH-1052) pertaining to the denial of his requests for information from the Will County

     sheriff’s office that he made pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1

     et seq. (West 2014)). Bocock filed the two FOIA complaints originally against Will County

     FOIA officer, Brad Josephson, on April 10, 2015 (case No. 15-CH-976), and on April 21, 2015

     (case No. 15-CH-1052). Later Bocock amended the complaints to add the sheriff of Will County

     as a defendant in the FOIA cases. Subsequently, he filed a separate complaint against the clerk of

     the circuit court, alleging the initial hearing date that the clerk set for his FOIA cases on June 12,

     2015, was not the “earliest practicable date” for the initial hearing to take place in violation of

     section 11(h) of the FOIA (5 ILCS 140/11(h) (West 2014)). Section 11(h) of the FOIA provides,

     “[e]xcept as to causes the court considers to be of greater importance, proceedings arising under

     this Section shall take precedence on the docket over all other causes and be assigned for hearing

     and trial at the earliest practicable date and expedited in every way.” Id. Bocock claimed that

     defendant’s failure to set his case for hearing at the “earliest practicable date” violated his due

     process rights under the Illinois Constitution. As a remedy, Bocock sought a “declarative

     judgment, compensatory, punitive and nominal damages, costs, and an injunction compelling

     [defendant] to conform to the statutory requirements of the Illinois Freedom of Information Act,

     and any other relief [the] Court deem[ed] just.”

¶4          In response, on September 28, 2015, defendant, through her counsel—an assistant state’s

     attorney—filed a section 2-619 motion to dismiss the complaint (735 ILCS 5/2-619 (West

     2014)). In the motion to dismiss, defendant argued that section 11(h) of the FOIA did not contain

     a penalty provision for its violation and, therefore, the provision was “directory and not



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     mandatory in application.” Defendant also argued that Bocock could have filed a motion to

     advance the initial hearing dates, the setting of the initial hearing date was a matter of discretion

     on the part of her staff in the circuit clerk’s office, Bocock’s request for monetary relief was

     barred by section 2-201 of the Local Governmental and Governmental Employees Tort

     Immunity Act (745 ILCS 10/2-201 (West 2014)), and Bocock’s request for injunctive relief to

     compel her, as the circuit court clerk, to conform to the requirements of the FOIA was “barred

     because the time for scheduling an initial court date of a complaint under the Freedom of

     Information Act is not statutorily mandated.”

¶5          In response to the motion to dismiss, Bocock argued that the issue of whether a statutory

     provision was mandatory or directory was a matter of statutory construction and the word “shall”

     in section 11(h) of the FOIA should be interpreted to mean the directives in section 11(h) are

     mandatory. In reply, in support of her motion to dismiss, the clerk argued that Bocock was not

     prohibited from filing a motion to advance the court date, setting of the initial case management

     date in this case was controlled by the local court rules and she did not violate those rules, and it

     was the “judge [who] controls his docket and sets the hearing and/or trial dates.”

¶6          On December 11, 2015, the trial court entered a written order indicating “court rules case

     dismissed with prejudice.” Bocock appealed. We affirm.

¶7                                               ANALYSIS

¶8          On appeal, Bocock argues that the trial court erred in granting defendant’s motion to

     dismiss. Bocock contends the directive of section 11(h) of the FOIA, which provides that FOIA

     matters “shall” take precedence on the docket over all other causes and be assigned for hearing

     and trial “at the earliest practicable date and expedited in every way,” is mandatory. 5 ILCS

     140/11(h) (West 2014). He contends that the trial court erred in determining section 11(h) was



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       discretionary and not mandatory.

¶9             The clerk contends on appeal that the trial court was correct in granting her motion to

       dismiss. Although there is no indication that the FOIA cases’ docket sheets were part of the trial

       court record or that the trial court took judicial notice of the docket sheets in Bocock’s FOIA

       cases, the clerk argues that the docket sheets in Bocock’s FOIA cases show the FOIA cases were

       given a return date (not a hearing date) of June 12, 2015, proof of service in those cases was not

       filed until September 22, 2015, and no hearing date could be set until Bocock had served

       defendant in the FOIA cases. 1 The clerk also contends that providing the return date of June 12,

       2015, “was a ministerial act to not lose track of the file and [was] not the setting of a ‘hearing or

       trial’ as envisioned by [section] 11(h).” The clerk further argues that section 11(h) of the FOIA is

       a “direction to the court” that is “directory and not mandatory” due to the constitutional concept

       of separation of powers.

¶ 10           In this case, the clerk filed a motion to dismiss Bocock’s complaint pursuant to section 2-

       619 of the Code of Civil Procedure (Code). 735 ILCS 5/2-619 (West 2014). A section 2-619

       motion to dismiss admits the truth of the facts alleged in support of the claim and the legal

       sufficiency of the claim but raises affirmative matters that arguably defeat the claim. Id. On

       appeal, a de novo standard of review will be applied to a dismissal pursuant to section 2-619.

       Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 18.

¶ 11           In this case, the trial court did not specify the basis for its dismissal of Bocock’s

       complaint with prejudice, nor did the trial court indicate whether it had interpreted the directive


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                 On appeal, the clerk motioned for this court to supplement the record on the appeal with the
       docket sheets from Bocock’s FOIA cases, which this court granted and of which this court takes judicial
       notice. See Ill. R. Evid. 201 (eff. Jan. 1, 2011) (a court may take judicial notice, whether requested or not,
       of a fact not subject to reasonable dispute that is capable of accurate and ready determination by resort to
       sources whose accuracy cannot reasonably be questioned); Curtis v. Lofy, 394 Ill. App. 3d 170, 172
       (2009) (public documents, including court records, are subject to judicial notice).
                                                             4
       in section 11(h) of the FOIA to be mandatory. However, we may affirm the circuit court’s

       judgment on any basis appearing in the record (Gatreaux v. DKW Enterprises, LLC, 2011 IL

       App (1st) 103482, ¶ 10), and our review of the record indicates that Bocock failed to state a

       cause of action upon which relief may be granted. See 735 ILCS 5/2-615 (West 2014); Heastie v.

       Roberts, 226 Ill. 2d 515, 531 (2007) (a section 2-615 dismissal is based upon defects that are

       apparent on the face of the complaint). In determining whether the allegations in the complaint

       are sufficient to state a cause of action upon which relief may be granted, all well-pleaded facts

       must be taken as true. Heastie, 226 Ill. 2d at 531.

¶ 12                                     I. Statutory Claim Under the FOIA

¶ 13           In determining whether Bocock’s complaint against the clerk stated a statutory claim

       under the FOIA, we must construe the language of the FOIA. Statutory construction is a question

       of law, which we review de novo. Nelson v. Kendall County, 2014 IL 116303, ¶ 22.

¶ 14           The primary goal in construing a statute is to ascertain and give effect to the intent of the

       legislature. Id. ¶ 23. The best indication of legislative intent is the language of the statute. Id. In

       construing the language of a statute, the language in each section must be examined in light of

       the statute as a whole and in conjunction with other statutes touching on the same or related

       subjects. Id. Where the language of the statute is clear, it must be given effect without resorting

       to other interpretive aids. Id.

¶ 15           The purpose of the FOIA is to open governmental records to the scrutiny of the public.

       Stern v. Wheaton-Warrenville Community Unit School District 200, 233 Ill. 2d 396, 405 (2009).

       Section 1.2 of the FOIA provides:

                       “All records in the custody or possession of a public body are presumed to be

                       open to inspection or copying. Any public body that asserts that a record is


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                      exempt from disclosure has the burden of proving by clear and convincing

                      evidence that it is exempt.” 5 ILCS 140/1.2 (West 2014).

¶ 16          Section 3(a) of the FOIA provides that “[e]ach public body shall make available to any

       person for inspection or copying all public records, except as otherwise provided in Sections 7

       [providing exceptions] and 8.5 [pertaining to records maintained online].” 5 ILCS 140/3(a)

       (West 2014). Requests for inspection or copies under the FOIA shall be made in writing and

       directed to the “public body.” 5 ILCS 140/3(c) (West 2014). Section 3(d) of the FOIA provides,

       “[e]ach public body shall, promptly, either comply with or deny a request for public records

       within 5 business days after its receipt of the request, unless the time for response is properly

       extended.” 5 ILCS 140/3(d) (West 2014).

¶ 17          Under the FOIA, “public body” is defined as:

                      “[A]ll legislative, executive, administrative, or advisory bodies of the State, state

                      universities and colleges, counties, townships, cities, villages, incorporated towns,

                      school districts and all other municipal corporations, boards, bureaus, committees,

                      or commissions of this State, any subsidiary bodies of any of the foregoing

                      including but not limited to committees and subcommittees thereof, and a School

                      Finance Authority created under Article 1E of the School Code.” 5 ILCS 140/2(a)

                      (West 2014).

¶ 18          Under the penalty provision of section 11 of the FOIA, “[a]ny person denied access to

       inspect or copy any public record by a public body may file suit for injunctive or declaratory

       relief.” (Emphasis added.) 5 ILCS 140/11(a) (West 2014). “The circuit court shall have the

       jurisdiction to enjoin the public body from withholding public records and to order the

       production of any public records improperly withheld.” (Emphasis added.) 5 ILCS 140/11(d)


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       (West 2014). “If the court determines that a public body willfully and intentionally failed to

       comply with this Act [the FOIA], or otherwise acted in bad faith, the court shall also impose

       upon the public body a civil penalty of [$2500 to $5000] for each occurrence.” (Emphasis

       added.) 5 ILCS 140/11(j) (West 2014).

¶ 19          In this case, Bocock’s complaint against the clerk was based on the clerk’s alleged

       violation of section 11(h) of the FOIA for setting the initial return date for Bocock’s FOIA

       complaints against Josephson for June 12, 2015. See 5 ILCS 140/11(h) (West 2014) (providing

       that except as to causes the court considers to be of greater importance, proceedings arising

       under section 11 of the FOIA shall take precedence on the docket and be assigned for hearing

       and trial “at the earliest practicable date”). However, Bocock failed to plead sufficient facts to

       establish that his FOIA cases (case Nos. 15-CH-976 and 15-CH-1052) were not “assigned for

       hearing and trial at the earliest practicable date.” While Bocock alleged the return date of June

       12, 2015, “was not the earliest practicable date for the hearing on either case,” he provides no

       factual support his contention. In fact, the docket sheets in those cases indicate that Bocock did

       not obtain service on the defendants until approximately five months after the return date of June

       12, 2015, in order for the case to proceed. Thus, Bocock’s complaint did not, and could not,

       plead sufficient facts to support his request for “an injunction compelling [defendant] to conform

       to the statutory requirement of the [FOIA].”

¶ 20          Moreover, the statutory damages provision of section 11(j) of the FOIA pertains to

       violations of the FOIA by the “public body” who received and improperly denied a valid FOIA

       request. The applicable FOIA requests in this instance went to the Will County Sheriff’s

       Department, not the clerk of the circuit court’s office. Therefore, section 11(j), under the present

       circumstances, would not apply in a lawsuit against the circuit clerk.


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¶ 21           In addition, because the FOIA does not include the judiciary in its definition of “public

       body,” the lack of any reference to the courts or judiciary indicates an intent to exclude the

       judiciary. Copley Press, Inc. v. Administrative Office of the Courts, 271 Ill. App. 3d 548, 554

       (1995). The exemption for the judicial branch from the FOIA includes court-affiliated entities

       that perform judicial functions, such as the clerks of the courts. Newman, Raiz & Shelmadine,

       LLC v. Brown, 394 Ill. App. 3d 602, 606 (2009). “[T]he Circuit Clerk, as a component of the

       judicial branch, is excluded from the definition of a ‘public body’ as it is defined in section 2(a)

       [of the FOIA].” Id. Thus, Bocock’s complaint failed to establish a claim against defendant in her

       capacity as the circuit court clerk for relief or statutory damages under the FOIA.

¶ 22                                               II. Due Process

¶ 23           Bocock also failed to plead sufficient facts in his complaint to support his contention that

       the clerk’s “infringement” of the directive for setting hearings in section 11(h) of the FOIA

       violated his right to due process under article I, section 2, of the Illinois Constitution. Ill. Const.

       1970, art. I, § 2. The due process clause in the Illinois Constitution of 1970 provides, “No person

       shall be deprived of life, liberty or property without due process of law.” Id. The due process

       clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 2) is similar in language to that of the

       due process clauses in the fifth and fourteenth amendments of the United States Constitution

       (U.S. Const., amends. V, XIV;), and both the Illinois and United States Constitutions require, at

       a minimum, that litigants have a full and fair opportunity to litigate an issue before being bound

       by a resolution of that issue. Central Illinois Public Service Co. v. Allianz Underwriters

       Insurance Co., 158 Ill. 2d 218, 225-26 (1994). A fundamental requirement of due process is for a

       party to be afforded the opportunity to be heard at a meaningful time and in a meaningful

       manner. In re D.W., 214 Ill. 2d 289, 316 (2005).


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¶ 24          In this case, Bocock’s due process claim regarding the clerk’s alleged failure to schedule

       the earliest practicable hearing date represents an alleged violation of procedural due process in

       regard to access to the courts and the right to a hearing. However, the denial of the right to access

       the courts cannot be shown unless there was an actual injury. See Lewis v. Casey, 518 U.S. 343,

       349-52 (1996); Hadley v. Snyder, 335 Ill. App. 3d 347, 354 (2002) (providing that to show a

       violation of the right to access to the courts, a prisoner must prove that prison officials failed to

       assist him in preparing and filing of legal papers and there was some “detriment” caused by the

       officials’ failure). Evidence of the actual injury caused by the denial of access to the courts must

       establish a specific harm, such as missed court dates, the inability to file in a timely manner, the

       denial of legal assistance, or the loss of a case that could have been won. Hadley, 335 Ill. App.

       3d at 354. In his complaint against the clerk at issue here, Bocock did not allege that any specific

       harm resulted from the clerk scheduling his FOIA cases with a return date of June 12, 2015, and,

       thus, did not sufficiently allege that he was deprived of meaningful access to the courts.

       Consequently, Bocock failed to state a cause of action upon which relief may be granted, and the

       trial court did not err in dismissing his complaint.

¶ 25                                       III. Dismissal with Prejudice

¶ 26          A complaint should be dismissed with prejudice only where it is clear that plaintiff can

       prove no set of facts that would entitle him to relief. Bruss v. Przybylo, 385 Ill. App. 3d 399, 405

       (2008). We review the trial court’s decision to dismiss a complaint with prejudice for an abuse of

       discretion. Id. Under the circumstances of this case, plaintiff cannot prove any set of facts that

       would entitle him to relief against defendant in her capacity as the circuit court clerk.

       Consequently, we affirm the trial court’s dismissal of Bocock’s complaint with prejudice.

¶ 27                                              CONCLUSION


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¶ 28   The judgment of the circuit court of Will County is affirmed.

¶ 29   Affirmed.




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