                             Illinois Official Reports

                                     Appellate Court



           Walsh v. Will County Adult Detention Facility, 2015 IL App (3d) 140246



Appellate Court         DEREK J. WALSH, Plaintiff-Appellant, v. WILL COUNTY ADULT
Caption                 DETENTION FACILITY; MICHAEL O’LEARY, Warden; G.
                        MAROTTA; MARY F. NIEMANN; SERGEANT ALEXANDER; R.
                        SLATER; DEBBIE DOE, FRANK DOE and DAVE DOE,
                        Defendants-Appellees.




District & No.          Third District
                        Docket No. 3-14-0246




Filed                   April 22, 2015




Decision Under          Appeal from the Circuit Court of Will County, No. 13-CH-3206; the
Review                  Hon. Roger Rickmon, Judge, presiding.




Judgment                Reversed; cause remanded.




Counsel on              Derek J. Walsh, of Joliet, appellant pro se.
Appeal
                        James Glasgow, State’s Attorney, of Joliet (Colleen M. Griffin,
                        Assistant State’s Attorney, of counsel), for appellees.
     Panel                     JUSTICE HOLDRIDGE delivered the judgment of the court, with
                               opinion.
                               Justices Lytton and Schmidt concurred in the judgment and opinion.




                                                 OPINION

¶1         The plaintiff, Derek Walsh, submitted a pro se complaint against the defendants seeking
       injunctive relief pursuant to the Illinois Freedom of Information Act (Act) (5 ILCS 140/1
       et seq. (West 2012)). The claimant also filed an application for leave to sue as an indigent
       person under section 5-105 of the Code of Civil Procedure (Code) (735 ILCS 5/5-105 (West
       2012)). The trial court denied the claimant’s application. This appeal followed.

¶2                                                 FACTS
¶3         While he was an inmate at the Will County Adult Detention Facility (WCADF), the
       plaintiff filed a pro se complaint against the WCADF, its warden, and other WCADF
       employees seeking injunctive relief pursuant to the Act. In his complaint, the plaintiff alleged
       that the defendants failed to disclose certain records, conspired to deny the plaintiff his right to
       access information in their control, and willfully and wantonly “withheld, tampered, altered,
       forged, and/or concealed” certain records in violation of the federal Civil Rights Act (42
       U.S.C. § 1983 (2012)). The plaintiff asked the trial court to temporarily and permanently
       enjoin the defendants from further altering or destroying public records in their possession and
       from retaliating against him. The plaintiff also sought the disclosure of records pursuant to the
       Act, the appointment of counsel or a special investigator to ensure the preservation of
       evidence, other injunctive relief, and monetary damages for the defendants’ alleged violations
       of the Act and of the plaintiff’s federal constitutional rights.
¶4         In addition to the complaint, the claimant filed a written application for leave to sue as an
       indigent person under section 5-105 of the Code. In his application, the plaintiff indicated that
       he had a meritorious claim but that he was “unable to pay the fees, costs, and charges of this
       case.” He stated that was currently unemployed and incarcerated at the WCADF, that he had
       no sources of income other than “$20.00 gifts from family,” that his income from the previous
       year was $30,000, and that he owned no real estate or personal property. The plaintiff
       completed and signed the Will County “APPLICATION/ORDER TO SUE OR DEFEND AS
       A POOR PERSON” form. Although that form provides a space for notarization next to the
       signature line, the plaintiff did not have his signature notarized. Nor did he submit a separate
       affidavit in support of his application.
¶5         Approximately one month later, the trial court dismissed the plaintiff’s claim without
       prejudice sua sponte and denied his application to sue as an indigent person. The trial court’s
       minute order announcing these rulings stated:
                    “No one appears. Cause comes on for initial return date. The Application to Sue or
               Defend as a Poor Person is denied. If Plaintiff wishes to proceed with this matter, he
               must pay the proper fee and refile his case. On Court’s motion, cause is dismissed.”

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¶6         The plaintiff filed a motion to reconsider the trial court’s dismissal of his complaint and
       denial of his motion to sue as an indigent person. He also filed a motion to waive appearance
       before the court and to proceed in absentia. The court denied the plaintiff’s motion to
       reconsider without ruling on the plaintiff’s motion to waive appearance and proceed in
       absentia. This appeal followed.

¶7                                                ANALYSIS
¶8          The plaintiff seeks reversal of the trial court’s denial of his application to sue as an indigent
       person. Whether to grant such an application “is within the sound discretion of the trial court,
       subject to reversal only when such discretion has been abused.” Lucas v. Prisoner Review
       Board, 2013 IL App (2d) 110698, ¶ 31. A trial court abuses its discretion “when its ruling is
       arbitrary, fanciful, or unreasonable, or where no reasonable person would take the view
       adopted by the trial court.” Patton v. Lee, 406 Ill. App. 3d 195, 199 (2010).
¶9          The plaintiff argues that the trial court abused its discretion by denying his application
       solely because he failed to appear in court. The plaintiff notes that section 5-105(d) of the Code
       requires the applicant to appear only if the trial court orders him “to personally appear to
       explain or clarify information contained in the application.” 735 ILCS 5/5-105(d) (West 2012).
       The trial court issued no such order in this case. Moreover, the plaintiff notes that he was
       unable to appear in court at the time because he was incarcerated at the WCADF and that the
       trial court never ruled on the plaintiff’s motion to waive appearance (although that motion was
       filed after the court denied the plaintiff’s application).
¶ 10        We are not persuaded by the plaintiff’s arguments. As the defendants observe, the trial
       court’s minute order denying the plaintiff’s application does not state or imply that the court
       based its ruling on the plaintiff’s failure to appear. The order merely states that “[n]o one
       appears” and thereafter provides that “[t]he Application to Sue or Defend as a Poor Person is
       denied.” It does not suggest that the application was denied because the plaintiff failed to
       appear. Nor does it otherwise explain why the application was denied. As the defendants note,
       the trial court’s minute order “does not indicate the basis for [the court’s] decision,” and “the
       record is silent as to the court’s reasoning.”
¶ 11        However, this fact raises another problem. Section 5-105(d) of the Code provides that, if
       the application for leave to sue as an indigent person is denied, “the court shall enter an order to
       that effect stating the specific reasons for the denial.” (Emphasis added.) 735 ILCS 5/5-105(d)
       (West 2012). As noted, the court’s minute order includes no such reasons. The statutory
       requirement that the trial court “shall enter an order *** stating the specific reasons for the
       denial” (emphasis added) (id.) is mandatory, rather than permissive, because it imposes an
       obligatory duty that is not left to the trial court’s discretion. See, e.g., People v. Reed, 177 Ill.
       2d 389, 393 (1997) (“Legislative use of the word *** ‘shall’ is generally considered to express
       a mandatory reading.”); see also Morgan v. Department of Financial & Professional
       Regulation, 388 Ill. App. 3d 633, 675 (2009). Although we presume that statutory language
       issuing a mandatory procedural command to a court is “directory” (i.e., not cause for reversal if
       the court fails to fulfill the command), that presumption is overcome, inter alia, “when the
       right the provision is designed to protect would generally be injured under a directory reading.”
       People v. Delvillar, 235 Ill. 2d 507, 517 (2009). Here, the statute is clearly designed to protect
       a party’s right to meaningful appellate review of a trial court’s denial of his or her application
       to sue or defend as an indigent person. Absent written reasons supporting such a denial, it may

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       be impossible to determine whether the denial was based on a legitimate legal basis (such as
       the applicant’s financial condition) or on mere caprice. In that event, meaningful appellate
       review of the trial court’s decision would be compromised. Accordingly, we hold that section
       5-105(d)’s requirement that the trial court provide specific reasons for its denial of the
       plaintiff’s application is mandatory rather than directory, and the trial court’s failure to observe
       that requirement in this case was reversible error.
¶ 12       The defendants argue that we may affirm despite the trial court’s failure to explain its
       reasoning because there are valid reasons in the record supporting the denial of the plaintiff’s
       application. Specifically, the defendants note that the plaintiff failed to submit an affidavit in
       support of his application, as required by section 5-105(c) of the Code. 735 ILCS 5/5-105(c)
       (West 2012) (providing that “[a]n application for leave to sue or defend an action as an
       indigent person shall be in writing and supported by the affidavit of the applicant”). In
       addition, the defendants argue that the trial court could have reasonably dismissed the
       plaintiff’s application on the merits because the application indicated that the plaintiff’s
       income from the previous year was $30,000 and that he receives $20 gifts from his family.
       These arguments may or may not justify a dismissal of the plaintiff’s application, but the
       statute requires the trial court to make that determination and to explain its reasoning. Absent a
       ruling from our supreme court interpreting this requirement as directory rather than mandatory,
       we interpret the statute to mean what it says.
¶ 13       Accordingly, we reverse the trial court’s denial of the plaintiff’s application and remand
       the matter with instructions that the trial court enter an order stating the specific reasons for its
       denial of the plaintiff’s application.

¶ 14                                       CONCLUSION
¶ 15       For the foregoing reasons, judgment of the circuit court of Will County is reversed and the
       case is remanded.

¶ 16       Reversed; cause remanded.




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