                                2019 IL App (1st) 181128
                                     No. 1-18-1128

                                                                     SECOND DIVISION
                                                                          May 7, 2019

______________________________________________________________________________

                                    IN THE
                        APPELLATE COURT OF ILLINOIS
                           FIRST JUDICIAL DISTRICT
______________________________________________________________________________


JOSEPH ACEVEDO, ENRIQUE MEZA, and             ) Appeal from the Circuit Court
TAMARA WUERFFEL, as Individuals and on        ) of Cook County.
Behalf of All Others Similarly Situated,      )
                                              )
       Plaintiffs,                            ) No. 17 CH 7092
                                              )
v.                                            )
                                              ) The Honorable
THE COOK COUNTY SHERIFF’S MERIT               ) Thomas R. Allen,
BOARD; JAMES P. NALLY, Chairman; BYRON )        Judge Presiding.
BRAZIER, Vice-Chairman; JOHN J.               )
DALICANDRO, Secretary; GRAY MATEO-            )
HARRIS, Board Member; VINCENT T.              )
WINTERS, Board Member; JENNIFER BAE,          )
Board Member; PATRICK BRADY, Board            )
Member; KIM R. WIDUP, Board Member;           )
THOMAS J. DART, Sheriff of Cook County in     )
His Official and Individual Capacity; and THE )
COUNTY OF COOK, a Unit of Local               )
Government and Indemnor,                      )
                                              )
       Defendants-Appellees                   )
                                              )
(Joseph Acevedo, Plaintiff-Appellant).        )
______________________________________________________________________________

      JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
      Justices Mason and Lavin concurred in the judgment and opinion.

                                        OPINION
     1-18-1128


¶1          In this putative class action, plaintiff Joseph Acevedo, on his own behalf and on behalf of

     those similarly situated, alleges that employment termination decisions issued by the Cook

     County Sheriff’s Merit Board (Board) were void because the Board was illegally constituted at

     the time it issued those decisions. The trial court dismissed Acevedo’s first amended complaint

     pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West

     2016)), on the basis that it lacked jurisdiction over Acevedo’s putative class action. The trial

     court concluded that its jurisdiction to review an administrative decision was limited to those

     review actions brought under the Administrative Review Law (Review Law) (735 ILCS 5/3-102

     (West 2016)); thus, it lacked jurisdiction to entertain Acevedo’s collateral putative class action.

     Acevedo challenges this conclusion, and for the reasons that follow, we affirm.

¶2                                         I. BACKGROUND

¶3          On January 12, 2015, the Board issued a decision terminating Acevedo’s employment as

     a Cook County correctional officer. Acevedo filed an action for direct review under the Review

     Law, and on February 24, 2016, the trial court affirmed the Board’s decision.

¶4          Over a year later, on May 18, 2017, Acevedo instituted the present action. Five months

     later, on October 3, 2017, Acevedo, joined by Enrique Meza and Tamara Wuerffel, filed their

     first amended complaint. In that first amended complaint, Acevedo alleged that he was a former

     Cook County correctional officer, whose employment was terminated by Board decision on

     January 12, 2015. He further alleged that his Board decision terminating his employment was

     null and void because the Board was illegally constituted at the time, in that former Board

     member John R. Rosales had not been properly appointed under the Cook County Sheriff’s Merit

     Board Act (Merit Board Act) (55 ILCS 5/3-7001 et seq. (West 2014)). Meza alleged that he was

     also a former Cook County correctional officer, whose termination by the Board was null and


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     void because the Board was illegally constituted at the time, in that defendants Gray Mateo-

     Harris and Patrick Brady had been appointed for terms of less than six years. Wuerffel alleged

     that she was a former Cook County Sheriff’s police sergeant, whose termination by the Board

     was null and void because the Board was illegally constituted at the time, in that Brady had been

     appointed for a term of less than six years. The three named plaintiffs—Acevedo, Meza, and

     Wuerffel—also alleged, on behalf of those unnamed class members similarly situated, that any

     other terminations or suspensions by the Board in which Rosales, Mateo-Harris, and Brady

     participated were null and void, as were any terminations or suspensions by the Board in which

     defendants Byron Brazier, John J. Dalicandro, and Kim R. Widup participated, as their

     appointments were improperly retroactively approved. Plaintiffs sought a declaration that the

     Board’s decisions were null and void and that they were entitled to “make-whole relief,”

     including reinstatement and back pay. Plaintiffs also sought declarations that their terminations

     by an illegally constituted board violated their rights to due process and equal protection,

     damages, attorney fees, and costs.

¶5          Shortly after the filing of the first amended complaint, plaintiffs filed a motion for class

     certification, which the trial court entered and continued.

¶6          In December 2017, Meza and Wuerffel voluntarily dismissed their claims against the

     defendants.

¶7          On January 12, 2018, defendant Thomas J. Dart filed an amended motion to dismiss the

     first amended complaint pursuant to section 2-615 of the Code. Defendants the County of Cook

     and the Board joined in Dart’s motion to dismiss. In that motion, defendants argued that the

     equitable remedies and monetary damages sought by Acevedo were not authorized by law;

     rather, at most, he was only entitled to a rehearing in front of a properly constituted Board. They


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     also argued that the trial court’s jurisdiction was limited under the Review Law to direct review

     of an administrative agency’s specific decision and, therefore, the trial court lacked jurisdiction

     to consider a putative class action. Third, defendants argued that Acevedo failed to plead

     cognizable claims for equal protection and due process violations. Finally, defendants argued

     that Acevedo was improperly attempting to do an end-run around the trial court’s prior

     administrative review of his termination.

¶8          In response, Acevedo, individually and on behalf of the putative class, argued that every

     action taken by the Board while it was illegally constituted, including receiving charges and

     issuing decisions on termination and suspension, was null and void, and therefore, plaintiffs were

     entitled to reinstatement and back pay. He also argued that the Review Law did not apply to his

     claims, either to defeat the trial court’s jurisdiction or to otherwise limit his claims, because he

     was not attacking the Board’s actions on their merits, but was, instead, arguing that the Board

     lacked jurisdiction to take any action whatsoever. Thus, the Review Law did not preclude him

     from bringing a class action or defeat the trial court’s jurisdiction. Finally, he argued that his

     prior action for administrative review was not his only opportunity to challenge the Board’s

     decisions on the basis that the Board was improperly constituted because void orders could be

     challenged at any time, either directly or collaterally.

¶9          In their reply, defendants argued that Acevedo had an opportunity to present his claim

     regarding the illegally constituted Board during the initial direct review of his termination

     decision and that he should not be given a second bite at the apple. More specifically, defendants

     argued that the trial court’s affirmance of Acevedo’s termination in the initial direct review

     action was res judicata to Acevedo’s current claims; even if res judicata did not apply,

     Acevedo’s current claims were barred under the Local Governmental and Governmental


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       Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/8-101(a) (West 2016)); the

       trial court lacked jurisdiction to consider any claims outside of Acevedo’s initial direct review or

       to award the relief sought by Acevedo; and the appropriate remedy for Acevedo’s claim would

       be a rehearing in front of a properly constituted Board.

¶ 10           The trial court permitted Acevedo to file a surreply on the issue of res judicata. In that

       surreply, Acevedo argued that res judicata did not apply because the Board’s termination

       decision was void ab initio. Moreover, Acevedo argued, res judicata should not be applied on

       equitable grounds because the improper appointments of Board members were not known until

       recently. Acevedo also argued that the Tort Immunity Act did not bar his current claims because

       the void decision of the Board could be attacked at any time, his claims did not sound in tort, and

       the Tort Immunity Act did not bar claims for equitable relief. In addition, he argued that even if

       the Tort Immunity Act did apply, his claim was timely brought because he filed it within a year

       of discovering the full extent of defendants’ alleged unlawful conduct.

¶ 11           A hearing was held on defendants’ motion to dismiss. After hearing arguments from the

       parties, the trial court issued its ruling, granting defendants’ motion. In doing so, the trial court

       acknowledged that its jurisdiction over administrative review cases is strictly limited to that

       permitted by the Review Law and that it lacked original jurisdiction over any action seeking any

       form of administrative review, such as Acevedo’s class action claims for declaratory judgment.

       Concluding that Acevedo’s claims were, at their core, claims for administrative review and that

       they were not brought pursuant to the Review Law, the trial court determined that it lacked

       jurisdiction.

¶ 12           Not seeking to remedy the defects found by the trial court but instead wanting only to

       include additional allegations of fact regarding improper appointments to the Board for purposes


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       of appeal, Acevedo requested that he be granted leave to amend his complaint. The trial court

       granted his request. Thereafter, Acevedo filed a second amended complaint, which removed

       certain Board members as defendants, added different Board defendants, and modified its

       allegations regarding appointments. Defendants moved to strike or dismiss the second amended

       complaint. At the hearing on that motion, the trial court concluded that it would confuse the

       record to allow the matter to go up on appeal with two complaints naming different parties and

       containing different allegations. Therefore, it granted defendants’ motion to strike the second

       amended complaint and modified its dismissal of the first amended complaint to be with

       prejudice.

¶ 13          Thereafter, Acevedo instituted this appeal.

¶ 14                                           II. ANALYSIS

¶ 15          On appeal, Acevedo argues that the trial court erred in dismissing his first amended

       complaint on the basis that it lacked jurisdiction because all actions taken by the illegally

       constituted Board were void and void actions may be attacked at any time, either directly or

       collaterally. He also argues that defendants’ other arguments raised in support of their motion to

       dismiss—that his only remedy is a rehearing in front of a properly constituted Board,

       res judicata bars his claims, and the Tort Immunity Act bars his claims—are without merit. In

       addition to reiterating the arguments they made in the trial court, defendants respond on appeal

       by arguing that Acevedo’s claims are barred by the de facto officer doctrine. We agree with

       defendants that the de facto officer doctrine bars Acevedo’s claims. Because the putative class

       was never certified and because no other named plaintiffs remained after the dismissal of

       Acevedo’s claims, dismissal of the entire complaint was appropriate.




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¶ 16          A motion to dismiss under section 2-615 of the Code raises the question of whether the

       complaint’s allegations, viewed in the light most favorable to the plaintiff, are sufficient to state

       a cause of action upon which relief can be granted. Chandler v. Illinois Central R.R. Co., 207 Ill.

       2d 331, 348 (2003). The complaint should be dismissed only if it is clearly apparent that the

       plaintiff can prove no set of facts that would entitle him to relief. Id. at 349. Our review of the

       trial court’s grant of a motion to dismiss under section 2-615 is de novo. Id.

¶ 17          Defendants argue on appeal that the trial court’s dismissal of the amended complaint

       should be affirmed because Acevedo’s claims are barred by the de facto officer doctrine. As an

       initial matter, Acevedo argues that defendants should not be allowed to raise this issue on appeal

       because they failed to file a cross-appeal. Defendants, as appellees, were not required to file a

       cross-appeal in order to raise the de facto officer doctrine as a basis for affirming the trial court,

       however. “[A]n appellee may raise any argument or basis supported by the record to show the

       correctness of the judgment below, even though he had not previously advanced such an

       argument.” In re Veronica C., 239 Ill. 2d 134, 151 (2010); see also Olson v. Williams All Seasons

       Co., 2012 IL App (2d) 110818, ¶ 41 (“[A]n appellee who fails to raise an issue in the circuit

       court may raise it on appeal to affirm the circuit court’s order, if the factual basis for the issue

       was before the circuit court.”). Likewise, we are not bound by the reasoning of the trial court,

       and we may affirm on any basis found in the record, regardless of whether the trial court relied

       on that basis or its reasoning was correct. Taylor, Bean, & Whitaker Mortgage Corp. v. Cocroft,

       2018 IL App (1st) 170969, ¶ 60.

¶ 18          In his amended complaint, Acevedo, relying on our decision in Taylor v. Dart, 2017 IL

       App (1st) 143684-B, alleged that the Board’s decision to terminate his employment was void,

       because Rosales, who participated in the decision, was improperly appointed to the Board. In


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       Taylor, the appellant sought direct administrative review of the Board’s decision to terminate his

       employment as a Cook County Sheriff’s police officer. Id. ¶¶ 9-10. In that action, the appellant

       challenged the validity of the Board’s decision on the basis that Rosales was improperly

       appointed to a term of less than six years. Id. ¶ 10. The trial court agreed, vacated the Board’s

       termination decision, and remanded to the Board for a rehearing before a properly constituted

       Board. Id. ¶ 11. The trial court also certified two questions for review by the appellate court:

              “ ‘Is a Cook County Sheriff’s Merit Board member that was appointed on June 2, 2011 to

              serve a term which expired on March 19, 2012, a lawfully appointed member of the Merit

              Board when he presided over Percy Taylor’s Merit Board Hearing on February 27, 2013?

              If the Merit Board member was not lawfully appointed to the Merit Board, does the

              decision of October 30, 2013 remain valid or is it rendered void?’ ” Id. ¶ 1.

       The Taylor court concluded that because Rosales was appointed to a term of less than six years

       in violation of the Merit Board Act, he was not a lawfully appointed member of the Board at the

       time he participated in the hearing on the appellant’s termination. Id. ¶ 37. The Taylor court also

       concluded that because the Board was not legally constituted at the time of the appellant’s

       hearing (because Rosales was not a legally appointed Board member), its decision to terminate

       the appellant was void, and the appellant was entitled to a rehearing in front of a properly

       constituted Board. Id. ¶ 46.

¶ 19          Since Taylor, other individuals who have been subject to decisions by the Board have

       raised challenges to those decisions on the basis that Rosales or other Board members were

       improperly appointed to the Board for terms of less than six years. Of specific note are this

       court’s decisions in Lopez v. Dart, 2018 IL App (1st) 170733, and Cruz v. Dart, 2019 IL App

       (1st) 170915. In Lopez, the appellant challenged the Board’s termination decision on the basis


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       that Rosales, who had been appointed to a term of less than six years, participated in the

       decision. Lopez, 2018 IL App (1st) 170733, ¶ 37. Similarly, the appellant in Cruz challenged the

       Board’s termination decision on the basis that three Board members—Widup, Brady, and Mateo-

       Harris—were unlawfully appointed to terms of less than six years. Cruz, 2019 IL App (1st)

       170915, ¶ 28. In both cases, this Court concluded that because the appellant was not the first

       litigant to raise the issue of invalid appointments of Board members for terms of less than six

       years, the de facto officer doctrine applied to validate the Board’s termination decisions. Id. ¶ 38;

       Lopez, 2018 IL App (1st) 170733, ¶ 59.

¶ 20          In Lopez, we explained the de facto officer doctrine as follows:

                   “The de facto officer doctrine is a common law equitable doctrine that ‘confers

              validity upon acts performed by a person acting under the color of official title even

              though it is later discovered that the legality of that person’s appointment or election to

              office is deficient.’ Ryder v. United States, 515 U.S. 177, 180 (1995). In other words,

              under the doctrine, ‘a person actually performing the duties of an office under color of

              title is considered to be an officer de facto, and his acts[,] as such officer[,] are valid so

              far as the public or third parties who have an interest in them are concerned.’ Vuagniaux

              v. Department of Professional Regulation, 208 Ill. 2d 173, 186-87 (2003) (citing People

              ex rel. Chillicothe Township v. Board of Review, 19 Ill. 2d 424, 426 (1960)).” Id. ¶ 47.

       The purpose of the doctrine is to permit the public to rely on an officer’s authority and to ensure

       the orderly administration of justice. Id. ¶ 48. The United States Supreme Court put it this way:

              “ ‘The de facto doctrine springs from the fear of the chaos that would result from multiple

              and repetitious suits challenging every action taken by every official whose claim to

              office could be open to question, and seeks to protect the public by insuring the orderly


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              functioning of the government despite technical defects in title to office.’ ” Ryder v.

              United States, 515 U.S. 177, 180-81 (1995) (quoting 63A Am. Jur. 2d Public Officers

              and Employees § 578, at 1080-81 (1984)).

¶ 21          Under the doctrine, attacks on an officer’s authority are divided into “collateral” and

       “direct” attacks. Lopez, 2018 IL App (1st) 170733, ¶ 49. A collateral attack challenges the

       government’s action on the basis that it was taken by officers who were not properly in office.

       Id. A direct attack, on the other hand, challenges the officer’s qualifications, not the actions that

       he took. Id. Traditionally, direct attacks are the only ones that have been allowed under the

       de facto officer doctrine but only via writ of quo warranto. Id. Collateral attacks, however, are

       not allowed. Id.

¶ 22          After reviewing a number of cases in which the Illinois Supreme Court had applied or

       addressed the validity of the de facto officer doctrine, the Lopez court concluded that the

       application of the doctrine depended on the balancing of two competing public interests: the

       interest in the orderly functioning of the government and the interest in discovering and bringing

       to light improper agency appointments as a method of ensuring that agencies comply with their

       governing statutes. Id. ¶ 58. The best balance, the Lopez court concluded, was that discussed by

       Justice McMorrow in her special concurrence in Daniels v. Industrial Comm’n, 201 Ill. 2d 160

       (2002): in a collateral proceeding, only the first challenger of an improper appointment would be

       permitted to invalidate the agency’s decision, and all others would be barred by the de facto

       officer doctrine. Lopez, 2018 IL App (1st) 170733, ¶ 58. As Justice McMorrow explained:

              “By permitting the claimant who brought the illegal appointments to light to receive a

              new hearing, the incentive to discover and pursue such illegality is maintained. Once the

              matter has been litigated and decided by the courts, however, the public interest in


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              uncovering and addressing illegality is served. At that juncture, the public interest in

              preserving the validity of a large multitude of commission decisions takes precedence.”

              Daniels, 201 Ill. 2d at 176 (McMorrow, J., specially concurring).

¶ 23          Applying this rule to the facts before it, the Lopez court held as follows:

                   “Since the plaintiff in this case is not the first claimant to have brought the illegal

              appointment of Rosales to light, we conclude that public interest is better served by not

              invalidating the plaintiff’s termination decision. This will circumvent the upheaval that

              would doubtlessly result if we were to invalidate the Merit Board’s decision and invite

              hundreds of plaintiffs to seek invalidation of all the decisions rendered by the illegally

              constituted panel during Rosales’s unauthorized term. The Merit Board’s decisions are

              not solely limited to disciplinary actions and terminations but rather include promotions

              and job classifications, all of which could be jeopardized on the basis of Rosales’s

              improper appointment. Accordingly, we apply the de facto officer doctrine in this case to

              find that the decision of the Merit Board as to the plaintiff was valid.” Lopez, 2018 IL

              App (1st) 170733, ¶ 59.

¶ 24          Not long after the decision in Lopez, this court in Cruz again held that the de facto officer

       doctrine applied to uphold the validity of Board decisions when collaterally attacked on grounds

       that Board members were improperly appointed to terms of less than six years. Cruz, 2019 IL

       App (1st) 170915, ¶ 38. Although the appellant in Cruz challenged the appointment of Board

       members Widup, Mateo-Harris, and Brady, not Rosales, the appellant’s challenge was to the

       same appointment irregularity raised in Taylor and Lopez—the interim appointment of Board

       members for terms of less than six years. Id. The court also noted that the legislature had been

       made aware of the irregularity and, in response, had remedied the problem by amending the


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       statute to allow the sheriff to make interim appointments. Id. ¶ 39 (citing Pub. Act 100-562, § 5

       (eff. Dec. 8, 2017)). Because of this, the Cruz court concluded that the balancing of the public

       interests at stake favored promoting the orderly functioning of the Board instead of invalidating

       its decisions where the irregularity had been remedied. Id. In addition, the court observed that

       any unfairness to litigants who came after Taylor and were thus barred from challenging their

       terminations was “more theoretical than practical” because, even if the court were to conclude

       that the Board decisions in the cases following Taylor were void, the only remedy available to

       the challengers would be a rehearing in front of a properly constituted Board. Id. ¶ 40. This was

       because conclusions that the Board’s decisions were void did not necessitate a conclusion that

       the litigants were also entitled to reinstatement, as many of them sought. Id. Accordingly, the

       Cruz court held that the de facto officer doctrine applied to bar the appellant’s claim that his

       termination by the Board was void due to the participation of Widup, Mateo-Harris, and Brady in

       the decision, after they had been improperly appointed for terms of less than six years.

¶ 25          In light of the decisions in Lopez and Cruz, we are compelled to conclude that Acevedo’s

       claim that his termination was void because Rosales participated in the decision is barred by the

       de facto officer doctrine. We reach this conclusion for all the same reasons stated in the Lopez

       and Cruz cases. Acevedo raises the same issue with Rosales’s appointment as was raised in

       Taylor, Lopez, and Cruz—an appointment to a term of less than six years; thus, he is not the first

       one to collaterally attack this appointment irregularity. Because of this, the public interest in

       exposing such irregularities has been served, and the public interest in preserving the validity of

       the vast number of the Board’s decisions must be upheld. See Daniels, 201 Ill. 2d at 176.

       Accordingly, Acevedo’s claim that his termination decision is void because Rosales participated




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       in the decision is barred by the de facto officer doctrine. See Cruz, 2019 IL App (1st) 170915;

       Lopez, 2018 IL App (1st) 170733.

¶ 26          Acevedo raises a number of arguments against the application of the de facto officer

       doctrine to his claim. First, he argues that his claims involve his constitutional rights to due

       process and equal protection and, thus, the doctrine should not apply. In support, Acevedo cites

       to language used by the United States Supreme Court in Ryder that past cases in which the

       doctrine had been applied “did not involve basic constitutional protections designed in part for

       the benefit of litigants” and that “one who makes a timely challenge to the constitutional validity

       of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of

       the question and whatever relief may be appropriate if a violation indeed occurred.” (Internal

       quotation marks omitted.) Ryder, 515 U.S. at 182-83.

¶ 27          What Acevedo fails to acknowledge, however, is that Ryder dealt with a challenge to the

       appointment of two civilian judges to a military court on the basis that their appointments

       violated the appointments clause of article II of the United States Constitution (id. at 182), and

       the Supreme Court’s statements were made in specific reference to challenges to the

       “constitutional validity of the appointment.” Here, although Acevedo claims that his

       constitutional rights were violated, his claim is that the violations occurred as a result of the

       statutorily improper appointment of Rosales. He does not claim that the appointment, itself, was

       constitutionally infirm. Thus, Ryder’s statement that timely challenges to the constitutional

       validity of appointments should be addressed on the merits does not apply here. Acevedo cites no

       authority for the proposition that a litigant who claims that his constitutional rights were violated

       by a termination decision by a statutorily infirm Board is immunized from application of the

       de facto officer doctrine.



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¶ 28          Acevedo also argues that the Lopez decision “glossed over” Justice Thomas’s dissent in

       the case of Baggett v. Industrial Comm’n, 201 Ill. 2d 187 (2002). There, Justice Thomas took

       issue with allowing only the first challenger to an improper appointment procedure to have a new

       hearing; he did not, however, take issue with the application of the de facto officer doctrine in

       general. Id. at 209. Rather, his position was that in situations involving decisions issued by an

       improperly constituted agency, all of those decisions should either be upheld under the de facto

       officer doctrine or, in the alternative, all challengers to such decisions should be granted a new

       hearing. Id. It appears Justice Thomas’s concerns lied in his opinion that allowing the first

       challenger relief but not affording the same relief to subsequent challengers was not in the public

       interest. Id. at 207-08. Specifically, it did not solve the underlying appointment irregularity, and

       it would invite litigation from a large number of litigants, only to deny them relief. Id.

¶ 29          Although it might not have specifically addressed each point raised by Justice Thomas in

       his Baggett dissent, it is nevertheless clear to us from its well-reasoned analysis that the Lopez

       court took into consideration the various interests at issue in cases involving improperly

       constituted agencies and struck the best balance possible. The fact that Justice Thomas and

       Acevedo might disagree with that approach does not require us to perform a wholesale

       reconsideration of the Lopez and Cruz holdings. Accordingly, we are not persuaded that the

       Lopez court’s failure to specifically address the issues raised in Justice Thomas’s Baggett dissent

       requires us to deviate from the holdings in Lopez and Cruz.

¶ 30          Acevedo next argues that the de facto officer doctrine should not be applied in this case

       because the appointment irregularities at issue were not “merely technical” but instead violated

       substantial policy considerations. In particular, according to Acevedo, the appointment

       irregularities identified in his first amended complaint violated the Merit Board Act’s goals of



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       having an experienced, independent, balanced, and nonpolitical Board. As an initial matter, we

       observe that Acevedo did not allege any facts in the first amended complaint that support his

       claim on appeal that the improperly appointed Board members were inexperienced or biased or

       that their appointments resulted in a Board that was improperly skewed in favor of one political

       party.

¶ 31            Moreover, in support of his position, Acevedo cites Nguyen v. United States, 539 U.S. 69

       (2003). Nguyen, however, is not helpful to Acevedo. At issue in that case was the validity of a

       decision of a United States Court of Appeals panel comprised of two article III judges and one

       article IV territorial judge. Id. at 72-73. The United States Supreme Court concluded that because

       only article III judges could serve on the United States Court of Appeals and, because the

       territorial judge did not have article III powers, that territorial judge was not qualified to serve on

       the United States Court of Appeals. Id. at 80. The government argued that the panel’s decision

       should nevertheless be upheld under the de facto officer doctrine. Id. at 77. In addressing that

       contention, the Court noted that it typically applied the doctrine in situations where the defect in

       statutory authority was “merely technical,” such as when an otherwise qualified district court

       judge was improperly appointed for temporary service in another district. Id. at 77-78. However,

       the Court observed that, in cases on direct review, it had declined to apply the doctrine where the

       violations were of a statute that “embodies a strong policy concerning the proper administration

       of judicial business.” (Internal quotation marks omitted.) Id. at 78. The Court identified these as

       cases where the person appointed was incompetent to hold the appointment because the statute

       prohibited him or her from doing so. See id. at 78-79. In other words, the difference between the

       irregular appointments to which the doctrine applied and the impermissible appointments to

       which the doctrine did not apply was “the difference between an action which could have been



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       taken, if properly pursued, and one which could never have been taken at all.” Id. at 79. Because

       the territorial judge at issue in Nguyen was not permitted to serve on the United States Court of

       Appeals under any circumstances since he was not an article III judge, his was an appointment

       that could never be made. Id. at 80. Therefore, the Court declined to apply the de facto officer

       doctrine. Id.

¶ 32           In the present case, all of the appointment defects alleged in the first amended complaint

       relate only to the technical requirements of appointments—length of terms and timing of

       appointment approval. At no point has Acevedo made any argument that any of the improperly

       appointed Board members were incompetent to serve on the Board, i.e., that they lacked the

       proper qualifications or were otherwise prohibited from serving. In other words, Acevedo does

       not allege that the members at issue could never serve but instead only alleges that their

       appointments were not properly pursued. Accordingly, it appears to us that the appointments in

       this case fall within the technical defect category as defined by the Nguyen court.

¶ 33           Acevedo also argues that by applying the de facto officer doctrine, nothing is done to

       redress the wrongs done to the litigant. In addition, he argues that the amendment to the Merit

       Board Act that allowed the sheriff to make interim appointments to the Board does not apply

       retroactively to validate the Board decisions issued prior to the amendment. There can be no

       dispute that application of the de facto officer doctrine results in some litigants not being

       permitted to invalidate the challenged agency’s decision. This consequence, however, has always

       been inherent in the use of the doctrine, and yet the doctrine has been repeatedly utilized by

       Illinois courts after balancing the competing interests involved. See Lopez, 2018 IL App (1st)

       170733, ¶¶ 52-57 (summarizing the consistent use of the de facto officer doctrine in Illinois




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       jurisprudence). We see no reason, at this juncture, to conclude that the balance of those

       competing interests has changed so dramatically that the doctrine must be completely discarded.

¶ 34          Relying on the case of Andrade v. Lauer, 729 F.2d 1475 (D.C. Cir. 1984), Acevedo

       argues that the doctrine should not be applied because Dart had notice and knew of the defects in

       the Board appointments, yet continued to appoint members and allow the Board to hear cases.

       Again, Acevedo’s reliance is misplaced. The Andrade court, recognizing some of the drawbacks

       in the application of the de facto officer doctrine, concluded that, under certain circumstances,

       the purposes of the doctrine could be served while still allowing litigants to pursue relief.

       Namely, where the plaintiff brings his action “at or around the time that the challenged

       government action is taken” and is able to demonstrate “that the agency or department involved

       has had reasonable notice under all the circumstances of the claimed defect in the official’s title

       to office,” he should be allowed to pursue his action without application of the de facto officer

       doctrine. Id. at 1499. Notably, in making his argument that Andrade supports relaxing

       application of the doctrine in this case, Acevedo fails to mention Andrade’s requirement that the

       action be brought at or around the time of the challenged action, i.e., the issuance of Acevedo’s

       termination decision. Here, Acevedo did not bring this challenge to his termination at or around

       the time the Board issued its termination decision in January 2015. On direct review, Acevedo

       did not raise the issue of Rosales’s improper appointment; he only raised it for the first time

       when he instituted the present action in May 2017, over two years after the termination decision

       was issued. Accordingly, even if we were to overlook the fact that the D.C. Circuit’s application

       of the doctrine is not binding in Illinois (Huck v. Northern Indiana Public Service Co., 117 Ill.

       App. 3d 837, 840 (1983)), and even if we were to agree that Dart had the required notice,




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       Acevedo has failed to meet the first requirement for relaxing the application of the doctrine

       under Andrade.

¶ 35          Acevedo next argues that the Cruz decision “lumped every challenge to the jurisdiction

       of the illegal Merit Board to issue disciplinary decisions as ‘irregularities in appointment

       procedures.’ [Citation.] The Cruz decision essentially nullifies the Merit Board Act and grants

       Sheriff Dart immunity to violate the appointment requirements as he pleases.” In addition,

       Acevedo argues that Lopez “bars any challenge to any Merit Board appointment into perpetuity.”

       We disagree, and we find Acevedo’s contention in this respect to be disingenuously overbroad.

       The Lopez court was careful to limit itself and its holding to cases involving Rosales’s improper

       appointment. See Lopez, 2018 IL App (1st) 170733, ¶ 59 (referring repeatedly and specifically to

       challenges to the illegal appointment of Rosales). As for Cruz, that decision did not lump all

       challenges to the jurisdiction of the Board into a single category of appointment irregularities.

       Rather, the Cruz court noted that although the appellant in that case challenged the appointment

       of Board members other than Rosales, he did so based on “the same problem with the

       appointment procedure that was before us in both Taylor and Lopez” and was challenging the

       “same ‘irregularity’ in appointment procedures of the Board that has already come to our

       attention and been addressed.” Cruz, 2019 IL App (1st) 170915, ¶ 38. We think it apparent that

       the Cruz court was referring to appointments of less than six years—the particular irregularity at

       issue—and not all appointment irregularities in general. We see nothing in the language of either

       Lopez or Cruz to suggest that future challengers to appointment irregularities other than

       appointments for less than six years will be barred by the de facto officer doctrine.

¶ 36          Finally, Acevedo points out that he alleges appointment irregularities other than

       Rosales’s improper appointment for a term of less than six years, namely, the appointment of



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       Brady and Mateo-Harris for terms of less than six years and the retroactive approval of the

       appointments of Brazier, Dalicandro, and Widup. First, with respect to the challenges to Brady

       and Mateo-Harris, they raise the same appointment irregularity—interim appointments of less

       than six years—as was raised in Taylor, Lopez, and Cruz. Accordingly, those challenges are

       barred by the de facto officer doctrine. Cruz, 2019 IL App (1st) 170915, ¶ 28.

¶ 37          More importantly, however, is the fact that the only basis alleged in the first amended

       complaint for the claim that Acevedo’s termination was issued by an improperly constituted

       Board is that Rosales was appointed to a term of less than six years. He makes no claim in the

       first amended complaint that any of the other allegedly improperly appointed members

       participated in his termination. 1 We note that in his opening brief, Acevedo claims that Widup

       “oversaw [his] hearing, administered oaths, and ruled on the admissibility of evidence.” The first

       amended complaint does not, however, contain any such allegations or support such an

       inference. Rather, Acevedo alleged that the Board decision terminating his employment was null

       and void “because the Board was improperly constituted with former Member John R. Rosales

       having been invalidly appointed under the [Merit Board] Act.” Later, he alleged:

                   “17. Plaintiff Acevedo is a former Cook County Correctional Officer who was

              terminated by the Defendant Board in a decision dated January 12, 2015. Member

              Rosales was a part of the deliberations on Acevedo’s termination decision, and signed off

              on the final order terminating his employment.”


              1
                We note that Dart’s brief on appeal states that after the dismissal of Wuerffel and Meza, “the
       remaining factual allegations of the First Amended Complaint boiled down to Acevedo’s claim that
       Rosales and Widup, as well as most of the other participants in the Merit Board decision against him,
       were improperly appointed.” To the extent that Dart suggests that the first amended complaint contains
       allegations that Widup or any other of the allegedly improperly appointed Board members participated in
       Acevedo’s termination, he is incorrect. As we discuss, of the named Board members were allegedly
       improperly appointed, only Rosales was identified in the first amended complaint as having participated
       in Acevedo’s termination decision.
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       He made no allegations anywhere in the first amended complaint that Widup participated in the

       decision to terminate his employment. Instead, the only allegations related to Widup were that he

       “deliberated upon, and signed off on the cases of officers similarly-situated to Plaintiffs.”

       Accordingly, we decline to consider any allegation raised for the first time on appeal that

       Acevedo’s termination was null because Widup participated in the decision. See Wells Fargo

       Bank, N.A. v. Maka, 2017 IL App (1st) 153010, ¶ 24 (stating that issues not raised in the trial

       court cannot be raised for the first time on appeal).

¶ 38          We recognize that that the first amended complaint included allegations regarding the

       improper appointments of Brazier, Dalicandro, and Widup as they relate to the putative,

       unnamed class members. We need not consider these, however, because unless Acevedo, as the

       last remaining named plaintiff and putative class representative, is able to state a valid cause of

       action, the class action cannot be certified and maintained. See De Bouse v. Bayer AG, 235 Ill. 2d

       544, 560 (2009) (where the named plaintiff was unable to maintain a cause of action against the

       defendant, she was not an appropriate representative of the putative class and class certification

       was not appropriate); Landesman v. General Motors Corp., 72 Ill. 2d 44, 48-49 (1978) (holding

       that “[t]he requirement that the named representatives of the putative class possess a valid cause

       of action is subsumed” in the class certification requirements that common questions of law and

       fact predominate and that the representative parties will fairly and adequately protect the

       interests of the class, and that if the trial court finds that the complaint fails to state a cause of

       action, it should be dismissed); Spring Mill Townhomes Ass’n v. OSLA Financial Services, Inc.,

       124 Ill. App. 3d 774, 779-80 (1983) (where none of the named plaintiffs had a cause of action

       against the defendants, no class action could be maintained and the trial court did not err in

       directing a verdict in favor of defendants on the complaint).



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¶ 39          We conclude, for all the reasons stated above, that Acevedo’s claim that the Board’s

       decision terminating his employment was null and void due to Rosales’s improper appointment

       is barred by the de facto officer doctrine, and thus, he was unable to state a cause of action

       against defendants. In turn, because Acevedo does not have a valid cause of action against the

       defendants, and because the other named plaintiffs—Meza and Wuerffel—voluntarily dismissed

       their claims, the trial court properly dismissed the first amended complaint in its entirety.

¶ 40                                          III. CONCLUSION

¶ 41          For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 42          Affirmed.




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