                                      2017 IL App (1st) 161118

                                                                           SIXTH DIVISION
                                                                           February 17, 2017
No. 1-16-1118

THE PEOPLE OF THE STATE OF ILLINOIS ex rel.                 )
W.C. WOFFORD, KEITH PRICE, and DONALD                       )              Appeal from the
NESBIT,                                                     )              Circuit Court of
                                                            )              Cook County.
       Plaintiffs,                                          )
                                                            )
v.                                                          )
                                                            )              No. 2015 CH 09540
LAMONT D. BROWN; and THE CITY OF HARVEY,                    )
an Illinois Municipal Corporation,                          )
                                                            )
       Defendants-Appellees                                 )              Honorable
                                                            )              Thomas R. Allen,
(Keith Price, Plaintiff-Appellant).                         )              Judge Presiding.


       JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
       Presiding Justice Hoffman and Justice Cunningham concurred
       in the judgment and opinion.

                                            OPINION

¶1     Plaintiff-appellant, Keith Price, appeals from the denial of a petition for leave to file a

quo warranto complaint seeking the removal of defendant-appellee, Lamont D. Brown, from the

office of alderman of the fourth ward of defendant-appellee, the City of Harvey (the City). For

the following reasons, we reverse and remand.

¶2     Mr. Brown was elected alderman of the fourth ward of the City and sworn into office on

May 11, 2015, as one of the seven members of the city council (comprised of six aldermen and

the mayor). Prior to his election, however, Mr. Brown was convicted of two felonies: possession

of a controlled substance in 1991 and possession of a stolen motor vehicle in 1994.

¶3     On June 18, 2015, W.C. Wofford, as a citizen and resident of the fourth ward, filed a

petition for leave to file a quo warranto complaint seeking the removal of Mr. Brown as

alderman. Mr. Wofford alleged in the petition and attached proposed complaint that, under
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section 3.1-10.5(b) of the Illinois Municipal Code (65 ILCS 5/3.1-10-5(b) (West 2014)), Mr.

Brown was ineligible to hold an elected municipal office in that he had been twice convicted of a

felony. Mr. Wofford further maintained that, prior to Mr. Brown taking office, written requests

had been submitted to the offices of the Illinois Attorney General (AG) and the State’s Attorney

of Cook County (SA) to bring a quo warranto action against Mr. Brown, but they had failed to

do so. Certified records of Mr. Brown’s convictions where attached to the petition.

¶4     On July 6, 2015, the circuit court granted Mr. Wofford leave to file the proposed quo

warranto complaint instanter against defendants-appellees, the City and Mr. Brown.

Subsequently, the court entered an order on July 22, 2015, granting Mr. Wofford’s emergency

motion for a temporary restraining order (TRO) which prohibited Mr. Brown from exercising the

powers and authority of the office of alderman. Mr. Brown was not present in court.

¶5     On July 28, 2015, Mr. Brown filed a motion to dissolve the TRO arguing, in part, that

Mr. Wofford, as a private individual, did not have standing to bring the quo warranto action

because the relevant issue was one of public interest and Mr. Wofford had no distinct private

interest in the matter. Mr. Brown also maintained that Mr. Wofford was motivated to bring the

action for political reasons, as he was aligned with the mayor of the City on certain key issues in

opposition to Mr. Brown. The circuit court, on July 30, 2015, granted that motion and entered an

order which vacated and dissolved the TRO and set a schedule on a motion to dismiss the

complaint due to Mr. Wofford’s lack of standing to pursue a quo warranto action.

¶6     On August 7, 2015, Mr. Brown filed a motion under section 2-619 of the Code of Civil

Procedure (735 ILCS 5/2-619 (West 2014)), to dismiss the action, on the ground that Mr.

Wofford lacked standing. The motion argued that the issue raised in the complaint, as to Mr.



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Brown’s eligibility to hold office, was purely one of public interest and could only be brought by

the AG or SA. The motion further asserted that, even if the question was not one of public

interest, Mr. Wofford’s status as a citizen and taxpayer of the fourth ward did not give him

standing under established case law.

¶7      Mr. Wofford did not respond to the motion. Instead, on August 24, 2015, Mr. Wofford,

with Keith Price and Donald Nesbit as additional relators (collectively referred to as plaintiffs-

aldermen), filed an amended petition for leave to file a quo warranto complaint seeking to

remove Mr. Brown as alderman. 1 In the amended petition, Mr. Price alleged that he is a resident,

citizen, and duly elected alderman of the sixth ward of the City, and Mr. Nesbit contended that

he is a resident, citizen, and duly elected alderman of the fifth ward of the City.

¶8      Mr. Brown filed a response in opposition to the amended petition contending that the

three named relators lacked standing to bring a quo warranto action. Plaintiffs-aldermen replied

that they, as aldermen, possessed private interests which were distinct and separate from those of

other citizens. Specifically, plaintiffs-aldermen alleged that they have been forced to exercise

their legislative authority—to enact legislation and determine public policy—with Mr. Brown,

who was not qualified to hold office. In support of their standing argument, plaintiffs-aldermen

cited the decision in People ex rel. Ballard v. Niekamp, 2011 IL App (4th) 100796, which held

that members of a local board of education had standing to bring a quo warranto action seeking

the removal of another member of the board for that board member’s violation of the Public


        1
         The amended petition did not refer to or seek to adopt the original quo warranto complaint
brought by Mr. Wofford individually and, thus, this “ ‘earlier pleading ceases to be a part of the record for
most purposes, being in effect abandoned and withdrawn.’ ” Foxcroft Townhome Owners Ass’n v.
Hoffman Rosner Corp., 96 Ill. 2d 150, 154 (1983) (quoting Bowman v. County of Lake, 29 Ill. 2d 268, 272
(1963)).



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Officer Prohibited Activities Act (Act) (50 ILCS 105/1 (West 2008)). Niekamp, 2011 IL App

(4th) 100796, ¶ 1.

¶9     On February 18, 2016, the circuit court entered an order which denied the amended

petition for leave to file a quo warranto complaint. In so doing, the court rejected the

applicability of Niekamp and found that plaintiffs-aldermen lacked standing to bring a quo

warranto action, as they possessed the same interest in the removal of Mr. Brown from his office

as those of all citizens of the City and the “public at large.” The court also concluded that the suit

would cause “chaos” and not benefit the public.

¶ 10   Mr. Price filed a motion for reconsideration of the order denying the amended petition,

which was adopted by Mr. Wofford and Mr. Nesbit. In his motion, Mr. Price argued that the

court erred in its conclusion that he lacked a private interest distinct from the public in general.

Mr. Price asserted that as an alderman, he was sworn to uphold the law and owed fiduciary

duties to the public in fulfilling his official duties. Further, Mr. Brown’s presence on the city

council subjected its work and actions to challenges and questions of validity. The court denied

the motion to reconsider.

¶ 11   Only Mr. Price (plaintiff-appellant) has appealed from the orders denying the amended

petition and reconsideration of that denial. In addition, defendants-appellees have not filed a

brief with this court. However, since the record is simple and the issues on appeal are such that

we can decide them without the aid of an appellees’ brief, we will review the case on the

appellant’s brief alone. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d

128, 133 (1976).




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No. 1-16-1118

¶ 12   Quo warranto proceedings provide an extraordinary remedy, and are now codified under

article 18 of the Code of Civil Procedure (quo warranto statute) (735 ILCS 5/18-101 et seq.

(West 2014)). People ex rel. Graf v. Village of Lake Bluff, 206 Ill. 2d 541, 547 (2003). Section

18-102 of the quo warranto statute provides:

       “The proceeding shall be brought in the name of the People of the State of Illinois by the

       [AG] or [SA] of the proper county, either of his or her own accord or at the instance of

       any individual relator; or by any citizen having an interest in the question on his or her

       own relation, when he or she has requested the [AG] and [SA] to bring the same, and the

       [AG] and [SA] have refused or failed to do so, and when, after notice to the [AG] and

       [SA], and to the adverse party, of the intended application, leave has been granted by the

       circuit court.” (Emphasis added.) 735 ILCS 5/18-102 (West 2014).

¶ 13   Thus, where a case involves matters of purely public interest, only the AG or the SA “as

representatives of the people, have standing to institute quo warranto proceedings.” Henderson

v. Miller, 228 Ill. App. 3d 260, 266 (1992) (citing People ex rel. Raster v. Healy, 230 Ill. 280

(1907)). However, where the AG or the SA fails to file suit, a quo warranto action may be

pursued by an interested party, with leave of court, to challenge a public official who “usurps,

intrudes into, or unlawfully holds or executes any office, or franchise, or any office in any

corporation created by authority of this State.” 735 ILCS 5/18-101(1) (West 2014); see also,

Parker v. Lyons, 757 F.3d 701, 704 (7th Cir. 2014) (“The purpose of a quo warranto action

generally ‘is to question whether a person lawfully holds title to office.’ ” (quoting McCready v.

Secretary of State, 382 Ill. App. 3d 789, 801 (2008), and citing 735 ILCS 5/18-101 (West




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2014))). If a quo warranto action is successful, the public official may be removed from office.

735 ILCS 5/18-108 (West 2014).

¶ 14   Pursuant to the quo warranto statute, therefore, “a private citizen seeking to bring an

action in quo warranto on his own behalf must first request the [AG] or the [SA] to file the

action. [Citation.]” Henderson, 228 Ill. App. 3d at 267. Further, an individual seeking leave to

file suit “must demonstrate that he has standing by showing that he has a private interest which is

directly, substantially and adversely affected by the challenged act, which is either then

occurring or certain to occur, and which is distinct from the interests of the general public, even

though some members of the public might be affected in the same manner.” Id. (citing People ex

rel. Turner v. Lewis, 104 Ill. App. 3d 75 (1982)). The asserted private interest must be pled with

specificity and not by mere conclusory assertions. People ex rel. Hanrahan v. Village of

Wheeling, 42 Ill. App. 3d 825, 833 (1976).

¶ 15   Because an individual does not have a right to file a quo warranto action, “[g]ranting

leave to file a complaint in quo warranto is a matter within the sound discretion of the trial

court.” People ex rel. Durst v. Village of Germantown Hills, 51 Ill. App. 3d 969, 972 (1977). The

court must consider the conditions and circumstances of the case, the motives of the relators in

seeking to bring the action, the necessity for the requested remedy, and whether the interests of

the public will be served by the suit. People ex rel. Muhammad v. Muhammad-Rahmah, 289 Ill.

App. 3d 740, 746 (1997) (citing People ex rel. Hansen v. Phelan, 158 Ill. 2d 445, 449 (1994)). A

decision to grant or deny a petition for leave to file an action will be overturned only where there

has been a clear abuse of discretion or “an application of impermissible legal criteria.” Graf, 206

Ill. 2d at 547 (citing Boatmen’s National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314




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(1993)). However, the issue of whether a plaintiff has standing is reviewed de novo. Barber v.

City of Springfield, 406 Ill. App. 3d 1099, 1101 (2011).

¶ 16   Here, plaintiff-appellant specifically seeks to remove Mr. Brown from office pursuant to

section 3.1-10-5(b) of the Municipal Code, which provides:

       “A person is not eligible to take the oath of office for a municipal office if that person is,

       at the time required for taking the oath of office, in arrears in the payment of a tax or

       other indebtedness due to the municipality or has been convicted in any court located in

       the United States of any infamous crime, bribery, perjury, or other felony.” 65 ILCS

       5/3.1-10-5(b) (West 2014).

Section 3.1-10-5(b) has been interpreted to disqualify an individual with a felony conviction

from holding the office of alderman. See Bryant v. Board of Election Commissioners, 224 Ill. 2d

473, 474 (2007). This provision “ensure[s] public confidence in the honesty and integrity of

those serving in state and local offices.” People v. Hofer 363 Ill. App. 3d 719, 723 (2006) (citing

People ex rel. Ryan v. Coles, 64 Ill. App. 3d 807, 811-12 (1978)).

¶ 17   As such, a quo warranto action is indisputably and generally a proper procedure for

seeking Mr. Brown’s removal from office due to his prior convictions, pursuant to section 3.1-

10-5(b). See Alvarez v. Williams, 2014 Il App (1st) 133443, ¶ 3 (quo warranto action against

board of education member based on claim of ineligibility due to prior conviction); Hofer 363 Ill.

App. 3d at 720 (where quo warranto action was brought to remove trustee of village for prior

felony conviction).

¶ 18   The specific question raised on appeal is whether plaintiff-appellant, as alderman of the

sixth ward of the City, has standing under section 18-102 of the quo warranto statute to bring a



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quo warranto action challenging Mr. Brown’s occupation of the office of alderman of the fourth

ward of the City. The quo warranto statute does not specifically define the term “interest” as

used in section 18-102. However, as we have discussed above, to establish standing an individual

must have a specific interest distinct from an injury common to the public which is directly,

substantially, and adversely affected by the challenged action. Graf, 206 Ill. 2d at 547-48; Lewis,

104 Ill. App. 3d at 77. With respect to this requirement, we note that aldermen are elected

officials of a municipality and vested with “purely legislative” authority. 65 ILCS 5/6-4-6 (West

2014). Aldermen owe fiduciary duties to their municipality (Chicago Park District v. Kenroy,

Inc., 78 Ill. 2d 555, 564 (1980)) and “the people they represent” (People v. Savaiano, 66 Ill. 2d 7,

15 (1976) (citing City of Chicago ex rel. Cohen v. Keane, 64 Ill. 2d 559, 565 (1976))).

¶ 19    Plaintiff-appellant argues that, under this precedent, he has an interest in a quo warranto

action to remove Mr. Brown from the city council which is separate and distinct from the interest

possessed by other members of the public. As set forth in the amended petition, plaintiff-

appellant maintains that, if Mr. Brown is not removed from office, plaintiff-appellant “will

continuously be forced to exercise the duties of his office with [Mr. Brown], who is not qualified

to hold elected municipal office because he is a convicted felon.” Plaintiff-appellant argues that

his oath of office requires that he uphold the constitution and statutes of this state and is

obligated to fulfill his fiduciary duties.

¶ 20    On the issue of standing, we find the aforementioned Niekamp decision controlling. In

that case, the defendant was removed as a member of the board of education of Quincy School

District No. 172 (school board) for violating section 1 of the Act. Niekamp, 2011 IL App (4th)

100796, ¶¶ 1-10. The defendant had violated the Act by being a member of the county board at a



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time when he was a member of the school board. The quo warranto suit was filed by other

members of the school board and alleged that the defendant’s election to the school board was

void. Id.

¶ 21    On appeal, the defendant challenged the standing of the plaintiffs to bring the suit. The

appellate court found that, as fellow members of the school board, the plaintiffs’ interests “were

sufficiently distinct from the interests of the general public” in that the defendant’s “votes on

issues before the school board clearly could affect the validity of board actions.” Id. ¶ 26.

¶ 22    In reaching this conclusion, the Niekamp court found a decision from the West Virginia

Supreme Court, persuasive. Id. ¶ 27 (citing State ex rel. Morrison v. Freeland, 81 S.E.2d 685,

687 (W. Va. 1954), overruled on other grounds by Marra v. Zink, 256 S.E.2d 581, 586 (W. Va.

1979)). In that case, members of a city council, which was composed of a total of nine members,

sought leave to file a quo warranto action against another member. Similarly to Illinois, the West

Virginia quo warranto statute required that an individual seeking to bring such an action must be

“interested” in the prosecution in order to have standing. Morrison, 81 S.E.2d at 687. The West

Virginia Supreme Court in Morrison noted that, because of the size of the body, a vote of a

single member “may often determine the success or failure of any motion before that body.” Id.

at 688. As the Niekamp court quoted extensively, the West Virginia Supreme Court then found

the plaintiffs in that case had standing, reasoning that:

                “ ‘The precise question to be determined here is whether members of a city

        council elected from certain wards have such an interest within the meaning of the statute

        to enable them to prosecute a proceeding in the nature of quo warranto, to have

        determined the right of another person to hold office as a member of that body from a



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      different ward. We are cited no authority, and have found none, which seems directly in

      [sic] point. The charter of the City of Clarksburg provides for a city council of nine

      members. It also provides that five members thereof shall constitute a quorum, and that a

      majority vote of the members shall be necessary for the transaction of business, including

      the enactment of ordinances under which the municipality will be operated. Thus it will

      be seen that the vote of any member may often determine the success or failure of any

      motion before that body. This being true, can it be said, by any process of reasoning, that

      each member of the council is not interested, as an individual and as an officer, in having

      only properly elected officers participate in the transaction of the business of that body?

      Is not such interest of such dignity as to make it the duty of each member, either as an

      individual or as a member of that body, to prevent illegal or unauthorized participation in

      the voting on the important issues which must be settled by that body? Is not the interest

      of each member, because of the duties imposed, and the privileges granted, different and

      far more substantial than the interest of a mere citizen and taxpayer? We think it must be

      held that each member of the council is possessed of such an “interest” as entitles him to

      prosecute such an action. We think it can not be argued with much force that one in such

      position has no interest in seeing that the business of the council is not controlled by a

      mere usurper of office. To so construe the statute does not unduly extend or broaden the

      field of potential relators in such proceedings as to make possible undue harassment of

      those willing to accept office. It is more likely to cause only those who are in fact

      qualified to hold office to seek office. To hold otherwise would so limit the use of the




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        proceeding as to render it practically useless.’ ” Niekamp, 2011 IL App (4th) 100796,

        ¶ 28 (quoting Morrison, 81 S.E.2d at 688).

¶ 23    Like the Niekamp court, we too find Morrison persuasive. Because of the size of the

council of the City—seven members—the involvement and vote of one alderman is significant.

Plaintiff-appellant, as another member of the city council, has an interest in assuring that the

legislative process is not tainted by one who “usurps” an office of government (735 ILCS 5/18-

101(1) (West 2014)) and has a duty to prevent someone who is not eligible to hold the office of

alderman from participating in the council’s business. Plaintiff-appellant, as an alderman and

member of the city council, has a substantial interest in a quo warranto action seeking the

removal of Mr. Brown, based on his ineligibility to hold the office of alderman. That interest is

distinct from the interest of the general public.

¶ 24    Based on our de novo review of the standing issue, we therefore find that plaintiff-

appellant has standing to bring a quo warranto action seeking the removal of Mr. Brown from

the office of alderman of the fourth ward of the City. In reaching this conclusion, we again note

that defendants-appellees have not filed an appellate brief. Any alternative arguments they might

have raised are therefore forfeited, as a party forfeits points not argued in their brief. Ill. S. Ct. R.

341(h)(7) (eff. Feb. 6, 2013). We also again note that, neither Mr. Wofford, nor Mr. Nesbit, have

participated in this appeal. However, because we find plaintiff-appellant has standing as a sitting

alderman of the City, we need not determine whether either Mr. Wofford or Mr. Nesbit also has

standing. Niekamp, 2011 IL App (4th) 100796, ¶ 29.

¶ 25    Finally, we note that in denying the amended petition, the circuit court also found that the

quo warranto action would cause “chaos” and would therefore not benefit the public. A court



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“may consider the public interest in determining whether to grant or deny leave to file a

complaint in quo warranto.” People ex rel. Nelson v. Village of Long Grove, 169 Ill. App. 3d

866, 876-77 (1988) (citing People ex rel. Koplin v. Village of Hinsdale, 38 Ill. App. 3d 714, 718

(1976)). Here, plaintiff-appellant seeks to file a quo warranto action based on Mr. Brown’s

undisputed ineligibility to hold the office of alderman under section 3.1-10-5(b), which as we

have discussed seeks to protect the confidence of the public in the honesty and integrity of local

elected officials. Hofer, 363 Ill. App. 3d at 723. Thus, the public interest would actually be well-

served if plaintiff-appellant was allowed to pursue the action to determine Mr. Brown’s

eligibility to hold office under section 3.1-10-5(b).

¶ 26   Because plaintiff-appellant had standing to bring a quo warranto action against Mr.

Brown and the public interest would be served by such an action, we find the circuit court abused

its discretion by denying the amended petition for leave to file a quo warranto action and the

motion seeking reconsideration of that decision.

¶ 27   For the reasons stated above, we reverse the orders denying the amended petition to file a

quo warranto action and denying reconsideration of that order, and remand this matter with

directions to grant the amended petition for leave to file a complaint in quo warranto.

¶ 28   Reversed and remanded.




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