                                                  SIXTH DIVISION
                                                  September 29, 2006



No. 1-04-2017

THE PEOPLE OF THE STATE OF ILLINOIS,         )    Appeal from the
                                             )    Circuit Court of
          Plaintiff,                         )    Cook County
                                             )
     v.                                      )
                                      )
JOHNNIE ROSS,                                )    Honorable
                                             )    Stuart Palmer,
          Defendant-Appellant.               )    Judge Presiding


     JUSTICE McNULTY delivered the opinion of the court:

     Johnnie Ross requested certain documents from the Chicago

police department (the Department).       The Department denied much

of the request.   Ross then filed a pro se petition with the

circuit court, seeking an order directing the Department to

release the documents he sought.    The trial court dismissed the

petition with prejudice on its own motion and without giving Ross

notice or an opportunity to argue in support of his petition.

Ross now appeals.

     We find that the Code of Civil Procedure (735 ILCS 5/1-101

et seq. (West 2004)) does not permit dismissal of this petition

without notice to the petitioner.    Because we cannot find the

procedural error harmless under the circumstances of this case,

we reverse and remand for further proceedings on the petition,

with proper notice to Ross.

                              BACKGROUND

     On September 15, 1994, a jury found Ross guilty of murder,

attempted murder and armed robbery.       The court sentenced Ross to
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90 years in prison.   This court affirmed the convictions and

sentence on direct appeal.   People v. Ross, No. 1-94-3964 (1997)
(unpublished order under Supreme Court Rule 23).    Over the

following years Ross filed four pro se postconviction petitions.

 The trial court summarily dismissed all four petitions, and this

court affirmed all four summary dismissals.

     In July 2003 Ross asked the Department for all police

reports concerning the murder and robbery of which the jury found

him guilty.   He expressly premised his request on the Freedom of

Information Act (5 ILCS 140/1 et seq. (West 2002)).    The

Department provided some documents with some information deleted,

and it refused to provide several other documents.

     In March 2004 Ross, pro se, filed in circuit court a

document he titled "Petition for Mandamus."   Although he named

himself as plaintiff and the City of Chicago Department of Police

as defendant, the clerk assigned the petition to the criminal

case, effectively treating the document as another postconviction

petition.   In the petition Ross claimed that the Department

failed to perform its duty to produce the requested records.    He

appended to the petition the letter the Department sent him

notifying him of the denial of his request, along with a document

titled "Freedom of Information Appeal," addressed to the

superintendent of the Department.

     The trial court, sua sponte and without notice to any party,

decided to dismiss the petition with prejudice.    No party

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appeared at the hearing on March 25, 2004, when the court

disposed of the case.    Ross now appeals.



                               ANALYSIS

     Ross styled his pleading as a petition for mandamus.       When

the court confronts such a petition, it has authority to

recharacterize the petition sua sponte (People v. Shellstrom, 216
Ill. 2d 45, 53 (2005)) or dismiss it sua sponte (Owens v. Snyder,

349 Ill. App. 3d 35, 43-44 (2004)).       Several courts have

analogized mandamus petitions in a criminal context to petitions

for relief from judgment brought under section 2-1401 of the Code

of Civil Procedure (735 ILCS 5/2-1401 (West 2004)).       See Owens,
349 Ill. App. 3d at 42-43; People v. Bramlett, 347 Ill. App. 3d

468, 472 (2004); People v. Winfrey, 347 Ill. App. 3d 987, 988-89

(2004).     Statutory provisions governing mandamus, like the

provisions governing relief from judgment, give no explicit

guidance for proceedings when the court acts on its own motion.

735 ILCS 5/14-101 et seq., 2-1401 et seq. (West 2004); People v.
Dyches, 355 Ill. App. 3d 225, 229 (2005).

     Our supreme court, in Shellstrom, set out the procedures for

the trial court to follow when it acts on its own motion to

recharacterize a pro se petition for mandamus.       Before

recharacterizing the petition, the trial court must (1) notify

the petitioner of the court's intent to recharacterize the

pleading, (2) warn the petitioner of the consequences of the

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proposed recharacterization, and (3) "provide the litigant an

opportunity to withdraw the pleading or to amend it."

Shellstrom, 216 Ill. 2d at 57.
     The various districts of the appellate court have not agreed

on the proper procedures for dismissal on the court's motion of

petitions labeled as mandamus actions or petitions for relief

from judgment.   Compare Mason v. Snyder, 332 Ill. App. 3d 834

(4th Dist. 2002); People v. Gaines, 335 Ill. App. 3d 292, 296 (2d

Dist. 2002); Dyches, 355 Ill. App. 3d at 229.   We follow the

well-reasoned approach adopted by this division in Dyches and by

the Third District in People v. Edwards, 355 Ill. App. 3d 1091,

1100 (2005).

     In Edwards the appellate court acknowledged the court's

authority to dismiss frivolous petitions sua sponte, but held

that trial courts should not do so without notice to the

petitioner.

     "Sua sponte action means only that the court initiates

     a motion, which then follows the otherwise applicable

     procedures, including notice of the proposed judicial

     action and the opportunity to argue against such

     action, as required in fairness to the litigants."

     Edwards, 355 Ill. App. 3d at 1100.
The court held that because section 2-1401 did not explicitly

provide for dismissal without prior notice to the litigants, the

court must interpret the statute as disallowing such a summary

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dismissal.

     This division similarly held that "summary dismissal, which

is a drastic procedure, should not be read into the procedures

provided by section 2-1401." Dyches, 355 Ill. App. 3d at 229.
The trial court in Dyches failed to provide the requisite notice

before summarily dismissing a petition brought pursuant to

section 2-1401.   While the appellate court held that the trial

court erred, the appellate court found the error harmless because

the petition included "patently incurable" defects.    Dyches, 355
Ill. App. 3d at 229.

     The decision in Owens largely comports with the approach

taken in Dyches and Edwards.     In Owens, the plaintiff filed a

complaint for mandamus and the trial court summarily dismissed

the complaint, without prior notice to the plaintiff and before

issuance of a summons to the defendant named in the complaint for

mandamus.    The plaintiff argued that the court's failure to wait

for service of summons on the defendant rendered the decision

void for lack of jurisdiction.    The appellate court held that the

trial court acquired both subject matter jurisdiction and

personal jurisdiction over the plaintiff when he filed the

complaint, and therefore the court had jurisdiction to dismiss

the complaint.    Owens, 349 Ill. App. 3d at 41.   The plaintiff did

not argue for reversal on grounds of the failure to provide

notice to the plaintiff of the trial court's own motion to

dismiss.

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     The appellate court in Owens held that the plaintiff
suffered no prejudice due to the failure to serve summons on the

defendant.    Owens, 349 Ill. App. 3d at 44.   The court's reasoning

shows that it found any possible procedural defect harmless:

            "If the trial court had followed the Code and

     defendant had been served, plaintiff would be in the

     same position he now is in. Dismissal of his complaint

     was inevitable. Plaintiff requests this court to

     reverse and remand for further proceedings. Such action

     would have little remedial effect, only delaying

     dismissal.    ***

            *** [P]laintiff did not demonstrate anything close

     to a clear, affirmative right to relief ***.    There was

     nothing plaintiff could do to make it any better. He

     simply was off the track and could not get back on. We

     do not believe the legislature intended to require

     judges and clerks to jump through useless hoops aimed

     toward impossible goals."    Owens, 349 Ill. App. 3d at

     45.

Thus, the court in Owens, like the court in Dyches, found that
the failure to follow statutory procedures did not require

reversal because the complaint had patently incurable defects.

     Following Dyches and Edwards, we hold that when a trial

court finds a mandamus petition insufficient to state a claim for

mandamus relief or for relief from a judgment, the court must

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first notify the petitioner of its intention to dismiss the

petition as insufficient, just as the court would need to notify

the petitioner before recharacterizing the petition.       The

petitioner then should have the opportunity to withdraw or amend

his pleading and to argue in court for the sufficiency of the

petition.     See People v. Anderson, 352 Ill. App. 3d 934, 944
(2004).     If the trial court fails to follow proper procedures for

its own motion to dismiss, and the procedural defect prejudices

the petitioner, we must reverse.        But this court will not reverse

the judgment if the trial court committed only harmless error by

dismissing a petition with patently incurable defects.       Dyches,
355 Ill. App. 3d at 229.

     Here, we find that the court erred by dismissing the

petition without providing Ross notice of its intent to dismiss

the case on the court's own motion.       Ross contends that if he had

received notice, he could have amended his petition to state a

claim for administrative review of the denial of his request

under the Freedom of Information Act.       See 5 ILCS 140/11 (West

2002).

     The Department raises several procedural objections to the

petition, arguing that the trial court could not have construed

the petition Ross filed as a viable claim for review under the

Freedom of Information Act.    For example, the Department contends

that Ross did not swear in an affidavit that he sought review by

the Department's superintendent of the denial of his document

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request.    The Department concludes that Ross has not adequately

alleged exhaustion of administrative remedies.

       Ross attached to his mandamus petition a form in which he

apparently requested review, by the Department's superintendent,

of the denial of his request for documents.   The form supports

the conclusion that Ross might appropriately correct his petition

by a simple amendment to show that he exhausted his

administrative remedies.

       The Department also notes that Ross did not object when the

clerk treated the petition as part of the criminal case against

Ross, rather than treating it as a separate civil action.    The

Department does not show why Ross could not have corrected the

error by withdrawing his petition and filing a complaint with a

new case number.    The Department castigates Ross because he

"never corrected the error[s]" he made in the petition.    If the

trial court had followed the proper procedural steps, Ross would

have had the opportunity to correct the errors.    On this record

we cannot say that the defects of his petition are so patently

incurable that he had no chance of amending his petition to state

a valid claim for administrative review of the denial of his

request for certain documents under the Freedom of Information

Act.

       The trial court failed to follow proper procedures when it

failed to allow Ross a chance to amend the petition or otherwise

respond to the trial court's sua sponte motion to dismiss the

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complaint.        The procedural error here prejudiced Ross because

Ross may have valid grounds for administrative review of the

denial of his request for certain documents in the possession of

the Department.           Therefore, we reverse the judgment of the trial

court and we remand for further proceedings in accord with this

opinion.

       Reversed and remanded.

       FITZGERALD SMITH, P.J., concurs.

       Justice O'Malley, specially concurring:

       I concur with the opinion of the majority. The opinion, however, relies to some extent on


this court's opinion in People v. Anderson, 352 Ill. App. 3d 934 (2004), which held that the trial


court could not summarily dismiss a 2-1401 petition, without notifying defendant, even though


that court was cognizant of fatal flaws in the petition. However, the Anderson court did affirm


the summary dismissal by the trial court in that case. Nonetheless, the holding reflected that the


court erred in failing to follow notification procedures, albeit the error was harmless where


defendant's petition was completely without merit. Anderson, 352 Ill. App. 3d at 946-47.


       I wrote a concurrence in Anderson expressing my opinion that while I agreed with the


outcome, it was my view that no error, harmless or otherwise, occurred in the court below. I



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continue to believe that if the appellate court is capable of recognizing that defendant's petition is


fatally flawed and not amendable to successful amendment, there is no reason that the trial court


cannot be trusted to do the same without useless procedural machinations. This view was also


expressed by Justice Wolfson in Owens v. Snyder, 349 Ill. App. 3d 41 (2004), cited in the


majority opinion as well.




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