                                        2018 IL App (3d) 170426

                               Opinion filed November 7, 2018
     _____________________________________________________________________________

                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                   2018

     CHARLES DONELSON,                               )
                                                     )      Appeal from the Circuit Court
            Plaintiff-Appellant,                     )      of the 12th Judicial Circuit,
                                                     )      Will County, Illinois.
            v. 	                                     )
                                                     )

     MELVIN HINTON, J. LARIS, M. MIRSKY, )                  Appeal No. 3-17-0426

     W. NICHOLAS, and R. PFISTER,	                   )      Circuit No. 16-MR-1902 

                                                     )

            Defendants                               )

                                                     )      The Honorable

     (Melvin Hinton, Defendant-Appellee).	           )      Arkadiusz Z. Smigielski,

                                                     )      Judge, presiding.

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

     ____________________________________________________________________________

                                                OPINION

¶1          Plaintiff Charles Donelson filed a writ of certiorari, arguing that the Illinois Department

     of Corrections (IDOC) classified him as a sexual predator in violation of its administrative

     directive. Defendant Melvin Hinton, IDOC’s acting statewide mental health supervisor, filed a

     motion to dismiss based on laches. The trial court granted the motion and dismissed Donelson’s

     claim. Plaintiff appealed, and we reverse and remand for an evidentiary hearing.
¶2                                          I. BACKGROUND

¶3          In July 2016, plaintiff Charles Donelson filed a complaint for common law writ of

     certiorari against defendants Melvin Hilton, M. Mirsky, R. Pfister, J. Laris, and W. Nicholas.

     Although the complaint listed five defendants, service was made only on Melvin Hinton. The

     Illinois Attorney General filed an appearance on behalf of Hinton.

¶4          In the complaint, Donelson argued that the IDOC erred when it designated him as a

     sexual predator under IDOC’s administrative directive 04.01.306. Donelson claimed that IDOC

     improperly relied on prior incidents that did not occur in a detention, youth, or mental health

     facility in violation of the directive. Donelson contended that, as a result of the erroneous ruling,

     IDOC violated his due process rights. He attached several documents to the complaint: (1) a June

     20, 2016, letter from R. Pfister, warden of Stateville Correctional Center, stating that IDOC was

     compliant with the administrative directive; (2) a May 3, 2016, e-mail from the Illinois Attorney

     General, stating that Donelson was classified as a predator because (a) he was convicted of

     aggravated criminal sexual assault with a weapon, (b) he had a history of aggressive

     behavior/assaults, and (c) he received a disciplinary infraction for sexual misconduct/anal sex;

     and (3) a copy of IDOC’s administrative directive 04.01.301.

¶5          The purpose of administrative directive 04.01.301 is “to provide a safe and secure

     environment for all inmates and to maintain a program for the prevention of sexual assaults.”

     The IDOC program coordinator is responsible for developing procedures for determining

     whether to classify an inmate as a sexual predator. The factors used in the determination include

     “(1) nature and number of prior incidents; (2) age of the inmate at the time of prior incidents;

     (3) time elapsed since prior incidents; (4) the inmate’s physical and mental status; and

     (5) whether prior incidents occurred in a prison or jail or in a detention, youth, or mental


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     facility.” Medical staff must screen each inmate for any evidence of sexually assaultive behavior,

     and clinical services staff must review “the pre-sentence report, statement of facts, and other

     material in the master file for sexually assaultive behavior.” The facility program coordinator

     reviews any referrals to determine whether an inmate should initially be identified as a sexual

     predator. The IDOC program coordinator makes the final decision on any initial sexual predator

     classifications.

¶6           In April 2017, Hinton filed a motion to dismiss under section 2-619(a)(9) of the Code of

     Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2016)). In the motion, defendants alleged that

     Donelson’s complaint was barred by laches because (1) he waited 11 years to file his complaint

     and offers no explanation for his delay and (2) IDOC is prejudiced by the delay as the

     administrative expense and burden of conducting a review 11 years later would be substantial.

     Defendants attached Donelson’s IDOC cumulative counseling summary. In particular,

     defendants note the comments made on April 9, 2005, in which a correctional staff stated, “Capt

     Ruiz called me to let me know that he was very upset about him being assigned the label

     ‘predator.’ However, she said it was put on by Menard when he was at LAW. I told her I would

     check into it and get back with her.”

¶7           In his response, Donelson claimed that he did not know he was classified as a sexual

     predator until he received the May 2016 e-mail. He also alleged that defendants were not

     prejudiced because they did not establish how judicial review of Donelson’s claim would cause a

     substantial burden and expense on the public. Hilton replied, arguing that Donelson knew about

     his status in 2005 as shown in the counseling summary and that reviewing Donelson’s claim

     after an 11-year delay would “result in extensive public detriment and inconvenience.” The trial




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       court granted Hinton’s motion and dismissed Donelson’s complaint with prejudice. Donelson

       appealed. Hinton is the only defendant subject to this appeal.

¶8                                              II. ANALYSIS

¶9            Donelson argues that the trial court erred when it dismissed his writ of certiorari under

       section 2-619(a)(9) based on laches. Section 2-619 allows a court to dispose of issues of law and

       easily proved issues of fact at the outset of litigation. Van Meter v. Darien Park District, 207 Ill.

       2d 359, 367 (2003). Subsection (a)(9) “permits involuntary dismissal where ‘the claim asserted

       against defendant is barred by other affirmative matter avoiding the legal effect of or defeating

       the claim.’ ” Id. (quoting 735 ILCS 5/2-619(a)(9) (West 1998)). An affirmative matter is

       “ ‘something in the nature of a defense which negates the cause of action completely.’ ” Id.

       (quoting Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 486 (1994)). Therefore, the moving

       party admits the legal sufficiency of the complaint but asserts an affirmative defense or other

       matter to defeat the plaintiff’s claim. Id. “A defendant’s assertion that a claim should be barred

       by laches invokes section 2-619(a)(9) ***.” Mo v. Hergan, 2012 IL App (1st) 113179, ¶ 34. The

       court must review all pleadings and supporting documents in the light most favorable to the

       nonmoving party. Van Meter, 207 Ill. 2d at 367-68. That party, in this case, is Donelson.

¶ 10          “In deciding the merits of a section 2-619 motion, the trial court may not determine

       disputed factual issues without an evidentiary hearing.” Weisberg v. Chicago Steel, 397 Ill. App.

       3d 310, 312 (2009). When reviewing dismissals of a section 2-619 motion, the questions are

       whether a genuine issue of material fact exists and whether the defendant is entitled to a

       judgment as a matter of law. Id. at 313. A section 2-619 motion to dismiss is reviewed de novo.

       Van Meter, 207 Ill. 2d at 368.




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¶ 11          Laches applies when “a party’s failure to timely assert a right has caused prejudice to the

       adverse party.” Van Milligan v. Board of Fire & Police Commissioners of the Village of

       Glenview, 158 Ill. 2d 85, 89 (1994). In order to prove laches, the defendants must show (1) lack

       of due diligence by the party asserting the claim and (2) prejudice to the party asserting laches.

       Ashley v. Pierson, 339 Ill. App. 3d 733, 739 (2003). “When a defendant asserts laches as a bar to

       a plaintiff’s petition for a writ of certiorari or mandamus, the plaintiff’s lack of due diligence is

       established by a showing that more than six months elapsed between the accrual of the cause of

       action and the filing of the petition, unless the plaintiff provides a reasonable excuse for the

       delay.” Id.

¶ 12          As to the first laches element, the question before us is whether Donelson lacked due

       diligence in asserting his claim. Donelson contends that he did not know of his classification

       until he received the Illinois Attorney General’s May 2016 e-mail and that he subsequently filed

       this action in July 2016. Hinton alleges that Donelson knew about his classification in 2005—11

       years before he filed his complaint—because the counseling summary shows that he told Captain

       Ruiz that he was “very upset about being assigned the label ‘predator.’ ” This competing

       evidence creates an issue of material fact and the record is devoid of any evidentiary hearing on

       this issue. Furthermore, different inferences can be drawn from the counseling summary. For

       example, it is unclear if Donelson’s alleged comment to Captain Ruiz was about his IDOC

       sexual predator classification. Even if we were to accept Hinton’s interpretation of the

       counseling summary as Donelson discussing his sexual predator classification, there is no

       evidence that Donelson received the cumulative counseling summary report—and received at

       least some notice of his alleged statement—until it was attached to Hinton’s motion to dismiss.




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¶ 13           We also believe there are unresolved questions about IDOC’s claim of prejudice. Illinois

       courts have not directly addressed the specific issue before this court. We believe, however, that

       Ashley v. Pierson, 339 Ill. App. 3d 733 (2003), and Washington v. Walker, 391 Ill. App. 3d 459

       (2009), provide guidance. In Ashley, the trial court determined that the plaintiff’s writ of

       mandamus was barred by laches. 339 Ill. App. 3d at 737. On appeal, the Fourth District stated

       that prejudice is inherent when a detriment or inconvenience to the public will result and “such

       detriment and inconvenience exists in cases where inmates file petitions for writs of mandamus

       more than six months after the completion of the original DOC disciplinary proceedings and no

       reasonable excuse exists for the delay.” Id. at 739. Relying on Alicea v. Snyder, 321 Ill. App. 3d

       248 (2001), the court reasoned that IDOC performs large numbers of disciplinary proceedings

       every year and that “ ‘the administrative expense and burden of conducting reviews so long after

       the completion of the original proceedings would be substantial.’ ” Ashley, 339 Ill. App. 3d at

       740 (quoting Alicea, 321 Ill. App. 3d at 254). Thus, it held that the defendants were inherently

       prejudiced because the plaintiff did not have a reasonable excuse for the more than two-year

       delay. Id.

¶ 14           In Washington, the trial court found that the plaintiff’s certiorari claim was barred by

       laches. 391 Ill. App. 3d at 462. On appeal, the Fourth District rejected plaintiff’s argument that

       the prejudice presumption in Ashley should not apply, finding that a hearing on the disciplinary

       transfer, which would require witnesses to be interviewed and supporting documents, would

       cause public detriment and inconvenience. Id. at 465. It explained that, given the delay,

       “evidence, including witnesses, may be more difficult to find and the costs, as referenced in

       Alicea, could be substantial.” Id. Therefore, it concluded that defendant was inherently

       prejudiced by the plaintiff’s one-year delay. Id.


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¶ 15          Hinton argues that the expense and burden of conducting a hearing on Donelson’s

       classification after 11 years would be substantial. The court in Ashley determined that the

       petitioner’s delay would cause inherent prejudice because IDOC conducts a large number of

       disciplinary proceedings every year. Here, there is no evidence to show that IDOC had a large

       number of sexual predator classification proceedings or that the expense and burden of those

       proceedings were substantial. Hinton claims that a review of Donelson’s classification would be

       burdensome because the administrative directive requires medical staff to screen each inmate for

       sexually assaultive behavior. However, the IDOC program coordinator, not the medical staff,

       makes the final decision regarding any sexual predator classifications, and it is not clear whether

       the medical staff is involved in, or even affected by, the review proceedings.

¶ 16          Furthermore, unlike Washington, evidence related to Donelson’s classification is still

       readily available. IDOC relied on three factors to determine whether to classify Donelson as a

       sexual predator: (1) he had been convicted of aggravated criminal sexual assault with a weapon,

       (2) he had a history of aggressive behavior/assaults, and (3) he received a disciplinary infraction

       for sexual misconduct/anal sex. This information was recently verified by the Illinois Attorney

       General in 2016. Therefore, we find that there was an issue of material fact and that the trial

       court should have conducted an evidentiary hearing. Accordingly, we reverse and remand this

       case for an evidentiary hearing.

¶ 17                                         III. CONCLUSION

¶ 18          The judgment of the circuit court of Will County is reversed and remanded.

¶ 19          Reversed and remanded.




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