                                   2017 IL App (4th) 160535                Opinion filed October 2, 2017

                                                                           Modified upon denial of
                                        NO. 4-16-0535                      rehearing November 3, 2017

                                IN THE APPELLATE COURT

                                         OF ILLINOIS

                                     FOURTH DISTRICT

KENNETH H. CEBERTOWICZ,                         )     Appeal from
          Plaintiff-Appellant,                  )     Circuit Court of
          v.                                    )     Sangamon County
JOHN BALDWIN and JARED BRUNK,                   )     No. 14MR389
          Defendants-Appellees.                 )
                                                )     Honorable
                                                )     John M. Madonia,
                                                )     Judge Presiding.
______________________________________________________________________________

              JUSTICE APPLETON delivered the judgment of the court, with opinion.
              Justices Harris and Steigmann concurred in the judgment and opinion.

                                           OPINION

¶1            Plaintiff, Kenneth H. Cebertowicz, an inmate in the Illinois Department of

Corrections (Department), seeks an order of mandamus against defendants, John Baldwin, the

Department’s director, and Jared Brunk, the Department’s chief financial officer, to compel their

compliance with section 430.40(a) of the Department’s rules, a section relating to photocopy fees

(20 Ill. Adm. Code 430.40(a) (1984)). (Actually, instead of Baldwin, plaintiff sued then-director

Salvadore A. Godinez, but Baldwin has been automatically substituted for Godinez. See 735

ILCS 5/14-107 (West 2016).) The parties filed cross-motions for summary judgment. The trial

court denied plaintiff’s motion and granted defendants’ motion. Plaintiff appeals. In our de novo

review (see Lazenby v. Mark’s Construction, Inc., 236 Ill. 2d 83, 93 (2010)), we affirm the trial

court’s judgment because, given the admitted facts, plaintiff suffered no prejudice from the

Department’s alleged violation of section 430.40(a).
¶2                                        I. BACKGROUND

¶3             On February 2, 2014, while he was confined in Lawrence Correctional Center,

Sumner, Illinois, plaintiff filed a grievance. (According to the Department’s website, of which

we may take judicial notice (People v. Mitchell, 403 Ill. App. 3d 707, 709 (2010)), plaintiff now

is confined in Robinson Correctional Center, Robinson, Illinois.) His grievance pertained to the

increased rates that Lawrence Correctional Center had begun charging for making photocopies in

its law library. Previously, his inmate account was charged only 5 cents per photocopy. In

November 2013, however, the rate doubled to 10 cents per one-sided photocopy and 20 cents per

two-sided photocopy. He asked the law librarian, Kim Ulrich, the reason for the increase. She

replied that the decision to increase the photocopy rate had come from the Department’s

headquarters, in Springfield, Illinois.

¶4             On October 11, 2013, Brunk sent a memorandum, from 1301 Concordia Court,

Springfield, to “All Business Administrators” in the Department. The memorandum was titled

“Copying Fees,” and it directed as follows:

                       “Please be advised that effective November 1, 2013[,] all inmates are to be

               charged library copying fees of $0.10 per one-sided and $0.20 per double-sided

               documents. Revenue from these transactions shall be deposited into the 523 Fund

               within 10 working days of the following month. If there are any

               questions/concerns, please feel free to contact my office. Thank you.”

¶5             Accordingly, on October 15, 2013, Marc Hodge, the chief administrative officer

of Lawrence Correctional Center, issued “Warden’s Bulletin 13-141” to “All Inmates” and “All

Staff.” The bulletin announced that, “[e]ffective [November 1, 2013], all inmates will be charged

library copying fees of $0.10 per one-sided copy and $0.20 per double-sided documents.”



                                               -2-
¶6             In his grievance, which he filed directly with the administrative review board on

February 2, 2014, plaintiff argued that this rate increase was calculated to generate a profit from

inmates and not merely to recoup the Department’s actual photocopying costs. To prove the

alleged profit motive, he presented information he had obtained through requests pursuant to the

Freedom of Information Act (5 ILCS 140/1 et seq. (West 2014)). He had found out that a ream of

500 sheets of paper cost the Department only $2.94, which amounted to about half a cent (0.0058

of a cent) per sheet. Another document, from the Department’s contracting division, specifically

stated it cost only 0.0025 of a cent per photocopy to use the photocopiers, which the Department

rented. Adding those two numbers together (0.0058 + 0.0025), plaintiff concluded that the actual

cost to Lawrence Correctional Center of a single photocopy was approximately 0.75 of a cent,

compared to the 10 cents that Brunk had directed all facilities to begin charging. Plaintiff

explained all this in the grievance form, in the space provided for the “Brief Summary of [the]

Grievance.”

¶7             Underneath that explanation was an area labeled “Counselor’s Response (if

applicable).” That area of the grievance form was blank.

¶8             On March 19, 2014, Sarah Johnson of the Department’s administrative review

board returned the grievance to plaintiff, along with an explanatory form titled “Return of

Grievance or Correspondence.” This form had an area labeled “Misdirected,” and within that

area the box next to the preprinted language “Contact your correctional counselor regarding this

issue” was unchecked. Further down, toward the middle of the form, was an area labeled

“Additional information required,” and within that area the box likewise was unchecked next to

the preprinted language “Provide a copy of the response to Offender’s Grievance, DOC 0047,

including the Grievance Officer’s and Chief Administrative Officer’s response, to appeal.”



                                               -3-
Finally, in the bottom third of the form was an area labeled “No further redress,” and within that

area a box was checked next to the preprinted language “Not submitted in the timeframe outlined

in Department Rule 504 [(20 Ill. Adm. Code 504)]; therefore, this issue will not be addressed

further.”

¶9             In his complaint (or petition) for mandamus, and in his motion for summary

judgment, plaintiff argued that the new photocopying rate, dictated from Springfield

headquarters to all the Department’s facilities, violated section 3-4-3 of the Unified Code of

Corrections (Unified Code) (730 ILCS 5/3-4-3 (West 2014)) and section 430.40 of the

Department’s rules (20 Ill. Adm. Code 430.40 (1984)) by “requir[ing] each institution to charge

a standard fee per copy regardless of what an individual institution’s [sic] actually pays per

copy.”

¶ 10           Defendants moved for summary judgment on five grounds. First, they argued that

plaintiff lacked standing, and, in support of that argument, they cited Jackson v. Randle, 2011 IL

App (4th) 100790, ¶ 14, Dupree v. Hardy, 2011 IL App (4th) 100351, ¶¶ 24-28, and Ashley v.

Snyder, 316 Ill. App. 3d 1252, 1258 (2000). Second, they argued that because plaintiff submitted

his grievance after the expiration of the 60-day deadline in section 504.810(a) of the

Department’s rules (20 Ill. Adm. Code 504.810(a) (2017)), he had failed to exhaust his

administrative remedies. Third, they argued that the director lacked the duty and authority to

grant the requested relief. Fourth, they argued that section 3-4-3 had nothing to do with

photocopying costs. Fifth, they argued that they already were in compliance with section 430.40

because “Defendant Brunk [had] determined that, across facilities, the actual cost per copy

worked out to 10 cents per single-sided page and 20 cents per double-sided page,” and,

“[t]herefore, Defendant Brunk [had] standardized copy fees to reflect actual cost per copy.”



                                              -4-
¶ 11           In a docket entry dated June 20, 2016, the trial court granted defendants’ motion

for summary judgment and denied plaintiff’s motion for summary judgment. The court based

those rulings solely on the lack of standing:

               “The Court finds, based upon the holdings in Jackson v. Randle, 2011 IL App

               (4th) 100790[,] and Ashley v. Snyder, 316 Ill. App. 3d 1252 (2000)[,] that the

               [Unified] Code *** and corresponding Department Rules were designed to

               provide guidance to prison officials in the administration of prisons, not to create

               more rights for inmates than those that are constitutionally required. In reliance on

               these holdings, the Court rules that the Unified Code and the Departmental Rules

               do not convey a private right of action for Plaintiff to bring this Complaint ***.”

¶ 12           This appeal followed.



¶ 13                                      II. ANALYSIS

¶ 14                                   A. Plaintiff’s Standing

¶ 15           In Jackson, 2011 IL App (4th) 100790, ¶¶ 1-2, a prisoner accused the Department

and certain of its officers of violating section 3-7-2a of the Unified Code (730 ILCS 5/3-7-2a

(West 2008)) by overcharging him for commissary items. He sought declaratory and injunctive

relief, as well as compensatory damages. Id. ¶ 5. The defendants challenged his standing. Id.

¶ 14. We concluded he lacked standing. Id. ¶ 16. We reasoned as follows:

                       “Generally, the doctrine of standing is designed to ‘preclude persons who

               have no interest in a controversy from bringing suit.’ Glisson [v. City of Marion],

               188 Ill. 2d [211,] 221, 720 N.E.2d [1034,] 1039 [(1999)]. However, the doctrine

               of standing also precludes a plaintiff from bringing a private cause of action based



                                                -5-
               on a statute unless the statute expressly confers standing on an individual or class

               to do so. See Glisson, 188 Ill. 2d at 222, 720 N.E.2d at 1040 (rejecting the

               plaintiff’s attempt to expand the doctrine of standing to include ‘member[s] of [a]

               class designed to be protected by the statute, or one for whose benefit the statute

               was enacted, and to whom a duty of compliance is owed’).

                      ***

                      Here, [the plaintiff] sued [the] defendants, claiming that [the Department],

               through its commissary, had been overcharging him and other inmates in violation

               of section 3-7-2a of the Unified Code (730 ILCS 5/3-7-2a (West 2008)), which, as

               we previously explained, outlines the additional percentage amount a prison may

               charge above its cost for items sold at its commissary. Section 3-7-2a, however,

               does not expressly confer standing on inmates—or anyone else, for that matter—

               to enforce the cost percentages outlined therein.” Id. ¶¶ 14, 16.

¶ 16           Although, in Ruhl v. Department of Corrections, 2015 IL App (3d) 130728, ¶ 25,

the appellate court “[found] no reason to deviate from the holding of Jackson,” plaintiff points

out a reason for doing so: we misread Glisson. We agree with him that our analysis of standing,

in the above-quoted passage from Jackson, was based on a misreading of Glisson.

¶ 17           In our parenthetical summary of the cited page from Glisson, we said that the

supreme court had “reject[ed] the plaintiff’s attempt to expand the doctrine of standing to include

‘member[s] of [a] class designed to be protected by the statute, or one for whose benefit the

statute was enacted, and to whom a duty of compliance [was] owed.’ ” Jackson, 2011 IL App

(4th) 100790, ¶ 14 (quoting Glisson, 188 Ill. 2d at 222). That was an incorrect account of

Glisson. Actually, it was the defendants in Glisson who wanted to narrow the doctrine of



                                               -6-
standing by subjecting the plaintiff to the test for standing set forth in Lynch v. Devine, 45 Ill.

App. 3d 743, 748 (1977). Glisson, 188 Ill. 2d at 222. “The Lynch test provide[d] that, where the

suit allege[d] injury due to violation of a statute, the doctrine of standing require[d] that the

plaintiff be a member of the class designed to be protected by the statute, or one for whose

benefit the statute was enacted, and to whom a duty of compliance [was] owed.” Id. The

defendants in Glisson wanted to subject the plaintiff to the test in Lynch so as to negate his

standing, as a private citizen, to enforce the Illinois Endangered Species Protection Act (520

ILCS 10/1 et seq. (West 1998)). Glisson, 188 Ill. 2d at 222. As it turned out, the supreme court

concluded that the plaintiff lacked standing, despite its rejection of the test in Lynch. Id. at 231.

But the important point, for our purposes, is that the supreme court in Glisson specifically

rejected the zone-of-interests test for standing that the appellate court had adopted in Lynch. Id.

at 222.

¶ 18           The test for standing in Jackson is a variation of the rejected test in Lynch.

Jackson says: “[T]he doctrine of standing *** precludes a plaintiff from bringing a private cause

of action based on a statute unless the statute expressly confers standing on an individual or class

to do so.” Jackson, 2011 IL App (4th) 100790, ¶ 14. Thus, under Jackson, not only must the

plaintiff be “a member of the class designed to be protected by the statute *** and to whom a

duty of compliance is owed” (Glisson, 188 Ill. 2d at 222), but the statute has to expressly state

that the plaintiff or the class to which the plaintiff belongs has the right to bring suit to enforce

the statute (Jackson, 2011 IL App (4th) 100790, ¶ 14). It is Lynch plus. It is a narrower, more

demanding version of the zone-of-interests test.




                                                -7-
¶ 19           The problem with Lynch—and, for that matter, with Jackson—is that it engrafted

an “additional requirement” onto the traditional test for standing. Glisson, 188 Ill. 2d at 222. The

supreme court reiterated in Glisson that the traditional test for standing was still the only test:

               “This court has set forth the general principle that standing requires some injury

               in fact to a legally cognizable interest in Greer v. Illinois Housing Development

               Authority, 122 Ill. 2d 462, 492 (1988). The claimed injury may be actual or

               threatened, and it must be (1) distinct and palpable; (2) fairly traceable to the

               defendant’s actions; and (3) substantially likely to be prevented or redressed by

               the grant of the requested relief. [Citation.]” Id. at 221.

¶ 20           There are no add-ons to this traditional test for standing. See id. at 221-22. Thus,

we decline to follow Jackson insofar as it holds that for a plaintiff to “[bring] a private cause of

action based on a statute,” the statute must “expressly [confer] standing on an individual or class

to do so.” Jackson, 2011 IL App (4th) 100790, ¶ 14. Instead, the long-standing rule is that the

plaintiff in a mandamus action need have only an interest in the subject matter of the petition.

People ex rel. Peace v. Taylor, 342 Ill. 88, 98 (1930); Warden v. Byrne, 102 Ill. App. 3d 501,

506 (1981). Glisson and Greer elaborate the nature of that required interest. Plaintiff has such an

interest because he makes photocopies, for which his inmate account is charged.



¶ 21                      B. The Exhaustion of Administrative Remedies

¶ 22           The “Grievance Procedures For Offenders” are in part 504, subpart F, of the

Department’s rules (20 Ill. Adm. Code 504.Subpart F). Under these codified procedures, if the

offender has a grievance, he or she must write it on a form that is to be available in all living

units. 20 Ill. Adm. Code 504.810(a) (2017). If the grievance concerns discipline or sexual abuse,



                                                 -8-
the offender must file the grievance directly with the grievance officer; otherwise, the offender

must file it with the institutional counselor. Id.

¶ 23            The deadline for filing a grievance is “within 60 days after the discovery of the

incident, occurrence[,] or problem that [gave] rise to the grievance.” Id. This 60-day deadline

will be excused, however, if the grievance relates to allegations of sexual abuse or if the offender

can show good cause for missing the deadline. Id.

¶ 24            Unexcused lateness in filing a grievance puts the grievance in the “[n]o[-]merit”

category. 20 Ill. Adm. Code 504.830(a)(1) (2017). A no-merit grievance “may be returned as

denied to the sender without further investigation.” 20 Ill. Adm. Code 504.830(a) (2017).

¶ 25            Unless the grievance is in the no-merit category, the grievance officer will

consider the grievance and communicate his or her findings and recommendations, in writing, to

the chief administrative officer of the facility. 20 Ill. Adm. Code 504.830(e) (2017). The chief

administrative officer then will review the grievance officer’s findings and recommendations and

will inform the offender of his or her decision, in writing. Id.

¶ 26            If, after receiving the chief administrative officer’s decision, the offender still is

dissatisfied with the resolution of the grievance, he or she may appeal to the Department’s

director. 20 Ill. Adm. Code 504.850(a) (2017). The appeal must be received by the

administrative review board within 30 days after the date of the chief administrative officer’s

decision, and copies of the grievance officer’s report and the chief administrative officer’s

decision should be attached. Id. The administrative review board will submit to the director a

written report of its findings and recommendations. 20 Ill. Adm. Code 504.850(d) (2017). After

reviewing those findings and recommendations, the director will make a final determination on




                                                     -9-
the grievance and will send the offender a copy of the decision. 20 Ill. Adm. Code 504.850(e)

(2017).

¶ 27           In making this final determination, the director typically will have the benefit of

findings and recommendations from both the grievance officer and the administrative review

board. Sometimes, however, the grievance officer can be bypassed:

                       “a) Offenders shall submit grievances directly to the Administrative

               Review Board when grieving:

                              1) Decisions regarding protective custody placement, including

                       continued placement in or release from protective custody.

                              2) Decisions regarding the involuntary administration of

                       psychotropic medication.

                              3) Decisions regarding disciplinary proceedings that were made at

                       a facility other than the facility where the offender is currently assigned.

                              4) Other issues that pertain to a facility other than the facility

                       where the offender is currently assigned, excluding personal property and

                       medical issues.” 20 Ill. Adm. Code 504.870(a) (2017).

¶ 28           Defendants argue that because none of those four exceptions in section 504.870(a)

apply to the present case, plaintiff was required to file his grievance first with his institutional

counselor and then with the grievance officer. See 20 Ill. Adm. Code 504.810(a) (2017). Because

plaintiff bypassed the institutional counselor and the grievance officer and filed his complaint

directly with the administrative review board, defendants maintain that he failed to exhaust his

administrative remedies. They cite our decision in Montes v. Taylor, 2013 IL App (4th) 120082,

¶ 12, in which we held: “A party aggrieved by an administrative decision cannot seek judicial



                                               - 10 -
review unless he has first pursued all available administrative remedies[,] and [t]he doctrine of

exhaustion of administrative remedies applies to grievances filed by inmates.” (Internal quotation

marks omitted.)

¶ 29           Before addressing this particular argument by defendants, we should be clear as to

what defendants do not argue under the heading of exhaustion of administrative remedies.

Although the administrative review board rejected plaintiff’s grievance on the ground that he had

filed it more than 60 days after the issuance of the warden’s bulletin (see 20 Ill. Adm. Code

504.810(a) (2017)), defendants do not argue, in this appeal, that plaintiff missed the 60-day

deadline and that he failed to exhaust administrative remedies in that way. See Ill. S. Ct. R.

341(h)(7) (eff. Jan. 1, 2016) (“[p]oints not argued are waived,” i.e., forfeited); Ill. S. Ct. R. 341(i)

(eff. Jan. 1, 2016) (Rule 341(h)(7) applies to the appellee’s brief); People v. Betance-Lopez, 2015

IL App (2d) 130521, ¶ 59 (so interpreting Rule 341(i)). Thus, the federal cases that defendants

cite, in which prisoners filed an untimely grievance or administrative appeal, are inapposite. See

Woodford v. Ngo, 548 U.S. 81, 87 (2006); Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.

2002).

¶ 30           It would be understandable to shy away from the untimeliness theory, considering

that the grievable event was getting charged the higher rate, not the mere issuance of the

warden’s bulletin. Otherwise, within 60 days after the issuance of the bulletin, the tens of

thousands of inmates in the Department’s custody all would have had to file a grievance,

regardless of whether they actually had used a departmental photocopier and had been charged

the higher rate. Maybe to avoid that implausible position, defendants raise a different procedural

objection to plaintiff’s grievance, an objection the Department explicitly refrained from raising




                                                 - 11 -
in its “Return of Grievance or Correspondence.” Defendants object to the bypassing of the

institutional counselor, the grievance counselor, and the chief administrative officer.

¶ 31           Because the purported nonexhaustion was the bypassing of lower levels of

administrative scrutiny before the Department issued its final administrative decision, Montes

and the other Illinois cases that defendants cite, Duane v. Hardy, 2012 IL App (3d) 110845, and

Reyes v. Walker, 358 Ill. App. 3d 1122 (2005), really are not on point. In Montes, “the record

fail[ed] to reflect resolution of [the plaintiff’s] grievances” (Montes, 2013 IL App (4th) 120082,

¶ 13), and “[w]here an inmate fail[ed] to show his grievance had administrative finality, he [did]

not meet his burden of showing exhaustion of administrative remedies” (id. ¶ 12). Likewise, in

Reyes, “[t]he record [did] not indicate that the prison administrator had the chance to resolve

[the] plaintiff’s contentions of error.” Reyes, 358 Ill. App. 3d at 1125. “Despite [the] plaintiff’s

statement that his grievances had administrative finality, we ha[d] nothing to indicate that was in

fact the case.” Id. Thus, the plaintiff had “failed to meet his burden of proving that he [had]

exhausted his administrative remedies.” Id. at 1125-26. In Duane, the record failed to show

administrative finality, but we nevertheless considered the merits of the appeal anyway, holding

that the plaintiff “ha[d] satisfied the exhaustion requirements by indicating the grievance process

he pursued and the lack of response from [the Department].” Duane, 2012 IL App (3d) 110845,

¶ 9.

¶ 32           In the present case, by contrast, the record “show[s] [that the] grievance ha[s]

administrative finality.” Montes, 2013 IL App (4th) 120082, ¶ 12. Instead of requiring plaintiff to

“[c]ontact [his] correctional counselor regarding this issue” or to “[p]rovide a copy of the

Response to Offender’s Grievance, DOC 0047, including the Grievance Officer’s and Chief

Administrative Officer’s response,” the Department believed it had received “a fair and full



                                               - 12 -
opportunity to adjudicate [plaintiff’s] claims,” and, accordingly, the Department issued its final

administrative decision. Woodford, 548 U.S. at 90. The decision was that plaintiff would receive

“[n]o further redress” and that “this issue [would] not be addressed further.” It is hard to imagine

a clearer expression of finality. The issue would not be addressed further—not by the

institutional counselor, not by the grievance officer, not by the chief administrative officer, not

by anyone in the Department. Under Illinois law, “[e]xhaustion of all administrative remedies

available occurs when a final administrative decision is rendered.” Krecek v. Board of Police

Commissioners, 271 Ill. App. 3d 418, 426 (1995). The “Return of Grievance of Correspondence”

leaves no doubt that it is a final administrative decision and that no remedies will be available.

Thus, exhaustion of administrative remedies has occurred. See id.



¶ 33                           C. The Irrelevance of Section 3-4-3

¶ 34           Defendants argue that section 3-4-3 of the Unified Code (730 ILCS 5/3-4-3 (West

2014)) has nothing to do with the price of photocopies, but pertains only to inmate trust funds

and property and the Department’s accounting records. We do not see the relevance of section 3-

4-3, either.



¶ 35                         D. The Right of Prisoners to Petition for
                        the Performance of a Clear, Ministerial Legal Duty
                   to the Extent That Substantial Justice Weighs in Their Favor

¶ 36           Defendants quote a statement we made in Ashley, 316 Ill. App. 3d at 1258:

“Illinois law creates no more rights for inmates than those which are constitutionally required.”

(Emphasis in original.) Although Ashley was correctly decided, we recently retreated from that




                                               - 13 -
quoted statement because it was too broad. Fillmore v. Taylor, 2017 IL App (4th) 160309, ¶¶ 98-

99.

¶ 37           As we explained in Fillmore, the law that a prisoner seeks to enforce by a

mandamus action need not be a constitutional right. The law can be, alternatively, a regulation

(id. ¶ 98) or a statute (id. ¶ 99). Regardless of what form the law is in, it must impose upon the

governmental officer a clear, nondiscretionary duty (id.), and “substantial justice” must weigh in

favor of an order of mandamus compelling the performance of that duty (id. ¶ 100).



¶ 38           E. The Distinction Between a (Nonexistent) Right to Unlimited Photocopies
               and the Right To Insist That the Department Follow Its Own Regulation
                       Regarding the Determination of Photocopy Charges

¶ 39           Citing Turner-El v. West, 349 Ill. App. 3d 475, 481-83 (2004), defendants say the

appellate court “has already determined that inmates do not have an absolute right to photocopies

of documents at all, let alone pricing calculated in a particular manner.”

¶ 40           The appellate court held in Turner-El: “[T]he right of access to the courts does not

include the right to make photocopies, unless the denial of copying privileges actually prevents

the inmate from accessing the courts.” Id. at 483. Typically, it would not do so, because

prisoners are permitted to file handwritten documents, including handwritten copies of printed or

typed documents. Id. Thus, the paralegals at Menard Correctional Center “had no clear,

nondiscretionary ministerial duty to photocopy any of the plaintiff’s pleadings or grievances that

the plaintiff himself could have duplicated with conformed copies,” that is, handwritten copies.

Id.

¶ 41           Plaintiff in this case does not argue that any of the staff at Lawrence Correctional

Center had a clear, nondiscretionary ministerial duty to make whatever photocopies he requested.



                                               - 14 -
Instead, he argues that when it comes to determining how much he or any other inmate at a given

facility should pay per photocopy (assuming that the staff at the facility agrees to make the

requested photocopies), the Department should follow its own regulation, section 430.40(a), by

allowing the facility to determine for itself “[t]he cost for reproduction,” “based on actual cost

per copy,” instead of imposing a uniform rate upon all facilities—a rate that happens to be

double the rate that, apparently, Lawrence Correctional Center had determined. 20 Ill. Adm.

Code 430.40(a) (1984). Turner-El has nothing to say about that argument, or about section

430.40(a).

¶ 42           But Turner-El does say this: “Mandamus proceedings are the proper means by

which to compel the Department to follow its own rules. [Citation.] Mandamus may be used to

compel a public officer to perform a duty that does not involve the exercise of discretion by the

officer ***.” Turner-El, 349 Ill. App. 3d at 479. Again, section 430.40(a) reads as follows:

“Materials may be photocopied by the library. The cost for reproduction will be determined by

the facility based on actual cost per copy and charged to the committed person.” (Emphasis

added.) 20 Ill. Adm. Code 430.40(a) (1984). Unlike “may,” which bestows discretion (County of

Boone v. Plote Construction, Inc., 2017 IL App (2d) 160184, ¶ 23), “will” expresses a command

(Merriam-Webster’s New Collegiate Dictionary 1349 (10th ed. 2000)). Imposing a uniform

photocopy rate upon all facilities would seem to violate that command.



¶ 43                                 F. Sovereign Immunity

¶ 44           Defendants argue that because this action is based on a state law or regulation,

sovereign immunity bars the action. The Illinois Constitution provides that “[e]xcept as the

General Assembly may provide by law, sovereign immunity in this State is abolished.” Ill.



                                              - 15 -
Const. 1970, art. XIII, § 4. Afterward, the General Assembly reestablished sovereign immunity

by passing the State Lawsuit Immunity Act (745 ILCS 5/0.01 et seq. (West 2014)). Illinois

County Treasurers’ Ass’n v. Hamer, 2014 IL App (4th) 130286, ¶ 40. Section 1 of the State

Lawsuit Immunity Act provides that the state shall not be made a defendant or party in any court

“[e]xcept as provided in the Illinois Public Labor Relations Act [(5 ILCS 315/1 et seq. (West

2014))], the Court of Claims Act [(705 ILCS 505/1 et seq. (West 2014))], the State Officials and

Employees Ethics Act [(5 ILCS 430/1-1 et seq. (West 2014))], and Section 1.5 of this Act [(745

ILCS 5/1.5 (West 2014))].” 745 ILCS 5/1 (West 2014). The Court of Claims Act in turn provides

that the Court of Claims “shall have exclusive jurisdiction to hear and determine *** [a]ll claims

against the State founded upon any law of the State of Illinois or upon any regulation adopted

thereunder by an executive or administrative officer or agency.” 705 ILCS 505/8(a) (West 2014).

Defendants argue that because plaintiff’s action is founded upon a state regulation—namely,

section 430.40(a)—the doctrine of sovereign immunity bars the action. See id.

¶ 45           The answer to that argument is quite simple: the doctrine of sovereign immunity

is inapplicable because this is not an action against the State. The supreme court has explained:

               “[A mandamus] action to compel a public official to perform a clear and

               mandatory duty is not a suit against the State. [Citations.] This is because [t]he

               presumption obtains that the State, or a department thereof, will not, and does not,

               violate the constitution and laws of the State, but that such violation, if it occurs,

               is by a State officer or the head of a department of the State and such officer or

               head may be restrained by a proper action instituted by a citizen.” (Internal

               quotation marks omitted.) Senn Park Nursing Center v. Miller, 104 Ill. 2d 169,

               189 (1984).



                                               - 16 -
See also Hamer, 2014 IL App (4th) 130286, ¶ 41; Farmer v. McClure, 172 Ill. App. 3d 246, 254

(1988).



¶ 46                           G. The Lack of a Genuine Issue as to
                                  the Actual Cost of a Photocopy

¶ 47           Again, section 430.40(a) of the Department’s rules provides: “Materials may be

photocopied by the library. The cost for reproduction will be determined by the facility based on

actual cost per copy and charged to the committed person.” 20 Ill. Adm. Code 430.40(a) (1984).

Even if, in violation of 430.40(a), the Department’s headquarters rather than the facility

determined the cost for reproduction, “substantial justice” is an essential criterion in an action for

mandamus, and the violation inflicted no injustice upon plaintiff unless the cost the Department’s

headquarters had determined was greater than the actual cost of reproduction—for, by law, the

facility ought to be charging the actual cost. See Beer Barn, Inc. v. Dillard, 227 Ill. App. 3d 68,

70 (1992); Hill v. Butler, 107 Ill. App. 3d 721, 727 (1982).

¶ 48           In the proceedings below, Brunk presented his affidavit that “the actual cost per

copy, across [the Department’s] facilities, was 10 cents for a single-sided copy and 20 cents for a

double-sided copy.” The supreme court has held: “[F]acts contained in an affidavit in support of

a motion for summary judgment which are not contradicted by counteraffidavit are admitted and

must be taken as true for purposes of the motion.” Purtill v. Hess, 111 Ill. 2d 229, 241 (1986);

see also Heidelberger v. Jewel Companies, Inc., 57 Ill. 2d 87, 92-93 (1974) (“Where facts

contained in the affidavit in support of a motion for summary judgment are not contradicted by

counteraffidavit, such facts are admitted and must be taken as true.”). In support of his

contention that the actual cost of reproduction was less than the cost the Department’s

headquarters had determined, plaintiff presented materials he had obtained through a Freedom of

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Information Act request, but those materials were unsworn. They were not affidavits, nor were

they authenticated by any affidavit. It follows that, under the unqualified holdings of Purtill and

Heidelberger, it was admitted and taken as true that the actual cost of reproduction was 10 cents

for a single-sided photocopy and 20 cents for a double-sided photocopy, as Brunk averred in his

affidavit. It further follows that the alleged violation of section 430.40(a) inflicted no injustice

upon plaintiff and, therefore, he was not entitled to an order of mandamus. See Beer Barn, 227

Ill. App. 3d at 70; Hill, 107 Ill. App. 3d at 727.

¶ 49           In his petition for rehearing, plaintiff argues that the injustice of the fee increase is

obscured by the bald conclusion of Brunk’s affidavit. The actual cost, to a facility, of each

photocopied page is a conclusion, which necessarily, as Brunk himself suggests in his affidavit,

rests upon particular facts, e.g., the cost of paper, the cost of renting the machine, and the cost of

labor in overseeing the photocopier. Plaintiff objects that, absent a specification of those

underlying facts and a mathematical explanation of how Brunk arrived at 10 cents per single-

sided photocopy, his affidavit offers merely a self-serving conclusion. Plaintiff quotes Illinois

Supreme Court Rule 191(a) (eff. Jan. 4, 2013): “Affidavits *** in opposition to a motion for

summary judgment *** shall not consist of conclusions but of facts admissible in evidence; and

shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.”

¶ 50           The trouble is, this is a new argument. In his initial brief, plaintiff said nothing

about the conclusory nature of Brunk’s affidavit or its noncompliance with Rule 191(a).

Consequently, defendants received no fair opportunity to respond to that argument. “Points not

argued” in the initial brief on appeal “are waived”—that is to say, forfeited—“and shall not be

raised *** on petition for rehearing.” Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016). Plaintiff has

forfeited the point that Brunk’s affidavit is conclusory. See id.



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¶ 51           Even so, assuming the sufficiency of Brunk’s affidavit, plaintiff argues that, in his

own sworn submissions, he created a material issue of fact in opposition to Brunk’s affidavit. In

his own affidavit, plaintiff averred there was no cost, to the Department, for toner or

maintenance. Also, he presented an affidavit by the prison law librarian that making photocopies

involved no staff labor.

¶ 52           Neither of those affidavits creates a material issue of fact. As for plaintiff’s

affidavit, the trial court could have justifiably disregarded his averment that the Department paid

nothing for toner or maintenance because it did not affirmatively appear that plaintiff was

competent to make that averment. See Betts v. City of Chicago, 2013 IL App (1st) 123653, ¶ 24.

He had to “affirmatively show,” in his affidavit, that “if sworn as a witness,” he could “testify

competently” that toner and maintenance were free to the Department. Ill. S. Ct. R. 191(a) (eff.

Jan. 4, 2013). To testify competently means to give testimony that is admissible under the Illinois

Rules of Evidence, including the rules pertaining to hearsay (Ill. R. Evid., art. VIII (eff. Jan. 1,

2011)). See People v. Clark, 108 Ill. App. 3d 1071, 1081 (1982); Merriam-Webster’s Collegiate

Dictionary 234-35 (10th ed. 1998) (defining “competent” to include “legally qualified or

adequate,” as in “a [competent] witness”). It is unclear how plaintiff could know that toner and

maintenance were free to the Department unless employees of the Department had told him so.

The statements of those employees to plaintiff would be hearsay if, in a trial, he testified to those

statements. The statements would be “other than [those] made by the declarant[s] while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill.

R. Evid. 801(c) (eff. Jan. 1, 2011). We see no indication in the record that the declarants were

defendants in this case. See Ill. R. Evid. 801(d)(2) (eff. Jan. 1, 2011) (excluding, from the

definition of hearsay, a statement by a party-opponent). By presenting what appears to be



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inadmissible hearsay, plaintiff’s affidavit does not rebut Brunk’s affidavit. See Ill. S. Ct. R.

191(a) (eff. Jan. 4, 2013).

¶ 53           An affidavit by the law librarian, stating that inmates make their own photocopies,

does not rebut Brunk’s averment that there is a labor cost associated with the photocopy

machines. The machines might require the attention of prison staff in other ways, such as

refilling the machines with paper, putting in new toner cartridges, fixing paper jams, and just

keeping an eye on the machines. Therefore, we continue to find an absence of any genuine issue

of material fact, and we deny the petition for rehearing.



¶ 54                                    III. CONCLUSION

¶ 55           For the foregoing reasons, we affirm the trial court’s judgment.

¶ 56           Affirmed.




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