NO. 4-02-0377

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

HOWARD VINCENT ASHLEY,				)	Appeal from

		Plaintiff-Appellant,		)	Circuit Court of

		v.						)	Sangamon County

MARK A. PIERSON, Warden, Henry Hill	)	No. 01MR571

Correctional Center and DONALD N.		)

SNYDER, JR., Director,				)	Honorable

		Defendants-Appellees.		)	Donald M. Cadagin,

								)	Judge Presiding.

_________________________________________________________________

		JUSTICE STEIGMANN delivered the opinion of the court:

										In October 2001, plaintiff, Howard Vincent Ashley,

filed a petition for writ of mandamus, alleging that defendants, Mark A. Pierson, warden of Henry Hill Correctional Center, and

Donald N. Snyder, Jr., the Director of the Illinois Department of

Corrections (DOC), failed to perform certain ministerial duties

during May 1998 and March 1999 disciplinary proceedings.  In

December 2001, Pierson and Snyder filed a motion to dismiss

Ashley's petition, and the trial court later granted that motion. 

Ashley appeals, and we affirm. 

I. BACKGROUND  

		On May 6, 1998, DOC cited Ashley, who was then an

inmate at Danville Correctional Center (Danville), in an inmate

disciplinary report (IDR).  The IDR indicated that when two DOC

officers interviewed Ashley regarding a report that he had

threatened his cell mate, Ashley admitted making threatening

comments while on his wing and in his cell but denied directing

any comments toward his cell mate.  Ashley also admitted that he told his cell mate "[g]o on and tell[,] they ain't going to do

nothing but move your punk ass[.]  I know how it go [sic] around here."  The IDR charged Ashley with violating the DOC rule

against intimidating or threatening other inmates (DOC Rule 206). 

Later that same day, a DOC officer served Ashley with the IDR.   

		On May 8, 1998, an adjustment committee (committee)

conducted a disciplinary hearing on the charge alleged against

Ashley.  He appeared at the hearing, pleaded not guilty, and

denied threatening his cell mate.  However, Ashley admitted that

(1) he and his cell mate had a history of arguing over religion;

and (2) he had had seven different cell mates in the previous

five months.  The committee found Ashley guilty and recommended

the following disciplinary action:  (1) revocation of six months

of Ashley's good-time credits; (2) imposition of six months of

disciplinary segregation; and (3) six months' demotion to C-grade

status.  The committee also recommended that Ashley be trans

ferred to another correctional facility.  The chief administra

tive officer later affirmed the committee's guilty finding but

reduced the discipline to revocation of one month of good-time

credits, imposition of two months of segregation, and six months'

demotion to C-grade status.    		

		Following his transfer to the Centralia Correctional

Center, Ashley filed a grievance, alleging that (1) he did not

admit threatening his cell mate; (2) a Danville correctional

officer named Smalls had convinced Ashley's cell mate to fabri

cate a report of threats; and (3) an inmate named Titus McCaa could testify that he heard Smalls coaching Ashley's cell mate. 

(The record does not indicate the dates on which these events

occurred.)

		On September 9, 1998, the administrative review board

(board) heard Ashley's grievance.  The board recommended that (1)

the IDR be remanded to Danville "to be rewritten to substantiate

the charges, reserved[,] and reheard within the appropriate time

frames"; and (2) "[t]he requested information *** be forwarded to

the [DOC] Director's office within 20 days of the receipt of this

report."  The then DOC Director approved the board's recommenda

tion.  

		On March 18, 1999, a DOC correctional officer served

Ashley with a new IDR for the May 6, 1998, incident.  The IDR was

substantially the same as the original IDR in terms of the

description of the May 6, 1998, incident.  In addition, the new

IDR indicated that (1) between late December 1997 and May 6,

1998, Ashley had seven different cell mates; and (2) a correc

tional officer assigned to Ashley's former wing stated that every

inmate who had been placed with Ashley "ended up scared to cell

with Ashley and in a hurry to move."  The new IDR charged Ashley

with violating the DOC rule against intimidating or threatening

other inmates (DOC Rule 206).  After being served with the new

IDR, Ashley requested that the committee consider calling one

witness, an inmate named Titus McCaa.

		On March 22, 1999, the committee conducted a disciplin

ary hearing on the charge against Ashley, who appeared at the hearing, pleaded not guilty, and presented a written statement to

the committee.  Ashley also requested that the committee call

McCaa and Smalls as witnesses.  The committee summary indicates

that Smalls was not called because he no longer worked for DOC

and McCaa was not called because the committee was "unable to

contact" him.  The committee found Ashley guilty and recommended

the following disciplinary action:  (1) revocation of six months

of Ashley's good-time credits; (2) imposition of six months of

disciplinary segregation; and (3) six months' demotion to C-grade

status.  The committee also recommended that Ashley be trans

ferred to another correctional facility.  The chief administra

tive officer later affirmed the committee's guilty finding but

reduced the discipline to revocation of one month of good-time

credits, imposition of two months of segregation, and six months'

demotion to C-grade status.  

		In an August 17, 1999, letter to Ashley, the board

indicated that it was satisfied with the committee's findings on

remand and, thus, recommended denying Ashley's grievance regard

ing the May 6, 1998, incident.  The letter also indicated that

Snyder approved the board's recommendation. 

		 On October 17, 2001, Ashley filed a petition for writ

of mandamus, alleging that Pierson and Snyder had failed to perform the following ministerial duties:  (1) adhere to the time

frame for rehearings on remand from the board, as required by

section 504.90(b)(2) of Title 20 of the Illinois Administrative

Code (20 Ill. Adm. Code §504.90(b)(2) (Conway Greene CD-ROM April 2001)); (2) appropriately address Ashley's allegations of retali

ation; and (3) interview his requested witnesses.  Ashley sought

a mandamus order (1) expunging the May 6, 1998, and March 18, 1999, IDRs, and (2) restoring his good-time credits.

		In December 2001, Pierson and Snyder filed a motion to

dismiss Ashley's petition under sections 2-615 and 2-619 of the

Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West

2000)).  In pertinent part, Pierson and Snyder sought dismissal

under section 2-619(a)(9) of the Code on the ground that Ashley's

October 17, 2001, petition for writ of mandamus was time barred because he filed it more than six months after the completion of

the disciplinary proceedings.

		In January 2002, Ashley filed a response to Pierson and

Snyder's motion to dismiss, arguing, in pertinent part, that his

petition for writ of mandamus was not time barred because he was pursuing federal litigation.  (The record shows that in August

2000, Ashley filed a petition for writ of habeas corpus in federal district court, complaining of DOC's conduct during the

May 1998 and March 1999 disciplinary proceedings.  Later that

month, the district court dismissed Ashley's claims regarding the

constitutionality of the disciplinary actions resulting in his

demotion to C-grade status, his placement in segregation, and his

transfer to a different facility, upon determining that those

claims could not be challenged in a habeas corpus petition.  In August 2001, the district court dismissed the remaining claim set

forth in Ashley's petition, upon determining that he had failed to exhaust his Sstate remedies.)    

		Following an April 2002 telephone hearing on Pierson

and Snyder's motion to dismiss Ashley's petition, the trial court

granted the motion.  This appeal followed.   

II. ANALYSIS		

		A. Section 2-619 Motions To Dismiss

		Section 2-619 motions to dismiss provide a means for

disposing of issues of law or easily proved issues of fact. 

People v. Philip Morris, Inc., 198 Ill. 2d 87, 94, 759 N.E.2d 906, 911 (2001).  In this case, the ground advanced for dismiss

ing Ashley's petition is that the claims asserted therein are

barred by a defense that completely defeats the claims.  See

Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 478-79, 763 N.E.2d 756, 759 (2002); see also 735

ILCS 5/2-619(a)(9) (West 2000) (permitting involuntary dismissal

when "the claim asserted against defendant is barred by other

affirmative matter avoiding the legal effect of or defeating the

claim").  The trial court should grant the motion and dismiss the

complaint if, after construing the allegations in the light most

favorable to the plaintiff, no set of facts can be proved that

would entitle the plaintiff to recover.  We review de novo the trial court's granting of a defendant's section 2-619 motion (Towne Realty, Inc. v. Shaffer, 331 Ill. App. 3d 531, 535, 773 N.E.2d 47, 51 (2002)), and we may affirm on any basis warranted

by the record (Park Superintendents' Professional Ass'n v. Ryan, 319 Ill. App. 3d 751, 757, 745 N.E.2d 618, 624 (2001)).

	B. Laches

		Ashley first argues that his petition for writ of

mandamus was not barred by laches.  We disagree.    

		The doctrine of laches is applied "when a party's failure to timely assert a right has caused prejudice to the

adverse party."  Van Milligan v. Board of Fire & Police Commis sioners of the Village of Glenview, 158 Ill. 2d 85, 89, 630 N.E.2d 830, 833 (1994).  In City of Chicago v. Condell, 224 Ill. 595, 598-99, 79 N.E. 954, 956 (1906), the supreme court first

held that the doctrine of laches applies to petitions for writ of certiorari.  In that case, the court concluded that the dis charged police officer's petition was barred by laches because (1) he did not file his petition until 18 months after his

discharge; and (2) his delay in filing was not sufficiently

justified.  Condell, 224 Ill. at 598, 79 N.E. at 956.  Although acknowledging that the "mere lapse of time, alone, *** will not

bar the issuing of the common[-]law writ of certiorari," the court held that the prejudice to a defendant is inherent in cases, such as the one then before it, "where a detriment or

inconvenience to the public will result."  Condell, 224 Ill. at 598, 79 N.E. at 956.  See also People ex rel. Casey v. Health & Hospitals Governing Comm'n of Illinois, 69 Ill. 2d 108, 115, 370 N.E.2d 499, 502 (1977) (describing the reasons for labeling as

"inherent" the prejudice in certain civil service cases); Lee v. City of Decatur, 256 Ill. App. 3d 192, 197-98, 627 N.E.2d 1256, 1259-60 (1994) (discussing Condell and its progeny).   

		In Clark v. City of Chicago, 233 Ill. 113, 115, 84 N.E. 170, 171 (1908), the supreme court adhered to Condell and estab lished six months as the period of time within which a petitioner

must bring a petition for writ of certiorari.  In so holding, the court stated, in pertinent part, as follows:

		"We see no reason why a petitioner desiring

to review the action of an inferior tribunal

by the common[-]law writ of certiorari, in analogy to the statute relating to the re

view, by certiorari, of judgments of justices of the peace, should not be required to pres

ent his petition to the court for such writ

within six months from the date of the entry

of the order which he desires to have re

viewed, and in case of a further delay that

the delay be satisfactorily explained in the

petition for the writ."  Clark, 233 Ill. at 115, 84 N.E. at 171.

		In People ex rel. King v. City of Chicago, 147 Ill. App. 591, 593 (1909), the First District Appellate Court held

that a discharged police officer's petition for a writ of manda mus to compel his reinstatement, which was filed more than 10 months after his dismissal, was barred by laches.  In so holding, the court acknowledged that Clark involved a petition for writ of certiorari and then stated, in pertinent part, as follows:

		"The cases are analogous for the end aimed at is the same, although the means differ simply

in procedure through which the end is sought

to be accomplished.  The doctrine of [laches],

however, is as readily invokable in the one

case as in the other.  The court says in

[the] Clark case supra:  'The petition for the writ in this case was filed ten months

after the petitioner had been removed from

office, and as the petitioner makes no show

ing why said petition was not filed at an

earlier date and within six months of the

date of the entry of the order of removal by

the Civil Service Commission, we think the

appellee should be held to be barred, by

reason of his [laches], of his right to have

said order reviewed by the common law writ of

certiorari, and that the [s]uperior [c]ourt did not err in quashing the writ and dismiss

ing the petition.''.

			These remarks are of equal force and

pertinency to relator's petition for the writ

of mandamus, for by this writ he is seeking the same review as Clark did by his certio rari proceeding."  King, 147 Ill. App. at 593-94, quoting Clark, 233 Ill. at 116, 84 N.E. at 172. 

We acknowledge that appellate court decisions issued before 1935

have no binding authority.  Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 95, 672 N.E.2d 1207, 1217 (1996).  However, we view King as persuasive, as did the First District Appellate Court in People ex rel. Ballinger v. O'Connor, 13 Ill. App. 2d 317, 328-29, 142 N.E.2d 144, 149 (1957).  See North Shore Commu nity Bank & Trust Co. v. Kollar, 304 Ill. App. 3d 838, 844, 710 N.E.2d 106, 110 (1999) (although appellate court decisions issued

before 1935 are not binding, they can be persuasive authority).   

		Since the First District's decision in King, it has become well-settled law that the doctrine of laches applies to petitions for writ of mandamus.  See Casey, 69 Ill. 2d at 115, 370 N.E.2d at 502 (recognizing that laches applies to mandamus petitions); Jordan v. Civil Service Comm'n, 246 Ill. App. 3d 1047, 1052-53, 617 N.E.2d 142, 146 (1993) (because one count of

the plaintiff's complaint was brought as a writ of mandamus, laches was an appropriate defense); Richter v. Collinsville Township, 97 Ill. App. 3d 801, 804-05, 423 N.E.2d 549, 552-53 (1981) (noting that the doctrine of laches applies to mandamus petitions).

		Thus, the doctrine of laches applies both to petitions for writ of certiorari and mandamus (as was filed in this case).  Generally, a party asserting laches must prove two fundamental elements:  (1) lack of due diligence by the party asserting a

claim; and (2) prejudice to the party asserting laches.  Lippert v. Property Tax Appeal Board, 273 Ill. App. 3d 150, 155, 652 N.E.2d 461, 465 (1995).  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.  See Clark, 233 Ill. at 115, 84 N.E. at 171; Richter, 97 Ill. App. 3d at 804, 423 N.E.2d at 552.  

		As to the prejudice prong, although a party asserting

laches generally must prove that he was prejudiced by the other party's delay, in cases "where a detriment or inconvenience to

the public will result," prejudice is inherent.  See Condell, 224 Ill. at 598-99, 79 N.E. at 956.  We hold that such detriment and

inconvenience exists in cases where inmates file petitions for

writ of mandamus more than six months after the completion of the original DOC disciplinary proceedings and no reasonable excuse

exists for the delay.  In so holding, we note that DOC houses

over 42,000 adult inmates who have little disincentive to liti

gate over disciplinary proceedings.   See

http://www.idoc.state.il.us (visited March 25, 2003) (DoOC's

website); Maldonado v. Creative Woodworking Concepts, Inc., 296 Ill. App. 3d 935, 938, 694 N.E.2d 1021, 1025 (1998) (records from

the Illinois Secretary of State's office are public records of

which the appellate court may take judicial notice); Illinois Fraternal Order of Police Labor Council v. Town of Cicero, 301 Ill. App. 3d 323, 332, 703 N.E.2d 559, 566 (1998) (appellate court may take judicial notice of a village's population).  As

this court stated in Alicea v. Snyder, 321 Ill. App. 3d 248, 254, 748 N.E.2d 285, 290 (2001),: 

		"DOC conducts a large number of disciplinary

proceedings every year, and the administra

tive expense and burden of conducting reviews

so long after the completion of the original

proceedings would be substantial.  Such an

inquiry would result in extensive public

detriment and inconvenience."              

See Caruth v. Quinley, 333 Ill. App. 3d 94, 99, 775 N.E.2d 224, 228 (2002) (an inmate's petition for mandamus must be brought within six months unless a reasonable explanation exists for the

delay).  

		In this case, Ashley filed his petition for writ of

mandamus more than two years after the entry of the August 17, 1999, final administrative decision.  Ashley blames his delay in

initiating the proceedings on his pursuit of federal claims. 

However, Ashley's decision to pursue federal relief does not

justify his delay in bringing these proceedings.  See Alicea, 321 Ill. App. 3d at 254, 748 N.E.2d at 290.  Filing an action in

federal court did not preclude Ashley from filing an action for

writ of mandamus in state court.  We thus conclude that Ashley offered no reasonable excuse for the more than two-year delay in

filing his petition.     

		Because (1) Ashley offered no reasonable excuse for his delay in initiating proceedings; and (2) Pierson and Snyder were

inherently prejudiced by that delay, we affirm the trial court's

order granting the motion to dismiss Ashley's petition for writ

of mandamus. 

III. CONCLUSION

		For the reasons stated, we affirm the trial court's

judgment.				

		Affirmed.

		TURNER, J., concurs.

		COOK, J., dissents.

		JUSTICE COOK, dissenting:

		In Caruth, this court held that a prisoner's complaint for mandamus was barred by laches, stating that "[a] complaint for mandamus must be brought within six months unless there is a reasonable explanation for the delay."  Caruth, 333 Ill. App. 3d at 99-100, 775 N.E.2d at 228, citing Richter, 97 Ill. App. 3d at 804, 423 N.E.2d at 552.  Richter, however, held that "[p]assage of time by itself does not bar relief; and if a defendant does

not establish that he has been materially prejudiced by the

delay, the plaintiff is not guilty of [laches]."  Richter, 97 Ill. App. 3d at 804, 423 N.E.2d at 552.  

		In this case, the majority opinion attempts to rehabil itate Caruth by creating a new rule of law that the State is presumed to be prejudiced when a prisoner files a complaint for

mandamus more than six months after the completion of the DOC disciplinary hearings that are being challenged.   

		I disagree with the majority's conclusion that the

State can be presumed to be prejudiced in every case where a

prisoner filed a complaint for mandamus more than six months after the completion of the DOC disciplinary proceedings.  This

new rule is ostensibly based upon the holding in Condell that "where a detriment or inconvenience to the public will result,"

prejudice is inherent.  Condell, 224 Ill. at 598-99, 79 N.E. at 956.  

		It is true that, in some circumstances, there is

inherent prejudice to the public when a petitioner waits more than six months to challenge an administrative proceeding.  In

Condell, for example, the plaintiff was a discharged police officer.  He filed a petition for a common law writ of certiorari to review the civil service proceedings that led to his discharge

1 1/2 years after the proceedings ended.  The plaintiff sought

reinstatement and back pay.  The court noted: 

		"tTo restore appellee to his position would 

		confer upon him the right to require the 

		payment of his salary to the date of his 

		restoration.  Where such consequences must 

		result to the public, a delay for the length 

		of time that elapsed between appellee's dis-

		charge and the date of filing his petition 

		is unreasonable ***."  Condell, 224 Ill. at 599, 

		79 N.E. at 956.

		The court rightly held that when back pay is involved

in a civil service case, the public is prejudiced by any delay in

filing suit to challenge the dismissal.  If the plaintiff pre

vails, the public ends up paying plaintiff for all the time he

was discharged, without any work in return, and that is in

addition to the salary being paid to whoever filled the plain

tiff's position.  The longer it takes the plaintiff to bring his

suit, the more it costs the public.  It is now well settled that

"[d]efendants in civil service cases need not establish material

prejudice from plaintiff's delay in bringing suit 'because

prejudice as a result of passage of time is inherent in cases such as this and need not be specially proved.'"  Lee, 256 Ill. App. 3d at 197, 627 N.E.2d at 1259-60, quoting People ex rel. Sullivan v. Smith, 133 Ill. App. 2d 218, 220-21, 272 N.E.2d 755, 757 (1971).  

		Prisoners, on the other hand, are not civil servants

and do not potentially accumulate back pay while waiting to file

their mandamus complaints challenging a disciplinary proceeding.  The question then becomes whether the costs to the public of

responding to a prisoner's complaint for mandamus increase as time passes.  Is it cheaper for the State to respond to a com

plaint for mandamus that is filed five months after a disciplin ary proceeding than it is to respond to a complaint filed after

seven months?  The majority concludes there must be prejudice

because "DOC houses over 42,000 adult inmates who have little

disincentive to litigate over disciplinary proceedings."  Slip

op. at 11.  The fact that inmate litigation is a problem does not

mean that delay, even a short delay, is inherently prejudicial. 

The State is not prejudiced in every case where a prisoner delays

in filing his complaint for mandamus, as proved by this case, where the State could not demonstrate any prejudice even after

two years of delay.  Since prejudice is not inherent, and the

State did not demonstrate that it was prejudiced by Ashley's

delay in filing his complaint, his complaint is not barred by

laches.  See, e.g., Mid State Coal Co. v. Griffin, 263 Ill. App. 3d 339, 343, 636 N.E.2d 1072, 1074 (1994) ("A defendant must show

prejudice or hardship, rather than the mere passage of time, and must demonstrate that the delay induced him to adversely change

position in order for the defense of laches to apply").    

		Getting to the merits of plaintiff's complaint, he

alleged that he was denied due process in the March 22, 1999,

disciplinary hearing because defendants refused to interview his

requested witnesses.  The Supreme Court has held that prisoners

are entitled to a certain amount of process in prison disciplin

ary hearings, including an opportunity to call witnesses when

consistent with institutional safety and correctional goals. 

Wolff v. McDonnell, 418 U.S. 539, 564-66, 41 L. Ed. 2d 935, 956- 57, 94 S. Ct. 2963, 2979-80 (1974).  DOC rules also require that

prisoners receive process in disciplinary hearings consistent

with those principles enunciated in Wolff.  See 20 Ill. Adm. Code §504.80 (Conway Greene CD-ROM April 2001).  Mandamus is an appropriate remedy to compel DOC to conduct disciplinary hearings

consistent with due process.  See, e.g., Thompson v. Lane, 194 Ill. App. 3d 855, 864, 551 N.E.2d 731, 737 (1990) (affirming the

trial court's order issuing a writ of mandamus to compel DOC to conduct rehearing of inmates' disciplinary reports consistent

with due process, or in the alternative to restore plaintiff's

lost good-time credits and demotion in grade).

  		The record is clear that plaintiff's requested wit nesses were not contacted or interviewed and did not testify.  

The stated reason in the committee summary why the witnesses were

not interviewed was simply "unable to contact witnesses."  One of

these witnesses was a prisoner in DOC's custody.  DOC's assertion that it could not find one of its own prisoners is not credible. 

Therefore, the failure to interview or call this prisoner witness

violated plaintiff's due process rights.  See, e.g., Miranda v. Coutee, 334 Ill. App. 3d 1057, 1060, 779 N.E.2d 929, 932 (2002) (rejecting as not credible DOC's excuse for not interviewing or

calling prisoner's requested prisoner witness because they could

not locate prisoner; DOC has duty to make reasonable effort to

locate witness given plaintiff's important interest in the

matter).

		Plaintiff's complaint raises a factual allegation, thatwhich

if proved true, would establish a violation of his due process

rights.  Specifically, at the March 22, 1999, disciplinary

hearing, DOC denied plaintiff his right to request witnesses be

interviewed and their testimony considered.  Alleging a violation

of due process rights and DOC rules in a prison disciplinary

proceeding states a cause of action in mandamus.  See, e.g., Thompson, 194 Ill. App. 3d at 864, 551 N.E.2d at 737.  This claim should not have been dismissed pursuant to either section 2-615

or 2-619 because it states a cause of action on its face and it

is not barred by laches.