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(unpublished order under Supreme Court Rule 23).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.