202 4 IL App (1st) 221088

- U No. 1 -22-1088
FIRST DIVISION March 11 , 2024

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

______________________________________________________________________________

R. SCOTT ALSTERDA , in his capacity as Bankruptcy Trustee for the estate of Jaime Mireles , Plaintiff -Appell ant ,

v.
THOMAS J. DART and the COOK COUNTY SHERIFF’S MERIT BOARD , Defendant s - Appell ees . ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

No. 15 CH 03489

Honorable Neil H. Cohen , Judge presiding.

JUSTICE PUCINSKI delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment. O RDER ¶ 1 Held : We affirm the dismissal of plaintiff

- appellant’s second amended complaint seeking to invalidate his termination by the Sheriff’s Merit Board based on defects in the appointments of the board members

. Plaintiff’s attack on the validity of the board is barred by res judicata in light of plaintiff’s prior administrative review action and related appeal. Further, the circuit court correctly found that the de facto officer doctrine preclude s his untimely challenge to the validity of the board

.No. 1 -22-1088

- 2 - ¶ 2 Plaintiff R. Scott Alsterda, in his capacity as bankruptcy trustee for the estate of Jamie Mireles (“Mireles”) appeals from the circuit court’s June 2022 order dismissing his second amended complaint with prejudice

. For the following reasons, we affirm. ¶ 3 BACKGROUND ¶ 4 Mireles was formerly employed as a correction of fice r by the Cook County Sheriff’s Department. On July 22 2014, Thomas J. Dart, in his capacity as Cook County Sheriff (Sheriff) , filed a complaint against Mireles with the Cook County Sheriff’s Merit Board (Board). The Sheriff alleged that on March 31, 20 12 , Mireles used excessive force when he struck a detainee’s face with his hand. The Sheriff also alleged that Mireles failed to submit an incident report documenting the use or force or to present himself to be interviewed about the incident. The complain t requested that Mireles’ employment be terminated. ¶ 5 The Board ’s Termination Decision and Mireles’ Prior A ppeal ¶ 6 The Board conducted a hearing on October 23, 2014. In January 2015, the Board issued a final administrative decision upholding the charges against Mireles and terminating his employment. The decision was signed by eight Board members, including John Rosales. ¶ 7 On February 27, 2015, Mireles filed a complaint for administrati ve review in the circuit court of Cook County. On January 7, 2016, the circuit court ente red an order affi r ming the Board’s decision. ¶ 8 Mireles appealed to this court, raising a number of arguments . Among these, he claimed that his use of force was not exce ssive; the investigation into the incident was insufficient ; and the Board’s determination that he failed to properly report the incident was against the manifest weight of the evidence

. Mireles v. Cook County Sheriff’s Merit Board , No. 1 -16-0203 (March 8, 2017)No. 1 -22-1088

- 3 - (unpublished summary order), ¶ 7. Notably, Mireles did not raise any challenge to the composition of the Board. In March 2017, this court affirmed the Board’s termination decision

. Id

. ¶ 9 The 2014 Circuit Court Decision in Taylor v. Dart and A ffi rmanc e By Our Court ¶ 10 In a separate proceeding involving a different employee’s termination by the Board , in August 2014 the circuit court issued a decision that forms the basis of Mireles’ current appeal. Specifically, in Taylor v. Dart, the circuit court vacated a termination decision on the basis that one of the Board members, John Rosales, was not duly appointed under the governing statute

. Specifically, wherea s section 3 -7002 of the Counties Code (55 ILCS 5/3 -7002 (West 2012) ) required Board members to be appoint ed for si x- year terms, Rosales was appointe d for a term of less than one year. The circuit court in Taylor found that the Board “was not lawfully const ituted at the time of the hearing and decision” so that the termination decision was invalid. ¶ 11 After the Sheriff and Board appealed, we agreed with the circuit court that the Board deci sion was void because it was “illegally constituted” at the time of Tayl or’s termination decis ion

. Taylor v. Dart , 2016 IL App ( 1st ) 143684, ¶ 47. In January 2017, our supreme court issued a supervisory order directing our court to additionally consider whether the Cook County Board of Commission s had home rule authority to approve interim appointment s to the Board. Pursuant to that supervisory order, this court issued another opinion, holding that that (1) the Board was not authorized to appoint an individual for less than a six

- year term; (2) Rosales’ participation in Taylor’s termination decision rendered it void; and (3) the Cook County Board of Commissioner s did not have home rule authority to approve interim appointments. Taylor v. Dart , 2017 IL App (1st) 143684

- B. ¶ 12 Mireles Challenges His Termination Decision on the Basis of TaylorNo. 1 -22-1088

- 4 - ¶ 13 In October 2017, Mireles filed a petition pursuant to section 2

- 1401 of the Code of Civil Procedure seeking to vacate the January 2016 circuit court judgment that affirmed the Board decision

. Mireles asserted, for the first time, th at the Board’s decision was voi d because one or more members “were not duly appointed” at time it rendered the January 2015 decision

. He noted that John Rosales (whose appointment was found invalid by our court ’s decisions in Taylor ) was a member of the Bo ard that rendered his termination decision. Thus, he urged that the Board was “illegally constituted” pursuant to Taylor and the Board’s decision was void. ¶ 14 The Sheriff moved to dismiss Mireles’ section 2- 1401 petition, arguing, inter alia , that section 2-1401 could not be used to challenge an administrative decision and that Mireles “waived or forfeited his ar gument that the Merit Board was not properly constituted ” by not previously

ra ising it . In April 2018, the circuit court granted the Sheriff’s motion to dismiss the section 2

- 1401 petition and remanded the case to the Board. ¶ 15 T he Sheriff subsequently move d to reconsider the April 2018 remand order based on “new and controlling law” applying the de facto officer doctrine to bar similar challenges based on the invalidity of the Board members

. Specifically, the Sheriff argued that Lopez v. Dart , 2018 IL App ( 1st ) 170733 and Cruz v. Dart , 2019 IL App ( 1st ) 170915, had “altered the legal application of
T

aylo r v. Dart. ” The Sheriff argued that in light of t hos e decision s , the de facto officer doctrine barred Mireles from relying on Taylor to collateral ly attack his termination decision. ¶ 16 In his opposition to the Sheriff’s motion , Mireles argued that the de facto officer doctrine did not apply to him . He also assert ed that all eight of the Board members who participated in his termination decision (not just Rosales) were illegally appointed for terms of less than six years. ¶ 17 T he cir cuit court st ayed any decision on the Sheriff’s motion to reconsider , citing the pending appeal before our supreme court in Goral v. Dart , supreme court case no. 125085

. OurNo. 1 -22-1088

- 5 - supreme court issued that decision in October 2020. Goral v. Dart, 2020 IL 125085. In January 2021, the Sheriff filed a motion to “recall and d ismiss the case , ” arguing that the supreme court’s decision in Goral made clear that the de facto officer doctrine bars a challenge to the composition of the Board that is not asserted until after the Board has taken “substantive action.” ¶ 18 Substitution of Plaintiff and Filing of the Se cond Amended Complaint ¶ 19 In May 2021, R. Scott Alsterda, as bankruptcy trustee for Mireles’ estate, moved for substitution as plaintiff. 1 In January 2022, the circuit court grant ed th e substitution motion

. 2 In the same order, the circuit court granted leave to file a superseding amended comp laint

. ¶ 20 On January 14, 2022, Mir eles filed a second amended complaint for judicial review of the Board’s January 2015 decision. Mireles pleaded two counts, only one of which is germane to this appeal

. In count I, Mire les sought review under the administrative review law , but he explicitly recognized “ this cou nt had already been ruled upon an d it is include d sole ly fo r the purp ose of
pres erving it for any appeal.” 3 ¶ 21 The s econ d count was entitled “ declaratory judgment” and sought to invalidate Mireles’ termination decision based on the composition of the Board, combined with the fact that the Board rendered its decision after the August 2014 circuit court order in Taylor

. In that count, Mir eles alleged that the Board was defective in several respects when it rendered the January 2015

ter mination decision

. First , John Rosales was one of the Board members, notwi thstanding that he

1 The record reflects that in May 2 015, Mireles filed for Chapter 7 bankruptcy in the U.S. Bankruptcy Court for the Northern District of Illinois.

2 For ease of reference, we refer to plaintiff

- appellant as “Mireles” notwithstanding the substitution of Mireles’ bankruptcy trustee as the party plaintiff.

3 In briefing in the circuit court, Mireles ackn owledged he included this count to preserve it for appeal but was “not seeking to relitigate” that count.No . 1 -22-1088

- 6 - had “already been determined improperly

- seated” by the prior August 2014 Taylor order . Further, Mireles alleged that several other Board members had been appointed to terms of less than six

year s , and that ce rtain of these were “non

- staggered.” Mireles alleged that the August 2014 Taylor order “put the Sheriff and the Board on notice of the defects, ” yet hi s termination decision was entered in January 2015 without “ any acti on to fix the d e fe cts in the appointments.” ¶ 22 Mir eles additionally pleaded that the Board decision “could not be prote ct ed by the de facto officer doctrine” in light of the circuit court’s August 2014 Taylor order. Mir eles acknowledged that he did not r aise these defects in his proceedings before the Board , but alleged “he did not need to as a matter of law once Taylor’s challenge was made because the doctrine is ‘backward looking’ and does not allow a Board with defects to continue operating.” ¶ 23 Mireles’ second amended complaint thus sought declarations that the Board was illegally constituted during his proceedings before the Board “from the [August 2014] Taylor order onward,” including his January 2015 termination decision, and that the de facto office doctrine did not apply to him. ¶ 24 In February 2022, the Sheriff moved to dismiss Mireles’ second amended complaint pursuant to section 2

- 615 of the Co de of Civil Procedure. The Sheriff argued that the de facto officer doctrine warranted dismissal, because Mireles did not raise a tim ely challenge to the composition of the Board. The Sheriff urged that application of the de facto officer doctrine was supported by the 2020 supreme court decision in Goral and several other appel late court decisions

. The Board subsequently join ed the Sher iff’s motion to dismiss. Mireles filed an opposition to the motion. ¶ 25 The Circuit Court Dismisses the Second Amended ComplaintNo. 1 -22-1088

- 7 - ¶ 26 On June 23, 2022, the circuit court dismissed the second amended complaint with prejudice. The circuit court first acknow ledged tha t “Count I is clearly pled solely to preserve the issue for appeal.” The circuit court proceeded to agree with the Sheriff that count II was barred by the de facto officer doctrine, relying on the supreme court decision in Goral and First District case law . The circuit court rejected Mireles’ argument that the d octrine should not apply to his challenge to the Board’s January 2015 decision becau se the Board was already “on notice” that it was “illegally constituted” after the 2014 circuit court order in Taylor

. The circuit court noted that the First District had appl ied the de facto office r doctrine in Cruz v. Dart , 2019 IL App ( 1st ) 170915 and Lopez v. Dart , 2018 IL Ap p ( 1st ) 170733, notwithstanding that the Board decision s at issue in those cases were also rendered after t he 2014 Taylor order. ¶ 27 Further, the circuit court found that in Malacina v. Cook County Sheriff’s Merit Board , 2021 IL App (1st) 191893 , “the First D istrict has now expressly held that the de facto officer doctrine applies unless the plaintiff raised the iss ue of the illegal compos ition of the Merit Boar d before the issu ance of the final admi nistrative deci sion .” The circuit court concluded that because Mireles “ never raised the issue of the Merit Board’s composition prior to the issuance of the final administrative decision,” count II of the second amended complaint was barred by the de facto officer doctrine. On that basis, it dismissed the second amended complaint. ¶ 28 Mireles filed a timely appeal

. ¶ 29 ANALYSIS ¶ 30 On appeal, Mireles maintains that the January 2015 decision was invalid because Rosales and other Board members were seated for less than six

- year terms. He emp hasizes that the decision against him was issued after the circuit court’s 2014 decision in Taylor vacating a Board decision due to Rosales’ illegal appointment. He thus reasons that the Sheriff and Board were “put on noticeNo. 1 -22-1088

- 8 - that such a defect violated the Act,” yet the Board issued the 2015 decision against him without correcting the defects in its composition. Because he asserts that the circuit court in Taylor decision put the Board on “notice” of the defects, he maintains that it is inequitable to apply the de facto officer doctrine against him. In doing so, he emphasizes certain language in this court’s decision
in Goral that the doctrine “looks backward” but does not permit an illegally constituted board to “keep doing business” after a court declares it invalid. Goral , 2019 IL App (1st) 181646, ¶ 101. He suggests he raises a unique argument that distinguishes his case from other recent precedent applying the de facto officer doct rine to bar similar challenges to Board decisions. ¶ 31 In response, the Sheriff first contends that, as a procedural matter, Mireles’ second amended complaint was barred by waiver, forfeiture, or res judicata because Mireles did not challenge the composition of the Board until after his prior appeal. Secondly, the Sheriff a rgues that the circuit court correctly found that the de facto officer doctrine bars Mireles’ challenge, as he did not raise any issue concerning the composition of the Board until long after it rendered in its January 2015 termination decisi on. ¶ 32 For the following reasons, we affirm the dismissal of the second amended complaint. ¶ 33 Standard of Review ¶ 34 With respect to the standard of review, w e note that Mireles’ brief recites the standard s for challengin g a decision pursuant to the Administrat ive Review Law. See Medponics Illinois, LLC v. Department of Agriculture , 2021 IL 125443, ¶ 29 (describing standard for reviewing administrative agency’s determinations on questions of law, fact or mixed questions of law and fact ). However, in this appeal he is not directly challenging a decision of the Board. Rather, he appeals from the dismissal of count II of his second amended complaint , in which he sought aNo. 1 -22-1088

- 9 - declaratory judgment from the circuit court that , inter alia , th e Board was not legally constituted at the time of his termination decision and that de facto officer doctrine did not apply to him. ¶ 35 The trial court granted the motion to dismiss under section 2

- 615 of the Code of Civil Procedure (735 ILCS 5/2 -615 (West 2 022) ). Such a motion “challenges the legal sufficiency of a complaint based on defects apparent on its face , ” and an order granting such a motion is reviewed de novo

. Marshall v. Burger King Corp ., 222 Ill. 2d 422, 429 (2006) ; s ee also Cahokia Unit School District No. 187 v. Pritzker , 2021 IL 126212, ¶ 24 ( de novo review applies to a dismissal under either section 2

- 1615 or section 2

- 619 of the Code of Civil Procedure). 4

¶ 36 Res Judicata Bar s Mireles’ Current Claim Because It Could Have Been Raised Earlier ¶ 37 Bef ore we delve into the parties’ arguments regarding the application of the de facto officer doctrine, we address the Sheriff’s threshold argument s that Mireles’ second amended complaint is procedurally barred by waiver, forfeiture, or res judicata . The Sheriff points out that Mireles did not raise any argument disputing the validity of the Board that rendered his termination decision , either in the prior administrative review action in the circuit court, or in his corresponding unsuccessful appeal to this court. See Mireles v. Cook County Sheriff’s Merit Board , No. 1 -16- 0203 (March 8, 2017) (unpublished summary order). ¶ 38 We find the Sheriff’s res judicata argument persuasive. “The doctrine of res judicata
p rovides that a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent actions between the same parties or their privies on the same cause of action.” Hudson

4 We note that the Sheriff’s motion to dismiss could properly have bee n asserted as one under section 2

- 619, which “admits the legal sufficiency of the claim but asserts defenses or defects outside the pleading to defeat the claim.” Cahokia Unit School District No. 187 , 2021 IL 12621 2, ¶ 23. In any event , the standard of review is the same.No. 1 -22-1088

- 10 - v. City of Chicago , 228 Ill. 2d 462, 467 (2008). “Three req uirements must be satisfied for res judicata to apply: (1) a final judgment on the merits has been rendered by a court of competent jurisdiction ; (2) an identity of cause of action exists; and (3) the parties or their privies are identical in both actions. ” Id

. The doctrine “bars not only what was actually decided in the first action but also whate ver could have been decided.” Id. ¶ 39 In his reply brief, Mireles does not dispute that the parties or their privies in his original action for administrative review and his current challenge are identical. However, he asserts that the other two eleme nts of res judicata are missing. First, he claims there was no “final judgment” because “[t]he entire premise of Mireles’ 2

- 1401 petition was to aver that the Merit board’s termination decision is void because the Board was not properly constituted.” Thus, he cla ims “ res jud icata does not apply becau se the decision is void and does not constitute a final judgment.” ¶ 40 This argument is unpersuasive. Notwithstanding his current assertion that the Board ’s decision was void, his original complaint for administrative review and prior appeal resulted in

two final judgment s on the merits rendered by courts of competent jurisdiction: the circuit court’s January 2016 decis ion , as well as this court’s March 2017 order affirming the Board’s determination

. Mireles v. Cook County Sheriff’s Merit Board , 2017 IL App ( 1st ) 160203 -U

. Mireles does not attempt to suggest that this court’s prior decision in his original appeal was not a final judgment rendered by a court without jurisdiction. We find that the prior court decisions constituted final j udgment on the merits that fulfilled th is el ement of res judicata. ¶ 41 Mireles otherwise assert s there is no identi ty of cause of action because his “initial appeal was about whether or not the Board’s decision was again st the manifest weight of the evidence” and the merits of whether his terminati on was justified, whereas “[t]he 2

- 1401 petition relates toNo. 1 -22-1088

- 11 - the Board having improperly

- seated members and the decision being void as a result.” 5 Thus, he claims his prior appeal and this one do not have “the same body of operative facts.” ¶ 42 We disagree, keeping in mind that “Illinois has adopted the transactional test in determining whether an identity of cause of action exi sts for purposes of res judicata .” Oshana v. FCL Builders, Inc ., 2013 IL App ( 1st ) 120851, ¶ 34 (citing River Park, Inc. v. City of Highland Park , 184 Ill. 2d 290, 309

- 11 (1998)). Under this test, “claims are part of the same cause of action if they arise from the same transaction or series of connected transactions.” (Internal quotation marks omitted.) Id . “Subsequent claims may be ba rred if they originate from a single group of operative facts.” Id

. Significantly, t his proposition applies “regardless of whether the claims assert different theories of relief or are based on evidence that does not substantially overlap, as long as they arise from the same transaction.” Id

. ¶ 43 Although Mireles’ instant challenge to the Board decision is based on a very different legal theory from his prior appeal, both challenges are based on the same transaction: the January 2015 Board decision. All of the operative facts underlying the instant appeal

— including the identity of each Board member that participated in the decision

— were already known at the time of his prior challenge to the decision and related appeal. Although Mireles chose not to raise any c l aim disputing the validity of any Board member’s appointment in the prior proceedings, that does not mean his current challenge is based on a different “transaction” for purposes of res judicata

. We agree with the Sheriff that insofar as both challenges we re premised on the same Board decision, they arise from the same transaction.

5 We note that Mireles’ reference in his briefing to “the 2

- 1401 petition” is puzzling, since the record reflects that the section 2

- 140 petition was superseded by the second amended complaint, wh ose dismissal is the subject of this appeal.No. 1 -22-1088

- 12 - ¶ 44 Finally, although Mireles does not dispute the point, we find that there is an “identity of parties or their privies” for application of res judicata

. Hudson , 228 Ill. 2d at 470 . We recognize that the prior challenge and related appeal were brought by Mireles personally, whereas his bankruptcy trustee was substituted as the party plaintiff before filing the second amended complaint that is the subject of this appeal. However, for res judicata purposes, “ [a] nonparty may be bound pursuant to privity if his interests are so closely aligned to those of a party that the party is the virtual representative of the nonparty.” (Internal quot ation marks omitted.) Oshana , 2013 IL App (1st) 120851, ¶ 23. It is clear that a bankruptcy trustee is aligned with the interests of debtor (Mireles), such that they are in privity for purposes of applying res judicata

. ¶ 45 We thus agree with the Sheriff that the current challenge is barred by res judicata . This is an independent ground for affirming dismissal of the second amended complaint. Nonetheless, even assuming that res judicata did not apply, we otherwise agree with the circuit court that the de facto office r doctrine independently warranted dismissal. ¶ 46 De Facto Of ficer Doctrine ¶ 47 “The de facto officer rule is a common law equitable doctrine that confers validity on acts performed by an official acting under the color of official title, even though it is l ater determined that the official’s appointment to that position was legally deficient.” Malacina v. Cook County Sheriff’s Merit Board , 2021 IL App (1st) 191893, ¶ 20 (citing Goral , 2020 IL 125085, ¶ 71.) “Under the doctrine, the acts of a person actually performing the duties of an office under color of title are valid so far as the public or third parties who have an interest in them are concerned.” Goral , 2020 IL 125085, ¶ 71 . The doctrine is meant to “avoid the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question. [Citation.]” Id

.No. 1 -22-1088

- 13 - ¶ 48 T he doctrine “is applied as a defense to an attack on the acts of an officer or appointee in a collateral proceeding”, whic h “necessarily requires a prior act or judgment that is, or may be, subject to attack.” Id . 72. “[T]he doctrine was never intended to preclude a timely challenge to an official’s authority; it is, instead, a defense to a collateral challenge brought after the official’s action has been completed.” (Emphasis in original.) Malacina , 2021 IL App (1st) 191893, ¶ 21. ¶ 49 This district has applied a “f irst challenger exception ” to the de facto of ficer doctrine , by which “the first individual to raise a challenge to an official’s authority to act is entitled to relief

— a reward for exposing the defective appointment.” Id. , ¶ 23 . However, “once that first party secures the court ruling invalidating the Board’s composition (and gets relief for having done so), any previous final decisions from that illegally constituted board are insulated from challenge.” Goral , 2019 IL App (1st) 181646, ¶ 91

. Consistent with this exception , the Taylor plaintiff

— the first one
to raise the defect in the Board member Rosales’ appointment— received the benefit of having his termination decision vacat ed. Taylor , 2017 IL App (1st) 143684

- B. However, this district has “taken a narrow view of the ‘first challenger’ exception

. Malacina , 2021 IL App (1st) 191893 , ¶ 25 ( recognizing that “in Cruz , 2019 IL App ( 1st ) 170915, we held that a post

- decision challenge to the comp osition of the Boar d wa s barr ed by the de facto office r rule, even though C ruz identi fied differe nt inval idly appointed offic ials ” than the one identifie d in Taylor. ). ¶ 50 Following this court’s determination in Taylor that Rosales was invalidly appointed ( Taylor , 2017 IL App ( 1st ) 143684

- B), this court has consistently applied the de facto officer doctrine to bar a number of similar challenges to Board’s authority , where the challenges were not

asse rted un til afte r the Board ’s issued a final dec ision . See , e.g. , Acevedo v. Cook County Sheriff’s Merit Board , 2019 IL App ( 1st ) 181128 , ¶ 25 ( plaintiff’s claim that his ter mination decisi on was void be cause R osales participated in it was barred by the de fact o officer doct rine where “Aceve doNo. 1 -22-1088

- 14 - raise s the same issue with Rosales’ appoint ment as was r aised in Taylor , Lopez , and Cru z

— an appointment to a term of less than six years); Cruz v. Dart , 2019 IL App (1st) 170915, ¶ 38 ( de facto officer doctrine applied to attempt to void decision based on appointments of three other Board members to terms of less than six years, which was “the same problem with the appointment procedure that was before us in Taylor and Lopez ”) ; Lopez v. Dart , 2018 IL App (1st) 170733, ¶ 59 ( applying de facto officer doctrine where Lopez was “not the first clai mant to have brou ght the illegal appoint ment of Rosales to light ,” reasoning this “will circumvent the upheaval that would doubtlessly result if we were to invalidate the Merit Board’ decision and invite hundreds of plaintiffs” to challe nge deci sions rendered during Rosales’ “unauthorized term.”). ¶ 51 By contrast, in Goral , both this court and our supreme court rejected the Sheriff’s reliance on the de facto offi cer doctrine where the plaintiffs timely challeng ed the authority of the Board by filing a complaint before the Board had rendered decisions against them

. See Goral , 2019 IL App (1st) 181646, ¶ 1 (explaining that Goral plaintiffs consisted of employees charged by the Sheriff with disciplinary infractions who “from the ou tset of thei r admi nistrative cases *** hav e challenged the aut hority of the Board to hear t he ir cases, bas ed on claims that the Board is illegally constituted.”) This court’s decision explained that the doctrine did not apply to the Goral plain tiffs because at the time th ey filed a lawsuit challeng ing the validity of Board’s composition, “none of plaintiffs’ administrative actions had gone to a final decision.” Id. , ¶ 99. Rather , they “have been rais ing statu tory-authority arg uments before the Boar d since their cases began ***.” Id

. ¶ 52 Our court in Goral went on to empha size that the timing of the challeng e “makes all the difference in the world .” Id

. ¶ 100. Then , i n language relied upon by Mireles in this appeal, we went on to say:No. 1 -22-1088

- 15 - “T he ‘ de facto officer’ doctrine is concerned with the fear of unearthing old decisions * * *. But that doctrine is not

— and could

not— be concerned with pending or brand

- new cases. Once a court decides that a board is illegally constituted, that board can’t keep hearing pending cases, much less entertain newly filed ones. To say otherwise would be to say that court decisions mean nothing.
The ‘ de facto officer’ doctrine looks backward. It does not look forward. Once a court declares a board’s composition invalid, we may protect its old decisions, but we absolutely do not allow it to keep doing business

— illegally

— as if we had never issued our ruling.” I d. ¶¶ 100-01. ¶ 53 Our suprem e court affirmed , emphasizing that the timing of the plaintiffs’ challenge precluded application of the de facto officer doctrine : “Timing matters. Here, given that the Merit Board had not taken any substantive action regarding pla intiffs’ disciplinary charges prior to the filing of their lawsuit in circuit court, we conclude that the de facto officer doctrine does not apply. Plaintiffs were not trying to unwind or undermine any administrative determination by the Merit Board. At the time plaintiffs filed both their original and second amended complaints, there had been no action or judgment by the Merit Board in plaintiffs’ proceedings to which the doctrine could confer validity. Because the de facto officer doctrine has not been

— an d should not be

— employed as anNo. 1 -22-1088

- 16 - obstacle to preclude a timely challenge to the authority of an administrative agency, it does not justify the dismissal of plaintiffs’ complaint.” Goral , 2020 IL 125085, ¶ 75. ¶ 54 The De F acto Officer Doctrine Appli es to Bar Mire le s ’s Challenge ¶ 55 Mireles urges that despite the above preceden t, h e presents an argument ag ainst application of the de facto officer doctrine that is unique and unresolved by this court

. H is position is that after the 2014 circuit court decision in Taylor , the Board was on notice of any defective appointments and thus had an obligation to correct them before it issued the 2015 decision terminating him. He suggests that this invalidates the decision, regardless of when he first raised a

c hallenge to the Board’s composition

. That is, he argues that the “timing matters” language from the supreme court decision in Goral does not address his “ particular issue : what effect does the original [circuit court] Taylor Order have on the application of the de facto office r doctrine given that [our appellate court decision in Goral ] recognized that the doctrine is ‘backwards looking’?” ¶ 56 To be clear, Mireles does not dispute that he did not challenge the Board’s comp osition before it rendered a decision against him

. Rather, relying on the language from this court’s opinion
in Goral that a board should not be permitted to “keep doing business” after a court declares its composition invalid, ( 2019 IL App ( 1st ) 181646, ¶ 101) , he suggests th e Board was obligat ed to “fix[] itself” after it was put on notice by the circuit court’s 2014 Taylor order. He suggests there should be no obligation to raise a timely challenge to the Board’s composition , as it is “unjust” to

“ place the onus on officers to raise an objection” when the B oar d and the Sheriff “knew full well ” of defects in the composition. Mireles argues th at application of de facto officer doctrine would reward the Sheriff and Board’s “bad behavio r” for failing to correct defects after the Taylor orde r.No. 1 -22-1088

- 17 - ¶ 57 He asserts that our court has “never squarely confronted this issue, and has never explained why the Taylor order does not matter.” He suggests that officers subject to an adverse Board decision iss ued after the August 2014 Taylor order and “while the Board had the same defects” should not be barred by de facto officer doctrine, regardless of whether they raised a challenge before the Board’s decision. Mireles urges his position is supported by Justice McMorrow’s

concurrence in Daniels v. Industr ial Commission , 201 Ill. 2d 160 (2002) insofar as it urged that the de facto officer doctrine should not be applied “mechanically” and should not apply w here illegal appoint ments “were the result of ma l feasance or a delib erate attempt to subvert” a governing

statute. Id . at 174 -75. Indeed, he accuses the Board of “deliberate malfeasance” by continuing to render decis ions with “defective appoint ment s” after the August 2014 Taylor order. ¶ 58 We find Mireles’ arguments unavailing in light of precedent from this court and the supreme court reaffirming the validity of the de facto officer doctrine and the requirement of a timely challenge to avoid its application

. We point out that, n otwi thstanding Mireles’ reliance on certain language of our 2019 decision in Goral , that decision still made clear that an officer has the burden to make a timely challenge to avoid the de fac to officer doctrine. Indeed, shortly after stating t hat the doc trine “looks back ward” and does not allow the Board to ke ep doing business illegally , (2019 IL App (1st) 181646, ¶101) this court in Goral made clear that a party still needed

to assert a timel y challenge to the Board’s composition, i.e. while the matter was still pending : “To put it plainly: Once Taylor was decided, any Sheriff’s employee whose case was then

- pending before the Board, or who was char ged in a new case p ost -Taylor , had ever y right to chall enge the Boar d’s
comp osition fo r the same reason s as in T aylor (or for different reasons). Old cases al ready finally decided, no, but pending or newNo. 1 -22-1088

- 18 - administrative cases, yes . Plaintiffs’ cases were pending *** and the de facto office r doctrine did not prevent them from challenging the Board’s composition.” (Emphasis added.) Goral , 2019 IL App ( 1st ) 181646, ¶ 105. ¶ 59 Importantly, this statement of the law “not only survived the supreme court’s review of our decis ion but was the very bas is for the supreme court’s holding” affirming our decision in Goral

. Malacina , 2021 IL App (1st) 191893, ¶ 31 (citing Goral , 2020 IL 125085). As explained in Malacina , our supreme court held that “[t]he Board’s then

- illegal composition remained ripe for a challenge by a party before the Board

— as long as the party raised it at the time of those administrative proceedings , and not merely afterward, post

- final decision. Goral did so * * * before the Board’s final administrative decision was rendered. And that is precisely why the Illinois Supreme Court held that Goral’s claim was not s ubject to a de facto officer defense.” (Emphases in original.) Id

. (citing Goral , 2020 IL 125085, ¶ 75). ¶ 60 In short, our supreme court held that the de facto officer doctrine did not apply to the Goral plaintiffs because they made a “timely challenge ” before an adverse Board decision; th at is, they “were not trying to u nwind or undermine any admin istrative determination by the Me rit Board .” Goral , 2020 IL 125085, ¶ 75. T his is precisely what Mireles is attempting to do here with respect to his 2015 termination decision by the Board , without having made a timely challenge. ¶ 61 Our supreme court’s holding in Goral controls . This is so notwithstanding Mirele s ’s claim that it is “unjust” to require him to raise a challenge because the Board should have fix ed any defects after the circuit court’s 2014 decision in Taylor

. 6

6 We note, as explained by our supreme court, that “in response to T aylor , the le gislature amended the Code provision governing Merit Board appointments.” Goral, 2020 IL 125085, ¶ 12. The amendment permitted theNo. 1 -22-1088

- 19 - ¶ 62 Our supreme court in Goral reaffirmed that the de facto officer doctrine “serves to preserve the integrity of an official action that is complete and where the authority of the agency or public official was not challenged in a timely manner.” Id

. , ¶ 74. Goral makes clear that the d octrine is a valid defense to a collateral attack on an old decision – which is exact ly what Mireles attem pted through his second amended complaint

. While Goral held that the doctrine does not apply to a party who raised a “ timely challenge to the authorit y of an admi nistrative agency ” , ( id

. ¶ 75) , that is, be fore the Board rendered a decision, it is undi sputed that Mireles did not do so. Indeed, he did

not r aise a challenge to the validity of the Board until October 2017, after this court rejected his prior appeal from the same Board decision. ¶ 63 Goral is binding precedent that requi res a timely challenge to the Board’s composition to avoid the de facto officer defense. Therefore, we must reject Mireles’ various equitable and policy

related arguments that he should be excluded from that requirement. Accordingly, the circuit court correctly concluded that the de facto officer doctrine warranted dismissal. ¶ 64 CONCLUSION ¶ 65 In summary, we find that : (1) Mireles’ challenge to the composition of the Board that

re ndered his termination decision is barred by res judicata given his failure to raise it in the prior action and appeal and (2) in any event, the de facto officer doctrine operates to independently bar his untimely collateral attack on the Board’s decision. ¶ 66 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. ¶ 67 Affirmed.

Sheriff to make interim appointments, abolished all existing terms of each Board member, and created a new schedule for staggered terms of Board members. Id. (citing Pub. Act 100

- 562, § 5 (eff. Dec. 8, 2017) (amending 55 ILCS 5/3 -7002)).No. 1 -22-1088

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