2021 IL App (1st) 200380-U

No. 1-20-0380 

Order filed August 18, 2021 

Third Division

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

______________________________________________________________________________ 

AMALGAMATED TRANSIT UNION and 

AMALGAMATED TRANSIT UNION LOCAL 241, 

Plaintiffs-Appellees, 

 v. 

MICHAEL BARRON; MARY BEARD; MICHAEL 

FAIRCHILD; CARLOS HARRIS; VERN HODGES; 

REUBEN JOHNSON; CEDRIC JONES; ERNEST 

JONES III; VENITA JONES; RUTH LATSON; 

FREDERICK McCLURE; KEVIN MITCHELL SR.; 

LARRY MUHAMAD; HERMAN REYES; DWAYNE 

SAVAGE; NATHANIEL SCURLOCK; MICHAEL 

SEATON; GUS STEVENS; MICHAEL TAYLOR; 

LONNIE WALKER; MICHAEL WALLACE; AND 

MICHAEL A. WILLIAMS,

Defendants, 

(Carlos Harris; Vern Hodges; Ernest Jones III; Venita 

Jones; Herman Reyes; Michael Seaton; Gus Stevens; 

Michael Taylor; and Lonnie Walker, Defendants and 

Counterplaintiffs-Appellants) 

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Appeal from the

Circuit Court of

Cook County

No. 17 L 8502

Honorable 

Patrick J, Sherlock, 

Judge presiding. 
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 v. 

AMALGAMATED TRANSIT UNION, 

 Plaintiff and Counterdefendant-Appellee.

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JUSTICE BURKE delivered the judgment of the court.

 Presiding Justice Howse and Justice McBride concurred in the judgment. 

 

ORDER

¶ 1 Held: We affirm the circuit court’s grant of summary judgment in favor of Amalgamated 

Transit Union and its local affiliate on their claims against the defendants and the 

court’s subsequent denial of the defendants’ motion to reconsider, and affirm the 

court’s grant of summary judgment in favor of Amalgamated Transit Union on the 

defendants’ counterclaims. We also find no error by the circuit court in multiple 

discovery rulings and if there was error in the court’s allowance of a “deliberative 

privilege” during a deposition, such an error was harmless. 

¶ 2 Amalgamated Transit Union (ATU) and its local affiliate, Amalgamated Transit Union 

Local 241 (Local 241), sued former members of Local 241’s executive board, Carlos Harris, Vern 

Hodges, Ernest Jones III, Venita Jones, Herman Reyes, Michael Seaton, Gus Stevens, Michael 

Taylor and Lonnie Walker (the defendants), for breach of contract after they failed to pay fines 

that were imposed following a union disciplinary hearing. The defendants countersued ATU for 

breach of contract and breach of fiduciary duty. Ultimately, on motions for summary judgment by 

ATU and Local 241, the circuit court entered judgment in favor of ATU and Local 241 on their 

claims, and entered judgment in favor of ATU on the defendants’ counterclaims. The court also 

denied the defendants’ motion to reconsider its grant of summary judgment in favor of ATU and 

Local 241 on their claims. The defendants have appealed these rulings by the circuit court as well 

as various discovery rulings by the court during the litigation. For the reasons that follow, we 

affirm.
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¶ 3 I. BACKGROUND

¶ 4 A. Pre Litigation

¶ 5 ATU is an international labor union representing transit workers in the United States and 

Canada. ATU is affiliated with local unions throughout North America, including Local 241. ATU 

is governed by a constitution and general laws (constitution) that is binding on all of its members, 

and that contains internal disciplinary procedures and protocols. ATU’s constitution gave it the 

ability to charge any member with violations of its constitution, any local affiliate’s bylaws, and 

the practices and policies of ATU or a local affiliate, as well as for malfeasance and nonfeasance 

in office, and financial malpractice. 

¶ 6 During the relevant time period, Local 241 represented employees working at the Chicago 

Transit Authority and Pace, and Local 241 had its own bylaws that, among other details, regulated 

pay modifications for its executive board. One such bylaw provided that the rate of executive board 

members’ pay could only be increased by the same increases achieved through collective 

bargaining. The bylaws provided no other mechanism for board members to increase their 

compensation. During the relevant time period, Local 241 had six executive officer positions: 

president, first vice president, second vice president, the financial secretary-treasurer, the recording 

and corresponding secretary, and the assistant business agent. In addition to the executive officer 

positions, Local 241 had several members of an executive board.

¶ 7 In July 2003, as ATU’s constitution permitted, ATU placed Local 241 into a trusteeship in 

order to address deficiencies in Local 241’sinternal governance and administration. ATU removed 

Local 241 from the trusteeship a little over two years later. 

¶ 8 Harris, Hodges, Ernest Jones, Venita Jones, Reyes, Seaton, Stevens, Taylor and Walker

were all members of Local 241. All of them served on Local 241’s executive board and were 
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employed by the Chicago Transit Authority except for Ernest Jones who served on Local 241’s 

executive board but was employed by Pace. Harris, Ernest Jones, Reyes, Taylor and Walker all 

served on the executive board from November 2005 until September 2011. Hodges, Venita Jones 

and Seaton all served on the executive board from November 2005 until June 2011. And Stevens 

served on the executive board from July 2008 until June 2011.

¶ 9 In mid-September 2011, ATU again placed Local 241 into a trusteeship in order to address 

issues of financial management. The trustees subsequently undertook an examination of Local 

241’s administration and finances from the time period of November 2005 to early September 

2011. That investigation revealed, among other details, that executive board members gave 

themselves year-end bonuses, referred to as “Christmas [g]ratuities,” beginning in December 2005

that were not allowed under the bylaws. Additionally, the investigation revealed that board 

members had increased their hourly pay in January 2006 without a corresponding collectively 

bargained increase in compensation. The investigation further revealed that board members had 

failed to make required contributions to a pension fund in 2010 and 2011.

¶ 10 Around 2013, ATU amended its constitution. In previous versions, individuals accused of 

malpractice, malfeasance and nonfeasance had the right to be represented by counsel at a hearing 

on the charges. In the amended version, individuals accused of malpractice, malfeasance and 

nonfeasance no longer had the right to be represented by counsel at a hearing on the charges. 

Rather, they only had the right to be represented by “any member not serving on the trial board, 

as hearing officer, or on [ATU’s general executive board].” 

¶ 11 In late June and early July 2014, ATU’s international president sent each defendant a letter 

informing them of the investigation’s findings, including that they had been overcompensated in 

violation of Local 241’s bylaws. In each letter, ATU’s international president asserted that “[t]he 
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members of Local 241 rightly expect that the former Executive Board Members who received 

overpayments make payments to Local 241 to correct these financial deficiencies” and demanded 

that they repay Local 241 for the overpayments, either in full or by making financial arrangements 

with Local 241 by contacting an assistant general counsel. ATU’s president noted that “[m]any” 

other former executive board members had repaid their overpayments in full or otherwise reached 

arrangements to satisfy their obligations. ATU’s international president concluded the letter by 

requesting payment “expeditiously” otherwise charges could be brought against them. With each 

letter, ATU’s international president included a spreadsheet detailing the overpayments with 

payroll data. In the letter to Stevens, ATU’s international president acknowledged that Stevens’ 

service on the executive board began after the improper compensation occurred, but nevertheless 

asserted that “they were never rescinded and their effects, therefore, continued through your time 

in office.” None of the defendants repaid the required amounts or made financial arrangements to 

satisfy their alleged obligations.

¶ 12 As a result of the defendants’ silence, later in July 2014, Local 241’s trustees—Javier 

Perez, Jr. and Marcellus Barnes—sent to ATU’s general executive board a charging document for 

each defendant detailing that he or she had engaged in both malfeasance and nonfeasance while in 

office as well as serious acts of financial malpractice and administrative mismanagement, all 

allegedly in violation of ATU’s constitution, Local 241’s bylaws, the policies of ATU and 

generally accepted practices. These charges included: (1) financial malpractice for failing to 

manage local union funds in accordance with ATU’s constitution, Local 241’s bylaws, the policies 

of ATU and generally accepted practices; (2) financial malpractice for failing to make proper 

pension fund contributions; (3) financial malpractice for misallocating money raised in arbitration 

assessments; (4) financial malpractice for failing to implement appropriate financial controls on 
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local union expenses; (5) commission of nonfeasance and malfeasance for accepting local union 

funds in the form of compensation for time spent conducting union business at an hourly rate that 

violated Local 241’s bylaws and for failing to repay that compensation upon demand by ATU’s 

international president; (6) commission of nonfeasance and malfeasance for accepting local union 

funds in the form of “ ‘Christmas [g]ratuities,’ ” which violated Local 241’s bylaws and for failing 

to repay that compensation upon demand by ATU’s international president. In concluding the 

charging document, the trustees requested that ATU’s general executive board authorize the 

issuance and service upon the defendants of a complaint detailing the charges and directing a 

hearing to be held in the matter. The charging documents were signed by the trustees. 

¶ 13 On July 25, 2014, ATU’s international president mailed each defendant a letter with the 

subject of “Charges Under International Constitution and General Laws Section 12.5, Discipline 

of L.U. Members,” although Ernest Jones’ letter was dated August 1, 2014. The letter notified each 

defendant that ATU’s general executive board authorized him to issue and serve a complaint (in 

the form of the letter) upon them. In addition to setting forth the six charges, ATU’s international 

president noted that he had sent each defendant a letter in June 2014, which demanded repayment 

of the overpayments, but asserted that he or she never repaid the overpayment or “reached 

arrangements to satisfy [his or her] obligations” to Local 241. In the letter, ATU’s international 

president once again demanded repayment or that the defendants contact ATU’s assistant general 

counsel to reach an arrangement to satisfy their obligations to Local 241.

¶ 14 Additionally, ATU’s international president stated that, pursuant to section 12.5 of ATU’s 

constitution, a hearing would be held before a hearing officer on the charges on September 8, 2014, 

wherein the defendants would “be afforded all due process rights as set forth under Section 12.5, 

including the opportunity to present evidence, and examine and cross-examine witnesses.” ATU’s 
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international president remarked that all evidence ATU intended to present at the hearing would 

be sent to them and available for review at Local 241’s office. Additionally, ATU’s international 

president stated that, following the hearing, the hearing officer would issue a report to ATU’s 

general executive board, who would ultimately determine whether each defendant was guilty and, 

in turn, could impose various penalties, including fines, suspensions or expulsions. ATU’s 

international president added that “[a]ny such decision may be appealed to the International 

Convention.” ATU’s international president was the only individual who signed this letter. In midAugust 2014, ATU’s international president again notified the defendants by letter about the 

upcoming hearing as well as provided them with the evidence ATU intended to present. 

¶ 15 From September 8 until September 11, 2014, a hearing on the defendants’ charges occurred 

before a hearing officer, Anthony Garland. The defendants were not represented by an attorney 

while ATU was represented by Daniel Smith, its assistant general counsel. Two months later, 

Garland issued a report detailing his findings and recommendations. In the report, Garland initially 

quoted in a lengthy footnote section 12.5 of ATU’s constitution, which explained the internal 

disciplinary procedures for members who allegedly violated laws and policies of ATU or a local 

affiliate, including that “[t]he accused member or members shall have the right to be represented 

by counsel” and that members who had adverse findings against them had “the right to appeal to 

the [International] Convention and have the case fully considered and acted upon by the 

Convention.” 

¶ 16 Garland observed that executive board members of Local 241 were entitled to be paid at 

specific rates for their performance of union business pursuant to Local 241’s bylaws. In turn, 

those bylaws provided that the members’ rates of pay could only be increased by the same 

increases that had been achieved through collective bargaining. However, Garland found that, in 
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2005, the members gave themselves year-end bonuses, which had been referred to as “ ‘Christmas 

[g]ratuities ’ ” despite the fact that no such bonus had ever been collectively bargained. Similarly, 

Garland found that, in 2006, the members increased their rate of pay despite the fact that no such 

increase had been collectively bargained. Garland concluded that, based on the evidence, each of 

the defendants (except for Stevens, who was not an executive board member until 2008) “were 

well aware of the misconduct.” The improper compensation resulted in an overpayment of nearly 

$700,000 to executive board members between November 2005 and September 2011. Garland

additionally noted that, once ATU placed Local 241 into a trusteeship and the audit of Local 241 

began, the auditor discovered the overpayments. Garland remarked that, as a result, ATU’s 

international president sent each of the defendants a letter demanding that he or she repay Local 

241 the corresponding overpayment, but none of them did so. 

¶ 17 Based on these findings, Garland found the defendants guilty of all the chargesfiled against 

them except the third charge and made several recommendations. For charges one, two and four, 

Garland recommended that each defendant be fined $3000 and be suspended five years from 

holding, or running for, any position with Local 241. For the fifth charge—involving the hourly 

pay overpayments—Garland recommended that each defendant be fined an amount corresponding 

to his or her overpayment and be suspended five years from holding, or running for, any position 

with Local 241. For the sixth charge—involving the Christmas gratuities overpayment—Garland 

recommended that each defendant be fined an amount corresponding to his or her overpayment 

and be suspended five years from holding, or running for, any position with Local 241. Garland 

recommended that the suspensions be served concurrently and the fines from charges one, two and 

four be concurrent with the fines from charges five and six. In other words, Garland recommended 

that the defendants only be fined an amount commensurate with their overpayments, as detailed in 
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the fifth and six charges, and as follows: $36,859.87 for Harris, $31,571.74 for Hodges, $48,393.79 

for Ernest Jones, $32,160.88 for Venita Jones, $33,981.64 for Reyes, $33,991.17 for Seaton, 

$15,837.72 for Stevens, $39,918.15 for Taylor and $46,087.23 for Walker. 

¶ 18 ATU’s general executive board adopted Garland’s findings and recommendations, and on 

November 25, 2014, ATU’s international president notified each defendant via letter of the result 

and provided them a copy of Garland’s report. This letter also informed each defendant that he or 

she had “the right to appeal these findings and penalties to the [International] Convention and have 

the case fully considered and acted upon by the Convention.” 

¶ 19 Four days later, Ernest Jones, Seaton, Taylor and Walker jointly appealed the decision of 

ATU’s general executive board to the International Convention. Harris did the same in January 

2015 and specifically argued that “the proceedings convened to hear evidence to the charges did 

not afford the defendants the opportunity to be represented by counsel, as stated in Section 12.5 of 

[ATU’s constitution].” Harris’ appeal was consolidated with the joint appeal of Ernest Jones, 

Seaton, Taylor and Walker. In October 2016, after “careful consideration of the record contained 

in the file and hearing the presentation of the representative of certain appellants, the [International 

Convention’s] Committee on Appeals voted, with 22 in favor, one opposed, and no abstentions, to 

recommend that this Convention deny” their appeals and “uphold the decision of the General 

Executive Board.” During voting on the matter by the International Convention as a whole, Toi 

Bowers, a delegate to ATU from Local 241, remarked that “Christmas bonuses were the practice 

of Local 241. These guys did not take it upon themselves to get Christmas bonuses the term they 

were in. It had been going on twice before them, so they looked at it as a past practice. And I 

cannot let the body be misled.” To this end, Bowers made a motion to “appeal the decision of the 
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committee.” After a roll call, Bowers’ motion was denied. The International Convention 

subsequently adopted the recommendation of the committee and denied the consolidated appeal. 

¶ 20 Meanwhile, while the appeal was pending before the International Convention, Ernest 

Jones and Walker filed a complaint with the United States Department of Labor’s office of labormanagement standards, alleging that ATU unlawfully barred them from holding office in their 

local union in violation of the Labor-Management Reporting and Disclosure Act of 1959 (LaborManagement Act) (29 U.S.C. §§ 401-531 (2012)) as well as making various allegations about their 

disciplinary hearing.

1 In a letter back to them, the United States Department of Labor stated that it 

had “conducted an investigation of [their] allegations” but “concluded that no violations of the 

[Labor-Management Act] occurred.” The United States Department of Labor initially found that 

ATU’s hearing process complied with the Labor-Management Act. The United States Department 

of Labor also found that Ernest Jones and Walker “were provided reasonable time to prepare a 

defense to the charges” and “were in fact given a full and fair hearing.” The United States 

Department of Labor noted that Ernest Jones and Walker alleged, in part, that they “were not 

allowed to have an attorney present at the hearing, and the hearing officer was not impartial” but 

the department rejected those allegations and determined that the hearing “was held in accordance 

with Section 12.5 of [ATU’s constitution].” Specifically in regard to the attorney claim, the United 

States Department of Labor observed that its investigation “did not substantiate [their] claim that 

[they] were improperly denied representation at the hearing. Although the ATU denied [their] 

request to postpone the hearing for [them] to retain counsel to review the documents provided as 

1 Section 411(a)(5) of Labor-Management Act (29 U.S.C. § 411(a)(5) (2012)) provides 

safeguards against improper disciplinary action by preventing any “member of any labor organization” 

from being “fined, suspended, [or] expelled,” without being “(A) served with written specific charges; (B) 

given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.” 
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potential evidence against [them], this decision was not unreasonable given [they] made the 

request four business days before the hearing began.” The United States Department of Labor 

additionally noted that the Labor-Management Act did not provide a right to counsel during union 

disciplinary proceedings.

¶ 21 Thereafter, ATU’s international president and Local 241’s president and business agent 

demanded that the defendants satisfy their obligations to pay the fine imposed against them 

following their hearing and adoption by ATU’s general executive board of the hearing officer’s 

findings and recommendations. 

¶ 22 B. The Instant Litigation

¶ 23 In August 2017, ATU and Local 241 filed a complaint in the circuit court against Harris, 

Hodges, Edward Jones, Venita Jones, Reyes, Seaton, Stevens, Taylor and Walker, among several 

other defendants, which they later amended in February 2018. In the amended complaint, ATU 

and Local 241 brought breach of contract claims against each of the defendants, alleging that 

ATU’s general executive board determined that they violated Local 241’s bylaws and ATU’s 

constitution, which resulted in the imposition of a fine. According to ATU and Local 241, because 

of the defendants’ contracts with ATU, they were contractually obligated to pay their fines, but 

they had refused to do so despite demands. ATU and Local 241 levied a count against each 

defendant, and in each of those counts, ATU and Local 241 sought an order finding each defendant 

liable to them in the amount of the fine that had been imposed by ATU’s general executive board—

or the exact amount recommended by Garland. ATU and Local 241 attached to their amended 

complaint a copy of section 12.5 of ATU’s constitution, which discussed the disciplinary process 

of local union members.
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¶ 24 In February 2019, ATU and Local 241 filed a motion for summary judgment against Reyes, 

Walker, Stevens, Venita Jones, Ernest Jones and Hodges. ATU and Local 241 did not file a motion 

against Harris, Seaton or Taylor because, at the time, they were in default. In the motion, ATU and 

Local 241 asserted that all of the defendants had a full hearing on the charges against them and 

following that hearing, they were found guilty of multiple offenses for violating ATU’s 

constitution and Local 241’s bylaws, and fined accordingly. ATU and Local 241 observed that all 

of the defendants were given the opportunity to testify, introduce evidence, call and cross-examine 

witnesses, and make statements on record during the hearing. ATU and Local 241 argued that, 

under Illinois law, courts recognize the power of a union to police its own and uphold judgments 

of a union so long as there was due process. Because the defendants were given an opportunity to 

defend themselves against the charges and because the defendants were bound by their union 

contracts, which gave ATU the ability to police its own members and impose penalties, ATU and 

Local 241 argued that summary judgment was appropriate on their breach of contract claims. ATU 

and Local 241 attached to their motion the decision of Garland, the initial demand letters from 

ATU’s international president that the defendants repay the overpayments, the letters charging 

Reyes, Walker, Stevens, Venita Jones, Ernest Jones and Hodges with the violations, and the 

demand letters from ATU’s international president and Local 241’s president and business agent 

that the defendants satisfy their obligations to pay the fine imposed against them following their 

hearing and adoption by ATU’s general executive board. 

¶ 25 Up until the time that ATU and Local 241 filed their motion for summary judgment, the 

defendants had been representing themselves. But following ATU and Local 241’s motion for 

summary judgment, an attorney filed an appearance on behalf of all of the defendants pertinent to 

this appeal. The attorney also successfully moved the circuit court to vacate the default orders
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entered against Harris, Seaton and Taylor. On March 7, 2019, the circuit court continued the case 

for a status hearing and ordered the defendants to “describe any discovery needed to be conducted” 

at the hearing. Two weeks later, at that status hearing, the circuit court granted the defendants leave 

to file joint affirmative defenses and counterclaims, struck the pending trial date, and entered and 

continued ATU and Local 241’s motion for summary judgment. 

¶ 26 On March 29, 2019, the defendants filed joint affirmative defenses, including bad faith and 

unclean hands on the part of ATU. In addition, the defendants filed counterclaims of breach of 

fiduciary duty and breach of contract against ATU. The defendants alleged, in part, that Rodney 

Richmond, a former trustee of Local 241 between 2003 and 2005 and former vice president of 

ATU, told the new executive board, which many of the defendants comprised, that they could 

increase their rates of pay to reflect updated collectively bargained pay rates. Additionally, the 

defendants claimed that the practice of giving Christmas gratuities had preceded their time on the 

executive board and ATU never told them that the practice violated Local 241’s bylaws despite 

the fact the practice occurred during the time when Local 241 was under ATU’s trusteeship. 

Further, the defendants claimed that William Foley, a trustee of Local 241 at one time and the one 

who oversaw Local 241’s finances, improperly directed hundreds of thousands of dollars to a 

company he worked with thereby defrauding Local 241.

¶ 27 In their breach of fiduciary duty claim, the defendants asserted that ATU owed a fiduciary 

duty to Local 241, but breached that duty when it appointed trustees who defrauded Local 241 by, 

among other actions, mismanaging the local pension fund, telling Local 241’s executive board to 

implement the pay structure that it later claimed was improper, and failing to advise the new 

executive board that the past practice of the Christmas gratuities was a violation of Local 241’s 

bylaws. As a result, the defendants alleged that ATU’s breach of its fiduciary duty caused them to 
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be suspended from the executive board, fined and restricted from participating in future elections.

In their breach of contract claim, the defendants claimed that ATU breached its constitution when 

it failed to follow its written procedures when initiating charges against them and during the 

appeals process. 

¶ 28 ATU moved to dismiss the defendants’ affirmative defenses and counterclaims. Following 

briefing on ATU’s motion, the circuit court dismissed the defendants’ affirmative defenses, but 

allowed their counterclaims to proceed. In September 2019, during a case management conference, 

the circuit court entered an order setting the case for trial in January 2020 and ordered all discovery 

to be completed by November 27, 2019. Additionally, the court set a briefing schedule on ATU 

and Local 241’s motion for summary judgment, which required the briefing to be completed by 

the end of October 2019 and set the matter for a ruling in early November 2019. 

¶ 29 In October 2019, the defendants responded to ATU and Local 241’s motion for summary 

judgment, highlighting what they perceived to be disputed material facts. First, the defendants 

argued that there was a dispute as to whether ATU adhered to its constitution when bringing the 

charges against them. To this end, the defendants observed that ATU’s constitution required at 

least two signatures from ATU officers when bringing charges, but noted that the charging letters 

only contained one signature. Second, the defendants argued that there was a dispute as to whether 

ATU amended its constitution to remove an accused’s right to an attorney just prior to bringing 

forth the charges against them. According to the defendants, when they left their positions as 

executive board members, ATU’s constitution entitled them to an attorney during a disciplinary

hearing, whereas the version of ATU’s constitution in effect when the hearing occurred did not. 

Third, they argued that there was a dispute as to whether Richmond, the ATU-appointed trustee of 

Local 241, told them to implement the pay structure they were later charged and fined for 
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implementing. Fourth, they argued that there was a dispute as to whether they were advised of 

their appeal rights. Additionally, the defendants observed that Stevens was not even a board 

member when the hourly pay rate increase for board members occurred and thus, he could not 

have possibly contributed to the allegedly improper decision to increase board member pay. 

¶ 30 Based on these alleged disputed facts, the defendants contended there were genuine issues 

of material fact as to whether ATU was entitled to the fines it imposed against them. Although the 

defendants acknowledged the well-established principle of law that the judiciary is hesitant to 

intervene into the affairs of unions, they asserted that if the hearing ATU conducted was 

improperly brought and unfairly administered, these were issues that required judicial intervention. 

Thereafter, ATU and Local 241 filed a reply in support of their motion for summary judgment. 

¶ 31 Also in October 2019, the defendants propounded their first set of interrogatories and 

requests for production upon ATU. By November 5, 2019, while ATU and Local 241’s motion for 

summary judgment was pending, the defendants had not received any responses to their discovery 

requests. As such, their counsel e-mailed ATU’s counsel pursuant to Illinois Supreme Court Rule 

201(k) (eff. July 1, 2014) to discuss his lack of a response and request the scheduling of depositions 

in the case. ATU’s counsel did not respond, so two days later, the defendants filed a motion to 

compel responses to their discovery requests, arguing that ATU’s failure to timely respond had 

impeded their right to conduct discovery and properly prepare for trial. 

¶ 32 On November 18, 2019, the circuit court entered an order granting ATU and Local 241’s 

motion for summary judgment on the breach of contract claims in their complaint. After reviewing 

the principles of law on motions for summary judgment and the intersection of judicial intervention 

of union disciplinary matters, the court noted some indisputable facts of the case. The court 

observed that there was no dispute that a union constitution and bylaws constituted a contract 
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between the organization and its members, and that individuals who become members of a union 

were bound by all the rules and regulations of the union, including disciplinary provisions. The 

court observed that ATU’s constitution provided the mechanisms for disciplining instances of 

malfeasance, and to that end, Garland found that the executive board members’ compensation was 

improperly inflated. According to the court, regardless of if the defendants were the cause of that 

improper inflation or were innocent beneficiaries, once ATU’s general executive board adopted 

Garland’s findings and demanded repayment, the defendants were required to make restitution. 

The court concluded that their failure to do so constituted a breach of contract.

¶ 33 Additionally, the circuit court highlighted the various matters that the defendants claimed

were genuine issues of material fact that would preclude summary judgment, but found they could 

not defeat ATU and Local 241’s right to summary judgment. For one, the court observed that 

ATU’s constitution contained a two-signature requirement for charges, but asserted such a 

challenge should have been made to Garland. Second, the court noted the alleged issue of which 

version of ATU’s constitution was applicable, but found that the defendants failed to provide a 

transcript of the hearing to show they had been denied the right to counsel. Lastly, the court 

remarked that the only issue that the defendants presented that “potentially had merit” was about 

their appeal rights, but the court highlighted that one of the correspondences sent to the defendants 

explicitly informed them that “ ‘[a]ny such decision may be appealed to the International 

Convention.’ ” Overall, the court found that the defendants were given notice of the allegations 

against them, apprised of their rights and provided a sufficient opportunity to present their defenses 

at the hearing. The court added that, “[a]bsent procedural irregularities, this Court gives high 

deference to the findings of Garland who was in the position to weigh the credibility of the 

witnesses and the evidence.” As such, the court concluded that the defendants failed to make the 
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required payments on the fines assessed against them, and ATU and Local 241 were entitled to 

summary judgment on the claims in their complaint. 

¶ 34 On the same date, the circuit court ordered ATU to respond to the defendants’ written

discovery requests by November 22, 2019, with respect to the defendants’ counterclaims, and that 

the court would hold a case management conference three days after the deadline. 

¶ 35 On November 21, 2019, ATU sent the defendants the discovery. The defendants’ counsel 

e-mailed ATU’s counsel and raised various issues with the discovery response, including that ATU 

was allegedly withholding documents on the basis of privilege without providing a privilege log, 

allegedly withholding documents on the basis of “ ‘relevance,’ ” which was not a proper basis 

under the discovery rules, and allegedly withholding documents in the possession of Local 241. 

ATU’s counsel did not respond. Two days later, the defendants’ counsel e-mailed ATU’s counsel 

pursuant to Rule 201(k) to resolve these issues, but ATU’s counsel did not respond.

¶ 36 On November 25, 2019, the defendants filed an emergency motion to compel responses to 

their discovery requests, to permit the taking of depositions and to extend the deadline to complete 

discovery. In the motion, the defendants detailed the history of the case, in particular as it related 

to discovery and argued that ATU had repeatedly failed to comply with numerous court orders 

regarding scheduling and case management. Additionally, they contended that ATU’s delay in 

providing timely responses to their discovery requests had impeded their right to conduct full 

discovery into their claims, which would irreparably harm their case. The circuit court granted the 

motion and required ATU to produce a privilege log, meeting minutes and communications from 

2003 until July 2014, payroll summary reports and sheets, financial reports concerning Local 241, 

and any documents used in bringing the charges against the defendants within approximately a 
No. 1-20-0380 

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week. The court further extended the discovery deadline to mid-January and required ATU to 

advise about the availability of certain individuals for depositions.

¶ 37 Around this time, ATU and Local 241 moved for summary judgment on their breach of 

contract claims against Harris, Seaton and Taylor—who were in default at the time ATU and Local 

brought their initial motion for summary judgment—on the same basis as in their motion for 

summary judgment against the other defendants. Consistent with the circuit court’s prior order 

granting summary judgment, it granted ATU and Local 241’s motion.

¶ 38 On December 3, 2019, the defendants sent Local 241 a subpoena by certified mail 

requesting: “All meeting minutes (board and general membership) from 2003 until present;” “All 

payroll summary records for [them] during the time they served any role on the board of the local 

union;” “All financial reports (including Financial Secretary/Treasurer reports) sent by the local 

union to the international union (ATU) from 2003 until present;” and “All 

notices/memos/communications sent by [ATU] to Local 241 from 2003 until present.” The 

subpoena set a return date of 10 days afterward.

¶ 39 On December 5, 2019, ATU moved for summary judgment on the defendants’ 

counterclaims. ATU argued that the defendants’ first counterclaim—breach of fiduciary duty—

was essentially them attempting to relitigate what occurred during the hearing or what they could 

have argued to Garland, which was improper to do in the circuit court. Additionally, ATU asserted 

that this counterclaim was unsupported by the facts and only allegedly affected three of the five 

charges of which they were found guilty. Regarding the defendants’ second counterclaim—breach 

of contract—ATU contended that it was barred by res judicata because any issue based on how 

the charges were brought against them could have, and should have, been brought during the 

hearing. Moreover, ATU posited that the uncontested facts showed that ATU followed its 
No. 1-20-0380 

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constitution throughout the disciplinary process. ATU supported its motion with substantial 

portions of the record from the disciplinary proceeding, including the various correspondences 

sent to the defendants and the hearing transcript, as well as an affidavit from Daniel Smith, ATU’s 

assistant general counsel, who averred to the assertions made in the motion. Additionally, ATU 

included an excerpt from section 12.5 of its constitution along with the cover page from its 

constitution that showed the excerpt from was the 2013 version of its constitution. 

¶ 40 A week later, the defendants filed a motion to reconsider the circuit court’s grant of 

summary judgment in favor of ATU and Local 241 based on new evidence that allegedly showed 

that ATU denied them a fair hearing and repeatedly acted outside the scope of its constitution. 

That new evidence included the transcript of the hearing that ATU had attached to its motion for 

summary judgment on the defendants’ counterclaims. According to the defendants, the hearing, in 

conjunction with an amendment to ATU’s constitution in 2013, showed that they were entitled to 

an attorney at the hearing and repeatedly raised objections to their lack of one. Based on the hearing 

transcript and the various objections raised by the defendants to the process, they claimed this was 

evidence of a genuine issue of material fact that should have precluded the entry of summary 

judgment in favor of ATU and Local 241. The defendants further posited that the Christmas 

gratuities were a process implemented by ATU itself, not them, and the pay raises were in 

accordance with the bylaws and approved by ATU. They noted that ATU still had not produced 

minutes from the meeting in January 2006 where the allegedly improper vote to increase their 

compensation occurred. Lastly, the defendants highlighted additional new evidence that they 

alleged supported their claims that the investigation and charges against them were merely a 

pretext to retaliate against them for their investigation of William Foley, a former Local 241 
No. 1-20-0380 

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trustee, their opposition to ATU’s current international president and to scapegoat them “due to 

fears” of a takeover of Local 241 by the International Brotherhood of Teamsters.

¶ 41 The defendants attached to their motion various documents. One was an affidavit from 

Darrell Jefferson, the former president and business agent of Local 241, who had been a board 

member from January 2000 until September 2011. Jefferson averred that the practice of paying the 

Christmas gratuities took place before 2003 and was re-implemented in 2004 while Local 241 was 

under a trusteeship led by Rodney Richmond. The defendants also included an affidavit from 

Michael Taylor, one of the defendants, who averred that, in January 2006, the executive board

voted to increase board members’ pay “because the local union had negotiated several pay issues 

for the general membership, but those pay increases were never updated to be applied to local 

union board members.” Taylor stated that Richmond advised the board members that they could 

not “underpay” themselves and that they “had to update[]” their pay “to catch up with previously 

collectively bargained for pay increases for the general membership.” The defendants further 

attached a document titled “Report to the Executive Board From the Special Committee on Zero 

Access,” which was an investigatory document about a company called Zero Access with which 

William Foley was associated and which Local 241 apparently used to purchase various 

equipment. The investigation apparently uncovered various billing issues with Zero Access, 

including that its owner stated the company received $245,000 from Local 241 yet Local 241’s 

records showed disbursements to Zero Access of approximately $446,000. The special committee 

on Zero Access of Local 241’s executive board recommended that “charges be brought against 

[Foley] at both the international level and the criminal level.”

¶ 42 Additionally, the defendants attached excerpts from the transcript of their hearing. For

instance, during the hearing, Lonnie Walker, one of the defendant’s, asked Garland, the hearing 
No. 1-20-0380 

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officer, if the hearing was proceeding in accordance with the “old constitution or the new 

constitution?” Daniel Smith, ATU’s assistant general counsel, said that events that “happened 

under the 2010 constitution or the 2007 constitution or the 2004 constitution we’ll [sic] be 

governed by those constitutions.” Nathaniel Scurlock, a defendant who is not a party to this appeal, 

responded by asking “shouldn’t we have representation as an attorney, not representing ourselves, 

as the old constitution states.” Garland replied, “I understand. And your objection will be duly 

noted.” Thereafter, Scurlock asserted his Weingarten rights and began arguing that those rights 

were being violated by not allowing him to have his attorney present for the hearing while ATU 

had one for itself.

2 Michael Taylor, one of the defendants, also spoke up and asserted that this case 

should have proceeded according to section 12.6 of ATU’s constitution because the charges 

originated from a trusteeship. In addition, another portion of the transcript showed that an unnamed 

defendant stated: “A member asked you was I entitled – or were we entitled to an attorney. And I 

think the question he answered was no.” The unnamed defendant highlighted section 12.5 from 

ATU’s constitution in 2004 where there was a right to counsel and remarked “[b]ut all we heard 

him say we weren’t entitled to it.” It is unclear if the unnamed defendant was referring to Garland 

or Smith. Lastly, the transcript showed that Walker made an opening statement where he posited 

that the hearing was unfair and unjust based on his Weingarten rights. 

¶ 43 Additionally, the defendants attached as an exhibit excerpts purportedly from section 12.5 

of the 2004, 2007 and 2010 ATU constitutions and as a separate exhibit excerpts purportedly from 

section 12.5 of the 2013 ATU constitution. As stated in the excerpts purportedly from the 2004, 

2

 In NLRB v. J. Weingarten, Inc. 420 U.S. 251, 267 (1975), the United States Supreme Court held 

that an employer violated the National Labor Relations Act (29 U.S.C. § 158(a)(1)) by denying an 

employee’s request for union representation during an investigatory interview where that employee 

reasonably believed that the interview could result in disciplinary action. 
No. 1-20-0380 

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2007 and 2010 ATU constitutions, individuals charged by ATU with malfeasance or nonfeasance 

“shall have the right to be represented by counsel.” As stated in the excerpt purportedly from the 

2013 ATU constitution, individuals charged by ATU with malfeasance or nonfeasance “shall have 

the right to be represented by counsel any member not serving on the trial board, as hearing officer, 

or on the [general executive board of ATU].” (Emphasis added.)

¶ 44 Thereafter, the circuit court entered a briefing schedule on ATU’s motion for summary 

judgment on the defendants’ counterclaims and the defendants’ motion to reconsider. As part of 

the order, the court stated that the “deposition of [Garland] is to go forward keeping in mind 

‘deliberative privilege.’ ” 

¶ 45 On December 18, 2019, Local 241 filed a motion to quash the defendants’ third-party 

subpoena. Local 241 claimed that the defendants served the subpoena on them on December 9, 

2019, with a return date for only a few days later and therefore argued the subpoena was untimely 

served under various Illinois Supreme Court rules. Local 241 further argued that the subpoena 

sought documents that were more readily available to ATU, and as such, the request was a fishing 

expedition on a non-party. Additionally, Local 241 contended that the requested documents were 

irrelevant to the claims and the request was vague, overbroad and unduly burdensome. Local 241 

attached an affidavit from Toi Bowers, its financial and recording secretary-treasurer at the time, 

who averred that the local affiliate received the subpoena on December 9, 2019.

¶ 46 The defendants filed a response to Local 241’s motion, arguing why the subpoena was 

timely, why the request for documents was not vague, overbroad and unduly burdensome, and why 

the documents were relevant. The defendants claimed that records from Local 241 were necessary 

because they would show how ATU “scapegoated” them in order to retaliate against them for 

complaining about the misappropriation of funds by trustees, which ATU in part had used to help 
No. 1-20-0380 

- 23 - 

defend against a “raid” by the International Brotherhood of Teamsters of local affiliates, including 

Local 241, and for opposing the candidacy of ATU’s international president. Additionally, the 

defendants contended that ATU and Local 241 had not complied with discovery requests in good 

faith throughout the litigation and requested an evidentiary hearing on the issue of good faith. 

¶ 47 On January 2, 2020, the circuit court entered and continued Local 241’s motion to quash

“until the court decides on pending motions to reconsider and for summary judgment on the 

counterclaims.” The court added that Local 241 was “not obligated to produce documents during 

this time. Remaining discovery is to go forward, with the deadline still set for January 15, 2020.” 

¶ 48 That same day, ATU and Local 241 responded to the defendants’ motion to reconsider, 

arguing that Illinois Supreme Court Rule 191(b) (Jan. 4, 2013) set forth a procedure for responding 

to summary judgment motions when a party claimed that it was missing critical information in 

discovery. To this end, ATU and Local 241 argued that the defendants did not follow this 

procedure and their motion was essentially “a request for a second bite at the apple.” 

¶ 49 The next day, the defendants responded to ATU’s motion for summary judgment on their 

counterclaims. Initially, they argued that it would be improper to grant summary judgment to ATU 

while discovery was still open and while ATU and Local 241 had repeatedly engaged in dilatory 

tactics in order to obstruct discovery. The defendants next argued that the evidence produced by 

them supported their claims that ATU arbitrarily charged them to cover up their own misconduct 

and “lay blame at a weaker party’s door.” The defendants highlighted various evidence it asserted 

raised serious questions of material fact regarding the intentions and actions of ATU officials. 

First, it highlighted evidence that William Foley, an ATU trustee defrauded Local 241 with either 

“the assistance and/or tacit permission of ATU officials” and was able to defraud the union and 

misallocate hundreds of thousands of dollars. Despite this, the defendants noted that Foley had 
No. 1-20-0380 

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never been charged, removed from office or disciplined. Second, the defendants pointed to alleged 

evidence that ATU, through Richmond, had negotiated the pay increases with which the 

defendants were later charged for implementing. Given this and other evidence, the defendants 

claimed that they had clearly demonstrated with evidence that ATU failed to act in good faith and 

thus, their claims that ATU’s procedures did not comport with due process were sufficient to 

preclude summary judgment. 

¶ 50 A week later, the defendants filed an emergency motion to compel responses to certain 

questions posed during Garland’s deposition for which allegedly improper privileges were asserted 

as well as to request an evidentiary hearing on the remaining discovery issues. In the motion, the 

defendants argued that Garland improperly asserted an attorney-client privilege and the 

“deliberative process privilege” throughout the deposition. The defendants later re-filed the motion 

as a regular motion per the circuit court’s instruction.

¶ 51 Subsequently, the defendants filed a reply in support of their motion to reconsider, in part 

arguing that there was no record that the defendants were ever served with the charges against 

them. They provided their own affidavits, wherein many of them averred to never receiving the 

charging document signed by Perez and Barnes, and being denied their right to counsel at the 

hearing. Additionally, one affidavit was titled “Illinois Supreme Court Rule 191(b) Affidavit of 

Michael Taylor,” wherein Taylor requested the circuit court stay judgment on the pending motions 

until the transcripts from the depositions of Tyler Home, the internal auditor for ATU in 2011, and 

Perez, one of the trustees who investigated Local 241’s finances that led to the defendants being 

charged, were available and until the affidavit of Marvella Singleton, the administrative assistant 

to the financial secretary-treasurer of Local 241 at the times relevant to the facts of this case, was 

obtained. 
No. 1-20-0380 

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¶ 52 ATU then filed its reply in support of its motion for summary judgment on the defendants’ 

counterclaims. Two days later, the defendants filed a motion to supplement the record in support 

of their motion to reconsider with the depositions from Home and Perez as well the affidavit from

Singleton. In Home’s deposition, he testified about various aspects of ATU, including an 

agreement entered into between the CTA, ATU, Local 241 and ATU Local 308—another local 

affiliate of ATU—which was titled “Amendment to Section 3.9(b) of the Retirement Plan for 

Chicago Transit Authority Employees.” This agreement was signed by Rodney Richmond in 

January 2005 as trustee for Local 241. In Perez’s deposition, he testified about his appointment as 

trustee of Local 241 and that he had heard “rumors” of misconduct committed by William Foley, 

an ATU trustee, but he was unaware if ATU ever took actions based on those rumors. Additionally, 

Perez testified that he was present at the defendants’ 2014 hearing, but he did not remember having 

any “sidebars” with Garland and ATU’s counsel outside the presence of the defendants. Perez also 

remarked that, at various points, the International Brotherhood of Teamsters had attempted to 

“raid” ATU of its local affiliates. 

¶ 53 Lastly, in Singleton’s affidavit, she averred that the Christmas gratuities were standard 

practice while she worked for Local 241 and had been approved by a general membership vote. 

She also stated that the executive board investigated Foley and a company called Zero Access, and 

reported findings to ATU, but she was unaware if Foley had ever been punished. In fact, she 

remarked that, to her knowledge, Foley was allowed to retire with full benefits. Singleton also 

averred that, around 2006, Local 241 moved offices and during this transition, “many documents 

were being shredded.” 
No. 1-20-0380 

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¶ 54 On January 23, 2020, the circuit court entered and continued the defendants’ motion to 

compel and for an evidentiary hearing “until after the court rules on remaining dispositive 

motions.” 

¶ 55 Four days later, the circuit court entered a written order on the pending motions. The circuit 

court first addressed the defendants’ motion to reconsider. The court highlighted that the 

defendants had moved for reconsideration based on new evidence, in particular multiple versions 

of section 12.5 of ATU’s constitution, which detailed the internal disciplinary procedures. 

However, the court found the versions of ATU’s constitution to be without foundation and 

unauthenticated where “[t]he snippets provided [were] lumped together as one exhibit with no 

indication of what they [were] excerpted from or even what year [was] applicable.” The court 

found the attachments were not admissible evidence it could consider. But “[e]ven if” it could 

consider the evidence, nothing attached to their motion established that they were denied their right 

to counsel. The court highlighted the excerpts from the hearing transcript, including the discussion 

of counsel and Weingarten rights, but found there was “no evidence in the record that defendants 

were denied their right to have a union representative in with them” or that “any member was 

denied the opportunity to have their own attorney present.”

¶ 56 The circuit court then observed that the remaining part of the defendants’ motion to 

reconsider went to the merits of the underlying hearing and Garland’s findings. To this end, the 

court noted the affidavits from Jefferson and Taylor did not raise any new evidence and that past 

practices were not a shield to a finding of impropriety by Garland. The court concluded that, 

regardless of how the defendants obtained improper compensation, “the failure on the part of these 

defendants to return the amounts of ill gotten money is a breach of contract.” Furthermore, the 

court observed that the defendants had also provided evidence that the International Brotherhood 
No. 1-20-0380 

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of Teamsters was attempting a takeover of ATU’s affiliates and that the actions against the 

defendants were part of a retaliation scheme by ATU. However, the court did not find this 

argument appropriate for its review. Consequently, the court denied the defendants’ motion to 

reconsider.

¶ 57 The circuit court next addressed ATU’s motion for summary judgment on the defendants’ 

counterclaims. Concerning their claim for breach of fiduciary duty, the court observed that the 

defendants alleged that ATU owed Local 241 a fiduciary duty, but found “no allegations and no 

supporting evidence [ATU] owed a fiduciary duty to these defendants specifically.” Additionally, 

the court highlighted the various evidence that the defendants presented to prove an elaborate 

scheme to retaliate against them, but asserted that none of it “raise[d] issues of fact relating to a 

breach of fiduciary duty.” The court again reiterated that, regardless of what the defendants alleged 

about past practice and the advice from others, “none of that absolve[d] defendants of their 

obligation to return the funds after the malfeasance was discovered.” Lastly, concerning the 

defendants’ claim for breach of contract, the court found nothing in the record supported their 

contention that they were denied due process by ATU for allegedly failing to follow its written 

procedures when initiating the charges against them. The court noted that the United States 

Department of Labor also had found no merit to their claims of inadequate due process. 

Consequently, the court granted ATU’s motion for summary judgment on the defendants’ 

counterclaims. Lastly, based on its previous two rulings, the court found the remaining pending 

motions moot. 

¶ 58 Thereafter, the defendants timely appealed various rulings from the circuit court.

¶ 59 II. ANALYSIS

¶ 60 A. Summary Judgment 
No. 1-20-0380 

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¶ 61 The defendants raise various claims of error concerning the circuit court’s rulings in this 

case. We first address their contentions related to the summary judgment motions entered in favor 

of ATU and Local 241 on their claims against the defendants and on the motion for summary 

judgment entered in favor of ATU on the defendants’ counterclaims.

¶ 62 Summary judgment is appropriate where the pleadings, depositions, affidavits, and 

admissions on file establish that there is no genuine issue of material fact and that the moving party 

is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016); Carney v. Union 

Pacific R.R. Co., 2016 IL 118984, ¶ 25. In determining whether a genuine issue of material fact 

exists, the court strictly construes the pleadings, depositions, and affidavits against the moving 

party and liberally in favor of the nonmoving party. Carney, 2016 IL 118984, ¶ 25. A genuine 

issue of material fact exists “where the material facts are disputed or, if the material facts are 

undisputed, reasonable persons might draw different inferences from the undisputed facts.”

Mashal v. City of Chicago, 2012 IL 112341, ¶ 49. We review summary judgment rulings de novo. 

Carney, 2016 IL 118984, ¶ 25. 

¶ 63 In addition to summary judgment, this case involves a question about judicial intervention 

of union proceedings. The constitution and bylaws of a union are a contract. Diamond v. United 

Food & Commercial Workers Union Local 881, 329 Ill. App. 3d 519, 524 (2002). And any 

individual who joins a union agrees, either expressly or impliedly, to follow all the rules and 

regulations adopted by the union. Id. “The constitution or bylaws of a union may, and often do, 

contain provisions for the resolution of disputes that occur within the organization.” Id. And, 

pursuant to such resolutions, unions may sue in state court to collect fines imposed on union 

members. Local 165, International Brotherhood of Electrical Workers, AFL-CIO v. Bradley, 149 

Ill. App. 3d 193, 202 (1986). But the judiciary’s review of such resolutions is unique. This is 
No. 1-20-0380 

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because unions are unincorporated associations. 1550 MP Road LLC v. Teamsters Local Union 

No. 700, 2019 IL 123046, ¶ 25. Long ago, our supreme court remarked in relation to 

unincorporated associations that: “Courts will not interfere to control the enforcement of by-laws 

of such associations, but they will be left free to enforce their own rules and regulations by such 

means and with such penalties as they may see proper to adopt for their government.” Engel v. 

Walsh, 258 Ill. 98, 103 (1913). Similarly, our supreme court has concluded that, generally, “courts 

in the absence of circumstances of unfairness will not intervene in questions involving the 

enforcement of bylaws and matters of discipline in voluntary associations.” American Federation 

of Technical Engineers, Local 144 v. La Jeunesse, 63 Ill. 2d 263, 268 (1976). Our supreme court 

has re-affirmed this principle of law in Poris v. Lake Holiday Property Owners Ass’n, 2013 IL 

113907, ¶ 31, and our appellate courts have done so as well in Diamond, 329 Ill. App. 3d at 524-

25, Finn v. Beverly Country Club, 289 Ill. App. 3d 565, 568 (1997) and Blackshire v. N.A.A.C.P., 

Inc., 285 Ill. App. 3d 561, 564-65 (1996).

¶ 64 Given the judiciary’s hesitancy to intervene in the rules and regulations of unincorporated 

associations, “courts will interfere in the internal affairs of an unincorporated association only in 

narrow circumstances.” Diamond, 329 Ill. App. 3d at 525. To this end, we only have the “power 

to consider the basic fairness of disciplinary actions by voluntary unincorporated associations.” 

Bradley, 149 Ill. App. 3d at 210. As such, “[j]udicial review is limited to whether an exercise of 

power by the association conformed with its own internal rules or whether an association violated 

a member’s fundamental right to a fair hearing” (Diamond, 329 Ill. App. 3d at 525) or if there

“mistake, fraud, collusion or arbitrariness” in the process. Poris, 2013 IL 113907, ¶ 31. However, 

at all times, we must give deference to a union to interpret its own constitution or bylaws. Diamond, 

329 Ill. App. 3d at 526. 
No. 1-20-0380 

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¶ 65 1. ATU and Local 241’s Breach of Contract Claims 

¶ 66 The defendants first contend that the circuit court erred in granting ATU and Local 241’s 

motion for summary judgment on their breach of contract claims where the court erred in its 

application of the law to the facts. 

¶ 67 In ATU and Local 241’s complaint, they asserted claims of breach of contract against each 

of the defendants. In order to establish a breach of contract, the plaintiff must prove “the existence 

of a valid and enforceable contract, performance by the plaintiff, breach of the contract by the 

defendant, and resultant damages or injury to the plaintiff.” Razor Capital v. Antaal, 2012 IL App 

(2d) 110904, ¶ 30. As we have discussed above, any individual who joins a union agrees, either 

expressly or impliedly, to follow all the rules and regulations adopted by the union in a constitution 

or bylaws. Diamond, 329 Ill. App. 3d at 524. As such, the constitution and bylaws of a union are 

a contract (id.), and thus, in this case, a valid and enforceable contract existed between the parties. 

¶ 68 Additionally, it is clear that the defendants breached their contracts with ATU and Local 

241 when they did not pay their fines that were imposed following the hearing. Notwithstanding 

the issue of the amendment to ATU’s constitution, in all versions that have been referred to in this 

appeal, section 12.5 has provided that ATU’s general executive board may fine members for 

violations and that decision is final unless appealed to the International Convention. In this case, 

Ernest Jones, Seaton, Taylor, Walker and Harris unsuccessfully appealed to the International 

Convention while Hodges, Venita Jones, Reyes and Stevens did not exercise their appeal rights. 

The fines imposed against the former defendants became final once the International Convention 

denied their appeals, and the fines against the latter defendants became final once ATU’s general 

executive board adopted Garland’s findings. But, regardless, all of the fines became final, and 

when the defendants refused to comply and pay their fines, as required by ATU’s constitution, 
No. 1-20-0380 

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they breached their contracts with ATU and Local 241. And there were undoubtedly damages as 

a result of their breaches because ATU and Local 241 had not been paid the money the defendants 

owed as a result of the fines, which, themselves, were based on improper compensation the 

defendants received over the course of several years. 

¶ 69 The critical issue for ATU and Local 241’s breach of contract claims is whether they 

performed their obligations under the contract. And in arguing that they did not, the defendants 

raised before the circuit court various manners in which ATU allegedly did not comply with its 

constitution such as the two-signature requirement for the charging documents, the lack of notice 

of their right to appeal and the denial of an attorney at the hearing. Concerning the two-signature 

requirement, section 12.5 of ATU’s constitution consistently required “[c]harges against any 

member alleging violations of the provisions of this section or of any provisions of [ATU’s 

constitution] may be filed with [the general executive board] upon the signature of at least two 

officers.” In the circuit court, the defendants pointed to the letters from ATU’s international 

president, which had the subject of “Charges Under International Constitution and General Laws 

Section 12.5, Discipline of L.U. Members,” and noted that only one signature appeared in this 

correspondence. Yet, in July 2014, the trustees of Local 241 sent a signed charging document to 

ATU’s general executive board for each defendant detailing that he or she had engaged in six 

counts of both malfeasance and nonfeasance while in office as well as serious acts of financial 

malpractice and administrative mismanagement, all allegedly in violation of ATU’s constitution, 

Local 241’s bylaws, the policies of ATU and generally accepted practices. In concluding the 

charging document, the trustees requested that the general executive board authorize the issuance 

and service upon the defendants of a complaint detailing the charges and directing a hearing to be 

held in the matter. There has been no dispute ever that Barnes and Perez, Local 241’s trustees,
No. 1-20-0380 

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were officers of ATU, and indeed, in the defendants’ joint affirmative defenses and counterclaims, 

they acknowledged that Barnes was an officer of ATU and that Perez was ATU’s international 

vice president. As such, there was no genuine issue of material fact that the defendants were 

charged appropriately. Although the charging documents from the trustees to the general executive 

board were not in the record at the time the circuit court granted ATU and Local 241’s motion for 

summary judgment—they were included in the record later during the litigation—we may affirm 

the court’s judgment on any basis supported by the record. See Redland Insurance Co. v. Lerner, 

356 Ill. App. 3d 94, 98 (2005) (“[W]e may affirm a grant of summary judgment on any basis 

appearing in the record, regardless of whether the lower courts relied upon that ground.”).

¶ 70 At all relevant times, section 12.5 of ATU’s constitution further stated that “[a] copy of 

such charges shall be served upon the member or members accused of violations.” And to that end, 

on appeal, the defendants claim that there was a genuine issue of material fact as to whether they 

were properly served with a copy of the charges. However, the defendants did not raise this claim 

in the circuit court in opposition of ATU and Local 241’s motion for summary judgment. The only 

argument the defendants specifically made with regard to being properly charged was in relation 

to the two-signature requirement. Indeed, in granting ATU and Local 241’s motion for summary 

judgment, the circuit court only addressed that argument. By not making the argument regarding 

the service of the charges on them in opposition of ATU and Local 241’s motion for summary 

judgment, the defendants deprived the circuit court an opportunity to address the argument when 

ruling on the motion. Consequently, any argument about the service of the charges is forfeited

insofar as it relates to the propriety of the circuit court granting ATU and Local 241’s motion for 

summary judgment on their claims. See BMO Harris Bank, N.A. v. Malarz, 2021 IL App (2d) 

190984, ¶ 18. Regardless, even if the defendants were not served with the actual charging 
No. 1-20-0380 

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document signed by Perez and Barnes, the defendants were nonetheless sent correspondences from 

ATU’s international president that detailed the exact charges verbatim as contained in the charging 

document signed by Perez and Barnes. “[D]isciplinary proceedings conducted by voluntary 

associations do not require strict compliance with judicial standards of due process. Instead, the 

accused member is entitled to a hearing before ‘fair and impartial tribunal.’ ” Butler v. USA 

Volleyball, 285 Ill. App. 3d 578, 583 (1996) (quoting Van Daele v. Vinci, 51 Ill. 2d 389, 394-95 

(1972)). And a fair and impartial tribunal requires merely sufficient notice of the charges. Id. There 

can be no question that the correspondences sent by ATU’s international president that detailed 

the exact charges verbatim as contained in the charging document signed by Perez and Barnes 

provided these defendants sufficient notice of the charges.

¶ 71 Concerning the defendants’ appeal rights, the record is replete with references to the 

defendants being informed of the right to appeal. For one, in the correspondences sent by ATU’s 

international president to each defendant that notified them of the charges against them, ATU’s 

international president informed them of the disciplinary procedures, including that: the hearing 

officer would issue a report to ATU’s general executive board; ATU’s general executive board 

would ultimately determine whether each defendant was guilty; and ATU’s general executive 

board could impose various penalties. These correspondences further informed the defendants that 

“[a]ny such decision may be appealed to the International Convention.” Additionally, after ATU’s 

general executive board adopted Garland’s findings and recommendations, ATU’s international 

president notified each defendant of his or her offenses, including that he or she had “the right to 

appeal these findings and penalties to the [International] Convention and have the case fully 

considered and acted upon by the Convention.” Although these post-hearing correspondences were 

not in the record when the circuit court granted ATU and Local 241’s motion for summary 
No. 1-20-0380 

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judgment—they were included in the record later during the litigation—we may affirm the court’s 

judgment on any basis supported by the record. See Lerner, 356 Ill. App. 3d at 98. Furthermore, 

five of the defendants did actually appeal to the International Convention. As such, there was no 

genuine issue of material fact that the defendants were informed of their appeal rights.

¶ 72 With regard to the defendants’ being denied an attorney at the hearing, as the circuit court 

correctly noted, there was nothing in the record at the time to substantiate this claim by the 

defendants except the mere conclusions by them that they were denied the right to counsel. The 

scope of our review of a motion for summary judgment “is limited to the record as it existed when 

the circuit court ruled” (Campos v. Campos, 342 Ill. App. 3d 1053, 1066 (2003)), except, as noted, 

that we may affirm the court’s judgment on any basis supported by the record. See Lerner, 356 Ill. 

App. 3d at 98. Moreover, when “determining whether factual issues exist for purposes of a 

summary judgment motion, the court must ignore personal conclusions, opinions and self-serving 

statements and consider only facts admissible in evidence.” Reuben H. Donnelley Corp. v. Krasny 

Supply Co., 227 Ill. App. 3d 414, 421 (1991). As such, based on the record when the circuit court 

ruled on ATU and Local 241’s motion for summary judgment, there was no genuine issue of 

material fact as to whether the defendants were denied their alleged right to an attorney at the 

hearing. 

¶ 73 Lastly, in claiming there were genuine issues of material fact that precluded summary 

judgment for ATU and Local 241, as the circuit court observed, the defendants made various 

factual allegations that were extraneous to the issue at hand of whether they failed to pay their 

fines, as required by their union contracts. For example, they asserted that there was a genuine 

issue of material fact as to whether Rodney Richmond, an ATU-appointed trustee, told them to 

implement the pay structure they were later charged and fined for implementing. And, on appeal, 
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the defendants raise an additional one, such as a claim that there was a genuine issue of material 

fact as regarding the motivation behind the charges. These claims are not relevant to ATU and 

Local 241’s breach of contract claims where the defendants were bound by contracts that gave 

ATU the ability to police its own and impose penalties for violations of its constitution and local 

affiliate’s bylaws. These extraneous claims speak only to the underlying allegations against them, 

but in this litigation, the underlying allegations are irrelevant because the defendants were found 

to have engaged in behavior by a tribunal that Illinois courts recognize, and the defendants 

themselves contractually recognized, was empowered to make such findings.

¶ 74 In light of the foregoing, there was no genuine issues of material fact that ATU and Local 

241 performed their obligations under the contracts with the defendants. Notably, the circuit court 

was the third tribunal to uphold the findings of Garland, as adopted by ATU’s general executive 

board, and to find fairness in the disciplinary process. As noted, in Harris’ appeal to the 

International Convention, which was consolidated with the other appeal, he argued about his lack 

of counsel during the hearing, but the International Convention nevertheless denied the appeal. 

Additionally, the United States Department of Labor dismissed the complaint of Ernest Jones and 

Walker, finding, in part, that the hearing complied with ATU’s constitution and was fair. Because 

there was no genuine issue of material fact that ATU and Local 241 performed their obligations 

under the contracts, the defendants breached their contracts (see Razor Capital, 2012 IL App (2d) 

110904, ¶ 30), resulting in ATU and Local 241 being entitled to judgment as a matter of law. 

Consequently, the circuit court properly granted summary judgment to ATU and Local 241 on 

their breach of contract claims. 

¶ 75 2. Motion to Reconsider Grant of Summary Judgment 
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¶ 76 The defendants next contend that the circuit court erred in denying their motion to 

reconsider its grant of summary judgment in favor of ATU and Local 241 on their breach of 

contract claims. “The purpose of a motion to reconsider is to bring the court’s attention to (1) 

newly discovered evidence not available at the time of the hearing, (2) changes in the law, or (3) 

errors in the court’s previous application of the existing law.” Peregrine Financial Group, Inc. v. 

TradeMaven, L.L.C., 391 Ill. App. 3d 309, 320 (2009). The circuit court has discretion in whether 

to grant a motion to reconsider, and we will not reverse its ruling unless the court has abused its 

discretion. Robidoux v. Oliphant, 201 Ill. 2d 324, 347 (2002). This standard “is the most deferential 

standard of review” (In re D.T., 212 Ill. 2d 347, 356 (2004)), and an abuse of discretion only occurs 

when the circuit court’s ruling was unreasonable, arbitrary, or fanciful, or where no reasonable 

person would adopt the same view. Blum v. Koster, 235 Ill. 2d 21, 36 (2009). In determining 

whether an abuse of discretion has occurred, the question is not whether the appellate court would 

have made the same decision as the circuit court (State Farm Fire & Casualty Co. v. John, 2017 

IL App (2d) 170193, ¶ 18), but, rather, whether the court’s ruling “exceeded the bounds of reason” 

or was “against logic.” Vanderhoof v. Berk, 2015 IL App (1st) 132927, ¶ 84.

¶ 77 In arguing that the circuit court erred in denying their motion to reconsider, the defendants 

first argue that the court violated their procedural due process rights by sua sponte ruling that some 

of proffered new evidence—the various purported versions of ATU’s constitution—was 

inadmissible, thereby depriving them of an opportunity to be heard. “In addressing a motion for 

summary judgment, a [circuit] court may not consider evidence or testimony that would not be 

admissible at trial.” Garland v. Sybaris Clubs International Inc., 2019 IL App (1st) 180682, ¶ 37. 

As such, in motions for summary judgment, “[b]asic rules of evidence require that a party lay a 

proper foundation for the introduction of a document into evidence.” People ex rel. Madigan v. 
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Kole, 2012 IL App (2d) 110245, ¶ 47. “To properly authenticate a document, a party must present 

evidence that demonstrates that the document is what the party claims it to be.” Id. “Without proper 

authentication and identification of the document, the proponent of the evidence has not provided 

a proper foundation and the document cannot be admitted into evidence.” Anderson v. Human 

Rights Comm’n, 314 Ill. App. 3d 35, 42 (2000). Thus, in considering a motion to reconsider a grant 

of summary judgment based on new evidence, the circuit court has a responsibility to ensure that 

the proffered new evidence is admissible, just as it does when presented with a normal motion for 

summary judgment. Here, the court found several pieces of alleged new evidence to be

inadmissible for a lack of foundation and authentication. There is nothing improper about the 

court’s action in this regard, and in fact, it was the court’s responsibility to ensure that the proffered

new evidence was admissible, and it was the defendants’ burden to authenticate and provide 

foundation for their proffered new evidence. Consequently, the circuit court did not violate the 

defendants’ procedural due process rights by finding the proffered new evidence to be 

inadmissible. 

¶ 78 The defendants further argue that the circuit court erred by not considering the proffered 

new evidence where ATU and Local 241 did not object to the admissibility of the evidence or file 

a motion to strike the evidence. Rather, according to the defendants, the court essentially objected 

on ATU and Local 241’s behalf.

¶ 79 The defendants cite no case law that the circuit court cannot justify its denial of a motion 

based on reasoning unargued by the opposing party. Nevertheless, to support their argument, the 

defendants rely on People v. Wiggins, 2015 IL App (1st) 133033 and Hajicek v. Nauvoo 

Restoration, Inc., 2014 IL App (3d) 121013. In Wiggins, 2015 IL App (1st) 133033, ¶ 44, during 

a jury trial, the trial court made two objections on behalf of the State and sustained both objections 
No. 1-20-0380 

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as well as completed the State’s direct examination of the victim in the case. Additionally, the 

court referred to the State’s redirect examination of the victim as “ ‘what we just did’ ” and told 

the defendant’s attorney, in front of the jury, to “ ‘watch yourself, man.’ ” Id. This court found that 

the trial court “abandoned his role as neutral arbiter” by raising the objections on the State’s behalf

and completing the State’s examination of the victim. Id. This court further found that these actions

when interposed with the trial court’s various remarks “indicated to the jury a preference for the 

prosecution.” Id. ¶ 50. And, as a result of the trial court’s conduct, this court found that the 

defendant was “deprive[d] *** of a fair trial.” Id. ¶ 53. Nothing like what occurred in Wiggins

occurred in this case where the circuit court merely used its own reasoning to deny the defendants’

motion to reconsider. Wiggins is therefore inapposite. Similarly, Hajicek is inapposite. Hajicek, 

2014 IL App (3d) 121013. ¶ 13, involved a plaintiff forfeiting arguments on appeal that he did not 

make below in attempting to have the circuit court’s grant of a motion to reconsider overturned. 

Hajicek does not involve any principle related to a circuit court relying on a reason not argued by 

an opposing party. We find nothing improper about the circuit court’s actions in regard to the 

defendants’ motion to reconsider. 

¶ 80 Next, the defendants argue that the circuit court did not consider the proffered new 

evidence despite using “[e]ven if” language in its order denying the motion to reconsider. As 

discussed, the court found some of the proffered new evidence lacking in foundation and 

unauthenticated, but remarked that, “[e]ven if” it could consider the evidence, the evidence failed 

to advance the defendants’ case. The defendants posit that the court “tethered the evidences’ 

alleged inadmissibility to its alternative analysis, thus undermining the court’s assertion of viewing 

the evidence ‘even if’ it was admissible.” As a result, the defendants claim the court erred in not 

giving the evidence that was presented without objection its full probative effect. First, within this 
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argument, the defendants cite no case law supporting their argument, meaning we could find the 

argument forfeited under Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020), which

“requires parties to cite relevant authority in support of their arguments.” In re Estate of Walsh, 

2012 IL App (2d) 110938, ¶ 37. “[W]hen a party does not offer meaningful authority in support of 

his argument, that argument is forfeited.” Id. But beyond this critical deficiency in the defendants’ 

argument, we find no evidence that the circuit court did not give the proffered new evidence its 

full probative effect within its “[e]ven if” analysis. Consequently, the circuit court did not abuse 

its discretion in denying the defendants’ motion to reconsider. 

¶ 81 3. Summary Judgment on The Defendants’ Counterclaims

¶ 82 The defendants next contend that the circuit court erred in granting ATU summary 

judgment on their counterclaims because it misapprehended the summary judgment standard and 

there were genuine issues of material fact that should have precluded summary judgment. 

¶ 83 Initially, as noted by ATU, because we review the circuit court’s ruling on a summary 

judgment motion de novo (see Carney, 2016 IL 118984, ¶ 25), the court’s alleged misapprehension 

of the summary judgment standard is irrelevant to our review. See Morningside North Apartments 

I, LLC v. 1000 N. LaSalle, LLC, 2017 IL App (1st) 162274, ¶ 10 (“It is the [circuit] court’s 

judgment and not its reasoning that is on appeal.”). We therefore need not address the defendants’ 

various arguments as to how the circuit court allegedly misapprehended the standard for summary 

judgment and instead, we may just determine if judgment was properly granted.

¶ 84 i. Breach of Fiduciary Duty Counterclaim 

¶ 85 In the defendants’ counterclaims, they first raised a claim for breach of fiduciary duty by 

ATU toward Local 241 based on various actions. And based on those alleged actions, the 

defendants claimed they were injured when they were suspended from the executive board, fined, 
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and restricted from participating in future elections. In a breach of fiduciary claim, a 

counterplaintiff must allege and ultimately prove: “(1) that a fiduciary duty exists; (2) that the 

fiduciary duty was breached; and (3) that such breach proximately caused the injury of which the 

party complains.” Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 69.

¶ 86 We briefly note that it is not clear that ATU owed a fiduciary duty to Local 241. Concerning 

the existence of a fiduciary duty, one “exists where there is special confidence reposed in one who, 

in equity and good conscience, is bound to act in good faith and with due regard to the interests of 

the one reposing the confidence.” Kolze v. Fordtran, 412 Ill. 461, 468 (1952). A fiduciary duty 

may exist in one of two ways, first as a matter of law such as an attorney-client relationship or a 

principal-agent relationship. Ransom v. A.B. Dick Co., 289 Ill. App. 3d 663, 672 (1997). 

Alternatively, one may exist due to “the special circumstances of the parties’ relationship, where 

one party places trust in another so that the latter gains superiority and influence over the former.” 

Id. Where the fiduciary duty does not exist as a matter of law, the party asserting its existence must 

establish the duty by clear and convincing evidence. Id. The defendants have never claimed during 

the litigation that ATU owed Local 241 a fiduciary duty as a matter of law and indeed, in their 

reply brief, they do not argue as such. While section 501(a) of the Labor-Management Act (29 

U.S.C. § 501(a) (2012)) imposes a fiduciary duty upon “officers, agents, shop stewards, and other 

representatives of a labor organization” to the organization and its members, this is not the same 

as the labor union itself owing a fiduciary duty to its local affiliate, as the defendants have alleged. 

Thus, to prove a fiduciary duty existed, the defendants had to put forth evidence that ATU owed 

Local 241 a fiduciary duty based on the special circumstances of the parties’ relationship. See 

Ransom, 289 Ill. App. 3d at 672. But in their counterclaim, the defendants merely alleged in 

conclusory fashion that a fiduciary duty existed. It is true that, in ATU’s motion for summary 
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judgment, it did not argue for summary judgment based on the lack of a fiduciary duty, although 

ATU did deny the existence of one in its answer to the defendants’ counterclaims. As pointed out 

by ATU, “an appellee may raise an issue on review that was not presented to the trial court in order 

to sustain the judgment, as long as the factual basis for the issue was before the trial court.” DOD 

Technologies v. Mesirow Insurance Services, Inc., 381 Ill. App. 3d 1042, 1050 (2008). We need 

not decide whether a sufficient factual basis was before the circuit court to decide if ATU owed 

Local 241 a fiduciary duty. This is because even more problematic for the defendants is that there 

was no genuine issue of material fact that ATU’s alleged breaches of its alleged fiduciary duty to 

Local 241 did not proximately cause their complained-of injuries. 

¶ 87 As discussed, the defendants claimed they were injured when they were suspended from 

the executive board, fined, and restricted from participating in future elections. This punishment 

was the result of ATU’s general executive board adopting Garland’s recommendation based on 

guilty findings on five of the six charges brought against them. Although the defendants were 

found guilty of five charges, because the punishments on multiple charges were made concurrent

to one another, the only two charges that truly mattered for purposes of their fines, expulsions and 

suspensions were charges five and six—those involving their acceptance of overpayments and 

failure to repay the overpayments upon demand by ATU’s international president. That is to say, 

even if ATU owed Local 241 a fiduciary duty and ATU breached that fiduciary duty in the various 

alleged ways, nothing would absolve the defendants of their obligation to repay the overpayments 

after the various malfeasance had been uncovered. And even assuming that the defendants were 

not part of the malfeasance and merely innocent beneficiaries, they still had an obligation to repay 

the overpayments based on receiving what was not theirs in the first place in light of Garland’s 

findings that were adopted by ATU’s general executive board. Indeed, the amount of their fines 
No. 1-20-0380 

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were commensurate to the amount of their overpayments. As such, the alleged actions by ATU did 

not proximately cause the defendants’ complained-of injuries. See Rivera v. Garcia, 401 Ill. App. 

3d 602, 610 (2010) (proximate causation involves two analyses, first, cause-in-fact, and whether

there was “reasonable certainty that a wrongdoer’s conduct caused the damages involved” and 

second, the legal cause, and “whether the ultimate injury was reasonably foreseeable”). Although 

the circuit court did not expressly find that there was no genuine issue of material fact on the issue 

of proximate causation, the court essentially did so when it found that, despite the myriad of 

allegations from the defendants, “none of that absolve[d] defendants of their obligation to return 

the funds after the malfeasance was discovered.” In this manner, the court tacitly found that ATU 

was entitled to summary judgment based, in part, on the lack of proximate causation on the 

defendants’ breach of fiduciary duty counterclaim. See City of Chicago v. Beretta U.S.A. Corp., 

213 Ill. 2d 351, 395-96 (2004) (“[T]he lack of proximate cause may be determined by the court as 

a matter of law where the facts alleged do not sufficiently demonstrate both cause in fact and legal 

cause”). Consequently, the circuit court properly granted ATU summary judgment on the 

defendants’ breach of fiduciary duty counterclaim.

¶ 88 ii. Breach of Contract Counterclaim

¶ 89 The defendants’ second counterclaim was for breach of contract against ATU for failing to 

follow its written procedures when initiating the charges against them and during the appeals 

process. In order to establish a breach of contract, the counterplaintiff must prove “the existence 

of a valid and enforceable contract, performance by the [counter]plaintiff, breach of the contract 

by the [counter]defendant, and resultant damages or injury to the [counter]plaintiff.” Razor 

Capital, 2012 IL App (2d) 110904, ¶ 30. But as discussed concerning ATU and Local 241’s breach 

of contract claim, ATU performed its contractual obligation during the disciplinary process when 
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it initiated the charges and informed the defendants of their appeal rights. Furthermore, to the 

extent that the defendants argue on appeal that summary judgment was not appropriate on their 

breach of contract counterclaim because they were not afforded their right to counsel at the hearing, 

we note that this allegation was not even present in their breach of contract counterclaim. Their 

breach of contract counterclaim merely alleged: “Plaintiffs breached the International Constitution 

and General Laws when it failed to follow its written procedures regarding the initiation of charges 

against an officer” and when “adhering to the process of appeal.” As such, they claimed that ATU 

“breached the contract regarding the charges and appeals process both substantively and 

procedurally.” 

¶ 90 But even if the lack of counsel allegation were presented in their counterclaim for breach 

of contract, we would find that it has no merit in this litigation. Initially, as the circuit court noted, 

much of the proof of the amendment to section 12.5 of ATU’s constitution was through 

unauthenticated exhibits presented by the defendants in their motion to reconsider. But let us 

assume arguendo that, in 2013, ATU amended its constitution with regard to an individual’s right 

to counsel during a disciplinary hearing from having the right to be represented by counsel to only 

having the right to be represented by any member not serving on the trial board, as hearing officer, 

or on ATU’s general executive board. During the beginning of the hearing, the right to counsel 

undoubtedly arose, initially from Nathaniel Scurlock—who as we noted was a defendant in the 

case, but not a party to this appeal—who asked “shouldn’t we have representation as an attorney, 

not representing ourselves, as the old constitution states.” And in response, Garland replied, “I 

understand. And your objection will be duly noted.” Thereafter, Scurlock asserted his Weingarten 

rights and began arguing that those rights were being violated. Later, an unnamed defendant also 

stated: “A member asked you was I entitled – or were we entitled to an attorney. And I think the 
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question he answered was no.” The unnamed defendant highlighted section 12.5 from ATU’s 

constitution in 2004 where there was a right to counsel and remarked “[b]ut all we heard him say 

we weren’t entitled to it.” And then, in the opening statement of Lonnie Walker—one of the parties 

to this appeal—he stated the hearing was unfair and unjust based on his Weingarten rights 

¶ 91 The only defendant that is a party to this appeal who spoke during this discussion of the 

right to counsel was Walker, and he only referred to his Weingarten rights being violated, which 

as we noted earlier only involve union representation at investigatory interviews. Walker never 

specifically asserted his right to counsel as it related to ATU’s constitution. Simply put, although 

Garland noted Scurlock’s assertion of his right to counsel under ATU’s constitution, none of the 

defendants who are parties to this appeal did so, and thus, it cannot be said that they were denied 

a right they never asserted. As such, ATU did not breach its contract with the defendants. 

Consequently, there was no genuine issue of material fact on the defendants’ breach of contract 

counterclaim, and the circuit court correctly granted summary judgment to ATU.

¶ 92 The defendants have raised several issues with the motivation behind the charges from 

ATU, whether the pay raises were condoned or even encouraged by ATU itself, whether the 

Christmas gratuities were an established past practice that they did not create and whether they 

even had knowledge of the improper compensation, but none of these issues have particular 

relevance to the claims raised by ATU and Local 241 in their complaint and the defendants’ 

counterclaims. As the circuit court noted, the crux of the matter was that, following a hearing, the 

defendants were found to have received improper compensation, and as a result, they were required 

to return the overcompensation, suspended from the board and barred from holding future office 

for five years. As we have repeatedly found, the defendants’ hearing complied with ATU’s 

constitution, and there can be no doubt that the hearing was also fundamentally fair. 
No. 1-20-0380 

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“[D]isciplinary proceedings conducted by voluntary associations do not require strict compliance 

with judicial standards of due process. Instead, the accused member is entitled to a hearing before 

‘fair and impartial tribunal.’ ” Butler, 285 Ill. App. 3d at 583 (quoting Van Daele, 51 Ill. 2d at 394-

95). A fair and impartial tribunal requires sufficient notice of the charges, an opportunity for the 

accused to defend him or herself, and evidence to be presented in support the charges against the 

accused. See id.

¶ 93 In this case, as demonstrated by the record, the defendants were notified of the charges 

against them, notified well in advance of when the hearing was scheduled to take place, given an 

opportunity to present evidence, examine and cross-examine witnesses, and given an opportunity 

to defend themselves against the charges. The disciplinary process conducted by ATU conformed 

with the requirements of due process for an unincorporated association, a conclusion that four 

tribunals have now found: the International Convention on appeal, the United States Department 

of Labor, the circuit court and now this court. The defendants attempt to frame the issues of the 

motivation behind the charges from ATU, whether the pay raises were condoned or even 

encouraged by ATU itself, whether the Christmas gratuities was an established past practice that 

they did not create and whether they even had knowledge of the alleged improprieties as fraud and 

collusion. But the bottom line is that, once ATU’s general executive board adopted Garland’s 

findings and recommendations and they were upheld on appeal, the defendants were obligated to 

pay their penalties, which were the exact amounts of their overpayments. Nothing about a 

fundamentally fair hearing that complied with ATU’s constitution, in which a hearing officer 

found the defendants had been improperly overcompensated raises concerns about fraud and 

collusion. And therefore, the circuit court correctly decided all of the dispositive motions in this 

case. 
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¶ 94 B. Discovery Issues

¶ 95 We now turn to the discovery issues raised by the defendants. The circuit court is given 

“great latitude in rulings on discovery matters” (D.C. v. S.A., 178 Ill. 2d 551, 559 (1997)), and 

generally, orders concerning discovery issues will not be reversed absent an abuse of discretion. 

Wisniewski v. Kownacki, 221 Ill. 2d 453, 457 (2006). However, in this case, after denying the 

defendants’ motion to reconsider and granting ATU’s motion for summary judgment on the 

defendants’ counterclaims, the circuit court found all pending motions, most of which involved 

discovery issues, moot. Thus, for most of the defendants’ discovery-related claims of error, there 

are no rulings to actually review with deference. 

¶ 96 1. Court’s Failure to Stay Ruling on Dispositive Motions

¶ 97 We begin with the defendants’ first discovery-related claim of error that the circuit court 

erred when it failed to stay its ruling on ATU and Local 241’s motions for summary judgment 

until more discovery had been completed. The defendants posit that this allowed ATU to stonewall 

its responses to discovery and then materially benefit from their alleged discovery abuses when 

the court disposed of the summary judgment motions without all discovery having been completed. 

As noted by ATU, the defendants never filed a motion to stay the briefing on its and Local 241’s 

motions for summary judgment on their complaint’s claims. Had the defendants done so, there 

would have been a ruling from the circuit court to review. But because they did not file such a 

motion, there is no ruling that we can review with regard to this claim. And as such, it is axiomatic 

that we cannot find the court erred based on a nonexistent ruling and an unsupported legal claim 

that the court should have sua sponte stayed its ruling. 
No. 1-20-0380 

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¶ 98 Additionally, as noted by ATU, there is mechanism for parties opposing a motion for 

summary judgment when that party is allegedly missing critical discovery: Illinois Supreme Court 

Rule 191(b) (eff. Jan. 4, 2013). According to Rule 191(b):

“If the affidavit of either party contains a statement that any of the material facts 

which ought to appear in the affidavit are known only to persons whose affidavits 

affiant is unable to procure by reason of hostility or otherwise, naming the persons 

and showing why their affidavits cannot be procured and what affiant believes they 

would testify to if sworn, with his reasons for his belief, the court may make any 

order that may be just, either granting or refusing the motion, or granting a 

continuance to permit affidavits to be obtained, or for submitting interrogatories to 

or taking the depositions of any of the persons so named, or for producing 

documents in the possession of those persons or furnishing sworn copies thereof. 

The interrogatories and sworn answers thereto, depositions so taken, and sworn 

copies of documents so furnished, shall be considered with the affidavits in passing 

upon the motion.” Id.

¶ 99 Rule 191(b) “provide[s] an avenue of relief for defendants *** who contend that crucial 

evidence necessary to oppose the motion is in the hands of the movant or other adverse parties, 

who have not responded to a discovery request for that evidence.” Parkway Bank & Triust Co. v. 

Korzen, 2013 IL App (1st) 130380, ¶ 47. Rule 191(b) exists, in part, because the Code of Civil 

Procedure allows a plaintiff and defendant to move for summary judgment early in the 

proceedings. See 735 ILCS 5/2-1005 (West 2016). For a plaintiff, it may move for summary 

judgment any time after the defendant has made an appearance or the time with which the 

defendant was required to appear has expired. 735 ILCS 5/2-1005(a) (West 2016). For a defendant, 

it may move for summary judgment “at any time.” 735 ILCS 5/2-1005(b) (West 2016). As such, 

it is incumbent upon the nonmoving party to rely on Rule 191(b) if it needs to conduct discovery 

or additional discovery in conjunction with responding to a motion for summary judgment. “A 

party who fails to follow the procedures set out in Rule 191(b) until after summary judgment is 

granted cannot complain of an inability to conduct discovery before summary judgment was 
No. 1-20-0380 

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ordered.” Rush v. Simon & Mazian, Inc., 159 Ill. App. 3d 1081, 1085 (1987); see also Korzen, 

2013 IL App (1st) 130380, ¶ 48 (“Parties who fail to file Rule 191(b) affidavits cannot complain 

that the ‘discovery process was insufficient or limited.’ ”) (quoting Kane v. Motorola, Inc., 335 Ill. 

App. 3d 214, 225 (2002)). Indeed, the nonmoving party’s obligation to follow Rule 191(b) still 

holds even if that party has discovery requests outstanding or the moving party has failed to timely 

comply with the nonmoving party’s discovery requests. See Wooding v. L & J Press Corp., 99 Ill. 

App. 3d 382, 387 (1981) (rejecting the nonmoving party’s attempt to “rely upon [the moving 

party’s] tactic of failing to comply with discovery as an excuse for her own failure to comply with 

Rule 191”).

¶ 100 In this case, the defendants did not file a Rule 191(b) affidavit before the circuit court 

entered summary judgment in favor of ATU and Local 241 on their claims. They therefore cannot 

complain of their inability to conduct further discovery before the circuit court entered summary 

judgment in favor of ATU and Local 241. See Korzen, 2013 IL App (1st) 130380, ¶ 48; Rush, 159 

Ill. App. 3d at 1085. These facts make the cases relied upon by the defendants distinguishable. In 

Dobbs v. Safeway Ins. Co., 66 Ill. App. 3d 400, 401-03 (1978), the appellate court found the circuit 

court abused its discretion when it denied a plaintiff’s request to vacate an order granting summary 

judgment for the defendant so that the plaintiff could have additional time to conduct discovery. 

Here, as noted, the defendants never requested the circuit court stay ruling on ATU and Local 

241’s motions for summary judgment on their claims. Furthermore, in Jiotis v. Burr Ridge Park 

District, 2014 IL App (2d) 121293, ¶ 30, the appellate court excused a plaintiff from strict 

compliance with Rule 191(b) under the circumstances of the case because the defendants had filed 
No. 1-20-0380 

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a Celotex-type motion for summary judgment.3 But in that case, the plaintiff did file a Rule 191(b) 

affidavit, but the affidavit simply was not in strict compliance with the rule. Id. ¶¶ 11, 30. Here, as 

noted, the defendants never filed any Rule 191(b) affidavit in conjunction with their response to 

ATU and Local 241’s motions for summary judgment on their claims. 

¶ 101 The first time the defendants mentioned Rule 191(b) was in conjunction with their motion 

to reconsider—on January 13, 2020, three months after they responded to ATU and Local 241’s 

motion for summary judgment on their claims and two weeks before the circuit court ruled on the 

remaining motions. In that motion to reconsider, the defendants included an affidavit titled “Illinois 

Supreme Court Rule 191(b) Affidavit of Michael Taylor,” wherein Taylor requested the circuit 

court stay judgment on the pending motions—at that time, the defendants’ motion to reconsider 

and ATU’s motion for summary judgment on the defendants’ counterclaims—until the transcripts 

from the depositions of Tyler Home and Javier Perez were available and until the affidavit of 

Marvella Singleton was obtained. Similarly, three days before that, the defendants made a request 

to extend fact discovery, and enter and continue the pending dispositive motions until discovery 

was complete as part of their motion to compel. Although the court did not specifically address 

these requests, we find no error by the court in not allowing the additional discovery. As it relates 

to the defendants’ motion to reconsider, there were no genuine issues of material facts as it related 

to ATU and Local 241’s summary judgment on their breach of contract claims, and as such, 

additional discovery would not have produced anything to change their entitlement to summary 

judgment as a matter of law. Similarly, there were no genuine issues of material facts as it related 

3 A Celotex-type motion for summary judgment, which derives its name from Celotex Corp. v. 

Catrett, 477 U.S. 317 (1986), refers to a motion for summary judgment where the moving party asserts

that the nonmoving party’s evidence is insufficient to avoid judgment as a matter of law. Jiotis, 2014 IL 

App (2d) 121293, ¶ 25.
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to ATU’s motion for summary judgment on the defendants’ breach of contract and breach of 

fiduciary duty counterclaims, and as such, additional discovery would not have produced anything 

to change ATU’s entitlement to summary judgment as a matter of law. We reiterate that, once 

ATU’s general executive board adopted Garland’s findings and recommendations and they were 

upheld on appeal, the defendants were obligated to pay their penalties. Nothing about conducting 

additional discovery would have changed the fact that these defendants were required to repay 

their overcompensation—a fine imposed following a hearing that four different tribunals have 

found was fundamentally fair and where ATU followed its constitution. Because of this fact, the 

present case is unlike either Jiotis, 2014 IL App (2d) 121293 or Dobbs, 66 Ill. App. 3d. And 

consequently, the circuit court did not error when it failed to stay its rulings on ATU and Local 

241’s motions for summary judgment until more discovery had been completed.

¶ 102 2. Circuit Court Denying Motion To Compel as Moot

¶ 103 The defendants next argue that the circuit court erred when found as moot their motion to 

compel documents and their request for an evidentiary hearing that was filed in January 2020. As 

discussed above, by this point in the litigation, there was no genuine issue of material fact on ATU 

and Local 241’s breach of contract claims and the defendants’ breach of contract and breach of 

fiduciary duty counterclaims. “An issue is moot when its resolution could not have any practical 

effect on the existing controversy.” LaSalle National Bank, N.A. v. City of Lake Forest, 297 Ill. 

App. 3d 36, 43 (1998). Stated otherwise, “if an actual controversy no longer exists between the 

parties and the interests and rights of the parties are no longer in controversy,” the issue is moot. 

Id. No amount of additional discovery would have changed the conclusions that there was no 

genuine issue of material fact on ATU and Local 241’s breach of contract claims and the 

defendants’ breach of contract and breach of fiduciary duty counterclaims. Consequently, the 
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circuit court did not error when it found as moot the defendants’ motion to compel documents and 

their request for an evidentiary hearing. 

¶ 104 3. Circuit Court Denying Motion To Supplement as Moot

¶ 105 The defendants next argue that the circuit court erred when it found as moot their motion 

to supplement the record with evidence referenced in Taylor’s Rule 191(b) affidavit. The 

defendants posit the evidence contained in Home and Perez’s depositions as well as Singleton’s 

affidavit would have shown there were genuine issues of material facts about whether ATU 

properly charged them and whether the hearing was conducted fairly. As noted previously, judicial 

review of union proceedings is narrow. “[C]ourts in the absence of circumstances of unfairness 

will not intervene in questions involving the enforcement of bylaws and matters of discipline in 

voluntary associations.” La Jeunesse, 63 Ill. 2d at 268. To this end, “[j]udicial review is limited to 

whether an exercise of power by the association conformed with its own internal rules or whether 

an association violated a member’s fundamental right to a fair hearing” (Diamond, 329 Ill. App. 

3d at 525), or if there was “mistake, fraud, collusion or arbitrariness” in the process. Poris, 2013 

IL 113907, ¶ 31.

¶ 106 The issues raised by the Home and Perez’s depositions as well as Singleton’s affidavit 

simply do not show any genuine issue of material fact about whether ATU followed its constitution 

in disciplining the defendants nor does it show that their hearing was unfair. In Home’s deposition, 

he discussed details related to Rodney Richmond, who the defendants have alleged told them to 

implement the pay structure they were later charged and fined for implementing. In Perez’s 

deposition, he discussed William Foley and alleged misconduct that he committed as a trustee and 

the attempted raid of Local 241 by the International Brotherhood of Teamsters. And in Singleton’s 

affidavit, she discussed that the Christmas gratuities were standard practice while she worked for 
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Local 241 and had been approved by a general membership vote. She also discussed Foley and his 

alleged misconduct as well as documents being shredded by Local 241 when they moved offices. 

¶ 107 Fairness of disciplinary proceedings conducted by unincorporated associations require 

only sufficient notice of the charges, the accused’s opportunity to defend him or herself and some 

evidence be presented to support the alleged charges. Butler, 285 Ill. App. 3d at 583. This 

undoubtedly occurred in this case notwithstanding the evidence presented in Home and Perez’s 

depositions as well as Singleton’s affidavit, a conclusion we reiterate that has been made by not 

only this court, but multiple other tribunals. And likewise this evidence does not show there was 

“mistake, fraud, collusion or arbitrariness” in the process (Poris, 2013 IL 113907, ¶ 31) where, 

following a fundamentally fair hearing, the defendants were fined an amount they refused to pay 

back based on being overcompensated. All of the evidence and resulting issues that the defendants 

wanted the circuit court to consider go far beyond what our case law allows in terms of judicial 

review of union disciplinary proceedings. Consequently, the circuit court did not error when it 

found as moot the defendants’ motion to supplement the record. See LaSalle National, 297 Ill. 

App. 3d at 43.

¶ 108 4. Privileges During Garland’s Deposition 

¶ 109 The defendants next argue that the circuit court improperly allowed Garland, the hearing 

officer, to assert the attorney-client and deliberative process privilege during his deposition. 

Following the deposition, the defendants filed a motion to compel responses to those questions, a 

motion the court ultimately found as moot. First, we examine Garland’s (by way of ATU’s 

attorney) invocation of the attorney-client privilege. In arguing that Garland improperly invoked

the attorney-client privilege, the defendants frame the issue as referencing Garland’s 

communications with Daniel Smith, ATU’s assistant general counsel, during the September 2014 
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hearing. Smith also represented ATU during Garland’s deposition, and a close reading of the 

deposition reveals that the defendants’ attorney asked Garland about his conversations with Smith 

in preparation for the deposition. 

¶ 110 At Garland’s deposition, he testified that he was currently ATU’s international vice 

president. Early in the deposition, the defendants’ attorney asked Garland “if [he] spoke with 

anybody in preparation for this deposition” to which Garland answered affirmatively and noted it 

was Smith. The defendants’ attorney then asked Garland who he believed Smith was representing 

at the deposition to which Garland responded that it was his “understanding that Mr. Smith [was]

representing the ATU.” The defendants’ attorney subsequently asked: “So what did Mr. Smith ask 

you or talk to you about?” At this point, both Smith and another attorney for ATU objected based 

on the attorney-client privilege. This questioning makes it clear that the defendants’ attorney was 

asking Garland about the conversation he had with Smith in preparation for the deposition, not any 

specific conversations they had regarding the 2014 hearing. 

¶ 111 “Where legal advice of any kind is sought from a lawyer in his or her capacity as a lawyer, 

the communications relating to that purpose, made in confidence by the client, are protected from 

disclosure by the client or lawyer, unless the protection is waived.” Center Partners, Ltd. v. Growth 

Head GP, LLC, 2012 IL 113107, ¶ 30. The attorney-client privilege is critical to the proper 

functioning of the judicial system because it promotes and encourages candid conversations 

between a lawyer and his client by eliminating the fear that the disclosure of those communications 

could be compelled. Id. ¶¶ 30-31. Illinois has “a strong policy of encouraging disclosure, with an 

eye toward ascertaining that truth which is essential to the proper disposition of a lawsuit.” Waste 

Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178, 190 (1991). As 

such, because the privilege bars discovery to “relevant and material facts it is an exception to the 
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general duty to disclose and is interpreted narrowly.” Adler v. Greenfield, 2013 IL App (1st) 

121066, ¶ 41. To determine whether an employee’s conversation with an attorney is protected 

within the corporate setting, Illinois uses the control-group test. Claxton v. Thackston, 201 Ill. App. 

3d 232, 235 (1990). “Under the control-group test, there are two tiers of corporate employees 

whose communications with the corporation’s attorney are protected. The first tier consists of the 

decision-makers, or top management. The second tier consists of those employees who directly 

advise top management, and upon whose opinions and advice the decision-makers 

rely.” Mlynarski v. Rush Presbyterian-St. Luke’s Medical Center, 213 Ill. App. 3d 427, 431 (1991). 

¶ 112 The circuit court did not address the attorney-client privilege issue specifically because it 

ultimately found all pending motions were moot when it denied the defendants’ motion to 

reconsider and granted summary judgment to ATU on the defendants’ counterclaims. The 

defendants have not cited any case law showing the control-group test is applicable for 

unincorporated associations, which unions constitute. See 1550 MP Road, 2019 IL 123046, ¶ 25. 

But assuming arguendo that the control-group test does apply, Garland testified that he was ATU’s 

international vice president at the time of his deposition, and he invoked the attorney-client 

privilege in regard to his conversations with Smith, one of ATU’s attorneys, in preparation for the 

deposition. We fail to see how Garland, ATU’s international vice president, would not constitute 

a decision-maker or top management of ATU for purposes of the control-group test. See 

Mlynarski, 213 Ill. App. 3d at 431. Consequently, because the defendants only argue that Garland

could not invoke the attorney-client privilege based on the control-group test, we find that, to the 

extent the test would apply under the circumstances of this case, he properly invoked the privilege. 

¶ 113 We next turn to the defendants’ argument over Garland invoking the deliberative process 

privilege. In December 2019, the circuit court entered a briefing schedule on ATU’s motion for 
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summary judgment on the defendants’ counterclaims and the defendants’ motion to reconsider. As 

part of the order, the court stated that the deposition of Garland was to proceed “keeping in mind 

‘deliberative privilege.’ ” And so, during Garland’s deposition, he invoked the privilege multiple 

times. In total, Garland invoked the privilege in response to: (1) a question about who at ATU gave 

him advice on how to conduct the defendants’ hearing; (2) a question about if anyone reviewed 

his report detailing his findings and recommendations before he issued it; (3) a question concerning 

what weight Garland gave to a document that purportedly referenced William Foley and Zero 

Access; (4) a question about whether Garland deferred to Smith’s “knowledge of legal proceedings 

and knowledge of the law” during the hearing; (5) a question concerning why Gus Stevens was 

found guilty of malfeasance despite the fact he was not a member of the executive board when the 

allegedly improper compensation was voted on; (6) a question about who instructed Garland on 

the recommendations to make; and (7) a question concerning how he decided to impose each fine 

upon each member. The defendants also claim on appeal that Garland refused to answer other 

questions by asserting the deliberative process privilege, but that is not true.

¶ 114 In another question, the defendants’ attorney asked Garland about whether he voted for the 

president of ATU, who was the person who had appointed him as hearing officer. However, one 

of ATU’s attorneys objected to this question based on relevance, not the deliberative process 

privilege and the other ATU attorney noted the election was “secret” under Labor-Management 

Act (29 U.S.C. §§ 401-531 (2012)). In another question, the defendants’ attorney asked Garland 

about his compensation from ATU to which ATU’s attorney objected again based on relevancy 

grounds. Furthermore, in two questions, although ATU’s attorney objected based on the 

deliberative process privilege, Garland did in fact answer the questions. When the defendants’ 

attorney questioned Garland about whether he found it “strange” that ATU did not produce 
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minutes from a meeting where the vote to allegedly improperly increase pay occurred, Garland 

answered that he “did not” before ATU’s attorney could object. Similarly, when the defendants’ 

attorney asked Garland why there was a “three-year delay in bringing charges against” the 

defendants, at first ATU’s attorney objected based on deliberative process privilege. But the 

defendants’ attorney asked the same question mere moments later to which Garland responded 

that he “did not” know why there was a delay in bringing the charges against the defendants. 

¶ 115 With the questions that Garland did actually invoke the deliberative process privilege 

clarified, we note that such a privilege exists in federal court. People ex rel. Birkett v. City of 

Chicago, 184 Ill. 2d 521, 526 (1998). The privilege developed to encompass “ ‘intra-governmental 

documents reflecting advisory opinions, recommendations and deliberations comprising part of a 

process by which governmental decisions and policies are formulated.’ ” Id. (quoting Carl Zeiss 

Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966), aff’d, 384 F.2d 979 (D.C. 

Cir. 1967)). The purpose of the federal privilege is to encourage “the frank exchange of advice and 

opinions in the course of governmental decisionmaking and policymaking.” Id. at 527. In Illinois, 

there is a deliberative process clause contained in the Freedom of Information Act, which exempts 

“[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions 

are expressed, or policies or actions are formulated” from disclosure. 5 ILCS 140/7(1)(f) (West 

2016); see Day v. City of Chicago, 388 Ill. App. 3d 70, 79 (2009) (noting that section 7(1)(f) of 

the Freedom of Information Act is equivalent to the federal deliberative process privilege). But, in 

People ex rel. Birkett, 184 Ill. 2d at 533, when our supreme court was asked to adopt a deliberative 

process privilege for parties in litigation generally, the court declined to do so. 

¶ 116 However, in Thomas v. Page, 361 Ill. App. 3d 484, 491 (2005), this court concluded that 

“there exists a judicial deliberation privilege protecting confidential communications between 
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judges and between judge’s and the court’s staff made in the performance of their official duties 

and relating to official court business.” Despite the existence of the judicial deliberation privilege, 

privileges in general “are strongly disfavored because they operate to ‘exclude relevant evidence 

and thus work against the truthseeking function of legal proceedings.’ ” People ex rel. Birkett, 184 

Ill. 2d at 527 (quoting People v. Sanders, 99 Ill. 2d 262, 270 (1983)). And indeed, our supreme 

court has consistently held that “the extension of an existing privilege or establishment of a new 

one is a matter best deferred to the legislature.” Id. at 528. As such, although the judicial 

deliberation privilege exists, we cannot extend the privilege to cover the deliberations of Garland

in this case. See Fox Moraine, LLC v. United City of Yorkville, 2011 IL App (2d) 100017, ¶ 72 

(declining to extend the judicial deliberation privilege from Thomas to bodies “acting in a quasijudicial and quasi-legislative role”).

¶ 117 Yet, this court has also noted that circuit courts “should be hesitant to allow discovery of 

arbitral processes,” and it is generally improper to allow parties to “delve[] into the arbitrators’ 

deliberation process.” Hawrelak v. Marine Bank, Springfield, 316 Ill. App. 3d 175, 182 (2000). In 

Hawrelak, the employment agreement of a bank president mandated arbitration for any 

compensation disputes that arose after his termination. Id. at 177. After the president resigned from 

the bank, he submitted multiple compensation issues for arbitration. Id. A three-member arbitration 

panel heard the case, reached a majority decision on all of the issues presented and then, the 

American Arbitration Association fully incorporated the majority decision and issued the final 

award. Id. at 177-78. The former bank president was unhappy with the award and sought to vacate 

it on various grounds in the circuit court. Id. at 178. As part of the discovery in the litigation, the 

circuit court granted the former bank president’s request to conduct limited discovery of some 

issues that arose after the arbitration proceeding, including any contacts that may have occurred 
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between the arbitrators and the parties, and the early release of the arbitration decision to the bank. 

Id. To this end, the former bank president deposed two of the three arbitrators while the bank 

deposed the third arbitrator. Id. All three were asked about the contacts that may have occurred 

between them and the parties, the early release of the arbitration decision and “the arbitral 

deliberation process.” Id. Ultimately, based on the premature release of the arbitration decision, 

the circuit court vacated the entire arbitration award and remanded the matter for a new arbitration 

hearing. Id. On appeal, however, the appellate court noted the limits of judicial review of 

arbitration awards because, when parties agree to arbitration, they agree to the “warts” of 

arbitration and “the arbitration panel’s view of the facts and interpretation of the [employment 

agreement].” Id. at 181. And, to this end, this court found no basis to disturb the arbitration award. 

After reaching this holding, this court cautioned circuit courts from allowing “any discovery of 

arbitral processes.” Id. at 182. 

¶ 118 One could argue that the arbitration proceeding discussed in Hawrelak is very much like 

the union disciplinary proceeding that occurred in this case. Just like where an employee and 

employer agree to arbitrate disputes as part of an employment agreement, union members and their 

unions agree to conduct internal disciplinary hearings for allegations of malfeasance as part of 

their membership in the union. And so, like the appellate court in Hawrelak cautioned circuit courts 

about allowing discovery into the arbitral deliberation process, it is arguable that circuit courts 

should likewise be hesitant to allow discovery into the deliberation process of a union hearing 

officer.

¶ 119 In the present case, the circuit court allowed Garland’s deposition to proceed “keeping in 

mind ‘deliberative privilege.’ ” According to the defendants, ATU raised the applicability of the

deliberative process privilege during a status hearing without a motion or supporting case law. We 
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do not have a transcript from that status hearing, so we do not know in what context ATU raised 

the applicability of the deliberative process privilege. In turn, it is unclear what specific “ 

‘deliberative privilege’ ” the court was referencing in its order, but it is possible that the court was 

cautioning the parties similar to what the appellate court did in Hawrelak. Regardless of what 

exactly the circuit court meant with regard to the “ ‘deliberative privilege,’ ” we find any alleged 

error with regard to this privilege and the subsequent finding of mootness of the defendants’ 

motion to compel Garland to answer the questions in which he invoked the deliberative process 

privilege to be harmless. See Hadley v. Snyder, 335 Ill. App. 3d 347, 351-52 (2002) (finding that 

any error by the circuit court in denying a motion to compel “was harmless because the documents 

[the plaintiff] sought would not have affected the outcome of his case”). Here, too, any order

compelling Garland to answer these questions would not have affected the outcome of the case 

because his potential answers would not have impacted the elements of ATU and Local 241’s 

breach of contract claims or the defendants’ breach of contract and breach of fiduciary duty 

counterclaims for the various reasons we have already explained herein.

¶ 120 III. CONCLUSION

¶ 121 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 122 Affirmed.