2015 IL App (1st) 143511 

SECOND DIVISION

August 4, 2015 

No. 1-14-3511 

PETER CURIELLI, ) Appeal from the 

 ) Circuit Court of 

Plaintiff-Appellant, ) Cook County. 

 ) 

v. ) 

 ) 

PATRICK QUINN, Governor of the State of Illinois; ) 

ILLINOIS DEPARTMENT OF PROFESSIONAL ) 

REGULATION; JAY STEWART, Director of Professional ) No. 13 CH 27207 

Regulation; MANUEL FLORES, Acting Secretary; REAL ) 

ESTATE ADMINISTRATION AND DISCIPLINARY ) 

BOARD; JILL D. JOHNSON, Real Estate Coordinator/ ) 

Chairperson, JUDY HIGGINS STOWE, HAE D. PARK, ) 

CHRIS A. READ, JAMES SCHAID, SALVADOR J. ) 

LOPEZ, CAROL STRADER, SCOTT B. TOBAN, ) 

LINDA WALTON-TODD, WAYNE WILLIAMS, ) 

Board Members, ) Honorable 

 ) Rita Mary Novak 

Defendants-Appellees. ) Judge Presiding. 

JUSTICE LIU delivered the judgment of the court, with opinion. 

Presiding Justice Simon concurred in the judgment and opinion. 

Justice Pierce concurred in the judgment.

OPINION

¶ 1 Plaintiff, Peter Curielli, appeals an order of the circuit court of Cook County dismissing 

his verified complaint with prejudice pursuant to section 2-615 of the Code of Civil Procedure 

(Code) (735 ILCS 5/2-615 (West 2012)). On appeal, plaintiff contends that he sufficiently stated

claims that section 20-20(a)(34) of the Real Estate License Act of 2000 (Act) (225 ILCS 454/20-
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20(a)(34) (West 2012)) violates the special legislation, equal protection, and separation of 

powers clauses of the Illinois Constitution. For the following reasons, we affirm.

¶ 2 BACKGROUND 

¶ 3 Plaintiff is a licensed attorney and real estate broker in the State of Illinois. The Illinois 

Department of Financial and Professional Regulation (Department) is the administrative agency 

responsible for licensing and disciplining real estate brokers in the state. According to a 

consumer complaint sent to the Department in 2013, plaintiff "acted as both an attorney and a 

broker in the same transaction" involving a residential property purchase, in violation of section 

20-20(a)(34) of the Act. Following an investigation and an informal conference with plaintiff on 

November 13, 2013, the Department proposed a settlement: if plaintiff agreed to complete 12 

hours of continuing education, he would receive a non-disciplinary order, which is not a public 

discipline and does not appear on the Department's website. Plaintiff declined the offer and

asserted that section 20-20(a)(34) was unconstitutional. The Illinois Real Estate Administration 

and Disciplinary Board (Board) responded that it had to enforce the statute, as it was presumed 

constitutional. 

¶ 4 On December 10, 2013, plaintiff filed suit seeking a declaration that section 20-20(a)(34) 

of the Act was unconstitutional. In count I, he claimed that section 20-20(a)(34) violated the 

special legislation clause of the Illinois Constitution (Ill. Const. 1970, art. IV, § 13) in that it gave

"special treatment" to non-attorney real estate brokers who performed other services, such as 

appraising or inspecting, "by singly excluding duly licensed attorneys from the ability to also act 

as their clients' attorney on the same transaction." In count II, plaintiff raised a facial and as 

applied challenge to section 20-20(a)(34) under the separation of powers clause of the Illinois 

Constitution (Ill. Const. 1970, art. II, § 1). He claimed that the Illinois legislature, in passing 
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section 20-20(a)(34), usurped the Illinois Supreme Court's power to regulate the conduct of 

attorneys and granted to the Department the power to determine what constitutes the practice of 

law. Finally, in count III, plaintiff claimed that section 20-20(a)(34) violated the equal protection 

clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 2) in that it prevented him from 

acting as an attorney and a real estate broker in the same transaction. 

¶ 5 On January 17, 2014, plaintiff filed an emergency petition for a temporary restraining 

order (TRO) "to prevent [defendants] from prosecuting [him] for violating 225 ILCS 20-

20(a)(34)." At the hearing on the TRO, defendants noted that there was a question as to whether 

plaintiff was raising a facial or as applied challenge to section 20-20(a)(34). Plaintiff, referring 

to his separation of powers challenge, stated: "We're not arguing that it's as applied. We're saying 

that the General Assembly cannot legislate in this area. It's solely left up to the Supreme Court." 

He later reiterated that he was only raising a facial challenge to section 20-20(a)(34), saying: 

"We believe the statute is unconstitutional on its face. There's no set of facts that could arise 

where the General Assembly can tell a lawyer you cannot act as an attorney during this particular 

time period." The court ultimately denied plaintiff's request for a TRO. 

¶ 6 On January 24, 2014, defendants filed a motion to dismiss the complaint pursuant to 

section 2-615 of the Code. Defendants argued that the Governor should be dismissed as a party 

because no claim was stated against him, and that section 20-20(a)(34) was constitutional on its 

face. With respect to plaintiff's special legislation claim, defendants argued that section 20-

20(a)(34) did not discriminate in favor of any group because the statutory prohibition treats all 

real estate brokers who are also attorneys the same; in other words, no real estate broker is 

permitted to represent a client as both a broker and an attorney in the same transaction. They

further argued that the statute does not create an arbitrary classification where it merely seeks to 
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prevent a conflict of interest. As for plaintiff's separation of powers claim, defendants argued that 

it was well within the powers of the legislature to pass a statute regulating the conduct of a real 

estate broker. Further, they argued that the Department could determine whether plaintiff 

performed legal services, as opposed to brokerage services, "without invading judicial 

prerogative"; according to defendants, all the Department had to do was rely on the supreme 

court's decision in Chicago Bar Ass'n v. Quinlan & Tyson, Inc., 34 Ill. 2d 116 (1966). Defendants 

also argued that the legislature's police power could reach the practice of law under certain

circumstances as well. Lastly, with respect to plaintiff's equal protection challenge, defendants 

argued that section 20-20(a)(34) does not discriminate against any class and that it is rationally 

related to the government's interest in preventing the conflict of interest that arises when a person 

acts as both a real estate broker and an attorney in the same transaction.

¶ 7 In response, plaintiff argued that the Governor was a necessary and indispensible party 

and that section 20-20(a)(34) was unconstitutional. He maintained that defendants were 

"disingenuous" in arguing that section 20-20(a)(34) did not intrude on the supreme court's 

exclusive authority to regulate attorneys when, in fact, defendants acknowledged that the statute 

bars an attorney from using his or her license in the same transaction during which he is acting as 

a broker. He further argued that the broker-attorney classification was arbitrary in that "only 

attorneys are effectively disbarred while acting as a broker;" he points out that the statute does 

not prohibit non-attorney brokers from acting in another professional capacity in the same 

transaction. Finally, plaintiff claimed that he could not properly respond to charges brought 

under section 20-20(a)(34) in light of his ethical duty to maintain client confidences. 

¶ 8 After defendants filed their reply, counsel for plaintiff withdrew his appearance. Two 

months later, on September 23, 2014, plaintiff appeared pro se at the hearing on defendants' 
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motion to dismiss. During the hearing, defendants argued that plaintiff raised only a facial 

challenge, and did not assert an as applied challenge, to the statute. 

¶ 9 On October 28, 2014, the court granted defendant's motion and dismissed the complaint, 

with prejudice, pursuant to section 2-615 of the Code.1

 In a written order, the court held that the 

Governor was not a proper party to the instant suit and that plaintiff could not "sustain the heavy

burden of his facial challenge" to section 20-20(a)(34). With respect to plaintiff's special 

legislation claim, the court found that section 20-20(a)(34) did not confer a special right on a 

select group of people; rather, it "treat[ed] all similarly situated persons, all broker-attorneys, the 

same." The court found that section 20-20(a)(34) passed the rational basis test as well. Citing an 

Illinois State Bar Association (ISBA) advisory opinion and case authortity from other 

jurisdictions, the court noted that there is a potential for a conflict of interest when an attorney 

acts as a broker in the same transaction; specifically, "the lawyer's financial interest in receiving 

the brokerage commission could cloud her independent judgment as a lawyer." The court found 

that "the conflict of interest concern created by such dual representation provides a reasonable 

justification for any particular burden imposed on broker-attorneys by the General Assembly." 

The court also noted that its "analysis with respect to the special legislation claim *** applie[d] 

to Plaintiff's argument that the statute violates the equal protection clause." 

¶ 10 As for plaintiff's separation of powers claim, the court found that "[a]lthough the 

challenged provision tangentially touches upon attorney conduct, it does not unduly infringe on

the Court's power to regulate the practice of law because it only regulates the practice of real 

estate brokers." To the extent the Department is required to determine whether a real estate 

broker has engaged in the practice law, the court noted that the supreme court "has already 

established a clear test for whether a broker is acting as an attorney in a real estate transaction," 

 

1 The record shows that plaintiff did not request leave to amend his complaint at any time during the proceedings.
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(see supra ¶ 6 (citing Chicago Bar Ass'n v. Quinlan & Tyson, Inc., 341 Ill. 2d 116 (1966))). The 

court found that plaintiff had failed to show that there were no circumstances in which section 

20-20(a)(34) would be constitutional under the separation of powers clause. The court provided 

the example of a broker who has admitted that he acted as both an attorney and broker in the 

same transaction; in that case, the court found that the Department would not need to make any 

independent determination as to whether the broker's conduct constituted the practice of law. 

Ultimately, the court found that plaintiff could not "meet his burden to demonstrate that the Act 

is unconstitutional in all of its applications." 

¶ 11 Plaintiff timely appealed. We thus have jurisdiction pursuant to Illinois Supreme Court 

Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. May 30, 2008). 

¶ 12 ANALYSIS

¶ 13 Plaintiff contends that the court erred in dismissing his complaint with prejudice. He 

claims that he sufficiently pleaded claims that section 20-20(a)(34) violates the special 

legislation, equal protection, and separation of powers clauses of the Illinois Constitution. As 

explained below, we find section 20-20(a)(34) constitutional.

¶ 14 Section 20-20(a)(34) provides: 

"(a) The Department may refuse to issue or renew a license, 

may place on probation, suspend, or revoke any license, 

reprimand, or take any other disciplinary or non-disciplinary action 

as the Department may deem proper and impose a fine not to 

exceed $25,000 upon any licensee or applicant under this Act or 

any person who holds himself or herself out as an applicant or 

licensee or against a licensee in handling his or her own property, 
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whether held by deed, option, or otherwise, for any one or any 

combination of the following causes: 

* * * 

(34) When a licensee is also an attorney, acting as the 

attorney for either the buyer or the seller in the same 

transaction in which the licensee is acting or has acted as a 

broker or salesperson." 225 ILCS 454/20-20(a)(34) (West 

2012). 

¶ 15 A. Standard of Review 

¶ 16 "A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based 

on defects apparent on its face." Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 

473 (2009). "The question presented by a section 2-615 motion to dismiss is whether the 

allegations of the complaint, when taken as true and viewed in a light most favorable to the 

plaintiff, are sufficient to state a cause of action upon which relief can be granted." Turner v. 

Memorial Medical Center, 233 Ill. 2d 494, 499 (2009). Only when it is clearly apparent that no 

set of facts can be proved that would entitle plaintiff to relief will a cause of action be dismissed 

pursuant to section 2-615. Pooh-Bah Enterprises, Inc., 232 Ill. 2d at 473. In ruling on a section 

2-615 motion, we consider only those facts apparent from the face of the pleadings, matters 

subject to judicial notice, and judicial admissions of record. Id. All well-pleaded facts and 

reasonable inferences to be drawn are accepted as true; however, mere conclusions of law or fact 

unsupported by specific factual allegations will be deemed insufficient. Id. We review de novo

the court's ruling on a section 2-615 motion to dismiss. Id.
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¶ 17 In reviewing the constitutionality of a statute, we presume that the challenged legislative 

enactment is constitutional. Bernier v. Burris, 113 Ill. 2d 219, 227 (1986). Indeed, it is our "duty 

to construe a statute in a manner that upholds its validity and constitutionality if such a 

construction is reasonably possible." Kanerva v. Weems, 2014 IL 115811, ¶ 34. The party raising 

a constitutional challenge to the statute has the burden of establishing a clear constitutional 

violation. Bernier, 113 Ill. 2d at 227. 

¶ 18 B. Special Legislation Clause

¶ 19 Plaintiff initially argues that section 20-20(a)(34) violates the special legislation clause of 

the Illinois Constitution. He argues that the statute "creates a particular burden on brokerattorneys and that the circuit court erred in finding that the statute passes the rational basis test. 

¶ 20 Defendants respond that the legislature created a general classification of brokers who are 

also attorneys "as part of regulating the real estate profession in order to protect the public." They 

argue that such a general classification was proper and did not constitute special legislation.

Further, they argue that section 20-20(a)(34) is rationally related to a legitimate state interest: 

specifically, to protect citizens from the inherent conflict of interest that arises when a broker 

acts as both a broker and an attorney in the same transaction. 

¶ 21 The special legislation clause of the Illinois Constitution prohibits the legislature from 

passing a "special or local law when a general law is or can be made applicable." Ill. Const. 

1970, art. IV, § 13. "In short, it prohibits legislation which arbitrarily discriminates in favor of a 

select group." Bilyk v. Chicago Transit Authority, 125 Ill. 2d 230, 236 (1988). Our special 

legislation analysis involves a "dual inquiry." Allen v. Woodfield Chevrolet, Inc., 208 Ill. 2d 12, 

22 (2003). We must determine whether section 20-20(a)(34) discriminates in favor of a select 

group; and, if so, whether the classification the statue makes is arbitrary. Id. In doing so, we will 
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apply the rational basis test because the statute does not implicate a fundamental right or suspect 

classification. Id. "Under this test, the statute is constitutional if the legislative classification is 

rationally related to a legitimate state interest." Id.

¶ 22 Plaintiff claims that section 20-20(a)(34) "gives special treatment to real estate brokers by 

singly excluding duly licensed attorneys from the ability to also act as their clients' attorney on 

the same transaction." Further, he claims that "the statute creates a particular burden on brokerattorneys" that other brokers of dual profession do not suffer. Essentially, plaintiff argues that 

section 20-20(a)(34) violates the special legislation clause because it treats a broker who 

practices law differently from other brokers. This does not satisfy our first inquiry. As the 

supreme court has noted, "laws will not be regarded as improper special legislation merely 

because they affect only one class of entities and not another." Big Sky Excavating, Inc. v. 

Illinois Bell Telephone Co., 217 Ill. 2d 221, 236 (2005). Rather, "the statute must confer on a 

person, entity, or class of persons or entities a special benefit or exclusive privilege that is denied 

to others who are similarly situated." Id. Here, plaintiff does not identify a single group that has 

received favorable treatment as a result of section 20-20(a)(34). It is undisputed that, under the 

statutory provision, all brokers who are not licensed to practice law may not act as an attorney 

during the transaction, and all lawyers who are not licensed under the Act may not provide 

services as a broker during the transaction. The services of each of these professions are distinct 

and separate, and the Act confers no special benefit to any broker who is also a licensed attorney. 

See Chicago Bar Ass'n v. Quinlan & Tyson, Inc., 34 Ill. 2d 116, 119-23 (1966) (recognizing the 

differences between broker services and legal services during a real estate transaction).

¶ 23 Even if we were to find that section 20-20(a)(34) conferred a benefit on a specific group, 

we would still find the statute passed the rational basis test. Legislative classifications that 
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benefit the general welfare are presumptively valid. Bilyk, 125 Ill. 2d at 236. The legislature is 

given broad latitude and discretion in drawing such classifications. Id. Thus, we will uphold a 

legislative classification "if any set of facts can be reasonably conceived which justify 

distinguishing the class to which the law applies from the class to with the statute is 

inapplicable." Id. 

¶ 24 Here, we find that the legislature had a reasonable justification for prohibiting brokerattorneys from acting in dual capacities in any given transaction; the purpose of section 20-

20(a)(34) is to protect the general public from representation that carries the potential for a 

conflict of interest. This goal is consistent with the very purpose of the statute itself, as expressed 

in its own preamble: "The intent of the General Assembly in enacting this statute is to evaluate 

the competency of persons engaged in the real estate business and to regulate this business for 

the protection of the public." 225 ILCS 454/1-5 (West 2012). As defendants correctly point out, 

an inherent conflict of interests arises in a transaction when a broker acts simultaneously as an 

attorney for the client, because the broker is entitled to a commission "if a real estate transaction 

is successful," whereas, an attorney, in contrast, "has an obligation to protect his client's interests 

regardless of the success of the transaction." It can hardly be disputed that, frequently, the 

incentives prompting a broker to close the deal are not aligned with—and in fact may be in 

opposition to—the motivations of an attorney who has a duty to safeguard his client's interests. 

Although plaintiff argues that this potential conflict could have been addressed if the legislature 

had included a "consent after full disclosure" requirement, this is not our concern. "Whether the 

statute is wise or sets forth the best means to achieve the desired result are matters for the 

legislature, not the courts." Hayashi v. Illinois Department of Financial & Professional 

Regulation, 2014 IL 116023, ¶ 29. Even so, we find that the potential harm to a client that would 
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result from a transaction in which a conflict of interests exists because the broker is incentivized 

to close the transaction for his own financial gain, at the same time that he is obligated to protect 

his client's financial interests, would not be automatically abated by full disclosure to the client. 

Because section 20-20(a)(34) was rationally related to a legitimate state interest, we find section 

20-20(a)(34) constitutional. 

¶ 25 Plaintiff contends that a statute passed "under the guise of protecting the public" is not 

necessarily related to a legitimate interest for purposes of satisfying the rational basis test. 

Essentially, he disputes the rational basis for the legislature's enactment of section 20-20(a)(34), 

because he disagrees that a nexus necessarily exists between a broker-attorney's services in a 

transaction and the state's interest in protecting consumers from a conflict of interests.

2

 We 

disagree. We find that the legislature passed a statute that advances a legitimate state interest—

protecting Illinois citizens from a potential conflict of interest that may adversely impact them. 

Because section 20-20(a)(34) is rationally related to this legitimate state interest, it does not 

violate the special legislation clause of the Illinois Constitution. The circuit court thus properly 

dismissed count I of plaintiff's complaint. 

¶ 26 C. Separation of Powers Clause 

¶ 27 Plaintiff next argues that the court erred in dismissing count II of his complaint, which 

alleged that section 20-20(a)(34) violates the separation of powers clause of the Illinois 

Constitution. We must initially determine whether to treat plaintiff's claim as a facial or as 

applied challenge. There seems to be a bit of confusion, as plaintiff sought to raise both facial 

and as applied challenges in his complaint, but then later informed the court that he was only 

raising a facial challenge.

 

2 In his reply brief, plaintiff presents an analogy that is highly offensive and repugnant. We strongly caution 

plaintiff to refrain from making such insensitive and inappropriate remarks in the future. 
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¶ 28 Defendants argue that we should only consider plaintiff's separation of powers claim as a 

facial challenge given that this is the position he took before the circuit court. It is well settled 

that "a party waives his right to complain of an error where to do so is inconsistent with the 

position taken by the party in an earlier court proceeding." (Internal quotation marks omitted)

McMath v. Katholi, 191 Ill. 2d 251, 255 (2000). Consequently, plaintiff abandoned any as 

applied challenge that he was originally seeking to make by informing the court that he was only 

challenging section 20-20(a)(34) on its face. Furthermore, we find "no discernable as-applied 

challenge in plaintiff's complaint." Pooh-Bah Enterprises, Inc., 232 Ill. 2d at 473. Thus, we will 

consider plaintiff's separation of powers claim solely as a facial attack. 

¶ 29 Article II, section 1, of the Illinois Constitution provides: "The legislative, executive and 

judicial branches are separate. No branch shall exercise powers properly belonging to another." 

Ill. Const. 1970, art. II, § 1. The separation of powers doctrine "insure[s] that each of the three 

branches of government retains its own sphere of authority, free from undue encroachment by 

the other branches." Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 334 (2006). "The Illinois 

Supreme Court has consistently interpreted [article II, section 1] to mean that the whole power of 

two or more branches of the government shall not be compressed into a single branch of the 

government." (Emphasis in original.) Van Harken v. City of Chicago, 305 Ill. App. 3d 972, 977 

(1999). The separation of powers doctrine "does not preclude every exercise of power by one 

branch of the government that requires actions normally exercised by another branch of the 

government." Id. To the contrary, " '[t]he separate spheres of governmental authority may 

overlap.' " Id. (quoting McAlister v. Schick, 147 Ill. 2d 84, 95 (1992)). 

¶ 30 Our supreme court has stated: 
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" 'The Constitution does not specifically delineate which powers 

are legislative, which are executive, and which are judicial. We 

have construed the concept of judicial power as including the 

adjudication and application of law [citation] and the procedural 

administration of the courts [citation]. The legislature, in turn, is 

vested with the power to enact laws. The legislature may not, 

however, enact laws that unduly infringe upon the inherent powers 

of the judiciary. [Citation].' " (Emphasis added.) DeLuna v. St. 

Elizabeth's Hospital, 147 Ill. 2d 57, 68-69 (1992) (quoting People 

v. Bainter, 126 Ill. 2d 292, 302-03 (1989)). 

¶ 31 Plaintiff claims that the legislature, in enacting section 20-20(a)(34), "usurped a judicial 

power that clearly belongs to the Illinois Supreme Court to regulate when an Illinois attorney can 

and cannot exercise his or her professional abilities." Contrary to plaintiff's claim, the legislature 

has not appropriated the supreme court's power to regulate lawyers who are licensed to practice 

law in Illinois. By enacting section 20-20(a)(34), the legislature has simply established

regulatory safeguards in the real estate profession that will prevent brokers from representing a 

client as both legal counsel and a broker in the same transaction. The court's reasoning for 

finding that the statutory provision is rationally related to the State's legitimate interest in 

protecting the public is sound. We find no merit to plaintiff's claim that the legislature has 

usurped "judicial power" by regulating the practice of real estate brokers. 

¶ 32 Plaintiff claims that the legislature has also impermissibly granted to the Department the 

ability to determine what constitutes the practice of law. He argues that, under section 20-

20(a)(34), the Department must necessarily decide whether the broker has engaged in the 
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practice of law. Because the power to determine what constitutes the practice of law belongs

solely to the supreme court, he claims that the legislature has encroached upon judicial powers. 

¶ 33 We find that plaintiff has failed to meet his burden of showing that section 20-20(a)(34) 

is unconstitutional on its face. "It is especially difficult to successfully mount a facial challenge 

to a statute." Hill v. Cowan, 202 Ill. 2d 151, 157 (2002). "The fact that a statute may operate 

invalidly under some circumstances is insufficient to establish facial invalidity; a statute is 

facially unconstitutional only if 'no set of circumstances exists under which [it] would be valid.' " 

(Emphasis in original and internal quotation marks omitted.) Id. (quoting In re C.E., 161 Ill. 2d 

200, 211 (1994)). A facial challenge fails if there is any situation in which the statute could be 

validly applied. Id. 

¶ 34 Here, plaintiff has not shown that section 20-20(a)(34) is unconstitutional in all of its 

applications. While plaintiff claims that section 20-20(a)(34) could require the Department to 

determine whether a particular attorney's conduct constituted the practice of law, he fails to 

consider the situation identified by the circuit court where an attorney has admitted to acting as 

both a broker and an attorney in the same transaction. In that situation, the Department would not 

need to make any determination as to whether an attorney's conduct constituted the practice of 

law. Thus, there would be no possible separation of powers issue. Since section 20-20(a)(34) can

be validly applied under the separation of powers clause, we find that the circuit court properly 

dismissed count II of plaintiff's complaint. 

¶ 35 D. Equal Protection Clause 

¶ 36 Plaintiff finally argues that the court erred in dismissing count III of his complaint, which 

alleged that section 20-20(a)(34) violates the equal protection clause of the Illinois Constitution. 

"The equal protection guarantee and the special legislation proscription of our constitution are 
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generally judged by the same standard." Big Sky Excavating, Inc., 217 Ill. 2d at 240. A challenge 

under either provision presents the question: "Is the statutory classification rationally related to a 

legitimate State interest?" Bilyk, 125 Ill. 2d at 236. We have already answered this question in 

the affirmative. Thus, plaintiff's equal protection claim fails. We find that the circuit court 

properly dismissed count III of plaintiff's complaint. Because all three counts of plaintiff's 

complaint were properly dismissed, we need not address the issue of whether the Governor was a 

necessary party to this lawsuit.

¶ 37 E. Leave to Replead

¶ 38 As a final matter, plaintiff argues that the court erred in dismissing his complaint with 

prejudice. He claims that the court should have given him the opportunity to file an amended 

complaint to address any insufficiencies, such as the lack of an adequate as applied challenge to 

section 20-20(a)(34).

¶ 39 "A complaint should be dismissed with prejudice under section 2-615 only if it is clearly 

apparent that no set of facts can be proved that would entitle the plaintiff to recover." Tucker v. 

Soy Capital Bank & Trust Co., 2012 IL App (1st) 103303, ¶ 17. Here, as discussed above, there 

is no set of facts under which section 20-20(a)(34) will be deemed facially unconstitutional under 

the special legislation, equal protection, or separation of powers clauses of the Illinois 

Constitution. While plaintiff claims that the court erred in dismissing his complaint with 

prejudice because he could have amended his complaint to successfully raise an as applied

challenge to section 20-20(a)(34), he previously represented to the court and the parties that he 

only intended to raise a facial challenge. He therefore will not be heard now to complain that the 

court should have allowed him to amend his complaint with claims that he previously told the 

court that he did not intend to raise. See McMath, 191 Ill. 2d at 255 ("A party cannot complain of 
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error which he induced the court to make or to which he consented."). We find no error in the 

court's decision to dismiss plaintiff's complaint with prejudice. 

¶ 40 For the reasons stated, we affirm the judgment of the circuit court of Cook County. 

¶ 41 Affirmed.