202 4 IL App (1st) 221088 No. 1-22-1088
FIRST DIVISION April 29, 2024

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

______________________________________________________________________________

R. SCOTT ALSTERDA , in H is C apacity as Bankruptcy Trustee for the E state of Jaime Mireles , Plaintiff -Appell ant ,

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

No. 15 CH 03489

Honorable Neil H. Cohen, Judge presiding.

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment and opinion. OPINION ¶ 1 Plaintiff R. Scott Alsterda, in his capacity as bankruptcy trustee for the estate of Jamie
Mireles , appeals from the circuit court’s June 2022 order dismissing his second amended complaint with prejudice . For the following reasons, we affirm. ¶ 2 BACKGROUNDNo. 1-22-1088

- 2 - ¶ 3 Mireles was formerly employed as a correction office r by the Cook County Sheriff’s Department. On July 22 , 2014, Thomas J. Dart, in his capacity as Cook County Sheriff (Sheriff) , filed a complaint against Mireles with the Cook County Sheriff’s Merit Board (Board). The Sheriff alleged that on March 31, 20 12 , Mireles used excessive force when he struck a detainee’s face with his hand. The Sheriff also alleged that Mireles failed to submit an incident report documenting the use of force or to present himself to be interviewed about the incident. The complaint requested that Mireles’s employment be terminated. ¶ 4 The Board ’s Termination Decision and Mireles’s Prior A ppeal ¶ 5 The Board conducted a hearing on October 23, 2014. In January 2015, the Board issued a final administrative decision upholding the charges against Mireles and terminating his employment. The decision was signed by eight Board members, including John Rosales. ¶ 6 On February 27, 2015, Mireles filed a complaint for administrative review in the circuit court of Cook County. On January 7, 2016, the circuit court ente red an order affi r ming the Board’s decision. ¶ 7 Mireles appealed to this court, raising a number of arguments. Among these, he claimed that his use of force was not excessive; the investigation into the incident was insufficient ; and the Board’s determination that he fail ed to properly report the incident was against the manifest weight of the evidence. Mireles v. Cook County Sheriff’s Merit Board , No. 1 -16-0203 (Mar. 8, 2017) (unpublished summary order under Ill inois Supreme Court Rule 23(c) ). Notably, Mireles did not raise any challenge to the composition of the Board. In March 2017, this court affirmed the Board’s termination decision

. Id. ¶ 8 The 2014 Circuit Court Decision in Taylor v. Dart and Affirmance by Our CourtNo. 1-22-1088

- 3 - ¶ 9 In a separate proceeding involving a different employee’s termination by the Board, in August 2014 the circuit court issued a decision that forms the basis of Mireles’s current appeal. Specifically, in Taylor v. Dart , No. 13

- CH -26319 (Cir. Ct. Cook County) (Aug. 19, 2014), the circuit court vacated a termination decision on the basis that one of the Board members, Rosales, was not duly appointed under the governing statute. Specifically, whereas section 3

- 7002 of the Counties Code (55 ILCS 5/3-7002 (West 2012) ) required Board memb ers to be appointed for six

- year terms, Rosales was appointed for a term of less than one year. The circuit

court in Taylor found that the Board “was not lawfully constituted at the time of the hearing and decision” so that the termination decision was invalid. ¶ 10 After the Sheriff and Board appealed, we agreed with the circuit court that the Board
deci sion was void because it was “illegally constituted” at the time of Taylor’s termination decis ion

. Taylor v. Dart , 2016 IL App ( 1st ) 143684, ¶ 47. In January 2017, our supreme court issued a supervisory order directing our court to additionally consider whether the Cook County Board of Commissions had home rule authority to approve interim appointment s to the Board. Taylor v. Dart , No. 121507 (Ill. Jan. 25, 2017). Pursuant to that supervisory order, this court issued another opinion, holding that that (1) the Board was not authorized to appoint an individual for less than a six- year term , (2) Rosales’ s participation in Taylor’s termination
decision rendered it void , and (3) the Cook County Board of Commissioner s did not have home rule authority to approve interim appointments. Taylor v. Dart , 2017 IL App (1st) 143684- B. ¶ 11 Mireles Challenges His Termination Decision on the Basis of Taylor ¶ 12 In October 2017, Mireles filed a petition pursuant to section 2

- 1401 of the Code of Civil
Procedure (735 ILCS 5/2 -1401 (West 2016)) seeking to vacate the January 2016 circuit court judgment that affirmed the Board decision. Mireles asserted, for the first time, that the Board’sNo. 1-22-1088

- 4 - decision was voi d because one or more members “were not duly appointed” at the time it rendered the January 2015 decision. He noted that Rosales (whose appointment was found invalid by our court ’s decisions in Taylor ) was a member of the Board that rendered his termination decision. Thus, he urged t hat the Board was “illegally constituted” pursuant to Taylor and the Board’s decision was void. ¶ 13 The Sheriff moved to dismiss Mireles’s section 2- 1401 petition, arguing, inter alia , that section 2-1401 could not be use d to challenge an administrative decision and that Mireles
“waived or forfeited his ar gument that the Merit Board was not properly constituted ” by not previously ra ising it . In April 2018, the circuit court granted the Sheriff’s motion to dismiss the section 2 -1401 petition and remanded the case to the Board. ¶ 14 T he Sheriff subsequently move d to reconsider the April 2018 remand order based on “new and controlling law” applying the de facto officer doctrine to bar similar challenges based on the invalidity of the Board members. Specifically, the Sheriff argued that Lopez v. Dart , 2018 IL App ( 1st ) 170733 , and Cruz v. Dart , 2019 IL App ( 1st ) 170915, had “altered the legal application of Taylor v. Dart. ” The Sheriff argued that in light of t hos e decision s, the de facto officer doctrine barred Mireles from relying on Taylor to collateral ly attack his termination decision. ¶ 15 In his opposition to the Sheriff’s motion, Mirel es argued that the de facto officer doctrine did not apply to him . He also assert ed that all eight of the Board members who participated in
his termination decision (not just Rosales) were illegally appointed for terms of less than six
years. ¶ 16 T he cir cuit court stay ed any decision on the Sheriff’s motion to reconsider , citing the pending appeal before our supreme court in Goral v. Dart

. Our supreme court issued thatNo. 1-22-1088

- 5 - decision in October 2020. Goral v. Dart , 2020 IL 125085. In January 2021, the Sheriff filed a motion to “recall and d ismiss the case , ” arguing that the supreme court’s decision in Goral
made clear that the de facto officer doctrine bars a challenge to the composition of the Board that is not asserted until after the Board has taken “substantive action.” ¶ 17 Substitution of Plaintiff and Filing of the Second Amended Complaint ¶ 18 In May 2021, Alsterda, as bankruptcy trustee for Mireles’s estate, moved for substitution as plaintiff. 1 In January 2022, the circuit court grant ed th e substitution motion. 2 In the same order, the circuit court granted leave to file a superseding amended comp laint

. ¶ 19 On January 14, 2022, Mireles filed a second amended complaint for judicial review of the Board’s January 2015 decision. Mireles pleaded two counts , only one of which is germane to this appeal . In count I, Mireles sought review under the administrative review law , but he explicitly recognized “ this cou nt had already been ruled upon and it is included solely for the
purpose o f preserving it for any appeal.” 3 ¶ 20 The s econ d count was entitled “ declaratory judgment ” and sought to invalidate Mireles’s termination decision based on the composition of the Board, combined with the fact that the Board rendered its decision after the August 2014 circuit court order in Taylor

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

. First , Rosales was one of the Board members, notwi thstanding that he had “already been determined improperly

- seate d” by the prior August 2014 Taylor order

.

1 The record reflects that in May 2 015 , Mireles filed for Chapter 7 bankruptcy in the U.S. Bankruptcy Court for the Northern District of Illinois. 2 For ease of reference, we refer to plaintiff

- appellant as “Mireles” notwithstanding the substitution of Mireles’s bankruptcy trustee as the party plaintiff. 3 In briefing in the circuit court, Mireles ackn owledged he included this count to preserve it for appeal but was “not seeking to relitigate” that count.No. 1-22-1088

- 6 - Further, Mireles alleged that several other Board members had been appointed to terms of less
than six- years and that certain of these were “non

- staggered.” Mireles alleged that the August
2014 Taylor order “put the Sheriff and the Board on notice of the defects, ” yet his termination decision was entered in January 2015 without “ any action to fix the defects in the appointments.” ¶ 21 Mir eles additionally pleaded that the Board decision “could not be protected by the de facto officer doctrine” in light of the circuit court’s August 2014 Taylor order

. Mireles acknowledged that he did not r aise these defects in his proceedings before the Board , but he alleged “he did not need to as a matter of law once Taylor’s challenge was made because the doctrine is ‘backward looking’ and does not allow a Board with defects to continue operating.” ¶ 22 Mireles’s second amended complaint thus sought declarations that the Board was illegally constituted during his proceedings before the Board “from the [August 2014] Taylor order onward,” including his January 2015 termination decision, and that the de facto office doctrine did not apply to him. ¶ 23 In February 2022, the Sheriff moved to dismiss Mireles’s second amended complaint pursuant to section 2 -615 of the Co de of Civil Procedure (735 ILCS 5/2- 615 (West 2022))

. The Sheriff argued that the de facto officer doctrine warranted dismissal because Mireles did

not raise a timely challenge to the composition of the Board. The Sheriff urged that application of the de facto officer doctrine was supported by the 2020 supreme court decision in Goral and several other appellate court decisions

. The Board subsequently join ed the Sheriff’s motion to dismiss. Mireles filed an opposition to the motion. ¶ 24 The Circuit Court Dismisses the Second Amended ComplaintNo. 1-22-1088

- 7 - ¶ 25 On June 23, 2022, the circuit court dismissed the second amended complaint with prejudice. The circuit court first acknow ledged that “Count I is clearly pled solely to preserve the issue for appeal.” The circuit court proceeded to agree with the Sheriff that count II was barred by the de facto officer doctrine, relying on the supreme court decision in Goral and First District case law. The circuit court rejected Mireles’s argument that the doctrine should not apply to his challenge to the Board’s January 2 015 decision becau se the Board was already “on notice” that it was “illegally constituted” after the 2014 circuit court order in Taylor

. The
circuit court noted that the First District had appl ied the de facto office r doctrine in Cruz , 2019 IL App ( 1st ) 170915 , and Lopez , 2018 IL App ( 1st ) 170733 , notwithstanding that the Board decision s at issue in those cases were also rendered after t he 2014 Taylor order. ¶ 26 Further, the circuit court found that in Malacina v. Cook County Sheriff’s Merit Board , 2021 IL App (1st) 191893, “the First District has now expressly held that the de facto officer doctrine applies unless the plaintiff raised the iss ue of the illegal compos ition of the Merit
Boar d before the issu ance of the final admi nistrative deci sion .” The circuit court concluded
that because Mireles “ never raised the issue of the Merit Board’s composition prior to the issuance of the final administrative decision,” count II of the second amended complaint was barred by the de facto officer doctrine. On that basis, it dismissed the second amended complaint. ¶ 27 Mireles filed a timely appeal

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

- year terms. He emphasizes that the decision against him was issued after the circuit court’s 2014 decision in Taylor vacating aNo. 1-22-1088

- 8 - Board decision due to Rosales’ s illegal appointment. He thus reasons that the Sheriff and Board were “put on notice that such a defect violated the Act,” yet the Board issued the 2015 decision against him without correcting the defects in its composition. Because he asserts that the circuit

court in Taylor decision put the Board on “notice” of the defects, he maintains that it is inequitable to apply the de facto officer doctrine against him. In doing so, he emphasizes certain language in this court’s decision in Goral that the doctrine “looks backward” but does not permit an illegally constituted board to “keep doing business” after a court declares it
invalid. Goral v. Dart , 2019 IL App (1st) 181646, ¶ 101. He suggests he raises a unique argument that distinguishes his case from other recent precedent applying the de facto officer doct rine to bar similar challenges to Board decisions. ¶ 30 In response, the Sheriff first contends that, as a procedural matter, Mireles’s second amended complaint was barred by waiver, forfeiture, or res judicata because Mireles did not challenge the composition of the Board until after his prior appeal. Secondly, the Sheriff a rgues that the circuit court correctly found that the de facto officer doctrine bars Mireles’s challenge,
as he did not raise any issue concerning the composition of the Board until long after it rendered in its January 2015 termination decision. ¶ 31 For the following reasons, we affirm the dismissal of the second amended complaint. ¶ 32 Standard of Review ¶ 33 With respect to the standard of review, w e note that Mireles’s brief recites the standard s for challenging a decision pursuant to the Administrative Review Law (735 ILCS 5/3 -101 et
seq . (West 2022))

. See Medponics Illinois, LLC v. Department of Agriculture , 2021 IL 125443, ¶ 29 (describing standard for reviewing administrative agency’s determinations on questions of law, fact or mixed questions of law and fact). However, in this appeal he is not directlyNo. 1-22-1088

- 9 - challenging a decision of the Board. Rather, he appeals from the dismissal of count II of his second amended complaint , in which he sought a declaratory judgment from the circuit court
that , inter alia , th e Board was not legally constituted at the time of his termination decision and that de facto officer doctrine did not apply to him. ¶ 34 The trial court granted the motion to dismiss under section 2

- 615 of the Code of Civil Procedure (735 ILCS 5/2 -615 (West 2022)). Such a motion “challenges the legal sufficiency of a complaint based on defects apparent on its face ,” and an order granting such a motion is
reviewed de novo

. Marshall v. Burger King Corp. , 222 Ill. 2d 422, 429 (2006) ; s ee Cahokia Unit School District No. 187 v. Pritzker , 2021 IL 126212, ¶ 24 ( de novo review applies to a dismissal under either section 2 -615 or section 2-619 of the Code of Civil Procedure). 4 ¶ 35 Res Judicata Bars Mireles’s Current Claim Because It Could Have Been Raised Earlier ¶ 36 Before we delve into the parties’ arguments regarding the application of the de facto officer doctrine, we address the Sheriff’s threshold argument s that Mireles’s second amended complaint is procedurally barred by waiver, forfeiture, or res judicata . The Sheriff points out that Mireles did not raise any argument disputing the validity of the Board that rendered his
termination decision , either in the prior administrative review action in the circuit court, or in his corresponding unsuccessful appeal to this court. See Mireles , No. 1-16-0203. ¶ 37 We find the Sheriff’s res judicata argument persuasive. “The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars

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

- 619, which “admits the legal sufficiency of the claim but asserts defenses or defects outside the pleading to defeat the claim.” Cahokia Unit School District No. 187 , 2021 IL 126212, ¶ 23. In any event , the standard of review is the same.No. 1-22-1088

- 10 - any subsequent actions between the same parties or their privies on the same cause of action.” Hudson v. City of Chicago , 228 Ill. 2d 462, 467 (2008). “Three requirements must be satisfied
for res judicata to apply: (1) a final judgment on the merits has been rendered by a court of competent juris diction ; (2) an identity of cause of action exists; and (3) the parties or their privies are identical in both actions.” Id. The doctrine “bars not only what was actually decided in the first action but also whatev er could have been decided.” Id. ¶ 38 In his reply brief, Mireles does not dispute that the parties or their privies in his original
action for administrative review and his current challenge are identical. However, he asserts
that the other two eleme nts of res judicata are missing. First, he claims there was no “final judgment” because “[t]he entire premise of Mireles’ 2 -1401 petition was to aver that the Merit board’s termination decision is void because the Board was not properly constituted.” Thus, he cla ims “ res judicata does not apply becau se the decision is void and does not constitute a final judgment.” ¶ 39 This argument is unpersuasive. Notwithstanding his current assertion that the Board ’s decision was void, his original complaint for administrative review and prior appeal resulted in two final judgments on the merits rendered by courts of competent jurisdiction: the circuit
court’s January 2016 decis ion , as well as this court’s March 2017 order affirming the Board’s
determination

. Mireles , No. 1-16-0203. Mireles does not attempt to suggest that this court’s prior decision in his original appeal was not a f inal judgment rendered by a court without jurisdiction. We find that the prior court decisions constituted final judgment on the merits that fulfilled this el ement of res judicata

. ¶ 40 Mireles otherwise assert s there is no identi ty of cause of action because his “initial appeal was about whether or not the Board’s decision was again st the manifest weight of the evidence”No. 1-22-1088

- 11 - and the merits of whether his termination was justified, whereas “[t]he 2 -1401 petition relates to the Board having improperly

- seated members and the decision being void as a result.” 5 Thus, he claims his prior appeal and this one do not have “the same body of operative facts.” ¶ 41 We disagree, keeping in mind that “Illinois has adopted the transactional test in determining whether an identity of cause of action exi sts for purposes of res judicata .” Oshana v. FCL Builders, Inc. , 2013 IL App ( 1st ) 120851, ¶ 34 (citing River Park, Inc. v. City of Highland Park , 184 Ill. 2d 290, 309- 11 (1998)). Under this test, “claims are part of the same cause of action if they arise from the same transaction or series of connected transactions.” (Internal quotation marks omitted.) Id. “Subsequent claims may be barred if they originate from a single group of operative facts.” (Internal quotation marks omitted.) Id. Significantly,

t his proposition applies “regardless of whether the claims assert different theories of relief or are based on evidence that does not substantially overlap, as long as they arise from the same transaction.” Id. ¶ 42 Although Mireles’s instant challenge to the Board decision is based on a very different legal theory from his prior appeal, both challenges are based on the same transaction: the January 2015 Board decision. All of the operative facts underlying the instant appeal

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

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

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

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

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

- 12 - for purposes of res judicata

. We agree with the Sheriff that insofar as both challenges were premised on the same Board decision, they arise from the same transaction. ¶ 43 Finally, although Mireles does not dispute the point, we find that there is an “identity of parties or their privies” for application of res judicata

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

res judicata

. ¶ 44 We thus agree with the Sheriff that the current challenge is barred by res judicata . This is an independent ground for affirming dismissal of the second amended complaint. Nonetheless, even assuming that res judicata did not apply, we otherwise agree with the circuit court that the de facto office r doctrine independently warranted dismissal. ¶ 45 De Facto Officer Doctrine ¶ 46 “The de facto officer rule is a common law equitable doctrine that confers validity on acts performed by an official acting under the color of official title, even though it is later determined that the official’s appointment to that position was legally deficient.” Malacina , 2021 IL App (1st) 191893, ¶ 20 (citing Goral , 2020 IL 125085, ¶ 71). “Under the doctrine, the acts of a person actually performing the duties of an office under color of title are valid so far as the public or third parties who have a n interest in them are concerned.” Goral , 2020 ILNo. 1-22-1088

- 13 - 125085, ¶ 71 . The doctrine is meant to “avoid the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question.” Id. ¶ 47 T he doctrine “is applied as a defense to an attack on the acts of an officer or appointee in a collateral proceeding , ” which “necessarily requires a prior act or judgment that is, or may be, subject to attack.” Id. ¶ 72. “[T]he doctrine was never intended to preclude a timely challenge to an official’s authority; it is, instead, a defense to a collateral challenge brought after the official’s action has been completed.” (Emphasis in original and omitted .) Malacina , 2021 IL App (1st) 191893, ¶ 21. ¶ 48 This district has applied a “f irst challenger exception ” to the de facto of ficer doctrine, by which “the first individual to raise a challenge to an official’s authority to act is entitled to
relief

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

— the first one to raise the defect in the Board member Rosales’ s appointment—
received the benefit of having his termination decision vacat ed. Taylor , 2017 IL App (1st) 143684-B. However, this district has “taken a narrow view of the ‘first challenger’ exception.
Malacina , 2021 IL App (1st) 191893, ¶ 25 (recognizing that “in Cruz , 2019 IL App ( 1st ) 170915, we held that a post- decision challenge to the composition of the Board was barred by
the de facto officer rule, even though Cruz identified different inval idly appointed officials ” than the one identified in Taylor ).No. 1-22-1088

- 14 - ¶ 49 Following this court’s determination in Taylor that Rosales was invalidly appointed ( Taylor , 2017 IL App ( 1st ) 143684 -B), this court has consistently applied the de facto officer
doctrine to bar a number of similar challenges to Board’s authority , where the challenges were
not asse rted un til afte r the Board ’s issued a final decision . See , e.g. , Acevedo v. Cook County Sheriff’s Merit Board , 2019 IL App ( 1st ) 181128 , ¶ 25 ( plaintiff’s claim that his ter mination
decision was voi d be cause R osales participated in it was barred by the de facto officer doct rine
where “Aceve do raise s the same issue with Rosales’ s appoint ment as was r aised in Taylor , Lopez , and Cru z

— an appointment to a term of less than six years ” ); Cruz , 2019 IL App (1st) 170915, ¶ 38 ( de facto officer doctrine applied to attempt to void decision based on appointments of three other Board members to terms of less than six years, which was “the same problem with the appointment procedure that was before us in Taylor and Lopez ”) ; Lopez , 2018 IL App (1st) 170733, ¶ 59 (applying de facto officer doctrine where Lopez was “not the
first claimant to have brou ght the illegal appoint ment of Rosales to light ,” reasoning this “will circumvent the upheaval that would doubtlessly result if we were to invalida te the Merit
Board’ s decision and invite hundreds of plaintiffs” to challe nge deci sions rendered during Rosales ’s “ unauthorized term”). ¶ 50 By contrast, in Goral , both this court and our supreme court rejected the Sheriff’s reliance
on the de facto offi cer doctrine where the plaintiffs timely challeng ed the authority of the Board by filing a complaint before the Board had rendered decisions against them. See Goral , 2019 IL App (1st) 181646, ¶ 1 (explaining that Goral plaintiffs consisted of employees charged by
the Sheriff with dis ciplinary infractions who “ [f] rom the ou tset of their administrative cases *** hav e challenged the aut hority of the Board to hear t heir c ases, bas ed on claims that the Board is illegally constituted”)

. This court’s decision explained that the doctrine did not applyNo. 1-22-1088

- 15 - to the Goral plain tiffs because at the time th ey filed a lawsuit challeng ing the validity of Board’s composition, “none of plaintiffs’ administrative actions had gone to a final decision.”
Id. ¶ 99. Rather , they “have been rais ing statu tory -authority arg uments before the Boar d since their cases began.” Id. ¶ 51 Our court in Goral went on to emphasize that the timing of the challeng e “makes all the
difference in the world .” Id. ¶ 100. Then, in language relied upon by Mireles in this appeal, we went on to say:
“T he ‘ de facto officer’ doctrine is concerned with the fear of unearthing old decisions
***. But that doctrine is not

— and could not

— be concerned with pending or brand

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

— as if we had never issued our ruling.” (Emphasis omitted.) Id. ¶¶ 100-01. ¶ 52 Our supreme court affirmed , emphasizing that the timing of the plaintiffs’ challenge precluded application of the de facto officer doctrine : “Timing matters. Here, given that the Merit Board had not taken any substantive action regarding plaintiffs’ disciplinary charges prior to the filing of their lawsuit in circuit court,
we conclude that the de facto officer doctrine does not apply. Plaintiffs were not trying to unwind or undermine any administrative determination by the Merit Board. At the time plaintiffs filed both their original and second amended complaints, there had been no actionNo. 1-22-1088

- 16 - or judgment by the Merit Board in plaintiffs’ proceedings to which the doctrine could confer validity. Because the de facto officer doctrine has not been —and should not be— employed as an obstacle to preclude a timely challenge to the authority of an administrative agency, it does not justify the dismissal of plaintiffs’ complaint.” Goral , 2020 IL 125085, ¶ 75. ¶ 53 The De Facto Officer Doctrine Appli es to Bar Mirele s ’s Challenge ¶ 54 Mireles urges that despite the above preceden t, h e presents an argument ag ainst application
of the de facto officer doctrine that is unique and unresolved by this court. H is position is that
after the 2014 circuit court decision in Taylor , the Board was on notice of any defect ive appointments and thus had an obligation to correct them before it issued the 2015 decision terminating him. He suggests that this invalidates the decision, regardless of when he first raised a challenge to the Board’s composition. That is, he argues that the “timing matters” language from the supreme court decision in Goral does not add ress his “ parti cular issue : what
effect does the original [circuit court] Taylor Order have on the appl ication of the de facto office r doctrine given that [our appellate court decision in Goral ] recognized that the doctrine is ‘backwards looking’?” ¶ 55 To be clear, Mireles does not dispute that he did not challenge the Board’s composition before it rendered a decision against him

. Rather, relying on the language from this court’s opinion in Goral that a board should not be permitted to “keep doing business” after a court declares its composition invalid ( 2019 IL App ( 1st ) 181646, ¶ 101), he suggests th e Board was obligat ed to “fix [ ] itself” after it was put on notice by the circuit court’s 2014 Taylor order

. He suggests there should be no obligation to rais e a timely challenge to the Board’s composition , as it is “unjust” to “place the onus on officers to raise an objection” when theNo. 1-22-1088

- 17 - B oar d and the Sheriff “knew full well ” of defects in the composition. Mireles argues th at application of de facto officer doctrine would reward the Sheriff and Board’s “bad behavior” for failing to correct defects after the Taylor order. ¶ 56 He asserts that our court has “never squarely confronted this issue, and has never explained why the Taylor order does not matter.” He suggests that officers subject to an adverse Board
decision issued after the August 2014 Taylor order and “while the Board had the same defects” should not be barred by de facto officer doctrine, regardless of whether they raised a challenge
before the Board’s decision. Mireles urges his position is supported by Justice McMorrow’s

concurrence in Daniels v. Industr ial Comm’n , 201 Ill. 2d 160 (2002) , insofar as it urged that
the de facto officer doctrine should not be applied “mechanically” and should not apply w here illegal appoint ments “were the result of ma l feasance or a delib erate attempt to subvert” a governing statute. Id. at 174-75 ( McMorrow, J., specially concurring)

. Indeed, he accuses the Board of “deliberate malfeasance” by continuing to render decis ions with “defective appoint ment s” after the August 2014 Taylor order. ¶ 57 We find Mireles’s arguments unavailing in light of precedent from this court and the supreme court reaffirming the validity of the de facto officer doctrine and the requirement of a timely challenge to avoid its application

. We point out that, n otwithstanding Mireles’s reliance

on certain language of our 2019 decision in Goral , that decision still made clear that an officer has the burden to make a timely challenge to avoid the de facto officer doctrine. Indeed, shortly after stating t hat the doc trine “loo ks back ward” and does not allow the Board to ke ep doing business illegally ( Goral , 2019 IL App (1st) 181646, ¶ 101), this court in Goral made clear that a party still needed to assert a timely challenge to the Board’s composition, i.e. , while the matter was still pending :No. 1-22-1088

- 18 - “To put it plainly: Once Taylor was decided, any Sheriff’s employee whose case was
then -pending before the Board, or who was char ged in a new case p ost

- Taylor , had ever y right to chall enge the Boar d’s comp osition fo r the same reason s as in Taylor (or for different reasons). Old cases already finally decided, no, but pending or new administrative

cases, yes . Plaintiffs’ cases were pending *** and the ‘ de facto office r’ doctrine did not prevent them from challenging the Board’s composition.” (Emphasis added.) Id . ¶ 105. ¶ 58 Importantly, this statement of the law “not only survived the supreme court’s review of our
decis ion but was the very bas is for the supreme court’s holding” affirming our decision in
Goral

. Malacina , 2021 IL App (1st) 191893, ¶ 31 (citing Goral , 2020 IL 125085). As explained in Malacina , our supreme court held that “[t]he Board’s then -illegal composition remained ripe for a challenge by a party before the
Board

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

- final decision. Goral did so *** before the Board’s final administrative decision was rendered. And that is precisely why the Illinois Supreme Court held that Goral’s claim was not subject to a de facto officer defense.” (Emphases in original.) Id. (citing Goral , 2020 IL 125085, ¶ 75). ¶ 59 In short, our supreme court held that the de facto officer doctrine did not apply to the Goral plaintiffs because they made a “timely challenge ” before an adverse Board decision; th at is, they “were not trying to unwind or undermine any administrative determination by the Me rit
Board .” Goral , 2020 IL 125085, ¶ 75. T his is precisely what Mireles is attempting to do here with respect to his 2015 termination decision by the Board , without having made a timely challenge.No. 1-22-1088

- 19 - ¶ 60 Our supreme court’s holding in Goral controls . This is so notwithstanding Mirele s ’s claim that it is “unjust” to require him to raise a challenge because the Board should have fix ed any defects after the circuit court’s 2014 decision in Taylor

. 6 ¶ 61 Our supreme court in Goral reaffirmed that the de facto officer doctrine “serves to preserve the integrity of an official action that is complete and where the authority of the agency or public official was not challenged in a timely manner.” Id. ¶ 74. Goral makes clear that the d octrine is a valid defense to a collateral attack on an old decision

— which is exact ly what
Mireles attem pted through his second amended complaint

. While Goral held that the doctrine does not apply to a party who raised a “ timely challenge to the authority of an admi nistrative
agency ” ( id. ¶ 75), that is, be fore the Board rendered a decision, it is undi sputed that Mireles did not do so. Indeed, he did not r aise a challenge to the validity of the Board until October 2017, after t his court rejected his prior appeal from the same Board decision. ¶ 62 Goral is binding precedent that requi res a timely challenge to the Board’s composition to
avoid the de facto officer defense. Therefore, we must reject Mireles’s various equitable and policy

- related arguments that he should be excluded from that requirement. Accordingly, the circuit court correctly concluded that the de facto officer doctrine warranted dismissal. ¶ 63 CONCLUSION ¶ 64 In summary, we find that: (1) Mireles’s challenge to the composition of the Board that rendered his termination decision is barred by res judicata given his failure to raise it in the

6 We note, as explained by our supreme court, that “in response to T aylor , the le gislature amended the Code provision gover ning Merit Board appointments.” Goral , 2020 IL 125085, ¶ 12. The amendment permitted the Sheriff to make interim appointments, abolished all existing terms of each Board member, and created a new schedule for staggered terms of Board members. Id. (citing Pub. Act 100

- 562, § 5 (eff. Dec. 8, 2017) (amending 55 ILCS 5/3

- 7002)).No. 1-22-1088

- 20 - prior action and appeal , and (2) in any event, the de facto officer doctrine operates to independently bar his untimely collateral attack on the Board’s decision. ¶ 65 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. ¶ 66 Affirmed.No. 1-22-1088

- 21 - Alsterda v. Dart , 2024 IL App (1st) 221088

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 15- CH

- 03489; the Hon. Neil H. Cohen, Judge, presiding.

Attorneys for Appellant: Cass T. Casper, of Disparti Law Group, P.A., of Chicago, for appellant.

Attorneys for Appellee: William Andrichik, of Steptoe & Johnson, LLP, of Chicago, for appellee Thomas J. Dart.