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THIRD DIVISION
July 13, 2005

No. 1-04-3225

PRESIDING JUSTICE KARNEZIS delivered the opinion of the court:

Cross-defendant Michael F. Sheahan, the sheriff of Cook County (sheriff), appeals from the circuit court's granting of the motion for summary judgment and petition for writ of mandamus filed by cross-plaintiffs Reverend Harold E. Bailey, Howard D. Brookins and Frederick B. Sengstacke (cross-plaintiffs), the chairman, the vice chairman and a member of the Cook County Board of Corrections (the board), respectively, in their action against the sheriff. The sheriff also appeals from the court's denial of his cross-motion for summary judgment and its order directing that Callie Baird, then director of the Cook County Department of Corrections (DOC), vacate her position as director.

Section 3-15012 of the County Department of Corrections Law of the Counties Code (55 ILCS 5/3-15001 et seq. (West 2004)) (Code) provides that the sheriff "shall" appoint the director of the DOC from a list of three persons nominated by the members of the board. 55 ILCS 5/3-15012 (West 2004). In July 2003, the sheriff appointed Callie Baird as director of the DOC, but Ms. Baird was not one of the three nominees submitted by the board for the position. Asserting that the provision requiring appointment from the list of board nominees is mandatory, cross-plaintiffs' action sought a writ of mandamus, declaratory judgment and injunctive relief in order to remove Ms. Baird from her position as director and to compel the sheriff to comply with the statute by appointing one of the three people nominated by the board.

Finding section 3-15012 mandatory rather than directory, the court granted cross-plaintiffs' motion for summary judgment, granted cross-plaintiffs' petition for mandamus, denied the sheriff's motion for summary judgment and ordered that Ms. Baird vacate her position as director of the DOC. On appeal, the sheriff argues that the court erred in (1) finding that section 3-15012 is mandatory rather than directory; (2) issuing a writ ofmandamus removing the sheriff's appointed director in order to compel the sheriff to exercise his discretion differently; and (3) issuing a writ ofmandamus to compel a nonparty, Ms. Baird, to vacate her position as director. We affirm.

Background

In May 2003, the sheriff's office sent the resumes and credentials of the applicants for the position of director of the DOC, including those of Ms. Baird, to the board for its review and requested that the board submit its three "recommendations" to the sheriff. On June 13, 2003, after reviewing the submissions and interviewing candidates, the board submitted its list of three recommended candidates to the sheriff. Ms. Baird was not on the board's list. In July 2003, the sheriff announced his appointment of Ms. Baird as director of the DOC. Eddie Read, a private citizen, filed a complaint for injunctive relief against the sheriff and the board, seeking an order enjoining the sheriff from appointing Ms. Baird to the director position.

Cross-plaintiffs filed a cross-claim against the sheriff seeking the same relief, but also requesting an order of mandamus compelling the sheriff to appoint the director from the list nominated by the board; a finding by the court that the statute is mandatory, that the sheriff violated the statute and that his appointment was invalid; and an injunction enjoining the sheriff from assigning further duties to Ms. Baird and from appointing and assigning duties to a director not nominated by the board. The court dismissed Read's claim as moot, given that the sheriff had already appointed Ms. Baird as director. The court similarly dismissed cross-plaintiffs' count for the same relief as moot but gave them leave to file an amended complaint. The case subsequently proceeded on cross-plaintiffs' second amended complaint. Cross-plaintiffs and the sheriff filed cross-motions for summary judgment.

Finding that section 3-15012 mandated that the sheriff appoint the director from the list of three nominees presented by the board, the court granted summary judgment to the board and denied the sheriff's motion. The court's order also granted the board's petition for writ of mandamus removing "the current Director of the Cook County Board of Corrections," Ms. Baird. The court subsequently ordered that Ms. Baird vacate her post as director, which she did. The sheriff timely appeals the grant of summary judgment and mandamus to cross-plaintiffs and denial of summary judgment to him.

Analysis

Section 3-15012

The sheriff argues that the court erred in granting summary judgment to cross-plaintiffs because section 3-15012 states a directory, rather than a mandatory, provision and the sheriff could, therefore, appoint a director who was not nominated by the board. If a statute is mandatory, strict compliance therewith is required. Andrews v. Foxworthy, 71 Ill. 2d 13, 19, 373 N.E.2d 1332, 1334 (1978). Whether a statute is mandatory or directory is a matter of statutory construction. Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 96, 566 N.E.2d 1283, 1302 (1990). We review a grant of summary judgment and a matter of statutory construction, both of which concern questions of law, de novo. O'Connor v. County of Cook, 337 Ill. App. 3d 902, 906, 787 N.E.2d 185, 187 (2003).

Section 3-15012 states in its entirety:

"The Sheriff shall appoint a Director to act as the chief executive and administrative officer of the Department. The Director shall be appointed by the Sheriff from a list of 3 persons nominated by the members of the Board. He or she shall serve at the pleasure of the Sheriff. If the Director is removed, the Board shall nominate 3 persons, one of whom shall be selected by the Sheriff to serve as Director. The Director's compensation is determined by the County Board." (Emphasis added.) 55 ILCS 5/3-15012 (West 2004).

The principle rule of statutory construction is to ascertain and give effect to the intent of the legislature. Jenkins v. McIlvain, 338 Ill. App. 3d 113, 119, 788 N.E.2d 62, 66 (2003). "Legislative intent can be ascertained from a consideration of the entire Act, its nature, its object and the consequences that would result from construing it one way or the other." Fumarolo, 142 Ill. 2d at 96, 566 N.E.2d at 1302. The best indicator of legislative intent is the language of the statute. Jenkins, 338 Ill. App. 3d at 119, 788 N.E.2d at 66. Where that language is clear, it must be given effect without resort to other interpretive aids, and the court should not depart from its plain meaning by reading into the language exceptions, limitations or conditions not expressed by the legislature therein. Jenkins, 338 Ill. App. 3d at 119, 788 N.E.2d at 66. However, if a statute is susceptible to more than one reasonable interpretation, its language is ambiguous and we can consider extrinsic aids of interpretation, such as the reason and necessity for the statute and the purpose served by it. Jenkins, 338 Ill. App. 3d at 119, 788 N.E.2d at 66. Where conflicting constructions of the statute exist, the construction rendering the provision reasonable and sensible is favored over a construction rendering the provision absurd, redundant or illogical. Jenkins, 338 Ill. App. 3d at 119, 788 N.E.2d at 66.

As a starting point in our construction of section 3-15012, we look at its language, the best indication of the intent of the drafters. Paszkowski v. Metropolitan Water Reclamation District of Greater Chicago, 213 Ill. 2d 1, 7, 820 N.E.2d 401, 405 (2004). It is a basic rule of statutory construction that the wording used by the legislature be given its plain meaning. Emerald Casino, Inc. v. Illinois Gaming Board, 346 Ill. App. 3d 18, 27, 803 N.E.2d 914, 921 (2003). Section 3-15012 provides that the sheriff "shall" appoint the director from a list of three persons nominated by the board. 55 ILCS 5/3-15012. Generally, "shall" indicates a mandatory intent (Emerald Casino, Inc., 346 Ill. App. 3d at 27, 803 N.E.2d at 921), and the legislature's use of the word "shall" in a statutory provision is regarded as evidence that the legislature intended the provision to be mandatory, rather than directory (Fumarolo, 142 Ill. 2d at 96, 566 N.E.2d at 1301). Therefore, looking at the plain language of section 3-15012, it would appear that the sheriff must appoint the director from the board's list of nominees.

However, "while 'shall' ordinarily indicates a mandatory legislative intention, it may be construed as permissive if the context so indicates." Fumarolo, 142 Ill. 2d at 96, 566 N.E.2d at 1301.

"[W]hen a statute prescribes the performance of an act by a public official or a public body, the question of whether it is mandatory or directory depends on its purpose. If the provision merely directs a manner of conduct for the guidance of the officials or specifies the time for the performance of an official duty, it is directory, absent negative language denying the performance after the specified time. If, however, the conduct is prescribed in order to safeguard someone's rights, which may be injuriously affected by failure to act within the specified time, the statute is mandatory."Andrews, 71 Ill. 2d at 21, 373 N.E.2d at 1335.

Since section 3-15012 prescribes the performance of an act by a public official, the sheriff, the question of whether it is mandatory or directory depends on its purpose. Andrews, 71 Ill. 2d at 21, 373 N.E.2d at 1335. Accordingly, notwithstanding the plain meaning of the word "shall" and the fact that it does not appear ambiguous, "shall" may be interpreted to mean "must" or "may" depending on the context and intent of the legislature. Chicago School Reform Board of Trustees v. Martin, 309 Ill. App. 3d 924, 933, 723 N.E.2d 731, 738 (1999). This is especially true where, as here, an amendment to a statute is at issue. Emerald Casino, Inc., 346 Ill. App. 3d at 28-29, 803 N.E.2d at 922.

In determining the meaning of an amended statute, we must consider the circumstances surrounding the enactment of the amendment. Emerald Casino, Inc., 346 Ill. App. 3d at 28-29, 803 N.E.2d at 922. Current section 3-15012 is the result of an amendment to erstwhile section 12 of "An Act in relation to a County Department of Corrections * * * " (Act) (Ill. Rev. Stat. 1975, ch. 125, par. 212), which provided that the sheriff appoint the director of the DOC from a list of three persons nominated by the board but required that the appointment be approved by the judges of the circuit court of Cook County. Ill. Rev. Stat. 1975, ch. 125, par. 212. Pursuant to section 12, the director served a six-year term, subject to removal for cause. Ill. Rev. Stat. 1975, ch. 125, par. 212. Such removal could occur only after a public hearing or if four members of the board voted to remove. Ill. Rev. Stat. 1975, ch. 125, par. 212. As in section 3-15012, if the director was removed, the board would submit a list of three nominees from which the sheriff was to pick a new director. Ill. Rev. Stat. 1975, ch. 125, par. 212.

Legislative debates on the proposed amendment, enacted by Public Act 80-374, section 1, effective October 1, 1977 (Pub. Act 80-374,