author: DORRIAN, J.

text:
    TEAMSTERS LOCAL UNION NO. 436, Appellant-Appellant, v. CITY OF CLEVELAND, Appellee-Appellee
    [State Employment Relations Board, Intervenor-Appellee].
    No. 16AP-714
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 12, 2017
    On brief: The Chandra Law Firm, LLC, Subodh Chandra, and Donald Screen, Cleveland, for appellant. Argued: Donald Screen.
    On brief: Littler Mendelson, P.C., Stephen J. Sferra, Robert M. Wolff, and Inna Shelley, Cleveland, for appellee City of Cleveland. Argued: Robert M. Wolff.
    On brief: Michael DeWine, Attorney General, and Michael D. Allen, for Intervenor-appellee State Employment Relations Board. Argued: Michael D. Allen.
    DECISION
   DORRIAN, J.

{¶ 1} Appellant-appellant, Teamsters Local Union No. 436 ("the Union"), appeals from the September 15, 2016 judgment of the Franklin County Court of Common Pleas affirming the December 13, 2013 order issued by intervenor-appellee, State Employment Relations Board ("SERB"), dismissing the Union's request to be recognized as the exclusive bargaining representative for the Assistant Directors of Law ("ADLs") in the Civil Division of the Department of Law of appellee-appellee, City of Cleveland ("Cleveland"). For the reasons that follow, we affirm.

I. Facts and Procedural History

{¶ 2} On July 11, 2012, the Union filed a request for recognition with SERB, seeking to be recognized as the exclusive representative for purposes of collective bargaining for all ADLs in the Civil Division of Cleveland's Department of Law. Cleveland filed an objection to the request for recognition and moved to dismiss, asserting SERB lacked jurisdiction. In the alternative, Cleveland argued ADLs were excluded from the definition of public employees for purposes of the public employee collective bargaining statute. The Union filed a memorandum in opposition to Cleveland's objection and motion to dismiss.

{¶ 3} A SERB administrative law judge ("ALJ") conducted a three-day evidentiary hearing on the request for recognition. On October 15, 2013, the ALJ issued a recommended determination, which included detailed findings of fact and recommended SERB dismiss the request for recognition with prejudice. The Union filed exceptions to the recommended determination. The Union also filed a motion to withdraw the request for recognition without prejudice. Cleveland filed a memoranda in opposition to the Union's exceptions and motion to withdraw.

{¶ 4} On December 13, 2013, SERB issued an order dismissing the Union's request for recognition. The order adopted the ALJ's recommended determination and held ADLs were exempt from the definition of the term "public employee" contained in the collective bargaining statute. The order also denied the motion to withdraw, concluding that permitting withdrawal of the request for recognition without prejudice after the recommended determination had been issued would waste significant resources and undermine SERB's processes.

{¶ 5} The Union appealed SERB's order to the Franklin County Court of Common Pleas pursuant to R.C. 119.12. On September 15, 2016, the common pleas court issued a judgment affirming SERB's order. The court held ADLs were excluded from the definition of the term "public employee" for purposes of the collective bargaining statute under the exception set forth in R.C. 4117.01(C)(9).

II. Assignment of Error

{¶ 6} The Union appeals and assigns the following single assignment of error for our review:

The trial court abused its discretion in affirming the State Employment Relations Board's dismissal of Appellant's Request for Recognition, as the dismissal "is not supported by reliable, probative, and substantial evidence and is not in accordance with law."

III. Discussion

{¶ 7} In an administrative appeal under R.C. 119.12, a common pleas court reviews the entire record and determines whether a board's order is supported by reliable, probative, and substantial evidence, and is in accordance with law. Pons v. Ohio State Med. Bd. , 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). The standard of review for a court of appeals in an administrative appeal is more limited; we must determine whether the common pleas court abused its discretion. Id. An abuse of discretion occurs when a decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). However, on questions of whether the board's decision was in accordance with law we exercise plenary review. Gralewski v. Ohio Bur. of Workers' Comp. , 167 Ohio App.3d 468, 2006-Ohio-1529, 855 N.E.2d 879 (10th Dist.).

{¶ 8} Nevertheless, the Supreme Court of Ohio has held that in reviewing SERB orders, "courts must accord due deference to SERB's interpretation of R.C. Chapter 4117. Otherwise, there would be no purpose in creating a specialized administrative agency, such as SERB, to make determinations." Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd. , 40 Ohio St.3d 257, 261, 533 N.E.2d 264 (1988). The court concluded that "[i]t was clearly the intention of the General Assembly to vest SERB with broad authority to administer and enforce R.C. Chapter 4117. This authority must necessarily include the power to interpret the Act to achieve its purposes." (Citations omitted.) Id.

{¶ 9} Ohio's public employee collective bargaining law provides that public employees have the right to form or join employee organizations and engage in collective bargaining with their public employers to determine wages, hours, and other terms and conditions of employment. R.C. 4117.03(A). "Public employee" is defined as "any person holding a position by appointment or employment in the service of a public employer, including any person working pursuant to a contract between a public employer and a private employer and over whom the national labor relations board has declined jurisdiction on the basis that the involved employees are employees of a public employer." R.C. 4117.01(C). The law excludes certain categories of employees from the definition of the term public employee. R.C. 4117.01(C)(1) through (17). As relevant to this appeal, the exceptions include "[e]mployees of a public official who act in a fiduciary capacity, appointed pursuant to section 124.11 of the Revised Code." R.C. 4117.01(C)(9).

{¶ 10} The Union and Cleveland stipulated in the proceedings before SERB that Cleveland is a "public employer" and the Union is an "employee organization" for purposes of Ohio's public employee collective bargaining law. They further stipulated ADLs were employed by Cleveland. Thus, ADLs would be public employees entitled to engage in collective bargaining unless they fit within one of the exceptions under the law. The SERB ALJ concluded ADLs were excluded from the definition of "public employee" under the exception set forth in R.C. 4117.01(C)(9) and recommended SERB dismiss the Union's request for recognition. SERB adopted the ALJ's findings and reasoning in its order dismissing the request for recognition, and the common pleas court affirmed SERB's order.

{¶ 11} As SERB and the common pleas court recognized, the exception contained in R.C. 4117.01(C)(9) sets forth a three-part test. To fit within the exception, an employee must be (1) an employee of a public official, (2) who acts in a fiduciary capacity, and is (3) appointed pursuant to R.C. 124.11. All three parts of the exception must be met for an employee to be excluded from being a public employee for purposes of the public employee collective bargaining law. Therefore, it is necessary to consider whether ADLs satisfy each of the elements of the exception under R.C. 4117.01(C)(9).

A. Employees of a Public Official

{¶ 12} First, we will review whether the common pleas court erred by affirming SERB's conclusion that ADLs are "employees of a public official." SERB concluded ADLs were employees of a public official because the Director of Law ("Director") was a public official and ADLs were appointed by the Director. The common pleas court affirmed SERB's decision, finding that, pursuant to Cleveland city ordinances, the Director was authorized to determine the appropriate number of ADLs and hire individuals to fill those positions, and to supervise the work of ADLs. The common pleas court also cited case law holding the Director has authority to fire ADLs.

{¶ 13} The Union challenges SERB's interpretation of the phrase "employees of a public official" in the context of R.C. 4117.01(C)(9). Therefore, we will apply a de novo standard of review, while giving appropriate deference to SERB's interpretation of the statute.

{¶ 14} The Union and Cleveland stipulated in the proceedings before SERB that ADLs are employed by Cleveland; however, the inquiry does not end there. "In enacting a statute, it is presumed that [t]he entire statute is intended to be effective." R.C. 1.47(B). Under R.C. 4117.01(C), a public employee is defined as "any person holding a position by appointment or employment in the service of a public employer." The term "public employer" as defined under R.C. 4117.01(B) does not include individual public officials:

"Public employer" means the state or any political subdivision of the state located entirely within the state, including, without limitation, any municipal corporation with a population of at least five thousand according to the most recent federal decennial census; county; township with a population of at least five thousand in the unincorporated area of the township according to the most recent federal decennial census; school district; governing authority of a community school established under Chapter 3314. of the Revised Code; college preparatory boarding school established under Chapter 3328. of the Revised Code or its operator; state institution of higher learning; public or special district; state agency, authority, commission, or board; or other branch of public employment. "Public employer" does not include the nonprofit corporation formed under section 187.01 of the Revised Code.

Thus, in order for the phrase "employees of a public official" in R.C. 4117.01(C)(9) to be effective, as is presumed under our principles of statutory construction, it must refer to something other than the state or the political subdivision that employs the individual.

{¶ 15} The Union concedes that the phrase "employees of a public official" is not limited to individuals who are directly employed by a public official. However, the Union argues for a distinction between employees of public officials in their official capacities, such as employees of an elected official's office, and employees of a government entity or department. As an example, the Union asserts that assistant public defenders are employees of a public official (i.e., the public defender), whereas ADLs in this case are employees of Cleveland and not the Director.

{¶ 16} The leading decision on R.C. 4117.01(C)(9) was rendered by this court in Ohio Civ. Serv. Emps. Assn., AFSCME Local 11, AFL-CIO v. State Emp. Relations Bd. , 144 Ohio App.3d 96, 759 N.E.2d 794 (10th Dist.2001) ( " OCSEA "), which involved a request by the Ohio Civil Service Employees Association for recognition as the bargaining representative for certain employees of the Ohio Office of the Public Defender holding the position of assistant public defender. OCSEA at 97, 759 N.E.2d 794. SERB dismissed the request for recognition, holding the assistant public defenders were fiduciary employees and, therefore, were excluded under R.C. 4117.01(C)(9). Id. The common pleas court affirmed and the case was appealed to this court. As discussed more fully below, this court ultimately reversed, finding that the assistant public defenders did not satisfy the "act in a fiduciary capacity" portion of the statutory exclusion. Id. at 103-04, 759 N.E.2d 794. Although Cleveland refers to assistant public defenders as an example of "employees of a public official," the OCSEA decision did not contain any detailed analysis of that element of the R.C. 4117.01(C)(9) exception; instead, the court focused solely on the fiduciary capacity element of the exception. Thus, the OCSEA decision provides little guidance with respect to the determination of whether ADLs are employees of a public official.

{¶ 17} Under the Cleveland city charter, the Director is designated as the "legal advisor of and attorney and counsel for the City, and for all officers and departments thereof in matters relating to their official duties." Cleveland City Charter, Section 83. The charter provides that the Director "shall prosecute or defend all suits for and in behalf of the City, and shall prepare all contracts, bonds and other instruments in writing in which the City is concerned and shall endorse on each his approval of the form and correctness thereof." Cleveland City Charter, Section 83. The Cleveland city code provides that the Director shall supervise and control the Department of Law. The Director is authorized to appoint "such number of Assistant Directors of Law as he or she deems necessary for the proper conduct of the work of the civil branch" (although those appointments are subject to approval of the Cleveland city council). Codified Ordinances of Cleveland, Ohio, Section 125.01(a).

{¶ 18} The Director of Law, Barbara Langhenry, testified at the SERB hearing that she is not able to personally fulfill all the duties outlined for the Director in the Cleveland city charter. Langhenry testified she did not personally prepare and review the hundreds of contracts entered into by Cleveland each year; rather, ADLs performed those duties. Similarly, Langhenry testified that as Director, she did not personally appear in court to defend lawsuits against Cleveland, and that ADLs were involved in litigating those cases.

{¶ 19} The Union argues the Director merely supervises the work of ADLs, and that ADLs are "simply attorneys who, like the Law Director herself, are employed by a public entity, i.e., the City of Cleveland." (Appellant's Brief at 37.) The Union points to the fact that the Director heads the Department of Law, not the "Office of the Law Director." (Appellant's Brief at 37.) SERB and the common pleas court did not find this distinction to be legally significant. As explained above, the Cleveland city charter prescribes certain duties to be performed by the Director. The city code authorizes her to appoint ADLs as she deems necessary to complete these duties. The Director's relationship to ADLs is thus more than that of a mere supervisor. ADLs are selected and appointed by the Director to perform her legally required duties. Giving the appropriate deference to SERB in the interpretation of R.C. Chapter 4117, under these circumstances, we conclude the common pleas court did not err by affirming SERB's conclusion that ADLs are "employees of a public official" for purposes of R.C. 4117.01(C)(9).

B. Employees Who Act in a Fiduciary Capacity

{¶ 20} Next, we turn to the issue of whether ADLs "act in a fiduciary capacity" for purposes of R.C. 4117.01(C)(9). SERB adopted the ALJ's conclusion that ADLs satisfied this part of the statutory test because they act in a fiduciary capacity with respect to Cleveland and the Director. The common pleas court concluded SERB's conclusion was supported by the ALJ's findings of fact regarding the duties and responsibilities of ADLs and the trust and confidence placed in ADLs by the Director.

{¶ 21} In its decision affirming SERB's order, the common pleas court stated R.C. 4117.01(C)(9) does not specify that an employee must act in a fiduciary capacity toward the public official who employs him or her, but merely that the employee must act in a fiduciary capacity. On appeal, the Union challenges this conclusion, arguing the statute must be understood to require that the employee act in a fiduciary capacity toward the public official for whom he or she works. This is an issue of statutory interpretation, which would be subject to de novo review. Assuming without deciding that the common pleas court erred in its construction of the statute, however, that would not resolve the matter because SERB and the common pleas court concluded ADLs acted in a fiduciary capacity toward both Cleveland and the Director. Therefore, we will review the common pleas court's affirmation of SERB's conclusion that this portion of the statutory test was satisfied.

{¶ 22} As explained above, in reviewing SERB's conclusion that ADLs act in a fiduciary capacity to both Cleveland and the Director, the common pleas court was required to determine whether the order was supported by reliable, probative, and substantial evidence. We review the common pleas court's decision for abuse of discretion. Pons at 621, 614 N.E.2d 748.

{¶ 23} The SERB ALJ made detailed findings of fact regarding the duties and responsibilities of ADLs. She found that ADLs provide daily legal advice to various city departments, including Community Development, Economic Development, Building and Housing, and Port Control. ADLs directly advise the Port Control Director on matters related to the operations of Cleveland Hopkins International Airport and on harbor-related issues. ADLs are directly involved in code enforcement litigation, as well as civil rights, environmental, police misconduct, negligence, and contract cases. ADLs provide legal advice to the Cleveland Department of Public Works and to the Cleveland's utility providers. ADLs also advise other city departments, including Human Resources, Public Safety, Finance, Civil Service Commission, City Council, and the Cleveland Municipal Court. She found ADLs "perform sophisticated legal work that requires significant training, loyalty, and integrity [and] exercise discretion and good-faith judgment on behalf of the City" and that "[d]epartment directors rely on ADLs' specialized training, expertise, and experience to provide legal and other advice, often on a daily basis." (SERB Opinion 2013-002, Recommended Determination at 17.) The ALJ further found ADLs "work on extremely sensitive legal matters and have access to the City's most sensitive confidential information." (SERB Opinion 2013-002, Recommended Determination at 18.)

{¶ 24} With respect to ADLs' relationship to the Director, the ALJ found the Director relied on ADLs' representations, research, legal interpretations, and work product. She further found that when granting authority to settle litigation, the Director typically did not review the entire case file, but relied on ADLs' strategic assessment of the case. The ALJ found that "it is extremely important for the Director to have great trust and confidence in her ADLs' loyalty and integrity, judgment, decision making, work product, and allegiance to the City [and that] [t]he extent to which the Director relies on the integrity, advice, guidance, work product, and loyalty of ADLs cannot be understated." (SERB Opinion 2013-002, Recommended Determination at 17.)

{¶ 25} Based on these findings, the SERB ALJ concluded ADLs owed a fiduciary duty to both their clients and their employer, which was ultimately the same entity-i.e., Cleveland. Furthermore, the ALJ concluded that ADLs acted in a fiduciary capacity toward the Director, based on her confidence and reliance on them. Distinguishing OCSEA , the ALJ concluded that both Cleveland and the Director relied on the "quality of the ADLs' work product, specialized areas of legal expertise, day-to-day legal advice, and their fidelity, loyalty, and integrity, to carry out their duties." (SERB Opinion 2013-002, Recommended Determination at 21.) Therefore, the ALJ concluded, "[b]ecause the interests of the ADLs, the Director, and the City are synonymous, ADLs are fiduciaries ineligible for bargaining under R.C. 4117.01(C)(9)." (SERB Opinion 2013-002, Recommended Determination at 21.) SERB adopted these findings and conclusions in its order denying the Union's request for recognition.

{¶ 26} In affirming SERB's order, the common pleas court found the ALJ had made "exhaustive findings of fact" that were adopted by SERB. (Decision and Jgmt. Entry at 26.) The common pleas court concluded these findings supported SERB's conclusions that the Director placed great trust and confidence in ADLs, ADLs performed sophisticated legal work requiring significant training, loyalty, and integrity, ADLs exercised discretion and good-faith judgment on behalf of Cleveland, and ADLs worked on extremely sensitive matters and had access to sensitive confidential information. Accordingly, the common pleas court held SERB properly concluded that ADLs acted in a fiduciary capacity for purposes of R.C. 4117.01(C)(9).

{¶ 27} The Supreme Court has held that "[t]he position of assistant director of law is necessarily a position of trust and confidence." State ex rel. Ryan v. Kerr , 126 Ohio St. 26, 30, 183 N.E. 535 (1932). See also DeWoody v. Underwood , 136 Ohio St. 575, 580, 27 N.E.2d 240 (1940) (holding that ALDs "occupy a fiduciary relation to their principal, the director of law"). Notwithstanding those pronouncements, the Union argues that SERB's decision in the present case is contrary to OCSEA . The Union notes the OCSEA court found it significant that the assistant public defenders had little or no discretion with respect to matters involving the management and administration of the office of the public defender. The Union argues that ADLs in the present case have no involvement in the management or administration of the Department of Law. Therefore, the Union claims, ADLs do not act in a fiduciary capacity toward their employer.

{¶ 28} As both SERB and the common pleas court noted, the term "fiduciary capacity" is not defined in Ohio Revised Code Chapter 4117. Because of that lack of an internal definition, in OCSEA this court looked to case law analyzing the meaning of the term "fiduciary relationship" under R.C. 124.11. OCSEA at 101-02, 759 N.E.2d 794, citing State ex rel. Charlton v. Corrigan , 36 Ohio St.3d 68, 521 N.E.2d 804 (1988). The court noted that factors to be considered in determining whether an employee acts in a fiduciary capacity include the duties assigned to the employee, whether the employee has access to confidential and sensitive information, and whether the employee makes daily discretionary decisions in resolving the problems of those who contact the agency. OCSEA at 102, 759 N.E.2d 794, citing Charlton at 71-73, 521 N.E.2d 804. The court further concluded that in the collective bargaining context, courts should also consider the fundamental purpose of excluding some employees from collective bargaining and whether a particular employee "perform[s] the type of duties and share[s] the type of responsibility that would make it inappropriate for them to have personal interests at stake that may be in conflict with that of the employer during bargaining activities." OCSEA at 103, 759 N.E.2d 794.

{¶ 29} The OCSEA decision concluded that assistant public defenders exercised discretion on behalf of the individual criminal defendants that they served, but not on behalf of the agency of the Office of the Public Defender. Id. The court reasoned that the assistant public defenders' "duties do not require them to act with particular fidelity to the employer as employer , nor to exercise the type of discretion and loyalty and trustworthiness that must be exercised by those employees who participate in the administration of the agency." (Emphasis sic.) Id. at 103-04, 759 N.E.2d 794. The court held the assistant public defenders were not excluded from collective bargaining under R.C. 4117.01(C)(9) because there was "no 'special' relationship [between the assistant public defenders and the public defender] that is more than the ordinary relationship of an employer and employee so far as the interests sought to be protected by R.C. Chapter 4117 are concerned." Id. at 104, 759 N.E.2d 794. The OCSEA court also stated that "when collective bargaining is at issue * * * the court must consider whether the employees perform the type of duties and share the type of responsibility that would make it inappropriate for them to have personal interests at stake that may be in conflict with that of the employer during bargaining activities, such as contract negotiations, grievance proceedings, etc." Id. at 103, 759 N.E.2d 794.

{¶ 30} As noted above, SERB considered OCSEA but found the decision distinguishable. Specifically, SERB found that ADLs' clients are various agencies and departments of Cleveland, which is also their employer, unlike OCSEA where the public defenders' criminal-defendant clients were distinct from their employer, the office of the public defender. SERB also made specific findings regarding the Director's reliance on ADLs' integrity and loyalty, which it concluded created a fiduciary relationship. In effect, SERB appears to have concluded that there was a special relationship between ADLs, Cleveland, and the Director such that it would be inappropriate for ADLs to engage in collective bargaining with the Director or Cleveland.

{¶ 31} The SERB decision contained extensive factual findings to support its conclusions regarding the duties and responsibilities of ADLs and the reliance on ADLs by both Cleveland and the Director. Based on the findings and analysis contained in that decision, we conclude the common pleas court did not abuse its discretion in affirming SERB's conclusion that ADLs acted in a fiduciary capacity for purposes of R.C. 4117.01(C)(9).

C. Employees Appointed Pursuant to R.C. 124.11

{¶ 32} Finally, we review whether ADLs are "appointed pursuant to section 124.11 of the Revised Code." R.C. 4117.01(C)(9). The SERB ALJ concluded the "appointed pursuant to" clause in R.C. 4117.01(C)(9) referred to whether an employee held a position in the unclassified service. The ALJ noted ADLs were designated as part of the unclassified service under Cleveland's civil service provisions; therefore, the ALJ reasoned, because ADLs were in the unclassified service they satisfied the requirement of being "appointed pursuant to section 124.11 of the Ohio Revised Code" for purposes of R.C. 4117.01(C)(9). The ALJ concluded no home-rule analysis was necessary because there was no conflict between the Ohio Revised Code and the Cleveland city charter. SERB adopted the ALJ's reasoning in its order dismissing the request for recognition. The common pleas court affirmed SERB's conclusion, holding there was no conflict between R.C. 124.11(A)(11) and Section 126(1)(b) of the Cleveland city charter because both the statute and the charter provide ADLs are unclassified civil servants. Accordingly, the court reasoned, no home-rule analysis was necessary and the rule of charter supremacy did not apply.

{¶ 33} Here, the Union challenges SERB's legal interpretation of the phrase "appointed pursuant to section 124.11 of the Revised Code." Therefore, we will apply a de novo standard of review, while giving appropriate deference to SERB's interpretation of the statute.

{¶ 34} The Union argues the phrase "appointed pursuant to" implies an appointing authority and mechanism under which appointments are made. The Union asserts that R.C. 4117.01(C)(9) cannot apply to ADLs because they are appointed under the authority of the Cleveland charter and ordinances, not state law. The Union further argues that under the principle of home rule, the Cleveland city charter prevails and the appointment of civil service employees is within the city's power of local self-government. Therefore, the Union claims, ADLs are not covered by the exception under R.C. 4117.01(C)(9) because they are not appointed pursuant to R.C. 124.11.

{¶ 35} Giving due deference to SERB's interpretation, we do not find merit in the Union's proposed interpretation of the "appointed pursuant to" clause in R.C. 4117.01(C)(9). As the Union concedes, R.C. 124.11 does not authorize the appointment of civil service employees. Instead, the statute simply provides for the division of the civil service into classified and unclassified positions. Accordingly, reading the phrase "appointed pursuant to section 124.11 of the Revised Code" in R.C. 4117.01(C)(9) to mean that an employee must be appointed under the authority of R.C. 124.11 to qualify for the exception would render the clause a nullity, because no employees are appointed under the authority of that statute. "In enacting a statute, it is presumed that [t]he entire statute is intended to be effective." R.C. 1.47(B).

Therefore, we presume the "appointed pursuant to" clause of R.C. 4117.01(C)(9) was intended to have some meaning.

{¶ 36} When interpreting a statute, "[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage." R.C. 1.42. The phrase "pursuant to" can be defined as "in compliance with" or "in accordance with." Black's Law Dictionary 1431 (10th Ed.2014). See also State v. Niesen-Pennycuff , 132 Ohio St.3d 416, 2012-Ohio-2730, 973 N.E.2d 221, ¶ 19, citing Black's Law Dictionary 1356 (9th Ed.2009). Thus, contrary to the Union's argument, the "appointed pursuant to" clause in R.C. 4117.01(C)(9) does not necessarily imply an appointing authority and mechanism. Instead, for employees who are not subject to the civil service classifications of R.C. 124.11, the clause may be construed to mean that an employee qualifies for the exception if she is appointed to a classified or unclassified position that is in compliance with or in accordance with the classifications contained in R.C. 124.11. Cleveland has adopted its own system of civil service classification under its city charter. Under Section 126(1)(b) of the Cleveland city charter, assistant directors of departments are categorized as unclassified civil service employees. Similarly, under R.C. 124.11(A)(11), assistants to city law directors are categorized as unclassified positions. Thus, the classification of ADLs under the Cleveland charter is in accordance with classification of assistants to city directors of law under R.C. 124.11. This interpretation of the statute is also consistent with the reasoning of the SERB ALJ, which was adopted by SERB. As noted above, we accord due deference to SERB's interpretation of Ohio Revised Code Chapter 4117. See Lorain City School Dist. , at 261, 533 N.E.2d 264. Therefore, we conclude the common pleas court did not err by affirming SERB's conclusion that the ADLs were appointed pursuant to R.C. 124.11 for purposes of R.C. 4117.01(C)(9).

{¶ 37} Because the common pleas court did not err by affirming SERB's conclusion the ADLs satisfied each of the elements of the exception under R.C. 4117.01(C)(9), the common pleas court did not err by affirming SERB's order dismissing the Union's request for recognition because ADLs were not public employees for purposes of the public employee collective bargaining law.

D. The Union's Alternative Statutory Construction Argument

{¶ 38} Finally, the Union further argues that if the General Assembly had intended to exclude ADLs from collective bargaining, it would have done so under R.C. 4117.01(C)(8), which provides that "[e]mployees and officers of the courts, assistants to the attorney general, assistant prosecuting attorneys, and employees of the clerks of courts who perform a judicial function" are excluded from the definition of public employee for purposes of the public employee collective bargaining law. As explained above, SERB is entitled to deference in its interpretation of Ohio Revised Code Chapter 4117, and the fact that ADLs could have been included in the exclusion under R.C. 4117.01(C)(8) does not render unreasonable SERB's conclusion that they were covered by the exclusion contained in R.C. 4117.01(C)(9). See State ex rel. Bertaux v. State Teachers Retirement Sys. Bd. , 10th Dist. No. 11AP-504, 2012-Ohio-5900, 2012 WL 6521836, ¶ 9 ("The fact that relator can offer an alternative interpretation [of the relevant statute] does not make STRB's interpretation unreasonable. Moreover, even if we agreed that relator's proposed interpretation was equally reasonable, STRB's interpretation would be entitled to deference, and we would focus only on the question of whether the STRB interpretation was reasonable.").

IV. Conclusion

{¶ 39} Having concluded that SERB properly found that each of the three elements of the statutory exclusion contained in R.C. 4117.01(C)(9) were satisfied, we overrule the Union's sole assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

TYACK, P.J., and KLATT, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Appellee, v. Dennis L. BAILEY, Appellant.
    Docket No. 121450
    Supreme Court of Illinois.
    Opinion filed October 5, 2017. Rehearing denied March 19, 2018.
    Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, Deputy Defender, and Jessica Wynne Arizo, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.
    Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick and Brian McLeish, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE BURKE delivered the judgment of the court, with opinion.

¶ 1 Defendant Dennis Bailey filed in the circuit court of Will County a pro se motion seeking leave to file a second postconviction petition under section 122-1(f) of the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1(f) (West 2014)). The State filed a written objection to the motion, and the circuit court held a hearing at which the State appeared and was permitted to argue against the motion and petition. Defendant was neither present at the hearing nor represented by counsel. At the close of the hearing, the circuit court denied defendant's motion for leave to file a successive postconviction petition.

¶ 2 Defendant appealed, arguing that the State should not have been allowed to provide input to the court regarding his motion for leave to file. The appellate court rejected this argument and affirmed the denial of the motion. People v. Bailey , No. 3-14-0847 (2016) (unpublished summary order under Illinois Supreme Court Rule 23(c) ). We granted defendant's petition for leave to appeal.

¶ 3 BACKGROUND

¶ 4 In July 2004, defendant was charged with one count of residential burglary and one count of disarming a peace officer. The circuit court allowed defendant's public defender to withdraw, and defendant proceeded pro se at his 2005 jury trial. Defendant was found guilty as charged and was sentenced to concurrent prison terms of 24 years on each of the two counts. On direct appeal, defendant's sole claim was that his waiver of trial counsel had not been voluntary and, as a result, the trial court erred in permitting him to represent himself at trial. The appellate court affirmed defendant's convictions and sentence (People v. Bailey , No. 3-06-0139 (2008) (unpublished order under Illinois Supreme Court Rule 23 )), and we denied his petition for leave to appeal ( People v. Bailey , No. 106964, 229 Ill.2d 672, 326 Ill.Dec. 872, 900 N.E.2d 1119 (Ill. Nov. 26, 2008) ).

¶ 5 In April 2009, defendant filed pro se his first petition for postconviction relief under section 122-1(a) of the Act ( 725 ILCS 5/122-1(a) (West 2014)). The trial court dismissed the petition on July 16, 2009, and defendant appealed. Appointed appellate counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley , 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), and on April 4, 2011, the appellate court granted counsel's motion and affirmed the trial court's dismissal of the postconviction petition. People v. Bailey , No. 3-09-0700 (2011) (unpublished summary order under Illinois Supreme Court Rule 23(c) ).

¶ 6 Defendant then filed in the circuit court of Will County a pro se motion for leave to file a second postconviction petition pursuant to section 122-1(f) of the Act ( 725 ILCS 5/122-1(f) (West 2014)). Defendant did not address cause and prejudice in the motion, as required by the Act. Rather, he set forth claims alleging actual innocence, newly discovered evidence, denial of due process, speedy trial violation, ineffective assistance of counsel (prior to withdrawal), and abuse of discretion by the trial court.

¶ 7 The State filed a written objection, arguing that defendant's motion for leave to file a successive postconviction petition should be denied because all of the claims were either barred by res judicata or did not meet the cause and prejudice test because no facts were alleged to explain why the claims were not raised in defendant's initial postconviction petition. In addition, the State argued that defendant alleged no facts that would support a finding of actual innocence. Defendant filed a response to the State's objection, in which he attempted to explain the lack of evidentiary support for his motion by asserting that he expected a favorable ruling in a declaratory judgment suit he filed against the trial judge, which would provide the evidence necessary to support his claims.

¶ 8 On October 6, 2014, the circuit court held a hearing on defendant's motion. Defendant was not present at the hearing, nor was he represented by counsel. A Will County assistant State's Attorney appeared at the hearing and argued that defendant's motion for leave to file should be dismissed because the claims raised in the successive petition could have been raised in defendant's first postconviction petition and defendant failed to establish cause and prejudice for failing to do so. After noting defendant's written reply to the State's objections, the circuit court denied the motion and dismissed the petition.

¶ 9 Defendant appealed, raising as his only argument that the circuit court erred in permitting the State to participate at the cause and prejudice stage of the successive postconviction proceedings. The appellate court rejected this claim and affirmed the lower court's denial of defendant's motion in an unpublished order. People v. Bailey , No. 3-14-0847 (2016) (unpublished summary order under Illinois Supreme Court Rule 23(c) ). In rejecting defendant's claim, the appellate court relied on the majority holding in People v. Bailey , 2016 IL App (3d) 140207, 406 Ill.Dec. 296, 60 N.E.3d 198, which addressed the identical issue raised here. In that case, the majority, applying "the rule of law that parties are generally permitted to respond to motions filed by the opposing party," held that the proper inquiry was whether section 122-1(f) of the Act creates an exception prohibiting the State from filing a response to a defendant's motion. Id. ¶ 20. Finding no such prohibition in the statute, the majority held that the State was permitted to offer input on whether the circuit court should allow the defendant's motion, noting that the State's input would "assist in bringing threshold deficiencies in these motions *** to the trial court's attention." Id. ¶ 25.

¶ 10 Defendant filed a petition for leave to appeal in this court, which we granted on January 25, 2017. Ill. S. Ct. R. 315 (eff. Mar. 25, 2016).

¶ 11 ANALYSIS

¶ 12 The single issue before us is whether, under the Post-Conviction Hearing Act ( 725 ILCS 5/122-1 et seq. (West 2014)), the denial of defendant's motion for leave to file a successive postconviction petition must be reversed because the circuit court permitted the State to provide input on the merits of the motion and petition at the cause and prejudice stage. Defendant argues that the State improperly influenced the trial court's decision by filing a written objection and by arguing against the motion at an ex parte hearing held by the court.

¶ 13 The denial of a defendant's motion for leave to file a successive postconviction petition is reviewed de novo . People v. Wrice , 2012 IL 111860, ¶ 50, 357 Ill.Dec. 33, 962 N.E.2d 934. In addition, the parties agree that our review is de novo here because the issue before us is one of statutory construction, requiring us to determine the proper interpretation of section 122-1(f) of the Act, which governs successive postconviction petitions. See People v. Smith , 2014 IL 115946, ¶ 21, 387 Ill.Dec. 1, 21 N.E.3d 1172. When construing a statute, our primary objective is to ascertain and give effect to the legislature's intent. People v. Whitney , 188 Ill. 2d 91, 97, 241 Ill.Dec. 770, 720 N.E.2d 225 (1999). When determining the meaning of a provision of a statute, the court should consider the statute in its entirety, including the subject addressed and the legislature's apparent objective. People v. Davis , 199 Ill. 2d 130, 135, 262 Ill.Dec. 721, 766 N.E.2d 641 (2002).

¶ 14 Section 122-1(f) of the Act provides as follows:

"(f) Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process." 725 ILCS 5/122-1(f) (West 2014).

¶ 15 The Act contemplates the filing of only one postconviction petition and provides in section 122-3 ( 725 ILCS 5/122-3 (West 2014) ) that "[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." Thus, section 122-1(f) represents an exception to this rule, permitting a successive petition, but only if the defendant first obtains permission from the court and demonstrates to the court cause and prejudice for not having raised the alleged errors in his or her initial postconviction petition. See Smith , 2014 IL 115946, ¶ 33, 387 Ill.Dec. 1, 21 N.E.3d 1172 ; People v. Evans , 2013 IL 113471 ¶ 18, 371 Ill.Dec. 168, 989 N.E.2d 1096 ; People v. Tidwell , 236 Ill. 2d 150, 157, 337 Ill.Dec. 877, 923 N.E.2d 728 (2010). The provision makes no mention of what role, if any, the State may play at this cause-and-prejudice stage of successive postconviction proceedings. In other words, the statute contains no express language either permitting or forbidding the State's input when the circuit court must decide whether to grant or deny a defendant's motion for leave to file a successive postconviction petition.

¶ 16 Defendant contends that the absence of language in the Act expressly allowing the State to file a responsive pleading to the motion for leave to file a successive postconviction petition, or to provide input on the court's decision to allow or deny a successive postconviction petition, should be interpreted to mean that the legislature did not contemplate the State's participation at this stage. We agree.

¶ 17 The Post-Conviction Hearing Act is a legislative creation that permits incarcerated defendants to collaterally attack their conviction by asserting that they suffered a substantial violation of their constitutional rights at trial. 725 ILCS 5/122-1(a) (West 2014); see also People v. Edwards , 197 Ill. 2d 239, 243-44, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001). The Act delineates the process for litigating all postconviction petitions. In section 122-1(b), the Act dictates that a postconviction petition must be verified by affidavit and filed with the clerk of the court in which the conviction took place. 725 ILCS 5/122-1(b) (West 2014). The filing of a postconviction petition is subject to certain specified time limitations, except that no such limitations apply to a claim of actual innocence. 725 ILCS 5/122-1(c) (West 2014).

¶ 18 Interpreting the Act in People v. Gaultney , 174 Ill. 2d 410, 418, 221 Ill.Dec. 195, 675 N.E.2d 102 (1996), we determined that, when an initial postconviction petition is filed, proceedings are divided into three stages. At the first stage, the circuit court must review the petition within 90 days of its filing and determine whether the petition states the gist of a constitutional violation or is either frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2014); see also Edwards , 197 Ill. 2d at 244, 258 Ill.Dec. 753, 757 N.E.2d 442. If the postconviction petition is not dismissed at the first stage, the petition advances to the second stage, at which time the circuit court may appoint counsel to represent the defendant and to file any amendments to the petition deemed necessary. 725 ILCS 5/122-4 (West 2014) ; see also Edwards , 197 Ill. 2d at 245-46, 258 Ill.Dec. 753, 757 N.E.2d 442. At this stage, the court determines whether the petition and any accompanying documentation make a substantial showing of a constitutional violation. Gaultney , 174 Ill. 2d at 418, 221 Ill.Dec. 195, 675 N.E.2d 102 ; Edwards , 197 Ill. 2d at 246, 258 Ill.Dec. 753, 757 N.E.2d 442. If the petition fails to do so, it is dismissed. If not dismissed, however, the petition advances to the third stage, where the circuit court conducts an evidentiary hearing before deciding whether to grant relief. 725 ILCS 5/122-6 (West 2014) ; Edwards , 197 Ill. 2d at 246, 258 Ill.Dec. 753, 757 N.E.2d 442 ; Gaultney , 174 Ill. 2d at 418, 221 Ill.Dec. 195, 675 N.E.2d 102.

¶ 19 In section 122-2.1(c), the Act provides that "[i]n considering a petition pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding." 725 ILCS 5/122-2.1(c) (West 2014). In Gaultney , we interpreted this section to mean that, at the first stage, "the Act does not permit any further pleadings from the defendant or any motions or responsive pleadings from the State. Instead, the circuit court considers the petition independently, without any input from either side." Gaultney , 174 Ill. 2d at 418, 221 Ill.Dec. 195, 675 N.E.2d 102.

¶ 20 Our conclusion in Gaultney that the Act does not contemplate input from the State until after the petition is evaluated by the court was supported by the fact that section 122-5 of the Act expressly provides that the State may file a motion to dismiss or answer the petition "[w]ithin 30 days after the making of an order pursuant to subsection (b) of Section 122-2.1." 725 ILCS 5/122-5 (West 2014) ; Gaultney , 174 Ill. 2d at 418, 221 Ill.Dec. 195, 675 N.E.2d 102. This is the point when the petition has advanced to the second stage and the petitioner, if indigent, is entitled to appointed counsel. 725 ILCS 5/122-4 (West 2014). In Gaultney , therefore, we determined that, although the Act did not expressly prohibit the State's input at the first stage, "[t]he sections of the Act, when considered collectively, do not authorize the filing of a motion to dismiss at the first stage." Gaultney , 174 Ill. 2d at 419, 221 Ill.Dec. 195, 675 N.E.2d 102. Prior to the second stage, the State's input would be "premature and improper." Id. Similarly, we now hold that it is premature and improper for the State to provide input to the court before the court has granted a defendant's motion for leave to file a successive petition.

¶ 21 Although we have not previously considered the exact issue before us now, when interpreting section 122-1(f) of the Act in Smith , 2014 IL 115946, 387 Ill.Dec. 1, 21 N.E.3d 1172, we held:

"To meet the cause-and-prejudice test for a successive petition requires the defendant to 'submit enough in the way of documentation to allow a circuit court to make that determination.' Tidwell , 236 Ill. 2d at 161 [337 Ill.Dec. 877, 923 N.E.2d 728]. 'This is so under either exception, cause and prejudice or actual innocence.' [ People v. ] Edwards , 2012 IL 111711, ¶ 24 [360 Ill.Dec. 784, 969 N.E.2d 829]. Consistent with our holdings in Pitsonbarger , Tidwell , and Edwards , we conclude that leave of court to file a successive postconviction petition should be denied when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further proceedings. See, e.g. , [ People v. ] Pitsonbarger , 205 Ill. 2d [444,] 463 [275 Ill.Dec. 838, 793 N.E.2d 609] [ (2002) ] ('a petitioner must establish cause and prejudice as to each individual claim asserted in a successive petition'); Tidwell , 236 Ill. 2d at 161 [337 Ill.Dec. 877, 923 N.E.2d 728] (a defendant seeking leave to institute a successive postconviction 'must submit enough in the way of documentation to allow a circuit court to make that determination'); Edwards , 2012 IL 111711, ¶ 24 [360 Ill.Dec. 784, 969 N.E.2d 829] ('leave of court should be denied only where it is clear, from a review of the successive petition and the documentation provided by the petitioner' that the petitioner's claims fail as a matter of law)." Smith , 2014 IL 115946, ¶ 35, 387 Ill.Dec. 1, 21 N.E.3d 1172.

¶ 22 We reached this conclusion after noting:

"Section 122-1(f) contains no express provision for fully resolving the cause-and-prejudice determination prior to proceeding with the three-stage postconviction process outlined in the Act. Section 122-1(f) does not answer whether a successive postconviction petitioner must demonstrate cause and prejudice by actively pleading it, or by actually proving it. If the petitioner is required to prove cause and prejudice, section 122-1(f) does not provide a method for presentation of evidence.
From a practical standpoint, if a petitioner is required to establish cause and prejudice conclusively prior to being granted leave to file a successive petition, it may render the entire three-stage postconviction process superfluous. Section 122-1(f) does not provide that a petitioner is entitled to relief upon satisfaction of the cause-and-prejudice test. It only gives a petitioner an avenue for filing a successive postconviction petition. The legislature clearly intended for further proceedings on successive postconviction petitions." Id. ¶¶ 28-29.

¶ 23 In addition, we recognized that "[s]ection 122-1(f) does not provide for an evidentiary hearing on the cause-and-prejudice issues and, therefore, it is clear that the legislature intended that the cause-and-prejudice determination be made on the pleadings prior to the first stage of postconviction proceedings." Id. at ¶ 33.

¶ 24 Based on our findings in Smith that the cause and prejudice determination is a question of law to be decided on the pleadings and supporting documentation submitted to the court by the defendant-petitioner, and that no provision is made in the statute for an evidentiary hearing on the issue of cause and prejudice, we now hold that the State should not be permitted to participate at the cause and prejudice stage of successive postconviction proceedings. As in Gaultney , although the Act does not expressly prohibit the State's input, we find that the Act contemplates an independent determination by the circuit court. The motion for leave to file is directed to the court, and it is the court that must decide the legal question of whether a defendant has satisfied the section 122-1(f) requirement of showing cause and prejudice. This is a preliminary screening to determine whether defendant's pro se motion for leave to file a successive postconviction petition adequately alleges facts demonstrating cause and prejudice. Id. ¶ 34. In other words, the court must determine whether defendant has made a prima facie showing of cause and prejudice. If the defendant has done so, the court will grant leave for the petition to be filed.

¶ 25 Because the court is capable of making an independent determination on the legal question of whether adequate facts have been alleged for a prima facie showing of cause and prejudice and because the statute makes no provision for an evidentiary hearing and the petition, itself, is not actually filed until leave has been granted by the court, we see no reason for the State to be involved at the cause and prejudice stage. As we said in Smith , satisfying the section 122-1(f) cause and prejudice requirement does not entitle the defendant to relief but rather "only gives a petitioner an avenue for filing a successive postconviction petition." Id. ¶ 29. Further proceedings on successive postconviction petitions were clearly contemplated by the legislature. Id.

¶ 26 If the court determines that cause and prejudice have been adequately alleged and allows the petition to be filed, it advances to the three-stage process for evaluating postconviction petitions. During this process, the State would have an opportunity to seek dismissal of the petition on any grounds, including the defendant's failure to prove cause and prejudice for not having raised the claims in the initial postconviction petition.

¶ 27 We are further persuaded that the section 122-1(f) requirement of demonstrating cause and prejudice should be an independent determination by the court because successive postconviction petitions are typically filed pro se and the Act makes no provision for a defendant to be entitled to counsel until after a postconviction petition is docketed. 725 ILCS 5/122-4 (West 2014). In our view, permitting the State to argue against a finding of cause and prejudice at this preliminary stage, when the defendant is not represented by counsel, is inequitable, fundamentally unfair, and raises due process concerns.

¶ 28 The State does not directly address the fairness concern but, rather, maintains that because the Act does not affirmatively prohibit the State from opposing a motion for leave to file a successive postconviction petition, the statute should be interpreted as allowing the State's input. The State contends that permitting it to provide input on the motion is commensurate with the "default rule" that parties are generally permitted to respond to motions for leave to file. The State cites cases in which a party, without any specific statutory authority, was permitted to file an objection to an opposing party's motion for leave to file. See Italia Foods, Inc. v. Sun Tours, Inc. , 2011 IL 110350, ¶ 4, 369 Ill.Dec. 106, 986 N.E.2d 55 (motion for leave to file an amended complaint); People v. Dittmar , 2011 IL App (2d) 091112, ¶ 35, 352 Ill.Dec. 403, 954 N.E.2d 263 (motion for leave to file a late pleading); People v. Hernandez , 345 Ill. App. 3d 163, 166, 281 Ill.Dec. 173, 803 N.E.2d 577 (2d Dist. 2004) (motion for leave to file a supplemental brief).

¶ 29 What is immediately apparent, however, is that none of these cases have anything to do with motions for leave to file a successive petition within the context of postconviction proceedings. Although postconviction proceedings are considered civil in nature, they are sui generis and for that reason general civil practice rules and procedures apply only to the extent they do not conflict with the Post-Conviction Hearing Act. People v. Coleman , 206 Ill. 2d 261, 288, 276 Ill.Dec. 380, 794 N.E.2d 275 (2002) ; People v. Chester , 2014 IL App (4th) 120564, 378 Ill.Dec. 847, 5 N.E.3d 227. For this reason, we find the cases cited by the State offer no guidance on interpreting the statutory provision before us.

¶ 30 The State also argues that we should find that the statute permits the State to provide input to the circuit court at the cause and prejudice stage because in People v. Smith , 383 Ill. App. 3d 1078, 1089-90, 322 Ill.Dec. 808, 892 N.E.2d 55 (2008), People v. Collier , 387 Ill. App. 3d 630, 639, 326 Ill.Dec. 760, 900 N.E.2d 396 (2008), People v. Welch , 392 Ill. App. 3d 948, 955, 332 Ill.Dec. 269, 912 N.E.2d 756 (2009), and People v. Crenshaw , 2015 IL App (4th) 131035, ¶¶ 31, 35, 395 Ill.Dec. 500, 38 N.E.3d 1256, our appellate court has held that the circuit court did not err when it allowed the State's participation before ruling on the defendant's motion for leave to file a successive postconviction petition.

¶ 31 We have reviewed each of the cases cited by the State and find them to be inapposite. Notably, in both Smith and Collier , due to their procedural posture, the defendants were represented by counsel when their motions for leave to file a successive postconviction petition were submitted to the court. In addition, the Smith and Collier courts found no error resulting from the State's participation because, as the Collier court explained:

"Here, as in Smith , the record fails to demonstrate that the State discussed with or influenced the court in its decision to deny defendant leave to file his petition. Neither the merits of the petition nor the procedural hurdles were discussed. The colloquy between the court and the assistant State's Attorney was directed only to the procedural posture of the case and the proper method of proceeding on remand." 387 Ill. App. 3d at 640, 326 Ill.Dec. 760, 900 N.E.2d 396.

¶ 32 Thus, Smith and Collier actually appear to support the notion that the State's input on the matter of cause and prejudice is not appropriate.

¶ 33 As noted above, in the case at bar, defendant filed his motion for leave to file a successive postconviction petition pro se , and he was not represented by counsel before the motion was dismissed. In addition, when the State filed its written objection to defendant's motion and argued against the motion at an ex parte hearing, the State's arguments were not directed to some collateral matter but to the ultimate issue before the court, i.e. , whether defendant had shown cause and prejudice. We cannot say that the court was not influenced by the State's arguments when it denied defendant's motion. Accordingly, Smith and Collier are inapposite.

¶ 34 The State's reliance on Welch and Crenshaw is also misplaced. In Welch , the defendant filed pro se a second postconviction petition along with a petition for relief pursuant to section 2-1401 of the Code of Civil Procedure. See 735 ILCS 5/2-1401 (West 2014). Defendant was appointed counsel, who amended the postconviction petition to set forth additional claims and abandoned the defendant's pro se section 2-1401 petition. The amended postconviction petition was later dismissed, and that decision was upheld on appeal. Thereafter, the defendant filed another section 2-1401 petition pro se . The State moved to dismiss the petition as untimely, but the trial court reserved ruling on the State's motion and appointed counsel to represent the defendant. Appointed counsel then chose not to pursue defendant's pro se section 2-1401 petition and, instead, filed a motion for leave to file a successive postconviction petition, raising an issue different from the one the defendant raised in his pro se section 2-1401 petition. A hearing was held, at which the circuit court heard argument from both parties. The court denied the motion for leave to file a successive postconviction petition, finding the issue raised in the third successive petition had already been addressed and fully litigated and therefore defendant could not satisfy the cause and prejudice test. Welch , 392 Ill. App. 3d at 951, 332 Ill.Dec. 269, 912 N.E.2d 756.

¶ 35 On appeal, defendant's appointed counsel filed a Finley motion to withdraw, but the court denied the motion and ordered the parties to brief two issues. One of the issues to be briefed was whether it had been improper for the trial court to allow the State to argue against the motion for leave to file a successive postconviction petition. After briefing, the appellate court affirmed the trial court's denial of the motion for leave to file a successive postconviction petition. The court concluded that no error had occurred as a result of the State's participation, noting that "both parties participated in arguments regarding [defendant's] motion for leave to file his successive petition." Id. at 955, 332 Ill.Dec. 269, 912 N.E.2d 756. The court then affirmed the denial of the defendant's motion for leave to file a successive postconviction petition, stating: "The parties have not offered, and we have not found, any authority prohibiting input from the State at this stage of postconviction proceedings." Id.

¶ 36 After Welch was decided, the issue was addressed in Crenshaw , 2015 IL App (4th) 131035, 395 Ill.Dec. 500, 38 N.E.3d 1256. The Crenshaw court cited Welch and, like Welch , found no error in allowing the State to provide input at the cause and prejudice stage of a successive postconviction proceeding, holding:

"The State's input can offer assistance to the trial court in making its decision whether to grant leave-assistance that may prove helpful given the issues raised and the passage of time, the latter evinced in this case by the nearly three years that elapsed between the filing of the amended postconviction petition and the petition for leave to file a successive petition." Id. ¶ 33.

¶ 37 The defendant in Crenshaw , like the defendant in the case at bar, pointed out that the House of Representatives of the ninety-eighth General Assembly had passed an amended version of section 122-2.1(f), which required a circuit court to decide whether to grant leave to file a successive postconviction petition " 'without pleadings from the State.' " (Emphasis omitted.) Id. ¶ 34 (quoting 98th Ill. Gen. Assem., House Bill 2961, 2013 Sess.) The defendant argued that, although this amended version of section 122-2.2(f) stalled in the House, the court should find that allowing the State to participate at the motion stage was contrary to the legislature's "proposed intent." The Crenshaw court rejected this argument, however, stating that "proposed intent" is not the law and "[u]ntil such time as our supreme court or the legislature says otherwise, we find nothing prevents the State from providing its input on a defendant's motion for leave to file a successive postconviction petition." 2015 IL App (4th) 131035, ¶ 35, 395 Ill.Dec. 500, 38 N.E.3d 1256.

¶ 38 We find neither of these cases to be helpful in resolving the issue before us. Welch , like Smith and Collier , is factually distinguishable because of its procedural posture and because the defendant was represented by counsel. More importantly, when interpreting section 122-1(f), we are not persuaded by the Welch and Crenshaw courts' reliance on the absence of language in the statute prohibiting the State's participation at the cause and prejudice stage of successive postconviction proceedings.

¶ 39 As previously noted, the Act contemplates the filing of only one petition without leave of court ( 725 ILCS 5/122-1(f) (West 2014)), and any claim not presented in an original or amended petition is waived ( 725 ILCS 5/122-3 (West 2014) ). For this reason, successive postconviction petitions are highly disfavored. Edwards , 2012 IL 111711, ¶ 29, 360 Ill.Dec. 784, 969 N.E.2d 829. We acknowledged in Smith that "[s]ection 122-1(f) does not provide that a petitioner is entitled to relief upon satisfaction of the cause-and-prejudice test. It only gives a petitioner an avenue for filing a successive postconviction petition." 2014 IL 115946, ¶ 29, 387 Ill.Dec. 1, 21 N.E.3d 1172. In this respect, although the standards are different, the cause and prejudice stage is similar to the circuit court's screening of a defendant's initial petition at the first stage, when the court must independently determine whether the defendant has met his burden of demonstrating the gist of a constitutional violation.

¶ 40 Moreover, if we were to agree that the circuit court may hold a hearing at which the State may provide input on whether cause and prejudice has been demonstrated, would not such a hearing be an evidentiary hearing, which is not authorized by the Act? Also, if we were to permit such a hearing despite the lack of statutory authority, would not due process require that the defendant be represented by counsel or, at the very least, be present at such a hearing? Consequently, by holding that the State may participate at the cause and prejudice stage, we would necessarily introduce additional costs-in terms of time and expenditure of judicial resources, as well as the cost of representation and the transporting of defendant from prison-all of which would defeat the apparent purpose of the Act, which is to expeditiously screen petitions which are highly disfavored. For this reason, too, we must reject such an interpretation of section 122-1(f) of the Act.

¶ 41 As a final matter, having found that the circuit court erred by permitting the State's input, we must consider the relief to which defendant is entitled. Defendant requests that we reverse the circuit court's denial of his motion and remand to the circuit court for consideration of his motion by a different judge. The State, however, contends that defendant's motion is deficient on its face and, therefore, there is no need to remand the matter.

¶ 42 In the interest of judicial economy, we have reviewed defendant's motion for leave to file his successive postconviction petition ourselves and find that there is no need for remand. Defendant makes no attempt in his motion to satisfy the cause and prejudice requirement of section 122-1(f). No facts are alleged for even a cursory showing of cause and prejudice.

¶ 43 As indicated above, defendant was found guilty on two counts: disarming a police officer and committing residential burglary for having entered, without authority, the residence located at 1453 Garland Court in Joliet on July 23, 2004. In his motion for leave to file a successive postconviction petition, defendant first alleges actual innocence. He begins by stating, "Petitioner argue [sic ] that this issue was mention [sic ] in his first post-conviction petition, during a pre-postconviction motion for counsel's [sic ] other then [sic ] an [sic ] public defender." Defendant then goes on to explain that he obtained "newly discovered evidence" in the form of a signed and notarized affidavit by Ruby Hughes, dated December 20, 2010, in which Ruby (now deceased) indicates that she saw defendant, in the early morning hours of July 22, 2004, knock on the front door of the residence at 1453 Garland Court before entering.

¶ 44 There are several serious defects with this claim of actual innocence. First, it would appear that, by defendant's own admission, this issue was previously raised and, therefore, res judicata applies. Second, even if we were to consider the actual innocence claim on its merits, it only attacks defendant's conviction for residential burglary and does not even mention defendant's conviction for disarming a police officer. Finally, assuming that the discrepancy in the dates is simply a clerical error, the affidavit-which is not attached to the motion because the only remaining copy of the affidavit "was placed in the Menard Correctional Center Mailbox" and apparently is no longer available-merely suggests that defendant may have sought permission to enter the residence by knocking. The affidavit does not assert that anyone answered the knock and permitted defendant to enter, nor does it negate the fact that, at trial, Tommy Taylor, who was living at 1453 Garland Court and encountered defendant in his residence, testified that he did not give defendant permission to enter.

¶ 45 Defendant raises additional claims in which he alleges that "newly discovered evidence" exists, which provides grounds for granting him postconviction relief in the form of a new trial. It is true that cause for not having raised a claim earlier may be supported by the fact that exculpating evidence only recently came to light and could not have been discovered earlier. In this case, however, defendant's motion fails to present any facts that would support a finding that the evidence is "newly discovered." For example, defendant claims that certain medical evidence regarding an injury to his left wrist, which would show that he could not have committed the offense of disarming a police officer, is "newly discovered" because the trial court, having determined that the evidence was irrelevant, refused to allow him to present it at trial.

¶ 46 Defendant also raises a speedy trial violation claim-based on the trial court's grant of defense counsel's request for a continuance so that defendant's fitness for trial could be determined-and he raises a due process claim-based on his assertion that the doctor who evaluated his fitness for trial did not consider whether he was fit to represent himself at trial. It is clear, after examining defendant's motion for leave to file a successive postconviction petition, that he has failed to demonstrate cause and prejudice and that the claims he alleges fail as a matter of law and do not justify further proceedings. Accordingly, we affirm the denial of defendant's motion.

¶ 47 CONCLUSION

¶ 48 In sum, we find that section 122-1(f) of the Post-Conviction Hearing Act permits a defendant to file a successive postconviction petition only if he or she is able to demonstrate cause and prejudice; that is, the defendant must allege facts to explain why the claims being asserted in the successive petition could not have been raised in the initial postconviction petition. Whether this prima facie showing of cause and prejudice has been made is a question of law to be independently determined by the circuit court.

¶ 49 In the case at bar, the circuit court permitted the State to argue against a finding of cause and prejudice. Based on our holding in this case, this was error. However, because the question of whether defendant's motion demonstrates cause and prejudice is a question of law and in the interest of judicial economy, we have chosen to review defendant's motion in lieu of remanding the matter to the circuit court. Upon examination, we find that, as a matter of law, defendant has failed to demonstrate cause and prejudice for not raising his claims, including his claim of actual innocence. Accordingly, we affirm the denial of defendant's motion for leave to file a second postconviction petition.

¶ 50 Affirmed.

Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and Theis concurred in the judgment and opinion.