A Plaintiff not Prosecuted or Threatened with Prosecution Lacks Standing to Contest the Prosecution or Nonprosecution of Another

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Attorney Louis Fasullo (“Fasullo”) was arrested and Assistant Public Defender Rojelio Garza (“Garza”) was assigned to represent him.  Fasullo complained to the Attorney Registration and Disciplinary Commission (“ARDC”) that Garza was not communicating with him.  The ARDC investigated Fasullo’s complaint, but concluded that it “would be unable to show […] that Mr. Garza neglected [Fasullo’s] defense or that he failed to communicate with [Fasullo] in a reasonable manner.”  Id. at ¶11.  Nevertheless, Fasullo was late to a hearing, which resulted in him being jailed for 18 days.  Among other things, Fasullo blamed his tardiness on “failure of his public defender to adequately and timely communicate the court date to him.”  Id. at ¶10.  Fasullo filed a pro se action for a declaratory judgment against the ARDC for its failure to discipline Garza.  Id.  The ARDC moved successfully to dismiss for lack of standing and failure to state a claim.

On appeal, Fasullo argued that the circuit court erred because “the judge did not declare Rights just, and fair, and denied [Fasullo] the cause of action which recovery might be had” and “did not allow discovery, and dismissed the complaint […].”  Id. at ¶19.  The Appellate Court of Illinois, First District, responded that “Fasullo misunderstood the purpose of a declaratory judgment and wanted the trial court to tell him what cause of action he might have, as opposed to arguing one himself.”  Id. at ¶30.

The court also quoted the Supreme Court of the United States, which said “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another…[and therefore] lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.”  Id. at ¶26, (citation omitted).  Here, Fasullo’s brief contained facts “that may have been relevant to a timely claim for legal malpractice or ineffective assistance of counsel, but these are not the claims Fasullo made.”  Id. at ¶27. The court concluded that “the sole authority to impose disciplinary sanctions on attorneys is with the supreme court, and the appropriate forum to investigate the conduct of an attorney and conduct hearings is the Attorney Registration and Disciplinary Commission.”  Id. at ¶28, (citation omitted).

Fasullo v. Attorney Registration and Disciplinary Commission, 2020 IL App (1st) 190670-U

(This is for informational purposes and is not legal advice.)

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