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Lenit v. Powers

JUNE 19, 1969.

LAWRENCE LENIT, PETITIONER-APPELLANT, AND HUGH M. MATCHETT, AGGRIEVED PERSON-APPELLANT,

v.

LEO J. POWERS, JOHN P. COGHLAN, AND THE CHICAGO LAW INSTITUTE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Affirmed.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT. Rehearings denied April 2, 1970.

A petition for a writ of mandamus was brought to compel the calling of an annual meeting of the membership of the Chicago Law Institute. The petition was dismissed and this appeal followed.

The petitioner, Lawrence Lenit, is a member of the Law Institute; another petitioner, William Hettleman — also a member of the institute — was dismissed from the cause early in the proceedings. The respondent, Chicago Law Institute, is a private corporation, created by a special act of the Illinois Legislature (Laws of Illinois, 1857, p 1186) which corporation operated and maintained a law library located on the 10th floor of the County Building — rent free. The respondents, Leo Powers and John Coghlan, were, at the time the petition was filed, the president and secretary respectively of the Law Institute.

On December 6, 1965, the Law Institute entered into an agreement to transfer the institute's law library and other assets to the County of Cook. The County planned to establish a free law library on the 29th floor of the Chicago Civic Center and the institute believed it could not compete with the County — even if the institute could find new, rent-free quarters.

On December 10, 1965, the Chicago Law Institute and two of its members filed a complaint for declaratory judgment: Chicago Law Institute v. County of Cook. The complaint designated as defendants the County, the Attorney General of Illinois and several individuals whom the respondents in the present action describe as "a representative number of members of the Chicago Law Institute, including some who were opposed to the relief which the plaintiffs requested." Two of the members named were the petitioners in the instant case, Lenit and Hettleman. The complaint stated that the Law Institute could not continue to operate in competition with the free law library proposed by Cook County. Therefore, the plaintiffs requested that the Chancery Division of the Circuit Court, under the doctrine of cy pres, apply the assets of the Law Institute to a similar charitable use. Specifically, they asked approval of the agreement to transfer the institute's law library and other assets to the County to be used for the County's law library. They also asked for direction authorizing the institute and the County to execute the agreement.

After the suit was filed but before it reached a final decree, the following occurred: The 1966 annual meeting of the institute for the election of officers and managers directed by the bylaws of the institute to be held on the last Friday in January of each year was not held; the respondents and the other officers and managers elected at the January 1965 meeting continued in office. No meeting was called to preserve the status quo pending the disposition of the litigation seeking approval of the transfer of the assets of the institute. In March 1966, a meeting had yet to be held and the petitioners formally demanded that the acting officers and managers of the institute issue a call for one, but the demand was either refused or ignored.

Thereafter, in April 1966, the petitioners filed a petition for a writ of mandamus to compel the respondents to call the annual meeting of the institute. The respondents filed a motion to dismiss in May of 1966. The next month, pursuant to stipulation, the petitioner, Hettleman, was dismissed from the case.

On July 8, 1966, the remaining petitioner, Lenit, filed an amended petition. One week later, the respondents filed a petition for a temporary injunction. The respondents' petition stated that on July 13, 1966, the Circuit Court entered a final decree in the case of Chicago Law Institute v. County of Cook (hereafter this final decree will be referred to as the Circuit Court decree) which approved the agreement entered into between the County and the institute. The respondents asserted that they intended to raise the Circuit Court decree as a defense to the amended petition for a writ of mandamus. The respondents also asserted that some members of the institute had called a special meeting to elect officers. They alleged that the special meeting would oust the Circuit Court of jurisdiction over the mandamus petition. They prayed for an injunction to restrain the members of the institute from holding any special meeting for any purpose whatsoever except an informal meeting to discuss the future of the institute, an appeal from the Circuit Court decree and to solicit funds to finance such an appeal. The temporary injunction was allowed.

The respondents presented their motion to dismiss the amended petition on July 25, 1966. They contended that no meeting should be held pending disposition of the appeal from the Circuit Court decree. Some members of the institute had filed notices of appeal to the Appellate Court from that decree. They did not make the notice of appeal a supersedeas, however, or file a supersedeas bond. The respondents contended that a meeting of the institute would interfere with the jurisdiction of the Appellate Court.

The attorney for the petitioner withdrew in June 1966. From that time, Lenit represented himself pro se. In October 1966 Hugh M. Matchett, a member of the institute, was permitted to file an appearance as additional counsel for him.

On December 20, 1966, the respondents filed an amended motion to dismiss the amended petition. It advised the court that the previous week the Appellate Court dismissed an appeal from the Circuit Court decree and also denied a petition for leave to file a late notice of appeal. It also said that all other appeals taken from the decree had been finally dismissed and that the time within which to take further appeals had expired. (In addition to the appeals to the Appellate Court, other appeals had been taken to the Illinois Supreme Court and a separate action had been filed in the United States District Court. These had also been terminated at the time of the respondents' motion to dismiss.) The motion stated that the agreement between the institute and the County was in full force and effect, making moot the question of further adjournment of the institute's annual meeting in order to preserve the status quo. It declared the intention of the respondents to call a meeting of the institute at the earliest practicable time to report to the membership, file a current account and call for the election of officers. The motion was allowed January 12, 1967, and the amended petition was dismissed.

On February 10, 1967, the petitioner filed a motion to vacate the judgment of January 12th and to amend the previously amended petition. The motion referred to the respondents' intention, expressed in their motion to dismiss, to call a meeting at the earliest practicable time and alleged that 28 days had since passed and that neither the January 1966 meeting nor the now overdue January 1967 one had been called. The petitioner's motion demanded the issuance of a writ of mandamus to compel the calling of a meeting. On February 14, 1967, the court vacated the judgment, allowed the amendment of the amended petition and ordered the respondents to answer.

At this point, it should be noted that in January 1967 a motion to vacate the Appellate Court's dismissal of the appeal was filed and denied. In February 1967 the denial was appealed to the Illinois Supreme Court.

The petitioner filed his second amended petition on February 21, 1967, and on March 1st the respondents filed their answer. Thereafter, on August 9, 1967, the petitioner filed a motion for summary judgment. On August 16, 1967, the court entered a judgment for the respondents. In doing so, the court recognized the transfer of assets which had occurred sometime after August 22, 1966, the date the Circuit Court entered an order approving the "physical transfer of the books of the Law Institute to the 29th floor of the Civic Center." The court said, "The right of the members of the Chicago Law Institute to hold an annual meeting has become abstract in that the corporation is in effect dissolved ...


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