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People Ex Rel. Hopf v. Barger

JULY 15, 1975.

THE PEOPLE EX REL. WILLIAM

v.

HOPF, STATE'S ATTORNEY FOR THE COUNTY OF DU PAGE, PLAINTIFF-APPELLEE,

v.

RALPH H. BARGER, MAYOR OF THE CITY OF WHEATON, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Du Page County; the Hon. L.L. RECHENMACHER, Judge, presiding.

MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT: The People on the relation of the State's Attorney of Du Page County petitioned the circuit court for a writ of mandamus praying that the defendants, who were the city officials of Wheaton, be commanded to comply with what is commonly called the "Open Meetings Act" (An Act in relation to meetings — Ill. Rev. Stat. 1971, ch. 102, par. 41 et seq.). *fn1 The motion of the plaintiff for summary judgment based on the various pleadings and upon depositions was granted, and the writ of mandamus issued. In addition to strictly commanding defendants to comply with the provisions of the applicable statute, the court order required defendants to make available to the public any and all minutes and notes and any and all of the defendants' depositions of a meeting of November 6, 1972, described as an executive session closed to the public. Defendants appeal.

The petition for mandamus included the allegations that the defendants participated in a closed meeting of the Wheaton city council on November 6, 1972; that the matters discussed concerned, in part, the annexation and zoning of property; and that the public was excluded in violation of the law. Defendants first filed a motion to dismiss the petition which was denied. They then answered, denying the matters alleged in the petition and pleading as an affirmative defense that the meeting of November 6, 1972, was a properly noticed, properly constituted executive session of the city council and that the matters discussed, including land acquisition, were a proper subject for an executive session. The defendant mayor and the defendant councilmen were granted immunity to testify, and their depositions were taken together with the testimony of several other witnesses. *fn2

Thereafter, the trial court dismissed Mayor Barger as a defendant because it appeared that he had not taken part in the meeting. In entering the order the court noted that there were not any notes or minutes taken at the meeting.

The defendants contend: that the Open Meetings Act denies equal protection of the law because it excludes the Illinois General Assembly from its coverage and also excludes closed meetings by institutions of higher education concerning campus security; that the Act is discriminatory and compels violation of the attorney-client privilege since the municipal body cannot seek the advice of counsel on the merits of contemplated litigation other than pending litigation; that since the defendants, because of lack of a quorum at the meeting, were unable to act as the city council and since the defendants were not an appointed committee of the city council, they were not properly made parties defendant; that the State's Attorney enforced the act in a discriminatory manner; that the Act did not apply to these defendants as councilmen of a home-rule unit; and that the evidence does not support the order which was entered.

The plaintiff answers that the defendants lack standing to raise the constitutional issues, that other objections have been waived, that the Act is applicable and that the order, finding defendants in violation of the Act, is based on sufficient evidence.

It appears from the record that the only persons present at the meeting in question were the defendants William Fuller and Ronald Brown, who were councilmen of the city of Wheaton, Gerald Brooks the city attorney, the city manager, attorney Hartman Stime, and a Mr. Elliott. The meeting was held in City Manager Carroll's office. The meeting was closed to everyone except the councilmen who were present and the other persons mentioned. It appears that the group talked about the city acquiring 6 acres of property owned by Elliott for a public golf course and that the property was part of a larger tract subject to a proposed annexation agreement between the city and one KPK Corp., a development company, which was represented at the meeting by Attorney Stime. The proposed annexation agreement had been discussed at prior city council meetings which were open to the public about six or seven times. There was further evidence in the depositions that an extension of a street was discussed and that Stime made a presentation on behalf of KPK Corp. as to what the development company would do with the land if it were successfully annexed and the city rezoned the land to allow for a multiple-family development. The meeting was characterized as informational in nature and not a negotiating session.

Although the parties do not raise the issue directly, a preliminary question which must be examined is whether mandamus is a proper remedy under the circumstances.

• 1 We are aware that the statute specifically provides that where the Act is not complied with "or where there is probable cause to believe" that it will not be complied with, the court shall issue a writ of mandamus requiring that a meeting be open to the public "or issue such other appropriate order as will insure compliance" with the provisions of the Act (Ill. Rev. Stat. 1971, ch. 102, par. 43). The propriety of ordering that a mandamus writ issue when it cannot affect a meeting already held and which applies to municipal duties generally is questionable, however. As a general rule, the writ will not issue to compel a useless act or to decide questions which no longer exist merely to establish precedent. (Retail Liquor Dealers Protective Association v. Schreiber (1943), 382 Ill. 454, 459. See also Flynn v. Kucharski (1972), 53 Ill.2d 88, 91.) It will also not issue where the court would be regulating the general course of official conduct or enforcing the performance of official duties generally. Retail Liquor Dealers Protective Association v. Schreiber (1943), 382 Ill. 454, 459; People ex rel. Jansen v. City of Park Ridge (1955), 7 Ill. App.2d 331, 333.

The propriety of the issuance of the writ here, to the extent that it compels general compliance with the Open Meetings Act, would appear to be an attempt to regulate the general course of official conduct contrary to the cited authorities, especially since there is no indication that any future meeting by the same parties is scheduled or even contemplated. The portion of the writ which orders the publication of the notes and minutes of meeting would appear to refer to a useless act in view of the statement of the court that no minutes or notes were taken. The portion of the order making the depositions public is beyond the relief prayed (see People ex rel. Greenwell v. Board of Supervisors (1908), 234 Ill. 62, 67) and additionally would seem to refer to a useless act since the depositions became public records in the proceedings in the trial court.

• 2-4 However, even where the relief sought in a petition for mandamus becomes moot it does not necessarily follow that the cause should be dismissed when the issues presented are of substantial public interest. (Reynolds v. Conti (1971), 132 Ill. App.2d 505, 507.) We conclude that the case before us is an appropriate one for the consideration of declaratory or injunctive relief when the substance of the petition is emphasized over its form. (See People ex rel. Scott v. Kerner (1965), 32 Ill.2d 539, 542-543.) In Kerner, the supreme court noted that mandamus may be an appropriate means "for the simultaneous determination of issues of statutory constitutionality and the enforcement of rights initially determined to exist in the proceeding awarding the writ." 32 Ill.2d 539, 545. See also Phelps v. Bing (1974), 58 Ill.2d 32, 35. Compare Illinois News Broadcasters Association v. City of Springfield (1974), 22 Ill. App.3d 226, 228.

We next consider the argument that the defendants lack the legal status or "standing" to raise the particular constitutional issues.

• 5-7 We have previously reviewed the principles which are applicable to the question of "standing" as the term is used in the sense (referred to in Baker v. Carr (1962), 369 U.S. 186, 204) that the defendants have "`such a personal stake in the outcome of the controversy as to assure * * * concrete adverseness * * *.'" (Phillips v. Village of Libertyville (1970), 120 Ill. App.2d 172, 181-183.) In Phillips, we note as corollary to the Baker v. Carr definition of "standing" that the court will not consider the invalidity of a provision where the party urging it is not aggrieved by its operation. (Phillips v. Village of Libertyville (1970), 120 Ill. App.2d 172, 181. See also People v. Bombacino (1972), 51 Ill.2d 17, 19-20; People v. Handley (1972), 51 Ill.2d 229, 233; People v. Reiner (1955), 6 Ill.2d 337, 341.) Another related rule is that in order for a court to consider a constitutional argument the situation to which the argument relates must be presented by the facts of the case. (People v. Braun (1910), 246 Ill. 428, 431-32.) And in addition, a litigant may not challenge a classification scheme on the basis that the classifications are discriminatory unless that litigant is a member of the class allegedly being discriminated against. (Board of Education v. Bakalis (1973), 54 Ill.2d 448, 467.) The courts, however, will not adhere to the limiting rules affecting standing where the unconstitutional features are of such a character as to render the entire act void. *fn3 People v. Palkes (1972), 52 Ill.2d 472, 480-81; Edelen v. Hogsett (1969), 44 Ill.2d 215, 220.

In the case before us the defendants seek to challenge the statute on the grounds: that the Open Meetings Act violates the equal protection clause because it created an arbitrary, capricious and irrational classification when it subjected public officials to possible criminal sanctions for violations while exempting members of the State legislature; that the Act violates equal protection standards because it treats members of the same class differently, that is, institutions of higher education may hold closed meetings on campus security while city and high schools may not make security the subject of a closed meeting; and that the Act compels a violation of the attorney-client privilege because the public officials subject to the Act's coverage may not hold a closed meeting, in confidence, with their attorney to discuss the merits of bringing suit, but may only discuss pending litigation.

• 8 Under the rules just discussed, we conclude that defendants do have standing to urge alleged constitutional defects in the Open Meetings Act to the extent that they can show that the provisions apply to them in their private or official capacity and that they have been injured by ...


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