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Hollister v. North

OPINION FILED JULY 5, 1977.

CHARLES HOLLISTER, PLAINTIFF-APPELLANT,

v.

JOHN NORTH ET AL., DEFENDANTS. — (JOHN K. REED ET AL., DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Coles County; the Hon. MATTHEW JURCZAK, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

A citizen and taxpayer, named Hollister, filed a declaratory judgment action.

Alleging a violation of section 3 of the Corrupt Practices Act (Ill. Rev. Stat. 1973, ch. 102, par. 3), the complaint charged that the board of education members named were involved in a conflict of interest because of the employment of their spouses as teachers in the school district, and then asked that the contracts between the board of education and the wives of the members of the board be declared null and void.

The trial court found that the interest alleged (the marital relationship) did not amount to an interest in violation of the statute.

We agree.

Two preliminary issues present themselves: whether the appeal should be dismissed because the case is moot, and whether the plaintiff has standing.

Mr. and Mrs. North were dismissed from the suit prior to appeal. According to affidavits filed in this court: Mrs. Frazier has resigned from teaching; Mr. Frazier is no longer a member of the board; Mrs. Reed is currently on medical leave of absence and not teaching in the 1977-78 school year; and Mr. Reed's status is apparently unchanged. Defendants argue that, because of these changes, the case is now moot. In addition, they argue that the contract allegedly void — the one approved in August 1974 — has been fully performed.

• 1 If the question presented is of substantial public interest, the case may be decided even if it is moot in the normal sense. (Johnson v. Board of Education (1967), 79 Ill. App.2d 22, 223 N.E.2d 434.) But three conditions are necessary: (1) the question must be of a public nature; (2) there must be a need for an authoritative determination for future guidance of public officers; and (3) the issue is likely to reoccur. Hill v. Murphy (1973), 14 Ill. App.3d 668, 303 N.E.2d 208.

• 2 All three of these conditions are clearly present to a great extent in this case: (1) whether a public officer is in violation of the conflict of interest laws is an issue greatly affecting the public good; (2) the particular situation alleged is quite highly likely to reoccur, even if it does not presently exist; (3) the uncertainty of the law on this question affects the confidence of the public in its elected officials and serves to discourage participation in our public institutions. Accordingly, the motion to dismiss the appeal is denied.

Defendants also argue that Hollister has no standing to bring suit. We disagree. Taxpayer suits to restrain illegal use or misappropriation of public funds have a long history in Illinois. Jones v. O'Connell (1914), 266 Ill. 443, 107 N.E. 731; see Mr. Justice Schaefer's dissent in Droste v. Kerner (1966), 34 Ill.2d 495, 505-16, 217 N.E.2d 73, 80-85, for a recapitulation of that history.

The complaint here alleges that defendants' conduct is a breach of the fiduciary duty owed by public officials to the people they represent, in that it alleges a conflict of interest and public funds wrongfully expended in breach of the statute. This is unlike the situation in Fuchs v. Bidwill (1976), 65 Ill.2d 503, 359 N.E.2d 158, where citizen-taxpayers did not have standing. In Fuchs, the money sought to be recovered was not from public funds, but rather bribes allegedly paid by private persons to legislators.

• 3 Because Hollister, as a taxpayer, is seeking to have declared void a contract by which public funds are expended, he has the standing necessary to bring suit.

The major question raised by this appeal is whether the mere existence of a marital relationship creates, as a matter of law, a conflict of interest on the part of a member of a board of education when ...


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