Appeal from the Circuit Court of Cook County; the Hon. James
C. Murray, Judge, presiding.
JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 22, 1983.
Linda Williamson, Dana Kiesling, James Wagner, and Leroy Kilb (plaintiffs) brought this class action on behalf of themselves and all others similarly situated against Eugene Doyle, mayor of Northlake, the city council of Northlake, the city of Northlake, Commonwealth Edison Company, Northern Illinois Gas Company, and Illinois Bell Telephone Company (defendants). The first seven counts of the complaint allege various wrongful practices of the city of Northlake, its city council and its mayor. Counts VIII and IX have reference to council meetings of May 2, 1981, and June 9, 1981, respectively. By amendment, a 10th count was added on August 3, 1981, with reference to the council meeting of July 9, 1981. The trial court granted the plaintiffs' request to certify the class. The trial court also ordered all funds collected from the assailed tax were to be retained at interest until further order of the court. The trial court granted defendants' motion for summary judgment with respect to counts VIII, IX and X and denied plaintiffs' petition for attorney fees. Plaintiffs appeal.
In this court plaintiffs contend the trial court should not have proceeded to hear the motion of defendants for summary judgment because discovery had not been completed; the trial court had inherent authority to void the ordinance because of violations of Illinois law; subsequent amendments to the Illinois Act on open meetings were remedial and were therefore available to plaintiffs; attorneys for plaintiffs should be granted fees and the city of Northlake has denied plaintiffs due process of law.
The ordinance (referred to as No. 0-8-81) for a five percent tax on gross receipts of defendants' utilities was passed at a regular council meeting on May 12, 1981. The vote on the ordinance was four aldermen in favor, three against, and one abstention. "Many hundreds of citizens" were present at the meeting.
At a meeting of the council sitting as a committee of the whole, on June 2, 1981, one alderman suggested that rescission of this ordinance be considered at the regular city council meeting on June 9, 1981. This ordinance for rescission (No. 0-11-81) was defeated. Plaintiffs' complaint was filed on June 26, 1981.
At the committee of the whole meeting of July 7, 1981, the attorney for the city of Northlake suggested that the utility tax ordinance be reconsidered due to the possibility of defects in the procedure of passage. It was suggested the ordinance be "repassed" at either a regular or a special council meeting.
The special meeting of the Northlake city council was held on July 9, 1981, at 7:30 p.m. All aldermen and less than a dozen citizens were present. The council voted five to four in favor of the rescission ordinance. The council also effectively repassed the utility tax ordinance of May 12, 1981, numbered as 0-12-81. The ordinance adopted May 12, 1981 (No. 0-8-81), is identical to this later ordinance adopted July 9, 1981 (No. 0-12-81).
The pertinent statute here, section 2.02(a) of the Open Meetings Act (Ill. Rev. Stat. 1979, ch. 102, par. 42.02(a)), provides for public notice of any special meeting "at least 24 hours before such meeting." The statute also provides (Ill. Rev. Stat. 1979, ch. 102, par. 42.02(b)):
"Public notice shall be given by posting a copy of the notice at the principal office of the body holding the meeting or, if no such office exists, at the building in which the meeting is to be held. The body shall supply copies of the notice of its regular meetings, and of the notice of any special, rescheduled or reconvened meeting, to any local newspaper of general circulation or any local radio or television station that has filed an annual request for such notice. Any such news media shall also be given the same notice of all special, rescheduled or reconvened meetings in the same manner as is given to members of the body provided such news medium has given the public body an address within the territorial jurisdiction of the public body at which such notice may be given."
The municipal code of Northlake (Northlake, Ill., Code, ch. 2, art. 2, sec. 3(c)) provides:
"Special meetings may be called by the Mayor or by any three (3) members of the Council in writing filed with the Clerk at least thirty-six (36) hours prior to the time specified for such meeting. At least twenty-four (24) hours written notice of such special meeting shall be given by the Clerk, which notice shall specify the time of such meeting and the specific subject matter to be acted upon at such special meeting, and shall be delivered to each member of the Council personally, * * *. The Clerk shall cause an Affidavit showing service of such notice as herein provided to be filed in his office prior to the time fixed for such special meeting."
The record shows that the mayor of Northlake issued a written request for a special meeting to be held July 9, 1981, at 7 p.m. in the city hall of Northlake. This call is dated July 7, 1981, and is addressed to the city clerk. The city clerk prepared notices to each one of the eight aldermen advising them of the time and place of the special meeting pursuant to the call by the mayor. The city clerk certified that these notices were delivered by the Northlake ...