Appeal from the Circuit Court of Cook County; the Hon. James
C. Murray, Judge, presiding.
JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Both the plaintiffs and the defendants in this case have sought the aid of the courts> in order to resolve several legal issues that arose during the course of the legislative process. This lawsuit requires the court to address the legal issues stemming from a dispute that arose in the Chicago city council between the plaintiffs, 29 aldermen, and the defendants, 21 aldermen and Harold Washington, the mayor of Chicago. We stress at the onset that this court's function is not to question the wisdom of any legislation or to examine the distribution of power in the city council. Those are legislative concerns which do not bear upon the judiciary's traditional responsibility to decide the rights of the parties. Nor shall this court delve into the many personalities that have been thrust into this highly publicized era of Chicago history. Crucially, this court's sole function in this lawsuit is to decide the legal issues of the case as defined by the plaintiffs and the defendants. In its ruling, the trial court appealed to the parties, "*** to work out their differences, political and personal, to assist Mayor Washington in effecting the goals he has so eloquently expressed, to make our great City a place where the strong are just and the weak secure ***." We join in this plea. In the meantime, we must accomplish the business of this court by deciding the legal issues that have been identified and submitted by the parties to this court for resolution.
The focus of this lawsuit revolves around a meeting of the city council on May 2, 1983. Upon commencement of the meeting, the mayor, acting as the council's presiding officer, entertained a motion to adjourn. A voice vote was taken and the mayor declared that the motion to adjourn had carried. The mayor and 21 aldermen immediately left the council chambers. After one of the aldermen was elected as temporary presiding officer, the remaining 29 aldermen voted against the motion to adjourn and continued the meeting. The propriety of the mayor's adjournment and the subsequent actions of the remaining aldermen is the first issue submitted by the parties to this appeal.
Following these events, the 29 remaining aldermen adopted by resolution "Rules of Order" for the 1983-87 council. These rules changed the rules from the 1979-83 city council by amending the number of standing committees from 20 to 29. The resolution further assigned aldermen to the 29 committees and elected a vice-mayor, a sergeant-at-arms and a president pro tempore. The defendants contend that the resolution is invalid not only because the meeting was allegedly adjourned, but also because the new rules violated a rule of the 1979-83 council that provided that the rules could not be repealed, altered or amended absent a vote by two-thirds of the aldermen. The defendants therefore argue that the changes in the rules were invalid because only 29 aldermen voted for modification, a number five votes shy of the 34 votes needed to comprise a two-thirds majority. In contrast, the plaintiffs argue that the 1979-83 council rules cannot bind the 1983-87 council because each council may enact its own rules of order. These arguments comprise the second issue before this court on appeal.
The final action taken at the May 2 meeting was the passage of an ordinance which set May 6, 1983, as the date of the next regular city council meeting. The mayor vetoed this ordinance but no questions are raised on this appeal concerning this veto.
On May 6, a special meeting of the city council was called for May 7 at the request of 24 aldermen. The purpose of the special meeting was to approve the journal of proceedings for the regular council meetings held on April 13, April 29 and May 2. The minutes of these meetings were adopted by a vote of 29 aldermen and the meeting was adjourned. The minutes for the special meeting were adopted at the next regular council meeting on May 11. The validity of the actions taken at the May 7 special meeting is the third issue raised by the parties on appeal.
At the May 11 meeting, the mayor communicated a message to the council in which he vetoed two of the resolutions which had been adopted at the May 2 meeting by the 29 remaining aldermen. The resolutions at issue concerned changing the number of committees and appointing aldermen to those committees. The validity of these vetoes is the final issue on appeal.
On May 6, the plaintiffs sought a declaratory judgment in the trial court. Later that day, the mayor filed an action seeking to enjoin the city clerk and the plaintiffs from implementing the rules and resolutions which they had previously adopted. On May 11, the cases were consolidated and the 21 defendant aldermen were allowed to intervene. The city clerk was dismissed from the suit. The cause came to trial on May 13 and the court heard the evidence presented by the parties. On May 16, the court rendered its memorandum decision and on May 17, the judgment order was entered in favor of the plaintiffs. Both the mayor and the intervening aldermen immediately filed appeals and all parties to the suit requested the Illinois Supreme Court to accept the case for direct appeal. The application was denied. The supreme court ordered this court to decide the matter by June 10, 1983. A briefing schedule was established and oral arguments were heard on June 2, 1983.
As a threshold matter, we must first decide whether the mayor lawfully adjourned the May 2, 1983, city council meeting pursuant to a voice vote. Significantly, if the adjournment was proper, the remaining issues in this case become moot and the defendants will prevail on all issues. On the other hand, if we find that the mayor's adjournment was improper, we must determine the other issues raised in the case.
The record reveals that the events surrounding the purported adjournment were emotionally charged and highly tumultuous. However, in essence, the evidence adduced at trial discloses that a regular city council meeting was held on April 29, during which the mayor and all of the aldermen of the 1983-87 city council were inaugurated. At the close of the ceremonies, the meeting was recessed until May 2. When the session was resumed on May 2, the roll was taken. The mayor recognized an alderman who immediately moved for adjournment. The mayor stated, "You've heard the motion. All in favor, signify by saying aye." This statement was followed by a chorus of ayes. The mayor then asked, "Opposed, no?" A chorus of nos followed. The mayor announced, "The ayes have it. Council is adjourned." Immediately thereafter, the mayor left the council chambers accompanied by 21 of the aldermen.
The journal of proceedings of the council meeting reflects that after the motion to adjourn was made but before the mayor called for a voice vote, "various aldermen requested a roll call vote on the motion." The journal does not indicate the names of the aldermen who requested a roll call vote. Another transcript of the proceedings was produced by a court reporter hired by the defendants. This second transcript reflects that the ruling to adjourn was made after a voice vote but before any request for a roll call was made. Also introduced into evidence were the city clerk's tape recording of the meeting, network video tapes, a transcript produced by a court reporter hired by the plaintiffs, and the stipulated testimony of the city clerk and at least 32 aldermen. The bulk of this evidence reflected that a roll call vote was requested prior to adjournment. The trial court found that "several of the twenty-nine aldermen clearly demanded a roll call vote immediately upon the Mayor's announcement that `the ayes have it.'" In other words, the trial court concluded that requests for a roll call vote were demanded prior to the time that the mayor purportedly adjourned the meeting and left the chambers.
Following the mayor's exit, an alderman requested the clerk to take a roll call vote on the motion to adjourn. The motion to adjourn was defeated by a vote of 29 to zero. As there are 50 aldermen in the council, 29 votes comprise the majority necessary to defeat a motion to adjourn. The 29 aldermen then continued the meeting and proceeded to take certain actions that will be examined later in this opinion.
Before proceeding further, we must determine whether, as the defendants suggest, the mayor properly adjourned the council meeting and therefore precluded the 29 aldermen from conducting further council business. The defendants raise three arguments relating to the purported adjournment. First, they contend that the trial judge erroneously found that several aldermen requested a roll call vote prior to the purported adjournment. Second, it is argued that even if a roll call vote was requested prior to the adjournment, the 29 aldermen were not entitled to a roll call because the request was not made in the form of a formal motion and because the record does not reveal which specific aldermen requested the roll call vote. Finally, the defendants argue that the mayor did not hear any request for a roll call vote and therefore acted properly in exercising his responsibility as presiding officer of the council to decide all questions of order, subject to appeal. Consequently, the defendants contend that the 29 aldermen were required to appeal the ruling by the mayor to adjourn and that they did not make any such motion.
• 1 We will first determine whether the trial judge correctly found that a roll call vote was requested prior to adjournment. We have already detailed the evidence produced at trial by both parties, and we have noted the trial court's conclusion that a roll call vote was demanded prior to adjournment. The parties are in dispute regarding which records of the meeting were properly before the trial court. Specifically, the plaintiffs argue that only the journal of proceedings may be considered to garner the chronology of events, while the defendants urge that the journal as well as any extrinsic records may be examined. However, we need not reach the heart of this argument because we find that in either event, the trial court's conclusion was proper. If the trial judge looked only to the journal, he would inevitably find that a request was made for a roll call vote prior to adjournment. If the trial judge looked to the journal in addition to the extrinsic records, such as the videotapes and stipulated testimony, he would also find a significant amount of evidence to the effect that a roll call vote was requested prior to adjournment. Significantly, whether the request was timely delivered is a question of fact that rests in the domain of the trial judge. The decision of the trial judge on a factual matter will not be reversed on appeal unless it is against the manifest weight of the evidence. (See Shanahan v. Schindler (1978), 63 Ill. App.3d 82, 379 N.E.2d 1307.) Our study of the record in this case discloses that the trial judge had an impressive amount of evidence before him revealing that a roll call vote was requested prior to adjournment. We therefore cannot say that the trial court's determination of this factual question was against the manifest weight of the evidence.
• 2 We must next consider whether the plaintiffs were entitled to a roll call vote even though their request was not in the form of a formal motion and even though the transcripts of the proceedings do not reveal the names of the specific aldermen who requested the roll call vote. The defendants argue that both are prerequisites to the allowance of a roll call vote because the city council may only "operate by motions, resolutions or ordinances." Further, the defendants contend that in the heat of a spirited council meeting, a request for a roll call could be shouted by a member of the audience. Thus, the defendants argue, the name of the alderman requesting the roll call must be identified in order to assure that an alderman is in fact making the request. However, we cannot agree that the plaintiffs must be placed in the procedural straight jacket urged upon them by the defendants.
It is provided by statute that the "yeas and nays shall be taken upon the question of the passage of any other resolution or motion at the request of any alderman and shall be recorded in the journal." (Ill. Rev. Stat. 1981, ch. 24, par. 3-11-17.) Thus, the plaintiffs were statutorily entitled to a roll call vote on the motion to adjourn so long as they complied with the requirements set out in the statute. Significantly, the statute provides that an alderman is entitled to a roll call vote upon his "request." There is no statutory requirement that the "request" must be in the form of a formal motion. Further, our consideration of the type of situation during which a roll call vote would typically be requested leads us to conclude that, as a practical matter, an attempt to make a formal motion for a roll call vote could conceivably be ignored by the chair or lost in the shuffle of a turbulent council meeting. If the motion could not be stated under such circumstances, an alderman's statutory right to a roll call vote would be lost. Because a roll call vote is the statutory entitlement of any one alderman, a vote on the motion for a roll call vote would be unnecessary and in fact would be improper. We therefore think that a clear vocal request in any form is sufficient to trigger an alderman's right to a roll call vote.
• 3 There is also no requirement in the statute that the alderman requesting a roll call vote must be identified by name. The defendants cite Rule 18 of the city council rules, which states, "in all cases where a resolution or motion is entered in the journal, the name of the member moving the same shall be entered also." Rule 18 applies only to motions and not to the situation with which we are concerned here. The journal of proceedings reveals that "various aldermen requested a roll call vote on the motion." We believe that this language is sufficient support for the fact that aldermen rather than members of the audience were the persons requesting a roll call. In addition, the trial court found that the requests were made by aldermen, and we will not reverse its finding on such a factual matter unless it is against the manifest weight of the evidence. Therefore, where the statute does not require the additional procedures urged by the defendants and where the record discloses that certain aldermen did in fact request a roll call vote, we believe that the requesting aldermen were statutorily entitled to a roll call vote even though the request was not a formal motion and the record did not identify the requesting aldermen by name.
Our final concern on the adjournment issue is the defendant's argument that the mayor did not hear a request for a roll call vote and consequently acted properly in exercising his responsibility as presiding officer of the council to decide all questions of order, subject to appeal. The defendants argue that the plaintiffs did not formally appeal the chair's decision on the motion to adjourn and that therefore, the mayor's adjournment was proper. Our determination of this issue revolves around interpretation of the rules of the city council and Robert's Rules of Order. Rule 47 of the council rules adopts Robert's Rules of Order and therefore, Robert's is central to the case before this court.
• 4 The defendants cite the following rules in support of their position that the mayor's adjournment must stand because there was never a proper appeal from his decision to adjourn:
"[T]he presiding officer shall *** decide all questions of order, subject to appeal." (Council Rules R. 4; see also Robert's Rules of Order Newly Revised sec. 46, at 377 (1970).)
"Any member may appeal to the Council from a ruling of the chair and the member making the appeal may state his reasons for the same, and the chair may explain his ruling; but there shall be no debate on the appeal and no other member shall participate in the discussion * * *." (Council Rules, R. 12.)
"By electing a presiding officer, the assembly delegates to him the authority and duty to make necessary rulings on questions of parliamentary law. But any two members have a right to Appeal from his decision on such a question. By one member making (or `taking') the appeal and another seconding it, the question is taken from the chair and vested in the assembly for a final decision.
Members have no right to criticize a ruling of the chair unless they appeal from his decision." Robert's Rules of Order Newly Revised sec. 24, at 218 (1970).
We believe that the rules cited to us by the defendants must be read in conjunction with two other sections of Robert's Rules of Order, which state:
"Unless the bylaws provide otherwise, the assembly itself is the judge of all questions arising which are incidental to the voting or the counting of the votes. In an election by ballot, for example, the tellers should refer to the assembly for decision all questions on which there is any uncertainty." (Robert's Rules of Order Newly Revised sec. 44, at 345 (1970).)
"As explained [above], an appeal is applicable only to a ruling by the chair.
No appeal can be made from the chair's response to a parliamentary inquiry or other query, since such a reply is an opinion rendered by the chair, not a ruling on a question that has actually arisen. * * *
The chair's announcement of the result of a vote also is not a ruling and is not subject to appeal. If a member doubts the correctness of such an announced result, however, he should call for a `division.'" (Emphasis added.) (Robert's Rules of Order Newly Revised sec. 24, at 221 (1970).)
When we read all of these rules together in harmony with the case law cited to us by parties, we must conclude that a decision to adjourn is not a "ruling" or a "question of order." Rather, the council members, not the mayor, have the authority in the first instance to decide who won a disputed vote on a motion to adjourn. Robert's specifically provides that the chair's announcement of the result of a vote is not a ruling which would be the subject of an appeal. Therefore, the rules cited to us by the defendants are not pertinent to this issue. Rather, we believe that the correct method of clarifying the result of a vote by the council is to request a roll call vote. The record reflects that this was done by a number of aldermen. We do not believe that the mayor's position as presiding officer entitles him to ignore the repeated requests for a roll call vote. As the Illinois Supreme Court stated in American Aberdeen-Angus Breeders' Association v. Fullerton (1927), 325 Ill. 323, 327, 156 N.E. 314, "[a] presiding officer cannot arbitrarily defeat the will of the majority by refusing to entertain or put motions, by wrongfully declaring the result of a vote, or by refusing to permit the expression by the majority of its will. He is the representative of the body over which he presides. His will is not binding on it, but its will, legally expressed by a majority of its members, is binding." See also Rudd v. Sarallo (1969), 111 Ill. App.2d 153, 249 N.E.2d 323 (applying preceding observation to mayoral/city council disputes).
Alternately, we believe that even if the mayor's announcement could be considered a ruling which needed to be appealed, we still think that the 29 aldermen acted properly. Specifically, the rules cited by the defendants do not detail any procedures that must be followed in order to appeal the chair's ruling. We think that a request for a roll call and a subsequent roll call vote by the remaining aldermen was a sufficient manner in which to appeal the announcement made by the mayor just prior to his exit. A formal motion to appeal the chair's ruling, which the rules do not necessarily require, and a request for a roll call vote both accomplish the same purpose of informing the presiding officer that his judgment call on the result of a voice vote is open to question. We cannot ignore the realities of the situation with which we are faced in order to impose parliamentary requirements that are demanded by neither the council rules nor Robert's Rules of Order. We therefore find that the 29 aldermen acted properly by requesting a roll call vote and that the city council meeting was not lawfully adjourned by the mayor.
• 5 After the mayor left the room, one of the aldermen was elected as temporary presiding officer pursuant to statute. (Ill. Rev. Stat. 1981, ch. 24, par. 3-11-15.) The meeting continued with the plaintiffs in attendance which was a sufficient number to comprise the quorum necessary to conduct the council meeting. The city clerk then took a roll call vote on the motion to adjourn. The motion to adjourn was defeated by a vote of 29 to zero. The meeting then lawfully continued.
• 6 Having found that the mayor's adjournment was without legal effect and that the subsequent meeting continued lawfully, we must next decide whether the rules of order determined by the plaintiffs at the May 2 council meeting were properly adopted. The purpose of the rules of order is to determine how the routine, internal operation of the city council is to be conducted. The defendants' position is that the city council is a continuing body and that therefore, the rules of order adopted by the 1979-83 council must remain in effect unless they are altered, repealed or amended by two-thirds of the 1983-87 council. The rules of the 1979-83 council were in fact altered by the actions of the 1983-87 council on May 2, 1983. The defendants argue that this alteration was improperly accomplished because Rule 48 of the 1979-83 city council rules provides that:
"These rules *** shall not be repealed, altered or amended unless by concurrence of two-thirds of all the aldermen entitled by law to be elected."
Rule 48 does not include any specific time frame indicating its duration.
The rules of order were adopted by 29 aldermen, five votes less than the number necessary to comprise a two-thirds majority. The plaintiffs counter that although the city council is a continuing body, the rules enacted by the 1979-83 city council do not carry over to bind the 1983-87 council from adopting its own rules of order. In support, the plaintiffs cite section 3-11-11 of the Illinois Municipal Code which provides, "The city council shall determine its own rules of proceeding ***." (Ill. Rev. Stat. 1981, ch. 24, par. 3-11-11.) The plaintiffs also argue that the interpretation of Rule 48 itself as to its duration mandates the conclusion that it was not intended to carry over from the prior council to the present council.
The crux of the problem, as we see it, is whether the 1979-83 council's adoption of Rule 48, an extra-majority rule that prevents repeal, alteration or amendment except by a two-thirds majority, effectively prevents the majority of the 1983-87 city council from making its own rules of order as allowed by section 3-11-11. (Ill. Rev. Stat. 1981, ch. 24, par. 3-11-11.) A great deal of discussion in the briefs centers around the extra-majority issue and the defendants have offered examples of extra-majority rules that have been enacted by the legislature. (See Ill. Rev. Stat. 1981, ch. 24, par. 11-76-1 (the sale or lease of real estate can only be accomplished by an ordinance passed by three-fourths of the corporate authorities); Ill. Rev. Stat. 1981, ch. 24, par. 11-91-1 (streets and alleys can only be vacated upon a three-fourths vote of the aldermen).) However, a significant distinction lies between the type of law cited to us by the defendants and Rule 48. Those laws provide that certain legislation cannot be enacted except by an extra-majority vote. Rule 48 goes one step further than those laws in providing that once enacted, the law which itself creates the two-thirds requirement may not be repealed, altered or amended except by a two-thirds majority. If such were the case, a bare majority could effectively create a rule that anther council could not repeal, alter or amend by its own majority vote. The examples of extra-majority legislation cited to us by the defendants concerning the lease of real estate or the vacation of streets can be repealed, altered or amended by a majority, not an extra-majority, vote. If the majority of a city council can pass a rule such as Rule 48 in order to bind future councils to a two-thirds extra-majority revocation requirement, the exiting council would create, as the plaintiffs have so termed, a rule favoring perpetuities. The past could virtually and irrevocably bind the future.
Section 3-11-11 of the Illinois Municipal Code provides, "The city council shall determine its own rules of proceeding ***." (Ill. Rev. Stat. 1981, ch. 24, par. 3-11-11.) We believe that section 3-11-11 must be read in conjunction with Rule 48 and we conclude that the adoption of Rule 48 by the 1979-83 council, or any previous council, cannot be allowed to effectively prevent the 1983-87 council from determining its own rules of order. Further, we believe that when the 1979-83 council adopted its rules of order, it adopted those rules solely for the 1979-83 session and did not intend to make those rules binding on all future sessions of the city council.
The parties agree that the city council is a continuing body, the existence of which never ceases by reason of a change of membership. The continuing body concept serves as the useful legal fiction needed to accomplish such desirable public policy considerations as protecting the contract rights of persons who had contracted with the previous municipal body, sustaining the existence of a body that can act during periods of transition and affirming the ability of one city council to act upon the uncompleted business of a previous council. See, e.g., Booth v. Mayor (1893), 56 N.J.L. 268, 28 A. 381 (completion of proceedings for public improvement); City of Biddeford v. Yates (1908), 104 Me. 506, 72 A. 335 (lease to take effect during succeeding term of office); Denio v. City of Huntington Beach (1943), 22 Cal.2d 580, 140 P.2d 392 (binding effect of contract authorized by prior council); Schumacher v. City of Clear Lake (1931), 214 Iowa 34, 239 N.W. 71 (completion of proceedings on special assessment).
We take issue, however, with the defendants' argument that because the city council is a continuing body, the rules of order adopted by the 1979-83 council are therefore binding upon the 1983-87 council. An entirely new city council is selected by a majority vote of the citizens of Chicago every four years. While the council as an entity is certainly a continuing body that never ceases to function, we cannot ignore the fact that an entirely new city council is elected every four years to represent the public's interest in conducting the city's business. We think that the 1979-83 council's Rule 48 cannot be read to effectively prevent this city council, newly elected by the voters of Chicago for the 1983-87 term, from enacting its own rules of order. We believe that such a result would be in contravention of the legislature's provision that "The city council shall determine its own rules of proceeding ***." (Ill. Rev. Stat. 1981, ch. 24, par. 3-11-11.) We conclude, therefore, that the rules of the preceding council cannot effectively bind future councils in perpetuity to rules of order for the internal operations of the city council that were deemed just, necessary or desirable by a council no longer in office.
Significantly, whether a city council may pass an extra-majority revocation rule that only remains in effect during the term of the existing council is not in issue in this case. The repeal, alteration or amendment of any rule adopted by the 1983-87 council during the course of its 1983-87 city council term is not before this court. What is at issue here is whether one city council, such as the 1979-83 council, can adopt an extra-majority revocation rule concerning the operation of internal council business that will bind another council, such as the 1983-87 city council. For the reasons above stated, we think not. We find no legal significance in the defendants' argument that the 1979-83 council adopted Rule 48 by more than a ...