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05/26/89 Elizabeth Shick, v. Dixmoor Park District

May 26, 1989

ELIZABETH SHICK, PLAINTIFF-APPELLEE

v.

DIXMOOR PARK DISTRICT, DEFENDANT-APPELLANT (COOK COUNTY CLERK, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

540 N.E.2d 431, 184 Ill. App. 3d 513, 132 Ill. Dec. 691 1989.IL.813

Appeal from the Circuit Court of Cook County; the Hon. Stephen R. Yates, Judge, presiding.

APPELLATE Judges:

JUSTICE COCCIA delivered the opinion of the court. MURRAY, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE COCCIA

Defendant Dixmoor Park District has taken an expedited appeal from the circuit court of Cook County's judgment in this mandamus action. The circuit court ordered that the question of the park district's dissolution be submitted to referendum on April 4, 1989, thereby granting the relief requested by plaintiff Elizabeth Shick, a registered voter residing in the district. On March 29, 1989, we entered an order affirming the circuit court. We now explain the reasons for that decision.

The park district has assigned three errors for our review. First, the park district argues that the circuit court erred in certifying the dissolution question to the Cook County clerk, because plaintiff failed to properly serve the petition, which supported the referendum, before the park district board of commissioners. Second, the park district argues that the circuit court erred in designating the election at which the dissolution question was to be submitted, because the court misconstrued both the Park District Code (Ill. Rev. Stat. 1987, ch. 105, par. 1-1 et seq.) and the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 1-1 et seq.). Third, the park district argues that the circuit court erred in granting the relief requested by plaintiff, because mandamus does not lie when it depends upon the acts of third parties not before the court, in this case the park district commissioners. Before we address the merits of these arguments, the procedural history of this case must be reviewed.

On February 8, 1989, plaintiff filed her complaint, naming the park district and the county clerk as defendants. Plaintiff asked that the circuit court direct the park district to certify the question of its dissolution to the county clerk for submission to the district's legal voters on the April 4, 1989, ballot. Plaintiff alleged that her petition, which included the requisite number of signatures, was delivered to and received by the park district board on December 15, 1988. She further alleged that the board met on that date, and thereafter, with knowledge of the petition, but that it refused to certify the dissolution question, contrary to the Park District Code:

"§ 13 -- 1. A park district may be dissolved in the following manner:

Whenever legal voters in the district, equal to two-thirds of the vote cast at the last preceding park district election for the commissioner who received the greatest number of votes, petition the board of the park district for submission of the question whether the park district will dissolve its incorporation, the board shall (1) certify that question to the proper election officials for submission to the legal voters of the district, (2) designate the election at which the question is to be submitted, and (3) give notice of the referendum as required by the general election law." Ill. Rev. Stat. 1987, ch. 105, par. 13-1.

On February 15, 1989, the park district appeared and filed a motion to dismiss. The objections raised by the park district in the circuit court are similar to the errors it now assigns in this court. Following hearings on the objections, the circuit court denied the park district's motion. On February 22, 1989, the circuit court entered an order finding that the park district was served with the dissolution petition on or about December 15, 1988, and that the requisite number of legal voters in the district petitioned the board. The court ordered that the dissolution question be submitted at the April 4, 1989, election, ruling that it was the park district's duty and obligation to comply with section 13 -- 1 of the Park District Code, including certification of the question and designation of the election. Consequently, the circuit court directed that the park district certify the dissolution question to the county clerk for submission to the district's legal voters on April 4, 1989.

On February 22, 1989, the park district's motion to stay enforcement of the order was denied by the circuit court. Subsequently, the park district board met and decided that it would certify the dissolution question for the November 6, 1989, election, rather than the April 4, 1989, election, if the petition was legally sufficient. Plaintiff and the county clerk then joined in a motion to amend the order entered on February 22, 1989, to provide that the county clerk place the dissolution question directly on the April 4, 1989, ballot, without certification by the park district. The circuit court granted this motion on February 24, 1989.

The park district requested that we stay enforcement of the circuit court's order and that we hear its appeal on an expedited basis. On February 27, 1989, we denied the motion to stay, but allowed expedited appeal, taking the case without oral argument. We subsequently allowed the county clerk to be realigned as an appellee. And, as noted above, we affirmed the judgment of the circuit court in an order entered on March 29, 1989. Additional relevant facts will be considered in the course of our analysis. I

With the foregoing in mind, we now come to the merits of the park district's arguments. The park district contends that plaintiff failed to properly file the petition submitted in support of the referendum. The park district states that plaintiff's attorney did not personally appear before the board of commissioners, although he knew they would be meeting in the evening of December 15, 1988, and that the board's secretary was not served with the petition. The park district relies upon the following cases, which held that the filing of the documents at issue was legally insufficient: Daniels v. Cavner (1949), 404 Ill. 372, 88 N.E.2d 823, Brelsford v. Community High School ...


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