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12/02/94 CITY ELMHURST EX REL. JAMES M. MASTRINO v.

December 2, 1994

THE CITY OF ELMHURST EX REL. JAMES M. MASTRINO, ROBERT OLIVER WILLIAMS, JR., AND ERIC VAN BERSCHOT, PLAINTIFFS-APPELLANTS,
v.
THE CITY OF ELMHURST; CHARLES H. GARRIGUES, MAYOR OF THE CITY OF ELMHURST; CYNTHIA C. CRONIN, TREASURER OF THE CITY OF ELMHURST; THOMAS P. BORCHERT, MANAGER OF THE CITY OF ELMHURST; AND NORMAN T. REINERTSEN, FLORENCE "BETSY" ALDRED, JANICE A. VANEK, LARRY SCHOENBECK, PHILLIP D. JORDAN, CAROL L. JOSEFOWICZ, DONALD F. OLSON, EDWARD MORAN AND GERALD "JERRY" WOLIN, ALDERMEN OF THE CITY OF ELMHURST, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 92-CH-1214. Honorable Bonnie M. Wheaton, Judge, Presiding.

Rehearing Denied June 7, 1995.

Justice Quetsch delivered the opinion of the court. Woodward and Geiger, JJ., concur.

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Plaintiffs, the City of Elmhurst ex rel. James M. Mastrino, Robert Oliver Williams, Jr., and Eric Van Berschot, brought this action in the circuit court of Du Page County as taxpayers of the City of Elmhurst (Elmhurst) seeking a declaratory judgment invalidating resolutions approved by the Elmhurst city council which authorized Elmhurst to provide for the defense of two Elmhurst aldermen in a libel lawsuit. Plaintiffs also sought an injunction prohibiting Elmhurst from retaining or paying the fees of counsel for the aldermen in connection with the defense of the libel suit. The trial court dismissed the action pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)) and plaintiffs brought this appeal.

I. BACKGROUND

In September 1992, Joseph Joseph, Guy Spinelli and Mark Entwistle filed a libel action against various individuals. Plaintiff Spinelli and Entwistle were Elmhurst aldermen, as were four of the defendants: Carol Josefowicz, Janice Vanek, Donald Olson, and Lawrence Schoenbeck. Several other individual defendants named in the libel complaint were not alleged to hold any public office. According to the libel complaint, in August 1992, Joseph, Spinelli and Entwistle were involved in an effort to have a referendum conducted on a question of public policy whether Elmhurst should restrict the number of aldermen to one per ward. The libel complaint alleged that the individual defendants formed a voluntary association known as the "Elmhurst petition integrity committee" for the purpose of opposing the referendum and that certain members of the committee, acting on behalf of all members of the committee, made statements or released documents falsely accusing the plaintiffs of fraud and perjury in connection with their efforts to cause the referendum question to be placed on the ballot.

Aldermen Josefowicz and Vanek both requested that Elmhurst defend and indemnify them in the libel action. Aldermen Olson and Schoenbeck who were also named as defendants in the libel action did not make such a request. On November 23, 1992, by a vote of eight to five, the Elmhurst city council authorized Elmhurst to provide for the defense of Alderman Josefowicz. Aldermen Vanek, Olson, and Schoenbeck cast "yea" votes and Alderman Josefowicz abstained from voting. On December 7, 1992, by a vote of eight to three, the Elmhurst city council authorized Elmhurst to provide for the defense of Alderman Vanek. Aldermen Josefowicz, Olson, and Schoenbeck voted "yea" and Alderman Vanek abstained.

On December 15, 1992, plaintiffs filed this action for declaratory and injunctive relief against Elmhurst, its mayor, treasurer, and city manager, and the aldermen who voted in favor of providing a defense for Aldermen Josefowicz and Vanek. Count I of plaintiffs' complaint sought a declaratory judgment that the resolutions approving the defense of Aldermen Josefowicz and Vanek were void because they provided for the unlawful expenditure of city funds for a private purpose. Count II sought a declaratory judgment that the resolutions were invalid because the aldermen named as defendants in the libel suit were disqualified from voting due to a conflict of interest and, therefore, the resolutions failed to receive the affirmative votes of a majority of the members of the city council necessary for passage. Count III sought injunctive relief based on the allegations of counts I and II. Count IV, which is not at issue in this appeal, sought an award of attorney fees.

Defendants filed a combined motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)) and for summary judgment. In the summary judgment portion of their motion, defendants asserted that the expenditure of funds in the defense of Aldermen Josefowicz and Vanek served a proper public purpose. In the portion of their motion seeking dismissal pursuant to section 2-619, defendants challenged count II, asserting that the aldermen defending against libel allegations had no personal financial interest in the decision to defend the other aldermen. In the portion of their motion seeking dismissal pursuant to section 2-619, defendants also asserted, inter alia, that the plaintiffs lacked standing to bring a taxpayer's action and that the court lacked subject-matter jurisdiction because the action was a "political case."

The trial court granted defendants' motion to dismiss pursuant to section 2-619. The trial court's comments from the bench in announcing its ruling indicate that the court concluded that the conduct alleged in the libel complaint might arguably be within the scope of the official duties of an aldermen and this possibility gave rise to a duty on Elmhurst's part to provide a defense. With respect to count II, the court concluded that no pecuniary interest was alleged that would disqualify any of the four alderman named in the libel action from voting. The trial court explicitly declined to rule on defendants' standing argument, and made no mention of defendants' argument regarding subject-matter jurisdiction.

II. LEGALITY OF EXPENDITURE FOR DEFENSE IN THE LIBEL CASE

We first consider whether the trial court properly dismissed count I of plaintiff's complaint--which sought a declaration that the expenditure of funds for the defense of Aldermen Josefowicz and Vanek was improper--and the corresponding request for injunctive relief in count III. Initially we note that although the trial court entered an order of dismissal pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)), the court essentially adopted the reasoning set forth in the portion of defendants' motion seeking summary judgment. Nonetheless, the procedural discrepancy is of no consequence in this case. As explained below, with respect to count I, the record does not support either dismissal under section 2-619 or summary judgment in favor of defendants, and the trial court's order must be reversed.

Section 2-302 of the Local Governmental and Governmental Employees Tort Immunity Act (Immunity Act) ...


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