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04/16/96 KURT M. GRANBERG v. LOLETA DIDRICKSON

April 16, 1996

KURT M. GRANBERG, MIKE BOLAND, JOEL BRUNSVOLD AND CHARLES A. HARTKE, PLAINTIFFS-APPELLEES,
v.
LOLETA DIDRICKSON, AS STATE COMPTROLLER OF THE STATE OF ILLINOIS, JUDY BAAR TOPINKA, AS STATE TREASURER OF THE STATE OF ILLINOIS, MICHAEL S. SCHWARTZ, AS DIRECTOR OF THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES OF THE STATE OF ILLINOIS, KIRK BROWN, AS DIRECTOR OF THE DEPARTMENT OF TRANSPORTATION OF THE STATE OF ILLINOIS, AND TERRENCE GAINER, AS DIRECTOR OF THE DEPARTMENT OF STATE POLICE OF THE STATE OF ILLINOIS, DEFENDANTS-APPELLANTS.



On appeal from the Circuit Court of Cook County. The Honorable Aaron Jaffe, Judge Presiding.

Presiding Justice Zwick delivered the opinion of the court: McNAMARA J., and Rakowski, J., concur.

The opinion of the court was delivered by: Zwick

PRESIDING JUSTICE ZWICK delivered the opinion of the court:

This is an expedited appeal from the issuance of a preliminary injunction preventing defendants Kirk Brown, Loleta Didrickson, Judy Baar Topinka and Terrence Gainer from approving vouchers or warrants authorizing the expenditure of $15,792,000 which was provided by the General Assembly in Section 62 of Article 53 of Public Act 89-22 (hereinafter, P.A. 89-22 or "the Act"). Plaintiffs are State representatives who voted against the $15,792,000 appropriation contained in P.A. 89-22. The funds at issue were designated by the General Assembly for the Department of Transportation to be taken from the State Road Fund (30 ILCS 105/5, 5.42 (West 1994)), and then transferred by the Department of Transportation as "a grant to the Department of State Police for patrolling and policing public highways and support of highway safety programs." Defendants appealed the injunction pursuant to Supreme Court Rule 307(a)(1). 134 Ill. 2d R. 307(a)(1).

On or about May 26, 1995, the General Assembly passed Senate Bill 925, which implemented the budget of the State for Fiscal Year 1996. On June 6, 1995, the Governor approved and signed into law Senate Bill 925 which became P.A. 89-22. The Act is an appropriations bill for Fiscal Year 1996 and, among other provisions, appropriates $52,733,200 from the Illinois Road Fund to the Department of State Police. The Act also contains the disputed $15,792,000 appropriation to the Department of Transportation for the use by the State Police.

Pursuant to Section 8.3 of the State Finance Act, monies in the Road Fund may be appropriated to the Department of State Police subject to certain limitations. Section 8.3 specifically provides that "no Road Fund monies shall be appropriated to the Department of State Police for the purposes of this Section in excess of its total fiscal year 1990 Road Fund appropriations for those purposes unless otherwise provided in section 5g of this Act. It shall not be lawful to circumvent this limitation on appropriations by governmental reorganization or other methods unless otherwise provided in Section 5g of this Act." (30 ILCS 105/8.3 (West 1994). Plaintiffs alleged that the 1990 Road Fund appropriations to theDepartment of State Police had been $52,733,200, and, consequently, that the additional $15,792,000 appropriation contained in P.A. 89-22 violated section 8.3 of the State Finance Act. Plaintiffs also raised constitutional claims. Defendants concede that the State Finance Act prohibited the $15,792,000 appropriation prior to the enactment into law of P.A. 89-22, but counter plaintiffs' arguments by maintaining that P.A. 89-22 "implicitly amended" the State Finance Act. Defendants also argue that the $15,792,000 appropriation was permissible under the State constitution.

The procedural posture of this case is unusual. On June 30, 1995, plaintiffs filed their taxpayers' petition in the circuit court. On July 10, 1995, the circuit court granted their petition which allowed plaintiffs to file their complaint. On December 20, 1995, plaintiffs filed a motion for summary judgment. The trial court set the motion for hearing on April 24, 1996. Plaintiffs, recognizing that the funds at issue could be spent before the hearing could be held, moved for a preliminary injunction to prevent the spending of the disputed appropriation until after the issues were resolved. At the hearing on the preliminary injunction motion, on January 26, 1996, defendants' counsel conceded that the State police would begin spending the $15,792,000 appropriation sometime in mid-April, before the scheduled hearing date. The trial court, after weighing the relevant factors and concluding that there were no issues of fact to be resolved, stated:

"we're dealing with an appropriation bill trying to amend a substantive bill, and I don't think you can do it. The constitution, I think, is quite clear on that. *** The legislature had an opportunity to change the substantive law. They didn't change the substantive law. *** They passed an appropriations bill.

So it would appear to me that the preliminary injunction is actually well founded. I believe that [the plaintiffs] have no adequate remedy at law. State funds *** will be expended. [Plaintiffs cannot] recover them in a suit [at] law, and it appears to me that in a balancing of what the law is and the equities, I think that the equities are on the side of the plaintiff and especially considering what the constitution says."

The court then granted the preliminary injunction. Defendants appeal.

For a preliminary injunction to be granted, a plaintiff must establish: (1) that he or she possesses a clearly ascertainable right which needs protection; (2) that he or she would suffer irreparable harm without the injunction; (3) there is no adequate remedy at law for his injury; (4) there is a likelihood of success on the merits; and(5) the plaintiff will suffer more harm without the injunction than the defendant will suffer with it. New Park Forest Assoc. II v. Rogers Enterprises, Inc., 195 Ill. App. 3d 757, 761, 552 N.E.2d 1215, 142 Ill. Dec. 474 (1990); see Buzz Barton & Associates, Inc. v. Giannone, 108 Ill. 2d 373, 387, 483 N.E.2d 1271, 91 Ill. Dec. 636 (1985). The trial court is vested with a large measure of discretion in the grant or refusal to grant a preliminary injunction, and its determination will not be overturned on review absent a showing of the abuse of that discretion. Hayden's Sport Center, Inc. v. Johnson, 109 Ill. App. 3d 1140, 1144-45, 65 Ill. Dec. 612, 441 N.E.2d 927 (1982); Shorr Paper Products, Inc. v. Frary (1979) 74 Ill. App. 3d 498, 502, 392 N.E.2d 1148, 30 Ill. Dec. 280 (1979).

The Illinois Code of Civil Procedure clearly provides that plaintiffs have a right as taxpayers to bring this suit. 735 ILCS 5/11-301; 11-303 (West 1994). The standard for establishing a right that needs protection at the preliminary injunction phase is not difficult, requiring only that a fair question be raised as to the existence of the right claimed. Continental Cablevision v. Miller, 238 Ill. App. 3d 774, 606 N.E.2d 587, 179 Ill. Dec. 755 (1992). In addition, common law principles allow suits in equity by taxpayers to restrain unlawful disbursement of public monies by officers of the State. Cusack v. Howlett, 44 Ill. 2d 233, 254 N.E.2d 506 (1969). Consequently, plaintiffs have met the first requirement of receiving a preliminary injunction.

Second, plaintiffs were charged with showing to the trial court that there was a prospect of irreparable harm in the absence of an injunction. Buzz Barton, 108 Ill. 2d at 387. An irreparable injury has been described by courts as one that cannot be adequately compensated. Wilson v. Wilson, 217 Ill. App. 3d 844, 855, 577 N.E.2d 1323, 160 Ill. Dec. 752 (1991). In this case, if the preliminary injunction did not issue, defendants, by their own admissions, would have transferred and disbursed the challenged monies before the issues could be heard on the merits. If the challenged funds had been expended, plaintiffs would be irreparably harmed in two ways. First, as taxpayers, they would have been irreparably harmed by the improper expenditure of public funds. Illinois courts have long viewed public funds as being held in trust on behalf of all taxpayers and have recognized that the wrongful expenditure of public assets necessarily harms the public. Snow v. Dixon (1977), 66 Ill. 2d 443, 450-51, 362 N.E.2d 1052, 6 Ill. Dec. 230 (1977); Turkovich v. Board of Trustees, 11 Ill. 2d 460, 464, 143 N.E.2d 229 (1957); Barco Manufacturing Co. v. Wright, 10 Ill. 2d 157, 160, 139 N.E.2d 227 (1956). Plaintiffs would also be irreparably harmed because the defendants would, if allowed, expend the challenged funds and thereby make the case moot, depriving the plaintiffs of their statutory and common law remedies.

Next, for a preliminary injunction to issue, no adequate remedy at law must exist. An adequate remedy at law is one which is clear, complete, and as practical and efficient to the ends of justice and its prompt administration as the equitable remedy. Wilson, 217 Ill. App. 3d at 856. A preliminary injunction will not be granted where the plaintiff can be adequately compensated by an award of money damages. Wilson, 217 Ill. App. 3d at 856. In this case, such award would be not be possible if the injunction were not granted because the funds at issue would be irretrievably lost from the State Road Fund. Indeed, the statute authorizing taxpayer actions recognizes this ...


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