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11/20/97 PEOPLE STATE ILLINOIS v. ROGER CLAAR

November 20, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
ROGER CLAAR, DEFENDANT-APPELLEE, (VILLAGE OF BOLINGBROOK, INTERVENOR-APPELLEE).



Appeal from the Circuit Court for the 12th Judicial Circuit. Will County, Illinois. No. 96--CH--15799. Honorable Edwin B. Grabiec, Judge Presiding.

Released for Publication December 23, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable Thomas J. Homer, Justice. Justice Homer delivered the opinion of the court. Lytton, P.j., and Mccuskey, J., concur.

The opinion of the court was delivered by: Homer

The Honorable Justice HOMER delivered the opinion of the court:

The Will County State's Attorney filed a complaint in quo warranto (735 ILCS 5/18--101, 18--103 (West 1996)), against Robert Claar seeking his ouster as mayor of the Village of Bolingbrook based upon allegations that Claar's positions as mayor and director of the Illinois Toll Highway Authority are incompatible. The trial court dismissed the complaint for failure to state a cause of action (735 ILCS 5/2--615 (West 1996)), and the State's Attorney appeals. Following our careful review, we affirm.

FACTS

Defendant was first elected mayor of the Village of Bolingbrook in April 1989. In June 1991, defendant received a gubernatorial appointment to the Board of Directors of the Illinois Toll Highway Authority (the Authority). He was subsequently re-elected as mayor in April 1993 and 1997, and he was re-appointed to the Authority in November 1995. He continues to serve in both offices.

The record reveals that as early as 1989, Bolingbrook officials were becoming increasingly concerned about the expansion of the neighboring Village of Woodridge through annexation. In an effort to secure the village's eastern border, Bolingbrook officials sought the Authority's consent to annex a certain parcel of property along Interstate 355 which was owned by the Authority. Woodridge objected to this proposition.

At its meeting in October 1992, the Authority approved a resolution which authorized its attorneys to negotiate a pre-annexation agreement with the Village of Bolingbrook. Defendant recused himself from the vote on this resolution. The following month, defendant, in his capacity as mayor of Bolingbrook, negotiated and signed the pre-annexation agreement with the Authority. Thereafter, he executed a village ordinance approving the terms of the agreement and the annexation was completed. In his capacity as Authority director, defendant continued to recuse himself from consideration of this annexation.

In November 1996, the State's Attorney filed the instant complaint in quo warranto against defendant. The complaint asked the trial court to compel defendant to show by what lawful authority he holds the office of mayor of Bolingbrook. The State's Attorney alleged that defendant's acceptance of the purportedly incompatible public office of director of the Authority served as an ipso facto resignation of his mayoral office. The complaint sought a judgment of ouster and the imposition of a statutory fine. The Village of Bolingbrook (the intervenor) was granted permission to intervene in the action.

Defendant filed a 2--615 motion to dismiss the complaint for failure to state a cause of action (735 ILCS 5/2--615 (West 1996)), contending that: (1) the common law doctrine of incompatibility of public offices had been superseded by article V, section 9(a) and article VII, section 10 of the Illinois Constitution of 1970 and by enactment of section 10/28.1 of the Toll Highway Act (605 ILCS 10/28.1 (West 1996)) and (2) the doctrine of laches barred the complaint. The intervenor filed a motion on similar grounds pursuant to sections 2--615 and 2--619 (735 ILCS 5/2--615, 2--619 (West 1996)).

Without specifically addressing these contentions, the trial court granted the motions to dismiss finding that the complaint failed to state a cause of action under the doctrine of incompatibility of offices as enunciated in People ex rel. Myers v. Haas, 145 Ill. App. 283 (1908), Illinois statute, or the Illinois Constitution. The State's Attorney appeals.

ANALYSIS

A complaint in quo warranto is ...


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