Appeal from the Circuit Court of Du Page County. No. 98--CH--633 Honorable Bonnie M. Wheaton, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Geiger
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
The instant controversy stems from a dispute between the mayor of the Village of Westmont, Edwin Burke, and four members of the village's board of trustees, James Lenihan, Mark Forzley, William Rahn, and Wendy Wilson (collectively, trustees), concerning the employment of an attorney to provide legal services to the Village of Westmont (the village). On May 18, 1998, the trustees enacted a resolution approving a contract for legal services with the law firm of Kubiesa, Spiroff, Gosselar & Pieper, P.C. (the Kubiesa firm) and terminating any express or implied agreements with the law firm of Rathje, Woodward, Dyer & Burt (the Rathje firm). Prior to the enactment of the resolution, Mayor Burke had assigned all of the village's legal work to the Rathje firm. Mayor Burke subsequently filed a suit on behalf of the village and against the trustees and the Kubiesa firm, seeking a declaration that the resolution and contract were invalid and requesting other injunctive relief. On July 10, 1998, the circuit court of Du Page County entered an order preliminarily enjoining enforcement of the resolution and preserving the status quo. The trustees and the Kubiesa firm have filed an interlocutory appeal from this order.
The parties do not dispute the underlying facts of the case. In 1993, James Addington became mayor of the village. On June 21, 1993, he appointed Kenneth Kubiesa of the Kubiesa firm to the office of village attorney. Mayor Addington also designated Ron Civinelli as police attorney and Peter Zamis of the Rathje firm as attorney for litigation. The board of trustees unanimously approved these appointments.
In 1997, plaintiff Edwin Burke became mayor. In July 1997, Mayor Burke removed Kenneth Kubiesa from the office of village attorney. Mayor Burke never consulted with the board of trustees prior to removing Kubiesa from office. Mayor Burke also has never presented the board of trustees with a new permanent appointment for the office of village attorney. Rather, Mayor Burke has delegated all of the village's legal work to the Rathje firm. Once again, Mayor Burke did not consult with the board of trustees prior to delegating these responsibilities to the Rathje firm.
On May 18, 1998, the defendant trustees approved a resolution and contract to retain the Kubiesa firm to perform duties as "Village Attorneys." The resolution also terminated any appointment, designation, or contract for legal services, whether express or implied, with Zamis, Mark Daniel, or the Rathje firm. The contract with the Kubiesa firm provided that the agreement would be terminated upon the appointment and confirmation of a new village attorney. Although Mayor Burke vetoed this resolution, on June 15, 1998, the trustees overrode the veto.
On June 16, 1998, Mayor Burke filed the instant complaint on behalf of the village. The complaint named the trustees and the Kubiesa firm as defendants. In the complaint, the plaintiffs sought (1) a declaration that the trustees' resolution and the contract with the Kubiesa firm were invalid; (2) an injunction preventing the trustees and the Kubiesa firm from operating under the contract; and (3) a writ of mandamus requiring the Kubiesa firm to turn over all of the village's files in its possession. The plaintiffs subsequently filed a motion for a temporary restraining order and the entry of a preliminary injunction.
On June 22, 1998, following a hearing, the trial court issued a temporary restraining order preserving the status quo between the parties. Specifically, the order provided that both the Rathje firm and the Kubiesa firm would continue to handle those legal matters already referred to them by the village; additionally, the Rathje firm was to take any new legal matters that arose following the issuance of the temporary restraining order.
The trustees and the Kubiesa firm subsequently filed motions to dismiss the complaint pursuant to section 2--619 of the Code of Civil Procedure (735 ILCS 5/2--619 (West 1996)). In their motions, the defendants argued, inter alia, that the board of trustees was authorized to enact the subject resolution and to enter into the contract with the Kubiesa firm pursuant to section 8--1--7(b) of the Illinois Municipal Code (the Code) (65 ILCS 5/8--1--7(b) (West 1996)). The defendants also argued that the resolution did not impermissibly interfere with Mayor Burke's statutory authority to appoint and remove village officials. For these reasons, the defendants argued that the trial court was without legal authority to enjoin enforcement of this official act.
On July 10, 1998, the trial court conducted a hearing on the motion for a preliminary injunction. At the hearing, the parties stipulated to the underlying facts and agreed to forego an evidentiary hearing. Following oral argument, the trial court granted the motion and entered a preliminary injunction barring the trustees and the Kubiesa firm from operating under the terms of the resolution. The trial court also ordered both the Rathje firm and Kubiesa firm to continue to handle those matters that they had already been assigned. Additionally, the trial court made an express finding that the office of village attorney was vacant and ordered Mayor Burke to bring forward an appointment for the office for the consent of the board of trustees. The trial court explained its ruling as follows:
"Mr. Kubiesa was removed a year ago by the action of Mayor Burke. There was no objection on the part of the trustees within a reasonable time. A year has now passed. There is an implied acquiescence by the Board in that vacancy."
"However, the existence of a vacancy and the lack of an appointment by the Mayor does not allow the trustees to step in and exercise purported powers, which have no foundation in the statute or in the ordinance."
"Obviously, in our system of balance of powers, checks and balances, the statutes require that the executive make the appointment and the trustees advise ...