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City of Carbondale v. Bower

July 10, 2002

THE CITY OF CARBONDALE, PETITIONER-APPELLEE,
v.
GLEN BOWER, DIRECTOR OF REVENUE FOR THE DEPARTMENT OF REVENUE; THE DEPARTMENT OF REVENUE; KIRK BROWN, SECRETARY OF TRANSPORTATION OF THE DEPARTMENT OF TRANSPORTATION; AND THE DEPARTMENT OF TRANSPORTATION, RESPONDENTS-APPELLANTS.



Appeal from the Circuit Court of Jackson County. No. 01-CH-45 Honorable William G. Schwartz, Judge, presiding.

The opinion of the court was delivered by: Justice Hopkins

Released for publication.

THE CITY OF CARBONDALE, PETITIONER-APPELLEE,
v.
GLEN BOWER, DIRECTOR OF REVENUE FOR THE DEPARTMENT OF REVENUE; THE DEPARTMENT OF REVENUE; KIRK BROWN, SECRETARY OF TRANSPORTATION OF THE DEPARTMENT OF TRANSPORTATION; AND THE DEPARTMENT OF TRANSPORTATION, RESPONDENTS-APPELLANTS.

Appeal from the Circuit Court of Jackson County. No. 01-CH-45 Honorable William G. Schwartz, Judge, presiding.

James E. Ryan, Attorney General, State of Illinois, Joel D. Bertocchi, Solicitor General, Paul Racette, Assistant Attorney General, 100 W. Randolph Street, 12th Floor, Chicago, IL 60601 Attorneys for Appellants

M. Paige Reed, Deborah Nelson, 200 S. Illinois Avenue, P.O. Box 2047, Carbondale, IL 62901; Michael F. Dahlen, Feirich, Mager, Green, Ryan, 2001 West Main Street, P.O. Box 1570, Carbondale, IL 62903 Attorneys for Appellee

The opinion of the court was delivered by: Justice Hopkins

The respondents-Glen Bower, Director of Revenue for the Department of Revenue; the Department of Revenue (DOR); Kirk Brown, Secretary of Transportation of the Department of Transportation; and the Department of Transportation (DOT)-appeal the trial court's grant of a preliminary injunction to the petitioner, the City of Carbondale. On appeal, the respondents contend that the trial court lacked jurisdiction to consider the city's petition for a permanent injunction because the action was barred by sovereign immunity and, alternatively, that the trial court's entry of the preliminary injunction was an abuse of discretion. We reverse and dismiss the cause of action for the lack of subject matter jurisdiction.

FACTS

On July 11, 2001, the city filed motions for leave to file an action against the respondents to restrain and enjoin the respondents from disbursing public funds. The city also filed a petition that sought a temporary restraining order (TRO) and a permanent injunction against the respondents. The motion for leave to file a petition for a permanent injunction asserted that the matter was being brought under the injunction provision of section 11-301 of the Code of Civil Procedure, entitled "Disbursement of Public Moneys" (735 ILCS 5/11-301 (West 2000)).

That same day, without notice to the respondents and in the respondents' absence, the trial court conducted a hearing on the request for a TRO. The city advised the court that it receives money from the DOR and the DOT pursuant to the State Revenue Sharing Act (30 ILCS 115/0.1 et seq. (West 2000)) and under the Motor Fuel Tax Law (35 ILCS 505/1 et seq. (West 2000)). The statutes require that the amount of funds distributed to the city through the State Revenue Sharing Act and under the Motor Fuel Tax Law be based upon the latest census conducted by the federal government. The 2000 census was certified by the Secretary of State on May 29, 2001. The city advised the trial court that the 2000 census stated that the city has 6,352 less people than certified by the 1990 census. The city asserted that the 2000 census was erroneous, based on figures the city had compiled, and that the city would suffer irreparable harm if the DOR and the DOT were allowed to disburse the funds pursuant to the 2000 census, because the city would be unable to recover the funds once distributed, even if the 2000 census was corrected at a later date. The trial court entered a TRO as follows:

"A. [The respondents are to refrain] from using the 2000 census of the U.S. Census Bureau for the allocation of funds to the Petitioner in accordance with the State Revenue Sharing Act and the Motor Fuel Tax Law; and

B. That the Respondents are hereby directed to use the 1990 census for the allocation and disbursement of funds to the Petitioner in accordance with the State Revenue Sharing Act and the Motor Fuel Tax Law; and

C. That the Respondents are directed to disburse only that amount to the Petitioner which equals funding proposed under the 2000 census and place the remaining balance into a designated escrow account under the name ...


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