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Village of Lake Villa v. Stokovich

February 20, 2004

[5] THE VILLAGE OF LAKE VILLA, APPELLANT,
v.
DOROTHY STOKOVICH ET AL., APPELLEES.



[6] The opinion of the court was delivered by: Justice Garman

[7]  Docket No. 95118-Agenda 16-May 2003.

[8]  In 1998, plaintiff, Village of Lake Villa, sought authorization from the circuit court of Lake County, pursuant to section 11-31-1 of the Illinois Municipal Code (Code) (65 ILCS 5/11-31-1(a) (West 1996)), to demolish a structure owned by the defendants, Dorothy Stokovich, as trustee under a trust agreement dated September 16, 1992, and Nick Stokovich, her son. After a hearing, the circuit court entered an order of demolition and the property owners appealed. After a lengthy and convoluted procedural history, the appellate court eventually found section 11-31-1 of the Code unconstitutional on due process grounds. 334 Ill. App. 3d 488. We reverse.

[9]  BACKGROUND

[10]   The structure at issue is approximately 100 years old and was used from 1949 until 1977 as a nursing home. It was subsequently occupied for several years by a caretaker and then by Nick Stokovich. It has been unoccupied since at least 1992.

[11]   In 1997, the Village informed the property owners by means of a "red card" posted on the building and a letter sent to Dorothy Stokovich that the building was unsafe, abandoned, dilapidated, and animal infested. The letter informed her that the building must either be brought into conformance with the building code or be demolished. In addition, she was informed that repair work could not commence until the building had undergone an inspection and the proper permits were obtained. Further correspondence between the Village and the property owners ensued. Eventually, when no permits were sought, the Village filed a complaint for demolition.

[12]   A thorough review of the evidence reveals that the summary contained in the appellate court opinion is accurate. See 334 Ill. App. 3d at 491-98. The circuit court found the building unsafe and dangerous, based on testimony regarding the risk of communicable disease evidenced by animal droppings, the presence of methane gas, potential contamination of the Village's water supply, and structurally weak ceiling rafters. The circuit court also found that the value of the building was approximately $100,000; the cost of repair would be approximately $75,000; and such an expenditure would constitute "substantial renovation" of the building. The circuit court entered an order of demolition.

[13]   On appeal, the property owners argued that section 11-31-1 of the Code, which permits demolition of "dangerous and unsafe buildings or uncompleted and abandoned buildings" (65 ILCS 5/11-31-1(a) (West 1996)), violates the due process guarantees of both the United States and Illinois Constitutions (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §§ 2, 15). Specifically, they contended that ordering demolition upon a finding that the building is dangerous and unsafe, without first allowing the property owner to repair the property, constitutes an unlawful taking without due process and without just compensation.

[14]   The appellate court held the statute unconstitutional "because it authorizes a municipality to take private property without compensation and without due process by demolishing or requiring demolition without first giving the owner the choices of repairing the property within a reasonable time and of spending whatever it costs to bring the property into compliance." 334 Ill. App. 3d at 503-04. The appellate court agreed with the property owners that, absent an "imminent threat to the safety of persons or property" (334 Ill. App. 3d at 502), they should have been afforded reasonable time after the circuit court's finding that the structure was dangerous and unsafe in which to make the necessary repairs. Further, the property owners argued, and the appellate court agreed, that whether the building was suitable for repair was the owners' decision, not a question to be answered by the court. In effect, the statute unconstitutionally denies them "the opportunity of doing whatever is necessary" to repair the building "at whatever cost" they are willing to spend. 334 Ill. App. 3d at 503.

[15]   As appellant, the Village make five arguments to this court: (1) the property owners' constitutional challenge should not be heard because they failed to comply with Supreme Court Rule 19 (134 Ill. 2d R. 19); (2) the property owners lack standing to raise the constitutional challenge; (3) section 11-31-1 does not violate due process; (4) even if the statute is found to violate due process, the appellate court's ruling is internally inconsistent and overbroad and should be corrected by this court; and, finally, (5) the order for demolition should stand because the structure at issue in this case cannot possibly be brought into conformance with current zoning requirements.

[16]   Pursuant to Supreme Court Rule 345 (155 Ill. 2d R. 345), we have permitted the City of Chicago and the Illinois Municipal League to file a brief amicus curiae. Amici argue that section 11-31-1 is a constitutionally permissible exercise of municipal police power.

[17]   COMPLIANCE WITH RULE 19

[18]   The property owners first raised the constitutional issue in their April 14, 1998, motion to dismiss the Village's complaint for demolition. The record does not contain the Village's response to the motion to dismiss. However, the record does contain the property owners' reply to that response, which does not mention a Rule 19 objection having been made. Thus, it appears that the Village did not invoke Rule 19 in the trial court.

[19]   The property owners raised the constitutional issue again on appeal and the Village responded that the constitutional claim was barred for failure to comply with Rule 19. Thereafter, the property owners sought leave from the appellate court to comply with Rule 19. The appellate court granted leave to comply on February 15, 2001. On February 26, 2001, the property owners filed notice in the appellate court that they had given notice to the Attorney General of their constitutional challenge to a state statute, as required by Rule 19. The Attorney General responded by letter, advising the property owners that he declined to intervene in the matter. A copy of the letter was filed with the appellate court on March 16, 2001. In the end, the appellate court declined to address the constitutional challenge to the statute based on its factual finding that the property owners had the opportunity to choose whether to repair or demolish their building prior to the Village's demand for demolition. Village of Lake Villa v. Stokovich, No. 2-00-0943 (2001) (unpublished order under Supreme Court Rule 23).

[20]   The property owners then filed a petition for leave to appeal, which this court denied on February 6, 2002. However, this court entered a supervisory order directing the appellate court to vacate its affirmance of the demolition order and to address the property owners' claim that section 11-13-1 is unconstitutional. Village of Lake Villa v. Stokovich, 198 Ill. 2d 593 (2002) (supervisory order).

[21]   When the Village again argued to the appellate court that the property owners' constitutional claim was barred by failure to comply with Rule 19, the appellate court concluded that because the property owners had, by that time, complied with Rule 19, their constitutional claim was not barred. 334 Ill. App. 3d at 499. The appellate court eventually held that section 11-31-1 is unconstitutional and this court granted the Village's petition for leave to appeal. Before this court, the Village again asserts that the matter was not properly before the appellate court due to the property owners' failure to satisfy the requirements of Rule 19, and, thus, should not be considered by this court.

[22]   This court has never before had occasion to address the effect of noncompliance, or delayed compliance, with Supreme Court Rule 19. Under this rule, a litigant challenging the constitutionality of a statute, ordinance, or administrative regulation must serve notice of the challenge upon the Attorney General or other affected agency or officer. 134 Ill. 2d R. 19(a). "The notice shall identify the particular statute *** and shall briefly describe the nature of the constitutional challenge." 134 Ill. 2d R. 19(b). The rule also contains a timing requirement: "The notice shall be served at the time of suit, answer or counterclaim, if constitutionality is raised at that level, or promptly after the constitutional question arises as a result of a circuit or reviewing court ruling or judgment." 134 Ill. 2d R. 19(b). The purpose of the notice is to give the affected agency or officer the opportunity to intervene in the proceeding for the purpose of defending the constitutionality of the statute, ordinance, or administrative regulation. 134 Ill. 2d R. 19(c). Because the property owners did eventually comply with Rule 19, and because no issue is raised as to the content of the notice, the Village's claim must be understood to be based on the timing of the notice.

[23]   The Village claims that its due process rights were violated when the appellate court granted leave to the property owners to comply with Rule 19 after the Village had already filed its brief. The Village does not explain how its due process rights were violated and the case it cites as support, Delarosa v. Approved Auto Sales, Inc., 332 Ill. App. 3d 623 (2002), is not relevant. The underlying issue in Delarosa was a contract dispute between a used-car buyer and a car dealer. The appellate court found that the buyer's due process rights were violated when the trial court, after first denying his motion to amend his pleadings to include a breach of contract claim, reversed itself after he had rested his case and then entered a directed judgment for the dealer. Delarosa, 332 Ill. App. 3d at 626. Because the buyer prepared for and conducted the trial with the understanding that his contract claim was not going to be allowed, the court's untimely reversal of its earlier erroneous decision resulted in a violation of his due process rights. Delarosa, 332 Ill. App. 3d at 626. In contrast, the Village has not demonstrated that it was prejudiced in any way by the timing of the property owners' compliance with Rule 19. The Village had long been aware of the property owners' constitutional claim and did not seek leave to supplement its brief after learning that the Attorney General had been given notice and declined to intervene. Thus, it was not prejudiced in its effort to respond to the constitutional challenge. In addition, the appellate court did not reach the constitutional issue until ordered to do so by this court, long after the appellate court allowed the property owners to comply with Rule 19. The Village had ample opportunity to address the constitutional issue before the appellate court.

[24]   Nevertheless, the Village correctly observes that strict compliance with supreme court rules is generally required: "The rules of court we have promulgated are not aspirational. They are not suggestions. They have the force of law, and the presumption must be that they will be obeyed and enforced as written." Bright v. Dicke, 166 Ill. 2d 204, 210 (1995). See also Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490 (2002) (requiring strict compliance with the affidavit requirement of Rule 315(b)).

[25]   In their motion for leave to serve late notice, the property owners acknowledged their failure to serve notice on the Attorney General at the time they first raised the constitutional question in their motion to dismiss. They explained that they had understood the requirement of notice to the "affected agency" (134 Ill. 2d R. 19(b)) to be fulfilled because the municipality was already party to the suit. Rule 19, however, has generally been understood to require notice to the Attorney General whenever the constitutionality of a state statute is challenged. See, e.g., Poullette v. Silverstein, 328 Ill. App. 3d 791, 796 (2002) (Rule 19 requires "that notice be given to the Attorney General by any party questioning the constitutionality of a state statute in a proceeding where the Attorney General is not already a party"). The appellate court accepted the property owners' explanation and granted them leave to serve late notice. The question presented to this court is, therefore, whether the appellate court has the discretion to permit such a deviation from the clear requirements of Rule 19. Rule 19 was adopted in 1986. Shortly thereafter, this court commented on the purpose of the rule:

[26]   "This rule recognizes the significance of the State's interest in defending the constitutionality of its laws by requiring a litigant to serve the Attorney General with notice that he intends to challenge the constitutionality of a statute. This notice, in turn, affords the Attorney General the opportunity to petition for leave to intervene in the action in the circuit court. The adoption of Rule 19 should obviate the need for the State's intervention in an action in a reviewing court in future cases." Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc., 118 Ill. 2d 389, 400 (1987).

[27]   The property owners argue that it was within the discretion of the appellate court to permit late compliance with Rule 19, notwithstanding the requirement that "notice shall be served at the time of suit, answer or counterclaim, if constitutionality is raised at that level." 134 Ill. 2d R. 19(b). They cite McMichael v. Michael Reese Health Plan Foundation, 259 Ill. App. 3d 113 (1994), in which the defendant, Health Plan, did not comply with Rule 19 until after it had raised a constitutional challenge to a statute on appeal. The appellate court rejected plaintiff's argument that compliance with Rule 19 is jurisdictional. McMichael, 259 Ill. App. 3d at 115. However, as the Village correctly observes, the discussion of Rule 19 in McMichael was dicta, because the appellate court resolved the matter without reaching the constitutional question.

[28]   The property owners also rely on the more recent decision in Poullette, where the plaintiff raised a constitutional question regarding a provision of the Code of Civil Procedure for the first time on appeal. The defendant argued that the constitutional claim was waived for failure to raise it before the trial court and that the plaintiff had also failed to comply with Rule 19. Poullette, 328 Ill. App. 3d at 796. The appellate court chose to address the constitutional question, notwithstanding failure to notify the Attorney General, because the issue was of constitutional dimension and had been fully briefed and argued by the parties. Poullette, 328 Ill. App. 3d at 797. In the end, the appellate court found the challenged statute constitutional. Poullette, 328 Ill. App. 3d at 797.

[29]   The Village offers several cases in which the appellate court has found failure to comply with Rule 19 to be the equivalent of waiver. See Villareal v. Peebles, 299 Ill. App. 3d 556, 561 (1998) (failure to raise constitutional issue in trial court and late compliance with Rule 19 not excused); Serafin v. Seith, 284 Ill. App. 3d 577, 587 (1996) (issue waived for failure to comply with Rule 19; "[m]oreover," the constitutional argument was "without merit"); Witt v. Jones & Jones Law Offices, P.C., 269 Ill. App. 3d 540, 545 (1995) (constitutional arguments waived for failure to raise them in trial court and failure to comply with Rule 19; "[f]urther," the constitutional arguments were "without merit").

[30]   We conclude that a party's failure to timely comply with Rule 19 does not deprive the court of jurisdiction to consider the constitutional issue. However, failure to strictly comply with the rule may result in waiver. Nevertheless, because waiver is a limitation on the parties, not on the court (Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 518-19 (2000)), a circuit court or the appellate court has the discretion to permit late compliance with Rule 19 and thereafter to address the constitutional issue if the purpose of the rule has been served. See, e.g., Pappas v. Calumet City Municipal Officers' Electoral Board, 288 Ill. App. 3d 787, 791 (1997) (declining to address constitutional challenge to state statute where challenging party ...


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