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The People of the State of Illinois Ex Rel. v. Melvin (Bud) Niekamp

September 19, 2011

THE PEOPLE OF THE STATE OF ILLINOIS EX REL.
KEVIN SEAN BALLARD, QUENTIN CHAMBERS,
DONIA J. GARDNER, G. CURTIS GARDNER,
MICHAEL K. SMITH, CYNTHIA J. HELMER, MELISSA E. HOLDEN, WILLIAM P. HOLDEN, RHONDA L. KLESNER, DENNIS G. KOCH, KAY E. MERRICK, CLAIRE SAFFORD, MICHAEL L. SCHUTTLER, AND DENNIS C. WILLIAM, PLAINTIFFS,
AND
CAROL W. NICHOLS, WILLIAM D. DANIELS, AND GLENN M. BEMIS, PLAINTIFFS-APPELLEES,
v.
MELVIN (BUD) NIEKAMP,
DEFENDANT-APPELLANT.



Appeal from Circuit Court of Adams County No. 09MR85 Honorable Diane M. Lagoski, Judge Presiding.

The opinion of the court was delivered by: Justice Pope

JUSTICE POPE delivered the judgment of the court, with opinion. Justices Turner and Steigmann concurred in the judgment and opinion.

OPINION

¶ 1 On September 2, 2010, the trial court entered a judgment of ouster, ousting defendant Melvin (Bud) Niekamp from his office as a member of the Board of Education of the Quincy School District #172 (school board) because he violated section 1 of the Public Officer Prohibited Activities Act (Act) (50 ILCS 105/1 (West 2008)). Niekamp appeals, arguing (1) plaintiffs Carol W. Nichols, William D. Daniels, and Glenn M. Bemis did not have standing to bring a quo warrantor action against him; (2) plaintiffs were guilty of laches, improper motive, and waiver or acquiescence; and (3) the court improperly denied Niekamp's motion for summary judgment. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In July 2009, the named plaintiffs with the exception of Nichols, Daniels, and Bemis filed the first application for leave to file a complaint in quo warrantor, seeking the removal of Niekamp from the school board. Both the Illinois Attorney General's office and the Adams County State's Attorney's office had declined the plaintiffs' request to bring a quo warrantor proceeding.

¶ 4 Eventually, after numerous motions and hearings, the original named plaintiffs were dismissed from the case, and the trial court granted leave for Nichols, Daniels, and Bemis to be added as relators to the application for leave to file the quo warrantor action.

¶ 5 The parties stipulated to the following facts. Niekamp was first elected to the school board in November 1989 and has served continuously. He was most recently reelected in April 2009. That same month, he was administered the oath of office as a member of the school board.

¶ 6 Niekamp was first elected to the Adams County Board (county board) in November 1992. He was subsequently elected to consecutive terms on the county board. His most recent election was in November 2008. As a result, he was a sitting member of the county board when he took the school board oath of office in April 2009. In July 2009, Niekamp submitted his resignation as a member of the county board. The county board accepted his resignation that same month.

¶ 7 In May 2010, the trial court entered an order granting Nichols, Daniels, and Bemis leave to file a proceeding in quo warrantor. The court found as follows: (1) each of the relators had standing to proceed in quo warrantor; (2) defendant failed to prove any of the relators was guilty of laches or improper motives; (3) defendant failed to prove any of the relators had waived his or her right to object to defendant serving on the school board or had acquiesced thereto; and (4) the public interest would be served by granting the relief requested by the relators in their respective applications.

¶ 8 On May 17, 2010, Nichols, Daniels, and Bemis filed their complaint in quo warrantor. On June 7, 2010, defendant filed a motion to dismiss and/or strike pleadings. On June 14, 2010, plaintiffs filed a motion for summary judgment. On June 21, 2010, the trial court heard arguments on defendant's motion to dismiss and/or strike pleadings. The court granted the motion to strike certain paragraphs based on the parties' agreement and gave defendant until July 12, 2010, to file an answer and affirmative defenses. On July 12, 2010, defendant filed an answer to the quo warrantor complaint and affirmative defenses.

¶ 9 On July 23, 2010, plaintiffs filed an amended motion for summary judgment. On August 10, 2010, defendant filed a motion for summary judgment. On September 2, 2010, the trial court entered a judgment of ouster.

¶ 10 This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 As previously stated, Niekamp argues (1) plaintiffs Carol W. Nichols, William D. Daniels, and Glenn M. Bemis did not have standing to bring a quo warrantor action against him; (2) plaintiffs were guilty of laches, improper motive, and waiver or acquiescence; and (3) the court improperly denied Niekamp's motion for summary judgment.

¶ 13 A. Plaintiff's Motion To Dismiss Appeal as Moot

¶ 14 Before we address defendant's arguments, we must determine whether this appeal is moot. After defendant filed his appeal, he subsequently ran for and was elected to another position on the school board on April 5, 2011. On April 20, 2011, defendant took the oath of office for this new position on the school board. On May 31, 2011, just over a week prior to oral arguments in this case, plaintiffs filed a motion to dismiss defendant's appeal as moot because his acceptance of the new position on the school board was a de facto resignation of the position at issue in this appeal. On June 2, 2011, we ordered the motion to dismiss taken with the case. Defendant opposed the motion to dismiss in both a written response and during oral argument.

ΒΆ 15 After oral argument, on June 8, 2011, defendant filed a motion for leave to cite People ex rel. Courtney v. Botts, 376 Ill. 476, 34 N.E.2d 403 (1941), as supplemental authority in support of his argument plaintiffs' motion to dismiss this appeal as moot should be denied. On June 15, 2011, we allowed the motion to supplement and granted ...


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