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Stivers v. Bean

Court of Appeals of Illinois, Fourth District

January 13, 2014

STEPHEN BEAN, in His Official Capacity as County Clerk of Macon County, Illinois; and THE BOARD OF LIBRARY TRUSTEES OF THE BARCLAY PUBLIC LIBRARY DISTRICT, Defendants-Appellants

Appeal from Circuit Court of Macon County. No. 11MR421. Honorable Albert G. Webber, Judge Presiding.


Summary judgment was improperly entered for plaintiffs in their mandamus action seeking to compel defendant county clerk to disconnect their parcels from the library district they were in prior to the annexation of their property into plaintiff village, notwithstanding the fact that denying plaintiffs' claim would result in their paying taxes for two library districts, since defendants argued that plaintiffs failed to follow the statutory procedures applicable to the annexation of the parcels at issue, and in view of the alleged noncompliance with the statutory procedures, plaintiffs' right to judgment was not " clear and free from doubt" for purposes of being entitled to summary judgment.

Edward F. Flynn (argued) and Erick F. Hubbard (argued), both of Featherstun Gaumer Postlewait Stocks Flynn & Hubbard, of Decatur, for appellants.

Scott E. Garwood (argued) and Craig W. Runyon, both of Samuels, Miller, Schroeder, Jackson & Sly, LLP, of Decatur, for appellees.

JUSTICE APPLETON delivered the judgment of the court, with opinion. Justice Knecht concurred in the judgment and opinion. Justice Turner dissented, with opinion.


Page 197


[¶1] The Village of Forsyth (village) and the owners of 10 parcels of land brought an action for mandamus against Stephen Bean in his capacity as the Macon County clerk and against the board of library trustees of the Barclay Public Library District (district), seeking to compel Bean to disconnect the parcels from the district because the village, which had a public library of its own, had passed ordinances annexing the parcels.

[¶2] Defendants pleaded affirmative defenses, the first two of which raised the village's failure to follow certain statutory procedures for annexing territory. (We do not reach the remaining affirmative defenses.) Plaintiffs moved for summary judgment on the ground that the expired period of limitation in section 7-1-46 of the Illinois Municipal Code (65 ILCS 5/7-1-46 (West 2002)) barred defendants from challenging the annexations, even in a defensive posture. The trial court granted plaintiffs' motion for summary judgment. Defendants appeal.

Page 198

[¶3] We reverse the summary judgment, and remand this case for further proceedings, because defendants did not file a stale claim. Statutes of limitations bar stale claims, not defenses.


[¶5] From August 7, 1992, to September 2, 2003, the village enacted 10 ordinances: ordinance Nos. 393 (adopted Aug. 7, 1992), 394 (adopted Aug. 7, 1992), 403 (adopted Nov. 19, 1992), 406 (adopted Nov. 19, 1992), 411 (adopted Jan. 4, 1993), 423 (adopted Feb. 21, 1994), 424 (adopted Feb. 21, 1994), 517 (adopted Feb. 16, 1999), 541 (adopted Mar. 19, 2001), and 606 (adopted Sept. 2, 2003). Each of these ordinances purported to annex a parcel of land contiguous to the village. See 65 ILCS 5/7-1-1 (West 2002). (For the sake of simplicity, we will cite only the 2002 edition of the Illinois Compiled Statutes, since no relevant statutory amendment occurred during the period of 1992 to 2003.)

[¶6] All 10 parcels were in the district. The significance of this fact is that the landowners had been paying property taxes to the district, for the support of the Barclay Public Library. See 75 ILCS 16/35-5 (West 2002).

[¶7] Because the village has a public library of its own, the annexation of the 10 parcels by the village would have the effect of disconnecting them from the district and terminating the landowners' obligation to contribute any further property taxes to the district. Section 15-85(a) of the Public Library District Act of 1991 (75 ILCS 16/15-85(a) (West 2002)) provides: " Any territory within a public library district that is or has been annexed to a municipality (where that municipality maintains a public library) is, by operation of law, disconnected from the public library district as of the January first next after the territory is annexed."

[¶8] In July 2009 the village requested Bean to disconnect the 10 parcels from the district. On the advice of legal counsel, he declined to do so.

[¶9] In November 2011 the village and the landowners filed a complaint for mandamus against Bean and the board of trustees of the district, seeking an order compelling Bean to disconnect the 10 parcels from the district.

[¶10] Defendants responded with affirmative defenses raising, among other issues, the village's failure to follow all the statutory procedures for annexation. According to the first affirmative defense, the village failed to file with the county recorder affidavits attesting it had served the trustees of the district with notices of the proposed annexations. Section 7-1-1 of the Illinois Municipal Code (65 ILCS 5/7-1-1 (West 2002)) provides:

" When any land proposed to be annexed is part of any Fire Protection District or of any Public Library District and the annexing municipality provides fire protection or a public library, as the case may be, the Trustees of each District shall be notified in writing by certified or registered mail before any court hearing or other action is taken for annexation. The notice shall be served 10 days in advance. An affidavit that service of notice has been had as provided by this Section must be filed with the clerk of the court in which the annexation proceedings are pending or will be instituted or, when no court proceedings are involved, with the recorder for the county where the land is situated. No annexation of that land is effective unless service is had and the affidavit filed as provided in this Section."

No annexation proceedings ever were initiated in circuit court; hence, affidavits

Page 199

should have been filed with the Macon County recorder. See id.

[¶11] In their reply to this first affirmative defense, plaintiffs admit that as to 6 of the 10 ordinances, specifically ordinance Nos. 403, 406, 411, 517, 541, and 606, no affidavit pursuant to section 7-1-1 of the Illinois Municipal Code was filed with the county recorder. (The reply says " 407" instead of " 406," but the parties appear to agree that " 407" is a typographical error and that plaintiffs mean " 406." )

[¶12] It is undisputed that affidavits were filed with respect to the remaining four ordinances: ordinance Nos. 393, 394, 423, and 424. Even so, the notices corresponding to those four ordinances were incomplete and uninformative, defendants allege. According to the second affirmative defense, the village failed to provide " meaningful notice" to the trustees of the district, as required by People ex rel. County of St. Clair v. City of Belleville, 84 Ill.2d 1, 9, 417 N.E.2d 125, 48 Ill.Dec. 723 (1981). In City of Belleville, the supreme court held that, in order for a notice under section 7-1-1 to be meaningful, it had to provide enough information that the recipient of the notice, the trustee, would have a reasonable opportunity to contest the proposed annexation. Id. at 8-9. Thus, if the annexation was to be voted on in a meeting of the city council, the notice had to so inform the trustee: the notice had to state the date of the meeting and that the annexation of specific territory within the district would be voted on in that meeting, so that the trustee could come to the meeting and be heard. Id. at 9. The second affirmative defense alleges: " [T]o the extent notice was given, it was not 'meaningful notice' in that it did not give notice of the action to be taken and the specific dates on which action was to be taken."

[¶13] Plaintiffs denied the second affirmative defense in its entirety. Nevertheless, defendants provided the trial court with copies of the notices corresponding to ordinance Nos. 393, 394, 423, and 424, and they are materially incomplete. The notice ...

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