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Topinka v. Kimme

Court of Appeals of Illinois, First District, Third Division

March 29, 2017

JOSEPH BAAR TOPINKA, Individually and in His Capacity as Executor of the Estate of Judy Baar Topinka, Plaintiff-Appellant,
v.
NANCY KIMME, Individually and in Her Capacity as Chairman of Citizens for Judy Baar Topinka; BRADLEY A. BURNETT, Individually and in His Capacity as Treasurer of Citizens for Judy Baar Topinka; and CITIZENS FOR JUDY BAAR TOPINKA, a Political Committee, Defendants-Appellees.

         Appeal from the Circuit Court of Cook County. No. 15 CH 18684 Honorable Anna H. Demacopoulos, Judge, presiding.

          JUSTICE COBBS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment and opinion.

          OPINION

          COBBS JUSTICE.

         ¶ 1 This case arises from the circuit court's grant of defendants Nancy Kimme, Citizens for Judy Baar Topinka (Committee), and Bradley A. Burnett's motion to dismiss plaintiff Joseph Baar Topinka's complaint pursuant to section 2-619(a)(1) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (a)(1) (West 2014)). The trial court found that it lacked subject matter jurisdiction because plaintiff's claims stem from alleged violations of the Illinois Election Code, and therefore, the State Board of Elections (Board) has exclusive jurisdiction over these claims. The trial court further explained that these claims could never properly be heard in the circuit court because appeals from decisions of the Board bypass the circuit court and are heard directly by the appellate court. On appeal, plaintiff contends that the court erred in granting defendants' motion to dismiss because it had subject matter jurisdiction, he has standing to proceed with the litigation, and his claims have merit. We affirm.

         ¶ 2 BACKGROUND

         ¶ 3 The following facts were established in the record. The Committee was created in 1970 to support the various political campaigns of Judy Baar Topinka (Topinka). In December 2014, Topinka died unexpectedly while serving as Illinois State Comptroller. On December 31, 2014, the Committee's fund had approximately $993, 834.00. The Committee's statement of organization, which was written prior to Topinka's death, provided that upon dissolution any remaining funds would be donated to the Riverside Township Regular Republican Organization.

         ¶ 4 On December 29, 2015, plaintiff, individually and as executor of Topinka's estate, filed a complaint alleging that he was entitled to $341, 618.52 of the Committee's funds. He specifically alleged that he must receive these funds because the State Gift Ban Act[1]prohibits political committee expenditures for the personal use of a public official or the official's family member but makes an exception for funds that were available as of June 30, 1998. He asserted that as of June 30, 1998, the Committee had $341, 618.52 in its fund and therefore it was required to remit that amount of money to him. Notably, plaintiff did not allege that Topinka ever requested these funds or that he had requested these funds from the Committee and was denied.

         ¶ 5 Plaintiff additionally alleged that Kimme misappropriated the Committee's funds. Specifically he alleged that after December 10, 2014, there was no work to be done by the Committee but Kimme nevertheless paid herself $25, 000 on January 10, 2015, and that an August 7, 2015, check for $63, 807.22, which was made out to cash, was endorsed by Kimme. Thus, he argued, Kimme misappropriated $88, 807.22 of the Committee's funds for personal use. Plaintiff requested that all remaining committee funds be held in a constructive trust and that no further expenditures be made until the rights of the parties were determined. He maintained that it would be inequitable for defendants to retain possession of the funds. Plaintiff also requested a declaratory judgment that:

"a. Nancy Kimme did not have the right to expend [the Committee's] funds to herself and/cash;
b. Nancy's Kimme shall no longer have the right to make decisions as to the expenditure of [the Committee's] funds;
c.$341, 618.52 of [the Committee's] fund qualifies to be transferred to [plaintiff], individually or as executor of the Estate of Judy Baar Topinka;
d. $341, 618.52 of [the Committee's] fund is to be transferred to [plaintiff], individually or as executor of the Estate of Judy Baar Topinka;
e. For any such other and further relief as this Honorable Court deems just and proper."

         Thereafter, defendants filed a section 2-619 motion to dismiss, asserting that the court lacked subject matter jurisdiction. The court granted their motion and explained ...


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