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Jaros v. Village of Downers Grove

Court of Appeals of Illinois, Second District

December 29, 2017

ARTHUR G. JAROS, JR., Plaintiff-Appellant,
v.
THE VILLAGE OF DOWNERS GROVE; SUSAN FARLEY; LEAGUE OF WOMEN VOTERS OF DOWNERS GROVE, WOODRIDGE, AND LISLE; GREGORY W. HOSE, Individually and in His Official Capacity as Commissioner of the Village of Downers Grove; ROBERT T. BARNETT, Individually and in His Official Capacity as Commissioner of the Village of Downers Grove; and MARTIN T. TULLY, Individually and in His Official Capacity as Mayor of Downers Grove, Defendants The Village of Downers Grove; Gregory W. Hose, Individually and in His Official Capacity as Commissioner of the Village of Downers Grove; Robert T. Barnett, Individually and in His Official Capacity as Commissioner of the Village of Downers Grove; and Martin T. Tully, Individually and in His Official Capacity as Mayor of the Village of Downers Grove, Defendants-Appellees.

         Appeal from the Circuit Court of Du Page County No. 17-CH-1233 Honorable Paul M. Fullerton, Judge, Presiding.

          JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Schostok concurred in the judgment and opinion.

          OPINION

          BIRKETT, JUSTICE

         ¶ 1 In this interlocutory appeal, plaintiff, Arthur G. Jaros, Jr., challenges the denial of injunctive and declaratory relief under counts IV and V of his amended complaint against defendants, the Village of Downers Grove (Village); Susan Farley; League of Women Voters of Downers Grove, Woodridge, and Lisle; and certain Village officials. The underlying substantive question is whether the Village council had authority to remove plaintiff from the board of trustees for the Downers Grove public library prior to the expiration of his six-year term. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 The following facts are undisputed. The Village is a home-rule unit under article VII, section 6(a), of the Illinois Constitution (Ill. Const. 1970, art. VII, § 6(a)). The Village has a commission form of government consisting of an elected mayor and an elected council. See Downers Grove Municipal Code § 2.10 (amended May 3, 2011). The Village also has appointed offices, including manager, clerk, treasurer, and attorney. See generally Downers Grove Municipal Code, ch. 2 (amended Dec. 15, 2015) ("Administration"). Also part of the Village's government are various commissions and boards, one of which is the library board of trustees (Village library board). See Downers Grove Municipal Code § 2.53 (amended Oct. 21, 2014). The Village library board oversees the Downers Grove public library (Village library), which was established pursuant to the Illinois Local Library Act (Library Act) (75 ILCS 5/1-0.1 et seq. (West 2016)).

         ¶ 4 In August 2015, plaintiff was appointed to the Village library board for a six-year term by the Village council pursuant to its appointment power under section 4-2 of the Library Act (75 ILCS 5/4-2 (West 2016)) and section 2.53(a) of the Village code (Downers Grove Municipal Code § 2.53(a) (amended Oct. 21, 2014)). Complementing the appointment power in section 2.53(a) of the Village code is section 2.53.1(d), which permits the Village council "to remove any member of a board or commission where such member is appointed by the Village council" (Downers Grove Municipal Code § 2.53.1(d) (amended June 5, 2007)).

         ¶ 5 On September 5, 2017, plaintiff filed a seven-count complaint against defendants. Plaintiff also filed a motion for a temporary restraining order and a preliminary injunction. Plaintiff sought to bar the Village council from voting-as it planned that evening-on a resolution to remove plaintiff from the Village library board. Following a hearing, the trial court denied the request for injunctive relief as premature. That evening, the Village council adopted Resolution No. 2017-66, removing plaintiff from the Village library board.

         ¶ 6 The next day, September 6, 2017, plaintiff filed his seven-count amended complaint. The only counts at issue in this appeal are counts IV and V. Count IV sought a declaratory judgment that the removal authorization in section 2.53.1(d) of the Village code exceeded the Village's home-rule powers. Count V sought an injunction barring plaintiff's removal from the Village library board.

         ¶ 7 Plaintiff also filed an amended motion for a preliminary injunction. Plaintiff made two main arguments. First, he contended that the Village library is a unit of government separate from the Village. Consequently, removal of a Village library board trustee by the Village (through its council) is not a "power [or] *** function pertaining to its [(the Village's)] government and affairs" (emphasis added) (Ill. Const. 1970, art. VII, § 6(a)) and so does not fall within the Village's home-rule powers. Second, since a home-rule unit requires an authorizing referendum in order to "alter or repeal a form of government provided by law" (Ill. Const. 1970, art. VII, § 6(f)), and since the truncation of a library trustee's statutory six-year term (see 75 ILCS 5/4-2 (West 2016)) is such an alteration or repeal, the Village was required to pass such a referendum, which it did not.

         ¶ 8 At the hearing on the motion, plaintiff added a third contention, based on section 2.53.1(b) of the Village code and section 4-4 of the Library Act, entitled "Vacancies" (75 ILCS 5/4-4 (West 2016)). Section 2.53.1(b) states that, "[w]here removal from a board or commission is governed by statute, such statute shall control." Downers Grove Municipal Code § 2.53.1(b) (amended June 5, 2007). Plaintiff construed section 4-4 as a statute governing removal, and he argued that his removal contravened the section.

         ¶ 9 In its oral ruling on the motion for injunctive relief, the trial court applied the three-part test set forth in Schillerstrom Homes, Inc. v. City of Naperville, 198 Ill.2d 281, 289-90 (2001), for judging whether a home-rule unit has acted within the scope of its constitutional powers. (The supreme court has since reduced the test to two parts. See Palm v. 2800 Lake Shore Drive Condominium Ass'n, 2013 IL 110505, ¶ 36). Denying the motion, the court reasoned that (1) "the removal of library trustees *** relates to the government and affairs of [the Village]"; (2) the Library Act is "silent *** concerning removal of library trustees"; and (3) the "General Assembly [has] not preempted use of the home rule powers in this area." The court further determined that the Village library is not a separate unit of government, given that the Village council appoints library trustees (75 ILCS 5/4-2 (West 2016)) and collects the tax for the library (75 ILCS 5/3-5 (West 2016)).

         ¶ 10 Although the court did not expressly address plaintiff's argument based on section 4-4 of the Library Act, the court remarked that section 4-4 was not a "removal statute." Finding no likelihood of success on the merits, the court denied plaintiff's request for injunctive relief.

         ¶ 11 The court then sua sponte addressed count IV (declaratory judgment) of the amended complaint. The court noted that its denial of injunctive relief was tantamount to a judgment declaring that section 2.53.1(d) of the Village code, authorizing the Village council to remove members of the library board, was within the Village's home-rule powers. The court found, relative to the declaratory judgment, that there was no just reason for delaying enforcement or appeal. See Ill. S.Ct. R. 304(a) (eff. Mar. 8, 2016) (allowing appeal of "a final judgment as to one or more but fewer than all of the parties or claims *** if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both"). The denial of injunctive relief under count V was immediately appealable as of right, without a special finding. See Ill. S.Ct. R. 307(a) (eff. July 1, 2017) (appeal of "an interlocutory order *** granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction").

         ¶ 12 Plaintiff appeals.

         ¶ 13 II. ANALYSIS

         ¶ 14 Plaintiff challenges the trial court's denial of his request for a preliminary injunction and the court's associated declaratory judgment.

         ¶ 15 The purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the case. City of Kankakee v. Department of Revenue, 2013 IL App (3d) 120599, ¶ 17. A party seeking a preliminary injunction has the burden to establish the following elements: (1) he has a clearly ascertainable right in need of protection; (2) he will suffer irreparable harm if the injunction does not issue; (3) he has no adequate remedy at law; and (4) there is a likelihood of success on the merits. Id. As the trial court did not hear evidence or make findings of fact on the motion for a preliminary injunction, but based its ruling purely on its interpretation of ordinances and statutes, our review is de novo. See Doe v. Department of Professional Regulation, 341 Ill.App.3d 1053, 1060 (2003). Since the declaratory judgment was likewise based on determinations of law alone, we also review it de novo. Fifield v. Premier Dealer Services, Inc., 2013 IL App (1st) 120327, ¶ 12.

         ¶ 16 Plaintiff reasserts on appeal the main contentions he made below. We set aside for the moment his argument that the Village exceeded its constitutional home-rule powers in removing plaintiff from the library board, and we address first his argument that the removal was invalid on the independent ground that it "violated the terms of [the Village's] own ordinance, " specifically section 2.53.1 of the Village code. Section 2.53.1 states in its entirety:

"Section 2.53.1. Removal of members to boards and commissions.
(a) Members of any board or commission serve at the pleasure of the appointing authority and may be removed as ...

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