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Capron Rescue Squad District v. North Boone Fire Protection District No. 3

Court of Appeals of Illinois, Second District

December 27, 2019

THE CAPRON RESCUE SQUAD DISTRICT, d/b/a North Boone EMS, Plaintiff-Appellant,
v.
NORTH BOONE FIRE PROTECTION DISTRICT No. 3; HEATH MORRAL, President and Trustee; LAWRENCE PIKORA, Trustee; and MIKE WINNE, Trustee, Defendants North Boone Fire Protection District No. 3, Defendant-Appellee.

          Appeal from the Circuit Court of Boone County. No. 19-CH-14 Honorable John H. Young, Judge, Presiding.

          JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices McLaren and Hutchinson concurred in the judgment and opinion.

          OPINION

          ZENOFF, JUSTICE.

         ¶ 1 Plaintiff, the Capron Rescue Squad District (North Boone EMS), appeals the dismissal of count I of its declaratory judgment complaint wherein it sought a construction of section 22(a) of the Fire Protection District Act (Fire Protection Act) (70 ILCS 705/22(a) (West 2018)). The trial court ruled that section 22(a) does not require a finding that adequate ambulance services do not currently exist before a fire protection district may submit a ballot question proposing a tax for such services. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 North Boone EMS is a rescue squad district that provides ambulance services to northern Boone County. Defendant North Boone Fire Protection District No. 3 (Fire District No. 3) is a fire protection district that provides fire protection and ambulance services in and around Poplar Grove, which is also located in northern Boone County. The boundaries of Fire District No. 3 are entirely within the area also serviced by North Boone EMS.

         ¶ 4 On December 3, 2018, the board of trustees (Board)[1] of Fire District No. 3 adopted ordinance No. 2018-3 (the ordinance). The ordinance included findings by the Board that it was "necessary and in the best interests" of the residents of Fire District No. 3 that a new tax be levied for the purpose of providing ambulance services. The ordinance directed that the question of the new tax be put to the voters at the April 2, 2019, "consolidated election," in the following form:

"Shall the North Boone Fire Protection District No. 3, Boone County, Illinois, be authorized to levy a new tax for ambulance purposes and have an additional tax of .01% of the equalized assessed value of the taxable property therein extended for such purposes?" On that same day, the Board submitted the ordinance to Julie Stapler, Boone County Clerk, who added the question as a ballot measure in the April 2 election.

         ¶ 5 On January 25, 2019, North Boone EMS filed a three-count complaint seeking (1) a declaratory judgment that section 22 of the Fire Protection Act requires a finding that adequate ambulance services do not currently exist before a fire protection district may add a ballot question proposing a new tax for ambulance services, (2) a permanent injunction prohibiting Fire District No. 3 from submitting such a ballot question and providing ambulance services that do not arise from fire protection services, and (3) a finding that the ordinance was void because one of the members of the Board did not live in Boone County when the Board approved the ordinance.

         ¶ 6 In count I, North Boone EMS asserted that section 22(a)(3) of the Fire Protection Act (70 ILCS 705/22(a)(3) (West 2018)) requires a finding that there is not "adequate and continuing service" as a condition precedent to authorizing a ballot measure seeking a new tax. North Boone EMS alleged that it currently provided adequate ambulance service in the area served by Fire District No. 3 and that, consequently, Fire District No. 3 failed to follow the proper procedure for placing the question on the ballot.

         ¶ 7 On February 25, 2019, Fire District No. 3 filed a motion for an extension of time "to properly answer or otherwise plead." At a hearing on March 8, 2019, over North Boone EMS's objection, the court granted Fire District No. 3's motion. The transcript of the March 8 hearing is not part of the record, but it is clear from the transcript of a later hearing that North Boone EMS represented to the court that early voting had not yet begun and would not begin before the next scheduled hearing. The court gave Fire District No. 3 until March 22, 2019, to file its answer or other pleading. The court set a status hearing for that same date, under the apparent belief that none of the issues in the complaint would by then have been rendered moot by the start of the election.

         ¶ 8 On March 20, 2019, Fire District No. 3 filed a motion to dismiss the complaint, pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2018)), and it also filed a memorandum of law in support of the motion. It argued that North Boone EMS did not have standing to bring the complaint and that there was no "actual controversy," because section 22(a) of the Fire Protection Act was "merely a statement of public policy," not a limitation on its authority to place a question on an election ballot.

         ¶ 9 At the outset of the March 22 hearing, North Boone EMS's attorney confessed to the court: "When I was here last time, I misspoke. The election had started." We take judicial notice of the official records of Boone County, which indicate that early voting started on March 8 for the April 2 election. See Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 22 n.1 (courts may take judicial notice of an authorized election and its results). The court indicated that it would permit the parties to argue their respective cases but that it would not be ruling by a date certain prior to the election, since voting had already started. Fire District No. 3 stated that it had relied on North Boone EMS's previous representation that the election would not have started by the date of the hearing. Accordingly, Fire District No. 3 explained that it did not include a mootness argument in its memorandum of law but that it now wished the court to consider whether an election that had already begun could be enjoined. Fire District No. 3 briefly argued that North Boone EMS did not have standing and that there was no actual controversy, because at issue was simply one taxing body impacting another taxing body's potential stream of revenue. North Boone EMS responded that a controversy did exist, because the plain language of section 22(a), which requires a finding that adequate ambulance services do not exist before a ballot question can propose a new tax for such services, put the parties at odds.

         ¶ 10 The court took the matter under advisement and, after noting that it would not be enjoining an election that had already begun, set a hearing on its decision for April 12, 2019. At that hearing, the court read its findings into the record.

         ¶ 11 With respect to count I, Fire District No. 3 argued that North Boone EMS lacked standing because North Boone EMS had no interest in property tax rates levied by Fire District No. 3. The court noted that the ordinance, drafted by Fire District No. 3, specifically referenced section 22(d), which authorizes a fire protection district to limit the number of ambulance services in the district. The court found that Fire District No. 3' s ability to limit ambulance services would directly impact North Boone EMS's interests, and it granted standing on that basis, notwithstanding Fire District No. 3's property tax argument.[2]

         ¶ 12 As to whether there was a legal controversy, the court focused on what it termed the "crux" of the issue, the construction of sections 22(a) and 22(b) of the Fire Protection Act (70 ILCS 705/22(a), (b) (West 2018)). The court found that section 22(a) states that it is a "matter of public policy" (ILCS 705/22(a)(West 2018)) and that the declarations contained therein are aspirational policy pronouncements. Moreover, section 22(b), which authorizes fire protection districts to place questions on election ballots, does not condition the authority with limiting language such as "after a finding pursuant to (a)(3)" or "after a finding of no adequate services under (a)(3)." See 70 ILCS 705/22(b) (West 2018). The court noted that the legislature could have required a formal finding of no adequate services if it had intended for section 22(a) to be a limitation on section 22(b), but that it did not include any such language. Therefore, the court held that section 22(a) is not a condition precedent and that section 22(b) does not require a determination that adequate ambulance services do not exist before a proposed tax may be placed on the ballot. The court dismissed count I with prejudice.

         ¶ 13 At the time of the hearing, the vote in the April 2 election had not been certified, but 10 days had passed since the close of voting. The court stated that the "unofficial" result was that the new tax was approved.[3] The court explained that, even before an election, a court should be "loath to interfere" with a political function. Thus, as count II of the complaint sought injunctive relief to ...


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