2021 IL App (2d) 200692
Ill. App. Ct.2021Background
- The City of DeKalb (a home-rule municipality with a managerial form) appointed Lynn Fazekas city clerk in 2018; her term ran through May 2021.
- On Oct. 14, 2019, the City enacted Ordinance 2019-059 creating an appointed executive assistant (to be selected by the city manager) whose duties duplicated many city clerk functions and removing the clerk’s authority to appoint deputy clerks.
- Fazekas sued, alleging the ordinance (1) altered the City’s form of government without a referendum and (2) violated the officers clause of Ill. Const. art. VII, § 6(f) by effectively emasculating/eliminating the elected city clerk without voter approval; she also alleged a suffrage injury.
- The trial court denied a TRO, dismissed the first amended complaint (form-of-government theory), allowed amendment to assert the officers-clause theory, then dismissed the second amended complaint with prejudice under 735 ILCS 5/2-615 (failure to state a claim).
- On appeal the court considered mootness (declining to dismiss under the public-interest exception) and affirmed the dismissal, holding the ordinance did not eliminate the office or otherwise violate the officers clause or the right of suffrage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ordinance violated the officers clause (Art. VII, § 6(f)) by transferring/emasculating the city clerk’s duties | Fazekas: Ordinance transfers the clerk’s powers to the appointed executive assistant, effectively eliminating the elected office without a referendum | City: Ordinance retained the elected office and may create appointed officers whose duties duplicate clerk duties under home-rule and Municipal Code authority | Court: No officers-clause violation — the office was retained, creation of executive assistant was authorized, and the ordinance did not effectively eliminate the clerk |
| Whether ordinance violated the electorate’s right of suffrage by eliminating the elected office | Fazekas: Electorate was deprived of the right to approve/eliminate office | City: Plaintiff forfeited the claim and, substantively, the ordinance did not eliminate the office | Court: Issue was considered on the merits and rejected — no suffrage violation because office not eliminated |
| Mootness of appeal given expiration of Fazekas’s term | Fazekas: Public-interest exception should apply so court can decide constitutional question of ongoing public importance | City: Appeal moot because intervening election and term expiration render relief impossible | Court: Applied public-interest exception and reached merits (issue likely to recur; guidance desirable) |
| Whether Fazekas preserved her original form-of-government claim after filing amended complaints | Fazekas: Challenges to dismissal of both first and second complaints | City: By filing a subsequent complete amended complaint without repleading prior claims, Fazekas waived earlier claim | Court: Foxcroft rule applies — plaintiff waived the earlier form-of-government claim by abandoning it in the second amended complaint |
Key Cases Cited
- People ex rel. Hanrahan v. Beck, 54 Ill. 2d 561 (1973) (upheld transfer of duties to a newly created appointed office under home-rule authority; did not find that transfer eliminated elected office)
- Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150 (1983) (an amended pleading that does not reallege earlier claims waives those prior claims)
- Bonhomme v. St. James, 2012 IL 112393 (2012) (explains policy basis for Foxcroft waiver rule and its application)
- Napleton v. Village of Hinsdale, 229 Ill. 2d 296 (2008) (facial constitutional challenge standard: statute invalid only if no set of circumstances exists under which it would be valid)
- Marshall v. Burger King Corp., 222 Ill. 2d 422 (2006) (standard for § 2-615 dismissal; pleadings construed in plaintiff’s favor)
- Leck v. Michaelson, 111 Ill. 2d 523 (1986) (changes in manner of selecting municipal officers are reserved to electorate except as otherwise authorized)
- Wirtz v. Quinn, 2011 IL 111903 (2011) (public-interest exception to mootness applies where the question is likely to recur and authoritative guidance is needed)
- Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL 110505 (2013) (home-rule powers are construed broadly)
- Jackson v. Board of Election Commissioners, 2012 IL 111928 (2012) (election-cycle mootness principle; court reiterates when election contests become moot)