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).
Docket No. 2-17-0758
Appellate Court of Illinois, Second District
December 29, 2017
February 16, 2018
2017 IL App (2d) 170758
Hon. Paul M. Fullerton, Judge, presiding.
Appeal from the Circuit Court of Du Page County, No. 17-CH-1233.
Arthur G. Jaros, Jr., of Oak Brook, appellant pro se.
John B. Murphey, of Rosenthal, Murphey, Coblentz & Donahue, of Chicago, and Enza I. Petrarca, of Village of Downers Grove, for appellees.
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Schostok concurred in the judgment and opinion.
¶ 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.
I. BACKGROUND
¶ 2 The following facts are undisputed.
¶ 3 The Village is a home-rule unit under
¶ 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
¶ 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
¶ 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) (
¶ 8 At the hearing on the motion, plaintiff added a third contention, based on
¶ 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 (
¶ 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
¶ 12 Plaintiff appeals.
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 provided in this section.
(b) Where removal from a board or commission is governed by statute, such statute shall control.
(c) The Mayor shall have the authority to remove any member of a board or commission where such member is appointed by the Mayor, or appointed jointly by the Mayor and Village Manager.
(d) The Village Council, by a vote of not less than four (4) members, shall have the authority to remove any member of a board or commission where such member is appointed by the Village Council; appointed by the Mayor with concurrence of the Village Council, or appointed by the Village Manager with the concurrence of the Village Council.
(e) The Village Manager shall have the authority to remove any member of a board or commission where such member is appointed by the Village Manager.” (Emphasis added.) Downers Grove Municipal Code § 2.53.1 (amended June 5, 2007).
Citing subsection (b), plaintiff suggests that the removal of library board trustees is indeed “governed by statute,” namely section 4-4 of the Library Act. Before setting forth section 4-4, we briefly explain how public libraries and their governing boards are established under the Library Act. The Library Act provides a process by which a city, village, or unincorporated town or township can form a public library. See
¶ 17 Article 4 of the Library Act (
“the village council at its first regular meeting following the election establishing a public library, shall appoint a board of library trustees of 6 members who are village residents, 2 to hold until the first regular meeting of the next succeeding fiscal year, 2 to hold for one year thereafter and 2 to hold for 2 years thereafter. The respective successors of the initial appointees shall be appointed for 6 year terms and shall serve until their successors are appointed and qualified.
Any board may provide by resolution that the term of its trustees shall be 4 years. If the board adopts such a resolution, then at the time the next appointments are made, one trustee shall be appointed for a 2 year term.”
75 ILCS 5/4-2 (West 2016).
¶ 18 The only provision in article 4, or elsewhere in the Library Act, that refers to the removal of trustees is section 4-1.1 (
¶ 19 We return to section 4-4 of the Library Act, the provision on which plaintiff relies. Section 4-4 specifies when a vacancy is to be declared in a library board of trustees:
“Vacancies shall be declared in the office of trustee by the board when the elected or appointed trustee declines or is unable to serve, or is absent without cause from all regular board meetings for a period of one year, or is convicted of a misdemeanor for failing, neglecting, or refusing to discharge any duty imposed upon a trustee by this Act, or becomes a nonresident of the city, village, incorporated town, or township, or who fails to pay the library taxes levied by the corporate authorities. Vacancies shall also be declared in the office of trustee by the board when, at the election of the first board of library trustees or at any subsequent election, there are not sufficient trustees elected to fill an entire board of 7 trustees.”
75 ILCS 5/4-4 (West 2016).
¶ 20 Plaintiff suggests that section 4-4 governs the “removal” of library trustees, such that, by operation of section 2.53.1(b), the Village‘s authority to remove library trustees is limited to the situations specified in section 4-4.
¶ 21 The goal in interpreting a statute or ordinance is to ascertain the intent of the legislative body. Henderson Square Condominium Ass‘n v. LAB Townhomes, LLC, 2015 IL 118139, ¶ 67. The best indicator of that intent is the language used, which must be given its plain and ordinary meaning. Id.
¶ 22 Section 2.53.1(a) of the Village code states that the “[m]embers of any board or commission serve at the pleasure of the appointing authority and may be removed as provided in this section.”
¶ 23 Section 4-4 specifies situations in which a vacancy in a library board of trustees arises by operation of law; when those circumstances arise, a vacancy must be declared. Plaintiff would have us read an implied limitation into section 4-4. There is at best an implied limitation on when vacancies must be declared. Section 4-4 does not speak at all to discretionary removal or to the creation of vacancies in situations other than those listed. From elsewhere in article 4, we can infer that the legislature was intentionally silent in section 4-4 as to the matter of discretionary removal. For instance, section 4-1.1(b) authorizes the mayor of a city to remove a library trustee. If this provision is not superfluous, as we must presume (Moore v. Green, 219 Ill. 2d 470, 488 (2006)), then the power of removal in section 4-1.1(b) extends beyond the scenarios listed in section 4-4. Also in operation here is the canon that, “when the legislature uses certain language in one part of a statute and different language in another, [the] court will presume that different results were intended.” Caveney v. Bower, 207 Ill. 2d 82, 90 (2003). Sections 4-1.1(b) and 4-4 together establish that the legislature intended in section 4-4 to specify certain vacancies arising ipso jure and not to address the matter of discretionary removal. Since section 4-4 is not properly construed as a limitation on the discretionary removal of library trustees, it does not limit such removal as authorized by section 2.53.1(d) of the Village code.
¶ 24 We turn to plaintiff‘s argument that the removal authorization provided by section 2.53.1(d) of the Village code exceeds the Village‘s home-rule powers as applied to library trustees.
“Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited
to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax, and to incur debt.” Ill. Const. 1970, art. VII, § 6(a) .
Home-rule authority is limited not only by the internal conditions in section 6(a) (the power or function must pertain to the government and affairs of the home-rule unit) but also by external limitations appearing elsewhere in section 6 (“Except as limited by this Section” (id.)). We address first plaintiff‘s claim that section 2.53.1(d) exceeds the limitations expressed in section 6(f) (
“A home rule unit shall have the power subject to approval by referendum to adopt, alter or repeal a form of government provided by law ***. A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise provided by law.” Id.
¶ 25 There is no dispute that the Village passed no referendum to permit the removal of library board trustees. In our view, none was required. Neither limitation in section 6(f) applies here. “Form of government” as referenced in the first limitation “involves the election of municipal governing boards and the relationship between the legislative and executive branches of government.” Peters v. City of Springfield, 57 Ill. 2d 142, 149 (1974). First, section 2.53.1(d) does not impact the election of a municipal governing board, as the Village‘s library trustees are not elected but appointed by the Village council per the Library Act (see
¶ 26 In Pechous, the city council of Berwyn passed ordinances removing several incumbent city officials and appointing replacements. At the time, those offices were, under state statutes and Berwyn‘s own municipal code, to be filled by the mayor with the approval of the city council. Statutes also provided that the mayor could remove any officer appointed by him. The supreme court held that the removal ordinances were an attempt to alter Berwyn‘s existing form of government by appropriating the executive branch‘s power of appointment and removal. As there was no referendum approval, the ordinances were invalid. Pechous, 64 Ill. 2d at 585.
¶ 27 In Kotte, the appellate court upheld an ordinance passed by the Town of Normal that permitted the chiefs of its fire and police departments to make temporary appointments. At the time, statutes gave a municipality‘s board of fire and police commissioners the exclusive power to make appointments. The court held that no referendum was required under section 6(f) because the ordinance did not “move any legislative authority to the executive branch nor *** move any authority that was originally in the executive branch to the legislative branch.” Kotte, 269 Ill. App. 3d at 521. The court noted that Normal‘s board of fire and police commissioners was not itself Normal‘s “form of government.” Id.
¶ 28 Here, section 2.53.1(d) is not an attempt by the Village council to arrogate to itself a conferred executive power. While the Library Act authorizes mayors in cities to remove library trustees (see
¶ 29 Also inapplicable here is the limitation in section 6(f) pertaining to “officers” of a home-rule unit. The supreme court has commented as follows on the concept of “officer” in section 6(f):
“A reading of section 6(f) shows that its subject is the form of government of a home rule unit. If the form of structure of government is to be adopted, altered or repealed there must be an approval by referendum. When the section refers to a home rule municipality having the power to provide ‘for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law’ the reference is to officers in the home rule unit‘s form of government. It is this character of officer whose office, manner of selection and term of office are to be subject to a referendum. There was no intendment by the constitutional convention that every person who might be said to be an ‘officer’ under that broad and accommodable term would be an officer within the meaning of section 6(f).” Paglini v. Police Board, 61 Ill. 2d 233, 236 (1975).
¶ 30 In Paglini, the supreme court rejected a challenge to a Chicago ordinance that permitted the city‘s police board to appoint hearing officers to make recommendations on cases before the board. The plaintiff contended that the hearing officers were “officers” under section 6(f) and that, therefore, a referendum was needed to approve their appointment. The court examined Chicago‘s governmental structure as set out in the Municipal Code (Ill. Rev. Stat. 1973, ch. 24, ¶ 21-1 et seq.). The court noted:
“These sections [of the Municipal Code] provide inter alia for a mayor [citation], a corporation counsel [citation], a city clerk and a city treasurer [citation], and aldermen [citation], all of whom may be considered to be officers in the city‘s form of government.” Paglini, 61 Ill. 2d at 236-37.
The court determined that “[m]embers of the [b]oard *** are not officers in the form or structure of government of [Chicago] and are not officers within the meaning of section 6(f).” Id. at 237.
¶ 31 The Village‘s code establishes a governmental structure analogous to that of Chicago. In addition to an elected mayor and an elected council, there are appointed officers, including a manager, clerk, treasurer, and attorney. See generally
¶ 32 We move to plaintiff‘s claim based on the internal constraints in section 6(a): the power or function of the home-rule unit must pertain to its government or affairs. “Home rule is based on the assumption that municipalities should be allowed to address problems with solutions tailored to their local needs.” Palm, 2013 IL 110505, ¶ 29. “Section 6(a) was written with the intention to give home rule units the broadest powers possible.” Id. ¶ 30. “Powers and functions of home rule units shall be construed liberally.”
¶ 33 The Illinois Constitution provides for the concurrent exercise of government functions by home-rule units and state powers. “[H]ome rule units may continue to regulate activities even if the state has also regulated those activities.” Palm, 2013 IL 110505, ¶ 32. “Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State‘s exercise to be exclusive.”
¶ 35 This requirement of specificity has also been codified.
“No law enacted after January 12, 1977, denies or limits any power or function of a home rule unit, pursuant to paragraphs (g), (h), (i), (j), or (k) of Section 6 of Article VII of the Illinois Constitution, unless there is specific language limiting or denying the power or function and the language specifically sets forth in what manner and to what extent it is a limitation on or denial of the power or function of a home rule unit.”
“Comprehensive legislation that conflicts with an ordinance is insufficient to limit or restrict home rule authority.” Palm, 2013 IL 110505, ¶ 43.
¶ 36 As the supreme court explained in Palm, it formerly used a three-part test to determine whether a local government unit exceeded its home-rule authority:
“Under that test, we first determined whether the disputed exercise of local government power pertains to local government and affairs as required under section 6(a). If so, we determined whether the General Assembly preempted the exercise of home rule powers in the area. If not, we determined ‘the proper relationship’ between the local legislation and the state statute.” Id. ¶ 35 (quoting Schillerstrom Homes, 198 Ill. 2d at 289).
The test currently consists of only two parts: if a subject pertains to local government and affairs, and the legislature has not expressly preempted home rule, the exercise of municipal power is valid. Id. ¶ 36.
¶ 37 On the first prong of the test, plaintiff does not dispute that a municipality has an interest in the composition of the board of trustees of a library that was established within the municipality‘s boundaries pursuant to the Library Act. While plaintiff suggests in his reply brief that the State also has an interest in the composition of local library boards, the presence of a State interest in an area does not, without more, bar the exercise of home-rule authority in that area. See Blanchard v. Berrios, 2016 IL 120315, ¶ 35 (“[T]he mere existence of State interest and activity in a particular subject matter is insufficient to preclude home rule authority.“). Plaintiff frames the issue on appeal as involving not the power of a local unit to act in matters involving a State interest, but the power of one local unit over another in a matter that is of local interest and of interest to them both. According to plaintiff, since the Village library is, in plaintiff‘s view, a separate unit of government, the Village cannot claim that regulation of the Village library board‘s composition “pertain[s] to its [(the Village‘s)] government and affairs” (emphasis added) (
¶ 38 Plaintiff cites several sources for (1) his view of the relationship between the Village and the Village library and (2) his claim that the relationship is relevant to a home-rule analysis. His approach is misconceived, as we will show.
“Inasmuch as this provision would not be appropriate or necessary if the legislature considered the City to have taxing power over and beyond the statute, under its home rule powers, we deduce that such unlimited taxing power for library purposes was not intended to be given under the home rule powers. This Act of the legislature, spelled out in some detail, requiring an election for the library purposes specified therein, would be a futile gesture if the City could by interpreting ‘library purposes’ as falling within the general phrase ‘governmental affairs’ impose the same or a greater tax under its home rule powers.” Id.
¶ 40 Reversing our decision, the supreme court found that, in these last comments, we “misconceived the proper nature of the present inquiry.” City of Rockford v. Gill, 75 Ill. 2d 334, 341 (1979) (Gill II). The proper question was whether the legislature “provide[d] specifically *** for the exclusive exercise by the State” (
¶ 41 In emphasizing the independence of the Village library from the Village, plaintiff takes the same approach that the supreme court rejected in Gill II. The starting point for the court in Gill II was that Rockford had general home-rule authority over the Rockford library; the issue was whether the legislature had expressly curtailed that authority. The Rockford library and the Village library were created under the same statute; hence we are compelled by Gill II to start from the premise that the Village has home-rule authority over the Village library. As noted, plaintiff does not dispute that control over a local library board is a function pertaining to local government and affairs, even if the State has its own potential interest in the subject. The remaining question is whether the legislature has preempted home-rule authority in that area. Plaintiff makes no attempt to show preemption, and we note that the Library Act manifests no express intention to limit the home-rule authority of a municipality over a local library created within its boundaries. We recognize that the Library Act contains no provision for discretionary removal of trustees except in cities (
¶ 42 Plaintiff also misinterprets Board of Education of School District No. 150 v. City of Peoria, 76 Ill. 2d 469 (1979), the second of the two main cases on which he relies. At issue in that case were ordinances passed by the City of Peoria that imposed taxes on amusements and on the purchase of food and beverages at taverns and restaurants. Both the Peoria school district and the Peoria park district challenged the validity of the taxes as applied to them. The court noted that there was no question of “the general authority of [Peoria] as a home rule unit to enact [the] taxing ordinances.” Id. at 473. The question was whether Peoria‘s otherwise valid home-rule measures ran afoul of other constitutional restraints. The court upheld the taxes as applied to the park district but invalidated them as applied to the school district. Id. at 475-78.
¶ 43 The court held that the taxes exceeded the city‘s home-rule powers as applied to the school district because they infringed on the “supremacy of the legislature with regard to schools and school districts under the 1970 Constitution” (id. at 476), specifically
“Pursuant to the constitutional mandate of the 1870 Constitution and of the 1970 Constitution, the legislature has enacted a comprehensive scheme for the creation, management and operation of Illinois schools. The powers, duties and obligations of school boards are described in detail by the statutes. [Citation.] Thus the legislature, pursuant to the constitutional mandate, exercises plenary power over the Illinois school system.
* * *
*** As applied to [the school district] the two ordinances in question constitute an unauthorized regulation of the school district contrary to section 1 of article X of the Constitution of 1970.” City of Peoria, 76 Ill. 2d at 476-77.
¶ 44 As to park districts, the court noted that, although the General Assembly had enacted certain laws pertaining to those entities, it “did not thereby manifest an intent to assert exclusive statewide dominion.” Id. at 477. The court could not “say that there exists a pervasive statewide interest in parks and park districts which prohibits a home rule unit from legislating in such a manner as to impose incidental obligations and burdens upon park districts.” Id. Consequently, the court upheld the taxes as applied to the park district. Id. at 478.
¶ 45 Plaintiff takes the holding in City of Peoria to mean that section 2.53.1(d) is valid as applied to the Village library board only if the legislature has granted the Village “direct and plenary” power over the Village library. Plaintiff is confused. The Village does not claim a statutory grant of authority to remove library trustees, nor would any be necessary if the removal fell under its home-rule powers. As noted, Gill II undermines plaintiff‘s position that the Village lacks general home-rule authority over the Village library because, as plaintiff views them, they are independent entities.
¶ 46 Plaintiff additionally contends that the “traditional” home-rule powers of a municipality do not include the “exercise of powers over a sitting member of another unit of local government.” The cases he cites in no manner support his position. In Scadron v. City of Des Plaines, 153 Ill. 2d 164, 176 (1992), the supreme court recognized that “[m]unicipalities have traditionally played an important role in regulating outdoor advertising signs.” In Youngberg v. Village of Round Lake Beach, 2017 IL App (2d) 160539, ¶ 6, this court noted
¶ 47 Plaintiff also claims that, when the Village Library Act (
¶ 48 To summarize, plaintiff does not deny that a municipality has an interest in the composition of the board of a local library established within its boundaries pursuant to the Library Act. Rather, he unsuccessfully attempts to establish that, because the Village and the Village library are, in his view, separate units of government, the Village lacks the authority to remove a member of the Village library board prior to the expiration of his statutory term. The remaining question is whether the legislature has expressly limited the home-rule power of a municipality over a local library created within its boundaries. Plaintiff points to no such limitation.
¶ 49 Plaintiff‘s final contention is that the trial court, in making its rulings on count IV (declaratory judgment) and V (injunctive relief), failed to recognize plaintiff‘s constitutional liberty and property interests in his position as a library trustee. Notably, plaintiff has not made to the trial court or to this court any argument that he was not afforded due process of law in being removed from office. See, e.g., Nelson v. Crystal Lake Park District, 342 Ill. App. 3d 917, 922 (2003) (the plaintiff could not be deprived of her property interest in local office without due process of law). Plaintiff develops no constitutional argument independent of his contention that the Village exceeded its constitutional home-rule powers. Plaintiff cites his liberty and property interests to support his claim that he will suffer irreparable harm if not granted injunctive relief. The trial court, however, must deny preliminary injunctive relief if the movant fails to establish any of the prerequisites for such relief. Smith v. Department of Natural Resources, 2015 IL App (5th) 140583, ¶ 27. As plaintiff failed to show a likelihood of success on the merits, the trial court was correct in denying the injunction.
¶ 50 Thus, we uphold the trial court‘s judgment declaring that section 2.53.1(d) of the Village code, as applied to the Village library trustees, is a valid exercise of the Village‘s home-rule powers. Also, as plaintiff has not shown a likelihood of success on the merits, we affirm the denial of his request for a preliminary injunction barring the Village from removing plaintiff.
¶ 51 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.
¶ 52 Affirmed.