*1 al., v. Counterdefendants-Appellees, et Plaintiffs and FRED B. ROTI WASHINGTON, Mayor, Counterplaintiff-Appel Defendant and HAROLD (Bobby Intervening et Counterplaintiffs-Appellants). Rush al. lant — (4th Division)
First District No. 83 — 1146 10, 1983. Opinion June filed *2 J., JOHNSON, dissenting. Moore, Chicago, Page appellant Washington.
Donald for Harold Siegel, Chicago, appellants. for Jack M. other Jann, Carroll, Dolin, Ltd., Torshen, Ltd., Jerome and Sain & H. William Harte, Ltd., (Jerome Torshen, Chicago Abigail Spreyer, all of H. J. David Jann, Harte, Whitt, Jeffrey counsel), B. Epstein, Irwin J. William appellees. opinion delivered the court:
JUSTICE JIGANTI in this sought Both the defendants case have legal to resolve that arose aid the courts order several issues This during legislative process. requires the course of lawsuit from a that arose legal stemming dispute court address issues aldermen, in the between the Chicago city plaintiffs, defendants, 21 Washington, aldermen and Harold *3 stress the that this court’s function Chicago. We at onset the of or to examine distribution question any legislation the wisdom the are concerns which do power legislative of council. Those to decide the responsibility not bear the traditional upon judiciary’s into many of shall this court delve the rights parties. person- the Nor era of publicized Chicago thrust into this highly alities that have been in this is to this court’s sole function lawsuit decide history. Crucially, the by as the and defend- legal plaintiffs the issues the case defined “*** to In trial to the ruling, appealed parties, ants. its the court differences, Mayor their to assist political personal, work out and goals expressed, the he has Washington effecting eloquently so our the are and the weak strong just make a where great City place meantime, must join in this In the we accom- plea. secure ***.” We that have legal of this court issues by deciding business plish for resolu- to this court by parties identified submitted been tion. meeting
The focus of this lawsuit revolves around meeting, of the Upon 1983. commencement May council on officer, entertained motion as council’s acting presiding mayor, was taken and the declared A voice vote adjourn.
961 immedi- motion to had carried. The aldermen adjourn of the elected left the council chambers. After one aldermen was ately officer, remaining 29 aldermen voted temporary presiding against adjourn meeting. propri- the motion to and continued of the re- ety mayor’s adjournment subsequent and the actions maining aldermen is the first issue submitted to this parties appeal.
Following events, adopted these the 29 aldermen remaining resolution “Rules of Order” for the 1983-87 council. These rules changed the rules from the 1979-83 council the num- by amending ber of 29. standing committees from 20 to The resolution further as- signed vice-mayor, aldermen to the 29 committees and elected a a ser- pro tempore. geant-at-arms and a The defendants contend president that the resolution is invalid not was only meeting alleg- because adjourned, but also rule edly because the new rules violated a of the 1979-83 council that that the provided repealed, rules could not be al- tered or amended absent a vote two-thirds aldermen. argue changes defendants therefore in the rules were invalid because 29 aldermen only modification, voted for a number five votes shy votes needed to a two-thirds In con- comprise majority. trast, argue that the 1979-83 council rules cannot bind the 1983-87 council because each council may enact own rules of order. These arguments comprise the second issue before this court on appeal.
The final action taken at May meeting the passage was ordinance which set as the May date of the next regular meeting. mayor vetoed this ordinance ques- but no are tions raised on this appeal concerning this veto.
On May special city council was called for May 7 at the request 24 aldermen. The purpose the special meeting towas approve journal of regular meetings held on April April 29 and May The minutes these meetings were adopted by a vote of 29 aldermen the meeting adjourned. The minutes for the special meeting were at the adopted regular next meeting May validity 11. The of the actions taken at the 7 special meeting is the third issue raised parties on appeal.
At the 11 May meeting, mayor the communicated a to message council in which he vetoed two the resolutions which had been at the adopted May the meeting by remaining The res- aldermen. olutions at issue concerned changing the number committees and aldermen appointing to those The committees. of these vetoes validity issue on appeal. the final 6, the in the sought declaratory judgment trial May plaintiffs On seeking enjoin Later that filed an action to the day, mayor court. clerk and the from the rules and resolu- implementing May 11, On the cases were previously adopted. tions which had to and the 21 defendant aldermen were allowed inter- consolidated came clerk from the suit. The cause vene. The was dismissed May by trial on 13 and the court heard evidence presented parties. May On the court rendered its memorandum decision and 17, the on order was entered of the May judgment plaintiffs. favor filed mayor immediately Both and aldermen intervening ap- and all the suit Court peals parties requested Supreme Illinois the case The appeal. application for direct The was denied. accept this court the matter June by court ordered to decide supreme arguments A was and oral were briefing schedule established 2,1983. on heard June matter, mayor we decide
As a threshold must first whether meeting lawfully adjourned May pursuant if the was the remain- Significantly, adjournment proper, voice vote. prevail in this case moot the defendants will ing issues become hand, if adjournment all issues. On other we find mayor’s we issues in the case. improper, was must determine the other raised The record the events ad- surrounding purported reveals However, journment charged highly were tumultuous. emotionally essence, trial discloses that a regular city adduced at evidence which the all meeting April during mayor held on was At council were inaugurated. of the aldermen of the 1983-87 ceremonies, was recessed 2. When meeting until close May 2, was The mayor the session was resumed on the roll taken. recognized immediately adjournment. alderman who moved for stated, favor, signify The “You’ve heard the motion. All in mayor ayes. This was a chorus of statement followed saying aye.” followed. The asked, then A chorus nos “Opposed, no?” mayor Immedi- announced, is adjourned.” “The have it. Council mayor ayes thereafter, accompanied by chambers left the council ately 21 of the aldermen. reflects af- journal proceedings called for a motion to was made but before adjourn
ter the a roll on the vote, aldermen call vote mo- requested voice “various indicate the names of the aldermen who does not journal tion.” a roll Another transcript call vote. requested This second produced court hired defendants. reporter *5 reflects that the transcript ruling adjourn to was made after a voice vote but before for a roll any request call was made. Also introduced into evidence were the clerk’s tape recording of the net- meeting, work video tapes, transcript produced by court hired reporter the plaintiffs, and the stipulated clerk and at testimony least 32 aldermen. The bulk of this evidence that reflected a roll call vote was requested prior adjournment. to The trial court found that “several of the twenty-nine aldermen clearly demanded a roll call vote ” immediately upon Mayor’s announcement that ‘the have it.’ ayes words, In other the trial court concluded that requests for a roll call vote were prior demanded to the time that the mayor purportedly ad- journed the meeting and left the chambers. exit,
Following mayor’s an alderman the clerk requested to take a roll call vote on the motion to adjourn. The motion adjourn to was defeated by a vote of 29 to zero. As there are 50 aldermen in the council, 29 votes comprise majority to defeat necessary a motion to adjourn. The 29 aldermen then continued the pro- ceeded to take certain actions that will be examined later in this opin- ion. further,
Before proceeding we must whether, determine as the defendants suggest, the mayor properly adjourned the council meet- ing and therefore precluded 29 aldermen from conducting further council business. The defendants raise three arguments relating to the purported adjournment. First, contend that they the trial judge erro- neously found that several aldermen requested roll call vote prior to purported adjournment. Second, it argued that even if a roll call vote was requested prior to the adjournment, the 29 aldermen were not entitled to a roll call because the request was not made in the form of a formal motion and because the record does not reveal which specific aldermen requested the roll call vote. Finally, argue defendants did not hear any request for a roll call vote and therefore acted properly in exercising his responsibility as presiding officer of the council to decide all questions order, sub- ject to appeal. Consequently, the defendants contend that the 29 al- dermen were required to appeal ruling mayor to adjourn and that did not make any such motion. will first
We determine whether the trial judge correctly found that a roll call vote was requested prior to adjournment. We have already detailed the evidence produced at trial by parties, both and we have noted the trial court’s conclusion that a roll call vote was demanded prior adjournment. are parties in dispute regarding which records of the meeting were before the trial properly court.
Specifically, plaintiffs argue only journal events, may garner chronology be considered while well extrinsic urge journal may defendants as records However, the heart this argument be examined. we need not reach event, because we find that in either the trial court’s conclusion was If proper. the trial looked to the he would inevita- judge only journal, find that a was made for a roll call vote bly request prior adjourn- If judge ment. the trial looked to the in addition to the extrin- journal records, sic such as the he would videotapes stipulated testimony, also find a amount of significant evidence to effect a roll call vote was requested prior adjournment. Significantly, whether request timely question delivered is a of fact that rests in the do- *6 judge. judge main of the trial The decision of the trial on a factual it is the manifest appeal against matter will not be reversed on unless 63 Ill. weight (See of the evidence. Shanahan v. Schindler in 1307.) 3d 379 N.E.2d Our of the record this case App. study discloses that the trial had an amount of evidence judge impressive him revealing requested prior before that a roll call vote was ad- journment. We therefore cannot that the trial court’s determina- say tion of this factual question against weight the manifest evidence. next
We must consider whether the were entitled to plaintiffs a roll call vote even their was not in the form of a for though request mal do not though transcripts motion and even the roll call requested reveal the names of the aldermen who specific the allow prerequisites that both are argue vote. defendants call vote may only “operate ance of a roll because Further, motions, the defendants contend resolutions ordinances.” meeting, that in the of a a for a roll call spirited request heat Thus, could be shouted of the audience. the defendants member argue, the name iden alderman the roll call must be requesting making tified in order to assure an alderman is in fact the re However, in placed cannot must be quest. agree plaintiffs we them the defendants. procedural straight jacket urged upon shall taken “yeas nays It is statute that be provided by or motion at other resolution upon question passage any in the journal.” alderman and shall be recorded request any Thus, stat- 11—17.) Rev. Stat. were par. 3— so adjourn long entitled to a roll call vote on the motion to utorily in the Signifi- with the set out statute. they complied requirements call that an alderman is entitled to a roll cantly, provides the statute There is no upon “request.” statutory requirement his “request” Further, must in the be form of a formal motion. our con- sideration type of situation which during a roll call vote would typically that, be leads requested matter, us to conclude as a practical an to make a formal attempt motion for roll call vote could conceiv- ably ignored by chair or lost in the shuffle of a turbulent coun- cil meeting. If the motion could not be stated under such circum- stances, an alderman’s statutory right to a roll call vote would be lost. Because a roll call vote is the statutory entitlement of one aider- any man, a vote on the motion for a roll call vote would be unnecessary and in fact would be improper. We therefore think that a clear vocal request form is sufficient to trigger right alderman’s to a roll call vote.
There is also no requirement the statute that the alderman requesting a roll call vote must be identified by name. The defendants cite Rule 18 of the city rules, states, “in all cases where a resolution or motion is entered in the journal, the name of the mem ber moving same shall be entered also.” Rule 18 applies only to motions and not to the situation with which we are concerned here. The journal of proceedings reveals that “various aldermen requested a roll call vote on the motion.” We believe this is language suffic ient support the fact that aldermen rather than members audience were the persons a roll requesting addition, call. In the trial court found that the requests were made by aldermen, and we will not reverse its finding on such a factual matter unless it against the manifest weight of Therefore, the evidence. where the statute does not require additional procedures urged defendants and where the record discloses that certain aldermen did in fact re *7 quest vote, roll call we believe that the requesting aldermen were statutorily entitled to a roll call vote even though request was not a formal motion and the record did not identify aider- requesting men by name.
Our final concern on the adjournment issue is the defendant’s ar- gument that the mayor did not hear a for a request roll call vote and acted consequently in properly exercising his responsibility presid- ing officer of the council to decide all questions order, subject to appeal. The defendants argue did not formally ap- peal the chair’s decision on the motion to adjourn therefore, and that the mayor’s adjournment was proper. Our determination of this issue revolves around interpretation of the rules of the council and Robert’s Rules of Order. Rule of the council rules adopts Robert’s Rules of therefore, Order and Robert’s is central to the case before this court. po in of their following support rules cite
The defendants there was must stand because adjournment mayor’s sition that the to adjourn: from his decision proper appeal never a *** order, decide all questions officer shall presiding “[T]he 4; Rules Rules R. see also Robert’s appeal.” (Council to subject (1970).) sec. at 377 Newly Revised of Order a ruling to the Council from may appeal member “Any his reasons state making appeal may chair and the member there his but same, may explain ruling; for the and the chair and no other member shall appeal no debate on the shall be Rules, 12.) ***.” R. (Council in the discussion participate officer, to assembly delegates electing presiding “By necessary rulings ques- to make on duty him authority right have a law. But two members tions of parliamentary one member question. By his decision on such a Appeal from it, the seconding and another making (or ‘taking’) appeal assembly the chair and vested in the is taken from question a final decision. the chair unless ruling criticize a right have no
Members Newly Rules of Order from his decision.” Robert’s they appeal (1970). Revised sec. at 218 must be cited to us the defendants that the rules
We believe Rules of Or- sections of Robert’s with two other conjunction read der, which state: otherwise, itself is the assembly the bylaws provide
“Unless voting are incidental to the arising questions of all judge ballot, for exam- In an election counting of the votes. for decision all assembly refer to the the tellers should ple, Rules of (Robert’s is any uncertainty.” which there questions (1970).) at 345 Revised sec. Newly Order a rul- is appeal applicable only [above], “As explained the chair. ing by to a parlia- the chair’s response made from
No can be appeal an opinion since such a reply or other query, mentary inquiry that has actu- chair, on a ruling question rendered *** arisen. ally not a a vote also is the result announcement The chair’s If member doubts subject appeal. and is not ruling however, result, he should such an announced correctness of ” of Or- Rules added.) (Robert’s (Emphasis call for a ‘division.’ 221 (1970).) at Revised sec. Newly der case with the harmony together these rules read all of When we
967 decision to ad we must conclude that a by parties, law cited to us Rather, a order.” the council “ruling” “question is not a or journ first instance to members, authority the have the the mayor, not spe decide a vote on a motion to Robert’s disputed adjourn. who won that the announcement of the result of a vote cificallyprovides chair’s Therefore, is not a which be the ruling subject appeal. would us not to this issue. by pertinent rules cited to the defendants are Rather, we that correct method of the result clarifying believe a vote the council is to a call vote. The record reflects by request roll that this done not was a number of aldermen. We do believe that mayor’s position presiding ignore officer entitles him to the re for a call peated requests roll vote. As the Illinois Supreme Court stated in Aberdeen-Angus American v. Breeders’ Association Fuller (1927), ton 325 Ill. 156 N.E. officer can presiding “[a] not defeat the to arbitrarily majority by refusing will entertain motions, or put a by wrongfully vote, result of declaring refusing to of its will. permit expression by majority He is representative of the over he presides. which His will is not body binding it, will, on but its legally a of its mem expressed by majority bers, binding.” is See Rudd also v. Sarallo 111 Ill. 2d App. 153, 249 N.E .2d (applying preceding observation mayoral/city councildisputes). we
Alternately, believe even if the mayor’s announcement could be ruling considered a which needed we still appealed, think that aldermen acted properly. Specifically, rules cited by the defendants do not detail must any procedures be followed in order to ruling. chair’s think a roll appeal request We for a subsequent call and a roll vote call aldermen was a remaining sufficient manner in to appeal the announcement made mayor just to his A prior exit. formal motion to rul- appeal chair’s ing, which the rules do require, a necessarily request roll call vote both accomplish same purpose informing the pre- siding officer that his call judgment result of voice open to question. ignore We cannot the realities of the situation with which we are faced in order to impose parliamentary requirements that are demanded by neither the council rules nor Robert’s Rules Order. We therefore find 29 aldermen acted re- properly by call questing meeting roll vote and that the was not law- fully adjourned by mayor. room,
After the mayor left the one of aldermen elected as temporary presiding officer pursuant to statute. Rev. Stat. 11—15.) continued with the comprise in attendance which was a sufficient number meeting. conduct the council clerk then necessary quorum *9 adjourn. adjourn took a roll call vote on the motion to motion to then con- meeting lawfully a vote of 29 to zero. The by was defeated tinued. legal was without
Having mayor’s adjournment found that meeting lawfully, continued we must subsequent effect and that at plaintiffs the rules of order determined by next decide whether The purpose 2 council were May properly adopted. routine, internal operation rules of order is to determine how the The is that position council is to be conducted. defendants’ city therefore, the rules of continuing council is a and that city body remain in effect unless order the 1979-83 council must adopted by altered, two-thirds of the 1983-87 by are or amended repealed in fact altered by council. The rules of the 1979-83 council were 2, argue of the 1983-87 council on defendants actions because Rule 48 improperly accomplished that this alteration was that: provides the 1979-83 council rules city *** altered or amended repealed, “These rules shall not be the aldermen entitled unless concurrence of two-thirds of all by law to be elected.” by its dura- indicating time frame any specific
Rule 48 does not include tion. aldermen, less order were five votes adopted by
The rules of majority. to a two-thirds necessary comprise than the number continuing body, council is a although counter that plaintiffs council do not over bind by carry the rules enacted the 1979-83 its rules of order. In support, the 1983-87 council from own adopting the Illinois Code Municipal cite section 3—11—11 of rules of pro shall determine its own “The provides, 1981, 24, 11—11.) plain Stat. ch. ceeding par. ***.” Rev. Rule 48 itself as to its dura argue interpretation tiffs also carry it not intended to over the conclusion that was tion mandates council. present from the council to the prior it, the 1979-83 see is whether The crux of the as we problem, rule that re- 48, extra-majority prevents Rule an council’s adoption effec- majority, a two-thirds except by or amendment peal, alteration making council from of the 1983-87 majority tively prevents (Ill. Rev. Stat. section 3—11—11. by order as allowed its own rules of in the briefs A deal of discussion 24, 11—11.) great ch. par. 3— have of- and the defendants issue extra-majority centers around by have enacted rules that been extra-majority fered examples Rev. ch. sale legislature. (See par. (the Ill. Stat. 11—76—1 or only accomplished by lease real estate can be an ordinance three-fourths of the Ill. passed by corporate authorities); Rev. Stat. (streets 11—91—1 can alleys be vacated only upon aldermen).) However, a three-fourths vote of the a significant type distinction lies between the of law cited us the defendants provide Rule 48. Those laws that certain cannot en- legislation be acted an except by extra-majority goes step vote. Rule one further enacted, than those laws that once which itself providing law creates the repealed, two-thirds not be altered or requirement may case, amended a If except by two-thirds such were the a majority. bare could a majority effectively create rule anther council could not repeal, alter or amend majority examples own vote. The legislation cited to extra-majority us the defendants concerning lease of real estate or the vacation streets can altered repealed, amended majority, not vote. If the extra-majority, majority of a city pass council can rule such as Rule 48 in order bind fu- ture councils extra-majority two-thirds revocation requirement, *10 the exiting create, termed, council would as the have so a rule favoring perpetuities. past virtually irrevocably could bind the future.
Section 3—11—11 of the Illinois Municipal provides, Code “The city council shall its determine own rules of ***.” proceeding (Ill. 1981, 24, Rev. Stat. ch. par. 11—11.)We believe that 3— section 3— 11—11 must in be read with conjunction Rule 48 and we conclude that the adoption council, of Rule 48 by the 1979-83 or any previous coun- cil, cannot be allowed to effectively prevent the 1983-87 council from Further, its own determining rules of order. we that believe when the order, 1979-83 council its adopted rules of it those rules adopted solely for the 1979-83 session and did not intend to rules binding make those on all of future sessions the city council.
The parties agree that
the
council is a
city
continuing
the
body,
existence
change
of which never ceases
reason
a
by
membership.
of
of
The continuing
as
useful
body concept
legal
serves
fiction needed
to accomplish such
public
desirable
considerations as
policy
protecting
rights
contract
persons
of
who had
with the previous
contracted
municipal body, sustaining the
of a
body
during
existence
can act
periods of transition
ability
of one
affirming
city council
act
of
upon
uncompleted
See, e.g.,
business
a
council.
previous
(1893),
268,
Booth v. Mayor
56 N.J.L.
970 2d 140 City Huntington Denio v. Beach (1943), Cal.
office);
of
Schu-
by prior council);
P.2d
effect of contract authorized
(binding
v.
Clear Lake
(com-
In to our conclusion that construction addition statute, also is in to the we urged defendants contravention statute, ambig itself, find read with the is conjunction that Rule 48 unambig Rule clear certainly uous as to its duration. While 48 length no hint as gives it requirement, uous as its two-thirds that argue because The defendants of time it is to remain effect. there is no provision, duration it must that the rule is of presumed infinite duration unless changed by specific dictates set out in the However, rule itself. our preceding examination of the statute leads us to that each conclude new council is to determine its own rules of proceeding and that there is no requirement in the first instance that a body must determine its own rules a two-thirds vote. The evi- dence presented to trial court disclosed excerpts of the jour- nals city 1931, 1979, council from April through revealed April four every each new adopted its own rules of years, order de novo. Each of those councils adopted rules which re- quired two-thirds vote to alter repeal, or amend the rules. We be- lieve that the actions taken preceding councils in adopting their own rules of indicate, extent, order at least to a certain each preceding council did not intend that their rules were temporary to extend the term beyond of the particular city council for rules were adopted. We therefore do not believe that it intent of the drafters of Rule 48 to bind the 1983-87 city council to the rules enacted by council, another rules that would effectively prevent 1983-87 council from adopting own internal rules of order.
Both our construction of the statute and our interpretation of Rule 48 lead this court to conclude that each new city council is enti tled to adopt its own order, rules of that the 1983-87 council is a new therefore, and that the 1983-87 council cannot be effectively barred 1979-83 council’s Rule 48 from its own adopting rules of order. We therefore believe that 2, 1983, on May the plaintiffs acted when properly they adopted internal rules of order for the 1983- 87 city council.
The next issue on appeal involves the special meeting 7, of May 1983. On May aldermen called for a special meeting of the 7, council scheduled for 1983, May p.m. at 3 The aldermen have the power to do this under section 3—11—13 of the Illinois Municipal Code which states that “any aldermen” call may a special meeting of the city council. 1981, 24, Rev. Stat. 11—13.) The special meeting was called for the “sole and specific purpose of ap- *** proving the Journal of Proceedings City Chicago, April Friday, April 1983 and May 1983 and for no other purpose.” The call for the special meeting was in writing filed with the clerk.
At the beginning of the special meeting mayor an- nounced that the call was improper and left the chair. The call was then read and an alderman moved to adjourn the meeting because the call was improper under Robert’s Rules of Order. Another alderman
972 the motion a verifica-
moved to table this motion and was tabled 13, tion of 29 to 20. The of for journal proceedings April April 29 2 were then vote of 29 aldermen and May adopted 11, 1983, adjourned. regular was at the next meet- meeting May On ing council, meeting journal proceedings special of the of of 29 to was as corrected a vote of approved argue special meeting On defendants of appeal, May approving 7 and that the taken improperly was called actions 13, 2 were in April May totally of journal valid and void. The defendants cite section 47 of Robert’s Rules of Or (Robert’s der as evidence for this contention. Rules of Order Newly Revised sec. at 393 Section 47 (1970).) special states “[a] minutes; does not should at meeting approve approved minutes regular added.) next Because the council is meeting.” (Emphasis governed Rules, the that a special Robert’s defendants conclude as its approval cannot be called which has meeting purpose minutes. agree cannot with the defendants’ claim that Robert’s Rules
We precludes calling minutes. special meeting approve governs Rules are not inconsistent with the only Robert’s where sec. (Robert’s Newly council’s own rules. Rules of Order Revised at not conclusion. (1970).) dispute plain- defendants do this tiffs us to as a council rule which is inconsistent 3(6) cite Council Rule 3(6) with Rule 47. Council Rule states the ap- Robert’s section is a matter which is come before the proval journals properly “All ordinary Meetings.” council in the course of business at Council Furthermore, not of Robert’s section 47 does constitute wording at prohibition against approval journal proceedings absolute that “A meetings. meeting Section 47 states does not special special minutes; ***.” 47 does not that a approve say special meeting Section cannot minutes. approve called to the special meeting properly pursuant
Because the 11—13), Code Rev. Stat. Municipal Illinois minutes at approve Rule council to 3(6) empowers because council Robert’s section 47 does contain meeting because any council at approving special minutes prohibition against specific special meeting actions taken at the we conclude that meetings, were valid. two validity issue involves the appeal
The final on of the meeting May After the mayor’s adjournment vetoes. adopted in the council chamber and two 1983, remained adop- The first involved are at issue here. resolution resolutions which standing tion of committees rules enumerated ones standing council. All the old and nine new were committees resolution, enumerated in the a committee on finances. including and desig- second aldermen to these committees assigned resolution nated designation their chairmen. This resolution included chairman of the committee on finances.
On at the next scheduled regularly council in city council, message communicated a to the *13 which he veto was based on vetoed these two resolutions. This action 1983, an to the opinion corporation rendered counsel May effect that the action taken the council on these resolutions two unlawful, void and without effect.
Section 3—11—18 of Illinois out the veto Municipal Code sets of power mayor. The section provides:
“All resolutions (1) any liability and motions create a against city, or which for the or (2) provide expenditure ap- propriation money, (3) or to sell or school any city prop- of ordinances, and all erty, passed council shall be de- city posited them, with the clerk. If of mayor approves he shall them. of sign disapproves Those which he he shall return council, his the next objections, reg- with written at ular meeting of the than occurring not less 5 days after their passage. The mayor disapprove any one or may ordinance, resolution, more appropriated sums or any motion and, so, an making appropriation, if shall ef- remainder be However, fective. mayor may disapprove entirely of an or- dinance, resolution, making or motion If appropriation. fails to return ordinance or any any specified resolution or motion with his written within the objections, designated time, it shall of his signa- become effective absence despite ture.” (Emphasis added.) (Ill. Stat. Rev. ch. 3— 11-18.) statute,
Under this a two-thirds vote of the duly all elected members is to override necessary mayor’s veto. Ill. Rev. ch. Stat. par. 3—11—19.
On appeal, argue defendants that this statute gives the right all to veto resolutions any against which create liability or provide for any money. or of its Ac- expenditure appropriation cording defendants, resolution, to the enumerating the first the com- mittees adopting finances, creating rule a committee on consti- tuted a “liability against it city” expense because involves the staffing resolution, such The according committees. second to the the chairman defendants, appropriation a special involves Municipal 4—2 of the chapter finances. This is because committee on salaries, provides aldermanic which sets Chicago, Code $31,400. salary will receive of the finance committee chairman is salary this 2.) Since of Chicago Code (Municipal $3,500 salaries, is the extra $3,500 aldermanic more than standard appropriation. involving special the defendants as characterized resolutions, agree cannot we After reviewing language involve ap- two resolutions conclusion that these with the defendants’ against city.” a “liability or create expenditures propriations, expend- which authorizes any language not contain two resolutions do such expenditures indicate that or or which appropriations itures enumer- merely The first resolution are intended. appropriations the commit- staffing for the does not provide ates committees and that the ex- correctly observe by paid employees. tees committees is to these money of the city’s penditure appropriation of the council and or ordinances future resolutions dependent upon resolution, contrary The second this resolution. accomplished by not claims, special appropriation for a provide does to the defendants’ in any way finances or the committee on $3,500 to the chairman of $31,400. his base appropriate salary concerning validity argument one more make defendants The defend- unconvincing. which we find vetoes mayor’s ordi- here are in fact resolutions at issue claim that the two
ants *14 acts legislative are Thus their importance. nances because of corpora- cite a The defendants veto. mayor’s are subject 186 (1900), v. Mount People of June tion counsel opinion turn the how these authorities fail to see 560, N.E. 360. We Ill. to the subject make them and then into ordinances resolutions two veto. mayor’s gov local powers veto statutory we are mindful
Because in Illinois and construed strictly are to be executives ernment chief encompassed expressly are those which only includes power the veto 83 Ill. Rosewell v. (Winokur power statutory grant in the language find any we cannot 724) .2d because 92, 414 N.E 2d or cre appropriations, expenditures, authorize resolutions which exceeded that the mayor we conclude city, against any liability ate these resolutions. to veto attempting powers veto statutory his is af- the trial court reasons, the decision the foregoing For firmed.
Affirmed.
ROMITI, P.J., concurs.
JOHNSON, J., dissenting: I taken would majority.
I dissent from the strongly position reverse. I present in the majority opinion,
Because certain omissions this statement of facts. newly
On and the elected members of April mayor into The council recessed until council were sworn office. when it convened with the mayor presiding. called to order and the clerk called the roll. There are two ver- sions of what occurred after the invocation. According to Accurate Services, Reporting following occurred: “MAYOR The president recognizes WASHINGTON: Aider- man Natarus.
ALD. I adjourn. NATARUS: move we MAYOR All WASHINGTON: You’ve heard motion. in fa- vor, signify by saying aye. AYES.
CHORUS OF MAYORWASHINGTON: no? Opposed, OF CHORUS NOS.
MAYOR WASHINGTON: have it. Council is ayes ad- journed.”
According Service, to McGuire’s Reporting following occurred:
“ALDERMAN NATARUS: Mr. President? MAYOR recognizes WASHINGTON: The Chair Alderman Na- tarus.
ALDERMAN I move we adjourn. NATARUS: (A of requests call.) Chorus for roll MAYORWASHINGTON: The meeting adjourned.
(A call.)” Chorus of for roll requests matter, At a hearing conflicting this there were stipulations whether call there was a for a roll call prior adjournment. The stipulations to the effect were that various aldermen would testify as when the call a roll call was made. Some aldermen would tes- tify the call was made before the adjournment while others would call testify adjournment. came after the After an- nounced the he left adjournment, aldermen chambers. *15 the chair Vrdolyak
Alderman assumed and asked for roll call adjourn. vote on the motion to The vote 29 to against zero ad- chairman, as journment. Vrdolyak following With five resolutions of 29 to zero: votes passed by were change for in the council’s rule of
A(1) providing resolution to 29 committees from 20 standing order that increased eight changes; for other providing and for the of aldermen to (2) assignment A resolution providing committees; the 29 vice-mayor; for election of a
(3) A resolution providing sergeant-at- for the election of a (4) providing A resolution arms; and pro of a president A for the election
(5) providing resolution tempore. 6, 1983, at 10 Friday, May passed setting
A resolution was also meeting, Prior to the a.m., meeting. for the next council as time 6,May for 1983. setting meeting the ordinance vetoed mayor 7, 1983, on meeting May for a special called day, that aldermen On of the proceedings journal purpose approving for 29, 1983, were May journals for and council 13 and April 7,1983. May the 29 on approved plaintiffs meet- regularly the council met at its scheduled May On of each month. The an- Wednesday is the second ing, which passed May on he had two of five resolutions nounced that vetoed rules of of the council changing procedure resolution 1983—the committees. One members to naming the resolution and to the resolutions was that black mayor objected the reasons the of the formulation participation members were denied memberships. chairmanships Of the 58 and vice- rules and committee positions. The only eight were selected for chairmanships, blacks 7, 1983, on journal special meeting May of the approved of 29 to 21. judg- 6, 1983, complaint declaratory filed a May On asking mayor, other relief injunctive against ment and 2, 1983, law- at the lie declared adopted May the resolutions against filed a complaint On that fully adopted. day, May taken asking clerk the 29 that the actions sub- aldermen illegal declared void and May to the on be sequent adjournment journal published part 11, 1983, were consolidated and these lawsuits May council. On intervene on were allowed to behalf the other 21 aldermen mayor. 22-page trial court issued a hearing
After a by plain- advanced arguments opinion adopted memorandum may- trial court held that tiffs in their memorandum. pretrial *16 2, 1983, meeting illegal; of council was adjournment or’s May city after that the resolutions for which the 29 aldermen voted the five lawful; the no mayor authority were had purported adjournment resolutions; of the there a jurisdiction or veto and that was The call a on trial proper special May for session city 17, 1983, its On the May court declared order final appealable. effect for 30 judge judgment stayed trial his order and signed days.
I of the following meeting will address the issues: whether the (1) city 2, 1983, was the on May adjourned by mayor on properly vote; a (2) a voice whether the council could resolution adopt vote; rules the call changing (3) the without a two-thirds whether for special meeting a for for the of the May purpose approving valid; journal (4) the was and whether the proceedings mayor’s veto of the was in purported resolutions valid if fact those resolutions were properly adopted.
Adjournment Issue
The first issue raised this whether appeal is the council on was the May adjourned mayor on properly voice affirms a vote. The majority opinion holding trial court’s adjournment illegal. was addressing Before the decision made by the on it issue, necessary this that I majority discuss burden proof. plaintiff has the
Generally to all proof burden as the ele- ments of his claim cause (18 of action. Ill. L. & Prac. Evidence sec. 21 (1956).) case, In Therefore, this defendant countersued. the burden proof is complicated but should have been decided trial court at onset. alleged
Plaintiffs that the mayor contrary acted to law. Since it is presumed public that a (18 official acts in faith Ill. L. & Prac. good Evidence sec. 27 (1956)), plaintiffs proving have burden of mayor illegally. my acted In opinion, did meet this burden of for the proof following reasons:
(1) There was hearing. no The evidentiary hearing 1983, consisted of argument stipulations of counsel. There conflict as to when the demand for roll call occurred.
(2) In the judgment order, the merely trial court concluded that the mayor acted and the order no illegally, contained find- ings Thus, of fact. the conflict was never resolved. seems majority willing (based on the presume solely trial
court’s conclusion of that the trial court illegality) proper followed majority It is for the
steps arriving improper at its decision. is premised upon make this review assumption appellate because reaching idea that trial err in the a decision. may process courts In the absence of the record that this burden of any indication sustained, proof ruling had trial should be reversed. been court’s fact. least, findings At the the cause very should be remanded surrounding adjournment of events majority’s recitation prede- and its evaluation of the trial court presented evidence the meet- adjourned termines its conclusion that illegally ing. journal proceedings notes that the majority council indicates that demand for roll call was made before However, called the fact majority ignores for a voice vote. complaint, in his asked the trial court to declare that mayor, following published part his not be adjournment *17 the that the of evidence indi- journal. majority The also notes bulk the mayor cated that several aldermen demanded roll call after the an- nounced, aldermen neglects “The have it.” It to mention that 26 ayes the only stipula- who are of intervenors submitted plaintiffs six The stipulations necessarily plaintiffs’ tions. bulk of the would favor the view of events. that the
The concludes that the trial court’s conclusion majority was adjournment demand for a roll call occurred to not prior I the trial court weight the manifest of the evidence. believe against the mayor improp- did not have to conclude that sufficient evidence meeting. of what later adjourned happened It used evidence erly earlier, i.e., trial reached the happened as evidence what court that a roll call at time motion majority supported conclusion to majority adjourn. was made because a later voted adjourn roll call vote
The holds that were entitled to a majority Illinois Code Rev. Stat. Municipal under section 3—11—17 24, “yeas in provides part that 11—17), which other passage any shall taken nays upon question shall be re- at the aldermen and request resolution motion in the May journal.” language corded in found majority the conclu- was sufficient to journal support words, major- the roll In other requested sion that aldermen call. journal a roll call because the said states aldermen ity requested to pre- sued ignores the fact that Again, majority mayor so. journals’ that the account journal entry of that printing vent Furthermore, even ac- view. proceedings represents plaintiffs’ roll call was request an informal for a view that cepting majority’s that a resolution or motion have not established permissible, plaintiffs 3—11—17. the councilin accordance with section before addresses majority The next issue that the involving adjournment mayor is what it as “the defendants’ that the did argument describes not hear a for a roll call vote and acted request consequently properly in the council to exercising responsibility presiding his officer of order, decide all states questions subject majority appeal.” that its determination of this issue revolves around interpretations city council rules and Robert’s Rules of discus- majority’s Order. sion majority po- contains seeds its own reversal. The takes sition that there were no rules until the council “created” them. Rules apply proceedings by Robert’s of Order virtue of provides Rule which as follows:
“The rules of in the parliamentary practice comprised latest edition of Rules of Order Revised’ published Newly ‘Robert’s (1970 Edition) shall in all govern Council cases to are in they applicable and which are not inconsistent with the special rules of this Council.”
Since the majority rules, states that there were no Rules of Robert’s Order did not at the time the apply mayor meeting. adjourned
The majority states that the
could not
re-
ignore repeated
quests for a roll call vote and
from
quotes
Aberdeen-Angus
American
Breeders’
v.
Association
Fullerton
325 Ill.
I do not understand the statement it “cannot majority’s ig- nore the realities of the with situation which we are faced order *18 the impose parliamentary requirements by that are demanded neither Council rules nor Robert’s Rules of Order.” The states that majority them, plaintiffs by were bound no rules until created it yet can rule on an issue for which it no rules were availa- should concede that, It case, ble. seems to me in such a the should majority dismiss the issue as nonjusticiable. the trial
Additionally, judgment court substituted its for that of The is the mayor. presiding officer of the council city Rev. Stat. 11—14). In that it was his capacity, whether, to duty decide when he made the call for a vote to adjourn, the motion had or failed based on he This was passed what observed. a judgment call.
A recurring reviewing theme in review is that the court judicial (See of the trial court. Peo- judgment does not substitute its for that A ple Perruquet 882.) v. 68 Ill. 2d 368 N.E.2d familiar that a reviewing showing standard is court will not reverse absent Appeal of of Ill. L. Prac. Error sec. 751 (2 abuse discretion. & & manner, In like the circuit should not substituted (1953).) court have its showing for that of the absent a of abuse of dis- judgment Chicago city cretion. Circuit are not to judges preside elected over council, mayors but are. of whether the question adjournment necessarily turns on a of fact. tran- proper finding versions; the of proceedings contain two contains an-
scripts journal other. The trial court did not have sufficient facts to resolve the con- flict. did meet their of proof. Plaintiffs not burden issue, this be
Although adjournment case should reversed I must fully respond majority to the address issue opinion, has the its rules of authority change proce- whether council council Rule required by dure without two-thirds majority Rule Issue case, question first
To resolve this court must answer I note at this continuing body. whether Chicago city lawsuit, i.e., parties, involved in this juncture everyone court, this myself, agrees trial judge, majority this Agreement, however, is a ends at continuing body. point, although majority position since and the take not body procedure is a its rules of do continue continuing from one the next. quadrennial period that Rule 48 the current session majority deprives states , I procedure. council of to determine its own rules of right amend, free to The current members of the council are disagree. However, they must alter rules of repeal procedure. or otherwise by and not procedural guidelines do so in accordance with established done here. implication tacit as was 48 provides:
Rule suspended a vote two- temporarily “These rules be may elected, and entitled law to be (%) thirds of all aldermen unless concur altered or amended repealed, shall entitled law (2k) all aldermen rence two-thirds be elected.” should be used in a statute language
It is well settled that Group Five East Peoria v. meaning. (City given plain, ordinary
981 492, 42, 46, 494.) 429 N.E.2d More- 87 Ill. 2d Development (1981), Co. Bloom, Inc. v. (S. in its over, entirety the statute should be considered 257, that no 56, 64, 262), Ill. 284 N.E.2d so 52 2d (1972), Korshak word, meaningless superfluous. City is rendered or clause or sentence 42, (1981), Co. 87 Ill. 2d Group Development East Peoria v. Five of 47; 617, 628, 402 Ill. 85 (1949), Co. v. Fox Telephone Illinois Bell 43, N.E.2d 50. intended legislature with the
“[Cjourts assumption start (Pliakos (1957), v. Control Com. Liquor enact effective law.” 456, 459, 47, Thus, giving and 49.) ascertaining Ill. 2d 143 N.E.2d the intentions of the courts should avoid an inter legislature, effect to defeats, nullifies, emasculates, ex destroys, repeals, which pretation or nu insignificant, meaningless, inoperative, or renders plains away Bloom, 456, 460; Ill. 2d Inc. being (11 the statute construed. S. gatory 56, 52 Ill. 2d The same rules (1972), 65.) govern v. Korshak also the construction of or govern municipal construction of statutes City (1967), dinances. East St. Louis v. Electric Co. 37 Ill. Union of 537, 542, 522, 524; Village Wojcie 2d 229 N.E.2d Park Forest v. of 437, 346, (1963), 435, 348; chowski 29 Ill. 2d 194 N.E.2d Na City of 33, 37, City City (1950), meoki v. Granite 408 Ill. 95 N.E.2d Thus, when a court looks to the of an or stat- language ordinance ute enacted law-making body give ascertain and to effect to give intention of the a court must the statute a law-making body, (Du (1954), sensible Bois v. 2 Ill. 2d interpretation Gibbons 295, 305), 118 N.E.2d and not do violence to the spirit language Bloom, (S. 56, 64-65.) of the act. Inc. v. Korshak 52 Ill. 2d intent legislature must be determined as of the time of the en- actment. As the court in City Chicago (1944), Dean Milk Co. v. 612, 615, Ill. 53 N.E.2d stated: conditions,
“Expediency, changing born circumstances meaning language will not alter the used plain ordinary in an ordinance.” language
The clear of Rule 48 that with the concurrence provides elected, of all the aldermen entitled law to two-thirds be rules There is for the may repealed, altered or amended. no basis assertion, which the that the rule “never” be majority accepts, may altered, face of amended revoked. This characterization flies in the principles looking language settled at the used the statute. answered;
The question still remains to be did the aldermen follow to amend or Rule 48. proper procedure repeal majority interprets provision Municipal Illinois Code Rev. Stat. 11—11), which states: “The council shall determine its own rules of proceeding” to mean that each rule will be de novo at the adopted beginning each four-year basis, session. On this majority finds that Rule 48 was not binding *20 on the current session of the city council. I reject this and reasoning its conclusion. The fails to cite majority journal proceedings or other any authority for their position.
While conceding council is a city continuing body, the ma- jority continuity allows in an ethereal sense but disallows in continuity a practical sense by reasoning that the newly elected council members should not be prevented from enacting its own rules. I submit that the newly elected council members like a newly elected slate of board of directors in any corporation enact may its own rules in ac- only but cordance with the rules or in statutes effect at the time they assume All office. amendments must with the rules comply governing amend- (See ments. Lyddon 217, Cain v. (1931), 391; 343 Ill. 175 N.E. City of Carbondale v. (1902), Wade 106 654.) Ill. “It is App. horn-book law that an ordinance of modified, a municipality may repealed, or amended only by action of like municipal dignity.” City DuMond v. 83, 89, 320, Mattoon 60 Ill. 2d 207 N.E.2d App.
A review of the journal proceedings fails to show motion to any amend or Rule 48. I repeal have been unable to find in the record of this case by city council on Rule 48. It is a fundamental legal principle that a legally adopted law or rule continues in effect until it repealed Therefore, or amended. the rules of in procedure 2, 1983, effect at the time of the dispute on a vote of May required Thus, two-thirds of council or repeal. members order to amend on 2, 1983, May the 29 aldermen conduct the simply proceeded city rules, council business against background existing includ- Rule 48. ing
Unlike the I do not what the majority, speculate city about might have intended or have done. It is not the function of this might but, rather, court engage existing to assure that the speculation rule, rules are followed. Rule 48 is an and the council is existing bound it. by
Since none of the resolutions at issue here was enacted legal Rule none has It majority required by validity. two-thirds for the to conclude that Rule 48 was bind- improper majority on where the of the rule neither a du- ing plaintiffs language implied rational limit nor termination. The majority’s automatic conclusion is on an of the continued of Rule 47 as well as assumption validity based legislative that Rule 48 terminates at the end of assumption why evaporate session. does some rules majority explain Nowhere good do not. There is legislative at the end of the session while others of the city this: exists. Either the rules explanation for no reason Either all the were bound parties council continue do not. of the or none was all rules bound. 7,1983, May Special Meeting Issue this the call for a appeal spe-
The next issue raised is whether 7, 1983, cial for May meeting purpose approving journal May was valid. On proceedings approved the of the council for April 2,May a vote of I plain- zero. have stated above tiffs the illegality did not and that prove adjournment adoption required Thus, resolutions a two-thirds actions vote. after the left plaintiffs taken are null chambers void, and the the call propriety no requires further discussion.
The VetoIssue
There is an interesting question *21 also raised about the authority to veto resolutions of the council. and intervenors state that since the resolutions result in will necessarily liability financial city, mayor power (Ill. has veto statutory Rev. 11—18). Stat. no Plaintiffs state that liabili- ties of kind are and any created the resolutions do not contain language that authorizes expenditures appropriations none were intended.
In my view of conclusion the resolutions lack legal validity the first it is place, both unnecessary inappropriate for this court to rule on the should validity mayor’s veto Neither powers. court indulge speculation without sufficient case or controversy and there is as to none that issue.
Conclusion
There can little doubt that this case is both politically and emo- situations, In tionally charged. such it is more than ever for necessary the court to concentrate its attention on legal basic methods of analy- sis and decision-making: who had the was it proof; burden sus- tained; are applicable being rules applied consistently equally. dissent, In this I have to focus attempted My analysis basics. leads me to the conclusion that the trial court has erred and hold- ings should be reversed.