JESSICA THOMAS, in Her Official Capacity as Auditor of the County of Peoria v. THE COUNTY OF PEORIA, a Body Politic and Corporate; ANDREW RAND, in His Official Capacity as Chairman of the Board of Peoria County; and JAMES FENNELL, in His Official Capacity as Vice-Chairman of the Board of Peoria County
NO. 4-22-1075
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
May 31, 2023
2023 IL App (4th) 221075
FILED May 31, 2023 Carla Bender 4th District Appellate Court, IL; Appeal from the Circuit Court of Peoria County No. 21MR992; Honorable James A. Mack, Judge Presiding.
Justices Cavanagh and Steigmann concurred in the judgment and opinion.
OPINION
¶ 1 Defendants—the County of Peoria; Andrew Rand, in his official capacity as Chairman of the Board of Peoria County; and James Fennell, in his official capacity as Vice-Chairman of the Board of Peoria County—appeal from the trial court‘s grant of a preliminary injunction to plaintiff—Jessica Thomas, in her official capacity as auditor of Peoria County. The preliminary injunction barred defendants from immediately abolishing the office of county auditor and requirеd defendants to maintain the status quo of the office until further order of the court. Defendants argue that (1) plaintiff lacks standing to obtain a preliminary injunction, (2) a balancing of the equities favors dissolution of the injunction, and (3) plaintiff cannot identify a clear duty on the part of defendants necessary to support mandamus relief. We reverse and remand based on our resolution of the first issue.
¶ 2 ¶ 3 Plaintiff was elected to a four-year term as auditor of Peoria County in the 2020 General Election. In November 2021, plaintiff, acting in her official capacity, filed a complaint for mandamus against defendants, alleging, in part, that various responsibilities had been reallocated away from her office during her tenure and that defendants intended to substantially reduce the funding to her office. Specifically, the complaint alleged that defendants, inter alia, transferred to the Finance Department the responsibility of filing certified payroll documentation with the Illinois Department of Lаbor. The complaint further alleged that defendants adopted a budget that would reduce funding for the auditor‘s office by 53.4% in fiscal year 2022. Accordingly, plaintiff sought, in part, (1) a preliminary injunction that would prohibit defendants from implementing the budget cuts and (2) a writ of mandamus requiring defendants to fund the auditor‘s office and to restore all duties to the office. Defendants subsequently filed their answer and affirmative defenses, which included a claim that plaintiff lacked standing because there was no injury to any legally cognizable interest.
¶ 4 At the November 8, 2022, General Election, while this case was pending, Peoria County voters approved a referendum question on the ballot that read:
“Shall Peoria County eliminate the internal Office of County Auditor when Peoria County already has an external Auditor as required by state law? This would be a cost savings of approximately $150,000 annually.”
On November 11, 2022, defendants informed plaintiff in a letter that the “Office of Auditor will be eliminated as of November 30, 2022, pursuant to the General Election Referendum.”
¶ 5 On November 16, 2022, plaintiff filed an emergency motion for leave to file a first amended complaint, which would add claims seeking (1) a declaratory judgment that defendants improperly sought to terminate the auditor‘s office before the conclusion of her elected term, (2) a preliminary injunction prohibiting defendants from failing to fund the auditor‘s office on November 30, 2022, and (3) a writ of mandamus requiring defendants to properly fund the auditor‘s office until the conclusion of her elected term in 2024. Plaintiff also filed an emergency motion for temporary restraining order to “[e]njoin Defendants from...ceasing funding of the office of the Auditor effective November 30, 2022 until further notice of the Court.”
¶ 6 The trial court held a hearing on plaintiff‘s emergency motions on November 17, 2022. During the hearing, the court granted plaintiff leave to file her first amended complaint. Plaintiff then argued—relying on Leck v. Michaelson, 111 Ill. 2d 523 (1986), and Lipinski v. Chicago Board of Election Commissioners, 114 Ill. 2d 95 (1986)—that the court should issue a temporary restraining order because the referendum was vague in that it did not include an effective date, and therefore, it was not self-executing. Thus, plaintiff argued that the referendum could not have shortened her term, as doing so would infringe her “ascertainable right in fulfilling her elected term as auditor.” Defendants responded that plaintiff failed to establish that she has a clearly ascertainable right, explaining that all interests plaintiff had to the office of auditor ceased once the voters passed the referendum eliminating that office. The court granted plaintiff‘s motion for a temporary restraining order, directing the County to “maintain the status quo of the Peoria County Auditor‘s Office until the hearing for preliminary injunction on November 28, 2022.”
¶ 8 The trial court granted plaintiff‘s motion for a preliminary injunction. In so ruling, the court determined that plaintiff had “an ascertainable right to the office she was elected to.” Additionally, the court noted that there was no adequate remedy at law because, if the office was prematurely abolished, “[y]ou can‘t gо back and award money that‘s going to compensate *** it.” The court found that, although the likelihood of success was the “closest of the four factors,” Leck and Lipinski tipped the analysis “slightly in plaintiff‘s favor.” Finally, in balancing the harms, the court noted that the harm in prematurely and improperly abolishing the auditor‘s office would be greater than the cost of maintaining the status quo.
¶ 9 On November 30, 2022, the trial court entered a written order providing that plaintiff‘s motion for a preliminary injunction was “granted fоr the reasons stated in open court.” The order “require[d] Defendants to maintain the status quo of the Peoria County Auditor‘s Office until further order of court.”
¶ 11 On December 9, 2022, defendants filed this interlocutory appeal challenging the trial court‘s grant of a preliminary injunction.
II. ANALYSIS
¶ 12 ¶ 13 On appeal, defendants argue that (1) plaintiff lacks standing to seek a preliminary injunction, (2) a balancing of the equities favors dissolution of the injunction, and (3) plaintiff cannot identify a clear duty on the part of defendants necessary to support mandamus relief (defendants also raised a res judicata claim in their opening brief but abandoned that claim in their reply brief). Plaintiff responds that she has standing to seek a preliminary injunction and that she established all requirements necessary to obtain one. Beсause defendants’ standing argument is dispositive of this appeal, we address only that issue.
¶ 14 “As the concept of standing relates to a preliminary injunction, it requires a plaintiff to establish that he has a clearly ascertainable right or interest which needs protection.” Village of Lake in the Hills v. Laidlaw Waste Systems, Inc., 143 Ill. App. 3d 285, 292 (1986). In general, the doctrine of standing makes it necessary for a party seeking relief to allege an injury in fact to a substantive interest he or she possesses, which is recognized by statute or common law. Village of Lake in the Hills, 143 Ill. App. 3d at 292. The dоctrine acts to ensure that courts are accessible to resolve actual controversies between parties and not address abstract questions, moot issues, or cases brought on behalf of others who might not desire judicial aid. Village of Lake in the Hills, 143 Ill. App. 3d at 292. “The claimed injury, whether actual or threatened, must be (1) distinct and palpable, (2) fairly traceable to the defendant‘s actions, and (3) substantially likely to be prevented
¶ 15 On appeal, defendants argue that plaintiff has no standing to seek an injunction because, having brought this action in her official capacity and not as a voting taxpayer, such standing must be grounded in a clearly ascertainable right to serve as county auditor and not grounded in protecting the rights of third-party voters. See Village of Lake in the Hills, 143 Ill. App. 3d at 292 (stating the doctrine of standing ensures courts do nоt address cases brought on behalf of others who may not desire judicial aid). Defendants also assert that plaintiff can establish no clearly ascertainable right to serve as county auditor because her “rights to the Office ceased” once the voters passed the referendum to eliminate the office. Because plaintiff no longer has any right to the office of county auditor, defendants argue, plaintiff faced no injury to any substantive interest when she sought a prеliminary injunction on November 23, 2022, and therefore, she lacks standing to obtain injunctive relief.
¶ 16 Plaintiff responds that defendants forfeited this argument because they “never challenged her standing to pursue her claims” in the trial court. Plaintiff further argues that, forfeiture aside, she does have standing to seek an injunction because she has an ascertainable right to finish her term of office free of interference from defendants. Specifically, plaintiff argues that, because the Peoria County voters elected her to a four-year term as auditor in 2020 and because the referendum “lacked any implementation instructions or temporal language sufficient to end
¶ 17 Initially, we reject plaintiff‘s assertion that defendants forfeited their argument that plaintiff lacks standing. A lack оf standing in a civil case is an affirmative defense that is forfeited if not raised in a timely fashion in the trial court. Bank of America, N.A. v. Adeyiga, 2014 IL App (1st) 131252, ¶ 61. Here, the record clearly establishes that defendants raised the issue of standing in the trial court. Defendants pleaded lack of standing as an affirmative defense in their answer to plaintiff‘s complaint for mandamus (and again in their answer to plaintiff‘s first amended complaint for mandamus), asserting that plaintiff could show no injury to a legally cognizable interest. See Rosestone Investments, LLC v. Garner, 2013 IL App (1st) 123422, ¶ 24 (“Once a plaintiff has filed a complaint, a defendant may raise the plaintiff‘s lack of standing as an affirmative defense.“) and Adeyiga, 2014 IL App (1st) 131252, ¶¶ 59, 63-64 (rejecting plaintiff‘s contention that defendants waived their argument that plaintiff lacked standing where the issue of standing was pled as an affirmative defense in answer). Then, at the hearings on plaintiff‘s motions for a temporary restraining order and a preliminary injunction, defendants extensively argued that plaintiff had no clearly ascertainable right or interest in serving as county auditor because the November 8, 2022, passage of the referendum eliminated that office. Accordingly, we conclude that defendants have preserved the issue of standing. Thus, we turn to the issue of whether plaintiff has standing to seek an injunction in this case.
¶ 18 Plaintiff argues that, although the voters approved the referendum eliminating the office of county auditor, she still has standing to pursue an injunction. Plaintiff asserts that, per Leck and Lipinski, her elected term as auditor could not have been shortened by referendum, absent
¶ 19 In Leck, the voters approved a referendum in April 1979 that read:
“Shall a run-off election be held for any candidates for public office in the Village of Lansing who do not receive fifty-percent (50%) of the votes cast for that office[?]” (Internal quotation marks omitted.) Leck, 111 Ill. 2d at 526.
In July 1979, the village passed an ordinance intending to “implement” the referendum, but the ordinance included several additions not contemplated by the referendum. Leck, 111 Ill. 2d at 526-27. These additions included (1) a third election that would take place after the party primary in February and the general election in April, (2) a limitation on the number of candidates eligible to run in a run-off to two individuals, and (3) a declaration that the winner of the runoff would be the candidate who received the highest number of votes. Leck, 111 Ill. 2d at 526-27. Our supreme court held that the referendum was vague and ambiguous. Leck, 111 Ill. 2d at 530. The court explained that article VII, section 6(f) of the Illinois Constitution empowers home rule units to
¶ 20 In Lipinski, the supreme court applied Leck to the following proposed referendum:
“Shall the mayor, the treasurer and the clerk of the City of Chicago be elected on a non-partisan ballot, by at lеast a 50% majority vote, but if no candidate receives at least 50% of the votes cast for the respective office, then in a run-off election between the two candidates for the office who received the greatest number of votes
for that office at the initial election?” (Internal quotation marks omitted.) Lipinski, 114 Ill. 2d at 97.
The court examined whether the referendum could stand on its own terms, was self-executing, or left gaps to be filled by the legislature or municipal body, such as would create uncertainty about what voters approved. Lipinski, 114 Ill. 2d at 99-100. The court concluded that the proposed referendum was invalid because it was fatally vague and ambiguous. Lipinski, 114 Ill. 2d at 103. The court explained that the proposition did not specify at which election it would take effect, and there would be no way to determine, if submitted to the voters, when the voters intended it to take effect. Lipinski, 114 Ill. 2d at 100. Additionally, the proposition “could create a constitutional problem,” as it wоuld (1) reduce the time for candidates to circulate their nominating petitions, (2) increase the number of signatures required to become a nonpartisan candidate, and (3) shorten the incumbent mayor‘s four-year term of office in violation of existing law. Lipinski, 114 Ill. 2d at 100-103; see also
¶ 21 Defendants argue that, unlike the referenda at issue in Leck and Lipinski, which created wide-ranging uncertainties regarding how to conduct upcoming elections and required interpretation and modification to be implemented, the referendum here was straightforward. We agree.
“Shall the terms of office for those persons elected to the office of Village President in the Village of Broadview, at the April 4, 2017 consolidated election, and at each election for said office thereafter, be limited such that no person shall be eligible to seek election to or hold the office of Village President where that person has been previously elected to the office of Village Prеsident of the Village of Broadview for two (2) consecutive full four (4) year terms[?]” (Internal quotation marks omitted.) Johnson, 2016 IL 121563, ¶ 10.
After the appellant filed an objection, the village electoral board voted to invalidate the referendum, believing it to be vague and ambiguous for failing to indicate whether it applied both retroactively and prospectively, thereby making it unable to stand on its own terms. Johnson, 2016 IL 121563, ¶ 3. The trial court reversed the board‘s decision, finding that the referendum was self-executing, not vаgue or ambiguous, and applied prospectively. The appellate court affirmed the trial court. Johnson, 2016 IL 121563, ¶ 4. On appeal to our supreme court, the appellant argued that Leck and Lipinski required referenda to include clear language identifying their temporal reach to avoid being vague and ambiguous. Johnson, 2016 IL 121563, ¶ 15. The appellant argued that the language of the referendum was vague and ambiguous because it did not state “when the ‘two (2) consecutive full four (4) year terms’ must start to trigger ineligibility ‘to seek election or hold the office of Village President.’ ” Johnson, 2016 IL 121563, ¶ 15. Our suprеme court rejected that argument and concluded that the referendum met the “basic standard” mandated by Leck and Lipinski. Johnson, 2016 IL 121563, ¶¶ 15, 18. The court explained that Leck and Lipinski “merely
¶ 23 Like Johnson, we reject plaintiff‘s argument that the referendum was invalid for lack of express “temporal language.” Article 7, section 4 of the Illinois Constitution provides, in relevant part, “[e]xcept as changed pursuant to this Section, elected county officers shall be elected for terms of four years at general elections as provided by law.”
¶ 24 As explained in Johnson, a referendum need only meet the “basic standard” set forth in Leck and Lipinski, which “merely mandate[s] that the language used avoids the pitfalls of vagueness and ambiguity by permitting a clear determination of what voters approvеd.” Johnson, 2016 IL 121563, ¶ 18. While including an express date indicating the temporal reach of the referendum may have made the referendum clearer, we do not believe this omission rendered the referendum invalid. Johnson, 2016 IL 121563; see also Jones v. Municipal Officers Electoral Board, 2021 IL 126974, ¶¶ 3, 14 (stating though the referendum at issue did not include express legal effective date, such legal effective date was November 24, 2020, when results of the referendum were certified). We conclude that, even without explicit temporal language, the referendum here, when read in its entirety, provided a clear determination of what voters approved—the immediate elimination of the office of county auditor in accordance with the voters’ power under article VII, section 4(c) because an external auditor already exists.
¶ 25 Because we conclude that the referendum was valid and eliminated the office of county auditor upon certification of the referendum result, we hold that plaintiff lost any right she had to the office. See Taylor v. County of St. Clair, 57 Ill. 2d 367, 374 (1974) (“Thе plain language of section 4(c) permits local referendum action relating to county offices without a correlative
III. CONCLUSION
¶ 26 ¶ 27 For the reasons stated, we reverse the trial court‘s order granting plaintiff‘s motion for preliminary injunction and remand with directions to dissolve the preliminary injunction.
¶ 28 Reversed and remanded with directions.
Decision Under Review: Appeal from the Circuit Court of Peoria County, No. 21-MR-992; the Hon. James A. Mack, Judge, presiding.
Attorneys for Appellants: James G. Sotos, Lisa M. Meador, Thomas J. Sotos, and Elizabeth R. Fleming, of The Sotos Law Firm, P.C., of Chicago, for appellants.
Attorneys for Appellee: Justin M. Penn and Stephen D. Mehr, of Hinshaw & Culbertson LLP, of Chicago, for appellee.