People ex rel. Alvarez v. Price

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 1st District Appellate » 2011 » People ex rel. Alvarez v. Price

State: Illinois

Court: 1st District Appellate

Docket No: 1-10-2900 NRel

Case Date: 03/16/2011

Preview:FIRST JUDICIAL DISTRICT THIRD DIVISION March 16, 2011

No. 1-10-2900 ) ) ) ) ) ) ) ) ) ) ) APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY

THE PEOPLE ex rel. ANITA ALVAREZ, State's Attorney of Cook County, Plaintiff-Appellee, v.

No. 10 CH 9953

KEITH PRICE, Defendant-Appellant.

HONORABLE MARK A. BALLARD, JUDGE PRESIDING.

JUSTICE STEELE delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Neville concurred in the judgment and opinion. OPINION Defendant Keith Price appeals an order of the circuit court of Cook County granting summary judgment to the plaintiff People of the State of Illinois on its quo warranto complaint, ousting Price from three public offices. Price argues that the circuit court erred in: (1) granting summary judgment on the State's amended complaint; (2) granting the State leave to intervene; and (3) denying Price's motion to dismiss under section 2-615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2008)). We conclude: (1) the conflicting duties of Price's offices render those offices incompatible; (2) the circuit court properly granted leave to intervene; and (3) the pleading requirements for quo warranto are such that the circuit court properly refused to dismiss the State's amended complaint. Accordingly, we affirm.1
1

John Doe and Brenda L. Thompson were previously plaintiffs in this case, but they were

dismissed by the circuit court and are not parties to this appeal.

1-10-2900

BACKGROUND The record on appeal discloses the following facts. In May 2007, Price assumed the offices of alderman for the sixth ward of Harvey, Illinois, board member of Harvey School District 152, and commissioner of the Harvey Park District, each of which has an elected four-year term. In May 2009, Price assumed the office of Harvey library district board member, which has an elected six-year term. On March 10, 2010, John Doe, as a Harvey resident and taxpayer, filed a petition sounding in quo warranto. Doe sought Price's removal from the office of park district commissioner, claiming that the office was incompatible with Price's position as an alderman. On April 1, 2010, with leave of court, Doe filed an amended quo warranto petition, adding Brenda L. Thompson, another Harvey resident and taxpayer, as a petitioner. On April 13, 2010, the State petitioned the circuit court for leave to intervene and file an amended complaint. The State argued that Doe filed his petition without requesting that the State's Attorney or Attorney General bring suit, or obtaining their refusal to sue, as required by Illinois law. See 735 ILCS 5/18-102 (West 2008). The State also noted that Doe failed to bring the action in the name of the State, as required by Illinois law. See 735 ILCS 5/18-103 (West 2008). Accordingly, the State sought leave to intervene as a matter of right and file an amended complaint to correct the deficiencies in Doe's filings. On April 14, 2010, Price filed his appearance and a motion to dismiss Doe's petition pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2008)), arguing that Doe and -2-

1-10-2900 Thompson had failed to request the State's Attorney or Attorney General to bring suit, or to obtain their refusal to sue. On May 24, 2010, following a hearing and argument from the parties on the matter, the circuit court entered an order: (1) granting the State's petition for leave to intervene and file an amended complaint; and (2) dismissing Doe's complaint with prejudice. The State filed its amended complaint the same day. On June 21, 2010, Price filed a motion to dismiss the State's complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2008)), arguing that the State failed to properly allege that his offices were incompatible. On June 28, 2010, the circuit court denied Price's motion to dismiss. On July 29, 2010, Price filed an answer and affirmative defenses to the State's complaint, denying any incompatibility in his offices and claiming the action was barred by equitable estoppel and laches. The same day, the State filed a motion for summary judgment on its amended complaint, seeking to oust Price from his offices as alderman, school board member and park district commissioner. The State argued that the offices of alderman and school board member are incompatible because: (1) a city council may allocate revenue-sharing funds to a school district, while a school board member has the duty to provide revenue to maintain the schools; and (2) a city and school district may contract with each other for property transactions, traffic regulation and fire protection. The State then argued that the offices of alderman and park district commissioner are incompatible because a city and park district may engage in a variety of real estate transactions, including joint and cooperative arrangements. Lastly, the State then argued -3-

1-10-2900 that the offices of park district commissioner and library district board member are incompatible, again because the two entities may be involved in real estate transactions and projects, particularly in light of the Libraries in Parks Act (75 ILCS 65/1 et seq. (West 2008)). On September 1, 2010, Price filed his response to the motion for summary judgment. Price argued that the State failed to allege any facts showing any incompatibility of his offices, or to identify any specific recusal, action or inaction on his part demonstrating an incompatibility of offices. Price also argued that there was no division of loyalty on his part because all of his offices served the citizens of Harvey. On September 24, 2010, following a hearing and argument on the matter, the circuit court granted the State's motion for summary judgment, ousting Price from his offices as alderman, school board member and park district commissioner. On September 28, 2010, Price filed a timely notice of appeal to this court. DISCUSSION On appeal, Price argues that the circuit court erred in (1) granting summary judgment on the State's amended complaint, (2) granting the State leave to intervene, and (3) denying Price's section 2-615 motion to dismiss. We address Price's arguments in turn. I. The Summary Judgment Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2008). In a proper case, a quo warranto action may be decided by summary judgment. -4-

1-10-2900 See People ex rel. Smith v. Brown, 356 Ill. App. 3d 1096, 1101-02, 828 N.E.2d 306, 310-11 (2005). Appellate review of a summary judgment is de novo. Arangold Corp. v. Zehnder, 204 Ill. 2d 142, 146, 787 N.E.2d 786, 789 (2003). The primary question is whether Price's offices were incompatible. Public offices are considered incompatible when "the written law of a state specifically prohibits the occupant of either one of the offices in question from holding the other and, also, where the duties of either office are such that the holder of the office cannot in every instance, properly and fully, faithfully perform all the duties of the other office." (Internal quotation marks omitted.) People v. Claar, 293 Ill. App. 3d 211, 215, 687 N.E.2d 557, 560 (1997) (quoting People ex rel. Myers v. Haas, 145 Ill. App. 283, 286 (1908)). As this court explained in Claar: "Incompatibility [of offices] is said to be found in the character of the offices and their relation to each other, in the subordination of the one to the other, and in the nature of the duties and functions which attach to them. In this regard, it has been said that, in determining whether incompatibility exists, the test is incompatibility in the functions or duties of office rather than a mere possibility of a conflict of interest. Offices are generally considered incompatible where such duties and functions are inherently inconsistent and repugnant, so that because of the contrariety and antagonism which would result from the attempt of one person to discharge faithfully, impartially, and efficiently the duties of both offices, considerations of public policy render it improper for an incumbent to retain both." (Internal quotation marks omitted.) Claar, 293 Ill. App. 3d at 216-17, 687 N.E.2d at 560-61 (1997) (quoting 63C Am. Jur. 2d Public Officers and Employees

Download People ex rel. Alvarez v. Price.pdf