“Do we have to lose every time?” asked Donna McMahon of the Grafton Township Trustees’ counsel Thomas DiCianni, as those in the courtroom awaiting the arrival of Supervisor Linda Moore’s Rockford attorney John Nelson.
“You’ve won more than you’ve lost,” DiCianni replied to Township Trustee Gerry McMahon’s wife.
“If you win, you get something,” she continued. “If we’ve won, how come things keep getting worse?”
Hearing Judge Michael Caldwell order the Trustees to approve Moore’s personal attorney as Grafton Township Attorney at the Board’s next meeting may have reinforced McMahon’s opinion regarding how the long-running and costly case is going.
Nelson argued he should be appointed by the Judge because “I don’t believe these parties will ever come to an agreement on a township attorney.”
DiCianni argued that this part of the case was about separation of powers, contending the Township Trustees were equivalent to the United States Congress, which has to confirm the appointment of the President’s cabinet secretaries.
The Trustees’ attorney did not question Nelson’s competence, but said the township attorney “should be providing opinions everyone would have confidence in,” that Nelson could not be that person because he viewed the situation from “the eyes of an advocate rather than a dispassionate advisor of the entire Board.”
“When somebody’s an advocate for one party or another…it takes a tremendous amount of effort to be objective.”
Former Grafton Township Attorney Joe Gottemoller, who just happened to be in the courtroom on another case, listened intently to the arguments. (Read his advice of two years ago, here.)
In his rejoinder, Nelson said,
“I think its a fair argument that the Grafton Township Board is a far cry from the United States Congress. The Supervisor is on the Board.”
He argued that Judge Caldwell did have “the authority to resolve disputes of this matter” concerning the confirmation statute.
Then Nelson pointed out that DiCianni’s firm Ancel Glink was in the same situation when Keri-Lyn Krafthefer was Grafton Township Attorney. Caldwell dismissed her as Township Attorney.
In short, if Ancel Glink could fulfill both roles, so could Nelson.
Nelson argued that the Supervisor must have confidence in the Township Attorney and that not having a Township Attorney had “really hamstrung the township.”
Judge Caldwell’s reaction was to say that he was “sympathetic with the separation of powers” argument, but thought the analogy was “overly broad because we’re dealing here with township government, not the United States government.”
He said he was “sensitive to the argument that courts should not (intervene, but) I didn’t run for Circuit Judge for the purpose of being a Township Supervisor or Township Trustee.
“However, I do have the power to enjoin what I believe is a continuing (dispute).
“I believe the failure of the Trustees (to approve Nelson’s appointment, that it was) rejected as a pretext for continuing this dispute. I order them to approve (the appointment).”
The judge explained that when he was Woodstock City Attorney he had a reputation for telling the councilmen “things they didn’t want to hear.”
He indicated that he thought Nelson could do the same.
“I want the trustees mentioned by name in any order so (they can be) held in contempt (if they don’t follow my instructions).”
“I ask for a stay pending an appeal,” the Trustees’ attorney replied.
“It’s not right,” Caldwell said, but, after a bit of reflection, said, “I will stay the order for thirty days.”
After DiCianni drafted an order in the hall and showed it to Nelson, the two appeared before Judge Caldwell again.
Nelson pointed out that, as drafted the court order was a “negative injunction.”
“They are ordered to approve (Nelson as Township Attorney),” the Judge said.
Then, in a moment of levity, he observed,
“And the beat goes on.”
That broke me up, after which I apologized.
In the hall Nelson’s reaction like this:
“Obviously, we agree with Judge Caldwell’s decision. As we argued to the Court, Attorney Nelson’s representation of the Town of Grafton is no different than opposing counsel’s representation of Grafton Township during the pendency of the case.
“While the Trustees have every right to appeal the decision of Judge Caldwell, the appeal will prove very expensive to the taxpayers of Grafton Township.”
The order was stayed until after the appeal is completed.
I asked Trustees Betty Zirk and Barb Murphy what progress there was concerning selecting an auditor.
“We’re working on the audit,” Murphy replied. Zirk indicated it would be discussed at the Thursday, May 14th Board meeting.
Dismissed was a motion that would have prohibited the Ancel Glink law firm from representing Grafton Township, an expansion from banning Krafthefer after another attorney offered apparently free advice to the Trustees about the rejection of citizen-petitioned subjects for the Annual Town Meeting.
Also apparently decided was that Moore’s pre-litigation attorney Richard Cowan will be paid $3,400 at the next Board meeting. Cowan originally billed $5,060.