McHenry County Blog

That’s what this press release from Grafton Township Supervisor Linda Moore says:

Township Trustees to File 3rd Appeal

Township Trustees Gerry McMahon, Rob LaPorta, Betty Zirk, and Barbara Murphy voted at last week’s regular board meeting to take a third trip to the Appellate Court.

In 2009 they appealed the Ziller v. Rossi case injunction against building a new town hall and lost.

In 2011 they appealed a court order to appoint the township attorney and won.

Now, they are appealing the permanent injunction put in place last week by Judge Caldwell in the Moore v. Grafton Township court case.

The case was filed by the supervisor after the trustees illegally

• changed the locks on her office,
• prevented her from fulfilling her statutory duties and without authority,
• hired Village of Huntley Trustee Pam Fender to do the work of the township supervisor.

Caldwell also enjoined Attorney Krafthefer of Ancel-Glink from acting as the Township Attorney.

At the April 12, 2012 board meeting the trustees again refused to pay the bills from

• the township auditors, the CPA who prepares IRS filings
• a financial consultant
• a printing company
• the Huntley Police

Supervisor Moore said, “Because the money is in the budget and the bills are proper, it is their duty to pay these vendors.

“They cannot afford to waste the taxpayers’ money on more lawsuits so that these bills get paid.”

Two local officials have taken different paths when it comes to whether or not to appeal an Appellate Court decision that they don’t like to the Illinois Supreme Court.

Grafton Township Supervisor Linda Moore lost in the Appellate Court on whether she can appoint a township attorney without the approval of the Town Board, on which she has one out of five votes.

Her choice, John Nelson, the man who won virtually all the rest of Moore’s disputes with the Township Trustees, was approved by Circuit Judge Michael Caldwell, but his decision was overruled in the Elgin-based higher court.

It was not worth the money to find out whether her attorney’s arguments, rejected in Elgin, would resonate in Springfield at the Illinois Supreme Court.

In sharp contrast, Sheriff Keith Nygren is off to the Illinois Supreme Court in his continuing effort to keep former Deputy Sheriff Zane Seipler from going back to work.

Nygren didn’t just lose in Appellate Court (3-0), he lost in Circuit Court before Judge Thomas Meyer and before an arbitrator, who determined the facts in the case. Judge Meyer was acting on a administrative review brought by Nygren and the Judge ruled that the arbitrator’s decision was reasonable.

So, let’s compare and contrast.

Both Moore and Nygren are elected officials.

Moore won in Circuit Court and lost in the Appellate Court.

Nygren lost his case before

• an arbitrator
• a Circuit Court Judge and
• an Appellate Court panel of Justices.

Moore decided not to waste taxpayers’ money by appealing to the Illinois Supreme Court.

Nygren didn’t.

A petition arrived today from former DuPage County State’s Attorney Joe Birkett announcing his candidacy for the 2nd Illinois Appellate Court.

Birkett, who had run statewide at least twice, promises to uphold “the American ideal that

‘We are a nation of laws, not of men.’

I wonder if Birkett was a member of the Jaycees as I was as a young man.

That was my favorite line in the Jaycee Creed.

There is little doubt in my mind that Birkett will win election to the seat to which he was appointed by the Illinois Supreme Court last year.

Birkett was last mentioned in McHenry County Blog for his part in upholding Judge Thomas Meyer’s ruling of an arbitrator’s ruling that former McHenry County Deputy Sheriff Zane Seipler’s rehiring should occur.

On Friday, the 2nd Appellate Court in Elgin released its opinion agreeing with Associate Judge Thomas Meyer that the arbitrator in McHenry County Deputy Sheriff’s Zane Seipler’s firing was just.

McHenry County Blog printed a comprehensive story on the decision and even linked to the entire opinion.

To summarize, Deputy Jennifer Asplund got a 3-day suspension for doing something worse than and the Justices thought the arbitrator’s recommendation of re-hiring with similar discipline was appropriate.

So there have been Saturday and Sunday editions of the Northwest Herald, McHenry County’s newspaper of record, and the Daily Herald, which periodically dips into McHenry County, but no article about the decision has appeared.

Wonder why.

Earlier this week McHenry County Sheriff Keith Nygren won a Federal Appellate Court decision because the lawyer handing the case for the plaintiff wrote such a bad brief.

Today Nygren lost a State Appellate Court decision because his side of the case was so bad.

The last part of the decision written by Appellate Court Justice Michael Burke with Justices Mary Schostok and Joseph Birkett concurring tells the tale:

“We find the determination that there was no just cause to terminate Seipler and that the appropriate remedy was a three-day suspension fell within the authority granted to the arbitrator under the CBA as well as the explicit stipulation by the parties concerning the scope of the arbitrator’s authority.

“For the reasons stated, we affirm the decision of the circuit court of McHenry County.”

As a result Associate Judge Thomas Meyer’s decision ordering Nygren to re-instate Zane Seipler as a Deputy Sheriff, Nygren appealed the case.

In affirming the Circuit Court decision, the Appellate Court panel noted that Deputy Jennifer Asplund had done essentially the same thing Zane Seipler did, but had only received a three-day suspension.

The higher court noted that the arbitrator had made that recommendation.

The decision points out that “judicial review of an arbitral award is extremely limited,” because the statute’s intent was  “to provide finality for labor disputes submitted to arbitration…The Act contemplates judicial disturbance of an award only in instances of fraud, corruption, partiality, misconduct, mistake, or failure to submit the question to arbitration.”

““Thus, a court is duty bound to enforce a labor-arbitration award if the arbitrator acts within the scope of his or her authority and the award draws its essence from the parties’ collective-bargaining agreement,” the order notes in quoting a previous case.

Seipler’s Fraternal Order of Police attorney made that argument before Judge Meyer.

Nygren argued that “the arbitrator’s award reinstating Seipler to his position as a patrol deputy must be vacated because it violates the explicit public policy of employing law enforcement officers who must be held to high standards of honesty and credibility.”

The decision continues,

“Plaintiff argues that keeping Seipler on the force will impugn the reputation of the entire Department. Seipler and the Union respond that the arbitrator made a rational finding that Seipler is amenable to corrective discipline and that, therefore, the award reinstating Seipler does not violate public policy. “

A case supporting Nygren’s position is cited: “a court cannot enforce an arbitration award made pursuant to a collective bargaining agreement where the award violates public policy, but continues with a countervailing decision which said that “the public policy exception is an extremely narrow one and should “not otherwise sanction a broad judicial power to set aside arbitration awards.”

The legal authorities pointed out for the public  policy exception to be valid there are two steps that must be climbed:

1. identifying a well-defined and dominant public policy and
2. concluding the arbitrator’s award, as reflected in his or her interpretation of the agreement, violates public policy.

The Justices summarized the issue like this:

As stated by the trial court, “[t]his concept is so obvious that no further discussion as to the basis of the public policy is required.” The arbitrator also found that Seipler’s conduct violated department rules and that the misconduct warranted discipline. Thus, the only question here is whether reinstating Seipler violates public policy.

Commenting on the arbitrator’s decision, the court said,

“The arbitrator found that, during the four years Seipler worked for the Department, he was recognized for his work ethic, he was commended for being among the officers who wrote the most traffic tickets, and was not regarded as a poor worker or had a history of disciplinary problems. The arbitrator determined that a three-day suspension was warranted in lieu of discharge. Implicit in these findings is that Seipler was amenable to discipline.”

The reasoning continues:

“Plaintiff’s argument lacks credence when compared to the discipline imposed in Asplund’s case.

“Plaintiff’s suspension of Asplund for three days instead of following the recommended termination exemplifies plaintiff’s belief that the integrity and best interests of the Department were not compromised by allowing Asplund to remain a member of the Department.

“Moreover, we find plaintiff’s attempts to distinguish the present case from the Asplund case unavailing. Asplund wrote false tickets in violation of the same public policy at issue here.

“In fact, it is arguable that Asplund’s situation was more egregious than Seipler’s because Asplund’s explanation of the events was not credible; whereas Seipler acknowledged his violations.

“As pointed out by the trial court, ‘[w]hile [plaintiff] argued that Deputy Asplund issued citations to people who had actually violated the law, the fact remains that the citations that were issued were inappropriate and seemingly violations of the public policy that [plaintiff] now demands be strictly construed.’

“Given plaintiff’s treatment of the Asplund matter, we cannot accept plaintiff’s argument that public policy demands that Seipler be terminated.

“Accordingly, while perhaps we may have decided the case differently, we hold that the arbitrator’s award reinstating Seipler to his former position and that a three-day suspension was appropriate discipline, after implicitly concluding that he was amenable to discipline, does not violate any well-defined public policy.”

McHenry County Board Chairman Ken Koehler was anything but downbeat about the 2nd Appellate Court’s decision upholding Judge Gordon Graham’s payment of $250 per hour to the Special Prosecutors who unsuccessfully prosecuted McHenry County State’s Attorney Lou Bianchi.

“Obviously, we would have liked to have had it go our way,” Koehler told McHenry County Blog

“I can’t say I’m not disappointed, but this is just one of the procedural steps that you have to go through to get the end result,” he said.

He indicated that the Appellate Court decision had provided guidance to the attorneys representing McHenry County.

“The decision doesn’t address the substantive nature of the challenge.  It’s all procedural.”

Koehler said that he had a meeting scheduled with the Appellate Prosecutors Office next Friday about the case.

“This is far from over.”

Considering the Special Prosecutors appointed by Judge Gordon Graham have been spectacularly

• unsuccessful and
• expensive,

I thought folks might like to read the whole 2nd Appellate Court decision on McHenry County’s effort to rein in costs.  It is below.  I have put what seemed significant to me in bold face type.

The decision is a technical one which perhaps a lawyer or two will interpret for us laymen in the comment section.

2011 IL App (2d) 110399-U
No. 2—11—0399
Order filed August 9, 2011

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
________________________________________________________________

THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________

In re APPOINTMENT OF SPECIAL ) Appeal from the Circuit Court
PROSECUTOR, ) of McHenry County.
)
) No. 09—MR—142
)
(The County of McHenry, Petitioner-Appellant, ) Honorable
v. Henry C. Tonigan and Thomas K. McQueen, ) Gordon E. Graham,
Respondents-Appellees). ) Judge, Presiding.
________________________________________________________________
JUSTICE BOWMAN delivered the judgment of the court.
Presiding Justice Jorgensen and Justice McLaren concurred in the judgment.

ORDER

Held: We lacked jurisdiction over the trial court’s order awarding the special prosecutors their requested amount of attorney fees; therefore, we dismissed the appeal.

¶ 1 The County of McHenry (County) appeals the circuit court’s order requiring it to pay special
prosecutors Henry C. Tonigan and Thomas K. McQueen (Special Prosecutors) interim attorney fees.

The County argues that the trial court improperly granted fees beyond what is allowed under statute.

See 55 ILCS 5/3—9008 (West 2010). However, we agree with Special Prosecutors’ argument that we lack jurisdiction over this appeal, and we therefore dismiss it. 2011 IL App (2d) 110399-U
-
¶ 2 I. BACKGROUND

¶ 3 Special Prosecutors were appointed to investigate alleged misconduct by McHenry County
State’s Attorney Louis A. Bianchi and others in his office. Their appointment arose at the request of Amy Dalby, Bianchi’s former secretary, who was charged in 2009 with stealing documents from the State’s Attorney’s office. She alleged that Bianchi required her to perform extensive political activities during her working hours. On April 23, 2009, Dalby requested the appointment of a special prosecutor to investigate the State’s Attorney’s office, arguing that there would be a conflict of interest if a member of the State’s Attorney’s office had to investigate his or her own supervisors and coworkers for possible criminal wrongdoing.

¶ 4 On June 10, 2009, the County filed a petition to intervene for the limited purpose of
representing its financial interest, as the appointment of a special prosecutor would come at its
expense. The trial court granted the County’s motion on August 14, 2009. On September 4, 2009, the trial court entered an order allowing the State’s Attorneys Appellate Prosecutor’s office to represent the County.

¶ 5 On September 4, 2009, the trial court entered an order approving the appointment of a special prosecutor. On September 18, 2009, the trial court appointed Tonigan as a special prosecutor and McQueen as assistant to the special prosecutor. They were appointed to investigate Dalby’s allegations and prosecute if warranted. Special Prosecutors filed documents with the trial court on October 13, 2009, stating that they accepted the appointments “at the rate of $250 per billable hour.”

On February 1, August 1, and December 16, 2010, the trial court ordered the County to pay the
Special Prosecutors their requested fees for the relevant time periods billed. According to Special Prosecutors, the County paid the fees as ordered each time.

¶ 6 On February 16, 2011, the Appellate Prosecutor’s office filed a petition requesting
clarification of its role in representing the County. The petition stated that it was the office’s
understanding that its representation of the County concluded when Special Prosecutors were
appointed, but it had thereafter received notice of a motion for interim attorney fees. At a hearing on February 23, 2011, the trial court clarified that the Appellate Prosecutor’s office was still representing the County’s financial interests. The trial court stated the office had “dropped the ball” by not appearing at prior hearings on fee requests despite being properly noticed.

¶ 7 On March 2, 2011, Special Prosecutors filed a notice of a motion for interim fees for the time
period of September 1, 2010, to November 30, 2010. A hearing was held on the motion on March 14, 2011. Tonigan sought $21,789.74 for over 87 hours worked, and McQueen sought a total of $48,120.60 for over 131 hours of work, out of pocket expenses, and $10,000 that was erroneously excluded from an order for a prior, uncontested bill. The Special Prosecutors sought payment, as with previous bills, at a rate of $250 per hour.

¶ 8 The County, as represented by the Appellate Prosecutor’s office, stated that it did not want
to get into detail about the actual billing, but had “a position with regard to the bills in general.” The County cited the statute allowing the appointment of special prosecutors, which states in relevant part:

¶ 9 “Any attorney appointed for any reason under this Section shall possess all the powers and
discharge all the duties of a regularly elected State’s attorney under the laws of the State to
the extent necessary to fulfill the purpose of such appointment, and shall be paid by the
county he serves not to exceed in any one period of 12 months, for the reasonable amount
of time actually expended in carrying out the purpose of such appointment, the same
compensation as provided by law for the State’s attorney of the county, apportioned, in the case of lesser amounts of compensation, as to the time of service reasonably and actually expended.” (Emphasis added.) 55 ILCS 5/3—9008 (West 2010).

The County asked that the trial court apply the statute, which required that the fees be “apportioned” appropriately. The County stated that there was no case law analyzing the term “apportioned.”  When the trial court responded that the County was not providing it with “much help,” the County stated that it was not giving the trial court “much help other than to indicate that there is a cap of about $166,500 that needs to be apportioned based upon the amount of time actually spent.” The County agreed that the limit applied to an annual basis. The trial court stated that the special prosecutors were not near the limit for the State’s Attorney’s salary on an annual basis, and it entered an order requiring the County to pay the fees.

¶ 10 On April 1, 2011, the County filed a motion to reconsider the March 14, 2011, award of
attorney fees. The County argued that the fees were not “apportioned” as required by statute. A
hearing on the motion to reconsider took place on April 14, 2011. At the hearing, the County argued that section 3—9008 required that the compensation for the special prosecutor be apportioned based upon the State’s Attorney’s salary. The County argued that the use of the word “apportioned” contemplated a pro rata determination based on the time actually expended, rather than just that the total bills be under the yearly salary. The County argued that the $166,508 salary should be divided by 52 weeks, then by 35 hours per week, resulting in a figure of $91.50 per hour. The County alternatively argued that the fees should be awarded based on a percentage of time the special prosecutors billed based on a workweek of seven hours per day.

¶ 11 In response, Special Prosecutors cited People ex rel. Barrett v. Board of Commissioners of Cook County, 11 Ill. App. 3d 666, 669 (1973), which held that for special prosecutors appointed for reasons other than a vacancy, the award of fees was within the trial court’s discretion. The County countered that the Barrett court properly applied to the statute in effect at the time of that decision, but the statute had since been amended and required apportionment for all special prosecutors. The trial court denied the County’s motion to reconsider, stating that it was relying on Barrett and that the County had failed to make its current apportionment argument at the March 2011 hearing.

¶ 12 The County filed a notice of interlocutory appeal on April 25, 2011, and an amended notice
on May 12, 2011.

¶ 13 II. ANALYSIS

¶ 14 On appeal, the County argues that the trial court misinterpreted section 3—9008 by refusing to limit and apportion Special Prosecutors’ compensation. However, Special Prosecutors argue that we lack jurisdiction over this appeal. The County contends that we have jurisdiction pursuant to Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010), which allows for an appeal from an “interlocutory order” of the trial court “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” Special Prosecutors argue that the order appealed from was not an injunction within the meaning of the rule, and even if it were, the rule applies only to temporary restraining orders or preliminary injunctions, while the fee order at issue here was neither.

¶ 15 The “ ‘purpose of an interlocutory injunction is to preserve the rights of some one or more
of the parties and continue the property and the rights therein in statu quo until the cause can be disposed of on the merits.’ ” In re Estate of French, 166 Ill. 2d 95, 99 (1995), quoting Almon v. American Carloading Corp., 380 Ill. 524, 529 (1942). In determining whether an order may be appealed under Rule 307(a)(1), we look to the substance of the order rather than its form. In re A Minor, 127 Ill. 2d 247, 260 (1989).

¶ 16 The term “injunction” is defined as a “ ‘judicial process operating in personam and requiring [a] person to whom it is directed to do or refrain from doing a particular thing’ ” (id. at 261, quoting Black’s Law Dictionary 705 (5th ed. 1983)) or “ ‘a judicial process, by which a party is required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the writ, the most common sort of which operate as a restraint upon the party in the exercise of his real or supposed rights’ ” (id., quoting Wangelin v. Goe, 50 Ill. 459, 463 (1869)). We construe the meaning of the term “injunction” in Rule 307(a)(1) broadly. Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 221 (2000). Still, not all nonfinal court orders compelling a party to do or not do a particular thing are appealable, as orders that regulate the procedural details of litigation cannot be appealed as an interlocutory order. In re A Minor, 127 Ill. 2d at 262. Such orders are not considered injunctive because they are part of the court’s inherent power to compel witnesses to give testimony rather than part of the power traditionally reserved for courts of equity. Id.; see also In re Marriage of Tetzlaff, 304 Ill. App. 3d 1030, 1038 (1999) (order requiring firm to put portion of interim attorney fees into an escrow account was not an injunction or order modifying an injunction, but rather a modification of the court’s previous interim attorney fee award).

¶ 17 In addition to the requirement that an order be injunctive, Rule 307(a)(1) applies only to
orders that are interlocutory, rather than permanent, in nature. Santella v. Kolton, 393 Ill. App. 3d 889, 903 (2009). “Rule 307(a)(1) applies only to interlocutory injunction orders that merely preserve the status quo pending a decision on the merits, conclude no rights, and are limited in duration, in no case extending beyond the conclusion of the action.” Id. Conversely, Rule 307(a)(1) does not apply to permanent orders, which are not limited in duration and change the status quo. Id.; see also Skolnick, 191 Ill. 2d at 222 (a permanent injunction is a final order appealable only under Supreme Court Rules 301 or 304). “Status quo” is defined as “ ‘the last actual, peaceable, uncontested status which [preceded] the pending controversy.’ ” Steel City Bank v. Village of Orland Hills, 224 Ill. App. 3d 412, 417 (1991), quoting Martin v. Eggert, 174 Ill. App. 3d 71, 77 (1988).

¶ 18 Special Prosecutors argue that the trial court’s order here was not an injunction within the meaning of Rule 307(a)(1) because it does not enjoin or restrain the County from any action or provide an equitable remedy to right a wrong, but instead merely approves the Special Prosecutors’ requested compensation and orders its payment. Special Prosecutors further argue that, even if the order is construed as an injunction, it is not appealable under Rule 307(a)(1) because it concludes their right to compensation for the time period covered by their fee request, and it does not purport to preserve the status quo pending a decision on the merits of the fee request for that period.

¶ 19 Special Prosecutors cite Puleo v. McGladrey & Pullen, 315 Ill. App. 3d 1041 (2000). There,
the trial court ordered the plaintiff to deposit insurance proceeds with the court in an interest-bearing account while the issue of damages was relitigated. Id. at 1043. The appellate court held that it did not have jurisdiction under Rule 307(a)(1) because the trial court’s order was a permanent injunction; the order affirmatively required the plaintiff to tender the funds to the court and therefore altered, rather than preserved, the status quo. Id. at 1045.

¶ 20 Special Prosecutors also cite Santella. In that case, the trial court ordered that the defendants pay back to their corporation commissions they had received. Santella, 393 Ill. App. 3d at 899. The reviewing court held that the defendants could not appeal the order under Rule 307(a)(1) because the order was permanent in nature, in that it altered the status quo, concluded the parties’ rights, and was not limited in duration. Id. at 903; see also Steel City Bank, 224 Ill. App. 3d at 417-18 (order requiring Village to issue building and occupancy permits was a permanent mandatory injunction which could not be appealed under Rule 307(a)(1)); In re Marriage of Schweihs, 272 Ill. App. 3d 653, 662 (1995) (order directing the disposition of an asset in a manner that changed the status quo was not appealable under Rule 307(a)(1)).

¶ 21 The County argues that the status quo fee arrangement here allowed Special Prosecutors to
accrue $250 per billable hour. According to the County, the billed amounts of money purportedly belonged to Special Prosecutors as they accrued their billable hours, rather than to the County. Therefore, the trial court’s order represented an equitable, injunctive remedy of requiring the return of property to its putative owners pending final resolution of their claim. The County further maintains that under the trial court’s interpretation of section 3—9008, Special Prosecutors were limited to the McHenry County State’s Attorney’s annual salary of $166,500 in any rolling, 12-month period. The County argues that the trial court could not have concluded Special Prosecutors’ statutory rights to compensation while compliance with the purported 12-month cap necessarily remained uncertain.

¶ 22 Assuming, arguendo, that the fee award was injunctive in nature, we still agree with Special
Prosecutors that the order was not interlocutory, so it is not subject to review under Rule 307(a)(1). As stated, Rule 307(a)(1) applies only to orders that preserve the status quo pending a decision on the merits, conclude no rights, and are limited in duration. Santella, 393 Ill. App. 3d at 903. The order here did not preserve the status quo of Special Prosecutors not yet having been paid for the period of September 1, 2010, to November 30, 2010. Instead, the trial court determined on the merits that Special Prosecutors had a right to be paid for their hours billed for that time period at a rate of $250 per hour, and it ordered that the County pay the fees. Further, compliance with the alleged 12-month cap does not mean that the trial court did not determine Special Prosecutors’ right to the money on the merits, as the trial court could still decrease the amount awarded on future fee petitions within the 12-month time frame that would otherwise exceed the cap.

¶ 23 In sum, the fee award altered the status quo, concluded Special Prosecutors’ rights to the fees billed for the relevant time period, and was not limited in duration, so it may not be appealed under Rule 307(a)(1). The County does not argue any alternative basis for jurisdiction, nor is one apparent. Foot Note 1 Accordingly, we must dismiss the appeal for lack of jurisdiction.

= = = = =
Foot Note 1 Supreme Court Rule 301 (eff. Feb. 1, 1994) allows appeal from a final judgment that absolutely and finally fixes the parties’ rights so that, if affirmed, the trial court only has to proceed with executing the judgment. In re M.M., 337 Ill. App. 3d 764, 771 (2003). Here, Rule 301 does not apply because the Special Prosecutors’ work on this case was ongoing at the time of the fee award appealed from. Supreme Court Rule 304(a) (eff. Feb. 26, 2010) allows for the appeal of a final judgment that disposes of one or more but fewer than all of the parties or claims, but it requires an express written finding by the trial court that there is no just reason for delaying enforcement or appeal of the order, which was not present here.

= = = = =

¶ 24 III. CONCLUSION

¶ 25 For the reasons stated, we dismiss the County’s appeal for lack of jurisdiction.

¶ 26 Appeal dismissed.

Almost eleven months ago, McHenry County Deputy Sheriff Robert Schlinkert won an Appellate Court decision putting him back to work.

The decision came just three days after oral arguments indicating the justices thought Schlinkert had a pretty good case.

Periodically, I ask whether Schlinkert has been paid his back pay and anything else winning such a case would entitle him to.

The latest answer, from McHenry County Administration FOIA Officer John Labaj, follows:

“As of today, there has been no settlement with Mr. Schlinkert. The FOP attorney Mr. Jerry Bailey and County attorney Mr. John Kelly are still in negotiations regarding the settlement agreement.”

The county’s legal bill as of last April was $17,000.

It has happened time and time again.

Uppity voters prevent elected officials from doing something they dearly desire.

Or uppity voters punish elected officials and those officials don’t like it.

What do the elected officials do?

They ask their state legislators to ask for the law to be changed so they can get their way, so they can thwart the will of the voters.

I first saw it happen my friend Forrest Hare was Algonquin Township Assessor.   It was about 1971.

To set the stage, way back then, township government was the closest thing to direct democracy around. The people attending the annual town meeting actual set the budget.

Uppity township electors (that’s the fancy name for registered voters who attend township meetings) in Algonquin Township did the unthinkable. Hare’s allies directed the township board to do something the majority most definitely did not want to do. They put $500 in the budget (a large amount at the time) to sue McHenry County for discriminating against Algonquin Township taxpayers in the issuing of township multipliers. Algonquin Township property was assessed higher than property in other McHenry County townships.

In neighboring Nunda Township, uppity township electors from Porten’s Subdivision packed the meeting. They were really quite upset that the Nunda Township Road Commissioner would not repair their private subdivision roads.

Well, duh, they were private.

Regardless, that explanation did not wash, because the homeowners knew they were paying township road taxes.

In retaliation for the lack of road assistance, the town meeting’s electors replaced each line item in the township road commissioner’s budget with $1.

That pretty much killed the township road program for the coming year.

So, what did the township officials do?

They went to their statewide lobbying organization, the Township Officials of Illinois, and asked that the power to set the budget be taken away from voters who had gotten uppity.

I’m not sure, but I think that may have been the time when the title of the office of “Township Auditor” became “Township Trustee.”

So much for any legitimate claim that Illinois township government as a “direct democracy.”

One of the few remaining rights of township voters have is to approve borrowing for new township halls at a referendum.

This power was exercised with a vengeance the night of April 13th at the Huntley High School Gym. Over 700 residents showed up in person, proved they were registered voters and told the township trustees that they disagreed with their continuing efforts to build a new township hall or buy and remodel an old factory.

That effort by the township trustees came after Judge Michael Caldwell ruled that their efforts to build a township hall with money not approved by the voters was unlawful.   And after the 2nd Appellate Court upheld Judge Caldwell.

Despite the tidal wave of opposition to building a new township hall in Grafton Township expressed at the Annual Town Meeting April 13th, State Senator Pam Althoff and State Representatives Mike Tryon and Mark Beaubien voted to allow township boards to to lease a township hall or senior center without referendum with funds that are not the proceeds of specified bonds.

Senate Bill 3010.

The bill was introduced before Judge Caldwell’s court decision. It’s sponsored by Bremen Township Supervisor and State Senator Maggie Crotty, a township supervisor, and State Reps. Dan Brady, Kevin McCarthy and Al Riley.

Wouldn’t you think that having seen such an outpouring of public sentiment and with a $3 million township hall referendum on the fall ballot that the state legislators who represent Grafton Township would have voted against such a bill…even if they were allies of the losing side at the township’s Annual Meeting?

Later this week, the township trustees will be in court trying to get Judge Michael Caldwell to kick Township Supervisor Linda Moore out of office.  They filed such a motion in response to her Separation of Powers suit.

Here’s the relevant language of the bill:

“Notwithstanding any provision of this Section to the contrary, any township may, by ordinance or resolution, build, purchase, or lease a township hall, a multi-purpose senior center, or a combined township hall and multi-purpose senior center within the township without referendum approval, if the building, purchasing, or leasing of the township hall, multi-purpose senior center, or combined township hall and multi-purpose senior center is paid or provided for with funds that are not the proceeds of bonds authorized under this Article.”

In the Senate the bill passed 39-4 on March 12th. Two months ago.

State Senator Pam Althoff, who represents Grafton Township, voted, “Aye.”

The Roll of Honor of those voting against was small. Just four members:

• Tim Bivins (R)
• Brad Burzynski (R)
• Gary Dahl (R)
• Dan Duffy (R, representing eastern McHenry County)

16 state senators didn’t even bother to vote. Were they confused or just didn’t want to get on the wrong side of their local township officials?

Last Wednesday, the bill was on Short Debate in the House. Under that order of business only two people from both sides could speak.

It would not have mattered anyway.

The skids were greased.

98 voted in favor, 19 opposed.

I’ll list the friends of the taxpayers who voted against the bill:

• John Cavaletto (R)
• Linda Chapa LaVia (D)
• Fred Crespo (D)
• Shane Cultra (R)
• Anthony DeLuca (D)
• Keith Farnham (D)
• Robert Flider (D)
• Jack Franks (D of McHenry County)
• Paul Froehlich (D)
• Careen Gordon (D)
• Jehan Gordon (D)
• Emily McAsey (D)
• David Reis (R)
• Darlene Senger (R)
• Carol Sente (D)
• Keith Sommer (D)
• Andre Thapedi (D)
• Mark Walker (D)
• Jim Watson (R)

So, much for Republicans being for having referendums before taxes are hiked.

I think it’s pretty much a foregone conclusion that Governor Pat Quinn will sign the bill. He has not stood up for the “pee-e-e-ple” in a pretty long time…maybe since becoming governor.

Can’t you hear the township trustees soon saying,

“Referendum? We don’t need no stinking referendum!”

We have been looking at the details in the Ancel Glink invoice to Grafton Township for the month of March, 2010. So far, we have finished what Ancel Glink calls the

• “Corporate” and
• “Linda Moore v. Grafton Township”

portions of the bill.

Now, we move into the only one-page section, which is entitled, “Daniel G. Ziller, Jr. et al. v. Gerry McMahon, et al.

Monday, March 15th, Keri-Lyn Krafthefer “prepare(s) for court appearance” and “confers with Jim Kelly regarding same” for an hour. Kelly was the township’s attorney before he was replaced with Joe Gottemoller, who resigned after dealing with the situation over last summer.

(See What Grafton Township’s Just Resigned Attorney Sees as Looming Legal Issues and

Resigning Grafton Township Attorney Accuses Board of Being More Interested in “Being Right” than “Doing What’s Right” and

Take This Job and Shove It , all three articles about Gottemoller’s resignation and the township’s unresolved legal problems.)

March 16th Krafthefer billed the township for three hours for “prepar(ing) for and attend(ing) court appearance before Judge (Michael) Caldwell, review(ing) the proposed order and meet(ing) with attorney Kelly.”

March 17th the Township Attorney spends a quarter of an hour reviewing the proposed draft order with Kelly.

March 18th another quarter hour is billed “review(ing) and respond(ing) to correspondence regarding implication of court order.” No indication is given as to whom the letter or email is sent.

March 23rd drew another quarter of an hour bill for “review(ing) correspondence from Jim Kelly” and “review(ing) the court order entered in the Ziller case regarding injunction.”

Total cost to Grafton Township taxpayers for the five hours on the invoice?

$925.

Crystal Lake attorney Jim Bishop won the case for those opposed to building a new $5 million (when interest is included) Grafton Township Hall.

First, he won before Judge Michael Caldwell in Circuit Court.

Then, when the Trustees tried to do an end run by providing full notice at a township board meeting, Bishop own again. The judge informed their attorney that he meant they could try again at an Annual Town Meeting, which, of course, they just did and failed miserably.

The Township Trustees did not give up, appealing Caldwell’s decision to the 2nd Appellate Court. Bishop won a third time.

Other relevant articles include

The Skunk, the Meerkats and the Elephant – Part 1

The Skunk, the Meerkats and the Elephant – Part 2

The Skunk, the Meerkats and the Elephant – Part 3

There is still a court-order referendum on whether to build a township hall to be held at the November elections.  I know of no one who thinks it has a chance of passing…especially after the over 700 verified registered voter turn out at the Annual Town Meeting.

All efforts by the current Township Trustees to resurrect the question of new offices, including purchasing an old, empty factory found by Township Administrator Pam Fender were trounced.

That, however, did not seem to discourage the Trustees.  The very next day, they filed court papers intended to bounce Linda Moore from office.

All of this infighting among officials elected as Republicans leads me to believe Democrats will control Grafton Township government after the 2013 elections.