IN THE CIRCUIT COURT OF ILLINOIS FOR THE EIGHTEENTH JUDICIAL CIRCUIT DU PAGE COUNTY, ILLINOIS. Case No.: 2016 MR DEFENDANT S MOTION TO DISMISS

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IN THE CIRCUIT COURT OF ILLINOIS FOR THE EIGHTEENTH JUDICIAL CIRCUIT DU PAGE COUNTY, ILLINOIS TRANS# : 3968210 2016MR001670 FILEDATE : 02/03/2017 Date Submitted : 02/03/2017 11:35 AM Date Accepted :

COMMUNITY CONSOLIDATED SCHOOL DISTRICT NUMBER 181, DUPAGE AND COOK COUNTY, ILLINOIS, an Illinois quasi-municipal corporation and body politic, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.

1 IN THE CIRCUIT COURT OF ILLINOIS FOR THE EIGHTEENTH JUDICIAL CIRCUIT DU PAGE COUNTY, ILLINOIS TRANS# : MR FILEDATE : 02/03/2017 Date Submitted : 02/03/ :35 AM Date Accepted : 02/03/ :51 PM MARIA MARTINEZ ANDREW SCHMIDT, KIRSTEN SCHMIDT, KAREN WEBER, BRADFORD TOCHER and EDWARD CORCORAN, Plaintiffs, v. COMMUNITY CONSOLIDATED SCHOOL DISTRICT NUMBER 181, DUPAGE AND COOK COUNTY, ILLINOIS, an Illinois quasi-municipal corporation and body politic, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 2016 MR DEFENDANT S MOTION TO DISMISS NOW COMES Defendant, COMMUNITY CONSOLIDATED SCHOOL DISTRICT 181 ( the District ), by and through its attorneys, HAUSER IZZO, LLC, pursuant to 735 ILCS 5/ to present its Motion to Dismiss. BACKGROUND On August 15, 2016, the District s Board of Education adopted a Resolution in accordance with the Open Meetings to submit a proposition for the issuance of school building bonds to the voters at the general election to be held on November 8, (Complaint, 4). On August 17, 2016, a certified copy of executed Resolution and the Board s minutes was filed with the DuPage County Election Commission ( the Commission ). (Complaint, 5; Complaint, Exhibit A). The Resolution directed the Commission to give notice of the question in accordance with the general election law by publishing the Notice once not more than 30 nor less than 10 days prior to the date of the Election in a local, community newspaper having general circulation in the District and to

2 post a copy of the Notice at least 10 days before the date of the election at the principal office of the Commission and the County Clerk. (Complaint, 7; Complaint, Exhibit A, pg. 4-5). follows 1 : follows: The Commission caused a notice ( the Notice ) to be published advising the voters as NOTICE is hereby given that on Tuesday, November 8, 2016, at the usual Polling Places in the various Precincts in the County of DuPage and State of Illinois, a General Election will be held for the purpose of securing an expression of the sentiment and will of the voters with respect to Candidates for Election, and for the purpose of voting on certain propositions. The Polls of said General Election shall be open continuously from 6:00 a.m. until 7:00 p.m. on Tuesday, November 8, As it relates to the matter at issue, the question involving the District notified voters as PROPOSITION TO ISSUE $54,329,194 SCHOOL BUILDING BONDS.Shall the Board of Education of Community Consolidated School District Number 181, DuPage and Cook Counties, Illinois (located primarily in Hinsdale and Clarendon Hills, Illinois) improve the site of an build and equip a new school building and issue bonds of said School District to the amount of $53,329,194 for the purpose of paying the costs thereof? The Notice was published in a local community newspaper having general circulation in the political or governmental subdivision known as the Hinsdalean. (Complaint, 14, 17; Complaint Exhibits B-C). The Notice was published in the Hinsdalean on October 6, 7 and 8. (Complaint, 14, 17-18; Complaint, Exhibits B-C). The Notice was also posted at the principal office of the Commission at least ten (10) days before the date of the November 8, 2016 Election. (Complaint, Exhibit D, pg.1). In addition, the Notice was posted at the administrative offices of the District and information regarding the matter was published on the District s website. (See Affidavit of Donald E. White, attached hereto as Exhibit A). A similar notice was published by the Cook County Clerk 1 The notices were also given in the Spanish language.

3 in the Chicago Tribune on October 28, (See Certificate of Publication attached hereto as Exhibit B). The matter was put to the voters in the November 8, 2016 election and the proposition was approved by the voters of Cook and DuPage Counties residing within the boundaries of the District by a vote of Seven Thousand Three Hundred Twenty Four votes in favor and Six Thousand Three Hundred Twenty Three against. (Complaint, Exhibit D, pg. 7). This lawsuit followed the voters approval of this measure. The vote total in favor of the proposition is not in dispute in this case. ARGUMENT A. Plaintiffs complaint should be dismissed pursuant to 735 ILCS 5/ Standard of Review When considering a motion to dismiss, the trial court must assume the truth of all facts properly pleaded and draw all reasonable inferences which can be drawn from those facts. Vaughn v. General Motors Corp., 102 Ill.2d 431 (Ill. 1984). Mere conclusions of law, argumentative matter or conclusions of fact which are not supported by allegations of specific facts upon which such conclusions rest, are irrelevant and must be disregarded by the trial court in ruling on a motion to dismiss. Knox College v. Celotex Corp., 88 Ill.2d 407 (Ill. 1981). In order to survive a motion to dismiss, a complaint must allege facts which, when considered together, establish the cause of action which the plaintiff seeks to state. Segall v. Berkson, 139 Ill.App.3d 325, 328 (4th Dist. 1985). 2. Plaintiffs cause of action is improper pursuant to Section of the Election Code. The right to contest an election was not recognized at common law, and a court has no jurisdiction over such matters unless a statute so provides. Young v. Mikva, 66 Ill.2d 579, 582 (1977). The Election Code does not provide for a contest of the validity of the election or an

4 inquiry into the steps taken in calling and conducting the election. Cipowski v. Calumet City, 322 Ill. 575, 577 (1926). In other words, in an election contest the court s inquiry is limited to a determination of the result of an election. Black v. Termunde, 14 Ill.App.3d 937, 940 (1st Dist. 1973). In this case, the Complaint makes clear that it is the validity of the election, not the result obtained, which is disputed by the Plaintiffs. (See Complaint, 22). Indeed, it is undisputed by the plain language of the Complaint and its attachment that the Referendum Question presented by the District received a sufficient number of votes to pass and the validity of these votes is not at issue in this suit. (See Complaint, Exhibit D, 7). Long-standing Illinois law makes it clear that an election contest brought pursuant to the Election Code is limited to a determination of whether or not there were a sufficient number of eligible votes for a measure to pass. The validity of the election or a challenge to the steps taken prior to an election taking place are simply not actionable pursuant to an election challenge brought pursuant to the Election Code. As such, since the Plaintiffs concede that there were a sufficient amount of valid votes cast in order to approve the public question and are only challenging the procedural steps taken prior to the election, this cause of action is wholly without merit and should be dismissed with prejudice. B. Plaintiffs complaint should be dismissed pursuant to 735 ILCS 5/2-619(a)(9) 1. Standard of Review A party may move for dismissal on the pleadings on the basis that the claim asserted against the defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim. 735 ILCS 5/2-619(a)(9). For purposes of a section motion, all well-pleaded facts in the complaint are deemed as true and only the legal sufficiency of the complaint is at issue.

5 American National Bank & Trust Co. v. Village of Libertyville, 269 Ill.App.3d 400, 403 (2nd Dist. 1995). Conclusory allegations of law or fact, however, are not deemed admitted for purposes of this motion. Id. 2. The publication of statutory notice more than thirty (30) days prior to the election does not void the election results. The entirety of Plaintiffs claim hangs upon their assertion that failure to strictly abide by the maximum time guideline for publication contained in Section 12-5 of the Election Code requires that the election be declared void. The Plaintiffs are mistaken. Section 12-5 of the Election Code provides as follows: Not more than 30 days nor less than 10 days before the date of a regular election at which a public question is to be submitted to the voters of a political or governmental subdivision, and at least 20 days before an emergency referendum, the election authority shall publish notice of the referendum. The notice shall be published once in a local, community newspaper having general circulation in the political or governmental subdivision. The notice shall also be given at least 10 days before the date of the election by posting a copy of the notice at the principal office of the election authority. The local election official shall also post a copy of the notice at the principal office of the political or governmental subdivision, or if there is no principal office at the building in which the governing body of the political or governmental subdivision held its first meeting of the calendar year in which the referendum is being held. The election authority and the political or governmental subdivision may, but are not required to, post the notice electronically on their World Wide Web pages. 10 ILCS 5/ In this case, it is clear that the Cook County Clerk published notice of the public question on October 28, This publication was accomplished via the Chicago Tribune which is a local, community newspaper throughout the State of Illinois. See Second Federal Savings and Loan v. Home Savings and Loan Association, 60 Ill.App.3d 248, 254 (1st Dist. 1978). This publication, coupled with the other actions which were undertaken and which gave notice to the voters 2 There is no dispute that the form of the notice was appropriate.

6 regarding the public question approved by the District, demonstrates absolute compliance with Section Even if the Court were to interpret Section 12-5 to require timely publication by both election authorities separately, the DuPage County Board of Elections publication in this case was in substantial compliance with Section 12-5 and its failure to strictly comply with a maximum time guideline for publication does not require that the election be declared void. This is because the maximum time guideline for publication set forth in Section 12-5 of the Election Code is directory. a. The maximum time guideline for publication set forth in Section 12-5 of the Election Code is directory. In determining whether a statute is mandatory or directory, Illinois courts have generally regarded the language of the statute as the best indicator of legislative intent. Pullen v. Mulligan, 138 Ill.2d 21, 65 (1990). Whether a statute is mandatory or directory is a question of statutory construction. People v. Dalvillar, 235 Ill.2d 507, 517 (2009). Where a statute imposes duties upon election officials and by express language provides that the omission to perform the same shall render the election void, courts are bound to construe those provisions as mandatory. Pullen, 138 Ill.2d at 65. If the statute simply provides that certain acts or things shall be done within a particular time or in a particular manner and does not declare that their performance is essential to the validity of the election, then they will be regarded as directory. Id. The mandatory/directory dichotomy denotes whether the failure to comply with a particular procedural step will or will not have the effect of invaliding the governmental action to which the procedural requirement relates. Dalvillar, 235 Ill.2d at 516. With respect to the mandatory/directory dichotomy, it is presumed that language issuing a procedural command to a government official indicates that the statute is directory. People v. Robinson, 217 Ill.2d 43, 58 (2005). This presumption is overcome under either of two conditions. Id. A provision is

7 mandatory under this dichotomy when there is negative language prohibiting further action in the case of noncompliance or when the right the provision is designed to protect would generally be injured under a directory reading. Id. see also, Sutton v. Cook County Officers Electoral Board, 2012 ILApp(1 st ) , Neither of these conditions exists in the case at bar and, therefore, the statute should be considered directory. There is nothing within the plain language of Section 12-5 that declares that observance of its provisions is mandatory. In addition, there is no express language contained within Section 12-5 which dictates that a lack of strict conformity with all of its requirements renders an election void or an adopted public question invalid. If the legislature desired to make the provisions of Section 12-5 mandatory, it could have done so by either expressly stating that it was mandatory or issuing a specific consequence for failing to strictly comply with its requirements. It is clear that the legislature did neither within the language of Section 12-5 of the Election Code which supports a determination that the statute is directory. The right the provision is designed to protect would also not be generally injured under a directory reading of the maximum time guideline for publication within Section 12-5 of the Election Code. The primary purpose of Section 12-5 of the Code is to ensure that the public is aware of an election. Bd. of Ed. of Indian Prairie School District No. 204 v. DuPage County Election Commission, 341 Ill.App.3d 327, 332 (2 nd Dist. 2003). It is also part of the mechanism through which an entity submits an issue to the people for a vote. Id. The overriding concern set forth in Section 12-5, however, is providing the public with notice of those matters which it will be asked to vote. The statute provides for several different mechanisms to accomplish this notification. The statute identifies the following types mechanisms for notice to be provided: (1) published notice

8 in a local, community newspaper having general circulation in the political or governmental subdivision, (2) the posting of notice at the principal office of the election authority, (3) the posting of notice at the principal office of the political or governmental subdivision and (4) the posting of notice on the websites of the election authority and the political or governmental subdivision. 10 ILCS 5/12-5. In addition to the notice mechanisms, there are time related guidelines provided with respect to some of the notice mechanisms. With respect to the notice by publication, the statute directs the notice to be published not more than 30 days nor less than 10 days before the date of a regular election at which a public question is to be submitted to the voters of a political or governmental subdivision. Id. In this case, it is undisputed that notice was published more than ten (10) days prior to the election and that notice was posted at the principal offices of the election authority more than ten (10) days prior to the notice. (Complaint, 19; Complaint, Exhibit B; Complaint, Exhibit D). In addition, the District posted notice at its administrative offices and posted information on its website regarding the public question. (Exhibit 1). The sole question presented to this Court is whether a notice by publication which took place 32, 33 and 34 days prior to the election requires that the election be declared void. (Complaint, 19). It is obvious that providing public notice of the public question, but doing so merely a few days earlier than the time set forth in the statute does impede on the purpose that the statute, namely, giving notice to the public of items to be voted upon at an election. Providing too much notice of a public question is not a harm sought to be protected by the statute whatsoever and there is clearly no required consequence for such conduct. As such, the maximum time guideline for publication notice set forth in Section 12-5 of the Election Code is directory, the failure of the Commission to strictly comply with it does not require that the election be declared void.

9 b. Even if the maximum time guideline for publication notice is deemed mandatory, substantial compliance with it is sufficient. Substantial compliance can satisfy even a mandatory provision of the Election Code. Akin v. Smith, 2013 ILApp (1 st ) (citing cases); Jakstas v. Koske, 352 Ill.App.3d 861, 864 (2 nd Dist. 2004). In order to determine whether allowing compliance through substantial compliance is warranted, a court employs a two-step analysis. The first step is to look to the purpose of the statute in order to determine whether its purpose was achieved without strict compliance. Behl v. Gingerich, 396 Ill.App.3d 1078, 1086 (4 th Dist. 2009). The second step is to decide whether any prejudice was suffered from the failure to strictly comply. Id. In this case, it is clear that the purpose of Section 12-5 of the Election Code can be met without strict compliance. The overarching purpose of the statute is to provide notice to the public of an election and those matters that it will be asked to vote upon. Providing notice earlier than thirty (30) days by publication, especially by merely a few days, in no way impedes on that purpose. This is especially true given the fact that there are numerous other mechanisms for providing notice within the statute were undertaken by the Commission and the District. It is also quite clear that the Plaintiffs suffered no injury or prejudice due to the failure of the Commission to strictly follow the maximum time guideline for publication contained within the statute. The Complaint is devoid of any allegation that the Plaintiffs were unaware of the public question based upon the early publication or that the early publication in any manner whatsoever prejudiced them. Given that purpose of the statute of Section 12-5 can and was accomplished without strict compliance and the complete lack of prejudice to the Plaintiffs here, it is clear that substantial

10 compliance with the maximum time guideline for published notice set forth in Section 12-5 is permissible. In addition, since the content of the notice was proper and was published only a few days early, it is clear that substantial compliance with Section 12-5 occurred in this instance. Since Section 12-5 of the Election Code can be satisfied by substantial compliance and there was substantial compliance with its notice requirement there exists no valid grounds to vitiate the will of the voters which was very clearly expressed through their overwhelming approval of the public question at the November 8, 2016 election. Lastly, it must be noted that the Plaintiffs have failed to identify a single statutory failure of the Defendant in this case. The entirety of their claim is that the election is invalid due to improper notice being published by the Election Board. (Complaint, 23). The harm sought to be bestowed upon the District and its taxpayers due to a technical failure by a third party should not be countenanced as it is clear that the overarching policy objectives of Section 12-5 of the Election Code were met in all respects and ample and continuous notice was provided to the citizens of the District. After receiving this notice in a timely fashion, the electors saw fit to authorize the public question submitted and to permit the issuance of building bonds to construct a school building. The will of the voters should not be thwarted and this lawsuit should be dismissed with prejudice. WHEREFORE, Defendant COMMUNITY CONSOLIDATED SCHOOL DISTRICT NUMBER 181, prays that this Honorable Court: 1. Grant its Motion to Dismiss; 2. Enter an order dismissing Plaintiff s Complaint with prejudice; 3. Award it reasonable costs in defending this suit; and 4. Grant it any further relief that the Court deems just and equitable. [SIGNATURE PAGE TO FOLLOW]

11 Respectfully submitted, COMMUNITY CONSOLIDATED SCHOOL DISTRICT NUMBER 181 By: /s/ William F. Gleason WILLIAM F. GLEASON One of Its Attorneys WILLIAM F. GLEASON/ JOHN M. IZZO/ DANIEL M. BOYLE/ HAUSER IZZO, LLC Governors Highway, Suite 10 Flossmoor, IL (708) DuPage Attorney No G:\DISTRICTS\SD1\SD181DU\Schmidt\motion.dismiss.1.docx

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IN THE CIRCUIT COURT OF ILLINOIS FOR THE EIGHTEENTH JUDICIAL CIRCUIT DUPAGE COUNTY, ILLINOIS

IN THE CIRCUIT COURT OF ILLINOIS FOR THE EIGHTEENTH JUDICIAL CIRCUIT DUPAGE COUNTY, ILLINOIS ANDREW SCHMIDT, KIRSTEN SCHMIDT, ) KAREN WEBER, BRADFORD TOCHER and ) EDWARD CORCORAN, ) ) Plaintiffs, ) ) v.