Jaros v. Village of Downers Grove , 99 N.E.3d 41 ( 2017 )

2017 IL App (2d) 170758No. 2-17-0758
Opinion filed December 29, 2017
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_____________________________________________________________________________
ARTHUR G. JAROS, JR., ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
)
v. ) No. 17-CH-1233
)
THE VILLAGE OF DOWNERS GROVE; )
SUSAN FARLEY; LEAGUE OF WOMEN )
VOTERS OF DOWNERS GROVE, )
WOODRIDGE, AND LISLE; GREGORY )
W. HOSE, Individually and in His Official )
Capacity as Commissioner of the Village of )
Downers Grove; ROBERT T. BARNETT, )
Individually and in His Official Capacity )
as Commissioner of the Village of Downers )
Grove; and MARTIN T. TULLY, )
Individually and in His Official Capacity as )
Mayor of Downers Grove, )
)
Defendants )
)
(The Village of Downers Grove; Gregory W. )
Hose, Individually and in His Official )
Capacity as Commissioner of the Village of )
Downers Grove; Robert T. Barnett, )
Individually and in His Official )
Capacity as Commissioner of the Village of )
Downers Grove; and Martin T. Tully, )
Individually and in His Official ) Honorable
Capacity as Mayor of the Village of ) Paul M. Fullerton,
Downers Grove, Defendants-Appellees). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court, with opinion.
2017 IL App (2d) 170758Justices Hutchinson and Schostok concurred in the judgment and opinion.
OPINION
¶1 In this interlocutory appeal, plaintiff, Arthur G. Jaros, Jr., challenges the denial of
injunctive and declaratory relief under counts IV and V of his amended complaint against
defendants, the Village of Downers Grove (Village); Susan Farley; League of Women Voters of
Downers Grove, Woodridge, and Lisle; and certain Village officials. The underlying substantive
question is whether the Village council had authority to remove plaintiff from the board of
trustees for the Downers Grove public library prior to the expiration of his six-year term. We
affirm.
¶2 I. BACKGROUND
¶3 The following facts are undisputed. The Village is a home-rule unit under article VII,
section 6(a), of the Illinois Constitution (Ill. Const. 1970, art. VII, § 6(a)). The Village has a
commission form of government consisting of an elected mayor and an elected council. See
Downers Grove Municipal Code § 2.10 (amended May 3, 2011). The Village also has appointed
offices, including manager, clerk, treasurer, and attorney. See generally Downers Grove
Municipal Code, ch. 2 (amended Dec. 15, 2015) (“Administration”). Also part of the Village’s
government are various commissions and boards, one of which is the library board of trustees
(Village library board). See Downers Grove Municipal Code § 2.53 (amended Oct. 21, 2014).
The Village library board oversees the Downers Grove public library (Village library), which
was established pursuant to the Illinois Local Library Act (Library Act) (75 ILCS 5/1-0.1 et seq.
(West 2016)).
¶4 In August 2015, plaintiff was appointed to the Village library board for a six-year term by
the Village council pursuant to its appointment power under section 4-2 of the Library Act (75
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2017 IL App (2d) 170758ILCS 5/4-2 (West 2016)) and section 2.53(a) of the Village code (Downers Grove Municipal
Code § 2.53(a) (amended Oct. 21, 2014)). Complementing the appointment power in section
2.53(a) of the Village code is section 2.53.1(d), which permits the Village council “to remove
any member of a board or commission where such member is appointed by the Village council”
(Downers Grove Municipal Code § 2.53.1(d) (amended June 5, 2007)).
¶5 On September 5, 2017, plaintiff filed a seven-count complaint against defendants.
Plaintiff also filed a motion for a temporary restraining order and a preliminary injunction.
Plaintiff sought to bar the Village council from voting—as it planned that evening—on a
resolution to remove plaintiff from the Village library board. Following a hearing, the trial court
denied the request for injunctive relief as premature. That evening, the Village council adopted
Resolution No. 2017-66, removing plaintiff from the Village library board.
¶6 The next day, September 6, 2017, plaintiff filed his seven-count amended complaint. The
only counts at issue in this appeal are counts IV and V. Count IV sought a declaratory judgment
that the removal authorization in section 2.53.1(d) of the Village code exceeded the Village’s
home-rule powers. Count V sought an injunction barring plaintiff’s removal from the Village
library board.
¶7 Plaintiff also filed an amended motion for a preliminary injunction. Plaintiff made two
main arguments. First, he contended that the Village library is a unit of government separate
from the Village. Consequently, removal of a Village library board trustee by the Village
(through its council) is not a “power [or] *** function pertaining to its [(the Village’s)]
government and affairs” (emphasis added) (Ill. Const. 1970, art. VII, § 6(a)) and so does not fall
within the Village’s home-rule powers. Second, since a home-rule unit requires an authorizing
referendum in order to “alter or repeal a form of government provided by law” (Ill. Const. 1970,
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2017 IL App (2d) 170758art. VII, § 6(f)), and since the truncation of a library trustee’s statutory six-year term (see 75
ILCS 5/4-2 (West 2016)) is such an alteration or repeal, the Village was required to pass such a
referendum, which it did not.
¶8 At the hearing on the motion, plaintiff added a third contention, based on section
2.53.1(b) of the Village code and section 4-4 of the Library Act, entitled “Vacancies” (75 ILCS
5/4-4 (West 2016)). Section 2.53.1(b) states that, “[w]here removal from a board or commission
is governed by statute, such statute shall control.” Downers Grove Municipal Code § 2.53.1(b)
(amended June 5, 2007). Plaintiff construed section 4-4 as a statute governing removal, and he
argued that his removal contravened the section.
¶9 In its oral ruling on the motion for injunctive relief, the trial court applied the three-part
test set forth in Schillerstrom Homes, Inc. v. City of Naperville, 198 Ill. 2d 281, 289-90 (2001),
for judging whether a home-rule unit has acted within the scope of its constitutional powers.
(The supreme court has since reduced the test to two parts. See Palm v. 2800 Lake Shore Drive
Condominium Ass’n, 2013 IL 110505, ¶ 36). Denying the motion, the court reasoned that (1)
“the removal of library trustees *** relates to the government and affairs of [the Village]”; (2)
the Library Act is “silent *** concerning removal of library trustees”; and (3) the “General
Assembly [has] not preempted use of the home rule powers in this area.” The court further
determined that the Village library is not a separate unit of government, given that the Village
council appoints library trustees (75 ILCS 5/4-2 (West 2016)) and collects the tax for the library
(75 ILCS 5/3-5 (West 2016)).
¶ 10 Although the court did not expressly address plaintiff’s argument based on section 4-4 of
the Library Act, the court remarked that section 4-4 was not a “removal statute.” Finding no
likelihood of success on the merits, the court denied plaintiff’s request for injunctive relief.
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2017 IL App (2d) 170758¶ 11 The court then sua sponte addressed count IV (declaratory judgment) of the amended
complaint. The court noted that its denial of injunctive relief was tantamount to a judgment
declaring that section 2.53.1(d) of the Village code, authorizing the Village council to remove
members of the library board, was within the Village’s home-rule powers. The court found,
relative to the declaratory judgment, that there was no just reason for delaying enforcement or
appeal. See Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016) (allowing appeal of “a final judgment as to
one or more but fewer than all of the parties or claims *** if the trial court has made an express
written finding that there is no just reason for delaying either enforcement or appeal or both”).
The denial of injunctive relief under count V was immediately appealable as of right, without a
special finding. See Ill. S. Ct. R. 307(a) (eff. July 1, 2017) (appeal of “an interlocutory order ***
granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction”).
¶ 12 Plaintiff appeals.
¶ 13 II. ANALYSIS
¶ 14 Plaintiff challenges the trial court’s denial of his request for a preliminary injunction and
the court’s associated declaratory judgment.
¶ 15 The purpose of a preliminary injunction is to preserve the status quo pending a
determination on the merits of the case. City of Kankakee v. Department of Revenue, 2013 IL
App (3d) 120599, ¶ 17. A party seeking a preliminary injunction has the burden to establish the
following elements: (1) he has a clearly ascertainable right in need of protection; (2) he will
suffer irreparable harm if the injunction does not issue; (3) he has no adequate remedy at law;
and (4) there is a likelihood of success on the merits. Id. As the trial court did not hear evidence
or make findings of fact on the motion for a preliminary injunction, but based its ruling purely on
its interpretation of ordinances and statutes, our review is de novo. See Doe v. Department of
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2017 IL App (2d) 170758Professional Regulation, 341 Ill. App. 3d 1053, 1060 (2003). Since the declaratory judgment
was likewise based on determinations of law alone, we also review it de novo. Fifield v. Premier
Dealer Services, Inc., 2013 IL App (1st) 120327, ¶ 12.
¶ 16 Plaintiff reasserts on appeal the main contentions he made below. We set aside for the
moment his argument that the Village exceeded its constitutional home-rule powers in removing
plaintiff from the library board, and we address first his argument that the removal was invalid
on the independent ground that it “violated the terms of [the Village’s] own ordinance,”
specifically section 2.53.1 of the Village code. Section 2.53.1 states in its entirety:
“Section 2.53.1. Removal of members to boards and commissions.
(a) Members of any board or commission serve at the pleasure of the appointing
authority and may be removed as provided in this section.
(b) Where removal from a board or commission is governed by statute, such
statute shall control.
(c) The Mayor shall have the authority to remove any member of a board or
commission where such member is appointed by the Mayor, or appointed jointly by the
Mayor and Village Manager.
(d) The Village Council, by a vote of not less than four (4) members, shall have
the authority to remove any member of a board or commission where such member is
appointed by the Village Council; appointed by the Mayor with concurrence of the
Village Council, or appointed by the Village Manager with the concurrence of the Village
Council.
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2017 IL App (2d) 170758(e) The Village Manager shall have the authority to remove any member of a
board or commission where such member is appointed by the Village Manager.”
(Emphasis added.) Downers Grove Municipal Code § 2.53.1 (amended June 5, 2007).
Citing subsection (b), plaintiff suggests that the removal of library board trustees is indeed
“governed by statute,” namely section 4-4 of the Library Act. Before setting forth section 4-4,
we briefly explain how public libraries and their governing boards are established under the
Library Act. The Library Act provides a process by which a city, village, or unincorporated
town or township can form a public library. See 75 ILCS 5/1-2, 2-1, 2-2 (West 2016). A city
may establish a public library simply by action of the corporate authorities. 75 ILCS 5/2-1 (West
2016). In villages and unincorporated towns or townships, a library may be established only by
election. 75 ILCS 5/2-2 (West 2016).
¶ 17 Article 4 of the Library Act (75 ILCS 5/4-1 et seq. (West 2016)) prescribes the
establishment of library boards of trustees and the selection of members. Section 4-1 (75 ILCS
5/4-1 (West 2016)) states that, once the corporate authorities in a city establish a library, “the
mayor shall, with the approval of the city council,” appoint a board of trustees. In an
unincorporated town or township, or in a village not under the commission form of government,
trustees are elected. 75 ILCS 5/4-3, 4-3.1 (West 2016). In a village under the commission form
of government, such as the Village,
“the village council at its first regular meeting following the election establishing a public
library, shall appoint a board of library trustees of 6 members who are village residents, 2
to hold until the first regular meeting of the next succeeding fiscal year, 2 to hold for one
year thereafter and 2 to hold for 2 years thereafter. The respective successors of the
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2017 IL App (2d) 170758initial appointees shall be appointed for 6 year terms and shall serve until their successors
are appointed and qualified.
Any board may provide by resolution that the term of its trustees shall be 4 years.
If the board adopts such a resolution, then at the time the next appointments are made,
one trustee shall be appointed for a 2 year term.” 75 ILCS 5/4-2 (West 2016).
¶ 18 The only provision in article 4, or elsewhere in the Library Act, that refers to the removal
of trustees is section 4-1.1 (75 ILCS 5/4-1.1 (West 2016)). That section is entitled “Term of
office; removal,” and its subsection (b) provides that, in a city, “[t]he mayor may remove any
trustee in the manner provided in Section 3.1-35-10 of the Illinois Municipal Code [(Municipal
Code) (65 ILCS 5/3.1-35-10 (West 2016))].” 75 ILCS 5/4-1.1(b) (West 2016). Section 3.1-35­
10 of the Municipal Code specifies procedures for a mayor or president to “remove any officer
appointed by the mayor or president under this Code.” 65 ILCS 5/3.1-35-10 (West 2016).
¶ 19 We return to section 4-4 of the Library Act, the provision on which plaintiff relies.
Section 4-4 specifies when a vacancy is to be declared in a library board of trustees:
“Vacancies shall be declared in the office of trustee by the board when the elected
or appointed trustee declines or is unable to serve, or is absent without cause from all
regular board meetings for a period of one year, or is convicted of a misdemeanor for
failing, neglecting, or refusing to discharge any duty imposed upon a trustee by this Act,
or becomes a nonresident of the city, village, incorporated town, or township, or who
fails to pay the library taxes levied by the corporate authorities. Vacancies shall also be
declared in the office of trustee by the board when, at the election of the first board of
library trustees or at any subsequent election, there are not sufficient trustees elected to
fill an entire board of 7 trustees.” 75 ILCS 5/4-4 (West 2016).
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2017 IL App (2d) 170758Section 4-4 proceeds to give directions for the filling of vacancies, depending on the unit of
government involved. In a city or a village under the commission form of government, like the
village, a vacancy “shall be reported to the mayor or president and be filled in like manner as
original appointments” (75 ILCS 5/4-4 (West 2016)), which, in the case of the Village, would be
appointment by the Village council (75 ILCS 5/4-2 (West 2016)).
¶ 20 Plaintiff suggests that section 4-4 governs the “removal” of library trustees, such that, by
operation of section 2.53.1(b), the Village’s authority to remove library trustees is limited to the
situations specified in section 4-4.
¶ 21 The goal in interpreting a statute or ordinance is to ascertain the intent of the legislative
body. Henderson Square Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL 118139, ¶ 67.
The best indicator of that intent is the language used, which must be given its plain and ordinary
meaning. Id.¶ 22 Section 2.53.1(a) of the Village code states that the “[m]embers of any board or
commission serve at the pleasure of the appointing authority and may be removed as provided in
this section.” Downers Grove Municipal Code § 2.53.1(b) (amended June 6, 2007). Section
2.53.1(d) provides that, by a vote of at least four members, the Village council may remove any
board member or commissioner that the council appointed. Removal is left to the discretion of
the Village council—subject to subsection (b), which states that “[w]here removal from a board
or commission is governed by statute, such statute shall control.” Downers Grove Municipal
Code § 2.53.1(b) (amended June 6, 2007). Plaintiff views section 4-4 of the Library Act as just
such a constraint on the Village council’s discretion to remove board members or
commissioners. Plaintiff is mistaken.
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2017 IL App (2d) 170758¶ 23 Section 4-4 specifies situations in which a vacancy in a library board of trustees arises by
operation of law; when those circumstances arise, a vacancy must be declared. Plaintiff would
have us read an implied limitation into section 4-4. There is at best an implied limitation on
when vacancies must be declared. Section 4-4 does not speak at all to discretionary removal or
to the creation of vacancies in situations other than those listed. From elsewhere in article 4, we
can infer that the legislature was intentionally silent in section 4-4 as to the matter of
discretionary removal. For instance, section 4-1.1(b) authorizes the mayor of a city to remove a
library trustee. If this provision is not superfluous, as we must presume (Moore v. Green, 219 Ill.
2d 470, 488 (2006)), then the power of removal in section 4-1.1(b) extends beyond the scenarios
listed in section 4-4. Also in operation here is the canon that, “when the legislature uses certain
language in one part of a statute and different language in another, [the] court will presume that
different results were intended.” Caveney v. Bower, 207 Ill. 2d 82, 90 (2003). Sections 4-1.1(b)
and 4-4 together establish that the legislature intended in section 4-4 to specify certain vacancies
arising ipso jure and not to address the matter of discretionary removal. Since section 4-4 is not
properly construed as a limitation on the discretionary removal of library trustees, it does not
limit such removal as authorized by section 2.53.1(d) of the Village code.
¶ 24 We turn to plaintiff’s argument that the removal authorization provided by section
2.53.1(d) of the Village code exceeds the Village’s home-rule powers as applied to library
trustees. Article VII, section 6(a), of the Illinois Constitution provides:
“Except as limited by this Section, a home rule unit may exercise any power and perform
any function pertaining to its government and affairs including, but not limited to, the
power to regulate for the protection of the public health, safety, morals and welfare; to
license; to tax, and to incur debt.” Ill. Const. 1970, art. VII, § 6(a).
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2017 IL App (2d) 170758Home-rule authority is limited not only by the internal conditions in section 6(a) (the power or
function must pertain to the government and affairs of the home-rule unit) but also by external
limitations appearing elsewhere in section 6 (“Except as limited by this Section” (id.)). We
address first plaintiff’s claim that section 2.53.1(d) exceeds the limitations expressed in section
6(f) (Ill. Const. 1970, art. VII, § 6(f)). Section 6(f) states in relevant part:
“A home rule unit shall have the power subject to approval by referendum to adopt, alter
or repeal a form of government provided by law ***. A home rule municipality shall
have the power to provide for its officers, their manner of selection and terms of office
only as approved by referendum or as otherwise provided by law.”
¶ 25 There is no dispute that the Village passed no referendum to permit the removal of library
board trustees. In our view, none was required. Neither limitation in section 6(f) applies here.
“Form of government” as referenced in the first limitation “involves the election of municipal
governing boards and the relationship between the legislative and executive branches of
government.” Peters v. City of Springfield, 57 Ill. 2d 142, 149 (1974). First, section 2.53.1(d)
does not impact the election of a municipal governing board, as the Village’s library trustees are
not elected but appointed by the Village council per the Library Act (see 75 ILCS 5/4-2 (West
2016)). Second, section 2.53.1(d) does not affect the balance between the legislative and
executive branches of the Village’s government. Two cases, Pechous v. Slawko, 64 Ill. 2d 576(1976), and Kotte v. Normal Board of Fire & Police Commissioners, 269 Ill. App. 3d 517(1995), provide a helpful contrast here.
¶ 26 In Pechous, the city council of Berwyn passed ordinances removing several incumbent
city officials and appointing replacements. At the time, those offices were, under state statutes
and Berwyn’s own municipal code, to be filled by the mayor with the approval of the city
- 11 ­
2017 IL App (2d) 170758council. Statutes also provided that the mayor could remove any officer appointed by him. The
supreme court held that the removal ordinances were an attempt to alter Berwyn’s existing form
of government by appropriating the executive branch’s power of appointment and removal. As
there was no referendum approval, the ordinances were invalid. Pechous, 64 Ill. 2d at 585.
¶ 27 In Kotte, the appellate court upheld an ordinance passed by the Town of Normal that
permitted the chiefs of its fire and police departments to make temporary appointments. At the
time, statutes gave a municipality’s board of fire and police commissioners the exclusive power
to make appointments. The court held that no referendum was required under section 6(f),
because the ordinance did not “move any legislative authority to the executive branch nor ***
move any authority that was originally in the executive branch to the legislative branch.” Kotte,
269 Ill. App. 3d at 521. The court noted that Normal’s board of fire and police commissioners
was not itself Normal’s “form of government.” Id.
¶ 28 Here, section 2.53.1(d) is not an attempt by the Village council to arrogate to itself a
conferred executive power. While the Library Act authorizes mayors in cities to remove library
trustees (see 75 ILCS 5/4-1.1 (West 2016)), there is no analogous provision for mayors in
villages. Consequently, no referendum was required for the removal power in section 2.53.1(d).
¶ 29 Also inapplicable here is the limitation in section 6(f) pertaining to “officers” of a home-
rule unit. The supreme court has commented as follows on the concept of “officer” in section
6(f):
“A reading of section 6(f) shows that its subject is the form of government of a
home rule unit. If the form of structure of government is to be adopted, altered or
repealed there must be an approval by referendum. When the section refers to a home
rule municipality having the power to provide ‘for its officers, their manner of selection
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2017 IL App (2d) 170758and terms of office only as approved by referendum or as otherwise authorized by law’
the reference is to officers in the home rule unit’s form of government. It is this character
of officer whose office, manner of selection and term of office are to be subject to a
referendum. There was no intendment by the constitutional convention that every person
who might be said to be an ‘officer’ under that broad and accommodable term would be
an officer within the meaning of section 6(f).” Paglini v. Police Board, 61 Ill. 2d 233,
236 (1975).
¶ 30 In Paglini, the supreme court rejected a challenge to a Chicago ordinance that permitted
the city’s police board to appoint hearing officers to make recommendations on cases before the
board. The plaintiff contended that the hearing officers were “officers” under section 6(f) and
that, therefore, a referendum was needed to approve their appointment. The court examined
Chicago’s governmental structure as set out in the Municipal Code (Ill. Rev. Stat. 1973, ch. 24, ¶
21-1 et seq.). The court noted:
“These sections [of the Municipal Code] provide inter alia for a mayor [citation], a
corporation counsel [citation], a city clerk and a city treasurer [citation], and aldermen
[citation], all of whom may be considered to be officers in the city’s form of
government.” Paglini, 61 Ill. 2d at 236-37.
The court determined that “[m]embers of the [b]oard *** are not officers in the form or structure
of government of [Chicago] and are not officers within the meaning of section 6(f).” Id. at 237.
¶ 31 The Village’s code establishes a governmental structure analogous to that of Chicago. In
addition to an elected mayor and an elected council, there are appointed officers, including a
manager, clerk, treasurer, and attorney. See generally Downers Grove Municipal Code, ch. 2
(amended Dec. 15, 2015) (“Administration”). In our view, the Village’s library trustees are no
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2017 IL App (2d) 170758more “officers” under section 6(f) than were the members of Chicago’s police board in Paglini.
Consequently, plaintiff’s argument based on section 6(f) fails.
¶ 32 We move to plaintiff’s claim based on the internal constraints in section 6(a): the power
or function of the home-rule unit must pertain to its government or affairs. “Home rule is based
on the assumption that municipalities should be allowed to address problems with solutions
tailored to their local needs.” Palm, 2013 IL 110505, ¶ 29. “Section 6(a) was written with the
intention to give home rule units the broadest powers possible.” Id. ¶ 30. “Powers and functions
of home rule units shall be construed liberally.” Ill. Const. 1970, art. VII, § 6(m).
¶ 33 The Illinois Constitution provides for the concurrent exercise of government functions by
home-rule units and state powers. “[H]ome rule units may continue to regulate activities even if
the state has also regulated those activities.” Palm, 2013 IL 110505, ¶ 32. “Home rule units may
exercise and perform concurrently with the State any power or function of a home rule unit to the
extent that the General Assembly by law does not specifically limit the concurrent exercise or
specifically declare the State’s exercise to be exclusive.” Ill. Const. 1970, art. VII, § 6(i). “Thus,
the Illinois Constitution provides home rule units with the same powers as the sovereign, except
when those powers are limited by the General Assembly.” Palm, 2013 IL 110505, ¶ 32.
¶ 34 Legislative limitations on home-rule powers must be express and specific. “If the
legislature intends to limit or deny the exercise of home rule powers, the statute must contain an
express statement to that effect.” Id. ¶ 31. “To restrict the concurrent exercise of home rule
power, the General Assembly must enact a law specifically stating home rule authority is
limited.” (Emphasis in original.) Id. ¶ 32; see also Ill. Const. 1970, art. VII, § 6(h) (“The
General Assembly may provide specifically by law for the exclusive exercise by the State of any
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2017 IL App (2d) 170758power or function of a home rule unit other than a taxing power or a power or function specified
in subsection (l) of this Section [(Ill. Const. 1970, art. VII, § 6(l))].”).
¶ 35 This requirement of specificity has also been codified. Section 7 of the Statute on
Statutes (5 ILCS 70/7 (West 2016)) states:
“No law enacted after January 12, 1977, denies or limits any power or function
of a home rule unit, pursuant to paragraphs (g), (h), (i), (j), or (k) of Section 6 of Article
VII of the Illinois Constitution, unless there is specific language limiting or denying the
power or function and the language specifically sets forth in what manner and to what
extent it is a limitation on or denial of the power or function of a home rule unit.”
“Comprehensive legislation that conflicts with an ordinance is insufficient to limit or restrict
home rule authority.” Palm, 2013 IL 110505, ¶ 43.
¶ 36 As the supreme court explained in Palm, it formerly used a three-part test to determine
whether a local government unit exceeded its home-rule authority:
“Under that test, we first determined whether the disputed exercise of local government
power pertains to local government and affairs as required under section 6(a). If so, we
determined whether the General Assembly preempted the exercise of home rule powers
in the area. If not, we determined ‘the proper relationship’ between the local legislation
and the state statute.” Id. ¶ 35 (quoting Schillerstrom Homes, 198 Ill. 2d at 289).
The test currently consists of only two parts: if a subject pertains to local government and
affairs, and the legislature has not expressly preempted home rule, the exercise of municipal
power is valid. Id. ¶ 36.
¶ 37 On the first prong of the test, plaintiff does not dispute that control over the composition
of a library board established pursuant to the Library Act is a local as opposed to a statewide
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2017 IL App (2d) 170758concern. Rather, plaintiff frames the issue as concerning the control of one local unit over
another. According to plaintiff, since the library is a separate unit of government, the Village
cannot claim that regulation of the library board’s composition “pertain[s] to its [(the Village’s)]
government and affairs” (emphasis added) (Ill. Const. 1970, art. VII, § 6(a)).
¶ 38 Plaintiff cites several sources for (1) his view of the relationship between the Village and
the library and (2) his claim that the relationship is relevant to a home-rule analysis. His
approach is misconceived, as we will show.
¶ 39 For his claim that the library is a separate local unit of government, plaintiff relies
foremost on this court’s comment, in City of Rockford v. Gill, 60 Ill. App. 3d 94, 100 (1978)
(Gill I), that the intent behind the Library Act was “to create a separate and independent taxing
body whose finances and administration will remain apart from the exigencies of municipal
politics.” We said this in invaliding the City of Rockford’s ordinance that imposed a tax—for
funding the Rockford public library (Rockford library)—in excess of the maximum allowed
under the Library Act (Ill. Rev. Stat. 1975 ch. 81, ¶ 3-1). The county clerk claimed that the tax
was invalid because, inter alia, the Rockford library was “a quasi-municipal corporation which is
a separate entity organized under a separate and complete act.” Gill I, 60 Ill. App. 3d at 95. We
agreed that the Library Act manifested an intention to maintain the independence of local
libraries. We noted, for instance, that the library tax was to be placed in a special fund,
expenditures from which were under the direction of the library board (Ill. Rev. Stat. 1975, ch.
81, ¶ 3-5) Gill I, 60 Ill. App. 3d at 99. We also noted that the Library Act was recently amended
to allow corporate authorities to impose an additional tax rate of 0.02%, subject to referendum if
requested (Ill. Rev. Stat. 1977, Supp., ch. 81, ¶ 3-1). Gill I, 60 Ill. App. 3d at 100. Of this
amendment, we said:
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2017 IL App (2d) 170758“Inasmuch as this provision would not be appropriate or necessary if the legislature
considered the City to have taxing power over and beyond the statute, under its home rule
powers, we deduce that such unlimited taxing power for library purposes was not
intended to be given under the home rule powers. This Act of the legislature, spelled out
in some detail, requiring an election for the library purposes specified therein, would be a
futile gesture if the City could by interpreting ‘library purposes’ as falling within the
general phrase ‘governmental affairs’ impose the same or a greater tax under its home
rule powers.” Id.¶ 40 Reversing our decision, the supreme court found that, in these last comments, we
“misconceived the proper nature of the present inquiry.” City of Rockford v. Gill, 75 Ill. 2d 334,
341 (1979) (Gill II). The proper question was whether the legislature “provided specifically for
the exclusive exercise by the State” (Ill. Const. 1970, art. VII, § 6(h)) of the power to increase
the tax for support of a local library. As the legislature had not expressly reserved for itself such
exclusive authority, the City’s ordinance was valid. Gill II, 75 Ill. 2d at 341.
¶ 41 In emphasizing the independence of the Village library from the Village, plaintiff takes
the same approach that the supreme court rejected in Gill II. The starting point for the court in
Gill II was that Rockford had general home-rule authority over the Rockford library; the issue
was whether the legislature had expressly curtailed that authority. The Rockford library and the
Village library were created under the same statute; hence we are compelled by Gill II to start
from the premise that the Village has home-rule authority over the Village library. As noted,
plaintiff does not dispute that control over a local library board is a function pertaining to local
government and affairs. The remaining question is whether the legislature has preempted home-
rule authority in that area. Plaintiff makes no attempt to show preemption, and we note that the
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2017 IL App (2d) 170758Library Act manifests no express intention to limit the home-rule authority of a municipality
over a local library created within its boundaries. We recognize that the Library Act contains no
provision for discretionary removal of trustees except in cities (75 ILCS 5/4-1.1 (West 2016)),
but mere implication by the legislature is not sufficient to limit home-rule powers. See Universal
Outdoor, Inc. v. Village of Elk Grove, 194 Ill. App. 3d 303, 307 (1990).
¶ 42 Plaintiff also misinterprets Board of Education School District No. 150 v. City of Peoria,
76 Ill. 2d 469 (1979), the second of the two main cases on which he relies. At issue in that case
were ordinances passed by the City of Peoria that imposed taxes on amusements and on the
purchase of food and beverages at taverns and restaurants. Both the Peoria school district and
the Peoria park district challenged the validity of the taxes as applied to them. The court noted
that there was no question of “the general authority of [Peoria] as a home rule unit to enact [the]
taxing ordinances.” Id. at 473. The question was whether Peoria’s otherwise valid home-rule
measures ran afoul of other constitutional restraints. The court upheld the taxes as applied to the
park district but invalidated them as applied to the school district. Id. at 475-78.
¶ 43 The court held that the taxes exceeded the city’s home-rule powers as applied to the
school district, because they infringed on the “supremacy of the legislature with regard to
schools and school districts under the 1970 Constitution” (id. at 476), specifically article X,
section 1 (Ill. Const. 1970, art. X, § 1). The court explained:
“Pursuant to the constitutional mandate of the 1870 Constitution and of the 1970
Constitution, the legislature has enacted a comprehensive scheme for the creation,
management and operation of Illinois schools. The powers, duties and obligations of
school boards are described in detail by the statutes. [Citation.] Thus the legislature,
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2017 IL App (2d) 170758pursuant to the constitutional mandate, exercises plenary power over the Illinois school
system.
***
*** As applied to [the school district] the two ordinances in question constitute an
unauthorized regulation of the school district contrary to section 1 of article X of the
Constitution of 1970.” City of Peoria, 76 Ill. 2d at 476-77.
¶ 44 As to park districts, the court noted that, although the General Assembly had enacted
certain laws pertaining to those entities, it “did not thereby manifest an intent to assert exclusive
statewide dominion.” Id. at 477. The court could not “say that there exists a pervasive statewide
interest in parks and park districts which prohibits a home rule unit from legislating in such a
manner as to impose incidental obligations and burdens upon park districts.” Id. Consequently,
the court upheld the taxes as applied to the park district. Id. at 478.
¶ 45 Plaintiff takes the holding in City of Peoria to mean that section 2.53.1(d) is valid as
applied to the Village library board only if the legislature has granted the Village “direct and
plenary” power over the Village library. Plaintiff is confused. The Village does not claim a
statutory grant of authority to remove library trustees, nor would any be necessary if the removal
fell under its home-rule powers. As noted, Gill II undermines plaintiff’s position that the Village
lacks general home-rule authority over the Village library because they are independent entities.
Moreover, plaintiff does not question that control of a local library’s board of trustees is a local
rather than a statewide concern. Thus, the sole remaining question is whether the legislature has
expressly limited the home-rule power of a municipality over a local library created within its
boundaries. Plaintiff makes no effort to show such a limitation, and in fact none exists.
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2017 IL App (2d) 170758¶ 46 Plaintiff’s final contention is that the trial court, in making its rulings on count IV
(declaratory judgment) and V (injunctive relief), failed to recognize plaintiff’s constitutional
liberty and property interests in his position as a library trustee. Notably, plaintiff has not made
to the trial court or to this court any argument that he was not afforded due process of law in
being removed from office. See, e.g., Nelson v. Crystal Lake Park District, 342 Ill. App. 3d 917,
922 (2003) (the plaintiff could not be deprived of her property interest in local office without due
process of law). Plaintiff develops no constitutional argument independent of his contention that
the Village exceeded its constitutional home-rule powers. Plaintiff cites his liberty and property
interests to support his claim that he will suffer irreparable harm if not granted injunctive relief.
The trial court, however, must deny preliminary injunctive relief if the movant fails to establish
any of the prerequisites for such relief. Smith v. Department of Natural Resources, 2015 IL App
(5th) 140583, ¶ 27. As plaintiff failed to show a likelihood of success on the merits, the trial
court was correct in denying the injunction.
¶ 47 Thus, we uphold the trial court’s judgment declaring that section 2.53.1(d) of the Village
code, as applied to the Village library trustees, is a valid exercise of the Village’s home-rule
powers. Also, as plaintiff has not shown a likelihood of success on the merits, we affirm the
denial of his request for a preliminary injunction barring the Village from removing plaintiff.
¶ 48 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page
County.
¶ 49 Affirmed.
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