                                  2014 IL App (2d) 130244
Nos. 2-13-0221, 2-13-0222, 2-13-0224, 2-13-0225, 2-13-0225, 2-13-0226, 2-13-0227, 2-13-0228,
  2-13-0229, 2-13-0230, 2-13-0231, 2-13-0232, 2-13-0233, 2-13-0234, 2-13-0235, 2-13-0236,
                      2-13-0237, 2-13-0238, 2-13-0239, 2-13-0244 cons.
                              Opinion filed September 30, 2014
______________________________________________________________________________

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

G.I.S. VENTURE et al.,                         )   Appeal from the Circuit Court
                                               )   of Du Page County.
        Plaintiffs-Appellants,                 )
                                               )
v.                                             )   No. 00-T-02
                                               )
JOHN LOTUS NOVAK, County Treasurer             )
and ex officio County Collector of Du Page     )
County, Illinois,                              )
                                               )
        Defendant-Appellee                     )
                                               )
(Board of Education of Bensenville             )
Elementary School District No. 2; Board of     )
Education of Itasca School District No. 10;    )
Marquardt School District No. 15; Board of     )
Education of Queen Bee School District No. 16;)
Board of Education of Keenyville Elementary )
School District No. 20; Benjamin School        )
District No. 25; Board of Education of West    )
Chicago Elementary School District No. 33;     )
Lombard Elementary School District No. 44; )
Villa Park/Lombard School District No. 45;     )
Butler School District No. 53; Board of        )
of Education of Darien School District No. 61; )
Hinsdale Township High School District         )
No. 86; Du Page High School District No. 88; )
Board of Education of Fenton Community         )
High School District No. 100; Wheaton          )
Warrenville Community Unit School District )
No. 200; Westmont Community Unit School )          Honorable
District No. 201; Elmhurst Community Unit      )   Paul M. Fullerton,
2014 IL App (2d) 130244


District No. 205, Intervenors-Appellees.         )   Judge, Presiding.

______________________________________________________________________________

       JUSTICE McLAREN delivered the judgment of the court, with opinion.
       Presiding Justice Burke and Justice Spence concurred in the judgment and opinion.

                                            OPINION

¶1     Plaintiffs, G.I.S. Venture et al. (the taxpayers), appeal from the trial court’s orders

granting summary judgment in favor of defendant, John Lotus Novak, County Treasurer and ex

officio County Collector of Du Page County, and 17 school district intervenors (collectively, the

Districts) on 54 tax-rate objections spanning 13 years.   We affirm.

¶2                                     I. BACKGROUND

¶3     These consolidated cases arise out of tax objections involving the Districts’ transfers of

assets held in their working cash funds to other district funds. In the lead case, under which the

other objections have been consolidated, West Chicago School District No. 33 (the District) issued

bonds of almost $4 million to fund its working cash fund in 1998. During the course of the

1998-99 fiscal year, the District permanently transferred the net proceeds of the bond issue to its

operations and maintenance (O&M) fund.          The District then adopted a 1999 tax levy for

educational purposes, which was extended at the maximum statutory rate; the District also

extended maximum levies for both the O&M and the working cash funds. The taxpayers filed

objections, arguing, inter alia, that, according to the School Code (Code) (105 ILCS 5/1-1 et seq.

(West 1998)), the assets transferred from the working cash fund to the O&M fund should have

been properly been transferred to the educational fund; therefore, the 1999 levy for educational

purposes resulted in an illegal and void tax rate and produced excessive taxes in the amount that

had been improperly transferred.




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¶4     After the District intervened, the trial court granted summary judgment in favor of the

District and denied the taxpayers’ cross-motion for summary judgment.        On appeal, this court

affirmed in part, reversed in part, and remanded the cause.   See G.I.S. Venture v. Novak, 388 Ill.

App. 3d 184 (2009).     We concluded that the Code did not provide for a general permanent

transfer of assets from the working cash fund to any fund other than the educational fund and

that the District “could not properly permanently transfer the money from the working cash fund

to the O&M fund; repayment was required.”          Id. at 191.   Although we reversed the trial

court’s grant of summary judgment in favor of the District, we also affirmed the denial of

summary judgment to the taxpayers, finding:

       “Genuine issues of material fact remain as to whether the working cash fund assets, if

       added to the educational fund, result in an excessive accumulation of assets in the

       educational fund.    Even though the 1999 educational fund levy was extended at the

       maximum rate, a proper permanent transfer to that fund may result in a proper

       accumulation of money in that fund.     In that case, the taxpayers would not be entitled to

       judgment.    Therefore, additional hearings are required.” Id. at 192.

After concluding that partial summary judgment should have been entered “as to the permanent

nature of the transfer and that any abatement or abolishment should have inured to the benefit of

the education fund,” we remanded the cause “for further proceedings consistent with [the]

opinion to determine if the abolishment, when properly applied, would result in an improper

accumulation of assets in the education fund.” Id.

¶5     On remand, the Districts filed motions for summary judgment on 54 objections

concerning the Districts’ transfers from working cash funds in tax years 1998 through 2010.

The District noted that the method for determining whether a tax levy results in an excess



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accumulation of assets had been established by our supreme court in Central Illinois Public

Service Co. v. Miller, 42 Ill. 2d 542 (1969), and involved comparing the total assets available in a

fund to both the average annual expenditure of the fund for the past three fiscal years and the

amount expended in the last fiscal year.     In Miller, the total assets available in the fund for the

tax year at issue were 2.84 times the average annual expenditure for the past three fiscal years

and 3.24 times the expenditure in the last fiscal year. Id. at 543.      The court concluded that the

tax levy resulted in an excess accumulation. Id. at 545.         The Districts also cited this court’s

application of the Miller analysis in In re Application of the People ex rel. Anderson, 279 Ill.

App. 3d 593, 598 (1996), in which we found that calculations of 1.8 times the average annual

expenditure for the past three years and 1.61 times the previous year’s expenditure fell “well

below” what Miller found to be excessive and that the objectors had failed to sustain their burden

of proving an excess accumulation.         The District then attached as exhibits affidavits and

worksheets regarding calculations of the “Funds/Average Expenditure Ratio” for each district

and relevant fiscal year.   None of the calculations revealed a ratio that exceeded 1.49516.      The

taxpayers filed a written stipulation stating that, for each district and relevant year:

       “had the School District properly transferred its Working Cash Fund amount directly into

       its education(al) fund, no excess accumulation(s) would have occurred in the School

       District’s education(al) fund as calculated under analyses set forth in Central Illinois

       Public Service Co. v. Miller, 42 Ill. 2d 542 (1969) and In re Application of the People ex

       rel. Anderson, 279 Ill. App. 3d 593 (2d Dist. 1996).”

¶6     The trial court granted the motions for summary judgment, stating:

               “Now, the plaintiff taxpayers have filed what they have styled as an offer of

       stipulation concerning possible excess accumulations in the school districts’ educational



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       funds if the school district had properly transferred working cash funds to the educational

       funds.    There were no objections to the facts presented and there were no objections to

       the law presented by the movants.

                This Court had found that in G.I.S. Venture, the Appellate Court remanded the

       case to this Court with instructions to determine whether the transfer of the working cash

       fund if, quote, properly applied, end of quote, to the educational fund would have resulted

       in an improper accumulation of assets in the educational fund.

                Plaintiffs have now stipulated to this essential fact as applied to each of the

       objections at issue.   For those reasons and as well as what [sic] this Court agrees with

       the movants right now, [I]t’s going to grant the defendant intervenor’s motion for

       summary judgment ***.”

The court found “no just reason to delay appeal” of its judgment pursuant to Illinois Supreme

Court Rule 304(a) (eff. Feb. 26, 2010).      After the court denied the taxpayers’ motion for

reconsideration, this appeal followed.

¶7                                       II. ANALYSIS

¶8     The taxpayers contend that the trial court erred in granting the motions for summary

judgment.    Summary judgment is appropriate only when “the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law.” 735

ILCS 5/2-1005(c) (West 2012). “A triable issue precluding summary judgment exists where

the material facts are disputed, or where, the material facts being undisputed, reasonable persons

might draw different inferences from the undisputed facts.” Adams v. Northern Illinois Gas

Co., 211 Ill. 2d 32, 43 (2004).   The use of summary judgment is to be encouraged as an aid in



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the expeditious disposition of a lawsuit; however, it is a drastic means of disposing of litigation

and should be allowed only when the right of the moving party is clear and free from doubt.

Springborn v. Village of Sugar Grove, 2013 IL App (2d) 120861, ¶ 24.            We review de novo a

trial court’s grant of summary judgment.         Id.

¶9         A taxing body has broad discretion in estimating the amount of revenue necessary to

carry out its lawful objectives; it is presumed that the taxing body has properly discharged its

duty and has not abused its discretion in making its levy. Anderson, 279 Ill. App. 3d at 596.

The objector bears the burden of overcoming this presumption and showing a clear abuse of

discretion.       Id.   The unnecessary accumulation of money in the public treasury is against the

policy of the law, and a levy or tax rate that results in such an unnecessary accumulation is

illegal.    Id.

¶ 10       In the tax rate objection complaint against the District, the taxpayers sought a refund of

1999 real estate taxes “by reason of excessive and illegal assessments, levies and taxes

extended.” The reason the taxpayers gave for their objection to the District’s tax levy for

educational purposes was the “Excess Rate $0.7774,” which was further described as follows:

                    “A portion of the Working Cash Fund was abated through the transfer of funds to

           operating funds of the District other than the Educational Fund.       Implicit within the

           School Code is a requirement that such abatement should only be accomplished through a

           transfer to the Educational Fund.      Courts have held that such assets should operate to

           reduce the amount of taxes necessary to be levied for such purposes and the current levy

           is excessive to the extent of the transfer.”

¶ 11       The taxpayers sought a tax refund for an excessive levy in the educational fund. This

court remanded the cause in G.I.S to determine whether, if the transferred funds were properly



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applied to the educational fund, that fund would possess “an improper accumulation of assets.”

G.I.S, 388 Ill. App. 3d at 192. The taxpayers stipulated to the results of Miller calculations that

were not only far below the results that Miller found to demonstrate excess accumulation but also

below the results that the Anderson court concluded failed to sustain the taxpayers’ burden.      The

material facts are undisputed, and reasonable persons could not draw different inferences from

those undisputed facts.     See Adams, 211 Ill. 2d at 43.       Summary judgment in favor of the

Districts was proper.

¶ 12     For all the arguments that the taxpayers raise, they inexplicably fail to cite, let alone

address or analyze, either Miller or Anderson.      Instead, the taxpayers emphasize People ex rel.

Meyers v. Chicago & North Western Ry. Co., 1 Ill. 2d 255 (1953), the only case that the

taxpayers relied upon in G.I.S. to argue that summary judgment should have been granted in their

favor.    See G.I.S., 388 Ill. App. 3d at 191.    In Meyers, the school districts transferred money

from their building funds to their educational funds after, pursuant to statute, adopting

resolutions of transfer that provided that the money being transferred was not necessary for

building-fund purposes; immediately thereafter, the districts adopted budget ordinances “which

reflected the amounts so transferred as budgeted items of building fund expenditures” and

included those amounts in the certificates of levy for the following year.        Meyers, 1 Ill. 2d at

261.     The supreme court found that each school district involved had acted inconsistently:

         “formally declaring by resolution that its building fund resources are in excess of its

         needs for building purposes and then, at or about the same time, officially declaring, in

         the levy resolutions and in the formal certificates of levy, that it does require a designated

         amount for building purposes.     Both statements cannot be true and it is obvious that had




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       no transfers been made to the respective educational funds their ensuing building fund

       needs and levies would have been lessened by the amounts transferred.”      Id. at 263.

¶ 13   While this court generally approved of Meyers’ analysis regarding an improper transfer

of assets between funds (“Similarly, the District’s practice here is not contemplated by statute

and is condemned by this court.” G.I.S., 388 Ill. App. 3d at 192), we did not follow its holding

that the trial court had “erred in overruling this series of objections made to so much of the rate

extended in each district as was necessary to replace the amounts transferred to the educational

fund.” Meyers, 1 Ill. 2d at 263.   Instead, we specifically found:

       “Genuine issues of material fact remain as to whether the working cash fund assets, if

       added to the educational fund, result in an excessive accumulation of assets in the

       educational fund.    Even though the 1999 educational fund levy was extended at the

       maximum rate, a proper permanent transfer to that fund may result in a proper

       accumulation of money in that fund.     In that case, the taxpayers would not be entitled to

       judgment.    Therefore, additional hearings are required.” G.I.S., 388 Ill. App. 3d at 192.

¶ 14   Meyers predated Miller and its excess accumulation analysis by 16 years, and Miller

more properly applies here.   The question at issue in this case on remand was not whether the

District’s transfer of assets to the O&M fund was proper; it was not.   The question was whether,

had the District properly transferred the working cash fund assets to the educational fund, the

subsequent educational fund levy would have resulted in an improper accumulation of assets

therein.   Only then would the taxpayers have been entitled to the requested refund of 1999 real

estate taxes “by reason of excessive and illegal assessments, levies and taxes extended.” The

Districts provided evidence that no such improper accumulation of assets would have resulted,

and taxpayers stipulated to that evidence.   No genuine issue as to any material fact remained,



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and the Districts were entitled to judgment as a matter of law.   Therefore, the trial court did not

err in granting summary judgment in favor of the Districts.

¶ 15                                   III. CONCLUSION

¶ 16   For these reasons, the judgment of the circuit court of Du Page County is affirmed.

¶ 17   Affirmed.




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