                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




           Moore v. Grafton Township Board of Trustees, 2011 IL App (2d) 110499




Appellate Court            LINDA I. MOORE, in Her Official Capacity as Grafton Township
Caption                    Supervisor, Plaintiff-Appellee, v. THE GRAFTON TOWNSHIP BOARD
                           OF TRUSTEES; BETTY ZIRK, GERALD McMAHON, ROB
                           LaPORTA, and BARBARA MURPHY, in Their Official Capacities as
                           Members of the Grafton Township Board; KERI-LYN KRAFTHEFER,
                           in Her Official Capacity as Acting Grafton Township Attorney; and
                           GRAFTON TOWNSHIP, Defendants-Appellants.



District & No.             Second District
                           Docket No. 2-11-0499


Filed                      August 8, 2011


Held                       The order of the trial court directing the township board of trustees to
(Note: This syllabus       confirm the township supervisor’s appointment of a person to the position
constitutes no part of     of township attorney was reversed, since the controlling statute provides
the opinion of the court   that the supervisor may appoint a township attorney with the advice and
but has been prepared      consent of the township board, and under the political-question doctrine,
by the Reporter of         the trial court should not have interfered with the township board’s
Decisions for the          authority to consent to the supervisor’s appointment, especially in the
convenience of the         absence of any criteria for a court to review the propriety of the board’s
reader.)
                           decision to refuse to confirm the appointment.


Decision Under             Appeal from the Circuit Court of McHenry County, No. 10-CH-684; the
Review                     Hon. Michael T. Caldwell, Judge, presiding.
Judgment                   Reversed and remanded.


Counsel on                 Thomas G. DiCianni, Jeffrey R. Jurgens, and David L. Ader, all of Ancel,
Appeal                     Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., of Chicago, for
                           appellants.

                           John M. Nelson, of Rockford, for appellee.


Panel                      JUSTICE HUDSON delivered the judgment of the court, with opinion.
                           Justices McLaren and Schostok concurred in the judgment and opinion.




                                             OPINION

¶1          Defendants, the Grafton Township Board of Trustees (Board), its members Betty Zirk,
        Gerald McMahon, Rob LaPorta, and Barbara Murphy, in their official capacities, Keri-Lyn
        Krafthefer, in her capacity as acting township attorney, and Grafton Township, appeal an
        order of the circuit court of McHenry County issuing a mandatory injunction sought by
        plaintiff, Linda I. Moore, in her capacity as Grafton Township supervisor. The injunction
        directed the Board to confirm Moore’s nominee for township attorney at its next regular
        meeting. As the trial court acted in derogation of both the separation-of-powers doctrine and
        the plain language of the controlling statute, we reverse and remand.
¶2          Moore and the Board have apparently been engaged in frequent litigation before the
        circuit court of McHenry County. In this case, the trial court has already issued a 36-page
        memorandum opinion and was required to issue a supplementary opinion as well. As the trial
        court explained, this litigation concerns “the proper relationship between [Moore and the
        Board] and the appropriate exercise of the powers of each of them.” In this appeal, the issue
        concerns filling a vacancy for the position of township attorney. Moore terminated the firm
        that had been serving as township attorney (Ancel, Glink, Diamond, Bush, DiCianni &
        Krafthefer, P.C.). This resulted in litigation in which the trial court ultimately enjoined the
        firm from acting as township attorney. Moore then appointed John Nelson to fill the position.
        This nomination was rejected by a four-to-one vote, with the four members of the Board
        voting to reject Nelson, and Moore, who also has a vote in such proceedings, voting to
        confirm the appointment. Moore then filed a motion in the trial court seeking an injunction
        to compel the Board to confirm her appointment of Nelson, and the trial court granted the
        motion, issuing the injunction directing the Board to vote to confirm the appointment at its
        next meeting. The parties set forth a number of additional facts, such as that Nelson had
        previously represented Moore in litigation with the Board and that Moore refused to appoint

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     some other attorney to the role, none of which are relevant.
¶3        Before this court, the Board argues that the trial court erred in granting injunctive relief
     to compel a discretionary legislative act. We agree. The statute that controls this case
     provides, in pertinent part, as follows:
             “The supervisor, with the advice and consent of the township board, may appoint a
          township attorney.” 60 ILCS 1/70-37 (West 2010).
     It is well established that units of local government are creatures of the legislature. See
     La Salle National Trust, N.A. v. Village of Mettawa, 249 Ill. App. 3d 550, 575 (1993).
     Moreover, our role in interpreting a legislative enactment is to ascertain and give effect to
     the intent of the legislature. Rosenzweig v. Illinois State Board of Elections, 409 Ill. App. 3d
     176, 180 (2011). The best evidence of that intent is the plain language of the enactment itself.
     Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 216
     (2008).
¶4        Here, the intent of the legislature is manifestly clear–the supervisor appoints a candidate
     for township attorney and the board confirms the appointment (i.e., gives its consent). The
     trial court’s order in this case removed the Board from the process, in essence allowing an
     attorney to be appointed solely by the action of the supervisor. This is plainly at odds with
     the statute. We further note that the language of the statute in no way suggests that the
     Board’s role is ministerial. The statute provides for the board to give its “advice and consent”
     rather than directing it to perform an action. See Snyder v. Curran Township, 167 Ill. 2d 466,
     480 (1995). If the Board’s action were mandatory or ministerial, its “consent” would be
     irrelevant; it would simply be required to take the action specified in the statute.
¶5        Thus far, we have established that the legislature placed with the Board the authority to
     consent to (that is, confirm) an appointee for the position of township attorney. Under the
     political-question doctrine, the trial court should not have interfered with that authority. This
     doctrine holds that certain questions, deemed political in nature, are not justiciable. Murphy
     v. Collins, 20 Ill. App. 3d 181, 196 (1974); see also Baker v. Carr, 369 U.S. 186, 209 (1962).
     It derives from the principle of separation of powers, based upon which authority is dispersed
     through the various branches of our government. Roti v. Washington, 148 Ill. App. 3d 1006,
     1009 (1986). Its function is to ensure that the judiciary does not exercise the powers of
     another branch of government. Murphy, 20 Ill. App. 3d at 195. Our supreme court has
     explained that, in accordance with the doctrine, issues that “ ‘lack *** satisfactory criteria
     for a judicial determination’ ” (emphasis omitted) and for which it is proper to assign
     “ ‘finality to the action of the political departments’ ” are not subject to judicial review.
     Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 28 (1996) (quoting Baker, 369
     U.S. at 210).
¶6        Regarding the issue before this court, there are no standards for a court to apply in
     reviewing the propriety of the Board’s decision to refuse to confirm Nelson as township
     attorney. The governing statute commits that decision to the Board but sets forth no criteria
     for making the decision. In Village of Woodridge v. Board of Education of Community High
     School District 99, 403 Ill. App. 3d 559, 571-72 (2010), we found the political-question
     doctrine to be no bar to our review of the actions of local government where the controlling


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       statute contained “clear criteria for the court to utilize to resolve [the] case.” Conversely, in
       this case, the statute contains no such criteria. In the absence of such criteria, the court system
       has no role to play in reviewing whether the supervisor’s appointment of Nelson should be
       confirmed.
¶7          We further note that Moore seeks to justify the trial court’s order as a proper invocation
       of its “equitable powers *** to facilitate the meaningful nomination of a Grafton Township
       Attorney by the township supervisor.” Indeed, the trial court expressly emphasized that it was
       acting in equity. However, the political-question doctrine applies with equal force regardless
       of whether a court acts in law or equity–due respect must always be shown to other co-equal
       branches of government. See Heffran v. Hutchins, 160 Ill. 550, 554 (1896) (“It is not within
       the jurisdiction of a court of equity to interfere with the public duties of the departments of
       government.”). Quite simply, the legislature granted to the Board the power to consent
       (which, by implication, entails the power to withhold consent, otherwise consent would be
       meaningless). Out of due respect for the legislature, let alone the Board itself, the trial court
       should not have interfered with the discretion possessed by the Board on this issue.
¶8          Finally, we observe that the trial court stated that the separation-of-powers doctrine is
       “overly broad” as it would apply to this case, “primarily because we are dealing with a unit
       of local government.” We emphasize that the separation of powers issue presented here does
       not concern the relationship between the Board and Moore–that relationship is defined by
       the legislature in the controlling statute. Rather, this case concerns a court directing a
       legislative body how to proceed on a matter that would typically be within the discretion of
       the legislative body. Under the separation-of-powers doctrine, courts must respect units of
       local government. See Board of Education of Dolton School District 149 v. Miller, 349 Ill.
       App. 3d 806, 812-13 (2004); Colville v. City of Rochelle, 130 Ill. App. 2d 541, 545 (1970).
       That the trial court was interfering with the prerogatives of a unit of local rather then state
       or national government provides no justification for its order.
¶9          In light of the foregoing, the order of the circuit court of McHenry County directing the
       members of the Board to confirm Nelson’s appointment to the position of township attorney
       is reversed and this cause is remanded for whatever further proceedings are appropriate.

¶ 10       Reversed and remanded.




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