                                 No. 3--04--0038
_______________________________Filed February 3, 2006
____________________________________________

                          IN THE APPELLATE COURT OF ILLINOIS

                                         THIRD DISTRICT

                                             A.D., 2006

MICHAEL WATSON,                                )       Appeal from the Circuit Court
                                               )       of the 21st Judicial Circuit,
       Plaintiff-Appellant,                    )       Kankakee County, Illinois,
                                               )
       vs.                                     )
                                               )
WASTE MANAGEMENT OF                            )       No. 03--CH--277
ILLINOIS, INC., COUNTY BOARD                   )
OF KANKAKEE COUNTY, ILLINOIS,                  )
and COUNTY OF KANKAKEE,                        )
ILLINOIS,                                      )       Honorable
                                               )       J. Scott Swaim,
       Defendants-Appellees.                   )       Judge, Presiding.

______________________________________________________________________________

                JUSTICE BARRY delivered the OPINION of the court:
______________________________________________________________________________

       Appellant Michael Watson brought the instant suit against appellees Waste Management of

Illinois, Inc., County Board of Kankakee County, Illinois, and County of Kankakee, Illinois, seeking

an injunction and declaratory judgment. Appellees filed motions to dismiss pursuant to 735 ILCS

5/2-619(a)(9) and 2-615 (West 2002) for lack of standing, failure to allege facts sufficient to state a

claim, failure to name all necessary parties, and failure to bring the current action in quo warranto.

The trial court granted appellees= motions to dismiss pursuant to 2-615 on the sole basis that Watson

was required to bring this action in quo warranto. Watson timely appeals.

                                               FACTS

       On September 16, 2003, appellant Michael Watson filed a complaint against appellees Waste
Management of Illinois, Inc., the County Board of Kankakee County, Illinois, and the County of

Kankakee, Illinois (collectively AWM@), seeking an injunction and declaratory judgment. Watson=s

complaint alleged that on June 27, 2001, the County Board of Kankakee County (Board) adopted by

majority vote Ordinance No. 01-06-27-330 (Ordinance), which changed the method of electing

Board members by replacing the seven, four-member districts with twenty-eight single member

districts. The complaint alleged that an election was held in November 2002, pursuant to the new

Ordinance, which resulted in the election of the Board members currently sitting, except any Board

member who had resigned subsequently to the election. The complaint further alleged that Article

VII, Section 3(b) of the Constitution of the State of Illinois states: ANo county other than Cook

County may change the method of electing board members except as approved by county wide

referendum.@

       The complaint contended that the Board failed to hold a referendum to approve the change in

method of electing Board members and, as a result, the Board was not legally constituted and its

actions are therefore void or voidable. Specifically, Watson alleged that the Board was not able to

accept Waste Management=s filing of its request for site location approval, as required under Section

39.2(c) of the Illinois Environmental Protection Act (415 ILCS5/39.2(c) (West 2002)), nor make any

binding decision on Waste Management=s request. Watson=s complaint asked for various forms of

relief, including a declaratory judgment that the Ordinance is unconstitutional, a declaratory

judgment that the November 2002, election of the Board was void, enjoining Waste Management

from filing any application with the Board and declaring any attempted filings void, and enjoining

the Board from receiving any such application from Waste Management and declaring any decisions

that have been already made void.


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       Waste Management filed a motion to dismiss Watson=s complaint pursuant to 735 ILCS 5/2-

619(a)(9) and 2-615 (West 2002). Waste Management argued that Watson lacked standing to bring

an action for injunctive and declaratory relief and failed to allege the facts required to state a cause

of action for an injunction or declaratory judgment. The Board and the County of Kankakee,

Illinois, also filed a motion to dismiss Watson=s complaint pursuant to 735 ILCS 5/2-615 (West

2002), alleging that Watson was required to bring his action in quo warranto and, further, Watson=s

complaint failed to name all necessary parties.

       Following a hearing on the appellees= motions to dismiss, the trial court issued a

memorandum opinion granting the motions to dismiss pursuant to section 2-615 on the sole basis

that Watson was required to file his action in quo warranto. Watson timely appeals.

                                             ANALYSIS

       The sole issue we consider on appeal is whether the trial court properly found that quo

warranto proceedings are the exclusive remedy in the instant suit, thereby warranting dismissal of

Watson=s complain. Watson argues that injunction and declaratory judgment are appropriate

remedies where the constitutionality of a statute is challenged. Watson stresses that his complaint

primarily challenges the constitutionality of the Ordinance, and the additional remedies he seeks,

such as a finding that the current Board is without authority to act, merely constitute a by-product of

this primary challenge.

       We first briefly address WM=s argument regarding whether jurisdiction is properly vested in

this court. The record reveals that there was some confusion in the lower court regarding the effect

of the trial court=s order and, as a result, Watson was unsure whether his complaint was dismissed in

entirety or in part. Watson subsequently filed a notice of appeal and a petition for leave to amend


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and file a quo warranto complaint. On appeal, WM contends that if Watson=s petition for leave to

amend is considered a post-judgment motion, this court would lack jurisdiction over Watson=s

appeal because his time to file a notice of appeal would have been tolled. A post-judgment motion

challenges a trial court=s final order and tolls the time for filing a notice of appeal. See Kingbrook v.

Pupurs, 202 Ill. 2d 24, 27, 779 N.E. 2d 867, 870 (2002). However, Watson=s petition for leave to

amend did not challenge the trial court=s order, thus it does not constitute a post-judgment motion.

Watson=s time to file a notice of appeal was thus never tolled and, accordingly, jurisdiction is

properly vested in this court.

        An action in quo warranto may be brought in a case where A[a]ny person usurps, intrudes

into, or unlawfully holds or executes any office, or franchise, or any office in any corporation

created by authority of this State.@ 735 ILCS 5/18-101 (West 2002). A quo warranto proceeding is

a challenge to a defendant=s right to exercise jurisdiction over territory or to hold public office. City

of Highwood v. Obenberger, 238 Ill. App. 3d 1066, 1079, 605 N.E. 2d 1079, 1087 (1992). A quo

warranto proceeding is generally regarded as an appropriate and adequate remedy to determine the

right or title to public office and to oust an incumbent who has unlawfully usurped or intruded into

such office. City of Highwood, 238 Ill. App. 3d at 1079, 605 N.E. 2d at 1087. Quo warranto has

been held to exclude other remedies when testing the validity of annexation proceedings or the

qualifications of a candidate. Department of Disabled American Veterans v. Bialczak, 38 Ill. App.

3d 848, 850-51, 349 N.E. 2d 897, 899-900 (1st Cir. 1976).



        In the instant case, it is evident that Watson=s complaint challenges the validity of the Board=s

authority to act. Accordingly, and as Watson acknowledges, a proceeding in quo warranto is an


                                                   4
appropriate and adequate remedy to determine the Board=s right to its office. However, it is not clear

that the existence of a quo warranto remedy necessarily precludes Watson=s complaint, particularly

given that Watson is primarily challenging the constitutionality of the Ordinance. WM has not

convincingly shown that an incidental challenge to the Board=s authority that results from an

otherwise proper constitutional challenge may only be carried out through a quo warranto

proceeding. Interestingly enough, not one of the cases cited by WM specifically states that quo

warranto is the exclusive remedy for complainants under similar circumstances to the case at bar.

See, e.g., Manchester Community High School District Number 121 v. Murrayville Community

High School District Number 123, 309 Ill. 403, 405, 141 N.E. 129, 130 (1923) (question of the

power of various school districts over disputed territory can be reached only by quo warranto);

Schallau v. City of Northlake, 82 Ill. App. 3d 456, 462, 403 N.E. 2d 266, 271 (1979) (Aquo warranto

is the only proper remedy for questioning the validity of an annexation@); Allen v. Love, 112 Ill.

App. 3d 338, 341, 445 N.E. 2d 514, 516 (1983) (Aaction in quo warranto is a method by which the

qualifications and eligibility of an individual to hold office may be challenged@) (emphasis added);

City of Highwood v. Obenberger, 238 Ill. App. 3d 1066, 1079, 605 N.E. 2d 1079, 1087 (1992) (quo

warranto is Aan appropriate and adequate remedy to determine the right or title to public office@)

(emphasis added).      The question of whether quo warranto is the exclusive remedy for actions

questioning title to an office was considered by the First District in Department of Disabled

American Veterans v. Bialczak, 38 Ill. App. 3d 848, 349 N.E. 2d 897 (1st Cir. 1976). In that case,

the plaintiffs challenged the validity of a contest for the office of Commander and filed a complaint

seeking both a preliminary injunction and declaratory judgment. Department of Disabled American

Veterans, 38 Ill. App. 3d at 848-49, 349 N.E. 2d at 898. The defendants unsuccessfully sought a


                                                  5
motion to dismiss on the grounds that quo warranto was the plaintiffs= exclusive remedy under the

facts. On appeal, the defendants argued that because the primary issue involved a dispute over the

rightful title to the office of Commander, the facts gave rise to a Aclassic quo warranto situation@ and

quo warranto was therefore the exclusive remedy. Department of Disabled American Veterans, 38

Ill. App. 3d at 850, 349 N.E. 2d at 899.

       The First District acknowledged that quo warranto was an appropriate remedy under the

facts, however, declined to find that it was the only remedy. Department of Disabled American

Veterans, 38 Ill. App. 3d at 850-51, 349 N.E. 2d at 899-900. The court first noted that the

defendants could not produce a case which specifically asserted the exclusiveness of quo warranto

under similar facts. Department of Disabled American Veterans, 38 Ill. App. 3d at 850, 349 N.E. 2d

at 899-900. The court also noted that the statute itself does not mandate quo warranto as an

exclusive remedy when trying title to corporate office. Department of Disabled American Veterans,

38 Ill. App. 3d at 851, 349 N.E. 2d at 900. The First District further took note of one case cited by

the plaintiffs, Elm Lawn Cemetery Company v. City of Northlake, 94 Ill. App. 2d 387, 237 N.E. 2d

345 (1968), where that court concluded that declaratory relief was proper even though a quo

warranto proceeding would have also been a proper method of attacking an annexation ordinance.

Department of Disabled American Veterans, 38 Ill. App. 3d at 852, 349 N.E. 2d at 900.

       The First District concluded that because neither the statute nor case law expressly made quo

warranto an exclusive remedy, it was then proper to determine whether declaratory judgment was an

appropriate alternative vehicle. Department of Disabled American Veterans, 38 Ill. App. 3d at 852,

349 N.E. 2d at 901. The court found that the existence of a quo warranto remedy was not grounds

for refusing to entertain a complaint for declaratory judgment, and therefore upheld the trial court=s


                                                   6
determination that quo warranto was the plaintiffs= exclusive remedy. Department of Disabled

American Veterans, 38 Ill. App. 3d at 853, 349 N.E. 2d at 901.

       This court finds the First District=s reasoning sound and agrees that quo warranto, though an

appropriate remedy under the instant facts, is not an exclusive remedy. Therefore, we find that the

trial court erred in dismissing Watson=s complaint on this basis. The remainder of issues discussed

in Watson=s brief relate to various side issues which were raised in WM=s motions to dismiss,

including standing and whether Watson properly stated claims for relief for injunction and/or

declaratory judgment. However, because the trial court=s dismissal was based solely on the issue of

whether Watson=s complaint could have only been brought in quo warranto proceedings, we find it

unnecessary to decide these additional matters for purposes of this appeal. We therefore reverse the

trial court=s dismissal and remand the cause for further proceedings consistent with this order.

       For the foregoing reasons, the trial court=s dismissal of Watson=s complaint is reversed and

the cause remanded for further proceedings.

       Reversed and remanded.

       HOLDRIDGE, J. concurring. SCHMIDT, P. J. dissenting.



       PRESIDING JUSTICE SCHMIDT, dissenting:




       The majority hangs its hat on Department of Disabled American

Veterans to support its conclusion.                     I believe that Department of

Disabled American Veterans, even if correctly decided, is not

authoritative, since it dealt with the right to hold office in a


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private corporation as opposed to the right of elected officials to

hold public office.        If the majority is correct, we could now have

dozens or hundreds of private attorneys general filing declaratory

judgment actions to challenge the right of any elected official to

hold office.       Under the common law, quo warranto was the exclusive

method of challenging a public official's right to act.               It was

then codified.

     It    seems   clear    from   the   quo   warranto   statute   that   the

legislature intended to limit the ability of private individuals to
file suit challenging the right of one to hold public office.

There can be no doubt that the statute requires a would-be-private

plaintiff to jump through enough hoops to fatigue an Olympic

gymnast.    The intent is clear.         If all of this can be avoided by

simply filing a declaratory judgment action, the quo warranto

statute is meaningless.       It would seem that both the common law and

the quo warranto statute were born of the commonsense recognition

that it is not in the public interest to allow individuals, without

restriction, to file lawsuits challenging the authority of public

officials to act.          Such lawsuits, in sufficient number, could

easily paralyze or bankrupt a unit of government.                   Any suit

challenging the right of an elected public official to act must be

brought in quo warranto.        See People ex rel. Turner v. Lewis, 104

Ill. App. 3d 75, 432 N.E.2d 665 (1982); People ex rel. Freeport

Fire Protection District v. City of Freeport, 90 Ill. App. 3d 112,

412 N.E.2d 718 (1980).

     I would affirm the trial court.            I, therefore, respectfully

                                         8
dissent.




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