Schittino v. The Vill. of Niles

1

2024 IL App (1st) 230926

ANTHONY P. SCHITTINO, Plaintiff-Appellee, v. THE VILLAGE OF NILES, ILLINOIS, a Municipal Corporation; MARLENE J. VICTORINE, in Her Official Capacity as Village Clerk; and KAREN A. YARBROUGH, in Her Official Capacity as Cook County Clerk, Defendants

(The Village of Niles, Illinois, and Marlene J. Victorine, Defendants-Appellees; Joseph P. Makula and David A. Carrabotta, Intervenors-Appellants).

No. 1-23-0926

Court of Appeals of Illinois, First District, Second Division

September 10, 2024

Appeal from the Circuit Court of Cook County. 23 CH 1201 Honorable Araceli De La Cruz, Judge Presiding.

Daniel J. Kelley, of Chicago, for appellants.

Steven M. Laduzinsky, of Laduzinsky & Associates, P.C., of Chicago, and Ross D. Secler, of Odelson, Murphey, Frazier & McGrath, Ltd., of Evergreen Park, for appellees.

JUSTICE ELLIS delivered the judgment of the court, with opinion. Justices McBride and Cobbs concurred in the judgment and opinion.

OPINION

ELLIS JUSTICE

¶ 1 At a municipal election in 2021, the citizens of the Village of Niles, Illinois (Village) adopted a referendum that changed the manner in which members of its village ethics board were selected (the Referendum). The Referendum called for the election of the ethics board members rather than their appointment by the village board of trustees (Village Board). After a court battle, the Referendum was adopted at the April 2021 election, so the Village scheduled elections for the ethics board at the next municipal election in 2023.

¶ 2 Plaintiff Anthony Schittino, a registered voter and resident of Niles, sued, claiming that the Referendum was not authorized by the Illinois Constitution. The circuit court agreed, declaring the Referendum invalid and enjoining its enforcement. The court impounded the results of the ethics board elections. Two intervening parties, in support of the referendum, appeal.

¶ 3 We agree with the circuit court that the Illinois Constitution does not authorize the change made by the Referendum. We thus affirm the circuit court's judgment in all respects.

¶ 4 BACKGROUND

¶ 5 To understand the issues in this appeal, we begin with the initial passage of the Referendum and the legal battle that preceded it. We include in this background the results of various elections, which we may judicially notice. Jackson v. Board of Election Commissioners of Chicago, 2012 IL 111928, ¶ 22 n.1.

¶ 6 For years, the Village of Niles, a home-rule unit, has provided by ordinance for a board of ethics whose members are appointed by the Village Board. See Niles Municipal Code of Ordinances § 2-425(a) (adopted Apr. 29, 2009). In 2019, the voter-initiated Referendum sought to replace the appointed board with an elected one. The Niles Village Clerk, Marlene Victorine (Village Clerk), refused to certify the Referendum for the ballot because she believed that it was not authorized by law or the constitution. Typically, challenges to referendum petitions are prompted by an objection from a registered voter, and the objection is then heard by a municipal electoral board subject to court review. See 10 ILCS 5/10-8 (2018). In this case, however, the Clerk took it upon herself to deem the Referendum question unconstitutional and refused to certify it.

¶ 7 Joseph Makula, who is also an intervenor in the present case, sued the Village and Victorine in mandamus, asking the court to order Victorine to place the Referendum on the ballot. Principal among his arguments was that the Clerk lacked authority, on her own, to decide questions of constitutionality and ballot eligibility. At most, Makula argued, the Clerk could reject referenda questions or nomination petitions for obvious, facial deficiencies in the petitions themselves.

¶ 8 The circuit court agreed, and so did this court in Makula v. Victorine, 2021 IL App (1st) 201298-U, ¶¶ 26-27. A different panel of this court held in Makula that the Clerk exceeded her limited statutory authority by acting, on her own and without a citizen objection, to deny ballot certification based on matters of constitutionality. Id. This court thus affirmed the judgment of the circuit court that permitted the Referendum to be placed on the ballot at the April 2021 consolidated municipal election.

¶ 9 At the April 6, 2021, municipal election, voters in Niles adopted the Referendum by a vote of 1,661 to 252, an approval of over 85%.^[1]

¶ 10 A year after the Referendum passed, there was an attempt to repeal it before an election of the ethics board could be held. The Village Board adopted a resolution-Resolution 2022-27R-to place a new referendum on the June 2022 ballot to repeal the Referendum that had passed in April 2021 and restore the ethics board to appointed positions. At the June 28, 2022, statewide primary election, the citizens of Niles voted down that second referendum by a vote of 1,721 to 1,689, a difference of less than one percent.^[2]

¶ 11 So the Referendum remained in effect. The Village scheduled elections for April 2023 for the ethics board positions, and several candidates filed nomination papers for those positions.

¶ 12 In February 2023, plaintiff Schittino filed the present action, seeking a declaration that the Referendum was not authorized by article VII, section 6(f) of the Illinois Constitution (Ill. Const. 1970, art. VII, § 6(f)). He sought a permanent injunction against the Village, prohibiting the certification of any election pursuant to the Referendum.

¶ 13 Almost immediately, Makula (the "principal proponent" of the Referendum) and David Carrabotta (a candidate for the ethics board) moved to intervene. They argued that intervention was appropriate because the nominal defendants-the Village and Village Clerk Victorine- were opposed to the Referendum and would not fairly defend its validity. The circuit court permitted intervention. We will refer to Makula and Carrabotta collectively as "Intervenors."

¶ 14 Intervenors also moved to dismiss this suit on the grounds of res judicata, claiming that our earlier decision in Makula, 2021 IL App (1st) 201298-U, had already established the validity of the Referendum. In an order dated March 15, 2023, the circuit court denied the motion to dismiss.

¶ 15 Plaintiff then moved for summary judgment, arguing that the Referendum's changes to the ethics board were not authorized by the home-rule provisions of the Illinois Constitution. Intervenors responded, much as they did in their motion to dismiss, that the Makula decision controlled and already established the validity of the Referendum. They also argued that the lawsuit was barred by the doctrine of laches, as plaintiff waited too long, and to the detriment of Intervenor Carrabotta (the ethics board candidate), before filing this lawsuit.

¶ 16 On April 26, 2023, the circuit court granted plaintiff's motion for summary judgment. Intervenors timely filed their notice of appeal.

¶ 17 This appeal was initially assigned to a different division of this court. Intervenors filed a motion for "change in venue," which was taken by the court as a motion for recusal, based on the fact that one of the justices in that division had a conflict. The motion, however styled, was granted, and the matter was reassigned to this division and this panel.

¶ 18 We should also explain at the outset that the nominal defendants, the Village and the Village Clerk Victorine, are clearly aligned with plaintiff Schittino here and have even filed a joint brief with Schittino in support of affirming the trial court's judgment. So for ease, at times we will refer to the appellate arguments of the Village, the Village Clerk, and Schittino, collectively as those of "plaintiffs."

¶ 19 ANALYSIS

¶ 20 I

¶ 21 We begin, as we must, by addressing questions of our jurisdiction. The appellate court is one of limited review. We may not review simply anything we wish that transpired in the circuit court, searching for mistakes to fix, for wrongs to right. Rather, in our adversarial system, we may review only those judgments and orders that appellants identify in their notice of appeal. See Ill. S.Ct. R. 303(b)(2) (eff July 1, 2017). This is not a matter of our discretion; this is a mandatory rule. General Motors Corp. v. Pappas 242 Ill.2d 163, 176 (2011). Indeed, questions of appellate jurisdiction are so integral that we must consider them on our own, even if the parties do not raise them. Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217, 251-52 (2010).

¶ 22 Illinois Supreme Court Rule 303(b)(2) (eff. July 1, 2017) requires that notices of appeal specify the judgments or orders being appealed. Ill. S.Ct. R. 303(b)(2) (eff. July 1, 2017) (notice of appeal "shall specify the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court"). Generally speaking, we lack jurisdiction over any judgment or order that is not included in the notice of appeal. Corah v. The Bruss Co., 2017 IL App (1st) 161030, ¶ 20.

¶ 23 As noted, this appeal comes by way of the grant of summary judgment in favor of plaintiff Schittino, a judgment order dated April 26, 2023. The notice of appeal properly identifies that judgment order as the one under challenge here, asking us "to reverse the judgment of the [circuit court] entered on April 26, 2023, in favor of [plaintiff]." There is no question, then, that we have jurisdiction to consider the propriety of that April 26 judgment order.

¶ 24 But one of the arguments raised in the Intervenors' brief is that "[t]he trial court erred by denying the motion to dismiss the complaint for declaratory judgment as res judicata." (Emphasis added.) That order was not entered on April 26; the circuit court denied the motion to dismiss in an order dated...