Roti v. Washington

JOHNSON, J.,

dissenting:

I strongly dissent from the position taken by the majority. I would reverse.

Because of certain omissions in the majority opinion, I present this statement of facts.

On April 29, 1983, the mayor and the newly elected members of the city council were sworn into office. The council recessed until May 2, 1983, when it convened with the mayor presiding. The mayor called the meeting to order and the clerk called the roll. There are two versions of what occurred after the invocation. According to Accurate Reporting Services, the following occurred:

“MAYOR WASHINGTON: The president recognizes Aider-man Natarus.
ALD. NATARUS: I move we adjourn.
MAYOR WASHINGTON: You’ve heard the motion. All in favor, signify by saying aye.
CHORUS OF AYES.
MAYOR WASHINGTON: Opposed, no?
CHORUS OF NOS.
MAYOR WASHINGTON: The ayes have it. Council is adjourned.”

According to McGuire’s Reporting Service, the following occurred:

“ALDERMAN NATARUS: Mr. President?
MAYOR WASHINGTON: The Chair recognizes Alderman Natarus.
ALDERMAN NATARUS: I move we adjourn.
(A Chorus of requests for roll call.)
MAYOR WASHINGTON: The meeting is adjourned.
(A Chorus of requests for roll call.)”

At a hearing on this matter, there were conflicting stipulations as to whether there was a call for a roll call prior to adjournment. The stipulations were to the effect that various aldermen would testify as to when the call for a roll call was made. Some aldermen would testify that the call was made before the adjournment while others would testify that the call came after the adjournment. After the mayor announced the adjournment, he and 21 aldermen left the city council chambers.

Alderman Vrdolyak assumed the chair and asked for a roll call vote on the motion to adjourn. The vote was 29 to zero against adjournment. With Vrdolyak as chairman, the following five resolutions were passed by votes of 29 to zero:

(1) A resolution providing for change in the council’s rule of order that increased the standing committees from 20 to 29 and providing for eight other changes;
(2) A resolution providing for the assignment of aldermen to the 29 committees;
(3) A resolution providing for the election of a vice-mayor;
(4) A resolution providing for the election of a sergeant-at-arms; and
(5) A resolution providing for the election of a president pro tempore.

A resolution was also passed setting Friday, May 6, 1983, at 10 a.m., as the time for the next council meeting. Prior to the meeting, the mayor vetoed the ordinance setting a meeting for May 6, 1983. On that day, 24 aldermen called for a special meeting on May 7, 1983, for the purpose of approving the journal of proceedings of the city council for April 13 and 29, 1983, and May 2, 1983. The journals were approved by the 29 plaintiffs on May 7,1983.

On May 11, 1983, the council met at its regularly scheduled meeting, which is the second Wednesday of each month. The mayor announced that he had vetoed two of the five resolutions passed on May 2, 1983 — the resolution changing the rules of procedure of the council and the resolution naming members to city council committees. One of the reasons the mayor objected to the resolutions was that black council members were denied participation in the formulation of the rules and committee memberships. Of the 58 chairmanships and vice-chairmanships, blacks were selected for only eight positions. The council approved the journal of the special meeting on May 7, 1983, by a vote of 29 to 21.

On May 6, 1983, plaintiffs filed a complaint for declaratory judgment and injunctive and other relief against the mayor, asking that the resolutions adopted at the May 2, 1983, meeting lie declared lawfully adopted. On that day, May 6, the mayor filed a complaint against the city clerk and the 29 aldermen asking that the actions taken subsequent to the adjournment on May 2 be declared void and illegal and that they not be published as part of the journal of proceedings of the city council. On May 11, 1983, these lawsuits were consolidated and the other 21 aldermen were allowed to intervene on behalf of the mayor.

After a hearing on May 13, 1983, the trial court issued a 22-page memorandum opinion that adopted the arguments advanced by plaintiffs in their pretrial memorandum. The trial court held that the may- or’s adjournment of the May 2, 1983, city council meeting was illegal; that the five resolutions for which the 29 aldermen voted after the purported adjournment were lawful; that the mayor had no authority or jurisdiction to veto any of the resolutions; and that there was a proper call for a special city council session on May 7, 1983. The trial court declared its order final and appealable. On May 17, 1983, the trial judge signed his judgment order and stayed its effect for 30 days.

I will address the following issues: (1) whether the meeting of the city council on May 2, 1983, was properly adjourned by the mayor on a voice vote; (2) whether the city council could adopt a resolution changing the rules without a two-thirds vote; (3) whether the call for a special meeting for May 7, 1983, for the purpose of approving the city council journal of the proceedings was valid; and (4) whether the mayor’s veto of the purported resolutions was valid if in fact those resolutions were properly adopted.

Adjournment Issue

The first issue raised by this appeal is whether the meeting of the city council on May 2, 1983, was properly adjourned by the mayor on a voice vote. The majority opinion affirms the trial court’s holding that the adjournment was illegal. Before addressing the decision made by the majority on this issue, it is necessary that I discuss the burden of proof.

Generally the plaintiff has the burden of proof as to all the elements of his claim or cause of action. (18 Ill. L. & Prac. Evidence sec. 21 (1956).) In this case, defendant countersued. Therefore, the burden of proof is complicated but should have been decided by the trial court at the onset.

Plaintiffs alleged that the mayor acted contrary to law. Since it is presumed that a public official acts in good faith (18 Ill. L. & Prac. Evidence sec. 27 (1956)), plaintiffs have the burden of proving that the mayor acted illegally. In my opinion, plaintiffs did not meet this burden of proof for the following reasons:

(1) There was no evidentiary hearing. The hearing on May 13, 1983, consisted of stipulations and argument of counsel. There was conflict as to when the demand for a roll call occurred.
(2) In the judgment order, the trial court merely concluded that the mayor acted illegally, and the order contained no findings of fact. Thus, the conflict was never resolved.

The majority seems willing to presume (based solely on the trial court’s conclusion of illegality) that the trial court followed the proper steps in arriving at its decision. It is improper for the majority to make this assumption because appellate review is premised upon the idea that trial courts may err in the process of reaching a decision.

In the absence of any indication in the record that this burden of proof had been sustained, the trial court’s ruling should be reversed. At the very least, the cause should be remanded for findings of fact.

The majority’s recitation of events surrounding the adjournment and its evaluation of the evidence presented to the trial court predetermines its conclusion that the mayor illegally adjourned the meeting. The majority notes that the journal of the proceedings of the city council indicates that a demand for a roll call was made before the mayor called for a voice vote. However, the majority ignores the fact that the mayor, in his complaint, asked the trial court to declare that the proceedings following his adjournment not be published as part of the journal. The majority also notes that the bulk of the evidence indicated that several aldermen demanded a roll call after the mayor announced, “The ayes have it.” It neglects to mention that 26 aldermen who are plaintiffs and only six of the intervenors submitted stipulations. The bulk of the stipulations would necessarily favor plaintiffs’ view of the events.

The majority concludes that the trial court’s conclusion that the demand for a roll call vote occurred prior to adjournment was not against the manifest weight of the evidence. I believe the trial court did not have sufficient evidence to conclude that the mayor improperly adjourned the meeting. It used evidence of what happened later as evidence of what happened earlier, i.e., the trial court reached the conclusion that a majority supported a roll call at the time the motion to adjourn was made because a majority later voted not to adjourn.

The majority holds that plaintiffs were entitled to a roll call vote under section 3 — 11—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 3 — 11—17), which provides in part that the “yeas and nays shall be taken upon the question of the passage of any other resolution or motion at the request of any aldermen and shall be recorded in the journal.” The majority found that language in the May 2, 1983, journal of proceedings was sufficient to support the conclusion that aldermen requested the roll call. In other words, the majority states that aldermen requested a roll call because the journal said so. Again, the majority ignores the fact that the mayor sued to prevent the printing of that journal entry and that the journals’ account of the proceedings represents plaintiffs’ view. Furthermore, even accepting the majority’s view that an informal request for a roll call was permissible, plaintiffs have not established that a resolution or motion was before the council in accordance with section 3 — 11—17.

The next issue involving adjournment that the majority addresses is what it describes as “the defendants’ argument that the mayor did not hear a request for a roll call vote and consequently acted properly in exercising his responsibility as presiding officer of the council to decide all questions of order, subject to appeal.” The majority states that its determination of this issue revolves around interpretations of city council rules and Robert’s Rules of Order. The majority’s discussion contains the seeds of its own reversal. The majority takes the position that there were no rules until the council “created” them. Robert’s Rules of Order apply to city council proceedings by virtue of council Rule 47, which provides as follows:

“The rules of parliamentary practice comprised in the latest published edition of ‘Robert’s Rules of Order Newly Revised’ (1970 Edition) shall govern the Council in all cases to which they are applicable and in which they are not inconsistent with the special rules of this Council.”

Since the majority states that there were no rules, Robert’s Rules of Order did not apply at the time the mayor adjourned the meeting.

The majority states that the mayor could not ignore repeated requests for a roll call vote and quotes from American Aberdeen-Angus Breeders’ Association v. Fullerton (1927), 325 Ill. 323, 156 N.E. 314. I do not disagree with the rule of law stated in that case. However, in my opinion, the instant case does not involve misfeasance by the mayor. Plaintiffs have not established that a proper request for a roll call was made, nor have they established that the mayor acted improperly.

I do not understand the majority’s statement that it “cannot ignore the realities of the situation with which we are faced in order to impose parliamentary requirements that are demanded by neither the Council rules nor Robert’s Rules of Order.” The majority states that plaintiffs were bound by no rules until they created them, and yet it can rule on an issue for which it should concede no rules were available. It seems to me that, in such a case, the majority should dismiss the issue as nonjusticiable.

Additionally, the trial court substituted its judgment for that of the mayor. The mayor is the presiding officer of the city council (Ill. Rev. Stat. 1981, ch. 24, par. 3 — 11—14). In that capacity, it was his duty to decide whether, when he made the call for a vote to adjourn, the motion had passed or failed based on what he observed. This was a judgment call.

A recurring theme in judicial review is that the reviewing court does not substitute its judgment for that of the trial court. (See People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) A familiar standard is that a reviewing court will not reverse absent a showing of abuse of discretion. (2 Ill. L. & Prac. Appeal & Error sec. 751 (1953).) In like manner, the circuit court should not have substituted its judgment for that of the mayor absent a showing of abuse of discretion. Circuit judges are not elected to preside over the Chicago city council, but mayors are.

The question of whether the adjournment of the May 2, 1983, meeting was proper necessarily turns on a finding of fact. The transcripts contain two versions; the journal of proceedings contains another. The trial court did not have sufficient facts to resolve the conflict. Plaintiffs did not meet their burden of proof.

Although this case should be reversed on the adjournment issue, to fully respond to the majority opinion, I must address the issue of whether the city council has the authority to change its rules of procedure without a two-thirds majority vote as required by council Rule 48.

Rule 48 Issue

To resolve this case, the court must first answer the question of whether the Chicago city council is a continuing body. I note at this juncture that everyone involved in this lawsuit, i.e., the parties, the trial judge, the majority of this court, and myself, agrees that the council is a continuing body. Agreement, however, ends at this point, since plaintiffs and the majority take the position that although the city council is a continuing body its rules of procedure do not continue from one quadrennial period to the next.

The majority states that Rule 48 deprives the current session of the city council of the right to determine , its own rules of procedure. I disagree. The current members of the city council are free to amend, repeal or otherwise alter any rules of procedure. However, they must do so in accordance with established procedural guidelines and not by tacit implication as was done here.

Rule 48 provides:

“These rules may be temporarily suspended by a vote of two-thirds (%) of all the aldermen entitled by law to be elected, and shall not be repealed, altered or amended unless by concurrence of two-thirds (2k) of all the aldermen entitled by law to be elected.”

It is well settled that the language used in a statute should be given its plain, ordinary meaning. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46, 429 N.E.2d 492, 494.) Moreover, the statute should be considered in its entirety (S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 64, 284 N.E.2d 257, 262), so that no word, clause or sentence is rendered meaningless or superfluous. City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 47; Illinois Bell Telephone Co. v. Fox (1949), 402 Ill. 617, 628, 85 N.E.2d 43, 50.

“[Cjourts start with the assumption that the legislature intended to enact an effective law.” (Pliakos v. Liquor Control Com. (1957), 11 Ill. 2d 456, 459, 143 N.E.2d 47, 49.) Thus, in ascertaining and giving effect to the intentions of the legislature, courts should avoid an interpretation which defeats, nullifies, destroys, emasculates, repeals, explains away or renders insignificant, meaningless, inoperative, or nugatory the statute being construed. (11 Ill. 2d 456, 460; S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 65.) The same rules which govern the construction of statutes also govern the construction of municipal ordinances. City of East St. Louis v. Union Electric Co. (1967), 37 Ill. 2d 537, 542, 229 N.E.2d 522, 524; Village of Park Forest v. Wojciechowski (1963), 29 Ill. 2d 435, 437, 194 N.E.2d 346, 348; City of Nameoki v. City of Granite City (1950), 408 Ill. 33, 37, 95 N.E.2d 920, 922.

Thus, when a court looks to the language of an ordinance or statute enacted by a law-making body to ascertain and to give effect to the intention of the law-making body, a court must give the statute a sensible interpretation (Du Bois v. Gibbons (1954), 2 Ill. 2d 392, 410, 118 N.E.2d 295, 305), and not do violence to the spirit and language of the act. (S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 64-65.) The intent of the legislature must be determined as of the time of the enactment. As the court in Dean Milk Co. v. City of Chicago (1944), 385 Ill. 565, 571, 53 N.E.2d 612, 615, stated:

“Expediency, born of changing circumstances and conditions, will not alter the meaning of plain and ordinary language used in an ordinance.”

The clear language of Rule 48 provides that with the concurrence of two-thirds of all the aldermen entitled by law to be elected, the rules may be repealed, altered or amended. There is no basis for the assertion, which the majority accepts, that the rule may “never” be altered, amended or revoked. This characterization flies in the face of the settled principles of looking at the language used in the statute.

The question still remains to be answered; did the aldermen follow proper procedure to amend or repeal Rule 48.

The majority interprets the provision of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 3 — 11—11), which states: “The city council shall determine its own rules of proceeding” to mean that each rule will be adopted de novo at the beginning of each four-year session. On this basis, the majority finds that Rule 48 was not binding on the current session of the city council. I reject this reasoning and its conclusion. The majority fails to cite the journal of proceedings or any other authority for their position.

While conceding that the city council is a continuing body, the majority allows continuity in an ethereal sense but disallows continuity in a practical sense by reasoning that the newly elected council members should not be prevented from enacting its own rules. I submit that the newly elected council members like a newly elected slate of board of directors in any corporation may enact its own rules but only in accordance with the rules or statutes in effect at the time they assume office. All amendments must comply with the rules governing amendments. (See Cain v. Lyddon (1931), 343 Ill. 217, 175 N.E. 391; City of Carbondale v. Wade (1902), 106 Ill. App. 654.) “It is horn-book law that an ordinance of a municipality may be repealed, modified, or amended only by municipal action of like dignity.” DuMond v. City of Mattoon (1965), 60 Ill. App. 2d 83, 89, 207 N.E.2d 320, 323.

A review of the journal of proceedings fails to show any motion to amend or repeal Rule 48. I have been unable to find in the record of this case any vote by the city council on Rule 48. It is a fundamental legal principle that a legally adopted law or rule continues in effect until it is repealed or amended. Therefore, the rules of procedure in effect at the time of the dispute on May 2, 1983, required a vote of two-thirds of council members in order to amend or repeal. Thus, on May 2, 1983, the 29 aldermen simply proceeded to conduct the city council business against the background of the existing rules, including Rule 48.

Unlike the majority, I do not speculate about what the city council might have intended or might have done. It is not the function of this court to engage in speculation but, rather, to assure that the existing rules are followed. Rule 48 is an existing rule, and the city council is bound by it.

Since none of the resolutions at issue here was enacted by the two-thirds majority required by Rule 48, none has legal validity. It was improper for the majority to conclude that Rule 48 was not binding on plaintiffs where the language of the rule neither implied a durational limit nor automatic termination. The majority’s conclusion is based on an assumption of the continued validity of Rule 47 as well as an assumption that Rule 48 terminates at the end of the legislative session. Nowhere does the majority explain why some rules evaporate at the end of the legislative session while others do not. There is good explanation for this: no reason exists. Either the rules of the city council continue or they do not. Either all the parties were bound by all of the rules or none was bound.

The May 7,1983, Special Meeting Issue

The next issue raised by this appeal is whether the call for a special meeting on May 7, 1983, for the purpose of approving the city council journal of proceedings was valid. On May 7, 1983, plaintiffs approved the proceedings of the city council for April 13 and 29, and May 2, 1983, by a vote of 29 to zero. I have stated above that plaintiffs did not prove the illegality of the adjournment and that adoption of the resolutions required a two-thirds vote. Thus, the actions of plaintiffs taken after the mayor left the city council chambers are null and void, and the propriety of the call for the May 7, 1983, meeting requires no further discussion.

The Veto Issue

There is also an interesting question raised about the authority of the mayor to veto the resolutions of the city council. The mayor and intervenors state that since the resolutions necessarily will result in financial liability to the city, the mayor has statutory veto power (Ill. Rev. Stat. 1981, ch. 24, par. 3 — 11—18). Plaintiffs state that no liabilities of any kind are created and the resolutions do not contain any language that authorizes expenditures or appropriations and that none were intended.

In view of my conclusion that the resolutions lack legal validity in the first place, it is both unnecessary and inappropriate for this court to rule on the validity of the mayor’s veto powers. Neither should the court indulge in speculation without a sufficient case or controversy and there is none as to that issue.

Conclusion

There can be little doubt that this case is both politically and emotionally charged. In such situations, it is more necessary than ever for the court to concentrate its attention on basic methods of legal analysis and decision-making: who had the burden of proof; was it sustained; are the applicable rules being applied consistently and equally. In this dissent, I have attempted to focus on the basics. My analysis leads me to the conclusion that the trial court has erred and its holdings should be reversed.