G.I.S. Venture v. Novak
| Decision Date | 06 February 2009 |
| Docket Number | No. 2-07-0934.,2-07-0934. |
| Citation | 902 N.E.2d 744 |
| Parties | G.I.S. VENTURE et al., Plaintiffs-Appellants, v. John Lotus NOVAK, County Treasurer, and ex officio County Collector of Du Page County, Illinois, Defendant-Appellee, (West Chicago School District No. 33, Intervenor-Appellee). |
| Court | United States Appellate Court of Illinois |
Plaintiffs, G.I.S. Venture et al. (the taxpayers), appeal from the trial court's orders granting summary judgment in favor of intervenor, West Chicago School District No. 33 (District), denying the taxpayers' cross-motion for summary judgment, and denying the taxpayers' motion for rehearing. We affirm in part, reverse in part, and remand.
On May 21, 1998, the District adopted a resolution declaring its intention to issue bonds in the amount of $4 million to fund its working cash fund. After giving notice and holding a public hearing, the District adopted a resolution to provide for the issuance of the working cash fund bonds, which resolution provided in part:
"The proceeds of the Bonds are appropriated for working cash fund purposes and shall be set aside in a separate fund known and designated as the `Working Cash Fund of School District No. 33, DuPage County, Illinois,' which said fund shall be held apart, maintained and administered as provided in Article 20 of the [School Code] at least until all the Bonds have been retired, and shall not be used for any other purpose whatsoever, it being the present intention and reasonable expectation of the Board that a portion of said proceeds of the Bonds will be used to build and equip additions to and alter, repair, improve and equip the existing school buildings of the District after the transfer of funds to the appropriate operating fund of the district in accordance with the applicable provisions of the School Code (the `Project')."
Working cash fund bonds totaling $3,854,656 were then sold. During the 1998-99 fiscal year, the District transferred the net proceeds of the bond issue, $3,829,357, from the working cash fund to its operations and maintenance (O & M) fund. It is unclear from the record whether the working cash fund held any other assets at the time that the bonds were sold or the transfer was made.
The District adopted a 1999 tax levy for educational purposes in the amount of $11,214,694. This levy was extended at the maximum statutory rate of 2.2600 per $100 of equalized value. The District also extended maximum levies for O & M (0.2500, for $1,240,563) and working cash (0.0500, for $248,112).
The taxpayers filed objection A to a portion of the 1999 levy for the educational fund, arguing that the $3,829,357 that had been transferred from the working cash fund to the O & M fund should properly have been transferred to the educational fund. Therefore, according to the taxpayers, the 1999 levy for educational purposes resulted in an illegal and void tax rate and produced "excessive taxes" in the amount improperly transferred.
The District was granted leave to intervene and filed a motion for summary judgment. The taxpayers filed a cross-motion for summary judgment. On July 31, 2007, the trial court granted summary judgment in favor of the District and denied the taxpayers' motion. The court subsequently denied the taxpayers' motion for rehearing and found no just reason to delay appeal, pursuant to Supreme Court Rule 304(a) (210 Ill.2d R. 304(a)). This appeal followed.
We have ordered taken with the case the joint motion of defendant, John Lotus Novak, and the District to strike nonrecord materials contained in the appendix to the taxpayers' brief and any portions of the brief that refer to such materials, along with certain arguments that the taxpayers have raised for the first time in their reply brief. We have also taken with the case the taxpayers' motions for leave to file a response and to cite additional authority.
We grant the taxpayers' motions for leave to file and to cite additional authority, and we grant in part and deny in part the motion to strike portions of the taxpayers' brief. Novak and the District first seek to strike from the taxpayers' brief 16 pages of material contained in the appendix: two sections of the Illinois Administrative Code and a one-page printout of an Internet thesaurus website containing synonyms and antonyms for the word "abolish." We first note that courts are required to take judicial notice of all rules published in the Illinois Administrative Code and the Illinois Register. See 5 ILCS 100/5-80(g) (West 2006). This court may take judicial notice of rules and regulations even when they are not part of the record on appeal. Acme Brick & Supply Co. v. Department of Revenue, 133 Ill. App.3d 757, 762, 88 Ill.Dec. 654, 478 N.E.2d 1380 (1985). Thus, while Supreme Court Rule 342(a) (210 Ill.2d R. 342(a)) does not provide for the inclusion in the appendix of such nonrecord material as rules and regulations, we do not find that the inclusion of the Illinois Administrative Code sections is improper, and we deny the motion to strike as it relates to this material. However, the inclusion of the printout of the Internet thesaurus has no legal basis, and it and all references to it are stricken.
The motion also seeks to strike section III. C of the taxpayers' reply brief as forfeited because the taxpayers did not raise that argument in their initial brief. Issues raised for the first time in an appellant's reply brief are considered forfeited unless they are responsive to an argument raised in the appellee's brief. Bowler v. City of Chicago, 376 Ill.App.3d 208, 218, 315 Ill.Dec. 140, 876 N.E.2d 140 (2007). Our review of the briefs shows that the District raised in its own response brief the issue contained in the complained-of section of the reply brief. Therefore, we deny that portion of the motion to strike.
The taxpayers first contend that the trial court erred in granting summary judgment to the District and denying summary judgment to the taxpayers. Summary judgment is proper when the pleadings, depositions, admissions, and affidavits on file, viewed in the light most favorable to the nonmoving party, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Allegis Realty Investors v. Novak, 223 Ill.2d 318, 330, 307 Ill.Dec. 592, 860 N.E.2d 246 (2006). The applicability and interpretation of legislation present questions of law that are suitable for resolution through summary judgment. Allegis, 223 Ill.2d at 330, 307 Ill.Dec. 592, 860 N.E.2d 246. We apply de novo review both to the meaning and effect of statutory provisions and to the trial court's grant or denial of summary judgment. Allegis, 223 Ill.2d at 330, 307 Ill.Dec. 592, 860 N.E.2d 246.
Section 20-1 of the School Code (the Code) authorizes a school district to create a working cash fund "for the purpose of enabling the district to have in its treasury at all time [sic] sufficient money to meet demands thereon for ordinary and necessary expenditures for corporate purposes." 105 ILCS 5/20-1 (West 1998). A district may issue bonds and indebtedness "[f]or the purpose of creating a working cash fund." 105 ILCS 5/20-2 (West 1998). Bonds may be issued to obtain funds for an existing working cash fund. In re Application of Walgenbach, 104 Ill.2d 121, 127, 83 Ill.Dec. 595, 470 N.E.2d 1015 (1984). Money for a working cash fund may also be provided by a tax levy. 105 ILCS 5/20-2 (West 1998). Money from the working cash fund "shall not be used by the school board in any manner other than to provide moneys with which to meet ordinary and necessary disbursements for salaries and other school purposes and may be transferred in whole or in part to the general funds or both [sic] of the school district and disbursed therefrom in anticipation of the collection of taxes lawfully levied." 105 ILCS 5/20-4 (West 1998). Upon the district's receipt of taxes, the working cash fund shall immediately be reimbursed. 105 ILCS 5/20-4 (West 1998). Money is to be transferred from the working cash fund to another fund pursuant to a resolution passed by the school board. 105 ILCS 5/20-5 (West 1998). A working cash fund may be abolished by resolution; any balance in the fund is to be transferred to the educational fund at the end of the then current school year. 105 ILCS 5/20-8 (West 1998). Such a transfer is permanent, and there is no obligation to reimburse the working cash fund. See Walgenbach, 104 Ill.2d at 125, 83 Ill.Dec. 595, 470 N.E.2d 1015. A district that has "abolished or abated" its working cash fund may again create such a fund. 105 ILCS 5/20-9 (West 1998). While the abatement of a working cash fund is not specifically provided for or defined in the Code, our supreme court has found that the authority to abate a working cash fund is "implicit" in section 20-9. Walgenbach, 104 Ill.2d at 125, 83 Ill.Dec. 595, 470 N.E.2d 1015. Any member of a school board who wilfully violates article 20 of the Code, dealing with working cash funds, is guilty of a business offense and is to be fined and must forfeit his position. 105 ILCS 5/20-6 (West 1998).
The question before us then is whether a school district that permanently transfers money from its working cash fund through "abatement" is required to transfer the money only to the educational fund. This is a question of statutory construction, which is a question of law and is well suited to summary judgment. See Allegis, 223 Ill.2d at 330, 307 Ill.Dec. 592, 860 N.E.2d 246. The primary objective in construing a statute is to ascertain and give effect to...
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