Gasick v. O'Connor, 3-89-0508

• Decision Date: 29 August 1990
• Docket Number: No. 3-89-0508,3-89-0508
• Court: United States Appellate Court of Illinois
• Parties: , 147 Ill.Dec. 401 Gery R. GASICK, and Bruce L. Alkire, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Edward T. O'CONNOR, Treasurer & Ex Officio Collector of Taxes for Peoria County, Illinois; Mary E. Harkrader, County Clerk of Peoria County, Illinois; The County of Peoria, Illinois, a Political Subdivision of the State of Illinois; and the Board of Trustees of the Dunlap Public Library District, a Political Subdivision of the State of Illinois, Defendants-Appellees.

Page 574

559 N.E.2d 574

201 Ill.App.3d 1013, 147 Ill.Dec. 401

Gery R. GASICK, and Bruce L. Alkire, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Edward T. O'CONNOR, Treasurer & Ex Officio Collector of

Taxes for Peoria County, Illinois; Mary E. Harkrader,

County Clerk of Peoria County, Illinois; The County of

Peoria, Illinois, a Political Subdivision of the State of

Illinois; and the Board of Trustees of the Dunlap Public

Library District, a Political Subdivision of the State of

Illinois, Defendants-Appellees.

No. 3-89-0508.

Appellate Court of Illinois,

Third District.

Aug. 29, 1990.

Rehearing Denied Sept. 26, 1990.

Richard L. Steagall (argued), John P. Nicoara, Nicoara & Steagall, Peoria, for Gery R. Gasick, Bruce L. Alkire.

Kevin W. Lyons (argued), Kevin W. Lyons, Ltd., Donald J. Toohill (argued), Asst. State's Atty., Peoria, for Edward T. O'Connor, Mary E. Harkrader, County of Peoria.

Phillip B. Lenzini, Kavanagh, Scully, Sudow, White & Frederick, P.C., Peoria, for Dunlap Public Library District.

Justice STOUDER delivered the opinion of the court:

The plaintiffs in this case, Gery R. Gasick and Bruce L. Alkire, individually and on behalf of all others similarly situated, appeal from orders of the circuit court denying their request for class certification, dismissing their second amended complaint, and denying their motion to amend their second amended complaint. The defendants in this action are Edward T. O'Connor, the treasurer and ex officio collector of taxes for Peoria County, Mary E. Harkrader, the county clerk of Peoria County, and the Board of Trustees of the Dunlap Public Library District (Board). We affirm.

The facts noted here are as alleged in the second amended complaint.

On July 21, 1986, the Board passed Ordinance 86-8, which purported to annex a certain area of real estate to the Dunlap Public Library District (library district) pursuant to state law (Ill.Rev.Stat.1985, ch. 81, par. 1002-8(2)). By the terms of that ordinance, it was to take effect after the filing of a certified copy of the ordinance with the county clerk and the recorder of deeds of Peoria County. Notice of the annexation was published on July 24, 1986, in accordance with state law (Ill.Rev.Stat.1985, ch. 81, par. 1002-8(2)). According to that statute, a 30 day period from the date of publication existed for voters to petition for a referendum on the annexation. No petition was filed in that period. The statute states, "[i]f no petition is filed with the library district within 30 days after publication or posting of the ordinance, the annexation shall take effect" (Ill.Rev.Stat.1985, ch. 81, par. 1002-8(2)).

On August 18, 1986, the Board passed Ordinance 86-9, which levied and assessed the municipal tax for the library district for the fiscal year beginning July 1, 1986. On August 20, 1986, the annexation ordinance and the levy ordinance were filed by the library district with the county clerk of Peoria County. On August 27, 1986, the annexation ordinance was filed with the recorder of deeds of Peoria County.

Plaintiffs here own property in the area sought to be annexed by the library district under Ordinance 86-8. Their 1986 real estate taxes, payable in 1987, included taxes for the library district. When plaintiff Gasick paid his 1986 real estate taxes, he did so under protest on the grounds that the library district tax should not have been extended to his property. Plaintiff Alkire and all the other property owners paid their 1986 real estate taxes without protest. The plaintiffs seek to act as representatives of the class consisting of all the property owners in the affected area.

On September 15, 1987, plaintiff Gasick filed a tax objection for himself and all others similarly situated, seeking a refund of the taxes paid by the property owners in the area sought to be annexed by the library district. On March 22, 1989, the circuit court by written order granted plaintiff Gasick's tax objection, finding the tax of the library district to be "erroneous but not unauthorized." That order also denied class certification and all other relief sought.

On April 20, 1989, plaintiff Gasick moved for leave to file an amended complaint, which the circuit court eventually permitted to be filed, and which was filed on April 28, 1989. On May 11, 1989, plaintiff Gasick moved for leave to file a second amended complaint, and plaintiff Alkire moved to be joined as an additional party plaintiff. The circuit court granted both motions on May 17, 1989. The second amended complaint sought to state a cause of action under 42 U.S.C. § 1983 for deprivation of substantive due process rights under the Fourteenth Amendment of the U.S. Constitution.

In June 1989 the defendants moved to dismiss the second amended complaint under both section 2-615 and section 2-619 of the Civil Practice Law (Ill.Rev.Stat.1987, ch. 110, pars. 2-615, 2-619). On June 22, 1989, the plaintiffs sought leave to amend their second amended complaint to add further counts under 42 U.S.C. § 1983 claiming deprivation of their equal protection rights under the U.S. Constitution. On July 27, 1989, the circuit court granted the defendants' motions and dismissed this case with prejudice. The circuit court also denied the plaintiffs' motion for leave to amend the second amended complaint. The plaintiffs timely filed their notice of appeal on August 2, 1989.

The plaintiffs raise multiple issues on appeal, but they are phrased as general questions of law rather than as specific points of error. Rather than try to answer these general questions, we shall simply present our analysis of why the circuit court did not err in dismissing this case. In...