Jenner v. Wissore

• Decision Date: 05 January 1988
• Docket Number: No. 5-86-0344,5-86-0344
• Citation: 115 Ill.Dec. 534,164 Ill.App.3d 259,517 N.E.2d 1220
• Parties: , 115 Ill.Dec. 534, 44 Ed. Law Rep. 507 Elizabeth JENNER, Plaintiff-Appellee, v. Bruce WISSORE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1220

517 N.E.2d 1220

164 Ill.App.3d 259, 115 Ill.Dec. 534,

44 Ed. Law Rep. 507

Elizabeth JENNER, Plaintiff-Appellee, v. Bruce WISSORE, Defendant-Appellant.

No. 5-86-0344.

Appellate Court of Illinois Fifth District.

Jan. 5, 1988.

Edward F. Brennan, Jr., Brennan and Associates, Belleville, for defendant-appellant.

Ellen A. Dauber, Cook, Shevlin & Keefe, Ltd., Belleville, for plaintiff-appellee.

Presiding Justice HARRISON delivered the opinion of the court:

Defendant, Bruce Wissore, appeals from a judgment of the circuit court of St. Clair County finding him in indirect civil contempt for failure to obey a prior order entered by the court. Two questions are presented for our review: (1) whether plaintiff had standing to bring the suit which culminated in the order Wissore is alleged to have violated, and (2) if so, whether the contempt judgment is contrary to the manifest weight of the evidence. For the reasons which follow, we hold that plaintiff did not have the requisite standing and that the circuit court therefore lacked subject matter jurisdiction to hear and decide this case. Accordingly, the contempt judgment is void and must be vacated.

The events giving rise to this appeal occurred on the eve of an election held on November 5, 1985, at which voters in the Belleville Area College (BAC) taxing district were asked to pass on the question of whether taxes to support the college should be increased. The tax increase proposition was put to the voters based on a unanimous decision made by the BAC board of trustees in the summer of 1985. Plaintiff, Elizabeth Jenner, was and is a member of that board. Defendant, Bruce Wissore, was the college's chancellor and, as such served as the chief administrative officer of the school.

Earlier in the year, a group of volunteers had formed an association to support the tax increase. That association, known as the Committee for Quality Education and Economic Development (the Committee), was duly registered with the Illinois State Board of Elections. Reports filed by the Committee with the State election board showed that the Committee collected more than $13,000 in individual contributions and secured $35,000 in bank loans during the months preceding the election. Although the Committee was not officially affiliated with BAC, its activities were endorsed and controlled by various administrators associated with the college, including Wissore. In addition, Wissore, the Committee and BAC were all represented by the same attorney.

The BAC board of trustees was never presented with nor did it pass on any formal resolutions regarding the Committee. It did, however, share the Committee's goal of securing passage of the tax increase proposition. Before deciding to place the proposition on the ballot, the board hired Public Response, a corporation in the business of providing "communicative services," to advise it on the feasibility of presenting the proposition to the public and on the methods to be followed in campaigning for its passage. Thereafter, the board discussed and approved the use of college funds for the dissemination to the public of factual information relating to the proposition, although it did not approve of using such funds for "persuasive" purposes.

The distinction drawn by the board between "factual" and "persuasive" matters was based on section 3 of the Election Interference Prohibition Act (Ill.Rev.Stat.1985, ch. 46, par. 103) which provides:

"No public funds shall be used to urge any elector to vote for or against any candidate or proposition, or be appropriated for political or campaign purposes to any candidate or political organization. This provision shall not prohibit the use of public funds for dissemination of factual information relative to any proposition appearing on an election ballot * * *."

An opinion from counsel was obtained by Wissore on behalf of BAC in July of 1985 regarding allocation of various expenditures which had already been made in connection with the proposition in light of the foregoing statute. That opinion advised as to which of the expenses could be paid by BAC and which should be borne by the Committee. With respect to future expenses, the opinion admonished that "when in doubt resolution of the issue must be made in favor of payment from the committee and not the college." Thereafter, Wissore appointed two BAC administrators to oversee the proper division of liability for the costs and expenses of the tax increase campaign between BAC and the Committee. Consistent with the opinion from counsel, these administrators were advised by Wissore that any charges about which there might be a question should be paid by the Committee.

By statute, the BAC board of trustees had the power to grant temporary use of college buildings, classrooms and assembly halls to outside groups for civic, social, educational, literary and other purposes when those facilities were not occupied or otherwise needed by the college. (Ill.Rev.Stat.1985, ch. 122, par. 103-43.) The board delegated authority for allowing and scheduling such use to the college administration. Pursuant to this authority, the administration allowed the Committee to hold a meeting in the college's theater and to use a vacant room for a telephone bank.

BAC had previously made its facilities available to a variety of political and community groups. According to Wissore, "We made [the facilities] available to every, every person that would ask. I can't remember turning people down." Although BAC administrative policy specified that requests to use the facilities should be made in writing, this was not a hard and fast rule. Requests were handled orally "on a fairly regular basis." Such was the case with the requests made by the Committee.

BAC apparently did not normally charge a fee to outside groups which had been given permission to use its facilities, and they did not charge the Committee for the meeting held in the theater. They did, however, sometimes require groups to pay rent for use of the facilities if such use entailed extra cleaning, or moving of equipment by college personnel or other added expense to the school. A schedule of charges was established for this purpose. When BAC gave permission to the Committee to use the vacant room for a phone bank, it imposed a rent of $20. This was nearly twice what would normally have been charged. Double rent was required so that the school would avoid the appearance of favoritism toward the Committee. This rent was paid by the Committee, although the suggestion was made that the Committee may not have been charged for the full period during which it used the room.

The Committee hired Public Response to run its phone bank, which began operation on either September 19, 1985, or October 7, 1985. While BAC apparently made arrangements to have the phones installed and received the bills from the phone company, the Committee reimbursed the college for the installation and all use charges. The Committee also reimbursed the college for use of its postage meters.

Before the phone bank started, the college employed two market research assistants. These assistants ended up working mostly for the Committee. They were paid $6 an hour and were given space to use in another person's office at the college. The Committee was not charged for this office space, but did reimburse the college for the wages paid to the assistants.

The record further shows that literature prepared and distributed by the Committee for the tax increase campaign was printed by the college on campus. After the printing was completed, the school would bill the Committee for that portion of the material which was not factual in nature, but tended to persuade. The determination as to what was factual and what was persuasive was made by the college in consultation with counsel. The costs of the persuasive literature were billed to the Committee under the same system used for billing other outside groups who used the campus printing facilities, and the Committee was charged at the college's standard rates.

None of these arrangements between BAC and the Committee for allocation of campaign expenses was reduced to writing, and while the Committee ultimately made payments to the college as set forth above, certain of the Committee's obligations remained outstanding as the election approached. To plaintiff, it appeared at this point that the property and funds of the college were being used unlawfully to support the tax increase. She therefore filed suit against Wissore to enjoin such use.

On October 29, 1985, plaintiff's complaint was dismissed. The same day, she refiled her complaint, and it was presented to a different judge. In her complaint, plaintiff alleged, inter alia, that Wissore "has directed and is directing that school funds and school resources be used to support the tax increase in violation of the Illinois Election Code, Ill.Rev.Stat., Ch. 46, Sec. 103 (1983)" and that

"defendant Wissore has directed and allowed the Committee and Public Response, Inc. to campaign for the tax increase on school property, to conduct phone solicitation on a telephone bank at B.A.C., and to use the postage meter of B.A.C. for mass mailings in support of the tax increase, contrary to Ill.Rev.Stat. Ch. 122, Sec. 103-43, which provides that only the Board can authorize the use of school property, contrary to Board Policy * * *, and contrary to Ill.Rev.Stat., Ch. 46, Sec. 103."

Plaintiff asserted that unless Wissore were restrained from engaging in these activities, she would suffer irreparable harm "in that school funds and property [would] continue to be improperly used in support of the tax increase." Accordingly, she prayed for issuance of a temporary restraining order and preliminary and permanent injunctive relief to stop Wissore's allegedly unlawful use of "public funds and property" and to require him to order the Committee and Public Response to...