Miller v. Lake County

• Decision Date: 28 March 1980
• Docket Number: Nos. 52164,52184 and 52233,s. 52164
• Citation: 79 Ill.2d 481,404 N.E.2d 222,38 Ill.Dec. 798
• Parties: , 38 Ill.Dec. 798 Glenn E. MILLER, Appellant, v. The COUNTY OF LAKE et al., Appellees. The PEOPLE ex rel. Dennis P. RYAN, Appellee and Cross-Appellant, v. WHEELING TRUST & SAVINGS BANK et al., Appellants and Cross-Appellees.
• Court: Illinois Supreme Court

Page 222

404 N.E.2d 222

79 Ill.2d 481, 38 Ill.Dec. 798

Glenn E. MILLER, Appellant, v. The COUNTY OF LAKE et al., Appellees.

The PEOPLE ex rel. Dennis P. RYAN, Appellee and Cross-Appellant, v. WHEELING TRUST & SAVINGS BANK et al., Appellants and Cross-Appellees.

Nos. 52164, 52184 and 52233.

Supreme Court of Illinois.

March 28, 1980.

Rehearing Denied May 29, 1980.

Wasneski, Kuseski, Flanigan & Dixon, Waukegan, Alfred W. Lewis, Waukegan, of counsel, for appellant.

Dennis P. Ryan, State's Atty., Waukegan, Marc P. Seidler and William J. Blumthal, Asst. State's Attys., Waukegan, of counsel, for appellee.

Crowley, Barrett & Karaba, Chicago (Edward W. Barrett and Frank H. Karaba, Chicago, of counsel), for Wheeling Trust & Savings Bank.

UNDERWOOD, Justice:

The apparently undisputed facts in this case are that plaintiff Glenn E. Miller took office as a member of the county board of Lake County (the board) on December 2 1974. He owned between 1% and 2% of the capital stock of the Wheeling Trust & Savings Bank (the bank) and served as one of its directors. Also, he served as president of the Wheeling Safety Deposit Building Corporation, a subsidiary of the bank. During the period relevant to this litigation the county treasurer of Lake County repeatedly requested the county board, pursuant to the provisions of the County Funds Depository Act (Ill.Rev.Stat.1975, ch. 36, par. 17 et seq.), to designate the Wheeling bank, among many others, as an approved depository for the funds under the treasurer's control. The board did so. With one exception, plaintiff participated in those board votes. In addition he voted against amendments designed to remove the bank as an approved depository. Following adoption at an August 1975 board meeting of an amendment eliminating the Wheeling bank from the list of approved depositories, plaintiff apparently moved at the September meeting to reconsider the August action and the bank was reinstated on the approved list by a one-vote margin. It is alleged in an admitted allegation that "(t)his same procedure was employed at the January and February, 1976 * * * " board meetings.

The Wheeling bank, while located in Cook County, is near the Lake County line and had been used as an approved depository for Lake County funds for some years before plaintiff was elected to the Lake County board. Although apparently no reference was made to plaintiff's interest in the bank during the depository- designating proceedings, plaintiff's stock in the bank was listed in his disclosure statements filed with the Lake County clerk. It seems to be agreed that all banks in Lake County and some in the surrounding counties were regularly designated as approved depositories. It is also undisputed that the amounts of Lake County funds on deposit in the Wheeling bank decreased after plaintiff's election, and that the rates paid the county by the bank were competitive and in some instances higher than the rates paid by other banks. It is not contended that plaintiff had attempted to persuade the Lake County treasurer to place funds in the Wheeling bank.

The State's Attorney of Lake County, apparently responding to an inquiry from a board member, issued a formal opinion indicating that plaintiff's conduct constituted a violation of section 3 of what was then the Corrupt Practices Act (Ill.Rev.Stat.1975, ch. 102, par. 3). He had also indicated an intention to institute a criminal prosecution against plaintiff and a civil action against the bank.

On July 13, 1977, plaintiff filed a complaint for a declaratory judgment and injunctive relief naming the County of Lake, the State's Attorney, and the Wheeling bank as defendants. Alleging the existence of an actual controversy, plaintiff sought a declaratory judgment that his conduct did not violate the Corrupt Practices Act, and that the deposit contracts between the bank and the county treasurer were valid; he also sought an injunction restraining the State's Attorney from instituting either criminal or civil action against plaintiff or the bank.

One week later the State's Attorney filed a complaint alleging plaintiff's stock ownership, his participation in the proceedings designating the Wheeling bank as an approved depository, and that the deposit contracts were void. An accounting by the bank was sought for the profits earned on the Lake County deposits in excess of the interest paid the county. During the period in question those deposits aggregated some $26 million. The maximum on deposit at any one time approximated $2 million, and the maturities ranged from 2 to 90 days. Plaintiff, the county treasurer and the bank were named as defendants.

The State's Attorney first answered and then moved to dismiss plaintiff's complaint, and the bank and county treasurer moved to dismiss the State's Attorney's complaint. Plaintiff moved for summary judgment on his complaint. The trial court consolidated the actions and found in a memorandum opinion that there was an actual controversy, no issue of fact, and that plaintiff's participation in the board action designating the bank as a depository did not violate the Corrupt Practices Act. Concluding that the contracts were valid, the trial judge granted plaintiff's motion for summary judgment and allowed the motions to dismiss the State's Attorney's complaint.

On appeal the appellate court affirmed the existence of an actual controversy but reversed and remanded for an evidentiary hearing to determine whether the board designation of depositories was a "perfunctory act" and "likely to remain so in the future." (71 Ill.App.3d 478, 484, 27 Ill.Dec. 566, 571, 389 N.E.2d 630, 635.) If the trial court so found, section 3 was to be declared inapplicable and the contracts valid. If, however, the designation were found to be other than "purely perfunctory," the Act was to be applied, the contracts held void and an accounting ordered. The refusal of the appellate court to adopt a per se rule was in part due to its belief that county boards in some counties traditionally approved all banks suggested by the treasurer, never suggesting change. In such circumstances, that court reasoned, section 3 was not violated by a shareholder board member's participation.

The existence of an actual controversy is again questioned here. Contending that plaintiff's action for a declaratory judgment and injunction seeks only judicial examination of an opinion issued by the State's Attorney and of past conduct, the State's Attorney argues that no actual controversy is present.

In explaining what is contemplated by the requirement of an "actual controversy" in our declaratory judgment statute (Ill.Rev.Stat.1975, ch. 110, par. 57.1), this court has stated:

" ' "Actual" in this context does not mean that a wrong must have been committed and injury inflicted. Rather, it requires a showing that the underlying facts and issues of the case are not moot or premature, so as to require the court to pass judgment on mere abstract propositions of law, render an advisory opinion, or give legal advice as to future events. (Citations.) The case must, therefore, present a concrete dispute admitting of an immediate and definitive determination of the parties' rights, the resolution of which will aid in the termination of the controversy or some part thereof. (Citations.)' " (Howlett v. Scott (1977), 69 Ill.2d 135, 141-42, 13 Ill.Dec. 9, 11, 370 N.E.2d 1036, 1038; quoting, Underground Contractors Association v. City of Chicago (1977), 66 Ill.2d 371, 375, 5 Ill.Dec. 827, 362 N.E.2d 298.)

We have concluded, in other words, that the " 'actual controversy' requirement is meant merely to distinguish justiciable issues from abstract or hypothetical disputes and is not intended to prevent resolution of concrete disputes admitting of a definitive and immediate determination of the rights of the parties." Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill.2d 443, 452, 27 Ill.Dec. 465, 468, 389 N.E.2d 529, 532, citing A. S. & W. Club v. Drobnick (1962), 26 Ill.2d 521, 524, 187 N.E.2d 247.

In our view, plaintiff's action presents such a concrete dispute and is distinguishable from the actions dismissed in Howlett and Fitzgerald v. County of Kane (1974), 58 Ill.2d 112, 317 N.E.2d 508. In Fitzgerald an action for declaratory judgment by a county treasurer sought invalidation of contracts of deposit made with certain banks in which particular members of the county board allegedly owned shares of stock. Because of the apparent availability of other banks designated as county depositories and since the banks whose deposits were challenged had not been joined as defendants, this court held that the county treasurer sought only an advisory opinion.

The suit for declaratory judgment in Howlett was based on an investigative report by an assistant to his supervisor without any indication by the supervisor as to the course of action he intended to take. This court ruled that the action had been brought prematurely and that any judgment entered would have been at best an advisory opinion. It was further held that the termination of the relationship forming the basis of the suit rendered recourse through the declaratory judgment statute inappropriate since it was not designed to provide mere declarations of nonliability for past conduct. See Howlett v. Scott (1977), 69 Ill.2d 135, 143, 13 Ill.Dec. 9, 370 N.E.2d 1036; see also Cunningham Brothers, Inc. v. Bail (7th Cir. 1969), 407 F.2d 1165, 1169, cert. denied (1969), 395 U.S. 959, 89 S.Ct. 2100, 23 L.Ed.2d 745; Hanes Corp. v. Millard (D.C. Cir. 1976), 531 F.2d 585.

The circumstances involved in the present action are entirely distinguishable. The State's Attorney, as the county's chief prosecuting authority, issued a formal written opinion indicating plaintiff's conduct contravened section 3 of the Corrupt Practices Act. He also informed plaintiff's counsel of his intention to institute civil proceedings for an...