People ex rel. Ballard v. Niekamp, 4–10–0796.

• Decision Date: 19 September 2011
• Docket Number: No. 4–10–0796.,4–10–0796.
• Parties: The PEOPLE of the State of Illinois ex rel. Kevin Sean BALLARD, Quentin Chambers, Donia J. Gardner, G. Curtis Gardner, Michael K. Smith, Cynthia J. Helmer, Melissa E. Holden, William P. Holden, Rhonda L. Klesner, Dennis G. Koch, Kay E. Merrick, Claire Safford, Michael L. Schuttler, and Dennis C. William, Plaintiffs,andCarol W. Nichols, William D. Daniels, and Glenn M. Bemis, Plaintiffs–Appellees, v. Melvin (Bud) NIEKAMP, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (4th) 100796
276 Ed. Law Rep. 426
356 Ill.Dec. 192
961 N.E.2d 288

The PEOPLE of the State of Illinois ex rel. Kevin Sean BALLARD, Quentin Chambers, Donia J. Gardner, G. Curtis Gardner, Michael K. Smith, Cynthia J. Helmer, Melissa E. Holden, William P. Holden, Rhonda L. Klesner, Dennis G. Koch, Kay E. Merrick, Claire Safford, Michael L. Schuttler, and Dennis C. William, Plaintiffs,andCarol W. Nichols, William D. Daniels, and Glenn M. Bemis, Plaintiffs–Appellees,
v.
Melvin (Bud) NIEKAMP, Defendant–Appellant.

No. 4–10–0796.

Appellate Court of Illinois, Fourth District.

Sept. 19, 2011.

[961 N.E.2d 290]

Jesse R. Gilsdorf (argued), of Mt. Sterling, for appellant.

John T. Inghram IV and RaNae A. Dunham Inghram (argued), both of Inghram & Inghram, of Quincy, for appellees.

[356 Ill.Dec. 194] OPINION Justice POPE delivered the judgment of the court, with opinion.

¶ 1 On September 2, 2010, the trial court entered a judgment of ouster, ousting defendant Melvin (Bud) Niekamp from his office as a member of the Board of Education of the Quincy School District # 172 (school board) because he violated section 1 of the Public Officer Prohibited Activities Act (Act) (50 ILCS 105/1 (West 2008)). Niekamp appeals, arguing (1) plaintiffs Carol W. Nichols, William D. Daniels, and Glenn M. Bemis did not have standing to bring a quo warranto action against him; (2) plaintiffs were guilty of laches, improper motive, and waiver or acquiescence; and (3) the court improperly denied Niekamp's motion for summary judgment. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In July 2009, the named plaintiffs with the exception of Nichols, Daniels, and Bemis filed the first application for leave to file a complaint in quo warranto, seeking the removal of Niekamp from the school board. Both the Illinois Attorney General's office and the Adams County State's Attorney's office had declined the plaintiffs' request to bring a quo warranto proceeding.

¶ 4 Eventually, after numerous motions and hearings, the original named plaintiffs were dismissed from the case, and the trial court granted leave for Nichols, Daniels, and Bemis to be added as relators to the application for leave to file the quo warranto action.

¶ 5 The parties stipulated to the following facts. Niekamp was first elected to the school board in November 1989 and has served continuously. He was most recently reelected in April 2009. That same month, he was administered the oath of office as a member of the school board.

¶ 6 Niekamp was first elected to the Adams County Board (county board) in November 1992. He was subsequently elected to consecutive terms on the county board. His most recent election was in November 2008. As a result, he was a sitting member of the county board when he took the school board oath of office in April 2009. In July 2009, Niekamp submitted his resignation as a member of the county board. The county board accepted his resignation that same month.

¶ 7 In May 2010, the trial court entered an order granting Nichols, Daniels, and Bemis leave to file a proceeding in quo warranto. The court found as follows: (1) each of the relators had standing to proceed in quo warranto; (2) defendant failed to prove any of the relators was guilty of laches or improper motives; (3) defendant failed to prove any of the relators had waived his or her right to object to defendant serving on the school board or had acquiesced thereto; and (4) the public interest would be served by granting the relief requested by the relators in their respective applications.

¶ 8 On May 17, 2010, Nichols, Daniels, and Bemis filed their complaint in quo warranto. On June 7, 2010, defendant filed a motion to dismiss and/or strike [356 Ill.Dec. 195]

[961 N.E.2d 291]

pleadings. On June 14, 2010, plaintiffs filed a motion for summary judgment. On June 21, 2010, the trial court heard arguments on defendant's motion to dismiss and/or strike pleadings. The court granted the motion to strike certain paragraphs based on the parties' agreement and gave defendant until July 12, 2010, to file an answer and affirmative defenses. On July 12, 2010, defendant filed an answer to the quo warranto complaint and affirmative defenses.

¶ 9 On July 23, 2010, plaintiffs filed an amended motion for summary judgment. On August 10, 2010, defendant filed a motion for summary judgment. On September 2, 2010, the trial court entered a judgment of ouster.

¶ 10 This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 As previously stated, Niekamp argues (1) plaintiffs Carol W. Nichols, William D. Daniels, and Glenn M. Bemis did not have standing to bring a quo warranto action against him; (2) plaintiffs were guilty of laches, improper motive, and waiver or acquiescence; and (3) the court improperly denied Niekamp's motion for summary judgment.

¶ 13 A. Plaintiff's Motion To Dismiss Appeal as Moot

¶ 14 Before we address defendant's arguments, we must determine whether this appeal is moot. After defendant filed his appeal, he subsequently ran for and was elected to another position on the school board on April 5, 2011. On April 20, 2011, defendant took the oath of office for this new position on the school board. On May 31, 2011, just over a week prior to oral arguments in this case, plaintiffs filed a motion to dismiss defendant's appeal as moot because his acceptance of the new position on the school board was a de facto resignation of the position at issue in this appeal. On June 2, 2011, we ordered the motion to dismiss taken with the case. Defendant opposed the motion to dismiss in both a written response and during oral argument.

¶ 15 After oral argument, on June 8, 2011, defendant filed a motion for leave to cite People ex rel. Courtney v. Botts, 376 Ill. 476, 34 N.E.2d 403 (1941), as supplemental authority in support of his argument plaintiffs' motion to dismiss this appeal as moot should be denied. On June 15, 2011, we allowed the motion to supplement and granted plaintiffs two weeks to respond if they so chose. On June 29, 2011, plaintiffs filed a response.

¶ 16 While we question whether our supreme court would uphold its decision in Botts today, we are bound by the opinion. As a result, based on Botts, we deny plaintiffs' motion to dismiss this appeal as moot. In Botts, 376 Ill. at 478–79, 34 N.E.2d at 403–04, the Cook County State's Attorney brought the quo warranto action to determine whether G.G. Botts was rightfully elected to a one-year term as director of the Riverview Park Company at a stockholders' meeting on December 12, 1938. On December 11, 1939, the trial court dismissed the quo warranto action. On December 20, 1939, Botts again was elected director of the Board. Botts, 376 Ill. at 479, 34 N.E.2d at 404. The State appealed the dismissal.

¶ 17 It does not appear anyone contested Botts's second election. As a result, the appeal of the quo warranto decision regarding the validity of Botts's first election would have had no effect on Botts's second election as director. However, the Cook County State's Attorney appealed the dismissal of the quo warranto action involving the first election. Botts argued the appeal should have been dismissed as moot.

[961 N.E.2d 292]

[356 Ill.Dec. 196] ¶ 18 Our supreme court did not agree the appeal was moot, stating:

“The Illinois [ quo warranto ] statute is modeled on the statute of Anne relating to quo warranto (9 Anne, chap. 20,) which was enacted for the purpose of rendering proceedings in the nature of quo warranto more speedy and effectual. It has been held that under that statute, and the statutes of other States containing a provision for a fine, the case does not become moot although the usurpation was not continued to the date of trial. [Citations.]

There are cases holding that the plaintiff or relator in a quo warranto proceeding may prosecute the case to a final judgment, notwithstanding the expiration of the term of office before the case is finally adjudicated. [Citations.]

* * * ‘[A quo warranto action] still retains that character to the extent that the proceedings are in the name of the People and criminal in form for the double purpose of punishing the usurper and ousting him from the enjoyment of the franchise.’ [ People v. Gartenstein, 248 Ill. 546, 551, 94 N.E. 128, 129 (1911).]

* * * The expiration of the office might terminate the private right of the plaintiff, but it would not terminate the jurisdiction of the court to adjudge punishment for the violation of the law. * * * We are of the opinion that the case did not become moot by termination of the term for which...