People ex rel. Hansen v. Phelan

• Decision Date: 16 March 1993
• Docket Number: 1-92-2931,Nos. 1-92-2915,s. 1-92-2915
• Citation: 194 Ill.Dec. 663,628 N.E.2d 160,255 Ill.App.3d 113
• Parties: , 194 Ill.Dec. 663 The PEOPLE of the State of Illinois ex rel. Carl R. HANSEN, Mary M. McDonald, Herbert T. Schumann, Jr., Richard A. Seibel, in their capacities as members of the Board of Commissioners of Cook County and as taxpayers, Plaintiffs-Appellants, v. Richard J. PHELAN, as President and member of the Board of Commissioners of Cook County, Edward Rosewell, Treasurer of Cook County, John T. Chambers, Comptroller of Cook County and Ruth Rothstein, Director of Cook County Hospitals, Defendants-Appellees. John H. STROGER, Jr., in his capacity as a member of the Board of Commissioners of Cook County and as a taxpayer, Intervenor-Plaintiff-Appellant, v. Richard J. PHELAN, as President and member of the Board of Commissioners of Cook County, Edward Rosewell, Treasurer of Cook County, John T. Chambers, Comptroller of Cook County and Ruth Rothstein, Director of Cook County Hospitals, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 160

628 N.E.2d 160

255 Ill.App.3d 113, 194 Ill.Dec. 663

The PEOPLE of the State of Illinois ex rel. Carl R. HANSEN,

Mary M. McDonald, Herbert T. Schumann, Jr., Richard A.

Seibel, in their capacities as members of the Board of

Commissioners of Cook County and as taxpayers, Plaintiffs-Appellants, v. Richard J. PHELAN, as President and member of the Board of

Commissioners of Cook County, Edward Rosewell, Treasurer of

Cook County, John T. Chambers, Comptroller of Cook County

and Ruth Rothstein, Director of Cook County Hospitals,

Defendants-Appellees.

John H. STROGER, Jr., in his capacity as a member of the

Board of Commissioners of Cook County and as a taxpayer, Intervenor-Plaintiff-Appellant, v. Richard J. PHELAN, as President and member of the Board of

Commissioners of Cook County, Edward Rosewell, Treasurer of

Cook County, John T. Chambers, Comptroller of Cook County

and Ruth Rothstein, Director of Cook County Hospitals,

Defendants-Appellees.

Nos. 1-92-2915, 1-92-2931.

Appellate Court of Illinois,

First District, Second Division.

March 16, 1993.

Hoogendoorn, Talbot, Davids, Godfrey & Milligan, Chicago (James A. Davids, David A. Shaneyfelt, Bruce J. VanHeukelem, of counsel), Morris, Rathnau and De LaRose, Chicago (Joseph A. Morris, of counsel), for plaintiffs-appellants.

Holstein, Mack & Klein, Chicago (Anthony B. Bass, Robert S. Kipnis, Allyson Bouldon, of counsel), for intervenor-plaintiff-appellant.

Jack O'Malley, State's Atty. of Cook County, Chicago (Susan Getzendanner, Sp. Asst. State's Atty., Joseph L. Fogel, Kimberley K. Baer, Martha J. Burns, of counsel), for defendants-appellees.

The Roger Baldwin Fdn. of ACLU, Inc., Chicago (Colleen K. Connell, Dorothy Zimbrakos, of counsel), for amici curiae.

Justice SCARIANO delivered the opinion of the court:

Plaintiffs appeal from the trial court's order denying their petition for a preliminary injunction and dissolving the temporary restraining order it had previously entered. We affirm.

The facts in this case are almost entirely undisputed, as is evidenced by a stipulation in writing entered into by the parties. From 1973 to 1980, elective abortions were being regularly performed at Cook County Hospital when, on October 9, 1980, George W. Dunne, former president of the Cook County Board of Commissioners (the board), issued a directive (the directive or the Dunne directive) to the hospital's medical director ordering the immediate cessation of elective abortion services there, except those necessary to save the life of the woman. Upon issuance of Mr. Dunne's directive, those services at the hospital were immediately terminated. That same day, Mr. Dunne also issued a memorandum to the other members of the county board, with which he enclosed a copy of his directive to Cook County Hospital.

More than six weeks later, on November 24, 1980, Mr. Dunne made an oral motion before the board's public service committee that it "concur in his directive as to elective abortions at Cook County Hospital," and the motion was approved. On December 1, 1980 the board approved and adopted the report of the public service committee. The report was not in the form of an ordinance or a resolution, nor was it ever given an ordinance or resolution number. At no time during the period from October 9, 1980, to December 1, 1980, did the board adopt a written ordinance or resolution terminating elective abortion services at Cook County Hospital.

On June 18, 1992, defendant Richard Phelan, who by this time had succeeded Mr. Dunne as president of the Cook County Board of Commissioners, issued an executive order revoking and declaring Mr. Dunne's action which had terminated the voluntary interruption of pregnancy program at Cook County Hospital, "a nullity," and directed the chief of health services to implement the restoration of elective abortion services there pursuant to the recommendations of a task force report. On July 28, 1992, plaintiffs, four members of the board, initiated this action against defendants seeking to enjoin implementation of President Phelan's executive order. Commissioner John H. Stroger was later granted leave to intervene as a party-plaintiff.

On July 29, 1992, Circuit Judge Richard Curry entered a temporary restraining order; but after a subsequent four-day evidentiary hearing, Circuit Judge Thomas J. O'Brien issued a memorandum of opinion and order denying plaintiffs' motion for preliminary injunction and dissolving the TRO. Plaintiffs filed a timely notice of interlocutory appeal pursuant to Supreme Court Rule 307(a)(1). 134 Ill.2d R. 307(a)(1).

The issues on appeal are simply: did the board have a policy which prohibited President Phelan from resuming the performance of elective abortions at County Hospital, and, if not, did he have the authority to order their resumption?

In Dixon Association for Retarded Citizens v. Thompson (1982), 91 Ill.2d 518, 524-25, 64 Ill.Dec. 565, 568, 440 N.E.2d 117, 120, our supreme court, in defining the scope of our review when considering appeals from decisions rendered in preliminary injunction cases, stated as follows:

"The appellate court, in City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill.App.3d 417, 20 Ill.Dec. 897, 380 N.E.2d 1106, summarized the role of the preliminary injunction and the nature of the review on appeal from an order issuing such an injunction when it stated:

'It is well established that a hearing on a motion for a preliminary injunction does not determine any factual issue. A preliminary injunction is issued to preserve the status quo until the trial court may consider the merits of the case. In ruling on a motion for such relief, controverted facts or the merits of the case are not decided. [Emphasis in original.] In reviewing the discretion exercised by the trial court, an appellate court may decide only whether the petitioner has demonstrated a prima facie case that there is a fair question as to the existence of the rights claimed; that the circumstances lead to a reasonable belief that they probably will be entitled to the relief sought, if the evidence sustains the allegations of the petition; and that matters should be kept in status quo until the case can be decided on its merits. In sum, the only question before us is whether there was a sufficient showing to sustain the order of the trial court. [Citation.]' City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill.App.3d 417, 432-33 [20 Ill.Dec. 897, 380 N.E.2d 1106]."

Our supreme court then went on to say, however, that

"In this case we do not feel limited by the traditional scope of review of an order issuing a preliminary injunction. Although the order in this case purports to be a preliminary injunction and many references are made in the order to the fact that the court is only preserving the status quo until there can be a hearing on the merits, this order is, in effect, a decision on the merits of the case. It should be noted that the transcript of the hearing on the motion for the preliminary injunction is in excess of 4,000 pages. Approximately 28 witnesses testified, and more than 80 exhibits were introduced. The hearing lasted approximately 15 days." Dixon Association 91 Ill.2d at 524-25, 64 Ill.Dec. at 568, 440 N.E.2d at 120.

Similarly, in the case at bar, the report of proceedings on the motion for a preliminary injunction covers approximately 1,000 pages. The trial court heard from 11 witnesses over four days, considered 29 exhibits consisting of an additional 1,000 pages, the common law record consists of still another 1,000 pages, including numerous memoranda of law, and the parties also conducted a variety of discovery proceedings. Besides, as we have already noted, the parties entered into a detailed stipulation of facts which left very few others in dispute. Moreover, as the trial judge states in his memorandum opinion, "plaintiffs initially approached this case as a summary judgment matter. Two days before this hearing, plaintiffs intended to try the case on the merits as a declaratory judgment matter. Therefore, this cannot be characterized as a truncated record hurriedly assembled that will flower into a more convincing proof at a trial on the merits." At oral argument in this court, in response to a query from the bench, both sides were in accord that, as the supreme court did in Dixon Association, this court should consider the order of the trial court in this case to be, in effect, a decision on the merits of the case. Accordingly, the scope of our review will be so governed. (Warrior v. Thompson (1983), 96 Ill.2d 1, 70 Ill.Dec. 179, 449 N.E.2d 53; Preferred Meal Systems, Inc. v. Guse (1990), 199 Ill.App.3d 710, 717-718, 145 Ill.Dec. 736, 557 N.E.2d 506, appeal denied, (1990), 133 Ill.2d 572, 149 Ill.Dec. 336, 561 N.E.2d 706.) We are, therefore, bound to the standard of determining whether the trial court's findings are contrary to the manifest weight of the evidence and/or whether it has misconstrued or misapplied the pertinent law. Dixon Association, 91 Ill.2d 518 at 524-25, 64 Ill.Dec. at 568, 440 N.E.2d at 120; Preferred Meal Systems, 199 Ill.App.3d at 718, 145 Ill.Dec. at 741, 557 N.E.2d at 511.

In ruling on plaintiffs' application for a preliminary injunction, the trial court held

"[t]hat the plaintiffs have failed to prove a likelihood of success since they have failed to prove by a preponderance of the evidence that the practice existing in October 1980 against elective abortions at Cook County Hospital was established as a result of a policy that the Cook County Board established as opposed to a mere directive by the then-president of the County Board. This in no way suggests that the County Board cannot choose to make it a policy now by proper legislative action."

Plaintiffs maintain that the trial judge abused his discretion in requiring them, in a preliminary injunction hearing with an underlying quo warranto claim, to establish a likelihood of...