Peraica v. Riverside-Brookfield High Sch. Dist. No. 208

Citation999 N.E.2d 399
Decision Date31 October 2013
Docket NumberDocket No. 1–12–2351.
PartiesAnthony PERAICA and Taxpayers United of America, Plaintiffs–Appellants and Cross–Appellees, v. RIVERSIDE–BROOKFIELD HIGH SCHOOL DISTRICT NO. 208, Defendant–Appellee and Cross–Appellant.
CourtUnited States Appellate Court of Illinois

999 N.E.2d 399

Anthony PERAICA and Taxpayers United of America, Plaintiffs–Appellants and Cross–Appellees
RIVERSIDE–BROOKFIELD HIGH SCHOOL DISTRICT NO. 208, Defendant–Appellee and Cross–Appellant.

Docket No. 1–12–2351.

Appellate Court of Illinois, First District, Fourth Decision.

Oct. 31, 2013.

999 N.E.2d 402

Anthony J. Peraica, of Anthony J. Peraica & Associates, Ltd., of Chicago, appellant pro se.

J. Todd Faulkner, William R. Pokorny, and Scott R. Metcalf, all of Franczek Radelet P.C., of Chicago, for appellee.


Justice EPSTEIN delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Anthony Peraica and Taxpayers United of America, appeal the circuit court of Cook County's decision to dismiss, pursuant to section 2 –615 of the Code of Civil Procedure (735 ILCS 5/2–615 (West 2010) ), their second amended complaint against defendant Riverside–Brookfield High School District No. 208. Plaintiffs had alleged that defendant violated state laws, i.e., section 18–115 of the Property Tax Code (35 ILCS 200/18–115 (West 2010) ) and section 9–25.1 of the Election Code (10 ILCS 5/9–25.1 (West 2010) ), as well as “the 1st, 9th and 14th Amendment rights of the plaintiffs as guaranteed under the United States Constitution and under the parallel provisions of the Illinois Constitution of 1970 (Article 1, §§ 2, 4, 5 and 24),” article III, section 3, of the Illinois Constitution (Ill. Const. 1970, art. III, § 3), and the guarantees of the Civil Rights Act of 1871 (42 U.S.C. § 1983 (2000) ). Defendant cross-appeals the circuit court's order denying its request for attorney fees pursuant to section 1988 of the Civil Rights Act (42 U.S.C. § 1988 (2000) ). For the reasons that follow, we affirm.


¶ 3 For purposes of our review of the ruling on defendant's motion to dismiss, where the legal sufficiency of the complaint has been attacked, we accept as true the allegations in plaintiffs' second amended complaint. See Imperial Apparel, Ltd. v. Cosmo's Designer Direct, Inc., 227 Ill.2d 381, 384, 317 Ill.Dec. 855, 882 N.E.2d 1011 (2008) ; River Park, Inc. v. City of Highland Park, 184 Ill.2d 290, 293, 234 Ill.Dec. 783, 703 N.E.2d 883 (1998). The relevant facts, however, are not in dispute.

999 N.E.2d 403

¶ 4 Defendant placed a referendum on the ballot for the April 5, 2011 consolidated general election, apparently seeking voter approval to increase defendant's property tax limiting rate. The referendum was defeated. However, on April 26, 2011, plaintiffs filed a three-count verified petition for expedited declaratory, injunctive, and other relief against defendant and its members. Plaintiffs alleged, among other things, that defendant and its members proceeded with the referendum knowing that it was misleading and understated the amount of the property tax increase, and that they engaged in illegal electioneering to promote an affirmative vote on the referendum. After defendant and its members moved to dismiss plaintiffs' original complaint, plaintiffs voluntarily dismissed the named school board members. Plaintiffs subsequently filed a three-count first amended complaint against defendant on September 9, 2011, again seeking declaratory, injunctive, and other relief.

¶ 5 On October 19, 2011, defendant filed a motion to dismiss. On March 2, 2012, the trial court granted defendant's motion and dismissed counts I and II with prejudice. Count III, which alleged a violation of civil rights, was dismissed without prejudice.

¶ 6 On March 30, 2012, plaintiffs filed their second amended complaint, asserting a single claim seeking redress for violations of their constitutional rights. Among other things, plaintiffs alleged that defendant failed to “provide a fair and reasonable approximation of the property tax increase” in violation of the Property Tax Code. Plaintiffs also contended that defendant engaged in “election interference prohibited under the Election Code and in violation of the natural and civil rights of the plaintiffs by engaging in activities at public expense to promote an affirmative vote on the referendum.” Plaintiffs alleged that these activities included, among other things, “producing and distributing leaflets in support of the referendum” and “electioneering activities calculated to discourage opposition to [the] referendum and to promote an affirmative vote thereon.” In paragraph 12 of the second amended complaint, plaintiffs alleged that defendant violated section 9–25.1 of the Election Code (10 ILCS 5/9–25.1 (West 2010) ) (entitled Election interference) by using public funds to support an affirmative vote on the referendum by:

“a. telling students to circulate ‘volunteer’ forms to other students during school hours, to sign-up students for pro-referendum literature blitzes and campaign activity;
b. allowing a pro-referendum group to use public resources such as tables, chairs, official publications and the like at school events on school grounds and inside the school building seeking support for the referendum from district residents;
c. hosting, on the school football field [,] a student gathering and rally in support of an affirmative vote on the referendum;
d. providing student photos, taken by the district photographer, to a pro-referendum group for its use in pro-referendum flyers and other campaign literature;
e. producing a pro-referendum television spot for the school's cable television station RBTV urging an affirmative vote on the referendum;
f. using the same television spot on the website for the television station;
g. producing a pro-referendum television program using two senior employees of the District;
999 N.E.2d 404
h. mailing pro-referendum literature, produced at public expense, to 11,000 voters in District 208;
i. allowing an assistant principal to use school computers for maintaining pro-referendum campaign volunteer lists and other pro-referendum related information;
j. encouraging and allowing teachers to ‘blog’ on local websites in support of an affirmative vote on the referendum;
k. allowing and encouraging numerous telephone calls and emails by administrators and staff in support of an affirmative vote on the referendum; [and]
l. directing senior personnel to speak to local groups urging them to cast an affirmative vote on the referendum.”

¶ 7 Defendant again moved to dismiss the complaint pursuant to section 2 –615. On July 17, 2012, the trial court granted defendant's motion to dismiss plaintiffs' second amended complaint and denied defendant's motion for attorney fees. On August 8, 2012, plaintiffs filed a notice of appeal. Defendant filed a cross-appeal.


¶ 9 A motion to dismiss for failure to state a cause of action pursuant to section 2 –615 attacks “the legal sufficiency of a complaint based on defects apparent on its face.” Pooh–Bah Enterprises, Inc. v. County of Cook, 232 Ill.2d 463, 473, 328 Ill.Dec. 892, 905 N.E.2d 781 (2009). At this pleading stage, a plaintiff is not required to prove his case and need only allege sufficient facts to state all elements of the cause of action. Fox v. Seiden, 382 Ill.App.3d 288, 294, 320 Ill.Dec. 592, 887 N.E.2d 736 (2008). When reviewing a section 2 –615 motion, we accept as true “[a]ll well-pleaded facts and reasonable inferences that can be drawn from those facts.” Tuite v. Corbitt, 224 Ill.2d 490, 509, 310 Ill.Dec. 303, 866 N.E.2d 114 (2006). We also interpret the allegations in the complaint in the light most favorable to the plaintiff. Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 13, 358 Ill.Dec. 613, 965 N.E.2d 1092;Imperial Apparel, Ltd., 227 Ill.2d at 384, 317 Ill.Dec. 855, 882 N.E.2d 1011. “A circuit court should grant a section 2 –615 motion to dismiss only if it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief.” (Internal quotation marks omitted.) Estate of Powell v. John C. Wunsch, P.C., 2013 IL App (1st) 121854, ¶ 15, 371 Ill.Dec. 37, 989 N.E.2d 627. “ ‘This broad statement, however, should not be interpreted as an adoption of notice pleading.’ [Citation.]” CNA International, Inc. v. Baer, 2012 IL App (1st) 112174, ¶ 30, 367 Ill.Dec. 116, 981 N.E.2d 441. In opposing a motion for dismissal under section 2 –615, “a plaintiff may not rely on mere conclusions of law or fact unsupported by specific factual allegations.” Pooh–Bah Enterprises, Inc., 232 Ill.2d at 473, 328 Ill.Dec. 892, 905 N.E.2d 781; accord Jackson v. South Holland Dodge, Inc., 197 Ill.2d 39, 52, 258 Ill.Dec. 79, 755 N.E.2d 462 (2001). “Illinois is a fact-pleading jurisdiction.” Beahringer v. Page, 204 Ill.2d 363, 369, 273 Ill.Dec. 784, 789 N.E.2d 1216 (2003). “Because Illinois is a fact-pleading jurisdiction, a plaintiff must allege facts, not mere conclusions, to establish his or her claim as a viable cause of action.” Napleton v. Village of Hinsdale, 229 Ill.2d 296,...

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