Jones v. Brown-Marino

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Appellate Court Date: 2017.06.28

10:55:26 -05'00'

Jones v. Brown-Marino, 2017 IL App (1st) 152852

Appellate Court SHERMAN C. JONES, in His Capacity as President of the Village of

Caption Broadview, Plaintiff-Appellant, v. JUDY BROWN-MARINO,

DIANE LITTLE, TARA BREWER, and JOHN EALEY, in Their

Capacity as Trustees of the Village of Broadview, Defendants-

Appellees.

District & No. First District, First Division

Docket No. 1-15-2852

Rule 23 order filed February 27, 2017

Motion to publish

allowed April 6, 2017

Opinion filed April 10, 2017

Decision Under Appeal from the Circuit Court of Cook County, No. 15-CH-8862; the

Review Hon. Thomas R. Allen, Judge, presiding.

Judgment Affirmed.

Counsel on Dominick L. Lanzito and Jenifer L. Turiello, of Peterson, Johnson &

Appeal Murray—Chicago LLC, of Chicago, for appellant.

Keri-Lyn J. Krafthefer and Adam W. Lasker, of Ancel, Glink,

Diamond, Bush DiCianni & Krafthefer, PC, of Chicago, for appellee.

Panel JUSTICE SIMON delivered the judgment of the court, with opinion.

Presiding Justice Connors and Justice Harris concurred in the

judgment and opinion.

OPINION

¶1 Following an election, plaintiff’s party lost majority control of the board of trustees. The

new majority party began to take actions adverse to plaintiff’s interests, and plaintiff is trying

to stop them. The board of trustees passed an ordinance allowing trustees to hire outside

counsel to assist with drafting legislation and other legislative services. Plaintiff filed this case

seeking a declaration that the ordinance was legally invalid. Plaintiff also moved the court to

disqualify the law firm that defendants had hired to provide legislative services. The trial court

denied plaintiff’s motion to disqualify counsel and subsequently dismissed the case. The trial

court committed no error, and we affirm.

¶2 BACKGROUND

¶3 Plaintiff Sherman C. Jones filed this case in his capacity as president of the Village of

Broadview. After the 2015 election, Jones’s party lost the majority of village trustees who are

charged with passing legislation. The new majority party, the Better Broadview Party, counts

defendants Judy Brown-Marino, Diane Little, Tara Brewer, and John Ealey as members. After

being sworn in as trustees, to the dismay of Kevin McGrier and Gwenevere Turner the

now-minority trustees, defendants began to assert their newfound control of the legislative

process in the village.

¶4 Defendants passed the “Legislative Counsel Ordinance.” The ordinance allows village

trustees to enlist outside counsel to provide services like assistance with drafting ordinances

and contracts and basically anything else that comes within the trustees’ purview. Plaintiff, as

the village president, does not like the legislative counsel ordinance, particularly because the

appointed village attorney is loyal to him while outside counsel is predictably hostile. So

plaintiff filed a complaint asking the court to invalidate the legislative counsel ordinance. He

then moved to have the particular outside counsel hired, Ancel, Glink, Diamond, Bush,

DiCianni & Krafthefer, P.C. (Ancel Glink), disqualified from representing the trustees.

Plaintiff, among other arguments, maintained that the ordinance eroded his executive branch

powers because hiring outside counsel transferred responsibilities from the village attorney to

another attorney.

¶5 The appeal is principally directed at the disqualification issue. Plaintiff argues that Ancel

Glink should be disqualified because it has a conflict of interest under Rule 1.7 of the Illinois

Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010). Rule 1.7 says that lawyers should

not represent a client if the lawyer has a concurrent conflict of interest. “A concurrent conflict

of interest exists if: (1) the representation of one client will be directly adverse to another

client; or (2) there is a significant risk that the representation of one or more clients will be

materially limited by the lawyer’s responsibilities to another client, a former client or a third

person or by a personal interest of the lawyer.” Ill. R. Prof’l Conduct (2010) 1.7(a) (eff. Jan. 1,

2010).

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¶6 Ancel Glink has represented defendants in past litigation and was supposedly representing

them in two matters associated with village business at the time the ordinance was passed.

Plaintiff maintains that Ancel Glink’s simultaneous representation of defendants in litigation,

combined with the firm being hired as outside legislative counsel for the trustees, is prohibited.

Plaintiff basically maintains that trustees McGrier and Turner, the minority party members, are

being forced to be represented by Ancel Glink despite the fact that they oppose parties in

ongoing legislation that are represented by Ancel Glink. According to plaintiff, because of the

firm’s preexisting adversarial relationship with McGrier and Turner, those trustees “can never

get the attention and allegiance they deserve from Ancel Glink in legislative drafting and other

endeavors.”

¶7 The trial court denied plaintiff’s motion to disqualify Ancel Glink. The case then turned to

plaintiff’s various arguments as to why the ordinance should be invalidated. Defendants filed a

motion to dismiss, and the trial court granted it. Plaintiff appeals.

¶8 ANALYSIS

¶9 I. Disqualification of Ancel Glink

¶ 10 The appeal in this case is relatively odd in that no one is seeking an order to disqualify an

attorney in this specific case. Instead, plaintiff seeks an order that Ancel Glink cannot represent

defendants in their unrelated legislative endeavors.

¶ 11 Generally, we review a circuit court’s ruling on a motion to disqualify an attorney for an

abuse of the court’s discretion. Schwartz v. Cortelloni, 177 Ill. 2d 166, 176 (1997). However,

insofar as this case concerns the interpretation of an ordinance, our review is de novo. La Salle

National Bank v. City Suites, Inc., 325 Ill. App. 3d 780, 786 (2001).

¶ 12 The legislative counsel ordinance states that:

“When, from time to time, it is found to be in the best interests of the Village of

Broadview for the Trustees to retain independent Legislative Counsel, the Board of

Trustees may choose to do so by Ordinance. Said Legislative Counsel would advise the

Trustees on matters relating to their legislative duties, which may include, but are not

limited to, the drafting [of] ordinances, contract documents, opinions on the powers of

the legislative branch, analysis of the validity of actions taken by the Village, review of

litigation issues and providing other advice on matters within the purview of the

legislative branch of municipal government. The Trustees shall by motion, select one

or two Trustees who shall be allowed to direct the Legislative Counsel to provide

services, research and opinion. Trustees may seek legal counsel regarding any matters

within the range of items specified above. The independent Legislative Counsel will

indicate on their invoices the Trustee who initiated the contact with them and will also

provide a general description of the services provided. The independent Legislative

Counsel shall be retained as independent contractors at a rate authorized by the Village

Board. No department or office of independent Legislative Counsel is hereby created.

The Legislative Counsel shall not replace or usurp the powers of the Village Attorney.”

Broadview Village Code § 1-6-8 (June 4, 2015).

¶ 13 There are several reasons that the trial court did not err when it denied plaintiff’s

disqualification motion. What basis does the plaintiff, a member of an entirely separate branch

of the government, have to try to raise a conflict of interest claim that might exist among the

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trustees? Plaintiff has not provided any authority to explain how he might be able to meddle in

the trustees’ choice of counsel for legislative services. Plaintiff has no interest in the matter.

McGrier and Turner have not even objected to being represented by Ancel Glink; they are

entirely absent. Plaintiffs in a case have no standing to challenge defense counsel’s ability to

represent a client without some showing that the representation adversely affects their

interests. Evink v. Pekin Insurance Co., 122 Ill. App. 3d 246, 250 (1984); see generally Eric C.

Surette, Annotation, Standing of Person, Other Than Former Client, to Seek Disqualification

of Attorney in Civil Action, 72 A.L.R.6th 563 (2012).

¶ 14 Rule 1.7 deals with concurrent conflicts of interest, and plaintiff’s request to disqualify

Ancel Glink is not even directed at any specific representation. A party seeking to disqualify

counsel bears the burden of proving the existence of a conflict of interest. Kensington’s Wine

Auctioneers & Brokers, Inc. v. John Hart Fine Wine, Ltd., 392 Ill. App. 3d 1, 13 (2009).

Plaintiff’s whole argument falls apart if Ancel Glink is not representing McGrier and Turner.

And there is nothing to indicate that any such representation exists. The ordinance is entirely

permissive. Trustees may seek outside counsel and the attendant advice if they so desire.

¶ 15 It is also not clear that Ancel Glink is actually “representing” anybody for purposes of Rule

1.7. The trustees are not adverse clients vis-a-vis one another. And the president is not adverse

to the board of trustees. The legal services covered by the ordinance concern assistance with

performing legislative duties. Performing a legal service for someone does not necessarily

equate to “representing” that person as that term is used in Rule 1.7. Even if we did determine

that Ancel Glink is representing someone when it assists a trustee in his performance of

legislative services, the firm still only represents those individuals that want its services.

¶ 16 Defendants also point out that there is no concurrent conflict as required for

disqualification under Rule 1.7. Defendants state that both of the cases that involved Ancel

Glink and the trustees as adverse parties “have now both reached final judgment and are well

beyond the timeframe for filing any appeals.” So Rule 1.7 cannot serve as a basis for

disqualifying Ancel Glink from performing legislative services. Accordingly, the trial court

did not err when it denied plaintiff’s motion to disqualify counsel.

¶ 17 II. Dismissal of the Complaint

¶ 18 Plaintiff argues that the trial court erred when it dismissed his complaint. We review the

dismissal of a complaint de novo. Sandholm v. Kuecker, 2012 IL 111443, ¶ 55. Defendants’

motion to dismiss was brought pursuant to the section of the Code of Civil Procedure that

allows a defendant to file a combined motion directed at a pleading. 735 ILCS 5/2-619.1 (West

2012).

¶ 19 A section 2-615 motion attacks the sufficiency of a complaint and raises the question of

whether a complaint states a cause of action upon which relief can be granted. Fox v. Seiden,

382 Ill. App. 3d 288, 294 (2008). All well-pleaded facts must be taken as true, and any

inferences should be drawn in favor of the nonmovant. 735 ILCS 5/2-615 (West 2012); In re

Application of the County Treasurer & ex-officio County Collector, 386 Ill. App. 3d 906, 908

(2008). Plaintiffs are not required to prove their case at the pleading stage; they are merely

required to allege sufficient facts to state all elements that are necessary to constitute each

cause of action in their complaint. Visvardis v. Eric P. Ferleger, P.C., 375 Ill. App. 3d 719, 724

(2007). A section 2-615 motion to dismiss should not be granted unless no set of facts could be

proved that would entitle the plaintiff to relief. Beacham v. Walker, 231 Ill. 2d 51, 58 (2008).

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¶ 20 A section 2-619 motion to dismiss admits the legal sufficiency of the complaint. 735 ILCS

5/2-619 (West 2012). The purpose of a section 2-619 motion to dismiss is to dispose of issues

of law and easily proved issues of fact at the outset of the litigation. In re Estate of Gallagher,

383 Ill. App. 3d 901, 903 (2008). Although a section 2-619 motion to dismiss admits the legal

sufficiency of a complaint, it raises defects, defenses, or some other affirmative matter

appearing on the face of the complaint or established by external submissions, that defeat the

plaintiff’s claim. Ball v. County of Cook, 385 Ill. App. 3d 103, 107 (2008).

¶ 21 In his complaint, plaintiff contends that the legislative counsel ordinance and another

ordinance, the “Meeting Ordinance,” are void on their face and illegal. Plaintiff argues that

defendants are sidestepping the village attorney and thereby divesting plaintiff of his statutory

executive powers.

¶ 22 The legislative counsel ordinance specifically says that the village attorney’s powers are

not to be usurped. The only concrete thing plaintiff points to in an attempt to demonstrate the

unlawfulness of the ordinances is that the village code states that “[t]he Village Attorney shall

attend the meetings of the Board of Trustees and shall draft all ordinances, bonds, contracts,

leases, conveyances and other instruments of writing, including abstracts of title, required for

the business of the Village.” Broadview Village Code § 1-8B-1-3(B) (1987). Plaintiff

maintains that, because the village attorney “shall” perform all the legislative drafting, etc., the

trustees are forbidden from cutting that person out of the process.

¶ 23 There is nothing in the village code that gives the village attorney exclusive control over

the drafting process or any other legislative function. Section 1-8B-1-3 imposes duties on the

village attorney, not the board of trustees. Surely plaintiff, as the executive, cannot exert

exclusive control over the legislative process. It is clear that the village attorney is aligned with

plaintiff, and as even plaintiff acknowledges, there is nothing that prohibits defendants from

getting legal advice elsewhere. Sampson v. Graves, 304 Ill. App. 3d 961, 967-68 (1999).

Plaintiff has not provided any authority or a sound logical basis for finding the ordinances to be

unconstitutional or otherwise unlawful.

¶ 24 Moreover, the board amended the village code to state that “[t]he Village Attorney ***

shall, when called upon, draft all ordinances, bonds, contracts, (etc.).” (Emphasis added.) So

even if plaintiff is correct that the prior version of the village code required the village

attorney’s participation in the legislative process, it no longer does. Plaintiff dismissively

argues that defendants are “tampering with” the village code to effectuate their agenda. The

legislative branch is fully entitled to make laws—and that includes changing them. The board

is free to amend the village code and amend the duties it previously assigned to the village

attorney. The board is free to authorize the use of outside counsel. There is nothing unlawful

about that. See Sampson, 304 Ill. App. 3d at 967-68.

¶ 25 Plaintiff also argues that the legislative counsel ordinance is void on its face and illegal

because it does not have definitive effective dates and because there was not an appropriation

for outside counsel in the budget. As to the first argument, plaintiff maintains that since the

ordinance has an indefinite duration, it violates the Illinois Municipal Code’s limitation on

contractual liabilities. 65 ILCS 5/8-1-7 (West 2012). That statute generally provides that

municipal officers are prohibited from making long-term financial commitments that would tie

the hands of their successors. Cannizzo v. Berwyn Township 708 Community Mental Health

Board, 318 Ill. App. 3d 478, 482-83 (2000).

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¶ 26 Plaintiff maintains that the ordinances “deprive subsequent Boards of legislative control

over the retention of Legislative Counsel.” Like with its previous argument, plaintiff

misunderstands the right of future boards to amend the village code. Nothing in the ordinance

commits the village to any obligation beyond the term of the current board. Moreover, the

ordinance makes clear that any contract with outside counsel is an on-demand request for legal

services. Each request for services is a new contract. There is no ongoing obligation between

the village and Ancel Glink, or, for that matter, any other attorney the board might eventually

choose to utilize under the ordinance.

¶ 27 As for its argument concerning the lack of a budget appropriation, plaintiff argues that

where there is no appropriation in the municipal budget for a contract, the contract is void

(citing Guerine v. City of Northlake, 1 Ill. App. 3d 603, 606-07 (1971)). But plaintiff is not

trying to invalidate any particular contract. He is trying to invalidate the enabling ordinance.

None of the authority plaintiff relies upon deals with invalidating ordinances. Plaintiff is not

arguing on behalf of the village that particular payments to Ancel Glink were invalid. The

village could have, perhaps, sought damages for money paid to defense counsel without a

proper budget appropriation. But nothing has been offered to show that the ordinance itself is

facially invalid. Napleton v. Village of Hinsdale, 374 Ill. App. 3d 1098, 1112 (2007) (facial

challenge requires the challenger to demonstrate the invalidity of the ordinance under any set

of circumstances). The trial court properly dismissed plaintiff’s complaint.

¶ 28 CONCLUSION

¶ 29 Accordingly, we affirm.

¶ 30 Affirmed.

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