Petition for Writ of Certiorari — Arthur G. Jaros Jr., Petitioner v. Village of Downers Grove, Illinois, et al.

No. ______________

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of the

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ARTHUR G. JAROS, JR.

Plaintiff/Appellant/Petitioner

vs.

THE VILLAGE OF DOWNERS GROVE,

an Illinois municipal corporation,

Defendant/Appellee/Respondent

et al.

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On Petition for Writ of Certiorari to the Illinois Supreme Court

PETITION FOR WRIT OF CERTIORARI

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Arthur G. Jaros, Jr.,Counsel of Record

The Law Office of Arthur G. Jaros, Jr.

1200 Harger Road, #830

Oak Brook, IL 60523

(630) 574-0525

August 23, 2021

agjlaw@earthlink.net

-i-

QUESTIONS PRESENTED

I.

Notwithstanding its Home Rule Powers, did the Respondent Village

of Downers Grove Violate Petitioner Jaros’ First Amendment Right

to Freedom of Speech by Engaging in a Retaliatory Removal of Jaros

from his Statutory Six Year Term as Public Library Trustee

Because Jaros, in such Official Capacity, Had Made Policy

Statements Based on Illinois Statutory Law While Engaged in a

Library Board Legislative Function Where, Under the State’s Local

Public Library Act, Library Board Trustees are Appointed by

Elective Action of the Village Council of the Geographically

Correlative Village Municipal Corporation?

II.

Notwithstanding its Home Rule Powers, did the Respondent Village

of Downers Grove Deprive Petitioner Jaros of a Liberty and/or

Property Interest in his Statutory Position, including its Six Year

Term, as a Trustee of a Public Library Governed by the Illinois

Local Library Act Where Respondent Summarily Truncated that

Term by Summary Action that Terminated Jaros’ Service as Trustee

without any Opportunity for him to be Heard and Therefore in

Violation of his Federal Constitutional Right under the Fourteenth

Amendment to Procedural Due Process of Law?

-ii-

LIST OF ALL PARTIES

(1) Petitioner Arthur G. Jaros, Jr., a resident of the State of

Illinois, was the Plaintiff-Appellant in the proceedings below in the

courts of the State of Illinois and is a member of the bars of the States

of Illinois and Michigan and of this Court.

(2) Respondent Village of Downers Grove is a municipal

corporation and was a Defendant-Appellee in the proceedings below.

(3) Susan D. Farley, a resident of the State of Illinois, was a

Defendant-Appellee in the proceedings below.

(4) League of Women Voters of Downers Grove, Woodridge and

Lisle, is an unincorporated association and was a Defendant-Appellee

in the proceedings below.

(5) Gregory W. Hosé, individually and in his official capacity as

Commissioner of the Village of Downers Grove, Illinois was a

Defendant-Appellee in the proceedings below.

(6 Robert T. Barnett, individually and in his official capacity as

Commissioner of the Village of Downers Grove, Illinois was a

Defendant-Appellee in the proceedings below.

(7) Martin T. Tully, individually and in his official capacity as

Mayor of the Village of Downers Grove, Illinois was a Defendant-

-iii-

Appellee in the proceedings below.

-iv-

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -iLIST OF ALL PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -iiTABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . -xiCITATIONS OF THE OFFICIAL AND UNOFFICIAL REPORTS OF

THE OPINIONS AND ORDERS ENTERED IN THIS CASE . . 1

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL, STATUTORY AND ORDINANCE PROVISIONS

INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT AMPLIFYING REASONS RELIED ON FOR

ALLOWANCE OF THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A)

Illinois Courts Erred When They Dismissed and Affirmed

the Dismissal of Counts Alleging an Infringement of Jaros’

Free Speech Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

B)

The Defendant Village and its Actors including Defendants

Hosé, Barnett and Tully Abridged, contrary to the federal

and Illinois Constitutions, Jaros’ Right Not to Have his

Liberty and/or Property Interest in his Six Year Statutory

Term to Hold Public Office as Library Trustee Denied

without Procedural Due Process of Law. . . . . . . . . . . . . . . 27

1)

Jaros’s Six Year Statutory Term of Office as Library

Trustee Constituted a Property Interest. . . . . . . . . 28

2)

Jaros’s Six Year Statutory Term of Office as Library

Trustee Also Constituted a Liberty Interest. . . . . . 30

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

TABLE OF CONTENTS TO 3-VOLUME SEPARATE APPENDIX

FOLLOWS

-xi-

TABLE OF CITED AUTHORITIES

Bond v. Floyd, 385 U.S. 116 (1966)

19, 23

Wilson v. Houston Cmty. College Sys .,955 F.3d 490

(5th Cir. 2020, panel and en banc rehearing denied at

966 F.3d 341, cert. granted 209 L. Ed. 2d 589,

2021 U.S. LEXIS 2187, 2021 WL 1602636 (4/26/2021)

21

East St. Louis Federation of Teachers, Local 1220 v.

East St. Louis School District No. 189 Financial

Oversight Panel, 178 Ill. 2d 399, 417-418,

687 N.E.2d 1050, 1061 (1997)

28, 29

Velez v. Levy, 401 F.3d 75 (2nd Cir. 2004)

28

Abramsom v. Pataki, 278 F.3d 93 (2nd Cir. 2002)

28

Janetta v. Cole, 493 F.2d 1334 (4th Cir. 1974)

29

1

CITATIONS OF THE OFFICIAL AND UNOFFICIAL REPORTS OF

THE OPINIONS AND ORDERS ENTERED IN THIS CASE

The opinion, as modified, of the Illinois Appellate Court, Second

District, filed December 29, 2017 on an interlocutory appeal pertaining to

home rule powers of the Village of Downers Grove, a municipal

corporation, in relation to the Downers Grove Public Library and its

trustees is officially reported at 2017 IL App (2d) 170758 and unofficially

at 2107 Ill.App. LEXIS 832. Leave to appeal was denied by the Illinois

Supreme Court on September 26, 2018 as reported at 2018 Ill. LEXIS 677,

424 Ill.Dec. 404, 108 N.E.3d 827.

The opinion of the Illinois Appellate Court, Second District,

pertaining to all other issues and filed on June 25, 2020, is officially

reported at 2020 IL App (2d) 180654 and unofficially reported at 2020

Ill.App. LEXIS 412. Leave to appeal was denied by the Illinois Supreme

Court on March 24, 2021 as unofficially reported at 2021 Ill. LEXIS 318,

445 Ill.Dec. 645, 167 N.E.3d 653.

2

JURISDICTIONAL STATEMENT

On March 24, 2021, the Illinois Supreme Court entered its order

denying Petitioner’s Petition for Leave to Appeal, which had been timely

filed on December 7, 2020 per that Court’s Order of December 9, 2020,

that sought review of the Opinion of the Illinois Appellate Court, Second

District, filed on June 25, 2020 and its August 13, 2020 Order that denied

Petitioner’s Petition for Rehearing.

This petition for writ of certiorari is filed within one hundred fifty

(150) days of March 24, 2021, per Supreme Court Rule 13(1), including

especially its last sentence, as modified by this Court’s COVID-19-related

Order dated March 19, 2020. This Court’s jurisdiction is invoked under 28

U.S.C.§ 1257(a).

3

CONSTITUTIONAL, STATUTORY AND ORDINANCE PROVISIONS

INVOLVED

U.S. Constitution, Article I

Section 3

Clause 1

The Senate of the United States shall be composed of

two Senators from each State, chosen by the

Legislature thereof, for six Years; and each Senator

shall have one Vote.

Section 5

Clause 1

Each House shall be the Judge of the Elections,

Returns and Qualifications of its own Members, and a

Majority of each shall constitute a Quorum to do

Business; but a smaller Number may adjourn from

day to day, and may be authorized to compel the

Attendance of absent Members, in such Manner, and

under such Penalties as each House may provide.

Clause 2

Each House may determine the Rules of its

Proceedings, punish its Members for disorderly

Behaviour, and, with the Concurrence of two thirds,

expel a Member.

Section 6

Clause 1

The Senators and Representatives shall receive a

Compensation for their Services, to be ascertained by

Law, and paid out of the Treasury of the United

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States. They shall in all Cases, except Treason,

Felony and Breach of the Peace, be privileged from

Arrest during their Attendance at the Session of their

respective Houses, and in going to and returning from

the same; and for any Speech or Debate in either

House, they shall not be questioned in any other

Place.

U.S. Constitution, First Amendment

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

U.S. Constitution, Fourteenth Amendment, Section 1

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the state

wherein they reside. No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States;

nor shall any state deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

42 U.S. Code § 1983 - Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any action brought

against a judicial officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief was unavailable.

For the purposes of this section, any Act of Congress applicable

5

exclusively to the District of Columbia shall be considered to be a

statute of the District of Columbia.

75 ILCS 5/4-2

In villages under the commission form of government, the village

council at its first regular meeting following the election establishing a

public library, shall appoint a board of library trustees of 6 members

who are village residents, 2 to hold until the first regular meeting of the

next succeeding fiscal year, 2 to hold for one year thereafter and 2 to

hold for 2 years thereafter. The respective successors of the initial

appointees shall be appointed for 6 year terms and shall serve until

their successors are appointed and qualified.

105 ILCS 5/27-9.1

All sex education courses that discuss sexual intercourse shall satisfy the

following criteria:

(1) ***

(2) Course material and instruction shall teach honor and

respect for monogamous heterosexual marriage.

(3) - (9) ***

105 ILCS 5/27-9.1

6

STATEMENT OF THE CASE

INTRODUCTION

This case involves, inter alia, defamation and constitutional claims

arising out of a meeting of the Downers Grove Public Library Board of

Trustees. (App. 123). Plaintiff-Petitioner Arthur Jaros, Jr. (“Jaros”), who was

a Library Trustee, serving a six year statutory term1 at the time of that Library

Board meeting, as well as a licensed, private-practice Illinois attorney, was

falsely accused in a Report by an observer of the meeting, Defendant Susan

Farley (“Farley”), from the League of Women Voters for Downers Grove,

Woodridge and Lisle (“the League”), as having stated during an official

meeting of the Library’s Board of Trustees that he wanted to exclude from the

library any “people different from white straight people.” (App. 124, ¶¶2331).

As a result of that false accusation in the League’s Report, Jaros was

summarily removed without a hearing from his position as a Library trustee

by the Village of Downers Grove (App. 132, ¶¶72-73; App. 134, ¶81; App. 137138, ¶¶92-95; App. 263-267, Counts V and VI). Plaintiff sought relief in the

courts of the State of Illinois (i) for wrongful termination – both as being ultra

1

App. 122, ¶10.

7

vires (as discussed at p.17, infra)

and as contravening constitutional

protections, as more extensively discussed herein, of freedom of speech and

of procedural due process of law in regards his liberty and property interests

in his trusteeship and its statutory term of years – of his statutory term of

office as trustee, (ii) for damage to his reputation in the community due to his

termination as a Library trustee, and (iii) for damage to his reputation as an

attorney. (App. 125, ¶¶ 33, 36).

The Illinois Appellate Court, citing cases from the 7th Circuit, the

Appellate Court and other State courts but not the Illinois Supreme Court,

claimed there is a dichotomy in a case like this. On one hand, statements that

are defamatory per se, that implicate a Plaintiff’s job performance duties, are

actionable defamation.

But statements that attack Plaintiff’s “personal

integrity and character” as a private practice attorney were held to be not

defamatory at all. (App. 18- App. 27, ¶¶ 45-67).

After a discussion of all of the cases that allegedly add up to the

dichotomy advanced in the Appellate Court Opinion, that Court

acknowledged that Plaintiff may lose clients but it did not matter:

Ҧ 69 Nor is it manifest from the reported statement that plaintiff

lacks ability or integrity as an attorney. Without doubt, a

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statement recommending the “reject[ion] [of] *** people different

from white straight people” immediately strikes one as offensive.

We cannot, however, base our analysis on the visceral impact of

the statement but must analyze it dispassionately under the

proper criteria. A statement is not defamatory simply because it

paints the plaintiff as a bad character. More particularly, an

attack on personal integrity becomes an actionable attack on

professional integrity only when the statement is directly related

to job skills or function. ... From all accounts of the August 23

meeting, plaintiff’s preeminent concern was to insulate child

patrons of the library from exposure to values and practices he

considered personally offensive. Admittedly, his personal

rejection of those values was—so Farley reported—expressed in

odious terms. …

Plaintiff may well be correct that the reported statement will

discourage some from retaining his services as an attorney, but

such detriment is not the touchstone of whether a statement is

defamatory per se under categories (3) and (4). In the cases

discussed above, allegations of such conduct as racially

derogatory language, physical aggression, cyberhacking, and

revengeful posting of obscenity were found not to be defamatory

per se, because they did not relate to the plaintiff’s ability or

integrity in his specific occupation. If, as a result of the reported

statement, some are discouraged from retaining plaintiff for legal

services, the cause will be more about what the reported

statement revealed about his general character than about his

capacity to be a fair and competent counselor.”

It is axiomatic that the Circuit Court was required to assume as true the

allegations of the Complaint for purposes of these 735 ILCS 5/2-615 and 735

ILCS 5/2-619 motions to dismiss, and to construe those allegations in context

while drawing all inferences in favor of plaintiff. That, however, did not

happen. In addition to the above-quoted reasoning, these facts were not

9

given any consideration: On the evening of August 23, 2017 in the meeting

room at the Downers Grove Public Library, the library’s Board of Trustees

(“Board”) conducted its regular monthly meeting for the month of August.

(“Meeting”) (App. 123, ¶ 13). All six trustees including Plaintiff were present

to discuss a long-range Plan for the library (App. 123, ¶ 14). Plaintiff was

there to discuss that Plan as a library trustee. His comments that are in issue

in this case occurred when Plaintiff was discussing that Plan, as a Library

trustee, based upon the text of an Illinois School Code provision that he

believed reasonably expressed the policy of the State of Illinois in regards the

instruction of school age children by public institutions (including the

children’s department of the Downers Grove Public Library) (App. 142):

All sex education courses that discuss sexual

intercourse shall satisfy the following criteria:

(1) ***

(2) Course material and instruction shall teach

honor and respect for monogamous heterosexual

marriage.

(3) - (9) ***

105 ILCS 5/27-9.1 (appearing at App. 148)

10

Yet the Appellate Court erroneously concluded that Plaintiff was not

pursuing this case as a Library trustee, but was instead only suing for any

damage caused to his law practice: “We decline to consider the reported

statement in relation to plaintiff’s position as library trustee, because his

complaint alleges prejudice only to his livelihood as attorney.” (App. 18, ¶44).

This conclusion ignores the fact that Plaintiff’s Complaint attached exhibits

showing that he was terminated as a library trustee as a result of the

statements he made as a library trustee discussing a library Plan at the library

meeting at the library (C99-C102) (C 144, ¶¶ 33, 36). There is no doubt about

the context in which this occurred, as the Appellate Court stated:

There is no dispute that, on August 23, 2017, the library trustees

debated a proposed strategic plan for the library that would

require staff training in “equity, diversity, and inclusion.” Farley

reported that plaintiff expressed an objection to inclusiveness

training. According to Farley, plaintiff remarked that the library

should not “recognize homosexual marriage” but should

“protect the children from homosexuals and exposure to

homosexual life style.” He then “proceeded to continue to

express his personal views on how we should view straight

people vs. gays and reject inclusion and people different from

white straight people.” ¶ 40 at app. 16.

Jaros’ Verified Complaint and Verified Amended Complaint

denied Farley’s account as being almost entirely maliciously false.

(App. 123-128).

11

It was clear what Plaintiff contended in the Appellate Court:

“According to plaintiff, the reported statement harmed him both in his

“calling as library board trustee” and in his occupation as attorney.” (App. 12,

¶ 24). The Appellate Court nevertheless affirmed on the ground that only

Plaintiff’s job performance as an attorney was in issue, agreeing with the

Circuit Court that the statements made did not amount to defamation

per

se as to Plaintiff’s performance as an attorney. (App. 31, ¶ 76).

The foregoing reasoning also led the Appellate Court to conclude that

“plaintiff has not established that his removal from the Board implicated his

free-speech rights.“ (App. 36, ¶ 87). Since the context must be considered in

a defamation/free speech case, this case squarely presents the question

whether only politically-correct speech is allowed when a public official is

speaking and, indeed, speaking on the basis of, and the implications for

public officials arising from, an express state statute. Whatever one thinks of

same-sex marriage and the Illinois School Code’s statutory provision that

relegated, by application of the maxim expressio unius est exclusio alterius,

both polygamous and homosexual marriage to inferior status in terms of

the instruction of school age children, the question is whether a public

official can even discuss the subject by reference to the text of a state

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statute without being terminated from his public office and whether such

a public official is entitled to First Amendment free speech protections and

Fourth Amendment procedural due process protections against summary

removal from office?

STATEMENT OF FACTS

On September 5, 2017, Plaintiff filed a Verified Complaint for

Declaratory and Injunctive Relief and Money Damages against defendants

seeking: (i) money damages for defamation (Count I - III); (ii) declaratory

relief re: threatened ultra vires removal action by the Village (Count IV);

(iii) emergency and permanent injunctive relief to prevent removal action

that evening by scheduled action of the Village (Count V) based on Illinois

constitutional protections–expressly pleaded to be analogous to those

afforded by the U.S. Constitution--of his liberty and property interest in

serving a statutory term as library trustee; and (iv) money damages for

impairment and conspiracy to impair his Right of Freedom of Speech

under Illinois constitutional protections alleged to be broader than those

afforded by the U.S. Constitution (Count VI and VII).

The Court declined to enter a temporary restraining Order but

directed Jaros to file an amended complaint by noon on September 7, 2017

13

(Appendix J) supplementing the allegations of the original complaint with

whatever proved to be the results of the Village Council meeting conducted

on the evening of September 5. Jaros did so, adding within the short time

allowed, paragraphs 72 and 73 to Count IV and Complaint Exhibit 6.

(Appendix K).

Because this appeal arises out of motion-based dismissals without

any evidentiary hearings, Petitioner summarizes below the allegations of

his pleadings.

Plaintiff-Appellant Jaros is an Illinois Attorney who in August, 2015

had become a Library Trustee, serving a six year statutory term, on the

Downers Grove Public Library (“Library”) Board of Trustees by elective

action of the Downers Grove Village Council that appointed him to such

position per 75 ILCS 5/4-2 in a statutory process akin to that of the election

of United States Senators by state legislatures, rather than direct popular

election, prior to the adoption of the Seventeenth Amendment to the U.S.

Constitution. (App. 122).

The circumstances giving rise to Mr. Jaros’ removal from the Board of

Trustees for the Library occurred on August 23, 2017. (App. 123, ¶ 13). On

14

that date the Board of Trustees held its regular monthly meeting for the

month of August. Id.

Present at the meeting was Defendant-Appellee Susan Farley,

(“Farley”) as an observer for the League of Women Voters for Downers

Grove, Woodridge and Lisle (“League”). (App. 123, ¶ 17). A subject for that

meeting was the formulation of a “Strategic Plan 2017-2020,” for the Library

(“Plan”) developed by the trustees and library staff (App. 123, ¶ 20). A

revised version of the Plan was on the meeting’s agenda for approval by the

Board of the Library. (App. 123, ¶ 21). During the deliberations concerning

the final version of the Plan, Jaros made no reference whatsoever to race or

skin color. (App. 124, ¶ 24). Jaros instead-- during deliberative discussion by

the library’s board of trustees over broad language of equity, diversity and

inclusion inserted into the plan’s draft by library staff-- made express

reference to the text of Illinois School Code’s provision on marriage as regards

instruction of school age children. The Board unanimously agreed to modify

the staff’s draft language (App. 124-125, ¶32) to address Jaros’ concern that

the state’s policy preference as regards school age children not be offended.

Farley, after the meeting had adjourned, composed an “Observer’s

15

Report” (“Report”) dated August 26, 2017, and disseminated the report on the

League’s website. (App. 124,¶ 25, 26). The Report alleged that Jaros in the

meeting stated that “[h]e proceeded to continue to express his personal view

on how we should . . . reject any . . . people different from white straight

people.” (App. 124¶ 28). Jaros’ verified pleading asserted that he never

rejected any people, or made in statements regarding race. (App. 124, ¶¶ 29,

30). Indeed, Jaros and the other trustees unanimously approved the Plan

which included language that the Library’s objective was “[t]o be inclusive in

providing services to the community.” (App. 124-125, ¶ 32). The Plan further

states that the Library should “reflect the diversity of our community” and

“evolve with our changing community.” (Id.).

After Farley and the League’s publication of the Report, Jaros received

significant abuse claiming he was a bigot, racist, and homophobic. (App. 125,

¶ 34). The claim made in the Report caused damage to Jaros’ reputation in the

community of Downers Grove. (App. 125, ¶ 33). The claim further injured

Jaros’ reputation in the legal community. (App. 125,¶ 36). By August 31, 2017,

the allegation had spread sufficiently that the President of the Library

Wendee Greene was aware of the Report, and the false portrayal of Jaros as

a racist. (App. 125, ¶ 35).

16

Further fuel to the online fire was stoked by the republication of the

claim by Gregory W. Hosé (“Hosé”) a commissioner sitting on the Village of

Downers Grove Village Council. (App. 121, ¶ 5). Hosé republished on his

personal Facebook page the accusation made in the Report. (App. 127, ¶ 44).

Hosé called for the immediate removal of Jaros from the Board of Trustees.

(App. 187). Hosé also claimed that he had investigated the matter and spoken

to people who attended the August 23, 2017 meeting. ( Id.) Despite his claim

to have allegedly made an investigation prior to republishing the accusation,

Hosé never contacted Jaros, the Library Board President Wendee Greene, the

Library Board’s recording secretary Katelyn Vabalaitis, or Library Director

Julie Milavec to determine whether the Report was accurate. (App. 127128,¶52-55). Indeed Plaintiff-Appellant was unable to identify any members

of the library staff or trustee board having spoken to Hosé about the matter.

Hosé’s claimed investigation put his authority behind the League’s claims,

and bolstered the Report’s credibility by claiming he had investigated the

matter confirming the truth of the accusation. No evidence of this alleged

investigation or the persons interviewed by Hosé were ever disclosed prior

to the dismissal by the circuit court. As a result of the publication of the

Report and Hosé’s “investigation” and republishing of the accusation, the

17

Village Council proceeded with a removal action against Jaros on September

5, 2017. (Ap. 131-132, ¶ 69). The Village Council on September 5, 2017

unanimously voted to remove Jaros a trustee under the “Mayor’s Report”

portion of the agenda where Jaros was given no opportunity to be heard.

(App. 132, ¶ 72; App. 266-269).

Count IV of the original and amended Complaint that sought a

declaration that the Village’s government’s home rule powers did not extend

to the power to truncate a public library trustee’s statutory six year term. The

Circuit Court decided that Count adverse to Jaros (Appendix G) and

interlocutory appeal to the Illinois Appellate Court ensued (docketed as 2-170758). After issuance of an Opinion of affirmance, Jaros petitioned for

rehearing (Appendix L) and the Appellate Court thereupon modified its

Opinion (Appendix H) but refused to rehear the appeal and did not withdraw

its affirmance.

Defendants then moved to strike and dismissing the remaining counts

of the Amended Complaint (Appendix K).

On April 4, 2018, the Circuit

Court entertained oral argument on those motions and made an oral ruling

dismissing the remaining counts (Appendix C). A companion short-form

18

written Order was filed (Appendix D).

The Court ruled as follows with respect to the two free speech counts:

With respect to Counts 6 and 7, those are also going to be

dismissed. Again, Mr. Jaros was expressing his views as a

member of the library board, and those view as expressed,

they’re not protected by the Illinois or U.S. Constitution based on

the Village’s reaction to that speech. (App. 78).

With respect to Count V for preliminary and permanent injunctive

relief and which count specifically alleged Jaros’ liberty and property interests

in his trusteeship position (App. 134), Jaros pointed out to the Circuit Court

that only the request for preliminary relief had been ruled upon and that the

request for permanent relief remained unadjudicated (App. 43-44). Jaros also

specifically made reference to both the “denial of due process for my liberty

and property interest” (App. 44) and the comment contained in the Opinion

of the Illinois Appellate Court at App. 116,2 explaining to the Circuit Court

that his claim of denial of due process was, in fact, able “to be further

developed” and therefore going beyond the allegation of the Verified

Amended Complaint of the Village board defendants having “catered to and

2

“Plaintiff develops no constitutional argument independent of his contention

that the Village exceeded its constitutional home-rule powers.” Given the

limited scope of Count IV and the narrow scope of the interlocutory appeal,

such development remained for the future course of the case in the Circuit

Court.

19

catering to mob mentality” (App. 138) and depriving Jaros of his liberty and

property interests (App. 134).

The Circuit Court ruled that it would, in fact, have allowed Jaros to

replead but for the Court’s ruling that the entire case including all

constitutional grounds could not survive the defendants’ dismissal

arguments. (App. 74 at lines 14 - 18). The Court did not expressly respond to

Jaros’ observation that the portion of Count V for permanent injunctive relief

had not yet been ruled upon but instead dismissed it “to make the record

clear” without affording other reasons (App. 79).

As part of his May 4, 2018 effort to have the trial court vacate its April

4, 2018 ruling (Appendix M), Jaros proffered a proposed Second Amended

Complaint. (Appendix N-1) While the motions to vacate and to amend were

pending, the proposed Second Amended Complaint was revised on June 26,

2018 (Appendices N-2 and N-3).

In that revised form, it contained the

following ten counts that, inter alia, contained additional detailed allegation

regarding malice within Count I, added federal constitutional grounds

(already noted, as set forth above, by the Circuit Court at App. 78 to be

present) and made express the violations of procedural due process, as

20

follows:

I

Defamation against Defendant Farley

II

Defamation against the Defendant League of Women

Voters of Downers Grove, Woodridge and Lisle

(Respondeat Superior)

III

Defamation against Defendant Gregory W. Hosé

(Republication)

IV

Section 2-701 Action in Chancery for Declaratory

Judgment Re: Lack of Legal Power of defendant Village

of Downers Grove’s Village Council to Remove Plaintiff

as Trustee of the Downers Grove Public Library

V (new)

Section 2-701 Action in Chancery for Declaratory

Judgment Re: Failure of the Defendant Village to Afford

Plaintiff Due Process of law During Removal Process

VI

Impairment of Right of Freedom of Speech under

Illinois and U.S. Constitutions (adding federal grounds)

VII (new)

Impairment without Due Process of Law of federal and

Illinois Constitutional Right to Liberty and Property

VIII

Conspiracy to Deny Plaintiff His Civil Rights (revision

to original Count VII)

IX (f/k/a V)

For Preliminary Injunctive Relief

X

For Permanent Injunctive Relief

(f/k/a V)

The Motion to Vacate and Motion for Leave to File a Second

Amended Complaint that sought, inter alia, to develop the due process

argument already raised were summarily denied. (Appendices E and F).

21

On appeal, the Illinois Appellate Court refused to recognize that the

Circuit Court already was cognizant of the fact that Jaros was raising not

just Illinois but federal constitutional grounds (App. 78) and refused to

find a First Amendment violation committed against Jaros as urged by

him on the basis of Bond v. Floyd, 385 U.S. 116 (1966). (App. 34 -36). The

Illinois Appellate Court also refused to follow its own prior guidance on

Jaros’ development of his due process claim and the Circuit Court’s

assurance that it would allow Jaros so to do unless affirmative matter

barred such a due process claim as a matter of law. Jaros’ Petition for

Rehearing addressed the Appellate Court’s finding that “there is no

allegation as to how the removal procedure was lacking in due process.”

(App. 338-339). That Petition was denied without explanation. (Appendix

I).

Jaros then petitioned to the Illinois Supreme Court for leave to

appeal. (Appendix P). That petition pointed out the federal and Illinois

constitutional claims raised in the Circuit Court below, both for First

Amendment free speech violations (Point C at App. 368- 370 and for

procedural due process violations (Point D at App. 370 - 371).

That

Petition for Leave to Appeal was denied without comment on March 24,

2021. (Appendix A).

22

ARGUMENT AMPLIFYING REASONS RELIED ON FOR

ALLOWANCE OF THE WRIT

Introduction

Due to Illinois’ peculiar state statutory scheme under which public

libraries are governed by Illinois’ Local Public Library Act (75 ILCS 5/10.01 et seq.) and villages are a form of municipal corporation governed by

the Illinois Municipal Code (65 ILCS 5/1-1-1, et seq.) but library trustees

are appointed to their statutory six years terms by elective action of the

village’s Village Council, this case appears to present important federal

constitutional questions of first impression, especially given the widespread “cancel culture” resembling mob action that is undermining the

nation’s foundations that are rooted in representative democracy,

deliberative free speech and debate on matters of public policy, and fair

governmental processes.

To wit, decided case law has dealt with free

speech and due process issues of government employees and of popularly

elected public officials, including legislators and judges. Here, Jaros, as a

public library trustee, took office in a statutory process akin to that of

United States Senators prior to the adoption of the Seventeenth

Amendment to the U.S. Constitution.

Under the U.S. Constitution as

originally enacted, it appears that a state’s legislature, once having

appointed the state’s U.S. Senator by elective action of either or both of its

23

legislative chambers, was powerless to terminate a U.S. Senator’s six year

term of office given the power of the U.S. Senate itself, under Article I, §5,

to “expel a member” and its exclusive §6 power to “question” a member.

Petitioner respectfully submits that Rule 10(c) of this Court is

applicable because the courts of the State of Illinois have determined that

a public library trustee has no protectible free speech, liberty and/or

property interest in a six-year statutory term as a public library trustee

against retaliatory, summary discharge by the appointing body for

engaging in the legislative process of a different unit of local government,

namely, the public library.

On April 26, 2021, this Court granted the Petition for Writ of

Certiorari sought by Houston Community College in #20-804 (David

Buren Wilson, Respondent) and for which briefing is presently in progress.

In that case, the Fifth Circuit U.S. Court of Appeals held that a former

member of a college system board of trustees had stated a viable Section

1983 claim based on that board’s mere censure (rather than expulsion) of

him for engaging in speech that involved a matter of public concern.

Briefing on the Petition for Writ submitted in that case demonstrates a

split among the U.S. Courts of Appeal.

However and as is far more

24

common, trustees in that case are “elected by the public from singlemember districts to serve a six-year term without remuneration.”

In the instant case, public library trustees including Jaros likewise

serve six-year terms per statute and likewise serve without remuneration

but, instead of being directly elected by the public, are, as noted, appointed

by elective action of the village council (whose members are elected by the

public) for the village municipal corporation whose boundaries coincide

with those of the public library.

The sanction imposed on Jaros, as a public official, far exceeded the

severity of the sanction imposed on Wilson in #20-804. Therefore, Jaros

respectfully requests that this Court take this Court with #20-804.

In addition and by way of analogy to Article I, Sections 5 and 6 of

the U.S. Constitution, the expulsion power and the power to “question: a

legislator” resides only with the legislative body on which the legislator is

serving, here, the Downers Grove Public Library Board of Trustee–not the

Village of Downers Grove.

A)

Illinois Courts Erred When They Dismissed and Affirmed

the Dismissal of Counts Alleging an Infringement of Jaros’

Free Speech Rights

25

The circuit court’s April 4, 2018 ruling stated in relevant part:

With respect to Counts 6 and 7, those are also going to be

dismissed. Again, Mr. Jaros was expressing his views as a

member of the library board, and those views as expressed,

they’re not protected by the Illinois or U.S. Constitution

based on the Village’s reaction to that speech. (C 663,

emphasis added).

However, in Bond v. Floyd, the Georgia House of Representatives sought

to prevent Bond, an elected African American representative, from taking

a seat in the Georgia House of Representatives on the basis that Bond had

made anti-Vietnam statements which “gave aid and comfort to the

enemies of the United States and Georgia, violated Selective Service laws,

and tended to bring discredit and disrespect on the House.” 385 U.S. 116,

123 (1966). The Georgia House of Representatives voted 184 to 12 to deny

Bond from taking the oath of office and taking his seat in the chamber. Id.

at 125. Bond brought a legal action against Georgia in federal court,

arguing his rights under the First Amendment had been violated. Id. This

Court held “that the disqualification of Bond from membership in the

Georgia House because of his statements violated Bond's right of free

expression under the First Amendment.” Id. at 137.

As analyzed by the Defendants, Bond’s exclusion from the Georgia

House of Representatives would have stood, and an elected body, if it

26

voted to do so, could violate constitutional protections afforded under the

U.S. Constitution as long as that violation was put to a vote by a

municipal entity. The Bond case illustrates the problem arising from the

broad immunity espoused by Defendants, enabling legislative immunity

to grow beyond the means to shield legislative decision-making and

instead becoming a sword to violate the constitutional rights of political

opponents.

Plaintiff-Appellant Jaros expressed his opinion on a subject of public

interest. The Village of Downers Grove, in retaliation for statements

allegedly made by Jaros, removed Jaros from his non-partisan position as

a library trustee, a position for which Jaros had been appointed by elective

action of the Village Council for six years. (C 154 at ¶ 84). This removal

from his position as library

trustee should be seen as an unlawful

abridgement of Plaintiff-Appellant’s freedom of speech. Id. This removal

violated the First Amendment of the U.S. Constitution guaranty of

freedom of speech. As was the case in Bond, Defendants sought to hide

behind legislative immunity by taking a vote on the decision. The removal

27

of Jaros however was an administrative decision which was not protected

by legislative immunity.

B)

The Defendant Village and its Actors including Defendants

Hosé, Barnett and Tully Abridged, contrary to the federal

and Illinois Constitutions, Jaros’ Right Not to Have his

Liberty and/or Property Interest in his Six Year Statutory

Term to Hold Public Office as Library Trustee Denied

without Procedural Due Process of Law.

Paragraph 81 of the Verified Amended Complaint made express reference

to Jaros’ property and liberty interest in and to his public office as library

trustee for a statutory six year term provided for by 75 ILCS 5/4-2. (C

153). Paragraph 92 thereof referred to making Jaros’ removal by the

Village government perfunctory action as part of the Mayor’s Report

rather than as a deliberative item of “New Business.” (C 156). Paragraph

95 alleges that the Village government and its official catered to “mob

mentality” in removing Jaros from public office. (C 157). The Verified

Amended Complaint was filed the day after the removal action by the

Village Council as required by the Circuit Court’s September 5, 2017

Order. (C 139).

Counts V and VII of Jaros’ Verified Second Amended Complaint

proffered on June 26, 2018, more specifically pleaded denial of procedural

28

due process of law in regard to the deprivation of his constitutionally

protected liberty and property interests.

1)

Jaros’s Six Year Statutory Term of Office as Library

Trustee Constituted a Property Interest.

Under Section 4-2 of the Illinois Local Library Act (75 ILCS 5/4-2),

Jaros became a trustee of the Downers Grove public library not my

unilateral mayoral appointment but rather by vote of the Village Council.

Section 4-2 states library trustees “shall be appointed” by village council

action. As explained below, the taking of a vote to select a person for public

office constitutes an “election.”

Whereas unilateral mayoral action to select a person for public office

involves an “appointment” without an “election” (for example, as provided

in 75 ILCS 5/4-1.1 with respect to local public libraries situated in cities,

not villages), village council action to select a person for public office

involves both an “appointment” and an “election” even though the

“election” is not a “general or primary election” at which the village’s

entire electorate is permitted to vote.

In this regard, Black’s law

Dictionary (Revised Fourth Edition) provides these definitions:

ELECTION:

29

The act of choosing or selecting one or more from a greater number of

persons ... *** With respect to the choice of persons to fill public office ...

the term means in ordinary usage the expression by vote of the will of the

people or of a somewhat numerous body of electors. *** But this is not

necessarily so, for the term may apply to the selection by a city council

of one of their number as mayor.

APPOINT:

“Appoint” is used where exclusive power and authority is given to one

person, officer or body to name person to hold certain offices. *** It is

usually distinguished from “elect,” meaning to choose by a vote of the

qualified voters of the city. *** But the distinction is not invariably

observed.

(emphases added)

Dictionary.com defines “Election” as follows:

1.

the selection of a person or persons for office by vote. (emphasis

added)

In summary, a trustee of a local public library situated in a village is

chosen by appointment through elective action of the village council.

30

Where a public official is chosen by elective action to serve a statutory

term of years, his office constitutes a constitutionally-cognizable “property

interest.”

East St. Louis Federation of Teachers, Local 1220 v. East St. Louis

School District No. 189 Financial Oversight Panel , 178 Ill. 2d 399,

417-418, 687 N.E.2d 1050, 1061 (1997).

2)

Jaros’s Six Year Statutory Term of Office as Library

Trustee Also Constituted a Liberty Interest.

Plaintiff, as a government official, also has a federal constitutionally

protected liberty interest from being removed from his office motivated by

false and defamatory allegations made against him. ( Velez v. Levy, 401

F.3d 75, 87-90 (Second Cir. 2004), reversing dismissal of constitutional

claim for deprivation of

liberty interest: “When government actors

defame a person and –either previously or subsequently - deprive them of

some tangible legal ... status, see Abramson v. Pataki, 278 F.3d 93, 101 (2d

Cir. 2002), a liberty interest may be implicated, even though the ‘stigma’

and ‘plus’ were not imposed at precisely the same time. *** Velez alleges

that the board members made, and sought to publicize in local news

31

sources, highly stigmatizing statement that explicitly requested her

removal . . ..”).

Thus, Plaintiff stated a cause of action for constitutional denial of

his liberty interest. Such a cause of action exists even if, as this Court

ruled in Jaros’ prior related appeal, the Defendant Village possessed home

rule power under the Illinois Constitution to truncate a library trustee’s

six-year statutory term of office at will. Jannetta v. Cole, 493 F.2d 1334,

1338 (Fourth Cir. 1974).

3) Jaros’ Sufficiently Pleaded Denial of Procedural Due Process

Under federal constitutional law of procedural due process, the

“fundamental requirement is the opportunity to be heard at a meaningful

time and in a meaningful manner.” East St. Louis Federation of Teachers,

Local 1220, 178 Ill. 2d at 419, 687 N.E.2d at 1062. Here, Paragraphs 91

and 102 of Jaros’ Verified Second Amended Complaint allege denial of any

opportunity to be heard. (C 698; C 701). Therefore, the circuit court erred

in dismissing the civil action without permitting Jaros to proceed on his

32

claim to have been denied procedural due process in regards the protection

(and unlawful taking away) of his constitutionally protected property

and/or liberty interests in and to his six-year statutory term to the holding

of public office.

CONCLUSION

Wherefore, Petitioner prays that the Court issue a writ of certiorari

to the Illinois Supreme Court for the reasons aforesaid.

Respectfully submitted,

Arthur G. Jaros, Jr.

1200 Harger Road #830

Oak Brook, Illinois 60523

630-574-0525

agjlaw@earthlink.net