## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Moore v. Graf

ton Town ship B oard of Trustees , 2011 IL App (2d) 110499

Appellate Court Caption L I NDA I

. MOORE, in Her Offic ial Capac ity as Gra ft o n T ownship Su p e r v is o r , Pl a in

ti f f

- A p p e ll e e , v

. T HE GRAFT ON T O WN SH IP B O A RD OF TRUSTEES; BET TY Z I RK, GERAL D McMAHON
, ROB L aPORTA, and BA RBARA MURP HY, in Their Offic i al Capac ities as Members of the Gra fton Township Boa rd; KERI -LYN KRAFTH EFER, in Her Of

fi cial Capac ity as Acting Gra fton Township Attorney ; and GRAFTO N TOWNSHI P, Defe ndants-Appe llants.

District & N o. Second District Docke t No. 2-11-0499

Filed August 8, 2011

Held (Note : This syl lab us

c ons ti tut es no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The order o f t h e trial court direc ting the township board of trustees to confirm the township supervisor’ s appointment of a p e r s o n to the position of township attorney was reve rsed, since the controlling statute provides that the supervisor may appoint a township attorney with the advice and
consent of the township board, and under the political-question doctrine, the trial court should not have i n t er fered with the township board’ s authority to conse n t to the supervisor’ s appointment, espec ially in the absenc e of a

ny criteria for a

court to re view the pr opriety of the boar d’s decision to ref

use to confir

m the appointment.

Dec ision Under Review Appea l from the Circuit Court of McHe nry County
, No. 10-CH-684; the Hon. Michae l T. Caldwell, J udg e, pre siding.J udg ment Reverse d and re manded.

Counsel on Appea l Thomas G. DiCianni, J eff rey R. J urg ens, and David L

. Ader
, all of Ance l, Glink, Diamond, Bush, DiCianni & Kra fthefe r, P.C., of Chicag o, for appellants.

J ohn M. Nelson, of Rockf ord, for appellee

.

Panel J USTI CE HUDSON deliver ed the judgment of the c ourt, with opinion.
J ustices McL are n and Schostok c oncurr ed in the judgme nt a nd opinion.

OP INION

¶ 1 Def

endants, the Graf

ton T ownship Boa

rd of Trustee s (B oard) , its members Be tty Z irk, Ger ald McMahon, Rob L aPorta, and Ba rbar a Murphy
, in their officia l capa cities, Ker i-Ly n Kra fthefe r, in her capa city as act i n g township attorney , and Gra fton Township, appea l an order of the circ uit court of McHen ry C o u n ty issuing a mandatory injunction soug ht by plaintiff, L inda I

. Moore, in her capa city as Gr af t o n Township supervisor. The injunction d i re cted the Boa

rd to confirm Moore’ s nominee for township attorney at its next regul ar meeting

. As the trial court acte d in derog ation of both the separ ation-of- power s doctrine and the plain languag e of the controllingstatute, we r ever se and r emand. ¶ 2 Moore and the Boa rd have apparen t l y b ee n en gaged in fre quent litigation befor e the circ uit court of M cH en ry County

. In this case , the trial court has alre ady issued a 36-pag e memorandum opinion and was require d to issue a supplementary opinion as well. As the trial
court ex p l ained, this litigation conce rns “the proper relationship betwee n [Moore and the Boa rd] and the appropriate exercise of the power s of eac h of them.” In this appea l, the issue

conce rns filling a vaca

ncy for the position of township attorney

. Moore terminated the firm that had been serving as township attorney (A n ce l
, Gl ink, Diamond, Bush, DiCianni & Kra fthefe r, P.C.). This resulted in litigation in which the trial court ultimately enjoined the firm from acting as township attorney

. Moore then appointed J ohn Nelson to fill the position. This nomination was reje cted b y a four- to-one vote, with the four members of the Boa rd voting to reje ct Nelson, and Moore, who also has a vote in s u ch p ro ce eding s, voting to confirm the appointment. Moore then filed a motion in the trial court seeking an injunction
t o co mp el the Board to confirm her appointm ent of Nelson, and the t rial court grante d th e motion, issuing the injunction dire cting the Boa rd to vote to confirm the appointment at its
next meeting

. The parties set forth a number of additional fac ts, such as that Nelson had previously repr esente d Moore in litigation with the Boa rd and that Moore ref

used to appoint

-2-some other attorney to the role, none of which a re r eleva nt. ¶ 3 Be fore this court, the Boa rd argues that the trial court err ed in granting injunctive relief
to compel a discretionar y leg islative act. We agree

. The statute that controls this case provides, in per

tinent part, as f

ollows: “The supervisor, with the advice and conse nt of the township boa rd, may appoint a township attorney .” 60 I L CS 1/ 70-37 (West 2010).
It is well established that units of local g overnme nt are cre ature s of the leg islature. See La Salle National Trust, N.A. v. Village of Mettawa
, 249 I ll. App. 3d 550, 575 (1993 ). Moreov er , our role in interpre ting a leg islative enac tment is to asce rtain and g ive effec t to the intent of the leg islature. Rosenzweig v. Illinois State Board of Elections
, 409 I ll. App. 3d 176, 180 (2011). The best evidenc e of that intent is the plain languag e of the enac tment itself. Cinkus v. Village of Stickney Municipal Of f i cers Electoral Board
, 228 I ll. 2d 200, 216 (2008). ¶ 4 Her e, the intent of the leg islature is manifestly clea r–the supervisor appoints a candidate for township attorney and the boar d confirms the a ppointment ( i.e. , g ives its consent). The trial court’ s order

in this case re moved the B oard from the process, in essence allowingan attorney to be appointed solely

by the ac tion of the s upervisor. This is plainly at odds with the statute. We further note that the languag e o f the statute in no way sug g ests that the Boa rd’s role is minist eria l. The statute provides for the board to g ive its “advic e and consent” rathe r than direc ting it to perf orm an action. See Snyder v. Curran Townshi p , 167 I ll. 2d 466, 480 (1995). I f the Boa

rd’s action wer e mandatory or minist eria l, its “conse nt” would be irrele vant; it would simply be re quired to take the ac tion specified in the statute. ¶ 5 Thus far
, we have established that the leg islature place d with the Boa rd the authority

to consent to (that is, confirm) an appointee for the positio n of township attorney

. Under the political-question doctrine, the trial court should not have interfe red with that authority

. This doctrine holds that cer

tain questions, deeme d political in nature , are not justiciable. Murphy

v. Colli ns , 20 I ll. App. 3d 181, 196 (1974); see also Bake r v. Carr
, 369 U.S. 186, 209 (1962). It derive s from the principle of separ ation of power s, based upon which authority is dispersed through the various branc hes of our g overnme nt. Roti v. W ashington
, 148 I ll. App. 3d 1006, 1009 (1986). Its function is to ensure that the judiciary does n o t ex erc ise the power s of another branc h of g overnme nt. Murphy
, 20 I ll. App. 3d at 195. Our supreme court has explained that, in acc ordanc e with the doctrine, issues that “ ‘lack *** satisfac tory criteria for a j u d i cial deter

mination’ ” (empha sis omitted) and for which it is proper to assig n “ ‘finality to the action o f t h e p olitical depar tments’ ” are not subject to judicial revie w. Committee for Educational Rights v. Edgar
, 174 I ll. 2d 1, 28 (1996) (quot ing Bake r , 369 U.S. at 210). ¶ 6 Reg ardin g t h e i s s u e b ef o re this court, there are no standards for a court to apply in revie wing the propriety of the Boa rd’s decision to ref

use to confirm Nelson as township attorney

. The g overning statute commits that decision to the Boa rd but sets forth no criteria for making the decision. In Village of W oodridge v. Board of

Education of Community High School District 99
, 403 I ll. App. 3d 559, 571-72 (2010), we found the political-question doctrine to be no bar to our revie w of the actions of local g overnme nt wher e the controlling

-3-statute contained “cle ar criteria for the court to utiliz e to resolve [the] case .” Conversely
, in

this case , the statute contains no such criteria. In the absenc e of such criteria, the court sy stem has no role to pla

y in r eviewing whether the supervisor’ s appointment of Nelson should be confirme d. ¶ 7 We further note that Moore seeks to justify the trial court’s order as a proper invocation of its “equitable power s *** to fac ilitate the meaning ful nomination of a Gra fton Township Attorney by the township supervisor.” Indeed, the trial court expressly e mp h a s ized that it was acting in equity

. Howeve r, the political-question doctrine applies with equal forc e reg ardle ss of whether a court acts in law or equity –due respe ct must alway s be shown to other co-e qual branc hes of g overnme nt. See Heffran v. Hutchins
, 160 I ll. 550, 554 (1896) (“It is not within the jurisdiction of a court of equity to inter fer e with the public duties of the depar tments of g overnme nt.”). Quite simply
, the leg islature grante d to the Boa rd the power to co nsent (which, by implication, e ntails the power to w ithhold conse nt, othe rwise consent would be meaning less). Out of due respe ct for the leg islature, let alone the Boa rd itself, the trial court should not have interf

ere d with the discretion possessed by the B oard on this issue. ¶ 8 Finally
, we observe that the trial court stated that t h e s ep ar ati on-of- power s doctrine is “overly broad” as it would apply to this c ase, “primarily beca use we are dealing with a unit of local g overnme nt.” We emphasize that the separ ation of power s issue prese nted here does
not conce rn t he relationship betwee n the Board and Moore–that relation s h i p i s define d by the leg islatur e i n t h e controll ing statute. Rather, this case conce rns a court direc ting a leg islative body how to proce ed on a matter that would ty pically be within the discretion of the leg islative body . Under the sepa ration-of -powe rs doctrine, courts must respe ct units of local g overnme nt. See Board of E ducation of D olton Sc hool D istrict 149 v. Miller
, 349 I ll. App. 3d 806, 812-13 (2004); Colville v. City of Roche lle
, 130 I ll. App. 2d 541, 545 (1970). That t he trial court was interfe ring with the prerog atives of a unit of l ocal rather then state or national g overnme nt provides no justification for its order

. ¶ 9 In light of the fore g oing, the order of the circ uit court of McHe nry County direc ting the members of the Boa

rd to confirm Nelson’s appointment to the position of township attorney is rever sed and this ca

use is rema

nded for whateve r fur

ther proc eeding s areappropriate.

¶ 10 Reverse d and re manded.

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