If Not Section 137 Pleadings, How About Incivility Toward a Party?

In the interest of full disclosure, I was at all times discussed herein and still am a member of the Paxton-Buckley-Loda School Board. Obviously, the opinions contained in this article are the author’s and do not represent those of either the PBL School Board or the ISBA.

On November 8, 2016, the voters of the PBL School District passed a $31,425,000 bond issue to: 1) make improvements to the high school; 2) make improvements to the lower elementary school; 3) build an addition to the lower elementary school to house the upper elementary school; and 4) demolish the the 1925 upper elementary school (Eastlawn) previously used as the high school and then the junior high. The referendum was approved by 70 votes out of 3978 votes cast (2024 to 1954). In the more than one-year time period leading up to the vote on the referendum, there was considerable public opposition to demolition of the historically significant school building.

Between the passage of the referendum and the scheduled vacating of the building to be demolished at the start of the 2019-2020 school year there continued to be public discussion by individuals suggesting that the building should be preserved or repurposed or lamenting the scheduled loss of an historic structure. At no time between November of 2016 and October of 2019, was any specific plan for saving the building submitted to the school board or proposed to the general public.

In May 2019 the school board approved a bid and signed a contract for the demolition. In August 2019 preliminary interior demolition began with fixture removal and asbestos abatement. Final exterior demolition was scheduled to begin November 4, 2019.

On October 25, 2019, one of the school district residents most visible in arguing that the building should be preserved (even appearing before the school board on a couple of occasions), filed and personally verified a Verified Complaint For Injunctive Relief, requesting a Temporary Restraining Order to prevent demolition of Eastlawn. (Minetz v. Board of Education, 19-CH- 25, Eleventh Judicial Circuit Court of Ford County, IL.; 4-19-0771, Appellate Court of Illinois, 4th Dist., Rule 23).

The substance of the complaint was that the referendum was illegal because it contained 4 questions and that it did not permit voters to vote separately on each of the propositions. The pleadings also alleged that the building was historically significant, set forth 16 different combinations of ways voters could have voted on the proposal and claimed “(t)he Plaintiff and the citizens of the City of Paxton, the County of Ford, and the State of Illinois, will be irreparably harmed if the Eastlawn Elementary School building is demolished.”

The circuit court, after hearing, denied the motion for a TRO and the Plaintiff filed a motion for emergency relief in the appellate court. On November 14, 2019, the Fourth District unanimously affirmed the trial court denial of a TRO in a Rule 23 opinion.

By way of background, the reviewing court noted that Plaintiff had voted in the November, 2016 election, determined in May, 2019 that Eastlawn was qualified to be listed on the National Register of Historic Places and appeared before the school board in May and October of 2019 objecting to demolition of the building. The Justices observed that Plaintiff argued in the trial court that “the case ultimately is about whether the referendum was illegal” and that she “did not have to establish the likelihood of success on the merits for cases involving destruction of property”. (citing In re Marriage of Joerger, 221 Ill. App. 3d 400, 407-08 (1991).

In reaching its opinion the appellate court cited the requirements for injunctive relief: a clearly ascertainable right in need of protection; irreparable injury in the absence of an injunction; no adequate remedy at law; and a likelihood of success on the merits. The court stated that “mere opinion, conclusion or belief will not suffice” to “raise a fair question that each of the elements is satisfied”. If the elements are met, “the court must balance the hardships and consider the public interests involved” a plaintiff “must show that (she) will suffer greater harm without the injunction than a defendant will suffer if it is issued”.

With respect to the elements, the court said “it is difficult to discern exactly what right petitioner is asserting needs protection and petitioner has not addressed this issue in her motion to this court...petitioner appears to argue she has a clearly ascertained right in need of protection because the bonds funding the demolition resulted from an illegal referendum” While “a voter has the right to a free and fair election,... the right to contest an election is statutory and the statute must be strictly followed…. When a referendum or questions of public policy are submitted to the voters… any 5 electors...may contest the results...by filing a written statement in the circuit court within 30 days after the result of the election...petitions to submit public questions to a referendum...shall be deemed to be valid unless objection thereto is duly made in writing within 5 business days after the last day for filing…” The court observed that “Petitioner has provided no legal authority to support the claim she has such a right three years after the election.” The Justices also pointed out “She does not otherwise object to the other expenditures associated with the bond initiative to improve other school sites….She questions the legality of the referendum but only as it applies to the demolition of Eastlawn. If the referendum is illegal, then it is illegal in all respects.”

Lastly the appellate court found: “Petitioner seems to imply she has some additional interests at stake...However, if she argues a protectable interest in Eastlawn, we are unable to discern any such interests are legally protectable. Her status as a resident, voter, or taxpayer gives her no legal or protectable interest in Eastlawn.”

While the Justices made no specific criticism of the Plaintiff or her counsel, I doubt that many attorneys would list the case on their resume as an example of great advocacy. Clearly it would be fair to state that the Plaintiff was “schooled”. The court’s opinion (appropriately) did not cite the simple and non-legal analysis by which most upper elementary grade school students could have concluded that the pleadings were not in good faith: If voters had been able to vote separately on the 4 components of the overall building program, the electorate could have approved the demolition and rejected the new addition, resulting in upper elementary students without a school.

Rule 137 provides that a pleading signed by an attorney or party is a certification that the pleading “is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase the cost of litigation.”

There is a general, and I think accurate, perception that “it takes a lot” to persuade a judge to impose sanctions. If there is already acrimony between the parties or counsel, it’s creating a lawsuit within a lawsuit. In many cases which might warrant sanctions, the aggrieved party and/or counsel are likely to conclude that it’s not worth the time, expense and distraction, particularly if the judge has expressed some displeasure with the offending party or indicated that the case should be moved along.

We tend to think of incivility in the more egregious cases of denigrating, profane, sexist, racist, etc. language, but is there a case to be made that quite a few pleadings are not very civil even if they don’t rise to the Rule 137 level? Is it professionally improper to say: “Counsel, your pleading may not violate Rule 137, but you aren’t going to win any awards for civility”?