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LINDA I. MOORE, )
)
Plaintiff, )
)
VS. )NO. 10 CH 684
)
GRAFTON TOWNSHIP BOARD OF )
TRUSTEES, )
)
Defendant. )

ELECTRONIC RECORDING Report of Proceedings
had at the hearing in the above-entitled
cause in front of the HONORABLE MICHAEL CALDWELL,
Judge of said court, held the 4th day of May, 2011.

APPEARANCES:
MR. JOHN M. NELSON
Attorney at Law
Appeared on behalf of Linda Moore
ANCEL, GLINK, DIAMOND, BUSH,
DICIANNI & KRAFTHEFER
Attorneys at Law

By: MR. THOMAS DICIANNI
Appeared on behalf of Grafton Township

THE COURT: Linda Moore versus Grafton Township
Board.

MR. DICIANNI: Good morning, Your Honor.
Thomas DiCianni for the Defendants, Counter-Plaintiff.

MR. NELSON: Attorney John Nelson for the
Plaintiff, Counter-Defendant, Your Honor.

THE COURT: Good morning.

MR. DICIANNI: Your Honor, the case was brought up
here today, set today for three motions. One -- All of
them by Plaintiff.

One of them having to do with motion to expand
the Court's earlier injunction, and I understand that
that's being withdrawn or has been withdrawn.

The second one had to do with approval of -- of
fees that were submitted by an attorney, Richard Cowlin
(phonetic), and I understand that is settled.

And then the third one is the one that will be
heard today, and that is characterized as Mr. Nelson's
motion to compel the board to approve his nomination for
township attorney.

THE COURT: Mr. Nelson.

MR. NELSON: Judge, correct on item one.
Correct on item two. We have a petition to
withdraw our motion to withdraw our petition for
prelitigation fees. And the matter is settled as far as
we know.

And that comes to the last matter, which is a
motion to (indiscernible) confirm the appointment of
myself as the town attorney.

THE COURT: Do you wish to speak to that?

MR. NELSON: Judge, I've read the response of
counsel, and it just seems to me that during the course
of this case the Ancel, Glink firm and
Keri-Lyn Krafthefer was the town attorney. And just
like the issue that there would be a conflict I think is
not disingenuous but an argument that doesn't hold
water, let's say it that way.

The fact of the matter is that I don't believe,
Judge, that these parties will ever come to an agreement
on the appointment of a town attorney. The board has I
think suggested that four attorneys be presented and
they be allowed to pick. We think that ob --

THE COURT: That obviates the statute.

MR. NELSON: Yes, sir.

THE COURT: The selection of the township attorney
is the responsibility of the township supervisor.

VOICE: That's correct.

THE COURT: She doesn't need to submit a list to
the trustees. For them to make the selection.

VOICE: Right.

THE COURT: That's not going to happen. Unless she
wants to do it that way. She obviously does not.

MR. DICIANNI: So -- Oh, I'm sorry.

MR. NELSON: So, Judge, I think -- I think the
question is is the Board's approval of unreasonably
withheld and the cited reason at least in the meeting
that took place as I indicated in my motion was -- was
the only reason given was conflict. And as I say, the
conflict, if there is a conflict, the Ancel, Glink firm
seemed to be able to work around it. And so I would
suggest that it's -- there's no more conflict now than
there would be then.

The other -- I mean the other practical situation
I see is that I am answering essentially I think Tom's
question now. I am not and don't intend to bill for
them because I wouldn't want to bill for litigation
only; but the way this case seems to run on, the more
and more I think of township operations are brought
before the Court because we essentially have this
available and or the parties have it available to
resolve issues. And I'm not suggesting that -- that the
board can't petition the Court if they feel that there's
a legitimate grievance through (indiscernible), but
there are certain matters that I think are fairly
standard in township law that I can advise the entire
township of, board and supervisor, and then they can do
as they -- as they wish.

THE COURT: Mr. DiCianni?

MR. DICIANNI: Yes. Your Honor, first of all, I
think for the record the only evidentiary issues which
need to be resolved for purposes of this motion are that
Mr. Nelson was nominated by the supervisor to be the
attorney and that was rejected four to one by the board,
and we would stipulate to that.
I assume you agree to the stipulation?

MR. NELSON: Yes, sir.

MR. DICIANNI: Just so that is part of the record.
The issue -- The motion argues that on one basis
for the Court compelling the trustees to approve his
appointment and that is that he's qualified to be so
because of his experience as a township attorney, and
that's not the issue. We don't contend that Mr. Nelson
is not qualified. I'm sure he is.
The question here is -- is does the Court have
the power to compel the board to confirm the
supervisor's appointment, A? B, if the Court has that
power, should the Court exercise it? On the first
point, this is a classic separation of powers issue.
It's classic. There's nothing here that's being
requested of the Court other than to perform the
legislative function of approving or confirming the
appointment. It's strictly a legislative function. The
duties of the courts relate to the judicial functions of
reviewing the jurisdiction, reviewing the -- the
legitimacy or the legality or interpreting or
constructing ordinances and statutes, applying those to
factual situations that come up. That is the -- That is
the judicial function.

Deciding whether a legislature has performed a
legislative act or should perform a legislative act or
shouldn't perform a legislative act is not the function
of the Court other than to say that something a
legislature did is unconstitutional. Other than that,
it is -- it is absolutely substituting this Court's
discretion for the discretion of the Board as to what
its decision is.

So it's our position it's a classic separation
of powers issue. When the president nominates
John Tower to be the Secretary of Defense and congress
refuses it, the president can't go to the Federal courts
and ask them to overturn congress's decision. It's the
same principle. That being said, let's assume that the
Court has that power. Should the Court exercise it?

And our position is of course, no.

Now, I don't even know what standard the Court
would apply to make that decision, an abuse of
discretion standard? How can the Court say that the
legislature has abused their discretion in a decision
that it made? But let's assume that's it and there's
never been any support for any issue like this.
Mr. Nelson has been embroiled in an obviously
contentious dispute with the trustees as raged before
this Court for a year now. He's given opinions that the
board has not agreed with. He's -- He's taken the
position of a supervisor against the board. In a -- In
an ideal world and government the way it is supposed to
work, one person should be providing opinions that
everybody has confidence in. Mr. Nelson,
notwithstanding his abilities, I think the board would
have legitimate reasons to believe that they wouldn't
have confidence in his opinions. And only because he's
been in conflict with them and sees this through the
eyes of an advocate as opposed to a -- as opposed to a
disinterested and objective counselor to the entire
board. And then let's remember, it's the township's
attorney that he would be. Not Linda Moore's and not
the Board's. Township attorney. And the board needs to
have the confidence that a township's attorney has all
interests in mind. And this, of course, nothing
personal. I'm sure Mr. Nelson would carry out his duties
to the best of his abilities and objectively.
But when somebody is an advocate for one party
against another, it takes a tremendous amount of will
and self screening to be completely objective; and I
don't know that he could possibly serve Linda Moore in
this lawsuit and at the same time be the township
attorney. You found that that wasn't -- Well, I think
your decisions were otherwise. But I don't know that he
could do that.

So based on the first part of the argument, that
separation of powers principle under Article three of
the Illinois constitution would prohibit the Court from
compelling the trustees from approving the nomination.
Secondly, even if the Court felt that it did have
that power, it's our position that you should exercise
-- you should not exercise that power in this instance.

THE COURT: Mr. Nelson.

MR. NELSON: Judge, I think it's -- it's a fair
argument to say that the Grafton Township Board is a far
cry from the United States Congress and the President of
the United States.

First of all, the board is composed not only of
the four trustees but the supervisor who essentially
presumably is there to break the tie. So I think it's a
different government and structure. And I think the
Court does have the authority to resolve disputes
between it of this nature.

My view of the confirmation statute is that in
ordinary times the board would confirm the board
attorney, you know, unless there were some drastic
reasons as to why not that should occur.
Mr. DiCianni makes an interesting and forceful
argument that there would be -- that the board has the
ability to within the bounds of the statute reject my
appointment because of the fact that there's ongoing
litigation of some nature and that there had been a
dispute between the board of trustees and the
supervisor. But that same -- as I said in any previous
argument, that same situation existed when Ms.
Krafthefer was the town attorney and they -- that firm
was involved in representing the trustees. And clearly,
Judge, this Court didn't issue any retroactive orders.
It did find that the supervisor did have the authority
to dismiss the town attorney and found no conflict. I
myself raised no conflict, Judge, because I took
Ms. Krafthefer and Mr. DiCianni not at their direct word
but at their implied word that they could do both jobs
at the same time.

The town attorney essentially works with and for
the supervisor, and the supervisor must have confidence
in that counsel; and in this particular situation
whoever I suspect that the supervisor is comfortable
with, the board is not going to be comfortable with. So
we have a stalemate that is -- is really hamstringing
the town. And I will say, Judge, I get asked town
questions, as I say, many times, and I know that the
Ancel, Glink firm does as well. So and these are
matters that you want to be helpful but in their case
they can't and in my case in fact I try to be helpful
but I don't -- I'm not the town attorney at this
juncture. So I can't -- you know, I can't advise. I
feel like I can't even talk to the trustees because
they're represented by counsel.

THE COURT: While I'm not unsympathetic to some of the arguments made by Mr. DiCianni, I think the separation of powers question is probably a little overly broad to be applied directly to this particular dispute, primarily because we're dealing with a unit of local government.

We are not dealing with the United States of America where the separation of powers between the legislative, judicial, and executive branches is far more important than it is here at the local level.

I am also sensitive to the fact that courts should not be and I believe are prohibited ordinarily from interfering with the exercise of legislative discretion. I don't want to get involved in the idea that I have to tell the township that they have to approve this road or this contract or anything else.

I did not run for circuit judge for the purpose of being the township supervisor or the -- or a township trustee. I have no interest in running this -- this unit of local government.

However, this is a case pending before me in a court of equity. I do have the power to enjoin what I consider to be the continuing violation of a statute.

I believe -- I don't know -- This is personal for me. This is a personal remark. I probably shouldn't make it, but I don't really know why you would want this job.

But that having been said, I believe the failure or refusal of the trustees to approve Mr. Nelson as the township attorney is merely a pretext to continue their ongoing dispute with Linda Moore, the township supervisor.

It will therefore be my order that at the next regular meeting of the town board that the trustees reported McMahon, Murphy, and Zirk approve the appointment of John Nelson as the township attorney. The fact that he disagrees with them or they with him quite frankly is one of the qualifications for the job.

I don't come to this dispute or the issue of being an attorney for a local government without considerable experience in this arena, having served as a municipal attorney for 30 years, 25 of those with the City of Woodstock. If I had a reputation for one thing (indiscernible) of those years, it was my ability to tell the aldermen or councilmen of the City of Woodstock or really for that matter any other unit of government I represented, things they didn't want to hear in the first place.

So I don't regard the ongoing dispute as being a conflict of interest that would bar Mr. Nelson from serving.

That will be my order.

I want the trustees mentioned by name in any draft order that you give.

Now, I also advise-- Somebody is going to have to advise these people if they don't follow it-- They are free not to follow it, but that will activate contempt proceedings.

MR. DICIANNI: Well, I would -- I suppose I will have to do this by written motion, but I will be moving to stay the order pending appeal.

THE COURT: It's not ripe.

MR. DICIANNI: Well, I think it is. It's an injunction, and injunctions can be appealed--

THE COURT: Okay.

MR. DICIANNI: -- as an interlocutory matter. So I will be -- Well, I – (indiscernible).

THE COURT: Yeah. I shouldn't even try to answer that question. That's between you and the Appellate Court.

MR. DICIANNI: Okay.

THE COURT: All right.

MR. DICIANNI: Thank you.

THE COURT: I'll put the stay in it. Bond is excused.

MR. DICIANNI: Pardon me?

THE COURT: Bond on appeal is excused.

MR. DICIANNI: Are you staying?

THE COURT: Yes.

MR. DICIANNI: You are staying?

THE COURT: I will stay the order.

MR. DICIANNI: Okay. Thank you.

THE COURT: For thirty days.

MR. DICIANNI: Thirty.

MR. NELSON: Thank you, Judge.

THE COURT: The other question is do we need a 302
finding to be sure? No.

MR. DICIANNI: I don't believe we do.
(Indiscernible) injunction.

THE COURT: (Indiscernible) injunction. Okay.