{ "id": 5435123, "name": "THE BOARD OF EDUCATION OF DOLTON SCHOOL DISTRICT 149, Plaintiff-Appellant, v. GEORGE MILLER, Highway Commissioner of Thornton Township Road District, Cook County, Illinois, Defendant-Appellee", "name_abbreviation": "Board of Education of Dolton School District 149 v. Miller", "decision_date": "2004-06-30", "docket_number": "No, 1-03-3513", "first_page": "806", "last_page": "815", "citations": [ { "type": "official", "cite": "349 Ill. App. 3d 806" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "322 Ill. App. 3d 941", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 279444 ], "year": 2000, "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0001-01" ] } ], "analysis": { "cardinality": 914, "char_count": 21590, "ocr_confidence": 0.751, "pagerank": { "raw": 5.981156804092538e-08, "percentile": 0.37191067896236424 }, "sha256": "b35162e8d0613b99dbfea008bf5c4875f6d17ead59b89606e3c78dd804cf384a", "simhash": "1:3b472cabaa807310", "word_count": 3480 }, "last_updated": "2023-07-14T17:18:36.100393+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "GALLAGHER and FITZGERALD SMITH, JJ., concur." ], "parties": [ "THE BOARD OF EDUCATION OF DOLTON SCHOOL DISTRICT 149, Plaintiff-Appellant, v. GEORGE MILLER, Highway Commissioner of Thornton Township Road District, Cook County, Illinois, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE O\u2019MAR A FROSSARD\ndelivered the opinion of the court:\nPlaintiff, the Board of Education of Dolton School District 149 (the Board), appeals from an order of the circuit court directing it to build sidewalks or walkways on land owned by the Thornton Township Road District. The Board contends that the circuit court\u2019s order violates the separation of powers doctrine, was issued without any authority or jurisdiction, and lacks any legal or factual basis. The Board also contends that none of the requirements for the entry of injunctive relief were met in this case. For the reasons that follow, we reverse the judgment of the circuit court.\nBACKGROUND\nDolton School District 149 planned to construct a new elementary school building on about 15.4 acres of property at the northeast corner of the intersection of 158th Street and Clyde Avenue in Thornton Township. The school was scheduled to open in January 2004.\nOn October 29, 2002, the general contractor responsible for constructing the school and related improvements applied for a permit to perform construction activities in the 158th Street and Clyde Avenue rights-of-way that bordered District 149\u2019s property. The application requested permission to work on the rights-of-way from November 4, 2002, to August 1, 2003. George Miller, the highway commissioner of the Thornton Township Road District, issued a permit on March 27, 2003. The permit indicated that work was permitted through September 2003.\nRelying on the probability of the issuance of the permit, and later, the actual issuance of the permit, Dolton School District 149 contracted for and proceeded to pay for about $500,000 worth of improvements to the 158th Street and Clyde Avenue rights-of-way that bordered its property. On November 7, 2003, Miller appeared at the construction site and ordered all workers to cease work on the Clyde Avenue and 158th Street rights-of-way. According to Frank Cordetti, an employee of the architecture firm that designed the school, Miller stated he would not allow an extension of the permit for the completion of the improvements to the rights-of-way until District 149 paid him $25,000.\nOn November 10, 2003, the Board of Education of Dolton School District 149 filed a three-count complaint for declaratory and injunctive relief, naming Miller as the defendant. In count I, the Board asserted that as a public entity, District 149 could only expend taxpayer funds upon approval by a vote of the Board. The Board alleged that the $25,000 payment demanded by Miller was unconstitutional, illegal, unreasonable, arbitrary, and capricious because it was never approved by the Board and did not meet the \u201cspecifically and uniquely attributable to\u201d test that is applied to evaluate the legality of conditions imposed for governmental permits. In count II, the Board alleged that because District 149 had incurred expenditures and obligations under the permit issued by Miller on March 27, 2003, it had a vested property right to complete the work authorized by the permit. The Board contended that Miller\u2019s demand for a $25,000 payment and refusal to extend the permit to allow completion of the approved improvements unconstitutionally deprived District 149 of a vested property right. Finally, in count III, the Board alleged that Miller had no authority to frustrate or control District 149\u2019s governmental purposes of providing facilities for the education of children by demanding $25,000 as a condition for the extension of the permit for the completion of improvements to the 158th Street and Clyde Avenue rights-of-way.\nOn November 14, 2003, the Board filed a motion for a temporary restraining order preventing Miller from interfering in the completion of the construction improvements to the 158th Street and Clyde Avenue rights-of-way. In response, Miller filed two unauthenticated documents. The first was an untitled, hand-written, four-page document that was not dated or signed. It provided, in relevant part, as follows:\n\u201cThe school to be constructed for Dist. 149 located @ 157th & Clyde in the unincorp. Area of Thornton Twsp. will impact the area w/ substantial expenses, that are not being covered.\nIn agreeing to allow permitee the right of way for ditches & driveways & new road construction, the Highway Commissioner requests & asks certain considerations.\n9. The School Dist. will allocate the sum of $25,000 cash to the Thornton Township Road & Bridge, for any future use toward street improvements, as the Highway Commissioner deems necessary. Such monies to be held in an escrow acct by the Highway Commissioner. \u2019 \u2019\nThe second unauthenticated document filed by Miller was a letter to Miller\u2019s attorney from the Board\u2019s attorney, dated April 3, 2003. The letter included spaces for signatures on behalf of the \u201cThornton Township Highway Commissioner\u201d and \u201cDolton School District 149\u201d and a space for the date \u201cagreed to,\u201d but those spaces were left blank. The letter included the following paragraph:\n\u201cThe parties have agreed that in lieu of extending the walking path (at the west side of Chappel Avenue) south to the Village Greens and Sand Ridge Condominiums with a new asphalt path, the School District will allocate Twenty-five Thousand and 00/100 Dollars ($25,000.00) from the contract sum to the Highway Commissioner for future use towards street improvements as he deems necessary, with such allocation to be held in an escrow account.\u201d\nOn November 14, 2003, the circuit court entered an order on the motion for a temporary restraining order, directing that construction of the road improvements should not be stopped by Miller. The court enjoined Miller from preventing or interfering with the construction \u201cuntil a hearing on the extension of the temporary restraining order scheduled for November 25, 2003.\u201d\nOn November 24, 2003, the Board filed a memorandum challenging the significance of the documents Miller filed with the court. The Board also asserted that because it had never approved or authorized a payment of $25,000 to Miller, no such payment was owed. In support, the Board attached affidavits from Beverly Dohman, the Board clerk, who stated that nothing in the minutes of the Board meetings indicated that the Board approved a $25,000 payment to Miller; from Darlene Gray Everett, the Board president, who stated that the April 3, 2003, letter was never presented to her or approved by her; and from Traci Brown, the superintendent of Dolton School District 149, who stated that the April 3, 2003, letter was never presented to her and that the letter was never placed on a meeting agenda for consideration or approval by the Board. Finally, the Board argued that Miller\u2019s demand for $25,000 for future street improvements \u201cas he deems necessary\u201d was an illegal permit condition because it was not specifically and uniquely attributable to District 149\u2019s construction of a school.\nAlso on November 24, 2003, Miller filed a written response to the Board\u2019s motion for a temporary restraining order in which he asserted that he had sought the $25,000 for the construction of walkways or sidewalks near the new school and that such walkways around the school were reasonable, sought for the safety of students, and \u201cspecifically and uniquely attributable to the Board\u2019s activities.\u201d Miller explained that District 149 intended to install sidewalks only on its own property immediately surrounding the new school. Miller urged that for the safety of the students, sidewalks should be installed on adjacent property. In an accompanying affidavit, Miller stated that these additional sidewalks would be located on property owned by the Thornton Township Road District.\nMiller further alleged in his response that \u201cconditions for the permit have been under negotiation between the parties for many months and the attorney for [the Board] has specifically offered, in writing, to pay $25,000 into an escrow account \u2018in lieu of extending the walkway path\u2019 which was suggested by [Miller] as a condition for the permit.\u201d In support, Miller attached the hand-written, four-page document noted above, which Miller identified as a rider to the construction permit that he wrote suggesting conditions for the permit, and the above-noted April 3, 2003, letter to Miller\u2019s attorney from the Board\u2019s attorney. Miller asked the court to deny the Board\u2019s motion for a temporary restraining order outright or, in the alternative, to deny the motion until the Board agreed or was ordered to install walkways \u201cfor the safety of the children\u201d; to find that the additional walkways are a reasonable and necessary condition for the permit to build the new school; and to order the school to install the additional walkways.\nOn November 25, 2003, the circuit court entered two. separate orders based on the written pleadings and affidavits. In the first, the court ordered that the temporary restraining order entered on November 14, 2003, be continued until the completion of the improvements on the 158th Street and Clyde Avenue rights-of-way and enjoined Miller from preventing or interfering with the construction of those improvements. In the second order, the court directed as follows:\n\u201c1. The plaintiff is ordered to build sidewalks or walkways[:] (1) on the east side of Clyde Avenue from the end of the plaintiffs properly north to 154th Street; and (2) on the north side of 158th Street from the end of the plaintiff\u2019s property east to Paxton Avenue.\n2. The order and finding of the court is based on public health and safety.\n3. The issue of the ultimate responsibility for payment for the sidewalks referenced in par. 1 above will be determined at a later date based on further pleadings.\nThe case is continued for further status to 9:45 a.m. on January 21, 2004.\u201d\nOn December 1, 2003, the Board filed a notice of interlocutory appeal from the circuit court\u2019s second order of November 25, 2003, citing Illinois Supreme Court Rules 307(a) and 307(d) (188 Ill. 2d Rs. 307(a), (d)). On December 17, 2003, this court entered an order determining that our jurisdiction attaches pursuant to Rule 307(a)(1), which provides that an appeal may be taken from an interlocutory order granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction. 188 Ill. 2d R. 307(a)(1).\nMiller has not appealed the entry of the circuit court\u2019s first order of November 25, 2003, which continued the temporary restraining order until the completion of the improvements on the 158th Street and Clyde Avenue rights-of-way and enjoined Miller from preventing or interfering with the construction of those improvements. At issue in the instant case is the Board\u2019s appeal from the second order entered by the circuit court directing the Board to build sidewalks and walkways.\nANALYSIS\nThe parties disagree on the proper standard of review in this case. Miller argues that the standard of review is abuse of discretion. See Lucas v. Peters, 318 Ill. App. 3d 1, 15 (2000). The Board, in contrast, asserts that the facts are undisputed and that therefore our review is de novo. See Hawrelak v. Marine Bank, Springfield, 316 Ill. App. 3d 175, 179 (2000). We note that this court has applied the de novo standard of review in cases where a trial court ruled on a preliminary injunction without making any findings as to factual issues. See, e.g., Peregrine Financials & Securities v. Hakakha, 338 Ill. App. 3d 197, 202 (2003); LAS, Inc. v. Mini-Tankers, USA, Inc., 342 Ill. App. 3d 997, 1001 (2003). Here, the circuit court found that sidewalks should be built \u201cbased on public health and safety.\u201d While this may not be a classic finding of fact, we cannot say that it is a determination of law. Accordingly, we review the circuit court\u2019s order for abuse of discretion.\nOn appeal, the Board contends that the circuit court\u2019s order requiring it to build sidewalks or walkways on property which the Board does not own violates the separation of powers doctrine, was issued without any authority or jurisdiction, and lacks any legal or factual basis. The Board also contends that the order was in error because Miller failed to establish any of the requirements for injunctive relief. We address these arguments in turn.\nThe circuit court specified that its order requiring the Board to build sidewalks or walkways on land owned by the Thornton Township Road District was \u201cbased on public health and safety.\u201d However, the authority to determine appropriate public policy is vested in the legislature, not the courts. Morris v. William L. Dawson Nursing Center, Inc., 187 Ill. 2d 494, 499 (1999); Champaign Township v. County of Champaign, 331 Ill. App. 3d 582, 590 (2002). This court has explained the reason that courts should be very cautious in establishing public policy:\n\u201cCourts are ill equipped to determine what the public policy should be. Seldom are all interested parties, all facts, and all issues present in a single case, where the court can rationally balance all the factors necessary to establish a policy good for society. Further, establishing public policy may entail the balancing of political interests. This is a function of the legislature, not the courts.\u201d Dixon Distributing Co. v. Hanover Insurance Co., 244 Ill. App. 3d 837, 852 (1993).\nIt is through the use of the police power that a government may mandate public improvements such as the one at issue in this case. See Village of Algonquin v. Tiedel, 345 Ill. App. 3d 229, 234-35 (2003) (compelling homeowners to connect to municipal water supply). However, not all branches of the government may exercise the police power: \u201cIt is for the legislative branch of the government \u2014 not the judicial branch \u2014 to determine when and where conditions exist requiring an exercise of the police power to meet existing evils.\u201d County of Knox ex rel. Masterson v. Highlands, L.L.C., 188 Ill. 2d 546, 559 (1999), citing 11 Ill. L. & Prac. Constitutional Law \u00a7 149, at 498 (1981). The legislature may delegate its police power to protect the public health. See Greyhound Lines, Inc. v. City of Chicago, 24 Ill. App. 3d 718, 722-23 (1974) (delegating police power to municipality); Village of Glencoe v. Metropolitan Sanitary District of Greater Chicago, 23 Ill. App. 3d 868, 872 (1974) (delegating police power to sanitary district). Relevant to this case, our legislature has delegated to school boards the power to appropriate school funds \u201cfor the construction of such sidewalks, bridges, culverts and other approaches leading to the schoolhouse or school grounds as are necessary for the convenience and safety of pupils attending such school.\u201d 105 ILCS 5/10 \u2014 22.19 (West 2000).\nThe Illinois Constitution provides that \u201c[t]he legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.\u201d Ill. Const. 1970, art. II, \u00a7 1. Here, the circuit court issued an order requiring the Board to build sidewalks or walkways on land owned by another entity, the Thornton Township Road District, \u201cbased on public health and safety.\u201d This order established public policy and exercised the police power, two powers within the province of the legislature, not the judiciary. As noted by the Board, the circuit court was ill-equipped to make a determination that public funds should be spent on these sidewalks, as the court had no knowledge of Dolton School District 149\u2019s financial condition or educational priorities, other federal or state mandates, the feasibility or costs of engineering and constructing sidewalks, or other options for ensuring student safety. These types of questions are best left for the legislative branch and the entities to which the legislature delegates its authority. Given the principles outlined above, we find that the circuit court\u2019s order violated the constitutional doctrine of separation of powers.\nMoreover, we agree with the Board that the circuit court\u2019s order lacks any legal or factual basis. Defendant contends the order on appeal is in the nature of a mandatory preliminary injunction. Nichols on Illinois Civil Practice states: \u201cThe application for temporary restraining order or preliminary injunction may be included in the original complaint, in which case the complaint must be verified, or it may be requested by motion filed at the same time or later and supported by proper affidavits.\u201d 3 C. Nichols, Illinois Civil Practice \u00a7 35:16, at 38 (rev. vol. 2002); see also Kolstad v. Rankin, 179 Ill. App. 3d 1022, 1029 (1989). In this case, Miller did not file a complaint, counterclaim, or motion requesting injunctive relief. Instead, he included his request for an order requiring the construction of sidewalks in his written response to the Board\u2019s motion for a temporary restraining order. Absent a proper request, it was inappropriate for the court to grant injunctive relief.\nEven assuming Miller had filed a proper complaint, counterclaim, or motion for injunctive relief, he would not have been able to establish that the Board was liable for the construction of the sidewalks under a theory of either contract or tort. While the pleadings and attachments presented to the circuit court indicated that Miller wanted the Board to construct the sidewalks, they included no evidence that the Board had ever agreed to do so. In fact, Miller acknowledges in his brief that the parties never executed an agreement with respect to sidewalks or walkways. Additionally, in the context of tort law, this court has held that public entities do not have a duty to construct sidewalks. See, e.g., Thompson v. Cook County Forest Preserve District, 231 Ill. App. 3d 88, 96 (1992) (forest preserve district); Frakes v. Martin, 151 Ill. App. 3d 676, 677-78 (1987) (school district); Eddings v. Dundee Township Highway Commissioner, 135 Ill. App. 3d 190, 198 (1985) (township). As noted by the Board, \u201cThere is no known cause of action that would allow a court to force anyone to improve the property of another simply because a court concluded that the improvements would be a good idea.\u201d Given the lack of a legal or factual basis for its order, the circuit court abused its discretion by entering the second order requiring the plaintiff to build sidewalks or walkways.\nFinally, we agree with the Board that Miller failed to establish any of the requirements for injunctive relief. As previously noted, defendant contends that the order on appeal is in the nature of a mandatory preliminary injunction. A party seeking a preliminary injunction is required to establish that he (1) has a clearly ascertained right that is in need of protection; (2) will suffer irreparable harm without the injunction; (3) has no adequate remedy at law for the injury; and (4) is likely to succeed on the merits. Beahringer v. Page, 204 Ill. 2d 363, 379 (2003). The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits. Beahringer, 204 Ill. 2d at 379. A preliminary injunction is an extraordinary remedy applicable only where an extreme emergency exists and serious harm would result if the injunction is not issued. Beahringer, 204 Ill. 2d at 379.\nWith regard to the factors listed above, we first find that Miller has not demonstrated a clearly ascertained right in need of protection. As explained earlier, there is no legal mechanism by which the Board can be compelled to build the sidewalks in question, as there exists neither an agreement to that effect between the parties nor a duty on the part of public entities to construct sidewalks. For this same reason we cannot conclude that there is a likelihood Miller could succeed on the merits of his case. Additionally, Miller has not alleged, much less established, that he or the Thornton Township Road District will suffer irreparable harm if the Board does not build the sidewalks. And finally, a remedy at law is considered inadequate when monetary damages cannot compensate for the injury and the injury cannot be measured by pecuniary standards. Franz v. Calaco Development Corp., 322 Ill. App. 3d 941, 947 (2001). Here, it cannot be said that a remedy at law would be inadequate, as harm could be measured by pecuniary standards for compensation purposes. Given these circumstances, we find that Miller has not demonstrated a need for a preliminary injunction and that, therefore, the circuit court abused its discretion.\nCONCLUSION\nThe circuit court\u2019s order \u201cbased on public health and safety\u201d established public policy and exercised the police power, two powers within the province of the legislature, not the judiciary. As such, it violated the constitutional doctrine of separation of powers. Additionally, the order lacked a legal and factual basis, and Miller did not submit a proper request for injunctive relief or establish that he was entitled to this extraordinary remedy. Accordingly, the circuit court\u2019s order requiring the Board to build sidewalks on property owned by the Thornton Township Road District was an abuse of discretion.\nFor the reasons explained above, we reverse the judgment of the circuit court.\nReversed.\nGALLAGHER and FITZGERALD SMITH, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE O\u2019MAR A FROSSARD" } ], "attorneys": [ "Rosenthal, Murphey & Coblentz, of Chicago (John F. Donahue and Gail Jones Klopfer, of counsel), for appellant.", "Kusper & Raucci, Chtrd., of Chicago (Daniel E. Cannon, of counsel), for appellee." ], "corrections": "", "head_matter": "THE BOARD OF EDUCATION OF DOLTON SCHOOL DISTRICT 149, Plaintiff-Appellant, v. GEORGE MILLER, Highway Commissioner of Thornton Township Road District, Cook County, Illinois, Defendant-Appellee.\nFirst District (6th Division)\nNo, 1\u201403\u20143513\nOpinion filed June 30, 2004.\nRosenthal, Murphey & Coblentz, of Chicago (John F. Donahue and Gail Jones Klopfer, of counsel), for appellant.\nKusper & Raucci, Chtrd., of Chicago (Daniel E. Cannon, of counsel), for appellee." }, "file_name": "0806-01", "first_page_order": 824, "last_page_order": 833 }