Updated March 6, 5 p.m.
Last week after the first substantive hearing on the case, a Cook County judge threw out a lawsuit that was filed nearly one year ago against Riverside-Brookfield High School District 208 by Riverside resident Tony Peraica and the Chicago-based anti-tax group Taxpayers United of America.
Cook County Circuit Court Judge LeRoy Martin Jr. granted District 208’s motion to dismiss the case after a 30-minute hearing Friday afternoon at the Richard J. Daley Center in Chicago.
William Pokorny, the attorney representing District 208, argued that even if the factual allegations in the suit were true, there was no legal basis for the suit.
Judge Martin agreed.
The plaintiffs had argued that the ballot language used in the referendum was illegal and confusing. They also claimed that District 208 had violated their civil rights by allegedly using public resources to advocate for a yes vote on the referendum.
On the ballot language issue, which Spiegel and Taxpayers United also raised and lost in suits against school districts in Oak Park and Wilmette, Martin said that the issue was moot because the referendum was over, the referendum was defeated and there was no referendum on the ballot now.
“It’s a future event that I’m being asked to enjoin, and it may never happen,” Martin said. “It’s just not the stuff that injunctive relief is made of.”
“The election is over,” Martin told Andrew Spiegel, the lawyer for the plaintiffs. “So you’re asking me for a declaratory judgment for past action. … It just seems to me that there’s nothing left for me to declare. We’ve crossed the Rubicon.”
Martin dismissed the counts relating to ballot language with prejudice, which means that aspect of the case is over unless the ruling is overturned on appeal. However, Martin dismissed the use of public resources count without prejudice, which means that Spiegel has 28 days to file a new complaint on that point.
Spiegel told Martin that he wanted the judge to issue a declaratory judgment that District 208 violated the election code.
But Martin said that he did not see how Spiegel could win that point, because even if district resources were used in the referendum campaign, that would have been a violation of the criminal code. It was up to prosecutors or the Illinois Board of Elections to take action, Martin said. Prosecutors have discretion to prosecute only those cases they want to bring, he added.
“It just doesn’t lend itself to a private cause of action,” Martin said.
But Martin said he was dismissing the count relating to the alleged use of public resources in the campaign without prejudice to give Spiegel a chance to amend his complaint and possibly persuade a judge that he had a case worthy of going to trial.
Martin made no rulings on any of the factual allegations made in the lawsuit.
Spiegel said that he was not surprised by the ruling.
“It’s not unexpected, but I’m glad he did not dismiss count three with prejudice, because that’s the key count,” Spiegel said.
Spiegel said that he would amend his complaint to focus the case solely on the electioneering allegation and then seek to transfer the case to another division of the circuit court, because he would be seeking money damages instead of an injunction or declaratory judgment.
Martin is a chancery court judge and the chancery division deals with injunctions and declaratory judgments, not money damages cases.
The suit had asked for damages not to exceed $50,000, in addition to injunctions and other relief.
Spiegel insisted that he is not giving up.
“The current plan is to file an amended complaint and transfer it to the Law Division and demand a jury trial,” Spiegel said.
Spiegel already amended his complaint once last year.
District 208 school board President Matt Sinde was satisfied by the judge’s ruling.
“District 208 is pleased that Judge Martin supported the district and found that we had properly worded the referendum ballot language as provided by Illinois law, and that the district did not mislead its voters,” Sinde said. “The district will continue to vigorously defend itself against any future allegations in the event the plaintiff chooses to file a third time on count number three.”
Peraica said on Monday that he and his co-plaintiff were considering appealing the judge’s decision dismissing the first two counts, but said that he definitely plans on trying again with the electioneering allegation.
He said that he thought it was important press on with the suit.
“If there was any other way to deal with it, I would,” Peraica said. “But unfortunately considering the position of the board when they rejected the offer to have an internal investigation done and then I would in return dismiss the case, there was really no other alternative but to pursue it.”
Christina Tobin, the vice president of Taxpayers United issued a statement Monday.
“Judge Martin did a very thorough and impartial job,” Tobin said. “In my opinion, the actions of School Board 208 were so egregious that justice is sure to prevail in this case.”