Published March 30, 2017
Judge dismisses HMS suit, plantiffs can appeal
By Ken Knutson
Community Consolidated Elementary District 181 claimed an important legal victory Monday when DuPage County Circuit Court Judge Bonnie Wheaton dismissed a lawsuit challenging last November’s successful referendum to build a new Hinsdale Middle School.
Last month Gov. Bruce Rauner signed legislation declaring the results of the November election valid despite the DuPage County Election Commission’s error in publishing the required public notice of the referendum three days too early. Five residents of Clarendon Hills brought suit against the district based on that discrepancy.
But Wheaton agreed with the district’s assertion that the legislation “expressly ratified the validity of the referendum” and rendered the lawsuit “moot.” The plaintiffs have 30 days from the ruling to file a notice of appeal.
The lawsuit has complicated the construction schedule, which was set to start in April, because the district’s bond counsel will not sign off on selling the bonds with the pending lawsuit.
In a statement, District 181 Superintendent Don White praised the ruling.
“We are pleased to report that Judge Wheaton ruled in our favor and granted the motion to dismiss,” White stated. “The ruling, which dismissed the entire case, was ‘with prejudice,’ meaning that her ruling is final and the plaintiffs cannot amend their complaint.”
He noted that the district must wait and see if the plaintiffs will appeal and that district officials “will work with legal counsel to expedite any court proceedings that may follow during the appeal process as necessary.”
If the plaintiffs do not file an appeal within the 30-day time frame, the case terminates.
The plaintiffs’ attorney, Bruce Davidson, reached by text, said no decision had yet been made on filing an appeal but indicated a possible basis for one .
“The ruling is a disappointment because District 181 and Judge Wheaton both failed to discuss the central issue: the legislature’s classification by date,” Davidson stated. “Ballot questions on the Nov. 8 ballot were given an expanded publication window, but all similar questions on any other ballot are subject to a narrower time.”
Case law, he asserted, suggests that is “discrimination and problematic from the standpoint of the Illinois Constitution.”
To keep the project moving until the bonds can be sold, the district has used $3.1 million of its reserves for costs related to design engineering and the bidding process. Those funds will cover expenses through May. The school is scheduled to be completed for the start of the 2018-19 school year.
On March 20, district board members approved retaining the pro bono legal services of Thomas Panhoff of Mayer Brown LLP, specifically for litigation related to the case. He offered to work with the district’s legal counsel from Hauser Izzo LLC to support the district’s efforts to achieve a successful outcome on the lawsuit.