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April 19, 2024

DuPage Township – The lawyer said……..

By Kirk Allen & John Kraft

On October 25, 2018

Will Co. (ECWd) –

There is one societal downfall we have identified which has resulted in the dumbing down of our citizens.  It’s the repeated words, “you’re not an attorney”, as if being one somehow gives you special powers to understand the English language.  That statement has amazingly convinced people to come to the conclusion they are unable to have an understanding of a law just because they do not have a law license. When that happens, they give up even trying to read the law for themselves and depend on the lawyers to tell them what it says.

Although we are not attorneys, we do enjoy proving them wrong and doing so by simply using their own words, their own documents, and the law.

During Tuesday nights DuPage Township meeting, that had no adopted and recorded rules for public comment when it started, the board voted on an ordinance and selectively implemented portions of that ordinance during the meeting.  For the purpose of this article, we are going to focus on the adoption and implementation of an ordinance at the same meeting at the advice of their Attorney, Mr. John Spina with SMO Law.

During John Kraft’s public comment, Supervisor Mayer attempted to cut off his presentation by citing to the advice of the attorney (“the attorney said…”), that the adopted ordinance applies and his three minutes are up.

Remember, “the lawyer said…” 

When Kraft asked where in the law it outlines an ordinance takes effect at the same meeting it was adopted the attorney immediately went for his folder and cited from a document in his hand as he was prepared, and then cited the claimed applicable law, 65 ICLS 5/1-2-4.   Then he read from the document, which he was kind enough to provide to me after the meeting.  What he read was that All other ordinances, resolutions, and motions, shall take effect upon their passage unless they otherwise provide.”

All other ordinances? That one sentence points to other criteria for implementation that the attorney selectivly ignored.

Once that happened, many in the audience felt confident that he was right and Kraft was wrong and sadly, did so because he was the attorney in the room.  Blindly following legal advice without first reading the law yourself is never a good thing.  Bad for citizens who side with bad advice and even worse for public officials that end up putting the Township in a position of being sued for improper actions.

One big problem with the citation used by the attorney!

65 ICLS has NOTHING to do with Township government nor any ordinances a Township adopts. In fact, the Municipal Code, 65 ILCS is very clear on its definition of Municipality and it does not include a township.

(65 ILCS 5/1-1-2) Sec. 1-1-2. Definitions. In this Code:
    (1) “Municipal” or “municipality” means a city, village, or incorporated town in the State of Illinois, but, unless the context otherwise provides, “municipal” or “municipality does not include a township, town when used as the equivalent of a township, incorporated town that has superseded a civil township, county, school district, park district, sanitary district, or any other similar governmental district. If “municipal” or “municipality” is given a different definition in any particular Division or Section of this Act, that definition shall control in that division or Section only.

So for starters, this attorney cited a law that does not apply to township government.  What makes this so comical is people have come to the Townships defense and questioned our view on the matter and actually made the claim the attorney’s expertise is in Township Government and since we are not attorney’s we are wrong.

Wrong? LOL -Want more comedy?

Let’s assume the very statute Mr. Spina provided was applicable, even though we know it’s not. While he focused on one sentence to support their wishes (advocating for the client), that an ordinance is adopted and in place as soon as adopted, he overlooked the first paragraph pertaining to ordinances that contain penalties.

The Township Ordinance on Public Comment contains penalties to include reprimand and ejection from a meeting.  A future article will expose the Townships fallacy that they have the power to reprimand anyone.  Regardless, the ordinance passed does contain penalties.

The statute the attorney cited as authority to implement an ordinance immediately, specifically states that “ordinances that include penalties are not enforceable until they are printed or published in book or pamphlet form, published by authority of the corporate authority, or be published at least once, within 30 days after passage, in one or more newspapers published in the municipality, or if not newspaper is published therein, then in one or more newspapers with a general circulation within the municipality.”

So, even if the law the attorney cited was applicable to Townships, which it is not, the very fact the ordinance that was passed had penalties triggers a time frame that forbids immediate implementation according to the claimed statute he read from.  Had the law applied as he claimed, it was completely unenforceable until the proper obligations are complied with by the public body.

“But the Attorney said……”

Yes, the attorney cited a statute, (this one).  He even provided me the copy we linked too.  Sadly for the attorney and all those that blindly listened to what the attorney said, the statue provided has NOTHING to do with Township government.  

When will people simply say to these attorney’s, I hear you but will you put that legal opinion in writing and back it up with proper statutory citations?

While writing this article I had to take a break to attend a court case for our County that deals with our State’s Attorney giving bad legal advice that ended up being part of a lawsuit for the county to turn over more than $150,000.00 to another unit of government.  In short, we told them they can’t do what the SA says they can do.  The Judge ruled, now a second time, consistently with our position all along, but we are not attorney’s.

Of special interest from the hearing, today was the Plaintiff reporting that he asked the SA to provide a legal opinion in writing that the resolution he drafted was in fact permitted by law.  We said all along it was not and surprise, the SA refused to draft such an opinion. Why?  Because doing so requires legal research that would prove his prior position was dead wrong and the advice he gave was irresponsible.  Fortunately for the County, our intervention and ongoing demands have resulted in our county getting to keep their money.

All that aside, the adoption of a public comment policy is designed to enhance the citizens right to speak at public meetings, which happens to be the bedrock of our Constitutional rights under the First Amendment.  What the Township did is not even remotely close to enhancing the public right to speak at a meeting.

When the meeting was started there was no public comment policy adopted or recorded.  We will outline in a separate article why we are confident that you cannot adopt a public comment policy and implement it at the same meeting.

But nevermind all that, “the lawyer said…”

You can view the interaction below and witness the attorney reading a law that does not apply to Township government.

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1 Comment
  • Jack
    Posted at 00:07h, 26 October

    Not surprised! Bill forced this attorney on the entire board. You are right, he said he specializes in township, but he never answers questions in a meeting. He was rude to the last attythat he wanted to push out. Let’s see him take on the Edgar County Watchdogs