IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT

PEORIA COUNTY, ILLINOIS

LANDMARKS ILLINOIS, NATIONAL )

TRUST FOR HISTORIC PRESERVATION, )
ROCK ISLAND PRESERVATION SOCIETY, )
MOLINE PRESERVATION SOCIETY, )
BROADWAY HISTORIC DISTRICT )
ASSOCIATION, FREDERICK SHAW, )
and DIANE OESTREICH, )
)
Plaintiffs, )
) ROCK ISLAND
) COUNTY, ILLINOIS
vs. ) Case No. 19 CH 40
)
ROCK ISLAND COUNTY BOARD and )
ROCK ISLAND COUNTY PUBLIC )
BUILDING COMMISSION, )
)
Defendants. )

MOTION TO DISMISS

REPORT OF PROCEEDINGS of the electronic recording of

the hearing before the HONORABLE JUDGE JODI HOOS on

March 19, 2019.

APPEARANCES:
MR. THOMAS E. QUINN
and MR. CHARLES W. CARLIN,
Attorneys at Law,
for the Plaintiffs;
MR. WILLIAM RECTOR
and MR. DANIEL HARDIN,
Attorneys at Law,
for the Defendant Rock Island County Board;
MR. WILLIAM STENGEL
and MS. SARAH GORHAM,
Attorneys at Law,
for the Defendant PBC.

Electronically Recorded Proceedings transcribed by:

Jamie L. Bickett
Official Court Reporter
 2

1 (The following proceedings were held in

2 open court.)

3 THE COURT: This is 19 CH 40. If the parties would

4 identify themselves for the record, please?

5 MR. QUINN: Good morning, your Honor. Tom Quinn and

6 Charlie Carlin for the plaintiffs.

7 MR. RECTOR: Good morning, your Honor. Bill Rector

8 and Daniel Hardin of Bozeman, Neighbour, Patton, and

9 Noe, LLP, for the Rock Island County Board, one of the

10 defendants. And with us is state's attorney John

11 McGehee.

12 MR. STENGEL: Bill Stengel and Sarah Gorham for the

13 PBC.

14 THE COURT: Okay. We're set today on a motion to

15 dismiss filed on behalf of the defendants. Are the

16 parties ready to proceed?

17 MR. QUINN: Yes, your Honor.

18 MR. RECTOR: Yes, your Honor.

19 THE COURT: Okay. Let's start first with the motion

20 to dismiss from the county board. Any additional

21 argument you'd like to make on that motion?

22 MR. RECTOR: I would, your Honor.

23 THE COURT: Go ahead.

24 MR. RECTOR: May it please the Court, counsel?

 3

1 THE COURT: It may.

2 MR. RECTOR: The Rock Island County Board's motion

3 to dismiss expressly referenced the memorandum of law

4 we submitted in opposition to the temporary restraining

5 order motion. And then the order that entered the

6 temporary restraining order set a briefing schedule,

7 which the parties have complied with. And I assume

8 that the Court has courtesy copies of that briefing.

9 THE COURT: I did get those. Thank you.

10 MR. RECTOR: Okay. Thank you.

11 The Court did not -- as the Court indicated, it

12 did not decide the issue presented by the motion to

13 dismiss in granting the temporary restraining order.

14 And while plaintiffs contend that there are six

15 independent grounds for relief against the defendants,

16 I want to make clear that there are three counts pled

17 against the Rock Island County Board, and the remaining

18 three counts, 4 through 6, are only pled against the

19 PBC.

20 The county board supports the PBC's motion, but

21 only the first three counts are pled against the county

22 board. The county board is asking the Court to dismiss

23 those counts under 2-615 and 2-619. We understand that

24 under that standard, plaintiffs' well-pled factual

 4

1 allegations may be accepted as true, but not

2 plaintiffs' conclusions of law or construction of the

3 statute.

4 And so while the county board contends that

5 plaintiffs' allegations are, you know, frankly,

6 portraying a building that no longer exists, that is

7 not historic, that doesn't matter here. The issue

8 presented by the county board's motion is one of

9 statutory construction. That's a matter of law for the

10 Court to decide today, in our view.

11 The purpose and language of the Preservation

12 Act and the PBC Act did not allow the plaintiffs to

13 state a claim halting the Rock Island County Board's

14 effort to secure and maintain its jail and annex in

15 accordance with the chief judge's administrative order

16 by demolishing an old courthouse that sits a mere 40

17 feet away.

18 In Count 1, the plaintiffs allege the county

19 board cannot secure and maintain its jail and annex

20 until it goes through a consultation process set forth

21 in the Preservation Act. They argue that this is by

22 virtue of an application for a storm water permit made

23 by the engineer, Missman, but that is really wholly

24 inconsistent with the purpose of that Preservation Act

 5

1 and its language.

2 Under 20 ILCS 3420/1, the Preservation Act is

3 intended to protect historic resources under the

4 state's control which are state owned or affected by

5 state projects. The act, indeed, expressly exempts

6 local governmental units and the circuit court in the

7 definition of a "state agency."

8 And the purpose of the Preservation Act cannot

9 be to allow the IDNR or the state Historic Preservation

10 Office to interfere with the county board's ability to

11 carry out its statutory responsibility to provide and

12 maintain court facilities and a jail in good repair,

13 pursuant to an order issued by the chief judge in

14 accordance with his office's constitutional

15 responsibilities.

16 In spite of plaintiffs' argument, the language

17 of the Preservation Act cannot be twisted to apply

18 here. The consultation process under section 4 does

19 not apply to a state agency taking an action in regard

20 to a public undertaking by a non-state agency such as

21 the county board or the PBC. Plaintiffs' argument

22 would render the definition of and the words public --

23 I'm sorry, "private undertaking" superfluous, and

24 that's contrary to principles of statutory

 6

1 construction.

2 Plaintiffs rely not on this language prior to

3 approval of a final design or plan of any undertaking

4 by a state agency, arguing that that application for an

5 IEPA permit, a storm water permit, triggers that

6 language. But that interpretation also renders that

7 language superfluous because it is not an approval of a

8 final design or plan that has been triggered by the

9 application for the storm water permit.

10 There is no allegation that this approval

11 process by the -- that the IEPA is engaging in an

12 approval process of a final design or plan of the old

13 courthouse. Indeed, the storm water permit requires no

14 such thing. There's no approval. And the analogous

15 statutes referred to in the Historic Green Springs case

16 in our reply brief are instructive.

17 Plaintiffs have cited no law to the Court

18 holding that the application process for a storm water

19 permit triggers this approval process applicable to an

20 undertaking, public or private. And the Preservation

21 Act does not provide a basis for the claim to proceed

22 under Count 1, allowing plaintiffs to revisit the issue

23 of how the county maintains its jail and annex by

24 demolishing an old courthouse sitting right next to it.

 7

1 Furthermore, interpreting the Preservation Act

2 to allow Count 1 to proceed would not only be contrary

3 to its purpose, its language, and the county board's

4 statutory obligations in regard to a courthouse, it

5 would render the law unconstitutional. The chief judge

6 acted pursuant to his inherent authority to protect the

7 judicial facility. Plaintiffs cite no law holding that

8 the Rock Island County Board could ignore that order

9 based on a letter from the state Historic Preservation

10 Office.

11 Under article 6, section 7(c) of the

12 Constitution, the chief judge has the administrative

13 authority for determining appropriate places to hold

14 court. And under article 2, no branch shall exercise

15 powers properly belonging to another. Under the

16 Supreme Court authority we cited in our papers, the

17 Court must preserve the judicial independence.

18 Adopting an interpretation of the Preservation Act

19 which allows the state Historic Preservation Office to

20 halt efforts of the county to secure and maintain its

21 jail and annex would trample over the judicial branch's

22 exercise of its power belonging to that.

23 And for those reasons, Count 1 should be

24 dismissed with prejudice.

 8

1 Count 2 is based on the Public Building

2 Commission Act. Plaintiffs contend that they can halt

3 the demolition because the old courthouse is a new site

4 requiring municipal approval. Count 2 fails to state a

5 claim because section 14(c) of that act allows the PBC

6 to demolish a building in the same area.

7 There is no reason that the PBC needed to

8 designate a new site. And the exhibits to the

9 complaint show that the courthouse in close -- the old

10 courthouse in close proximity to the jail and annex is

11 in the same area. The PBC was well within its mandate

12 in designating the old courthouse in an area -- in that

13 area when it entered into the intergovernmental

14 agreement.

15 Even if the old courthouse is in a new site

16 under the PBC Act, which we contend it is not, the

17 language of the act still does not provide a basis for

18 a claim because municipal approval is not required for

19 the uses for the county. The statute says that, and

20 after it says that, it uses the word "or" prior to

21 describing a special situation involving counties with

22 populations between 20- and 21,000.

23 Count 3 is plaintiffs' claim that the county

24 board should be stopped because demolition exceeds the

 9

1 purpose of the PBC. Now, that count flies right in the

2 face of the county board's legislative finding that the

3 security and maintenance of its jail and annex required

4 demolition of that old courthouse, which sits merely

5 feet away. And that legislative finding, based on the

6 appellate authority cited in our papers, is entitled to

7 great deference by this Court.

8 Plaintiffs have offered nothing to suggest that

9 the county board's finding in that regard lacks a

10 rational basis. The finding is not something that this

11 litigation should revisit, because under Goehring, the

12 Supreme Court's decision, the Rock Island County Board

13 is the sole judge of building and repairing its jail

14 and annex, and that would include securing and

15 maintaining it by demolishing the old courthouse.

16 Furthermore, to hold that the PBC undertakes a

17 new purpose because the work is outside the walls of

18 the jail is contrary to the final judgment entered in

19 the quo warranto action by the Henry County court,

20 which was not appealed, as well as the county board's

21 legislative finding. We would contend that Count 3

22 should be dismissed with prejudice.

23 The county board further contends that the

24 plaintiffs lack standing. Taxpayer standing does not

 10

1 allow the plaintiffs to review the Rock Island County

2 Board's decisions regarding its funds or property under

3 the Stermer decision we cited. And the National Trust

4 cannot challenge the county board's disposition of a

5 courthouse under Landmarks, which distinguishes that

6 case.

7 As I noted, the PBC has filed a motion to

8 dismiss with respect to Counts 4 through 6, which are

9 not pled against the county board. The county board

10 supports that motion. The reason that -- the purpose

11 of the PBC is not being extended by the action to

12 secure and maintain the jail and annex, which it was

13 mandated to construct. The bond language is not being

14 violated. And I know counsel for the PBC will speak on

15 the PBC's behalf, but it's our contention that those

16 counts are without merit against the PBC as well.

17 There was a bond opinion by the firm Chapman

18 and Cutler. And the purpose, again, is not being

19 extended here by securing and maintaining the building

20 the PBC was charged to construct. The relief requested

21 is dismissal of the counts pled against the county. In

22 that case we would ask that the temporary restraining

23 order against the county be extinguished in order to

24 allow it to secure and maintain its jail and annex by

 11

1 demolishing the old courthouse, in accordance with the

2 chief judge's administrative order finding that it

3 needs to come down.

4 Finally, there was a motion for leave to amend

5 the complaint filed. That has not been granted, and

6 it's our contention that it adds nothing to the

7 statutory claims. There are some additional

8 allegations regarding a standing that we don't believe

9 save the claims as well. But because the claims cannot

10 be stated, the Court should deny the motion for leave

11 as well.

12 That's my argument.

13 THE COURT: Okay. Thank you.

14 All right. Argument then on behalf of the

15 Public Building Commission's motion to dismiss?

16 MR. STENGEL: Well, your Honor, as a preliminary

17 matter, the petition to intervene filed by plaintiffs I

18 don't believe has been ruled on. As far as the PBC is

19 concerned, we not only do not resist, we encourage that

20 petition to intervene.

21 The petition to intervene requests, set forth

22 at their paragraph 7, the Court should also exercise

23 its discretion and permit the application to intervene

24 because this case has questions of law and fact in

 12

1 common with the case. And then they set out four

2 different areas where the administrative order does

3 have common issues of law in fact.

4 THE COURT: I didn't get a petition to intervene.

5 MR. STENGEL: Excuse me?

6 THE COURT: I don't have a petition to intervene, so

7 I don't know what you're referring to.

8 MR. QUINN: Your Honor, as I think you know from our

9 filings, we attempted to intervene in the

10 administrative action at the same time we filed our

11 complaint.

12 THE COURT: Oh, okay.

13 MR. QUINN: It was before Judge Braud.

14 THE COURT: I thought you meant something that had

15 been filed like within the last week.

16 MR. QUINN: I think that's what counsel's referring

17 to.

18 THE COURT: Is that what you're referring to?

19 MR. STENGEL: I am referring to that, yes.

20 THE COURT: Okay.

21 MR. STENGEL: This has been on file.

22 THE COURT: I gotcha. I thought you meant -- I

23 thought you said -- I was inferring from your argument

24 that it was something just recently filed.

 13

1 MR. STENGEL: No.

2 THE COURT: So I was just letting everyone know --

3 MR. STENGEL: It's been on file --

4 THE COURT: -- I didn't have anything recent. Okay.

5 MR. STENGEL: -- but I don't believe that it's been

6 addressed.

7 THE COURT: Okay.

8 MR. STENGEL: And we think that it is necessary to

9 address it. We think that this is an issue that is of

10 import not only in Rock Island County, but in many

11 other counties in this state, that there are other

12 chief judges who would like to know what the law is in

13 terms of judicial authority.

14 They set forth four different points. Does the

15 Court have any jurisdiction or authority to direct the

16 board's or the PBC's action, expenditures of funds in

17 connection? Clearly an issue in common.

18 Has the PBC's application to the Illinois EPA

19 for a permit been approved? I don't know that that's

20 necessarily they set that forth as a common law of

21 fact. And if they choose to, that's fine.

22 The next one, does the PBC and the board's

23 proposed demolition of the historic courthouse violate

24 the Preservation Act and the PBC Act? The PBC Act and
 14

1 the Preservation Act, the PBC of course joins with the

2 county in terms of their motion to dismiss. So this is

3 certainly a -- very much a common issue of question of

4 fact and law.

5 And then they go to their final bullet point:

6 Does the PBC and the board's plan to demolish the

7 historic courthouse breach its covenants with the

8 bondholders?

9 And that leads me into the discussion of Counts

10 4, 5, and 6. The reason that we believe that 4, 5, and

11 6 should be dismissed are really the same issues that

12 were set forth and made an exhibit in our original

13 motion to oppose their temporary injunction, and that

14 is an exhibit in our pleadings, the Chapman and Cutler

15 letter.

16 The PBC did not rush forward and say, "Yes, we

17 will use some funds to demolish." What they did first,

18 prior to the intergovernmental agreement, the very

19 first thing that happened was that our county -- our

20 state's attorney very wisely said, "Let's go back to

21 bond counsel." Chapman and Cutler was the bond counsel

22 that rendered the opinion that allowed the sale of the

23 original bonds. "Let's go back to them. Let's ask

24 them. Is it appropriate under this bond and the

 15

1 covenants to allow funds for demolition?" And they

2 said yes.

3 And I would just urge -- even though I could

4 repeat the arguments that they make and the statements

5 they made, they make them better than I do. They set

6 them forth in their letter, and they address both

7 issues that are being challenged in terms of whether or

8 not the demolition is permitted. And they say yes

9 because they do cite directly to the PBC Act at section

10 14(c), to demolish and repair is a function of this

11 process.

12 They also talk conclusively about the other

13 issue that was raised in terms of, is it a violation of

14 the bond covenants. So with that assurance with

15 Chapman and Cutler, renowned bond counsel, the county

16 board then entered into an intergovernmental agreement.

17 What is now what I believe those two, the

18 motion to dismiss is that it's really asking for the

19 wrong relief. What they're asking for is to halt the

20 demolition. The halting of the demolition, I think,

21 will rise or fall in a way in terms of how the Court

22 interprets the Historic Act and not the PBC Act. The

23 PBC is going to be carried along with what happens in

24 terms of the resolution on the county.

 16

1 If the PBC -- if the bond act was being

2 addressed solely by itself, it would not rise to

3 injunctive relief. The plaintiffs acknowledge that

4 they're bringing this action in a court of equity, and

5 so with a court of equity, fairness must be achieved.

6 And what they say in terms of their client, the

7 plaintiff, Mr. Shaw -- he's the bondholder. What do

8 they say about Mr. Shaw? This is at their paragraph 8

9 at page 4: "Mr. Shaw enjoys, appreciates the cultural

10 aesthetic and historic value of the historic

11 courthouse, and will suffer injury from its destruction

12 by being deprived of the cultural, aesthetic, and

13 historic values embodied in the historic courthouse."

14 There is no pleading that Mr. Shaw is subject

15 to some recognized or imminent type of financial harm.

16 Without having to get to the issues directly, the Court

17 doesn't have to decide this issue because it's one for

18 money judgment. It's a claim -- Mr. Shaw is a little

19 different than any other bondholder, whether it's with

20 the PBC or someone else. If there's a default on the

21 bond, he has a claim for money damages.

22 And so the claim of Mr. Shaw and the issues in

23 terms of the bond, that can be set aside. That really

24 doesn't have to be determined here. It can be done in

 17

1 terms of a money judgment. It can be done in terms of

2 the civil action. Just because the PBC Act allows as

3 one of the remedies equitable relief, it does not

4 mandate equitable relief.

5 And I know we have certain limitations, and I

6 don't want to start interjecting factual issues more

7 than I already have, but one of the factual issues that

8 can be addressed in terms of a hearing on the merits is

9 the money issues. How much money's at stake and how

10 much risk does Mr. Shaw have? It's miniscule.

11 The way that the PBC pays back the bonds is

12 that it rents the facility to the county, the county

13 pays rent, the money that's received in the rent pays

14 down the bonds or the bond is paid down, then the

15 building reverts to the county. That's how the PBC

16 works. There's no suggestion ever in these pleadings

17 that that process is in jeopardy.

18 So the question about the bonds, I think, is,

19 I'm going to suggest one of the easier ones for the

20 Court to grapple with because it's really not -- does

21 not need to be done in an injunctive manner. There are

22 plenty of ways for Mr. Shaw, if he feels that he has

23 been harmed financially in terms of his bond payments,

24 he can move forward on that.

 18

1 I think that what Mr. Rector argued in terms of

2 why this is such a crucial issue in terms of the

3 separation of powers, is that it applies to the PBC as

4 well. The PBC is under an order from the chief judge

5 to demolish. That's an existing order and not taken

6 lightly. So that's why we come back around to yes, I

7 think the Court is faced with an issue that is one that

8 has scant law to it in terms of the authority of a

9 chief judge to protect this courthouse.

10 And that is what he is doing. He is protecting

11 his new jail and annex. The courthouse is still the

12 courthouse. And one of the facts -- and I will just

13 proffer this fact. I'm trying not to get into

14 evidence. But that courthouse has not been

15 decertified. It's still the courthouse. The court

16 functions have been moved to the annex. The chief

17 judge still controls the courthouse. And the

18 decertification has not gone through for that very

19 absolute reason.

20 Let us not forget that in determining the role

21 of the chief judge, that he has a share of Rock Island

22 County that has signed an affidavit that was a part of

23 our resistance that says he cannot protect the jail and

24 annex with that courthouse there. Now, Sheriff Bustos

 19

1 is not one to engage in hyperbole. He wrote that

2 affidavit. I believe he means it.

3 And so I'm willing to go a little farther,

4 Judge, if I may. I think the case should be dismissed.

5 I think that plaintiffs' counsel and the county's

6 counsel have done a fabulous job in terms of framing

7 the issues here.

8 It may be necessary, you know, to supplement

9 the record on a few things. I think this is ready to

10 go up right now. I think that the Court should dismiss

11 it. We know the plaintiffs will go forward, and this

12 is an issue that needs to go forward. It's a big

13 issue. It needs to go up the ladder.

14 And I think that if that happens, then

15 everybody has a benefit. The plaintiffs have their

16 Supreme Court case. The taxpayers are not burdened

17 with this unnecessary expense. The legal issues are

18 resolved. The demolition can go forward.

19 And every time that the PBC -- we go through

20 the Historic Act, through this consultation process,

21 through the mediation committees, do the sit around and

22 talk, do the conferences, every time we talk about

23 feasibility, and the one thing that we are prepared to

24 show conclusively at a hearing on the merits is it is

 20

1 not feasible. It is impossible.

2 So what did -- what has been accomplished?

3 What did they want to accomplish? In their very first

4 page on their introduction, they set forth what they

5 wanted to accomplish: historically significant

6 building that can be repurposed for the benefit of the

7 taxpayers. Well, the benefit of the taxpayers has been

8 explored for three years in a fierce public debate over

9 and over and over again. And unfortunately, the proof

10 is overwhelming that it's just not feasible.

11 This is an academic exercise. Nowhere in the

12 PBC Act once does it say that the county, when the

13 conversations were over, when the committees were over,

14 when the mediation was over, that the county can't go

15 forward. Of course they can. They can go forward.

16 They voted to go forward because they know it's not

17 feasible.

18 And this is a court of equity. They brought it

19 in a court of equity. I think equity can be achieved

20 at this stage very well by the dismissal, and we'll see

21 where it goes after that.

22 Thank you.

23 THE COURT: Okay. Thank you.

24 All right. Response for the plaintiffs?

 21

1 MR. QUINN: May it please the Court?

2 THE COURT: It may. Thank you.

3 MR. QUINN: Tom Quinn on behalf of the plaintiffs,

4 your Honor.

5 And at the outset, I just want to clarify,

6 there is no petition to intervene before you. As we

7 set forth in our papers, we filed that a day or two

8 after we filed our complaint in this matter where we

9 attempted to intervene in the administrative action

10 that Judge Braud issued. That has never been docketed.

11 What we were told by the court clerk is that there was

12 no pending case or parties, and so they couldn't docket

13 our motion.

14 THE COURT: I got that. I -- when he referenced the

15 petition to intervene, I thought there was something

16 new.

17 MR. QUINN: It seemed like Mr. Stengel was asking

18 you to grant it. I don't think it's before you.

19 THE COURT: Yeah. I'm not planning on ruling on

20 that. Thank you.

21 MR. QUINN: I want to start briefly with the PBC's

22 argument. And your Honor, I will try to be brief

23 today, since you already heard this argument from me

24 once.
 22

1 THE COURT: That's okay.

2 MR. QUINN: This is their motion. It's two pages

3 long. It doesn't incorporate anything that they filed

4 earlier in the case. And the reason we pointed out the

5 law to your Honor in our opposition papers is to

6 prevent sandbagging, which is exactly what Mr. Stengel

7 did. None of the argument that he presented here today

8 appears in his motion.

9 But I will address -- and most of the argument

10 doesn't relate to a motion to dismiss at all. It seems

11 extraneous. It seemed factual. It wasn't really

12 geared towards any of our points.

13 But I do want to touch on a few things that he

14 said. The first is his view that this case rises and

15 falls on the Preservation Act. We disagree with that.

16 As we explain in our motion, we think that all six

17 counts provide independent bases for relief. But there

18 are three broad categories of relief we're seeking.

19 The first is under the Preservation Act, the second is

20 under the PBC Act, and the third is under the terms of

21 the bondholder claims.

22 He also discussed Mr. Shaw. Mr. Shaw is not

23 the only bondholder in this case. Landmarks Illinois

24 is also a bondholder. And both the PBC Act and the

 23

1 bonds provide extraordinary remedies for bondholders to

2 seek equitable relief.

3 Their claim doesn't ripen in 2045 when those

4 bonds come due, when the PBC defaults on them. Both

5 the PBC Act and the terms of the bond say they can sue

6 for any breach of the covenant of the bonds, as we've

7 explained in our motion. And that's what they're suing

8 for here.

9 The scope of the project is outside what is

10 described in the bonds. It's not consistent with the

11 project described in the bonds. And it's not

12 consistent with the terms of the bonds and the PBC Act

13 that say any excess proceeds from the previous project

14 have to be placed in a sinking fund, the purpose of

15 which is solely to be used to pay back bondholders.

16 The next point I wanted to address that the PBC

17 made was the proposal that your Honor dismiss this case

18 so it can go up the ladder. That's not how civil

19 litigation works, your Honor. We strongly urge you not

20 to do so. We have not filed a motion that would allow

21 you to rule or judge the case yet.

22 And lastly, I want to address the bond opinion

23 that they received from Chapman and Cutler, which,

24 again, is not in their two-page motion. That's a paid

 24

1 opinion letter from the same counsel that gave them the

2 bond opinion to pursue the annex project in the first

3 place. It contains very little argument or reasoning,

4 which in any case, is not before the Court.

5 Now I just want to turn briefly to the

6 arguments the county made. And I'll try to be brief

7 again. The first is with regard to Chief Judge Braud's

8 administrative order. Your Honor knows from our papers

9 and my past argument that we don't think that order

10 should be accorded any weight.

11 But I want to address one point in there, where

12 it didn't appear in the defendant's first briefs, but

13 it does appear in Judge Braud's order and I believe

14 they've incorporated it into their reply brief. Which

15 is that Judge Braud, they argue, has the power to order

16 the destruction of the courthouse pursuant to his

17 inherent authority of determining the appropriate

18 places and times of holding court.

19 Now, I don't know what that means, but the

20 courthouse isn't a courthouse anymore. The annex is

21 the courthouse. The courthouse is now a building

22 that's owned by the county, just like any other county

23 building or any other building around there. And so if

24 you think about what that means, can the judge say,
 25

1 "Okay. The church across the street, I have

2 determined, pursuant to my inherent authority, that the

3 church across the street is the appropriate place to

4 hold court. And now that I've made that determination,

5 that building should be knocked down, which I have the

6 authority to do, and then we'll go back to holding

7 court in the annex"? It's just, it makes no sense.

8 The county also argued that the PBC Act,

9 specifically section 14(a)(2), allows it to expand the

10 area of a site and then demolish what was in that

11 expansion. Well, again, the county didn't make that

12 argument in their motion to dismiss. The PBC made that

13 argument in connection with Count 3. The county never

14 discussed section 14(a)(2) and the ability to expand an

15 area.

16 The argument they made in their motion to

17 dismiss was that section 14(a)(2) and the site approval

18 requirements in section 14(a)(2) don't apply to sites

19 for county use. I don't know if they've abandoned that

20 argument. We obviously don't think it's right since

21 you only get there by cutting off the second half of a

22 sentence in the statute.

23 But as your Honor knows, we don't think that

24 the PBC, let alone the county, has the authority to

 26

1 expand the area pursuant to section 14(a)(2). Now, the

2 reason is -- well, multiple reasons.

3 First, it's a completely new project.

4 Second, it's obviously a new site. I

5 understand from at least the documents that are

6 publicly available in this case that the county has had

7 to sell the PBC the courthouse site in order to proceed

8 with the demolition. That's just instant evidence that

9 it's a new site. It's not part of the old site.

10 And third, the ability of the PBC -- again, not

11 the county; the PBC -- to enlarge an area only exists

12 when the site did not need to be approved by a

13 referendum. Well, we know that they never got

14 referendum approval for the annex site. But they had

15 to because they didn't get three-fourths of the Rock

16 Island City Council. That's the only way they could

17 have selected the site. They either needed to get

18 three-fourths of the city council or, failing that, a

19 referendum. They skipped both of those.

20 And so now what they're doing is saying, "Well,

21 we violated the law three years ago, so now we can act

22 as though we never had to comply with that law and

23 enlarge the site without -- as if it never required a

24 referendum in the first place." Well, your Honor, one

 27

1 statutory violation doesn't beget another one.

2 And lastly, I just have one point to make on

3 standing, your Honor. Your Honor knows that under the

4 Supreme Court case law that we've cited that we believe

5 the National Trust has standing to pursue this case.

6 There's also a binding Illinois appellate court

7 authority that says when the building's a public

8 building and being destroyed in a manner alleged to be

9 contrary to the law, that private plaintiffs like

10 Landmarks and Mr. Shaw and the other nonprofit groups,

11 also have standing.

12 Now, the county raised an argument about

13 taxpayer standing, which we're not relying on here, but

14 does bear mention because the case they've cited

15 applies only to instances where it's a disbursement of

16 county funds. Well, there are three counts in this

17 case precisely because this doesn't involve a

18 disbursement of county funds. It's PBC funds. It's

19 1.6 million dollars of PBC funds that by law and by

20 contract have to be deposited in a sinking fund.

21 If the county wanted to use their own money,

22 and presumably raise taxes to do so and again have to

23 go to the taxpayers for approval one way or the other,

24 that's not an issue in front of the Court.

 28

1 And so unless the Court has any other

2 questions, that's all I have.

3 THE COURT: Okay. Thank you.

4 MR. RECTOR: May I reply, your Honor?

5 THE COURT: Briefly.

6 MR. RECTOR: Plaintiffs just make this continual

7 conclusion that's empty. I mean, it is empty to just

8 say that the scope of the project is being expanded

9 because that is contradicted by a legislative finding.

10 They continually just make this assertion that a court

11 order -- the administrative order of the chief judge

12 which, consistent with the Supreme Court's decision in

13 Knuepfer, has administrative authority over the

14 courthouse, they continue to say that that should just

15 be given no weight. But that's -- from my client's

16 perspective, that's an order that it's faced with

17 dealing with.

18 This argument that the courthouse is not a

19 courthouse because it's not being used for court

20 facilities at this time is another conclusion that just

21 doesn't square with the reality that the sheriff is

22 charged with protecting it. And the argument that the

23 annex site was in violation of the law is another

24 collateral attack on this final judgment of Henry

 29

1 County.

2 These are judgments that the county board

3 rightfully respects. And the county board would ask

4 that these arguments be rejected and that the claims

5 against it be dismissed.

6 THE COURT: All right. Thank you.

7 Briefly.

8 MR. STENGEL: Your Honor, if a plaintiffs' argument

9 rises or falls on whether the county has deeded the

10 courthouse to the PBC, let that be their case, because

11 it has not been. This is still a certified courthouse.

12 THE COURT: Okay. Thank you.

13 Having considered the motions filed as well as

14 the arguments, recognizing that today is a motion to

15 dismiss and applying the standard that follows with

16 that, I want to emphasize once again my ruling today is

17 not whether the decision to demolish the old courthouse

18 is right or wrong. My ruling is simply whether

19 plaintiffs have established valid claims under the law.

20 For the following reasons I find they have not.

21 On the issue of standing, I agree with the

22 plaintiffs. I agree with the cases that they've cited,

23 that they would have standing to charge this.

24 When going through each of these counts, first

 30

1 on Count 1, the violation of the State Agency Historic

2 Resources Preservation Act, I find that based on the

3 plain language of the statute or the act, the local

4 government is specifically exempt. When

5 defining "agency" under the act, it specifically

6 exempts, quote, "units of local governments and their

7 officers."

8 The defendants cited the County of Macon case.

9 Although it's not squarely on point, I do find it

10 helpful. In that case it was determined that the

11 health department didn't have to follow the rules and

12 regulations of the Administrative Procedure Act because

13 they were an exempt. They were a local government

14 exempt, a unit of local government. If they're exempt

15 for that purpose, how are they not exempt for purposes

16 under the Historic Preservation Act when the definition

17 of "agency" is exactly the same?

18 The plaintiffs' attempt to bootstrap their

19 argument that, well, the application for permit to IEPA

20 then triggers the state agency and, therefore, triggers

21 the Historic Resources Preservation Act. I agree with

22 the arguments that the defendants raise on this issue.

23 I don't think that simply getting a permit for water

24 drainage issues or water runoff does trigger the act.

 31

1 I don't think it's an undertaking as defined in

2 the act. There's no stamp of approval for the

3 demolition of the courthouse. The stamp of approval or

4 disapproval is simply how they decide to run the water

5 when it's ultimately taken down. But their approval is

6 not, "Yes, take down the courthouse," or "No, you can't

7 take down the courthouse." So I don't think it does

8 fit the definition of "undertaking" in the act.

9 I agree also with the point the defendants

10 raise on that argument that if I found that simply

11 applying for that type of permit would trigger the act,

12 then it would make the definition -- make parts of the

13 statute meaningless. Every individual who had to get a

14 permit to remove their shed from their back yard or get

15 a permit to take something down that happened to be in

16 the way, or the county was building a road and needed

17 to take something down, every time that they had to get

18 a particular permit for some effect that occurred

19 afterwards, it would overtake the statute. It would

20 just overtake the statute. So I don't find that that

21 would apply here.

22 With regards to Count 2, the violation of the

23 Public Building Commission Act, specifically the Public

24 Building Commission Act states that, quote, "to

 32

1 demolish, repair, alter, or improve any building or

2 buildings within the area." This is paragraph C I'm

3 looking at. It doesn't say "within the site." I think

4 there's a critical distinction in the act, and I have

5 to go with the plain language.

6 That's what I have to start first with is the

7 plain language of the statute. And the plain language

8 talks about site approval in paragraph a. And the

9 point that the plaintiffs argue is that requires

10 three-quarters approval vote under (a)(2). I agree.

11 But that's with determining the site. What the issue

12 is here is not determining what site applies.

13 The issue here is the demolition of the

14 courthouse. And demolition comes under paragraph c.

15 Paragraph c gives the Public Building Commission Act

16 the ability to, quote, "demolish, repair, alter or

17 improve any building or buildings within the area." It

18 doesn't say "within the site."

19 With regards to Count 3, whether the demolition

20 of the courthouse would be an improper expansion of the

21 Public Building Commission's purpose, I think this

22 issue was already decided. This issue was decided in

23 2015 when it was determined that the annex was under

24 the umbrella of the PBC's purpose. As stated, that

 33

1 opinion was an appeal and it stands. I'm bound by it.

2 When it was determined that the annex was part

3 of the PBC, then this decision was already made. In

4 that opinion, it was stated that the annex, quote,

5 "does not expand upon the purpose, but on the contrary,

6 enhances it and is, therefore, a proper exercise of the

7 authority under which the commission was formed."

8 Common sense tells you if it is the purpose of

9 the commission to building the new courthouse, how is

10 it not the same purpose to tear the old one down? To

11 determine otherwise I think would require counties to

12 create multiple commission boards. They would have to

13 create a board to erect every building they wanted to,

14 and then they would have to create a subsequent board

15 to tear down the building that it replaced.

16 Certainly, that's not what the legislature had

17 in mind. So I do think that it is within their

18 purpose, based upon that prior ruling in 2015 which

19 determined that the annex was a part of PBC's purpose.

20 With regards to Counts 4, 5, and 6, I recognize

21 plaintiffs' arguments are that, "Well, we still have

22 issues with regards to the bond, regardless of the

23 rulings on the first three." So I'm granting the

24 motion to dismiss on Counts 4, 5, and 6, but I am

 34

1 allowing plaintiffs the ability to replead if they

2 choose.

3 I do think as argued here -- and I wrote down

4 what plaintiffs' counsel was arguing -- that the scope

5 of the bond, what is consistent with the bond for

6 purposes of the act, that's what's been pled. And I

7 think those would be dismissed based on my rulings on

8 Count 3. My ruling on Count 3 is that it is not an

9 improper expansion of PBC's purpose, and therefore,

10 bonds as pled would be appropriate for that.

11 I don't know, maybe there are other issues with

12 each particular plaintiff and contractual issues.

13 That's why I'm giving plaintiffs the ability to replead

14 on the bond counts only, but not anything that would be

15 an argument as to the purpose of PBC, because my ruling

16 today does determine that it would be under the

17 umbrella of the PBC.

18 But if there's some other contractual argument

19 or contractual issue that can be pled, I don't know. I

20 don't know all the facts. But if there's something

21 about a particular plaintiff, you know, wasn't given

22 this or wasn't told that or the paperwork said X

23 instead of A, B, C, then they have the chance to

24 replead that, if they choose. But again, it cannot be

 35

1 on the issues that I've found here today.

2 So for all those reasons, I am granting the

3 motions to dismiss on behalf of the county board and

4 the Public Building Commission. Counts 1, 2, and 3

5 would be with prejudice, because those are all matters

6 of law and not issues of fact. So I will also -- I

7 will terminate the TRO which had previously been in

8 place, and that will expire as of today.

9 I do agree with the defendants' arguments that

10 if Counts 4, 5, and 6 are repled, those are simply --

11 those are contractual counts and that would be pled in

12 a regular civil court. They're not a court of equity,

13 so expiring the TRO does not have an impact on

14 repleading those counts because any repleading of those

15 counts, it would be a financial question at that point.

16 Okay. Anything else anybody needs to address

17 on the record?

18 Based on my ruling then, we'll be vacating the

19 hearing on the -- I've got to remember what date it was

20 set for now.

21 MR. QUINN: April 8, your Honor.

22 THE COURT: April 8. Thank you. Yeah, there's no

23 need for that because, as I said, even if those counts

24 are repled, it would not be a TRO issue in any event.

 36

1 Anything else that anybody needs to address on

2 the record on behalf of the plaintiffs?

3 MR. QUINN: Yeah, your Honor. We'd ask you to

4 reconsider your order vacating the TRO and leave it in

5 place for seven days so we can decide whether to take

6 an appeal.

7 THE COURT: Defense want to be heard on that?

8 MR. RECTOR: May I speak to that, your Honor?

9 THE COURT: Yeah. That's what I was asking.

10 MR. RECTOR: The county board objects to that. You

11 know, the timing issues I think were laid out for you

12 at the -- I forgot the date of it, but the hearing on

13 the temporary restraining order. There is, you know, a

14 severe time crunch that mandates that this go forward.

15 THE COURT: Is there an objection from PBC?

16 MR. STENGEL: No. We share in that. It's

17 financially crucial. And the only point that I want to

18 make is that the surety bond stays in place and that we

19 have suffered damages because of the delay of the

20 demolition. We would like the right to pursue that at

21 a separate time.

22 THE COURT: All right. Well, that's not really the

23 issue he's asking.

24 MR. STENGEL: No, it's not.

 37

1 THE COURT: Yeah.

2 MR. RECTOR: May I add one point, your Honor?

3 THE COURT: Yes.

4 MR. RECTOR: If they don't have a claim, which was

5 decided today, there's really no basis for continuing

6 injunction against the county board or the PBC. So to

7 leave that in place for seven days without a basis we

8 contend would be improper.

9 THE COURT: Okay. All right. Having heard the, I

10 guess the oral motion for that, I am going to deny

11 that. I do agree that as I've ruled today, there is

12 nothing in front of me, and so it would be improper to

13 allow that. I understand the plaintiffs' perspective.

14 If they're going to ultimately appeal, they want to do

15 that -- in other words, they don't want to have it

16 demolished --

17 MR. QUINN: Yeah. It's effectively --

18 THE COURT: -- before they can make the appeal.

19 MR. QUINN: -- unappealable, your Honor.

20 THE COURT: I got it. I got it. And I understand

21 that, but I think all of that can be accomplished.

22 It's not like it's going to be torn down tomorrow.

23 MR. QUINN: No, no. They have a crane there.

24 THE COURT: Okay. Well, I just can't by law -- I

 38

1 have to follow the law. And if there's nothing in

2 front of me, I can't just grant something without a

3 case pending. And I've granted the motion to dismiss.

4 MR. QUINN: Understood.

5 THE COURT: All right. Anything else anybody needs

6 to address on the record?

7 MR. QUINN: No.

8 THE COURT: Okay.

9 (End of proceedings.)

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IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT

PEORIA COUNTY, ILLINOIS

CERTIFICATE OF REPORTER

I, Jamie L. Bickett, an Official Court Reporter

for the Circuit Court of Peoria County, Tenth Judicial

Circuit of Illinois, transcribed the electronic

recording of the proceeding in the above-entitled cause

to the best of my ability and based on the quality of

the recording, and I hereby certify the foregoing to be

a true and accurate transcript of said electronic

recording.

Official Court Reporter

Dated this 21st day

of March, 2019.