MOUNT VERNON – Fifth District appellate judges hammered Madison
County board chairman Alan Dunstan and county administrator Joseph Parente on
Aug. 5, for banning veteran assistance superintendent Brad Lavite from their
On the same date, Lavite sued Dunstan and Parente in U.S.
district court for access to his office and for compensatory and punitive
His federal complaint alleges that retaliation began when he
protested against judges and others flying to California with money he had
raised for veterans.
His victory at the Fifth District overturned Madison County associate
judge Stephen Stobbs, who dismissed Lavite’s complaint for access to his office
Parente issued a standing order against Lavite in March 2015,
after he lost control in a police car in an episode he attributes to stress
syndrome from combat in Iraq.
Lavite continues working from other locations.
The Fifth District found Dunstan and Parente improperly
imposed county rules on Lavite, who works for a separate veterans’ assistance
Their opinion smacked Stobbs about as hard as it did Dunstan
and Parente, though it blamed the judge’s confusion partly on the defendants.
Justice Judy Cates wrote that she would be remiss if she did
not point out the defense’s manifest disregard of procedures for combining
motions to dismiss.
She wrote that under Code section 2-619.1, a combined motion
“must be separated into parts, and each part must be limited to and specify the
specific section upon which the litigant is seeking relief.”
“The failure to divide the motion into specific parts and to
outline the specific grounds supporting each part is an undisciplined motion
practice that violates the explicit requirements of section 2-619.1 and makes
the task of considering the merits of the motion more arduous for both trial
courts and courts of review,” she wrote.
“Counsel who fail to comply with the procedural rules
regarding combined motions do so at their own peril.”
She wrote that Stobbs dismissed the complaint without
addressing any particular section of the Code.
“As a result of this ruling, our task has been greatly
complicated by the circuit court’s failure to articulate the specific sections
relied upon in its dismissal of the plaintiff’s complaint,” Cates wrote.
“Notions of fundamental fairness are better served by
following the law and our applicable rules.
“There is no doubt that the lack of clarity in the trial
court’s ruling resulted because of the defendants’ failure to follow the
procedural requirements of section 2-619.1.”
She wrote that at oral argument, there was a great deal of
discussion regarding Parente’s reason for denying Lavite access.
“The defendants excused Parente’s conduct based upon his obligation
to protect the public,” Cates wrote.
“The plaintiff’s complaint, however, said nothing about
potential harm to the public. In fact, the pleading is devoid of any mention
that Parente’s actions were taken for the ‘security of county facilities,’ as indicated
by the court’s order.
“The trial court obviously considered facts outside of the
plaintiff’s pleading, which was improper under a section 2-615 motion to
Cates wrote that defendants attached an affidavit from
Parente, “which said nothing about the need to act to protect the public
“Not a scintilla of credible evidence was proffered before
the trial court in the form required by the Code,” she wrote.
She wrote that Stobbs committed another error by finding
Lavite failed to name his own commission as a necessary party.
“Lavite was the authorized spokesperson for the Madison VAC,
and there was no other individual authorized to speak on his behalf,” she
On remand, Stobbs must consider Lavite’s motion for an order
requiring the county to pay his lawyer, Tom Burkart of Hamel, from the
Dunstan and Parente argued that the commission failed to
follow the purchasing ordinance, but Cates pointed out again that their rules
Justices Melissa Chapman and Bruce Stewart concurred.
John Gilbert and Timothy Sansone, of Sandberg Phoenix in St.
Louis, represented Dunstan and Parente.
Lavite’s federal suit against Dunstan and Parente also names
state’s attorney Tom Gibbons and Sheriff John Lakin as defendants.
Burkart wrote that Lakin failed in his duty to have rules in
place for investigations he might be called upon to perform pursuant to county
He wrote that Gibbons advised Dunstan and Parente that
banning Lavite was legally permissible and wouldn’t violate his constitutional
Illinois law authorizes creation of a veteran service
commission in any county with two or more posts of veteran organizations.
The law vests all authority in the commission, but requires
the county to provide an office in its main building.