Madison - St. Clair Record

Sunday, August 18, 2019

More litigation for Madison County: VA official sues in federal court same day Fifth District rules against Dunstan, Parente

By Record News | Aug 9, 2016

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 building.  


On the same date, Lavite sued Dunstan and Parente in U.S. district court for access to his office and for compensatory and punitive damages.



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 last September.


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 commission.


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 dismiss.”


Cates wrote that defendants attached an affidavit from Parente, “which said nothing about the need to act to protect the public safety.”


“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 wrote.


On remand, Stobbs must consider Lavite’s motion for an order requiring the county to pay his lawyer, Tom Burkart of Hamel, from the commission’s account.


Dunstan and Parente argued that the commission failed to follow the purchasing ordinance, but Cates pointed out again that their rules don’t apply.


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 personnel policy.


He wrote that Gibbons advised Dunstan and Parente that banning Lavite was legally permissible and wouldn’t violate his constitutional rights.


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.

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