ALTON – Taxpayers of this casino city have bet $47,500 that Fifth District appellate judges will overturn an order to issue a building permit for 40 apartments.
A $500 daily fine that Madison County Circuit Judge David Dugan attached to the order stood for 95 days before Fifth District judges stayed enforcement.
The fine will disappear if Fifth District judges void the order as Alton urges.
Attorney Bryan Schrempf for the city argued in his appeal brief that, “A party cannot be held in contempt for violating a void court order.”
Former Edwardsville school superintendent Ed Hightower planned to develop the Sunnybrook apartments with subsidies through tax credits. Sunnybrook claims the plan advanced with support from Alton Mayor Brant Walker, but he reversed his position and blocked the plan.
Last November, Sunnybrook sued for an order of mandamus requiring the city to issue the permit.
Dugan granted it on June 5, and nothing happened.
Attorney Andy Carruthers for Sunnybrook moved for an order to show cause on June 18, and Dugan set a hearing on June 27.
On June 26, Schrempf moved for reconsideration of the June 5 order.
Dugan opened the June 27 hearing by saying the reconsideration motion might have been e-filed but he didn’t have access to it yet.
Carruthers told Dugan, “The fact that they have ignored the court’s orders does not come as a surprise to me, but it certainly cannot be excused.”
He asked for a $750 daily fine retroactive to June 8, saying the city could fine Sunnybrook $750 a day for not following directives.
“What’s good for the goose is good for the gander,” Carruthers said.
Dugan asked Schrempf why the city didn’t comply.
Schrempf said he intended to file the reconsideration motion much sooner.
Dugan said, “We’re not going to go to the motion of reconsideration,” and he repeated his question.
Schrempf said, “We wanted to get this motion before the court and present the argument, or the appellate court and present the argument, that we believe the order is void and erroneous.”
Dugan said, “Bryan, I’ve known you a long time and this is very troubling to me. If this was a very private case that no one cared about, I guess maybe I can understand. Maybe, maybe not. But this is a very public case.
“When there’s ignoring of the court’s order and I don’t do something about it, that undermines the credibility of the court generally and me specifically.”
Schrempf said, “I think when the court has the opportunity to consider the merits of this motion, for the same reasons that we think the court lacked jurisdiction, it would also be a defense to a contempt order.”
Dugan said, “My sense and my feeling, having been rather intimate with this case over the last six months, in the six or seven hearings that we’ve had, is, delay is the purpose.
“This is a common theme, common thread, that’s run through these document dumps that I have. Now an 80 page document with exhibits is dumped on me the night before this hearing.”
Dugan ordered the city to issue a permit in exactly 24 hours.
He said, “From that time forward, five hundred dollars a day for failure to comply,” and he reserved issues of retroactive fines, penalties, and sanctions.
“You want to appeal that, Route 64 all the way to Mount Vernon,” Dugan said. “Five hundred a day so every day that clicks away, taxpayers of the city of Alton are having to pay for this non compliance.”
Alton appealed on July 26.
Dugan denied reconsideration on Aug. 1.
Alton moved to stay enforcement proceedings in Dugan’s court pending the appeal on Aug. 6, and Dugan denied it on Aug. 12.
Alton petitioned the Fifth District to stay Dugan’s proceedings, and the Fifth District granted it on Sept. 30.
Schrempf filed Alton’s appeal brief on Oct. 29, writing that mandamus is not an appropriate means for seeking judicial review of an administrative proceeding.
He wrote that the purpose of a mandamus proceeding is to enforce rights already lawfully vested.
He argued that by city code, Sunnybrook must proceed to an administrative appeal board before going to court.
He wrote that Dugan reversed numerous factual findings made by zoning administrator Deanna Barnes.
He wrote that Dugan erred in finding the plans complied with city code.
When Sunnybrook sued the city for a permit in circuit court, it also filed a racial discrimination suit in U.S. district court.
Chief District Judge Nancy Rosenstengel ruled earlier this month that the suit in her court doesn’t duplicate the one in Dugan’s court.