Madison - St. Clair Record

Wednesday, April 8, 2020

Dugan grants dismissal in VAC's $1M funding dispute, allows time to file amended complaint


By Heather Isringhausen Gvillo | Feb 20, 2020


Madison County Circuit Judge David Dugan granted dismissal of a $1 million suit over alleged funding shortfalls filed by the Veterans’ Assistance Commission of Madison County and Superintendent Bradley Lavite.

In his Feb. 10 order, Dugan dismissed the complaint without prejudice, concluding that the plaintiffs failed to state a legally recognizable cause of action for either breach of contract or injunction. He gave the plaintiffs time to file an amended complaint.

He also denied the plaintiffs’ motion for summary judgment and reserved a decision on the defendants’ motion to dismiss on the basis of lack of standing and laches.

Defendants Madison County, County Clerk Debra Ming-Mendoza and former County Clerk Mark Von Nida sought to dismiss the lawsuit for failure to state a claim. Von Nida is currently the Madison County Circuit Clerk, but served as County Clerk from Dec. 1, 2007 until Nov. 30, 2012.

In regards to the plaintiffs’ breach of contract claim, Dugan wrote that Lavite and the VAC failed to provide supporting factual allegations that Madison County breached an agreement or that of a valid contract existed.

“Furthermore, the plaintiffs’ complaint does not identify a duty imposed by the supposedly written agreement, as opposed to a statute related to Madison County’s annual tax levy and VAC funding alluded to by plaintiffs in the complaint,” Dugan wrote.

“Of particular significance here is that the plaintiffs’ complaint is devoid of any allegations supporting resulting damages from defendants’ alleged breach of contract, which is an essential element to plaintiffs’ claim for breach of contract,” he added.

As for the plaintiffs’ claim for injunctive relief, Dugan concluded that the complaint “fails to assert factual allegations demonstrating the legal entitlement of plaintiffs to the extreme remedy of injunctive relief.”

Dugan wrote that Lavite and the VAC fail to identify “a clear and ascertainable right in need of protection or irreparable harm.”

The plaintiffs filed the two-count lawsuit on Christmas Eve 2018.

In the complaint, Lavite and the VAC allege the defendants failed to extend the county’s tax rate sufficiently to raise the money approved for the VAC in each of the fiscal years for the past decade.

The suit states that according to Illinois common law, funding for the VAC is established when the VAC makes a recommendation of an appropriate amount necessary to assist veterans, pay salaries and pay expenses. Then the County Board either approves or disapproves.

According to the complaint, the VAC has offered the Madison County Board its recommendation of the funding needed each year for the past decade, which has been approved each year “with little or no change by written agreement contained in the Board’s official minutes.”

Once the funding request was approved, the County Clerk was tasked with determining the tax rate percentage to add to the county’s tax rate in order to produce the funds approved by the County Board, the suit states. Once levied and collected, the suit states that the money must be paid into a special fund in the county treasury and used as authorized.

The maximum annual rate percent for Veterans Assistance Commissions is .03 percent of the equalized assessed value of all property within the county, according to the County Code of Illinois.

Lavite and the VAC allege the rate percent necessary to raise the approved funds for the VAC since 2008 has not exceeded the maximum .03 percent.

The plaintiffs accuse Madison County of breaching its written agreement to fund the VAC with the approved amount when Von Nida and Ming-Mendoza failed to properly determine the correct rate percent to raise the funds for the tax years of 2008 through 2016.

As a result, Lavite alleges the VAC suffered a shortfall of $1,058,882 in funding.

“Plaintiff has demanded, but defendant has refused to deposit that amount into the special fund” as required by the County Code of Illinois, the suit states.

The plaintiffs also made a claim for injunction, alleging the determination of the percentage rate necessary to fund the VAC is “a mathematical certainty using the equalized assessed value of all property in the county, and is a non-discretionary ministerial function of the County Clerk.”

“Plaintiffs’ remedies at law are inadequate in that the county’s breaches continued year after year and were of such a continuing nature that redress cannot be had at law alone,” the suit states.

Lavite and the VAC seek an order that Madison County, Ming-Mendoza and her successors in office “be enjoined from refusing to establish the percentage rate to be added to the county’s tax rate that will produce not less than the full amount of the VAC’s annual recommendation as approved by the County Board on an annual basis in the future.”

They also seek an order requiring the defendants to pay $1,058,882 into the special fund established for VAC expenditures.

Lavite and the VAC filed a motion for summary judgment through attorney Thomas Burkart of Burkart Law Office in Hamel. They argued that the county board approved the requested funds for the VAC from 2008 through 2016.

However, they argued that the county clerk failed to set the rate percent upon the equalized assessed valuation for the levy year at a rate high enough to produce funds not less than the amount approved for each fiscal year. As a result, the fund where the VAC’s tax revenue is supposed to be deposited is short $1,058,882.35.

The defendants filed an opposition and motion to dismiss through attorney Philip J. Lading of Sandberg Phoenix & von Gontard PC in Edwardsville. They argued that the plaintiffs failed to state a claim.

The defendants also argued that the VAC disagreed with the amount the county agreed to fund the VAC in each of the mentioned years.

Laviete and the VAC argued in their reply that there were no disagreements.

“In each of the years dating back to 2008, the VAC agreed with the amount the county approved and there was no need to file a mandamus action,” the reply stated. “It was the county’s failure to execute what the parties had agreed upon that was the problem.”

A case management conference was scheduled for March 25 at 9 a.m. 

Madison County Circuit Court case number 18-L-1731

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Organizations in this Story

Madison County Veterans Assistance CommissionMadison County