Madison County and several officials again seek to dismiss a $1 million funding dispute, arguing that the Veterans’ Assistance Commission of Madison County and Superintendent Bradley Lavite still fail to state a legally recognizable cause of action.
Lavite filed a 14-count amended complaint on March 2 through attorney Thomas Burkart of Burkart Law Offices in Hamel after Madison County Circuit Judge David Dugan granted the defendants’ first motion to dismiss in February.
The amended complaint was filed against Madison County, County Clerk Debra Ming-Mendoza and former County Clerk Mark von Nida. Von Nida is currently the Madison County Circuit Clerk but served as County Clerk from Dec. 1, 2007 until Nov. 30, 2012.
In their new complaint, the plaintiffs make four new claims against the defendants alleging breaches of statutory duty from 2013 through 2016.
Lavite and the VAC allege the defendants failed to extend the county’s tax rate sufficiently to raise the money approved for the VAC for tax years 2008 through 2018.
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.
Lavite and the VAC allege the defendants breached an 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 at issue, resulting in a funding shortfall of $1,058,882.
In the original complaint, the plaintiffs claimed the defendants breached a written agreement, which was not expressly contended in the amended complaint.
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.
The defendants filed a motion to dismiss the amended complaint in its entirety with prejudice on March 20 through attorney Philip Lading of Sandberg Phoenix & von Gontard in Edwardsville.
They argue that the complaint fails to allege essential elements to support a breach of contract claim, fails to state a cognizable cause of action and fails to show the plaintiffs’ entitlement to injunctive relief.
The defendants argue that the plaintiffs’ breach of agreement claims are “substantively similar” to the original complaint and fail to state a recognized cause of action.
“Despite their additional allegations and attachments, plaintiffs once again fail to state an actionable claim for breach of contract. Furthermore, counts I through V are barred by the applicable five-year statute of limitations,” the motion states.
They also argue that the plaintiffs “again fail to allege facts supporting essential elements to injunctive relief.”
Lavite and the VAC filed an opposition to the defendants’ motion to dismiss on March 27, arguing that the amended complaint pleads sufficient facts to show an enforceable agreement exists.
“That the first amended complaint sets forth facts sufficient to establish an enforceable agreement on the part of the county is borne out by reference to the law on how the VAC is funded,” the opposition states. “Illinois statutes and case precedence establish a straight forward procedure to fund the operations of the VAC.”
“In the present case plaintiffs have alleged, and in all but one year have attached, the recommendations of the VAC as to the amount to fund its operations,” it continues. “In all counts, plaintiffs have alleged and attached the county’s written approval of the VAC recommendations.”
The plaintiffs also argue that the amended complaint properly alleges damages, including precise amounts by which the VAC has been damaged by funding shortfalls.
“These paragraphs imply the obvious that the VAC would have $1,058,882.35 more in its coffers if the county clerk had determined and extended the correct rate,” the opposition states.
Lavite and the VAC argue that the complaint states viable alternative grounds for relief. They claim that while they would prefer to proceed on their breach of agreement theory because it comes with a 10-year statute of limitations, they plead alternative claims “in the event the court again finds the plaintiff breach of agreement claims insufficient.”
Further, the plaintiffs argue that the complaint sufficiently alleges all elements for injunctive relief.
“Once the VAC’s requests were approved, the VAC had a statutory right to have the county clerk determine and extend a percentage rate that would raise ‘not less than’ the amount approved by the county board,” the motion states.
Lavite and the VAC argue that their claim is not barred by laches.
“During the period between 2008 and July, 2016 when the county received the results of its annual outside audit, Madison County accumulated a surplus in excess of twenty million dollars. It currently has a million dollar insurance policy,” the opposition states. “Because the county was actually increasing its surplus during this time, there is no way it can show prejudice.”
"The only change in position the county has made is that beginning in 2017, under the new Kurt Prenzler administration, the county has extended the rate for the VAC to a percentage sufficient to raise not less than the amount approved by the county board,” it continues. “This change proves that the county would not have been harmed had the clerk extended the rate to what it should have been. This certainly is not a change in position that justifies the application of laches as the VAC is not making a claim for those years."
Madison County Circuit Court case number 18-L-1731