In a reply supporting their motion to dismiss an amended $1 million funding dispute, Madison County officials argue that the Veterans’ Assistance Commission of Madison County and Superintendent Bradley Lavite repeat previously dismissed claims.
Defendants Debra Ming-Mendoza, Mark von Nida and Madison County filed a reply in support of their motion to dismiss the first amended complaint on April 13 through attorney Philip Lading of Sandberg Phoenix & von Gontard in Edwardsville. Ming-Mendoza is the Madison County Clerk. Von Nida served as the county clerk from Dec. 1, 2007 to Nov. 30, 2012 and is the current Madison County Circuit Clerk.
“Plaintiff’s First Amended Petition consists of repetitive assertions failing short of allegations of fact supporting essential elements for each count asserted in their amended pleading,” the reply states.
The defendants argue that Lavite and the VAC fail to state viable causes of action against them relating to annual funding by way of the county’s tax levy.
“Despite given the opportunity to correct the numerous deficiencies in their original complaint, plaintiffs’ amended pleading only serves to emphasize the impracticable and invalid theories of relief invoked to recover so-called funding shortages for the VAC from 2008 through 2016,” the reply states.
“Plaintiffs transformed their original, single count breach of contract claim into nine separate counts of breach of contract and five separate ‘breach of statutory duty’ claims, each of which is faultily premised on a supposed ‘breach’ of statutory responsibilities under the Property Tax Code,” it continues.
The defendants also argue that the plaintiffs’ claims are barred by the five-year statute of limitations because they do not arise from a written contract.
“Essentially, plaintiffs are attempting to force inapplicable law to obtain relief unrecognized by Illinois law to avoid their failure in pursuing a timely mandamus action,” the reply states. “And plaintiffs’ novel, but flawed, theories of relief cannot confer standing where none exists.”
Lavite and the VAC filed the 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 their amended complaint, the plaintiffs 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.
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.”
Madison County Circuit Court case number 18-L-1731