The Fifth District Appellate Court gave Bradley Lavite, Superintendent of the Veterans Assistance Commission of Madison County, until June 1 to file a reply brief in his appeal involving a $1 million funding dispute.
Lavite and the Veterans’ Assistance Commission (VAC) filed a notice of appeal to the Fifth District on Aug. 3 through attorney Thomas Burkart of Hamel. In a previous motion for an appealable order, Burkart wrote that the plaintiffs respectfully disagree with former Madison County Circuit Judge David Dugan’s order granting the motion to dismiss filed by defendants Debra Ming-Mendoza, Mark von Nida and Madison County. Dugan is now a federal judge in the U.S. District Court for the Southern District of Illinois.
Lavite and the VAC are asking the appellate court to find that the motion to dismiss should be denied on the basis of lack of standing and laches.
Since the appeal was filed, four motions for extension of time have been granted. Most recently, the appellate court approved an extension of time to file a reply brief on May 4.
Dugan granted the motion to dismiss without prejudice on June 12, concluding that the defendants did not breach a contract. He held that the plaintiffs were not refused necessary funds and the amended complaint does not allege actual damages.
“If otherwise unnecessary funds were not appropriated, or if VAC has available to it all of the funds it needs to fulfill the purpose of its enabling statute, then there can be no damages because plaintiffs’ position was not worsened by the decision not to overfund VAC,” he wrote.
The defendants filed a motion to dismiss the amended complaint on March 20 through attorney Philip Lading of Sandberg Phoenix & von Gontard in Edwardsville.
They argued that the complaint failed 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.
Lavite and the VAC filed the 14-count amended complaint on March 2, 2018, after Dugan granted the defendants’ first motion to dismiss in February.
In their new complaint, the plaintiffs made 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.
Ming-Mendoza is the current county clerk. Von Nida served as the county clerk from Dec. 1, 2007 to Nov. 30, 2012. He then served as circuit clerk until his retirement in November 2020.
Madison County Circuit Court case number 18-L-1731