April 21, 2008
Judge to rule on Nelson appeal
During a hearing on February 21, 2008 Circuit Judge Kenneth Popejoy dealt a serious blow to the team of lawyers employed by the Village of Hinsdale in connection with its effort to remove Thomas R. Nelson as Chairman of the Hinsdale Zoning Board of Appeals (ZBA). On December 19, 2007, Nelson filed a two-count complaint in the Circuit Court of DuPage County, Illinois seeking review of the Village Board’s December 13th vote (4-2) to remove him from his position as Chairman of the ZBA. Nelson seeks a determination that no cause existed for his removal, issuance of an injunction prohibiting his removal and an award of attorneys’ fees. Both sides filed motions for summary judgment on Nelson’s petition, which were considered by Judge Popejoy in a hearing held on February 21, 2008. Three lawyers representing the Village were present in Court for the hearing. Judge Popejoy prepared a comprehensive and lengthy written opinion and noted that he had reviewed the entire court file (more than 1,400 pages of exhibits have been filed), the cases cited by counsel and conducted further legal research in reaching his conclusions.
Legally insufficient Findings of Fact
As a preliminary matter, Judge Popejoy agreed with Nelson that his positions as chairman and member of the ZBA are constitutionally protected property interests. Judge Popejoy also agreed with Nelson that a writ of certiorari to the Circuit Court of Dupage County is the proper mechanism for review of the Village Board’s decision. However, the Judge was unable to review the Board’s decision because the Findings of Fact adopted 4-2 by the Board were legally insufficient. Citing from applicable case law, Judge Popejoy instructed that Findings of Fact must be concise, explicit and based on the evidence admitted at the underlying hearing. Findings of Fact must be written in such a way that the judge can discern what evidence the board adopted and what it may have rejected and what it was that may or may not have been contrary to the manifest weight of the evidence. The Findings of Fact submitted by the Hinsdale Village Board did not come close to meeting that standard.
ZBA drawn into the case
Nelson’s appeal stems from an unprecedented action led by Village President Michael Woerner to remove Nelson from his post as chairman of the ZBA. Supported by 4 trustees, Woerner conducted a public hearing on October 30th to determine whether cause existed to remove Nelson. Over 250 citizens attended the public hearing, clearly demonstrating that overwhelming public opinion was against the Board’s action. At the close of the 7-hour hearing, the Board chose not to vote on the charges against Nelson but instead the Village President announced that if the ZBA agreed to 5 items, the Board may never vote on the charges. The clear implication of the Board’s action was that if the entire ZBA acquiesced to the Village President’s demands, Nelson would retain his chairmanship. Note: The ultimatum was directed to the entire ZBA, not just to Nelson. The other members of the ZBA were not on trial nor accused of any wrongdoing. In the weeks following the public hearing, outraged residents decried the ultimatum that had been forced upon the members of the ZBA and demanded that the Village Board vote on the charges they brought against Nelson. The Board took no action.
At its first meeting following the public hearing (December 5th), the ZBA voted unanimously to remove an item placed on its agenda by the Village. The item was “Consideration of Village Board proposed Resolution by Hinsdale ZBA” and was essentially a redraft of the 5 conditions (ultimatum) put forth to the ZBA in the Village President’s announcement at the conclusion of the public hearing on October 30-31. A motion to “consider the resolution as drafted or as the ZBA might amend” did not pass.
Cauley: "Charges against Tom Nelson are ridiculous."
When the ZBA refused to consider the ultimatum, Woerner called a Special Meeting for December 13th to consider the removal of the ZBA chairman. During discussion on a motion to remove Mr. Nelson for cause, Trustee Smith reviewed each of the charges and the evidence and found no cause to remove Mr. Nelson from office. Smith thanked Nelson for the tremendous service he brought to the village, drawing applause from the residents in attendance. Trustee Cauley stated “the charges against Tom Nelson are ridiculous. If the majority of this board decides to remove Tom Nelson based on these silly charges, there will be no winner.” Trustees Schultz, Orler and Williams read from prepared statements and elaborated on their individual reasons for voting to remove Nelson from office. The statements included references to newspaper articles, transcripts of unrelated meetings and alleged personal conversations that were never mentioned at the public hearing or introduced into evidence. Trustee Cauley (an attorney) objected to trustees bringing up matters that were not evidence adduced at the public hearing and warned that hearsay statements could pose a serious problem if Nelson appealed. Ultimately, the Board voted 4-2 to remove Nelson for cause. Six days later, Nelson filed his petition seeking review of the Board’s decision.
Cauley: There are no facts in here
On the morning of January 8th, Nelson sought an emergency restraining order to prohibit the Board from naming a replacement until the merits of his case could be decided. Judge Popejoy declined to grant emergency relief but assured the parties that he would hear the appeal on an expedited basis. That same evening, President Woerner presided over a Special Meeting to request that the Board adopt Findings of Fact to be presented to the court in connection with Nelson’s appeal. The Findings of Fact were drafted by 3 of the Village’s attorneys: Rob Bush, Steve Ruffalo and Paul Rettberg. Nelson’s counsel was not consulted on the draft. Trustees Smith and Cauley objected to the form and substance of the proposed Findings of Fact. Smith opined that the Findings of Fact were an effort to make it appear that what transpired at the December 13th Special Meeting never happened because the transcript from that meeting was excluded from the Findings of Fact. Yet all other transcripts and documents related to the case were included. Cauley stated “A finding of fact is a finding of fact. There are no facts in here.” And “So this means nothing. It just says that we rely on anything in the record that we think we should have relied on. There’s not one statement of fact in here. As with so many things I see done by the village legal staff of the village board, it’s almost like a legal twilight zone.” On February 21st, Judge Popejoy reached exactly the same conclusion, stating “the Findings of Fact do not contain Findings of Fact of specificity required by this court to do an effective review of same.”
Popejoy: Insufficient findings of fact
Significantly, Judge Popejoy noted that “the problem caused by the insufficient written Findings of Fact is made worse by the record of the December 13, 2007 meeting at which the board of trustees voted to discharge Mr. Nelson” and that “some of the members based their decisions at least partly on matters not in evidence.” Judge Popejoy noted that Trustee Cauley had cautioned the other trustees against considering matters that were not in evidence when reaching their decision. The judge quoted from the transcript of the December 13th meeting and this statement made by Trustee Orler as an example of the improper consideration of matters outside the evidence: “I did want to provide in my mind and in my heart what the justification was for this decision, and I don’t take it lightly, and I have thought about it a lot. So, regardless of legally whether this is in the record or not, I wanted to share why I made my decision.” Judge Popejoy concluded that, “Trustee Orler essentially said that he did not limit his consideration to the evidence in the record.”
Village sent back to the drawing board
Judge Popejoy summarized his position by stating, “This leaves the court with written Findings of Fact that contain in my opinion no actual Findings of Fact of a specific nature sufficient for this court to review and the transcript of the trustees meeting where it’s clear that at least one trustee did not limit his consideration to the record.” He remanded the matter to the Board of Trustees to “reconsider and amend their decision to, if they deem appropriate, make specific Findings of Fact that are contained within the record and supported by the record” and set the case for status on March 13th. Despite the judge’s apparent rebuke, Woerner put on his game face and was quoted as saying “I was pleased that we get a do-over. That’s good news.” Privately however, the ruling must have caused concern among Village officials because they took defensive action on three fronts immediately after the ruling. First, the name of the newly appointed ZBA Chairman was removed from the Village website. Next, the ZBA meetings scheduled for February 27th and March 19th were cancelled without explanation. Finally, a Special Meeting of the Board of Trustees was called for March 6th with a singular agenda item: Approval of Findings of Fact in Support of Nelson’s Removal as Chairman of the Zoning Board of Appeals. Note: The Findings of Fact were not titled “Revised Findings of Fact”. On March 6th, over the continuing objections of Cauley and Smith, the revised Findings of Fact were approved 4-2. In court on March 12th, the “do-over” was submitted to the judge and a briefing schedule was set. At the ZBA meeting held on April 16, 2008, 3 members of that Board stated that they will not vote on any matter before it until the Nelson case is resolved.
Judge Popejoy will issue his ruling on Wednesday, April 23rd at 9:30 AM.