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CIRCUIT COURT OF
IN THE CIRCUIT COURT OF COOK COUNTY COOK COUNTY, ILLINOIS
CHANCERY DIVISION
COUNTY DEPARTMENT, CHANCERY DIVISIONCLERK DOROTHY BROWN

TIMOTHY C. EVANS, as Chief Judge )

of the Circuit Court of Cook County, )
)
Plaintiff, )
v. )
) 2017-CH-15851
COUNTY OF COOK, a body politic and )
corporate, TONI PRECKWINKLE, )
President of the Cook County Board of )
Commissioners, and MARIA PAPPAS, )
Treasurer of Cook County, )
)
Defendants. )

Response of Defendants County of Cook and Toni Preckwinkle

in Opposition to Plaintiffs Emergency Motion for a
Temporary Restraining Order

Introduction

Plaintiff, the Chief Judge of the Circuit Court of Cook County (OCJ), has filed a

Motion seeking a Temporary Restraining Order (TRO) to enforce his Administrative Order

No. 2017-09 (the Order), purportedly entered under Illinois Supreme Court Rule 21. The

Order, the product of edict instead of litigation, sets funding levels and a budget for various

Circuit Court operations, draws conclusions about the impact of a failure to meet the funding

levels unilaterally set out in the Order, and directs the Cook County Board to raise those

amounts, without addressing budgetary constrictions on doing so.

A temporary restraining order is a drastic remedy which may issue only in exceptional

circumstances. American Federation v. Ryan, 332 Ill.App. 3d 965, 966 (1st Dist. 2002). A TRO

can only be granted to preserve the status quo to avoid an irreparable injury and to protect the

plaintiffs clearly ascertainable rights. Id. at 966-67. To obtain a TRO the plaintiff must show

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 lack of an adequate remedy at law and a likelihood of success on the merits. In considering the

request the court must balance the relative harms to the parties and the interests of the public

affected by the requested relief. Bridgeview Bank Group v. Meyer, 2016 IL App. (1st) 160042,

12.

Plaintiff cannot establish his entitlement to a TRO. Plaintiff cannot show a likelihood of

success on the merits. The Order manifestly exceeds the authority Supreme Court Rule 21

confers on Plaintiff and violates the constitutional doctrine of separation of powers in that it

usurps the Countys legislative function of setting funding levels for County department

operations and generating revenue to meet those needs. There is also no irreparable damage to

the status quo. Plaintiffs own pleadings show that the County has adequately provided funding
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for the reasonable and necessary expenses of the court system as required by 55 ILCS 5/5-1106,
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and if the particular allocations set out in the budget need revision a budget fund transfer is

available for adjustments. The balance of harms analysis also favors the County, because the

2018 Budget has been passed, and to provide more money to the OCJ can only be achieved by

reducing the funds available to other departments, and by judicially overriding the Countys

statutory duty to make the difficult funding decisions tight budgetary constraints create. Finally,

the public interest does not favor the TRO. The public does not want more taxing, even if it

were legally possible. Therefore, Plaintiffs Motion for a Temporary Restraining Order should

be denied.

Argument

Plaintiff Cannot Establish Entitlement to a TRO

Plaintiff does not actually possess any of the rights he claims are threatened by the

Countys approved budget. As Plaintiff notes in his Motion, a court cannot grant a temporary

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 restraining order or preliminary injunction without a plaintiff having a clearly ascertainable right

that needs to be protected. See, e.g., In re Estate of Wilson, 373 Ill. App. 3d 1066, 1075 (1st Dist.

2007).

Plaintiff claims that he has three rights that are in need of protection: 1) the right under

Supreme Court Rule 21 to implement his administrative order; 2) the right to receive sufficient

financial support, which he claims the budget deprives the Cook County court system of; and 3)

the right not to have the County unilaterally terminate non-judicial court employees.

First, Rule 21 states:

(a) Circuit Court Rules. A majority of the circuit judges in each circuit may adopt rules
governing civil and criminal cases which are consistent with these rules and the
statutes of the State, and which, so far as practicable, shall be uniform throughout the
State. All rules of court shall be filed with the Administrative Director within 10 days
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after they are adopted.

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(b) Administrative Authority. Subject to the overall authority of the Supreme Court, the
chief circuit judge shall have the authority to determine, among other things, the
hours of court, available leave time to which a judge is entitled, and to instruct the
way in which a judge on the bench is expected to behave. In the exercise of this
general administrative authority, the chief judge shall take or initiate appropriate
measures to address the persistent failure of any judge to perform his or her judicial
duties.

(c) General Orders. The chief judge of each circuit may enter general orders in the
exercise of his or her general administrative authority, including orders providing for
assignment of judges, general or specialized divisions, and times and places of
holding court.

(d) Proceedings to Compel Compliance With Certain Orders Entered by a Chief

Circuit Judge. Any proceeding to compel a person or agency other than personnel of
the circuit court to comply with an administrative order of the chief circuit judge shall
be commenced by filing a complaint and summons and shall be tried without a jury
by a judge from a circuit other than the circuit in which the complaint was filed. The
proceedings shall be held as in other civil cases.

The powers granted a chief judge by Rule 21 are far less than those argued by Plaintiff.

Rule 21 allows for the judge to assign certain judges to, for example, the chancery or law

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 division. See Blair v. Mackoff, 284 Ill.App.3d 836 (1st Dist. 1996). They permit the chief judge

to decide when courts should stay open, or whether night court should be available. Rule 21

does not allow a judge to take over the legislative functions involving funding court operations.

Rule 21 does not even give the judge the power to impose a $10 fee for the collection of a

defendants DNA following a criminal conviction, because the decision of whether to collect

such a fee lies with the legislative body. See People v. Alexander, 369 Ill. App. 3d 955, 959 (3d

Dist. 2007).

As the Order states, the OCJ was given the opportunity to present its budget to the

County. Upon receipt, the County considered the request of the OCJ and requested reductions to

the budget. (See Affidavit of Ammar Rizki, par. 8, attached hereto as Exhibit 1). Necessarily as
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part of the budget process, the County must consider its statutory obligations relative to the
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County court system. Specifically, the Counties Code provides at Section 5-1106 that it is the

duty of a county board To provide reasonable and necessary expenses for the use of the

judges. 55 ILCS 5/5-1106. The OCJs position is that the County Board must approve

whatever it determines it needs, irrespective of the amount of money available to the County.

However, the province of what is reasonable and necessary must rest with the legislative branch.

The OCJs Order presumes that there is legal authority for a chief judge to order a county

to provide funding as determined unilaterally by it. However, Rule 21 does not provide the

express authorization for such an order. The fact that courts have previously attempted to enter

somewhat similar administrative orders does not mean that they are proper. For example, in

People v. Alexander, Id., at 959, the court held that Rule 21(b) did not authorize an

administrative order setting a fee in criminal cases. Rule 21 does not allow a judge to exercise a

power so closely akin to the revenue raising power of the legislature. Id. at 959. Additionally, in

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 Peo. ex rel Bier v. Scholz, 77 Ill. 2d 12 (1979) cited favorably by the OCJ, the Supreme Court

expunged part of an administrative order when it granted the states attorneys writ of mandamus

on behalf of the Adams County Board and found that the chief judge had exceeded his authority

in entering the administrative order which set the salaries of two employees at an amount greater

than the amounts set by the county board.

Plaintiff seeks a TRO that sets the amount of the court systems budget based upon

judicial edict, while completely ignoring the statutory legislative function of the County Board.

Granting this extraordinary remedy would trample upon the guarantee of a separation of powers

found in the Illinois Constitution of 1970. The legislative, executive and judicial branches are

separate. No branch shall exercise powers properly belonging to another. Ill. Const. 1970, art.
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II, 1. In a case involving a dispute between a school district and a highway department relative
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to construction in a township right of way, the appellate court noted that the authority to

determine public policy is vested in the legislature, not the courts. Miller, 349 Ill.App.3d at 811.

Citing another case, the court explained:

Courts are ill equipped to determine what the public policy should be. Seldom are
all interested parties, all facts, and all issues present in a single case, where the
court can rationally balance all the factors necessary to establish a policy good for
society. Further, establishing public policy may entail the balancing of political
interests. This is a function of the legislature, not the courts. [citation omitted]
Miller, 349 Ill.App.3d at 812.

At its basest level, this case involves the establishment of public policy: how much money must

a county board raise and how much of it must be allocated for the reasonable and necessary

operation of the court system. The public interest requires that the three branches of government

work cooperatively and in harmony and deference should be accorded to the government branch

having initial responsibility. Knuepfer v. Fawell, 96 Ill. 2d 284 (1983). Here, it is the County

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 Board which has exercised this responsibility and approved a budget of $255,318,457 for the

OCJ. (Affidavit, par. 17).

Absent from its Motion is any acknowledgement by the OCJ as to the status quo that is in

need of protection, an essential element of the TRO claim the Court must consider in

determining whether to grant or deny the relief. The Countys Fiscal Year 2017 ended on

November 30, 2017. The County Board is required to adopt its budget by its annual

appropriations bill in the first quarter of the fiscal year. 55 ILCS 5/6-24001. The County Board

did this prior to the commencement of Fiscal Year 2018 on November 21, 2017. Therefore, the

budget that is in place for Cook County, including the OCJ, is the Fiscal Year 2018 budget. That

budget provides for the appropriation of $255,318,457 as reasonable and necessary for the
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operation of the court system. The status quo is the Fiscal Year 2018 budget. It is not an amount
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determined by judicial edict. Further, the OCJ lacks a right in need of protection as the Counties

Code allows for the amendment of the appropriations bill. 55 ILCS 5/6-24007. Rather than

arbitrarily seeking to increase the acceptable amount necessary to operate the court system to

$290,538,836 by an administrative order, the OCJ should work within the amount appropriated

by the County, $255,318,457, which is $2,871,046 more than the amount it said it needed to

operate. (see Affidavit, par., 12, 17 and 18 and October 20, 2017 letter from OCJ attached

thereto).

Moreover, the relief sought in the Motion for TRO is exactly the same relief Plaintiff

seeks in its underlying Complaintthe enforcement of the Order which seeks to require the

County Board to provide the OCJ with $290,538,836 to spend as it deems fit. The purpose of a

TRO is to give an aggrieved party interim relief during the pendency of a case, not to give a

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 party the ultimate relief it seeks in the lawsuit. The failure of the Plaintiff to seek actual interim

relief prohibits this Court from entering a TRO.

In determining whether the Order is appropriate, this Court should be mindful of Justice

Simons dissent in a case involving the issuance of an administrative order by the chief judge of

DuPage County relative to the provision of additional courtrooms. Knuepfer v. Fawell, Id, at

296. While the Supreme Court stayed the administrative order as the parties had apparently

reached a compromise during the pendency of the case, Justice Simon stated:

I feel that we as judges must be aware that the public purse is not bottomless and that
needs of many agencies of government must be accommodated out of that purse. I
believe that an administrative order compelling a county board to provide court space
should be allowed to stand only when the circumstances of the particular case clearly and
strongly warrant it and only if the board is financially able to comply with the order while
performing its other fundamental obligations. To suggest that circuit courts have a
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general inherent power to issue and enforce such orders, whether justified by
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considerations of judicial efficiency, decorum or any other goal, is in my judgment to

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come dangerously close to sanctioning an imperial judiciary, a judiciary that is oblivious

to the needs of other public agencies and the fiscal realities that are the everyday concern
of those agencies, and particularly those such as county boards which are charged with
the responsibility of appropriating and expending public funds.

Good government requires accommodation between its branches. A circuit court is not an
independent fiefdom but is a part of government, like the county board.

Id. at 297.

This position is applicable here. The County Board has engaged the OCJ to provide and

revise its budget. (see Affidavit). There is a limited amount of money available and the County

has allocated that money between departments. The OCJ cannot ignore the financial reality of

the situation and demand more money than exists. Rather, the OCJ must live within the amount

of its proposed budget.

Conclusion

Plaintiff goes too far in his Motion. He asks this Court to issue extraordinary relief that he

has no authority to obtain. Perhaps if Plaintiff sought less than the implementation of an

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 administrative order that usurps the Cook County Boards powers, unilaterally authorizing a

budget increase of more than $20 million, he might stand on firmer legal ground. However, he

does not.

Plaintiff has no clearly ascertainable right in need of protection. Contrary to his

arguments, Supreme Court Rule 21(d) does not give a chief judge the authority to implement the

administrative order that Plaintiff seeks implemented. Second, by Plaintiffs own admission,

Defendants are adequately funding the courts operations. Third, Defendants are not terminating

specific non-judicial court employees. They are making cuts to Plaintiffs budget, and nothing

prevents them from doing this.

Every Cook County department is facing budget cuts due to the publics overwhelming
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opposition to the sweetened beverage tax. Plaintiff is the only one who has sued the County as a
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result. The entire County government must tighten its belt and work to find creative solutions to

a difficult problem. Plaintiff has resorted to litigation, demanding that he be the unilateral

determinate of his budget, which, if allowed by necessity reduces amounts available to other

County departments, without the advantage of the issuance of an unlitigated edict purportedly

having the force of law. More litigation would be unleashed, embroiling this court in political

questions that should be best resolved by this Countys elected officials. It is in the interests of

the Countys taxpayers, the doctrine of separation of powers, and adherence with the law that

this Court deny Plaintiffs Motion.

WHEREFORE, Defendants, the County of Cook, and Toni Preckwinkle, respectfully

request that this Court deny Plaintiffs Motion, and grant whatever additional relief it finds to be

appropriate.

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 Respectfully submitted,

By:
Attorney for Defendants
County of Cook and Toni Preckwinkle

Thomas G. DiCianni / ARDC # 3127041 / tdicianni@ancelglink.com

Scott A. Puma / ARDC # 6216717 / spuma@ancelglink.com
Matthew T. DiCianni / ARDC # 6312661/ mdicianni@ancelgink.com
ANCEL, GLINK, DIAMOND, BUSH, DICIANNI & KRAFTHEFER, P.C.
140 South Dearborn Street, Sixth Floor
Chicago, Illinois 60603
Tel: 312.782.7606
Fax: 312.782.0943
Firm ID: 42783
tdicianni@ancelglink.com
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spuma@ancelglink.com
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mdicianni@ancelglink.com
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4833-6464-2648, v. 1