Downers Grove within its rights to remove library board member for comments on homosexuality, appeals court says

By Scott Holland | Jan 4, 2018

Controversial comments cost a Downers Grove library trustee his seat on the board, a decision upheld by a state appeals panel.

In an opinion filed Dec. 29, the Illinois Second District Appellate Court, which convenes in west suburban Elgin, affirmed a DuPage County judge’s decision to deny a request for an injunction in the dispute between Arthur G. Jaros Jr. and the village of Downers Grove, as well as fellow defendants Susan Farley; the League of Women Voters of Downers Grove, Woodridge and Lisle; Downers Grove Commissioners Gregory W. Hose and Robert T. Barnett; and Downers Grove Mayor Martin T. Tully.

Justice Joseph E. Birkett wrote the opinion, and justices Susan F. Hutchinson and Mary S. Schostok concurred.

Jaros got his library board seat via council appointment in August 2015. On Sept. 5, 2017, the council, on a 6-0 vote, adopted a resolution removing him from the board. According to a report published by the Chicago Tribune, the removal vote followed a League of Women Voters online report about the Aug. 23 library board meeting that said Jaros questioned why library staff members needed training on inclusion and diversity, and that the staff should protect children from exposure to homosexuals and homosexual lifestyle.

On the day of the vote, DuPage County Judge Paul M. Fullerton denied Jaros’ motion for a temporary restraining order and preliminary injunction. The day after the vote, Jaros amended his seven-count complaint. Only two counts were at issue in the appeal: Jaros’ contention the village’s removal authorization policy exceeds its home rule powers and an injunction he sought barring his removal from office.

However, Jaros also amended his motion for preliminary injunction to argue the library board is a governmental unit separate from the village council, which would mean even home rule powers don’t grant the council the power to remove a library trustee. He also said truncation of a library trustee’s six-year term should have been subject to a voter referendum.

Fullerton denied Jaros’ request for injunctive relief and said that was tantamount to declaring the village had not exceeded its home rule powers in code or conduct. The appellate panel agreed with Fullerton that the section of the state Library Act Jaros cited did not constrain the village council from removing a trustee, as spelled out in its own municipal code.

The relevant section of the Library Act, Birkett wrote, “does not speak at all to discretionary removal or to the creation of vacancies in situations other than those listed.” He noted a broader reading of the law allows the inference “the Legislature was intentionally silent in section 4-4 as to the matter of discretionary removal.”

As to whether the village code’s removal authorization exceeds its home rule powers, the panel determined there was no “attempt by the village council to arrogate to itself a conferred executive power.” Birkett said Downers Grove’s government structure is similar to Chicago’s, and that its library board members are not appointed “officers,” as are the clerk, treasurer and attorney, and therefore not similarly protected from removal.

Ultimately, the panel relied on the Illinois Constitution’s provisions that “legislative limitations on home-rule powers must be express and specific,” Birkett wrote. Absent language in state laws forbidding a village from enacting something like the Downers Grove removal authorization, a home rule community’s rights shall not be infringed.

Jaros also alleged Fullerton’s ruling deprived him of constitutional liberty and property interests arising from his position as a library trustee, but Birkett wrote Jaros never argued “he was not afforded due process of law in being removed from office.”

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Downers Grove Public Library Illinois Second District Appellate Court Village of Downers Grove

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