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COOK COUNTY RECORD

Thursday, March 28, 2024

IL appeals court tells two Chicago lawyers to pay Lisle's legal tab for 'meritless' Naperville annexation referendum drive

Campaigns & Elections
Illinois mcdade mary

Illinois Third District Appellate Justice Mary McDade | Illinoiscourts.gov

A state appeals panel has ordered two lawyers to pay the legal fees for the suburban village of Lisle for a "breathtakingly meritless" petition drive to have Naperville annex Lisle.

The appellate justices said fees are deserved because the petition was frivolous, and not a protected expression of free speech.

The March 4 decision was written by Appellate Justice Mary McDade, with concurrence from justices Eugene Daugherity and Daniel Schmidt, of  theIllinois Third District Appellate Court, in downstate Ottawa. The decision was filed as an unpublished order under Illinois Supreme Court Rule 23, which may limit its use as precedent.

The ruling favored the village of Lisle in a Will County action brought by Chicago lawyers Frank Avila and Andrew Finko.

Avila and Finko filed a petition in January 2017 to ask Naperville voters in the April 4 election whether Naperville should annex the communities of Lisle, Warrenville and Woodridge. The petition was filed on behalf of unnamed residents in those three municipalities. Avila and Finko said the aim was to “eliminate duplicative branches of government, provide efficiency in municipal services, and yield considerable financial savings to taxpayers.”

Naperville is in DuPage and Will counties, and Woodridge is in DuPage, Will and Cook counties. Warrenville and Lisle are in DuPage County.

Avila and Finko also filed a petition in DuPage County, where it was thrown out Feb. 28, 2017, because it did not have enough signatures.

In Will County, Circuit Judge John C. Anderson also tossed the petition for the same reason, noting some of the pages were merely photocopies and saying the petition was "breathtakingly meritless."

Anderson found the petition was not filed in good faith and ordered Lisle to move for Avila and Finko to pay the village's $6,765 legal tab for dealing with the petition. However, Anderson said he might not order payment and might not refer the matter to the Illinois Attorney Registration and Disciplinary Commission (ARDC), if the two lawyers apologized to the mayors, council members and trustees of the municipalities involved. 

Only the Lisle mayor received a letter, which was from Finko and not also Avila, according to court papers. As a consequence, Anderson sanctioned the two men, ordering them to pay Lisle's bill, but refrained from contacting the ARDC. Anderson described Avila and Finko's argument against sanction — they were testing statutory bounds — as "complete nonsense."

Avila and Finko appealed the sanction.

The two lawyers contended the move for legal fees amounted to a Strategic Lawsuit Against Public Participation (SLAPP), which is prohibited in Illinois. Specifically, Avila and Finko claimed the demand for fees was punishment for their clients' use of free speech. 

Justice McDade pointed out Judge Anderson, not Lisle, initiated the sanctions action. Furthermore, the sanction came about because the petition was not "based in law and fact," according to McDade.

McDade noted: "Had plaintiffs conducted even a rudimentary inspection of their petition, they would have found that some of the pages were merely photo-copied duplicates."

McDade also said Avila and Finko knew their petition was worthless Feb. 28 when it was trashed in DuPage County, yet they dawdled in Will County, skipping a court hearing on the petition, and not taking action to drop the petition until May 3.

Lisle has been represented by attorney Keri-Lyn Krafthefer, of the Chicago firm of Ancel Glink.

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