Thomas lost her right to the Auditor’s office after referendum: Appellate Court

Immediate means “immediate,” according to the 4^th District of the Appellate Court of Illinois, which on May 31 overturned Peoria Judge James Mack’s November injunction continuing the status quo for Peoria County’s Auditor’s office, determining that Auditor Jessica Thomas has no right to finish her term in office.

However, the Appellate Court decision has 35 days to mandate the ruling to the Circuit Court, so “immediate” also means around July 5.

“Because we conclude that the referendum was valid and eliminated the office of County Auditor upon certification of the referendum result, we hold that plaintiff [Thomas] lost any right she had to the office,” according to Justice Kathryn Zenoff. “The November 8, 2022, referendum had the effect of eliminating the office of County Auditor, such that plaintiff [Thomas] cannot establish that she has an ascertainable interest. The referendum is sufficiently clear that it invoked the voters’ constitutional ability under section 4(c) to eliminate a county office prior to the expiration of plaintiff’s four-year term. The referendum asked whether voters wished to ‘eliminate’ the office without qualification.”

The Appellate Court overturned the preliminary injunction Mack issued weeks after 70% of voters in last year’s election cast ballots to abolish the office. Mack’s action enabled Thomas to continue being paid until the appeals court decided the vote meant the office was abolished immediately, at the end of her four-year term, or another date.

At a June 16 hearing, Thomas’ lawyer, Justin Penn, and the County’s outside counsel, Lisa Meador, agreed to return to Judge Stewart Umholtz’ courtroom on July 17, after the mandate from the 4^th District is expected to arrive, on implementing the Appellate Court’s ruling. At that hearing, two County motions filed June 15 will be considered. First, the County wants clarification on the County continuing to pay Penn to represent Thomas since he was appointed for the issue that’s now decided – depending on another appeal.

Meador said the County is asking the court to terminate the appointment of Ms. Thomas’s taxpayer-funded attorney “so that taxpayers are not required to fund her ongoing legal battle to evade the results of the election. Ms. Thomas has unfortunately indicated that she intends to appeal this case all the way to the Supreme Court rather than abide by the will of the voters and the Appellate Court’s decision.

 

“The issue on appeal is separate from constitutional claims,” Meador said. “She’d be pursuing that on a personal basis, not as part of her official duties.”

Also, the County is requesting the court to impose a bond or escrow to separately hold Thomas’ salary pending any appeal to reconsider or a Petition for Leave to Appeal to the Appellate Court or the Illinois Supreme Court.

 

BACKGROUND

The Peoria County Board in October 2021 voted 16-2 to approve a 2022 budget that changed the staffing and duties of the Auditor’s office, and on Nov. 15 that year, Thomas filed suit claiming her authority had been usurped and seeking the restoration of her funding and staff.

 

Funding for all County elected officials’ offices are set by the County Board, which said it streamlined its mostly automated accounts-payable process and retained its external auditor, Sikich.

 

Of Illinois’ 102 counties, 85 have no elected auditors.

 

After the referendum, Thomas argued that she’s entitled to complete the term for which she’d been elected in 2018 – December 1, 2024 – because the referendum didn’t specify when the decision would take effect.

However, Peoria County said “that plaintiff can establish no ascertainable right to serve as County Auditor because ‘her rights to the office ceased’ once the voters passed the referendum to eliminate the office,” Zenoff wrote. “Because plaintiff no longer has any right to the office, … she lacks standing to obtain injunctive relief.”

 

Penn, of Hinshaw & Culbertson, told the Community Word, “We are disappointed at the latest, but not last, decision. The Appellate Court decided the issue based solely on a case that none of the attorneys raised or argued in the appeal.

 

“When judges go outside the legal authority presented by the attorneys, it can be problematic because the attorneys do not get to present their arguments as to why the case is right or wrong,” Penn continued. “That problem [is] especially present when, as is the case here, the issues presented are very difficult legal issues without a lot of prior decisions to which to look.”

 

Any appeal or motion to reconsider would also be due at the 4^th District in Springfield within 35 days of the appellate ruling.

 

Meador, of Chicago’s Sotos Law Firm, said, “We are pleased that the Appellate Court recognized that Ms. Thomas’s efforts to hold on to her taxpayer-funded job at any cost did not overcome Peoria County’s obligation to honor the voters’ decision to abolish the Auditor’s Office.

 

“We anticipated that the Appellate Court would rule as it did, and the Court’s opinion is well-reasoned and legally sound.

 

“The only unusual surprises this litigation presented were three lower court decisions,” she added. “First, to force the taxpayers to pay for Ms. Thomas’s private attorney to pursue this litigation; second, to force the County to hire outside counsel at taxpayer expense to defend the frivolous lawsuit; and third, to impose the injunction which allowed Ms. Thomas to ignore the mandate of the voters to eliminate the Auditor’s Office.

 

“We are gratified that the Appellate Court overturned that injunction.”

 

After Zenoff’s ruling, the County sent a letter notifying Thomas and Penn that Thomas was terminated effective at 5 p.m. June 9, but the County later withdrew the notice pending the transmission of the Appellate Court’s mandate.

 

“We have filed a motion in the Appellate Court asking them to hold onto the mandate until Jessica’s appeal is decided,” Penn said. 

 

Thomas, who hasn’t been working in the County Courthouse since the referendum, according to County Administrator Scott Sorrel, since the referendum has received about $63,000 in gross pay and two Elected Service or Elected Official government stipends, according to Peoria County Chief Financial Officer Heather McCord.

 

“Ms. Thomas has indicated that she intends to appeal, further seeking to spend taxpayer money for an office which the voters eliminated over seven months ago,” Meador said. “Worse yet, she is stubbornly asking Peoria County taxpayers to fund her never-ending efforts to cling to an abolished position.

 

“This is ironic because, as the Auditor, Ms. Thomas was expected to conserve taxpayer dollars, yet her aggressive and expensive litigation tactics are forcing the County to fund the litigation with taxpayer dollars it could use for important services,” Meador added.

 

Yet to be resolved in some 18 months of related litigation is a dispute about the amount Penn is requesting for his fees representing Thomas, on which the Judge Mack had declined to rule.

 

Peoria County has paid Thomas’ first attorney, Kate Swise, $15,000, but objects to Penn’s billing of about $80,000, which Sotos called an “exorbitant demand.”