Attorney Id. No.

22516

IN THE CIRCUIT COURT OF COOK COUNTY ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION

ANTHONY PERAICA and )

TAXPAYERS UNITED OF AMERICA )
Petitioners, )
vs. ) No.________________________________
)
RIVERSIDE-BROOKFIELD SCHOOL)
DISTRICT 208, and the School ) Cal.________________________
Board members in their official and )
individual capacities as follows: )
JAMES MARCINIAK, SUE )
KLEINMEYER, LARRY HERBST, )
MARI-ANN LEIBRANT, DANIEL )
MOON, MICHAEL WELCH and )
MATTHEW SINDE, Jr., )
)
Respondents. )

VERIFIED PETITION FOR EXPEDITED

DECLARATORY INJUNCTIVE and OTHER RELIEF

NOW COME the Petitioners, ANTHONY PERAICA (“PERAICA”) and

TAXPAYERS UNITED OF AMERICA (“TUA”), by and through their attorney ANDREW

B. SPIEGEL and pursuant to the U.S. and State Constitutions and the Election and

School Codes of the State of Illinois, petition against the Respondents RIVERSIDE-

BROOKFIELD SCHOOL DISTRICT 208 and the District's School Board members in

their official and individual capacity as follows: JAMES MARCINIAK, SUE

KLEINMEYER, LARRY HERBST, MARI-ANN LEIBRANT, DANIEL MOON, MICHAEL

WELCH and MATTHEW SINDE, Jr. This Petition seeks to contest the validity of the

electioneering used by these Respondents with regard to the public question

referendum placed on the April 5, 2011 general election ballot by these Respondents

and seeks declaratory, injunctive and other additional relief. In support of this

Petition, the Petitioners state the following:

 Parties

1. ANTHONY PERAICA (“PERAICA”) is a registered voter in Riverside-

Brookfield School District 208. He is also a property owner who is compelled to pay

property taxes in said District and was so on April 5, 2011, the date of the

Consolidated General Election.

2. TAXPAYERS UNITED OF AMERICA (“TUA”), is a national taxpayer

organization with a number of adherents in Riverside-Brookfield School District 208

who are registered voters, property owners and parents of school children in

Riverside-Brookfield School District 208.

3. RIVERSIDE-BROOKFIELD SCHOOL DISTRICT 208 (“hereinafter the

“District”) is the school district that placed a referendum on the ballot for the April

5, 2011 election whose electioneering is the subject of this lawsuit.

4. JAMES MARCINIAK, SUE KLEINMEYER, LARRY HERBST, MARI-ANN

LEIBRANT, DANIEL MOON, MICHAEL WELCH and MATTHEW SINDE, Jr.

are respectively, the President, the Vice President, and Board members of School

District 208 and are named herein in both their official and individual capacities for

the purposes of injunctive relief and damages. They are referred to hereafter as

either “District members” or simply as “members.”

5. Prior to the general election, the District and its members became aware

that the the tax rate increase and the estimated amount of said increase on a

property valued at $100,000.00 as stated on the ballot, did not include the state

equalizer or multiplier factor applied to Cook County in its calculation. As a result,

both the District and its members understated the estimated amount of the tax
increase by approximately two-thirds.

6. Despite knowing that the ballot language was misleading and

understated the amount of the tax increase, the District and its members

intentionally proceeded with its referendum using the misleading calculations.

7. The District and its individual members also engaged in electioneering

activities at public expense to promote an affirmative vote on the referendum. Such

activities included, inter alia:

a. producing and distributing leaflets in support of the referendum;

b. electioneering activities calculated to discourage opposition to

referendum and to promote an affirmative vote thereon;

c. using the school cable television station to advocate an affirmative

vote on the referendum.

8. Despite the illegal electioneering of the Respondents, of the 4,193 votes

cast on the referendum on April 5, 2011, a total of 3,314 voters voted No and just

879 voted Yes; 79.04% no and only 20.96% yes.

Count I
Declaratory Judgment

9-16. The Petitioners re-allege and incorporate by reference paragraphs 1-8

above as if fully set forth herein as paragraphs 9-16 of this Count I.

17. The nature of this Count is a proceeding for declaratory relief under 735

ILCS 5/2-701 for the purpose of determining a question in actual controversy

between the parties concerning whether the referendum ballot was invalid by reason

of its misstating the amount of the tax increase and whether the electioneering

engaged in by the Respondents was a violation of 10 ILCS 5/9-25.1 of the Election

Code.

18. The Board and its members were required by the School Code to

determine how much the tax bills would increase per $100,000.00 of assessed

valuation if the referendum measure was to pass. The Respondents phrased the

question on the ballot without using the state equalization factor.

19. The parties are governed by the Election and School Codes, by the

language on the ballot used to misstate the amount of the tax increase, by the

Constitution of the State of Illinois and by the U.S. Constitution.

20. A dispute has arisen between the Petitioners and the Respondents with

respect to the Respondents intentional use of misleading figures on the referendum

ballot and whether the effect of using such figures rendered that ballot invalid.

21. The Petitioners claim that the Respondents' intentionally used

misleading figures in their unsuccessful attempt to mislead the voting public.

Petitioners further claim that the use of that knowingly misleading calculation,

together with the illegal electioneering engaged in by the Respondents, was a

violation of both the State and U.S. Constitutions and the School and Election Codes

and therefore made the ballot invalid. The Respondents claim there was no

intentional misleading of the voters, that the ballot was not invalid, that the

discrepancy in the calculations was adequately explained to the voters prior to the

election and that they did not engage in illegal electioneering despite their use of

public resources and public funds to promote an affirmative vote on the referendum.

22. An actual controversy exists between the Petitioners and the

Respondents.

WHEREFORE the Petitioners herein request a declaratory judgment in

accordance with the due process and equal protection clauses of the 5 th and 14th

Amendment of the U.S. Constitution, of Article I, Section 2 and Article III, Section 3

of the Illinois Constitution (1970) and of 10 ILCS 5/23-20, et seq. of the Election

Code, 105 ILCS 5/20, et seq. Of the School Code and 735 ILCS 5/2-701 against the

Respondents as follows:

a. the court declares the District 208 referendum ballot invalid for

attempting to mislead the voters as to the amount of the property tax

increase;

b. the court declares the electioneering engaged in by the Respondents to

be a violation of 10 ILCS 5/9-25.1 of the Election Code;

c. the court order the individual Respondents to pay from their private

funds all costs, expenses and attorneys' fees incurred by Petitioners in

this action and to pay form their own funds all costs expenses and

attorneys' fees they incur in defending this action;

d. the Court grant Petitioners any other relief it may deem equitable in the

circumstances.

Count II
Preliminary Injunction

23- 30. The Petitioners re-allege and incorporate by reference paragraphs

1-8 above as if fully set forth herein as paragraphs 23-30 of this Count II.

31. The Respondents were required by the School Code, to determine how

much tax bills would increase per $100,000.00 of assessed value if the District 208

measure was to pass.

32. The Respondents were required to clearly indicate the substance of the

public question. Their failure to factor in the State equalizer so vastly understated
the effect of the proposed tax increase that the voters were denied the ability to

know the fundamentals and general effect of the proposed increase. Smith v.

Calhoun Community School District No. 40, 16 Ill.2nd 328, 157 N.E.2 nd 59 (1959).

Petitioners are likely to prevail on this issue.

33. A preliminary injunction should be imposed against both the District

and each of the individual District Board member Respondents named herein to

enjoin them from using any public funds to pay for their defense in this action and

from using any public funds or resources in the future to promote an affirmative

vote on any future tax referenda.

34. The harm of not imposing such an injunction far outweighs any harm in

granting such injunctive relief as the injunction would merely prevent the

Respondents from doing what they are already prohibited by law from doing.

35. The Preliminary injunction should be imposed without bond as the

Petitioners are in good faith defending their constitutional rights under both the U.S.

and State Constitutions for the benefit of all the property taxpayers in the 208 th

District and to require them to post a bond is not in the public interest.

36. The Petitioners have incurred costs, expenses and attorneys' fees in

prosecuting this cause and should be awarded all of such expenditures from each of

the individual Respondents jointly and severally.

Wherefore, the Petitioners herein, by and through their attorney Andrew

B. Spiegel petition for entry of a preliminary injunction as follows:

a. enjoining each of the Respondents from using any public funds to

engage in illegal electioneering or in defending themselves in this action;

b. converting the preliminary injunction into a permanent injunction

prior to any attempt by any of these Respondents to misuse public funds in the

future in any manner similar to how those funds were used by these Respondents to

promote an affirmative vote on the referendum;

c. entering any injunctive relief issued without bond being required

from these Petitioners;

d. awarding the Petitioners all costs, expenses and attorneys' fees

incurred as a result of this action with any such award to be paid jointly and

severally from the individual Respondents herein;

e. granting such further and additional relief as the court deems

warranted in these circumstances.

Count III

Election Interference

37-44. The Petitioners re-allege and incorporate by reference paragraphs

1-8 above as if fully set forth herein as paragraphs 37-44 of this Count III.

45. The Respondents individually and as a group violated 10 ILCS 5/9-25.1

of the Election Code (entitled Election interference) by using public funds to support

an affirmative vote on the District 208 question by:

a. telling students to circulate “volunteer” forms to other students

during school hours, to sign-up students for pro-referendum literature blitzes

and campaign activity;

b. allowing a pro-referendum group to use public resources such as

tables, chairs, official publications and the like at school events on school

grounds and inside the school building seeking support for the referendum

from district residents;

 c. hosting, on the school football field a student gathering and rally

in support of an affirmative vote on the referendum;

d. providing student photos, taken by the district photographer, to a

pro-referendum group for its use in pro-referendum fliers and other campaign

literature;

e. producing a pro-referendum television spot for the school's cable

television station RBTV urging an affirmative vote on the referendum;

f. using the same television spot on RBTV.org. the website for the

television station;

g. producing a pro-referendum television program using two senior

employees of the District;

h. mailing pro-referendum literature, produced at public expense, to

11,000 voters in District 208;

i. allowing an assistant principal to use school computers for

maintaining pro-referendum campaign volunteer lists and other pro-

referendum related information;

j. encouraging and allowing teachers to “blog” on local websites in

support of an affirmative vote on the referendum;

k. allowing and encouraging numerous telephone calls and emails by

administrators and staff in support of an affirmative vote on the referendum;

l. directing senior personnel to speak to local groups urging them to

cast an affirmative vote on the referendum.

46. Such illegal electioneering by these Respondents violated the due

process and equal protection rights of the Petitioners as guaranteed by both the
State and U.S. Constitutions and by the State Constitution's mandate that all

elections shall be free and equal. (Art. 3, sec. 3, Illinois Constitution, 1970).

47. Petitioners have been injured by the actions of these Respondents, and

had to expend countless time as well as financial resources to counter the illegal

electioneering engaged in by these Respondents. Petitioners have incurred and will

continue to incur costs, expenses and attorneys' fees in defending their rights.

WHEREFORE the Petitioners herein request the court enter

judgment in accordance with the due process and equal protection clauses of the 5 th

and 14th Amendment of the U.S. Constitution, of Article I, Section 2 and Article III,

Section 3 of the Illinois Constitution (1970) and of 10 ILCS 5/23-20, et seq. of the

Election Code, 105 ILCS 5/20, et seq. Of the School Code and 735 ILCS 5/2-701

against the Respondents as follows:

a. damages in favor of the Petitioners and against the individual

Respondents, jointly and severally in an amount not to exceed Fifty

Thousand ($50,000.00) Dollars for violation of their Constitutional rights;

b. ordering the individual Respondents to pay from their private

funds all damages and all costs, expenses and attorneys, fees of this action;

c. granting Petitioners any other relief it may deem equitable in the

circumstances.

Respectfully submitted,

__________________________________________
Andrew B. Spiegel, Attorney for Petitioners

407 S. Dearborn Street

Suite 1170
Chicago, Illinois 60605
630 567-5379
 Verification

ANTHONY PERAICA, certifies on oath that he has read and understood

the foregoing Verified Petition and that the same is true in substance and in fact to
the best of his knowledge, information and belief.

_________________________________
ANTHONY PERAICA

Subscribed and sworn to

before me this 26 th day of April, 2011

_____________________________________
Notary Public

Andrew B. Spiegel
Attorney for Petitioners
407 S. Dearborn Street
Suite 1170
Chicago, Illinois 60605
630 567-5379