Judge’s finding raises questions

• Judge Joe McGraw rules against Cherry Valley Library District annexation but does not levy fine

17th Judicial Circuit Judge Joe McGraw, who started his career as a judge 13 months ago, said Dec. 31 the Cherry Valley Library District illegally annexed some Boone County residents into their taxing district in 2002. If the district decides not to appeal McGraw’s decision or loses its appeal, a total between $61,551.85 and $70,164.80 may be distributed to affected residents.

Boone County State’s Attorney Roger Russell said the exact amount received by the library in 2003, as a result of the annexation, will be computed at a later date but speculated the amount to be about $64,000.

The $61,551.85 represents how much Russell requested in a Dec. 5, 2003, court document that Russell said the library received in 2003 as a result of the annexation for the 2002 tax year. According to the Boone County Treasurer’s office, the total amount the library received through Dec. 31, including the annexed area, was $70,164.80 for the 2002 tax year.

Russell also asked McGraw to order a fine “sufficient to discourage it or any other library district from such conduct in the future.” McGraw denied Russell’s request for a punitive fine.

In his ruling, McGraw wrote: “The court has no doubt that the intentions of the district were consistent with the express public policy in favor of the expansion of tax supported library districts.” Eugene Doherty, the library district’s lawyer, said to the best of his knowledge, dozens of other library districts in Illinois have annexed properties in a similar manner, but none have been challenged in court.

The lawsuit centered on the library district’s annexation of 661 Boone County properties on Dec. 27, 2002, through adoption of an ordinance by the library’s board of trustees. Russell argued the district should have asked voters whether they wanted to be annexed by a referendum rather than approval of an ordinance.

Doherty said he was “surprised and disappointed” by McGraw’s decision that the annexation by ordinance was not legal. The library district may decide this week whether to appeal McGraw’s decision to the Illinois Appellate Court in Elgin.

Russell and Doherty agreed McGraw’s ruling on the lawsuit was about the content of the library district’s 2002 legal notice and the district’s interpretation of the law that applies to annexation through ordinance adoption.

The legal notice about the annexation was published in the Nov. 27, 2002, issue of The Rock River Times. Russell said part of the lawsuit concerned typographical errors in the legal notice. Those errors were not made by The Rock River Times (see July 30, 2003 issue).

The Rock River Times’ Editor and Publisher Frank Schier submitted an affidavit on behalf of the library district that said, as of the date the legal notice was published, 4,206 copies of The Rock River Times were distributed to 358 locations “encompassing and within” the library district. The affidavit also said 625 copies were distributed to 64 locations “in the Belvidere area and Boone County.”

The Register Star’s July 21 article about the lawsuit begins, “The Boone County state’s attorney is suing the Cherry Valley Library District, accusing the district of improperly publishing a little-seen legal notice and then adding 661 properties to its tax base in December. …”

However, no such accusation pertaining to “publishing a little-seen legal notice” is in Russell’s original complaint. The Register Star’s July 22 and 26 articles dropped references tying the complaint to The Rock River Times’ circulation and distribution and instead focused on a typographical error in the legal notice.

Again, any typographical error in the legal notice was not made by The Rock River Times. Any errors were in the original copy provided by the library district.

The Register Star renewed their references to The Rock River Times’ circulation and distribution in their Dec. 31 article. Citing McGraw’s decision, the Register Star wrote, “the [sic] Rock River Times is a free weekly paper that’s published in Rockford and has little circulation in Boone County, making it ‘an ineffective’ means of notifying taxpayers that their land would be annexed by the library district.”

In McGraw’s 47-point decision, there is just one direct reference to The Rock River Times. In that point, McGraw wrote, “The attempted notice was published in the [sic] Rock River Times, which while distributed to certain ‘drop points’ in Boone County, was of questionable effectiveness in reaching property owners in the ‘eligible territory’.”

Schier said: “The daily’s use of ‘an ineffective’ versus the actual judicial language of ‘questionable effectiveness’ is unfortunate and speaks for itself. A more accurate quote from the decision would have been: ‘…the Court finds that in viewing the totality of the circumstances, that the notice was ineffective to adequately advise property owners who might want object to the annexation by the library district.”

Schier added: “I respectfully disagree with the judge’s assessment. This paper is a legal paper of record and general circulation, approaching its 500th issue. For cost and comparative circulation, this paper is a great and widely-known vehicle for news, the arts and legal publications. Look at the number of legals we have every week. Then look at the others. Our quality and growth speak clearly, and that obviously disturbs some people.”

When asked to explain his finding concerning The Rock River Times circulation in the annexed area, the library district, and Boone County, McGraw said through his secretary, judiciary rules prohibit him from commenting on cases that may be appealed.

When confronted Jan. 2 with this paper’s findings about The Rock River Times’ and Register Star’s circulation in the library district and Boone County, and asked directly if he would have preferred the legal advertisement been placed in the Register Star, Russell said he “didn’t want to discuss newspaper circulation” and “didn’t want to get in the middle of a newspaper war.”

According to the Register Star’s Web site and circulation department, as of Jan. 2, the Register Star had a total of 88 “single-copy locations” in the Cherry Valley area and Boone County. Including paid subscribers and single copy locations, the Register Star’s circulation department said, as of Jan. 2, they distributed 5,323 daily copies to the Cherry Valley area, Boone County and the McHenry County municipalities of Woodstock, Marengo, Union and Harvard.

In comparison, The Rock River Times distributed 4,831 copies to 422 commercial locations (for one or more papers) on Nov. 27, 2002, in Boone County and within the Cherry Valley Library District (see table on page A1). During interviews on Jan. 2, both Russell and Doherty couldn’t explain why McGraw made reference to The Rock River Times’ distribution since it was not part of Russell’s original complaint.

Doherty said Russell “all but conceded The Rock River Times serves Boone County and the library district.” As evidence, Doherty cited Russell’s Nov. 12 court document that reads:

“If one really wanted to reach the affected taxpayers, the Defendant would have published in the Rockford Register Star, a daily paper with 262 subscribers in the annexed area plus sales at a single copy outlet at the only store or gas station in the annexed area.

“One would have to be totally out of touch with reality to not realize that the Rockford Register Star is the only daily newspaper left that is published in Winnebago and Boone Counties, and only one that has any significant delivery to residences in the aforementioned areas and specifically the annexed area.

“But because the statute allows the Defendant to publish notice in a newspaper published or circulated in the ‘district’ and district is defined as the ‘public library district,’ Defendant has complied with the letter of the law on this issue, but probably not the spirit of the law,” Russe

ll wrote.

Doherty added that McGraw’s job is to interpret the letter of the law.

Doherty said the library district placed the legal ad with The Rock River Times because it was much less expensive than the Register Star and when the district previously placed a legal ad in the Register Star, they didn’t publish the ad with the required ad frame specifications.

An affidavit by Executive Director of the Cherry Valley Public Library District states: “…I chose to have notice of the ordinance published in The Rock River Times rather than the Rockford Register Star for two reasons: (a) just a couple of weeks earlier, the Rockford Register Star had run a legal notice for the Library District without the thick black border I specifically requested twice before it ran; and (b) the cost of publishing a notice in the Rockford Register Star would be approximately three times the cost of running the same ad in The Rock River Times.”

Boone County resident Tom Boers, who initiated the June 2002 petition to reverse the library’s annexation ordinance, said in July his complaint was not that the advertisement was placed in The Rock River Times, but that he would have preferred the opportunity to vote on the annexation issue. Boers also said he would have preferred that affected property owners be notified by mail of the library district’s annexation plans

Boers and Russell’s complaint that there should have been a referendum was supported by McGraw’s decision, which read “the statute seems to contemplate that the library district may annex by ordinance only that portion of property previously annexed by referendum by a municipality or school district.”

McGraw won his position as a judge by defeating Rockford lawyer Tom Meyer in the November 2002 election by a vote of 43,287 to Meyer’s 31,638, out of a total of 79,235 votes. McGraw took the bench Dec. 2, 2002, according to the Winnebago County Clerk’s office.

Cherry Valley Library District has not decided whether to appeal McGraw’s decision.

Enjoy The Rock River Times? Help spread the word!