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People Ex Rel. Kolker v. Blair

OCTOBER 16, 1972.

THE PEOPLE EX REL. SUE KOLKER, PLAINTIFF-APPELLANT,

v.

CLARENCE D. BLAIR, SUPERINTENDENT OF EDUCATIONAL SERVICE REGION, ET AL., DEFENDANTS-APPELLEES.



APPEAL of the Circuit Court of St. Clair County; the Hon. DANIEL H. DAILEY, Judge, presiding.

MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal from the dismissal of a mandamus action, in which the relator seeks to compel the Superintendent of the Educational Service Region of St. Clair County to remove four members of the Board of Education of East St. Louis School District No. 189. The relator, a taxpayer and resident of the school district, alleged in her petition that the four school board members had committed specified acts in violation of State law; that the acts constituted willful failure to perform their official duties; and that, even though the Superintendent has been requested and demanded to do so, he has failed to perform his clear duty to remove the board members.

The action was initially brought against the Superintendent as defendant. On January 28, 1971, Judge Lewis granted the plaintiff's motion for leave to add the school board members as parties defendants and took under advisement defendant's motion to dismiss. On February 9, 1971, Judge Lewis filed an opinion and order denying the motion to dismiss, stating, in part:

"The petition at the very least raises the question of whether or not there has been a clear abuse of discretion, an evasion of a positive duty, or the necessity for the Court to control the exercise of the Superintendent's discretion in a manner consistent with the applicable rule of law."

Defendant-Superintendent subsequently filed an answer, denying the allegations of the plaintiff's complaint. Subsequently, the school board members filed a petition for change of venue and the case was assigned to Judge Dailey. The school board members filed another motion to dismiss, which was granted on March 12, 1971.

The relevant statutes are Ill. Rev. Stat., ch. 122, sec. 3-15, providing that "the county superintendent shall have the powers enumerated in the subsequent sections of this article," and sec. 3-15.5, providing for the power "To remove any member of a school board from office for willful failure to perform his official duties."

The appellant states that it may well be that the superintendent has certain discretion to determine whether or not the school board members did or did not fail to perform an official duty. However, the appellant argues in its brief that, once the superintendent has determined that an official duty has not been performed by school board members, his discretion ceases and he has no choice but to remove the board members. The appellant further argues that, in this case, it alleged that the superintendent "knew that the school board members had refused to perform their official duties" and that "he admits (by not denying same) that they have failed to perform their official duties." However, nowhere in the pleadings is there an allegation that the superintendent had made any determination that the board members were in willful violation of their official duties. Also, the defendant-superintendent's answer states that he has no knowledge of the specific allegations of willful violations by board members.

In support of his argument, appellant cites State Board of Dental Examiners v. People ex rel. Cooper (1887), 123 Ill. 227, 13 N.E. 201, Van Dorn v. Anderson (1905), 117 Ill. App. 618, and Pyle v. Puntney (1929), 254 Ill. App. 224. These cases all involve situations in which an official was vested with discretion in making a determination and in which the courts held that, once a decision had been made, the discretionary power was exhausted and the duty to act was ministerial, performance of which could be enforced by mandamus.

In the Dental Examiners case, the Court held that the petition warranted the issuance of a writ of mandamus, commanding the State board to issue petitioner a license to practice dentistry in Illinois. The Court analyzed the nature of the board's duties and held, at 204, that: "They had no discretion as to any other matter than the character of the college issuing the diploma, as to its being reputable or not reputable. When that matter was decided and out of the way, their judicial or discretionary power was exhausted."

In Van Dorn, the court affirmed the trial court's issuance of a writ of mandamus, requiring the superintendent of schools to change the date of a teaching certificate, holding, at 621:

"But when such superintendent has once determined that the applicant is qualified to teach, and the grade of certificate to which he is entitled, or that he is entitled to a renewal of a certificate theretofore granted, his discretionary or judicial powers are exhausted. The resultant duty to issue a certificate to the effect or to endorse a renewal upon a former certificate, being imperative, specific, well-defined, and not requiring the exercise of judgment or discretion, is ministerial merely, and the performance of such a duty may, upon his neglect or refusal to act, be coerced by a peremptory writ of mandamus."

The court's decision is based in part of its interpretation of the statute as giving to the superintendent both the power and duty to grant certificates to those qualified to receive them.

In Pyle, the court reversed the trial court's sustaining of a motion to dismiss a petition for a writ of mandamus, compelling a county superintendent to give his approval for a school transfer for petitioner's son. The petition alleged that the superintendent had made the determination required by statute, but that he had refused to permit the transfer for reasons other than those in the statute. The court summarized its holding, at 233:

"After * * * the county superintendent had decided that it was more convenient for appellant's son to attend the Carmi school, then upon coming to such decision the county superintendent's discretionary power was exhausted and his duty to give his approval then became a mere ministerial ...


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