APPEAL from the Circuit Court of St. Clair County; the Hon.
RICHARD T. CARTER, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Plaintiffs appeal from a judgment dismissing their complaint for declaratory judgment and injunctive relief.
Plaintiffs are George Graham and an unincorporated association, the Freeburg High School Education Association. Graham had taught for two years at defendant high school without any prior full-time teaching experience. Article 24, section 11 of the School Code of 1961 (Ill. Rev. Stat. 1961, ch. 122, par. 24-11) provides:
"Any teacher who has been employed in any district as a full-time teacher for a probationary period of 2 consecutive school terms shall enter upon contractual continued service * * *. If, however, a teacher has not had one school term of full-time teaching experience prior to the beginning of such probationary period, the employing board may at its option extend such probationary period for 1 additional school term by giving the teacher written notice * * *.'
(Section 24-11 also defines "school term" as follows: "`School term' means that portion of the school year, July 1 to the following June 30, when school is in actual session.")
Defendant Board of Education operates under the following established written policy:
"All teachers employed by District No. 77 shall serve the maximum probationary period (two (2) years with prior experience, three (3) years with no prior experience if properly notified of status sixty (60) days prior to the end of the school year) according to the statutes of the Illinois School Code."
At the end of his second term, Graham, like all teachers who did not have one school term of full-time teaching experience prior to the beginning of his or her probationary period, received notice that he would be placed on a third year of probation pursuant to the Board's established policy. On March 23, 1973, during this third year of teaching, Graham received notice from defendant Board of Education advising him that his employment was being terminated at the end of that school year and that he would not enter upon contractual continued service.
Plaintiffs filed a complaint for declaratory judgment and injunctive relief, alleging, inter alia, that the action of the defendant Board of Education constituted subterfuge, chicanery and bad faith and was an attempt to subvert and invalidate the intent of the tenure law. In essence, plaintiffs contend that the provisions of the tenure law were enacted to permit the Board to extend the probationary period for those teachers whom the Board was doubtful were performing satisfactorily, but that this "option" of the Board required an individual evaluation of each teacher, that the blanket policy of the Board to extend the probationary period of all teachers without prior teaching experience was not a discretionary exercise of the statutory "option" but instead was a total absence of discretion or option, and that it evaded the purpose and language of the tenure law by requiring a three year probationary period where the statute only required a two year probationary period.
Defendant filed a motion to dismiss in two general parts. The first part asked that the Freeburg High School Education Association, an unincorporated association, be dismissed for lack of standing to sue. The second part alleged that the complaint failed to state a cause of action because, inter alia, the defendant School Board complied with the statute and the policy of automatic extension of the probationary period was a lawful exercise of defendant's "option" granted by the statute.
The trial court granted the motion to dismiss on the basis that: "The policy of automatic extension of the probation period as practiced by Community High School District No. 77 of St. Clair County is legal and in the best interest of the operation of the School Board."
The issues are (1) whether the Freeburg High School Association, an unincorporated association, has standing to sue, and (2) whether the complaint states a cause of action.
Defendant School Board contends that plaintiff Freeburg High School Education Association, an unincorporated association, lacks standing to sue. (There is no question concerning the right of the individual plaintiff George Graham to maintain this action.) Formerly, in Illinois an unincorporated association could not sue or be sued at law (Kingsley v. Meatcutters Local 530 (1944), 323 Ill. App. 353, 55 N.E.2d 554; Collins v. Barry (1956), 11 Ill. App.2d 119, 136 N.E.2d 597), although it could sue and be sued in equity. Carpenter's Union v. Citizens Committee (1928), 333 Ill. 225, 164 N.E. 393.
• 1-3 However, the Illinois Civil Practice Act long ago abolished all distinctions between law and equity, and the new Judicial Article of the Illinois Constitution of 1970 provides in section 9 that the "Circuit Courts shall have original jurisdiction of all justiciable matters * * *." (Ill. Const. 1970, Art. VI, Sec. 9). Relying on this the Fourth District Appellate Court in Illinois State Employees Association v. McCarter (1973), 9 Ill. App.3d 764, 292 N.E.2d 901, held that an employees not-for-profit association had standing under the 1970 Illinois Constitution and the Illinois Civil Practice Act to maintain an action for mandamus and injunction against a State official who allegedly was violating a statutory ...