Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Arthur J. Dunne, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 26, 1980.
The plaintiffs, principals in the Chicago public school system and individuals on the 1970 and 1974 eligibility lists for principal, as determined by the board of examiners (Ill. Rev. Stat. 1977, ch. 122, par. 34-83), filed a complaint against the defendant Chicago board of education (the board of education) on June 12, 1975. The trial court permitted certain interest groups and individuals to intervene as defendants. The nature of the interests of the intervenors is discussed later. The selection of the principals for the Chicago public school system is governed by section 34-84 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 34-84), which provides that principals are to be selected "for merit only." The plaintiffs contend this requires appointment by "rank order" as determined by the score assigned the prospective principal candidates by the board of examiners. Starting in 1970, the board of education adopted procedures establishing "nominating committees of local school councils" in order to involve local communities in the selection of school principals. The committees were established without any statutory authority, and "rank order" was no longer the sole criteria used to select principals. On December 20, 1976, pursuant to the plaintiffs' motion for summary judgment, the trial court entered a judgment order requiring that all principals be selected by "rank order" until such time as the board of education adopted "a uniform system of community input." The trial court order also provided that rank order need not be the sole criteria of merit. On September 28, 1976, the trial court entered an additional order permitting members of community organizations and school parents councils to intervene. The appellate court reversed the circuit court's order providing that rank order need not be used by the board of education as the sole criteria of merit, and it remanded with directions that the board of education make appointments to the position of principal in rank order from eligibility lists prepared by the board of examiners. (77 Ill. App.3d 389.) We granted leave to appeal.
Prior to 1917, the Chicago board of education had plenary power to determine the character and fitness of applicants for appointment as principals of the various schools. As the trial court stated, the so-called Otis Law was passed in 1917 in order to do away with favoritism, partisanship, and cronyism in the selection of principals. The Otis Law provided in part that "[a]ppointments and promotions of teachers, principals and other educational employees shall be made for merit only * * *." (Ill. Rev. Stat. 1975, ch. 122, par. 34-84.) Also, a board of examiners was created to examine all applicants and to prepare and establish all necessary eligibility lists. (Ill. Rev. Stat. 1975, ch. 122, par. 34-83.) From 1917 until 1970, the board of education made appointments of principals and teachers in "rank order" from an eligibility list compiled pursuant to examinations given by the board of examiners.
On March 25, 1970, the board of education adopted procedures calling for the involvement of local communities in the selection of principals and established nominating committees of local school councils. Pursuant to these procedures, the committees were first only given the names of present principals who desired to transfer to the schools where there were vacancies. If all potential transferring principals were rejected by a committee, it was given a second list of candidates from the eligibility list in rank order. The committees rated the candidates in order of preference, and the board of education attempted to honor the requests. On October 14, 1970, the board of education adopted procedures whereby the rank on the eligibility list would not be considered either in presenting candidates to the nominating committees or in the assignment of principals.
This suit was filed on June 12, 1975. The plaintiffs argued that fitness to be a principal is to be determined by the board of examiners and that the board of education has purely a ministerial duty in selecting principals in rank order from the eligibility list compiled by the board of examiners. The plaintiffs sought a declaratory judgment that the rules and procedures establishing the local nominating committees were in violation of the School Code, the fourteenth amendment of the United States Constitution, and section 2 of article I of the Illinois Constitution. Pursuant to plaintiffs' motion for summary judgment, the trial court entered its judgment order on December 20, 1976. The order reviewed the history of the applicable statutes and found that rank-order appointment of principals was abhorrent because it precluded community input. However, the trial court ordered that principals were to be selected by rank order until such time as the board of education was able to establish a uniform system of community input. The court stated:
"2. That rank order on the principals' eligibility examination need not be used by the Board as the sole criteria of merit in the appointment of principals to individual schools, provided however, that until a uniform system of community input is established appointments to principals shall be in rank order commencing with appointments in rank order from the oldest existing principal list (1970)."
The intervenors appealed from that portion of the order requiring the board of education to appoint principals in rank order until such time as a uniform system of community input was established. On April 13, 1977, the board of education, in an attempt to comply with the trial court's order, adopted Board Report 77-156-46, which established uniform procedures for community participation in the principal-selection process. The intervenors' appeal was dismissed by the appellate court because of mootness.
The plaintiffs appealed from the portion of the trial court's order providing that "rank order" need not be the sole criteria of merit in the appointment of principals, and from the order of September 28, 1976, permitting the members of community organizations and school parents councils to intervene. Before this case was heard by the appellate court, the Illinois legislature added section 34-8.2 to the School Code for cities of over 500,000 inhabitants. (Ill. Rev. Stat. 1979, ch. 122, par. 34-8.2.) This provision specifically provides for the use of local nominating committees in the selection of principals and is set out and considered later in this opinion. Section 34-84 of the Code, requiring appointment "for merit only," remained unchanged. The appellate court held that section 34-8.2 of the School Code did not repeal or amend the requirement of rank-order appointment as contained in section 34-84, and that it was possible for local nominating committees to coexist with a system of rank-order selection.
The first issue presented for review is whether the trial court erred in permitting members of community organizations, school parents councils and individual school parents to intervene in this suit. The intervention statute (Ill. Rev. Stat. 1975, ch. 110, par. 26.1) provided that anyone shall be permitted as of right to intervene whenever the representation of his interests by existing parties may be inadequate and he may be bound by any judgment, decree or order entered in the action. It also permits intervention in the discretion of the trial court. Here, the trial court permitted the groups and parents to intervene pursuant to section 26.1(2)(b) of the Civil Practice Act, which provides:
"Upon timely application anyone may in the discretion of the court be permitted to intervene in an action * * * (b) when an applicant's claim or defense and the main action have a question of law or fact in common." (Ill. Rev. Stat. 1975, ch. 110, par. 26.1(2)(b).)
Section 26.1 has been liberally construed (Bredberg v. City of Wheaton (1962), 24 Ill.2d 612, 623; Dowsett v. City of East Moline (1956), 8 Ill.2d 560, 567) and is modeled after Rule 24(b) of the Federal Rules of Civil Procedure, so that the interpretation of Rule 24 is highly relevant. See Cooper v. Hinrichs (1957), 10 Ill.2d 269, 277; Dowsett v. City of East Moline (1956), 8 Ill.2d 560, 567; Ill. Ann. Stat., ch. 110, par. 26.1, Historical and Practice Notes, at 318 (Smith-Hurd 1968).
Permissive intervention, by definition, lies in the sound discretion of the trial court, and its judgment will not be reversed unless a clear abuse of discretion is shown. Under the intervention statute, a direct interest in the suit need not be shown (Mensik v. Smith (1960), 18 Ill.2d 572, 590), but the applicant must have an enforceable or recognizable right and more ...