APPEAL from the Circuit Court of McHenry County; the Hon.
ROLAND A. HERRMANN, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 25, 1982.
Plaintiff, Board of Education of Hawthorne School District No. 17, Marengo, Illinois (Board), filed its complaint for declaratory and injunctive relief against the defendants, Illinois Department of Human Rights (Department), several of the Department's employees, and Jeanne Eckmann, a tenured school teacher employed by the plaintiff. On plaintiff's motion the trial court granted a preliminary injunction enjoining defendants from conducting a scheduled fact-finding conference in the matter of Jeanne Eckmann "in such fashion as to prohibit plaintiff from making a report of proceedings at said conference through a court reporter at plaintiff's own expense." The Department has taken this interlocutory appeal pursuant to Supreme Court Rule 307(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 307(a)).
The complaint and exhibits attached thereto reveal the following. Jeanne Eckmann, a tenured teacher within Hawthorne School District No. 17, received a resolution from the Board dated July 20, 1981, which stated that her performance as a teacher had been unsatisfactory and that unless she remedied these deficiencies there would be cause which may result in charges against her and her dismissal. A letter accompanying the resolution stated that these deficiencies had been discussed with her in the past and that she should remove and remedy the causes behind the defects. Generally, the Board charged Ms. Eckmann with failure to establish the proper rapport with her students; failure to create an atmosphere conducive to learning; failure to cooperate with other members of the school staff and parents; and becoming pregnant outside the state of marriage, which diminished her ability to teach and the ability of her students to learn from her.
On August 13, 1981, Ms. Eckmann filed a charge of unfair employment practice with the Department based on sex discrimination. In her written charge she stated that she has been employed by Hawthorne School District No. 17 for four years; never once was she notified of any deficiencies in her teaching performance; in November 1980, as the result of a rape, she became pregnant; on June 12, 1981, the Board asked her for her resignation on the basis of immorality; on June 15, 1981, she attended a Board meeting accompanied by 17 parents who were in support of her actions; she had the support of Edward O'Brien, the superintendent of schools, Hawthorne District No. 17; at the June 15 meeting, she requested that Dr. John Mack, National Education Association Area Director, explain to the Board the legal ramifications of a morality charge; and that she subsequently received the Board resolution of July 20, 1981.
Pursuant to its regular procedures, the Department, on August 25, 1981, sent the Board a notice that a charge had been filed against the Board and requested an answer to the charge. Subsequent correspondence from the Department stated that an investigation would be held beginning with a fact-finding conference which would ascertain whether there was a basis for a negotiated settlement of the charge. The date, time, and place of the conference was stated, as well as a brief summary of the purpose of the conference, the procedures, and the Board's rights therein. In a subsequent letter to the Board, the Department specifically stated that a court reporter would not be allowed at the fact-finding conference. The Board then filed its complaint seeking declaratory and injunctive relief. Essentially, the Board complains that the Department's Rule 4.4(b) prohibiting the Board from making a report of the proceedings of the fact-finding conference through a court reporter at its own expense would prejudice it in any subsequent proceedings. Thereafter, before responsive pleadings were filed by the defendants, the plaintiff moved for a preliminary injunction. After hearing legal arguments of both counsel based upon the complaint and exhibits attached thereto, the trial court granted a preliminary injunction enjoining defendants from conducting the scheduled fact-finding conference "in such a fashion as to prohibit plaintiff from making a report of proceedings at said conference through a court reporter at plaintiff's own expense."
• 1, 2 Initially, we comment briefly on the appropriateness of injunctive relief before exhaustion of the administrative procedures established by statute and the Department's rules. Generally, when the legislation creating an administrative agency in Illinois expressly adopts the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) as the mode of review, Illinois courts> have consistently held that the remedy under the Act is exclusive and that alternate methods of direct review or collateral attack are not permitted. (People ex rel. Petersen v. Turner Co. (1976), 37 Ill. App.3d 450, 456, 346 N.E.2d 102.) However, when a party is attacking a statute or an administrative rule on its face, he need not exhaust administrative remedies. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540, 548, 370 N.E.2d 223.) Since the Board is attacking the validity of one of the Department's rules, the present action is within the jurisdiction of the court.
The Department contends on appeal that the issuance of a preliminary injunction was improper since its rule prohibiting the presence of a court reporter at the fact-finding stage does not violate the Board's due process right and that the legal requisites for injunctive relief were not present. The Board argues that the trial court did not abuse its discretion in granting the preliminary injunction and that due process and common sense require that the Board be allowed the opportunity to have a court reporter present at its own expense.
First, we turn to some well-established principles applicable to injunctive relief. An injunction is an exceptional remedy which is not granted as a matter of course but with great caution and only when the plaintiff's right to such relief is clearly established. (Parsons v. Walker (1975), 28 Ill. App.3d 517, 521, 328 N.E.2d 920.) The grant or denial of an injunction is discretionary with the trial court and will not be disturbed unless there is an abuse of discretion. (Plasti-Drum Corp. v. Ferrell (1979), 70 Ill. App.3d 441, 452, 388 N.E.2d 438.) The requirements for the issuance of a preliminary injunction are well settled. For such an injunction to issue, the plaintiff must establish: (1) that he possesses a certain and clearly ascertained right which needs protection; (2) that he will suffer irreparable injury without the protection of an injunction; (3) that there is no adequate remedy at law for his injuries; and (4) that he is likely to be successful on the merits. (Midwest Micro Media, Inc. v. Machotka (1979), 76 Ill. App.3d 698, 702, 395 N.E.2d 188; Crest Builders, Inc. v. Willow Falls Improvement Association (1979), 74 Ill. App.3d 420, 422, 393 N.E.2d 107; Bromberg v. Whitler (1977), 57 Ill. App.3d 152, 155, 372 N.E.2d 837.) As these rules are applied to the case at bar, we focus primarily on whether the Board has established that it possesses a certain and clearly ascertained right which needs protection by injunctive relief.
The Illinois Human Rights Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1-101 et seq.) replaced the Fair Employment Practices Act (Ill. Rev. Stat. 1979, ch. 48, par. 851 et seq.) effective July 1, 1980. One of its purposes is to secure freedom from discrimination because of sex in connection with employment. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1-102(A).) The statute also expresses as public policy the protection of Illinois citizens against "unfounded charges of unlawful discrimination." (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1-102(E).) In order to effectuate these goals of equal employment opportunity for the employee and protection for the employer against unwarranted claims, the legislature established procedures to determine the validity of a complainant's charge. The complaining party must file a charge of discrimination with the Department within 180 days of the alleged discriminatory act by the employer. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7-102(A).) After notice to the employer, the Department shall conduct an investigation of the charge and has the power to subpoena witnesses and documents. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7-102(C)(1), (C)(2).) Upon reasonable notice to all parties, the Department may conduct a fact-finding conference. While the decision to conduct the conference rests within the Department's discretion, the statute directs that the conference must be held within 120 days from the date the charge was filed with the Department. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7-102(C)(3).) The failure to attend the conference without good cause may result in dismissal of the charge or default against the employer. However, such dismissal or default does not bar a party from seeking review before the Illinois Human Rights Commission (Commission). (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 8-103(B).) A notice of dismissal or default shall be issued by the Director, who shall notify the relevant party that a request for review may be filed in writing with the Commission within 30 days of receipt of such notice. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7-102(C)(3).) Each investigated charge shall be subject to a confidential report to the Director. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7-102(D).) Further statutory provisions provide for a formal conciliation conference if the Director determines there is substantial evidence of a violation of the Act and, upon a failure to settle or adjust any charge, the authority of the Department to prepare and file a written complaint with the Commission. Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7-102(F).
Once a complaint is filed with the Commission, the statute provides for notice of a hearing before a hearing officer, amendment of and answer to the complaint, hearing procedures, written findings of fact and decision by the hearing officer and review and rehearing by the Commission. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 8-103 through 8-107.) The Commission's final order is subject to judicial review under the Administrative Review Act. Ill. Rev. Stat., 1980 Supp., ch. 68, par. 8-111.
The Act empowers the Department "[t]o adopt, promulgate, amend, and rescind rules and regulations not inconsistent with the provisions of this Act pursuant to the Administrative Procedure Act." (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7-101(A).) Under that authority the Department has enacted section 4.4(b) (Rules and Regulations of the Department of Human Rights, section 4.4(b)), which provides as follows:
"(b) Attorneys, Witnesses. A party may be accompanied at a fact-finding conference by his/her attorney or another representative, and by a translator if necessary. An attorney for a party not previously having entered an appearance shall do so at the outset of the conference. The parties may bring witnesses to the conference in addition to those whose attendance may be specifically requested by the Department, but the Department employee conducting the conference shall decide which witnesses shall be heard and the order in which they are heard. The Department employee conducting the conference may exclude witnesses and other persons from the conference when they are not giving evidence, except that one representative of each party and counsel shall be permitted to remain throughout. The Department employee shall conduct and control the proceedings. No tape recording, stenographic report or other verbatim record of the conference shall be made." (Emphasis added.)
As applied to this case, by letter to the Board dated September 16, 1981, Deborah D. Smith, an investigator for the Department and a defendant in this suit, stated that a court reporter would not be allowed to attend the fact-finding conference, to be held on October 9, 1981, investigating the charge filed against the Board. It is the enforcement of this rule ...