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Myre v. Board of Education





Appeal from the Circuit Court of La Salle County; the Hon. Fred P. Wagner, Judge, presiding.


The substantive issue in this case is whether the trial court erred in granting injunctive relief to a former high school student for the school board's violation of her right to substantive due process of law. For the reason explained below, we do not decide that issue.

Mary Angela Myre, the plaintiff, filed a complaint in the circuit court of La Salle County on November 10, 1980, alleging that her rights to substantive due process had been violated when she was improperly subjected to in-school suspension and, as a consequence, missed certain examinations which could adversely affect her opportunity for college admission. The discipline measure resulted from Mary's having been found in possession of beer at an out-of-town football game on October 31, 1980. Mary, a high school senior at the time, admitted the offense and was given a choice as to which form her discipline would take — in-school or out-of-school suspension. After discussing the matter with her parents, Mary chose in-school suspension for a five-day period, as specified in the student handbook for alcohol/drug use, and a two-month restriction on attending extra-curricular activities. Following a special meeting of the Seneca Township Board of Education (defendant herein) and Mary's father, the board approved the disciplinary measures. Mary began to serve her five-day in-school suspension on November 6, 1980.

By November 10, Mary had missed a biology II test, and stood to miss examinations in family living and accounting before the completion of the in-school suspension period. However, on that date she sought and obtained temporary injunctive relief from the circuit court. In addition to enjoining the school from preventing her from taking exams for the remainder of the in-school suspension period, the court ordered that Mary be permitted to make up all missed examinations.

The examinations were, in fact, taken by Mary. On December 22, 1980, the suit for permanent injunctive relief (count I of plaintiff's complaint) proceeded to a trial on the merits. Although she had received grades for the accounting and family living tests, her biology exam remained ungraded pending the court's ruling. At the conclusion of testimony on January 5, 1981, the court found that the rule under which Mary had been disciplined was a valid one but that, as applied to the circumstances herein, it constituted a deprivation of her rights to substantive due process. On January 16, 1981, the court entered its order granting permanent injunctive relief and ordering the school to credit grades for all examinations given pursuant to the T.R.O. The court further ordered that count III of plaintiff's complaint, in which she requested attorney fees pursuant to "§ 1983 of Title 42 of the United States Code, as amended," would be heard at a later date.

On February 26, 1981, plaintiff's complaint was amended to add that count I was brought pursuant to "§§ 1983 and 1988 of Title 42 of the United States Code," and that count III was being brought pursuant to section 1988. The hearing on attorney fees was held on the same date. Counsel for Mary testified that they had billed her $1,850 for attorney fees, representing "in excess of 51 hours of work * * * at about $40 or $45 an hour," and $101 in court costs. The court took the matter under advisement at the close of all testimony and arguments of counsel, and entered judgment in favor of Mary on June 5, 1981. The court's order awarded plaintiff $1,918, representing $1,850 for attorney fees and $68 for court costs.

On July 2, 1981, the board filed its notice of appeal. Plaintiff filed a cross-appeal on July 10. On January 27, 1982, plaintiff filed in this court a motion to dismiss the board's appeal, asserting therefor two bases: lack of appellate jurisdiction over the issue of permanent injunctive relief which was granted on January 16, 1981, and mootness. We took both the motion to dismiss and the board's response thereto with the case.

Plaintiff contends that the board's July 2, 1981, notice of appeal, which made specific reference only to the June 5 order, sought appeal only from the order of attorney fees. Therefore, she argues, this court lacks jurisdiction over the issue of the permanent injunction. The board, on the other hand, takes the position that the July 2 notice of appeal was sufficiently broad to encompass the January order of permanent injunctive relief. In support of this position, the board points to language in the notice which, they contend, sufficiently apprised the plaintiff that the board intended to appeal the rulings entered in January. In essence, the notice of appeal reads as follows: "You are * * * notified that the Defendant * * * appeals * * * from the order of the Circuit Court * * * entered * * * on the 5th * * * of June, 1981. By said order the * * * Judge * * * found all issues in favor of Plaintiff * * * and affirmed the prior oral order * * * granting plaintiff's * * * petition for Permanent Injunctive and Other Relief."

• 1, 2 We agree with the board that this language is in substantial compliance with the notice requirement of Supreme Court Rule 303(c) (73 Ill.2d R. 303(c)) even though it may be technically faulty. Generally, the notice of appeal is to be liberally construed with a view to its purpose. (Burtell v. First Charter Service Corp. (1979), 76 Ill.2d 427, 394 N.E.2d 380.) Errors made in specifying the dates of orders appealed from have been held not to bar an appeal where the substance of the notice of appeal, as a whole, fairly and clearly informs the other party of the judgments over which review is sought. (In re Estate of Malloy (1981), 96 Ill. App.3d 1020, 422 N.E.2d 76; Hamer v. Board of Education (1978), 66 Ill. App.3d 7, 383 N.E.2d 231.) In our opinion, the notice of appeal herein satisfies the minimum requirements of the rule as liberally construed in that it clearly mentions the grant of injunctive relief as a basis for the appeal. Whether the reference to June 5 was in error because it should have been January 5 (the date of the court's oral order on the issue of permanent injunctive relief) or whether the June 5 date was intended to refer only to the court's award of attorney fees, and the failure to specify January 5 was an error of omission, is not dispositive of the question of adequacy of the notice of appeal. Rather, the purpose of the document — to give fair notice of the issues to be advanced by the appellant — must be met. In this case it was, and the plaintiff has failed in any event to demonstrate any prejudice resulting from the board's failure to specify the date of the court's grant of injunctive relief. Accordingly, we will not dismiss this appeal for lack of appellate jurisdiction.

• 3 The plaintiff's second contention for dismissal is based on the doctrine of mootness. The mootness argument requires the recitation of a few additional facts which appear in an affidavit attached to plaintiff's motion to dismiss. The plaintiff was graduated from high school in June 1981. She was accepted for and did commence attending college in the fall 1981 semester at Western Illinois University, Macomb, Illinois. Since plaintiff has already taken the high school examinations, received her grades, and has been accepted into a college of her choice, the argument continues, any decision of this court contrary to that reached in the circuit court could have no practical effect upon either party. We agree with plaintiff's argument.

It is significant to this issue that the trial court specifically found the rule itself was not invalid. We agree. It is a harsh rule, but the broad discretion accorded school authorities enables the rule to be tailored to the specific circumstances of the particular student being disciplined under it. We therefore agree with the trial court that the only basis for a grant of relief to this plaintiff was her complaint that the rule as applied to her deprived her of her rights.

There exists, however, no present controversy between the parties concerning the issue of permanent injunctive relief. Certainly we could not order plaintiff to "untake" the exams. An order of this court reversing the court's order that credit be given for the exams would have, at best, only highly speculative consequences, since plaintiff is already in college. In effect, the issue of this plaintiff's rights to substantive due process is moot.

We also find that the present case does not qualify as an exception to the mootness doctrine. (See People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769; Environmental Protection Agency v. Pollution Control Board (1980), 88 Ill. App.3d 71, 410 N.E.2d 98; August H. Skoglund Co. v. Department of Transportation (1978), 67 Ill. App.3d 276, 384 N.E.2d 849; Sosna v. Iowa (1975), 419 U.S. 393, 42 L.Ed.2d 532, 95 S.Ct. 553.) Since the matter is moot any further comment on the merits of the trial court's order would be improper because such comment would have advisory effect only. (See Madison Park Bank v. Zagel (1982), 91 Ill.2d 231.) Accordingly, we dismiss the substantive issue of this appeal as moot.

The board has attempted to resist plaintiff's mootness argument by characterizing the other issue raised on appeal — whether attorney fees were improperly granted by the trial court — as a "collateral legal consequence" requiring our consideration of the entire appeal. (See Chebny v. Stuart (1979), 68 Ill. App.3d 419, 386 N.E.2d 352.) The plaintiff has responded to this argument by citing Doe v. Marshall (5th Cir. 1980), 622 F.2d 118, as authority for a reviewing court's consideration of the correctness of awarding attorney fees despite a finding of mootness on the merits.

• 4 While we agree generally with the rationale of Marshall that the issue of attorney fees is not a collateral legal consequence that would save the substantive issue on appeal from dismissal under the doctrine of mootness, we are not bound to the ultimate disposition obtained in Marshall, which was to remand the matter to the trial court for a proper determination of attorney fees. Marshall involved, as here, a student who had been granted injunctive relief and had completed high school during the pendency of the appeal. The Fifth Circuit Court of Appeals disposed of the substantive due process issue by finding the matter moot and vacating the order of injunction. The court did not, however, remand for dismissal of the complaint. Therefore, legally and factually, the plaintiff in Marshall was a "prevailing party" for purposes of 42 U.S.C. § 1988 (1976) despite the application of the mootness doctrine to the due process issue.

• 5 In Illinois, however, it is well settled that a finding of mootness requires, in addition to vacatur of the order appealed from, remandment to the circuit court for dismissal of the complaint. Wheeler v. Aetna ...

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