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Board of Education v. Board of Education

OPINION FILED JANUARY 28, 1983.

THE BOARD OF EDUCATION OF NILES TOWNSHIP HIGH SCHOOL DISTRICT NO. 219 ET AL., PLAINTIFFS-APPELLANTS,

v.

THE BOARD OF EDUCATION OF NORTHFIELD TOWNSHIP HIGH SCHOOL DISTRICT NO. 225, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. George J. Schaller, Judge, presiding.

PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

During the pendency of administrative proceedings before the Regional Board of School Trustees of Cook County, Illinois ("Regional Board"), regarding a petition filed pursuant to the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 7-1) requesting that certain property be detached from Niles Township High School District No. 219, Cook County, Illinois, and attached to Northfield Township High School District No. 225, Cook County, Illinois, the Board of Education of District No. 225 ("defendant") unilaterally adopted and executed a policy to accept students residing in the detachment area with the expressed intent to waive all tuition retroactive to the beginning of the 1982-83 school year if the detachment petition should be granted. In response to defendant's policy, the Board of Education of District No. 219 and Wesley F. Gibbs *fn1 ("plaintiff board" and "plaintiff taxpayer," respectively, in the singular, or "plaintiffs," collectively) filed a complaint requesting that a temporary restraining order, preliminary and permanent injunction be issued restraining defendant from carrying out said policy. Concurrently, parents of the detachment area students filed a petition to intervene in future proceedings. The court denied the temporary restraining order and the petition, but allowed petitioners five days within which to file an amended petition. Later that day, plaintiffs filed a notice of appeal. The following day, petitioners filed an amended petition and the trial court granted leave to intervene. As a result, plaintiffs filed an amended notice of appeal which incorporated the intervention issue. On appeal, plaintiffs present the following issues for review: (1) whether the trial court erred in denying plaintiffs' motion for temporary restraining order and preliminary injunction; (2) whether intervenors are properly before the appellate court: (3) whether a school board has the authority to waive tuition for nonresident students; (4) whether the tender of nonnegotiable checks constitutes payment of tuition in accordance with the School Code; and (5) whether a school board has authority to accept in attendance students in a proposed detachment area during the pendency of administrative detachment proceedings. For the reasons that follow, we affirm.

In June 1982, pursuant to the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 7-1), residents of District 219 filed a petition with the Regional Board to detach certain territory from District 219 and attach it to District 225. On August 16, 1982, the Regional Board convened to hear the merits of the petition. After a preliminary discussion, the hearing was continued to October 4, 1982. On the day of the Regional Board's meeting, defendant also met in open session and adopted a policy to accept students residing in the proposed detachment area for the 1982-83 school year. Said policy stated that each student must deposit a check or other equivalent security equal to a year's tuition (approximately $3,700) which would be held in escrow by defendant. Defendant further decided that should the Regional Board grant detachment during the school year, residency of the detachment area students would be retroactive to the beginning of the school year and all tuition checks would be returned. The record reveals that the parents of five detachment area students deposited checks in the amount of $1,800 each (one-half of the year's tuition), post-dated January 3, 1983.

On August 30, 1982, the day classes convened in both District 219 and District 225, plaintiffs filed their verified complaint and motion for a temporary restraining order, preliminary and permanent injunction to restrain defendant from accepting nonresident students during pendency of administrative detachment proceedings. Plaintiffs alleged that defendant's unilateral policy would irreparably harm plaintiffs because such action is illegal, contrary to law and constitutes the payment of public funds for a purpose unauthorized by law. In addition, plaintiff board alleged that it would suffer further irreparable harm by: (1) the loss of State aid which is based upon the number of students in actual daily attendance; and (2) the indirect influence defendant's action will have on the Regional Board's detachment decision. Lastly, plaintiffs alleged that they had no adequate remedy at law.

On August 31, 1982, a hearing was held on plaintiffs' motion at which time defendant filed its answer as well as a motion to dismiss. The trial court correctly stated that once defendant filed its answer, it was precluded from filing a motion to dismiss, and, thus, denied the latter. Attorneys for the students residing in the detachment area also appeared that day in an attempt to intervene in the proceedings. Plaintiffs objected to the petition to intervene on the ground that it contained no legal authority. In their defense, petitioners stated that they had just heard about the pending suit that morning and had not had adequate time within which to prepare the petition. They then requested additional time within which to file an amended petition to intervene. After hearing further arguments, the trial court denied plaintiffs' motion for a temporary restraining order on the ground that plaintiffs had not established irreparable harm. The trial court also denied petitioners' leave to intervene, without prejudice, granting them five days within which to file an amended petition. Later that day, plaintiffs filed a notice of appeal.

The following day, the parties appeared in court on petitioners' amended petition to intervene and their motion to dismiss. Plaintiffs argued that the petitioners had already been precluded from participating in the proceeding:

"If your order yesterday [denial of a temporary restaining order] was immediately appealable, and they were denied leave to intervene yesterday, then the order of yesterday in which they were not intervenors, is the one which we are appealing, so their intervention goes to the complaint for permanent injunction which I assume you are taking in another procedure."

The trial court, however, indicated that it intended to grant the petition to intervene and asked plaintiffs how much time they needed to file their answer. Instead of responding directly to the question, plaintiffs focused on the trial court's intention that plaintiffs had an immediate right to appeal the previous day's order. In that regard, plaintiffs argued that the order had to be modified to include denial of a preliminary and permanent injunction. When the trial court agreed to modify the order, petitioners stated that they had to have an immediate ruling on their right to intervene or they would be "sandbagged out of the proceeding before the Appellate Court." In response, plaintiffs argued against an immediate ruling and stated that they needed two weeks within which to respond to the petition. Expressing disapproval of plaintiffs' obvious efforts to procedurally block the students' intervention in future proceedings, the trial court stated:

"THE COURT: No, no. If you are going to appeal immediately, which is your right, by giving two weeks I am barring [petitioner] from participating.

PLAINTIFF: I believe he is barred anyway.

THE COURT: You will have to get that ruling from the Appellate Court, you are not going to get it from me. I don't agree with that.

PLAINTIFF: Your Honor —

THE COURT: I will give you 24 hours, Counsel, to answer this and I will rule on it Friday morning at 10:30.

PLAINTIFF: On which?

THE COURT: The petition to ...


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