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06/29/87 Cathleen R. Adsit Et Al., v. Ted Sanders

June 29, 1987

CATHLEEN R. ADSIT ET AL., PLAINTIFFS-APPELLANTS

v.

TED SANDERS, STATE SUPERINTENDENT OF EDUCATION, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

510 N.E.2d 547, 157 Ill. App. 3d 416, 109 Ill. Dec. 679 1987.IL.922

Appeal from the Circuit Court of Vermilion County; the Hon. William J. Sunderman, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., concurs. JUSTICE McCULLOUGH, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Plaintiffs appeal an order of the circuit court of Vermilion County which, upon administrative review, confirmed a decision of the State Superintendent of Education, which affirmed a decision by the regional superintendent of education, Vermilion County.

On July 25, 1985, a petition was filed with James Ellis, superintendent of the educational service region for Vermilion County, requesting that the next regularly scheduled election include a referendum on the establishment of a new community unit school district (petition for combination). The proposed school district would combine two already existing contiguous school districts: the Hoopeston-East Lynn Community Unit School District No. 11, situated in Vermilion and Iroquois Counties, and Wellington Community Unit School District No. 7, situated entirely in Iroquois County. Because the majority of the territory of the proposed school district lay in Vermilion County, the petition was sent to the regional superintendent of education for Vermilion County. The petition was based on the requirements of section 11A-3 of the School Code (Ill. Rev. Stat., 1984 Supp., ch. 122, par. 11A-3). One of the requirements is the formation of a "Committee of Ten," consisting of 10 of the petitioners who have certain specified powers to act on behalf of all the petitioners. (Ill. Rev. Stat., 1984 Supp., ch. 122, par. 11A-3.) Ten of the twelve defendants in this appeal comprise the "Committee of Ten" designated in the petition. The other two defendants are James Ellis, regional superintendent of education for Vermilion County (regional superintendent), and Ted Sanders, State Superintendent of Education (State Superintendent).

On August 19, 1985, a petition was filed in opposition to the petition for combination (objectors' petition). The objectors' petition was signed by 10 residents, all taxpayers and voters, living within the boundaries of the proposed school district. These 10 citizens are the plaintiffs in this cause (the objectors). The objectors' petition alleged the petition for combination failed to conform to the requirements of article 28 of the Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 28-1 et seq.). The majority of the objections were based on section 28-3 of the Election Code (Ill. Rev. Stat., 1984 Supp., ch. 46, par. 28-3). The objectors' petition requested that the regional superintendent transmit the petition for combination to the proper electoral board pursuant to section 10-9 of the Election Code (Ill. Rev. Stat., 1984 Supp., ch. 46, par. 10-9) for a determination as to whether the petition conformed to the requirements of the Election Code.

The "Committee of Ten" moved to strike and dismiss the objectors' petition arguing, inter alia, the Election Code did not apply as the matter was exclusively governed by the School Code.

Regional Superintendent Ellis forwarded the petition for combination to the county officers electoral board, which convened on August 26, 1985. The electoral board issued an order which stated that the electoral board did not have jurisdiction. The petition for combination was sent back to Superintendent Ellis.

Subsequently, the objectors filed a complaint for declaratory judgment in the circuit court of Vermilion County (Objectors I) alleging that a controversy had arisen over the interpretation of the Election Code and the School Code. The complaint requested that the court interpret the statutes and, advocating the side of the objectors, requested that the court order the electoral board to proceed with a determination on the propriety of the petition for combination under the requirements of the Election Code.

A hearing was held on September 4, 1985. The court decided that section 11A-3 of the School Code (Ill. Rev. Stat., 1984 Supp., ch. 122, par. 11A-3) was controlling and that the regional superintendent is the proper party to rule on objections to the petition for combination. The provisions of the Election Code pertaining to an electoral board did not apply. In the context of the court's Discussion on which party is the proper party to hear objections, the court made statements about the two statutes involved: the School Code and the Election Code. The court stated the School Code controls, and the Election Code does not apply. The docket entry and the written order prepared by counsel also contain similar statements. Again, it should be noted that the statements were made in a Discussion of which of the two parties, the regional superintendent of education or the electoral board, is the proper party to rule on objections to the petition for combination. The court's order in Objectors I was not appealed.

After the judgment in the declaratory judgment proceeding, a hearing was convened by Regional Superintendent Ellis at which time the objectors asked that their objections to the petition for combination be decided. Ellis refused to rule, contending the declaratory judgment determined the question. In addition, the State Superintendent did not rule on the objections.

The crux of the objections to the petition for combination goes to the legal sufficiency of the signature pages of the petitions. The signature pages are headed by the following words:

"SIGNATURE OF LEGAL VOTER ADDRESS, STREET, CITY SCHOOL DISTRICT NO."

There was no other heading nor was there a statement at the bottom of each page to be completed by the person obtaining the signatures as is required by section 28-3 of the Election Code. Section 28-3 of the Election Code (Ill. Rev. Stat., 1984 Supp., ch. 46, par. 28-3) provides:

"Petitions for the submission of public questions shall consist of sheets of uniform size and each sheet shall contain, above the space for signature, an appropriate heading, giving the information as to the question of public policy to be submitted, and specifying the state at large or the political subdivision or district or other territory in which it is to be submitted and, where by law the public question must be submitted at a particular election, the election at which it is to be submitted. The heading of each sheet shall be the same. . . . No signature shall be valid or be counted in considering the validity or sufficiency of such petition unless the requirements of this Section are complied with.

At the bottom of each sheet of such petition shall be added a statement, signed by a registered voter of the political subdivision or district in which the question of public policy is to be submitted, stating his residence address (and if a resident of a city having a population of over 10,000 by the then last preceding federal census, also stating the street and number of such residence), certifying that the signatures on that sheet of the petition were signed in his presence and are genuine, and that to the best of his knowledge and belief the persons so signing were at the time of signing the petition registered voters of the political subdivision or district in which the question of public policy is to be submitted and that their respective residences are correctly stated therein. Such statement shall be sworn to before some officer authorized to administer oaths in this State."

Defendants contend that the objectors are barred on appeal from raising the section 28-3 issues because of collateral estoppel resulting from the initial declaratory judgment action. The objectors sought the declaratory judgment asking the circuit court to determine that the local election board, rather than the regional superintendent of schools, hear objections to the petition seeking the school consolidation election. The circuit Judge correctly determined that section 11A-3 of the School Code (Ill. Rev. Stat., 1984 Supp., ch. 122, par. 11A-3) placed the responsibility upon the regional superintendent.

Judge Skowronski, in voicing his determination stated:

"The clear language of Chapter 122, Section 11A -- 3 in the paragraph that I just read places the burden upon the Regional Superintendent to determine whether or not the petition is in compliance with the Election Code.

This statute does not say that the Regional Superintendent is to refer this to the proper Electoral Board. To the contrary, it indicates that the decision-maker is to be the Regional Superintendent, not an Electoral Board, and the Court is of the opinion that this clear and specific language controls, and that the one who is to make the decision as to whether or not the petition complies with the Election Code is not an Electoral Board as set forth in Section 10 -- 9 of the Election Code, but the Regional Superintendent. So the Court is of the opinion, therefore, that as far as the complaint for declaratory judgment is concerned, that at this time the Court order would be that the School Code controls in this situation, specifically 11A -- 3 and the ...


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