APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
514 N.E.2d 256, 161 Ill. App. 3d 180, 112 Ill. Dec. 790
Appeal from the Circuit Court of Rock Island County; the Hon. John M. Telleen, Judge, presiding. 1987.IL.1524
JUSTICE STOUDER delivered the opinion of the court. SCOTT, J., concurs. JUSTICE HEIPLE, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER
Dennis A. Bergstrand (plaintiff) and Marilyn C. Bergstrand are the divorced parents of four school-age children. Marilyn Bergstrand, the custodial mother, wants the children to participate in sex education and disease instruction courses which are offered by the children's school. The plaintiff, the children's natural father, submitted written objections to the Rock Island school board, School District No. 41, protesting the children's enrollment in these classes. Despite the plaintiff's objections, the school board still required the children to participate in the classes because the children's mother wanted the children to receive sex education and disease instruction. The plaintiff filed a complaint requesting that a temporary restraining order, preliminary injunction and permanent injunction issue against the school board. The cause came on for hearing upon the plaintiff's request for a preliminary injunction. The circuit court of Rock Island County denied the plaintiff's request on the ground that the mother and children were necessary parties to the suit. The plaintiff then took this interlocutory appeal. The sole issue on appeal is whether the mother and four children are necessary parties to the action.
The plaintiff's written objections are submitted pursuant to the following sections of the Illinois School Code:
"Sex education. No pupil shall be required to take or participate in any class or course in comprehensive sex education if his parent or guardian submits written objection thereto, and refusal to take or participate in such course or program shall not be reason for suspension or expulsion of such pupil. Nothing in this Section prohibits instruction in sanitation, hygiene or traditional courses in biology." (Ill. Rev. Stat. 1985, ch. 122, par. 27-9.1.)
"No pupil shall be required to take or participate in instruction on diseases if a parent or guardian files written objection thereto on constitutional grounds, and refusal to take or participate in such instruction on such grounds shall not be reason for suspension or expulsion of such pupil. Nothing in this act shall prohibit instruction in sanitation and hygiene." Ill. Rev. Stat. 1985, ch. 122, par. 27-11.
Under fundamental principles of due process, a court is without jurisdiction to enter an order or judgment which affects a right or interest of someone not before the court. (Feen v. Ray (1985), 109 Ill. 2d 339, 487 N.E.2d 619.) The courts have established a test for determining a necessary party:
"A necessary party is one whose presence in the suit is required for any of three reasons: (1) to protect an interest which the absentee has in the subject matter of the controversy which would be materially affected by a judgment entered in his absence [citations]; (2) to reach a decision which will protect the interests of those who are before the court [citations]; or (3) to enable the court to make a complete determination of the controversy." (Burt v. Board of Education (1985), 132 Ill. App. 3d 393, 395-96, 477 N.E.2d 247.)
The statute at issue has yet to be interpreted by a court in a similar situation. Although a number of States have similar statutes, we have been unable to locate a similar factual situation interpreting these provisions. (See Alabama's, California's, and Michigan's annotated statutes.) Consequently, it is necessary to analyze similar situations involving parental rights concerning minor children in order to determine whether Mrs. Bergstrand is a necessary party.
Under the plaintiff's interpretation of the statute, an objecting parent in a two-parent family could decide which courses his children would be enrolled in without consulting his wife, the children's natural mother. Clearly, a natural mother of minor children in a family setting has an interest in which classes her children will be enrolled. Free personal choice in matters involving family life is a fundamental liberty interest of a parent (Santosky v. Kramer (1982), 455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388), because the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. (Ginsberg v. New York (1968), 390 U.S. 629, 20 L. Ed. 2d 195, 88 S. Ct. 1274.) Further, a nonobjecting parent has the right to know the basis of the complaining parent's objection. An objecting parent must act in good faith when seeking to have his children precluded from attending educational classes. Thus, a non-objecting parent has an interest in the controversy simply to assure that an objection was not made erroneously, including instances of bad faith, incompetence, duress, compulsion, and harassment.
A reading of the statute illustrates that it does not contemplate every situation that could arise. Thus, a practical decision is required. A decision incorporating the plaintiff's reasoning would result in illogical proceedings. For example, under the plaintiff's interpretation, a parent of a child who has shown no interest in the child since birth would be allowed to file an objection to a child's attendance in sex education classes. Such a decision would ...