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August 22, 1989


The opinion of the court was delivered by: ROSZKOWSKI


 This action comes before the court on the defendants' motion to dismiss. For the reasons set forth below, the court dismisses the claims by the Rockford Principals and Supervisors Association and dismisses the individual defendants from Count II. Further, the court strikes the plaintiffs' claim to punitive damages. The court denies all other aspects of the motion to dismiss.


 The plaintiffs in the instant case are comprised of the Rockford Principals and Supervisors Association ("Association"), an unincorporated association made up of approximately eighty-two administrators (i.e. principals, assistant principals and supervisors) employed by the Board of Education of Rockford School District #205, and five individual administrators, Peter S. Paris, Linda Burkhard, Dennis M. Harezlak, James C. Anderson and David J. Rossi who make up the executive board of the Association. The defendants in the instant case are comprised of the Board of Education of Rockford School District #205 ("Board") and the following individual members of the Board at the time of the complained-of acts: Jacqueline Confer, Jo Minor, George Stevens and Michael Williams.

 The genesis of the instant controversy can be traced to joint efforts by members of the Board and a group of administrators to develop a workable plan for increasing administrators' salaries to a level commensurate with the salaries of administrators throughout the state. Through these joint efforts, an "Administrative Salary Package" ("Package") was compiled and proposed to the Board on May 26, 1987. The Package contained a plan for a series of graduated increases in administrative salaries for the school years 1987-88, 1988-89 and 1989-90. The Package listed the proposed salary for each individual administrator. After discussion at both the May 26, 1987, and June 9, 1987, board meetings, the Board voted to approve the Package on June 9, 1987. Accordingly, administrators received their salary increases as set out in the Package for the 1987-88 school year. Subsequently, at a June 28, 1988, Board meeting, the Board rescinded the Package approved on June 9, 1987 and substituted a uniform 5% salary increase for administrators during the 1988-89 school year.

 In response to the Board's actions, the plaintiffs bring a two count complaint against the defendants alleging a deprivation of a property interest without due process of law pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983 and a pendant state claim for breach of an implied contract.

 Presently, the defendants move the court to dismiss the complaint against them. The defendants offer numerous and sundry reasons for dismissal. The court will attempt to address and answer the defendants' contentions in order.



 The defendants' first challenge is to the Association's standing to sue as a representative of the Association's members. In particular, the defendants argue that allowing the Association to sue in a representational capacity is inappropriate based on the nature of the claims and relief requested in the instant suit. The defendants continue that the claims alleged and relief requested require the participation of the Association's individual members and thus renders a representative suit inappropriate. The plaintiffs respond that the instant case is a perfect example of where associational representation is not only appropriate but a preferred way of putting the members' claims at issue.

 In deciding whether a plaintiff's standing to sue is appropriate, the court "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975).

 In Hunt v. Washington State Apple Advertising Com'n., 432 U.S. 333, 342-43, 97 S. Ct. 2434, 2441, 53 L. Ed. 2d 383 (1977), the Supreme Court set out the three requirements necessary for an association to have standing to bring suit on behalf of its members. The three requirements were derived from the Court's earlier decision in Warth, 422 U.S. at 511, 95 S. Ct. at 2211-12, and are as follows:

 Hunt, 432 U.S. at 342-43, 97 S. Ct. at 2441.

 In the instant case, there is little dispute over whether the plaintiff Association meets the first two requirements. Rather, the defendants concentrate on the third and final requirement in their motion to dismiss: "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit," Id.; or as stated in Warth : ". . . so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, . . . ." Warth, 422 U.S. at 511, 95 S. Ct. at 2212.

 The defendants explicitly assert that the plaintiffs' due process claims, and implicitly that their contract claims, do require individualized proof. Furthermore, the defendants also maintain that the plaintiffs' prayer for monetary relief, namely the rescinded salary increases, will also require individualized proof. In support of their first argument, the defendants remark that protected property interests are created and defined by state law. The defendants continue that the plaintiffs' alleged property interest is based on implied contractual rights recognized in Illinois. The defendants postulate that the nature of the implied contracts requires an inquiry into each member's intent to contract.

 The plaintiffs retort that no "state of mind" and therefore no individualized proof is necessary to establish the existence of the parties' contractual obligation. All that needs to be established, according to the plaintiffs, is that the salary increases contained in the Package were communicated to all the members of the Association.

 The court does not agree. Individualized proof will be necessary to prove the existence of the alleged contractual-type relationships whether termed as "mutually explicit understandings" or implied employment contracts. The unilateral action of the Board approving and "communicating" the Package to the administrators is certainly not enough to show the formation of a contractual relationship nor even an informal understanding. Formation of a contractual relationship requires mutual assent on the subject to which the parties are contracting. Loeb v. Gray, 131 Ill. App. 3d 793, 86 Ill. Dec. 775, 475 N.E.2d 1342 (Ill. App. 5 Dist. 1985). Even in the context of an implied employment contract, the requirements of formation are not present unless both parties intended to contract, in other words, an offer and acceptance. See Vail v. Bd. of Educ. of Paris Union Sch. Dist. No. 95, 706 F.2d 1435, 1438 (7th Cir. 1983), aff'd by equally divided court, 466 U.S. 377, 104 S. Ct. 2144, 80 L. Ed. 2d 377 (1984). Determining whether the plaintiffs were aware of and accepted the defendants' offer requires that the individual circumstances of the Association's members be revealed. For contrary to the plaintiff's argument, proof of the plaintiff's blanket offer is insufficient to prove the existence of the alleged contracts or even "understandings" without proof of the individual member's acceptance.

 Moreover, the individualized nature of the plaintiffs' claims is reflected in their prayer for monetary relief. The plaintiffs' prayer for monetary relief not only reinforces the view that individualized proof is necessary to establish the plaintiff's claims but it also provides a separate reason for requiring individualized proof.

 The defendants point out that when faced with an association seeking monetary relief on behalf of its members, courts invariably find that individualized proof is necessary and thus associational standing lacking. See Telecommunications Research v. Allnet Commun., 257 U.S. App. D.C. 1, 806 F.2d 1093 (D.C. Cir. 1986). Reid v. Dept. of Commerce, 793 F.2d 277 (Fed. Cir. 1986) (individualized proof still necessary where association not seeking damages per se but reinstatement relief and corresponding back pay). Organ. of Minority Vendors v. Ill. Cent. Gulf R.R., 579 F. Supp. 574, 596 (N.D. Ill 1983) (require individualized proof where money claims are not common to the entire membership nor shared by all to an equal degree). Pesticide Public Policy v. Village of Wauconda, 622 F. Supp. 423 (N.D. Ill. 1985) (held that an association seeking a declaration that defendants are liable for costs and expenses is tantamount to seeking damages and thus association lacks standing), aff'd, 826 F.2d 1068 (7th Cir. 1987); Vietnam Veterans of America, Inc. v. Guerdon Indus., 644 F. Supp. 951, 966 (D. Del. 1986) (damages in fraud case will require proof unique to each member); Committee of Blind Vendors v. District of Columbia, 695 F. Supp. 1234, 1238-39 (D. D.C. 1988) (held no standing for association when seeking damages for breach of contract).

 The plaintiffs respond that while it is true that no courts have allowed associational standing in circumstances where monetary relief is requested there is no per se rule against such standing. The plaintiffs continue that under the unique circumstances of this case, their request for monetary relief is of no moment for purposes of associational standing.

 The court agrees with the plaintiffs' assertion that no per se rule exists with regard to associations seeking money damages on behalf of their members, although in some quarters there are rumblings that such a rule should exist. See Telecommunications, 257 U.S. App. D.C. 1, 806 F.2d 1093, 1097-98 (Bork, J., concurring). Rather, the de facto rule against associations seeking monetary damages as a representative of its members exists because it just happens that proving the existence and extent of damages often, if not always, requires individualized proof and participation, an eventuality that robs an association of standing.

 The plaintiffs persist by arguing that the usual circumstances surrounding a request for monetary relief and precluding associational standing are not present in the instant case. In the main, the plaintiffs highlight the fact that all the members of the Association have a stake in the litigation and have agreed to let the Association pursue their interests. Just as importantly, the plaintiffs contend that any money damages are easily ascertainable.

 With regard to the unanimity of the Association's members, the court finds that certain problems associated with the preclusive effect of a damage judgment rendered to an Association could be avoided. See Telecommunication, 806 F.2d at 1097-98 (detailing problems concerning the identity of interests between the Association and its members and its ramifications on claim preclusion and res judicata).

 The fact that the Association and all the members share a single-mindedness of purpose, however, does not obviate the need for individualized proof of damages nor does the fact that such proof may be "easily ascertainable." The plaintiffs make much of the fact that the monetary relief for each individual member could be arrived at based on straightforward mathematical calculations. The plaintiffs miss the point. The form of the individualized proof, be it in-court testimony, affidavits or ...

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