APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
547 N.E.2d 627, 191 Ill. App. 3d 31, 138 Ill. Dec. 460 1989.IL.1780
Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.
JUSTICE DiVITO delivered the opinion of the court. BILANDIC, P.J., and SCARIANO, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DIVITO
In this appeal of the order of the circuit court pursuant to administrative review, defendant Willie Box challenges his dismissal as an elementary school teacher for the Board of Education of the City of Chicago (the Board). The Illinois State Board of Education and Peter R. Meyers, named as defendants in the circuit court proceeding, have not joined in this appeal. The issues raised are: (1) whether this court has subject matter jurisdiction; (2) whether the administrative hearing officer's initial findings and decision were against the manifest weight of the evidence or contrary to law; and (3) whether defendant's conduct was irremediable.
Defendant, a tenured teacher who had been employed by the Board for approximately 16 years, was assigned, since the 1981-82 school year, to the Yates Elementary School, where he taught fifth grade. On December 18, 1985, the principal of Yates, Burton Hirsch, informed defendant that several female students in defendant's class had accused him of touching their chests, shoulders, legs, and buttocks during the fall semester of the 1985-86 school year. Hirsch conducted an investigation into the allegations on December 17-18, 1985, after which defendant was relieved of his classroom teaching duties and assigned to the district office.
On October 22, 1986, the Board brought charges and specifications against defendant and suspended him without pay pending a hearing conducted before an impartial hearing officer under the auspices of the Illinois State Board of Education, in accordance with section 34-85 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 34-85). In its request for dismissal, the Board charged defendant with irremediable conduct unbecoming a teacher and causing irreparable harm and damage to certain students. The specifications stated that defendant "had unprofessional physical contact with students, including but not limited to touching the chest and legs" of students Evelyn R., Monique T., Latasha F., Leslie C., and Maria L., each of whom was 10 or 11 years of age at the time.
The hearing was held on March 31, April 1, 6, 10, 14, and 24, 1987. The Board presented 15 witnesses, including the five students named above, two parents of two of the children, two other students in the class, school personnel involved in the investigation, a clinical psychologist, and two additional school employees who rebutted testimony by defendant. Defendant and two other teachers testified as defense witnesses. On June 29, 1987, after both parties submitted post-hearing briefs, the hearing officer found that defendant had improperly touched the students. Despite this finding, he concluded that the Board's failure to issue defendant any warning notice to remedy, prior to suspension, required defendant's reinstatement. He determined that the Board did not prove its charge of "unprofessional physical contact" and, therefore, the conduct was not irremediable. Defendant's suspension without pay was therefore reversed, and defendant was ordered reinstated with full back pay and all other benefits of employment to which he would have been entitled.
On July 27, 1987, the Board filed a complaint in the circuit court of Cook County for administrative review of the hearing officer's decision. (See Ill. Rev. Stat. 1987, ch. 110, par. 3-101 et seq.) On November 25, 1987, the circuit court issued an order which reversed the hearing officer's decision because it was contrary to law and against the manifest weight of the evidence, and remanded the matter to the hearing officer for findings in accordance with its order. On December 28, 1987, defendant filed a notice of appeal from the circuit court's decision. In response, on January 26, 1988, the Board filed a motion to dismiss the appeal, arguing it was interlocutory in nature. Defendant never responded to the motion, and this court dismissed his appeal.
On June 21, 1988, pursuant to the circuit court's remand, the hearing officer held that the Board's action in suspending defendant without pay and seeking his immediate termination was warranted by the evidence and that the behavior with which defendant was charged was irremediable. Defendant's request for reinstatement was therefore denied.
On August 3, 1988, defendant filed a motion with the circuit court to make final that court's order of November 25, 1987. The court denied the motion but, on October 2, 1988, held that it had retained jurisdiction of the matter and affirmed the hearing officer's decision. Defendant appeals from this order. I
The Board contends initially that this court lacks subject matter jurisdiction because the original circuit court order was final and defendant had abandoned his appeal, or, alternatively, that the remand was substantive and defendant failed to file a timely complaint for administrative review. In response, defendant argues that the Board, because it filed a motion to dismiss the original appeal on the grounds that it was interlocutory in nature, is judicially estopped from contending that this court does not have subject matter jurisdiction. Moreover, he maintains that he complied with the applicable provisions of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3-101 et seq.).
Defendant's response that the Board is judicially estopped from arguing lack of subject matter jurisdiction is without merit. Though the doctrine of judicial estoppel prohibits a party from asserting a position contrary to a prior position which he asserted in the same matter (Finley v. Kesling (1982), 105 Ill. App. 3d 1, 433 N.E.2d 1112), subject matter jurisdiction cannot be conferred by any form of laches, consent, waiver, or estoppel. (Jenner v. Wissore (1988), 164 Ill. App. 3d 259, 517 N.E.2d 1220; Paulik v. Village of Caseyville (1981), 100 Ill. App. 3d 573, 427 N.E.2d 213.) Moreover, subject matter jurisdiction may be challenged at any time. (Dubin v. Personnel Board (1989), 128 Ill. 2d 490, 496, 539 N.E.2d 1243.) The Board may raise lack of subject matter jurisdiction at this stage (see Dorr-Wood, Ltd. v. Department of Public ...