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10/14/94 TOWER HILL SCHOOL DISTRICTS NO. 10

October 14, 1994

TOWER HILL SCHOOL DISTRICTS NO. 10 (ELEMENTARY) AND NO. 185 (HIGH SCHOOL), AND ODUS CHEEK, SUPERINTENDENT OF SAID DISTRICTS, PLAINTIFFS-APPELLEES,
v.
THE REGIONAL BOARD OF SCHOOL TRUSTEES FOR CLARK, COLES, CUMBERLAND, EDGAR, MOULTRIE AND SHELBY COUNTIES, AND DALE ELVERS, DEFENDANTS-APPELLANTS, AND PANA COMMUNITY UNIT SCHOOL DISTRICT NO. 8, DEFENDANT.



Appeal from Circuit Court of Coles County. No. 93MR35. Honorable Paul C. Komada, Judge Presiding.

Petition for Certification Denied November 10, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Honorable Robert W. Cook, J., Honorable Carl A. Lund, J., Honorable Frederick S. Green, J., Concurring

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Defendant Regional School Trustees for Clark, Coles, Cumberland, Edgar, Moultrie and Shelby Counties (local regional board) approved the petition of defendant Dale Elvers for the detachment and annexation of his property, pursuant to provisions of the School Code (Code) (105 ILCS 5/1-1 et seq. (West 1992)). The circuit court of Coles County sitting in administrative review reversed the action taken by the local regional board finding that it lacked jurisdiction for failure to hold a joint hearing on the petition with the regional board of the school district to which the property was to be annexed. Defendants Dale Elvers and the local regional board appeal, alleging the circuit court erred in construing sections 7-1 and 7-2 of the Code (105 ILCS 5/7-1, 7-2 (West 1992)). The Illinois State Board of Education (State Board) has filed an amicus curiae brief urging this court to reverse the circuit court's order.

On February 24, 1993, defendant Dale Elvers filed a petition with the local regional board to detach his property from Tower Hill School District Nos. 10 and 185 (Tower Hill district), located in Shelby County and lying within the educational service region of the local regional board, and annex it to the adjacent Pana Community School District (Pana district), located primarily in Christian County and lying within the educational service area of the regional board of school trustees for Christian and Montgomery Counties (Pana regional board). The petition sought detachment of all 7.65 acres of Elvers' property, with the exception of a 100-foot-wide strip running the length of the property. The petition does not indicate whether it was brought pursuant to section 7-1 or section 7-2 of the Code. Elvers, the trustees of the local regional board, and plaintiff Odus Cheek, superintendent of the Tower Hill district, were present at the hearing on the petition held April 5, 1993. Neither Pana regional board nor Pana district appeared but Pana district notified the local regional board that it had no position on the petition. Notice of the hearing was by publication; Elvers, the local regional board, and Pana district received notice by personal service. Following the presentation of evidence of the statutory factors in support of the petition, which was contested by Odus Cheek, the local regional board voted to approve the petition. The written order entered April 12, 1993, provided for the detachment of all 7.65 acres, including the 100-foot strip excepted in the petition.

Plaintiffs thereafter filed a complaint for administrative review, alleging (1) the local regional board lacked jurisdiction to act for failure to conduct a joint hearing and take concurrent action with the Pana regional board, as required by section 7-2 of the Code; and (2) the granting of the petition was against the manifest weight of the evidence for lack of compliance with the requirements of sections 7-4 and 7-6 of the Code (105 ILCS 5/7-4, 7-6 (West 1992)), including the requirement that the resulting school district boundaries be compact and contiguous. The circuit court determined that the local regional board lacked jurisdiction to act on the petition without the concurrent action of the Pana regional board and reversed the order granting the petition. It declined to reach any of the remaining issues.

The question of the application of section 7-2 of the Code was not raised by plaintiffs at the time of the hearing but was first presented to the circuit court on administrative review. However, since the interpretation of sections 7-1 and 7-2 of the Code affects the jurisdiction of the local regional board granted under the statute (see Board of Education of Hamilton County Community Unit School District No. 10 v. Regional Board of School Trustees (1984), 121 Ill. App. 3d 848, 850-51, 460 N.E.2d 100, 102, 77 Ill. Dec. 241), an objection to jurisdiction can be raised at any time. See 735 ILCS 5/3-102 (West 1992); Wolfe v. Industrial Comm'n (1985), 138 Ill. App. 3d 680, 686, 486 N.E.2d 280, 284, 93 Ill. Dec. 179.

Relevant provisions of sections 7-1 and 7-2 of the Code provide:

"Districts in one educational service region--changing boundaries. School district boundaries lying entirely within any educational service region may be changed by detachment, annexation, division or dissolution or any combination thereof by the regional board of school trustees of such region * * *." 105 ILCS 5/7-1 (West 1992).

"Districts in two or more counties--Change of boundaries. Boundaries of existing school districts lying within two or more counties may be changed by detachment, annexation, division, dissolution or any combination thereof by the concurrent action of, taken following a joint hearing before, the regional boards of school trustees of each region affected. For purposes of this Section and Section 7-6, an educational service region shall be deemed to be a region affected if any portion of the territory which the petition seeks to have detached from any school district is located in the region." (105 ILCS 5/7-2 (West 1992).)

A "county" is defined as an "educational service region." 105 ILCS 5/7-01 (West 1992).

Defendants claim that section 7-1 of the Code governs the detachment petition since the school district boundaries to be changed, Tower Hill district, lie within one educational service region. Plaintiffs claim that section 7-1 is inapplicable because it only applies when both the detaching and annexing districts lay in the same educational service region. Based on the limiting language of section 7-1 referring to districts "lying entirely within any educational service region" (105 ILCS 5/7-1 (West 1992)), we conclude that defendant Elvers could not have brought his petition pursuant to that section. Tower Hill district, from which Elvers' property is to be detached, is not the only school district whose boundaries will be changed if the detachment petition is granted; Pana district's boundaries will also be changed by the annexation of Elvers' property and it lies in a different educational service region than that of Tower Hill district. We conclude, therefore, that the circuit court did not err in finding that Elvers' petition was required to comply with the provisions of section 7-2 of the Code.

In construing the language of section 7-2, the circuit court noted initially that the first sentence appeared to be contradicted by the second, if the second sentence was viewed as a limiting definition. It then concluded that the more logical construction, on the assumption that only the Pana regional board had authority to annex Elvers' property, was that the second sentence merely ...


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