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05/31/96 SUBURBAN COOK COUNTY REGIONAL OFFICE

May 31, 1996

SUBURBAN COOK COUNTY REGIONAL OFFICE OF EDUCATION AND DR. LLOYD W. LEHMAN, INDIVIDUALLY AND HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE SUBURBAN COOK REGIONAL OFFICE OF EDUCATION, PLAINTIFFS-APPELLEES, AND SUBURBAN COOK COUNTY REGIONAL OFFICE OF EDUCATION; DR. LLOYD W. LEHMAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE SUBURBAN COOK COUNTY REGIONAL OFFICE OF EDUCATION; JOSEPH KACZANOWSKI, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DEPUTY SUPERINTENDENT OF THE SUBURBAN REGIONAL OFFICE OF EDUCATION; ROBERT INGRAFFIA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ASSISTANT SUPERINTENDENT OF THE SUBURBAN REGIONAL OFFICE OF EDUCATION; CANDY V. CASH, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS ASSISTANT SUPERINTENDENT OF THE SUBURBAN COOK COUNTY REGIONAL OFFICE OF EDUCATION; BARBARA BRANCH, ON HER OWN BEHALF AND ON BEHALF OF ALL SIMILARLY SITUATED TEACHERS; BOARD OF EDUCATION OF COOK COUNTY SCHOOL DISTRICT NO. 87, ON ITS OWN BEHALF AND ON BEHALF OF ALL SIMILARLY SITUATED BOARDS OF EDUCATION, PLAINTIFFS-APPELLANTS,
v.
COOK COUNTY BOARD; JOHN H. STROGER, JR., JERRY BUTLER, ALLAN C. CARR, JOHN P. DALEY, DANNY K. DAVIS, BARCLAY FLEMING, CARL HANSEN, TED LECHOWICZ, ROBERT MALDONADO, JOSEPH MORENO, MARIA PAPPAS, HERBERT T. SCHUMAN, JR., RICHARD A. SIEBEL, PETER N. SILVESTRI, DEBORAH SIMS, BOBBIE STEELE AND CALVIN R. SUTKER, IN THEIR OFFICIAL CAPACITY AS PRESIDENT AND COMMISSIONERS OF THE COOK COUNTY BOARD; ILLINOIS STATE BOARD OF EDUCATION; AND JOSEPH SPAGNOLO, IN HIS OFFICIAL CAPACITY AS STATE SUPERINTENDENT FOR THE ILLINOIS STATE BOARD OF EDUCATION, DEFENDANTS-APPELLEES, JAMES E. RYAN, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, APPELLANT.



Appeal from Circuit Court of Cook County. The Honorable John K. Madden, Judge Presiding.

As Modified on Denial of Rehearing July 12, 1996.

The Honorable Justice Egan delivered the modified opinion of the court: Zwick, P.j., and McNAMARA, J., concur.

The opinion of the court was delivered by: Egan

MODIFIED OPINION ON DENIAL OF REHEARING

The Honorable Justice EGAN delivered the modified opinion of the court:

There are two appeals before us. The issue in the first appeal (95-3462) is the extent of the obligation of the Cook County Board (the Board) to provide funds for the Suburban Cook County Regional Office of Education (Suburban ROE); the issue in the other appeal (95-3485) is whether the Attorney General was required to represent the Suburban ROE when the Cook County State's Attorney refused to do so. The trial judge held that the Board had no obligation to provide funds for the operation of the Suburban ROE. The Suburban ROE appeals from that holding. The judge also held that the Attorney General was required to represent the Suburban ROE and appointed the law firm of Scariano, Kula, Ellch and Himes (Scariano or the Scariano firm) as Special Attorney General to represent the Suburban ROE in the trial court and on the first appeal. He denied the motion of the Suburban ROE to appoint the Scariano firm as Special State's Attorney. The Attorney General appeals from the order appointing the Scariano firm as Special Attorney General; and the Suburban ROE appeals from the order denying appointment of the Scariano firm as Special State's Attorney.

Before July 1994, the State of Illinois had been divided into numerous "educational service regions" which consisted of one or more counties. All of Cook County constituted one educational service region. Pursuant to the School Code (105 ILCS 5/1-1 et seq. (West 1992)), the chief administrative officer of the Cook County educational service region (County ESR) was designated the "Regional Superintendent of Schools." 105 ILCS 5/3-0.01(a). His salary and those of the assistant regional superintendents were paid by the State.

On August 14, 1992, the legislature abolished the office of regional superintendent of schools in the County ESR, effective August 7, 1995. 105 ILCS 5/3-0.01(b) (West 1992). All powers, duties and responsibilities of the regional superintendent of schools in the County ESR vested in the Illinois State Board of Education (ISBE). All supplies, equipment, furniture, monies held, and other items controlled by the regional superintendent of schools were to be transferred to the ISBE. 105 ILCS 5/3-0.01(b)(i)-(iii) (West 1992).)

On December 2, 1992, the legislature passed Public Act 87-1251 (Pub. Act 87-1251, eff. July 1, 1993), which amended Article 3 of the School Code to accelerate to July 1, 1994, both the abolition of the office of regional superintendent of schools for the County ESR and the transfer to the ISBE of the power of the regional superintendent of schools in the County ESR. 105 ILCS 5/3-0.01 (West 1994). On January 13, 1993, the legislature passed Public Act 88-89 (Pub. Act 88-89, eff. July 14, 1993), which amended Article 3A of the School Code, effective the first Monday of August 1995, to designate the area of Cook County outside the City of Chicago as a single educational service region. 105 ILCS 5/3A-1 (West 1994). The legislature also redesignated each educational service region as a "regional office of education." 105 ILCS 5/3-0.01 (West 1994). Thus, pursuant to these various amendments to the School Code, the portion of Cook County outside the City of Chicago became the Suburban ROE. Article 4 of the School Code (105 ILCS 5/4-1 et seq.) (West 1994), provides that the county board (1) shall "provide for the county superintendent of schools a suitable office with necessary furniture and office supplies (105 ILCS 5/4-2); (2) may "allow, when they deem it proper, reasonable traveling expenses for the office of county superintendent of schools" (105 ILCS 5/4-4); and (3) may "authorize the county superintendent of schools to employ such assistants as he needs for the discharge of his duties and fix the compensation thereof, which compensation is to be paid out of the county treasury." 105 ILCS 5/4-6. However, each of sections 4-2, 4-4 and 4-6 contains the following exemption: "On and after July 1, 1994, the provisions of this section shall have no application in any county having a population of 2,000,000 or more inhabitants." This exemption was in Public Act 88-89; it was not in those sections before. By the express terms of the exemption, therefore, these duties imposed on the Board by Article 4 would appear to be inapplicable to the defendants. The plaintiffs, however, maintain that Public Act 88-89 contains a provision which negates the effect of the exemption. This case depends on the interpretation of Public Act 88-89, which will be discussed in more detail later.

The plaintiff, Dr. Lloyd W. Lehman, is the superintendent of the Suburban ROE. He was initially appointed superintendent on September 5, 1992, when the position was still the regional superintendent of the County ESR. On July 1, 1994, as directed by section 3-0.01(i)-(iii) of the School Code, he transferred the power of his office, along with various enumerated items to the ISBE. Dr. Lehman was elected the superintendent of Suburban ROE in the November 8, 1994, general election by the voters in the area of Cook County outside Chicago; and he was sworn in on August 7, 1995. The plaintiffs Joseph Kaczanowski, Robert Ingraffia and Candy Cash were sworn in the same day; Kaczanowski as deputy superintendent and the others as associate superintendents.

The powers and authority of the superintendent of an ROE are specified in sections 3-14.1 through 3-14.25 of the School Code. (105 ILCS 5/3-14 (West 1992.) In general, he is required to exercise supervision over the school districts located within the Suburban ROE. Dr. Lehman believed that the Board was required to fund his office and staff pursuant to Article 4 of the School Code. He made requests of the Board to provide such funding. On September 6, 1995, he submitted a budget for the remaining fiscal year 1995 to the Board for their approval. The Board declined to adopt the budget and, indeed, determined that they would provide no funding for the Suburban ROE.

Pursuant to section 3A-15 of the School Code (105 ILCS 5/3A-15 (West 1992)), Dr. Lehman sought legal representation from the Cook County State's Attorney. The State's Attorney informed Dr. Lehman that the matter would be best resolved through the political process. Unsatisfied, Dr. Lehman determined that he would have to file suit against the Board. The State's Attorney declined to file this action and urged Dr. Lehman not to do so by private counsel because the State's Attorney was Dr. Lehman's legal representative. Nonetheless, Dr. Lehman obtained private counsel, the Scariano firm, who filed the complaint for him individually and in his official capacity. Also named as plaintiffs were the Suburban ROE, Kaczanowski, Ingraffia, Candy Cash and the Board of Education of School District No. 87. The defendants are the Board and the commissioners of Cook County in their official capacity; the Illinois State Board of Education and Joseph A. Spagnolo in his official capacity as State Superintendent for the Illinois State Board of Education. The complaint is primarily a mandamus action to compel the Board to provide funds for the operation of the Suburban ROE pursuant to Article 4 of the School Code.

The defendants moved to dismiss the complaint on two separate grounds: (1) under Article 4 of the School Code, they were exempt from any funding obligations; and (2) even if they had funding obligations, because Dr. Lehman is a State official and sought funding for a State office, those obligations constituted an unfunded State mandate in violation of the State Mandates Act. 30 ILCS 805/1 et seq. (West 1992). The trial judge agreed with both arguments of the Board and dismissed the complaint.

Section 3-0.01(b), as noted, provides for the abolition of the Office of Regional Superintendent in Cook County, effective July 1, 1994. After that date all powers of that office were transferred to the ISBE. Subsection (b) ends with this amendment which was in Public Law 88-89:

"Upon and after the first Monday of August 1995, references in this Code and elsewhere to education service regions of 2,000,000 or fewer inhabitants shall exclude any educational service region containing a city of 500,000 or more inhabitants and references in this Code and elsewhere to educational service regions of 2,000,000 or more inhabitants shall mean an educational service region containing a city of 500,000 or more inhabitants regardless of the actual population of the region."

It is that language at the end of subsection (b) that the plaintiffs rely upon for their argument that the exemptions contained in Article 4 do not apply.

The plaintiffs posit long-regarded rules of statutory interpretation, such as the need to avoid interpretations of statutes that would lead to absurd, inconvenient and unjust result ( Baker v. Miller, 159 Ill. 2d 249, 636 N.E.2d 551, 201 Ill. Dec. 119 (1994)) and the need to interpret a statute in order to carry out its purpose or object. Bilek v. Board of Education, 61 Ill. App. 3d 323, 377 N.E.2d 1259, 18 Ill. Dec. 623 (1978).

Sections 4-2, 4-4 and 4-6 of the School Code exempt counties with more than 2,000,000 inhabitants. Section 3-0.01 does not state that reference to counties of 2,000,000 or more inhabitants shall mean "an educational service region containing a city of 500,000 or more inhabitants."

The plaintiffs' argument is that, construing Article 4 and Public Law 88-89 together, "the language in Article 4 stating that 'the provisions of this section shall have no application in any county having a population of 2,000,000 or more inhabitants' should be read as 'a city of 500,000 or more ...


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