The opinion of the court was delivered by: Presiding Justice Hartman
Appeal from the Circuit Court of Cook County.
Honorable Sidney A. Jones, Judge Presiding.
Plaintiffs Michael Jacobson and Alvin Miller, individually and as class representatives, filed this action against defendant Board of Education of the city of Chicago (the Board), claiming they were deprived of their rights to continued employment, during a specific period, as principals in the Chicago public school system. Plaintiffs appeal from the circuit court's grant of summary judgment in favor of the Board, denial of plaintiffs' motion for summary judgment, and denial of plaintiffs' petition for leave to file an amended complaint.
Prior to the enactment of public act 85-1418 (Pub. Act 85-1418, eff. May 1, 1989) (amending Ill. Rev. Stat. 1987, ch. 122, pars. 34-84 and 34-85) (public act 85-1418), principals at Chicago public schools were appointed by the Board pursuant to section 34-84 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 34-84) (section 34-84). Following successful completion of a three year probationary period, the principals became tenured employees. *fn1 Pursuant to section 34-85 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 34-85) (section 34-85), a tenured principal could not be dismissed except for cause. *fn2 Effective May 1, 1989, the legislature enacted public act 85-1418, purporting to amend sections 34-84 and 34-85 and eliminating tenure for principals. *fn3
Prior to May 1, 1989, plaintiffs allege, they were employed as principals in the Chicago public school system and had earned tenure pursuant to section 34-84. After the enactment of public act 85-1418, plaintiffs were deemed to be serving under performance contracts which expired on June 30, 1990. Plaintiffs were not offered contract extensions by their local school councils. *fn4
On November 30, 1990, the supreme court found public act 85-1418 unconstitutional in its entirety. Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 566 N.E.2d 1283 (1990) (Fumarolo). *fn5 On May 2, 1994, plaintiffs filed a one count complaint against the Board seeking damages because they were deprived of their rights to continued employment as principals and denied salary and other employment benefits for the 1990-1991 school year pursuant to action taken under a statute (public act 85-1418) which was held unconstitutional in its entirety by the supreme court. The Fumarolo court recognized that plaintiffs had enforceable statutory rights to continued employment until such time as those rights were removed by a constitutionally valid legislative enactment, stating:
"An examination of the language of section 34-85 prior to its amendment shows that during the time that the statute was in effect, tenured principals were entitled to retain their positions until the age of compulsory retirement during good behavior and efficient service and that they could not be dismissed except for cause. Fumarolo, 142 Ill. 2d at 105 (emphasis added).
The Board unsuccessfully moved to dismiss plaintiffs' complaint in June 1996. The Board contended that plaintiffs were attempting to relitigate the issue of their lost tenure which was previously decided in Fumarolo and Pittman v. Chicago Board of Education, 64 F.3d 1098 (7th Cir. 1995) (Pittman). The Board filed a second motion to dismiss on the grounds that plaintiffs' claim was barred by the Local Governmental and Governmental Employee Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/1-101, et seq. (West 1998)). Plaintiffs responded that their cause of action sounded in contract and, therefore, the Tort Immunity Act was inapplicable. On June 6, 1997, the circuit court denied defendant's motion to dismiss as to plaintiff's claim sounding in contract only, but dismissed any claims sounding in tort.
In June 1999, the circuit court ordered the Board to "answer plaintiffs (class) interrogatories pertaining to identification of class members, their salaries, benefits and other compensation, and other information relating thereto, on or before July 6, 1999." In response to this order, on July 6, 1999, the Board sent a cover letter and an attached spreadsheet listing the names of 70 class members, their social security numbers and their salaries. *fn6 Another spreadsheet, listing a smaller number of class members was filed by the Board on August 25, 1999.
The parties filed cross-motions for summary judgment. The Board argued that because of the circuit court's June 6, 1997 order, plaintiffs could proceed only in contract and plaintiffs had not shown and could not demonstrate the existence of a contract between the parties. Plaintiffs argued that the legal issues already had been decided in their favor and that the spreadsheet tendered by the Board on July 6, 1999, was a judicial admission as to the amount of damages they sustained. The court entered a memorandum order and opinion granting the Board's motion for summary judgment and denying plaintiffs' motion for summary judgment.
Within days after the foregoing decision was rendered, and relying upon section 2-1005(g) of the Code of Civil Procedure (735 ILCS 5/2-1005(g) (West 1998)) and Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 586 N.E.2d 1211 (1992) (Loyola Academy), plaintiffs moved for leave to amend their complaint. The proposed amendment would have incorporated the same facts previously pled, and added three new theories, in three additional counts. Plaintiffs' motion was denied.
Plaintiffs first contend that the circuit court erred in granting the Board's motion for summary judgment. Specifically, plaintiffs argue that their rights under sections 34-84 and 34-85 remained in effect because those sections were not repealed by the void and unconstitutional provisions of public act 85-1418.
A motion for summary judgment is properly granted if the pleadings, depositions and admissions on file, together with any exhibits and affidavits, when construed strictly against the moving party and liberally in favor of the opponent, demonstrate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992) (Outboard Marine); Mitchell v. Jewel Food Stores, 142 Ill. 2d 152, 56 ...