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Quinn v. Board of Education of City of Chicago

Court of Appeals of Illinois, First District, Fourth Division

March 29, 2018

PATRICK QUINN, IRENE ROBINSON, CHRISTOPHER BALL, ANTWAIN MILLER, MARC KAPLAN, DANIEL MORALES-DOYLE, and JITU BROWN, Plaintiffs,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, THE ILLINOIS STATE BOARD OF EDUCATION, and THE STATE OF ILLINOIS, Defendants-Appellees, Patrick Quinn, Irene Robinson, Antwain Miller, Mark Kaplan, Daniel Morales-Doyle, and Jitu Brown, Plaintiffs-Appellants.

          Appeal from the Circuit Court of Cook County No. 16 CH 13159 The Honorable Michael T. Mullen, Judge, presiding.

          JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Ellis concurred in the judgment and opinion.

          OPINION

          GORDON, JUSTICE

         ¶ 1 In this appeal, plaintiffs, who are all Chicago residents, ask us to find unconstitutional section 34-3 of the School Code (105 ILCS 5/34-3 (West 2016)). Plaintiffs claim this statute is unconstitutional because it denies Chicago residents the ability to vote for members of their school board, while residents of all other Illinois school districts may do so.[1] Plaintiffs argue that section 34-3, which permits the mayor of Chicago to appoint the members instead, violates our state constitution's guarantee of "free and equal" elections. Ill. Const. 1970, art. Ill. § 3 ("All elections shall be free and equal.").

         ¶ 2 In this appeal, plaintiffs attack a longstanding law that has been on the books for decades.

         ¶3 As plaintiffs allege in their complaint, since 1872, when the Chicago Board of Education was first created, the mayor of the City of Chicago has appointed its members. In 1988, the General Assembly passed a law that gave Chicago citizens more input into the selection process and also included council approval of the mayor's ultimate selections. Fumarolo v. Chicago Board of Education, 142 Ill.2d 54, 94 (1990). However, the 1988 law was declared unconstitutional by our supreme court just two years later. Fumarolo, 142 Ill.2d at 100 ("the entire Act must be declared unconstitutional"). In 1995, the state legislature eliminated the requirement of city council approval. 105 ILCS 5/34-3(b) (West 2016) ("No appointment to membership on the Chicago Board of Education that is made by the Mayor under this subsection shall require the approval of the City Council."). Now, over 20 years later, plaintiffs challenge this change and seek direct election of board members by the registered voters in the City of Chicago, which has never occurred since the Chicago School Board was created almost 150 years ago.[2]

         ¶ 4 This appeal is one of three challenges to the mayor's authority to appoint the members of the Chicago School Board.

         ¶ 5 First, on October 5, 2016, these same plaintiffs filed a complaint in federal district court, which challenged section 34-3 of the School Code under various federal statutes and federal constitutional provisions. Quinn v. Board of Education of the City of Chicago, 234 F.Supp.3d 922, 928, 933, 934 (discussing federal equal protection clause (U.S. Const., amend. XIV) and Voting Rights Act (52 U.S.C. § 10101 (2012)), federal due process (U.S. Const., amend. XIV), and Civil Rights Act of 1964 (42 U.S.C. § 1983 (2012) respectively). The federal district court dismissed the complaint with prejudice on February 13, 2017 (Quinn, 234 F.Supp.3d at 936), and plaintiffs appealed to the Seventh Circuit Court of Appeals. The federal appeal has been pending for a year, and no opinion has been issued.

         ¶ 6 Second, also on October 5, 2016, plaintiffs filed this complaint, which the circuit court of Cook County dismissed on February 27, 2017, and which is the subject of this appeal.

         ¶ 7 Third, a bill was introduced in the Illinois General Assembly on February 1, 2017, which would provide substantially all the relief plaintiffs are seeking here. 100th Ill. Gen. Assem., House Bill 1774, 2017 Sess., § 5 (amending 10 ILCS 5/2A-1.2(d) to provide that, as of the year 2023, "members of the Chicago Board of Education shall be elected in a nonpartisan election"). The bill provides that "the City of Chicago shall be subdivided into 20 electoral districts by the General Assembly, " with each district represented by one member and one additional member elected at large to serve as president of the Chicago school board. 100th Ill. Gen. Assem., House Bill 1774, 2017 Sess., § 10 (amending 105 ILCS 5/34-3(b-5)). The bill passed both the House of Representatives and the Senate in May 2017. The last reported action taken on the bill was a referral on September 28, 2017, by the House to the rules committee.

         ¶ 8 Although the complaints filed in both federal and state courts made race-based allegations (Quinn, 234 F.Supp.3d at 934), the same cannot be said of the appeals. Plaintiffs have stated explicitly in their brief to this court and during oral argument that they are not raising any race-related claims in this court.[3]

         ¶ 9 Although city council approval was eliminated in 1995 when Mayor Richard M. Daley began his third term as mayor, plaintiffs chose not to sue until over 20 years later. However, whether or not this suit is politically motivated does not affect the purely legal question presented to this court, which is whether the appointment, by the mayor, violates the free and equal election clause of our state's constitution. Ill. Const. 1970, art. Ill. § 3 ("All elections shall be free and equal.").

         ¶ 10 In addition, we are not here to decide "the wisdom or unwisdom" of the legislature's choice of mayoral selection. "[T]he wisdom or unwisdom of legislative action in determining the means to be adopted to resolve an existing social problem is not for the judiciary to decide. Legislation will be upheld unless it is in violation of some constitutional limitation." Fumarolo, 142 Ill.2d at 62-63. Thus, the sole question for us is the constitutionality of the School Code provision.

         ¶ 11 For the following reasons, we do not find plaintiffs' arguments persuasive, and thus we cannot find the statute unconstitutional.

         ¶ 12 BACKGROUND

         ¶13 I. The Parties

         ¶ 14 On October 5, 2016, seven plaintiffs filed a complaint in the circuit court of Cook County against the Board of Education of the City of Chicago (Chicago School Board) and the Illinois State Board of Education and State of Illinois (state defendants). As explained below, only the state defendants filed a response brief in this appeal, and only six of the seven plaintiffs filed a notice of appeal. Christopher Ball, who was one of the original seven plaintiffs, was not named in the notice of appeal.

         ¶ 15 The lead plaintiff, Patrick Quinn, is the former governor of Illinois. The complaint in the case at bar alleges that all seven plaintiffs are Chicago residents and registered voters. The complaint further alleges (1) that four of the seven plaintiffs, namely, Antwain Miller, Daniel Morales-Doyle, Jitu Brown, and Christopher Ball, are "Chicago Public Schools parent[s]"; (2) that two of the seven plaintiffs, namely, Irene Robinson and Marc Kaplan, are "Chicago Public Schools grandparent[s]"; (3) that three of the seven plaintiffs, namely, Patrick Quinn, Daniel Morales-Doyle, and Jim Brown are Chicago property owners; and (4) that four of the plaintiffs, namely, Patrick Quinn, Irene Robinson, Marc Kaplan, Daniel Morales-Doyle, are current or former members of local Chicago school councils.

         ¶ 16 Defendant Chicago School Board is a school district in the State of Illinois. As to the State defendants, the Illinois State Board of Education is primarily responsible for administering the School Code, a portion of which is challenged in this appeal (and quoted in the next section), and the State of Illinois is responsible for adhering to its constitution, which requires elections to be free and equal. Ill. Const. 1970, art. Ill. § 3 ("All elections shall be free and equal.").

         ¶ 17 II. The Statute at Issue

         ¶ 18 The complaint in the case at bar sets forth several grounds for finding section 34-3 of the School Code (105 ILCS 5/34-3 (West 2016)) unconstitutional under our state constitution. Since this statute is the crux of this lawsuit, we provide it here in full. Section 34-3 states in full:

"(a) Within 30 days after the effective date of this amendatory Act of 1995, the terms of all members of the Chicago Board of Education holding office on that date are abolished and the Mayor shall appoint, without the consent or approval of the City Council, a 5 member Chicago School Reform Board of Trustees which shall take office upon the appointment of the fifth member. The Chicago School Reform Board of Trustees and its members shall serve until, and the terms of all members of the Chicago School Reform Board of Trustees shall expire on, June 30, 1999 or upon the appointment of a new Chicago Board of Education as provided in subsection (b), whichever is later. Any vacancy in the membership of the Trustees shall be filled through appointment by the Mayor, without the consent or approval of the City Council, for the unexpired term. One of the members appointed by the Mayor to the Trustees shall be designated by the Mayor to serve as President of the Trustees. The Mayor shall appoint a full-time, compensated chief executive officer, and his or her compensation as such chief executive officer shall be determined by the Mayor. The Mayor, at his or her discretion, may appoint the President to serve simultaneously as the chief executive officer.
(b) Within 30 days before the expiration of the terms of the members of the Chicago Reform Board of Trustees as provided in subsection (a), a new Chicago Board of Education consisting of 7 members shall be appointed by the Mayor to take office on the later of July 1, 1999 or the appointment of the seventh member. Three of the members initially so appointed under this subsection shall serve for terms ending June 30, 2002, 4 of the members initially so appointed under this subsection shall serve for terms ending June 30, 2003, and each member initially so appointed shall continue to hold office until his or her successor is appointed and qualified. Thereafter at the expiration of the term of any member a successor shall be appointed by the Mayor and shall hold office for a term of 4 years, from July 1 of the year in which the term commences and until a successor is appointed and qualified. Any vacancy in the membership of the Chicago Board of Education shall be filled through appointment by the Mayor for the unexpired term. No appointment to membership on the Chicago Board of Education that is made by the Mayor under this subsection shall require the approval of the City Council, whether the appointment is made for a full term or to fill a vacancy for an unexpired term on the Board. The board shall elect annually from its number a president and vice-president, in such manner and at such time as the board determines by its rules. The officers so elected shall each perform the duties imposed upon their respective office by the rules of the board, provided that (i) the president shall preside at meetings of the board and vote as any other member but have no power of veto, and (ii) the vice president shall perform the duties of the president if that office is vacant or the president is absent or unable to act. The secretary of the Board shall be selected by the Board and shall be an employee of the Board rather than a member of the Board, notwithstanding subsection (d) of Section 34-3.3. The duties of the secretary shall be imposed by the rules of the Board.
(c) [The board] may appoint a student to the board to serve in an advisory capacity. The student member shall serve for a term as determined by the board. The board may not grant the student member any voting privileges, but shall consider the student member as an advisor. The student member may not participate in or attend any executive session of the board." (Emphasis added.) 105 ILCS 5/34-3 (West 2016).

         ¶ 19 Section 34-3 of the School Code was amended in 2005 to add the last subsection, subsection (c), which is not at issue in this appeal. Pub. Act 94-231, § 5 (eff. July 14, 2005).

         ¶ 20 III. The Counts

         ¶ 21 The complaint in the case at bar, namely, the complaint filed in state court, alleged grounds only under our state's constitution.

         ¶ 22 The complaint alleged three counts: (1) denial of the right to vote pursuant to article I, section 2 of the Illinois Constitution (Ill. Const. 1970, art. I, § 2 ("No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.")) and article III, section 2 of the Illinois Constitution (Ill. Const. 1970, art. Ill. § 3 ("All elections shall be free and equal.")); (2) denial of due process under article I, section 2 of the Illinois Constitution (Ill. Const. 1970, art. I, § 2)[4] by the continued enforcement of section 34-3 of the School Code and by levying property taxes on plaintiffs and other Chicago taxpayers, thereby depriving them of the right to taxation approved by elected representatives; and (3) violation of home rule autonomy by adopting section 34-3 of the School Code without holding a referendum as allegedly required by article VII, section 6(f) of the Illinois Constitution (Ill. Const. 1970, art. VII, § 6(f)) ("A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law'') (Emphasis added.).

         ¶ 23 Plaintiffs' appellate brief states that "[p]laintiffs appeal only from the dismissal of Counts I and II."

         ¶ 24 For relief, both these counts seek a declaration that section 34-3 of the School Code is unconstitutional, as well as preliminary and permanent injunctive relief. The injunctive relief requested in these two counts includes;(1) "ordering the defendants to confer with the Chicago Board of Elections to develop a plan for holding elections for a [new] Board of Education" and (2) "allow[ing] defendants to continue to collect such taxation on the condition that in the interim the General Assembly will put in place or substitute by law an elected school board or other minimum of legislative accountability."

         ¶ 25 IV. Factual Allegations

         ¶ 26 The complaint makes the following factual allegations.

         ¶ 27 The complaint alleges that the first Chicago School Board was created in 1872 by the Illinois General Assembly. For over 100 years, from 1872 until 1988, the mayor appointed its members, with "the advice and consent of the City Council." Thus, as alleged by plaintiffs, there has never been, in the history of Chicago, the type of direct elections that plaintiffs seek in this appeal.[5]

         ¶ 28 The complaint also alleges that, at the time of its creation, the Chicago School Board was "accountable to the City Council *** for tax and expenditure decisions." However, in 1980, "the General Assembly placed the financial management of the Chicago public schools under the Chicago Finance Authority."

         ¶ 29 The complaint alleges that in 1988[6] the General Assembly passed the Chicago School Reform Act of 1988 (1988 Act), which created a 28-member Chicago School Board nominating commission. Five members of the nominating commission were appointed by the mayor. The remaining 23 members were parent and community representatives from local school councils. The 1988 Act also created local school councils, elected by Chicago citizens, which had the authority to appoint and remove principals.[7]

         ¶ 30 The complaint alleged that the nominating commission provided the mayor with a slate of three candidates to fill each vacant position on the Chicago School Board and that his selection had to be approved by the City Council. The complaint alleged that Mayor Richard M. Daley "refused on a number of occasions to appoint any of the nominees" of the nominating commission.

         ¶ 31 The complaint does not allege, but we may take judicial notice of the fact, that our supreme court declared the entire 1988 Act unconstitutional in Fumarolo v. Chicago Board of Education, 142 Ill.2d 54, 100 (1990).[8]

         ¶ 32 The complaint alleges that in 1995 the General Assembly passed the Chicago School Reform Amendatory Act (1995 Act), which eliminated the local school council's role in appointing board members, eliminated the nominating commission, and returned to the mayor the right to select the Chicago School Board. Pub. Act 89-0015 (eff. May 30, 1995). Under the 1995 Act, the City Council no longer confirmed the mayor's selections.

         ¶ 33 The complaint alleges that, in the 20 or more years since the 1995 Act, the Chicago public school system is on the verge of bankruptcy, the teacher's pension plan went from being fully funded to being only 52% funded in 2015, and the Chicago public school system operated at a deficit in fiscal year 2016.

         ¶ 34 The complaint also alleges: "Based on national data of big city school districts, the composition of a school board-that is, whether appointed or elected-has no correlation to academic achievement."

         ¶ 35 The complaint alleges that corruption in the school system is so severe that its chief executive officer (CEO) was facing a federal prison sentence. See Timothy McLaughlin, Former Chicago Public School Chief Sentenced for Fraud, (Apr. 28, 2017, 5:21 PM), https://www.reuters.com/article/us-chicago-education-fraud/former-chicago-public-schools-chief-sentenced-for-fraud-idUSKBNI7U3lI (last visited Mar. 13, 2018) (a federal judge sentenced the former CEO of the Chicago school system to 4V4 years in prison for her role in a scheme to steer contracts to a prior employer in exchange for kickbacks and bribes).

         ¶ 36 As discussed more fully below, since defendants filed motions to dismiss within the time allowed for a responsive pleading, there was no answer filed in response to this complaint.

         ¶ 37 V. Procedural History

         ¶ 38 On November 7, 2016, the Chicago School Board and the state defendants jointly filed a motion to extend the deadline to answer or otherwise plead, which the trial court granted on November 14, 2016. The trial court's order stated that plaintiffs had advised the court of their "intent to seek preliminary relief in advance of the April 4, 2017 election." The court ordered defendants to answer or otherwise plead by December 19, 2016.

         ¶ 39 As they had advised the court, plaintiffs moved on November 30, 2016, for a preliminary injunction to "requir[e] defendants to draft procedures for an election of the Board of Education while this suit is pending in order to allow for an election on April 4, 2017." In the alternative, plaintiffs sought a permanent injunction. On December 9, 2016, the trial court entered an order setting a briefing schedule.

         ¶ 40 On December 19, 2016, the Chicago School Board filed a combined motion to dismiss (735 ILCS 5/2-619.1 (West 2016)), seeking dismissal (1) pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2016)) for failure to state a cause of action, and (2) pursuant to section 2-619 (735 ILCS 5/2-619 (West 2016)) for lack of standing. The motion claimed that plaintiffs lacked standing because, since they had no right to vote for members of the Chicago School Board, they had no injury. The Chicago School Board also filed a separate response to plaintiffs' motion for a preliminary injunction.

         ¶41 On December 19, 2016, the state defendants filed their own combined motion to dismiss, seeking dismissal pursuant to sections 2-615 and 2-619. The state defendants sought a section 2-619 dismissal on the ground of sovereign immunity rather than standing. The state defendants' dismissal motion was combined with their response to plaintiffs' motion for preliminary relief.

         ¶ 42 On January 6, 2017, plaintiffs filed a combined response to defendants' motion and reply in support of their motion for preliminary relief. On January 17, 2017, the Chicago ...


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