Court of Appeals of Illinois, First District, Fourth Division
PATRICK QUINN, IRENE ROBINSON, CHRISTOPHER BALL, ANTWAIN MILLER, MARC KAPLAN, DANIEL MORALES-DOYLE, and JITU BROWN, Plaintiffs,
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.
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
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. 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.
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.
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
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
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.
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
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
(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
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, §
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
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.
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 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
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
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
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
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),
(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
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
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
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