Quinn v. Board of Education of the City of Chicago , 2018 IL App (1st) 170834 ( 2018 )

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Quinn v. Board of Education of the City of Chicago, 2018 IL App (1st) 170834
Appellate Court PATRICK QUINN, IRENE ROBINSON, CHRISTOPHER BALL,
Caption ANTWAIN MILLER, MARC KAPLAN, DANIEL MORALES-
DOYLE, and JITU BROWN, Plaintiffs, v. THE 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).
District & No. First District, Fourth Division
Docket No. 1-17-0834
Filed March 29, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 16-CH-13159; the
Review Hon. Michael T. Mullen, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas H. Geoghegan, Michael P. Persoon, and Sean Morales-Doyle,
Appeal of Despres, Schwartz & Geoghegan, Ltd., of Chicago, for appellants.
Stephen H. Pugh and Kathleen R. Pasulka-Brown, of Pugh, Jones &
Johnson, P.C., of Chicago, for appellee Board of Education of the City
of Chicago.
Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
Solicitor General, and Christina T. Hansen, Assistant Attorney
General, of counsel), for other appellees.
Panel JUSTICE GORDON delivered the judgment of the court, with
opinion.
Justices McBride and Ellis concurred in the judgment and opinion.
OPINION
¶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. III, § 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
On appeal, plaintiffs describe the nature of their action as a suit “to require an election.”
1
Plaintiffs’ brief to this court forthrightly admits that “there has never been a right to vote for the
2
Chicago Board of Education.”
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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. III, § 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.
3
Plaintiffs’ appellate brief states: “plaintiffs have not brought a race claim.” See Hearne v. Board of
Education of the City of Chicago, 185 F.3d 770, 776 (7th Cir. 1999) (“there is nothing here to indicate
that the Illinois General Assembly structured the Chicago school reform legislation [of 1995]
specifically because it wanted to disadvantage African Americans”).
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¶ 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. III, § 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.
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(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 3, of the Illinois Constitution (Ill. Const. 1970, art. III, § 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
4
In their appellate brief, plaintiffs also make brief claims concerning other constitutional
guarantees. Ill. Const. 1970, art. III, § 4 (“[E]lections shall be general and uniform.”); Ill. Const. 1970,
-5-
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 19886 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
art. IX, § 1 (“The General Assembly has the exclusive power to raise revenue *** as limited or
otherwise provided in this Constitution.”). However, plaintiff may not add new claims for relief on
appeal. Mabry v. Village of Glenwood, 2015 IL App (1st) 140356, ¶ 15.
5
See Fumarolo, 142 Ill. 2d at 96 (“Prior to the [1988] Act, the mayor had complete discretion in
appointing the board of education, subject only to the city council’s approval.”).
6
See Fumarolo, 142 Ill. 2d at 130 (Clark, J., dissenting) (“In November 1987, United States
Secretary of Education William Bennett labeled the Chicago public schools the ‘worst in the
nation.’ ”).
7
See Fumarolo, 142 Ill. 2d at 96 (the purpose of the 1988 Act was “to give greater authority at the
local school level and to remove much of the centralized authority”).
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¶ 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, Reuters (Apr. 28, 2017),
https://www.reuters.com/article/us-chicago-education-fraud/former-chicago-public-schools-
chief-sentenced-for-fraud-idUSKBN17U31I (a federal judge sentenced the former CEO of the
Chicago school system to 4½ 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
8
Concerning the 1988 Act, our supreme court observed: “[T]here does not appear to be a
comparable statute in the United States or a comparable public education structure.” Fumarolo, 142 Ill.
2d at 83.
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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 School
Board and the state defendants each filed a reply.
¶ 43 VI. The Trial Court’s Ruling
¶ 44 On February 27, 2016, the trial court held a hearing, in which it declined to hear argument
on plaintiffs’ motion for a preliminary injunction, until it had first decided defendants’
dismissal motions. Defendants informed the trial court that the federal district court had
already ruled in their favor in the companion federal case (Quinn, 234 F. Supp. 3d at 936), and
they asked the trial court to consider the federal order as additional authority.
¶ 45 The trial court found, first, that plaintiffs had standing. The court next ruled that the
rational basis test applied, rather than the strict scrutiny test, to determine constitutionality,
explaining: “When classifications are based upon geographical or population criteria, they do
not involve inherently suspect classes and are generally subject to a rational-basis review.” In
addition, the court observed that there was no fundamental right to elect an administrative
review body, such as a school board. Thus, the court applied the rational basis test.
¶ 46 Applying the rational basis test, the trial court found that “[m]any courts, including the
Illinois Supreme Court *** have all concluded that the particular needs of the districts justifies
a population-based legislative classification.” Thus, the court found that section 34-3 of the
School Code did not violate either the right to equal protection or the right to equal elections as
guaranteed by the Illinois Constitution, and it dismissed count I pursuant to section 2-615 of
the Code of Civil Procedure.
¶ 47 Turning to count II, which concerned taxation, the trial court observed that “[t]he statute
establishes a statutory cap upon the tax rate,” that “any increases in annual rates must be
submitted to the voters pursuant to Section 34-53,”9 and that “the Board is accountable to
9
Section 34-53 of the School Code (105 ILCS 5/34-53 (West 2016)) was amended twice after the
trial court’s February 27, 2016, ruling, in order (1) to permit the Chicago School Board to levy an
additional tax to be paid, “as soon as possible after collection, directly to Public School Teachers’
Pension and Retirement Fund of Chicago and not to the Board of Education” (Pub. Act 99-521, § 10
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Chicago residents and taxpayers for all of its actions through the Mayor, who is elected and/or
potentially not re-elected, if the Mayor fails to carry out the citizens’ mandate.” For all these
reasons, the trial court found no due process violation and dismissed count II pursuant to
section 2-615 of the Code of Civil Procedure.
¶ 48 Turning to count III concerning home rule authority, the trial court summarized plaintiff’s
argument as “a referendum was required to determine if the citizens of Chicago consented to
this [1995] change.” The trial court dismissed this count pursuant to section 2-615 of the Code
of Civil Procedure, stating: “Plaintiffs might have a case if the City enacted this legislation, but
it did not. The Legislature enacted Section 34-3; therefore, no referendum was required.”
¶ 49 On February 27, 2017, the trial court entered an order that stated in full:
“This matter coming to be heard on Defendants’ 2-619.1 motions to dismiss and
Plaintiffs’ motion for a preliminary injunction; all parties having been heard; a
transcript for proceedings having been taken; and the Court being fully advised in the
premises, IT IS HEREBY ORDERED:
(1) Defendants’ motions pursuant to Section 2-615 are granted;
(2) Defendants’ motions pursuant to Section 2-619 are denied as moot;
(3) Plaintiffs’ motion for a preliminary injunction is DENIED as moot; and
(4) Plaintiffs’ complaint is dismissed with prejudice.”
¶ 50 VII. Appeal
¶ 51 On March 29, 2017, six of the seven original plaintiffs filed a timely notice of appeal on the
thirtieth day after the dismissal. In a prior opinion, we stated that the Chicago School Board
chose not to file an appellee’s brief with this court. That was incorrect, and we apologize for
the mistake.
¶ 52 ANALYSIS
¶ 53 This appeal is about the constitutionality of section 34-3 of the School Code (105 ILCS
5/34-3 (West 2016)).
¶ 54 On appeal, plaintiffs raise only two claims: first, that they, as Chicago residents, have a
fundamental right to directly elect school board members, since citizens of all other Illinois
school districts have this ability; and second, that the Illinois General Assembly may not
delegate the power to tax to a board that is not elected. For the following reasons, we do not
find these claims persuasive.
¶ 55 I. Standard of Review
¶ 56 In the case at bar, the trial court dismissed the complaint for failure to state a claim,
pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2016)).
¶ 57 The rules governing our review in this appeal are well established. A section 2-615 motion
attacks the legal sufficiency of the complaint. Tyrka v. Glenview Ridge Condominium Ass’n,
2014 IL App (1st) 132762, ¶ 33 (citing DeHart v. DeHart, 2013 IL 114137, ¶ 18). When ruling
(eff. June 1, 2017)) and (2) to increase the allowable rate for this tax from 0.383% to 0.567% (Pub. Act
100-465, § 965 (eff. Aug. 31, 2017)).
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on a section 2-615 motion, a court must accept as true all well-pleaded facts in the complaint,
as well as any reasonable inference that may be drawn from those facts. Tyrka, 2014 IL App
(1st) 132762, ¶ 33 (citing DeHart, 2013 IL 114137, ¶ 18). A trial court should dismiss a count
or a cause of action under section 2-615 only if it is readily apparent from the pleadings that
there is no possible set of facts that would entitle plaintiffs to the requested relief. Tyrka, 2014
IL App (1st) 132762, ¶ 33 (citing DeHart, 2013 IL 114137, ¶ 18). The question for the court is
whether the allegations of the complaint, when construed in the light most favorable to the
plaintiffs, are sufficient to establish the cause of action. Tyrka, 2014 IL App (1st) 132762, ¶ 33
(citing DeHart, 2013 IL 114137, ¶ 18).
¶ 58 However, Illinois is also a fact-pleading jurisdiction, and as a result, plaintiffs are required
to allege sufficient facts to bring a claim within a legally recognized cause of action. Tyrka,
2014 IL App (1st) 132762, ¶ 34 (citing Marshall v. Burger King Corp., 222 Ill. 2d 422, 429-30
(2006)). Although plaintiffs are not required to set forth evidence in a complaint, they also
cannot simply set forth conclusions. Tyrka, 2014 IL App (1st) 132762, ¶ 34 (citing Marshall,
222 Ill. 2d at 430). Mere conclusory allegations unsupported by specific facts do not suffice.
Tyrka, 2014 IL App (1st) 132762, ¶ 34 (citing Primax Recoveries, Inc. v. Atherton, 365 Ill.
App. 3d 1007, 1010 (2006)).
¶ 59 On appeal, our review of a trial court’s section 2-615 dismissal is de novo. Tyrka, 2014 IL
App (1st) 132762, ¶ 35 (citing DeHart, 2013 IL 114137, ¶ 18). In addition, de novo review is
appropriate because the resolution of this appeal turns on the interpretation of a clause of the
Illinois Constitution, which is purely a question of law. Hooker v. Illinois State Board of
Elections, 2016 IL 121077, ¶ 21.
¶ 60 De novo review means that we perform the same analysis that a trial judge would perform.
Guvenoz v. Target Corp., 2015 IL App (1st) 133940, ¶ 41. Since our review is de novo, we
may consider any basis appearing in the record. Guvenoz, 2015 IL App (1st) 133940, ¶ 41. We
may also affirm on any basis appearing in the record, whether or not the trial court relied on
that basis and whether or not the trial court’s original reasoning was correct. HBLC, Inc. v.
Egan, 2016 IL App (1st) 143922, ¶ 25; Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50
(1992).
¶ 61 II. Constitutional Issues as a Last Resort
¶ 62 Our supreme court has “repeatedly” instructed the appellate court to reach constitutional
issues “only as a last resort.” E.g. In re E.H., 224 Ill. 2d 172 (2006) (citing over 10 supreme
court opinions making this point); see also East St. Louis Federation of Teachers, Local 1220,
American Federation of Teachers, AFL-CIO v. East St. Louis School District No. 189
Financial Oversight Panel, 178 Ill. 2d 399, 408 (1997) (“A court should avoid declaring
legislation unconstitutional if the case does not require it [citation], and the power to determine
the constitutionality of a statute should only be exercised if such finding is essential to the
disposition of a case.”).
¶ 63 However, in this appeal, the complaint raises only constitutional grounds, and the parties
make only constitutional arguments. Before the trial court, defendants raised issues concerning
standing and sovereign immunity, but they do not raise these issues before us. People v.
Givens, 237 Ill. 2d 311, 323 (2010) (an appellate court should generally not search the record
for unargued and unbriefed claims to reverse a trial court’s judgment). Thus, we turn to the
constitutional issues before us. In doing so, we keep in mind Illinois Supreme Court Rule 18
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(eff. Sept. 1, 2006), which requires a court to provide more detail in its opinions when
constitutional issues are involved.
¶ 64 III. Rules of Statutory and Constitutional Interpretation
¶ 65 This appeal requires us to interpret and apply clauses of our state constitution.
¶ 66 “In the absence of a supreme court pronouncement on the issue, we turn to the plain
language of the Illinois Constitution, which is the best guide to the document’s interpretation.”
Jones v. City of Calumet City, 2017 IL App (1st) 170236, ¶ 25 (citing Cincinnati Insurance Co.
v. Chapman, 181 Ill. 2d 65, 77 (1998)).
¶ 67 “[W]e apply the same general principles to construe both statutory and constitutional
provisions.” Hooker, 2016 IL 121077, ¶ 35. “When construing a constitutional provision, our
primary purpose is to effectuate ‘ “the common understanding of the persons who adopted
it—the citizens of this state.”’ ” Hooker, 2016 IL 121077, ¶ 35 (quoting Walker v. McGuire,
2015 IL 117138, ¶ 16, quoting Kanerva v. Weems, 2014 IL 115811, ¶ 36). “If the language of
the provision is unambiguous, we must give it effect without resorting to aids of statutory
construction.” Hooker, 2016 IL 121077, ¶ 35. “Only if the provision is ambiguous will we
‘consult the drafting history of the provision, including the debates of the delegates to the
constitutional convention.’ ” Hooker, 2016 IL 121077, ¶ 35 (quoting Walker, 2015 IL 117138,
¶ 16). In addition, “ ‘[o]ne contending that language should not be given its natural meaning
understandably has the burden of showing why it should not.’ ” Hooker, 2016 IL 121077, ¶ 35
(quoting Coalition for Political Honesty v. State Board of Elections, 65 Ill. 2d 453, 464
(1976)).
¶ 68 Plaintiffs have the burden of establishing that section 34-3 of the School Code is
unconstitutional. “Parties who wish to challenge the constitutionality of a statute bear the
burden of rebutting the presumption [of constitutionality] and establishing a constitutional
violation.” East St. Louis, 178 Ill. 2d at 412; Tully v. Edgar, 171 Ill. 2d 297, 304 (1996) (“a
presumption of constitutionality”). When reviewing plaintiffs’ constitutional claims, we begin
with the presumption that the statute is constitutional, and we interpret it in a way that renders
the statute constitutional, if we “can do so reasonably.” East St. Louis, 178 Ill. 2d at 412.
¶ 69 As stated above, we will interpret the statutory section at issue the same way we do a
constitutional provision and with the same primary rule: to ascertain and give effect to the
individuals who passed it—who are, in the case of a statute, the legislators. East St. Louis, 178
Ill. 2d at 411-12; Fumarolo, 142 Ill. 2d at 96 (the “fundamental” rule is “to ascertain and give
effect to the intent of the legislature”). As with a constitutional provision, we will construe the
intent of the legislators primarily from the language of the statute itself, and we will evaluate
the statute as a whole. East St. Louis, 178 Ill. 2d at 411-12. Legislative intent is ascertained by
considering “the entire Act, its nature, its object and the consequences” of “construing it one
way or the other.” Fumarolo, 142 Ill. 2d at 96.
¶ 70 IV. Rational Basis or Strict Scrutiny
¶ 71 Plaintiffs argue that the right to an equal vote is a fundamental constitutional right, and thus
the strict scrutiny test applies. By contrast, defendants argue that there is no fundamental right
to vote for school board members and thus the rational basis test applies.
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¶ 72 Courts examining the constitutional validity of a statute will ordinarily apply the rational
basis test. Stroger, 201 Ill. 2d at 516-17; Tully, 171 Ill. 2d at 304. Under this test, a court will
uphold a statute if (1) it bears a rational relationship to a legitimate legislative purpose and
(2) it is not arbitrary or discriminatory. Stroger, 201 Ill. 2d at 517; Tully, 171 Ill. 2d at 304;
Fumarolo, 142 Ill. 2d at 74.
¶ 73 However, when the challenged statute impinges upon a fundamental constitutional right,
then a court applies strict scrutiny. Stroger, 201 Ill. 2d at 517; Tully, 171 Ill. 2d at 304;
Fumarolo, 142 Ill. 2d at 74. Under strict scrutiny, a court will find the statute constitutional
only if (1) the means employed by the legislature to achieve the stated goal were necessary to
advance a compelling state interest and (2) the statute is narrowly tailored to achieve that goal.
Stroger, 201 Ill. 2d at 517; Tully, 171 Ill. 2d at 304-05; Fumarolo, 142 Ill. 2d at 73. A statute is
narrowly tailored if it uses the least restrictive means to achieve the stated legislative goal.
Stroger, 201 Ill. 2d at 517; Tully, 171 Ill. 2d at 305; Fumarolo, 142 Ill. 2d at 73.
¶ 74 V. Not a Fundamental Right
¶ 75 Two propositions are equally true in relation to this question. First, if an election is held,
then an Illinois citizen has a free and equal right to vote in it. That right has been described as
follows: “ ‘[W]hen a public office must be filled by election, *** the method used shall be
reasonably designed to achieve the objective that the “vote of any citizen is approximately
equal in weight to that of any other citizen in the State.” ’ ” Stroger, 201 Ill. 2d at 517 (quoting
Eastern v. Canty, 75 Ill. 2d 566, 577-78 (1979), quoting Reynolds v. Sims, 377 U.S. 533, 579
(1964)). This principle has often been described as the one-person, one-vote doctrine and
concerns the equality of votes in an existing election. Stroger, 201 Ill. 2d at 517; Fumarolo,
142 Ill. 2d at 73 (the one-person, one-vote rule forbids having “votes of unequal weight” in any
given election). Thus, when a public office must be filled by election, an Illinois citizen has a
fundamental right to an equal vote in it. Stroger, 201 Ill. 2d at 517; see also Tully, 171 Ill. 2d at
308 (when the people have chosen their representative in a valid election, an act interfering
with the result “implicates the fundamental right to vote”).
¶ 76 A second, and equally true, proposition is that an election does not always have to be held
to fill a public office. Both the United States Supreme Court and the Illinois Supreme Court
have long “recognized the constitutionality of filling offices by appointment, rather than
election.” Stroger, 201 Ill. 2d at 518 (discussing United States Supreme Court cases); East St.
Louis, 178 Ill. 2d at 413 (a school board is “subject to the will of the legislature,” which has the
discretion to formulate a board’s character); Tully, 171 Ill. 2d at 312 (“The legislature could
certainly provide that, upon the expiration of the terms of office of the currently elected
trustees, successor trustees will be appointed rather than elected.”).
¶ 77 The second proposition may render the first proposition irrelevant in certain instances. As
our supreme court has explained, “where a body is appointed and not elected, there need not be
compliance with the one person, one vote rule.” Fumarolo, 142 Ill. 2d at 98.10
¶ 78 In sum, plaintiffs are not claiming that they lack the right to an equal vote in an existing
election but rather that an election must be created for them to vote in. Plaintiffs claim that, if
most Illinois residents have the ability to directly elect their school boards, then Chicago
10
See also Fumarolo, 142 Ill. 2d at 114 (Ryan, J., concurring) (“if the governing group of the entity
created by the legislature is to be elected, then the ‘one man, one vote’ rule applies” (emphases added)).
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residents should have a direct election too.11 In contrast, defendants argue that a direct election
is not required and appointment by an elected representative is constitutionally permissible.
¶ 79 What is at stake here is not a right to vote but the right to have a court order an election. The
issue here is whether this public office must be filled by election. See Stroger, 201 Ill. 2d at
517. Decades ago, our supreme court answered this question in the negative, stating “no
resident of a school district has an inherent right of franchise insofar as school [board] elections
are concerned.” (Internal quotation marks omitted.) Latham v. Board of Education of the City
of Chicago, 31 Ill. 2d 178, 186 (1964); see also Spaulding v. Illinois Community College
Board, 64 Ill. 2d 449, 456 (1976) (under the 1970 Constitution, as under the 1870 Constitution,
“[n]o resident of a school district” has “an inherent right of franchise” to “school elections”).
¶ 80 The free and equal election clause provides: “All elections shall be free and equal.” Ill.
Const. 1970, art. III, § 3. Section 3 is identical to article II, section 18, of the 1870 Constitution,
which was in effect when the mayorally appointed Chicago School Board was first created. Ill.
Const. 1870, art. II, § 18 (“All elections shall be free and equal.”).12 The clause does not state
that elections must be held. It states that “all elections” that are held must be “free and equal.”
¶ 81 In support of their argument that the ability to elect a school board implicates a
fundamental right, plaintiffs cite three cases that all involved the election of school officials:
(1) Fumarolo, 142 Ill. 2d at 100, in which the supreme court found unconstitutional the prior
version of the statute in front of us; (2) East St. Louis, 178 Ill. 2d at 415, 422, in which the
supreme court found that the right to vote was not implicated by a statute permitting the
removal of an elected school board; and (3) Tully, 171 Ill. 2d at 303-04, in which the supreme
court found that the legislature’s decision to change a university board of trustees from elected
to appointed was constitutional. However, all three cases involved existing elections and
whether the right to vote in an existing election was impinged. None of those cases involved
the threshold issue before us, which is whether this “ ‘public office’ ” requires an election
(Stroger, 201 Ill. 2d at 517 (quoting Eastern, 75 Ill. 2d at 577-78)) and whether this court
should order an election to be held for this office for the first time in the history of Chicago.
¶ 82 Since we must interpret a document as a whole, we turn to other provisions in our
constitution to see if they clarify this issue. City of Chicago v. Soludczyk, 2017 IL App (1st)
162449, ¶ 21 (a consideration of the “overall structure” is “helpful” to place individual
provisions “in context”). Section 8 of article VII of the Illinois Constitution, which governs
local government, specifically provides that “school districts *** shall have only powers
granted by law” and that “[t]he General Assembly shall provide by law for the selection of
officers” of school districts. Ill. Const. 1970, art. VII, § 8. Section 8 does not in any way limit
the General Assembly’s power to provide “for the selection” of school district officers. Ill.
11
According to the United States Census Bureau, 21%, or roughly one-fifth, of Illinois residents
live in Chicago. United States Census Bureau, Quick Facts: Chicago City, Illinois
(https://www.census.gov/quickfacts/fact/table/chicagocityillinois/PST045216) (last visited Mar. 14,
2018) (population estimate of Chicago, as of July 1, 2016, was 2,704,958); United States Census
Bureau, Quick Facts: Illinois (https://www.census.gov/quickfacts/IL) (last visited Mar. 14, 2018)
(population estimate of Illinois, as of July 1, 2016, was 12,801,539).
12
The 1870 Constitution specifically delegated to the General Assembly the power to establish a
“system of free schools.” Ill. Const. 1870, art. VIII, § 1 (“[t]he General Assembly shall provide a
thorough and efficient system of free schools”).
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Const. 1970, art. VII, § 8. The subsequent use of the word “selected” in article X, which
governs education, sheds light on the meaning of the word “selection” in article VII. Section 2
of article X creates a State Board of Education, and specifies that its members may be “elected
or selected.”13 Ill. Const. 1970, art. X, § 2. Since both words are used, the word “selected”
must mean something different or more than simply “elected,” otherwise the use of both words
would be superfluous. Our constitution thus specifically approves the selection, by a means in
addition to and other than election, of “school district[ ]” “officers” Ill. Const. 1970, art. VII,
§ 8.
¶ 83 Probably in light of the above constitutional provisions, plaintiffs do not argue that a
statewide ban on all school board elections would be unconstitutional.14 They explain that the
reason that they are attacking the 1995 Act is that it eliminated city council approval, which
they claim provided more direct voter control than mayoral approval alone. As a result, what
they are attacking is the means by which the General Assembly chose to accomplish voter
input, in essence, arguing that the means chosen by the General Assembly—mayoral
approval—is not closely enough tied to voter approval, whereas—in their opinion—council
approval was. Thus, the issue, as they frame it, is one of whether the means, of mayoral
approval, is rationally related to voter approval. This question is a question of rational basis,
not a fundamental right. As our supreme court has previously found, “the 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.” Fumarolo, 142 Ill. 2d at 62-63.
¶ 84 Plaintiffs argue that treating Chicago differently violates our constitution. However, our
constitution provides for differing rules for Cook County, in which Chicago is located, with
respect to county boards, county officers, and home rule units (Ill. Const. 1970, art. VII,
§§ 3(c), 4(b), 6(f)), thereby recognizing the uniqueness of our state’s most populous city and
the need for differing rules to govern it. This is similar to the state of New York and New York
City, where although most school districts in New York state are controlled by elected school
boards, the New York City school system is not. Running for the School Board, N.Y. State
School Boards Ass’n, http://www.nyssba.org/about-nyssba/running-for-the-school-board/
(last visited Mar. 14, 2018) (“Except for those in Yonkers and New York City, board members
are elected.”). In New York City, the school system has been under the control of the mayor
since 2002. Mayoral Control of New York City Public Schools Extended 2 Years, Eyewitness
News ABC7NY (June 29, 2017) http://abc7ny.com/education/mayoral-control-of-nyc-public-
schools-extended-2-years/2164249/. As our supreme court has previously observed, “most
large cities,” like New York and Chicago, have “serious problems in [their] public school
system.” Fumarolo, 142 Ill. 2d at 61.
¶ 85 All these reasons lead us to conclude that the rational basis test applies, to the detriment of
plaintiffs, and the cases cited by plaintiffs do not persuade us otherwise.
¶ 86 First, in East St. Louis, our supreme court held that the right to vote was not implicated by
a statute that permitted the removal of an entire, elected school board (East St. Louis, 178 Ill.
2d at 422) and that the statute was not subject to strict scrutiny (East St. Louis, 178 Ill. 2d at
13
Section 2 provides that the “manner of election or selection shall be provided by law.” (Emphasis
added.) Ill. Const. 1970, art. X, § 2.
14
See Hearne, 185 F.3d at 774 (“the Illinois statute books are riddled with laws that treat
communities with more than 500,000 residents—i.e., Chicago—differently from smaller ones”).
- 14 -
413). East St. Louis involved a state statute that permitted a financial oversight panel to remove
an entire elected school board if the board failed to follow the panel’s orders. East St. Louis,
178 Ill. 2d at 412. In holding that voters had no right to object, our supreme court explained
that a school board is “subject to the will of the legislature.” East St. Louis, 178 Ill. 2d at 413.
“The legislature has the discretion to formulate the character, function, and duties of school
boards.” East St. Louis, 178 Ill. 2d at 413-14. That discretion included the ability to enact, prior
to the board’s election, a statute that also permitted their removal in certain circumstances.
East St. Louis, 178 Ill. 2d at 414.15
¶ 87 The East St. Louis opinion does not support plaintiff’s case; it undermines it. In East St.
Louis, as in the case at bar, the school board was “subject to the will of the legislature,” which
determined that it should be appointed rather than elected. See East St. Louis, 178 Ill. 2d at 413.
As in East St. Louis, the legislature exercised its “discretion to formulate the character,
function, and duties” of the school board and determined that it should be appointed. East St.
Louis, 178 Ill. 2d at 413-14. If the General Assembly is permitted to enact a statute that
authorizes the removal of an entire elected school board, how can we say that it is prohibited
from choosing not to authorize an election in the first place?
¶ 88 The East St. Louis opinion also found that the plaintiffs’ equal protection claims had no
merit. The East St. Louis plaintiffs had alleged that the statute at issue “violate[d] equal
protection because it treats the voters of financially troubled school districts differently from
voters living in financially stable districts.” East St. Louis, 178 Ill. 2d at 422. This claim is
similar to plaintiffs’ claim here, in that plaintiffs claim that Chicago voters are being treated
differently than voters in other districts, and plaintiffs’ complaint makes allegations about the
financial difficulties of Chicago schools. The East St. Louis opinion rejected this type of claim,
observing that the East St. Louis school district at issue was not being treated differently from
any other district that was “similarly situated.” East St. Louis, 178 Ill. 2d at 423. The court
found that what happened with other financially stable school districts was completely
“immaterial, because those districts are not similarly situated.” East St. Louis, 178 Ill. 2d at
423. In evaluating whether a district was “similarly situated,” the court employed the
legislature’s distinction between “financially troubled” and “financially stable” districts. East
St. Louis, 178 Ill. 2d at 422. Similarly, in the case at bar, the legislature has concluded that no
other district is “similarly situated” to Chicago. East St. Louis, 178 Ill. 2d at 423. Plaintiffs
have alleged no facts showing that Chicago is like any other district in the state. Where, as in
this case, plaintiffs have removed any race claims from this appeal, we cannot find that the
policy decision by the legislature, about who is and who is not similarly situated, violates equal
protection.16
¶ 89 Second, the Tully case also does not support plaintiffs’ argument for applying strict
scrutiny. In Tully, as in the case at bar, the legislature passed an act providing that certain
15
Our supreme court held that while the statute was facially constitutional, it was unconstitutional
as applied to the existing school board members because they had a property interest in their continued
employment (East St. Louis, 178 Ill. 2d at 418) and they did not receive prior notice and a
pretermination hearing as due process required (East St. Louis, 178 Ill. 2d at 421-22).
16
See Fumarolo, 142 Ill. 2d at 71 (the protections offered by the free and equal clause and the equal
protection clause of our state constitution “are in effect those of the equal protection clause of the
fourteenth amendment”).
- 15 -
offices would be appointed rather than elected. Tully, 171 Ill. 2d at 303-04, 313. Specifically,
the statute in Tully provided that the nine elected trustees of the University of Illinois would be
replaced by trustees appointed by the governor. Tully, 171 Ill. 2d at 304. Our supreme court
found that the legislature’s decision to change the board of trustees from elected to appointed
positions was constitutional. Tully, 171 Ill. 2d at 313.17 The court did not apply strict scrutiny
to this question and found merely that this part of the act “satisfie[d] its apparent objective.”
Tully, 171 Ill. 2d at 313.
¶ 90 The court found unconstitutional only “the provision removing the elected trustees from
office midterm.” Tully, 171 Ill. 2d at 313. The court explained that this part of the act
implicated the right to vote because it nullified the votes already cast in a previously held and
valid election. Tully, 171 Ill. 2d at 307; East St. Louis, 178 Ill. 2d at 414 (discussing Tully).
Since it voided the effect of an already held election, that part of the act merited strict scrutiny,
which the Act did not pass. Tully, 171 Ill. 2d at 309. “When the people have chosen their
representatives in a valid election, legislation that nullifies the people’s choice by eliminating
the right of the elected official to serve implicates the fundamental right to vote.” Tully, 171 Ill.
2d at 308.
¶ 91 Unlike the unconstitutional provision in Tully, the act in the case at bar did not nullify the
result of a previously held election because no election was required. Similar to the
constitutional provision in Tully, it was the result of the legislature’s constitutional decision to
make an office appointed rather than elected, which selection is subject only to the rational
basis test. See also Stroger, 201 Ill. 2d at 518 (“no constitutional reason exist[s] why state or
local officers of a nonlegislative character may not be chosen by appointment, rather than
through election”).
¶ 92 Third, in Fumarolo, our supreme court found unconstitutional the 1988 Act, which was the
predecessor to the 1995 Act at issue before us. Fumarolo, 142 Ill. 2d at 100. The 1988 Act
created local school councils that were elected, and in the council elections, the votes of
parents were weighted more heavily than the votes of other citizens. Fumarolo, 142 Ill. 2d at
63, 90. Explaining why strict scrutiny was necessary, our supreme court stated: “Absent a
showing that an elected body serves a special limited purpose, a restriction which operates to
dilute a citizen’s vote must meet a strict scrutiny test of justification.” (Emphasis added.)
Fumarolo, 142 Ill. 2d at 89-90. In other words, when a statute dilutes a citizen’s vote in an
existing election for “an elected body,” strict scrutiny applies. Fumarolo, 142 Ill. 2d at 89-90.
¶ 93 However, the supreme court found that appointment of the Chicago School Board—the
question before us—created “no constitutional question.” Fumarolo, 142 Ill. 2d at 95. In the
1988 Act under review in Fumarolo, local school councils elected members to subdistrict
councils, which, in turn, elected members to a school board nominating commission, which
presented candidates to the mayor, who then selected from among these candidates for the
Chicago School Board. Fumarolo, 142 Ill. 2d at 64, 94. The court found that, since the election
of the local school councils was unconstitutional, so was the process for selecting the Chicago
School Board. Fumarolo, 142 Ill. 2d at 99. However, the court explained that “no
constitutional question” would arise if “the mayor and city council, who represent all
17
See also Tully, 171 Ill. 2d at 312 (“The legislature could certainly provide that, upon the
expiration of the terms of office of the currently elected trustees, successor trustees will be appointed
rather than elected.”).
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residents” had “complete discretion in selecting the members of the board.” Fumarolo, 142 Ill.
2d at 95. Similarly, in the case at bar, since the mayor, “who represent[s] all residents,” has
“complete discretion in selecting the members of the board,” there is no constitutional question
here. Fumarolo, 142 Ill. 2d at 95. Like the other two cases cited by plaintiffs, Fumarolo also
does not support their argument for strict scrutiny. See also Stroger, 201 Ill. 2d at 522
(applying the rational basis test to determine the constitutionality of the appointment process
for regional transportation authority (RTA) directors).
¶ 94 Plaintiffs claim that the case at bar is different because, here, there is no city council
approval, and the city council is more directly tied to the voters than the mayor. We fail to see
how the council is more directly tied to the voters than the mayor when they are both elected by
the voters.18 In addition, this is more a question of the means chosen by the legislature than
whether there is a fundamental right. Nowhere does the constitution provide a fundamental
right to council approval as opposed to mayoral approval. In Fumarolo, our supreme court
found that, “where the State chooses to select members of an official body by proper
appointment rather than by election, the fact that each official does not ‘ “represent” the same
number of people does not deny those people equal protection of the laws.’ ” Fumarolo, 142
Ill. 2d at 98-99 (quoting Hadley v. Junior College District of Metropolitan Kansas City, 397
U.S. 50, 58 (1970)). Similarly, in the case at bar, the fact that each council member represents
a smaller number of people than the mayor does not deny these people equal protection of the
laws when the mayor selects. Thus, we do not find this argument persuasive.
¶ 95 VI. Rational Basis
¶ 96 For the reasons explained above, we apply the rational basis test, which is the test that
courts ordinarily apply when determining the constitutional validity of a statute. Stroger, 201
Ill. 2d at 516-17; Tully, 171 Ill. 2d at 304; see also Hearne, 185 F.3d at 774 (“the proper test
under the Equal Protection Clause for [a] geographical discrimination argument is whether the
legislature had a rational basis for devising a separate [school] system for Chicago”).
¶ 97 We can think of a number of reasons19 why the General Assembly had a rational basis for
treating Chicago differently.20 With a city as large as Chicago, if school board members are
18
See Quinn, 234 F. Supp. 3d at 934 (considering the same issue under the federal due process
clause, the federal district court in the companion federal action could find “no persuasive reason to
distinguish, for due process purposes, between taxation by a Board accountable to the City Council and
taxation by a Board accountable to the mayor”); Stroger, 201 Ill. 2d at 513, 522 (where the county
commissioners authorized to appoint four RTA directors were themselves “constitutionally elected,”
the appointments did “not abridge plaintiffs’ fundamental constitutional right to vote,” even though
only the suburban commissioners were allowed to appoint and the Mayor appointed the four RTA
directors on behalf of Chicago).
19
See Spaulding, 64 Ill. 2d at 457 (after listing possible reasons that could constitute a rational basis,
the supreme court remarked: “The legislature in its wisdom may have considered these and other
differences sufficient to warrant the classification for the purpose of different treatment. *** As long as
these substantial differences exist and bear a rational relationship to the subject of the legislation, the
classification is not violative of equal protection.” (Emphasis added.)).
20
Cf. Tully, 171 Ill. 2d at 311 (“There is some evidence in the record that the legislature determined
that the quality of the Board of Trustees [of the University of Illinois] would be higher if the trustees
were appointed, rather than elected.”).
- 17 -
elected from different neighborhoods, the result could be a balkanization of the school system,
with members worrying more about the individual district that elected them rather than the city
as a whole. Wealthy neighborhoods might be resistant to an allocation of resources to where
they are most needed. Mayoral control makes it easier to implement wholesale changes or a
reallocation of resources across neighborhood lines, because the mayor is obliged to look at the
city as a whole. With the quantity of moving parts in a big city, it may be difficult for voters to
know exactly who is to blame if things are not working. With the board appointed by the
mayor, it is easy to know who to blame—the mayor—and voters may show any displeasure
they may have at the polls every four years.
¶ 98 Plaintiffs’ complaint makes no claims, whatsoever, that the academic performance of
students in Chicago declined in the two decades since 1995, when the mayor assumed
exclusive control over the board, as compared to prior years. See Fumarolo, 142 Ill. 2d at 90
(“education is a compelling State interest”); Ill. Const. 1970, art. X, § 1 (“[a] fundamental goal
of the People of the State is the educational development of all persons”). In fact, plaintiffs’
complaint alleges that there is no correlation at all between academic achievement and whether
a school board is appointed or elected. Plaintiffs’ appellate brief concedes that “student
outcomes at Chicago Public Schools have improved recently according to some measures.” If
these two statements are true, then this court cannot call the legislature’s choice irrational. We
are not saying that this is, or is not, the best plan, but we do not have to decide that question.
Whether it is or is not the best possible plan, it is certainly not irrational, and plaintiffs do not
argue that it is. See Stroger, 201 Ill. 2d at 523 (in finding that the RTA appointment process
passed the rational basis test, the court observed that it was the legislature’s job “to balance the
varying interests of the diverse region to be served by the RTA”).
¶ 99 On this same issue, our supreme court has previously found:
“[T]his court takes judicial notice that the problems inherent in the supervision and
management of a school system in a metropolitan area of 500,000 or more, and
particularly, in the city of Chicago, are far more complex and may well require
different modes of operation than a system in an average-size district. The intricacies of
a metropolitan school district of this magnitude require an especially high degree of
competence in the members of the Board. The legislature has determined that such
personnel can best be obtained as Board members in large cities having a population of
over 500,000 by the appointive process rather than by a general city election, and has so
provided ***. Whether or not the General Assembly has chosen the best method to
accomplish an objective is a legislative and not a judicial question.” Latham, 31 Ill. 2d
at 184.21
¶ 100 Thus, we cannot find section 34-3 of the School Code (105 ILCS 5/34-3 (West 2016))
unconstitutional.
21
See also Hearne, 185 F.3d at 774-75 (“[w]ith respect to public schools, it was entirely rational for the
[Illinois] legislature to believe that the logistics of running a school system designed to serve” the number
of students enrolled in Chicago was “far different from those implicated in systems serving less than a tenth
of that number”).
- 18 -
¶ 101 VII. Taxation
¶ 102 Plaintiffs’ second claim is that the Illinois General Assembly may not delegate the power
to tax to a board that is not elected and that such a delegation violates due process. Their
appellate brief argues: “What plaintiffs contend is that it is unconstitutional to have taxation
without any representation through a legislative body, directly or indirectly.” For the following
reasons, we do not find plaintiffs’ taxation claim persuasive.
¶ 103 Plaintiffs argue that, in 1995, the legislature removed any check on the Board’s ability to
tax, except for a cap of 4% (105 ILCS 5/34-53 (West 2016)) and “[t]hat cap—set long ago in
1995—is arbitrary in light of the changed conditions today,” particularly “the financial crisis
that the Board now faces but did not face at the time.”
¶ 104 However, in 2016 and again in 2017, the legislature increased the amount that the Chicago
School Board could levy, in light of the financial problems that the board was facing. In 2016,
the General Assembly authorized the Chicago School Board to “levy annually, upon all
taxable property located within the district, a[n additional] tax at a rate not to exceed 0.383%.”
Pub. Act 99-521, § 10 (eff. June 1, 2017) (amending 105 ILCS 5/34-53). Then again in 2017,
the General Assembly increased this additional tax from 0.383% to 0.567%, stating:
“Beginning with the 2017 taxable year, for the purpose of making an employer contribution to
the Public School Teachers’ Pension and Retirement Fund of Chicago, the board may levy
annually, upon all taxable property within the district, a tax at a rate not to exceed 0.567%.”
Pub. Act 100-465, § 965 (eff. Aug. 31, 2017) (amending 105 ILCS 5/34-53).
¶ 105 These amendments show that the Chicago School Board’s taxing authority is under the
scrutiny and control of a legislative body, namely, our state legislature. The factual premise of
plaintiffs’ claim, that the state legislature has not considered the Chicago School Board’s
taxing authority in 20 years, is simply not accurate. Plaintiff’s claim of “taxation without any
representation through a legislative body, directly or indirectly” is similarly not accurate.
There is representation through a legislative body, namely, the state legislature who regulates
the tax levy rates.
¶ 106 The 4% cap which plaintiffs consider inadequate22 is contained in section 34-53 of the
School Code and states: “The maximum rate for educational purposes shall not exceed
4.00%.” 105 ILCS 5/34-53 (West 2016). By contrast, the taxes that were just authorized, also
by section 34-53, state that they are “for the purpose of making an employer contribution” to
the pension fund, rather than for educational purposes. Pub. Act 100-465, § 965 (eff. Aug. 31,
2017) (amending 105 ILCS 5/34-53).
¶ 107 To the extent that plaintiffs are claiming that the 4% cap on educational purposes set by the
legislature is arbitrary and unrelated to present needs,23 the legislature could have changed that
cap, if it saw fit, when it amended the same exact statutory section—twice in the last two years.
A policy decision about the appropriate taxing level for a particular school board is better left
to the legislature, not the courts. Fumarolo, 142 Ill. 2d at 62-63 (“the 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”).
22
Plaintiffs complain that, “[u]nlike other citizens, they are not entitled to raise the cap above 4
percent.”
23
Plaintiffs’ appellate brief argues: “There is no finding that the 4 percent cap has any relation to the
financial needs of the public schools twenty years later.”
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¶ 108 In support of this second claim, plaintiffs rely primarily on two Illinois Supreme Court
cases: Latham, 31 Ill. 2d 178, and Hoogasian v. Regional Transportation Authority, 58 Ill. 2d
117 (1974).
¶ 109 In Latham, as in the case at bar, plaintiffs were Chicago residents and voters who claimed
that the mayoral appointment of the Chicago School Board was unconstitutional. Latham, 31
Ill. 2d at 180. In Latham, plaintiffs made almost identical claims to the claims made here,
which our supreme court rejected. The Latham plaintiffs claimed that appointment (1) denied
them equal protection “because it deprive[d] them of the right to vote for members of the
Board of Education which franchise is given residents of smaller districts” (Latham, 31 Ill. 2d
at 185) and (2) led to taxation without representation (Latham, 31 Ill. 2d at 113).24 In Latham,
our supreme court rejected both of these claims, as we do here.
¶ 110 First, in rejecting the right to vote claim, 25 our supreme court explained that equal
protection does not “prevent a State from adjusting its legislation to differences in situation and
to that end to make a justifiable classification.” Latham, 31 Ill. 2d at 185. “ ‘A statute which
applies to one city, only, does not deny the equal protection of the laws where it is based on
some real distinction between the particular city and the other territory of the State.’ ” Latham,
31 Ill. 2d at 186 (quoting Weksler v. Collins, 317 Ill. 132, 138 (1925)). Our supreme court
found that Chicago was unique, with “far more complex” school issues than other districts
(Latham, 31 Ill. 2d at 184), and that Illinois citizens had no “inherent right” to elections for
school board members (Latham, 31 Ill. 2d at 186).
¶ 111 Although these findings were made decades ago, they still apply with equal force to the
case at bar. Chicago is still a unique city in our state, and the 1970 Constitution, which took
effect after Latham, still does not provide an inherent right to school board elections. With
respect to a school board election, a citizen’s “right to vote therein is purely a permissive one
bestowed by legislative grace in furtherance of the policy of the legislature.” Latham, 31 Ill. 2d
at 186; see also Ill. Const. 1970, art. VII, § 8 (“school districts” shall have the “powers granted
by law”).
¶ 112 In addition, the Latham plaintiffs claimed, as do plaintiffs here, that taxation “by the Board,
whose members are appointed rather than elected, constitutes an unlawful exercise of the
power to tax.” Latham, 31 Ill. 2d at 180. 26 First, the supreme court disagreed with the
24
Specifically, plaintiffs claimed that the Chicago School Board’s taxing authority violated section
9 of article IX (Ill. Const. 1870, art. IX, § 9) of the version of the Illinois Constitution then in effect.
Latham, 31 Ill. 2d at 180. Section 9 provided: “The general assembly may vest the corporate authorities
of cities, towns and villages, with power to make local improvements by special assessment or by
special taxation of contiguous property, or otherwise. For all other corporate purposes, all municipal
corporations may be vested with authority to assess and collect taxes; but such taxes shall be uniform in
respect to persons and property, within the jurisdiction of the body imposing the same.” Ill. Const.
1870, art. IX, § 9. Then, as now, article IX was titled “Revenue.” However, section 9 is no longer part
of article IX. By contrast, our current constitution states that “school districts” shall have the “powers
granted by law” by our legislature, which the 1870 Constitution did not state. Ill. Const. 1970, art. VII,
§ 8.
25
The right to vote claim was count III in the Latham plaintiffs’ complaint. Latham, 31 Ill. 2d at
185.
26
The taxation claims in Latham were in counts I (Latham, 31 Ill. 2d at 180) and IV (Latham, 31 Ill.
2d at 186).
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plaintiffs’ interpretation of the then-governing statute. Latham, 31 Ill. 2d at 180-81. The
plaintiffs alleged that the statute gave the board complete control over setting taxes. Latham,
31 Ill. 2d at 180. Disagreeing with that allegation, the court observed that, under the
then-governing statute, “not a penny of school taxes will be forthcoming without the adoption
by the city council of an ordinance levying the tax.” Latham, 31 Ill. 2d at 181-82. Plaintiffs in
the case at bar repeat that quote, but all that quote establishes is that the state statute at that time
was different from the present one and that the Latham court rejected plaintiffs’ “factual
allegations” concerning the board’s power. Latham, 31 Ill. 2d at 182.
¶ 113 The Latham court went on to say that “[t]he legislature is mandated by the constitution of
Illinois to establish a system of free schools for all” and “in furtherance of such legitimate
legislative responsibilities the General Assembly may delegate to such agencies as it sees fit.”
Latham, 31 Ill. 2d at 186. The Latham court rejected the plaintiffs’ taxation claim, “since the
Board’s functions and powers are expressly defined in article 34 [of the School Code], as are
the maximum rates at which taxes may be levied.” Latham, 31 Ill. 2d at 187. Similarly, in the
case at bar, the Board’s functions and powers are still expressly defined by the legislature in
article 34 of the School Code, as are the maximum rates at which taxes may be levied. As a
result, we are no more persuaded by this claim than the Latham court was.
¶ 114 In support of their taxation claim, plaintiffs also cite Hoogasian. At issue in Hoogasian
was an act passed by the legislature to create a RTA in six counties, including Chicago and its
suburbs. Hoogasian, 58 Ill. 2d at 120. The act required a referendum election27 in the six
counties in order to authorize the creation of the RTA. Hoogasian, 58 Ill. 2d at 120-21. After
the referendum was held authorizing the RTA, the Hoogasian plaintiffs challenged the election
and the act on numerous grounds, including a claim that the act granted the RTA “the
unfettered right to levy taxies.” Hoogasian, 58 Ill. 2d at 129-30. First, the supreme court
observed that the legislature may constitutionally “authorize others to do things which it might
properly do but cannot do as understandingly or as advantage[e]ously itself.” Hoogasian, 58
Ill. 2d at 130.
¶ 115 Next the court listed the three taxes that the act authorized and observed that two of the
taxes had a cap, which was “a rate not to exceed five percent of the gross receipts” from sales
of motor fuel in the region. (Internal quotation marks omitted.) Hoogasian, 58 Ill. 2d at 130.
However, with respect to the third tax, a “ ‘motor vehicle parking tax,’ ” there was absolutely
no cap or standards. Hoogasian, 58 Ill. 2d at 130 (quoting Ill. Rev. Stat., 1973 Supp., ch. 111⅔,
¶ 704.03(d)28). Subsection (d), which authorized the motor vehicle parking tax, instructed the
RTA to “provide for reasonable classifications in and exemptions to such tax,” as well as “civil
penalties and refunds,” without any guidance as to what was reasonable. (Ill. Rev. Stat., 1974
Supp., ch. 111⅔, ¶ 704.03(d)). Despite the lack of any cap, standards, or guidance for this tax,
the supreme court found that the act did not “improperly delegate legislative authority.”
Hoogasian, 58 Ill. 2d at 130, 132. By contrast, in the case at bar, where the legislature did
provide a specific cap, for a specific purpose, we cannot find that it improperly delegated its
27
On this appeal, plaintiffs chose to contest the dismissal of counts I and II but not count III, which
was their only count to ask for a referendum election. Thus, the issue of a referendum is not before this
court.
28
Although the Hoogasian opinion states that the statute appears in the 1973 supplement
(Hoogasian, 58 Ill. 2d at 130), it is actually in the 1974 supplement.
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legislative authority. Thus, the two cases upon which plaintiffs primarily rely, Latham and
Hoogasian, do not support their claim that the legislature’s delegation of taxing authority to the
Chicago School Board violates due process.
¶ 116 For all the foregoing reasons, we do not find persuasive plaintiffs’ second claim
concerning taxation.
¶ 117 CONCLUSION
¶ 118 In conclusion, we affirm the trial court’s dismissal of plaintiff’s complaint with prejudice
pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2016)). On
this appeal, plaintiffs raised two claims: first, that they, as Chicago residents, had a
fundamental right to directly elect school board members, since citizens of all other Illinois
school districts had this ability; and second, that the Illinois General Assembly could not
delegate the power to tax to a board that is not elected. For the foregoing reasons, we do not
find these claims persuasive.
¶ 119 Affirmed.
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