Quinn v. Board of Education of the City of Chicago , 105 N.E.3d 106 ( 2018 )

2018 IL App (1st) 170834
No. 1-17-0834
Opinion filed March 29, 2018
FOURTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
PATRICK QUINN, IRENE ROBINSON, ) Appeal from the Circuit Court
CHRISTOPHER BALL, ANTWAIN MILLER, ) of Cook County.
MARC KAPLAN, DANIEL MORALES-DOYLE, ),
and JITU BROWN, )
)
Plaintiffs, )
)
v. )
No. 16 CH 13159
)
BOARD OF EDUCATION OF THE CITY )
The Honorable
OF CHICAGO, THE ILLINOIS STATE BOARD )
Michael T. Mullen,
OF EDUCATION, and THE STATE OF )
Judge, presiding.
ILLINOIS, )
)
Defendants-Appellees, )
)
(Patrick Quinn, Irene Robinson, Antwain Miller, )
Mark Kaplan, Daniel Morales-Doyle, and Jitu )
Brown, Plaintiffs-Appellants). )
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
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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.
1
On appeal, plaintiffs describe the nature of their action as a suit “to require an election.”
2
Plaintiffs’ brief to this court forthrightly admits that “there has never been a right to vote for the
Chicago Board of Education.”
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¶5 First, on October 5, 2016, these same plaintiffs filed a complaint in federal district
court, which challenged section 34-3 of the School Code under various federal statutes and
federal constitutional provisions. Quinn v. Board of Education of the City of Chicago, 234 F.
Supp. 3d 922, 928, 933, 934 (discussing federal equal protection clause (U.S. Const., amend.
XIV) and Voting Rights Act (52 U.S.C. § 10101 (2012)), federal due process (U.S. Const.,
amend. XIV), and Civil Rights Act of 1964 (42 U.S.C. § 1983 (2012) respectively). The
federal district court dismissed the complaint with prejudice on February 13, 2017 (Quinn,
234 F. Supp. 3d at 936), and plaintiffs appealed to the Seventh Circuit Court of Appeals. The
federal appeal has been pending for a year, and no opinion has been issued.
¶6 Second, also on October 5, 2016, plaintiffs filed this complaint, which the circuit
court of Cook County dismissed on February 27, 2017, and which is the subject of this
appeal.
¶7 Third, a bill was introduced in the Illinois General Assembly on February 1, 2017,
which would provide substantially all the relief plaintiffs are seeking here. 100th Ill. Gen.
Assem., House Bill 1774, 2017 Sess., § 5 (amending 10 ILCS 5/2A-1.2(d) to provide that, as
of the year 2023, “members of the Chicago Board of Education shall be elected in a
nonpartisan election”). The bill provides that “the City of Chicago shall be subdivided into
20 electoral districts by the General Assembly,” with each district represented by one
member and one additional member elected at large to serve as president of the Chicago
school board. 100th Ill. Gen. Assem., House Bill 1774, 2017 Sess., § 10 (amending 105 ILCS
5/34-3(b-5)). The bill passed both the House of Representatives and the Senate in May 2017.
The last reported action taken on the bill was a referral on September 28, 2017, by the House
to the rules committee.
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¶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.”).
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¶ 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
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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.
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(c) [The board] may appoint a student to the board to serve in an advisory
capacity. The student member shall serve for a term as determined by the board. The
board may not grant the student member any voting privileges, but shall consider the
student member as an advisor. The student member may not participate in or attend
any executive session of the board.” (Emphasis added.) 105 ILCS 5/34-3 (West
2016).
¶ 19 Section 34-3 of the School Code was amended in 2005 to add the last subsection,
subsection (c), which is not at issue in this appeal. Pub. Act 94-231, § 5 (eff. July 14, 2005).
¶ 20 III. The Counts
¶ 21 The complaint in the case at bar, namely, the complaint filed in state court, alleged
grounds only under our state’s constitution.
¶ 22 The complaint alleged three counts: (1) denial of the right to vote pursuant to article I,
section 2 of the Illinois Constitution (Ill. Const. 1970, art. I, § 2 (“No person shall be
deprived of life, liberty or property without due process of law nor be denied the equal
protection of the laws.”)) and article III, section 2 of the Illinois Constitution (Ill. Const.
1970, art. 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 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
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, 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.
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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
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.”).
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¶ 28 The complaint also alleges that, at the time of its creation, the Chicago School Board
was “accountable to the City Council *** for tax and expenditure decisions.” However, in
1980, “the General Assembly placed the financial management of the Chicago public schools
under the Chicago Finance Authority.”
¶ 29 The complaint alleges that in 1988 6 the General Assembly passed the Chicago School
Reform Act of 1988 (1988 Act), which created a 28-member Chicago School Board
nominating commission. Five members of the nominating commission were appointed by the
mayor. The remaining 23 members were parent and community representatives from local
school councils. The 1988 Act also created local school councils, elected by Chicago
citizens, which had the authority to appoint and remove principals. 7
¶ 30 The complaint alleged that the nominating commission provided the mayor with a
slate of three candidates to fill each vacant position on the Chicago School Board and that his
selection had to be approved by the City Council. The complaint alleged that Mayor Richard
M. Daley “refused on a number of occasions to appoint any of the nominees” of the
nominating commission.
¶ 31 The complaint does not allege, but we may take judicial notice of the fact, that our
supreme court declared the entire 1988 Act unconstitutional in Fumarolo v. Chicago Board
of Education, 142 Ill. 2d 54, 100 (1990). 8
6
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
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”).
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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¶ 32 The complaint alleges that in 1995 the General Assembly passed the Chicago School
Reform Amendatory Act (1995 Act), which eliminated the local school council’s role in
appointing board members, eliminated the nominating commission, and returned to the
mayor the right to select the Chicago School Board. Pub. Act 89-0015 (eff. May 30, 1995).
Under the 1995 Act, the City Council no longer confirmed the mayor’s selections.
¶ 33 The complaint alleges that, in the 20 or more years since the 1995 Act, the Chicago
public school system is on the verge of bankruptcy, the teacher’s pension plan went from
being fully funded to being only 52% funded in 2015, and the Chicago public school system
operated at a deficit in fiscal year 2016.
¶ 34 The complaint also alleges: “Based on national data of big city school districts, the
composition of a school board—that is, whether appointed or elected—has no correlation to
academic achievement.”
¶ 35 The complaint alleges that corruption in the school system is so severe that its chief
executive officer (CEO) was facing a federal prison sentence. See Timothy McLaughlin,
Former Chicago Public School Chief Sentenced for Fraud, (Apr. 28, 2017, 5:21 PM),
https://www.reuters.com/article/us-chicago-education-fraud/former-chicago-public-schools-
chief-sentenced-for-fraud-idUSKBN17U31I (last visited Mar. 13, 2018) (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.
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¶ 37 V. Procedural History
¶ 38 On November 7, 2016, the Chicago School Board and the state defendants jointly
filed a motion to extend the deadline to answer or otherwise plead, which the trial court
granted on November 14, 2016. The trial court’s order stated that plaintiffs had advised the
court of their “intent to seek preliminary relief in advance of the April 4, 2017 election.” The
court ordered defendants to answer or otherwise plead by December 19, 2016.
¶ 39 As they had advised the court, plaintiffs moved on November 30, 2016, for a
preliminary injunction to “requir[e] defendants to draft procedures for an election of the
Board of Education while this suit is pending in order to allow for an election on April 4,
2017.” In the alternative, plaintiffs sought a permanent injunction. On December 9, 2016, the
trial court entered an order setting a briefing schedule.
¶ 40 On December 19, 2016, the Chicago School Board filed a combined motion to
dismiss (735 ILCS 5/2-619.1 (West 2016)), seeking dismissal (1) pursuant to section 2-615
of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2016)) for failure to state a cause of
action, and (2) pursuant to section 2-619 (735 ILCS 5/2-619 (West 2016)) for lack of
standing. The motion claimed that plaintiffs lacked standing because, since they had no right
to vote for members of the Chicago School Board, they had no injury. The Chicago School
Board also filed a separate response to plaintiffs’ motion for a preliminary injunction.
¶ 41 On December 19, 2016, the state defendants filed their own combined motion to
dismiss, seeking dismissal pursuant to sections 2-615 and 2-619. The state defendants sought
a section 2-619 dismissal on the ground of sovereign immunity rather than standing. The
state defendants’ dismissal motion was combined with their response to plaintiffs’ motion for
preliminary relief.
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¶ 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
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be submitted to the voters pursuant to Section 34-53,” 9 and that “the Board is accountable to
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.”
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 (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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¶ 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.
¶ 52 In the appellate court, the state defendants and the Chicago School Board jointly filed
three motions for extensions of time to file their briefs, which were all granted by this court.
On November 30, 2017, this court granted defendants’ third request, permitting them to file
their briefs by December 19, 2017, but ordered that no further extensions would be allowed.
On December 19, 2017, the Attorney General of the State of Illinois filed an appellees’ brief
on behalf of the state defendants alone. See also Stroger v. Regional Transportation
Authority, 201 Ill. 2d 508, 511 (2002) (the Attorney General may “intervene for the purpose
of defending the constitutionality” of an Illinois statute); Ill. S. Ct. R. 19 (eff. Sept. 1, 2006)
(requiring service of notice on the Attorney General when the constitutionality of a statute is
challenged). The Chicago School Board chose not to file an appellee’s brief with this court.
¶ 53 ANALYSIS
¶ 54 This appeal is about the constitutionality of section 34-3 of the School Code. 105
ILCS 5/34-3 (West 2016).
¶ 55 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.
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¶ 56 I. Standard of Review
¶ 57 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)).
¶ 58 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 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).
¶ 59 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)).
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¶ 60 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.
¶ 61 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).
¶ 62 II. Constitutional Issues as a Last Resort
¶ 63 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 Il. 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.”).
¶ 64 However, in this appeal, the complaint raises only constitutional grounds, and the
parties make only constitutional arguments. Before the trial court, defendants raised issues
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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, which requires a court to provide more detail in its opinions when
constitutional issues are involved. Ill. S. Ct. R. 18 (eff. Sept. 1, 2006).
¶ 65 III. Rules of Statutory and Constitutional Interpretation
¶ 66 This appeal requires us to interpret and apply clauses of our state constitution.
¶ 67 “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)).
¶ 68 “[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
18 No. 1-17-0834
121077, ¶ 35 (quoting Coalition for Political Honesty v. State Board of Elections, 65 Ill. 2d
453, 464 (1976)).
¶ 69 Plaintiffs have the burden of establishing that section 34-3 of the School Code is
unconsitutional. “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.
¶ 70 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.
¶ 71 IV. Rational Basis or Strict Scrutiny
¶ 72 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.
19
No. 1-17-0834
¶ 73 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.
¶ 74 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.
¶ 75 V. Not a Fundamental Right
¶ 76 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
20 No. 1-17-0834
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”).
¶ 77 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 U.S. 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.”).
¶ 78 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
¶ 79 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
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)).
21
No. 1-17-0834
Chicago 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.
¶ 80 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”).
¶ 81 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.”
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”).
22
No. 1-17-0834
¶ 82 In support of their argument that the ability to elect a school board implicates a
fundamental right, plaintiffs cite in support 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.
¶ 83 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.
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
23
No. 1-17-0834
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.
¶ 84 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.
¶ 85 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,
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”).
24
No. 1-17-0834
§§ 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/ (last visited Mar. 14, 2018). 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.
¶ 86 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.
¶ 87 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 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
25
No. 1-17-0834
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
¶ 88 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?
¶ 89 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,
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).
26
No. 1-17-0834
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
¶ 90 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
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.
¶ 91 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
16
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”).
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.”).
27
No. 1-17-0834
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.
¶ 92 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”).
¶ 93 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.” 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.
28
No. 1-17-0834
¶ 94 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
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 RTA directors).
¶ 95 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
18
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 4 RTA directors were themselves “constitutionally elected,” the appointments did
“not abridge plaintiffs’ fundamental constitutional right to vote,” even though only the suburban
29
No. 1-17-0834
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.
¶ 96 VI. Rational Basis
¶ 97 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”).
¶ 98 We can think of a number of reasons 19 why the General Assembly had a rational
basis for treating Chicago differently. 20 With a city as large as Chicago, if school board
commissioners were allowed to appoint and the Mayor appointed the 4 RTA directors on behalf of
Chicago).
19
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).
30
No. 1-17-0834
members are 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.
¶ 99 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
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.”).
31
No. 1-17-0834
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”).
¶ 100 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
¶ 101 Thus, we cannot find section 34-3 of the School Code (105 ILCS 5/34-3 (West 2016)
unconstitutional.
¶ 102 VII. Taxation
¶ 103 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
21
See also Hearne, 185 F.3d at 774-75 (“With 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”).
32
No. 1-17-0834
taxation without any representation through a legislative body, directly or indirectly.” For the
following reasons, we do not find plaintiffs’ taxation claim persuasive.
¶ 104 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.”
¶ 105 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).
¶ 106 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 twenty years, is simply not accurate. Plaintiff’s claim of “taxation
without any representation through a legislative body, directly or indirectly” is similarly not
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accurate. There is representation through a legislative body, namely, the state legislature who
regulates the tax levy rates.
¶ 107 The 4% cap which plaintiffs consider inadequate 22 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).
¶ 108 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”).
¶ 109 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).
¶ 110 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
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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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.
¶ 111 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).
¶ 112 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
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.
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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”).
¶ 113 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
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.
¶ 114 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
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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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.
¶ 115 In support of their taxation claim, plaintiffs also cite Hoogasian. At issue in
Hoogasian was an act passed by the legislature to create a regional transportation authority
(RTA) in six counties, including Chicago and its suburbs. Hoogasian, 58 Ill. 2d at 120. The
act required a referendum election 27 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.
¶ 116 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 28
Supp., ch. 111 ⅔, ¶ 704.03(d)). Subsection (d), which authorized the motor vehicle parking
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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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. 111 ⅔, ¶ 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 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.
¶ 117 For all the foregoing reasons, we do not find persuasive plaintiffs’ second claim
concerning taxation.
¶ 118 CONCLUSION
¶ 119 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.
¶ 120 Affirmed.
38