Bremen Community High School District No. 228 v. The Cook County Comm'n on Human Rights

ILLINOIS OFFICIAL REPORTS

Appellate Court

Bremen Community High School District No. 228 v. Cook County Comm’n on Human

Rights, 2012 IL App (1st) 112177

Appellate Court BREMAN COMMUNITY HIGH SCHOOL DISTRICT No. 228, THE

Caption BOARD OF EDUCATION OF BREMEN COMMUNITY HIGH

SCHOOL DISTRICT No. 228 and EVELYN GLEASON, Plaintiffs-

Appellants, v. THE COOK COUNTY COMMISSION ON HUMAN

RIGHTS and RICHARD MITCHELL, Defendants-Appellees.

District & No. First District, Fourth Division

Docket No. 1-11-2177

Rule 23 Order filed September 27, 2012

Rule 23 Order

withdrawn November 5, 2012

Opinion filed November 8, 2012

Held Defendant county human rights commission had jurisdiction to consider

(Note: This syllabus the complaint filed by the individual defendant with the commission

constitutes no part of alleging that his termination from his position as superintendent of

the opinion of the court plaintiff school district because of his sexual orientation violated the

but has been prepared county human rights ordinance; therefore, the school district’s action

by the Reporter of seeking a writ of mandamus directing the commission to dismiss

Decisions for the defendant’s complaint, an order prohibiting the commission from

convenience of the exercising jurisdiction over plaintiffs, and an injunction against further

reader.)

action on defendant’s complaint was properly dismissed.

Decision Under Appeal from the Circuit Court of Cook County, No. 10-CH-44392; the

Review Hon. Nancy J. Arnold, Judge, presiding.

Judgment Affirmed.

Counsel on Clausen Miller, PC, of Chicago (Edward M. Kay, Don R. Sampen, and

Appeal Christopher R. Henson, of counsel), for appellants.

Anita M. Alvarez, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr.,

Kent S. Ray, and Sisavanh B. Baker, Assistant State’s Attorneys, of

counsel), for appellees.

Panel JUSTICE FITZGERALD SMITH delivered the judgment of the court,

with opinion.

Presiding Justice Lavin and Justice Sterba concurred in the judgment and

opinion.

OPINION

¶1 Plaintiffs Bremen Community High School District No. 228, Board of Education of

Bremen Community High School District No. 228, and Evelyn Gleason (collectively, the

plaintiffs) appeal from an order of the circuit court dismissing with prejudice their complaint

against defendants Cook County Commission on Human Rights and Richard Mitchell. We

affirm.

¶2 I. BACKGROUND

¶3 The plaintiffs consist of the Board of Education of Bremen Community High School

District No. 228 (Board), which serves as the governing authority for the Bremen

Community High School District No. 228; Evelyn Gleason, who is the presiding officer of

the Board; and the Bremen Community High School District No. 228 (school district). The

defendants are the Cook County Commission on Human Rights (the Commission) and

Richard Mitchell (Dr. Mitchell).1 The Commission is an administrative agency created by

the County of Cook through its home rule powers under section 6(a) of article VII of the

1970 State of Illinois Constitution to investigate and determine incidents of human rights

violations within Cook County.

¶4 In March 2004, defendant Dr. Mitchell entered into an employment contract with the

Board to serve as superintendent of Bremen Community High School District No. 228. He

was terminated in 2006 following a disciplinary action.

1

Although named as a defendant-appellee herein, Dr. Mitchell did not file his appearance

with the trial court below and did not respond to the motion to dismiss at issue here.

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¶5 In December 2006, Dr. Mitchell filed a complaint with the Commission claiming

plaintiffs violated the Cook County Human Rights Ordinance (the Ordinance) (Cook County

Ordinance No. 02-O-35 et seq. (amended Nov. 19, 2002)) by terminating his employment

as superintendent of the Bremen school district because of his sexual orientation.

¶6 The school district, the Board, and Gleason filed a motion to dismiss the complaint in

January 2007. Through this motion, they argued that the Commission lacked subject matter

jurisdiction to investigate or adjudicate the complaint because it would exceed the scope of

home rule powers granted to Cook County by article VII, section 6(a), of the Illinois

Constitution (Ill. Const. 1970, art. VII, § 6). They argued that the Commission lacked

jurisdiction over school districts and officials. Dr. Mitchell then filed a response to the

motion to dismiss, arguing that the Commission had previously ruled on this issue and

determined that it does have jurisdiction. The Commission denied the motion to dismiss. In

July 2010, the Commission issued an investigation report finding substantial evidence that

plaintiffs violated the Ordinance by terminating Dr. Mitchell due to his sexual orientation.

The case before the Commission, filed in 2006, remains pending.

¶7 The plaintiffs then brought the same jurisdictional challenge before the trial court against

Dr. Mitchell and the Commission in a three-count complaint seeking mandamus, prohibition,

and a preliminary injunction. Specifically, plaintiffs sought: (1) a mandamus order directing

the Commission to dismiss Dr. Mitchell’s complaint for lack of jurisdiction; (2) the issuance

of a final order prohibiting the Commission from exercising jurisdiction over plaintiffs as it

relates to Dr. Mitchell’s complaint; and (3) a preliminary injunction enjoining the

Commission from engaging in or conducting any activity in furtherance of Dr. Mitchell’s

complaint pending a final decision on the merits of the complaint.

¶8 In December 2010, the Commission filed a motion to dismiss this complaint under

section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)). The

motion was fully briefed by the parties. This is the motion to dismiss at issue here. On May

17, 2011, following arguments by the parties, the trial court dismissed the complaint with

prejudice, finding, in a written order:

“This matter coming on to be heard upon the Commission’s motion to dismiss, the

matter fully brief[ed] and argued and the court fully advised in the premises;

IT IS HEREBY ORDERED:

1) The Commission’s motion is granted and the case is dismissed in its entirety with

prejudice–the court finding that Plaintiff has no clear right to mandamus and that the

Plaintiff made no showing that the Commission acted outside its home-rule powers, as

fully stated in open court;

2) Plaintiffs’ oral motion for leave to amend is denied.”

In June 2011, plaintiffs filed a motion to amend and attached a copy of their proposed

amended complaint. Thereafter, plaintiffs also filed a motion for rehearing of the May 17

order which dismissed the complaint with prejudice and denied plaintiff’s oral motion for

leave to file an amended complaint. In July 2010, the court denied the motion for

reconsideration and gave the Commission leave to file a response to the motion to amend.

Then, following oral arguments by the parties, the trial court denied the motion to amend.

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¶9 Plaintiffs now appeal from: (1) the trial court’s dismissal pursuant to section 2-615

following a determination that the Commission had jurisdiction and that plaintiffs failed to

show a clear right upon which the trial court may grant the extraordinary relief of mandamus;

and (2) the trial court’s denial of their motion to amend the complaint.

¶ 10 II. ANALYSIS

¶ 11 Plaintiffs contend that the trial court erred when it denied their motion to dismiss

pursuant to section 2-615 of the Code. Plaintiffs argue that the Commission lacked subject

matter jurisdiction and, therefore, their complaint for a writ of mandamus was appropriate.

We disagree.

¶ 12 “A section 2-615 motion to dismiss [citation] challenges the legal sufficiency of a

complaint based on defects apparent on its face.” Marshall v. Burger King Corp., 222 Ill. 2d

422, 429 (2006). “In reviewing the sufficiency of a complaint, we accept as true all well-

pleaded facts and all reasonable inferences that may be drawn from those facts,” and we

“construe the allegations in the complaint in the light most favorable to the plaintiff.”

Marshall, 222 Ill. 2d at 429. “[A] cause of action should not be dismissed pursuant to section

2-615 unless it is clearly apparent that no set of facts can be proved that would entitle the

plaintiff to recovery.” Marshall, 222 Ill. 2d at 429; Canel v. Topinka, 212 Ill. 2d 311, 318

(2004). We review an order granting or denying a section 2-615 motion de novo. Marshall,

222 Ill. 2d at 429.

¶ 13 First, plaintiffs contend that the trial court erred in denying mandamus relief. They argue

that mandamus was the appropriate relief here because plaintiffs had no other remedy for the

Commission’s “improper” exercise of jurisdiction, as well as because of the “continuing

nature of the Commission’s burdensome and wrongful conduct.” In addition, plaintiffs argue

that mandamus is appropriate here because the present case presents matters of great

importance to the administration of justice. We disagree.

¶ 14 Mandamus is an extraordinary remedy traditionally used to compel a public official to

perform a purely ministerial duty. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 192-93

(2009); People ex rel. Ryan v. Roe, 201 Ill. 2d 552, 555 (2002). Mandamus provides

affirmative rather than prohibitory relief and can be used to compel the undoing of an act.

People ex rel. Waller v. McKoski, 195 Ill. 2d 393, 398 (2001). Mandamus will be granted

only if a plaintiff can establish: (1) a clear, affirmative right to relief; (2) a clear duty of the

public officer to act; and (3) clear authority in the public officer to comply. People ex rel.

Waller, 195 Ill. 2d at 400-01; 1350 Lake Shore Associates v. Hill, 326 Ill. App. 3d 788, 794

(2001) (“The issuance of a writ of mandamus is appropriate only where the plaintiff shows

a clear, affirmative right to the requested relief, a clear duty to act on the defendant’s part,

and clear authority in the defendant to comply with the writ.”). Mandamus is not a substitute

for appeal. People ex rel. Waller, 195 Ill. 2d at 398. “ ‘It is not the office of the writ of

mandamus *** to correct, direct, or control the action of a judge in any matter which he has

jurisdiction to decide. For mere error, however gross or manifest, the remedy is an appeal or

writ of error, and the writ of mandamus will not lie for its correction if the court has

jurisdiction of the subject matter and the parties.’ ” People ex rel. Atchison, Topeka & Santa

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Fe Ry. Co. v. Clark, 12 Ill. 2d 515, 520 (1957) (quoting People ex rel. Barrett v. Shurtleff,

353 Ill. 248, 259 (1933)).

¶ 15 “Mandamus is an appropriate remedy to correct an order entered by a court that

erroneously assumed jurisdiction which the court did not possess (People ex rel. Bradley v.

McAuliffe, 24 Ill. 2d 75, 78 (1962) (collecting cases)) or to expunge a void order entered by

a tribunal without jurisdiction (Daley v. Laurie, 106 Ill. 2d 33, 40 (1985); People ex rel.

Carey v. White, 65 Ill. 2d 193, 197 (1976); People ex rel. Courtney v. Prystalski, 358 Ill. 198,

201-02 (1934)). A writ of mandamus will be awarded only if the petitioner establishes a clear

right to the relief requested, a clear duty of the public official to act, and clear authority in

the public official to comply with the writ.” People ex rel. Alvarez v. Skryd, 241 Ill. 2d 34,

38-39 (2011). “The petitioner in a mandamus action has the burden of establishing every

material fact necessary to show the plain duty of the respondent before a court will interfere.”

Machinis v. Board of Election Commissioners, 164 Ill. App. 3d 763, 767 (1987) (citing

People ex rel. Council 19 of the American Federation of State, County & Municipal

Employees v. Egan, 52 Ill. App. 3d 1042, 1045 (1977)).

¶ 16 “A petitioner seeking a writ of mandamus to command an officer to perform a duty must

show a clear right to the relief asked by allegation of specific facts. (People ex rel. Thomas

v. Board of Education of City of Chicago, 40 Ill. App. 2d 308, 188 N.E.2d 237 [(1963)].)

Petitioner must also show a duty on the part of the respondent by allegations of material

facts; mere conclusions will not suffice. People ex rel. McGrady v. Carmody, 104 Ill. App.

2d 137, 243 N.E.2d 19 [(1968)].” People ex rel. Vlahakis v. Hanrahan, 8 Ill. App. 3d 313,

314 (1972).

¶ 17 Here, the trial court dismissed the motion with prejudice, finding that plaintiffs had no

clear right to mandamus and that the plaintiffs failed to show the Commission acted outside

of its homerule powers. In open court, it stated:

“THE COURT: I’m going to grant the motion to dismiss because the Complaint for

mandamus here and prohibition, and the third count seeking [injunction] does not set out

a clear right as to which the Court should direct the Human Rights Commission of Cook

County to dismiss the proceeding now pending before it.”

The court continued:

“THE COURT: [Mandamus] clearly is not the proper vehicle here. As the Court said

in Daley v. Laurie, mandamus is not the proper vehicle. It is an extraordinary writ not to

be used as a substitute for the ordinary channels of appeal. In effect here, the plaintiff is

seeking de novo and immediate appeal of an interlocutory order, denial of a motion to

dismiss. In reality, the plaintiff is only seeking review of the Human Rights

Commission’s order interpreting it’s [sic] only ordinance as to whether a school district

is excluded from the definition of an employer in that ordinance. The plaintiff here is

contending that is error. That is not enough to establish the clear right upon which the

court should base the extraordinary writ of mandamus.”

¶ 18 We find no error in the granting of the motion to dismiss where the plaintiffs failed to

show they had a clear right on which the court should act. See People ex rel. Vlahakis, 8 Ill.

App. 3d at 314 (“A petitioner seeking a writ of mandamus to command an officer to perform

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a duty must show a clear right to the relief asked by allegation of specific facts. (People ex

rel. Thomas v. Board of Education of City of Chicago, 40 Ill. App. 2d 308, 188 N.E.2d 237.)

Petitioner must also show a duty on the part of the respondent by allegations of material

facts; mere conclusions will not suffice. People ex rel. McGrady v. Carmody, 104 Ill. App.

2d 137, 243 N.E.2d 19.”). In their complaint, the plaintiffs alleged that: the Commission

operates pursuant to the exclusive authority of the Ordinance, which was enacted pursuant

to Cook County’s home rule powers; and the school district is a quasi-municipal corporation

possessing “the same degree of power as municipal corporations although it lacks the

political and legislative authority.” They alleged that the Commission lacks the authority to

investigate, regulate, or impose penalties against the school district, its board and officers

because:

“(a) The State of Illinois exercises plenary power over the Illinois school system,

including the School District, Board and officers, and thus has preempted the use of

home rule powers in this area.

(b) The Ordinance, as applied to plaintiffs herein, does not pertain to, and is beyond,

the government and affairs of Cook County since the School District itself, and the State

of Illinois, have a more vital and direct interest in Dr. Mitchell’s contract than Cook

County.

(c) Nothing about the relationship between Cook County and the School District

under the Illinois Constitution or statutes permits Cook County to exercise authority over

a sister governmental unit.

(d) The Commission’s purported exercise of jurisdiction with respect to Dr.

Mitchell’s claim is inconsistent with the letter and spirit of Illinois law in that the Illinois

Human Rights Act, 775 ILCS 5/1-101 et seq., which is the state legislation comparable

to the Ordinance, expressly excludes ‘principal administrative officers’ of any

governmental unit from the definition of ‘employee’ entitled to recovery under such Act.

See 775 ILCS 5/2-101(d). The Act thus would not permit recovery by Dr. Mitchell as a

former school superintendent for the claims he has asserted against the plaintiffs herein,

and any relief accorded by the Commission, and its very exercise of jurisdiction over a

claim by a non-employee, would be and is contrary to the Act.”

Plaintiffs argue that, for the foregoing reasons, they “have a clear legal right to have the

Complaint currently pending before the Commission to be dismissed for lack of

jurisdiction,” and that the Commission has the “clear legal duty to dismiss the Complaint.”

¶ 19 Plaintiffs have failed to show the requisite clear right. Essentially, plaintiffs seek review

of the Commission’s order interpreting the Ordinance regarding whether a school district is

excluded from the definition of “employer” in the Ordinance. Plaintiffs seek an order

directing the Cook County Commission to dismiss Dr. Mitchell’s complaint for lack of

jurisdiction. Mandamus is not the proper vehicle for that claim, as the Commission has

jurisdiction over plaintiffs pursuant to its home rule powers.

¶ 20 In their complaint, plaintiffs alleged the Commission exceeded Cook County’s home rule

authority under the Illinois Constitution in asserting jurisdiction over plaintiffs as it relates

to Dr. Mitchell’s complaint. They cited four specific reasons: (1) the Ordinance, as applied

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to plaintiffs, is beyond the government and affairs of Cook County because the school district

and the State of Illinois have a more vital and direct interest in Dr. Mitchell’s contract than

does Cook County; (2) the state preempted Cook County’s home rule powers; (3) neither the

Illinois Constitution nor any statute permits the Commission to exercise authority over a

“sister governmental unit”; and (4) the Commission’s exercise of jurisdiction over plaintiffs

is inconsistent with the letter and spirit of the Illinois Human Rights Act (775 ILCS 5/1-101

et seq. (West 2010)).

¶ 21 A. Plaintiffs Are Not Excluded From the Definition

of “Employer” Found in the Ordinance

¶ 22 At the outset, we will address plaintiffs’ preliminary matters. First, plaintiffs contend that

they do not fit the definition of employer as provided in section 42-31 of the Ordinance,

which excludes the State of Illinois and municipalities, and, therefore, they are not subject

to the Ordinance. In support of this argument, plaintiffs point out that the Ordinance

expressly excludes state agencies and municipalities from the operation of the Ordinance

through the definition of “employer.” They argue that they qualify as both agents of the state

and a municipality and that, therefore, they do not qualify as “employers.” Accordingly, they

argue, the Ordinance does not apply to them. We disagree.

¶ 23 The exclusion in the Ordinance with which plaintiffs are concerned is found in the

“definitions” section of the Ordinance, and states as follows:

“Employer means:

(1) Any person employing one or more employees, or seeking to employ one or more

employees

a. If the person has its principal place of business within Cook County; or

b. Does business within Cook County.

(2) The term ‘employer’ does not mean:

a. The government of the United States or a corporation wholly owned by the

government of the United States;

b. An Indian tribe or a corporation wholly owned by an Indian tribe;

c. The government of the State or any agency or department thereof; or

d. The government of any municipality in Cook County.” (Emphasis in original.)

Cook County Ordinance No. 02-O-35, § 42-31 (amended Nov. 19, 2002).

¶ 24 Plaintiffs selectively excerpt a quote from Board of Education of Bremen High School

District No. 228 v. Mitchell, 387 Ill. App. 3d 117, 120 (2008), to argue that plaintiffs are

agencies of the State. Quoting Board of Education, they argue, “[in Board of Education,]

[t]his Court stated that a school district ‘is a quasi-municipal corporation created by the state

to act as its administrative arm in implementing the establishment of free schools.’ ” They

continue that, because the board is an administrative arm of the state, it is, therefore, an

agency of the state. A full reading of that case, however, shows that this court did not

consider the board of education an agency of the state. Rather, in Board of Education, which

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involves the same defendants as but different issues than the case at bar, this court stated:

“A school district is a quasi-municipal corporation created by the state to act as its

administrative arm in implementing the establishment of free schools. Board of

Education, Joliet Township High School District No. 204 v. Board of Education, Lincoln

Way Community High School District No. 210, 231 Ill. 2d 184, 203 (2008). A quasi-

municipal corporation possesses the same degree of power as a municipal corporation

but lacks the same scope of political and legislative authority. People v. Deatherage, 401

Ill. 25, 44, 81 N.E.2d 581, 592 (1948); People ex rel. Leland v. Board of Education of

City of Chicago, 325 Ill. 320, 322, 156 N.E. 305 (1927).” Board of Education of Bremen

High School District No. 228, 387 Ill. App. 3d at 120.

¶ 25 The Board of Education court also determined that a board of education qualifies as an

employing unit for purposes of unemployment insurance. Board of Education of Bremen

High School District No. 228, 387 Ill. App. 3d at 121, 123. It also stated “[o]ur supreme

court has explained that a school district is ‘the territory included within its corporate

boundaries,’ whereas a board of education ‘furnishes the method and machinery for the

government and management of the district.’ ” Board of Education of Bremen High School

District No. 228, 387 Ill. App. 3d at 120-21 (citing Board of Education of District No. 88 v.

Home Real Estate Improvement Corp., 378 Ill. 298, 303 (1941)). Plaintiffs are not considered

agencies of the State or municipalities under the Ordinance.

¶ 26 Moreover, our constitution treats school districts as separate entities from municipalities.

For instance, article VII, section 1, provides:

“ ‘Municipalities’ means cities, villages and incorporated towns. ‘Units of local

government’ means counties, municipalities, townships, special districts, and units,

designated as units of local government by law, which exercise limited governmental

powers or powers in respect to limited governmental subjects, but does not include

school districts.” (Emphasis added.) Ill. Const. 1970, art. VII, § 1.

¶ 27 Nor are plaintiffs considered municipalities under the Illinois Municipal Code, which

defines municipalities as:

“a city, village, or incorporated town in the State of Illinois, but, unless the context

otherwise provides, ‘municipal’ or ‘municipality’ does not include a township, town

when used as the equivalent of a township, incorporated town that has superseded a civil

township, county, school district, park district, sanitary district, or any other similar

governmental district.” (Emphases added.) 65 ILCS 5/1-1-2(1) (West 2010).

¶ 28 That an entity is a quasi-municipal organization acting as the administrative arm of the

state does not make it a municipal organization or a state agency for purposes of the

Ordinance. We conclude that, for the specific purposes of section 42-31 of the Ordinance,

the plaintiffs are not agencies of the state, nor are they considered a municipality of the state.

Plaintiffs, as “employers,” are not excluded, therefore, by the terms of the Ordinance.

¶ 29 B. Plenary Power

¶ 30 Plaintiffs also contend that article X, section 1, of the Illinois Constitution vests the state

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legislature with plenary jurisdiction over school districts and, thus, the county, as a home rule

unit, may not impose burdens on plaintiffs in the absence of express authority. We disagree.

Article X, section 1, of the Illinois Constitution provides:

“A fundamental goal of the People of the State is the educational development of all

persons to the limits of their capacities.

The State shall provide for an efficient system of high quality public educational

institutions and services. Education in public schools through the secondary level shall

be free. There may be such other free education as the General Assembly provides by

law.

The State has the primary responsibility for financing the system of public

education.” Ill. Const. 1970, art. X, § 1.

¶ 31 “The state has ‘plenary’ power over state-operated educational institutions, and any

attempt by a home rule municipality to impose burdens on those institutions, in the absence

of state approval, is unauthorized.” City of Chicago v. Board of Trustees of the University

of Illinois, 293 Ill. App. 3d 897, 904 (1997). The plaintiffs argue that the “Ordinance

involved in the case at bar does nothing more than to impose a regulatory and financial

burden on the plaintiffs” and, therefore, constitutes an unauthorized regulation of the school

district in contravention of article X, section 1. We disagree.

¶ 32 We find Rajterowski v. City of Sycamore, 405 Ill. App. 3d 1086 (2010), to be instructive.

In that case, the plaintiff homeowners protested the City of Sycamore’s real estate transfer

tax, the proceeds of which benefitted the school district. Id. at 1089-90. The plaintiffs

contended, in relevant part, that the city, a home rule municipality, was circumventing the

School Code and exceeding its constitutional powers by raising money for the school district

through the real estate transfer tax without following the provisions of the Illinois School

Code. Id. at 1116.

¶ 33 The Rajterowski court examined article X, section 1, and clarified that the plenary power

in article X “provides that the State has primary responsibility for financing public

education.” (Emphasis omitted.) Id. at 1115-16. The court found the plaintiffs failed to

enumerate a provision in the School Code that specifically restricts a municipality’s powers

to forward money to the school district. Id. Thus, the court held the city did not exceed its

authority by circumventing the School Code “[b]ecause a home rule unit may exercise

concurrently with the State any power of a home rule unit, in the absence of any specific

legislative limitation on home rule units’ powers, or the State’s exclusive exercise of power,

over schools[.]” Id., at 1116.

¶ 34 Similarly, in the case at bar, plaintiffs have pointed to nothing in article X or the School

Code that specifically restricts the Commission’s exercise of jurisdiction over plaintiffs

where the county, as a home rule unit, exercises concurrent jurisdiction with the State. See

775 ILCS 5/7-108(B) (West 2010) (the Illinois Human Rights Act specifically provides

concurrent jurisdiction between the state and other local governmental entities). In fact,

rather than imposing “burdens” on the plaintiffs, the county relieves their burden by

addressing human rights claims that would otherwise be brought elsewhere.

¶ 35 Plaintiffs’ reliance on Board of Education of School District No. 150 v. City of Peoria,

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76 Ill. 2d 469 (1979), and City of Chicago, 293 Ill. App. 3d 897, for the proposition that

article X precludes the Commission’s jurisdiction does not persuade us differently. Neither

case addresses a home rule unit’s powers to regulate employment discrimination concurrently

with the state. City of Peoria addresses the ability of a city to impose its amusement tax

responsibilities upon a school district or park district, and City of Chicago addresses the

ability of a city to impose its amusement, parking, and telecommunications taxes upon a

“state-operated educational institution.” See City of Peoria, 76 Ill. 2d 469; City of Chicago,

293 Ill. App. 3d 897. Moreover, City of Chicago considered article X in the context of a state

university, that is, a “state-operated educational institution,” whereas the case at bar is

specific to a local school district and a local school board.2

¶ 36 Plaintiffs are not excluded from the Commission’s jurisdiction by virtue of article X.

¶ 37 C. The Cook County Human Rights Ordinance and Home Rule Powers

¶ 38 Under the Illinois Human Rights Act, political subdivisions are authorized to:

“create a local department or commission as it or they see fit to promote the purposes of

this Act and to secure for all individuals within the jurisdiction of the political

subdivision or subdivisions freedom from unlawful discrimination, sexual harassment

in employment and sexual harassment in elementary, secondary, and higher education.”

775 ILCS 5/7-108(A) (West 2010).

The Cook County Human Rights Ordinance provides:

“INTRODUCTION

Recognizing the need to combat the effects of bias and bigotry throughout Cook

County, the Cook County Board of Commissioners adopted the Cook County Human

Rights Ordinance on March 16, 1993. The Ordinance is designed to protect all people

who live and work in the County from discrimination and sexual harassment in

employment, public accommodations, housing, credit transactions, County services and

County contracting. The Ordinance prohibits these forms of discrimination when they are

based upon a person’s race, color, sex, age, religion, disability, national origin, ancestry,

sexual orientation, marital status, parental status, military discharge status, source of

income, gender identity, or housing status.

The protections in the Ordinance are enforced by the Cook County Commission on

Human Rights. The Commission is empowered to investigate, conciliate and conduct

hearings on complaints of discrimination. In addition, the Commission is authorized to

develop and conduct educational programs designed to prevent discrimination before it

2

We further recognize the opinion of the Attorney General in this regard. While this opinion

is not binding on us, we find it instructive:

“Because of their status as arms of the State, State colleges and universities are not

generally subject to State and local regulations in the way that local school districts are.

Local school districts are quasi-municipal corporations which are subject to State and

county regulation in the same respect as are units of local government.” 1991 Ill. Att’y Gen.

Op. No. 91-010, at 4.

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occurs and to promote better relations among the County’s diverse racial, ethnic,

religious, cultural and social groups.” Cook County Ordinance No. 93-O-13, Introduction

(1993).

¶ 39 “The home rule provisions of the 1970 Illinois Constitution drastically altered the

relationship between our state and local governments, giving municipalities more autonomy

to chart the course of their own growth.” Schillerstrom Homes, Inc. v. City of Naperville, 198

Ill. 2d 281, 286-87 (2001) (citing Kanellos v. County of Cook, 53 Ill. 2d 161, 166 (1972)).

Section 6(a) of the Illinois Constitution provides:

“Except as limited by this Section, a home rule unit may exercise any power and perform

any function pertaining to its government and affairs including, but not limited to, the

power to regulate for the protection of the public health, safety, morals and welfare; to

license; to tax; and to incur debt.” Ill. Const. 1970, art. VII, § 6(a).

Section 6(a) allows great flexibility in the exercise of home rule power, conferring “ ‘the

broadest powers possible.’ ” Schillerstrom, 198 Ill. 2d at 287 (quoting Scadron v. City of Des

Plaines, 153 Ill. 2d 164, 174 (1992)). Nonetheless, the exercise of home rule power can be

expressly limited by the General Assembly. See Ill. Const. 1970, art. VII, § 6(h) (“The

General Assembly may provide specifically by law for the exclusive exercise by the Sate of

any power or function of a home rule unit ***.”); see also 5 ILCS 70/7 (West 2010) (no state

statute can preempt home rule power unless it contains “specific language limiting or

denying the power or function and the language specifically sets forth in what manner and

to what extent it is a limitation on or denial of the power or function of a home rule unit”).

¶ 40 Where the legislature has not acted to expressly limit the exercise of home rule power,

a local ordinance and a state statute may operate concurrently:

“Home rule units may exercise and perform concurrently with the State any power or

function of a home rule unit to the extent that the General Assembly by law does not

specifically limit the concurrent exercise or specifically declare the State’s exercise to be

exclusive.” Ill. Const. 1970, art. VII, § 6(i).

Pursuant to section 6(i), home rule units can regulate activities in their communities even

where the state has also regulated such activities. Schillerstrom, 198 Ill. 2d at 287-88. “Thus,

section 6(i) simply eliminates the implied preemption of home rule power ‘ “by judicial

interpretation of unexpressed legislative intention. [Citation.]” ’ ” Schillerstrom, 198 Ill. 2d

at 286 (quoting Scadron, 153 Ill. 2d at 186).

¶ 41 Our supreme court has devised a three-part inquiry for evaluating the constitutionality

of the exercise of home rule power. First, a court must “determine whether the disputed

exercise of local government power falls within section 6(a)–that is, whether the local

government’s activity is a function pertaining to its government and affairs.” Schillerstrom,

198 Ill. 2d at 289. If it does, then the court must determine whether the General Assembly

has preempted the use of home rule powers in that area. Schillerstrom, 198 Ill. 2d at 289. If

not, then the court must determine the “ ‘proper relationship’ ” between the local ordinance

and the state statute. Schillerstrom, 198 Ill. 2d at 289-90.

¶ 42 The “powers and functions of home rule units shall be construed liberally.” Ill. Const.

1970, art. VII, § 6(m). Illinois courts have recognized that home rule units are given broad

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powers to legislate. City of Chicago v. Roman, 292 Ill. App. 3d 546, 551 (1997).

¶ 43 Here, the local government activity at issue is the Commission’s exercise of jurisdiction

over plaintiffs. Addressing the first step of the three-part Schillerstrom inquiry, we determine

here that the Commission’s exercise of jurisdiction over plaintiffs pursuant to the Ordinance

falls within section 6(a), that is, it pertains to Cook County’s government and affairs. See

City of Chicago v. StubHub, Inc., 2011 IL 111127, ¶¶ 18-25.

¶ 44 Plaintiffs argue that, as it applies to them, the Ordinance does not pertain to the county’s

government and affairs because Dr. Mitchell’s termination involves a matter of educational

administration in which the state and the plaintiffs have the “most vital interest.” We

disagree. Cook County’s interest is directly related to the allegations that plaintiffs violated

Dr. Mitchell’s human rights as protected under the Ordinance. Matters of human rights

violations are within the government and affairs of Cook County as they pertain to the

protection of its public health, morals and welfare and, therefore, are a proper matter for

Cook County to regulate under its home rule power.

¶ 45 “An ordinance pertains to the government and affairs of a home rule unit where the

ordinance relates to problems that are local in nature rather than State or national.” Village

of Bolingbrook v. Citizens Utilities Co. of Illinois, 158 Ill. 2d 133, 138 (1994). “The Illinois

Constitution creates broad home rule powers, and home rule units may exercise and perform

any function pertaining to their government and affairs, including regulation for the

protection of the public health, safety, morals and welfare.” Page v. City of Chicago, 299 Ill.

App. 3d 450, 459 (1998). Issues of employment discrimination relate to the public welfare

of a city. See Page v. City of Chicago, 299 Ill. App. 3d at 460 (considering an appeal by an

employer of a City of Chicago Human Rights’ Commission’s finding of sexual harassment).

Dr. Mitchell’s specific claims of employment discrimination, then, fall within the matrix of

those issues relating to the public welfare of Cook County.

¶ 46 In addition, the Ordinance prohibits unlawful employment discrimination when: (1) it

relates to employment that is in whole or in part in Cook County; or (2) the act of unlawful

discrimination takes place in Cook County. Cook County Ordinance No. 02-O-35, § 42-31(a)

(amended Nov. 19, 2002). Dr. Mitchell’s claims of employment discrimination by plaintiffs

relate to the county’s government and affairs, as plaintiffs are employers as defined by the

Ordinance. Dr. Mitchell’s employment and termination took place in Cook County; Bremen

Community High School is located within Cook County; its attending students live within

Cook County; and all of the alleged acts of employment discrimination occurred within Cook

County. It is clear that the prevention of employment discrimination relates to the public

welfare of Cook County and affects its local welfare and economy. Therefore, the Ordinance

pertains to the County’s government and affairs.

¶ 47 Plaintiffs’ argument that they were acting “pursuant to explicit authority granted by the

legislature and set forth in the School Code” is unavailing. While the Illinois School Code

(105 ILCS 5/24-24 et seq. (West 2010)) sets forth procedures and safeguards pertaining to

plaintiffs, nothing in the School Code permits plaintiffs to terminate their employees in a

discriminatory manner.

¶ 48 Next, we consider the second step: whether the General Assembly has preempted the use

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of home rule powers in this area. Schillerstrom, 198 Ill. 2d at 289.

¶ 49 Plaintiffs do not argue here that the home rule powers at issue have been preempted.

Rather, plaintiffs argue that: (1) “[l]egislative preemption of employment discrimination is

not necessary to insulate the plaintiffs from County regulation” because “the concept simply

does not apply to public schools” where the “Illinois Constitution’s reservation of plenary

power in the General Assembly over the pubic school system, preemption is accomplished

by the Constitution, not legislative fiat”; and (2) a finding of legislative preemption is not a

prerequisite to a determination that a particular exercise of power is beyond a home rule

unit’s government and affairs.

¶ 50 We have addressed and rejected herein plaintiffs’ argument regarding plenary power.

Regarding the prerequisite of a finding of preemption, plaintiff relies on City of Chicago v.

StubHub, Inc., 2011 IL 111127, to argue that a finding of legislative preemption is not a

prerequisite to a determination that a particular exercise of power is beyond a home rule

unit’s government and affairs. In StubHub, our supreme court answered a certified question

of “ ‘whether municipalities may require electronic intermediaries to collect and remit

amusement taxes on resold tickets.’ ” Id. ¶ 1. The court’s determination that the City of

Chicago had overstepped its home rule authority turned on whether the ordinance in question

pertained to local government and affairs pursuant to section 6(a). Ultimately, the court held

that the city had overstepped its home rule authority because the ordinance in question did

not pertain to its own government and affairs:

“The City’s ordinance–specifically the imposition of a joint and several duty on internet

auction listing services to collect and remit its amusement tax (Chicago Municipal Code

§ 4-156-020(A)) and the requirement that internet auction listing services are primarily

responsible for collecting and remitting this tax (Chicago Municipal Code § 4-156-

030(F))–does not pertain to its own government and affairs. The City has overstepped

its home rule authority.” City of Chicago v. StubHub, Inc., 2011 IL 111127, ¶ 36.

¶ 51 Our reading of StubHub does not lead us to determine that preemption is not at issue in

the case at bar. Rather, the StubHub analysis focused on the first step of the three-step

Schillerstrom analysis. Schillerstrom, 198 Ill. 2d at 289 (first, a court must “determine

whether the disputed exercise of local government power falls within section 6(a)–that is,

whether the local government’s activity is a function pertaining to its government and

affairs”; if it does, then the court must determine whether the General Assembly has

preempted the use of home rule powers in that area; if not, then the court must determine the

“proper relationship” between the local ordinance and the state statute). Because our supreme

court in StubHub concluded that the ordinance in question did not pertain to the city’s own

government and affairs, it concluded that the city had overstepped its home rule authority.

Accordingly, the court ended its analysis there, as there was no reason to continue on to the

next step in the Schillerstrom analysis.

¶ 52 We, however, have determined herein that the controversy in the case at bar does pertain

to the county’s government and affairs. Accordingly, it is appropriate for us to move on to

the second inquiry, that is, whether the General Assembly has preempted the use of home

rule powers in this area. See Schillerstrom, 198 Ill. 2d at 289. While the Commission points

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out that the Illinois Human Rights Act provides local governments, including the county,

with concurrent jurisdiction (775 ILCS 5/7-108(B) (West 2010)), neither party argues that

home rule powers in this area have been preempted by the General Assembly. Accordingly,

for the purposes of this section 2-615 motion to dismiss, which challenges the legal

sufficiency of a complaint based upon defects apparent on its face, we presume there has

been no preemption by the General Assembly.

¶ 53 Where the local government’s activity is a function pertaining to its government and

affairs, and where the General Assembly has not preempted the use of home rule powers in

this area, we next consider the “ ‘proper relationship’ ” between the local ordinance and the

state statute. Schillerstrom, 198 Ill. 2d at 289-90. Our consideration is limited to the home

rule issue at bar, that is, the county’s jurisdiction over plaintiffs. Accordingly, we herein

review the relationship between the Illinois Human Rights Act and the Cook County

ordinance.

¶ 54 The Illinois Human Rights Act provides local governments, including the county, with

concurrent jurisdiction. See 775 ILCS 5/7-108(B) (West 2010). Because the Illinois Human

Rights Act has authorized the Commission’s jurisdiction over plaintiffs and there is nothing

before us indicating that the Commission has acted outside its home rule authority, the

Commission properly exercised jurisdiction over plaintiffs.

¶ 55 D. The Motion for Prohibition

¶ 56 Moreover, because we find that the Commission properly exercised jurisdiction over

plaintiffs, we need not consider in detail plaintiffs argument that the trial court erred in

denying prohibition. The prerequisites for prohibition are:

“[A] writ of prohibition may be used to prevent a judge from acting where he has no

jurisdiction to act or to prevent a judicial act which is beyond the scope of the judge’s

legitimate jurisdictional authority. [Citation.] There are four requirements that must be

met before a writ of prohibition may be issued: (1) the action to be prohibited must be

judicial or quasi-judicial in nature; (2) the jurisdiction of the tribunal against which the

writ issues must be inferior to that of the issuing court; (3) the action prohibited must be

outside the tribunal’s jurisdiction or, if within its jurisdiction, beyond its legitimate

authority; and (4) the petitioner must be without any other adequate remedy.” (Internal

quotation marks omitted.) People ex rel. Devine v. Stralka, 226 Ill. 2d 445, 449 (2007).

Plaintiffs fall short in proving prerequisite number three, as we have determined herein that

the tribunal was acting within its jurisdiction.

¶ 57 E. The Motion to Amend

¶ 58 Plaintiffs also initially contended that the trial court erred in denying their motion to

amend their complaint. In their reply brief on appeal, however, plaintiffs clarify that, while

they continue to believe the trial court erred both in denying their motion to amend and in

“rejecting any of the jurisdictional issues they have raised,” both parties “appear to be in

agreement that all relevant arguments going to the merits of the Commission’s jurisdiction

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were made and argued below and are ripe for review.” Plaintiffs state:

“The plaintiffs believe both the original and amended Complaints stated valid causes

of action; that [the trial court] erroneously dismissed the original Complaint; that to the

extent her ruling was based on the form of the pleading, she should have allowed an

amended pleading; and that no valid basis existed for her to deny the motion to amend.

Nor do the plaintiffs believe that the Amended Complaint ‘added a new basis for

challenging the Commission’s subject matter jurisdiction’ that was not a part of the

briefing an argument of the original complaint. As discussed in the plaintiffs’ opening

brief, the proposed Amended Complaint was based not on any deficiencies they

perceived in their original Complaint or argument but on comments made by [the trial

court] going to the form of pleading.”

Plaintiffs offer that, “[s]ince the outcome of this appeal therefore turns on the merits of the

jurisdictional issues and not on whether the amendment was allowed, the trial court’s error

concerning the Amended Complaint has become secondary.” We agree, and because of our

disposition regarding the jurisdictional issue herein, find it unnecessary to further address this

issue.

¶ 59 We find that the trial court properly dismissed plaintiff’s complaint pursuant to section

2-615. From a thorough review of Illinois law and the record on appeal, it is clear that the

extraordinary remedy of a writ of mandamus was not appropriate in this case.

¶ 60 III. CONCLUSION

¶ 61 For all of the aforementioned reasons, the decision of the circuit court of Cook County

is affirmed.

¶ 62 Affirmed.

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