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Appellate Court Date: 2020.10.08
10:18:42 -05'00'
Barrall v. Board of Trustees of John A. Logan Community College,
2019 IL App (5th) 180284
Appellate Court CHERYL BARRALL, JANE BEYLER, NIKKI BORRENPOHL,
Caption DAVID COCHRAN, DAVID EVANS, MOLLY GROOM ALTER,
and JENNIFER WATKINS, Plaintiffs-Appellants, v. THE BOARD
OF TRUSTEES OF JOHN A. LOGAN COMMUNITY COLLEGE,
Defendant-Appellee.
District & No. Fifth District
No. 5-18-0284
Filed September 12, 2019
Rehearing denied November 4, 2019
Decision Under Appeal from the Circuit Court of Williamson County, No.
Review 17-MR-275; the Hon. Brad K. Bleyer, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Loretta K. Haggard, of Schuchat, Cook & Werner, of St. Louis,
Appeal Missouri, for appellants.
Don E. Prosser and Rhett T. Barke, of Gilbert, Huffman, Prosser,
Hewson & Barke, Ltd., of Carbondale, for appellee.
Panel JUSTICE CHAPMAN delivered the judgment of the court, with
opinion.
Presiding Justice Overstreet concurred in the judgment and opinion.
Justice Welch dissented, with opinion.
OPINION
¶1 The plaintiffs are tenured faculty members who were laid off from their teaching positions
by the defendant, the Board of Trustees of John A. Logan Community College. Under section
3B-5 of the Public Community College Act (Act), tenured faculty members such as the
plaintiffs have a “preferred right to reappointment” for a period of 24 months after the
beginning of the school year in which they are laid off. 110 ILCS 805/3B-5 (West 2016).
Under the same provision, “no non-tenure faculty member or other employee with less
seniority” may be hired during that period to provide a service that a tenured faculty member
with this right is “competent to render.” Id. The rights conferred by this statute are commonly
referred to as “bumping rights.” The primary issue in this appeal is the meaning of the phrase
“other employees with less seniority.” We also consider whether, under the circumstances of
this case, bumping rights apply only to teaching positions or to individual courses as well.
¶2 I. BACKGROUND
¶3 The plaintiffs filed a petition for a writ of mandamus, alleging that the defendant violated
the statute by hiring adjunct instructors to teach many of the courses previously taught by the
plaintiffs. The defendant filed a motion to dismiss, arguing that under the Second District’s
holding in Biggiam v. Board of Trustees of Community College District No. 516, 154 Ill. App.
3d 627, 634 (1987), adjuncts are not “employee[s] with less seniority” within the meaning of
the statute. The trial court granted the motion. The plaintiffs appeal, arguing that (1) Biggiam
was wrongly decided, (2) under the plain language of the statute, adjunct instructors are
“employees with less seniority” than the plaintiffs, thus giving the plaintiffs a right to be
recalled before adjuncts are hired to teach their courses, and (3) bumping rights apply to
individual courses, which are “services” the plaintiffs are “competent to render.” We reverse.
¶4 The plaintiffs filed their complaint in September 2017. They alleged that the defendant
voted in March 2016 to reduce the number of full-time faculty members employed by John A.
Logan College beginning in August 2016. As a result of this vote, 27 tenured faculty members
were laid off, including the plaintiffs. During the 2016-17 school year, the defendant hired
adjunct instructors to teach “many of the courses” previously taught by the 27 laid-off tenured
faculty members. Six of the seven plaintiffs were recalled to teach during the 2017-18 school
year, but one plaintiff, Dr. Jane Beyler, had not been recalled when the plaintiffs filed their
complaint. The plaintiffs alleged that during the 2016-17 school year, there was enough work
available to employ all seven plaintiffs full-time had the defendant not employed adjunct
instructors to teach their classes instead. They further alleged that there was sufficient work
available to employ Dr. Beyler full-time during the 2017-18 school year.
¶5 The plaintiffs requested that the court enter a writ of mandamus directing the defendant to
reinstate Dr. Beyler to a full-time teaching position. They also asked the court to award them
damages and to order the defendant to make each plaintiff whole with respect to employment
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benefits and credited service in their retirement system. Finally, the plaintiffs sought a
permanent injunction enjoining the defendant from laying off tenured faculty and employing
adjunct instructors to teach their classes during the two-year recall period.
¶6 The defendant filed a motion to dismiss pursuant to section 2-619 of the Code of Civil
Procedure (735 ILCS 5/2-619 (West 2016)). The defendant asserted two grounds for dismissal.
First, it argued that the plaintiffs’ claims were released pursuant to a “Memorandum of
Understanding and Settlement Agreement” entered into by the defendant and the faculty
association representing the plaintiffs. Second, the defendant argued that under the Biggiam
court’s interpretation, the relevant statutory provision did not prohibit it from laying off
tenured faculty members like the plaintiffs and hiring adjunct instructors to teach their courses.
¶7 The trial court found that the plaintiffs’ claims were not barred by the parties’
“Memorandum of Understanding and Settlement Agreement.” However, the court concluded
that it was “bound to follow Biggiam v. Board of Trustees.” As stated previously, that case held
that adjunct instructors are not “other employee[s] with less seniority” and that they may
therefore be hired to teach the courses of tenured faculty members during the statutory recall
period. Biggiam, 154 Ill. App. 3d at 643. The Biggiam court also held that bumping rights
apply only to teaching positions, not to individual courses. See id. at 647. Because the trial
court found that it was obliged to follow these holdings, it granted the motion to dismiss and
entered judgment in favor of the defendant. This appeal followed.
¶8 II. ANALYSIS
¶9 This appeal comes to us after a ruling on a section 2-619 motion to dismiss. Thus, we
assume that all of the well-pled allegations in the complaint are true. Ray v. Beussink &
Hickam, P.C., 2018 IL App (5th) 170274, ¶ 12. We conduct a de novo review of the court’s
ruling. Glasgow v. Associated Banc-Corp., 2012 IL App (2d) 111303, ¶ 11. Resolution of the
parties’ arguments requires us to construe section 3B-5 of the Act (110 ILCS 805/3B-5 (West
2016)). Statutory construction is a question of law, which is likewise subject to de novo
review. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 439 (2010).
¶ 10 Our primary goal in statutory construction is to determine and effectuate the intent of the
legislature. Nowak v. City of Country Club Hills, 2011 IL 111838, ¶ 11. The best indication of
this intent is the express language of the statute itself. Id. Where a statute is clear and
unambiguous, we must apply it as written without resorting to extrinsic aids of statutory
construction. Id. Only if a statute is ambiguous may we look beyond its express language and
rely on extrinsic aids such as legislative history or rules of statutory construction. Id. ¶ 13. In
construing a statute, we must consider the purposes of the statute and the problems it was
intended to remedy. People v. Davis, 296 Ill. App. 3d 923, 926 (1998). We may also find
guidance from judicial interpretations of statutes that serve similar purposes, such as the tenure
provisions in the School Code. See Board of Trustees of Community College District No. 508
v. Taylor, 114 Ill. App. 3d 318, 323 (1983).
¶ 11 The relevant statute governs layoffs resulting from a community college board’s decision
to reduce the number of faculty members it employs. The statute also governs the recall of
laid-off faculty members. The recall provision is at issue in this case. It provides:
“For the period of 24 months from the beginning of the school year for which the
faculty member was dismissed, any faculty member shall have the preferred right to
reappointment to a position entailing services he is competent to render prior to the
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appointment of any new faculty member; provided that no non-tenure faculty member
or other employee with less seniority shall be employed to render a service which a
tenured faculty member is competent to render.” 110 ILCS 805/3B-5 (West 2016).
The questions in this case are whether the adjunct instructors hired to teach the plaintiffs’
courses are “other employee[s] with less seniority” and, if so, whether the plaintiffs have
bumping rights with respect to individual courses.
¶ 12 We first consider whether adjunct instructors are “other employee[s] with less seniority.”
The Act defines “faculty member” as “a full time employee” of a community college or
community college district who is “regularly engaged in teaching or academic support
services, but excluding supervisors, administrators and clerical employees.” Id. § 3B-1.
However, there are no statutory definitions for the terms “employee” and “seniority.” See id.
Terms that are not defined by statute must be given their plain and ordinary meaning. Alvarez
v. Pappas, 229 Ill. 2d 217, 228 (2008). The plain and ordinary meaning of the word
“employee” is a person who is “employed by another usually for wages or salary and in a
position below the executive level.” Webster’s Ninth New Collegiate Dictionary 408 (1983).
Adjunct instructors clearly fall within this definition. The plain and ordinary meaning of the
term “seniority” is “a privileged status attained by length of continuous service.” Id. at 1071.
There is no dispute that adjunct instructors, who are hired on a year-to-year basis, do not attain
any seniority. The plaintiffs clearly have more seniority than employees with no seniority. We
therefore find that, giving this statutory language its plain and ordinary meaning, the adjunct
instructors are “employee[s] with less seniority” than the plaintiffs.
¶ 13 The defendant argues, however, that the phrase “employee with less seniority” is
ambiguous due to the structure of the sentence containing the recall provisions. The
defendant’s argument relies on the differences between the two clauses of the sentence. As
noted previously, the first clause provides that a tenured faculty member has “the preferred
right to reappointment to a position entailing services he is competent to render prior to the
appointment of any new faculty member.” (Emphasis added.) 110 ILCS 805/3B-5 (West 2016).
The second clause states, “provided that no non-tenure faculty member or other employee with
less seniority” may be hired to provide services the tenured faculty member is “competent to
render.” (Emphasis added.) Id. The defendant notes that a proviso is generally intended to
qualify the language that comes before it. Cardwell v. Rockford Memorial Hospital, 136 Ill. 2d
271, 278 (1990). The defendant therefore argues that because the first clause unquestionably
gives tenured faculty members a preferential right to recall only over faculty members, this
same limitation must be read into the second clause due to its “proviso” language. We disagree.
¶ 14 We do not find the defendant’s proffered interpretation to be a reasonable reading of the
statute for two reasons. First, we believe the fact that the legislature deliberately chose to use
broader language throughout the second clause demonstrates that it intended that clause to
have broader application than the first clause. The reason for the difference in the language of
two clauses is illustrated by the facts of this case. The defendant hires adjunct instructors, also
known as “term faculty,” on a year-to-year basis to teach individual classes as needed. By
contrast, faculty members such as the plaintiffs are hired to fill teaching positions. This is not
an uncommon practice. See, e.g., Biggiam, 154 Ill. App. 3d at 645 (describing a similar hiring
practice). While the first clause of the recall provision deals with the right to be recalled to a
teaching position, the second clause applies more broadly to any service a tenured faculty
member is competent to render, such as teaching a specific course. Because adjuncts are only
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hired to teach individual courses as needed, there was no need for the legislature to include
them in the clause governing reappointment to positions. If the legislature did not intend the
second clause to apply to any and all employees with less seniority, it could have expressly
limited its application to faculty members. It did not do so. Instead, it used the broad catch-all
phrase “other employee[s] with less seniority.”
¶ 15 Second, and more importantly, the legislative history of the statute shows that the
interpretation urged by the defendant is at odds with the intent of the legislature. During the
floor debates on the bill that added the tenure provisions to the Act, Representative Getty urged
other legislators to support his bill because “the basic question here is a question of
fundamental fairness.” 81st Ill. Gen. Assem., House Proceedings, June 18, 1979, at 99
(statements of Representative Getty). He argued that the tenure provisions were necessary to
protect community college teachers “from the arbitrary and sometimes capricious actions of
some[,] and only some[,] community colleges.” Id. at 100. He explained, “This is needed
protection so that a man or woman, who’s dedicated many years of teaching honorably,
doesn’t all of a sudden find himself with a $22,000 a year job being cut so that the community
college can hire two for [$]11,250.” Id. That is the essence of what the plaintiffs alleged
occurred in this case.
¶ 16 We acknowledge that, as the defendant emphasizes, the Second District reached the
opposite conclusion in its 1987 decision in Biggiam. We note that while this case involves a
ruling on a motion to dismiss, Biggiam involved cross-appeals from a trial court’s judgment
after a hearing. In light of this procedural posture, the factual record in that case was more
developed than the factual record in this case. As the plaintiffs point out, aspects of the case
were factually distinguishable from the case before us. The Biggiam court addressed both of
the questions we address today. The factual distinctions between Biggiam and this case are
crucial with respect to the court’s determination that the plaintiffs there did not have bumping
rights with respect to individual courses. However, those distinctions are immaterial with
respect to the court’s interpretation of the phrase “employee[s] with less seniority.” With this
in mind, we turn our attention to the Second District’s decision.
¶ 17 In Biggiam, the defendant community college district reduced the number of full-time
faculty members it employed. Its decision was based on low enrollment in specific programs,
low enrollment overall, and the financial condition of the college at which the plaintiffs taught.
Biggiam, 154 Ill. App. 3d at 630.
¶ 18 One of the plaintiffs in that case was Newlon, a theater teacher. Id. at 631. Although he
primarily taught theater classes, he also occasionally taught an introductory speech class on an
overload basis. Id. at 632. After Newlon was laid off due to the reduction in faculty, the college
continued to offer numerous sections of the introductory speech class he previously taught, but
only one theater class. Id. Plaintiffs Biggiam and Moreland taught full course-loads of welding
classes prior to the layoffs. After the layoffs, only one welding class was offered. Id. at 633.
Plaintiff Vargas was hired as a counselor, not a teacher. However, she occasionally taught
psychology classes on an overload basis. Id. She had a doctor of education degree in counselor
education but did not have advanced degrees in psychology or educational psychology. Id. at
634. After Vargas was laid off from her position as a counselor, the college offered several
sections of the psychology courses she had previously taught. Some of those sections were
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taught by part-time instructors or tenured faculty members with less seniority than Vargas. Id.
at 633-34. 1
¶ 19 The trial court ruled in favor of Newlon, Biggiam, and Moreland. Id. at 628. It found that
under section 3B-5, Newlon had the right to bump any part-time, nontenured, or less senior
tenured teachers from teaching the introductory speech class he previously taught. The trial
court similarly found that Biggiam and Moreland had the right to bump part-time, nontenured,
or less senior tenured teachers from teaching welding classes. Id. The court ruled against
Vargas, however. Id. It concluded that she would have bumping rights if any counseling
positions opened during the 24-month recall period mandated by section 3B-5, but she did not
have bumping rights with respect to psychology classes because she was not qualified to teach
psychology under the applicable provisions of the parties’ collective bargaining agreement. Id.
at 629. As noted previously, both the defendant and the plaintiffs appealed different aspects of
the trial court’s ruling. Id. at 628.
¶ 20 The Second District began its analysis by considering whether section 3B-5 gives tenured
faculty members bumping rights “only with respect to other faculty members or whether such
rights may be asserted over part-time instructors as well.” Id. at 638. The court also considered
whether the parties’ collective bargaining agreement gave faculty members bumping rights
over part-time instructors. Id. The plaintiff teachers argued that the phrase “employee with less
seniority” must be read to include part-time instructors in light of the purpose behind the tenure
provisions. They argued that tenure provisions are meant to “provide priority job protection to
tenured teachers ‘as against employees of lower priority status.’ ” Id. at 642.
¶ 21 In rejecting the teachers’ argument about the purpose of tenure, the Second District noted
that “it is proper to compare the statute in question with statutes concerning related subjects.”
Id. It therefore considered language from an Illinois Supreme Court case that discussed the
purposes of the Teacher Tenure Law under the School Code. Id. (citing Birk v. Board of
Education of Flora Community Unit School District No. 35, 104 Ill. 2d 252 (1984)). In relevant
part, the Illinois Supreme Court explained in Birk that “[t]he primary purpose of the tenure
provisions of the School Code is to give tenured teachers priority over non-tenured teachers
[citation], and, as between tenured teachers, to give priority to those with the longer length of
continuing service.” Birk, 104 Ill. 2d at 257. What the Birk court did not say appears to have
been more significant to the Biggiam court than what it did say. Specifically, the Birk court did
not explicitly state that tenure also serves the purpose of giving tenured teachers priority over
substitute teachers or any other category of teachers who are not entitled to attain tenure or
accrue any form of seniority. See id. As such, the Biggiam court found that the plaintiff
teachers’ argument in that case “ascribe[d] a far broader purpose” to the Act’s similar tenure
provisions than the legislature intended. Biggiam, 154 Ill. App. 3d at 642.
¶ 22 The Biggiam court also rejected the teachers’ contention that the phrase “other
employee[s] with less seniority” included part-time instructors. The court reasoned that
because part-time instructors do not accumulate “seniority,” as defined under the parties’
collective bargaining agreement, they “cannot be considered to be ‘any other employee with
1
We note that there were two additional plaintiffs involved. One of the plaintiffs did not have
tenure. Biggiam, 154 Ill. App. 3d at 629. His claims related to rights he had under the parties’ collective
bargaining agreement. Id. at 636. The sixth plaintiff voluntarily dismissed her complaint prior to the
trial court’s hearing in the matter and was not involved in the appeal. Id. at 628.
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less seniority.’ ” Id. at 643. The court acknowledged that a word in a statute, such as
“employee,” should ordinarily be given its “plain, ordinary, and commonly accepted
meaning.” Id. However, the court found that it was nevertheless appropriate to interpret the
phrase “other employee with less seniority” to mean “ ‘any other tenured employee with less
seniority.’ ” (Emphasis in original.) Id. The court therefore held that the trial court erred in
construing that phrase to include the part-time instructors. Id.
¶ 23 The court went on to consider whether section 3B-5 gives tenured faculty members
bumping rights with respect to individual courses as well as to full-time teaching positions. In
answering that question, the court noted that when a reduction in faculty takes place, the
“positions” held by laid-off faculty members cease to exist. The court further observed that
“part-time instructors are hired on a course-by-course basis to teach given courses as needed.”
Id. at 645. The court explained that, as such, part-time instructors, unlike full-time faculty
members, do not fill “positions.” Id.
¶ 24 The court also looked at a line of cases arising under the Teacher Tenure Law in the School
Code. Under those cases, courts consistently held that school boards are not required to
“ ‘gerrymander’ ” courses taught by less senior teachers and combine them into a single
position for a laid-off teacher to fill. Id. at 644 (citing Peters v. Board of Education of Rantoul
Township High School District No. 193, 97 Ill. 2d 166 (1983), Hancon v. Board of Education
of Barrington Community Unit School District No. 220, 130 Ill. App. 3d 224 (1985), Catron v.
Board of Education of Kansas Community Unit School District No. 3, 126 Ill. App. 3d 693
(1984), and Higgins v. Board of Education of Community Unit School District No. 303, 101 Ill.
App. 3d 1003 (1981)). We note that those cases are not precisely analogous to the situation at
issue in Biggiam. They involved laid-off teachers who were qualified to teach some, but not
all, of the courses taught by less senior teachers whose positions had not been eliminated. In
those cases, the courts held that a more senior teacher has the right to bump a less senior
teacher from a position only if the more senior teacher is qualified to teach all of the courses
included in the position; the district is not required to cobble together a new teaching position
by allowing the teacher to bump less senior teachers from individual courses. Peters, 97 Ill. 2d
at 169, 172; Hancon, 130 Ill. App. 3d at 231; Catron, 126 Ill. App. 3d at 695-96; Higgins, 101
Ill. App. 3d at 1008. Nevertheless, the Biggiam court found these holdings applicable to the
circumstances before it and held that section 3B-5 does not give tenured faculty members the
right to bump less senior employees “from certain courses as opposed to the positions in the
college curriculum which are held by them.” (Emphases in original.) Biggiam, 154 Ill. App. 3d
at 647.
¶ 25 We express no opinion as to the whether the Biggiam court correctly held that bumping
rights do not apply to individual courses under the facts and circumstances of that case. We
need not do so because the instant case is factually distinguishable from Biggiam in relevant
respects. There, as we have discussed, not only were the plaintiffs’ positions eliminated, nearly
all of the courses they regularly taught were also eliminated. Two of the plaintiffs wanted
bumping rights over part-time instructors teaching courses that they had previously taught on
an occasional basis even though those courses were outside their areas of expertise and were
not part of their positions. Here, by contrast, the plaintiffs have alleged that the defendant hired
adjunct instructors to teach the very same courses they taught before their positions were
eliminated.
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¶ 26 In that regard, we find the circumstances of this case far more analogous to a different line
of cases involving the tenure provisions of the School Code. Those cases hold that school
districts may not rearrange teaching assignments in a manner that defeats the rights of tenured
teachers even if they do so in good faith. See, e.g., Pennell v. Board of Education of Equality
Community Unit School District No. 4, 137 Ill. App. 3d 139, 143 (1985); Hayes v. Board of
Education of Auburn Community Unit School District, 103 Ill. App. 3d 498, 502 (1981);
Hagopian v. Board of Education of Tampico Community Unit School District No. 4, 56 Ill.
App. 3d 940, 944 (1978). That might happen, for example, if the district assigns most of the
teacher’s classes to other teachers. See, e.g., Pennell, 137 Ill. App. 3d at 144; Hayes, 103 Ill.
App. 3d at 502. Here, similarly, the plaintiffs have alleged that the defendant effectively
eliminated teaching positions to which they could have been reappointed by assigning their
courses to adjunct instructors, over whom they should have preference under section 3B-5. We
conclude that the plaintiffs have bumping rights with respect to individual courses.
¶ 27 We note that, although Biggiam is distinguishable from this case with respect to its
determination that the plaintiffs’ bumping rights did not apply to individual courses, the
court’s interpretation of the phrase “other employee with less seniority” would be applicable
here should we choose to follow its holding on that issue. We emphasize, however, that we are
not obliged to follow the decisions of other districts of the Illinois Appellate Court. People v.
York, 2016 IL App (5th) 130579, ¶ 25.
¶ 28 The plaintiffs argue that we should not follow Biggiam for two reasons. First, they assert
that the court’s interpretation of the phrase “other employee[s] with less seniority” was dicta.
This is so, they argue, because the court could have disposed of the matter before it without
addressing that question. In particular, the plaintiffs emphasize that the Biggiam plaintiffs
wanted bumping rights to courses they were not qualified to teach. Second, the plaintiffs argue
that Biggiam was wrongly decided. We cannot agree with the plaintiffs’ contention that the
Biggiam court’s interpretation of the phrase “other employee[s] with less seniority” was dicta.
The court explicitly stated that it believed this issue to be “foremost in this appeal.” Biggiam,
154 Ill. App. 3d at 638. However, we do agree with the plaintiffs that Biggiam was wrongly
decided.
¶ 29 We reach this conclusion for two reasons. First, as we already discussed, we believe that an
employee with no seniority is necessarily an employee with less seniority than a faculty
member who has any seniority at all. Thus, by its express terms, the statute gives tenured
faculty members preference over adjunct instructors who have no seniority. We disagree with
the Biggiam court’s conclusion to the contrary.
¶ 30 Second, we believe that the Biggiam court read the language it quoted from Birk out of
context. The plaintiff in Birk was a tenured high school guidance counselor. Birk, 104 Ill. 2d at
254. The school where he worked employed two guidance counselors. The other counselor had
eight years less seniority than the plaintiff. Id. at 255. Both guidance counselors worked 10
months of the year. Id. The board of education notified the plaintiff that it would be reducing
his contractual service to nine months in the following school year. However, the other
guidance counselor was retained in a 10-month position even though she had less seniority
than the plaintiff. Id. The plaintiff asked the board of education to reinstate him in the
10-month position in place of the less senior counselor, but the board refused to do so. Id. The
plaintiff sued the board. The trial court dismissed his petition, and the plaintiff appealed. The
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appellate court reversed the trial court’s ruling, and the board appealed to the supreme court.
Id. at 254.
¶ 31 The Illinois Supreme Court noted that the only question before it was whether the bumping
rights in the Teacher Tenure Law applied to the school district’s decision to reduce the
plaintiff’s service from 10 months to 9 months. Id. at 255. In answering that question in the
affirmative, the court explained that a tenured faculty member is “entitled to a reading of [the
relevant statute] which is consistent with its prime purpose of protecting those who have
qualified for its protections.” Id. at 257. Significantly for our purposes, this holding gave the
plaintiff the right to bump a tenured guidance counselor with less seniority from the extra
month of service. Thus, the Birk court was not called upon to decide the rights of a tenured
teacher over an employee who, like the adjunct instructors in this case, did not have the right to
accrue seniority. The Birk court’s silence on a question that was not before it does not support
the Biggiam court’s conclusion that tenure provisions are intended to serve the limited purpose
of giving tenured teachers priority over other tenured teachers with less seniority and full-time
teachers who have not yet attained tenure. Because we do not find the Biggiam court’s
reasoning persuasive, we choose not to follow its holding.
¶ 32 The defendant points out, however, that the legislature amended section 3B-5 subsequent
to the Second District’s decision in Biggiam without changing the relevant language. See Pub.
Act 86-501, § 1 (eff. Jan. 1, 1990) (amending 110 ILCS 805/3B-5). The defendant argues that
we must presume that the legislature was aware of the Second District’s interpretation of the
relevant statutory language when it did so. See Perry v. Department of Financial &
Professional Regulation, 2018 IL 122349, ¶ 67. The defendant further argues that because the
legislature did not change the relevant language, we must also presume that the court intended
that language to have the meaning ascribed to it by the Biggiam court. See Illinois Power Co. v.
City of Jacksonville, 18 Ill. 2d 618, 622 (1960); People ex rel. Nelson v. Wiersema State Bank,
361 Ill. 75, 78-79 (1935).
¶ 33 The defendant’s argument correctly states one important rule of statutory construction, but
we do not find the argument persuasive. It is worth emphasizing that the presumption relied
upon by the defendant is a “general rule” of statutory construction, and it does not apply where
a contrary legislative intent is clear. (Emphasis added.) Nelson, 361 Ill. at 78-79. In light of
both the statutory language itself and our consideration of other rules of statutory construction,
we find that a contrary legislative intent is abundantly clear.
¶ 34 Another basic principle of statutory construction is that courts should consider the purpose
of the law and the problems it was intended to remedy. Davis, 296 Ill. App. 3d at 926. Both the
Illinois Supreme Court and this court have had occasion to discuss the purpose behind the
tenure provisions in the School Code. In Birk, the Illinois Supreme Court explained that “[t]he
legislature’s goal in creating teacher tenure was to assure continuous service on the part of
teachers of ability and experience by providing those teachers with some degree of job
security.” Birk, 104 Ill. 2d at 257. This court observed that by providing teachers with job
security, the tenure system provides “continuity and stability for students” and it enables
school districts to “attract teachers of high quality[ ] and retain experienced teachers.” Pennell,
137 Ill. App. 3d at 147. The tenure provisions in the Act were enacted to serve these same
purposes. Piatak v. Black Hawk College District No. 503, 269 Ill. App. 3d 1032, 1036 (1995).
The interpretation urged by the defendant would undermine the job security that tenure is
meant to provide by allowing community colleges to replace faculty members with lower-paid,
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less experienced adjuncts even when their courses are still being offered. As we discussed
previously, the legislative history of the statute indicates that the legislature specifically
intended to avoid this result. See 81st Ill. Gen. Assem., House Proceedings, June 18, 1979, at
100 (statements of Representative Getty). The defendant’s interpretation is also at odds with
the broader purposes of tenure—that is, enabling community colleges to attract and retain the
most qualified, experienced teachers available.
¶ 35 Similarly, we should consider the consequences that might result from our interpretation of
the statute. In doing so, we must presume that the legislature did not intend an absurd or unjust
result. Solon, 236 Ill. 2d at 441. The result urged by the defendant in this case would give
tenured faculty members priority over less senior tenured faculty members and faculty
members who do not yet have tenure, while allowing colleges to replace them with employees
with the least seniority—adjunct instructors. This would be an absurd result. We therefore
reject both the defendant’s interpretation of the statute and its contention that the legislature
implicitly ratified the Biggiam court’s holding by subsequently amending the statute without
changing the relevant language.
¶ 36 We hold that the phrase “employee[s] with less seniority” is not limited to tenured
employees or employees eligible to attain tenure; rather, the phrase includes all employees
with less seniority, including those with no seniority. Thus, it includes the adjunct instructors
hired to teach the classes formerly taught by the plaintiffs in this case. We also hold that the
plaintiffs have bumping rights with respect to individual courses under the circumstances
alleged here. We will therefore reverse the order of the trial court dismissing the plaintiffs’
complaint.
¶ 37 The plaintiffs urge us to remand this matter with directions for the trial court to enter a writ
of mandamus and to hold a hearing on the issue of damages only. We do not believe it would
be appropriate to do so. Although we assume that all well-pled facts in the plaintiffs’ complaint
are true for purposes of a ruling on a motion to dismiss, it would be inappropriate for the trial
court to enter a final judgment in the plaintiffs’ favor without requiring the plaintiffs to prove
those allegations. There may also be additional factual and legal questions for the court to
resolve that were not raised in the defendant’s motion to dismiss. We will therefore remand the
matter for further proceedings on all issues.
¶ 38 III. CONCLUSION
¶ 39 For the foregoing reasons, we reverse the order of the trial court dismissing the plaintiffs’
complaint. We remand for further proceedings consistent with this opinion.
¶ 40 Reversed and remanded.
¶ 41 JUSTICE WELCH, dissenting:
¶ 42 I respectfully disagree with my colleagues’ interpretation of section 3B-5 of the Act (110
ILCS 805/3B-5 (West 2016)). Here, the plain language of the statute states that
“any faculty member shall have the preferred right to reappointment to a position
entailing services he is competent to render prior to the appointment of any new faculty
member; provided that no non-tenure faculty member or other employee with less
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seniority shall be employed to render a service which a tenured faculty member is
competent to render.” Id.
¶ 43 The majority finds that this language in the statute includes adjunct instructors. The
majority’s reasoning is based on the notion that the phrase “less seniority” includes faculty
members with no seniority because a person with no seniority by definition has less seniority
than tenured faculty members. However, this reasoning ignores the fact that adjunct instructors
do not accrue seniority and will therefore never have any more or less seniority, as they are
hired on a year-by-year basis. It is clear from the plain language of the statute that it was meant
to apply to those faculty members who are able to accrue any seniority and does not apply to
the adjunct instructors.
¶ 44 The majority distinguishes the Second District’s decision in Biggiam v. Board of Trustees
of Community College District No. 516, 154 Ill. App. 3d 627 (1987), and reverses the trial
court. Though I agree with the majority that we are not bound by another appellate court
district’s ruling (see People v. York, 2016 IL App (5th) 130579, ¶ 25), we are bound by the
plain language of the statute, which must be “afforded its plain, ordinary, and popularly
understood meaning” (emphasis added) (Alvarez v. Pappas, 229 Ill. 2d 217, 228 (2008) (citing
People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 279 (2003))). The trial court properly and
accurately applied the plain language of the statute. Moreover, I disagree with the plaintiffs
that this application of the statute would evade the purposes of tenure, as the defendant is
merely trying to continue to provide education in light of the budget crisis. I would therefore
affirm the trial court’s granting of the defendant’s motion to dismiss.
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