Opinion

Beyer v. Board of Education of the City of Chicago

  • 2019 IL App (1st) 191152
Court
Appellate Court of Illinois
Filed
Dec 27, 2019
Status
Published
Cited by
4 cases
Authority
More cited than 52.7%

The opinion

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Appellate Court Date: 2021.02.03

09:46:34 -06'00'

Beyer v. Board of Education of the City of Chicago, 2019 IL App (1st) 191152

Appellate Court MICHAEL BEYER, THEA KACHORIS-FLORES, DEBORA

Caption LAND, CHRISTOPHER MCCABE, JEZAIL JACKSON, and

SIMEON HENDERSON, Plaintiffs, v. THE BOARD OF

EDUCATION OF THE CITY OF CHICAGO, JANICE JACKSON,

in Her Official Capacity as CEO of Chicago Public Schools, MARY

ERNESTI, in Her Official Capacity as Director of Employment

Engagement for Chicago Public Schools, and JENNIFER REGER, in

Her Official Capacity as Hearing Officer in the Office of Employee

Engagement for Chicago Public Schools, Defendants-Appellees

(Michael Beyer, Christopher McCabe, and Jezail Jackson, Plaintiffs-

Appellants).

District & No. First District, Sixth Division

No. 1-19-1152

Filed December 27, 2019

Decision Under Appeal from the Circuit Court of Cook County, No. 18-CH-14198; the

Review Hon. Anna M. Loftus, Judge, presiding.

Judgment Affirmed.

Counsel on William J. Quinlan, Lisa H. Quinlan, Kenneth M. Sullivan, David E.

Appeal Hutchinson, and Kamil Z. Merchant, of Quinlan Law Firm, LLC, of

Chicago, for appellants.

Ruth F. Masters, of MastersLaw, of Oak Park, for appellees.

Panel JUSTICE CONNORS delivered the judgment of the court, with

opinion.

Justices Cunningham and Harris concurred in the judgment and

opinion.

OPINION

¶1 Plaintiffs Michael Beyer, Christopher McCabe, and Jezail Jackson appeal the circuit

court’s denial of injunctive and declaratory relief and a writ of mandamus related to the process

used by defendants, the Board of Education of the City of Chicago (Board), Janice Jackson,

Mary Ernesti, and Jennifer Reger, to suspend Beyer without pay from his position as principal

of Ogden Elementary School and Ogden International High School. On appeal, plaintiffs

contend that (1) the circuit court should have enjoined Beyer’s unlawful suspension,

(2) defendant Jackson, the chief executive officer of Chicago Public Schools (CEO Jackson),

unlawfully conducted a rehearing of Beyer’s presuspension hearing, and (3) coplaintiffs

Christopher McCabe and Jezail Jackson 1 have standing as members of Ogden’s local school

council (LSC) and as parents of children who attend Ogden. We affirm.

¶2 I. BACKGROUND

¶3 Beyer had been a teacher and administrator in Chicago Public Schools since 2003 and

became Ogden’s principal in July 2015. In August 2018, Ogden’s LSC voted to extend Beyer’s

contract through June 2023. Approximately two months earlier, in June 2018, the Board’s

inspector general issued a report concluding that Ogden staff improperly unenrolled students

who took extended absences from school, which altered the school’s attendance rate. The

Board acted on the report and initiated termination proceedings against Beyer in November

2018. The substance of the report’s allegations, which Beyer disputes, are not at issue in this

appeal. Instead, this appeal concerns the process surrounding Beyer’s termination—

specifically, that Beyer participated in two presuspension hearings. The first hearing took place

in November and December 2018, and the second hearing took place in January 2019.

¶4 On November 1, 2018, the Board sent Beyer a letter titled, “Re: Notice of Reassignment,”

stating that, effective that same day, Beyer was “removed from all duties and responsibilities

as the principal of Ogden Elementary School and Ogden International High School.” Beyer’s

reassignment was based on findings that he condoned or encouraged falsification of attendance

records. Beyer was “reassigned home,” where he would continue to receive his normal pay

and benefits. Beyer was directed not to return to Ogden without written authorization and was

required to immediately turn over all Board property, “such as school keys, laptops, cellular

phone and other equipment.” The Board also notified Beyer that CEO Jackson was considering

1

The coplaintiffs initially included other members of the Ogden LSC, but they were voluntarily

dismissed from the case in the circuit court or are otherwise not part of this appeal.

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a recommendation to terminate his employment. A presuspension hearing, which could result

in a suspension without pay, was scheduled for November 15, 2018.

¶5 On November 14, 2018, plaintiffs filed a motion for a temporary restraining order and

preliminary injunction, requesting that the court enjoin defendants from conducting the

presuspension hearing. Plaintiffs cited a section of the Illinois Administrative Code that stated

that a principal could be suspended without pay “in accordance with rules prescribed by the

Board.” 23 Ill. Adm. Code 51.35(b) (2012). However, defendants had not promulgated any

written rules or procedures. As relief, plaintiffs requested an order enjoining defendants from:

(1) terminating Beyer’s employment without adequate due process of law, (2) suspending

Beyer’s pay without adequate due process of law, (3) conducting or holding any hearing until

defendants established and promulgated rules to govern the conduct of the proceedings, and

(4) conducting or holding any hearing until defendants provided Beyer with certain evidence

and information. After a hearing, the court entered an order that any finding made by the

presuspension hearing officer would be stayed for 10 business days.

¶6 Beyer’s first presuspension hearing was held on November 15 and December 6, 2018. At

the hearing, the hearing officer, Mary Ernesti, stated that “there are no written rules for the pre-

suspension procedures.” She also stated that the presuspension hearing was not a full

evidentiary hearing and the purpose of the presuspension hearing was to demonstrate that there

was “a factual basis to move forward with taking Principal Beyer out of paid status while his

termination is being sought.”

¶7 A third day of the hearing was scheduled for December 20, 2018, but did not occur. On

December 10, 2018, plaintiffs filed a motion to terminate the presuspension hearing, asserting

in part that defendants had not identified any rules for the presuspension hearing as required

by law. Plaintiffs added that a resulting suspension without pay would be void. Plaintiffs urged

the court to terminate the presuspension hearing process “so CPS can attempt to move forward

with separate procedures prescribed by law.” Plaintiffs also maintained that other aspects of

the presuspension hearing deprived Beyer of his due process right to a fair and impartial

tribunal. A hearing on plaintiffs’ motion was set for January 11, 2019, and the parties agreed

to advise the hearing officer to postpone the third date of the hearing.

¶8 As noted above, the third day of the hearing did not take place. On January 9, 2019, the

Board’s counsel informed Beyer’s counsel that “[t]he prior pre-suspension hearing has come

to an end.” The Board’s counsel further stated that the CEO planned to file amended dismissal

charges and guidelines covering the presuspension process, and would “set a new pre-

suspension date in the near future.”

¶9 In the meantime, the Board authorized the CEO to establish protocols to suspend a teacher

or principal without pay, and CEO Jackson issued “Guidelines Governing Pre-Suspension

Hearings for Tenured Teachers and Contract Principals,” with an effective date of January 23,

2019. On January 24, 2019, Beyer was notified that a second presuspension hearing was

scheduled for January 31, 2019. CEO Jackson also issued amended dismissal charges, which

added allegations that Beyer had engaged in an unauthorized disclosure of confidential

information.

¶ 10 In a letter to the Board’s counsel dated January 25, 2019, plaintiffs’ counsel maintained

that the Board’s attempt to rehear and/or modify its previous decision was improper and

requested that the Board cancel the second presuspension hearing. On January 30, 2019,

plaintiffs filed an emergency motion for a temporary restraining order to enjoin the Board from

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holding the second presuspension hearing. The circuit court was closed on January 30 and 31

because of extreme weather. The second presuspension hearing went on as scheduled on

January 31.

¶ 11 The hearing officer, Jennifer Reger, issued a written memorandum of her findings on

February 6, 2019. The hearing officer recalled that Beyer’s counsel maintained that the second

presuspension hearing was unlawful. As for the merits of the matter at hand, the hearing officer

found that even without the evidence and testimony about the student attendance allegation,

the amended dismissal charges provided cause to suspend Beyer without pay pending the

outcome of a dismissal hearing. Subsequently, CPS sent a letter to Beyer informing him that

based on the January 31 presuspension hearing, he would be suspended without pay effective

February 22, 2019. Before it could go into effect, the suspension without pay was stayed by

the circuit court.

¶ 12 On February 7, 2019, plaintiffs filed a “Motion to Declare Re-Hearing of Pre-Suspension

Hearing as Unlawful, for Writ of Mandamus, and/or to Enjoin Defendants from Suspending

Dr. Beyer Without Pay Pursuant to the Second Pre-Suspension Hearing and February 6, 2019

Notification of Suspension,” which this court will refer to as the “motion to declare.” Plaintiffs

stated that an administrative agency may not hold a rehearing or modify or alter its decisions

without express statutory language authorizing it to do so. Neither the School Code nor the

Illinois Administrative Code included such language. Plaintiffs requested that the court enjoin

defendants from suspending Beyer without pay pursuant to the unlawful rehearing, in addition

to declaratory and mandamus relief.

¶ 13 Plaintiffs were also given leave to file a six-count second amended complaint. The first

three counts of that complaint are not at issue in this appeal, so we only summarize counts IV,

V, and VI. Count IV sought a declaratory judgment that the second presuspension hearing was

unlawful because the rehearing exceeded defendants’ statutory authority. Count V sought a

temporary restraining order and preliminary injunction to enjoin defendants from terminating

Beyer’s employment without due process of law, suspending Beyer without pay in violation

of Illinois law, and taking any further action in conjunction with the second presuspension

hearing or notification of suspension without pay. According to the complaint, plaintiffs were

likely to succeed on the merits of their claim because, without express statutory language, an

administrative agency does not have jurisdiction to grant a rehearing or modify or alter its

decisions. Count VI sought a writ of mandamus, stating in part that CEO Jackson had a clear

duty to initiate presuspension proceedings only in accordance with the law.

¶ 14 Defendants filed a response to the motion to declare, asserting in part that the LSC plaintiffs

did not have standing. Defendants stated that the LSC plaintiffs had no legally cognizable

interest in Beyer’s removal and nothing in the School Code gives LSC members the authority

to object to the CEO’s removal of a principal. Further, the Board did not rehear or modify any

final decision, and CEO Jackson had statutory authority to suspend Beyer without pay.

¶ 15 In reply, plaintiffs asserted in part that the issue of the LSC plaintiffs’ standing was not

properly before the court because it was not raised in a motion to dismiss under section 2-

619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2018)). That

aside, the LSC plaintiffs had standing because Beyer’s unlawful suspension and termination

would infringe on the LSC’s statutory authority to select the principal.

¶ 16 At a hearing on April 25, 2019, plaintiffs’ counsel asserted that the operative decision after

the first hearing was a “decision not to suspend [Beyer], and a decision not to suspend [Beyer]

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without pay.” On the standing issue, defendants’ counsel noted that, as for raising standing,

they had not been able to answer or otherwise plead to the case yet and had not been ordered

to do so. According to the court, for plaintiffs to assert that defendants could not raise a

standing argument “is kind of disingenuous because you haven’t allowed them opportunity to

and you’re asking me for judgment right away.” The court further stated defendants had not

had an opportunity to file an answer because an amended complaint had been proposed.

¶ 17 On May 23, 2019, the circuit court issued a 29-page written order that dismissed all but

one count (alleging a violation of the Illinois Whistleblower Act) of plaintiffs’ second amended

complaint. Again, we only summarize the court’s order as to counts IV, V, and VI. The court

stated that, as a result of extensive briefing and oral argument, the court could address both the

motion to declare and the underlying viability of much of the case itself. The court further

stated that in addition to a preliminary injunction, the motion to declare requested relief as to

the ultimate merits of the case, which pushed the motion “beyond the scope of a preliminary

injunction, under which the Court may not decide controverted rights or the merits of the case.”

(Emphasis in original.) Other than the request for a preliminary injunction, the court treated

the rest of the motion as a motion for judgment on the pleadings. The court also noted that the

parties expected that the ruling on the motion to declare would be dispositive.

¶ 18 Turning to the complaint, the court stated that the stand-alone count for an injunction (count

V) was not a proper cause of action. Thus, the court interpreted the complaint as requesting a

preliminary injunction on count IV, which sought a declaratory judgment that the second

presuspension hearing was void. The court then denied the request for a preliminary injunction

because Beyer did not demonstrate an irreparable injury and had an adequate remedy at law.

The court explained that Beyer’s harm was a suspension without pay, which related to

monetary compensation and could be addressed with damages. The court did not consider

whether Beyer had established a likelihood of success on the merits.

¶ 19 The court further stated that the same question was presented by the requests for a

declaratory judgment and writ of mandamus: whether the second presuspension hearing was

void. In finding that the second presuspension hearing was not void, the court stated that the

first presuspension hearing was terminated without a decision. Thus, the second presuspension

hearing was not an impermissible rehearing because there was no decision to rehear. The

hearing officer never made a recommendation to the Board and could not have because the

hearing was terminated before the matter was fully heard. The court also characterized Beyer’s

argument as “[smacking] of bad faith.” Beyer had demanded the issuance of written guidelines

as a precondition to a presuspension hearing, and the Board issued guidelines accordingly.

¶ 20 Turning to the LSC plaintiffs’ standing, the court rejected the argument that the defendants

should have raised standing by affirmative defense or in a motion to dismiss under section 2-

619 of the Code. The court stated that defendants raised standing in their response to the motion

to declare “because the Court has, for months now, asked the parties to address numerous

jurisdictional concerns. *** Plaintiffs can hardly claim to be taken by surprise.” The court also

noted that the time to answer or file a responsive pleading had been “stayed numerous times.”

Addressing the substance of the standing issue, the court found that the LSC plaintiffs did not

have standing as members of the Ogden LSC or as Ogden parents. The issue of whether Beyer

would be paid during his termination proceedings “has no appreciable impact on parents,

students, or other Ogden community members, much less a legally cognizable one.”

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¶ 21 The following is a partial summary of the court’s order: (1) The motion to declare was

denied to the extent it sought a preliminary injunction. (2) The LSC plaintiffs were dismissed

with prejudice under section 2-619 of the Code because they did not have standing. That

dismissal was a final and appealable order and there was “no just reason for delaying

enforcement or appeal hereof.” (3) To the extent the motion to declare sought judgment on the

pleadings as to counts IV, V, or VI, the motion to declare was denied. (4) On the court’s own

motion, counts IV, V, and VI were dismissed with prejudice pursuant to section 2-619 of the

Code, “as the core legal theory is not meritorious.” Further, “[t]his is a final and appealable

order, and there is no just reason for delaying enforcement or appeal hereof.”

¶ 22 As a procedural note, the circuit court stated that ordinarily, the denial of a motion for

judgment on the pleadings—which most of the motion to declare was construed to be—

normally would not result in dismissal of the claims. The court found that, because it denied

judgment on the pleadings on the basis that the underlying claims were not legally viable, it

did not make sense to leave the claims outstanding in anticipation of a pro forma motion to

dismiss, especially where the parties expressed a preference for a rapid adjudication. The court

cited section 2-615(d) of the Code (id. § 2-615(d)), which states that after ruling on a motion,

a court “may enter appropriate orders either to permit or require pleading over or amending or

to terminate the litigation in whole or in part.” The court then found that, based on the legal

ruling that the second presuspension hearing was not improper, the court could separately

dismiss counts IV, V, and VI of the complaint under section 2-619 of the Code (id. § 2-619).

¶ 23 After a status hearing, the court lifted the previously entered stay of Beyer’s suspension

without pay. Plaintiffs filed a notice of appeal under Illinois Supreme Court Rule 304(a) (eff.

Mar. 8, 2016) and Rule 307(a)(1) (eff. Nov. 1, 2017).

¶ 24 II. ANALYSIS

¶ 25 A. Jurisdiction

¶ 26 As an initial matter, the parties disagree about which Illinois Supreme Court Rule gives

this court jurisdiction. Plaintiffs contend that we have jurisdiction under Rule 307(a), which

allows interlocutory appeals of orders that grant or refuse injunctions. Defendants maintain

that we only have jurisdiction under Rule 304(a), which allows appeals when there is a final

judgment as to fewer than all of the parties or claims and the trial court has made an express

written finding that there is no just reason for delaying either enforcement or appeal or both.

In a motion filed while this case was pending on appeal, defendants sought to dismiss the

appeal, to the extent that it asserted jurisdiction under Rule 307(a), but acknowledged that the

appeal could still proceed under Rule 304(a). After plaintiffs responded, this court entered an

order stating that we clearly had jurisdiction over the appeal and defendants’ motion was only

relevant to set a briefing schedule and define the appropriate supporting record. Further, the

only remaining brief was plaintiffs’ reply brief, and the record that had been filed appeared to

contain what was needed to decide the appeal. We denied defendants’ motion as moot but

without prejudice to defendants’ right to address any jurisdictional issues to the panel to whom

the case was assigned.

¶ 27 In their briefs, the parties reassert their positions on the court’s jurisdiction, with plaintiffs

contending that we have jurisdiction under Rule 307(a) and defendants maintaining that

jurisdiction is only proper under Rule 304(a). It is true that before considering the merits of an

appeal, we must determine whether we have subject-matter jurisdiction to do so. Santella v.

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Kolton, 393 Ill. App. 3d 889, 901 (2009). However, we do not need to decide whether we

indeed have jurisdiction under Rule 307(a) because, even if we do not, we can still review the

appeal under Rule 304(a). The order that is on appeal from the circuit court contains the

necessary Rule 304(a) language to provide jurisdiction. See id. at 904-05 (even though there

was no jurisdiction under Rule 307(a)(1), the appellant could seek a Rule 304(a) finding from

the trial court, which would provide jurisdiction over the appeal); Steel City Bank v. Village of

Orland Hills, 224 Ill. App. 3d 412, 418 (1991) (jurisdiction was not available under Rule

307(a), but a Rule 304(a) finding would have provided jurisdiction). Moreover, other than to

set a briefing schedule and define the appropriate record on appeal, the parties do not articulate

a reason why we should decide whether Rule 307(a) applies. We will not consider questions

that are not essential to a determination of a case. Nameoki Township v. Cruse, 155 Ill. App.

3d 889, 894-95 (1987). It is sufficient for our purposes that we have jurisdiction under Rule

304(a).

¶ 28 B. The Second Presuspension Hearing

¶ 29 Plaintiffs contend that the circuit court incorrectly denied the motion to declare to the extent

it sought a preliminary injunction. Plaintiffs also assert that the circuit court incorrectly

dismissed their requests in the complaint for declaratory, injunctive, and mandamus relief

(counts IV, V, and VI). In our view, both the denial of the preliminary injunction and the

dismissal of the three counts of the complaint hinge on the same issue—whether holding the

second presuspension hearing was unlawful. If holding the hearing was lawful, then there is

no likelihood of success on the merits for the purposes of a preliminary injunction. See Hartlein

v. Illinois Power Co., 151 Ill. 2d 142, 156 (1992) (among the factors for a preliminary

injunction is a likelihood of success on the merits). There would also be no need for a

declaratory judgment that the hearing was unlawful or a writ of mandamus to expunge the

hearing.

¶ 30 Before we address plaintiffs’ arguments, we comment on the circuit court’s unusual

procedural maneuver. To review, the court construed plaintiffs’ motion to declare as a motion

for judgment on the pleadings, other than the portions that sought a preliminary injunction.

After denying plaintiffs’ motion for judgment on the pleadings based on a legal ruling that the

second presuspension hearing was not improper, the court then dismissed counts IV, V, and

VI of the second amended complaint under section 2-619 of the Code on its own motion,

apparently in the interest of judicial economy.

¶ 31 A judgment on the pleadings under section 2-615(e) and a section 2-619 motion to dismiss

are not entirely equivalent but may overlap in certain circumstances. A motion for judgment

on the pleadings “is like a motion for summary judgment limited to the pleadings” and is proper

“where the pleadings disclose that there is no genuine issue of material fact and *** the movant

is entitled to judgment as a matter of law.” Terraces of Sunset Park, LLC v. Chamberlin, 399

Ill. App. 3d 1090, 1093 (2010). The motion “tests the sufficiency of the pleading as a matter

of law.” Murcia v. Textron, Inc., 342 Ill. App. 3d 433, 436 (2003). Also, a motion under section

2-615 only alleges defects on the face of the complaint. Illinois Graphics Co. v. Nickum, 159

Ill. 2d 469, 484-85 (1994). A section 2-619 motion to dismiss admits the legal sufficiency of

the complaint and raises certain defects or affirmative defenses that defeat the plaintiff’s claim.

Murcia, 342 Ill. App. 3d at 436. Generally, a section 2-619 motion can attack a defect on the

face of the pleading, but it should be combined with a ground based on matter not appearing

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of record. Nickum, 159 Ill. 2d at 485. In practice, however, courts have allowed section 2-619

motions even though a defect on the face of the pleadings might be the only ground raised. Id.

Thus, there is “some degree of overlap between motions to dismiss brought under section 2-

615 and those brought under section 2-619.” Id. Where an affirmative matter that avoids the

legal effect or defeats the claim is apparent on the face of the pleading (which includes attached

exhibits (Thompson v. N.J., 2016 IL App (1st) 142918, ¶ 28)), a motion to dismiss is

“peculiarly within the area of confluence between section 2-615 and section 2-619(a)(9).”

Nickum, 159 Ill. 2d at 486. Here, moving from denying judgment on the pleadings to

dismissing three counts of the complaint under section 2-619 was atypical, but acceptable in

this unique instance. Plaintiffs’ claims all hinged on a single legal issue that could be resolved

on the face of the complaint, including the attached exhibits: whether the second presuspension

hearing was unlawful. See id. at 487 (issue of whether a statute barred recovery could be raised

in a section 2-615 or 2-619(a)(9) motion).

¶ 32 Turning to the merits of plaintiffs’ arguments, we review a dismissal under section 2-619

of the Code de novo. Thompson, 2016 IL App (1st) 142918, ¶ 26. Further, we may affirm the

judgment of the trial court on any basis in the record. Hoffman v. Northeast Illinois Regional

Commuter R.R. Corp., 2017 IL App (1st) 170537, ¶ 42.

¶ 33 Plaintiffs contend that CEO Jackson did not have the authority to conduct a rehearing or

modify or alter her decision to terminate the first presuspension hearing. According to

plaintiffs, when CEO Jackson ended the first presuspension hearing, she confirmed Beyer’s

right to continued employment with pay pending the termination proceedings. Plaintiffs argue

that, after that decision was made, the School Code did not give CEO Jackson the authority to

conduct a rehearing. Plaintiffs assert that if presuspension hearings could be reinitiated, there

would be no end to the proceedings.

¶ 34 “[A]dministrative bodies have only such powers as are conferred upon them by statute or

ordinance.” Homefinders, Inc. v. City of Evanston, 65 Ill. 2d 115, 129 (1976). Since an

administrative agency is a creature of the legislative body from which it derives its existence

and authority, any acts or orders that are unauthorized by the enabling statute or ordinance are

void. Id. The applicable statute here is section 34-85 of the School Code, which states that a

principal employed by the Board may only be removed for cause. 105 ILCS 5/34-85(a) (West

2018). Section 34-85 also states that pending a dismissal hearing, “the general superintendent

or *** her designee may suspend the *** principal charged without pay in accordance with

rules prescribed by the board, provided that if the teacher or principal charged is not dismissed

based on the charges, he or she must be made whole for lost earnings, less setoffs for

mitigation.” Id. § 34-85(a)(2). Section 34-85 of the School Code does not set out additional

details about presuspension hearings.

¶ 35 Unless authorized by statute, an administrative agency may not grant a rehearing or modify

or alter its decisions. See, e.g., Pearce Hospital Foundation v. Illinois Public Aid Comm’n, 15

Ill. 2d 301, 307 (1958); Village of Downers Grove v. Illinois State Labor Relations Board, 221

Ill. App. 3d 47, 57 (1991). Section 34-85 of the School Code does not mention rehearings, so

the question here is whether CEO Jackson made a decision when she ended the first

presuspension hearing such that a rehearing would not be permitted.

¶ 36 In three cases summarized below, the rule against rehearings applied after an agency made

a decision that affected the parties’ rights. In Pearce Hospital Foundation, 15 Ill. 2d at 302-

03, a doctor and hospital were removed from a medical aid program and later petitioned a

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commission to be reinstated. The court found that although the decision to remove the doctor

and hospital “was informal in nature,” it was still “a final disposition of the [plaintiffs’] rights

and privileges” and a final administrative decision. Id. at 306. As a result, the commission

could not entertain the petition for reinstatement. Id. at 307. In Village of Downers Grove, 221

Ill. App. 3d at 56, the Illinois State Labor Relations Board determined the composition of a

bargaining unit and a village contended that the board could reconsider its determination. The

court found that the board properly refused to reconsider the determined bargaining unit, noting

that “[t]he issue of whether an agency may reconsider its decision is not determined by the

existence of a final order, but whether the agency has authority conferred by the statute to

reconsider its decisions.” Id. at 56-57. In Caldwell v. Nolan, 167 Ill. App. 3d 1057, 1059

(1988), the Chicago Board of Election Commissioners issued a decision that ordered a

candidate’s name to be removed from the ballot. The candidate filed a motion to vacate the

decision and for a rehearing. Id. The court stated that, without specific statutory authority, the

board did not have jurisdiction to consider the candidate’s motion to vacate and for rehearing.

Id. at 1065. In Pearce Hospital Foundation, Village of Downers Grove, and Caldwell, an

agency could not rehear or reconsider a decision that affected the parties’ rights: ending

participation in a program, identifying a bargaining unit, and removing a candidate from the

ballot.

¶ 37 In contrast, in Carter v. State Board of Education, 90 Ill. App. 3d 1042 (1980), an agency

was allowed to restart a dismissal procedure after a first round of the procedure ended

prematurely. There, a board of education started the process to dismiss a teacher and suspended

him pending a hearing. Id. at 1044. In the meantime, changes were made to the statute that

addressed teacher dismissals. Id. The teacher demanded reinstatement and suggested that the

board could proceed under the new version of the statute. Id. The board restarted the process

under the new version of the statute, and eventually the teacher was discharged. Id. at 1044-

45. The court found that, once the teacher asked to proceed under the new procedure, the board

was correct to dismiss the previous charges and “was free to start over again the correct way.”

Id. at 1046. Further, the dismissal of the initial charges was neither an acquittal nor “a finding

that the suspension was justified.” Id. Thus, in Carter, where no decision had yet been made

on the merits of the charges, an agency could end a dismissal proceeding and start over again

under a new procedure.

¶ 38 Defendants’ actions here are akin to the board’s actions in Carter. CEO Jackson did not

make a decision about Beyer’s right to be paid when the first presuspension hearing ended.

After two out of three days of the hearing, the Board’s counsel informed plaintiffs’ counsel

that “[t]he prior pre-suspension hearing has come to an end.” Further, CEO Jackson planned

to file amended dismissal charges, issue guidelines for the presuspension hearing, and set a

new date for a hearing in the near future. The e-mail does not state that CEO Jackson or her

designee determined that Beyer would or would not be paid during his suspension. As in

Carter, defendants permissibly ended the presuspension hearing early and then started over

under a new procedure. No decision was made that affected the parties’ rights. Our supreme

court has also noted a “marked difference in reserving for future decision a matter which has

not been determined but remains open for future adjudication”—which is permitted—and “a

general order purporting to reserve jurisdiction over a cause when an order has been entered

covering and adjudicating all matters in issue”—which is not permitted. Trigg v. Industrial

Comm’n, 364 Ill. 581, 588 (1936). Ending the first presuspension hearing before it was

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complete and setting a new date was equivalent to the lawful act of “reserving for future

decision a matter which has not been determined.” Id.

¶ 39 We also note that plaintiffs themselves requested that the presuspension hearing start over

under a different procedure. Before the first presuspension hearing, plaintiffs filed a motion

for a temporary restraining order and preliminary injunction, requesting in part that the court

enjoin defendants from holding the presuspension hearing “until Defendant establishes and

promulgates rules to govern the proceedings” and addresses other due process concerns. In

January 2019, CEO Jackson issued written guidelines for presuspension hearings, and the

second presuspension hearing followed. Plaintiffs did not assert that Beyer should not be

subjected to a presuspension hearing at all—just that it conform to certain procedural

standards. Plaintiffs received what they requested: written rules. Plaintiffs should not be

allowed to escape a suspension without pay altogether because the Board and CEO Jackson

did as they were asked. See Carter, 90 Ill. App. 3d at 1045 (teacher could not complain about

delay in implementing new dismissal proceedings where he objected to going ahead under an

old procedure).

¶ 40 Also buttressing our conclusion is that, if the first presuspension would have been void

without written rules, which was a position taken by plaintiffs in the circuit court, the remedy

would have been another hearing. See Taylor v. Dart, 2017 IL App (1st) 143684-B, ¶ 46

(where hearing was not conducted in compliance with applicable statute, remedy was for

board’s decision to be vacated and matter remanded for a new hearing); Gilchrist v. Human

Rights Comm’n, 312 Ill. App. 3d 597, 603 (2000) (where commission exceeded authority under

applicable statute when it decided the case, remedy was remand so matter could be reset for

another full hearing). That the remedy for a void hearing is another hearing further underscores

that defendants acted properly in holding a second presuspension hearing. We take no position

on whether what actually happened at the second hearing met the requirements of due process

because that issue is not before us.

¶ 41 Because holding the second presuspension hearing was lawful, the circuit court properly

dismissed counts IV, V, and VI of plaintiffs’ second amended complaint. In the same vein,

because there is no likelihood of success on the merits of plaintiffs’ claim that holding the

second presuspension hearing was unlawful, the circuit court properly denied a preliminary

injunction.

¶ 42 C. Standing

¶ 43 Next, plaintiffs contend that the LSC plaintiffs (Christopher McCabe and Jezail Jackson)

have standing to bring the claims in the second amended complaint. Plaintiffs assert that, as a

threshold matter, defendants did not properly raise their standing argument. Plaintiffs further

argue that, as LSC members, the LSC plaintiffs face a cognizable injury because CEO

Jackson’s unlawful decision to suspend Beyer without pay would infringe on the LSC’s

statutory authority to select the school’s principal. Plaintiffs also maintain that the LSC

plaintiffs have standing as parents of children attending Ogden because they would lose a

skilled administrator to an unlawful administrative action.

¶ 44 The doctrine of standing is designed to preclude those with no interest in a controversy

from bringing suit and assures that issues are raised only by those parties with a real interest in

the outcome of the controversy. Glisson v. City of Marion, 188 Ill. 2d 211, 221 (1999). Lack

of standing is an affirmative defense that is the defendant’s burden to plead and prove (Lebron

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v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010)) and may be raised in a motion for

involuntary dismissal under section 2-619 of the Code. DeWoskin v. Loew’s Chicago Cinema,

Inc., 306 Ill. App. 3d 504, 512-13 (1999).

¶ 45 While the issue of standing will be forfeited if not raised in a timely manner in the trial

court (Lebron, 237 Ill. 2d at 252-53), we decline to find forfeiture here. As the circuit court

noted, defendants’ time to answer or file a responsive pleading was “stayed numerous times.”

Defendants raised standing in their response to the motion to declare, as apparently requested

by the circuit court. Under the circumstances here, where the time to answer was stayed and

defendants promptly raised standing when given the opportunity, defendants have not forfeited

the issue.

¶ 46 Turning to the substance of the matter, standing requires only some injury in fact to a

legally cognizable interest. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462,

492 (1988). The claimed injury, whether actual or threatened, must be (1) distinct and palpable,

(2) fairly traceable to the defendant’s actions, and (3) substantially likely to be prevented or

redressed by the grant of the requested relief. Id. at 492-93. Defendants suggest that plaintiffs

must also show that a statute implies a private right of action, but that test is not part of the

standing analysis in Illinois. See Noyola v. Board of Education of the City of Chicago, 227 Ill.

App. 3d 429, 432 (1992) (“the criteria of a private cause of action *** [are] inapplicable to

standing requirements under Illinois law”). The issue of standing is reviewed de novo. Wexler

v. Wirtz Corp., 211 Ill. 2d 18, 23 (2004).

¶ 47 Turning to the causes of action alleged here, the party requesting a declaratory judgment

must possess some personal claim, status, or right that is capable of being affected by the grant

of such relief. Glisson, 188 Ill. 2d at 221. To have standing to seek an injunction, the

complaining party must establish “a clearly ascertainable right or interest that needs

protection.” (Internal quotation marks omitted.) Cedarhurst of Bethalto Real Estate, LLC v.

Village of Bethalto, 2018 IL App (5th) 170309, ¶ 28. The party must claim injury to “a

substantive interest he possesses which is recognized by statute or common law.” (Internal

quotation marks omitted.) Id. Further, the injury must directly impact the party’s property or

rights and cannot be abstract. Id. The LSC plaintiffs do not appear in the count seeking a writ

of mandamus.

¶ 48 As noted above, it was asserted that the LSC plaintiffs would be injured because having

their chosen principal removed would infringe on the LSC’s statutory authority to select the

principal. Yet even though the LSC selects the principal, an LSC does not control a principal’s

dismissal. Section 34-2.3 of the School Code, which states that an LSC selects a principal, also

provides that the principal can be removed for cause “in the manner provided by Section 34-

85 [of the School Code].” 105 ILCS 5/34-2.3(2) (West 2018). Section 34-2.3 also states that

“[n]o person shall be directly selected, listed as a candidate for, or selected to serve as principal

*** (i) if such person has been removed for cause from employment by the Board.” Id. The

School Code gives the Board authority to dismiss a principal. Nothing in the School Code

gives an LSC the right to protect a principal from that dismissal.

¶ 49 As another injury, plaintiffs assert that the LSC plaintiffs have standing as parents because

they risk losing a skilled administrator who can navigate the issues that follow Ogden’s merger

with another school. “[A] party cannot gain standing merely through a self-proclaimed interest

or concern about an issue, no matter how sincere.” Glisson, 188 Ill. 2d at 231. Further, even if

plaintiffs were correct and there should not have been a second presuspension hearing, that

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outcome would not redress the LSC plaintiffs’ stated injury. Beyer would not return to Ogden.

As of November 1, 2018, Beyer was “reassigned home,” directed not to return to Ogden, and

required to turn over all Board property. Undoing the second presuspension hearing could

allow Beyer to be paid while awaiting his dismissal hearing, but he could not participate in

Ogden’s day-to-day operations in any way. Defendants have met their burden to show that the

LSC plaintiffs do not have standing.

¶ 50 III. CONCLUSION

¶ 51 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 52 Affirmed.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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