Appendix — Maiter v. Chicago Board of Education

Office-Supreme Court, U.S.

EIBED

4

MAR 9 1981

Prt ER i STEVAS

CLERK :

No. 80-1462

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

IRIS M. MAITER, ET AL..,

Petitioners,

vs.

CHICAGO BOARD OF EDUCATION, et at., and DIS-

TRICT #21 PARENT EDUCATION COUNCIL, ET AL.,

Respondents.

SUPPLEMENTAL APPENDIX TO

PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME

COURT OF THE STATE OF ILLINOIS

RONALD S. COPE

Counsel of Record

ANCEL, GLINK, DIAMOND & MURPHY, P.C.

180 N. LaSalle St.—Suite 2600

Chicago, Illinois 60601

Telephone: (312) 782-7606

KATHERINE S. JANEGA

ANCEL, GLINK, DIAMOND & MURPHY, P.C.

180 N. LaSalle St.—Suite 2600

Chicago, Illinois 60601

Telephone: (312) 782-7606

Attorneys for Petitioners

Pandick Press Midwest. Inc. Chicago © 454-7600

i

TABLE OF CONTENTS

PAGE

Opinion of the Appellate Court of Illinois, Judicial District. 1

Denial of Petition for Rehearing in the Supreme Court of

I MIEN co cinniscaovicestaschoivensstnndlistsendinatheancsneubecbien 11

“a

on

77-423

IRIS M. MAITER, et al.,

Plaintiffs-Appellees,

Separate-Appellants

and Cross-Appellants,

v.

. CHICAGO BOARD OF

EDUCATION, et al.,

Defendants-Appellees,

Separate-Appellees and

Cross-Appellees,

v.

DISTRICT #21 PARENT EDUCA-

TION COUNCIL, et al.,

Intervenors-Appellants,

Separate-Appellees and

Cross-Appellees,

v.

MIDWEST COMMUNITY

COUNCIL, et al.,

Intervenors-Appellees,

Separate-Appellees and

Cross-Appellees.

P

Filed: 10/10/79

Appeal from the Cir-

cuit Court of Cook

County.

Honorable

Arthur L. Dunne

Judge Presiding.

MISS JUSTICE McGILLICUDDY DELIVERED THE OPIN-

ION OF THE COURT:

This is an appeal from an order entered in the Circuit

Court of Cook County which clarified the procedures to be used

by the Board of Education in the appointment of principals in

the Chicago Public School system.

The plaintiffs, principals in the school system and individ-

uals on the 1970 and 1974 eligibility lists for principal, filed a

complaint for declaratory judgment on June 12, 1975. The

2

complaint alleged that the rules and procedures employed by

the Board of Education under which it may obtain the nomi-

nation of a person for principal by a local nominating com-

mittee were in violation of the School Code.

The School Code provides that appointments and promo-

tions of teachers, principals and other educational employees in

cities of over 500,000 inhabitants shall be made for merit only.

(Ill. Rev. Stat., 1977, ch. 122, par. 34-84.) Subsequent to the

enactment of this provision in 1917 (the Otis Law) the Board

of Education appointed persons to the position of principal

from the principals’ eligibility list in rank order. Rank order

was determined by the score achieved on an examination

administered by the board of examiners. (Ill. Rev. Stat., 1977,

ch. 122, par. 34-83.) This method of appointment continued to

1970.

On March 25, 1970, the Board of Education adopted

procedures establishing “nominating committees of local school

councils” in order to involve local communities in the selection

of school principals. Pursuant to these procedures, if there were

five vacancies for principals, the names of the first five candi-

dates in rank order on the eligibility list were presented to the

nominating committees for consideration. The committees

rated the candidates in order of preference, and the board

attempted to honor the requests. On October 14, 1970, the

board determined that rank on the eligibility list should not be

considered either in presenting candidates to the nominating

committees or in the assignment of principals.

The relief sought by the plaintiffs was a declaration that

the rules and procedures establishing nominating committees of

local school councils were in violation of the School Code, the

Fourteenth Amendment to the United States Constitution, and

section 2 of article I of the Illinois Constitution. In addition, the

plaintiffs asked the court to enter an order directing the board

to make all appointments to the position of principal in rank

order from the eligibility lists prepared by the board of

examiners.

3

On September 28, 1976, the trial court entered an order

granting leave to members of various community organizations

and school parents councils to intervene in this suit. In their

answer to the complaint, the intervenors adopted the responses

that the board set forth in its answer.

The plaintiffs filed a motion for summary judgment, and

the defendants and intervenors responded with their answers

and objections. Subsequent to several hearings on the motion,

the trial court entered its judgment order on December 20,

1976. In its order the trial court found that the Otis Law was

passed in 1917 in order to do away with favoritism, partisan-

ship and cronyism in the selection of principals. It also found

that rank order appointment of principals was abhorrent be-

cause it precluded community input and that the procedures

establishing community nominating committees set forth no

ascertainable standards to be employed in the selection of

nominees by the committees. The trial court ordered:

“1, That appointment of a person to the position of

principal is to be made on the basis of merit, as required by

Ill. Rev. Stat., Ch. 122, § 34-84.

“2. That rank order on the principals’ eligibility exam-

ination need not be used by the Board as the sole criteria of

merit in the appointment of principals to individual

schools, provided however, that until a uniform system of

community input is established appointments to principals

shall be in rank order commencing with appointments in

rank order from the oldest existing principal list (1970).”

The intervenors appealed from that portion of the order

which required the board to appoint principals in rank order

until such time as the board established a uniform system of

community input. Subsequently, the intervenors filed a motion

to dismiss their appeal because of mootness, and we granted the

motion.

The plaintiffs appealed from the portion of the order which

provided that rank order on the examination need not be the

sole criteria of merit in the appointment of principals to

4

individual schools. In addition, the plaintiffs appealed from the

order of September 28, 1976, permitting the members of

community organizations and school parents councils to inter-

vene in this action.

Effective October 1, 1977, section 34-8.2 was added to the

School Code for cities of over 500,000 inhabitants. This

provision validates the use of nominating committees in the

selection of principals. The section provides as follows:

“A. Before the general superintendent shall recommend or

the board shall vote on the appointment of a principal, the

general superintendent and board may obtain the nomi-

nation of a person or persons to fill the position of principal

by a local nominating committee.

“B. A local nominating committee, when authorized by

board rules and regulations, may consider, interview and

nominate only those persons for the position of principal

who appear on the appropriate eligibility list prepared by

the board of examiners or those principals who consent to

be considered for a transfer. The recommendations of the

local nominating committee shall not discriminate against

any person based upon race, color, creed, national an-

cestry, sex, ethnic heritage or religious beliefs.

“C. The board may adopt rules and regulations regarding

the formation of and procedures to be followed by local

nominating committees; these rules and regulations shall

assure that at least 60% of the members of each committee

shall be parents or guardians of children in the affected

school.” Ill. Rev. Stat., 1977, ch. 122, par. 34-8.2.

Section 34-84 of the code requiring appointment for merit only

remains unchanged.

In consideration of the amendment to the School Code

authorizing the use of nominating committees, the following

issues are presented for review:

1. Whether appointment “for merit only” requires rank

order appoin*ments from the eligibility lists prepared

by the board of examiners.

?

2. Whether the passage of section 34-8.2 repealed the

requirement of rank order appointment, thereby

rendering moot all issues raised in this case.

3. Whether the trial court erred in permitting members

of community organizations and school parents coun-

cils to intervene in this suit.

In 1915 the Board of Education adopted a rule which

prohibited membership in or affiliation with labor unions by

teachers. The Illinois Supreme Court upheld this regulation

ruling that the Board of Education had the absolute right to

employ, to decline to employ or to re-employ any applicant for

any reason whatever or for no reason at all. People ex rel.

Fursman vy. City of Chicago (1917), 278 Ill. 318.

Subsequently, the Illinois legislature enacted the Otis Law

which provided in part that the board must appoint teachers

and principals for merit only. Ill. Rev. Stat., 1977, ch. 122, par.

34-84.

Nowhere in the School Code has “for merit only” been

defined. In its answer the board concedes that from the time of

the enactment of the Otis Law in 1917 to 1970, appointments to

the position of principal were made in rank order from the

principals’ eligibility list. The plaintiffs argue that by applying

the doctrine of contemporaneous construction in interpreting

the statute, “for merit only” requires appointment in rank

order.

Because the statute does not define “for merit only” and

because there exists no legislative history to assist us in the

interpretation of this provision, we must examine the principles

of statutory construction. We agree with the plaintiffs that the

doctrine of contemporaneous construction is a reliable principle

to apply in construing the meaning of “for merit only.”

6

Pursuant to the doctrine of contemporaneous construction,

the meaning of a doubtful statute can be determined by

examining the continuous interpretation of that statute by the

executive officers charged with its administration and enforce-

ment, the courts and the public. (Sutherland, Statutory Con-

struction § 49.03 at 233 (1973).) The conclusiveness of the

interpretation depends on whether the interpretation originated

from a reliable source, the interpretation was made at or near

the time of the enactment of the statute, and the interpretation

has continued for a long period of time and received acceptance

and following. (Sutherland, § 49.04 at 235-36.) In addition,

when a statute that has received a contemporaneous inter-

pretation is re-enacted, this construction is presumed to be the

correct interpretation of the law. Sutherland, § 49.09 at 256.

The statute in the instant case directs the board to appoint

principals for merit only. From 1917 to 1970 the board

interpreted this provision as requiring rank order appointment.

Certainly this interpretation originated from a reliable source,

was made immediately following the enactment of the statute,

and continued for approximately 53 years. In addition, the

legislature re-enacted this provision in 1945 and 1961 while this

interpretation was attached to it. We conclude, therefore, that

section 34-84 of the School Code requires appointment to the

position of principal in rank order from the principals’ eligibil-

ity list.

We are aware of the recent decision of the United States

Court of Appeals for the Seventh Circuit which reaches a

contrary conclusion concerning the meaning of “for merit

only.” In Webster v. Redmond (filed SITASTE), cnn Fs Oe

____, the Chicago Board of Education refused to appoint the

plaintiff to a position as principal despite his possession of a

principal’s certificate. The plaintiff filed suit in the Federal

Court alleging, among other charges, that the board had

deprived him of his property in violation of the due process

clause of the Fourteenth Amendment. The District Court

agreed and entered judgment in the plaintiff's favor. Webster v.

Redmond (1977), 443 F. Supp. 670.

The Court of Appeals reversed the District Court and

found that the plaintiff possessed no protectible property right

in an appointment as a principal. In reaching this conclusion,

the court found it necessary to consider whether Illinois law

required the board to appoint a candidate as principal when his

name reached the top of the eligibility list. The court con-

cluded:

“In order to resolve the questions before us we need not

definitely decide what the phrase “for merit only” means

in the Illinois law. It is sufficient if we can state with

certainty that, whatever its meaning, it does not create an

entitlement to a principalship under Illinois law, and that

we can do.”

Although we respect the opinion of the Court of Appeals,

we note that the decision makes no reference to the doctrine of

contemporaneous construction, the doctrine upon which we rely

in resolving this issue. For this reason, we decline to concur

with the Court of Appeal’s holding in Webster. The general

rule is that decisions of United States District and Circuit Courts

are not binding upon Illinois courts. City of Chicago v.

Groffman (1977), 68 Il\.2d 112, 368 N.E.2d 89; People ex rel

Illinois Federation of Teachers v. Lindberg (1975), 60 Ill.2d

266, 326 N.E.2d 749, cert. denied 423 U.S. 839.

The board argues that the enactment of section 34-8.2 of

the School Code which authorizes the use of nominating

committees in the selection of principals evidences the intent of

the legislature that “for merit only” does not mean rank order

appointments. The board supports this contention by pointing

out that a bill introduced in the General Assembly defining “for

merit only” as “an order of standing on eligible lists,” was

rejected by the House Elementary and Secondary Education

8

Committee. We believe, however that the failure of a com-

mittee of the legislature to act favorably on a proposed bill does

not have the same probative value as a rejection by the entire

legislative body. See Order of Railway Conductors v. Swan

(1947), 329 U.S. 520, 91 L.Ed. 471, 67 S.Ct. 405.

As we previously noted, when the legislature enacted

section 34-8.2 it did not repeal section 34-84, which required

appointment for merit only. Generally, repeals or amendments

by implication are not favored and will not be upheld unless the

terms of the subsequent act are so inconsistent with the

provisions of the prior law that they cannot stand together.

(County of DuPage v. Harris (1967), 89 Ill.App.2d 101, 231

N.E.2d 195; Village of Monsanto v. Touchette (1965), 63

Ill.App.2d 390, 211 N.E.2d 471; Sutherland, § 22.13 at 139-

40.) We do not believe that these two provisions are so

inconsistent that they cannot co-exist in the School Code.

Therefore, the passage of section 34-8.2 of the School Code did

not repeal or amend the requirement of rank order appoint-

ment as contained in section 34-84 of the School Code and has

not rendered moot the issues raised in this case.

The board itself, from March to October 1970, employed

procedures which resulted in the appointment of principals in

rank order and the consideration of the recommendations of

local nominating committees. The procedures were explained

in board report 70-926-2, which stated as follows:

“On March 25, 1970, the Board of Education adopted

procedures to involve local communities more in the

selection of the principal for their school. In general, this

selection process has worked well where there is a list of

transfer applicants for the principalship vacancy under

consideration. However, in making assignments from the

eligible list, the present practice requires that the number

of principal candidates on the eligible list, in order of rank

on that list, equal to the number of principalship vacancies

being considered be rotated among each school’s selection

committee for consideration. For example, if there are five

schools in need of principals, the next five principal

9

candidates from the eligible list, in order of rank, are

presented to these schools for interviews. In practice, the

candidate’s attractiveness to a committee has not in all

instances been in accordance with his rank on the eligibility

list.”

Because the Chicago Public School system encompasses

hundreds of schools, principalship vacancies will occur simulta-

neously. During 1971, 52 principal appointments were made

from the 1970 eligibility list. Of these appointments, 11 were

made in March, 6 in April, 8 in May, and 17 in September. If

the board must make ten appointments from the eligibility list

in a certain month, the local nominating committees can

interview the next ten persons on the list and relay their

preferences to the board. In this manner, not only is the board

complying with the statutory requirement of rank order

appointment, but it can also consider the particular needs of the

individual school in making an appointment.

A significant portion of the intervenors’ brief sets forth the

advantages of individual consideration of all persons on the

eligibility list as opposed to rank order appointments. The

intervenors argue that because of the diversity which exists in

the schools of Chicago, it is important to consider the particular

needs of the individual schools and communities and the

qualifications of all eligible persons in order to select the most

qualified applicant to serve as principal.

In 1917 the legislature determined that rank order appoint-

ment in the Chicago Public School system was an appropriate

solution to the problems which existed at that time. If those

problems no longer exist or if the solution is unsatisfactory

today, it is the responsibility of the legislature to repeal that

section of the statute.

For the foregoing reasons, that portion of the judgment

order of the Circuit Court of Cook County providing that rank

order need not be used by the board as the sole criteria of merit

is reversed. The cause is remanded with directions to enter an

10

order that the Board of Education of the City of Chicago make

appointments to the position of principal in rank order from

eligibilicy lists prepared by the board of examiners, first ex-

hausting the prior 1970 eligibility list before proceeding with

any subsequent list.

In view of the above holding it is not necessary for us to

consider the plaintiffs’ assertion that the trial court erred in

permitting members of community organizations and school

parents councils to intervene in this suit.

Reversed and remanded

with directions.

Simon, PJ., and McNamara, J., concur.

11

ILLINOIS SUPREME COURT

CLELL L. WOODS, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

November 26, 1980

Mr. Ronald S. Cope

Attorney at Law

180 N. LaSalle St., Rm. 2600

Chicago, IL 60601

Nos. 52787—Iris M. Maiter, et al., appellees, vs. Chicago

52788 Board of Education, et al., etc., appellees (Dis-

Cons. trict #21 Parent Education Council, et al., appel-

lants). Appeal, Appellate Court, First District.

The Supreme Court today denied the petition for rehearing

in the above entitled cause.

Very truly yours,

C (L,.0:%

[Signed] Clell Woods

Clerk of the Supreme Court