Petition for Writ of Certiorari — Barden v. Junior College District No. 520

In Tue

a

Supreme Cuurt nf the Muited States

OcTOBER Term, 197 0

71-1239

NORMA M. BARDEN,

: J ‘ "Petitioner,

t vs.

JUNIOR COLLEGE DISTRICT NO. 520 OF THE STATE OF

ILLINOIS ; RALPH E. FRANCIS ET AL as MEMBERS OF

_ THE BOARD OF JUNIOR COLLEGE DISTRICT NO. 520,

» STATE OF ILLINOIS,

Re spondent. |

PETITION FOR WRIT OF CERTIORARI TO THE

' SUPREME COURT OF ILLINOIS

\

-

J. Epwarp Jones

13035 S. Western Avenue-

Blue Islarid, Illinois 60406 -

Attorney for -Petitioner,

Norma M. Barden

MIDWEST LAW PRINTING co., CHICAGO 60601, FINANCIAL 6-3988

f

my

+. TABLE-OF CONTENTS,

a

| * PAGE,

REFERENCE TO OPINION Sn ircee. isa

J URISDICTIONAL STATEMENT chal tae ae oe 2

QUESTIONS PRESENTED — Cab anv 7

CONSTITUTIONAL PROVISIONS AND SIP ARUTES

OF ILLINOIS INVOLVED +: 3

(STATEMENT OF THE i ene ee toe reese 5

| ARGUMENT OF RE ASONS FOR ALLOW ANCE OF

f THE WRIT pt Oh ae BAL Mente OL ere ene 1Q-

RemeLuaION Hic. Cu)e Be 16

; TABLE Or Cases ‘

Anderson v. Board of E«lucation, | 90 HI. it NAD 11 |

Armstrong v. Manzo, 380: US o45 se ee SASS EOD 12

Burket. v. Reliance Bank oe Trust Co., 367 Tl. 196. | -

ee ee Oa Bee ene nas ar ae omien Biecutecee: Sends 13°

Blunt v. Sh pardson, 286 ne S4, gg PEA REATARD OO 15

Commissioners of ‘Drainage Dist. Vv. Griffin, 154 Ul. 30,

7 AER 5a NY Ged ey hetpeibcometeslaneSectsicoesseglo ee ssi sa 10.

Davtinonth: College v. Woodward, 4 Wheaton 218, 581... 12 -

Durkin v. Hey, 376 Ul. Sn sien 13

Funkhouser v. Coffin, 301 Wl. 257, 261-2 Th 14, 15, 16

Greene v: McHlroy, 360 U.S. 474, 494 MMs es eS

Hyslop v. Finch; 99 IM. 171, 183 ,..0 gg

International Harvester Co. v. Zoning Bd.. 42 TL. App.

2d 440, 448 ...... Ri hata Se net TORS 50 Sherine ers

In re Estate of Rackliffe, 366 HL 22, 26 CRE ee

. Massie v. ‘Cessna, 239 IL. 352, 358 2 “aan ee 10

Morgan v. U. 8., 298° U.S: 468, 473 eo ae

Mowrey vy, Mowrey, 328 Tl. App. 92, 99-1007...) 10°

People ex rel Fosse v. Allman, 329 Tl. Apa. 296, 299.

4S er oe REE Ed RL ON Te Le ae ice ie

: People ex rel Jove Vv. Strassheim, 242 11. 359, 366 a ee

. People vy. Wilkinson, 13 HL 66Q ee

Southern Ry. Co. v. Confmonwealth of Va., 290 U.S.

_ 190, 196-8 |

| In THe .

Supreme Court of the Huited States

Cesena TERM, 1970

No..

NORMA M. BARDEN, ee

ie oe Petitioner,

‘ , i a :

JUNIOR COLLEGE DISTRICT NO. 520 OF THE STATE OF.

' ILLINOIS; RALPH E. FRANCIS ET AL as MEMBERS OF

THE BOARD OF JUNIOR COLLEGE DISTRICT NO. 520,

STATE OF ELLIN OIS, .

Seo

_ PETITION FOR WRIT OF CERTIORARI TO THE

_ SUPREME COURT OF ILLINOIS

To: Whe Honorable Chief Justice And The Associate

- Justices Of The United States Supreme Court:

Petitioner, Norma M. Barden, respectfully prays that

the Court issue a Writ of C ertiorari to review a judgment

of the Supreme Court of [linois denied leave to Peti-

°° tioner to appeal from the Order of the Appellate Court

of Illinois, Third District, entered July 13, 1971 whereby _

said Court aftirmed the Order of the Cireuit Court’ of

‘ Kankakee, Illinois denying Petitioner the right to a Com--

. mon Law Writ of Certiorari to Junior College District

No. 520 of the State of Ilinois et-al which had discharged:

her as a teacher, contrary to the provisions of her con-

tract.

celle

REFERENCE TO OPINION BELOW.

The opinion of the Appellate Court of Illinois afore-

said is appended hereto. ®aid case is reported in 271 N.E.

‘2d 680, 680-681. Me

JURISDICTIONAL STATEMENT.

The jncindiction of this’ Court is invoked -pursuant to

title 28 Section 1257 United States Code Annotated. .

The judgment of the Supreme Court of Hlinois denied

leave to appeal as entered on November 29, 1971.

’ This Court: extended the right of Putiionse file her.

Petition for Certiorari to and ineluding Mareh 28, 1972

pursuant to title 28 Seetion 2101. ox

QUESTIONS PRESENTED. |

icine Petitioner’s constitutional rrghts guaranteed:

by Article al Section 2 of the Mlinois State Constitution

and the 14th Ame ‘ndment tq the United. States Constitu-

tion haye been violated by the taking of property with-

out due proeess of law and the-de nial of equal protection

of the law?

Whether the ‘Lower and the AppeHate Court of [li-

nois had the ‘right to abolish. the Gommon Law. of Certi-

erari to review the proceedings of the Petitioner’s em-

ployer, the Board of Junior College, District 520 of the

’ State of Illinois? _

ied

- ef

ee, ESS

ILLINOIS CONSTITUTIONAL PROVISIONS

INVOLVED IN: THE CASE.

“*

‘Tilinois State Constitution: -Article | Section 2

j

Dur Process Anp Equat Prorecrion _

“No person shall be deprived of life, liberty or

property without due’ prpcess of law nor be denied

the equal protection of: the laws.”

PERTINENT ILLINOIS STATUTES:

oO aaa

Chapter 28 Ill. R. S.: Common Law

Section 1 Rule of Deeision : foe .

“That the Common Law of England, so far as. the

same is applicable and of a general nature, and all

' statutes or acts of the British Parliment made jin.

aid of, and to supply the defects of the Common Law,

prior to the fourtlt Year of James the First, * *.*

and which are of a.general natu and not local] to y

‘that kingdom, shall be the rule of: decision, and shall

be considered as a full force until repealed by legis- .

lative authority.” eae v

Ch. 110°See. 265:

“This Aet (Administrative Review Act) shall apply

to and govern every action to review judicially a final

decision of any administrative agency where the: Act

creating or conferring power on such ageney, by ex:

- -press reference, adopts the provisions of this Act.

* * #))

Ch. 122 See. 24-11: ase

. “Any teacher who has been employed in any i.

triet as a full’ time’ teacher .for' a probationary period

e 4 : °

yd -

pt 2 consecutive school terms shall satet upon con-

‘tractual continued service .unless ‘given written no-

tice of dismissal stating the specific reason therefor, .— —

by registered mail by the’ employing board at least

_ 60 days before the end of such period.” * * *

Ch. 122 See. 24-12: _

; 48 O-o The hearing shall be puhlic at the request

of either the. teachet or the board. The teacher has —

* the privilege of being present at the hearing with:

counsel and of cross, examining witnesses and ‘may

offer. evidence and witnesses and present defenses

to the charges. The board inay issue subpoenas, re-

quiring the attendance of witnesses at any hearing.

and, at the request the teacher against whom a

charge is thade, shall‘issne such subpoenas, but it .

—maytimit-the-number-of witnessés to be subpoenaed

' in behalf of-the teacher to not more than 10. All tes-

timony at a hearing shall be taken under oath. Any

member of the boayd-may administer oaths to -wité

nesses. The board shall cause a record of the pro-

ceedings to, be kept and shall employ a competent

reporter to take stenographiec or stenétype notes of:

all of the testimony. One half of the costs of the re-’

' ‘porter’s attendance and services at the hearing shall

*~ be paid by the board and one half hy the teacher.

Either party desiring a transcript of the aD

shall pay for the cost thereof.” * * *

l4rn AMENDMENT To THE Unreye ‘States ConstiTUTION

Section I * * * ©:

“Nor shall any State deprive ‘any person of life, .

liberty, or p rty, without due process of law; .

nor deny to any person within its jurisdiction the

equal protection of the laws.” .

STATEMENT OF THE CASE.

Petitioner Norma M. Barden, entered into a‘ written

contract. with Junior College District No. 520 by which

she was engaged for one school year and_ said contract

provided that

_“(e) That the Board may Shas ‘ae faculty

witteles at’any time on recommendation of the presi-

dent of" the college for immorality, dishonesty,

misconduct in office, incompetency, or wilful neglect

- of duty, provided that the charges be stated in barca

ing, * @ #9)

Petitioner was a renistered nurse with a Master's de-

gree: three years experience én nursing service; had, had

experience teaching in a community college: her special-.

ization nursing. He rsalary was $11 770.00 per year. She

began August 15, 1969. . 0 oF

On December 10th, 1969 she. was given-a notice of

‘suspension and later on January 14th, 1970 an unsigned

notice of recommendation of dismissal. -A purported hear- ,

‘ing was held on February 16th, 1970 and the said Board

on February 23, 1970 arbitrarily and without Due’ Proe-

_ ess of law ordered that her services be “terminated as.

_ 6f this date for good cause shown”. No finding was made

. that petitioner was guilty of any of the grounds for

removal above specified.

On January 19th, 1970 she had been given a written

notice that she would be given a hearing, at which time

~ her superior would be asked to elaborate upon

“e * * reasons for dismissal and that no other

person or persons would present any facts support-

_ing ‘said recommendations of dismissal and that the

—6§—

Board will not hear from any person other than

- said Dorothy Tayrien ‘and you, Norma Barden: * * *”

Prior to the hearing petitioner served a written request

on the defendant president of the said Board for a bill

of particulars, complaining that the alleged recommenda- -

tions were not signed and were general and requesting»

_ dates when the alleged crimes took place: who was pres-

nt: .what specific actions ‘constituted the charges: in

which respects she was not “well organized”: what warn-

ing had been given to petitioner: what records had been ;

made’ of petitioner's alleged improper conduct and the

eustodian of said records: in which respects her rela-

tionships with students were not satisfactory: what con-

duct on her part was unacceptable; in what program she

- was guilty of unacceptable behavior ete. This was not

mia.“ “= ~ --

After the dismissa] above referred to, petitioner pre-

pared a petition for Common Law Certiorari in which she

alleged the foregoing matters, including her contract, the

above notices ete.

She also alleged that at ‘the ‘time of the hearing she

could not make a proper defense for lack of information

as to charges; that the Board refused to allow her to

have witnesses and to hear testimony of thos¢ who.knew

the truth of the situation; that she was not allowed to

have a Court reporter to take the proceedings and the

Board threatened to close the hearing if the reporter

petitioner had present did not cease to take proceedings

and refused to give to petitioner a copy of the proceed-

ings taken by the Board by recorder but stated that. the

Board would respond with a record only on the Court’s

‘ order.

—T—

That the Board refused to consider pétitioner’s answer

denying the charges and refused to require a reply to

said answer.

That the Board refused to. have the testiehony of

Dorothy: Tayrien, complaining witness, to be under oath

or to have it written or to have an affidavit or certifiea-

tion ‘of its. truth made by said witness and refused to

allow her to be cross examined by petitioner’s counsel,

as a result of which refusals she did not tell the truth

and slandered petitioner ; Z

That .the Board refused to give petitioner ‘a publie

hearing or to allow the president of the Faculty Associa-

tion to be present to testify for petitioner and to advise

other members of the faculty;

That_in_making its derision the -Board’s order fook

the property of petitioner without Due Process: of law

by: making a finding without considering the evidence;

without making -any firiding of improper eonduet, lack

of efficiency ‘or any other ground specified in the charges

against: petitioner: that no jurisdictional requisites were

shown or that evidence was received or that the Board |

had jurisdiction; that the proceedings of the Board con-

cerned petitioner’s property rights and was quasi-judi-

cial, and that there was no other means of review except

- by common law Writ-6f Certiorari.

Petitioner prayed for the issuance of the common law

Writ of Certiorari.

Respondents objected to the filing of. the. petition on

‘the ground that petitioner had an adequate remedy at

pee eae . 4,

The Court mailed a proposed order denying petitioner

the right to file the petition and finding she had no right

' to certiorari.

cies

Petitioner objected to the order on the grounds that. it

took. petitioner’s property. without due process of law

contrary to the 2d and 19th sections of Article TL of the

- Tllinois. Constitution and the 14th Amendment to the U. §

Constitution; that the Board was exercising quasi jndi-

cial functions and there was no other means of review. -

Thereafter on ‘May 18, 1970 the Court entered the

order appealed from which denied petitioner leave to file

her petition for common: law certiorari, and entered the

following opinion: i

_ Memoranpum Or Option

‘ In this ease the petitioner has presented a peti-

. tion requesting that she be allowed to file a petition

for issuanee of a common law writ of certiorari. At

the time the petition was presented the Court took

under advisement the propriety of the filing of said

“petition.

Certiorari is the name of-a judicial writ iseued by

a superior court, directed to an inferior court or

. Other tribunal commanding the latter to certify and

return to the former the record of the particular

ease. The Circuit Courts have the right to award

a common law writ of certiorari to an inferior tri-

bunal in cases where the inferior tribunal did not

have jurisdiction, where the latter has proceeded

illegally, where no appeal is allowed and_ where no .

other. mode of review of the proceedings is available.

[t is the opinion of the Court that the respondents.

were acting in an administrative capacity when they

determined or not to terminate the petitioner’s con-

~ tract. eee the board had the Fight so to do,

ee

as Section’ 103- 42. of ‘Chapter 122 Illinois Revised

Statutes give the district the right to. employ such

personnel as may be needed, -to establish policies

governing their employment and dismissal, and to

fix the amount of their compensation. The Board of

Junior College, District Number 520, State of THi-

“bois is a quasi corporation capable of entering into

contracts, conducting its own affairs and of suing:

and being sued. The petitioner, therefore, does have

another avenue of relief. She can sue the district

~ for damages. | bs

For the reasons stated, this Court is of the opin-

ion that the petitioner is not entitled under the law

to the issuance of a writ of certiorari gr even to

have teave to file her petition for t seeaue of such

“writ. vis

The Court is of the opinion that the petitioner’s

_ petition should he denied.

The Attorney for the Distriet is directed to pre--

pare an order in accordance with this opinion and to

submit it to the opposing counsel and to the Court.

a /s/ Herman W. Snow, Judge Dattd: May

7, 1970.

” Moties by attorney for respondents that he will pre-

* sent an entlosd order as per the memorandum opin-

ion (See R. (82).

In the Notice of Appeal petitioner asked the Court to

find that the order of May 18, 1970 denied her due proc-

ess of law under Sections 2 and 19 of Article II of the

Hlinois Constitution and the 14th Aniaet to’ the

U. S. Constitution.

a

ARGUMENTS OF REASONS FOR THE

ALLOWANCE OF THE WRIT.

THE COMMON LAW OF ENGLAND, PRIOR TO THE 4TH

YEAR OF JAMES I OF ENGLAND (1607), WITH CERTAIN

‘. EXCEPTIONS NOT RELEVANT HERE, IS IN FULL FORCE

AND .EFFECT IN ILLINOIS; EXCEPT AS REPEALED BY .

. THE LEGISLATURE. THE RIGHT TO REVIEW THE OR.

DERS OF INFERIOR TRIBUNALS, EXERCISING QUASI

JUDICIAL FUNCTIONS, WHOSE ORDERS CANNOT BE RE-

VIEWED OTHERWISE, WAS ALLOWED AT COMMON LAW

IN ENGLAND AND OUR LEGISLATURE HAS NOT ABOL.-

ISHED SAID REVIEW IN THIS TYPE OF PROCEEDING.

See Section 1. Chapter 28 Illinois R. S.

| See People v. Wilkinson, 13 Il. 660 and Commissioners

_ Of Drainage District v. Griffith, 134 I. 330, 339.

PETITIONER’S RIGHT TO COMPENSATION UNDER HER

CONTRACT WAS A PROPERTY RIGHT AND WHEN THE

BOARD ACTED TO DETERMINE WHETHER TO TERMI-

NATE SAID RIGHT IT ACTED QUASI- JUDICIALLY AND

SUCH ACTION IS REVIEWABLE UNDER COMMON LAW

- CERTIORARI.

That petitioner's right to compensation was a prop- .

' erty right see Massie vy. Cessna, 239 Tl. 352, 358 and

Mowrey v. Mowrey, 328 ll. App. 92, 99, 100.

That in the determination of such right the Board acted

quasi-judicially see Commissioners of Drainage District

v. Griffin, 134 Il. 330, 340-41 and Morgan v. U..S., 298

U.S. 468, 473, 479-80: 56 S. Ct. 906, 708, 910- 11. and on

rehearing 304 U.S. 1, 58 S. Ct. 999, 1 1000.

\

|

THE ADMIN ISTRATIVE REVIEW ACT OF ILLINOIS (CH.

110, SEC. 264 ET SEQ.) DOES NOT PROVIDE FOR ——

.OF THE PROCEEDINGS HEREIN INVOLVED. of

See Section 265 Ch. 110° Hlinois Statutes.

There is no act in Illinois creating the right to common

law certiorari and there is no act adopting the provisions

of the Ilinois Administrative Review Act.

IN ILLIN OIS UNTIL A TEACHER HAS BEEN EMPLOYED

FOR A. PROBATIONARY PERIOD OF 2 CONSECUTIVE

YEARS, THEY CANNOT ENTER UPON “CONTRACTUAL

CONTINUED SERVICE”’ SO.THAT THEY HAVE THE BENE.

FIT OF THE TEACHER TENURE LAW. PETITIONER WAS __

IN HER FIRST YEAR, AND WAS NOT COVERED BY THE

ACT.

See Ch. 122 See. 24-11.

See Anderson vy. Board of Education, 390 Ill. 412, and

Wilson v. Board of Education. 394 Il. 197, 199-00.

Petitioner could not come under the Teacher’s Tenure —

Law heecause she was in her first year of employment

and could not qualify.

_ TEACHERS UNDER “CONTRACTUAL CONTINUED SERV-

ICE’ ARE GIVEN THE RIGHT TO A HEARING BEFORE |

\

THEY CAN BE DISMISSED» WHIOM, HEARING MUST GIVE ’

THEM CERTAIN PROCEBURAL RIGHTS SPECIFIED IN

THE TEACHER TENURE ACT: (CH. 122, SEC. 24-12).

See Ch. 122 See. 24-12 Illinois R. S.

ay ~

Re

ae) ee

PETITIONER'S CONTRACT WITH JUNIOR COLLEGE DIS.-

TRICT 520 GAVE HER THE RIGHT TO A HEARING ON

CHARGES WHICH COULD LEAD TO HER DISMISSAL. THIS

ENTITLED HER TO THE USUAL INCIDENTS AND PRO-

CEDURES OF FAIRNESS AND JUSTICE AVAILABLE AT

HEARINGS. THE POWERS OF STATE AGENCIES IN ILLL..

NOIS ARE LIMITED BY THE 14TH AMENDMENT TO THE

U.S. CONSTITUTION. — pee :

In Southern. Ry. Co. v. Commonwealth of Virginia, 290 »

U.S. 190, 196-8, where the order: of the State Highway

Commissioner ordering the defendant to construct an

overhead crossing was in .issue; this Court in reversing |

the Virginia order, held:

' “The claim that the questioned statute was enacted

under the police power of the state, and therefore is

—-nhot subject to- the_standards—appticabtetotegistations ——

- under other powers, conflicts with the firmly- estab-

‘lished rule that EVERY STATE POWER IS LIM- *

ITED BY THE INHIBITIONS .OF THE FOUR-

TEENTH AMENDMENT.” (Citing minany cases).

(Emphasis mine). eo, ae

See Greene vy. McElroy, 360 U.S. 474, 494: Armstrong

_v. Manzo, 380 U.S: 545; 85 S. Ct. 1187, 1191. and Web.

ster’s famous definition of -“Law of the Land”; Dart-

mouth College v. Woodward, 4 Wheaton 518, 581.

Certain principles of fairness so that truth. can be

found are required wnder the 14th Amendment to the

U. S. Constitution and Sections 2 and 19 of Artiele IT

of the Illinois Constitution then in effect. Such procedural.

rights were not given below.

le:

EVEN THOUGH. NOTICE OF A HEARING WAS GIVEN,

WHEN THE BOARD DID NOT ALLOW MOTIONS, A BILL

OF PARTICULARS, A REPORTER, WITNESSES, CROSS EX..

AMINATION, SUCH WAS NOT THE GIVING OF A. HEAR-

ING UNDER ILLINOIS DECISIONS AND THE RESULT WAS

MERELY THE ARBITRARY EDICT OF THE BOARD WHICH

WAS VOID, OF NO EFFECT, ILLEGAL AND IN EXCESS OF -

THE BOARD’S LEGAL POWERS. : ;

See People ea rel Joyce v. Strassheim, Sheriff, 242 Tl.

399, 366; 90 N.E. 118. See Hyslop v. Finch,-99 M. 171, |

183 where the Court held: . i

“The rule is: ‘Whenever, in pursuance of law, the

property of an individual is to be divested by pro-

ceedings ‘aginst his will, there must be strict compli-

ance with all the provisions of the law which are

nade for his protection and benefit. Those provisions

must be regarded ‘as in the nature of conditions pre-

cedent which must not only be complied with before

the right of the property owner is disturbed, but the

party claiming authority under the adverse pro- -

ceeding must affirmatively show such compliance.’

Cooley’s Const. Lim. 528.” (Citing Illinois cases).

¢ See Durkin v. Hey, 376 Ml. 292, 300; In Re Estate of

Rackliffe; 366 Tl. 22,-26: Burket -v. Reliance Bank and

Trust Co., 367 Til. 196, 202: | :;

In Greene v. McElroy, 360 U.S. 474, 497; 79 S. Ct.

1400, 1414-15 this Court holds tRat for 200 years the right -

of cross examination has been regarded as a vital re-

quirement for ascertaining truth. It was denied here. °

*

om ae

TEACHERS ARE DEDICATED PUBLIC SERVANTS CRE-

ATING THE QUALITY ‘OF FUTURE CITIZENS. THE PRO-

CEDURAL REQUIREMENTS FOR TEACHERS UNDER ‘‘CON-

‘TRACTUAL CONTINUED SERVICE”’ ARE MERELY THOSE

REQUIREMENTS WHICH DUE PROCESS OF LAW AND THE

_ LAW OF THE LAND REQUIRE UNDER THE 14TH AMEND-

MENT TO THE U. S. CONSTITUTION AND ARTICLE II OF

THE ILLINOIS CONSTITUTION. CONSTITUTIONALLY, PE- -

' TITIONER. CLAIMS SHE WAS ENTITLED TO THE SAME

BASIC PROTECTION AND THE -DENIAL THEREOF EN-

TITLED HER TO HAVE HER PROCEEDINGS REVIEWED

BY COMMON LAW CERTIORARI. |

In bringing proceedings to dismiss a bilson ¢an it

be right:for a Board of Edueation to deny the basie

requirements of Due Process to teachers who have not

had the-opportunity to he-on- the payrottor-two-yearst

If so, a Board can continually act arbitrarily by firing

teachers before two years have elapsed so they cannot

have “contractual continued service”. Petitioner contends

she was entitled to basic requirements of proper pro-

cedure but was denied this right.

‘THE FINDINGS OF THE BOARD ARE WHOLLY INADE-

QUATE AND DID NOT.GIVE THE BOARD THE RIGHT TO

DISMISS PETITIONER UNDER THE TERMS OF HER CON-

TRACT WITH THE BOARD. THE REMOVAL ‘‘FOR GOOD

CAUSE SHOWN”’ IS NOT SUFFICIENT; SPECIFIC FACTS

MUST BE FOUND JUSTIFYING THE DISMISSAL.

See Funkhouser v. Coffin, 301 Til. 257, 261-2, where the

Court held in a common law certiorari case to’a Civil

“Service Commission in a dismissal of a policeman:

“Tt is manifest that the finding that the appellee

was guilty as charged is a mere conclusion ‘of. law.

No fact was stated by which the Court was able to

see that conclusion was true. ‘A quasi-judicial tribu-

nal of inferior jurisdiction must recite facts, or pre-

a

—15—

serve the facts themselves, upon which its jurisdic~

tion depends.’ T'roxall y. Dick, 216 Til. 98.) ©

In Blunt vy. Shepardson, 286 lll. 84, 88 (cited in thé

~ Funkliouser case with approval), relative to the revokirig

of a license of a doctor to practice by the Department of

Registration and Education, the Court reversed’ because

the lower court would not issue a common law certiorari

and held: , Ye od

“The record must be preserved, and it is essential

to the validity: of an order revoking a license that -

it shall show the facts essential to “the jurisdiction

of the department.” '

_ Rev versed with directions to. the court to issue the Certi-.

orari.

The strict requirenients of ee under the Adiminis-

trative Review Act, citing Vol. 2 Davis Adiinistrative

Law Treatise, even where no rerret requirement is’

quoted in /nternational Harvester Co. v. Zoning Board,

43 Ill. App: 2d 440, 448-9. , |

The failure to find specific facts: renders the Board’s |

order void.

THE COMMON LAW WRIT OF CERTIORARI iS ISSUED

WHERE INFERIOR TRIBUNALS ARE SHOWN TO HAVE

EXCEEDED. THEIR JURISDICTION OR HAVE PROCEEDED —

ILLEGALLY AND NO APPEAL OR OTHER MODE OF RE-

VIEWING IS GIVEN. THE WRIT COMMANDS THE TRIBU-

NAL TO CERTIFY THE RECORD TO THE ISSUING COURT

THAT THE RECORD MAY BE SEEN TO ASCERTAIN IF

THERE WAS JURISDICTION. OR THE TRIBUNAL PRO-

CEEDED ILLEGALLY.

See People ex rel Fosse vy. Allman, 329 Tl. App. 296,

299-300. On a hearing of the record, the Court will quash

<

=

the Writ if the lower tribunal had -jurisdiction and pro-

ceeded legally; if it did not have jurisdiction or proceeded

illegally, the proceedings will bé quashed. Funkhouser vy.

Coffin, 301 Tl. 257, 264. The petition shows the Board

atted illegally and in excess of its jurisdiction and the

Writ should have been issued, The court should reverse

and order the lower Court to issue the Writ.

CONCLUSION.

For three hundred years the Courts of general juris-_

diction have been awarding and issuing the eommon law

writ of Certiorari in'eases similar to this one. The deci-

sion sought to be reviewed overturns this important

remedy withont adequate basis. It is the function of

the Legislature to end this procedure if it is to be ended. -

This decision is wholly unjustified. ~~ - %

This decision affects hundreds of school teachers who

have not taught long enough.to enter “contractual con-.

tinued service” and all people subject fo administrative - -

hearings not covered by the Administrative Review Act. -

This is a most important public question that deeply af-

fects the public policy of Illinois and other states as well.

Petitioner contends that basic procedural rights should

not be taken from public employees including teachers

not in contractual continued service.

~ .

0 es ~~

ne ‘

Persons appearing before Boards whose decisions can-

not be appealed from should have some right to have-

the record tested to see if the Board had jurisdiction or

proceeded in accordance with law. To remove this right

is to discriminate against them, which this Court should® ™

not permit. —

Respectfully submitted,

J. Epwarp Joxes

13035 S. Western Avenue

Blue Island, Tlinois 60406

Attorney fof Petitioner, _

Norma M: Barden

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APPENDIX

Appellate Court Opinion

BARDEN v. JUNIOR COLLEGE DISTRICT NO. 520

- [271 NE. 24 680]

Scorr, Justice.

This is an appeal from. an order of the circuit court

_ Of Kankakee County, Illinois. ¢

The plaintiff was employed by the defendant junior

college as a member 6f the faculty under a written con-

tract for the period of August 15, 1969, to June 30, 1970.

' Following a closed meeting of the College Board on Feb-

ruary 16, 1970, which the plaintiff attended, her contract

of employment was terminated at a public meeting of the

Board of the college on February 23, 1970. Plaintiff

thereupon filed a petition for issuance of a writ of com-

mon law certiorari to the Board of the Junior College

District No. 520. The court entered an order denying the

petition and from this order the plaintiff appeals.

[1] We need not concern ourselves as to whether the

defendant board’s action was proper or improper. Nor

is it necessary that.a determination be made as to whether

the defendant board is an inferior tribunal which lacked

jurisdiction, exceeded its jurisdiction or proceeded ille-

gally as far as plaintiff is concerned. The trial court’ was

—2a—

‘(Appellate Court Opinion)

correct in its finding that a writ of certiorari is not a

proper remedy where another adequate remedy is avail-

able. People ex rel. Loomis v. Wilkinson, 13 Ill. 660. The

_ Office of the writ is only to bring before the court issuing

it the record of the inferior tribunal for review: and it

is elementary that the party suing out the writ shall have -

no other mode of review. Glennon y. Burion, 144 Tll. 551,

33 N.E. 23. See Vol. 7, LL.P., Certiorari, -§ 6 . page 172.

12] The plaintiff has an adequate remedy since she

ean bring a suit at law for breach of contract, at- which

-time her case can be tried on its merits and if she is so

entitled she would be awarded damages. Thus denying

plaintiff's’ petition for writ of certiorari does not leave

: exercising her rights, and 1s

therefore not insunsiotent with due process of law under

the Constitution of the United States and the State of

Illinois.

It is therefore the opinion of this court that the order

of the cireuit court of Kankakee County should be af-

firmed. ae. 4

Atxoy, P. J., and Srouper, J., econeur.

JUDGMENT OF THE COURT

. No. 44665

In The

SUPREME. COURT OF ILLINOIS

a

NORMA M. BARDEN,

Petitioner,

VS.

~~~ JUNIOR COLLEGE DISTRICT NO. 520 OF THE STATE OF

ILLINOIS; RALPH E. FRANCIS ET AL as MEMBERS OF

THE BOARD OF JUNIOR COLLEGE DISTRICT NO. 520,

STATE OF ILLINOIS,

Respondent.

o

ORDER

The petition for leave to appeal is hereby denied.

Dated: November 29, 1971