Bd. of Educ. of Du Page High Sch. Dist. 88 v. Pollastrini

• Decision Date: 29 August 2013
• Docket Number: No. 2–12–0460.,2–12–0460.
• Citation: 995 N.E.2d 547,2013 IL App (2d) 120460,374 Ill.Dec. 408
• Parties: The BOARD OF EDUCATION OF DU PAGE HIGH SCHOOL DISTRICT 88 and the Board of Education of Salt Creek School District 48, Plaintiffs–Appellees, v. Laura POLLASTRINI, in her official capacity; Timothy Whelan, in his official capacity; James Shehee, in his official capacity; Gene Campbell, in his official capacity; Joseph Wozniak, in his official capacity; Martha J. Rodgers, in her official capacity; Gloria Scigousky, in her official capacity; The Du Page County Regional Board of School Trustees; Nancy Barnhardt, Shelly Bledsoe, Steven Boucher, John Gearen, Benjamin Klosterman, Elliot Lewis, Keith Lopatka, Kathleen Oczak, Ann Scott, and Brett Simons, Collectively Known as the Committee of Ten; The Board of Education of Butler School District 53; and the Board of Education of Hinsdale Township High School District 86, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2013 IL App (2d) 120460
995 N.E.2d 547
374 Ill.Dec. 408

The BOARD OF EDUCATION OF DU PAGE HIGH SCHOOL DISTRICT 88 and the Board of Education of Salt Creek School District 48, Plaintiffs–Appellees,
v.
Laura POLLASTRINI, in her official capacity; Timothy Whelan, in his official capacity; James Shehee, in his official capacity; Gene Campbell, in his official capacity; Joseph Wozniak, in his official capacity; Martha J. Rodgers, in her official capacity; Gloria Scigousky, in her official capacity; The Du Page County Regional Board of School Trustees; Nancy Barnhardt, Shelly Bledsoe, Steven Boucher, John Gearen, Benjamin Klosterman, Elliot Lewis, Keith Lopatka, Kathleen Oczak, Ann Scott, and Brett Simons, Collectively Known as the Committee of Ten; The Board of Education of Butler School District 53; and the Board of Education of Hinsdale Township High School District 86, Defendants–Appellants.

No. 2–12–0460.

Appellate Court of Illinois,
Second District.

Aug. 29, 2013.

[995 N.E.2d 548]

J. Timothy Eaton, Patricia S. Spratt, Shefsky & Froelich, Ltd., Chicag, Christopher J. Stull, Law Office of Christopher J. Stull, P.C., West Chicago, for appellants.

William F. Gleason, Daniel M. Boyle, Sraga Hauser, LLC, Flossmoor, for appellee Board of Education of Du Page High School District 88.

Peter K. Wilson, Jr., Mickey, Wilson, Weiler, Renzi & Andersson, P.C., Aurora, for appellee Board of Education of Salt Creek School District 48.

[995 N.E.2d 549]

OPINION
Justice SCHOSTOK delivered the judgment of the court, with opinion.

[374 Ill.Dec. 410]¶ 1 This case involves a detachment petition affecting the Timber Trails–Merry Lane Subdivision (Timber Trails) in Oak Brook. The subdivision is located directly south of Roosevelt Road and is bordered by the Yorkshire Woods to the east and the Oak Brook shopping center to the west. The subdivision has been sending children to Salt Creek School District 48 (District 48) and Willowbrook High School District 88 (District 88) for more than 30 years. On September 8, 2010, pursuant to the Illinois School Code (School Code) (105 ILCS 5/1–1 et seq. (West 2010)), the petitioners, Nancy Barnhardt, Shelly Bledsoe, Steven Boucher, John Gearen, Benjamin Klosterman, Elliot Lewis, Keith Lopatka, Kathleen Oczak, Ann Scott, and Brett Simons, filed a petition with the Regional Board of School Trustees of Du Page County (the Board) for detachment. The petitioners sought to detach the Timber Trails area from Districts 48 and 88 and have the area annexed into Butler School District 53 (District 53) and Hinsdale Central High School District 86 (District 86). On June 3, 2011, the Board entered an order granting the petition for detachment. On April 6, 2012, the circuit court of Du Page County reversed the Board's order. The petitioners appeal from that order. We affirm.

¶ 2 BACKGROUND

¶ 3 On September 8, 2010, the petitioners filed the petition for detachment. In support of the petition, the petitioners attached 256 signatures. In response, Districts 48 and 88 (the Districts) filed a motion to dismiss, arguing that 97 of the signatures filed in support of the petition were not valid, because they did not match the official signatures on file with the Du Page County election authority. Because the petitioners had filed only 159 (256 minus 97) valid signatures, the Districts argued, the petitioners had not filed enough signatures to confer jurisdiction on the Board.

¶ 4 On January 10, 2011, the Board conducted a hearing on the motion to dismiss. The petitioners' attorney made an offer of proof that all of the people who circulated the petition would testify that all the people who had signed the petition were registered voters who resided in the petitioning territory and had given their valid signatures. Further, all the people who had circulated the petition had sworn and attested to a circulator's oath in the presence of a notary public. One of the Board members stated:

“I don't understand why we don't trust the circulator, the circulator's signature for all of the names on the sheet. And so, just compare the circulators' signatures that the Notary Public has attested to.”

In response, the Districts' attorneys argued that, under the applicable statute, it did not matter what the circulators would testify to; what mattered was whether the voters' purported signatures on the petition matched their official signatures with the Du Page County election authority. At the close of the hearing, the Board denied the motion to dismiss. The Board explained that it had “considered the challenged signatures and determined that there were enough valid signatures contained within the Petition to meet the jurisdictional requirements” of the School Code.

¶ 5 On June 3, 2011, the Board entered an order granting the petition for detachment. The Districts thereafter filed a timely complaint for administrative review in the circuit court of Du Page County. [374 Ill.Dec. 411]

[995 N.E.2d 550]

On April 6, 2012, the circuit court reversed the Board's order. The petitioners appeal from that order.

¶ 6 ANALYSIS

¶ 7 The Districts argue that 97 of the signatures on the petition did not match the verified voter registration signatures on file at the Du Page County Election Commission. If those 97 signatures are removed, only 159 remain, which is insufficient for the petition to proceed.

¶ 8 Section 7–1(a) of the School Code provides that two-thirds of the registered voters in any territory to be detached must sign the underlying petition. 105 ILCS 5/7–1(a) (West 2010). Each signature contained on the petition “shall match the official signature and address of the registered voters as recorded in the office of the election authority having jurisdiction over the county.” Id. The number of signatures called for by the statute is a jurisdictional requirement for detachment. Board of Education of Community High School District 94 v. Regional Board of School Trustees, 242 Ill.App.3d 229, 237–39, 184 Ill.Dec. 437, 613 N.E.2d 754 (1993).

¶ 9 According to the petition, there were 362 registered voters residing in the proposed detachment territory at the time the detachment petition was filed. Thus, in order to comply with section 7–1(a) of the School Code, the petition needed to be supported by the signatures of 242 registered voters. ¹ The petition contained 256 signatures.

¶ 10 “The fundamental principle of statutory construction is to ascertain and give effect to the intention of the legislature by giving the language of the statute its plain and ordinary meaning.” Board of Education of Chenoa Community Unit School District No. 9 v. Regional Board of School Trustees, 266 Ill.App.3d 461, 465, 203 Ill.Dec. 748, 640 N.E.2d 668 (1994). “The sections of the School Code are in pari materia, and they must be construed with reference to one another in order to give harmonious meaning to the act as a whole.” Maiter v. Chicago Board of Education, 82 Ill.2d 373, 389, 47 Ill.Dec. 721, 415 N.E.2d 1034 (1980).

¶ 11 The term “shall” typically indicates a mandatory rather than a directory provision. Schultz v. Performance Lighting, Inc., 2013 IL App (2d) 120405, ¶ 13, 368 Ill.Dec. 623, 984 N.E.2d 569. A mandatory provision does not always require strict compliance and might be satisfied through substantial compliance. Id. Strict compliance will be required if the term “shall” is accompanied by some sort of penalty or consequence. Id. ¶ 14. Where the term is not accompanied by some sort of penalty or consequence, substantial compliance is sufficient. Id. Our courts have interpreted section 7–1 of the School Code to require only substantial compliance. See Ambrose v. Thornton Township School Trustees, 274 Ill.App.3d 676, 684, 211 Ill.Dec. 83, 654 N.E.2d 545 (1995). The term “match” is defined as a “thing equal or similar to another.” www. merriam- webster. com/ dictionary/ match (last visited Feb. 28, 2013).

¶ 12 The issue thus becomes whether the signatures on the petition substantially complied with the statutory mandate that they match the signatures on the voter registration cards. In finding that the signatures matched, the Board necessarily determined that there was substantial compliance.

[995 N.E.2d 551]

[374 Ill.Dec. 412][3] ¶ 13 In reviewing the Board's decision, the parties disagree as to the proper standard of review. The petitioners argue that the Board's finding as to the validity of the signatures is no different from any other finding that the Board makes; thus, its decision is entitled to deference and should be reversed only if against the manifest weight of the evidence. See Board of Education of Marquardt School District No. 15 v. Regional Board of School Trustees, 2012 IL App (2d) 110360, ¶ 20, 360 Ill.Dec. 621, 969 N.E.2d 431 (factual determinations by an administrative agency are held to be prima facie true and correct and will stand unless contrary to the manifest weight of the evidence). Relying on Addison Insurance Co. v. Fay, 232 Ill.2d 446, 453, 328 Ill.Dec. 858, 905 N.E.2d 747 (2009), the Districts insist that the standard of review should be de novo because this court can review as well as the Board whether the signatures on the detachment petition match the signatures on the verified registration signature forms.

¶ 14 In Fay, at issue was what standard of review the court should employ in reviewing certain factual findings that the trial court had made. Id. at 451, 328 Ill.Dec. 858, 905 N.E.2d 747. The supreme court stated:

“In this case, the trial court heard no live testimony. Both parties acknowledged at oral argument that all testimony was submitted by admitting discovery depositions into evidence. The trial court was not required to gauge the demeanor and credibility of witnesses. [Citation.] Instead, the trial court made factual findings based upon the exact record presented to both the appellate court and to this court. Without having heard live testimony, the trial court was in no superior position than any reviewing court...