Board of Educ. of Center Cass School Dist. No. 66 v. Sanders

• Decision Date: 22 September 1987
• Docket Number: No. 86-2929,D,No. 65,C,No. 113,113,65,86-2929
• Citation: 113 Ill.Dec. 471,515 N.E.2d 280,161 Ill.App.3d 723
• Parties: , 113 Ill.Dec. 471, 43 Ed. Law Rep. 254 The BOARD OF EDUCATION OF CENTER CASS SCHOOL DISTRICT NO. 66, Dupage County, Illinois, a Body Politic and Corporate, Plaintiff-Appellant, v. Ted SANDERS, Illinois State Superintendent of Education, the Board of Education of Lemont Community Consolidated School Districtook County, Illinois, a Body Politic and Corporate, the Board of Education of Bromberek School Districtupage County, Illinois, a Body Politic and Corporate, Certain Legal Voters Within Lemont Community Consolidated School Districtook County, Illinois, and Certain Legal Voters Within Bromberek School District upage County, Illinois, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 280

515 N.E.2d 280

161 Ill.App.3d 723, 113 Ill.Dec. 471,

43 Ed. Law Rep. 254

The BOARD OF EDUCATION OF CENTER CASS SCHOOL DISTRICT NO 66, Dupage County, Illinois, a Body Politic and Corporate, Plaintiff-Appellant, v. Ted SANDERS, Illinois State Superintendent of Education, the Board of Education of Lemont Community Consolidated School District No. 113, Cook County, Illinois, a Body Politic and Corporate, the Board of Education of Bromberek School District No. 65, Dupage County, Illinois, a Body Politic and Corporate, Certain Legal Voters Within Lemont Community Consolidated School District No. 113, Cook County, Illinois and Certain Legal Voters Within Bromberek School District No. 65, Dupage County, Illinois, Defendants-Appellees.

No. 86-2929.

Appellate Court of Illinois First District, Second Division.

Sept. 22, 1987.

Anthony G. Scariano, Justino D. Petrarca, Raymond A. Hauser, Scariano, Kula, Ellch & Himes, Chtd., Chicago, for plaintiff-appellant.

Neil F. Hartigan, Atty. Gen., State of Illinois and Roma Jones Stewart, Sol. Gen., for defendant-appellee Ted Sanders (Rita M. Novak, Asst. Atty. Gen., of counsel).

James P. Bartley, Bruce C. Mackey and Klein, Thorpe and Jenkins, Ltd., Chicago, for defendant-appellee Board of Educ. of Lemont Community Consol. School Dist. No. 113.

Justice HARTMAN delivered the opinion of the court:

Plaintiff, Board of Education of Center Cass School District No. 66, Du Page County ("Cass Board"), appeals dismissal of its administrative review complaint by the circuit court of Cook County for lack of standing. This court is asked to review whether: (1) plaintiff has standing as a "district affected" to challenge the state superintendent's approval of a petition for combining two school districts when plaintiff was not a party to the public hearings conducted by the subject regional superintendent or the review conducted by the state superintendent; and (2) plaintiff should have been granted leave to intervene in the proceedings before the state superintendent in his review of the Cook County regional matter.

On December 14, 1985, a petition to combine the territory comprising Lemont Community Consolidated School District No. 113, Cook County ("Lemont Board") and Bromberek School District No. 65, Du Page County ("Bromberek Board") ("Lemont-Bromberek petition") was filed with Richard J. Martwick, Regional Superintendent of the Educational Service Region for Cook County ("Cook County Superintendent"). On February 10, 1986, a petition was filed with Berardo DeSimone, Regional Superintendent of the Educational Service Region for Du Page County ("Du Page County Superintendent") seeking to combine the territory comprising Cass Board with Bromberek Board ("Cass-Bromberek petition"). On April 17, 1986, a second petition to combine Cass Board and Bromberek Board was filed and the preceding petition was dismissed. All petitions were filed under Article 11B of the Illinois School Code (Ill.Rev.Stat.1985, ch. 122, par. 11B-1 et seq.) ("School Code"), which sets forth the procedure for combining school districts.

Forming a combined district requires conformity with the following procedures: a petition must be filed by the school boards of each district affected or by 10% of the legal voters of such districts; evidentiary hearings must be conducted by the superintendent of the region in which the greater portion of the territory to be combined is situated; the evidence to be heard must relate to the school needs and conditions in the territory which is proposed to form the intended combined district; approval or denial of the petition by the regional superintendent is subject to the state superintendent's review under criteria provided by the School Code; and, if approved by him or her, the voters of the proposed combined district must ratify its creation at a referendum election absent further review. (Ill.Rev.Stat.1985, ch. 122, pars. 11B-2, 11B-3, 11B-7.) The state superintendent's order is deemed an "administrative decision subject to judicial review under the Administrative Review Law (Ill.Rev.Stat.1985, ch. 110, pars. 3-101 et seq.) and may be sought by "any resident who appears at the hearing or any petitioner or board of education of any district affected * * *." Ill.Rev.Stat.1985, ch. 122, par. 11B-4.

From February 17, 1986, through April 10, 1986, the Cook County Superintendent conducted hearings on the Lemont-Bromberek petition. The Cass Board made no attempt to participate in these proceedings nor to object to them. On April 22, 1986, the Cook County superintendent approved the Lemont-Bromberek petition and forwarded his order, the petition and the evidence heard by him to the state superintendent for review.

Apparently, Cass Board thereafter sought to enjoin defendant Illinois State Superintendent Ted Sanders from considering the Lemont-Bromberek petition without concurrently considering the Cass-Bromberek petition. The circuit court of Cook County denied that relief.

Superintendent Sanders issued his decision approving the Lemont-Bromberek petition on May 22, 1986. On May 23, 1986, Cass Board filed a petition to intervene with the state superintendent, alleging that the same or similar issues of fact and law were involved in the two petitions. Parenthetically, the hearings before the Du Page County Superintendent were still proceeding at that time. On May 27, 1986, the state superintendent declined to act on the petition to intervene, stating that: neither section 11B-3 of the School Code (Ill.Rev.Stat.1985, ch. 122, par. 11B-3) nor any other statute permitted him to consider a petition to intervene filed as a supplement to a local hearing conducted by the regional superintendent; and, he was limited to reviewing the record of the proceedings held by the regional superintendent.

Meanwhile, the Du Page County Superintendent had been holding hearings on the Cass-Bromberek petition from May 13, 1986 through June 26, 1986. On June 30, 1986, he issued an order denying two motions to dismiss the Cass-Bromberek petition, filed by Bromberek Board and a resident of Bromberek District, and approving the Cass-Bromberek petition.

That same day, June 30, 1986, plaintiff Cass Board, in Cook County, filed a two-count complaint for administrative review of the state superintendent's declination to act on Cass Board's petition to intervene before him, and of his approval of the Lemont-Bromberek petition. The complaint alleged that the state superintendent's decision was incorrect and the proceedings before the Cook County Superintendent were invalid. On July 30, 1986, the state superintendent also approved the Cass-Bromberek petition.

Bromberek Board has filed a complaint in Cook County for administrative review of the approval by the state superintendent of the Lemont-Bromberek petition. Lemont Board has filed a complaint in Du Page County for administrative review of the approval by the state superintendent of the Cass-Bromberek petition. These latter proceedings apparently are still pending.

On September 5, 1986, Lemont Board moved to dismiss the present administrative review complaint filed in Cook County by Cass Board on June 30, 1986, alleging that Cass Board lacked standing under section 11B-4 of the School Code. (Ill.Rev.Stat.1985, ch. 122, par. 11B-4.) At a hearing on September 23, 1986, the state superintendent orally joined the motion to dismiss. The circuit court of Cook County held that Cass Board lacked standing since it had not appeared before the Cook County superintendent nor had it filed its own petition; further, seeking to intervene with the state superintendent did not confer standing. The court dismissed the complaint in an order dated September 23, 1986, and found no just reason to delay appeal. Plaintiff Cass Board appeals.

I.

Plaintiff initially moves to strike an argument by defendant Lemont Board that the doctrine of "first in time is first in right" should invalidate the Cass Board petition. Plaintiff submits copies of a motion for summary judgment, in a case involving the Cass-Bromberek petition, partially based on the "first in time" principle, the order of the Du Page County circuit court denying summary judgment, entered on March 30, 1987, and contends that collateral estoppel bars use of this argument in the present case.

Collateral estoppel requires that: the issue decided by prior adjudication be identical with the issue at bar; the previous judgment be final and on the merits; and the party against whom estoppel is asserted must be a party or in privity with one in the previous adjudication. Ballweg v. City of Springfield (1986), 114 Ill.2d 107, 113, 102 Ill.Dec. 360, 499 N.E.2d 1373; Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill.2d 1, 7, 34 Ill.Dec. 334, 398 N.E.2d 9.

Collateral estoppel is inapplicable here because the denial of summary judgment is not a final judgment on the merits. Tripi v. Landon (1986), 140 Ill.App.3d 230, 233-34, 94 Ill.Dec. 611, 488 N.E.2d 610; Skach v. Gee (1985), 137 Ill.App.3d 216, 221, 91 Ill.Dec. 882, 484 N.E.2d 441; Rambert v. Advance Construction Co. (1985), 134 Ill.App.3d 155, 165, 89 Ill.Dec. 1, 479 N.E.2d 1007.

In a separate order, the motion to strike appellees' argument related to the maxim "first in time is first in right" is denied.

II.

Cass Board next contends it has standing as a "district affected" to challenge the state superintendent's decision to approve the Lemont-Bromberek petition through administrative review and that the circuit court erred in dismissing its complaint seeking such review. Lemont Board asserts that the Cass-Bromberek petition does not confer standing on Cass Board since it was invalid under the maxim qui prior est tempore potior est jure, the genesis of the "first in time" principle. Defendants additionally maintain that plaintiff lacks standing both under the School Code and because it was not a party of record at the...