East St. Louis Federation of Teachers, Local 1220 v. East St. Louis School District No. 189 Financial Oversight Panel

Annotate this Case
E. St. Louis Federation of Teachers v. E. St. Louis
School District Financial Oversight Panel, No. 81077
(10/17/97)


NOTICE: Under Supreme Court Rule 367 a party has 21 days
after the filing of the opinion to request a rehearing.
Also, opinions are subject to modification, correction
or withdrawal at anytime prior to issuance of the
mandate by the Clerk of the Court. Therefore, because
the following slip opinion is being made available prior
to the Court's final action in this matter, it cannot be
considered the final decision of the Court. The official
copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the
Court.

Docket No. 81077--Agenda 14--May 1997.
EAST ST. LOUIS FEDERATION OF TEACHERS, LOCAL
1220, AMERICAN FEDERATION OF TEACHERS, AFL-CIO,
Appellee, v. EAST ST. LOUIS SCHOOL DISTRICT No. 189
FINANCIAL OVERSIGHT PANEL, Appellant.
Opinion filed October 17, 1997.
JUSTICE HEIPLE delivered the opinion of the court:
Dr. Geraldine Jenkins, superintendent of East St. Louis
School District No. 189, and the District No. 189 board of
education filed separate complaints for declaratory judgment and
injunctive relief. The parties sought to enjoin the Financial
Oversight Panel for District No. 189 from removing the
members of the school board from office and sought a
declaratory judgment that section 1B--20 of the of the School
District Financial Oversight Panel and Emergency Financial
Assistance Law (Emergency Financial Assistance Law) (105
ILCS 5/1B--1 et seq. (West 1994)) violated the due process and
equal protection guarantees of the United States and Illinois
Constitutions. The circuit court of St. Clair County held that
section 1B--20 violated the right to vote and the due process and
equal protection guarantees of the United States and Illinois
Constitutions (U.S. Const., amends. V, XIV; Ill. Const. 1970,
art. I, sec. 2; art. III, sec. 1), and that the actions taken by the
Panel to remove the school board pursuant to section 1B--20
were void. For the reasons stated below, we reverse.

BACKGROUND
In 1988 East St. Louis School District No. 189 (District No.
189) was certified by the State Board of Education as a district
in financial difficulty under section 1A--8 of the Emergency
Financial Assistance Law, which is part of the School Code
(105 ILCS 5/1--1 et seq. (West 1994)). Upon certification that
a school district is in financial difficulty, section 1A--8 of the
School Code requires that district to submit a financial plan to
the State Board of Education. 105 ILCS 5/1A--8 (West 1994).
In October 1994, with the financial problems of District No. 189
persisting, the State Board of Education established a Financial
Oversight Panel (Panel) pursuant to section 1B--4 of the
Emergency Financial Assistance Law, which it may do upon a
majority vote of a local school board. 105 ILCS 5/1B--4 (West
1994). The purpose of a Financial Oversight Panel is to provide
assistance to and exercise financial control over a financially
troubled school district. Sections 1B--6(i), 1B--14(b) and 1B--10
of the Emergency Financial Assistance Law authorize the Panel
to approve or reject school board contracts as part of this
control. 105 ILCS 5/1B--6(i), 1B--10, 1B--14 (West 1994).
The instant controversy arose over the contract of Dr.
Geraldine Jenkins, who became superintendent of the school
district in 1994. The renewal of Dr. Jenkins' contract was up for
consideration in 1996, and on March 18, 1996, the board of
education of School District No. 189 (the school board), a
seven-member elected body, voted to renew her contract. At a
meeting on March 20, the Panel reviewed Dr. Jenkins' contract,
and subsequently issued a notice to the school board, stating that
"the [P]anel believes the current contract does not meet the
needs of the District under the situation and needs of the District
today." The Panel ordered the school board not to renew Dr.
Jenkins' contract and directed the school board to work with the
Panel to develop guidelines for the duties and qualifications of
the superintendent to be set down in a new contract.
On March 28, the school board voted to refuse to follow the
Panel's directive to inform Dr. Jenkins that her contract would
not be renewed. Pursuant to section 1B--20 of the Emergency
Financial Assistance Law, which authorizes the Panel to remove
school board members from office for failure to follow a valid
order of the Panel, on April 1 the Panel voted to remove the
entire school board pursuant to section 1B--20. The Panel
justified its decision by citing numerous instances where the
school board refused to follow the Panel's directives, including
the refusal to inform Dr. Jenkins that her contract would not be
renewed. The Panel did not deliver written charges to the board
members or conduct a hearing before dismissing the school
board members, actions which are not required by the statute.
The Panel forwarded notification of the school board members'
removal to Jed Deets, the regional superintendent of schools,
instructing him to fill the vacancies on the school board by May
1. At the time of these events, the terms of the seven school
board members were due to expire in either November 1997 or
November 1999.
The day after the Panel's vote to remove the school board,
the school board filed a second amended complaint in an
ongoing lawsuit against the Panel. Count I of the school board's
second amended complaint requested a declaratory judgment
that section 1B--20, by which the Panel purported to dismiss the
school board, was unconstitutional in that it violated the due
process and equal protection clauses of the Illinois Constitution
of 1970 and the United States Constitution. Count I further
asserted that the Panel exceeded its authority when it terminated
the renewal of Dr. Jenkins' contract. Count II of the school
board's second amended complaint repeated the allegations of
count I and sought a preliminary injunction against the Panel
and the regional superintendent to prevent the removal of the
school board. On April 19 the school board filed an additional
motion for a preliminary injunction to prevent the dismissal of
the school board. The court allowed a subsequent motion to add
the individual school board members as third-party plaintiffs.
Dr. Jenkins was granted permission to intervene, and on
April 19 Dr. Jenkins, in her capacity as superintendent of
schools of District No. 189 and as a resident and qualified voter
of District No. 189, filed a complaint for injunctive relief. Dr.
Jenkins' complaint asserted that the Panel lacked the authority
to approve her contract, and that the Panel's decision not to
allow her contract to be renewed unconstitutionally interfered
with her property interest in her job and her liberty interest in
her reputation. Dr. Jenkins further contended that the Panel's
action removing the elected members of the school board under
section 1B--20 was unconstitutional in that it violated her right
to vote. Dr. Jenkins sought an injunction to prohibit the Panel
from replacing her and removing the school board. She also
sought a declaratory judgment as to the constitutionality of
section 1B--20.
On April 29, 1996, the circuit court issued a preliminary
injunction enjoining any acts to replace the members of the
school board. In a written order entered on May 7, 1996, the
circuit court determined that section 1B--20 was unconstitutional
on its face insofar as it violated substantive and procedural due
process and that it impinged upon the right to vote. The circuit
court also found that section 1B--20 denied the voters of School
District No. 189 equal protection of the laws.
We allowed this direct appeal pursuant to Supreme Court
Rule 302(a) (134 Ill. 2d R. 302(a)). Appellants, the State of
Illinois and the Illinois State Board of Education (the State),
assert that section 1B--20 is constitutional. Appellees are Dr.
Geraldine Jenkins, in her capacity as a voter and in her position
as superintendent, and the school board of District No. 189, as
an entity, in each member's individual capacity as a member of
the school board, and in the members capacities as voters.
Appellees counter that section 1B--20 is unconstitutional on a
number of grounds. They assert that section 1B--20: (1)
infringes on the right to vote; (2) violates procedural due
process; (3) violates equal protection; and (4) is an improper
delegation of legislative authority. Dr. Jenkins alone contends
that section 1B--20 is an improper delegation of judicial
authority.[fn1] In its own separate argument, the school board
asserts that section 1B--20 is unconstitutionally vague.

ANALYSIS
I. Statutory Claims
The State commences by asserting that the circuit court
improperly reached the constitutionality of section 1B--20
because it did not first resolve potentially dispositive issues of
statutory construction that were also before the court. A court
should avoid declaring legislation unconstitutional if the case
does not require it (People ex rel. Waller v. 1990 Ford Bronco,
158 Ill. 2d 460, 464 (1994)), and the power to determine the
constitutionality of a statute should only be exercised if such
finding is essential to the disposition of a case (Osborn v.
Village of River Forest, 21 Ill. 2d 246, 249 (1961)). We will
therefore first consider the questions of statutory construction
raised by the parties.
We initially consider whether the Panel acted within its
statutory authority when it ordered the school board not to
renew Dr. Jenkins' contract. When Dr. Jenkins' two-year
contract came up for renewal in 1996, the school board opted to
renew. The Panel reviewed the contract, and in a letter to the
school board, it stated that it believed that "the current contract
does not meet the needs of the District under the situation and
needs of the District today." The Panel directed the school board
not to renew Dr. Jenkins contract. The Panel further instructed
that prior to approval of any contract for the superintendent of
schools, the Panel would "work with the [school board] in
developing guidelines for a new contract and duties for the
Superintendent as well as qualifications and expectations of [the]
Superintendent. The Panel wants to review the entire position of
Superintendent in light of the financial areas of the Oversight
Panel's responsibility and the current needs of the District." The
Panel's ongoing concern regarding Dr. Jenkins' qualifications is
evidenced by the minutes of a Panel meeting on September 28,
1995, which contain statements where the Panel expressed
concern that Dr. Jenkins did not have sufficient financial
expertise to keep the district s budget balanced. The Panel also
noted when Dr. Jenkins' contract was due to expire and
discussed various alternatives the school district had regarding
leadership.
Under the School Code, the Panel does not have the
authority to appoint the superintendent of schools; that power is
reserved for the school board. 105 ILCS 5/10--23.8 (West 1994).
The Panel does have the authority, however, to approve all
contracts made by the school board. Section 1B--6(i) and section
1B--10 of the Emergency Financial Assistance Law authorize
the Panel to approve or reject contracts and obligations made by
the school board, while section 1B--14 outlines the procedure by
which the school board may obtain the Panel's approval of its
contracts. 105 ILCS 5/1B--6(i), 1B--10, 1B--14 (West 1994).
The Emergency Financial Assistance Law defines the scope
of the Panel s authority as encompassing all powers necessary to
meet its responsibilities and to carry out its purposes and the
purposes of the Emergency Financial Assistance Law. The
Panel s purpose is to "exercise financial control over the board
of education, and *** to furnish [the school board with]
financial assistance" (105 ILCS 5/1B--6 (West 1994)), while the
purpose of the Emergency Financial Assistance Law is "to
provide emergency State financial assistance to school districts
and establish a secure financial basis for their continued
existence [and] *** to establish procedure, provide powers and
impose restrictions to assure the financial and educational
integrity of the public schools" (105 ILCS 5/2(b) (West 1994)).
The question, then, is whether in fulfilling its purposes the Panel
is limited to a review of the strictly financial aspects of a
contract, that is, salary, or whether the Panel has broader powers
of contract oversight.
We find that the Panel acted within its authority under the
Emergency Financial Assistance Law when it directed the
school board not to renew Dr. Jenkins' contract. The language
of the Emergency Financial Assistance Law does not expressly
limit the Panel's authority over contracts to mere dollar
approval. Nor is it contrary to the purpose of the statute for the
Panel to require certain financial expertise of the superintendent
to insure the financial well-being of the school district. It is
certainly as important to the fiscal health of a school district in
financial trouble to have a superintendent who can manage a
budget as it is to have a superintendent whose salary is within
that budget. The Panel was thus within its authority in refusing
to renew a contact that did not require sufficient financial
expertise of the superintendent.
The school board also raises issues of statutory
interpretation. It argues that the Panel acted outside the authority
of the statute when it ordered the regional superintendent to
remove the school board members, and that the regional
superintendent lacks the power to carry out that order. Whether
the school board's interpretation of the statute is accurate is
immaterial, however, because an examination of the record
belies the school board's contention that the regional
superintendent removed the school board members in the instant
case. It was the Panel itself that performed the task. The
regional superintendent was merely notified of the Panel's action
and was ordered to fill the vacancies as provided for under
section 10--10 of the School Code. 105 ILCS 5/10--10 (West
1994).
The school board next contends that the Panel itself did not
have the authority to remove the school board. In support of this
assertion, the school board refers to subsection 1B--20(d), which
provides that school board members who fail to follow a valid
order of the Panel or commit the school board to an
unauthorized obligation are subject to "appropriate
administrative discipline," including removal from office. The
school board argues that subsection 1B--20(d) is unclear as to
what body is to administer the sanction. The State counters
section 1B--20 authorizes the Panel to impose "administrative
discipline," and that discipline includes removal from office.
We agree with the State. Section 1B--20 in its entirety
states:
"Sanctions. (a) No member, officer, employee, or
agent of the board shall commit the board to any
contract or other obligation or incur any liability on
behalf of the board for any purpose if the amount of
such contract, obligation or liability is in excess of the
amount authorized for that purpose then available under
the financial plan and budget then in effect.
(b) No member, officer, employee or agent of the
board shall commit the board to any contract or other
obligation on behalf of the board for the payment of
money for any purpose required to be approved by the
Financial Oversight Panel unless such contract or other
obligation has been approved by the Panel.
(c) No member, officer, employee or agent of the
board shall take any action in violation in violation of
any valid order of the Panel or shall fail or refuse to
take any action required by any such order or shall
prepare, present, or certify any information (including
any projections or estimates) or report for the Panel or
any of its agents that is false or misleading, or, upon
learning that any such information is false or
misleading, shall fail promptly to advise the Panel or its
agents.
(d) In addition to any penalty or liability under any
other law, any member, officer, employee or agent of
the board who violates subsection (a), (b), or (c) of this
Section shall be subject to appropriate administrative
discipline, including, if warranted, suspension from duty
without pay, removal from office, or termination of
employment." 105 ILCS 5/1B--20 (West 1994).
The primary rule of statutory interpretation is to ascertain
and give effect to the intent of the legislature, which should be
construed primarily from the language of the statute. Bonaguro
v. County Officers Electoral Board, 158 Ill. 2d 391, 397 (1994).
The statue shall be evaluated as a whole. Bonaguro, 158 Ill. 2d
at 397. Although subsection (d) does not explicitly refer to the
Panel as the disciplinary entity, an examination of the language
of section 1B--20 as a whole renders this conclusion the only
logical interpretation. Section 1B--20 discusses the consequences
that will occur when a school board refuses to cooperate with a
Financial Oversight Panel. Subsections (b) and (c) specifically
mention the Panel. No other oversight party or entity is
mentioned, and section 1B--20 does not refer to any other
section of the statute where some other disciplinary entity is
identified. No other section in the Financial Assistance Law
suggests that the Panel does not have the power to remove the
school board, and, moreover, the Panel is the logical body to
carry out the discipline for failure to follow its own directives.
Accordingly, we find that the legislature intended the Panel have
the authority to remove the school board for failure to follow
valid orders.


II. Constitutional Claims
Turning to the constitutionality of section 1B--20, we
observe at the outset that a statute challenged as unconstitutional
enjoys a presumption of constitutionality. Tully v. Edgar, 171 Ill. 2d 297, 304 (1996). Parties who wish to challenge the
constitutionality of a statute bear the burden of rebutting the
presumption and establishing a constitutional violation. People
v. Blackorby, 146 Ill. 2d 307, 318 (1992). Accordingly, a court
will construe a statute as constitutional where it can do so
reasonably. Bonaguro, 158 Ill. 2d at 397.
In addressing the appellees' constitutional claims, it is first
important to clarify the capacity in which the appellees may
assert them. A school board as an entity is a governmental
agency, or "municipal corporation," created by the legislature
and subject to its will. Cronin v. Lindberg, 66 Ill. 2d 47, 55
(1976). Offices created by statute are wholly within the control
of the legislature, "which may at pleasure create or abolish
them, modify their duties, shorten or lengthen their terms,
increase or diminish the salary or change the mode of
compensation." Hughes v. Traeger, 264 Ill. 612, 616 (1914).
The State's control over units of local government is without
regard to due process guarantees. Cronin, 66 Ill. 2d at 56;
Meador v. City of Salem, 51 Ill. 2d 572, 578 (1972); People ex
rel. Taylor v. Carmago School District, 313 Ill. 321, 324 (1924).
The school board as an entity, therefore, cannot assert due
process claims against the state. Rather, only the school board
members in their capacity as individuals and as voters can assert
such a claim. We further observe that Dr. Jenkins has limited
her due process claims to her position as a voter.

A. Right to Vote
Appellees initially argue that section 1B--20
unconstitutionally infringes on the fundamental right to vote
because it authorizes the summary removal of duly elected
officials from office. They contend that section 1B--20 must
therefore be subjected to strict scrutiny, which requires that a
statute be narrowly tailored to a compelling state interest to pass
constitutional muster. Tully, 171 Ill. 2d at 304-05. Section 1B--
20 fails this test, appellees assert, and must be struck down. The
State responds that the discipline provision in section 1B--20,
including the possibility of dismissal, is narrowly tailored and
necessary to achieve the State's goal of financially sound school
districts.
We find it unnecessary to resort to the parties' "strict
scrutiny" analytical framework. A school board is a municipal
corporation, subject to the will of the legislature. Cronin, 66 Ill. 2d at 55. The legislature has the discretion to formulate the
character, function, and duties of school board. Carmago School
District, 313 Ill. at 324. As this court stated in Carmago School
District, the powers of municipal corporations "may be enlarged,
diminished, modified or revoked *** at the pleasure of the
legislature." Carmago School District, 313 Ill. at 324. By
choosing to define "school board member" as someone who
could be removed from office for disobeying a valid order from
a Financial Oversight Panel, the legislature was merely
establishing the conditions and extent of a member's term of
office. The legislature was free to do this if it so chose.
Appellees cite Tully v. Edgar, 171 Ill. 2d 297 (1996), to
support their argument that section 1B--20 unconstitutionally
infringes on the right to vote. Tully involved a public act that
changed the selection process of the Board of Trustees of the
University of Illinois from an elective to an appointive system.
The act further provided that the then-serving, duly-elected
members of the Board of Trustees would be supplanted midterm
by appointed replacements. This court found that the act in
question violated the electorate s right to vote, in that it nullified
the voters choice by eliminating, midterm, the right of the
elected officials to serve out the balance of their terms. Tully,
171 Ill. 2d at 312.
Appellees assert that Tully controls the case at bar
because section 1B--20 similarly allows the state to remove
elected officials midterm. Appellees, however, fail to
acknowledge a crucial distinction between Tully and the instant
case. In Tully, the public act removing the trustees from office
was enacted after the trustees were elected. When the voters
elected the trustees, they were electing a candidate to serve for
six years. The public act in Tully removed the trustee from
office before the six-year terms had expired, and thus altered the
effect of the electorate s vote in a constitutionally impermissible
manner. In the case at bar, however, the dismissal provisions of
section 1B--20 became effective on December 5, 1989, before
the current school board members were elected. Thus, when the
instant voters elected the school board, a school board member
by definition was one who could be removed from office for
failure to obey a valid Panel order. As previously observed, the
State was free to so define that office. Thus a legislative scheme
that provides that a school board member can be removed from
office for failure to follow the valid directive of a Financial
Oversight Panel does not violate the fundamental right to vote.

B. Procedural Due Process
1. School Board Members
Appellees next assert that section 1B--20 violates procedural
due process. Procedural due process claims concern the
constitutionality of the specific procedures employed to deny a
person's life, liberty, or property interest. People v. R.G., 131 Ill. 2d 328, 342 (1989); Tiller v. Klincar, 138 Ill. 2d 1, 13-14
(1990); Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 84 L. Ed. 2d 494, 503, 105 S. Ct. 1487, 1493 (1985).
Procedural due process rules are meant to protect persons not
from the deprivation, but from the mistaken or unjustified
deprivation of life, liberty, or property. People v. Lang, 113 Ill. 2d 407, 444 (1986); Fuentes v. Shevin, 407 U.S. 67, 81, 32 L. Ed. 2d 556, 570, 92 S. Ct. 1983, 1994 (1972). Courts
considering procedural due process questions conduct a three-
part analysis: the first asks the threshold question whether there
exists a liberty or property interest which has been interfered
with by the State; the second examines the risk of an erroneous
deprivation of such an interest through the procedures already
in place, while considering the value of additional safeguards;
and the third addresses the effect the administrative and
monetary burdens would have on the State s interest. Mathews
v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 47 L. Ed. 2d 18, 33 (1976); R.G., 131 Ill. 2d at 354.
As a threshold matter, then, we consider whether a
constitutionally protected liberty or property interest is at stake.
Tiller, 138 Ill. 2d at 13. While earlier in this opinion we
determined that the school board as an entity could not assert
due process rights against the state, we did not consider whether
the school board members as individuals could assert such a
claim. We consider the question now. While the school board
members as individuals have no property or liberty right to their
offices secured by the federal due process clause, an elected
official may have a property right in his office if such an
interest is given to him under state law. Snowden v. Hughes, 321 U.S. 1, 7, 88 L. Ed. 497, 502, 64 S. Ct. 397, 400 (1944), Brown
v. Perkins, 706 F. Supp. 633, 634 (N.D. Ill. 1989). An interest
is a property right subject to due process protections if that
interest is secured by rules or mutually explicit understandings
that support the claim of entitlement. Perry v. Sindermann, 408 U.S. 593, 601, 33 L. Ed. 2d 570, 579, 92 S. Ct. 2694, 2699
(1972), citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709
(1972). The question, then, is whether state law creates a
property right in elected office. In our case, section 10--10 of
the School Code provides that each member of the school board
shall serve a term of four years. 105 ILCS 5/10--10 (West
1994). Other jurisdictions have recognized that such a statute
gives the elected official a property interest in the office for the
given length of time, and that the official must receive due
process before being removed from office. Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir. 1979) (statute that provided that
aldermen were to remain in office for four years and until such
time that their successors were duly elected and qualified
created a property right in that office); Collins v. Morris, 263
Ga. 734, 735, 438 S.E.2d 896, 897 (1994) (an elected official
entitled to hold office under state law has a property right in
that office); see also Foley v. Kennedy, 110 Nev. 1295, 1305,
885 P.2d 583, 589 (1994) (recognizing the property right to
office held by an elected official); but see State ex rel. Battin v.
Bush, 40 Ohio St. 3d 236, 242, 533 N.E.2d 301, 307 (1988)
(elected officials have no property right in their offices); Lanza
v. Wagner, 11 N.Y.2d 317, 324, 183 N.E.2d 670, 673, 229 N.Y.S.2d 380, 385 (1962) (elected officials have no property
right in their offices).
In opposition to this proposition, the State cites two Illinois
Supreme Court cases, Donahue v. County of Will, 100 Ill. 94
(1881), and People ex rel. Malley v. Barrett, 203 Ill. 99 (1903),
both of which held that office holders have no property rights
in their office. In the nineteenth and early twentieth centuries,
however, the term `property' had a narrower meaning then
currently. Patterson v. Portch, 853 F.2d 1399, 1404 (7th Cir.
1988). The conception of a property right as embodied in
procedural due process analysis, however, has evolved
considerably over the latter half of this century and has extended
into the area of public employment. See Arnett v. Kennedy, 416 U.S. 134, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974); Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701; Perry, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694. This court has likewise
recognized that a public employee may have a property right in
that employment, entitled to due process protection, depending
upon the surrounding circumstances, including existing rules and
understandings. Powell v. Jones, 56 Ill. 2d 70, 77 (1973).
Statutes providing that an elected officer shall serve for a
certain number of years and shall be removed only upon certain
events are akin to circumstances that create property rights in
public employment, because they give rise to an understanding
or an expectation that that person will serve for the given length
of time and will be removed for only the stated reasons. Like
the public employee, an elected officer elected under
substantially similar terms has a property right in his office and
is to be afforded procedural due process protections. Cf. Collins,
263 Ga. at 735, 438 S.E.2d at 897 (an elected official entitled
to hold office under state law has a property right in that office);
Crowe, 595 F.2d 985 (state statute that provided that aldermen
were to remain in office for four years and until such time that
their successors were duly elected and qualified created a
property right in that office). To the extent that the narrow
understanding of property rights and procedural due process
found in Donahue and Barrett are inconsistent with our modern
understanding of these concepts, they are overruled.
Accordingly, we hold that the school board members at issue
had a property right in their offices.
We recognize, however, that the school board members'
right to serve for four years is not absolute, for when the State
creates a public office it may also create standards of conduct
for that office. Gruenburg v. Kavanagh, 413 F. Supp. 1132,
1135 (E.D. Mich. 1976). For example, any elected official may
be removed from office for official misconduct. 720 ILCS 5/33-
-3 (West 1994). In this case, the state has also required that
school board members obey valid orders of a Panel. Therefore
school board members have a property interest in their office
subject to these statutory conditions. While the legislature may
require that a school board member follow a valid order of a
Financial Oversight Panel, the legislature's authority to enact
any statute is subject to the limits imposed in the constitution.
Tully, 171 Ill. 2d at 308. Thus, before elected school board
members may be deprived of their property interest their office
for failure to follow a valid order of the Panel, they must be
afforded due process. Crowe, 595 F.2d at 993.
Having determined that the due process clause applies, the
question remains as to what process is due. Loudermill, 470 U.S. at 541, 84 L. Ed. 2d at 503, 105 S. Ct. at 1492. The first
step in determining what process is due is to consider the risk
of erroneous deprivation of one's property interest in office
through the procedures already existing in the statute. Mathews,
424 U.S. at 335, 47 L. Ed. 2d at 33, 96 S. Ct. at 903. Our
analysis is simplified because section 1B--20 contains no
procedures. No provision is made to insure the validity of a
Panel's actions; rather, it is left to the Panel s unfettered
discretion to decide whether an order it issued is valid, whether
a school board member has disobeyed that order, and whether
removal from office is warranted. Furthermore, the Panel may
make these conclusions and remove an elected school board
member without even apprising anyone that such decisions are
being made, as section 1B--20 has no notice requirement.
Without warning, an entire elected body may be removed at the
whim of the Panel. We find that, with no notice and no
procedural requirements, the risk of erroneous deprivation of the
school board member s property right to office is great.
With no procedure already in place, we must consider what
procedure would be constitutionally adequate. While due process
is flexible and calls for such procedural protections as the
particular situation demands (Cafeteria & Restaurant Workers
Union, Local 473 v. McElroy, 367 U.S. 886, 895, 6 L. Ed. 2d 1230, 1236, 81 S. Ct. 1743, 1748 (1961); R.G., 131 Ill. 2d at
354), its fundamental requirement is the opportunity to be heard
at a meaningful time and in a meaningful manner (Mathews,
424 U.S. at 333, 47 L. Ed. 2d at 32, 96 S. Ct. at 902). Indeed,
before the individual may contest the state action he must be
made aware of it. Notice is a fundamental requirement of due
process. Stratton v. Wenona Community Unit District No. 1, 133 Ill. 2d 413, 432 (1990). The notice must be reasonably
calculated to apprise interested parties of the contemplated
action and to afford the interested parties an opportunity to
present their objections. Stratton, 133 Ill. 2d at 432. In the
present case, therefore, the school board members must receive
notice of the Panel s pending decision to remove them from
office.
We also hold that the school board members are entitled to
a pretermination hearing. Such a hearing would minimize the
risk of unfair or mistaken deprivation of their protected rights by
enabling them to contest the State s basis for depriving them of
those rights. Carey v. Piphus, 435 U.S. 247, 259-60, 55 L. Ed. 2d 252, 262, 98 S. Ct. 1042, 1050 (1978); Fuentes, 407 U.S. at
81, 32 L. Ed. 2d at 570, 92 S. Ct. at 1994. The "root
requirement" of due process is that an individual be given the
opportunity to respond before he is deprived of a protected
right. Villegas v. Board of Fire & Police Commissioners, 167 Ill. 2d 108, 119 (1995), citing Loudermill, 470 U.S. at 542, 84 L. Ed. 2d at 503-04, 105 S. Ct. at 1493. Holding a
pretermination hearing, however brief, would insure that a
school board member who had not violated the conditions
attendant to his office would not be unjustifiably removed from
office. The pretermination hearing need not be elaborate, rather,
it need only give the school board members an opportunity to
respond to the charges. The pretermination hearing s simplicity,
however, should not mask its importance. Such a procedure is
crucial to curb abuses of discretion and to insure that mistaken
deprivations of protected rights do not occur.
Indeed, we find that some manner of process is required
notwithstanding the state s interest in the matter, which is the
final factor in our procedural due process analysis. Balanced
against the school board member s right to procedural safeguards
is the state's interest in maintaining financially sound school
districts. The purpose of the Emergency Financial Assistance
Law is to insure that Illinois school districts enjoy sound
financial structures. Financially stable public school systems are
vital to commercial, educational, and cultural interests of the
community. 105 ILCS 5/1B--2(2) (West 1994). The state and
the public therefore share an incentive to achieve financially
sound school districts. That goal cannot be achieved if a Panel
is unable to compel a local school board to follow its valid
directives. Furthering that interest requires an effective and
efficient means of removing an uncooperative school board, as
protracted removal proceedings would hamper the State's effort
to bring a school district to financial health. Notice and a
predeprivation hearing, however, are neither oppressive nor
extraordinary remedies for the statute s constitutional flaw, and
is not so burdensome as to overly hamper the state s efforts.
Next, we must determine whether the procedural due
process requirements delineated above are fatal to the statute
before us today insofar as the statute does not provide for them.
We reiterate that we must interpret statutes as constitutional if
we can do so reasonably. Bonaguro, 158 Ill. 2d at 397. We note
that the language in section 1B--20 does not preclude the Panel
from giving the school board notice and a hearing before
removing them from office. Section 1B--20 does not insist that
the school board be "summarily" removed from office or impose
some unconstitutional condition upon the school board's
remaining in office. Given that the Panel was free to give notice
or hearing if it so chose, section 1B--20 is not facially
unconstitutional. The manner in which it was applied in this
case, however, violated the school board members' procedural
due process rights by not affording them notice and an
opportunity to be heard. Therefore, section 1B--20 is
unconstitutional as applied in this case.

2. Voters
Appellees also assert that they have a liberty interest in the
right to vote that may not be taken away without procedural due
process protections. Procedural due process rights are triggered
when a fundamental right is being denied. R.G., 131 Ill. 2d at
342, Tiller, 138 Ill. 2d at 13-14; Loudermill, 470 U.S. at 541, 84 L. Ed. 2d at 503, 105 S. Ct. at 1493. While the right to vote is
certainly a fundamental right (Fumarolo v. Chicago Board of
Education, 142 Ill. 2d 54, 74 (1990)), we have just held that
section 1B--20 does not implicate the right to vote. With no
interest being interfered with by the State, appellees are not
entitled to procedural due process in their position as voters.

C. Equal Protection
The circuit court held, and appellees maintain, that section
1B--20 violates equal protection because it treats the voters of
financially troubled school districts differently than voters living
in financially stable school districts. To say that this fact
establishes that section 1B--20 violates equal protection,
however, is to misunderstand the nature of the principle. The
equal protection clause guarantees that those similarly situated
will be dealt with in a similar manner. People v. Warren, 173 Ill. 2d 348, 365 (1996). The Emergency Financial Assistance
Law treats all school districts, and the voters therein, in the
same way. It has not been alleged that District No. 189 has been
treated differently from any other school district controlled by
the Emergency Financial Assistance Law. What occurs in other
school districts not controlled by the Emergency Financial
Assistance Law is immaterial, because those districts are not
similarly situated with those that are. Accordingly, appellees'
equal protection claim has no merit.

D. Improper Delegation of Legislative Authority
Appellees next assert that section 1B--20 is an
unconstitutional delegation of legislative authority because it
gives the Panel the authority to arbitrarily remove the school
board. The power to make the laws is a sovereign power vested
in the legislature, and this power cannot be delegated to an
administrative body. People v. Tibbitts, 56 Ill. 2d 56, 58 (1973).
While the legislature cannot delegate its legislative power to
determine what the law should be, it may delegate the authority
to execute the law. Tibbitts, 56 Ill. 2d at 58-59, quoting Hill v.
Relyea, 34 Ill. 2d 552, 555 (1966). Proper delegation of
authority must provide sufficient standards to guide the
administrative body in the exercise of its functions. Tibbitts, 56 Ill. 2d at 59-60. However, "[a]bsolute criteria whereby every
detail necessary in the enforcement of a law is anticipated need
not be established by the General Assembly. The constitution
merely requires that intelligible standards be set to guide the
agency charged with enforcement." Hill, 34 Ill. 2d at 555. To be
a proper delegation of legislative authority, the statute in
question must identify three factors: (1) the persons or activities
potentially subject to regulation; (2) the harm sought to be
prevented; and (3) the general means available to the
administrator to prevent the identified harm. People v. Gurell,
98 Ill. 2d 194, 210-11 (1983).
Section 1B--20 satisfies these requirements. First, it clearly
identifies the parties subject to regulation: members, officers,
employees, and agents of the school board. Second, with regard
to the harm sought to be prevented, we note that the legislature
may use broader or more generic language than with the first
factor. Stofer v. Motor Vehicle Casualty Co., 68 Ill. 2d 361, 373
(1977). It is sufficient if it is apparent from the statute what the
law is trying to prevent. Stofer, 68 Ill. 2d at 373. Here, the
purpose of the Emergency Financial Assistance Law is to ensure
the continued operation of public school districts by returning
financially distressed school districts to financial health. Section
1B--20 is intended to prevent the harm that might occur were a
recalcitrant school board to refuse to follow a Financial
Oversight Panel's orders regarding matters in which the Panel
has authority. Third, we observe that section 1B--20 specifically
delineates the means available to prevent this harm, including
suspension from duty without pay, removal from office, or
termination of employment. With the factors satisfied, we find
that section 1B--20 is not an improper delegation of legislative
authority.

E. Unconstitutionally Vague
The school board makes its own argument that section 1B--
20 is unconstitutionally vague. It asserts that section 1B--20
lacks both the standards and the specificity necessary to limit
the Panel's power, instead providing the Panel with the
unfettered authority to decide if an order is valid, who will be
disciplined, and what that discipline will be. Furthermore, the
school board contends, the term "valid order" is not defined in
the statute, leaving the school board without notice as to what
actions will subject it to discipline.
The question of vagueness and the question of delegation of
legislative authority are intertwined (People v. Gurell, 98 Ill. 2d
at 210) insofar as both address the standards given in the statute
to guide the conduct the statute regulates and the administrative
body that oversees that conduct. The two concepts, however, use
different tests to judge the adequacy of those standards. While
the improper delegation of legislative authority concept employs
a three-part test that examines generally the power given to the
administrative body to enforce a statute, the vagueness question
focuses more on the specificity of the challenged statute's
language and the degree of notice as to prohibited conduct that
language gives to affected persons. A statute is
unconstitutionally vague and violates due process if it " `fails to
give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute' " (People v.
Lang, 113 Ill. 2d at 454, quoting Papachristou v. City of
Jacksonville, 405 U.S. 156, 162, 31 L. Ed. 2d 110, 115, 92 S. Ct. 839, 843 (1972)), or if there is an absence of standards
restricting the discretion of governmental authorities who apply
the law (Lang, 113 Ill. 2d at 454). The terms of a statute cannot
be so ill-defined that their meaning may be determined at whim
rather than by objective criteria, rather, the statute's terms must
serve as a guide to those who must comply with the statute.
R.G., 131 Ill. 2d at 361. However, mathematical certainty in the
language is not required. People v. Warren, 173 Ill. 2d at 356.
If a statute can be made more definite by a reasonable
construction, the court must give the statute that interpretation.
Lang, 113 Ill. 2d at 455. A statute will not be rendered
unconstitutionally vague merely because one could imagine
hypothetical situations in which the meaning of some terms
might be called into question. Schiller Park Colonial Inn, Inc.
v. Berz, 63 Ill. 2d 499, 513 (1976).
We conclude that section 1B--20 is not unconstitutionally
vague. The terms in section 1B--20 are capable of sufficiently
precise interpretation by a person of ordinary intelligence.
Section 1B--20 clearly identifies the nature of the discipline and
the parties to be disciplined. Furthermore, both the words
"valid" and "order" are words of common use and
understanding, and section 1B--20 and the statute as a whole
describe the Panel's authority with sufficient detail to put all
involved on notice as to what actions are allowed under the
statute. Accordingly, section 1B--20 does not fail for being
unconstitutionally vague.

F. Improper Delegation of Judicial Authority
In a one-paragraph argument, Dr. Jenkins asserts that
section 1B--20 is an improper delegation of judicial authority
because it delegates "quasi-judicial" authority to the Panel and
does not provide for judicial review. Dr. Jenkins does not cite
cases or otherwise explain how the removal of a school board
from office is a judicial function. In fact, one case she does cite
holds that the legislature may delegate to administrative bodies
the power to impose discretionary civil penalties. City of
Waukegan v. Pollution Control Board, 57 Ill. 2d 170, 179
(1974). Nor does Dr. Jenkins provide authority for her claim
that judicial review of administrative action is necessary here.
We find no need to discuss any longer a clearly unsupported
argument, and we reject it. See 134 Ill. 2d R. 341(e)(7).

CONCLUSION
Section 1B--20 of the Emergency Financial Assistance Law
is not invalid on its face, though it is unconstitutional as applied
to the school board of East St. Louis District No. 189 for failure
to provide the school board members with procedural due
process before their removal from office. The judgment of the
circuit court is therefore reversed, and the cause is remanded to
the circuit court with directions to order that the Panel give the
school board notice, a hearing, and an opportunity to respond to
and contest the charges.

Reversed and remanded.

JUSTICE MILLER, concurring in part and dissenting in
part:
I agree with the majority opinion, except for its discussion
of the question whether the individual school board members
have a right to receive pretermination hearings prior to their
removal from the board. Unlike the majority, I do not believe
that due process compels such hearings in this case, and
accordingly I dissent from the portion of the majority opinion
recognizing that right. Slip op. at 11-16.
As the majority notes elsewhere in its opinion, the dismissal
provisions of section 1B--20 of the School District Financial
Oversight Panel and Emergency Financial Assistance Law (105
ILCS 5/1B--20 (West 1994)) took effect in 1989, before the
present board members were elected to office. Slip op. at 11.
Because the present members were elected under a regime by
which a member "by definition was one who could be removed
from office for failure to obey a valid Panel order" (slip op. at
11), I do not believe that the members can now claim a property
right in their positions.
In support of its conclusion, the majority points to the
provision of a specified term of office for school board members
and to a gradual evolution in constitutional law, which has come
to recognize greater rights in public employment and office.
Neither ground is persuasive. Providing for a defined term of
office does not by itself establish a vested property right in the
office. See Adams v. Walker, 492 F.2d 1003, 1006-07 (7th Cir.
1974). In Scott v. Department of Commerce & Community
Affairs, 84 Ill. 2d 42, 52 (1981), this court expressed some
doubt, but did not decide, whether unpaid, part-time officials
appointed to serve fixed terms of office--like the school board
members here--were entitled to a trial-type proceeding prior to
their removal from a public body.
As to the evolution of this area of law, it should be noted
that modern cases from other jurisdictions continue to recognize
that a property right does not automatically attach to a public
office; rather, the existence of a property right depends on
whether one is given by the terms and conditions of the office
in question and by other relevant provisions of state or local
law. See Adams, 492 F.2d at 1006; Leek v. Theis, 217 Kan. 784,
811, 539 P.2d 304, 325-26 (1975); Lanza v. Wagner, 11 N.Y.2d 317, 324, 183 N.E.2d 670, 673, 229 N.Y.S.2d 380, 385 (1962);
Roth v. Cuevas, 603 N.Y.S.2d 962, 973, 158 Misc. 2d 238, ___
(1993); State ex rel. Battin v. Bush, 40 Ohio St. 3d 236, 242,
533 N.E.2d 301, 307 (1988).
The cases cited by the majority in support of its holding are
not to the contrary. In Crowe v. Lucas, 595 F.2d 985 (5th Cir.
1979), state law provided that the incumbent's term of office as
alderman was for four years and until a successor could be duly
elected and qualified. The incumbent had obtained a court order
invalidating the results of the election at which he was defeated,
and that order was still in effect later, when he attempted to
remain in office. In those circumstances, the court found that no
successor had been duly elected and qualified, and the court
concluded that under state law the incumbent was entitled to
continue to serve in office. In Collins v. Morris, 263 Ga. 734,
735-36, 438 S.E.2d 896, 897 (1994), also cited by the majority,
the court stated that an elected official has a property interest in
the office that is entitled to due process protection. The court
went on to acknowledge, however, that "it is also true that an
official takes his office subject to the conditions imposed by the
terms and nature of the political system in which he operates."
(Internal quotation marks omitted.) Collins, 263 Ga. at 735, 438 S.E.2d at 897. In Foley v. Kennedy, 885 P.2d 583 (Nev. 1994),
another case cited by the majority, the court's reference to an
elected officer's property interest in the office came in the
context of a discussion of recall proceedings under state law and
the prevailing official's recovery of costs arising from the
proceeding.
I believe that resolution of this issue must proceed on a
case-by-case basis, and a court faced with this question must
carefully examine the terms and conditions of the particular
office involved. The present board members took office subject
to the measures contained in section 1B--20 of the Emergency
Financial Assistance Law. The statutory scheme provides no
property interest in the office, and therefore I cannot join my
colleagues today in recognizing a property interest in the
positions. Accordingly, I dissent from that portion of the
majority opinion.


[fn1] In her brief before the court, Dr. Jenkins makes three
arguments that the Panel's actions violated her constitutional
rights. First, she asserts that the Panel violated her property right
to public employment; second, she contends that the Panel
damaged her liberty interest in her reputation; and third, she
maintains that the Panel interfered with her right to contract.
These claims, though asserted in her complaint, were not
mentioned nor ruled on by the circuit court and do not pertain
to the constitutionality of section 1B--20, which was the only
matter decided in the circuit court's order. We have no
jurisdiction to decide issues outside the scope of the circuit
court's ruling. 134 Ill. 2d R. 302(a). Accordingly, we will not
consider these arguments by Dr. Jenkins.

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