11/30/2016 3:09 PM
PAGE 1 of 18
OF CHICAGO, et al.,


No. 16-CH-13159
The Honorable Michael T. Mullen


Dated: November 30, 2016

Respectfully submitted,
s/ Sean Morales-Doyle
One of Plaintiffs’ Attorneys

Thomas H. Geoghegan
Michael P. Persoon
Sean Morales-Doyle
Despres, Schwartz & Geoghegan, Ltd.
77 West Washington Street, Suite 711
Chicago, Illinois 60602
(312) 372-2511
Cook County Attorney No. 70814

While this suit is pending, plaintiffs seek a mandatory preliminary injunction to require
defendants to draft the necessary election procedures for members of the Chicago Board of
Education to ensure that their election can take place as soon as possible after a final judgment.
Plaintiffs contend that where they are likely to prevail, the expediting of such a vote is an urgent
public matter and it is settled law that right to vote in school board elections is a fundamental
constitutional right. See, e.g., Tully v. Edgar, 171 Ill.2d 297 (1996); Fumarolo v. Board of
Education, 142 Ill.2d 54 (1990). While mandatory preliminary injunctions are rare, Illinois
courts have upheld them as appropriate when there is a matter of extreme urgency and a clear
right to relief, as demonstrate in this memorandum. See, e.g., Cleaning and Dying Plant Owners
Ass'n v. Sterling Cleaning and Dryers Inc., 278 Ill.App. 70, 79-80 (1934); see also Ambassador
Foods Corp. v. Montgomery Ward & Co., 43 Ill. App. 2d 100 (1963). Since Illinois courts have
given mandatory preliminary injunctions in commercial cases, like Gold v. Ziff Communications,
196 Ill. App. 3d 425 (1989), it is all the more appropriate where elected representation is being
denied. Furthermore, plaintiffs seek limited preliminary relief, which does not change the status
quo, and there will be no harm to defendants in preparing such election rules for this Court to
consider at the time the parties file cross-motions for summary judgment.
In the alternative, plaintiffs ask this Court to convert their motion for preliminary relief
into one for a permanent injunction. The relevant facts are undisputed or a matter of statutory
record. Furthermore, defendants are likely to file a motion to dismiss, and both motions can be
heard at the same time. On April 4, 2017, all Illinois citizens—except those residing in
Chicago—will vote for the board members who will run their schools. Plaintiffs are entitled to
the same right, at the same time. A permanent injunction is therefore appropriate where the only
question before the court is purely one of law and no evidentiary hearing is necessary.

Statement of Facts
There are 859 public school districts in Illinois, including 373 elementary school districts,
99 high school districts, and 387 unit districts. ISBE Public Information Division, Annual Report
2015 19 (2016), relevant “School and Districts” section attached hereto as Exhibit A.1 In all
cases but one, Illinois citizens have the right to vote for the members of the board that oversees
the public education of children in these districts. 105 ILCS 5/10-1 & 10-10. The one exception,
District 299, is co-extensive with the City of Chicago. Section 34-3 of the Illinois School Code
denies to plaintiffs the same equal right to vote that it grants to all other Illinois citizens outside
of Chicago. 105 ILCS 5/34-3. Pursuant to 34-3 of the Illinois School Code, the Mayor of the City
of Chicago has the sole exclusive authority to appoint the members of the Board, at his pleasure,
without any oversight, or advice and consent of the City Council. Id. at § 34-3(b).
The Chicago Board of Education has the power to levy property taxes upon plaintiffs and
other citizens of Chicago, without review or approval by the City Council, or the General
Assembly, or any other legislative body or body of elected officials. Id. at §§ 34-53–54.1. In the
last five years without the approval of the City Council or any other legislative body the Board
has levied over 11 billion dollars in property taxes, with approximate annual levies as follows:
Fiscal Year




Property Tax Revenue
$ 2,359,800,000
$ 2,289,000,000
$ 2,197,000,000
$ 2,106,000,000
$ 2,106,000,000




http://cps.edu/finance/Pages/financialinfo.aspx) (last accessed November 4, 2016).


The full report available at www.isbe.net/reports/annual15/report.pdf.




Formerly the Board of Education was an administrative body that was appointed by the
Mayor with the advice and consent of the City Council and accountable to the City Council of
Chicago for tax and expenditure decisions. See Latham v. Board of Education, 31 Ill. 2d 178,
181-82, 184, 187-88 (1964). Accordingly, while the Board was not directly elected, it was
accountable in such decisions to a body of legislators elected by the people of Chicago.
In 1988, the General Assembly enacted the Chicago School Reform Act of 1988 (1988
Act), which grew out of an educational summit called for by Harold Washington, the first
African American mayor of Chicago. Ill. P.A. 85-1418 (Dec. 12, 1988); see also 85th Ill. Gen.
Assem., Senate Proceedings, Dec. 1, 1988, at 60 (statement of Sen. Berman). In the 1988 Act,
the General Assembly gave citizens of Chicago the right to elect Local School Councils (LSCs)
which had authority to appoint and remove the principals and otherwise govern the local
neighborhood schools. Ill. P.A. 85-1418 § 1 (adding Ill. Rev. Stat., ch. 122, ¶ 34-2.1, later
codified at 105 ILCS 5/34-2.1). The 1988 Act also abolished the 11-member Board of Education,
expanded the Board to 15 members and created a School Board Nominating Commission,
composed of 23 parent and community representatives from the LSCs and 5 members appointed
by the Mayor. Ill. Id. (amending Ill. Rev. Stat., ch. 122, ¶ 34-3, later codified at 105 ILCS 5/343). Under the 1988 Act, the School Board Nominating Commission gave the Mayor a slate of
three candidates only to fill each vacant position on the 15-member Board. Id. (adding Ill. Rev.
Stat., ch. 122, ¶ 34-3.1). The Mayor then had only 30 days to choose the 15 board members from
the list that the Commission proposed. Id. The Mayor’s choices then had to be approved by the
50-member City Council. Id. The 1988 Act was designed to increase voter control over the
operation of the Chicago public schools, although the Board was still appointed. The 1988 Act
was designed to give special representation rights to parents of CPS students.


In 1995, the General Assembly passed the Chicago School Reform Amendatory Act
(1995 Act). P.A. 89-15 (May 30, 1995). The 1995 Act eliminated the role of LSCs in the
political processes leading up to the appointment of Board members. Id. at § 50 (repealing 105
ILCS 5/34-3.1). The 1995 Act eliminated the School Board Nominating Commission and gave
the Mayor the exclusive right to select the new School Reform Board of Trustees through 1999
and the reconstituted Board of Education thereafter, as well as the exclusive right to appoint a
chief executive officer. Id. at §§ 5 & 50 (amending 105 ILCS 5/34-3 and repealing 105 ILCS
5/34-3.1). The 1995 Act also excluded any role of the City Council in the confirmation or
selection of members of the Board. Id. The 1995 Act gave unprecedented control over the public
schools to just a single elected official, the Mayor.
The Chicago public schools are now in a far worse financial position than in 1995. In its
last Comprehensive Annual Financial Report, the Board reported that it was facing “financial
crisis,” with a “deficit gap of $862 million and a structural deficit of $1.1 billion in the Operating
Fund.” Cover Letter to 2015 Comprehensive Annual Financial Report (available online at
http://cps.edu/About_CPS/Financial_information/Documents/FY15_CAFR.pdf). The teachers’
pension plan which was fully funded in the late 1990s was about 52 percent funded in 2015. Id.
at 6; see also Chicago Teachers Pension Fund 1999 Comprehensive Annual Financial Report 29
(available online at http://www.ctpf.org/AnnualReports/cafr1999.pdf). These shortfalls are in
large part the result of decisions made by the appointed board regarding contributions to the
pension fund that were authorized by the 1995 Act. See P.A. 89-15, § 3 (amending 40 ILCS
5/17-129). These shortfalls imperil the right of Chicago children to a public education. The
appointed school board and appointed Chief Executive Officer have also been impaired by
corruption. For example, last year, the Chief Executive Officer appointed by the Mayor pleaded


guilty to wire fraud for steering no-bid contracts as kickbacks to her former employer—no-bid
contracts that were approved by the appointed Board. Office of the Inspector General of the
Chicago Bd. of Educ. (OIG), Annual Report FY 2015 at 6 (available online at
http://www.cpsoig.org/uploads/3/6/1/7/3617112/cps_oig_fy_2015_annual_report.pdf); Chicago
Bd. of Educ. Action 13-0626-PR51 (unanimous approval of $20.5 million no-bid contract)
attached hereto as Exhibit B. As another example, in fiscal year 2012, the OIG objected to the
Board’s improper proposed residency waiver for a high-ranking CPS official, but the Board
approved the waiver nonetheless. OIG, Annual Report FY 2012 at 29-32 (available online at
http://www.cpsoig.org/uploads/3/6/1/7/3617112/oig_fy_2012_annualreport.pdf). The OIG has
also announced investigations into potential conflicts of interest with other no-bid contracts,
including contracts that went to companies owned by a Board member.
From an educational standpoint, there has been scant research done on the effectiveness
of mayoral-control when compared to elected school boards, and there is no conclusive evidence
of any correlation between the composition of a school board and academic success. See Pauline
Lipman, et al., “Should Chicago Have an Elected Representative School Board?” 7-8 (Univ. of
Ill. at Chicago, Feb. 2015), attached hereto as Exhibit C; James C. Carl, “‘Good Politics is Good
Government’: the Troubling History of Mayoral Control of the Public Schools in Twentiethcentury Chicago, 115(2) Amer. J. Educ. 305 at 330 (2009), attached hereto as Exhibit D;
Frederick M. Hess, “Assessing the Case for Mayoral Control of Urban Schools,” 4 Education
Outlook 3 (American Enterprise Institute for Public Policy Research, Aug. 2008), attached hereto
as Exhibit E. Though student outcomes at Chicago Public Schools have improved recently
according to some measures, they largely track national trends for large urban school districts,
and in some cases have fallen behind the progress made in these districts nationally. Exhibit C at


14-17. Ultimately, significant academic improvement depends on the educational policies that
the board—whether appointed or elected—chooses to adopt. In part because of past financial
mismanagement, the Board has failed or has been constrained in adopting polices that are
responsible for improvement in education. Id. at 23-24.
Plaintiffs meet all four prerequisites for a preliminary injunction. See Mohanty v. St. John
Heart Clinic, 225 Ill. 2d 52, 61 (2006); Callis, Papa, Jackstadt & Halloran P.C. v. Norfolk &
Western Ry. 195 Ill. 2d 356, 366 (2001). First, they have a legal right in need of protection—the
right to vote. Second, they are suffering irreparable injury from denial of the right to vote. Third,
they have no adequate legal remedy. Fourth, they are likely to succeed on the merits. In addition,
the balance of harms favors preliminary injunctive relief. See Shodeen v. Chicago Title & Trust
Co., 162 Ill. App. 3d 667, 672-73 (Ill. App. Ct. 1987).
Specifically, while Section 34-3 of the School Code denies a fundamental constitutional
right, it is impossible for defendants to argue that it is “necessary” to serve a “compelling state
interest.” After twenty years of experience with a board appointed exclusively by the Mayor, the
Chicago public schools are in a worse financial position. Nor has there been any significant
educational gain, especially among African American children. Even if defendants could
establish that an appointed board is “necessary” to serve a compelling state purpose, despite the
contrary evidence, Section 34-3 is not the “least restrictive means.” There is no periodic review
or sunset provision as to whether the denial of this fundamental right continues to be “necessary”
to a “compelling purpose.” Furthermore, even if the defendants could violate this fundamental
right, they may not vest the decision to levy taxes upon plaintiffs by the Chicago board without
some accountability to a legislature or other elected body. Nor can defendants impose a law like
Section 34-3 that changes the character or form of government of a home rule unit like the City

of Chicago. Because plaintiffs must prevail as a matter of law on all of these grounds, this Court
should grant the motion of preliminary injunction or convert it into one for a permanent
injunction and enter judgment in plaintiffs’ favor.

Because they are being denied the right to vote, plaintiffs are suffering irreparable
injury for which there is no adequate legal remedy.
“[A] continuing violation of a constitutional right that cannot be adequately compensated

with money, coupled with an inadequate remedy at law, constitutes a per se irreparable harm.”
C.J. v. Dep’t of Human Servs., 331 Ill. App. 3d 871, 891 (2002) (citing Lucas v. Peters, 318 Ill.
App. 3d 1, 16 (2000). Specifically, the denial of the right to elected representation for even a
short period justifies emergency injunctive relief. See, e.g., Jackson v. Ogilvie, 426 F.2d 1333,
1337 (7th Cir. 1970); Judge v. Quinn, 612 F.3d 537, 556-57, as amended by 387 Fed. Appx. 629
(7th Cir. 2010). The outright denial of a right to vote altogether constitutes irreparable injury that
cannot be remedied through the award of damages. See Obama for America v. Husted, 697 F.3d
423, 436 (6th Cir. 2012); Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986); Harlan v.
Scholz, No. 16 C 7832, 2016 U.S. Dist. LEXIS 132581, *5-*6 (N.D. Ill. Sep. 27, 2016). Of
course, with each day that passes, the plaintiffs suffer this injury because they are governed and
taxed by an unelected school board. That harm will be especially pronounced on April 4, 2017,
when every citizen of Illinois living outside Chicago has the opportunity to exercise their right to
vote and the plaintiffs and other Chicago residents do not.

Plaintiffs are likely to succeed on the merits of their claim that Section 34-3 of the
Illinois School Code denies plaintiffs a fundamental constitutional right to an equal

Plaintiffs have a fundamental constitutional right to the same voting rights
being exercised by all other citizens of Illinois.

Repeatedly—in three leading cases involving election of school officials—the Illinois
Supreme Court has held that the right to an equal vote is a fundamental constitutional right.

Fumarolo v. Chicago Bd. of Educ., 142 Ill. 2d 54 (1990); Tully v. Edgar, 171 Ill. 2d 297 (1996);
East St. Louis Fed'n of Teachers, Local 1220 v. East St. Louis Sch. Dist. No 189 Fin. Oversight
Panel, 178 Ill. 2d 399 (1997). The denial or impairment of such a fundamental right is subject to
strict scrutiny. It must serve a compelling state purpose; and even if there is a compelling
purpose, it is still unlawful if that purpose can be achieved in a less restrictive manner.
In the cases cited above, the judicial protection to the right to vote is notably greater than
under the case law of the U.S. Supreme Court. See Burdick v. Takushi, 504 U.S. 428 (1992)
(weighing “character and magnitude of the asserted injury” against “the precise interests put
forward by the State”); see also Anderson v. Celebrezze, 460 U.S. 780, 788-789 (1983). In the
case of an outright denial, as in this case, even Burdick requires that the state law must be
“narrowly drawn” to advance a “state interest” of “compelling importance.” Id. And in Tully v.
Edgar, the Illinois Supreme Court is even more emphatic that a right to vote is always, in every
circumstance, a fundamental constitutional right. 171 Ill. 2d at 306. The Court in Tully v. Edgar
states that a restriction on the right to vote must be “necessary” to advance a compelling state
purpose—not just that it might arguably do so:
Where challenged legislation implicates a fundamental
constitutional right, however, such as the right to vote, the
presumption of constitutionality is lessened and a far more
demanding scrutiny is required. When the means used by a
legislature to achieve a legislative goal impinge upon a
fundamental right, the court will examine the statute under the
strict scrutiny standard. Under a standard of strict scrutiny, the
court must conclude that the means employed by the legislature to
achieve a stated goal were necessary to advance a compelling
state interest. In addition, the statute must be narrowly tailored,
that is, the legislature must use the least restrictive means
consistent with the attainment of the legislative goal.
Id. at 304-05 (citations omitted, emphasis added).


Significantly, the Tully Court had patience with the claim that the General Assembly had
a free hand to give or not give the right to vote for legislatively created offices. The Court
The appellants first argue that this court has repeatedly held that
the legislature has authority to modify, change or even take away
entirely the powers conferred on legislatively created offices. Our
cases, however, specifically state that the legislature’s authority to
enact any statute, including statutes governing legislatively created
offices, is subject to limitations imposed in the constitution. One of
the limits imposed in the constitution is, of course, the fundamental
right to vote.
Id. at 308 (citations omitted). If that is true in Tully for the trustees of the University of Illinois,
or in Fumarolo for Local School Councils (LSCs), it applies with even more force to members of
a school board that levies billions of dollars in taxes—and exercises broad governmental powers.
There is also good reason to infer that with respect to an equal right to vote, the Illinois
Constitution is more emphatic than the U.S. Constitution. Unlike the U.S. Constitution, which
does not even provide a right to vote, the Illinois Constitution guarantees a uniform right to vote
throughout the State of Illinois, stating, “All elections shall be free and equal.” Ill. Const. Art.
III, § 3 (emphasis supplied). Section 34-3 is an “unequal” denial of the elections that will be held
next April. The Constitution also says, “Election laws shall be general and uniform.” Ill. Const.
Art. III, § 4 (emphasis supplied). As an “election law” the Illinois School Code is anything but
“uniform.” To deny the right to vote is to disregard the plain meaning of the language.
Significantly, all of the lead cases declaring that the right to vote is a “fundamental” are
about elections of the bodies governing schools. In Fumarolo, the Court held there to be a
fundamental right in the elections for the LSCs. In Tully, the Court held there to be such a right
for elections of trustees of the University of Illinois. Both cases hold that a denial or even
impairment of that “fundamental” right must be “necessary” to serve a “compelling state

purpose.” It is impossible for defendants to make such a showing—if only because the citizens of
Chicago have never had an elected board. Usually this denial has been couched in “general” law
denying the right to vote to a school district with a population of over 500,000—and not to one
with a population under 500,000. The cursory explanation has been that such districts have
unique problems, without anyone saying what they are, or why 500,000 is a magic number.
Indeed, aside from not identifying any specific problems, there is no evidence that an appointed
board would do any better in solving them, and there has never been such a legislative finding.
Indeed, Illinois has never had an elected school board in districts of over 500,000, and
there is no evidence of any kind as to how such an elected board might perform. In the 1995 Act,
the General Assembly made a vague and non-specific finding of an “educational crisis,” but did
not consider whether an elected board should now be put in place as an alternative. But this
educational “crisis” cited by the General Assembly arose under an appointed board, not an
elected board. Without any evidence or findings, the General Assembly eliminated the role of
both LSCs and the City Council in selecting the appointed board, and vested such power
exclusively in the Mayor. In the last twenty years, there is no evidence that this type of appointed
board—replacing a former type of appointed board—has been “necessary” or somehow better
than an elected board in serving any “compelling purpose.” One could make the same claim of
an educational crisis today. Indeed, after twenty years of exclusive mayoral control, the record
shows that the Chicago public schools still underperform in exactly the same way relative to
other big city districts. The modest gains in academic scores in this period continue to lag behind
the gains in other big city school districts—some with and some without appointed boards. That
is, CPS is not the worst, and not the best, and below the average in just the same way as before.


On the other hand, under this new type of appointed board, the Chicago public school
system (CPS) is in far worse financial condition. In fact, unlike 1995, it is now on the edge of
bankruptcy. This particular form of an appointed board has been a disaster in terms of fiscal
management—far worse than the kind of arrangement it replaced. The former CEO pleaded
guilty to financial corruption, there is no money in the pension fund, and it is now a close call
every year whether the schools will open. It is under an appointed board—not an elected board—
that a much greater financial crisis has arisen.
Furthermore, it is impossible for the defendants to argue that in the case of Chicago,
unlike other districts in Illinois, an appointed board is somehow “necessary,” or superior, or even
as good as an elected board. Such a finding would not even be minimally rational, since there has
never been an elected board. How could defendants possibly know whether the denial of the
right to vote is “necessary” to serve a “compelling state interest,” as Tully and Fumarolo required
the defendants to show? Indeed, if the General Assembly did believe that an appointed board was
“necessary” to serve some “compelling state purpose,” it would be inexplicable why the General
Assembly would not have equally eliminated the right to vote in every other school district.
Furthermore, in any denial of a fundamental right, Tully and Fumarolo require the
General Assembly use a “narrowly tailored” law with the “least restrictive” means. But Section
34-3 is a blunderbuss, a forever and for all time waiver of the right to vote, without regard to
changes in the educational problems facing a city like Chicago. In particular Section 34-3 has no
sunset provision, or mechanism to review whether the alleged “crisis” in 1995 has passed, or
whether there is still the same basis for denying the right to vote. Likewise, there is no
mechanism to review whether an appointed board is making the kind of difference that justifies
so severe an impact on fundamental constitutional rights.


Furthermore, there is a serious question about the good faith of Section 34-3. There are
heavy racial overtones to a legislative decision that singles out Chicago and only Chicago—
where the public schools serve predominantly children of color. To be sure, other school districts
in Illinois also serve children of color. But in Chicago, unlike these other districts, the property
wealth which is taxed to pay for schools is largely owned by whites, or nonminority businesses.
Chicago, where almost half of the African-American population of Illinois resides, is also the
easiest to single out using facially race-neutral criteria. At any rate, under the case law,
defendants have to demonstrate that after twenty years, a board appointed by the mayor is
advancing a compelling state purpose. There is a record now to establish whether a compelling
purpose is being served—and whether it justifies such a severe impact on the right to vote.
Section 34-3 denies not only an equal right to vote, but also the principle of one-person,
one-vote in a statewide electoral scheme. After all, the respective school boards of Illinois are all
equally exercising the same legislative power delegated by the General Assembly—and
discharging not a local but a state constitutional obligation under Article X. The Illinois School
Code is a “general” state law, and a “general” delegation of the State’s obligation to provide the
public schools. Each local board is exercising a fractional amount of the General Assembly’s
authority over public education under Article X. Just as one person, one vote applies to the
General Assembly at the state level in the exercise of this power, so it applies to the exercise of
that power as divided and shared out among the local districts of that State. In delegating its
constitutional obligation to local units of government, the General Assembly has an equal
obligation to preserve the principle of one person, one vote. As Tully and Fumarolo make clear,
there is no exemption of one person, one vote for legislatively created office. Citizens in Dolton,
Riverdale, or Wilmette cannot have a fundamental right that citizens in Chicago do not.



Under Latham v. Board of Education, the General Assembly may not delegate
the legislative power of taxation to a board that is not elected or accountable
in the exercise of the power to a legislative body like the City Council.

It is a violation of due process for the legislature to delegate its power to tax to an
unelected body like the Chicago Board of Education when the Board is not accountable to the
plaintiffs in the exercise of that power and there is no guidance as to how an appropriate levy is
to be set. See Latham v. Board of Education, 31 Ill. 2d 178 (1964). In Latham, the Court found
that it was lawful for the Board to levy taxes because the City Council of Chicago was required
to approve the budget. Id. at 181-82. Indeed, the City Council had to confirm the members of the
Board. Id. at 184, 187-88. This accountability to the City Council, a legislative body that
plaintiffs could elect, was a sufficient procedural check on the exercise of the power to tax.
But no similar procedural check exists today. In 1995, the General Assembly placed the
appointments to the Board under exclusively mayoral control, and removed any check on the
Board’s levy, except to retain a cap of 4 percent. That cap—set long ago in 1995—is arbitrary in
light of the changed conditions today: both the financial crisis that the Board now faces but did
not face at the time; and the cost of meeting unfunded learning standards that did not exist in
1995. Furthermore, there is simply no intelligible standard to guide the Board in determining
how many billions of dollars the levy should be. There is not even a requirement that the Board
provide enough to ensure an adequate education. Nor is there any procedural check like approval
by the City Council. What in Latham was the very feature that “saved” the Board’s constitutional
authority—direct accountability to the City Council—is gone. In response to the objection that
the Board could set any levy it wished, without any check, the Court in Latham found otherwise:
…in section 34-55 the legislature expressly negates such an
implication by the following language: “This Article does not
authorize the board to levy or collect any tax, but the city council
shall, upon the demand and under the direction of the board,
annually levy all school taxes.”

Id. at 181. The Court interpreted this provision as requiring City Council approval:
The conclusion that the statute provides that only the municipal
authority may levy is strengthened by the provisions of many other
sections of the article dealing with tax levies for special purposes
where the express terms require action by the city council. The
fallacy of plaintiffs’ argument that the Board makes the levy is
clear when we consider that even though all preliminary steps have
been taken by the Board and a final budget has been adopted, not a
penny of school taxes will be forthcoming without the adoption
by the city council of an ordinance levying the tax. Plaintiffs’
allegation that the Board sets the rate at which the tax is extended
is a mere conclusion not founded on any factual allegations and, in
fact, is contrary to the statutory provisions vesting the authority to
determine such rate in the county clerk.
Id. at 181-82 (emphasis added, citations omitted).
Now, in 2016, by contrast, under a quite different School Code, the Chicago Board is not
accountable either to voters, or the City Council, or to the City of Chicago as a municipality.
While the county clerk still certifies the bare legality of the Board’s levy, there is no longer as in
Latham any ordinance passed by the City Council, before “a penny” in taxes is forthcoming. Id.
Nor can the Board of Education be considered an agency of the City, as it was in Latham.
Without this procedural check, there is no meaningful guideline to prevent the Board from
arbitrarily exercising the power to tax. As pointed out above, the School Code does impose a
ceiling of 4 percent—but this cap was not imposed with any reference to the problems facing the
Board today. There is no finding that the 4 percent cap has any relation to the financial needs of
the public schools twenty years later. Indeed, within the cap, the rate could be 1.0, 3.0, or 3.99,
and there is no “intelligible” standard as to which levy this body should use, as the Supreme
Court required in Hoogasian v. Regional Transportation Authority, 58 Ill. 2d 117, 130 (1974).
In Hoogasian the Supreme Court upheld a state law delegating to a new agent, the RTA,
the power to impose a fuel tax and certain other charges. The differences with the RTA law and
the Illinois School Code are telling. First of all, by referendum, the voters had directly approved

the law, including a tax on fuel of up to five percent. And the Court found that “it would have
been difficult for the legislature to have been more precise in defining the powers of the
Authority with respect to taxing and fares.” 58 Ill. 2d at 131. When the voters approve specific a
delegation of the taxation power, there is no due process problem. Historically, in other states,
taxpayers have no standing to challenge the delegation, when there has been such a vote. See,
e.g., Larson v. Monorail Auth., 156 Wash. 2d 752, 763 (2005); see also 1 Thomas M. Colley,
The Law of Taxation 207 (4th ed. 1924) (“Of course if the people of a local district have in any
way consented to the delegation of the power to tax to a local [appointed] board they cannot
contest the validity of the delegation of power.”) But there has never been such consent by the
people of Chicago, as there was in Hoogasian. There has been no referendum. Furthermore, in
Hoogasian, the RTA’s power to impose a fuel tax of up to 5 percent was limited to “user” taxes
for the maintenance of the region’s highways and roads. Significantly, the RTA could not impose
a property tax, which is a general tax—as the Board of Education can. The power to tax property
has a special status in the Illinois Constitution—and a broad delegation of the power to tax
property without any procedural check should not be lightly implied. See Ill. Const., Art. IX, § 1.
In order to provide a regional transportation plan for six counties, there was no real
alternative except an agency like the RTA. In the case at hand, there was a ready alternative to an
appointed board. Indeed, an elected board was the standard mechanism for delegation of this
taxing power, and there was never any finding why an elected board could not be used.
Furthermore, especially where the appointed board itself has created and aggravated the
problems of the Chicago public schools, the delegation of the power to tax should receive greater
scrutiny on due process grounds. Hoogasian is further distinguishable since the plaintiffs in that
case did not seek to require the RTA to be accountable to voters or an elected body. Indeed, in


Hoogasian, the challenge was directed to the right of the voters even to approve a delegation of
the taxation power. Finally, the RTA is ultimately accountable to governments that voters do
elect. See 70 ILCS 3615/3.01 (RTA Board members appointed: 1) by the Cook County Board; 2)
with the advice and consent of the Chicago City Council; or 3) with the concurrence of suburban
county boards). That is not true of the Board of Education: the members are accountable not to
the City of Chicago, as in Latham, but only to the mayor individually, separate and distinct from
the city as a municipal corporation. That is, vested with authority to tax, the RTA is accountable
to elected governments, while the Chicago Board is accountable to no government at all.
In short, this delegation of legislative power is unlawful because the procedural checks
relied upon in Latham are gone. It may be pointed out that there is another Illinois law, namely,
the Property Tax Extension Limitation Law (PTELL), 35 ILCS 200/18-185 et seq., that limits
how quickly property taxes can be raised. But the existence of PTELL only underscores the
arbitrary nature of the delegation here to an appointed Board. By referendum, the voters can raise
the PTELL limiting rate. 35 ILCS 200/18-190. Only the citizens of Chicago have no such right to
resort to a referendum. Unlike other citizens, they are not entitled to raise the cap above 4
percent because of the special provisions of the School Code. 105 ILCS 5/34-53. They also have
no similar power to raise the PTELL limiting rate even up to this cap should they choose to do
so, for it is up to the unelected Board to decide to have a referendum vote in the first place. Id.
Unlike Hoogasian, the delegation of legislative power—one with a much broader
discretion and no procedural checks—occurred without any vote or referendum and is
profoundly undemocratic. The absence of any popular consent to this imposed form of
government violates another provision of the Illinois Constitution. Unlike the opponents of the
RTA in Hoogasian, plaintiffs do not challenge the power of the legislature to delegate at all.


Plaintiffs contend only that such unit of government has to be elected by the voters or
accountable to a representative government which is elected. The RTA is accountable to elected,
representative governments, while the Board of Education is not accountable to the City—but
only, in an attenuated way, to the Mayor as an executive officer. What plaintiffs contend is that it
is unconstitutional to have taxation without any representation through a legislative body,
directly or indirectly. Where the power to tax is delegated, plaintiffs have a right to be taxed in a
manner consistent with the Supreme Court’s decision in Latham.

The balance of the harms and the public interest favor plaintiffs.
As plaintiffs have shown that they meet all four prerequisites for a preliminary injunction,

the Court may consider the balance of harms and the public interest as well. See Shodeen v.
Chicago Title & Trust Co., 162 Ill. App. 3d 667, 672-73 (Ill. App. Ct. 1987). While plaintiffs—
and the voting public at large—face continued irreparable injury every day that they are taxed
and governed by an appointed school board, the defendants face slight or no harm if the Court
grants an injunction requiring them merely to plan for an April election. As preliminary relief,
the plaintiffs request only that the defendants draft the procedures necessary to allow for an April
election while the Court considers the merits of the case. Plaintiffs seek to protect against the
possibility that, if they prevail, it will be impossible to hold an election in a timely fashion.
For these reasons, Plaintiffs respectfully request that the Court enter a preliminary
injunction requiring defendants to draft procedures for an election of members of the Board of
Education while this suit is pending in order to allow for an election on April 4, 2017. In the
alternative, plaintiffs ask this Court to convert their motion for preliminary relief into one for a
permanent injunction to decide what is a pure question of law.


Litigant List
Printed on 11/30/2016
Case Number: 2016-CH-13159

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Plaintiffs Name

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Total Plaintiffs: 7

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Total Defendants: 3