                             Illinois Official Reports

                                    Appellate Court



           Donovan v. Community Unit School District 303, 2015 IL App (2d) 140704



Appellate Court         JIM DONOVAN and STEVEN SCHULZE, Individually and in
Caption                 Representative Capacity of All Those Similarly Situated,
                        Plaintiffs-Appellants, v. COMMUNITY UNIT SCHOOL DISTRICT
                        303, Defendant-Appellee.



District & No.          Second District
                        Docket No. 2-14-0704



Filed                   July 16, 2015



Decision Under          Appeal from the Circuit Court of Kane County, No. 13-L-510; the
Review                  Hon. James R. Murphy, Judge, presiding.



Judgment                Affirmed.



Counsel on              Timothy P. Dwyer, of Law Offices of Timothy P. Dwyer, of St.
Appeal                  Charles, for appellants.

                        Stanley B. Eisenhammer and Jennifer A. Mueller, both of Hodges,
                        Loizzi, Eisenhammer, Rodick & Kohn, LLP, of Arlington Heights, for
                        appellee.



Panel                   JUSTICE McLAREN delivered the judgment of the court, with
                        opinion.
                        Justices Jorgensen and Spence concurred in the judgment and opinion.
                                              OPINION

¶1       Plaintiffs, Jim Donovan and Steven Schulze, individually and representing all those
     similarly situated, appeal the trial court’s dismissal of their class action complaint against
     defendant, Community Unit School District 303. On appeal, plaintiffs argue that the trial court
     erred by dismissing their complaint because: (1) their complaint is not barred by the Illinois
     Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act)
     (745 ILCS 10/1-101 et seq. (West 2010)); and (2) their complaint sufficiently alleged an
     implied private cause of action. We affirm.

¶2                                         I. BACKGROUND
¶3       This case involves the reorganization of two schools, Davis Elementary and Richmond
     Elementary, that, prior to the 2011-12 school year, both served students in kindergarten
     through fifth grade. Plaintiffs are parents of students who originally attended Davis. Defendant
     is a school district organized under the Illinois School Code (105 ILCS 5/1-1 et seq. (West
     2010)). Beginning in the 2011-12 school year, defendant reconfigured the two schools so that
     Davis served students in kindergarten through second grade and Richmond served students in
     third grade through fifth grade (2011 Plan).
¶4       The No Child Left Behind Act of 2001 (NCLB) (20 U.S.C. § 6301 et seq. (Supp. I 2001))
     required states to establish and enforce learning standards and to achieve adequate yearly
     progress (AYP) toward those standards, as measured by federally approved standardized tests.
     See 20 U.S.C. § 6311 (Supp. II 2002). To comply with the NCLB, the Illinois General
     Assembly amended sections of, and added sections to, the School Code (105 ILCS 5/1-1
     et seq. (West 2010)). Most notably, Public Act 93-470, § 5 (eff. Aug. 8, 2003), significantly
     amended section 2-3.25d of the School Code (105 ILCS 5/2-3.25d (West 2010)). Section
     2-3.25d(a) provides that a school that fails to make AYP for two consecutive years is placed on
     “academic early warning status for the next school year.” 105 ILCS 5/2-3.25d(a) (West 2010).
¶5       For four consecutive school years, 2007-08 through 2010-11, Richmond failed to achieve
     AYP. Once Richmond failed to make AYP for the second consecutive school year, 2008-09,
     defendant developed a School Improvement Plan (SIP) for Richmond in 2009-10. Defendant
     was required to notify the parents of Richmond students of the AYP issue and to offer those
     parents the option to enroll their children in higher-performing schools within the district (this
     option is known as “choice”). By the following school year, 2010-11, 117 Richmond students
     had transferred to other schools in the district, and the enrollment at Davis had increased by 19
     students. Davis had achieved AYP every school year prior to 2010-11.
¶6       The 2011 Plan reconfigured Richmond and Davis from two independent elementary
     schools, each serving students in kindergarten through fifth grade, into interdependent
     elementary schools, with Davis serving students in kindergarten through second grade and
     Richmond serving students in third grade through fifth grade. After the fall of 2011, the parents
     of Richmond students could no longer transfer their children to higher-performing schools,
     because choice was no longer available.
¶7       In Clarke v. Community Unit School District 303, 2012 IL App (2d) 110705, ¶¶ 25, 41
     (Clarke I), the plaintiffs brought suit attacking the 2011 Plan. We held that the plaintiffs’
     complaint contained sufficient allegations for a writ of mandamus, based on violations of the


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       School Code and its regulations, and we remanded the matter to the trial court. On remand, the
       trial court determined that defendant had the discretion to combine the two schools and,
       therefore, the court left that part of the 2011 Plan intact. However, the trial court issued a writ
       of mandamus ordering defendant to “ ‘develop a revised Corrective Action Plan that includes
       Choice *** in accordance with the mandates in the NCLB, the School Code[, and its
       regulations].’ ” Clarke v. Community Unit School District 303, 2014 IL App (2d) 131016, ¶ 15
       (Clarke II). On appeal, this court affirmed the trial court’s decision to leave the reconfiguration
       of the schools intact but vacated the writ of mandamus, reasoning that defendant had obtained
       a waiver in 2014 from the United States Department of Education. Id. ¶¶ 40, 46.
¶8          In this case, plaintiffs filed their complaint on October 10, 2013, after we decided Clarke I,
       after the trial court decided the case on remand, and before we decided Clarke II. Plaintiffs
       alleged the following. On March 17, 2011, defendant adopted the 2011 Plan that combined
       Davis and Richmond and failed to give the parents of the children forced to attend Richmond a
       “choice” to transfer them to another school, “in contravention of the law.” Under the NCLB,
       any school that failed to achieve AYP for two consecutive years was required to allow its
       students’ parents to transfer them to a school that had achieved AYP. In the fall of 2011,
       Richmond had failed to achieve AYP for three consecutive years. Plaintiffs had children
       within the Davis school boundary when defendant’s 2011 Plan forced their children to attend
       Richmond, a lower-achieving school. Some parents, including Donovan and Schulze, removed
       their children from the public school system and placed them in private schools, at a cost in
       excess of $50,000. Other parents moved outside the school boundary to “evade the illegal”
       2011 Plan. Some parents did not have the option to move or to place their children in private
       schools, and they were forced to have their children attend Richmond. Plaintiffs sought
       findings that defendant “knowingly and wholly violated the NCLB[ ] [and] the Illinois School
       Code [and] that the aforementioned violation remain[ed] the direct and proximate cause of the
       Plaintiffs’ damages.” Plaintiffs also sought: (1) certification of a conditional class; (2) an
       award of compensatory damages against defendant for plaintiffs and all members of the class;
       (3) attorney fees and costs; and (4) further relief that the court deemed just and equitable.
¶9          On November 8, 2013, defendant filed a notice of removal to federal court. The federal
       court issued an order remanding the case to the trial court.
¶ 10        On January 17, 2014, defendant filed a motion to dismiss pursuant to sections 2-615,
       2-619(a)(9), and 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615,
       2-619(a)(9), 2-619.1 (West 2010)). Defendant argued that plaintiffs’ complaint failed to state a
       cause of action and should be dismissed pursuant to section 2-615 of the Code because
       plaintiffs did not have a private cause of action for damages under the School Code. Further,
       Illinois does not recognize the tort of educational malpractice. Defendant argued that
       plaintiffs’ complaint should be dismissed pursuant to section 2-619(a)(9) of the Code because
       defendant was entitled to immunity under the Tort Immunity Act (745 ILCS 10/1-101 et seq.
       (West 2010)). More specifically, in its memorandum of law attached to its motion, defendant
       argued that section 2-103 of the Tort Immunity Act (745 ILCS 10/2-103 (West 2010)) afforded
       defendant immunity. Plaintiffs filed a response to defendant’s motion to dismiss and defendant
       filed a reply.
¶ 11        On February 26, 2014, after hearing argument by counsel, the trial court granted
       defendant’s section 2-619 motion to dismiss, stating in its written order that plaintiffs’
       complaint was barred by section 2-103 of the Tort Immunity Act. The trial court also granted

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       defendant’s section 2-615 motion to dismiss, stating that the School Code and its regulations
       do not “give rise to an implied [private cause] of action for damages.” Plaintiffs’ complaint did
       not “meet the [three] characteristics necessary to allow a court to imply an appropriate cause of
       action for damages.”
¶ 12       On March 24, 2014, plaintiffs filed a motion for reconsideration. On June 4, 2014, the trial
       court denied plaintiffs’ motion. Plaintiffs filed their notice of appeal on June 25, 2014.

¶ 13                                           II. ANALYSIS
¶ 14        Plaintiffs argue that the trial court erred by granting defendant’s motion to dismiss.
       Plaintiffs’ complaint was dismissed pursuant to a combined motion brought under section
       2-619.1 of the Code. 735 ILCS 5/2-619.1 (West 2010). This section permits section 2-615 and
       section 2-619 motions to be filed together as a single motion, but the combined motion is
       divided into parts that are limited to and specify the single section of the Code under which
       relief is sought. Id. Under either section 2-615 or section 2-619, our review is de novo.
       Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070, ¶ 64.
¶ 15        A motion to dismiss pursuant to section 2-619(a)(9) of the Code admits the legal
       sufficiency of the complaint but asserts that the plaintiff’s claim “is barred by other affirmative
       matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West
       2010); Mutual Management Services, Inc. v. Swalve, 2011 IL App (2d) 100778, ¶ 4.
       “ ‘[A]ffirmative matter,’ in a section 2-619(a)(9) motion, is something in the nature of a
       defense which negates the cause of action completely or refutes crucial conclusions of law or
       conclusions of material fact contained in or inferred from the complaint.” Illinois Graphics Co.
       v. Nickum, 159 Ill. 2d 469, 486 (1994). If the grounds giving rise to a section 2-619(a)(9)
       motion do not appear on the face of the complaint, the motion must be supported by an
       affidavit. 735 ILCS 5/2-619(a) (West 2010). The existence and preclusive effect of tort
       immunity are properly raised in a section 2-619(a)(9) motion. Smith v. Waukegan Park
       District, 231 Ill. 2d 111, 115 (2008).
¶ 16        Plaintiffs argue that the trial court erred by determining that their claims are barred by
       section 2-103 of the Tort Immunity Act, because the alleged conduct at issue is ministerial and
       not discretionary. Defendant argues that the immunity provided by section 2-103 is not subject
       to an exception for ministerial acts.
¶ 17        The purpose of the Tort Immunity Act is to protect local public entities and public
       employees from liability arising from the operation of government. Van Meter v. Darien Park
       District, 207 Ill. 2d 359, 368 (2003). By providing immunity, the legislature sought to prevent
       public funds from being diverted from their intended purpose to the payment of damages
       claims. Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001). The
       immunities afforded under the Tort Immunity Act serve as affirmative defenses, which, if
       properly raised and proven, bar a plaintiff’s right to recovery. Zimmerman v. Village of Skokie,
       183 Ill. 2d 30, 43-44 (1998).
¶ 18        The cardinal rule of statutory construction is to ascertain and give effect to the legislature’s
       intent. Brunton v. Kruger, 2015 IL 117663, ¶ 24. The best indication of the legislature’s intent
       is the language of the statute, which must be afforded its plain and ordinary meaning. Id. When
       the language is unambiguous, the statute must be applied as written without resort to other aids
       of construction. Id.


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¶ 19        Section 2-103 of the Tort Immunity Act provides:
                “A local public entity is not liable for an injury caused by adopting or failing to adopt
                an enactment or by failing to enforce any law.” 745 ILCS 10/2-103 (West 2010).
¶ 20        In this case plaintiffs alleged injuries caused by defendant’s adoption of the 2011 Plan and
       its failure to provide choice, in contravention of the School Code and the NCLB. Plaintiffs
       contend that section 2-103 “does not pertain to this case at all because the action alleged of the
       Defendant District is ministerial and not discretionary.” However, plaintiffs’ interpretation is
       not supported by the plain language of section 2-103. Nothing in the language of section 2-103
       provides a distinction between ministerial and discretionary acts or an exception for ministerial
       acts. We will not depart from the plain language of a statute by including conditions,
       limitations, or exceptions that are not expressed by the legislature. See Village of
       Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 493 (2001). Because nothing in the
       plain language of section 2-103 contains an exception for acts that are ministerial, “we will not
       insert one.” Id. at 493-94. Further, a review of the Tort Immunity Act reveals that, when the
       legislature intended to limit immunity to discretionary acts, it expressed its intention with
       specific language. For example, section 2-201 of the Tort Immunity Act provides:
                “Except as otherwise provided by Statute, a public employee serving in a position
                involving the determination of policy or the exercise of discretion is not liable for an
                injury resulting from his act or omission in determining policy when acting in the
                exercise of such discretion even though abused.” (Emphases added.) 745 ILCS
                10/2-201 (West 2010).
       The absence in section 2-103 of language limiting immunity to discretionary acts or
       omissions, where such language is included in another section of the Tort Immunity Act,
       demonstrates the legislature’s intention to exclude the limitation. See Jost v. Bailey, 286 Ill.
       App. 3d 872, 878 (1997). In addition, immunities provided pursuant to the Tort Immunity Act
       are absolute unless expressly limited by the legislature. Id. at 878-79. Accordingly, the trial
       court properly determined that section 2-103 of the Tort Immunity Act barred plaintiffs’
       claims. Therefore, the trial court properly granted defendant’s section 2-619(a)(9) motion to
       dismiss.
¶ 21        Plaintiffs assert that “a local unit of government cannot obtain immunity under the Tort
       Immunity Act for actions which are ministerial” and that “only discretionary acts will provide
       immunity for governmental entities.” Plaintiffs cite Van Meter, 207 Ill. 2d 359, Trotter v.
       School District 218, 315 Ill. App. 3d 1 (2000), and Johnson v. Mers, 279 Ill. App. 3d 372
       (1996), to support these assertions. The municipal defendants in those cases did not assert
       immunity pursuant to the section at issue here; rather, the defendants asserted immunity
       pursuant to section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201 (West 2010)), which
       requires a municipal defendant to establish that its alleged actions or omissions were
       discretionary. See id.; Van Meter, 207 Ill. 2d at 380; Trotter, 315 Ill. App. 3d at 12-13;
       Johnson, 279 Ill. App. 3d at 380. Defendant in this case asserted immunity pursuant to section
       2-103, which does not require a defendant to establish that its alleged acts or omissions were
       discretionary. See 745 ILCS 10/2-103 (West 2010). Therefore, Van Meter, Trotter, and
       Johnson are distinguishable from the case at bar.
¶ 22        Plaintiffs also contend that “[e]very single reported case under section 2-103 of the Tort
       Immunity Act where the government prevail[ed] involves an exercise of discretion by the local
       unit of government.” Plaintiffs cite Pouk v. Village of Romeoville, 405 Ill. App. 3d 194 (2010),

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       and Jost, 286 Ill. App. 3d 872, to support this argument. Neither case holds that the defendants
       were immune under the Tort Immunity Act because they exercised discretion.
¶ 23       In Pouk, the plaintiff alleged that the municipal defendant willfully and wantonly failed to
       enforce an intersection-visibility ordinance, causing the death of the plaintiff’s daughter. Pouk,
       405 Ill. App. 3d at 195, 198. The municipal defendant asserted immunity pursuant to sections
       2-103 and 2-105 of the Tort Immunity Act, which do not contain an exception for willful and
       wanton conduct. Id. at 198. The plaintiff contended that section 2-202 of the Tort Immunity
       Act, which provided an exception for willful and wanton conduct, applied. Id. at 196. The
       appellate court held that the plaintiff’s allegations “[fell] squarely within sections 2-103 and
       2-105.” Id. at 198. The court held that therefore section 2-202 did not apply and the plaintiff’s
       complaint was properly dismissed. Id. Thus, Pouk is inapplicable to this case.
¶ 24       In Jost, the plaintiffs alleged that the defendants were negligent and willful and wanton in
       their approval of a dangerous snowmobile trail that caused the death of their daughter, who
       was struck by a motor vehicle. Jost, 286 Ill. App. 3d at 874. The defendants asserted immunity
       pursuant to the Snowmobile Registration and Safety Act (625 ILCS 40/5-1(N) (West 1994))
       and section 3-109 of the Tort Immunity Act (745 ILCS 10/3-109 (West 1994)). Jost, 286 Ill.
       App. 3d at 874. This court held that section 5-1(N) of the Snowmobile Registration and Safety
       Act barred the plaintiffs’ complaint and that, even if it did not, section 2-103 of the Tort
       Immunity Act would bar the plaintiff’s complaint. Id. at 879. Because Jost does not discuss
       whether the defendants’ acts were allegedly discretionary or ministerial, Jost is inapplicable to
       this case.
¶ 25       Plaintiffs correctly note that, in dismissing their complaint under section 2-103 of the Tort
       Immunity Act, the trial court stated in its written order, “The conduct complained of is
       discretionary.” Assuming that the trial court intended to make a meaningful distinction
       between discretionary and ministerial acts, we would not be bound by this misstatement. We
       review de novo both the grant of a motion to dismiss and the interpretation of a statute. See
       Mauvais-Jarvis, 2013 IL App (1st) 120070, ¶ 64; Evanston Insurance Co. v. Riseborough,
       2014 IL 114271, ¶ 13. In addition, we may affirm the trial court’s judgment on any basis
       supported by the record. See In re Marriage of Edelman, 2015 IL App (2d) 140847, ¶ 36.
¶ 26       Because we determine that the trial court properly granted defendant’s section 2-619(a)(9)
       motion to dismiss, based on section 2-103 of the Tort Immunity Act, we need not address the
       remaining issues raised by plaintiffs.

¶ 27                                     III. CONCLUSION
¶ 28      For the reasons stated, we affirm the trial court’s order granting defendant’s motion to
       dismiss plaintiffs’ complaint.

¶ 29      Affirmed.




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