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FOURTH DIVISION

1-00-0148 MARCH 29, 2001

Plaintiffs Michael Jacobson and Alvin Miller, individually andas class representatives, filed this action against defendant Boardof Education of the city of Chicago (the Board), claiming they weredeprived of their rights to continued employment, during a specificperiod, as principals in the Chicago public school system. Plaintiffs appeal from the circuit court's grant of summaryjudgment in favor of the Board, denial of plaintiffs' motion forsummary judgment, and denial of plaintiffs' petition for leave tofile an amended complaint.

Prior to the enactment of public act 85-1418 (Pub. Act 85-1418, eff. May 1, 1989) (amending Ill. Rev. Stat. 1987, ch. 122,pars. 34-84 and 34-85) (public act 85-1418), principals at Chicagopublic schools were appointed by the Board pursuant to section 34-84 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 34-84) (section 34-84). Following successful completion of a three yearprobationary period, the principals became tenured employees.⁽¹⁾ Pursuant to section 34-85 of the School Code (Ill. Rev. Stat. 1987,ch. 122, par. 34-85) (section 34-85), a tenured principal could notbe dismissed except for cause.⁽²⁾ Effective May 1, 1989, thelegislature enacted public act 85-1418, purporting to amendsections 34-84 and 34-85 and eliminating tenure for principals.⁽³⁾

Prior to May 1, 1989, plaintiffs allege, they were employed asprincipals in the Chicago public school system and had earnedtenure pursuant to section 34-84. After the enactment of publicact 85-1418, plaintiffs were deemed to be serving under performancecontracts which expired on June 30, 1990. Plaintiffs were notoffered contract extensions by their local school councils.⁽⁴⁾

On November 30, 1990, the supreme court found public act 85-1418 unconstitutional in its entirety. Fumarolo v. Chicago Boardof Education, 142 Ill. 2d 54, 566 N.E.2d 1283 (1990) (Fumarolo).⁽⁵⁾ On May 2, 1994, plaintiffs filed a one count complaint against theBoard seeking damages because they were deprived of their rights tocontinued employment as principals and denied salary and otheremployment benefits for the 1990-1991 school year pursuant toaction taken under a statute (public act 85-1418) which was heldunconstitutional in its entirety by the supreme court. TheFumarolo court recognized that plaintiffs had enforceable statutoryrights to continued employment until such time as those rights wereremoved by a constitutionally valid legislative enactment, stating:

"An examination of the language of section 34-85 prior to its amendment shows that duringthe time that the statute was in effect,tenured principals were entitled to retaintheir positions until the age of compulsoryretirement during good behavior and efficientservice and that they could not be dismissed except for cause. Fumarolo, 142 Ill. 2d at105 (emphasis added).

The Board unsuccessfully moved to dismiss plaintiffs'complaint in June 1996. The Board contended that plaintiffs wereattempting to relitigate the issue of their lost tenure which waspreviously decided in Fumarolo and Pittman v. Chicago Board ofEducation, 64 F.3d 1098 (7th Cir. 1995) (Pittman). The Board fileda second motion to dismiss on the grounds that plaintiffs' claimwas barred by the Local Governmental and Governmental Employee TortImmunity Act (the Tort Immunity Act) (745 ILCS 10/1-101, et seq.(West 1998)). Plaintiffs responded that their cause of actionsounded in contract and, therefore, the Tort Immunity Act wasinapplicable. On June 6, 1997, the circuit court denieddefendant's motion to dismiss as to plaintiff's claim sounding incontract only, but dismissed any claims sounding in tort.

In June 1999, the circuit court ordered the Board to "answerplaintiffs (class) interrogatories pertaining to identification ofclass members, their salaries, benefits and other compensation, andother information relating thereto, on or before July 6, 1999." Inresponse to this order, on July 6, 1999, the Board sent a coverletter and an attached spreadsheet listing the names of 70 classmembers, their social security numbers and their salaries.⁽⁶⁾ Another spreadsheet, listing a smaller number of class members wasfiled by the Board on August 25, 1999.

The parties filed cross-motions for summary judgment. TheBoard argued that because of the circuit court's June 6, 1997order, plaintiffs could proceed only in contract and plaintiffs hadnot shown and could not demonstrate the existence of a contractbetween the parties. Plaintiffs argued that the legal issuesalready had been decided in their favor and that the spreadsheettendered by the Board on July 6, 1999, was a judicial admission asto the amount of damages they sustained. The court entered amemorandum order and opinion granting the Board's motion forsummary judgment and denying plaintiffs' motion for summaryjudgment.

Within days after the foregoing decision was rendered, andrelying upon section 2-1005(g) of the Code of Civil Procedure (735ILCS 5/2-1005(g) (West 1998)) and Loyola Academy v. S & S RoofMaintenance, Inc., 146 Ill. 2d 263, 586 N.E.2d 1211 (1992) (LoyolaAcademy), plaintiffs moved for leave to amend their complaint. Theproposed amendment would have incorporated the same factspreviously pled, and added three new theories, in three additionalcounts. Plaintiffs' motion was denied.

Plaintiffs first contend that the circuit court erred ingranting the Board's motion for summary judgment. Specifically,plaintiffs argue that their rights under sections 34-84 and 34-85remained in effect because those sections were not repealed by thevoid and unconstitutional provisions of public act 85-1418.

A motion for summary judgment is properly granted if thepleadings, depositions and admissions on file, together with anyexhibits and affidavits, when construed strictly against the movingparty and liberally in favor of the opponent, demonstrate thatthere is no genuine issue of material fact and the moving party isentitled to judgment as a matter of law. Outboard Marine Corp. v.Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204(1992) (Outboard Marine); Mitchell v. Jewel Food Stores, 142 Ill.2d 152, 568 N.E.2d 827 (1990). A circuit court's decision grantingsummary judgment is reviewed de novo. Outboard Marine, 154 Ill. 2dat 101.

When an act is held unconstitutional in its entirety, it isvoid ab initio. In re G.O., 191 Ill. 2d 37, 727 N.E.2d 1003(2000); People v. Gersch, 135 Ill. 2d 384, 553 N.E.2d 281 (1990)(Gersch). The effect of enacting an unconstitutional amendment toa statute is to leave the law in force as it was before theadoption of the amendment. Gersch, 135 Ill. 2d at 390.

The effect of the supreme court's decision in Fumarolo, whichheld public act 85-1418 unconstitutional in its entirety, was toleave the law in force as it was before the adoption of theamendment. Prior to the adoption of public act 85-1418, tenuredprincipals could not be removed except for cause and after ahearing if one was timely requested in writing by the principal. See Ill. Rev. Stat. 1987, ch. 122, par. 34-85. The decision not toretain plaintiffs as principals did not follow this procedure. Consequently, plaintiffs contend, they are entitled to recover thesalary, pension and other employment benefits they lost for thelimited period they were not retained as principals, in violationof sections 34-84 and 34-85.

The Board responds that the circuit court properly enteredsummary judgment in its favor because plaintiffs are unable todemonstrate the existence of a contract between them and the Board. The Board maintains that the June 6, 1997 order entered by thecourt in this case, which stated that plaintiffs' action couldproceed in contract only, was the law of the case. Under thatdoctrine, a court is bound by its prior rulings of law in opinionsor orders in the same case unless the facts require a differentinterpretation. Continental Insurance Co. v. Skidmore, Owings &Merrill, 271 Ill. App. 3d 692, 648 N.E.2d 959 (1995). The courtagreed that the "primary issue in the case is whether plaintiffscan maintain a contract action against the defendants or whetherplaintiffs can demonstrate the existence of a contract between theparties." In finding that they could not, the court relied onFumarolo and Pittman.

The Fumarolo plaintiffs challenged the constitutionality ofthe Chicago School Reform Act (public act 85-1418), arguing that(1) the voting scheme for electing members of the local schoolcouncils violated the equal protection clauses of the federal andstate constitutions and (2) by eliminating tenure for principalsthe legislation unconstitutionally impaired vested contract rights. The supreme court found public act 85-1418 to be unconstitutionalin its entirety because the voting scheme violated the equalprotection clauses of the federal and state constitutions. Indicta, the court considered the plaintiffs' contract argument. Theplaintiffs argued that the School Code established the basis oftheir contractual rights. The court noted that "the presumption isthat a law is not intended to create private contractual or vestedrights but merely declares a policy to be pursued until thelegislature shall ordain otherwise." Fumarolo, 142 Ill. 2d at 104.The court found no indication in the language of the School Code that the legislature intended to create vested contractual rightsthrough enactment of the statute. The court held that theplaintiffs "were entitled to the statutorily created status undersection 34-84 on the conditions stated, but that they did not havea contractual right to continued employment." Fumarolo, 142 Ill.2d at 106.

In Pittman, the amended act, enacted to rectify theconstitutional infirmities in public act 85-1418, was challenged onthe same basis as in Fumarolo. The court found that the originalSchool Code, which initially granted tenure to principals, did notcreate a statutory contractual right to tenure.

Although in both Fumarolo and Pittman, the issue was whetherthe principals who had earned tenure had vested rights to continuedemployment which could never be modified by the legislature, hereplaintiffs' claim is based on the assertion that they were entitledto continued employment under sections 34-84 and 34-85 until theirrights were changed by a constitutional statute. Because publicact 85-1418 was found unconstitutional in its entirety and therebyvoid ab initio, it never amended plaintiffs' rights under sections34-84 and 34-85. Unlike Fumarolo or Pittman, this case deals withthe employment relationship that existed between the Board andplaintiffs by virtue of the prior statute, and the benefits earnedthereunder for which they have not been compensated, not whetherthat relationship ever could be terminated by repeal of that

statute, as in Fumarolo and Pittman.

Public employees are entitled to enforce the terms of theiremployment. Cannella v. Village of Bridgeview, 284 Ill. App. 3d1065, 673 N.E.2d 394 (1996); Carter v. State Board of Education, 90Ill. App. 3d 1042, 414 N.E.2d 153 (1980). In Cannella, the courtruled that defendant's acceptance of benefits from plaintiffscreated an implied-in-law or quasi-contract for which theplaintiffs were entitled to compensation. Plaintiffs here claim tohave earned the rights to continued employment as a quid pro quofor their performance; however, they were denied this aspect oftheir compensation at a time when the rights plaintiffs held werenot validly repealed. In Carter, plaintiff was held entitled tobenefits because the Board failed to follow the law in existence atthat time. That is the point sought to be made here, thatplaintiffs' rights to continued employment were not validlyrepealed by public act 85-1418, and plaintiffs were deprived oftheir rights to continued employment during the period the lawrecognized those rights as still valid.

According to the Board, plaintiffs' initial complaintreferences an employment relationship, but fails to state factsshowing an offer, acceptance, consideration or certain and definiteterms. Pleadings must be liberally construed, however, and nopleading is bad in substance that contains such information asreasonably informs the opposite party of the nature of the claimthat it is called upon to meet. 735 ILCS 5/2-603(c) (West 1998),735 ILCS 5/2-612(b) (West 1998); Kapoor v. Robins, 214 Ill. App. 3d248, 573 N.E.2d 292 (1991). Village of Wadsworth v. Kerton, 311Ill. App. 3d 829, 726 N.E.2d 156 (2000). Although plaintiffs'complaint lacks clarity, basic elements establishing their rightsto relief have been pleaded sufficiently. Plaintiffs implicitlyalleged that the Board granted them tenured principal positionsupon successful completion of a probationary period; they acceptedthose positions and, by successfully performing requisite servicesand completing the required probationary period, they earnedtenure; and, as consideration for their services as principals tothe Board, they received salaries, pension contributions and otherbenefits, including the rights to tenured employment unlessdismissed for cause or upon compulsory retirement or, as in thecase at bar, unless the legislature by valid statute terminated thetenure provisions.

Plaintiffs here are not claiming that section 34-84 of theSchool Code itself created the contract and defined the terms ofthe employment relationship; rather, they assert, the statuteauthorized the parties to enter into a separate employmentarrangement, which they did. See State of Indiana, ex rel.Anderson v. Brand, 303 U.S. 95, 82 L. Ed. 2d 685, 58 S. Ct. 443(1938). Unlike the issues decided in Fumarolo and Pittman, thecontractual nature of plaintiffs' cause of action does not arisedirectly out of the statute itself, but from the fact that theBoard was statutorily authorized to and did create an employmentrelationship with plaintiffs. During the time that the statutorilyauthorized tenure rights were in existence and not repealed, thoseterms continued to define the Board's employment relationship withthe principals. Plaintiffs' claim is not dependent upon a "vested"right which continued after the statute ultimately and effectivelywas repealed, but upon plaintiffs' employment relationship with theBoard until repeal became effective. Whether specifically labeledcontract, employment rights, contract implied-in-fact, or quasi-contract, the relationship between the Board and the plaintiffsexisted until constitutionally and validly repealed, and thatrelationship sounded in contract.

Significantly, in its answer to plaintiffs' initial complaint,the Board generally admitted the existence of an employmentrelationship between it and the plaintiffs; that plaintiffs earnedrights to continued employment; and that under sections 34-84 and34-85 the class plaintiffs could be dismissed only for just causeafter a hearing. These were judicial admissions. Board ofEducation of Township High School Dist. 205 v. Faculty Ass'n ofDist. 205, 120 Ill. App. 3d 930, 458 N.E.2d 1017 (1983); AmericanStates Insurance Co. v. National Cycle, Inc., 260 Ill. App. 3d 299,631 N.E.2d 1292 (1994). Defendant's admission that such anemployment arrangement existed establishes the contractualcharacter of their claim because, as the Illinois Supreme Court hasheld, the employer-employee relationship is inherentlycontractually based:

"Essential to the employer-employeerelationship between Johnson and the claimantis the existence of an employment contract,express or implied. In order to establishsuch a contract there must be at least animplied acquiescence by the employee in therelationship." (Citation omitted.) A.J.Johnson Paving Co. v. Industrial Comm'n, 82Ill. 2d 341, 350, 412 N.E.2d 477 (1980).

See also DeHeer-Liss v. Friedman, 227 Ill. App. 3d 422, 426, 592N.E.2d 13 (1991), appeal denied, 146 Ill. 2d 631, 602 N.E.2d 456(1992) ("A contract of employment is formed when one party promisesto render services in exchange for the other party's promise to paywages"); Perlin v. Board of Education of the City of Chicago, 86Ill. App. 3d 108, 407 N.E.2d 792 (1980) (contract claim upheldbased on established terms of employment and acceptance thereof byperformance).

Plaintiffs pled that they earned their tenure by completingthe necessary probationary period to the satisfaction of the Board, demonstrating the mutual assent required for contracts, andestablishing an exchange, a quid pro quo, for services rendered inreturn for salaries, pension contributions and other benefits,including the rights to continued employment as long as the termsof the employment remained in effect. The entire relationship, aspled and admitted, was the promise to perform in return for thepromise to pay, and clearly sounded in contract.

The circuit court erred in entering summary judgment in favorof the Board.

Plaintiffs next contend that the circuit court erred indenying their motion for summary judgment. Specifically,plaintiffs argue that summary judgment as to liability should havebeen entered in their favor because they were entitled to therights and benefits under section 34-84 and 34-85, which remainedin effect when public act 85-1418 was held unconstitutional in itsentirety, until a constitutionally valid statute took effect whichterminated those earned rights and benefits.

The effect of public act 85-1418 being held unconstitutionalin its entirety in Fumarolo was to leave the law in force as itexisted prior to the adoption of the amendment. See Gersch, 135Ill. 2d at 390. The Board implicitly admitted in its answer toplaintiffs' initial complaint that prior to the enactment of publicact 85-1418, principals in the Chicago public school systemsuccessfully completed a three year probationary period, that aprincipal who successfully completed the probationary period couldnot be removed except for cause, and that plaintiffs hadsuccessfully completed their respective probationary periods andearned benefits as principals. Tenure ineluctably was among thebenefits earned.

The rights and benefits to which plaintiffs were entitled didnot end until public act 86-1477, which now validly terminated theprevious appointment system, became effective on January 11, 1991.

The circuit court erred in failing to enter summary judgmentin favor of plaintiffs on the issue of liability.

Plaintiffs next contend that the Board's responses toplaintiffs' interrogatories should be deemed judicial admissionsfor purposes of damages. Consequently, plaintiffs assert, becauseno genuine issue of material fact remains as to either liability ordamages, summary judgment should be entered in their favor. TheBoard maintains that their responses to plaintiffs' interrogatoriesare not judicial admissions.

A judicial admission is a deliberate, clear, unequivocalstatement of a party about a concrete fact within that party'speculiar knowledge. Hansen v. Ruby Construction Co., 155 Ill. App.3d 475, 508 N.E.2d 301 (1987). A party's answer to interrogatoriesmay be a judicial admission. See Van's Material Co. v. Departmentof Revenue, 131 Ill. 2d 196, 545 N.E.2d 695 (1989) (Van's).

In June 1999, the circuit court ordered the Board to "answerPlaintiffs' interrogatories pertaining to identification of classmembers, their salaries, benefits and other compensation, and otherinformation related thereto, on or before July 6, 1999." The Boardresponded by sending a cover letter and an attached spreadsheetlisting the names of 70 class members, their social securitynumbers and their salaries.⁽⁷⁾

The July 6 letter and accompanying spreadsheet do not containa positive, definite, deliberate or unequivocal statement thatplaintiffs are entitled to this money as damages. The letterexplained that the information contained in the spreadsheet wasbased upon "the Board's current knowledge and information," alerting plaintiffs to the fact that the investigation was ongoing. Further, a second spreadsheet, paring down the number of classmembers, was produced in August 1999.

The Board's responses to plaintiffs' interrogatories are notjudicial admissions regarding damages under the foregoingcircumstances. A genuine issue of material fact remains regardingdamages, precluding summary judgment on that issue, as the circuitcourt correctly held.

Because summary judgment should have been granted in favor ofplaintiffs on the issue of liability, plaintiffs' remainingargument as to amendment of pleadings need not be addressed. Nevertheless, in the event plaintiffs seek to amend their complaintin order to conform their pleadings to subsequent proof, thecircuit court is directed to consider such a motion on the meritsof the proposed pleading. 735 ILCS 5/2-616(c) (West 1998), 735ILCS 5-2-1005(g) (West 1998); Loyola Academy, 146 Ill. 2d 263.

Accordingly, for the reasons set forth above, the judgment ofthe circuit court of Cook County is reversed in part and affirmedin part, and this cause is remanded for proceedings consonant withthis opinion.

Reversed in part, affirmed in part and remanded for furtherproceedings.

SOUTH and BARTH, JJ., concur.

1. Section 34-84 provided in pertinent part:

"Appointments and promotions of teachers,principals and other educational employeesshall be made for merit only, and aftersatisfactory service for a probationary periodof 3 years (during which period the board maydismiss or discharge any probationary employeeupon the recommendation, accompanied by thewritten reasons therefor, of the generalsuperintendent of schools) appointments ofteachers and principals shall becomepermanent, subject to: *** (3) removal forcause in the manner provided in Section 34-85."

2. Section 34-85 provided in pertinent part:

3. Public act 85-1418 authorized the election of a local schoolcouncil for each of the Chicago public schools. Under the act,principals were employed under four year, renewable performancecontracts. The local school council was responsible fordetermining whether a principal's contract would be renewed. Pursuant to public act 85-1418, the terms of persons currentlyserving as principals would expire on either June 30, 1990, or June30, 1991, (the date to be determined by lottery), and unless acontract was offered by the local school council, the employment ofthose persons as principals terminated.

4. The circuit court's December 16, 1997 order certifying theplaintiff class described the class as:

"All tenured principals who were deprived oftheir tenure and continuous service by theoperation and effect of public act 85-1418, astatute held unconstitutional in its entirety,between April 15, 1990 and the date public act86-1477 was enacted, January 11, 1991."

5. On January 11, 1991, the legislature enacted public act 86-1477) (Pub. Act 86-1477, eff. January 11, 1991 (amending Ill. Rev.Stat. 1987, ch. 122, pars. 34-84 and 34-85)) (public act 86-1477),an interim measure to ratify the actions taken in the 1990-1991school year by the Board and the local school councils. Thelegislature subsequently enacted public act 87-454 (Pub. Act 87-454, eff. September 11, 1991 (amending Ill. Rev. Stat. 1987, ch.122, pars. 34-1.1, 34-2.1, 34-2.2, 34-2.4b, 34-2.5 and 34-3.1 andadding Ill. Rev. Stat. 1991 34-2.1b and 34-2.1c)), which amendedthe local school council election procedure to address theconstitutional infirmities of public act 85-1418, which took effectSeptember 11, 1991, and now is cited as 105 ILCS 5/34-1, et seq.(West 1998).

6. On July 15, 1999, the Board sent an updated spreadsheet whichincluded sick, vacation and personal day benefits for the 70 classmembers.

7. The July 6, 1999 cover letter stated in pertinent part:

"This letter responds to your June 16, 1999 letter and the court'sorder of June 22, 1999 concerning the Board's responses to thePlaintiffs' discovery in the above-referenced case.

The enclosed materials include a spreadsheet and a series ofcomputer-generated data sheets. The spreadsheet lists the names ofthe principals and their salaries at the time they were terminated. Where possible, we have included the principals' social securitynumbers. (The information concerning sick, vacation and personalday benefits will be included in a revised spreadsheet.) Each ofthe computer-generated data sheets lists a principal's name andaddress. With respect to pension contributions, the Boardcontributes seven (7)% of every employee's gross annual salary tothat employee's pension fund. Consequently, to determine theamount that each individual lost in pension contributions, one mustlook at the annual salary, determine the length of time in question(i.e. one year, six months, eighteen months), determine the salaryfor that time, and multiply the salary for that period of time by.07.

The principals included in the aforesaid materials are thoseindividuals who, to the best of the Board's current knowledge andinformation, lost their principal positions between June 30, 1990and January 11, 1991. Accordingly, we have deleted the names ofindividuals who retired or took sick leave. We have also deletedthe names of individuals who were interim principals at the time inquestion, since the positions of these individuals were alwaysintended to be short term. Finally, we have deleted the names ofindividuals who left one principal position in June of 1990 butobtained another principal position at or prior to the beginning ofthe 1990-1991 school year, since these individuals did not sustainany damages as a result of the unconstitutional statute."