{ "id": 3158904, "name": "THE PEOPLE ex rel. NICHOLAS G. BYRON, State's Attorney, Madison County, Plaintiff, v. THE BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY et al., Defendants-Appellants-(FACULTY ORGANIZATION FOR COLLECTIVE BARGAINING et al., Intervening Plaintiff-Appellee.)", "name_abbreviation": "People ex rel. Byron v. Board of Trustees of Southern Illinois University", "decision_date": "1980-11-10", "docket_number": "No. 79-648", "first_page": "88", "last_page": "94", "citations": [ { "type": "official", "cite": "90 Ill. App. 3d 88" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "332 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 525", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2624145 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0525-01" ] }, { "cite": "385 N.E.2d 67", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "71" } ], "opinion_index": 0 }, { "cite": "67 Ill. App. 3d 61", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3311924 ], "weight": 2, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/67/0061-01" ] }, { "cite": "376 N.E.2d 1054", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "1058" } ], "opinion_index": 0 }, { "cite": "60 Ill. App. 3d 415", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3354229 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0415-01" ] }, { "cite": "395 N.E.2d 1167", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 90", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3291922 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0090-01" ] }, { "cite": "353 N.E.2d 703", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 555", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2488160 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0555-01" ] }, { "cite": "392 N.E.2d 136", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 872", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3263441 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0872-01" ] }, { "cite": "140 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "10 Ill. 2d 269", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2726387 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/10/0269-01" ] } ], "analysis": { "cardinality": 715, "char_count": 16953, "ocr_confidence": 0.892, "pagerank": { "raw": 7.880366704997426e-08, "percentile": 0.4600837732238443 }, "sha256": "193e859a6db6aeda91ca5255032b3bf8d010fa470e1f3dff4fc78587dc8b124b", "simhash": "1:eab5e4924e1fe63e", "word_count": 2773 }, "last_updated": "2023-07-14T22:48:32.356040+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE ex rel. NICHOLAS G. BYRON, State\u2019s Attorney, Madison County, Plaintiff, v. THE BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY et al., Defendants-Appellants.\u2014(FACULTY ORGANIZATION FOR COLLECTIVE BARGAINING et al., Intervening Plaintiff-Appellee.)" ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE JONES\ndelivered the opinion of the court:\nThis is an interlocutory appeal brought pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308). The trial court found that an order permitting intervention as of right involved a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order might materially advance the ultimate disposition of the litigation. The question of law identified by the trial court is \u201cthe right of the petitioner, a labor organization, to intervene in this cause of action, \u2018as of right,\u2019 where the suit is for mandamus and declaratory relief in relation to the Illinois Open Meeting Law and is brought and prosecuted by a public officer, namely, the States [sic] Attorney of Madison County, Illinois, against another public agency, Southern Illinois University.\u201d\nThe People of the State of Illinois, upon the relation of the County of Madison, brought an action for declaratory judgment and for a writ of mandamus against the Board of Trustees of Southern Illinois University (hereinafter the Board) and each member thereof, both individually and in his or her official capacity. In a 14-count complaint filed on June 14, 1979, the People alleged that defendants had violated \u201cAn Act in relation to meetings\u201d (Ill. Rev. Stat. 1977, ch. 102, par. 41 et seq.) (hereinafter the Act) with reference to the Board\u2019s decision of February 8,1979, to change the governance structure of Southern Illinois University. By that decision the Board had changed the structure to a centralized one headed by a chancellor. Plaintiff asked the court to declare that certain discussions had by defendants with regard to the change, both during executive sessions closed to the public and during the course of informal conversations, were violations of the Act. Plaintiff asked the court also to issue a writ of mandamus requiring defendants to comply with the provisions of the Act in the future. In that regard plaintiff sought an order requiring all closed meetings of defendants or their successors in office to be recorded by an electronic device or a certified court reporter and the \u201crecordings or notes\u201d thereof to be kept safely and securely, subject to inspection by the Madison County State\u2019s Attorney\u2019s Office upon reasonable notice. Plaintiff also sought an order requiring defendants to\n\"* * * maintain individual logs of all conversations not in public meetings they have with other BOARD OF TRUSTEES members, either in person or by telephone, whenever said conversation involves business or topics pertinent to their duties as members of the BOARD OF TRUSTEES, said logs to show the date, time, place, topic, and names of the conversing parties and to be produced to the Madison County State\u2019s Attorney\u2019s Office upon reasonable notice.\u201d\nOn July 11,1979, the Faculty Organization for Collective Bargaining (hereinafter \u201cFOCB\u201d) petitioned to intervene pursuant to section 26.1 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 26.1). Defendants moved both for dismissal of the petition to intervene and for transfer of the cause to the circuit court of Jackson County. The latter motion was granted. Thereafter FOCB, together with certain members of the faculty of Southern Illinois University as individuals, filed an amended petition to intervene. The inclusion of the faculty members constituted the amendment to the petition. In the petition FOCB is described as \u201can unincorporated faculty association affiliated with the Illinois Education Association and * * * composed of 120 members employed by defendants at its [sic] Edwardsville campus in the capacity of instructor, associate professor, assistant professor and professor.\u201d The petitioners stated that they wished to intervene\n\u201c* * * in order that they may assert their rights in said action to wit: to insure that all meetings of the Defendant be held in compliance with the Act; that since many meetings of Defendants were in violation of the Act and resulted in the decision to change the system structure and governance of Southern Illinois University, said decision has the direct effect of eroding Petitioner FOCB\u2019s capacity to advise Defendants relative to its members\u2019 wages, hours and conditions of employment.\u201d\nIn support of defendants\u2019 motion to dismiss the petition to intervene, they filed an affidavit of James Brown, vice chancellor, formerly acting chancellor, of Southern Illinois University, in which he stated,\n\u201c[T]he faculty organization known as the Faculty Organization for Collective Bargaining on the Edwardsville Campus of Southern Illinois University is not now, and never has been [sic] recognized as a bargaining agent for faculty members. * * * [T]he aforesaid faculty organization is not now nor has it ever been recognized as an advisor to the administration of Southern Illinois University relative to wages, hours, and conditions of employment for faculty members at the Edwardsville Campus of Southern Illinois University.\u201d\nIn the petition to intervene the petitioners stated that they were making the same allegations that plaintiff had made in its complaint, that they relied on plaintiff\u2019s complaint for their own request to intervene and that they had \u201cassisted Plaintiff in the preparation of the instant matter.\u201d They said that they \u201creaffirmed] the allegations of Plaintiff\u2019s Petition for Writ of Mandamus\u201d and that \u201c[i]n addition,\u201d if they were granted permission to intervene, they would \u201crequest that all action taken at the meetings and discussions referred to in said Petition be declared void.\u201d In an order filed December 12, 1979, the trial court permitted the intervention as of right \u201csince the representation of petitioners\u2019 interest by the plaintiffs may be inadequate and the petitioners may be bound by an order or judgment in this cause.\u201d\nFrom that order defendants perfected this appeal, contending (1) FOCB lacks \u201csufficient special interest different from the interest of the public to intervene in this action as of right\u201d; (2) FOCB \u201cmay not intervene as of right because it has not shown or stated how representation by the State\u2019s Attorney is or may be inadequate, and it has not shown how it may be bound by an order or judgment entered in the main action\u201d; (3) if FOCB is permitted to intervene it would interject \u201cissues not germane to the original action.\u201d\nIntervenors argue to the contrary with respect to each of these issues. As to the last, they take the position that they do not raise issues \u201cnot germane to the main action,\u201d that they merely seek a \u201cbroader remedy.\u201d Be that as it may, by virtue of the fact that they do seek a \u201cbroader\u201d remedy, they ask the court for essentially two forms of relief. They ask for the relief plaintiff seeks, which they label \u201cprospective,\u201d namely, a declaration by the court that defendants\u2019 discussions were violations of the Act, together with a writ of mandamus requiring defendants\u2019 compliance with the provisions of the Act in the future. In addition they ask for relief not sought by plaintiff, which they label \u201cretrospective,\u201d namely, a declaration by the court that the action of the Board was void. This further relief, they say, would \u201crectify the injury they have suffered as a result of violations of the Act by the Defendants.\u201d They describe in greater detail in their brief than they did in their petition to intervene the nature of that injury:\n\u201cThe decisions and actions taken in those meetings in violation of the Act, established a new governance structure at Southern Illinois University (S.I.U.), creating an additional chancellor level of authority between the President of the Edwardsville Campus and the Board of Trustees. This position acts to dilute the impact the President has on the final decision making authority of the University \u2014 the Board of Trustees. By adding an additional layer of authority between the President of the local campus and the Board of Trustees, the faculty and representatives of the faculty are further removed from that body which most directly affects their ability to negotiate salaries, working conditions and other terms of employment. Furthermore, the additional budget allocations necessitated by the new governance structure will indirectly affect the portion of the budget available for salaries and other benefits to faculty.\u201d\nElsewhere in their brief intervenors say,\n\u201cDecisions altering the University\u2019s administrative body took place outside of properly conducted public meetings at which Intervenors would have had the opportunity to express their viewpoints and provide input into the decision making process establishing a new governance system. Instead those decisions were made and carried out in secret. Such changes serve to erode Intervenors\u2019 ability to effectively act on their behalf regarding academic and economic concerns.\u201d\nThat part of section 26.1 of the Civil Practice Act upon which intervenors rely provides as follows:\n\u201cUpon timely application anyone shall be permitted as of right to intervene in an action: * * * (b) when the representation of the applicant\u2019s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action * * *.\"\nIt is well established that one who petitions to intervene must have an enforceable or recognizable right and more than a general interest in the subject matter of the proceedings. (Cooper v. Hinrichs (1957), 10 Ill. 2d 269, 140 N.E.2d 293; University Square, Ltd. v. City of Chicago (1979), 73 Ill. App. 3d 872, 392 N.E.2d 136; Gray v. Starkey (1976), 41 Ill. App. 3d 555, 353 N.E.2d 703.) That is to say, an intervenor must show a specific, enforceable or recognizable right greater than the interest of the general public in the subject matter of the suit. Caterpillar Tractor Co. v. Lenckos (1979), 77 Ill. App. 3d 90, 395 N.E.2d 1167.\nIn their reply brief defendants quote from the case of Board of Education v. County Board (1978), 60 Ill. App. 3d 415, 376 N.E.2d 1054, and cite the slightly more recent one of In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 385 N.E.2d 67, both of which consider available relief with respect to violations of the Open Meetings Act. In County Board, which involved a detachment and annexation petition, the school district from which certain territory was detached sought review by the circuit court, which affirmed the administrative decision. On appeal the school district claimed, among other things, that the \u201cdecisions of the [two] county boards [of school trustees] were invalid in that they allegedly violated the Open Meetings Act.\u201d The allegation arose from the fact that the two boards adjourned after taking evidence to deliberate in private whereupon they returned to the open forum to vote. Having objected to the appellant\u2019s reliance upon the case of People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649, for the reason that it was \u201ca mandamus action to compel an open meeting and not an action to declare a public act invalid,\u201d the court said,\n\u201cWe have carefully examined the provisions of the open meetings act and we note that it provides for the issuance of an [sic] mandamus to compel the meeting to be open. In addition, it provides that violations of the act might result in misdemeanor, criminal penalties for intransigent office holders. However, nothing in the act or in case law mandates the invalidity of public action allegedly taken during closed proceedings. In the absence of clear precedent, and without legislative mandate, we will not construe the act in question as creating such a result.\u201d 60 Ill. App. 3d 415, 421, 376 N.E.2d 1054, 1058.\nIn the later case of Byron Park District, which involved an effort to annex or incorporate the site of a nuclear power plant, the appellants claimed that an annexation petition was invalid because of failure to comply with the Open Meetings Act. The noncompliance arose out of the failure of a certain park district to publish or post a public notice of its regular meetings for the calendar and fiscal years in which the meeting in question occurred. Citing County Board, the court stated:\n\u201c[Although the open meetings act provides for the issuance of a mandamus to compel meetings to be open and even provides criminal penalties, under some circumstances, for public office holders who refuse to comply with the act, nothing in the act or elsewhere, [sic] invalidates official actions taken at proceedings held in a manner violative of the open meetings act.\u201d 67 Ill. App. 3d 61, 66, 385 N.E.2d 67, 71.\nRelying upon Byron and County Board, defendants maintain that \u201cno court can change the result of the meetings in question even if they violated the Open Meetings Act\u201d because, they say, the terms of the Act do not extend so far. From that proposition they conclude that \u201cthe \u2018special concerns\u2019 of the intervenor [FOCB] do not constitute the inadequacy of representation required for intervention as of right.\u201d Although we do not understand how FOCB\u2019s special concerns could \u201cconstitute\u201d adequacy or inadequacy of representation, we suppose that defendants mean by the statement that representation by the State\u2019s Attorney can not be inadequate if the relief intervenors seek is prohibited by law. We think, though, it is more to the point to say that because the relief sought by intervenors is prohibited by law, they can have no interest, no enforceable or recognizable right, with respect to that relief which could be prejudiced by any judgment or order in the action in which they have petitioned to intervene. Absent the interest required by section 26.1 of the Civil Practice Act, they may not intervene as of right, at least with respect to the additional relief sought by them though not by plaintiff. Therefore, if they are to be allowed to intervene at all, they must be allowed to do so only with respect to the other relief they seek.\nIntervenors contend that representation by the State\u2019s Attorney would be inadequate not only as to the additional relief sought by them but also as to the relief sought both by them and by plaintiff. While it is possible that representation by the State\u2019s Attorney might be inadequate as to the further relief sought by intervenors, were it available as a remedy, it is difficult to perceive how intervenors can have any greater interest than that of the general public in a declaration by the court that defendants\u2019 discussions were violations of the Act or in a writ of mandamus requiring them to comply with it in the future. Nor is intervenors\u2019 argument in this regard persuasive. Absent a showing of any greater interest than that of the general public, representation by the State\u2019s Attorney is adequate as to the relief sought both by plaintiff and intervenors. Therefore, it is error to permit them to intervene as of right with respect to that relief as well.\nIn summary, we have concluded that intervenors have no enforceable right as to the additional relief they seek in the form of a declaratory judgment that the action of the Board was void. As to that remedy they can have no interest which can be bound by any order or judgment in the action and, necessarily, no need for any representation of any kind. As to the relief sought both by plaintiff and intervenors for a declaratory judgment that defendants\u2019 discussions were violations of the Act and for writ of mandamus, we have concluded that intervenors have no greater interest in the action than that of the general public. That interest can be adequately represented by the State\u2019s Attorney. Therefore, we hold that petitioners may not intervene as of right in this cause, and we reverse the order of the trial court permitting them to do so.\nReversed.\nKARNS and SPOMER, JJ., concur.\nSection 43 of the Act provides for writ of mandamus as follows:\n\u201cWhere the provisions of this Act are not complied with or where there is probable cause to believe that the provisions of this Act will not be complied with, the court shall issue a writ of mandamus requiring that a meeting be open to the public at large or issue such other appropriate order as will insure compliance with the provisions of this Act.\u201d (Ill. Rev. Stat. 1977, ch. 102, par. 43).\nSection 44 of the Act provides for a criminal penalty: \u201cAny person violating any of the provisions of this Act shall be guilty of a Class C misdemeanor.\u201d Ill. Rev. Stat. 1977, ch. 102, par. 44.", "type": "majority", "author": "Mr. PRESIDING JUSTICE JONES" } ], "attorneys": [ "Feirich, Schoen, Mager, Green & Associates, of Carbondale, for appellants.", "Hirsh & Schwartzman, of Chicago, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE ex rel. NICHOLAS G. BYRON, State\u2019s Attorney, Madison County, Plaintiff, v. THE BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY et al., Defendants-Appellants.\u2014(FACULTY ORGANIZATION FOR COLLECTIVE BARGAINING et al., Intervening Plaintiff-Appellee.)\nFifth District\nNo. 79-648\nOpinion filed November 10, 1980.\nFeirich, Schoen, Mager, Green & Associates, of Carbondale, for appellants.\nHirsh & Schwartzman, of Chicago, for appellee." }, "file_name": "0088-01", "first_page_order": 110, "last_page_order": 116 }