author: JUSTICE GOLDENHERSH JUSTICE UNDERWOOD,

text:
    (No. 56124.

      In re ARNOLD IRWIN KRAMER, Attorney, Respondent.

      Opinion filed October 22, 1982.

      UNDERWOOD and MORAN, JJ., dissenting.

      David Beckerman, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    George B. Collins, of Collins & Amos, of Chicago, for respondent.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

On May 5, 1980, the Administrator of the Attorney Registration and Disciplinary Commission filed a one-count complaint against respondent, Arnold Irwin Kramer, who was licensed to practice law in Illinois on November 28, 1961, charging commingling and conversion of a client’s funds. A panel of the Hearing Board recommended that respondent receive the oral and written reprimand of the Commission. The Administrator filed exceptions to the recommendation of the Hearing Board, and the Review Board recommended that respondent be suspended for one year.

The evidence consists of the testimony of respondent and a number of exhibits. Philip Bradbury, the complainant, could not be located and was believed to be living in Mexico.

Respondent testified that he had met Bradbury 30 years earlier when he (respondent), at age 15, was working for his father’s bookbinding business. Bradbury and respondent’s father were business acquaintances and were both engaged in the bookbinding business. When respondent started his law practice, Bradbury became one of his first clients.

Bradbury became indebted to respondent as a result of a number of transactions. When respondent’s father died, respondent inherited his father’s bookbinding equipment. Respondent asked Bradbury to sell the equipment for him. Bradbury apparently sold the equipment, but did not account to respondent for the proceeds of the sale. Respondent had loaned money to Bradbury which had not been fully repaid, and he had not been paid for various legal services.

In March or April of 1978 Bradbury came to respondent’s office. He was the contract purchaser of land in Lake County and was having problems paying the installments as they became due. He asked respondent to assist him in selling the property and negotiating an offer or a contract. Initially respondent refused because Bradbury was already heavily indebted to him. Bradbury told respondent that the only way he could pay respondent was if he sold the land, saying, “You’ll take the money out of the sale once you get it closed.”

Bradbury told respondent that Charles Corder had made several offers to purchase the property. Respondent contacted Corder and negotiated a contract for the sale of the land. Corder delivered to respondent a cashier’s check in the amount of $40,000 payable to “Arnold Kramer, Escrowee for Philip Bradbury,” as earnest money.

Respondent testified that the land was sold for $300,000, and customarily the amount of earnest money to be placed in escrow would be 10%, or $30,000. Respondent, however, insisted on a $40,000 escrow deposit, because the deposit was to cover the debt Bradbury owed him plus respondent’s fees for negotiating the contract and acting as Bradbury’s attorney in the sale. Respondent testified that the escrow deposit was his money, subject to some accounting. The parties stipulated that the check was deposited into an account which was used by respondent “for his own purposes.” Shortly after the check was deposited the balance in this account fell below $40,000, and several times before the land transaction was closed, the account was overdrawn.

Respondent structured the transaction so that the contract seller, Howerton, conveyed the land to three land trusts. At the first closing, Bradbury assigned his beneficial interest in the land trusts to Corder upon payment of the first installment of approximately $160,000. As Corder paid the specified sums of money, he was assigned the beneficial interests in the other land trusts.

At the time of the first closing, respondent asked Bradbury to “have an accounting.” Bradbury declined, however, and no accounting was made until six months later. Respondent “settled” with Bradbury and issued him a check for $14,160.53, the difference between the $40,000 escrow deposit and the amount Bradbury owed respondent for past debts plus the fees owed for the sale of the property. Bradbury did not at any time negotiate the check. He filed suit against respondent in the United States district court. That action was settled for $26,000.

The hearing panel found:

“What stands out is this: When a lawyer closes a real estate deal for a client, no matter how many hats the lawyer wears, his duty as a lawyer is to put those funds in a trust account and never to disburse them without the prior certain approval of a client. Respondent violated this essential rule. He cannot escape his obligations as a lawyer by explaining that he was also a creditor, vendor and negotiator.” (Emphasis in original.)

The Review Board concluded:

“The record clearly and convincingly reflects that Respondent did not preserve the identity of his client’s funds in a trust account.”

Assuming that, as testified by respondent, he and Bradbury had agreed that he would be paid from the escrow funds, the deposit of those funds in respondent’s account, admittedly used “for his own purposes,” nevertheless violated Disciplinary Rule 9 — 102(a), which provides:

“(a) Other than advances for costs and expenses, all funds of clients paid to a lawyer or law firm, including funds belonging in part to a client and in part presently or potentially to the lawyer or law firm, shall be deposited in one or more separate identifiable trust bank accounts maintained in the State in which the law office is situated.” (85 Ill. 2d R. 9—102(a).)

Assuming agreement that some portion of the funds was unquestionably due respondent, respondent’s failure to segregate the funds in dispute until the dispute was settled violated Disciplinary Rule 9—102(b) (85 Ill. 2d R. 9— 02(b)). (See In re Schlax (1980), 81 Ill. 2d 66, 70-71.) Moreover, the funds were designated by Corder as escrow funds, and respondent admitted that Corder was unaware of any agreement between Bradbury and respondent as to the ownership of the funds. Respondent argues that since all but the most remote contingencies affecting Corder’s ownership of the land were removed, no harm came to Corder by reason of respondent’s failure to deposit the escrow money in a trust account. An attorney may not disburse escrow funds when he believes it is safe to do so; an escrowee may disburse escrow funds only in accordance with the terms of the escrow agreement. Ortman v. Kane (1945), 389 Ill. 613, 621.

As we have noted, the evidence shows that before the transaction was closed the balance in respondent’s account fell below $40,000 and on several occasions the account was overdrawn. Although the evidence would support a finding of conversion (see In re Freel (1982), 89 Ill. 2d 263, 269; In re Clayter (1980), 78 Ill. 2d 276, 282-83) neither the Hearing Board nor the Review Board found that respondent had converted the funds. Although we find no evidence of intent to convert the funds, we cannot condone the manner in which respondent sought to resolve the problem with his client.

It is not necessary that there be evidence of a dishonest motive in order to impose discipline, but its absence is properly considered in determining the appropriate sanction.

Respondent contends that the facts of this case do not warrant suspension. We agree. This is similar to In re Freel, where only one instance of violation of the Code of Professional Responsibility has been shown and no bad faith or dishonest motive appears from the record. Our primary consideration in determining the nature and extent of discipline to be imposed in any particular case is the protection of the public and the integrity of the profession. (In re Grant (1982), 89 Ill. 2d 247, 254; see In re Nadler (1982), 91 Ill. 2d 326, 334.) There was no impropriety in respondent’s attempting to protect his financial interests; however, because of his status as an attorney involved in the transaction, the method he employed to protect his interests was improper.

The record shows that the complainant attempted to use withdrawal of the complaint in this disciplinary proceeding as a bargaining tool to increase the amount of the settlement of the case which he had filed against respondent in the United States district court. After that case was settled, he apparently lost all interest in the disciplinary proceeding. Some of the facts and circumstances of this case suggest that it is not always the client who is in need of protection.

We conclude that for the violation of Disciplinary Rules 9—102(a) and 9—102(b) shown by this record the appropriate sanction is censure.

Respondent censured.

JUSTICE UNDERWOOD,

dissenting:

It is undisputed that respondent deposited the $40,000 down payment in his personal checking account upon which both he and his wife could draw checks. That account was, prior to any accounting between respondent and his client, not only reduced below $40,000 but was overdrawn. Respondent defends this action as not improper because, he testified, his client and he had agreed the down payment was to be respondent’s, subject to a later accounting, as reimbursement for fees and money owed him by the client.

While the client was not available to testify, and respondent’s testimony was not directly contradicted, the fact that the client subsequently found it necessary to sue him and that respondent settled that suit for approximately double the amount he originally tendered his client seems to indicate the client did not-understand the agreement as respondent did.

In my judgment, the hearing panel aptly characterized this situation in its recommendation when it stated:

“What stands out is this: When a lawyer closes a real estate deal for a client, no matter how many hats the lawyer wears, his duty as a lawyer is to put those funds in a trust account and never to disburse them without the prior certain approval of a client. Respondent violated this essential rule. He cannot escape his obligation as a lawyer by explaining that he was also a creditor, vendor and negotiator.
His conduct has put our profession in disrepute.”

Although neither the hearing nor review board so found, the majority concedes the evidence would support a finding of conversion. There is, in my opinion, no question but that respondent converted his client’s money, since the client had not consented to dissipation of the entire $40,000 by respondent without an accounting, and that is exactly what occurred when respondent overdrew the account. The circumstances surrounding a conversion, together with other factors, determine the discipline to be imposed. Obviously the circumstances here are not as aggravating as in some cases, but I do not regard as adequate the reprimand ordered by the hearing panel or the censure ordered by the court. In re Grant (1982), 89 Ill. 2d 247; In re Schlax (1980), 81 Ill. 2d 66; In re Brody (1976), 65 Ill. 2d 152; In re Bloom (1968), 39 Ill. 2d 250.

JUSTICE MORAN joins in this dissent.


source: Caselaw Access Project

author: JUSTICE MORAN

license: Public Domain

text:
    (No. 54738, 55134 cons.
    AURORA EAST PUBLIC SCHOOL DISTRICT NO. 131 et al., Appellees, v. JOSEPH M. CRONIN, State Superintendent of Education, et al., Appellants.—THE BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 170 et al., Appellees, v. JOSEPH M. CRONIN, State Superintendent of Education et al., Appellants.

      Opinion filed October 22, 1982.

      SIMON, J., took no part.
    Thomas H. Morsch and Shalom L. Kohn, of Sidley & Austin, and Julia Quinn Dempsey and David A. Thompson, all of Chicago, for appellants.
    Lambert M. Ochsenschlager and Wayne F. Weiler, of Reid, Ochsenschlager, Murphy, and Hupp, of Aurora, for appellee Aurora East Public School District No. 131.
    Thomas H. Morsch and Shalom L. Kohn, of Sidley & Austin, and Julia Quinn Dempsey and David A. Thompson, all of Chicago, for appellants.
    Anthony Scariano and Robert H. Ellch, of Anthony Scariano & Associates, P.C., of Chicago Heights, for appellee Board of Education of School District No. 170.
   JUSTICE MORAN

delivered the opinion of the court:

This case involves the plaintiff school districts’ challenge to the validity of the Rules Establishing Requirements and Procedures for the Elimination and Prevention of Racial Segregation in Schools (Rules). The Rules were promulgated by the defendant Joseph Cronin, the State Superintendent of Education (Superintendent), and adopted by the defendant State Board of Education (Board).

In cause No. 54738, Aurora East Public School District No. 131 (Aurora) brought suit against the defendants in the circuit court of Kane County for declaratory judgment and injunctive relief. The defendants filed a countercomplaint alleging that Aurora failed to comply with section 10—21.3 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 10—21.3), commonly referred to as the Armstrong Act. This act provides, in part:

“As soon as practicable, and from time to time thereafter, the [local] board shall change or revise existing [attendance centers] or create new [attendance centers] in a manner which will take into consideration the prevention of segregation and the elimination of separation of children in public schools because of color, race or nationality.”

The circuit court declared the Rules void, and permanently enjoined their enforcement. It further determined that Aurora’s practices regarding segregation did not violate the Armstrong Act. A majority of the appellate court affirmed on the grounds that the Rules were unreasonable and arbitrary, and that the circuit court’s ruling with respect to the countercomplaint was not contrary to the manifest weight of the evidence. 92 Ill. App. 3d 1010.

In cause No. 55134, the defendants appealed an order of the circuit court of Cook County granting the board of education of Chicago Heights Public School District No. 170 (Chicago Heights) summary judgment on count I of its complaint for declaratory relief. The trial court went on to state that the Rules were arbitrary, capricious and illegal, and a majority of the appellate court affirmed. (Chicago Heights Public School District v. Illinois State Board of Education (1981), 97 Ill. App. 3d 246.) We granted defendants leave to appeal in each instance and consolidated the cases for purposes of review.

The following questions are raised on appeal: (1) Does the Board have authority to promulgate and enforce rules designed to prevent racial segregation? (2) If so, are these particular rules valid? (3) Has Aurora failed to comply with the requirements of the Armstrong Act? Because of the results reached in this case, it is necessary to address only the first and third issues.

The Rules were originally promulgated in 1971 for the purpose of enforcing the Armstrong Act. Subsequently, in 1973, the legislature enacted the Moore Amendment, which provides:

“Nothing herein shall be construed to permit or empower the State Superintendent of Public Instruction* to order, mandate or require busing or other transportation of pupils for the purpose of achieving racial balance in any school.” (Ill. Rev. Stat. 1977, ch. 122, par. 10—22.5.) [*In 1975, the duties of the Superintendent of Public Instruction were delegated to the Board. (Ill. Rev. Stat. 1977, ch. 122, par. 1A—4C.)]

In 1976, the rules at issue in this case were adopted by the Board. Under the Rules, each district must submit an annual report to the Board indicating the racial composition of the students in the district as a whole, and at each attendance center (Rule 2.2). The report is reviewed by the Superintendent for the purpose of determining whether any attendance center is in nonconformance (Rule 3.1). Rule 1.4 defines nonconformance as “[t]he condition in which racial segregation exists in the schools under any school authority, that is: (a) the minority racial composition of the pupils in any attendance center fails to reflect, within 15 percentage points, the minority racial composition of the pupils in all attendance centers under a given school authority.” Thus, nonconformance as applied to racial segregation is defined in terms of a 15% plus or minus quota. For example, if a given school district is composed of 50% minority pupils, then the minority enrollment at each attendance center within that district must range from between 35% and 65% of the total enrollment.

If the Superintendent determines that a district is in nonconformance, he must promptly notify the district of that status (Rule 3.2). The district is then afforded 90 days in which to submit a plan in an effort to achieve conformance (Rules 4.1, 5.1). Upon receipt of the notification, the district may request that the Illinois Office of Education (IOE) provide technical assistance in devising a plan. Following receipt of such a request, the IOE must promptly furnish appropriate assistance (Rule 4.3).

Any plan offered by a district must contain “a detailed description of the specific actions to be proposed” and a timetable indicating the anticipated dates of implementation and completion (Rule 5.2). If the Board determines that a submitted plan is acceptable, the school is considered to be in compliance, and its efforts to implement the plan are subject to annual review by the Superintendent (Rule 6.5).

Under Rule 1.3, a school authority is considered to be in noncompliance if it fails or refuses to submit, amend or implement a plan in accordance with the Rules. Upon a finding of noncompliance, the school district is placed on probation (Rule 7.1). It remains in that status for one year, unless the cause for noncompliance has been removed (Rule 7.1(a)), or the Board determines that lesser measures are sufficient (Rule 7.1(b)). If a district remains on probation for one year without effecting compliance with the Rules, and it does not request a hearing, the Board may place the district on nonrecognition status (Rule 7.2). If a hearing is conducted, the Board will review the findings of the hearing officer to determine if the district is in continued noncompliance. If it is, the Superintendent will place the district on nonrecognition status (Rules 7.4(d), (e)). When a district loses recognition, the Board may withhold all Federal funding to which, the district would otherwise be entitled (Rule 7.4(g)).

The final relevant provision, Rule 6.1, states in part that “[wjhere educational, physical or economic constraints would place an unreasonable burden upon the school authority in completely conforming, the State Board of Education may, in its discretion, waive the requirement of complete conformance in pupil assignment.”

Turning to the facts in the instant cases, Aurora currently operates one senior high school, two junior high schools, and 11 elementary schools for children attending kindergarten through grade six. The total minority enrollment in the district, for the 1976 through 1977 school years, was 41.4%. Based on this percentage, certain elementary schools were substantially segregated within the meaning of Rule 1.4.

Due to the perceived condition of racial imbalance in ■ Aurora, the Superintendent notified the district by letter, dated March 1, 1976, that it was in nonconformance and must submit a desegregation plan. The only reason given for the finding of nonconformance was the district’s failure to achieve the plus or minus 15% quota in certain schools. Aurora organized a task force of teachers and administrators to devise a plan, which it subsequently submitted. In October of 1976, the Superintendent wrote another letter to Dr. John Hinck, the former superintendent of Aurora schools, in which he recognized the district’s willingness and efforts to meet the requirements of the Rules. However, the Superintendent acknowledged that the plan submitted was insufficient, noting in particular the minority enrollment at the Brady, Beaupre, Oak Park, and O’Donnell schools. The record reveals that Dr. Hinck wrote to the Superintendent requesting expert assistance in devising a plan “specifically limited to the consideration of alternatives other than a plan which involves reassignment of students requiring busing.” The Superintendent responded that he would provide assistance but “[could not], however, accept [the] school board’s stipulation that the work of this consultant would be limited to consideration of plans which involve no transportation of students.” The Superintendent testified that he was aware the districts could not be required to bus, but he believed they should at least consider the option.

Mr. Royce Derks, a former employee of the State Board in the Department of Equal Education Opportunity, testified that he was aware of a plan that Aurora could implement which would conform to the Rules and not require busing. He indicated that Aurora could close the Beaupre school and assign the students to the Allen and Gates schools. Some of the Gates students could then be assigned to the nearby Bardwell school, and similar assignments could be made along each contiguous boundary line. According to Derks, this plan would not require students to attend schools located over IV2 miles from their homes and thus Aurora would not have to furnish transportation. Section 29 — 3 of the School Code generally requires districts to provide free transportation for pupils residing over IV2 miles from their attendance centers. (Ill. Rev. Stat. 1977, ch. 122, par. 29—3.) However, plaintiffs allege and defendants admit that Aurora is not the type of district in which busing is required under section 29 — 3.

Derks further testified that he never disclosed the plan to Aurora and that the Board did not recommend desegregation methods because it was not proper “to try to cram a plan down a district’s throat.” Nevertheless, it appears that Aurora considered closing Beaupre and reassigning the students to other attendance units. Dr. Cavanaugh, the assistant superintendent of elementary schools in Aurora, testified that the plan was not implemented because it would require busing and there was a lack of available space in which to relocate the students.

Finally, in June of 1977, Aurora was informed that it would be placed on probationary status, effective in July, for failing to comply with the Rules. Although Berks apparently recommended that Aurora be granted a waiver under Rule 6.1, the Board declined to do so because of the alleged deficiencies in Aurora’s submitted plan. Testimony indicated that the plan was unacceptable to the Board because it did not contain the requisite timetable for implementation, and no mandatory action was proposed. The plan provided for voluntary student transfers, an option which apparently only one family considered.

In the case involving Chicago Heights, the district operates one junior high school and 10 elementary schools for children attending kindergarten through grade six. In 1977, the total enrollment was 55.9% minority. Three of the elementary schools were predominantly white, and two were virtually 100% minority, in violation of Rule 1.4.

After being informed that it was not in compliance with the Rules, Chicago Heights was requested to submit a plan detailing its desegregation efforts. The district responded, by letter, that statistical compliance was not feasible because it would require large-scale busing. After Chicago Heights was formally found to be in noncompliance with the Rules, it submitted a plan which was subsequently deemed deficient. The district, after being granted an extended probationary recognition status, submitted another plan. In July of 1977, it was notified by the Superintendent that the plan was unacceptable and it would be denied recognition in 30 days unless a hearing was requested. Chicago Heights filed suit and subsequently requested a hearing on the condition that it would not be conducted until the court resolved the legal issues.

In concluding that the Board is authorized to promulgate rules designed to prevent segregation, the appellate courts relied on the recent opinion in Coates v. Illinois State Board of Education (7th Cir. 1977), 559 F.2d 445. In Coates, the court noted that the Board has the duty “[t]o supervise all the public schools in the State” (Ill. Rev. Stat. 1977, ch. 122, par. 2—3.3) and “[t]o make rules necessary to carry into efficient and uniform effect all laws for establishing and maintaining free schools in the State” (Ill. Rev. Stat. 1977, ch. 122, par. 2—3.6). Having determined that the Armstrong Act is such a law, the court concluded that the Superintendent may issue regulations designed to effectuate its policy. For the following reasons, we decline to adopt the reasoning expressed in Coates.

Initially, we note that our State constitution provides for free education through the secondary level. Additionally, “[tjhere may be such other free education as the General Assembly provides by law.” (Ill. Const. 1970, art. X, sec. 1.) It is clear that the term “free” is used in a monetary sense and imposes upon the public the burden of financing education. In turn, pursuant to section 2—3.6 of the School Code, the legislature delegated to the Board the duty to promulgate rules for establishing and maintaining free schools. (Ill. Rev. Stat. 1977, ch. 122, par. 2—3.6.) Particularly in light of the quoted constitutional provision, there is every reason to assume that the legislature intended the word “free” to mean financially free. We find no indication that the term was meant to encompass racial equality. Consequently, we do not perceive the Armstrong Act as a law for establishing and maintaining free schools in the State.

Although not raised by defendants as an issue, they refer in two footnotes to article X, section 2(a), of the 1970 Illinois Constitution. This provision states in part:

“The Board, except as limited by law, may establish goals, determine policies, provide for planning and evaluating education programs and recommend financing. The Board shall have such other duties and powers as provided by law.” (Emphasis added.) Ill. Const. 1970, art. X, sec. 2(a).

Even assuming that this section would ordinarily authorize the Board to promulgate the Rules, that authority has been limited by the General Assembly. The Moore Amendment, enacted subsequent to our 1970 constitution, places a clear limit on the Board’s power regarding segregation and busing. As later discussed, prior to the enactment of the Moore Amendment, section 10 — 22.5 authorized heal boards “[t]o assign pupils to the several schools in the district; to admit non-resident pupils when it can be done without prejudice to the rights of resident pupils and provide them with any services of the school including transportation; to fix the rates of tuition in accordance with Section 10 — 20.12a, and to collect and pay the same to the treasurer for the use of the district; but no pupil shall be excluded from or segregated in any such school on account of his color, race, sex or nationality.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 122, par. 10—22.5.) This provision placed the duty to prevent segregation squarely in the hands of the local boards. In passing the Moore Amendment, the legislature emphasized that methods of achieving desegregation are policy decisions to be made by the school districts.

Although not directly in point, section 34 — 18 of the School Code provides added support for our interpretation. This provision specifies the powers and duties of school districts with a population of 500,000 or more. Section 34 — 18 was amended in 1965 to include language substantially identical to the Armstrong Act. It was later amended in 1973 to add the language of the Moore Amendment. Thus, again, where the legislature has specified a district’s duty to prevent segregating, it has limited the Board’s authority to do so.

For this reason, we do not believe that the constitutional provision, standing alone, grants to defendants the extensive authority now sought. The question therefore centers on whether any statutory provisions empower the Board to promulgate the Rules.

Defendants contend that, in addition to the statutory provisions relied on in Coates, section 2 — 3.25 of the School Code authorizes the promulgation of rules to enforce the Armstrong Act. This section provides that the Board shall have the power:

“To determine for all types of schools conducted under this Act efficient and adequate standards for the physical plant, heating, lighting, ventilation, sanitation, safety, equipment and supplies, instruction and teaching, curriculum, library, operation, maintenance, administration and supervision, and to grant certificates of recognition to schools meeting such standards by attendance centers or school districts; to determine and establish efficient and adequate standards for approval of credit for courses given and conducted by schools outside of the regular school term.” (Ill. Rev. Stat. 1977, ch. 122, par. 2—3.25.)

Defendants compare the instant case with Lenard v. Board of Education (1979), 74 Ill. 2d 260, in which this court held that section 2—3.25 authorized the Superintendent to enact certain standards. However, there is a significant distinction between the two cases.

In Lenard, the Superintendent promulgated a rule relative to teaching standards which required that certain teachers have a minimum number of semester hours in each field to be taught. In concluding that the Superintendent was authorized to enact the rule, this court focused upon the language in section 2 — 3.25 which allows the Board to determine standards for “instruction and teaching.” Clearly, the semester-hours requirement was a rule related to “teaching.”

In the instant case, the defendants seek to promulgate rules relative to desegregation. Nowhere in section 2 — 3.25 is the Board granted express authority to determine standards for racial desegregation. And the fact that the Board may set standards for the “operation, maintenance, administration and supervision” of schools does not imply the authority now sought. If we were to hold otherwise, it would be difficult to conceive of any regulation which could not be justified under section 2 — 3.25.

“This court has consistently held that, inasmuch as an administrative agency is a creature of statute, any power or authority claimed by it must find its source within the provisions of the statute by which it is created.” (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 551; see also Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill. 2d 53, 60; City of Chicago v. Fair Employment Practices Com. (1976), 65 Ill. 2d 108, 112-13.) The duties and powers of the Board are set forth in article 2 of the School Code. (See Ill. Rev. Stat. 1977, ch. 122, par. 2—3.) We have carefully reviewed the provisions therein, and are unable to find any which delegate to the Board the authority it now seeks. The most that can be said is that the legislature has granted the Board general rulemaking power (Ill. Rev. Stat. 1977, ch. 122, par. 2—3.6) and the authority to supervise public schools (Ill. Rev. Stat. 1977, ch. 122, par. 2—3.3). We do not agree that these general provisions authorize defendants to promulgate and adopt rules relative to the Armstrong Act.

As plaintiffs point out, when the legislature intended to delegate authority to the Board, it did so expressly and specifically. For example, section 2 — 3.28 of the School Code grants the Board the authority “[t]o prescribe rules and regulations defining what shall constitute a budget and accounting system required under this Act. The rules and regulations shall prescribe the minimum extent of verification, the type of audit, the extent of the audit report and shall require compliance with statutory requirements and standards and such requirements as the Superintendent of Public Instruction deems necessary for an adequate budget and accounting system.” (Ill. Rev. Stat. 1977, ch. 122, par. 2 — 3.28.) Section 2 — 3.34 allows the Board to establish rules governing high school equivalency certificates. Section 14 — 8.01 delineates the Board’s rulemaking power relative to special education buildings and facilities. Under section 2 — 3.9, the Board may grant and suspend teaching certificates. There are numerous other provisions which specifically outline the Board’s authority to establish regulations governing the school systems. Thus, although the Board is granted general supervisory and rulemaking power, the areas in which that power may be exercised have been detailed by the legislature. “The [Board] *** has been vested by the General Assembly with the duty of establishing standards in education, along the lines delineated by that legislative body.” (Emphasis added.) Games v. County Board of School Trustees (1958), 13 Ill. 2d 78, 82.

That the legislature did not intend to delegate to the Board the power which it seeks is apparent for another reason. There are no standards or guidelines governing the Board’s discretion to enforce the Armstrong Act. “[T]he absence from the statute of any standards, criteria or procedure for [promulgating the Rules] confirms that no power to [do so] was intended by the legislature to be given the Board.” Chicago Division of the Horsemen’s Benevolent & Protective Association v. Illinois Racing Board (1972), 53 Ill. 2d 16, 19; see also Thygesen v. Callahan (1979), 74 Ill. 2d 404, 408.

Significantly, however, the legislature did establish a procedure by which the Board could combat segregation. Section 22 — 19 of the School Code provides, in part:

“Upon the filing of a complaint with the Superintendent of Public Instruction *** alleging that any pupil has been excluded from or segregated in any school on account of his color, race, nationality, religion or religious affiliation *** by or on behalf of the school board of such district, the Superintendent of Public Instruction shall promptly mail a copy of such complaint to the secretary or clerk of such school board.
The Superintendent of Public Instruction shall fix a date *** for a hearing upon the allegations [in the complaint], He may also fix a date for a hearing whenever he has reason to believe that such discrimination may exist in any school district. ***
The Superintendent of Public Instruction may designate an assistant to conduct such hearing and receive testimony concerning the situation complained of. *** The hearing officer shall report a summary of the testimony within 60 days after the hearing commences *** to the Superintendent of Public Instruction who shall determine whether the allegations of the complaint are substantially correct. *** The Superintendent of Public Instruction shall notify both parties of his decision within 30 days after he receives a summary of the testimony from the hearing officer. If he determines that a violation exists, he shall request the Attorney General to apply to the appropriate circuit court for such injunctive or other relief as may be necessary to rectify the practice complained of.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 122, par. 22—19.

We agree with the plaintiffs that this comprehensive provision limits, rather than expands, the Board’s authority to regulate desegregation. Section 22 — 19 clearly recites the powers which the legislature intended the Board to have. Nowhere does the section authorize the Board to promulgate its own rules and sanctions for enforcing the Armstrong Act.

A similar situation was presented in Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540. Although the Board claims that this case is inapposite because it deals with the Illinois Public Aid Code, we believe that the legal principles related therein are equally applicable to the School Code. In Bio-Medical Laboratories, the Director of the Department of Public Aid attempted to suspend the plaintiff from participation in a Medicaid program because he was suspected of fraud. In holding that the agency lacked authority to impose this sanction, this court stated:

“[E]vidence that the legislature did not intend the Director to have the authority now claimed can be found in section 12 — 4.2 (Ill.Rev. Stat. 1975, ch. 23, par. 12—4.2), which specifically authorizes the defendant to investigate fraud, but directs that such findings are to be referred to proper prosecutorial authorities for further action. Section 12 — 16, as related above, delegates to the Attorney General the authority to prosecute all necessary court actions to enforce all claims, penalties and obligations arising under the Code or other State law. (Ill. Rev. Stat. 1975, ch. 23, par. 12—16.) We find that the total absence of standards, criteria or procedures for terminating or suspending vendors, coupled with the express delegation of enforcement responsibilities, is persuasive evidence that the legislature did not intend to confer on the defendant the authority now claimed.” 68 Ill. 2d 540, 553-54; see also Chicago Division of the Horsemen’s Benevolent & Protective Association v. Illinois Racing Board (1972), 53 Ill. 2d 16, 19.

Similarly, section 22 — 19 authorizes the defendant to investigate districts suspected of maintaining segregation, and to refer complaints to the Attorney General for prosecution. The Board has completely ignored this provision and instead has adopted rules incorporating its own methods for dealing with perceived segregation. Defendants argue they may do so because section 22 — 19 is not intended to operate as an exclusive remedy. They rely for this proposition on McNeese v. Board of Education (1963), 373 U.S. 668, 10 L. Ed. 2d 622, 83 S. Ct. 1433, and Rajala v. Joliet Grade School District No. 86 (1969), 107 Ill. App. 2d 410.

We do not find these cases apposite. McNeese held that students alleging segregation need not exhaust State remedies prior to maintaining a Federal suit under the Civil Rights Act. In Rajala, the appellate court determined that pupils may file suit in court instead of pursuing the administrative remedy outlined in section 22 — 19. Neither of these cases grant the Board authority to bypass the statutory procedure in favor of seeking an alternate remedy.

Further, if defendants were dissatisfied with the current law, they could have requested a modification thereof. Section 1A—4C of the School Code provides, in part:

“The Board shall analyze the present and future aims, needs, and requirements of education in the State of Illinois and recommend to the General Assembly the powers which should be exercised by the Board. The Board shall recommend the passage and the legislation necessary to determine the appropriate relationship between the Board and local boards of education and the various State agencies and shall recommend desirable modifications in the laws which affect schools.” (Ill. Rev. Stat. 1977, ch. 122, par. 1A—4C.)

The Board has apparently disregarded this alternative in favor of pursuing its own policies without first securing legislative approval. '

There is yet another reason which counsels against the defendants’ authority to enforce the Armstrong Act. This provision is located in article 10 of the School Code. This article relates to the powers and responsibilities of the local school boards, not the Board. (See Ill. Rev. Stat. 1977, ch. 122, par. 10—20.) It is thus clear that the legislature has charged the local districts with the responsibility of enforcing the Armstrong Act. (See also Tometz v. Board of Education (1968), 39 Ill. 2d 593, 600.) Consequently, promulgating rules relative thereto should be the duty of the local school boards. See section 10 — 20.5 (Ill. Rev. Stat. 1977, ch. 122, par. 10—20.5) in conjunction with section 10-21.3 (Ill. Rev. Stat. 1977, ch. 122, par. 10-21.3).

Defendants argue, however, that the legislature impliedly approved the Board’s authority to adopt the Rules. They assert that, by enacting the Moore Amendment, the legislature recognized the Board’s power to promulgate guidelines and merely limited that power to exclude mandatory-busing. We do not agree that the express disapproval of a particular rule impliedly approves defendant’s authority to promulgate and adopt the other rules.

As earlier related, prior to the enactment of the Moore Amendment, section 10 — 22.5 granted to the heal boards the authority “[t]o assign pupils to the several schools in the district; *** but no pupil shall be excluded from or segregated in any such school on account of his color, race, sex or nationality.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 122, par. 10—22.5.) Subsequently, the Board adopted Rule 1.4, defining segregation in terms of the 15% plus or minus quota. In passing the Moore Amendment, the legislature specifically addressed this particular rule, fearing that it would require the districts to implement an involuntary busing program. During the Senate debate, the sponsor of the Moore Amendment stated:

“I think that we are aware that the Superintendent has promulgated guidelines which mandate a fifteen percent mixing of children because of race, color, nationality, and so forth. Wherever this has happened there has been tremendous resentment from the people. *** And I think that this bill will clarify the air as far as the authority of the Superintendent to promulgate such guidelines with the threat of withhold [sic] of State aid in the event the local school districts do not conform. This does not in any way prevent a local school district from busing *** if it ... sees fit.” Senate Debates, Senate Bill 48, April 12, 1973, at 50-51.

Thus, the purpose of the Moore Amendment was to clarify that methods of preventing segregation are the obligation of the local boards, as implied in section 10 — 22.5. In performing this duty, the districts could not be required to bus students. There is no indication that, in enacting the amendment, the legislature thereby approved of any other Rules, or the defendants’ authority to adopt them. The other Rules were simply not in question during the passage of the Moore Amendment and consequently the Board’s authority to adopt them was not addressed.

Defendants assert that the trial and appellate courts erred in concluding that Aurora has complied with the Armstrong Act. We do not believe that this question is properly before us.

As previously indicated, section 22—19 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 22—19) establishes the procedure by which defendants may combat segregation. In particular, if defendants investigate and determine that discrimination exists, they may request the Attorney General to file suit for appropriate relief. This procedure insures that the Board will not assume the role of prosecutor, judge, and enforcer of its own sanctions. Consequently, the proper course is for defendants to conduct a hearing and refer to the Attorney General any findings of discrimination. This is the extent of the Board’s obligation. It is for the Attorney General, as representative of the People, to file suit when a district engages in discriminatory practices. Indeed, in other situations, it has been held that a school board lacks standing “to protest alleged racial discrimination, since it is not a member of the protected class of pupils.” Cronin v. Lindberg (1976), 66 Ill. 2d 47, 56, citing Board of Education v. Bakalis (1973), 54 Ill. 2d 448, 467.

It is for the reasons stated herein that we affirm the judgments of the appellate court in the consolidated cases before us.

Judgments affirmed.

JUSTICE SIMON took no part in the consideration or decision of this case.


author: CHIEF JUSTICE RYAN JUSTICE UNDERWOOD,

text:
    (No. 56690.
    THE BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT NO. 211, COOK COUNTY, Petitioner, v. STANLEY T. KUSPER, JR., County Clerk, Respondent.

      Announced June 29, 1982.
    Opinion filed October 22, 1982.

      UNDERWOOD and SIMON, JJ., concurring.
    John H. Hager and Elaine E. Bucklo, of Coin, Crowley & Nord, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Thomas J. McNulty, Assistant State’s Attorneys, of counsel), for appellee.
    Gilbert A. Cornfield and Gail E. Mrozowski, of Cornfield and Feldman, of Chicago, for amicus curiae Illinois Federation of Teachers, AFT, AFL-CIO, and Illinois Federation of Teachers.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

The petitioner, the board of education of Township High School District No. 211, Cook County, Illinois (board), filed a petition for a writ of mandamus in the circuit court of Cook County to compel the respondent, the county clerk of Cook County, to extend the board’s 1981 taxes in the full amount requested in the tax-levy ordinance for that year without reduction or limitation by virtue of the provisions in the Truth in Taxation Act (Ill. Rev. Stat. 1981, ch. 120, par. 861 et seq.). Both the petitioner and the respondent filed motions for summary judgment. The circuit court denied the petitioner’s motion for summary judgment, dismissed its petition for a writ of mandamus, and entered summary judgment for the respondent. The board appealed, and we granted a motion for a direct appeal to this court pursuant to Rule 302(b) (73 Ill. 2d R. 302(b)). We expedited the hearing because of the necessity for an early determination and announced our affirmance of the trial court on June 29, 1982, noting that an opinion would be filed at a later date. We now set forth in this opinion the reasons for our affirmance.

The primary issue in this appeal is whether the term “aggregate levy,” as used in the Truth in Taxation Act, includes the amount of money the board had levied for debt-service purposes, that is, the amount that had been levied for the purpose of paying principal and interest on bonded indebtedness. In our affirmance of the trial court’s ruling we hold that the term “aggregate levy,” as used in the Act, does not include the debt-service levy.

Sections 3, 4 and 5 of the Truth in Taxation Act (Ill. Rev. Stat. 1981, ch. 120, pars. 863, 864, 865) provide:

“Sec. 3. The purpose of this Act is to require taxing districts to disclose by publication and to hold a public hearing on their intention to adopt an aggregate levy in amounts more than 105% of the amount of property taxes extended or estimated to be extended upon the levy of the preceding year.
Sec. 4. Not less than 20 days prior to the adoption of its aggregate levy, hereafter referred to as ‘levy’, the corporate authority of each taxing district shall determine the amounts of money, exclusive of any portion of that levy attributable to the cost of conducting an election required by the general election law, hereafter referred to as ‘election costs’, estimated to be necessary to be raised by taxation for that year upon the taxable property in its district.
See. 5. Until it has complied with the notice and hearing provisions of this Act, no taxing district shall levy an amount of ad valorem tax which is more than 105% of the amount, exclusive of election costs, which has been extended or is estimated will be extended upon the levy of the preceding year.”

The Act does not define the term “aggregate levy.”

In this case, the board published no notice and held no hearing, as required by the Act, relating to its 1981 tax levy. The board construed the term “aggregate levy,” as used in the Act, to include the taxes levied for debt service. On September 18, 1981, the board filed its 1981 tax-levy certificate with the county clerk of Cook County. By including the debt-service levy in its computation, the board determined that its 1981 levy was 104.8% of its 1980 tax extension. Since the 1981 levy was less than 105% of the 1980 extension, the board concluded that no notice or hearing was required by the Act.

The county clerk, by excluding the debt-service levy, found that the 1981 levy was 110.5% of the 1980 tax extension for the district, which the county clerk concluded required that the notice and hearing provisions of the Act be complied with.

In May 1982 the county clerk of Cook County notified the board that its 1981 tax levy did not comply with the Act and refused to extend the amount of taxes which the clerk had determined exceeded 105% of the 1980 extension. The clerk took the position that the term “aggregate levy” did not include the debt-service levy of the school district. This position is supported by an opinion of the Attorney General of the State of Illinois dated October 15, 1981. The board then petitioned the circuit court of Cook County for a writ of mandamus to compel the county clerk to extend the plaintiffs’ 1981 taxes as levied, with the result as above indicated.

The board argues that a debt-service levy is one portion of the total tax levied each year on the property of the taxpayers. The board contends that under principles of statutory construction, the plain and ordinary meaning of the term “aggregate levy” encompasses all property taxes levied, including the debt-service levy. The intention and purpose of the legislature in enacting the Truth in Taxation Act, according to the board, was to require taxing districts to publicly disclose the amount and purpose of all property taxes levied in any year whenever the taxes increase 5% over the prior year.

The board also argues that the Act itself expressly exempts election costs from the “aggregate levy” and, therefore, that must be the only exemption or exception the legislature intended to grant.

This argument of the board is not convincing. Section 4 of the Act refers to costs of conducting an election required by the general election law. As to school elections, sections 9 — 1 and 9 — 1.1 of the School Code (Ill. Rev. Stat. 1981, ch. 122, pars. 9 — 1, 9 — 1.1) provide that school elections and referenda shall be governed and shall be in accordance with the general election law of the State. Article 2A of the Election Code (general election law) (Ill. Rev. Stat. 1981, ch. 46, par. 2A — 1 et seq.) provides for the time of holding elections. Pursuant to article 2A, all elections, with certain exceptions, are to be held in accordance with the consolidated schedule set out in that article. Section 17 — 30 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 17 — 30) provides that the counties shall pay the costs and expenses of elections within the county, other than those within the jurisdiction of a municipal board of election commissioners. However, for each emergency referendum and each special election not conducted at the time of a regular election, the county and municipality responsible for paying the costs and expenses shall be reimbursed by the political subdivision for which the special election or referendum was held.

These statutory provisions concerning elections reveal that election costs may or may not be an expense which would appear in an annual budget for which tax levies would be made. Whether such an expense constitutes an expense that would appear in the annual budget of a school district would depend upon whether elections for which the district would be required to make reimbursement were conducted during the year. Thus, if election costs were included in the formula by which the 105% limitation is computed, the results would not truthfully inform the taxpaying public whether the taxing officials were increasing the annual expenditures, and thus the taxes, excessively. This then is the reason for the election-costs exemption.

As discussed later, we hold that when the Act speaks of the aggregate levy, it is speaking of that levy which a taxing body makes annually. When the Act speaks of “aggregate levy,” it refers to the total of all levies included in the annual levy ordinance except election costs. An annual levy consists of levies for several different purposes and funds. In the case of a school district, these different levies are referred to in article 17 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 17 — 1 et seq.). Section 17 — 11 provides that the amounts levied for these purposes shall annually be certified to the county clerk in a “certificate of tax levy.” (Ill. Rev. Stat. 1981, ch. 122, par. 17.11.) The levies for these various purposes are made in the course of the annual levy procedure, and the total amount constitutes the “aggregate levy” certified to the county clerk for extension against the property of the district. The amount levied against the property located within the district for debt-service purposes is not included in the certificate of levy filed annually. Therefore, the fact that the exemption for election costs is the only exemption from the annual levy does not indicate that debt-service levies must be included in the computation of the 105% limitation of the Act.

Debt-service levies constitute a procedure separate and distinct from the annual levy. Insofar as schools are concerned, the adoption of bond ordinances or resolutions is governed by article 19 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 19 — 1 et seq.). Section 19 — 7 of the School Code provides that, following the adoption of a bond resolution, it shall be filed with the county clerk and that the county clerk “annually shall extend taxes against all taxable property *** in amounts sufficient to pay maturing principal and interest.” (Ill. Rev. Stat. 1981, ch. 122, par. 19 — 7.) Such levies are not tied to the annual levy process. The annual levy must be completed and the certificate of tax levy filed with the county clerk within a specified time. (As to school districts, see section 17 — 11 of the School Code.) There is no requirement that certified copies of bond resolutions be filed annually or that they conform to the requirements of the filing of the annual certificate of levy. It is thus the filing of the bond resolution with the county clerk which triggers the extension of taxes by the county clerk to pay the bond, principal and interest. An annual levy for that purpose need not be made.

Furthermore, section 17 — 9 of the School Code makes it clear that a tax extended for debt-service purposes is a separate and distinct tax from that included in the annual levy. This section of the School Code provides:

“When the county clerk determines the amount of taxes to be extended upon all the taxable property in any school district having a population of less than 500,000 inhabitants, he shall determine from the certified copies of bond resolutions filed in his office the amount necessary to pay the maturing principal of and interest on any bonds of the district and shall extend a separate tax sufficient to pay all principal and interest thereon ***. The separate tax shall be extended without limitation as to rate or amount. No deduction shall be made in the rate ■ which may be extended for educational or operations, building and maintenance purposes by reason of any rate extended for payment of principal or interest of bonds, except as provided in this section ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 122, par. 17 — 9.

Having considered the differences between the levies contained in the annual certificate of tax levy and the levy for debt-service purposes, it is again appropriate to refer to the language of the Truth in Taxation Act to determine that the term “aggregate levy,” as used in that act, refers only to the levies contained in the annual levy and does not include levies for debt-service purposes.

The Truth in Taxation Act throughout refers to the adoption of a single tax-levy ordinance or resolution and at one particular time. Section 3 of the Act states that a hearing must be held when it is the intention “to adopt an aggregate levy” which exceeds 105% of the extension of the prior years levied. It would be a strained construction, indeed, to say that this provision requires notice and hearing if the amount of taxes levied in the levy ordinance adopted this year, coupled with the amount which the county clerk will extend by virtue of a bond resolution filed five years ago, exceeds 105% of the amount extended on last year’s levy. When section 3 says “to adopt an aggregate levy” it refers to the single act of adopting a levy ordinance or resolution, which is the annual tax-levy ordinance or resolution. Similarly, section 4 of the Act provides that not less than “twenty days before the adoption of its aggregate levy” the corporate authority shall determine the amount necessary to be raised by taxes. Here, again, the term “aggregate levy” can only refer to the single annual levy adopted pursuant to the annual budget and levy process. Section 5 of the Act refers to “the levy of the preceding year,” which again has reference to a single levy, the annual levy. Section 7 of the Act refers to “the final tax levy resolution or ordinance adopted,” which again can only mean the annual levy resolution or ordinance adopted at the time prescribed in the statute. Section 8 of the Act states, “The tax levy resolution or ordinance approved in the manner provided for in this Act shall be filed with the County Clerk in the manner and at the time otherwise provided by law.” This section simply refers to the annual levy which must be filed in the manner and within the time provided by law, which levy, if it exceeds 105% of the taxes extended on the prior year’s levy, must be approved in the manner provided for in this act. As noted above, the provisions relating to the time of filing the tax-levy certificate pertains only to the annual levy and not to the filing of a bond resolution with the county clerk, which may be filed at any time during the year.

The entire act refers to the singular act of adopting a levy, which can only apply to the annual levy and not to the taxes levied in the annual levy plus those that may have been levied at some other time during the year or prior years for the payment of principal and interest on bonds. Also, the inclusion of debt-service levies in the computation would not present to the taxpayers an accurate picture of whether expenditures are being excessively increased. The resolution or ordinance which sets the maturity dates for the bonds does not always provide that the same number of bonds will mature each year. Thus, the value of the bonds maturing this year may be substantially greater or less than the value of those maturing next year. If the value of bonds is considered in computing the 105% limitation of the Act the result could extend to the district greater taxing power or it could unduly restrict its taxing power, depending solely upon the number of bonds that matured in the preceding year.

We conclude that the term “aggregate levy,” as used in the Truth in Taxation Act, does not include taxes levied for debt-services purposes. The county clerk of Cook County was correct in excluding taxes levied for debt-service purposes when computing the 105% tax limitation provisions of the Act.

Although counsel has not informed this court to this effect, we have learned that the General Assembly passed and that the Governor, on June 23, 1982, signed into law Public Act 82 — 760. In relevant part, that act amends the Truth in Taxation Act by adding the following:

“Sec. 9.1. If any taxing district lying wholly within a county having more than 3,000,000 inhabitants, by including debt service levies as a part of its aggregate levy pursuant to the estimating procedure set out in Section 4 of this Act, had a levy prior to January 1, 1982 which was more than 105% of the amount of ad valorem property tax, exclusive of election costs and debt service levies, extended or estimated to be extended upon the levy of the preceding year, such levy shall not be deemed invalid due to noncompliance with the provisions of this Act.”

The effect of this amendment is to permit any taxing district to have the full extension of its taxes, if it is wholly within a county with a population of 3 million or more (Cook County), and if it is in violation of the Truth in Taxation Act because it included debt-service levies in its “aggregate levy.” The amendment is obviously limited to Cook County taxing districts and to violations of the Truth in Taxation Act in certificates of tax levy filed prior to January 1, 1982. It is a one-time exemption from the Truth in Taxation Act for certain taxing districts, including the Board of Education in this case. However, this amendment does not render this appeal moot. Neither party contends that the issue is moot, and no one has moved to dismiss the case as moot. The validity of the amendment has not been finally determined and is not involved in this case. In addition, construction of the term “aggregate levy,” as used in the Truth in Taxation Act, is a matter of great public interest and concern. This term must be given meaning for the continued application of the Act to the tax levies of literally hundreds of taxing bodies. There is not only grave likelihood, but virtual certainty, of future recurrence of the question. This court should therefore give authoritative interpretation to the term. (See People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 622; In re Estate of Brooks (1965), 32 Ill. 2d 361.) We have therefore considered the merits of this appeal.

The board argues, for the first time on appeal, that the Cook County clerk should be estopped from denying the extension of the full amount of 1981 taxes. The board’s argument is that the county clerk’s decision not to extend taxes in violation of the Truth in Taxation Act was based on an Attorney General’s opinion issued after the date on which the board had to file its tax levy certificates. Also, the board argues that its levy certificate was filed on September 19, 1981, yet the county clerk did not notify the board until May 1982 of its decision not to levy the full amount of the taxes.

We refuse to pass on the merits of the alleged estoppel issue in this case. After a review of the record, it is clear that this issue was never raised at the trial level. Issues not raised in the trial court are generally considered waived on appeal. (Snow v. Dixon (1977), 66 Ill. 2d 443; People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303; see also People v. Holloway (1981), 86 Ill. 2d 78.) The basic consideration supporting the rule in this instance is that the failure to urge a particular theory before the trial court effectively precluded the opposing party from presenting rebuttal evidence. Accordingly, we hold that the board has waived its right to assert the equitable estoppel theory.

For the above reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

JUSTICE UNDERWOOD,

concurring:

When our judgment in this case was originally announced, Justice Simon and I believed, predicated upon what we considered to be relevant language in sections 6 and 8 of the Act (Ill. Rev. Stat. 1981, ch. 120, pars. 866, 868), that the General Assembly had intended the term “aggregate levy” as used in the Truth in Taxation Act (Ill. Rev. Stat. 1981, ch. 120, par. 861 et seq.) to include taxes levied for debt-service purposes. Consequently, we were noted as dissenting. Since that time, the same General Assembly amended the Act (Pub. Act 82 — 760, 1982 Ill. Laws 202) in a manner indicating approval of the methods of computing the 105% tax limitation provisions of the Act which were used by the county clerk in this case and which did not include amounts levied for debt-service purposes.

Since that amendment seems to indicate that the legislature intended the result which the majority reaches despite what appeared to Justice Simon and me to be language in sections 6 and 8 requiring a contrary result, we now concur in the judgment of the court.

JUSTICE SIMON joins in this concurrence.


author: JUSTICE UNDERWOOD

text:
    (No. 55884.
    ROBERT A. CHAPSKI, Appellant, v. THE COPLEY PRESS et al., Appellees.

      Opinion filed October 22, 1982.

      Geister, Schnell, Richards & Brown, Chartered, and Robert A. Chapski, Ltd., both of Elgin (Van R. Richards, Jr., and Robert A. Chapski, pro se, of counsel), for appellant.
    Lambert M. Ochsenschlager, Wayne F. Weiler, and Craig S. Mielke, of Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for appellees.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, Robert A. Chapski, an attorney, filed this libel action in the circuit court of Kane County seeking damages against defendants, the Copley Press, the Daily Courier News, Michael Bailey, a reporter, D. Ray Wilson, editor and publisher, and LeRoy Clemens, executive editor. The circuit court granted defendants’ motion to dismiss on the basis of the “innocent construction” rule, and the appellate court affirmed (100 Ill. App. 3d 1012). We allowed plaintiff’s petition for leave to appeal.

The series of newspaper articles upon which the complaint was based appeared in the Daily Courier News, the local Elgin newspaper, during the period of February 8, 1979, through January 25, 1980. There were 13 articles published on 11 different dates, most of which purported to summarize and clarify the judicial proceedings and events that preceded the death on February 2, 1979, of two-year-old Kristie Hubbard, a victim of child abuse. Plaintiff represented the child’s mother, Kathleen Insco Hubbard, in juvenile and divorce proceedings. Norman Platter, Mrs. Hubbard’s boyfriend, was subsequently convicted of involuntary manslaughter and sentenced to imprisonment in connection with the child’s death. Mrs. Hubbard apparently received a 30-day jail sentence for a less serious offense.

A panel of the Attorney Registration and Disciplinary Commission, after conducting hearings to determine whether the plaintiff had engaged in conduct which tended to defeat the administration of justice or to bring the courts and legal profession into disrepute, found that there was insufficient evidence to warrant the filing of a complaint with the hearing board. The panel concluded that plaintiff’s actions in representing his client’s interests “had absolutely nothing to do with the child’s death,” which occurred several months after a written order was entered awarding his client custody. The panel determined that when plaintiff appeared ex parte before circuit judge Neil Mahoney of Kane County, he merely obtained a written confirmation of an oral custody order that had been entered the prior week when all interested parties were present.

Plaintiff alleged in his 11-count complaint that defendants wrongfully, maliciously, and with intent to defame and injure him in his reputation and profession published false and defamatory articles and editorials which implied that he was guilty of a violation of law and morals and was not a person of integrity. The allegedly defamatory statements were set forth in plaintiff’s complaint, and the full text of the articles was attached as exhibits. Plaintiff alleged that defendants knew or by the exercise of reasonable care could and would have known that the statements concerning him were false, that defendants showed actual malice, spite and ill will toward him, and that defendants published the statements with reckless disregard of the truth. He further alleged that, as a result of the articles, a citizens group was formed and such group aided and abetted defendants’ cause to defame plaintiff’s character and reputation by writing to various authorities, including the Attorney Registration and Disciplinary Commission of the State of Illinois. Finally plaintiff asserted that, after the Commission rendered its decision, defendants had an opportunity to retract the false and libelous statements but instead further libeled him.

Both the trial and appellate courts applied the “innocent construction” rule and concluded either that the language itself could be innocently construed or that the articles as a whole could be construed as referring to the legal system rather than the plaintiff. Plaintiff argues here that the appellate court’s interpretation of the articles as a criticism of the court system is a strained one and specifically directs our attention to an article entitled “Who’s to blame? Many questions in baby’s death,” in which plaintiff’s name is alleged to have appeared in bold black type 20 times. He urges that the decisions below give defendants a broad immunity in libel actions which is unwarranted.

Twenty years ago in John v. Tribune Co, (1962), 24 Ill. 2d 437, cert. denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148, this court affirmed a verdict and judgment for defendant in a libel action, holding that the articles in question were not “of and concerning the plaintiff” because the use of the term “alias” removed the plaintiff as the target of the publications. What has since been known as the innocent-construction rule arose from obiter dictum in that case (Valentine v. North American Co. (1974), 60 Ill. 2d 168, 172 (Ward, J., Underwood, C.J., and Schaefer, J., dissenting):

“We further believe the language in defendant’s articles is not libelous of plaintiff when the innocent construction rule is consulted. That rule holds that the article is to be read as a whole and the words given their natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law.” (24 Ill. 2d 437, 442.)

Since that time the innocent-construction rule has been applied in dozens of appellate court cases, but in something less than a completely uniform fashion (see, e.g., Rasky v. Columbia Broadcasting System, Inc. (1981), 103 Ill. App. 3d 577; Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735; Garber-Pierre Food Products, Inc. v. Crooks (1979), 78 Ill. App. 3d 356; Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452; Bruck v. Cincotta (1977), 56 Ill. App. 3d 260; Moricoli v. Schwartz (1977), 46 Ill. App. 3d 481; Watson v. Southwest Messenger Press, Inc. (1973), 12 Ill. App. 3d 968; Delis v. Sepsis (1972), 9 Ill. App. 3d 217; Lorillard v. Field Enterprises, Inc. (1965), 65 Ill. App. 2d 65; see also Porcella v. Time, Inc. (7th Cir. 1962), 300 F.2d 162; Cantrell v. American Broadcasting Companies, Inc. (N.D. Ill. 1981), 529 F. Supp. 746) and often over vigorous objections concerning its application or whether it continues to be a fair statement of the law (e.g., Levinson v. Time, Inc. (1980), 89 Ill. App. 3d 338, 343) (“attempts to eliminate the innocent-construction rule have been consistently rejected by the courts of Illinois for many years in the past”); Kakuris v. Klein (1980), 88 Ill. App. 3d 597, 601 (“the innocent construction rule enjoys continued vitality in Illinois”); Vee See Construction Co. v. Jensen & Halstead, Ltd. (1979), 79 Ill. App. 3d 1084 (the court rejected plaintiff’s position that the rule was bom of judicial error and should be abandoned); Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 457 (“[t]he appellate court is not the appropriate forum to seek a change in this well-established rule of law”). It has been applied to the law of slander as well as libel to determine whether the words themselves are defamatory (e.g., Valentine v. North American Co. (1974), 60 Ill. 2d 168 (slander); Kirk v. Vil lage of Hillcrest (1975), 31 Ill. App. 3d 1063 (slander); Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345 (libel); Wexler v. Chicago Tribune Co. (1979), 69 Ill. App. 3d 610 (libel)), to the determination of whether the language is actionable per se (e.g., Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452) and to the issue of colloquium (e.g., John v. Tribune Co. (1962), 24 Ill. 2d 437; Belmonte v. Rubin (1979), 68 Ill. App. 3d 700). Nor has treatment and application of the rule in our own court been totally consistent. (See Catalano v. Pechous (1980), 83 Ill. 2d 146, 184, (Clark, J., concurring in part and dissenting in part), cert. denied (1981), 451 U.S. 911, 68 L. Ed. 2d 300, 101 S. Ct. 1981; compare John v. Tribune Co. (1962), 24 Ill. 2d 437, with Troman v. Wood (1975), 62 Ill. 2d 184.) It has been the subject of much critical commentary (see, e.g., Polelle, The Guilt of the “Innocent Construction Rule” in Illinois Defamation Law, 1 N.I.U. L. Rev. 181 (1981)); (Symposium, Libel and Slander in Illinois, 43 Chi. Kent L. Rev. 1 (1966)); cf. Comment, The Illinois Doctrine of Innocent Construction: A Minority of One, 30 U. Chi. L. Rev. 524 (1963)); Stonecipher & Trager, The Impact of Gertz on the Law of Libel In Illinois, S.I.U. L.J. 73 (1979)), and considered to be a resurrection of the long-discarded 16th- and 17th-century English rule of mitior sensus (Eldredge, The Law of Defamation sec. 24, at 161 (1978)). The rule or variations thereof remain the law in only a few States. See Monnin v. Wood (1974), 86 N.M. 460, 525 P.2d 387; Walker v. Kansas City Star Co. (Mo. 1966), 406 S.W.2d 44; Steffes v. Crawford (1963), 143 Mont. 43, 386 P.2d 842; Becker v. Toulmin (1956), 165 Ohio 549, 138 N.E.2d 391; Tulsa Tribune Co. v. Kight (1935), 174 Okla. 359, 50 P.2d 350; see also England v. Automatic Canteen Co. of America (6th Cir. 1966), 349 F.2d 989.

The original mitior sensus doctrine, which required that words be interpreted, not in their natural sense, but in their best possible sense, and that the plaintiff entirely negate any possible nondefamatory meaning (see Prosser, Torts sec. 111, at 747 (4th ed. 1971); Holdsworth, Defamation In The Sixteenth And Seventeenth Centuries, 40 L.Q. Rev. 302, 405-08 (1924)), was developed by the common law courts in the 16th century to reduce the number of defamation actions that had unexpectedly flooded the courts when common law jurisdiction was first established (40 L.Q. Rev. 302, 404). Its artificial and strained application resulted in some “remarkable judicial acrobatics” (Lovell, The “Reception” Of Defamation By The Common Law, 15 Vand. L. Rev. 1051, 1064-65 (1962)), and it was eventually replaced by a more sensible rule (Roberts v. Camden (1807), 103 Eng. Rep. 508, 509, 9 East 93, 96 (Lord Ellenborough, C. J.) ("The rule which at one time prevailed, that words are to be understood in mitiori sensu, has been long ago superseded; and the words are now construed by Courts, as they always ought to have been, in the plain and popular sense in which the rest of the world naturally understand them”)).

One of the early justifications advanced in favor of the somewhat similar, but less arbitrary, innocent-construction rule announced in John was that it had the desirable effect of mitigating the harshness of the doctrine of strict liability (see Comment, The Illinois Doctrine of Innocent Construction: A Minority of One, 30 U. Chi. L. Rev. 524, 539 (1963)) which existed in the law of defamation prior to Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997. Perhaps the strongest reason advanced in support of the rule is that it comports with the constitutional interests of free speech and free press and encourages the robust discussion of daily affairs. Dauw v. Field Enterprises, Inc. (1979), 78 Ill. App. 3d 67, 71.

The principal criticism of the rule seems to be that, like the doctrine of mitior sensus, courts generally strain to find unnatural but possibly innocent meanings of words where such a construction is clearly unreasonable and a defamatory meaning is far more probable. (See Polelle, The Guilt of the “Innocent Construction Rule” in Illinois Defamation Law, 1 N.I.U. L. Rev. 181 (1981).) To construe a publication in an unreasonable manner in order to give it an innocent interpretation is itself incompatible with the rule’s requirement that words be given their “natural and obvious meaning.” (See John v. Tribune Co. (1962), 24 Ill. 2d 437, 442.) This inherent conflict contained in the definition itself has been resolved in some cases, perhaps unwittingly, by construing the words innocently as a matter of law only where the words are reasonably susceptible of such a construction or the allegedly defamatory language is ambiguous. E.g., Altman v. Amoco Oil Co. (1980), 85 Ill. App. 3d 104, 107; Moricoli v. Schwartz (1977), 46 Ill. App. 3d 481, 483; Roemer v. Zurich Insurance Co. (1975), 25 Ill. App. 3d 606, 612; see also Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 459 (Romiti, J., dissenting).

Given the inconsistencies, inequities and confusion that are now apparent from the interpretations and applications of the rule as originally announced in John, and the broader protections that now exist to protect first amendment interests (New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710; Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997), together with the availability of the various privileges (see, e.g., Colson v. Stieg (1982), 89 Ill. 2d 205, 209; Blair v. Walker (1976), 64 Ill. 2d 1; Farnsworth v. Tribune Co. (1969), 43 Ill. 2d 286; Zienfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345; see also Catalano v. Pechous (1980), 83 Ill. 2d 146, 167-68; Restatement (Second) of Torts secs’ 583-613 (1977)), we are persuaded that a modification of the innocent-construction rule would better serve to protect the individual’s interest in vindicating his good name and reputation, while allowing the first amendment guarantees that “breathing space” essential to their fruitful exercise (New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710). We therefore hold that a written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff. Troman v. Wood (1975), 62 Ill. 2d 184, 189.

Because it appears that neither the trial nor the appellate court applied the innocent-construction rule as we have here held it is to be applied, the plaintiff here should have the opportunity to have the trial court make that determination. Since several opinions of the appellate court have in essence applied the modified approach we announce today, we find unpersuasive defendants’ argument that application in this case of a “changed” rule would be unfair.

We note finally that the trial court, in applying the innocent-construction rule, treated some of the language as a constitutional expression of opinion, which it may well be. We point out, however, that the innocent-construction rule requires language to be so treated only where that characterization, too, is a reasonable one. See Catalano v. Pechous (1980), 83 Ill. 2d 146, 158.

We accordingly reverse the appellate and circuit court judgments and remand the cause to the circuit court of Kane County for further proceedings consistent with this opinion.

Judgments reversed; cause remanded.