dissenting:
I respectfully dissent. The issues involved are not complicated. The law in Illinois is clear that an appellate court, on later appeal, is not bound by decision on former appeal where in another case the highest court of the same jurisdiction has decided the same matter differently.
Mary E. Foley was a tenured teacher dismissed by the Board of Education for economic reasons, and was not offered a teaching job held by a nontenured teacher because she was not legally qualified for that position. Section 24 — 12 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 12) provides that a tenured teacher dismissed for economic reasons may, within the one calendar year following dismissal, claim a position which is reinstated or created by the board of education so long as the honorably dismissed tenured teacher is “legally qualified” to hold the new or reinstated position. We decided in Hagopian v. Board of Educaion (1978), 56 Ill. App. 3d 940, 372 N.E.2d 790, that Mary E. Foley was “legally qualified” under section 24 — 12 to claim the position of a nontenured teacher by virtue of her teaching certificate, and we ordered Mrs. Foley reinstated.
Thereafter, on November 20, 1978, Mrs. Foley filed a petition in the circuit court asking that she be reinstated and awarded damages pursuant to the appellate court order. While her petition was pending upon remand from this court and consequently still in the appellate process, the Illinois Supreme Court on January 29, 1979, in Lenard v. Board of Education (1979), 74 Ill. 2d 260, 384 N.E.2d 1321, ruled, directly contrary to the decision of this court, that a teacher’s “legal qualification” is not determined solely by the teaching certificate but by the standards of the Illinois Office of Education set forth in Circular Series A, No. 160.
The supreme court stated that:
“We conclude that the A-160 standards for teachers, 000 are to be incorporated into the meaning of the phrase ‘legally qualified’ as it appears in Section 24 — 12 of the Code. Because Petitioner did not meet the A-160 standards for the teaching position held by Carter, he was not ‘legally qualified’ for that position and therefore not entitled to be reinstated.” 74 Ill. 2d 260, 268-69, 384 N.E.2d 1321, 1326.
Where the supreme court in a separate matter alters the pertinent law in the period between appeals, the appellate court on the second appeal may not follow its contrary prior judgment and must apply the law' as mandated by the Illinois Supreme Court. In Zerulla v. Supreme Lodge Order of Mutual Protection (1906), 223 Ill. 518, 79 N.E. 160, the court stated:
“[Wjhile the determination of a question of law by the Appellate Court on the first appeal may, as a general rule, be binding upon it on the second appeal, it certainly cannot be binding on this court. Nor would the Appellate Court on the second appeal, wxe apprehend, be obliged to adhere to a proposition of law laid down on the first appeal, when this court had, since the first appeal, decided the precise question contrary to the rule announced by the Appellate Court. To so hold would lead to most illogical results.” 223 Ill. 518, 520, 79 N.E. 160, 161.
This exception to the law of the case doctrine was applied in Proesel v. Myers Publishing Co. (1964), 48 Ill. App. 2d 402, 199 N.E.2d 73, where the appellate court had before it a second appeal in a libel action. During the interim between appeals, the pertinent law governing libel actions was changed by the Illinois Supreme Court so that the new' law' was
directly contrary to that previously enunciated by the appellate court. Because the law was altered, the appellate court reversed itself, stating:
“At that stage of the litigation this court’s opinion became the law of the case, and in the conduct of further proceedings the trial court was bound to follow the principles therein set forth. This rule, however, is subject to the exception that the law of the case must be considered modified by pertinent decisions of higher courts handed down thereafter. Presbyterian Distribution Serv. v. Chicago Nat. Bank 36 Ill. App. 2d 1, 3, 183 N.E.2d 525; Zerulla v. Supreme Lodge Order Mut. Protection, 223 Ill. 518, 520, 79 N.E. 160; Awotin v. Atlas Exchange Nat. Bank, 275 Ill. App. 530, 546.” 48 Ill. App. 2d 402, 404.
On February 22,1979, almost a month after Lenard was filed, the trial court reinstated Mrs. Foley as required by our mandate, but refused to award her damages. Under the law as it now stands, Mrs. Foley would not be entitled to either reinstatement or back pay. It is the present law which should be applied to the case before us today, but the majority opinion disregards the present law and in addition to validating the reinstatement awards damages. Two wrongs cannot make a right.
The majority opinion does not cite authority sufficiently persuasive to justify a disregard for the clear pronouncement of our supreme court.
Their opinion assumes that the doctrine of res judicata is applicable because our mandate in the first appeal became final and conclusive on September 28,1978, when the supreme court denied leave to appeal. That theory of argument overlooks recent law that denials of leave to appeal “of course, carry no connotation of approval or disapproval of the appellate court action.” (People v. Vance (1979), 76 Ill. 2d 171, 390 N.E.2d 867, 872.) It is indisputable that the case at bar is still in the appellate process and must be subject to current law as announced by the Illinois Supreme Court.
The exceptions to the law of the case rule is fully discussed in Union Light, Heat & Power Co. v. Blackwell’s Administrator (Ky. 1956), 291 S.W.2d 539, where the court said:
“The appellee submits that as strictly an appellate court, this court has no power to review its own final decision where the mandate has issued and the term ended. Now and then expressions to this effect may be found in our opinions in applying the law of the case rule or where the conditions did not involve consideration in a subsequent appeal of a grave error in the case. The argument is essentially the argument of res judicata. The law of the case doctrine is similar and analogous to but is not identical with the doctrine of res judicata. 5 CJS, Appeal and Error, §1822. There is, however, minority authority for the res judicata concept. Note 1 ALR 1270 cites cases to that effect from California, Montana and South Carolina. But these cases seem to have been gathering moss through the year. Later cases of the great majority of the courts which had so held are to the contrary. An example is McGovern v. Kraus, 200 Wis. 64, 227 NW 300, 67 ALR 1381, cited above, which as stated, abandoned the concept of res judicata.
With "reference to the use of the strong term, ‘res judicata,’ in connection with the general rule, the late well-known Judge Lamm, writing for the court in Mangold v. Bacon, supra, 237 Mo 496, 141 SW 650, 655, said: ‘Possibly that use of the term is a little due to poverty of our language in expressing nice shades of thought, or by way of analogy.’ ” (Emphasis added.)
I believe we should always recognize that the law as interpreted by the courts is a fluid thing. A change that occurs during the pendency of litigation may result in a different outcome but this does not vitiate the holding for it is held that there is no vested right in the continuance of a particular rule of law, and where it has been changed during the pending of an appeal, the case must be disposed of by the reviewing courts upon the law as it exists at the time of review. (Phillips Petroleum Co. v. City of Park Ridge (1958), 16 Ill. App. 2d 555, 565, 149 N.E.2d 344.
In Lebold v. Inland Steel Co. (7th Cir. 1943), 136 F.2d 876, cert, denied (1943), 320 U.S. 787, 88 L. Ed. 473, 64 S. Ct. 196, the court recognized that if it was wrong on a previous appeal it had a right and duty to correct is error.
By failing to follow the decision in Lenard, the majority opinion will deny the respondent school district equal protection of the laws under both the Illinois and United States constitutions. The Illinois Supreme Court has distinctively held that:
“Equal protection of the law requires that the rights of every person must be governed by the same rule of law under similar circumstances, and the mere arbitrary discrimination between different classes is a denial of equal protection of the law.” People v. Saltis (1928), 328 Ill. 494, 160 N.E. 86, quoted in People v. Nichobon (1948), 401 Ill. 546, 553, 82 N.E.2d 656, 660.
Why should the Tampico Community Unit School District No. 4 be treated differently from the Fairfield No. 112 School District (defendant in Lenard), as well as other Illinois school districts?
This court should look to the effect of its own error rather than merely acknowledge that error was committed and let it go at that. It should wipe out the effect of the mistake in the first opinion rather than perpetuate the error which would otherwise result in great wrong to the school district and establish a bad precedent. That is essential justice.