discuss our cases in person live in three d i guess i should say because others might be alive but good morning hours may please the court i am at work yaka i represented the board of trustees of johnny logan community college this appeal presents a single issue of law the interpretation of section three b five of the illinois public community college act which is it page two of our brief the specific issue is whether that section prohibits a community college from hiring a part time adjunct to teach a particular course without st offering to reappoint or reinstate a laid off or tenured did faculty member unless somebody corrects me i'll just use that that's a very important case and in this appeal in this case and in the bijan case a total of eight judges consider this issue four  s sense illinois judges must be presumed to be reasonably well informed persons are the language in question must be ambiguous argument has three main points  bush and court correctly interpreted section three b five and a case identical to ours on this issue nd the appellate court misapprehended the relationship between the two clauses of the last sentence of that section rd this court should apply the well settled judicial construction doctrine and that will be decisive i would like to address that last point st in nineteen  and in this case under the judicial construction doctrine when the legislature amends a statute in this case the very section that was judicially interpreted a certain way in these unchanged the portion of the stat that was judicially construed it will be presume that the legislature adopted the court's prior construction we have cited on our brief a number of decisions by this court applying that doctrine there is no reason not to apply it here in fact this is the perfect case in which to apply it has been the unquestioned law of illinois for thirty two years almost a rd of a century illinois has forty eight community colleges accordance with me on my community college board website fact sheet it is the rd largest community college system in the nation sixty percent of all students in illinois and world and public higher education are in world and community colleges and yet our community colleges only receive twenty five percent of the funding for public higher education in  colleges have all been operating for thirty two years under the interpretation of section three b five adopted in beijing if the beijing court decision was incorrect or as it was perceived as incorrect surely someone acquiesced in the judicial construction of the law over a substantial period of time as what we have here the courts construction actually becomes part of the fabric of the law and a departure from that construction by the informed community college one brick because there's nothing in the record on that your honor we can only speculate as to that but as i say this is the st case since visum that has challenged that result s you're not bound by of course this court could reexamined that issue but i would say that the court's decision is to pick the most reasonable th plausible interpretation of the statute of course is more than one we know that from the conflict in the decisions by this court will pick the interpretation that it thinks is the most plausible the most posher of the case now in the alternative to the judicial construction rule the bije m decisions construction of section three b five was correct phrase statutory terms cannot be considered in isolation but must be rated context what's pertinent in this case is the last sentence of section three b five which says in the st clause prior to  words are reappointment and position and faculty member the act defines faculty member as a full time employee regularly engaged in teaching or academic support services so the either non tenured faculty who by definition are full time or another quote employee with less seniority an adjunct instructor is not a crew seniority cannot require tenure they are not appointed to positions they have no right or expectation of continued employment and as the court said in the term employed we must be given a restricted meaning based on the way it is used to out the same way it's used throughout the entire statute you help me with that piece you acknowledged in your brief that the purpose of the article w tenured faculty from being replaced in the same full time position by a junior non tenured or you say less senior tenured teachers so you acknowledge the purpose of this is to protect exactly the language that we're talking about here the language as you point out provides that no nine hundred and ten year faculty member and faculty member we all know means full time teacher or other employee w less send your ear apparently not a faculty member not a full time teacher so in the system who are other employees who are not full time teachers and therefore fac well that's the that's the plaintiff's argument your honor but that's taking that that one phrase out of context the bijan court says we have to use the word employee consistently throughout this statute and that means someone who has a and we've cited another page eight of our brief the i was in community college case it's an administrative case but it discusses in great detail the the world of difference between adjunct professor between adjunct instructors may or may not be called for an adjunct instructors and regular faculty and the community colleges like many other colleges law schools many others use adjunct to restrict their ability to hire adjuncts then the legislature should have said so we can't translate a general policy to protect senior and junior faculty one possibility is that it is a dean or other regular staff member who is qualified to teach a particular course and courses and could be a competency to use the word competency to teach their particular course then well they have to recall that faculty member in preference to hiring an adjunct to teach that course and if you recall them then of course they have to have a full time position because their faculty member they get benefits and according to the bijan case it costs three times as much  the consideration here which was to prevent faculty members full time faculty members from any replaced in the same position by junior faculty or staff or whoever they would be replaced by the general assembly cannot intended have intended to include adjuncts the nd clause merely adds this additional proviso that a faculty member other plus employee or less intended that to be included then it had to say so we should not assume or infer that the legislature intended to restrict these academic decisions about who teaches what courses unless the statute clearly and without doubt requires thank you may it please the court my name is loretta haggard i represent the plaintiffs apple lease in this case it's vital for me to be able to communicate to this court that opposing counsel is mischaracterizing the issue before the court the plaintiffs have never claimed that if there's a single course that an adjunct is assigned that a laid off tenured faculty member can perform then the college has to create out of whole cloth and entire position for that laid off faculty member from the very beginning in this case we have pleaded that there were enough courses being offered by adjuncts that were previously offered by the plaintiffs themselves more than enough to fill up their full course loads and to give them their customary overload or extra credit assignments we have consistently from the trial court in the court of appeals made the legal argument that what has happened here is that the college laid off the tendered faculty members and then parse out their own assignments to multiple adjuncts so it's easy to knock down a straw man but this this elaborate hypothetical that the defendant is offering about the history of we have not alleged bad faith i mean the case was tried on the pleadings it was on a motion to dismiss so that was not an element but under the school code cases that that we cited which understand that  alternative argument if the statute is ambiguous but under the school coach cases that we believe are the analogs good faith bad faith doesn't matter if what happens is the employer in those cases a school district lays off a tenured teacher and divides up their their assignments and assigns them to other less senior tenured teachers or probationary teachers that is an end run around tenure whether it's in good faith or bad faith and that's the panel case that's burke that's had gopi in relf that whole line of cases so our claim doesn't depend on whether it was in good faith or let me turn to this question of whether the statute is ambiguous busy i'm did not hold that the statute was ambiguous it assumed that it was ambiguous because the parties disagreed about it and that was a fatal mistake because then it went on to do a bunch of looking to other sources that other than the text of the statute itself that it should not have looked at if the statute was unambiguous and just because the parties in this case disagree about what it means doesn't mean that the statute is ambiguous the legislature must have intended the phrase other employee with less than you already to mean something different then a faculty member because otherwise it would have just said in the proviso clause provided that no non tenure faculty member or other tenured employee with less than you already that's how busy and read it shall be employed to render a service which a tenured faculty members competent to render read a word into the statute that's not managerial level and looked to the dictionary definition of seniority as a privileged a privilege like job security earned by length of service it is true that there is a general presumption that a proviso modifies the antecedent language that came before it but that presumption can be overcome if if the language of the statute is clear and  if it's not clear then we can look to the legislative history and the legislative history that the defendant provided to the court is very helpful because it all supports the plaintiff's view of the statute that was not only the the passage from representative gabby that the th district below relied on saying it would be unfair to lay off twenty two thousand dollars a year faculty member and replace them with two that was not the only passage there was debate back and forth about part time faculty members in that legislative history and we've cited it in our brief so yes it's true that part time adjunct s are not mentioned in as such in the public community college act but in the legislative history the existence of part time faculty was very much in the in the legislators minds and there's no reason to believe that when represented getting made that comment about replacing one tenured faculty with two making half as much that he was only thinking about  a less senior tenured faculty member in addition the legislative history teaches us that there was a debate among the legislators about whether it was more appropriate to analogize community colleges to higher education four year colleges and universities or whether it was more appropriate to analogize it to k twelve school district and it was the proponents of this of the tenure provisions who urged that it be interpreted similarly to the school coach cases and really both sides say if this is ambiguous we should look to the school code cases they just looked at two different lines of cases and the lines of cases that the plaintiff has looked at as i've already said are those where a school district got rid of a tenured teacher position and then divided those assignments out to junior faculty members the bisham case involved an entirely different set of facts really the opposite of what happened in this case  n the courses that had been assigned to the tenured faculty were eliminated they were no longer offered by anyone right and then the the laid off faculty wanted to bump adjuncts out of courses that that were outside their primary areas of expertise and that they had occasionally taken on in the past like a theater professor who had occasionally taught a freshman writing course or speech want to one and they wanted the college in that case to assemble a whole position for them of courses that outside their fields that they had occasionally taught in the in the past those factual distinctions make a big difference and they actually go to the wells at the judicial construction doctrine so that the st point i would make about that is if the statute is plain and unambiguous you don't even look to that doctrine at all that doesn't apply if this court decides that the statute is ambiguous then it must recognize the limited reach of the busy  m decision on its facts because all it did was say when a tenured faculty members coursework is all a limb unaided and their laid off a college does not have to cobble together a position for them out of classes that adjuncts are taking the reason we say in our brief that was not a terribly controversial holding and you wouldn't have expected the legislature to rush in and overrule it is because it was plainly supported by the line of school code cases that defendant has relied on in the brief so if the judicial well settled judicial construction rule applies in this case at all eat the court must consider the fact that the  bisham decision had a very limited reach it should be limited to its facts which are nothing like the facts of the present case and i would also point out that although it's true that the well settled judicial construction doctrine can  be applied to appellate cases as well as to supreme court cases the lion's share of the cases that have been cited by the defendant and the plaintiff in their briefs involved supreme court cases or long lines of multiple appellate court cases federal cases sometimes they involve multiple legislative amendments so you know you can infer more from if there's been a whole history of multiple amendments here there's been one amendment on an issue that was completely different and it concerns seniority lists and that's it and we you know there's no other published cases until now that have presented the facts of this case where tenured faculty were let go and their work was parceled out to adjuncts so we would submit that's why there was no other tests of busy i'm over thirty is less than the seniority that any full time faculty member has because even a probationary faculty member during their st three years has a contract for a year and you know they can be non renewed at the end of the year or they can be renewed and then at the end of the three years they there's a tenure decision but but even a brand new probationary full time faculty member has more seniority then an adjutant does they have none so to say that seniority i mean of course that's less than any other seniority that's what the th district held below there are two other points that i'd like to make that were really fight well we wouldn't be here if the college had not offered all of the plaintiff's classes through at johns all right if the college just wanted to offer one or two of each of the plaintiffs classes that would not make up a full time position and we have never taken the position that the college has to create a full time position for them so yes we think that the college under the statute needs to offer an adjunct class to the professor who taught it but at the adjunct rate and no benefits and is very unlikely they're going to take it but that's we have only claimed that the college has made a choice here to continue offering the same courses more than enough to employ all of the tenured faculty and under those circumstances well the college well that is the most obvious course that they could have done but they could they can get rid of departments they can get rid of entire swaths of courses they can you know they can choose not to tenure new people they can allow tenured or even full time faculty positions to go through attrition the recall period only goes for two years remember so after two years you know they could eliminate a set of courses for two years and then the recall rights are gone and then they can re offer it again i mean there really are so many choices that are still available to community colleges and i think it's important to note that there's no evidence in this record about fiscal distress there's agreement on the facts that the college saved substantial amounts of money by  manch adjuncts instead of the full time faculty but there is not a record about financial distress and it would be inappropriate for the court to be considering the statute in light of assumptions about fiscal stress  may be be setting community colleges the other point i'd like to make is that the dissent in this case is very thin on analysis judgment justice itself undermines the different sense opinion and then the dissent also says that he disagrees that the defendants construction would evade the purposes of tenure because the defendant was merely trying to continue to provide education in light of the budget crisis again that is not in the record that there was a budget crisis the defendant's construction absolutely invades the purposes of tenure because it allowed it would take into its logical extreme allow the college to lay off all tenured faculty and replace them with at junks at much lower cost but then what in the world does is the purpose of the tenure provisions i mean we know through the p a tock case that looked in turn to the school code cases that the purposes of tenure in the community college is to provide a stable stable education to the students to attract and retain high quality caliber high quality faculty and to provide job security and if a community college could simply decide we're going to get rid of all of our tenured faculty all of our faculty over full time faculty and we're just going to offer through adjuncts the defendants construction would allow that and that would render tenure meaningless if if there are no more questions i think i'm  replace them with at junks the community colleges have been operating under the bridge in case for a rd of a century that hasn't happened and it's not going to happen and we know that by a matter of common knowledge  the faculty is the heart of a college or university faculty have offices faculty are available to students faculty set policies with respect to that particular college or subdivision of that college is essential to colleges if they have a strong faculty and it's only when economic necessity requires that they're going to employ adjunct s to teach courses for which they don't have room for regular faculty going back to the st point of saying that we have mischaracterized the issue and the issue is whether or not you can replace all of a faculty members courses with address that came as a surprise to us because that was not the way the issue was framed below there's an agreed statement of facts in this oy part time adjured thankfully teach courses the plaintiffs were competent to teach did say teach all courses it simply said teach courses are the same in their brief below their appellant brief below the issue presented for review they stated as where the college would lay off tenured faculty and then employ adjunct faculty to teach the courses previously taught by the ten year back who did say teach all the courses but in any event your honor i think that that doesn't make any difference either the statute applies that part of the statute applies to adjuncts or it doesn't and we say it doesn't to answer just as garners question about legislative history i just look at it again i do not see any discussion in the legislative history about part time faculty but i i i will leave that to the court and looking back over the legislative history but  i say again that issue was simply not before the legislature the only policy that we can infer from the legislature is a general policy to provide a uniform system of tenure for community college faculty there was no discussion and and really no perceived intent to regulate down to the level of  interpretation passed by the teachers that the writing of tenured faculty members to bump non tenured or less senior employees includes the right to bump them from certain courses as opposed to the positions in the college curriculum which are held by that they had been laid off dismissed but that horses were being taught by part time teachers that was the the problem with respect to each of those plaintiffs bije m is not policies the domain of the legislature it's the legislatures policy that counts of course task is to say what this stage it means or doesn't mean what it says or doesn't say but if there is a policy consideration that's relevant to the interpretation issues it is this hiring and staffing decisions may be driven by budget or they may be driven by a moment but decisions as to what courses to offer and who should teach those courses are academic decisions academic decisions should be made by academics not by the legislature and you could string this statute we ask  adopt the interpretation the donnelley the most rational but also the gives community colleges the freedom to manage their resources we should not presume or infer that the general assembly intended to regulate the hiring of adjuncts and the statute was function is to prevent colleges from a place the scene or frankly with junior faculty we should not restrict academic decisions unless a statute without doubt clearly requires o