Cook County Republican Party v. Illinois State Board of Elections

Docket No. 106139.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE COOK COUNTY REPUBLICAN PARTY, Appellant, v. THE

ILLINOIS STATE BOARD OF ELECTIONS et al., Appellees.

Opinion filed January 23, 2009.

JUSTICE KILBRIDE delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Thomas, Garman, and

Karmeier concurred in the judgment and opinion.

Justices Freeman and Burke took no part in the decision.

OPINION

The Cook County Republican Party filed several complaints with

the Illinois State Board of Elections (Board) alleging violations of the

Election Code (Code) (10 ILCS 5/1–1 et seq. (West 2004)), by

Democratic Party ward organizations, ward chairmen, and ward

committeemen. Following closed preliminary hearings, the Board

dismissed the complaints on tie votes. The appellate court determined

that the dismissals were subject only to limited judicial review of

whether the Board acted contrary to law in dismissing the complaints.

We hold that the dismissals are subject to judicial review of all

questions of law and fact presented by the record, including whether

the complaints were filed on justifiable grounds under section 9–21

of the Code (10 ILCS 5/9–21 (West 2004)). Accordingly, we reverse

the appellate court’s judgment and remand for further proceedings.

I. BACKGROUND

On August 30, 2005, the Cook County Republican Party (Party)

filed eight complaints with the Board alleging campaign finance

violations by the respondent Democratic Party ward organizations,

ward chairmen, and ward committeemen. The various complaints

asserted that the respondents violated the Code by: (1) using publicly

funded office space for political activities; and (2) failing to report the

use of office space as an “in-kind” contribution on campaign financial

disclosure statements filed with the Board. Two of the complaints

also alleged that some of the respondents violated the Code by failing

to file a political committee statement of organization.

Closed preliminary hearings were held on the complaints over

several days. Following those hearings, the hearing officer found

justifiable grounds for the complaints. Accordingly, the hearing

officer recommended proceeding to public hearings before the Board.

The Board then held a closed executive session to consider the

complaints. See 10 ILCS 5/9–21 (West 2004). The Board heard

arguments from the parties and also asked for a recommendation from

its general counsel. The Board’s general counsel recommended

dismissal of the complaints, explaining:

“[L]ooking through all the evidence submitted, I don’t see

in here where they have alleged the specific facts that indicate

that political activity, at least to the extent that has been

suggested by the complainant’s counsel, took place in these

offices. I mean, everything that I’ve read and the testimony

that I read–certainly not in the complaint itself. *** I don’t

think the facts as alleged were specific enough to warrant a

declaration that this was filed on justifiable grounds. *** I’m

not sure that a ten-minute visit in August would be enough to

establish what they’re alleging. I note that the affidavit stated

clearly that no political activity was observed. There was no

literature, no–really there wasn’t really anything there

substantively that caused me to believe, oh, yes, without a

doubt, this is a functioning political ward office that is not

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declaring the receipt of in-kind contributions. There had been

a couple cases where I think it was close with the testimony

of the witnesses saying that a nominal level of activity, a

meeting right before the election with precinct captains or a

drop-off point for literature; but, even if that were true, that’s

still–breaking that down, would that be an in-kind

contribution in excess of $150 that would have to be

reported?”

In a series of four-to-four votes, the Board failed to determine that

the complaints were filed on justifiable grounds. See 10 ILCS 5/9–21

(West 2004). The Board subsequently filed orders dismissing the

complaints for “lack of justifiable grounds.” The dismissal orders

stated that the Board did not adopt the findings of the hearing officer,

but adopted the recommendation of its general counsel that

insufficient grounds existed to warrant public hearings.

The Party appealed the Board’s dismissal of the complaints

directly to the appellate court, as provided by section 9–22 of the

Code (10 ILCS 5/9–22(1) (West 2004)). The appellate court ordered

supplemental briefing on the scope of review. In their supplemental

briefs, the Board and the Party agreed that the appellate court’s

review extended to whether the complaints established justifiable

grounds to warrant a public hearing. The Party also argued that

section 9–21 of the Code (10 ILCS 5/9–21 (West 2004)) violates the

constitutional right to equal protection if the merits of tie-vote

dismissals are not reviewable.

The appellate court determined the Board made no factual

findings, and the court had no authority to determine de novo whether

the complaints were filed on justifiable grounds. Therefore, the

appellate court concluded that its review of the tie-vote dismissals

was limited to whether the Board acted contrary to law. The appellate

court found the Board clearly acted in compliance with section 9–21

of the Code in dismissing the complaints after failing to determine

that they were filed on justifiable grounds. The court further held that

the Party forfeited its argument on the constitutionality of section

9–21 because it was raised for the first time in the supplemental

briefing ordered by the court. Accordingly, the appellate court

affirmed the Board’s dismissal of the complaints. 378 Ill. App. 3d

752.

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Justice Gordon concurred in part and dissented in part, asserting

that section 1A–7 of the Code (10 ILCS 5/1A–7 (West 2004)) does

not allow the Board to adopt any findings or reasons for its dismissal

without a five-vote majority. Thus, there is essentially nothing for the

appellate court to review in cases of tie-vote dismissals. Justice

Gordon, therefore, concluded that tie-vote dismissals are not

reviewable. Given that conclusion, Justice Gordon would have

considered the Party’s equal protection argument and declared section

9–21 unconstitutional because deadlock dismissals are not subject to

judicial review, but dismissals by majority vote are reviewable. 378

Ill. App. 3d at 764 (Gordon, J., concurring in part and dissenting in

part).

We allowed the Party’s petition for leave to appeal. 210 Ill. 2d R.

315(a). The respondents subsequently filed a motion to dismiss the

appeal under Supreme Court Rule 361 (210 Ill. 2d R. 361). In their

motion, the respondents asserted that the final orders issued by the

Board did not refer to tie or nonmajority votes. Thus, according to the

respondents, this court must presume that the complaints were

dismissed based on majority votes. The respondents argued that the

appeal should be dismissed because it is premised upon reviewing the

effect of tie votes by the Board, but the final orders do not reflect tie

votes. We entered an order taking the respondents’ motion with the

case.

II. ANALYSIS

We first address the respondents’ motion to dismiss this appeal.

The motion essentially argues that the appeal should be dismissed

because it is premised on reviewing the effect of a tie vote by the

Board, but the record does not reflect that vote.

We recognize that the Board’s final orders do not facially indicate

tie votes on the complaints. Further, the orders state that the

complaints were “dismissed due to lack of justifiable grounds.” A

deadlock vote technically results in dismissal for failure to determine

that the complaints were filed on justifiable grounds. 10 ILCS 5/9–21

(West 2004). Thus, viewed in isolation, the Board’s orders could

indicate that the complaints were dismissed by a majority vote.

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Despite any shortcomings in the Board’s final orders, we are not

required to ignore the clear evidence of the tie votes in the hearing

transcript. See People v. Peeples, 155 Ill. 2d 422, 496 (1993) (an oral

statement controls when the report of proceedings and common law

record conflict). A review of the transcript of the closed preliminary

hearing clearly indicates the Board voted four-to-four on each of the

complaints. We will not disregard the clear vote shown in the

transcript of the hearing absent plain evidence that it did not reflect

the Board’s true vote. While the final orders should have stated the

complaints were dismissed for “failure to determine” that they were

filed on justifiable grounds, that error does not conclusively show the

complaints were dismissed by majority vote of the Board. Thus, we

find the record establishes that these complaints were dismissed on

tie votes. Given that finding, we deny the respondents’ motion to

dismiss the appeal.

On appeal to this court, the Party argues that the tie-vote

dismissals by the Board are subject to judicial review on the merits.

Alternatively, if those dismissals are denied judicial review, the Party

contends that the Code violates the constitutional guarantee of equal

protection because complaints dismissed by majority vote receive full

review while those dismissed by tie vote would not be reviewable.

The Party further argues that de novo review is appropriate here

because the Board did not take any action or make any findings of

fact or conclusions of law. Thus, the appellate court had no Board

action or decision to grant deference. The Party also contends that the

evidence presented at the closed preliminary hearings established the

justifiable grounds required to proceed to a public hearing on each of

the complaints.

As in the appellate court, the Board agrees that tie-vote dismissals

are reviewable on the merits under the Code. Those dismissals may

be reviewed by assessing the members’ reasons for voting to dismiss

the complaints. The dismissals should be reviewed for an abuse of

discretion because the statutory standard of “justifiable grounds”

amounts to a legislative grant of discretion to dismiss complaints

following a preliminary investigation. The Board further contends

that the orders and transcript of the hearing provide a sufficient record

to permit judicial review. The Board argues its orders should be

affirmed on the grounds stated in the general counsel’s

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recommendation adopted by the members voting to dismiss the

complaints.

The respondents advance several arguments in support of the

Board’s dismissal of the complaints for lack of justifiable grounds.

The respondents also contend that the Board’s tie-vote dismissals are

not judicially reviewable under section 9–21 of the Code. The

respondents maintain that the Board acts in an investigatory capacity

when conducting a closed preliminary hearing to determine whether

a complaint has been filed on justifiable grounds. According to the

respondents, the Board’s exercise of judgment and discretion in its

investigatory capacity must be “absolute, final and non-reviewable.”

The respondents also argue that denying judicial review of tie-vote

dismissals does not violate the constitutional right to equal protection

of the law.

We must first decide whether the tie-vote dismissals are subject

to judicial review under the Code. If those dismissals are reviewable,

we must determine the scope of review. These are questions of

statutory interpretation reviewed de novo. Murray v. Chicago Youth

Center, 224 Ill. 2d 213, 228 (2007). The fundamental rule of statutory

interpretation is to ascertain and give effect to the legislature’s intent.

Krautsack v. Anderson, 223 Ill. 2d 541, 552-53 (2006). The best

indication of the legislature’s intent is the statutory language given its

plain and ordinary meaning. People v. Jamison, 229 Ill. 2d 184, 188

(2008). We must construe a statute in a manner that upholds its

constitutionality if reasonably possible. People v. Molnar, 222 Ill. 2d

495, 508 (2006).

In reviewing the framework of the Code, we note several

significant sections. The Board consists of eight members. 10 ILCS

5/1A–2 (West 2004). Four members must be affiliated with the

Governor’s political party and four must be “affiliated with the

political party whose nominee for Governor in the most recent

general election received the second highest number of votes.” 10

ILCS 5/1A–2 (West 2004). Five votes are required for an action of

the Board to become effective. 10 ILCS 5/1A–7 (West 2004).

Any person may file a verified complaint with the Board alleging

a campaign finance violation. 10 ILCS 5/9–20 (West 2004). Upon

receiving a complaint, the Board holds a closed preliminary hearing

to determine whether it “appears to have been filed on justifiable

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grounds.” 10 ILCS 5/9–21 (West 2004). We note that this court

interpreted a prior version of section 9–21 in Illinois Republican

Party v. Illinois State Board of Elections, 188 Ill. 2d 70 (1999). At

that time, section 9–21 provided “ ‘[i]f the Board determines that the

complaint has not been filed on justifiable grounds, it shall dismiss

the complaint without further hearing.’ ” Illinois Republican Party,

188 Ill. 2d at 72-73, quoting 10 ILCS 5/9–21 (West 1996). Given that

language, we interpreted the Code to require a public hearing if a

five-member majority failed to dismiss the complaint as not filed on

justifiable grounds. Illinois Republican Party, 188 Ill. 2d at 73-75.

Following our decision in Illinois Republican Party, the

legislature amended section 9–21 by enacting Public Act 93–574

(Pub. Act 93–574, §5, eff. August 21, 2003). The amendment altered

the critical language interpreted by this court in Illinois Republican

Party. Section 9–21 now provides, “[i]f the Board fails to determine

that the complaint has been filed on justifiable grounds, it shall

dismiss the complaint without further hearing.” (Emphasis added.) 10

ILCS 5/9–21 (West 2004). Thus, our interpretation of section 9–21 in

Illinois Republican Party has been superseded by the legislature

because the language of that statute has been fundamentally altered.

Under section 9–21, as amended, a complaint must be dismissed

if the Board fails to find that it was filed on justifiable grounds. 10

ILCS 5/9–21 (West 2004). In this case, the Board failed to determine

that the complaints were filed on justifiable grounds when it voted

four-to-four on that question. Thus, the Board complied with the clear

directive of section 9–21 by dismissing the Party’s complaints after

failing to determine that they were filed on justifiable grounds.

The Code further provides for judicial review. 10 ILCS 5/9–22

(West 2004). Section 9–22 states:

“Any party to a Board hearing, any person who files a

complaint on which a hearing was denied or not acted upon

within the time specified in Section 9–21 of this Act, and any

party adversely affected by a judgment of the Board may

obtain judicial review, which shall be governed by the

provisions of the Administrative Review Law ***.” 10 ILCS

5/9–22 (West 2004).

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Section 9–22 clearly allows a party adversely affected by a

judgment of the Board to seek judicial review. The Board’s orders

state they are “final and appealable.” Hence, the orders are judgments

of the Board. The Party was adversely affected because the orders

resulted in dismissal of its complaints without a public hearing. Those

dismissals are, therefore, subject to judicial review under the plain

language of section 9–22. Accordingly, a plain reading of sections

9–21 and 9–22 compels us to conclude that the tie-vote dismissals of

these complaints are subject to judicial review in the appellate court

under the provisions of the Administrative Review Law.

Next, we must consider the scope of judicial review of the

Board’s dismissals. The appellate court held that its review was

limited to whether the tie-vote dismissals were in compliance with

section 9–21. The review consisted of counting the votes of the Board

members to determine whether the Board properly dismissed the

complaints. See 10 ILCS 5/9–21 (West 2004). The appellate court

held that the Board complied with section 9–21 and, therefore,

affirmed the Board’s dismissals.

Initially, we note that the appellate court’s review cannot be

deemed meaningful. The review performed by the appellate court was

a simple ministerial act of confirming the Board’s decision was

correct based on the vote count. The legislature cannot have meant for

“judicial review” by the appellate court to be limited in that manner.

The legislature plainly intended tie-vote dismissals to be subject

to judicial review under section 9–22 of the Code. The legislature did

not limit the judicial review of tie-vote dismissals in any way. See 10

ILCS 5/9–22 (West 2004). Rather, section 9–22 states that judicial

review is governed by the Administrative Review Law. 10 ILCS

5/9–22 (West 2004). The scope of review under the Administrative

Review Law extends to “all questions of law and fact presented by

the entire record before the court.” 735 ILCS 5/3–110 (West 2004).

We must, therefore, conclude that the legislature intended the tie-vote

dismissals to be subject to judicial review of whether the complaints

were filed on justifiable grounds.

Unlike the appellate court, we do not believe the absence of

specific factual findings adopted by a majority of the Board prevents

or impedes review. On this point, we find instructive the decision in

Democratic Congressional Campaign Committee v. Federal Election

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Comm’n, 831 F.2d 1131 (D.C. Cir. 1987). In that case, the six-

member Federal Election Commission (FEC) dismissed a complaint

based on a deadlock vote. The Court of Appeals determined that the

governing Act’s judicial review provision did not preclude review of

dismissals based on deadlock votes. Democratic Congressional

Campaign Committee, 831 F.2d at 1133. The Court, therefore, held

that the dismissal was reviewable in the circumstances of that case.

Democratic Congressional Campaign Committee, 831 F.2d at 1132.

Because the reasons for the commissioners’ votes were not contained

in the record, the matter was remanded to the FEC for a statement of

the reasons for the dismissal. Democratic Congressional Campaign

Committee, 831 F.2d at 1135.

The Court of Appeals later reaffirmed its decision in Democratic

Congressional Campaign Committee. See Common Cause v. Federal

Election Comm’n, 842 F.2d 436 (D.C. Cir. 1988). In Common Cause,

the court emphasized that a statement of reasons for a deadlock

dismissal is necessary to allow meaningful judicial review of the

decision not to proceed. Common Cause, 842 F.2d at 449.

We agree with the reasoning of the federal Court of Appeals that

meaningful review of a deadlock vote may be accomplished by

examining the reasons of the Board members voting to dismiss the

complaint. We do not believe a remand to the Board for a statement

of the reasons for dismissal is necessary in this case, however.

Under the Administrative Review Law, an “administrative

decision” includes an order affecting the legal rights of the parties and

terminating the proceedings. 735 ILCS 5/3–101 (West 2004). Further,

this court has held that a decision by an administrative agency must

contain findings to allow judicial review of the agency’s decision.

Reinhardt v. Board of Education of Alton Community Unit School

District No. 11, 61 Ill. 2d 101, 103 (1975). The grounds for the

agency’s action must be “ ‘clearly disclosed and adequately

sustained.’ ” Reinhardt, 61 Ill. 2d at 103, quoting Securities &

Exchange Comm’n v. Chenery Corp., 318 U.S. 80, 94, 87 L. Ed. 626,

636, 63 S. Ct. 454, 462 (1943).

Here, the final orders state that the Board adopted the

recommendation of its general counsel. In its brief to this court, the

Board asserts that “the orders are judicially reviewable and need not

be remanded” to the Board because the reasons of the members

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voting to dismiss the complaints are reflected in the general counsel’s

recommendation. The general counsel’s recommendation contains a

detailed explanation for finding the complaints were not filed on

justifiable grounds. We believe the general counsel’s

recommendation sufficiently discloses the grounds for the decision by

the members voting to dismiss the complaints. Thus, judicial review

may be accomplished in this case by reviewing the reasons for

dismissal as stated in the general counsel’s recommendation.

Finally, we must define the standard for judicial review of the

Board’s dismissals. An electoral board is viewed as an administrative

agency. Cinkus v. Village of Stickney Municipal Officers Electoral

Board, 228 Ill. 2d 200, 209 (2008). In Cinkus, we discussed and

reaffirmed three standards for reviewing administrative agency

decisions. Cinkus, 228 Ill. 2d at 210-12, citing City of Belvidere v.

Illinois State Labor Relations Board, 181 Ill. 2d 191 (1998). The

standards are based upon the three types of questions encountered on

review of an agency decision, including: (1) questions of fact; (2)

questions of law; and (3) mixed questions of fact and law. Cinkus,

228 Ill. 2d at 210.

An administrative agency’s findings on questions of fact will be

reversed only if they are against the manifest weight of the evidence.

Cinkus, 228 Ill. 2d at 210. An agency’s decision on a question of law

is reviewed de novo. Cinkus, 228 Ill. 2d at 211. An agency’s

application of a rule of law to established facts is a mixed question of

fact and law that will not be reversed unless it is deemed “clearly

erroneous.” Cinkus, 228 Ill. 2d at 211. A decision is “clearly

erroneous” only if the reviewing court is left with a “ ‘ “definite and

firm conviction that a mistake has been committed.” ’ ” Cinkus, 228

Ill. 2d at 211, quoting AFM Messenger Service, Inc. v. Department of

Employment Security, 198 Ill. 2d 380, 391-95 (2001), quoting United

States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed.

746, 766, 68 S. Ct. 525, 542 (1948).

The parties present diverse arguments on the appropriate standard

of review. The Party argues that the dismissals should be reviewed de

novo because the Board did not make a decision that may be granted

deference. Conversely, the Board argues that the dismissals should be

reviewed for abuse of discretion. According to the Board, the

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“justifiable grounds” standard grants it discretion to dismiss

complaints after preliminary investigations.

The question here involves application of the “justifiable

grounds” standard to the facts elicited at the preliminary hearing. That

is not a question of law subject to de novo review. Moreover, de novo

review would interfere with the Board’s function of determining

whether the facts establish that the complaints were filed on

justifiable grounds. See Abrahamson v. Illinois Department of

Professional Regulation, 153 Ill. 2d 76, 88 (1992) (it is not a court’s

function on administrative review to reweigh evidence or make an

independent determination of the facts). Accordingly, we reject the

Party’s argument that the dismissals are subject to de novo review.

We also disagree with the Board’s contention that abuse of

discretion is the proper standard of review. We do not believe

application of the “justifiable grounds” standard involves an exercise

of discretion by the Board. The Administrative Code provides that the

question addressed at a closed preliminary hearing is “whether the

complaint was filed on justifiable grounds, and having some basis in

fact and law.” 26 Ill. Adm. Code §125.252 (as amended at 14 Ill. Reg.

10832, eff. June 22, 1990). We agree that the statutory standard of

“justifiable grounds” focuses on the complaint’s factual and legal

sufficiency. The essential inquiry is whether the complaint is factually

and legally justified. A decision based on those factors does not

require the exercise of discretion. Rather, the Board is only required

to apply the Election Code provisions to the facts presented at the

closed preliminary hearing to determine whether the complaint was

filed on justifiable grounds.

In our view, this inquiry presents a mixed question of fact and

law. As noted, an agency’s decision on a mixed question of fact and

law is reviewed for clear error. Cinkus, 228 Ill. 2d at 211. The

standard of review is deferential, providing for reversal only when the

reviewing court has a definite and firm conviction that a mistake has

been made. Cinkus, 228 Ill. 2d at 211.

In sum, we conclude that the Code requires judicial review of all

issues of law and fact presented by the record, including whether the

complaints were filed on justifiable grounds. The dismissal of the

complaints may be reviewed by considering whether the members

voting to dismiss clearly erred in determining that they were not filed

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on justifiable grounds. The reasons for dismissal adopted from the

general counsel’s recommendation may be reviewed for clear error.

The Board’s dismissals should not be overturned unless the court is

left with a “definite and firm conviction that a mistake has been

committed.” Cinkus, 228 Ill. 2d at 211.

Given our construction of the Code providing for judicial review

of deadlock dismissals, it is unnecessary to consider the parties’

arguments challenging the Code’s constitutionality or whether those

arguments were procedurally defaulted. Additionally, while the

parties argue whether the complaints were filed on justifiable

grounds, we believe the appellate court should first review those

issues. We therefore remand this matter to the appellate court to

conduct the judicial review of the Board’s decisions in accordance

with this opinion.

III. CONCLUSION

For the foregoing reasons, we conclude that the Code requires

judicial review of whether the complaints were filed on justifiable

grounds. Accordingly, the appellate court’s judgment affirming the

dismissals of the complaints is reversed, and the matter is remanded

to the appellate court to conduct the judicial review of the dismissals

consistent with this opinion.

Reversed and remanded with directions.

JUSTICES FREEMAN and BURKE took no part in the

consideration or decision of this case.

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