Appeal from the Circuit Court of Cook County; the Hon. James
C. Murray, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This appeal is from the trial court's affirmance in an administrative review action of an order of the Regional Board of School Trustees of Cook County (the Board) dismissing for lack of jurisdiction plaintiffs' petition for detachment brought pursuant to section 7-6 of the School Code. (Ill. Rev. Stat. 1979, ch. 122, par. 7-6.) Plaintiffs contend that (1) the order dismissing their petition is void; (2) the Board's prior ruling that it had jurisdiction was final and could not be reconsidered; (3) the Board improperly (a) ruled that requirements of the Election Code relating to the form of petitions and to the challenge of voter registrations (Ill. Rev. Stat. 1979, ch. 46, pars. 28-3, 4-12) apply to a petition filed pursuant to the School Code and (b) applied these new requirements retroactively; and (4) the Board's findings of fact are against the manifest weight of the evidence. Defendants cross-appeal from an earlier order of the trial court finding that the Board's initial denial of plaintiffs' petition was against the manifest weight of the evidence. They contend that plaintiffs failed to sustain their burden of proving that the benefits of detachment clearly outweigh the detriments.
On September 5, 1979, plaintiffs filed a petition with the Board seeking detachment of certain described territory (the detachment area) from Community Consolidated School District No. 65 (District 65), which includes all of the city of Evanston and part of the village of Skokie, and its annexation to Community Consolidated School District No. 68 (District 68), which includes portions of Skokie. The petition consisted of four pages describing the detachment area together with statements in support of detachment, and 186 pages containing 1,928 signatures. It alleges that the detachment area receives other essential community services from Skokie and enjoys a "community of interest" with Skokie because it is located entirely therein; and that the benefits of detachment to the children in the affected area and to District 68 outweigh any detriment to District 65.
District 65 objected to the jurisdictional sufficiency of the petition, and at a series of hearings held to resolve that issue contended that there were 2,858 registered voters living in the detachment area, the number listed in the official Cook County precinct election binders on the date the petition was filed. It further argued that plaintiffs needed the signatures of 1,928 registered voters in order to meet the requirements of the School Code. (Ill. Rev. Stat. 1979, ch. 122, par. 7-1.) Plaintiffs acknowledged that of the 1,928 signatures on their petition, only 1,667 were registered voters living in the detachment area, but contended that there were 2,268 voters residing therein, not 2,858, and they therefore needed only 1,512 signatures.
The testimony of several witnesses established that plaintiffs' lower figure was arrived at in the following manner: working from an April 1979 official precinct list showing 2,867 registered voters in the detachment area, circulators visited or called each address listed thereon and asked about each registered voter shown as residing at that address; if informed that the person in question was dead or had moved, the circulators crossed the name off the list; 597 names were removed by this process. The witnesses admitted that they did not have personal knowledge whether the voters in question had in fact died or moved, and for the most part they could not identify the person who provided the information. District 65 was not allowed to cross-examine the circulators with regard to all of the voters excluded after the Board determined that the testimony concerning each of the 597 names would be similar. However, District 65 filed its own survey purporting to show that 93 voters excluded by plaintiffs were in fact registered voters residing in the detachment area when the petition was filed, and that 35 registered voters were not on the list used by plaintiffs. The Board did not allow testimony with regard to this survey, and later stated that it had not even looked at that evidence in making its initial determination on jurisdiction. Five circulators further testified that, collectively, they obtained 80% of the signatures. Registered voters were shown the four-page detachment proposal, and its purpose was explained to them before they were asked to sign. If all of the registered voters residing at a particular address were not at home when the circulators stopped, a petition was left to be signed and mailed. These mail-in pages, which garnered 158 signatures, contained a short statement of the purpose of the petition but did not describe the detachment area.
During the course of these hearings, the Board eliminated some signatures which it determined were duplicates, illegible, or signed by proxy. It then found that the petition contained 1,565 valid signatures *fn1 as of September 5, 1979, accepted plaintiffs' contention that there were 2,268 registered voters residing in the detachment area on that date, and concluded that it had jurisdiction to consider the merits of the petition. Defendants' contention that the form of the petition did not meet the requirements of section 28-3 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 28-3) was rejected after the Board received an opinion from the assistant legal advisor of the State Board of Education that the Election Code was inapplicable to detachment proceedings under the School Code.
At a separate hearing on the merits of the petition, plaintiffs presented several witnesses in support of detachment. After District 65 had presented only one of its witnesses, the Board concluded that it had heard sufficient evidence, voted to deny the petition, and terminated the hearing. Plaintiffs appealed, and the trial court found that the Board's decision was against the manifest weight of the evidence, reversed its order, and remanded the action for further proceedings. The trial court further ordered that "[i]n the event the board shall elect to reconsider its prior rulings on the question of jurisdiction, the board shall consider new evidence together with the evidence already submitted on this question."
On remand, the Board did elect to reconsider its rulings with regard to jurisdiction and asked each side to submit proposed findings of fact and conclusions of law on that issue prior to further hearings. On October 5, 1981, the Board heard testimony on District 65's survey of voters previously filed with the Board but not considered, and evidence that one petitioner did not see the detachment proposal prior to signing the petition, and that the purpose of the petition was misrepresented to her. Plaintiffs then presented evidence that 41 names previously stricken from the petition as not being registered voters were in fact registered, and the testimony of a graphologist who disputed the Board's prior determination that seven signatures were signed by proxy.
Based on the foregoing evidence as well as evidence presented at prior hearings, the Board determined that it did not have jurisdiction of this matter and dismissed the petition. Its findings of fact and conclusions of law issued subsequent to that decision set forth four distinct bases for the ruling. The Board concluded that, since the School Code was silent on the question of the form of a valid petition and the means of determining the number of registered voters residing in the detachment area, the applicable standards were those contained in the Election Code. It determined that the petition presented was not in the form required by the Election Code, and that the survey conducted by plaintiffs was not the proper method of challenging and removing names from the official record of registered voters. It further decided that even if the Election Code did not otherwise apply, the Board should adopt the requirements thereof as its own standards in determining the validity of the petition. Finally, the Board ruled that if plaintiffs' survey were allowed for purposes of reducing the number of registered voters, then defendants' survey must likewise be allowed to add registered voters to that list. The trial court affirmed the Board's order, and this appeal followed.
• 1 Plaintiffs first contend that the Board was required to state its findings of fact and conclusions of law "on the record" as it did during prior hearings, and that its failure to do so renders the order void. They maintain that since the record does not reflect the Board's reasoning, we must presume that its decision was arbitrary and capricious.
Plaintiffs do not cite, nor has our own research discovered, any case or statute supporting their position. While it is true that an agency's findings must be based on evidence of record and uninfluenced by considerations dehors the record (Wheeler v. County Board of School Trustees (1965), 62 Ill. App.2d 467, 210 N.E.2d 609), there appears to be no rule that the findings themselves must be made "on the record," i.e., during the course of the hearing. Furthermore, we believe that adoption of such a rule would be contrary to the function of an agency acting, as here, in a quasi-judicial capacity. Particularly where the facts are complex and the evidence extensive and contradictory, the agency must be afforded an opportunity to deliberate and consider all of the evidence before making its findings. We realize that, in the instant case, the Board made several findings on the record at prior hearings; however, we also note that these "instant rulings" on factual matters may have been the cause of its initial failure to consider the evidence of defendants' survey. If the findings are to be based on the record, they should be based on the entire record, not just on the last-heard evidence.
• 2 It appears to us that the real issue here is not whether findings must be made on the record, but whether the Board's action must be presumed arbitrary and capricious because it issued its decision before it made any express findings of fact and conclusions of law. At the close of evidence, the Board heard arguments of counsel and then immediately voted to dismiss the petition. Plaintiffs theorize that the decision therefore must have been arbitrary. The Board apparently makes a practice of ruling before making any findings, since the same procedure was followed in issuing its prior order denying plaintiffs' petition. For the reasons noted above, we agree that this practice is ill-advised. However, we have perused the record with regard to the order dismissing the petition, and it indicates that the Board had reviewed the transcripts of the earlier hearings as well as proposed findings of fact and conclusions of law from each side setting forth their respective positions on the issue of jurisdiction. The testimony at the final hearing was neither extensive nor complicated, and given the fact that the Board had an opportunity to thoroughly review its position, the evidence, and the arguments of the parties, we do not believe that, in the instant case, its decision was unreasoned or arbitrary.
• 3, 4 Plaintiffs also argue that the order is void because the Board adopted, almost without change, defendants' proposed findings and conclusions. In support thereof, they cite several Federal cases involving similar practices by district court judges and argue that rules established therein should be adopted in reviewing agency decisions. However, the cases relied upon clearly hold that the adoption of findings and conclusions authored by the prevailing party does not require reversal of a decision. In United States v. El Paso Natural Gas Co. (1964), 376 U.S. 651, 656, 12 L.Ed.2d 12, 17, 84 S.Ct. 1044, 1047, the trial court had adopted without change the prevailing party's proposed findings of fact and conclusions of law. The Supreme Court noted that "[t]hose findings, though not the product of the workings of the district judge's mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence." (See also Loctite Corp. v. Fel-Pro, Inc. (7th Cir. 1981), 667 F.2d 577.) While several courts>, as plaintiffs point out, have expressed disapproval of this practice (see, e.g., Flowers v. Crouch-Walker Corp. (7th Cir. 1977), 552 F.2d 1277, 1284), others acknowledge that it is a common and useful practice in complicated cases (see Lektro-Vend Corp. v. Vendo Co. (7th Cir. 1981), 660 F.2d 255, 263, cert. denied (1982), 455 U.S. 921, 71 L.Ed.2d 461, 102 S.Ct. 1277). Moreover, contrary to plaintiffs' assertion, the practice does not necessitate imposing a stricter standard of review. In Norfolk & Western Ry. Co. v. B.I. Holser & Co. (7th Cir. 1980), 629 F.2d 486, the court recognized that the trial court's findings of fact "[did] not reflect the original products of a disinterested mind" (629 F.2d 486, 489); nevertheless, it adhered to the usual standard applied in reviewing the trial court's findings of fact, a standard analogous to the manifest weight standard adopted by our courts> in reviewing an agency's findings of fact. (See also Flowers v. Crouch-Walker Corp. (7th Cir. 1977), 552 F.2d 1277.) It appears that the only effect of adopting one party's findings and conclusions is ...