Appeal from the Circuit Court of Kane County; the Hon. John S.
Teschner, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Plaintiff, Kane County (the county), brought an action in the circuit court of Kane County seeking a declaratory judgment and an injunction restraining the Illinois State Labor Relations Board (the Board) from proceeding on a petition by the American Federation of State, County and Municipal Employees (AFSCME) requesting a representation election for the deputy clerks (deputy circuit clerks) in the office of the clerk of the circuit court of Kane County (the circuit clerk). The county's complaint named the Board, AFSCME and the circuit clerk as defendants, and the chief judge of the circuit court for the sixteenth judicial circuit (the chief judge), which includes Kane County, was subsequently joined as a defendant. The circuit court granted the injunction; the Board and AFSCME appealed; and the circuit clerk cross-appealed.
The parties have raised several issues in this appeal. They include whether the injunction was improperly granted because administrative remedies were not exhausted; whether the Board lacked jurisdiction to consider AFSCME's petition because the deputy circuit clerks were not "public employees" under the Illinois Public Labor Relations Act (PLRA) (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1601 et seq.); whether, if it is applicable to the deputy circuit clerks, the PLRA violates the separation of powers provision of our State constitution (Ill. Const. 1970, art. II, sec. 1); and whether the circuit clerk is the sole employer of the deputy circuit clerks. We reverse.
The application of the exhaustion doctrine to this case will be addressed first as the resolution of that question is determinative of the scope of our review. In cases involving administrative action, a party ordinarily must pursue all administrative remedies available prior to seeking relief in the courts. (Walker v. State Board of Elections (1976), 65 Ill.2d 543, 551-52.) The reasons for this rule are: "(1) it allows full development of the facts before the agency; (2) it allows the agency an opportunity to utilize its expertise; and (3) the aggrieved party may succeed before the agency, rendering judicial review unnecessary." (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill.2d 350, 358.) There are exceptions to the general rule requiring exhaustion of administrative remedies, two of which apply in the case at bar.
• 1, 2 One of these exceptions is that administrative remedies need not be exhausted where a party attacks an agency's assertion of jurisdiction "on its face and in its entirety on the ground that it is not authorized by statute." (Cable Television Co. v. Illinois Commerce Com. (1980), 82 Ill. App.3d 814, 817, 403 N.E.2d 287, 289, quoting Landfill, Inc. v. Pollution Control Board (1978), 74 Ill.2d 541, 551.) In the instant case, the issue raised with respect to whether deputy circuit clerks are "public employees" under the PLRA is such an attack on the Board's assertion of jurisdiction and so must be decided.
The other exception is applicable to certain kinds of attacks on the constitutionality of a statute. Courts of this State have formulated this exception in various ways. Some have said that it applies where a statute "is attacked as unconstitutional in its entirety" (see, e.g., Graham v. Illinois Racing Board (1979), 76 Ill.2d 566, 573) while others have said that it applies where a statute is attacked as unconstitutional in its terms (see, e.g., Walker v. State Board of Elections (1976), 65 Ill.2d 543, 552) or on its face (see, e.g., Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540, 548) as opposed to in its application. The latter formulations seem to more accurately reflect the scope of the exception, since the reason an attack on the constitutionality of a statute as applied must be made before an administrative agency in the first instance is that "[i]n such cases the validity or invalidity depends almost wholly upon a determination of factual matters in which the specialized agency is though to be more proficient." (Bank of Lyons v. County of Cook (1958), 13 Ill.2d 493, 495.) In the case at bar, the attack on the constitutionality of the PLRA will be considered only insofar as it concerns the validity of the statute on its face rather than in its application.
Having determined the scope of review in this case, it is next necessary to determine whether the PLRA gives the Board jurisdiction in labor matters concerning deputy circuit clerks. The circuit court held that it does not. It is appropriate to consider this question at this juncture since, as the circuit court recognized, a holding that the PLRA does not grant jurisdiction to the Board would make it unnecessary to decide the constitutional question.
The question of the Board's jurisdiction in this case turns on whether deputy circuit clerks are "public employees" under the PLRA. The PLRA defines "public employee" as follows:
"`Public employee' or `employee,' for the purposes of this Act, means any individual employed by a public employer, including interns and residents at public hospitals, but excluding all of the following: elected officials; executive heads of a department; members of boards or commissions; employees of any agency, board or commission created by this statute; non-State peace officers; all peace officers in the State Department of Law Enforcement; non-State firefighters and paramedics employed by fire departments and fire protection districts; employees appointed to State positions of a temporary or emergency nature; all employees of school districts and higher education institutions; managerial employees; short-term employees; confidential employees; independent contractors; and supervisors except as provided in this Act." (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1603(m).)
None of the specified exceptions seems to apply to deputy circuit clerks and, indeed, the parties do not claim that any does. Rather, the county contends deputy circuit clerks are "appointees" rather than "employees," and both the county and the chief judge contend deputy circuit clerks do not work for a "public employer."
• 3 The county's claim that "appointees" are not "employees" for purposes of the PLRA is without support in the statute. In fact, the legislature expressly excluded from the definition of public employee "employees appointed to State positions of a temporary or emergency nature." (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1603(m).) The quoted language demonstrates that the legislature intended the term "employee" to include persons appointed to positions. Indeed, to interpret the statute as generally not including appointees would render the quoted exclusion superfluous. Accordingly, it is apparent that the legislature intended the PLRA to apply to persons holding positions to which they were appointed unless the positions fall within one of the specific exclusions set forth in the statute.
The chief judge and the county also contend that the PLRA does not apply because the deputy circuit clerks are not employed by a "public employer." The PLRA provides:
"`Public employer' or `employer' means the State of Illinois; any political subdivision of the State, unit of local government or school district; authorities including departments, divisions, bureaus, boards, commissions or other agencies of the foregoing entities; and any person acting with the scope of his or her authority, express or implied on behalf of such entities in dealing with its employees; provided, however, that the term `Public employer' or `employer' as used in this Act does not mean and shall not include educational employers or employers as defined in the `Illinois Educational Labor Relations Act' enacted by the 83rd General Assembly as now or hereafter amended." (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1603(n).)
From the proceedings below, it appears that three entities claim to be the employer of the deputy circuit clerks: the county, the circuit clerk, and the chief judge. The county is clearly a "[unit] of local government" (Ill. Const. 1970, art. VII, sec. 1) and so, if the employer of the deputy circuit clerks, would be a "public employer" for purposes of the PLRA. The chief judge is a member of the judicial branch, and the circuit clerk is a non-judicial officer of the judicial branch of the government of the State of Illinois (Ill. Const., art. VI, secs. 7 and 18). The deputy circuit clerks are also non-judicial officers of the judicial branch of this State's government. (Ill. Const. 1970, art. VI, sec. 18; 3 Record of Proceedings, Sixth Illinois Constitutional Convention 2290-91 (hereinafter cited as Proceedings); 6 Proceedings 1061.) Under these circumstances, the offices of the chief judge and the circuit clerk can only be deemed to be authorities of the State of Illinois and the chief judge and circuit clerk, insofar as they act as employers in their official capacities, are "person[s] acting within the scope of [their] authority * * * on behalf of * * * [authorities of the State of Illinois] in dealing with its employees." (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1603(n); see Ellis v. Board of Governors (1984), 102 Ill.2d 387, 391-94 (Board of Governors of State Colleges and Universities held to be the State for purposes of sovereign immunity).) Therefore, to the extent that the chief judge or the ...