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02/23/98 ILLINOIS REPUBLICAN PARTY v. STATE BOARD

ILLINOIS REPUBLICAN PARTY, PETITIONER,
v.
STATE BOARD OF ELECTIONS OF THE STATE OF ILLINOIS, AND THE DEMOCRATIC PARTY OF ILLINOIS, RESPONDENTS, AND ILLINOIS REPUBLICAN PARTY, PETITIONER,
v.
STATE BOARD OF ELECTIONS OF THE STATE OF ILLINOIS, AND THE UNITED DEMOCRATS OF ILLINOIS, RESPONDENTS.



Petition for Review of an Order of the Illinois State Board of Elections Nos. 97CD1, 97CD2

The opinion of the court was delivered by: Justice McCULLOUGH delivered the opinion of the court:

This is a direct appeal of orders of the Illinois State Board of Elections (Board) dismissing the complaints of the Illinois Republican Party (Republican Party), alleging violations of the campaign disclosure requirements of the Election Code (10 ILCS 5/9-1 et seq. (West 1996)), against respondents, Democratic Party of Illinois (Democratic Party) and United Democrats of Illinois (United Democrats). Although the Board is properly a respondent for the purpose of appeal, it has filed no brief and any reference to "respondents" refers to the Democratic Party and the United Democrats and not the Board. The complaints alleged the United Democrats violated section 9-3 of the Campaign Disclosure Act, requiring the filing of a statement of organization by every political committee (10 ILCS 5/9-3 (West 1996)), and that both respondents violated section 9-10 of the Election Code, requiring the filing of reports of campaign contributions and expenditures of political committees (10 ILCS 5/9-10 (West 1996)), all in connection with the November 1996 general election. The dismissal orders were based not on the merits of the complaints, but on the Board's "deadlock" vote and consequent inability to achieve the statutorily mandated five-member vote to enable any action of the Board to become effective. See 10 ILCS 5/1A-7 (West 1996). Appeal was brought directly to this court pursuant to section 9-22 of the Election Code. 10 ILCS 5/9-22 (West 1996).

The Republican Party requests that this court reverse the orders of the Board, enter a finding that the complaints were filed on "justifiable grounds," and remand to the Board with directions that a public adjudicative hearing be held on the complaints, or, in the alternative, that we remand to the Board "for reconsideration and entry of proper findings." The respondents essentially contend the Board's dismissal is unreviewable and this court is without jurisdiction to fashion any relief because it can neither expropriate one of the "deadlock" votes and substitute its own, nor compel a majority vote.

The procedural background is as follows. Following receipt of the complaints, an investigatory hearing was held before a hearing examiner to determine whether the complaints were filed on "justifiable grounds" and had some basis in law and fact. See 26 Ill. Adm. Code §125.252 (1996). Following submission of evidence and arguments by the parties, the hearing officer prepared a report to the Board expressing the opinion that the complaints were filed on "justifiable grounds" and recommending that the matter be subject to public adjudicative hearings. The Board's general counsel informed the Board of his agreement with the hearing officer's recommendation and his adoption of those remarks as his own.

The membership of the Board consists of eight members, four of whom are residents of Cook County and four of whom are residents outside Cook County. The membership as to each area shall be two affiliated with the same political party as the governor and two affiliated with the political party whose nominee for governor received the second highest number of votes. 10 ILCS 5/1A-2 (West 1996).

The Board met on March 17, 1997, to consider the complaints and the examiner's report. Counsel for both parties appeared and presented arguments on the evidence submitted to the examiner. A motion was made to find that the complaints were filed on "justifiable cause." Four members voted in favor of the motion and three against, so the Board did not achieve the five-vote majority necessary for any action of the Board to become effective (10 ILCS 5/1A-7 (West 1996)). The general counsel was asked what should be done to give the parties an order that was final for purposes of appeal. In response, a second motion was made, approved unanimously by the seven members present, "that the Board [,]having considered the complaint and being unable to agree by a vote of five upon a decision, *** dismisses the complaint for grounds of procedure and not on the merits." A written order was entered dismissing the complaints with no determination as to whether they were filed on justifiable grounds.

We first address the question of whether the Board's four-to-three vote, the basis for the unanimous vote dismissing the complaint, is reviewable by this court. This is an issue of first impression in Illinois and, as far as we have determined, no similar factual scenario has been addressed in a sister-state jurisdiction. There are two federal cases interpreting similar provisions of the federal election campaign act, which we invited the parties to brief following oral argument in this case. See Democratic Congressional Campaign Committee v. Federal Election Comm'n, 831 F.2d 1131 (D.C. Cir. 1987); Common Cause v. Federal Election Comm'n, 842 F.2d 436 (D.C. Cir. 1988).

The respondents contend that the 1970 Illinois Constitution creating the Board, and the Election Code pursuant to which the Board is organized, envision the likelihood of deadlock voting, since the Board's membership must be equally balanced between the two major political parties. See Ill. Const. 1970, art. III, §5; 10 ILCS 5/1A-2 (West 1996). Respondents conclude, therefore, that it is within the powers and prerogatives of the Board to resolve issues before it by deadlock vote and, absent any statutory method for breaking that deadlock, this court lacks the ability to alter the constitutional and statutory framework by which the Board has acted.

This contention is not persuasive or supported by the constitutional and statutory provisions. Article III, section 5, of the 1970 Illinois Constitution provides:

"A State Board of Elections shall have general supervision over the administration of the registration and election laws throughout the State. The General Assembly by law shall determine the size, manner of selection and compensation of the Board. No political party shall have a majority of members of the Board." Ill. Const. 1970, art. III, §5.

Various provisions of the Election Code outline a broad grant of power and duties of the Board in connection with the administration of the registration and election laws (10 ILCS 5/1A-8 (West 1996)), and expressly authorize the Board to conduct investigations and inquiries related to political campaign disclosure requirements (10 ILCS 5/9-18 (West 1996)), hold hearings on complaints alleging violation of the campaign disclosure requirements of the Election Code (10 ILCS 5/9-21 (West 1996)), impose civil penalties for noncompliance with its orders (10 ILCS 5/9-23 (West 1996)), and petition the circuit court to compel compliance with its orders (10 ILCS 5/9-24 (West 1996)). Nothing within this broad constitutional and statutory framework indicates that the Board may abdicate its obligation, by reason of deadlock vote, to address and ameliorate violations of the Election Code, and thereby forever insulate its failure to act from judicial review. Section 9-22 of the Election Code expressly provides:

"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 Judgement 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 1996).

The plain language of section 9-22 provides for judicial review to "any party," or "any person" filing a complaint, whether or not the Board has taken any action. There is nothing within that section, nor any other provision of the Election Code, that precludes judicial review in the event of a deadlock vote by the Board. The practical effect of the Board's decision in this instance, dismissal of the complaint for failure to achieve the requisite vote rather than on the merits, is to leave one party "adversely affected by a Judgement of the Board," a scenario indistinguishable from a dismissal based on a 5 to 3, or an 8 to 0 vote, an outcome fully encompassed by the language of section 9-22 of the Election Code. We therefore conclude that the Board's "deadlock" vote, four votes in favor and three votes against a finding of "justifiable grounds" for holding a public adjudicatory hearing, is reviewable by this court.

Our decision to review the Board's action is supported by cases from the federal courts addressing similar issues arising from complaints alleging violations, by political parties, of the federal election campaign act. In Democratic Congressional Campaign, the six-member Federal Election Commission (FEC) dismissed a complaint following a deadlock vote on a proposed finding that there existed "reason to believe" the National Republican Campaign Committee had violated certain spending limit provisions of the federal act. The general counsel for the FEC had recommended making such a finding based on FEC precedent. Judicial review provisions of the federal act provided that "ny party aggrieved by an order of the Commission dismissing a complaint *** or by a failure of the Commission to act on such complaint" during the statutory period could file a petition for review in the district court. 2 U.S.C. §437g(a)(8)(A) (1982). The court could declare the dismissal or the failure to act as contrary to law. 2 U.S.C §437g(a)(8)(C) (1982). In affirming the district court's finding that dismissal of the complaint was reviewable, the court of appeals found that nothing in the act's judicial review prescription precluded review of a dismissal due to deadlock. Democratic Congressional Campaign, 831 F.2d at 1133.

Similarly, in Common Cause the FEC entered a tie-vote dismissal of a complaint alleging violations of political campaign disclosure requirements. The general counsel's recommendation of going forward with the complaint was based on an assessment of what the law required in light of the factual allegations of the case, rather than on precedent. In finding the absence of precedent guiding the general counsel's recommendation not determinative, the court found no principled distinction between the facts in Democratic Congressional Campaign and those before it that ...


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