Illinois Campaign for Political Reform v. Illinois State Board of Elections
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THIRD DIVISION
March 4, 2009
No. 1-06-1694
ILLINOIS CAMPAIGN FOR POLITICAL
)
REFORM, an Illinois Not-For-Profit Corporation, , )
and KENT REDFIELD, an Illinois Citizen,
)
)
Petitioners-Appellants,
)
)
v.
)
)
ILLINOIS STATE BOARD OF ELECTIONS,
)
DANIEL W. WHITE, Executive Director; JESSE )
SMART, Chairman; WANDA REDNOUR, Vice )
Chairman; PATRICK BRADY, JOHN KEITH,
)
WILLIAM McGUFFAGE, ALBERT PORTER,
)
BRYAN SCHNEIDER, ROBERT WALTERS,
)
Members; and ILLINOIS COALITION FOR
)
JOBS, GROWTH AND PROSPERITY, an
)
Illinois Not-For-Profit Corporation, GREGORY
)
BAISE, Treasurer,
)
)
Respondents-Appellees.
)
Petition for Review from
the Illinois State Board of Elections.
No. 05 CD 003
SUPPLEMENTAL OPINION
JUSTICE QUINN delivered this supplemental opinion of the court:
This matter comes before this court on remand following our order directing the four
members of the Illinois State Board of Elections (Board) who voted to dismiss the petitioners’
complaint to provide a statement of findings. See Illinois Campaign for Political Reform v.
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Illinois State Board of Elections, 382 Ill. App. 3d 51 (2008). When this matter was first before
this court, it involved a direct appeal, pursuant to section 9-22 of the Election Code (10 ILCS
5/9-22 (West 2004)), from an order of the Board dismissing the complaint filed by the Illinois
Campaign for Political Reform and Dr. Kent Redfield (petitioners), alleging violations of the
campaign disclosure requirements of the Election Code (10 ILCS 5/9-1 et seq. (West 2004)),
against respondents, Illinois Coalition for Jobs, Growth and Prosperity, and Gregory Baise
(collectively, the Coalition). The Board’s dismissal order was not based on the merits of the
complaint, but on the Board’s “deadlock” vote and consequent inability to achieve the statutorilymandated five-member vote to enable the Board to find the matter to have been filed on
justifiable grounds and order a public hearing. See 10 ILCS 5/1A-7, 9-21 (West 2004).
When we first reviewed this case, we held, “Clearly, the Board acted in a manner
consistent with section 9-21, as amended, when the Board dismissed petitioners’ complaint based
on the Board’s failure to achieve the statutorily mandated five-member vote to proceed to a
public hearing. 10 ILCS 5/9-21 (West 2004). The Board may only act in the manner prescribed
by the Election Code. See 10 ILCS 5/1A-1 (West 2004) (the Board ‘shall perform only such
duties as *** prescribed by law’). In addition, this court must interpret the Election Code as
written and we ‘may not depart from the plain language of the statute by reading into it
exceptions, limitations, or conditions that conflict with the express legislative intent.’ Rosewood
Care Center, Inc. v. Caterpillar, Inc., 226 Ill. 2d 559, 567 (2007). Accordingly, we find that the
Board complied with the Election Code’s directive in this case.” Illinois Campaign for Political
Reform, 382 Ill. App. 3d at 60.
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We next determined that the Board’s deadlock vote did not violate petitioners’
constitutional due process rights to meaningful judicial review and protection against arbitrary
government actions. Illinois Campaign for Political Reform, 382 Ill. App. 3d at 60-62. We
further held that the Board’s deadlock vote, four votes in favor and four votes against a finding of
“justifiable grounds” for holding a public hearing, was reviewable by this court. Illinois
Campaign for Political Reform, 382 Ill. App. 3d at 61-62. Finally, we declined to address
whether petitioners’ complaint presented justifiable grounds. Rather, we remanded the matter to
the Board for a statement of findings by the four members who had rejected the recommendation
of the hearing examiner and the Board’s general counsel and voted in favor of dismissing
petitioners’ complaint. Illinois Campaign for Political Reform, 382 Ill. App. 3d at 63-64.
Specifically, we noted that “ '[i]n a complaint that alleges four separate bases by which to find
that an organization acted as a political committee, the Board must declare which evidence it
accepts and which evidence it rejects when it determines the entire complaint must be dismissed.'
” Illinois Campaign for Political Reform, 382 Ill. App. 3d at 64.
Pursuant to our order, on remand, each of the four members of the Board who rejected the
recommendations of the hearing examiner and the Board’s general counsel filed an identically
worded “Statement of Reasons.” The Board then entered those statements in the Board’s record
in this matter and filed them with this court as a supplemental record. This court then accepted
supplemental briefs from the petitioners, the Coalition, and the Board.
In addition to the above proceedings, our supreme court recently issued its opinion in
Cook County Republican Party v. Illinois State Board of Elections, No. 106139 (January 23,
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2009) (CCRP II). In CCRP II, our supreme court reviewed the appellate court’s opinion in Cook
County Republican Party v. State Board of Elections, 378 Ill. App. 3d 752 (2007) (CCRP I),
which we mentioned in our initial opinion in this matter. See Illinois Campaign For Political
Reform, 382 Ill. App. 3d at 65.
In CCRP II, our supreme court held, “[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.” CCRP II, slip op. at 8.
The court then determined that “[t]he 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 tievote dismissals to be subject to judicial review of whether the complaints were filed on
justifiable grounds.” CCRP II, slip op. at 8.
Our supreme court next held that the absence of specific factual findings adopted by the
majority of the Board did not prevent or impede review. In so doing, our supreme court cited
Democratic Congressional Campaign Committee v. Federal Election Comm’n, 831 F.2d 1131
(D.C. Cir. 1987) (which this court relied upon in our initial opinion (Illinois Campaign for
Political Reform, 382 Ill. App. 3d at 62)), in holding that “meaningful review of a deadlock vote
may be accomplished by examining the reasons of the Board members voting to dismiss the
complaint.” CCRP II, slip op. at 9. Our supreme court held, in CCRP II, that there was no need
to remand the matter to the Board for a statement of the reasons for dismissal. The court’s
determination was based on the fact that the Board in that case had adopted the recommendation
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of its general counsel, which contained a “detailed explanation for finding the complaints were
not filed on justifiable grounds.” CCRP II, slip op. at 9. The court concluded that the general
counsel’s recommendation, therefore, sufficiently disclosed the grounds for the decision by the
members of the Board voting to dismiss the complaints. CCRP II, slip op. at 9.
Finally, our supreme court, in CCRP II, defined the standard for judicial review of the
Board’s dismissals. The court stated, “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 [v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200,
211 (2008)]. 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.” CCRP II, slip op. at 11. Our supreme court concluded, “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 on justifiable grounds.” CCRP II, slip op. at 11.
We now apply the holding in CCRP II, in reviewing the “Statement of Reasons”
submitted by the four Board members who had rejected the recommendations of the hearing
examiner and the Board’s general counsel and voted in favor of dismissing petitioners’
complaint.
Initially, we note that petitioners argue that the statements submitted do not comport with
our remand in that they rely on findings of credibility. However, in remanding this case, this
court previously held that “ '[i]n a complaint that alleges four separate bases by which to find that
an organization acted as a political committee, the Board must declare which evidence it accepts
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and which evidence it rejects when it determines the entire complaint must be dismissed.' ”
Illinois Campaign for Political Reform, 382 Ill. App. 3d at 64. Accordingly, the statements
submitted by the members of the Board do comport with our order in this respect.
Petitioners also argue that the fact that the statements are identical makes them suspect.
In their statements, the Board members set out reasons for concluding that the evidence was
insufficient to show that each of the four allegations was filed on justifiable grounds. First,
petitioners alleged that the Coalition was a political committee, as defined by sections 9-1.8(a),
(c), and (d) of the Election Code (10 ILCS 5/9-1.8(a), (c), (d) (West 2004)). The Board members
noted that petitioners’ evidence was based on “statements made by the Coalition in press releases
and on its web site, one candidate’s report of an in-kind contribution from the Coalition, and the
possibility that certain discussions occurred before the [Coalition] PAC registered.” The Board
members explained that the evidence presented by the Coalition in the preliminary hearing to
refute petitioners’ allegation consisted of cancelled checks, testimony, and a subsequent amended
report filed by one candidate, showing that the expenditures were paid by the Coalition PAC, not
the Coalition. The Coalition also argued that petitioners’ evidence was explained by the fact that
the Coalition PAC’s name was required by law to include the name of the Coalition, causing
people to misidentify the true entity, the PAC, that made the expenditures. In their statements,
the Board members concluded that this allegation was not filed on justifiable grounds because
the Coalition’s evidence showed that the PAC made the expenditures and the other evidence was
explained by the similarity of the Coalition and Coalition PAC names.
The second allegation in petitioners’ complaint was that the Coalition acted as a
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“conduit” for the transfer of funds from persons who contributed to the Coalition to candidates
who received donations from the Coalition PAC. The Board members stated that petitioners’
evidence included the evidence submitted in support of their first allegation and a statement of a
Coalition official as paraphrased in a television news report to the effect that some of the
Coalition’s contributions may not have been intended to be donated to judicial campaigns. The
Board members noted that the hearing examiner characterized the evidence by stating, “Nothing
in the facts shows that [the Coalition] did or they didn’t [accept contributions designated for
specific candidates.] There are allegations that they did.” The Board members rejected the
hearing examiner’s recommendation which was based on an inference that depended on “the
precise wording of a statement that was both paraphrased and hearsay.” (Emphasis in original.)
In addition, the Board members concluded that, as the hearing examiner stated, there were only
allegations, not any evidence, that the Coalition had accepted any contributions on behalf of a
specific candidate.
The petitioners’ third allegation was that the Coalition attempted to circumvent the
Election Code (10 ILCS 5/9-26 (West 2004)) by subterfuge, in violation of section 100.90(b) of
the Illinois Administrative Code (26 Ill. Adm. Code §100.90(b)) amended at 24 Ill. Reg. 14214
(eff. September 11, 2000)). Petitioners specifically alleged that the Coalition failed to register as
a political committee and did not disclose the names of its contributors. The hearing examiner
recommended a public hearing based on the evidence submitted with respect to the first
allegation. In their statements, for the same reasons with regard to the first allegation, the Board
members concluded that the evidence was insufficient to show that this allegation was filed on
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justifiable grounds.
The petitioners’ final allegation was that the Coalition was obligated to file contribution
and expenditure reports with the Board as required by section 9-10(a), (b), and (c) of the Election
Code (10 ILCS 5/9-10(a), (b), (c) (West 2004)). The hearing examiner recommended that this
allegation proceed to a public hearing based on his recommendations that the prior three
allegations were filed on justifiable grounds. However, in their statements, the Board members
concluded that for the same reasons with regard to the first three allegations, the evidence was
insufficient to show that this allegation was filed on justifiable grounds.
Based on these statements, we cannot say that the four members of the Board who voted
in favor of dismissing petitioners’ complaint clearly erred in determining that the complaint was
not filed on justifiable grounds. CCRP II, No. 106139, slip op. at 11.
Finally, while we held in our initial opinion that the Board’s deadlock vote was not
constitutionally unsound (Illinois Campaign for Political Reform, 382 Ill. App. 3d at 60-62), our
supreme court refused to reach this issue in CCRP II. CCRP II, No. 106139, slip op. at 11-12.
Our supreme court explained that given its construction of the Election Code providing for
judicial review of deadlock dismissals and its remand to the appellate court to review whether the
complaints were filed on justifiable grounds, “it is unnecessary to consider the parties’ arguments
challenging the [Election] Code’s constitutionality.” CCRP II, No. 106139, slip op. at 11-12.
Following that reasoning, this court was in error in reaching the constitutional issue prior to
receiving the statement of findings after the remand.
Under the facts as proffered and current status of this case, we now reach the merits of
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petitioners’ constitutional argument and conclude that the Board’s deadlock vote did not violate
petitioners’ constitutional due process rights to meaningful judicial review and protection against
arbitrary government actions.
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 complaint was filed on justifiable grounds when it voted four-to-four
on that question. The Board, therefore, complied with the clear directive of section 9-21 by
dismissing petitioners’ complaint after failing to determine that it was filed on justifiable
grounds. See CCRP II, No. 106139, slip op. at 7.
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 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).
As previously noted, in CCRP II, No. 106139, slip op. at 7-8, our supreme court held that a plain
reading of sections 9-21 and 9-22 provides that the tie-vote dismissal of a complaint is subject to
judicial review in the appellate court under the provisions of the Administrative Review Law. In
addition, our supreme court concluded that the Election Code requires “judicial review of all
issues of law and fact presented by the record, including whether the complaints were filed on
justifiable grounds.” CCRP II, No. 106139, slip op. at 11. Our supreme court explained that
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where the Board adopted the reasons for dismissal from the general counsel’s detailed
recommendation, those reasons for dismissal may be reviewed for clear error. CCRP II, No.
106139, slip op. at 9-11. Accordingly, we find petitioners’ contention that the Board’s deadlock
vote violated their rights to meaningful judicial review to be without merit.
In addition, we reject petitioners’ argument that the Board’s dismissal based on its
deadlock vote is arbitrary and capricious. As we explained in our initial opinion, pursuant to
section 1A-7 of the Election Code (10 ILCS 5/1A-7 (West 2004)), the Board is entitled to
deadlock on issues where it cannot obtain the five votes necessary to take any action. Illinois
Campaign for Political Reform, 382 Ill. App. 3d at 62. Nothing in the Election Code requires the
Board’s deadlock to be broken in favor of proceeding on the complaint. In fact, in Walker v.
State Board of Elections, 65 Ill. 2d 543 (1976), our supreme court found unconstitutional a
previous legislative attempt to break a Board deadlock. In Walker, the tie-breaker provisions of
the Election Code provided that, in the event of a tie vote of the Board with respect to a proposed
Board action, one Board member’s name would be drawn randomly and that Board member
would be disqualified from voting on the proposed action. Walker, 65 Ill. 2d at 562-63. Our
supreme court held that the tie-breaker provision, which resulted in the removal of a Board
member for purposes of any deadlock vote, violated the mandate of article III, section 5, of the
Illinois Constitution, which provides that no political party have a majority on the Board.
Walker, 65 Ill. 2d at 565. Our supreme court determined that such intervention in a Board
deadlock was not intended by the drafters of our state constitution or contemplated in the
Election Code. We therefore find petitioners’ argument that the Board’s dismissal is arbitrary
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where it is based on the Board’s deadlock vote to be without merit.
For the foregoing reasons, we conclude that the members of the Board voting to dismiss
petitioners’ complaint did not clearly err in determining that the complaint was not filed on
justifiable grounds. We also reject petitioners’ constitutional arguments that the Board’s
deadlock vote violated petitioners’ rights to meaningful judicial review and protection against
arbitrary government actions. We, therefore, affirm the Board’s dismissal of petitioners’
complaint.
Affirmed.
MURPHY, P.J., and THEIS, J., concur.
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