People ex rel. Devine v. Murphy

Annotate this Case
People ex rel. Devine v. Murphy, No. 82965 (3/19/98)

Docket No. 82965--Agenda 37--May 1997.
THE PEOPLE ex rel. RICHARD A. DEVINE, State's Attorney Of Cook
County, et al., Petitioners, v. THE HONORABLE MICHAEL J. MURPHY,
Judge of the Circuit Court of Cook County, et al., Respondents.
Opinion filed March 19, 1998.

JUSTICE McMORROW delivered the opinion of the court:
The primary issue presented in this original action for a writ of mandamus
is whether section 23--15 of the Property Tax Code (35 ILCS 200/23--15 (West
1996)), violates the separation of powers provision of the Illinois Constitution (Ill.
Const. 1970, art. II, sec. 1). For the reasons which follow, we hold that it does not.

BACKGROUND
In 1995, the General Assembly enacted a comprehensive revision of the tax
objection provision of the Illinois Property Tax Code, section 23--15. See 35 ILCS
200/23--15 (West 1996). The principal modification of prior law made by the
revision of section 23--15 was the abolition of the judicially created doctrine
known as constructive fraud. Under this doctrine, courts had been prevented from
granting direct relief from excessive property tax assessments unless the
assessments were shown to be actually or constructively fraudulent. See generally
A. Ganz & D. Laswell, Review of Real Estate Assessments--Cook County (Chicago)
v. Remainder of Illinois, 11 J. Marshall J. of Prac. & Proc. 17, 37-60 (1977)
(reviewing the history of the doctrine of constructive fraud).
Section 23--15 replaced the doctrine of constructive fraud with a new
statutory mechanism which permits objections to property tax assessments to be
addressed directly in the circuit court. The assessments which the court considers
are those which have been reviewed and corrected by the board of appeals or
review. Under section 23--15, the tax assessment adopted by the boards is
presumed to be correct and legal. However, this presumption may be rebutted by
clear and convincing evidence. The court is to hear the objection to the property
tax assessment de novo and determine whether the assessment is incorrect or
illegal. See 35 ILCS 200/23--15(b)(2), (b)(3) (West 1996). At the same time that
the General Assembly revised section 23--15, it also made minor revisions to
section 23--30 of the Property Tax Code. Section 23--30 authorizes the State's
Attorney to reach settlement agreements in tax objection cases. See 35 ILCS
200/23--30 (West 1996).
On February 6, 1997, Judge Michael J. Murphy sua sponte issued a
memorandum opinion in In re Application of Rosewell v. CPC International
Inc./Corn Products, Nos. 91--1197, 92--2448, 93--3539, 94--4093, 95--1143 cons.
(Cir. Ct. Cook Co.), in which he declared section 23--15 unconstitutional. In the
memorandum opinion, Judge Murphy noted that the assessment of property taxes
is a matter committed to the legislature and not the courts. Citing to several cases
involving the doctrine of constructive fraud, Judge Murphy concluded that under
separation of powers principles, the courts, in the absence of fraud or constructive
fraud, have no power to directly review property tax assessments. Accordingly,
Judge Murphy held that the legislature's attempt to abolish the doctrine of
constructive fraud violated the separation of powers provision of the Illinois
Constitution (Ill. Const. 1970, art. II, sec. 1).
In addition to ruling that section 23--15 was unconstitutional, Judge Murphy
also indicated in the memorandum opinion that he would not sign a settlement
order which had been negotiated pursuant to section 23--30. Judge Murphy stated
that, because he had ruled section 23--15 unconstitutional, he could not sign the
settlement order absent some showing that the assessment to be affected by the
order was the product of fraud or constructive fraud. Signing and approving a
settlement order which did not establish fraud or constructive fraud, Judge Murphy
explained, would require the judge to exceed the proper scope of judicial review
and would violate the separation of powers doctrine.
Following the issuance of Judge Murphy's memorandum opinion, several
additional orders declaring section 23--15 unconstitutional were entered in the
circuit court of Cook County. In two property tax objection cases which were being
tried under section 23--15, Judge Murphy repeated his ruling that section 23--15
was unconstitutional and, consequently, declared mistrials. In a third case, Judge
Murphy refused to enter a settlement order which had been negotiated pursuant to
section 23--30. In a separate case, Judge Curtis Heaton also refused to enter a
settlement order which had been negotiated under section 23--30. In addition,
Presiding Judge Francis Barth and Judge Murphy issued a public notice which
provided, in part, that pending resolution of the constitutionality of section 23--15,
"All regularly scheduled Calendar Calls, Scheduling Calls, Trial Management Calls,
Trial Assignment Calls, and Trials in Tax Objection Cases are immediately
suspended until further notice."
As a result of the orders entered in the circuit court declaring section 23--15
unconstitutional, petitioner, Richard A. Devine, State's Attorney of Cook County,
filed a motion in this court seeking leave to file a petition for a writ of mandamus.
We granted the motion. The petition for writ of mandamus requests this court to
order the respondent judges of the circuit court of Cook County to (1) vacate their
orders holding unconstitutional section 23--15; (2) vacate their orders refusing
settlements in tax objection cases based on the unconstitutionality of section 23--15
and to approve such settlements where the State's Attorney has negotiated in good
faith and has adequately represented the public interest in reaching the settlements;
and (3) withdraw the public notice issued by Presiding Judge Barth and Judge
Murphy suspending all tax objection cases.
We granted leave to several property tax objectors to join in the petition for
mandamus. We also allowed the Civic Federation, the Taxpayers' Federation of
Illinois, the Chicago Bar Association, and the Illinois State Bar Association to file
a joint amici curiae brief in support of petitioners. 155 Ill. 2d R. 345(a).

ANALYSIS
I
Statutes are presumed constitutional and the party challenging the validity
of a statute has the burden of clearly establishing that it is unconstitutional. People
v. Inghram, 118 Ill. 2d 140, 146 (1987). " `[I]t is our duty to construe acts of the
legislature so as to uphold their constitutionality and validity if it can reasonably
be done, and, further, that if their construction is doubtful, the doubt will be
resolved in favor of the validity of the law attacked.' [Citations.]" Inghram, 118 Ill. 2d at 146.
Section 23--15 provides, in relevant part:
"(2) The taxes, assessments, and levies that are the subject
of the objection shall be presumed correct and legal, but the
presumption is rebuttable. The plaintiff has the burden of proving
any contested matter of fact by clear and convincing evidence.
(3) Objections to assessments shall be heard de novo by the
court. The court shall grant relief in the cases in which the objector
meets the burden of proof under this Section and shows an
assessment to be incorrect or illegal. If an objection is made
claiming incorrect valuation, the court shall consider the objection
without regard to the correctness of any practice, procedure, or
method of valuation followed by the assessor, board of appeals, or
board of review in making or reviewing the assessment, and without
regard to the intent or motivation of any assessing official. The
doctrine known as constructive fraud is hereby abolished for
purposes of all challenges to taxes, assessments, or levies." 35 ILCS
200/23--15(b)(2), (b)(3) (West 1996).
Respondents maintain that section 23--15 violates the separation of powers
provision of the Illinois Constitution. In support of this proposition, respondents
cite to numerous decisions of this court discussing the doctrine of constructive
fraud and the role of the judiciary in reviewing property tax assessments. See, e.g.,
In re Application of the County Treasurer, 131 Ill. 2d 541 (1989); La Salle
National Bank v. County of Cook, 57 Ill. 2d 318 (1974); People ex rel. Munson v.
Morningside Heights, Inc., 45 Ill. 2d 338 (1970); Spencer & Gardner v. People,
68 Ill. 510 (1873). Respondents contend that these cases stand for the proposition
that the separation of powers provision limits the standard of judicial review of
property tax assessments solely to fraud and constructive fraud. We disagree.
Prior to the enactment of section 23--15, direct judicial review of property
tax assessments was not provided for by statute. In the absence of a statutory
remedy, the only authority which the courts could exercise to provide direct relief
for tax objectors was the courts' inherent, equitable authority to correct a fraud.
See, e.g., White v. Board of Appeals, 45 Ill. 2d 378, 380 (1970) ("[T]he courts in
the absence of legislative authority have no authority, except in cases of fraud, to
review or determine the value of property which has been assessed for purposes of
taxation by appropriate administrative officers"). Separation of powers prevented
the courts from creating a standard of review, other than fraud, to apply within the
tax objection proceedings. To do so would have usurped the legislative power to
say what the law shall be.
Because no standard for directly reviewing property tax assessments had
been provided by the legislature, the cases cited by respondents deal solely with
the nature and scope of the judicial remedy available in tax objection cases in the
absence of a statutorily defined standard of review. The cases do not discuss the
validity of any statute similar to section 23--15. The cases cited by respondents
establish that, prior to the enactment of section 23--15, the courts could use only
their equitable power against fraud to complement the available statutory remedies.
However, the cases do not hold that the General Assembly itself was prevented
from enacting a broader form of judicial review.
Section 9 of article VI of our constitution expressly provides that the circuit
courts "shall have such power to review administrative action as provided by law."
Ill. Const. 1970, art. VI, sec. 9. The phrase "as provided by law" is used "[w]hen
our constitution intends that the legislature is to act in governing the activities of
the court." People v. Joseph, 113 Ill. 2d 36, 43 (1986). The power of the legislature
to broaden the right of judicial review of property tax assessments beyond fraud
or constructive fraud is clearly warranted by the language of article VI, section 9.
Accordingly, we hold that the legislature may provide for a direct standard of
judicial review of property tax assessments other than fraud or constructive fraud.
Respondents maintain that even if the legislature may constitutionally
provide for a standard of judicial review of property tax assessments other than
fraud or constructive fraud, it may not adopt the standard set forth in section 23--
15. Respondents specifically challenge the language in section 23--15 which
provides that objections to property tax assessments "shall be heard de novo by the
court." See 35 ILCS 200/23--15(b)(3) (West 1996). Respondents contend that by
mandating that the tax objections "shall be heard de novo" from the board of
appeals or review, the legislature has improperly granted the courts the same
executive authority possessed by those boards and, thus, violated the principle of
separation of powers.
The separation of powers provision of the Illinois Constitution provides:
"The legislative, executive and judicial branches are separate. No branch shall
exercise powers properly belonging to another." Ill. Const. 1970, art. II, sec. 1. The
doctrine of separation of powers "does not contemplate that there should be
` "rigidly separated compartments" ' " of government. McAlister v. Schick, 147 Ill. 2d 84, 95 (1992). Nor does it "inexorably preclude one of the three branches of
government from exercising powers which could also be given to another branch."
Inghram, 118 Ill. 2d at 149.
In support of their contention that section 23--15 violates the separation of
powers provision, respondents rely upon West End Savings & Loan Ass'n v. Smith,
16 Ill. 2d 523 (1959) and Borreson v. Department of Public Welfare, 368 Ill. 425
(1938). In West End, this court held unconstitutional a section of the Illinois
Savings and Loan Act (Ill. Rev. Stat. 1957, ch. 32 par. 701 et seq.) which provided
for judicial review of an administrative decision regarding whether a savings and
loan association could move from one location to another. The statute provided that
any person who objected to such a decision could "apply to the Circuit Court ***
for an adjudication of the validity of the decision *** and the matter shall be tried
de novo by the court." Ill. Rev. Stat. 1957, ch. 32, par. 860. See Mensik v. Smith,
18 Ill. 2d 572, 585 (1960). In holding that the statute violated the separation of
powers provision, this court noted the general rule that "where authority has been
conferred upon administrative agencies to perform functions of an executive nature,
provisions for trial de novo in courts of law violate the separation-of-powers
principle." West End, 16 Ill. 2d at 525. The court explained that this rule was based
on the theory that when an administrative agency is given authority to decide
matters which are "not judicially cognizable," and a statute "vest[s] in courts a
supervisory power which is not limited to a review of the administrative action but
extends to a redetermination of factual issues, [the effect of the statute] is to grant,
unlawfully, a power to exercise executive functions." West End, 16 Ill. 2d at 525.
Applying these principles to the statute at issue, the West End court concluded that
the determination of the appropriate locations of the savings and loan associations,
and the appraisal of factors weighing on those decisions, was "executive in nature"
and fell "outside that class to which judicial processes are limited." West End, 16 Ill. 2d at 526. Thus, the statute which provided for a de novo trial in the circuit
court improperly vested the courts "with powers to determine and decide matters
of an executive or legislative character," and, therefore, violated the separation of
powers provision. West End, 16 Ill. 2d at 526.
In Borreson, this court held unconstitutional a statute which granted an
applicant the right to "trial de novo" in the circuit court when, by administrative
decision, the applicant was denied welfare benefits under the Old Age Assistance
Act (Ill. Rev. Stat. 1937, ch. 23, par. 410 et seq.). The Borreson court emphasized
that the administration of the program for assistance to the aged was "essentially
an executive function," and further determined that "[w]hether assistance should be
granted, modified, or denied, presents no question of law or fact for judicial
determination." Borreson, 368 Ill. at 432. As in West End, the Borreson court
concluded that because the statute at issue provided for trial de novo, the circuit
court could "independently determine issues of fact or conduct and substitute its
own judgment and discretion for the judgment of a ministerial body." (Emphasis
added.) Borreson, 368 Ill. at 432. Therefore, the statute violated the separation of
powers provision. Borreson, 368 Ill. at 434. West End and Borreson thus establish
that a statute violates the separation of powers provision when it gives the judiciary
the responsibility to "independently and originally" perform a "nonjudicial"
function. Fields Jeep-Eagle, Inc. v. Chrysler Corp., 163 Ill. 2d 462, 472 (1994).
The constitutional defects which existed in the statutes reviewed in West
End and Borreson are not present in section 23--15. First, unlike the substantive
matters found "not judicially cognizable," in West End and Borreson, the
administrative determination of an individual's property rights has long been held
to be within the reviewing province of the courts. In Rowand v. Little Vermilion
Special Drainage District, 254 Ill. 543 (1912), this court upheld a statute which
allowed judicial review of what was "in effect, a valuation [of land], for assessment
purposes" made by drainage commissioners. Rowand, 254 Ill. at 547. The court
noted that "this court has sustained statutes allowing appeals from non-judicial
boards and bodies where the subject matter involved some personal or property
right which it is the province of the courts to determine and protect." Rowand, 254 Ill. at 547. The court also observed that "[i]t would be a reproach to our judicial
system if there were no redress for possible wrongs that might be inflicted by an
unequal and oppressive classification of lands in a drainage district for assessment
purposes." Rowand, 254 Ill. at 548. See also Investors Syndicate of America, Inc.
v. Hughes, 378 Ill. 413, 417-19 (1941); In re Estate of Barker, 63 Ill. 2d 113
(1976) (upholding a provision of the former Illinois inheritance tax act which
granted judicial review in the circuit court from what was characterized as an
administrative decision fixing the value of property for purposes of taxation);
Board of Supervisors v. Chicago, Burlington & Quincy R.R. Co., 44 Ill. 229, 235
(1867) (upholding, on jurisdictional grounds, statute which provided for judicial
review of property tax assessments, and noting that the statute was "not in conflict
with any provision of the Constitution"). Indeed, the West End court itself noted
the general distinction between policy decisions which are purely executive or
legislative in nature, and the determination of an individual's property rights:
"Where the court is to determine from pleadings whether the order
assailed is lawful and reasonable, and where the questions presented
concern property rights of which the court has jurisdiction, there is
no transgression of constitutional requirements. (Investors Syndicate
of America v. Hughes, 378 Ill. 413.) Statutes providing for such
procedure merely authorize the court to exercise what is already a
part of its function." West End, 16 Ill. 2d at 526.
Cf. Murneigh v. Gainer, 177 Ill. 2d 287, 307-08 (1997) (statute which compelled
the judiciary to process blood collection demands for certain convicted sex
offenders unconstitutionally imposed "nonjudicial" tasks upon the courts).
A second, and equally significant difference between the statutes at issue
in West End and Borreson, and section 23--15, relates to the scope of the circuit
court proceedings created by the statutes. The circuit court trials provided for in
West End and Borreson were unconditional de novo proceedings, i.e., proceedings
in which the matter at issue was to be tried " `anew the same as if it had not been
heard before and as if no decision had been previously rendered.' [Citation.]"
Creamer v. Police Pension Fund Board, 69 Ill. App. 3d 792, 796 (1978). As
respondents themselves observe, the de novo trials authorized by the statutes in
West End and Borreson permitted the circuit court to "completely disregard the
decision of the administrative agency" and to give the agency's decision "no
deference." Because no deference was given to the administrative decisions, the
statutes in West End and Borreson unlawfully permitted the circuit court to exercise
the entire executive function of the administrative agency.
Under section 23--15, however, considerable deference is given to the
decisions made by the board of review or appeals. Section 23--15 expressly states
that "[t]he taxes, assessments, and levies that are the subject of the objection shall
be presumed correct and legal." 35 ILCS 200/23--15(b)(2) (West 1996). This
presumption can only be overcome by "clear and convincing evidence." 35 ILCS
200/23--15(b)(2) (West 1996). Even if a tax objector can present to the circuit court
a tax assessment which is equally as credible as the assessment which was adopted
by the board, the board's assessment must be sustained. See Executive Summary
of the Report of the Civic Federation Task Force on Reform of the Cook County
Property Tax Appeals Process at 5 (March 2, 1995) (noting that when "the outcome
turns solely on the competing opinions of equally compelling witnesses *** the
assessment would be sustained since such evidence would not constitute clear and
convincing proof that the assessment is incorrect").[fn1] Thus, contrary to
respondents' assertions, under section 23--15 the court does not make an
"independent" or "original" tax assessment. Section 23--15 mandates that deference
be given to the tax assessment adopted by the board of review or appeals. The
boards themselves are not bound by any presumption that the assessment is correct
and may adopt an assessment as justice requires. See 35 ILCS 200/16--55 (West
1994) ("the board [of review] shall review the assessment, and correct it, as appears
to be just"); 35 ILCS 200/16--30 (West 1994); 35 ILCS 200/16--95 (West 1996).
Accordingly, the court does not have the same discretionary authority as that given
to the board of review or appeals.
The conclusion that section 23--15 does not give the circuit court the
discretionary authority possessed by the assessing officials is not altered by the
existence of the phrase "heard de novo" within the statute. The phrase "heard de
novo" is used in section 23--15 to indicate that evidence may be presented in the
circuit court and that the tax objection proceedings are not an appeal on the record
from the board of appeals or review. See Executive Summary of the Report of the
Civic Federation Task Force on Reform of the Cook County Property Tax Appeals
Process at 4 (March 2, 1995) ("As under existing law, tax objections will be tried
to the court without a jury, and the court will hear the matter de novo rather than
as an appeal from the action of the assessing officials"). Because section 23--15
unequivocally grants the property tax assessment adopted by the board a
presumption of correctness, the use of the term "de novo" cannot mean, as it did
in West End and Borreson, that the administrative decision is given no deference,
or that the court is to make a completely independent assessment. The legislative
history of section 23--15 supports the conclusion that the legislature did not intend
for the circuit court to have complete discretion in considering the tax assessment:
"In resolving the questions of the standard of review and burden of
proof in assessment challenges, the Task Force was required to
balance the need to provide effective taxpayer relief against the need
to avoid opening up the process so widely that the courts could
potentially be called on to reassess any or all property in the county.
The consensus on the Task Force was to provide for a standard of
review permitting recovery upon proof of an incorrect or illegal
assessment, but to require the taxpayer to meet a burden of proof by
`clear and convincing' evidence (the highest burden applied in civil
litigation, but clearly not the criminal burden, `beyond a reasonable
doubt') in order to establish that such an incorrect or illegal
assessment has occurred. This choice of balance was preferred over
the alternative of choosing the lower burden of proof and then
attempting the seemingly impossible task of defining an enhanced
standard of review, in which the `degree of incorrectness' would be
in issue." Executive Summary of the Report of the Civic Federation
Task Force on Reform of the Cook County Property Tax Appeals
Process at 5 (March 2, 1995).
Furthermore, the fact that additional evidence may be presented in the circuit court
does not, in itself, render the statute constitutionally infirm. See Illinois Hospital
Service, Inc. v. Gerber, 18 Ill. 2d 531, 534 (1960); Illinois Bell Telephone Co. v.
Fox, 402 Ill. 617, 627 (1949). See also Rowand, 254 Ill. at 545 (upholding, though
not directly addressing, a provision of a statute which permitted a jury, when
reviewing what was effectively a property tax assessment, to "hear allegations and
testimony in opposition to and in support of the same," and to "correct" the
assessment if "too high or too low." Ill Rev. Stat. 1911, ch. 42, par. 99).
This court has explained that " `[a] branch of the judiciary does not exercise
executive or administrative power unless there devolves upon the court the same
power to exercise discretion as has been committed to the administrative agency.
(Borreson v. Department of Public Welfare, 368 Ill. 425).' " Illinois Hospital
Service, 18 Ill. 2d at 534, quoting Illinois Bell Telephone, 402 Ill. at 626-27. Given
the presumption of correctness which is afforded the property tax assessment under
section 23--15, it cannot be said that the statute grants the circuit court the same
powers of discretion that have been committed to the board of appeals or review.
In addition, section 23--15 does not impose any duty or power on the courts
to classify properties for assessment, to inspect properties, or to set assessment
policies. In sum, none of the myriad executive or administrative activities which
are carried out by assessing officials are conferred on the courts by section 23--15.
The only power granted to the courts is the power to consider a matter which falls
within the reviewing province of the courts, and to do so in a way that gives
considerable deference to the administrative decision at issue. Therefore, in light
of the prior precedents of this court, and the language of section 23--15 itself, we
conclude that section 23--15 does not violate the separation of powers provision.
Because we have determined that section 23--15 is constitutional, we grant that
portion of the petition for writ of mandamus which requests this court to order the
respondents to vacate their orders holding section 23--15 unconstitutional.

II
Respondents seek this court's guidance as to the standards to be applied
under the settlement provision of the Property Tax Code, section 23--30. See 35
ILCS 200/23--30 (West 1996). Respondents express concern that the statute
prevents the trial judge from exercising any discretion as to the contents of the
agreed orders.
Section 23--30 provides:
"Following the filing of an objection under Section 23--10,
the court may hold a conference with the objector and the State's
Attorney. Compromise agreements on tax objections reached by
conference shall be filed with the court, and the parties shall prepare
an order covering the settlement and submit the order to the court
for entry." 35 ILCS 200/23--30 (West 1996).
The trial court's role in the settlement proceedings under section 23--30 is
a limited one. The State's Attorney has express authority under section 23--30 to
compromise tax objections, as well as the inherent executive authority to
compromise tax matters generally. In re Application of the County Collector for
Delinquent Taxes, for at Least Five Years Prior to 1987, 155 Ill. 2d 520, 527-31
(1993). The State's Attorney's compromise and settlement of a tax objection under
section 23--30 cannot be impeached "on the grounds that a better result should
have been reached, or for any other reason short of fraud or bad faith." People ex
rel. Thompson v. Anderson, 119 Ill. App. 3d 932, 940 (1983). Similarly, agreed
orders are generally not subject to appeal or attack except where the order has
resulted from "fraudulent misrepresentation, coercion, incompetence of one of the
parties, gross disparity in the position or capacity of the parties, or newly
discovered evidence." In re Haber, 99 Ill. App. 3d 306, 309 (1981); Thompson v.
IFA, Inc., 181 Ill. App. 3d 293, 296-98 (1989). Given these factors, the merits of
the settlement itself are generally not subject to examination by the trial court.
However, the trial court must exercise its discretion in considering a
settlement with respect to certain important issues. Specifically, the trial court must
consider whether the settlement was negotiated by fraud or in bad faith (see, e.g.,
Anderson, 119 Ill. App. 3d at 940) and whether the State's Attorney has adequately
represented the public interest in reaching the settlement (see, e.g., Channahon
Park District v. Bosworth, 145 Ill. App. 3d 820, 825 (1986)). In exercising its
discretion, the trial court may need to examine the terms of the settlement.
However, the purpose of this examination will not be to judge the merits of the
agreement, but rather to determine whether fraud or inadequate representation has
occurred.
In their petition for a writ of mandamus, petitioners request that respondents
be ordered to vacate their orders refusing settlements in tax objection cases based
on the unconstitutionality of section 23--15, and compelled to enter settlement
orders if the State's Attorney has negotiated in good faith and has adequately
represented the public interest. We note that in the tax objection cases at issue, the
circuit court has not yet expressly considered whether the State's Attorney has
satisfied these conditions. In addition, petitioners acknowledge that the
determination of whether the State's Attorney has negotiated in good faith and has
adequately represented the public interest is left to the discretion of the trial court.
It is well settled that mandamus is not available to compel discretionary acts. See,
e.g., Chicago Bar Ass'n v. Illinois State Board of Elections, 161 Ill. 2d 502, 507
(1994). Accordingly, with respect to section 23--30, we grant only that portion of
the petition for writ of mandamus which requests this court to order the
respondents to vacate their orders refusing settlements in tax objection cases based
on the unconstitutionality of section 23--15.
Petitioners also request that respondents be ordered to withdraw the public
notice issued by Presiding Judge Barth and Judge Murphy suspending all tax
objection cases. The suspension involves internal administrative functions of the
circuit court. Having determined that section 23--15 is constitutional, we assume
that the circuit court will proceed in tax objection cases under the dictates of
section 23--15 and 23--30.

CONCLUSION
For the foregoing reasons the petition for writ of mandamus is granted in
part and denied in part. The respondents are ordered to vacate their orders which
hold section 23--15 unconstitutional, and vacate their orders refusing settlements
in tax objection cases based on the unconstitutionality of section 23--15.

Writ granted in part and denied in part.

JUSTICE MILLER, dissenting:
I agree with the majority that the legislature may provide by law for the
administrative review of property tax assessments in cases other than those
involving fraud. Unlike the majority, however, I believe that section 23--15 of the
Property Tax Code (35 ILCS 200/23--15 (West 1996)) violates the separation of
powers provision of the Illinois Constitution (Ill. Const. 1970, art. II, sec. 1) by
delegating to the courts the authority to set property tax assessments under the
guise of administrative review.
Section 23--15 provides that property tax objections "shall be heard de novo
by the court" (35 ILCS 200/23--15(b)(3) (West 1996)) and that the plaintiff (tax
objector) "has the burden of proving any contested matter of fact by clear and
convincing evidence" (35 ILCS 200/23--15(b)(2) (West 1996)). Under the statute,
a court conducts what is in effect a de novo proceeding in which evidence is
presented and factual findings are made. After considering the evidence and making
findings of fact, the "court shall grant relief in the cases in which the objector
meets the burden of proof under this Section and shows an assessment to be
incorrect or illegal." 35 ILCS 200/23--15(b)(3) (West 1996).
Thus, once a court has determined that a tax assessment is incorrect or
illegal, the court is directed to grant relief. Section 23--15 then provides that a
successful objector is entitled to a court-ordered tax refund. See 35 ILCS 200/23--
15(c) (West 1996). It is apparent that before ordering a refund pursuant to section
23--15(c), a judge must first set a property tax assessment so that the refund can
be calculated. Therefore, instead of providing for the administrative review of a
property tax assessment, section 23--15 provides for the judicial determination of
that assessment.
As noted by the majority (slip op. at 12), "[a] branch of the judiciary does
not exercise executive or administrative power unless there devolves upon the court
the same power to exercise discretion as has been committed to the administrative
agency." Illinois Bell Telephone Co. v. Fox, 402 Ill. 2d 617, 626-27 (1949). By
providing for the de novo judicial determination of property tax assessments,
section 23--15 authorizes the courts to exercise the same powers of discretion as
those exercised by local assessment officers. In doing so, section 23--15 violates
the separations of powers provision of the Illinois Constitution. Accordingly, I
respectfully dissent.

JUSTICES HEIPLE and NICKELS join in this dissent.


[fn1] The Civic Federation describes itself as "an independent, non-partisan
taxpayer watchdog and government research organization." The Report of the Civic
Federation Task Force on Reform of the Cook County Property Tax Appeals
Process was incorporated as part of the legislative history of section 23--15. See
89th Ill. Gen. Assem., Senate Proceedings, May 23, 1995, at 111 (statements of
Senator O'Malley).