Cook County Republican Party v. Illinois State Board of Elections

Docket No. 106139.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

THE COOK COUNTY REPUBLICAN PARTY, Appellant, v. THE
ILLINOIS STATE BOARD OF ELECTIONS et al., Appellees.

Opinion filed January 23, 2009.

JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Thomas, Garman, and
Karmeier concurred in the judgment and opinion.
Justices Freeman and Burke took no part in the decision.

OPINION

The Cook County Republican Party filed several complaints with
the Illinois State Board of Elections (Board) alleging violations of the
Election Code (Code) (10 ILCS 5/1–1 et seq. (West 2004)), by
Democratic Party ward organizations, ward chairmen, and ward
committeemen. Following closed preliminary hearings, the Board
dismissed the complaints on tie votes. The appellate court determined
that the dismissals were subject only to limited judicial review of
whether the Board acted contrary to law in dismissing the complaints.
We hold that the dismissals are subject to judicial review of all
questions of law and fact presented by the record, including whether
the complaints were filed on justifiable grounds under section 9–21
of the Code (10 ILCS 5/9–21 (West 2004)). Accordingly, we reverse
the appellate court’s judgment and remand for further proceedings.

I. BACKGROUND
On August 30, 2005, the Cook County Republican Party (Party)
filed eight complaints with the Board alleging campaign finance
violations by the respondent Democratic Party ward organizations,
ward chairmen, and ward committeemen. The various complaints
asserted that the respondents violated the Code by: (1) using publicly
funded office space for political activities; and (2) failing to report the
use of office space as an “in-kind” contribution on campaign financial
disclosure statements filed with the Board. Two of the complaints
also alleged that some of the respondents violated the Code by failing
to file a political committee statement of organization.
Closed preliminary hearings were held on the complaints over
several days. Following those hearings, the hearing officer found
justifiable grounds for the complaints. Accordingly, the hearing
officer recommended proceeding to public hearings before the Board.
The Board then held a closed executive session to consider the
complaints. See 10 ILCS 5/9–21 (West 2004). The Board heard
arguments from the parties and also asked for a recommendation from
its general counsel. The Board’s general counsel recommended
dismissal of the complaints, explaining:
“[L]ooking through all the evidence submitted, I don’t see
in here where they have alleged the specific facts that indicate
that political activity, at least to the extent that has been
suggested by the complainant’s counsel, took place in these
offices. I mean, everything that I’ve read and the testimony
that I read–certainly not in the complaint itself. *** I don’t
think the facts as alleged were specific enough to warrant a
declaration that this was filed on justifiable grounds. *** I’m
not sure that a ten-minute visit in August would be enough to
establish what they’re alleging. I note that the affidavit stated
clearly that no political activity was observed. There was no
literature, no–really there wasn’t really anything there
substantively that caused me to believe, oh, yes, without a
doubt, this is a functioning political ward office that is not

-2-
 declaring the receipt of in-kind contributions. There had been
a couple cases where I think it was close with the testimony
of the witnesses saying that a nominal level of activity, a
meeting right before the election with precinct captains or a
drop-off point for literature; but, even if that were true, that’s
still–breaking that down, would that be an in-kind
contribution in excess of $150 that would have to be
reported?”
In a series of four-to-four votes, the Board failed to determine that
the complaints were filed on justifiable grounds. See 10 ILCS 5/9–21
(West 2004). The Board subsequently filed orders dismissing the
complaints for “lack of justifiable grounds.” The dismissal orders
stated that the Board did not adopt the findings of the hearing officer,
but adopted the recommendation of its general counsel that
insufficient grounds existed to warrant public hearings.
The Party appealed the Board’s dismissal of the complaints
directly to the appellate court, as provided by section 9–22 of the
Code (10 ILCS 5/9–22(1) (West 2004)). The appellate court ordered
supplemental briefing on the scope of review. In their supplemental
briefs, the Board and the Party agreed that the appellate court’s
review extended to whether the complaints established justifiable
grounds to warrant a public hearing. The Party also argued that
section 9–21 of the Code (10 ILCS 5/9–21 (West 2004)) violates the
constitutional right to equal protection if the merits of tie-vote
dismissals are not reviewable.
The appellate court determined the Board made no factual
findings, and the court had no authority to determine de novo whether
the complaints were filed on justifiable grounds. Therefore, the
appellate court concluded that its review of the tie-vote dismissals
was limited to whether the Board acted contrary to law. The appellate
court found the Board clearly acted in compliance with section 9–21
of the Code in dismissing the complaints after failing to determine
that they were filed on justifiable grounds. The court further held that
the Party forfeited its argument on the constitutionality of section
9–21 because it was raised for the first time in the supplemental
briefing ordered by the court. Accordingly, the appellate court
affirmed the Board’s dismissal of the complaints. 378 Ill. App. 3d
752.

-3-
 Justice Gordon concurred in part and dissented in part, asserting
that section 1A–7 of the Code (10 ILCS 5/1A–7 (West 2004)) does
not allow the Board to adopt any findings or reasons for its dismissal
without a five-vote majority. Thus, there is essentially nothing for the
appellate court to review in cases of tie-vote dismissals. Justice
Gordon, therefore, concluded that tie-vote dismissals are not
reviewable. Given that conclusion, Justice Gordon would have
considered the Party’s equal protection argument and declared section
9–21 unconstitutional because deadlock dismissals are not subject to
judicial review, but dismissals by majority vote are reviewable. 378
Ill. App. 3d at 764 (Gordon, J., concurring in part and dissenting in
part).
We allowed the Party’s petition for leave to appeal. 210 Ill. 2d R.
315(a). The respondents subsequently filed a motion to dismiss the
appeal under Supreme Court Rule 361 (210 Ill. 2d R. 361). In their
motion, the respondents asserted that the final orders issued by the
Board did not refer to tie or nonmajority votes. Thus, according to the
respondents, this court must presume that the complaints were
dismissed based on majority votes. The respondents argued that the
appeal should be dismissed because it is premised upon reviewing the
effect of tie votes by the Board, but the final orders do not reflect tie
votes. We entered an order taking the respondents’ motion with the
case.

II. ANALYSIS
We first address the respondents’ motion to dismiss this appeal.
The motion essentially argues that the appeal should be dismissed
because it is premised on reviewing the effect of a tie vote by the
Board, but the record does not reflect that vote.
We recognize that the Board’s final orders do not facially indicate
tie votes on the complaints. Further, the orders state that the
complaints were “dismissed due to lack of justifiable grounds.” A
deadlock vote technically results in dismissal for failure to determine
that the complaints were filed on justifiable grounds. 10 ILCS 5/9–21
(West 2004). Thus, viewed in isolation, the Board’s orders could
indicate that the complaints were dismissed by a majority vote.

-4-
 Despite any shortcomings in the Board’s final orders, we are not
required to ignore the clear evidence of the tie votes in the hearing
transcript. See People v. Peeples, 155 Ill. 2d 422, 496 (1993) (an oral
statement controls when the report of proceedings and common law
record conflict). A review of the transcript of the closed preliminary
hearing clearly indicates the Board voted four-to-four on each of the
complaints. We will not disregard the clear vote shown in the
transcript of the hearing absent plain evidence that it did not reflect
the Board’s true vote. While the final orders should have stated the
complaints were dismissed for “failure to determine” that they were
filed on justifiable grounds, that error does not conclusively show the
complaints were dismissed by majority vote of the Board. Thus, we
find the record establishes that these complaints were dismissed on
tie votes. Given that finding, we deny the respondents’ motion to
dismiss the appeal.
On appeal to this court, the Party argues that the tie-vote
dismissals by the Board are subject to judicial review on the merits.
Alternatively, if those dismissals are denied judicial review, the Party
contends that the Code violates the constitutional guarantee of equal
protection because complaints dismissed by majority vote receive full
review while those dismissed by tie vote would not be reviewable.
The Party further argues that de novo review is appropriate here
because the Board did not take any action or make any findings of
fact or conclusions of law. Thus, the appellate court had no Board
action or decision to grant deference. The Party also contends that the
evidence presented at the closed preliminary hearings established the
justifiable grounds required to proceed to a public hearing on each of
the complaints.
As in the appellate court, the Board agrees that tie-vote dismissals
are reviewable on the merits under the Code. Those dismissals may
be reviewed by assessing the members’ reasons for voting to dismiss
the complaints. The dismissals should be reviewed for an abuse of
discretion because the statutory standard of “justifiable grounds”
amounts to a legislative grant of discretion to dismiss complaints
following a preliminary investigation. The Board further contends
that the orders and transcript of the hearing provide a sufficient record
to permit judicial review. The Board argues its orders should be
affirmed on the grounds stated in the general counsel’s

-5-
recommendation adopted by the members voting to dismiss the
complaints.
The respondents advance several arguments in support of the
Board’s dismissal of the complaints for lack of justifiable grounds.
The respondents also contend that the Board’s tie-vote dismissals are
not judicially reviewable under section 9–21 of the Code. The
respondents maintain that the Board acts in an investigatory capacity
when conducting a closed preliminary hearing to determine whether
a complaint has been filed on justifiable grounds. According to the
respondents, the Board’s exercise of judgment and discretion in its
investigatory capacity must be “absolute, final and non-reviewable.”
The respondents also argue that denying judicial review of tie-vote
dismissals does not violate the constitutional right to equal protection
of the law.
We must first decide whether the tie-vote dismissals are subject
to judicial review under the Code. If those dismissals are reviewable,
we must determine the scope of review. These are questions of
statutory interpretation reviewed de novo. Murray v. Chicago Youth
Center, 224 Ill. 2d 213, 228 (2007). The fundamental rule of statutory
interpretation is to ascertain and give effect to the legislature’s intent.
Krautsack v. Anderson, 223 Ill. 2d 541, 552-53 (2006). The best
indication of the legislature’s intent is the statutory language given its
plain and ordinary meaning. People v. Jamison, 229 Ill. 2d 184, 188
(2008). We must construe a statute in a manner that upholds its
constitutionality if reasonably possible. People v. Molnar, 222 Ill. 2d
495, 508 (2006).
In reviewing the framework of the Code, we note several
significant sections. The Board consists of eight members. 10 ILCS
5/1A–2 (West 2004). Four members must be affiliated with the
Governor’s political party and four must be “affiliated with the
political party whose nominee for Governor in the most recent
general election received the second highest number of votes.” 10
ILCS 5/1A–2 (West 2004). Five votes are required for an action of
the Board to become effective. 10 ILCS 5/1A–7 (West 2004).
Any person may file a verified complaint with the Board alleging
a campaign finance violation. 10 ILCS 5/9–20 (West 2004). Upon
receiving a complaint, the Board holds a closed preliminary hearing
to determine whether it “appears to have been filed on justifiable

-6-
grounds.” 10 ILCS 5/9–21 (West 2004). We note that this court
interpreted a prior version of section 9–21 in Illinois Republican
Party v. Illinois State Board of Elections, 188 Ill. 2d 70 (1999). At
that time, section 9–21 provided “ ‘[i]f the Board determines that the
complaint has not been filed on justifiable grounds, it shall dismiss
the complaint without further hearing.’ ” Illinois Republican Party,
188 Ill. 2d at 72-73, quoting 10 ILCS 5/9–21 (West 1996). Given that
language, we interpreted the Code to require a public hearing if a
five-member majority failed to dismiss the complaint as not filed on
justifiable grounds. Illinois Republican Party, 188 Ill. 2d at 73-75.
Following our decision in Illinois Republican Party, the
legislature amended section 9–21 by enacting Public Act 93–574
(Pub. Act 93–574, §5, eff. August 21, 2003). The amendment altered
the critical language interpreted by this court in Illinois Republican
Party. Section 9–21 now provides, “[i]f the Board fails to determine
that the complaint has been filed on justifiable grounds, it shall
dismiss the complaint without further hearing.” (Emphasis added.) 10
ILCS 5/9–21 (West 2004). Thus, our interpretation of section 9–21 in
Illinois Republican Party has been superseded by the legislature
because the language of that statute has been fundamentally altered.
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 complaints were filed on justifiable grounds when it voted
four-to-four on that question. Thus, the Board complied with the clear
directive of section 9–21 by dismissing the Party’s complaints after
failing to determine that they were filed on justifiable grounds.
The Code further provides for judicial review. 10 ILCS 5/9–22
(West 2004). Section 9–22 states:
“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).

-7-
 Section 9–22 clearly allows a party adversely affected by a
judgment of the Board to seek judicial review. The Board’s orders
state they are “final and appealable.” Hence, the orders are judgments
of the Board. The Party was adversely affected because the orders
resulted in dismissal of its complaints without a public hearing. Those
dismissals are, therefore, subject to judicial review under the plain
language of section 9–22. Accordingly, 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.
Next, we must consider the scope of judicial review of the
Board’s dismissals. The appellate court held that its review was
limited to whether the tie-vote dismissals were in compliance with
section 9–21. The review consisted of counting the votes of the Board
members to determine whether the Board properly dismissed the
complaints. See 10 ILCS 5/9–21 (West 2004). The appellate court
held that the Board complied with section 9–21 and, therefore,
affirmed the Board’s dismissals.
Initially, we note that the appellate court’s review cannot be
deemed meaningful. The review performed by the appellate court was
a simple ministerial act of confirming the Board’s decision was
correct based on the vote count. The legislature cannot have meant for
“judicial review” by the appellate court to be limited in that manner.
The legislature plainly intended tie-vote dismissals to be subject
to judicial review under section 9–22 of the Code. The legislature did
not limit the judicial review of tie-vote dismissals in any way. See 10
ILCS 5/9–22 (West 2004). Rather, section 9–22 states that judicial
review is governed by the Administrative Review Law. 10 ILCS
5/9–22 (West 2004). The 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 tie-vote
dismissals to be subject to judicial review of whether the complaints
were filed on justifiable grounds.
Unlike the appellate court, we do not believe the absence of
specific factual findings adopted by a majority of the Board prevents
or impedes review. On this point, we find instructive the decision in
Democratic Congressional Campaign Committee v. Federal Election

-8-
Comm’n, 831 F.2d 1131 (D.C. Cir. 1987). In that case, the six-
member Federal Election Commission (FEC) dismissed a complaint
based on a deadlock vote. The Court of Appeals determined that the
governing Act’s judicial review provision did not preclude review of
dismissals based on deadlock votes. Democratic Congressional
Campaign Committee, 831 F.2d at 1133. The Court, therefore, held
that the dismissal was reviewable in the circumstances of that case.
Democratic Congressional Campaign Committee, 831 F.2d at 1132.
Because the reasons for the commissioners’ votes were not contained
in the record, the matter was remanded to the FEC for a statement of
the reasons for the dismissal. Democratic Congressional Campaign
Committee, 831 F.2d at 1135.
The Court of Appeals later reaffirmed its decision in Democratic
Congressional Campaign Committee. See Common Cause v. Federal
Election Comm’n, 842 F.2d 436 (D.C. Cir. 1988). In Common Cause,
the court emphasized that a statement of reasons for a deadlock
dismissal is necessary to allow meaningful judicial review of the
decision not to proceed. Common Cause, 842 F.2d at 449.
We agree with the reasoning of the federal Court of Appeals that
meaningful review of a deadlock vote may be accomplished by
examining the reasons of the Board members voting to dismiss the
complaint. We do not believe a remand to the Board for a statement
of the reasons for dismissal is necessary in this case, however.
Under the Administrative Review Law, an “administrative
decision” includes an order affecting the legal rights of the parties and
terminating the proceedings. 735 ILCS 5/3–101 (West 2004). Further,
this court has held that a decision by an administrative agency must
contain findings to allow judicial review of the agency’s decision.
Reinhardt v. Board of Education of Alton Community Unit School
District No. 11, 61 Ill. 2d 101, 103 (1975). The grounds for the
agency’s action must be “ ‘clearly disclosed and adequately
sustained.’ ” Reinhardt, 61 Ill. 2d at 103, quoting Securities &
Exchange Comm’n v. Chenery Corp., 318 U.S. 80, 94, 87 L. Ed. 626,
636, 63 S. Ct. 454, 462 (1943).
Here, the final orders state that the Board adopted the
recommendation of its general counsel. In its brief to this court, the
Board asserts that “the orders are judicially reviewable and need not
be remanded” to the Board because the reasons of the members

-9-
voting to dismiss the complaints are reflected in the general counsel’s
recommendation. The general counsel’s recommendation contains a
detailed explanation for finding the complaints were not filed on
justifiable grounds. We believe the general counsel’s
recommendation sufficiently discloses the grounds for the decision by
the members voting to dismiss the complaints. Thus, judicial review
may be accomplished in this case by reviewing the reasons for
dismissal as stated in the general counsel’s recommendation.
Finally, we must define the standard for judicial review of the
Board’s dismissals. An electoral board is viewed as an administrative
agency. Cinkus v. Village of Stickney Municipal Officers Electoral
Board, 228 Ill. 2d 200, 209 (2008). In Cinkus, we discussed and
reaffirmed three standards for reviewing administrative agency
decisions. Cinkus, 228 Ill. 2d at 210-12, citing City of Belvidere v.
Illinois State Labor Relations Board, 181 Ill. 2d 191 (1998). The
standards are based upon the three types of questions encountered on
review of an agency decision, including: (1) questions of fact; (2)
questions of law; and (3) mixed questions of fact and law. Cinkus,
228 Ill. 2d at 210.
An administrative agency’s findings on questions of fact will be
reversed only if they are against the manifest weight of the evidence.
Cinkus, 228 Ill. 2d at 210. An agency’s decision on a question of law
is reviewed de novo. Cinkus, 228 Ill. 2d at 211. An agency’s
application of a rule of law to established facts is a mixed question of
fact and law that will not be reversed unless it is deemed “clearly
erroneous.” Cinkus, 228 Ill. 2d at 211. A decision is “clearly
erroneous” only if the reviewing court is left with a “ ‘ “definite and
firm conviction that a mistake has been committed.” ’ ” Cinkus, 228
Ill. 2d at 211, quoting AFM Messenger Service, Inc. v. Department of
Employment Security, 198 Ill. 2d 380, 391-95 (2001), quoting United
States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed.
746, 766, 68 S. Ct. 525, 542 (1948).
The parties present diverse arguments on the appropriate standard
of review. The Party argues that the dismissals should be reviewed de
novo because the Board did not make a decision that may be granted
deference. Conversely, the Board argues that the dismissals should be
reviewed for abuse of discretion. According to the Board, the

-10-
“justifiable grounds” standard grants it discretion to dismiss
complaints after preliminary investigations.
The question here involves application of the “justifiable
grounds” standard to the facts elicited at the preliminary hearing. That
is not a question of law subject to de novo review. Moreover, de novo
review would interfere with the Board’s function of determining
whether the facts establish that the complaints were filed on
justifiable grounds. See Abrahamson v. Illinois Department of
Professional Regulation, 153 Ill. 2d 76, 88 (1992) (it is not a court’s
function on administrative review to reweigh evidence or make an
independent determination of the facts). Accordingly, we reject the
Party’s argument that the dismissals are subject to de novo review.
We also disagree with the Board’s contention that abuse of
discretion is the proper standard of review. We do not believe
application of the “justifiable grounds” standard involves an exercise
of discretion by the Board. The Administrative Code provides that the
question addressed at a closed preliminary hearing is “whether the
complaint was filed on justifiable grounds, and having some basis in
fact and law.” 26 Ill. Adm. Code §125.252 (as amended at 14 Ill. Reg.
10832, eff. June 22, 1990). We agree that the statutory standard of
“justifiable grounds” focuses on the complaint’s factual and legal
sufficiency. The essential inquiry is whether the complaint is factually
and legally justified. A decision based on those factors does not
require the exercise of discretion. Rather, the Board is only required
to apply the Election Code provisions to the facts presented at the
closed preliminary hearing to determine whether the complaint was
filed on justifiable grounds.
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, 228 Ill. 2d at 211. 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.
In sum, we conclude that the Code requires judicial review of all
issues of law and fact presented by the record, including whether the
complaints were filed on justifiable grounds. 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

-11-
on justifiable grounds. The reasons for dismissal adopted from the
general counsel’s recommendation may be reviewed for clear error.
The Board’s dismissals should not be overturned unless the court is
left with a “definite and firm conviction that a mistake has been
committed.” Cinkus, 228 Ill. 2d at 211.
Given our construction of the Code providing for judicial review
of deadlock dismissals, it is unnecessary to consider the parties’
arguments challenging the Code’s constitutionality or whether those
arguments were procedurally defaulted. Additionally, while the
parties argue whether the complaints were filed on justifiable
grounds, we believe the appellate court should first review those
issues. We therefore remand this matter to the appellate court to
conduct the judicial review of the Board’s decisions in accordance
with this opinion.

III. CONCLUSION
For the foregoing reasons, we conclude that the Code requires
judicial review of whether the complaints were filed on justifiable
grounds. Accordingly, the appellate court’s judgment affirming the
dismissals of the complaints is reversed, and the matter is remanded
to the appellate court to conduct the judicial review of the dismissals
consistent with this opinion.

Reversed and remanded with directions.

JUSTICES FREEMAN and BURKE took no part in the
consideration or decision of this case.

-12-