concurring specially:
I concur with the decision to affirm, but do so for reasons that differ somewhat from those of the majority. I have great difficulty reconciling the express language of article I, section 17, with the conclusion that the legislature has power to limit to administrative redress the remedy for injury inflicted by conduct constituting a violation of section 17. However, although the question is a close and difficult one, I agree that the constitutional convention would not have enacted the section had not the majority of the members thought that the legislature would have such power.
Elmer Gertz, practitioner and a professor of law, was the chairman of the bill of rights committee of the Sixth Illinois Constitutional Convention which drafted the Illinois Constitution of 1970. In his subsequently written article The Unrealized Expectations of Article I, Section 17, 11 J. Mar. J. Prac. & Proc. 283 (1977-78), he presents a logical argument that section 17 created a constitutional remedy of an action at law for a violation of the section and the legislature is powerless to destroy that remedy.
The wording of section 17 supports the theory of Professor Gertz. Indisputably, the first paragraph of the section sets forth the constitutional right of all persons to be free from the prohibited discrimination regardless of whether the discrimination arises from governmental action or that of private individuals or entities. The first portion of the second paragraph creates a constitutional right to a remedy without the necessity of legislative action. Such a remedy could only be a remedy in a court of law. As mentioned by the majority, Delegate Wilson pointed out that the remedy was created so that no viable contention could be made that the section was merely intended to be a pious preachment without enforceability. The third portion of that paragraph allows the legislature to “provide additional remedies” for those rights. (Emphasis added.) As the Gertz article points out, describing the remedies which the legislature might enact as “additional” seems to indicate that the constitutional remedy created by the first portion of the. paragraph was to remain in force after the enactment of any such remedy. It is difficult to envision what these legislative remedies would be “additional” to if they would not supplement the right of action previously referred to in section 17.
Nothing in the language of the second portion of the second paragraph of section 17, authorizing the legislature to “establish reasonable exemptions” relating to the rights created, indicates an intention to empower the legislature to abolish the remedy created in the first portion. Nothing in the bill of rights committee document quoted in Thakkar, and subsequently by the majority, so indicates. The portion of that document contained between the portions quoted clearly indicates the committee intended the word “exemptions” to refer to the type of situations which would not give rise to a right to be free from discrimination. The omitted language stated:
“To cite other examples, it is obviously proper for a congregation to utilize a religious test in employing a minister. Similarly, few would approve an anti-discrimination provision that absolutely prohibited the kind of indirect discrimination involved in providing housing exclusively to the aged members of certain religious or ethnic organizations, or women’s groups. Persons might also be permitted some discrimination in employment or rental relationships that are on so small a scale and under circumstances so intimate that they are of a highly personal nature.” 6 Proceedings 68-69.
The bill of rights committee presentation was made to the delegates as they sat as a committee of the whole. Chairman Gertz designated Delegate Wilson to be the principal spokesman. Before answering questions, Wilson made some prefatory remarks. His explanation of the use of the word “exemptions” is entirely consistent with the committee report and indicates that there was no intention to include within the meaning of the term “exemptions” limitation upon remedies for violations. Wilson said:
“We felt that the legislature should be empowered to provide for reasonable exemptions here where the balancing would be the other way around, if you please, and where in these situations we felt that the greater value lies in a freedom of choice on the part of the employer or, for example, on the part of a person furnishing the housing.
Now, let me give you an idea of some of these possible exemptions which we feel are reasonable and which the legislature would be empowered to enact. Excuse me. For example, the right of religious organizations to employ or provide housing for members of their own faith only. This could be such things as children’s homes, old people’s homes, and various things of that kind. The right of truly private clubs to provide housing for their own members only would be another example, in the committee’s view, of a reasonable exemption. And then we run into that category which has come in a popular jargon to be known as the exemption relating to Mrs. Murphy’s boarding house — that type of exemption, or — and I think under the Federal Housing Act this runs up to as much as a building with four apartments or four flats in it in which one of the apartments is actually owned — actually occupied by the owner as his own residence. Another example of a reasonable exemption would be that relating to small employers — employers, that is, of small numbers of employees. Just what this number would be, I don’t know, of course; but in all these areas it was the committee’s feeling that the relationship between landlord and tenant or between employer and employee was of such a intimate and personal nature that the greater value there lies in leaving a freedom of choice to the landlord or to the employer, as the case might be. Hence, we have provided that the legislature may enact these exemptions. It’s not required to do so, but it has the — has the power under the clause to do so.” 3 Proceedings 1592-93.
I have no doubt that in enacting the Human Rights Act, the legislature intended the proceedings for redress for conduct violating that act would be administrative actions under the procedure there provided even if the conduct also violated article I, section 17. However, I have some concern with the conflict between the language of section 8 — 111(D) of the act and article VI, section 9, of the Illinois Constitution of 1970. Section 8 — 111(D) states that “except as otherwise provided by law, no court *** shall have jurisdiction over the subject of an alleged civil rights violation” except as the Act might provide. Article VI, section 9, provides that, with minor exceptions not applicable here, circuit courts shall have “original jurisdiction of all justiciable matters.”
At the time of the enactment of the 1962 amendment to the Judicial Article of the Illinois Constitution of 1870 (Ill. Const. 1870, art. VI (amended), sec. 9), that article contained a provision substantially similar to the present article VI, section 9. At that time there were many legislative provisions limiting relief to administrative provisions. Obviously, the constitutional amendment was not intended to do away with the power of the legislature to so provide. (See Fins, Re-Examination of “Jurisdiction” in Light of New Illinois Judicial Article, 53 Ill. B.J. 8 (1964).) In fact, a further provision of that article VI, section 9, like the present provision, provided for the circuit court to have jurisdiction to review administrative decisions as the legislature might require.
Just how the power of the legislature to make administrative remedies the sole procedure for original determination of certain types of disputes meshes with the circuit court’s “original jurisdiction of all justiciable matters” is not clear. The rationale cannot be that the administrative proceeding is a condition precedent to the circuit court’s exercise of its original jurisdiction, because the circuit court’s exercise of its power after administrative proceedings is an exercise of its power of review of administrative rulings and not an exercise of its original jurisdiction. Perhaps the legislature has the power to deem certain types of disputes to be not “justiciable.”
In any event, to the extent that article I, section 17, creates a constitutional right to a cause of action at law, the legislature would be without power to deprive the court of that jurisdiction and without the power to make the exercise of that power by the circuit court erroneous. For reasons subsequently explained, I conclude that section 17 created a constitutionally prescribed cause of action at law only to the extent that the State, at any given time, does not have a reasonable legislative remedy for a violation of that section. Thus, when the Human Rights Act was enacted, providing a reasonable remedy for covered gender discriminations, of both a public and private nature, there no longer existed a constitutional right of action at law for such discrimination. The constitutional right of action was negated by the enactment of the administrative remedy and not by the language purporting to limit the jurisdiction of the circuit court.
My conclusion is similar to that of the majority, but, as I have indicated, I analyze the matter in a somewhat different way. As with them, I consider the explanations of section 17 given to the delegates to be persuasive. The quoted question asked by Delegate S. Johnson and the answer of Delegate Wilson both spoke of the section 17 remedy in the absence of legislation. Delegate Wilson spoke of the power of the legislature to establish “procedure and remedies” (emphasis added) and indicated that the legislature could put limits on the amount of recovery.
The majority calls attention to the Thakkar court’s reference to public policy favoring the use of administrative remedies in matters such as those involved here. The Fair Employment Practices Act was in force at the time of the Sixth Constitutional Convention. It provided for an exclusive administrative remedy for victims of discriminating practices prohibited by the Act. Professor Gertz expresses severe criticism of the effectiveness of those remedies and indicates that section 17 was intended to eliminate the exclusivity of those provisions. Such a change would have been a drastic one, but the record of the proceedings of the convention does not indicate that the delegates were ever informed of this substantial change. Rather, the whole focus of the explanation to them concerned the existence of a remedy when no remedy was provided by the legislature.
After considering the explanations of section 17 given to the delegates, the lack of explanation that it was intended to make the procedural changes asserted by plaintiff and the drastic nature of those changes, I cannot hold that the delegates intended to prevent the legislature from limiting proceedings for violations of section 17 to those of an administrative nature. The trial court properly dismissed the complaint.