dissenting:
I respectfully dissent. The issues before this court on appeal are: (1) whether the Commission has subject matter jurisdiction over the appeals of the defendant state employees; and (2) whether the “October 15” rules promulgated by CMS were valid. These two questions are inextricably intertwined. Under a proper analysis on administrative review, I would answer both of these questions in the affirmative. The majority opinion is rife with fact finding and conclusions which are improper on the appellate review of an administrative decision.
I
Initially, the majority declares the applicable standard of review as de novo, based on the assertion of the plaintiff agencies and the majority’s determination “[gjiven the procedural history of this case.” 357 Ill. App. 3d at 361.1 disagree.
Judicial review of a decision of the Commission is governed by the Administrative Review Law (735 ILCS 5/3 — 101 et seq. (West 2000)). 820 ILCS 405/1100, 2205 (West 2000). Under the Administrative Review Law, the scope of judicial review extends to all questions of law and fact presented by the record before the court. 735 ILCS 5/3 — 110 (West 2000). The applicable standard of review, which determines the degree of deference given to the agency’s decision, depends upon whether the question presented is one of fact, one of law, or a mixed question of law and fact. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 763 N.E.2d 272 (2001); City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204-05, 692 N.E.2d 295 (1998); Branson v. Department of Revenue, 168 Ill. 2d 247, 265, 659 N.E.2d 961 (1995).
In City of Belvidere, our supreme court set forth the “clearly erroneous” standard of review for questions of mixed law and fact. A mixed question of law and fact is one “involving] an examination of the legal effect of a given set of facts.” City of Belvidere, 181 Ill. 2d at 205. This standard of review is described as lying “between a manifest weight of the evidence standard and a de novo standard,” so as to provide “some deference” to the agency’s decision. City of Belvidere, 181 Ill. 2d at 205. Meanwhile, even when we review an agency’s interpretation of a statute de novo, we acknowledge that the agency’s interpretation was “relevant.” Branson, 168 Ill. 2d at 254.
When the decision of an administrative agency presents a mixed question of law and fact, the agency decision will be deemed “clearly erroneous” only where the reviewing court, on the entire record, is “ ‘left with the definite and firm conviction that a mistake has been committed.’ ” AFM Messenger, 198 Ill. 2d at 393, quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).
In the present case, the Commission’s decision presents a mixed question of law and fact. The Commission’s decision is, in part, factual because it involves considering whether the facts support the finding that the defendant employees were improperly terminated under the rules. At the same time, the Commission’s decision also concerns a question of law, as the plaintiff agencies allege that the regulation by which the employees were appointed to their respective positions was improperly promulgated and therefore void. Accordingly, the standard of review applicable to the aforementioned questions is the “clearly erroneous” standard. This court must determine whether the decision of the ALJ to reinstate the defendant employees, based on his presumption that the October 15 rules were properly promulgated, as adopted by the Commission, was clearly erroneous.
II
As I noted above, the questions before this court are effectively inseparable. To review the relevant facts: 13 state agencies dismissed 27 defendant state employees without cause and without notice early in January and February 2003. The record shows that the plaintiff agencies provide diverse functions to the State of Illinois and that each position held by the 27 employee defendants was distinct, as provided for by individual position descriptions. The defendant employees immediately filed individual appeals of their terminations, each requesting hearings by the Commission, pursuant to the Commission rules regarding discharge appeals.
On March 27, 2003, plaintiffs filed a combined motion to dismiss defendants’ individual requests for hearings arguing that the rules under which defendants were appointed to their respective state positions, the October 15 rules, were “void” for failing to comply with the “submission requirement of the Personnel Code,” which purportedly requires that any proposed rules implementing the Code be submitted to the Commission prior to becoming effective. Plaintiffs further argued that the October 15 rules “illegally” changed the procedure that previously required that employees wait through a probationary period of six months prior to being eligible for these particular positions of employment.
Plaintiffs’ argument that the Commission lacked jurisdiction to hear the defendants’ appeals is generated out of plaintiffs’ belief that the October 15 rules were void and therefore defendants improperly held their positions in the first place.
Notwithstanding the objection of the plaintiffs, the Commission commenced the individual and consolidated hearings of the defendant employees pursuant to the rules pertaining to their employment status. On September 5, 2003, the administrative law judge (ALJ) issued a “Decision on Petitioner’s Motion to Dismiss.” Therein, the ALJ made the following findings of fact: (1) no action of any type was initiated by anyone to challenge the October 15, 2002, rule changes except the immediate discharge of defendants based on opinions received from outside counsel; (2) the Civil Service Commission is empowered to hear and determine written charges filed seeking the discharge of employees; (3) plaintiffs terminated certified employees; and (4) the Commission has the jurisdiction to decide the propriety of the discharges of the employees. The ALJ denied the plaintiffs’ motion to dismiss.
The ALJ then commenced to issue his “Decision and Recommendation.” Initially, the ALJ determined that the Commission has the jurisdiction to determine the appeals of the defendant employees. The ALJ then issued the following findings of fact: (1) administrative rules and regulations are presumed to be valid; (2) both sides of the case raised interrelated issues which create questions of law; (3) the Commission is charged with hearing discharge appeals. Discharge cases are fact-based and are resolved on the basis that the employee either did or did not violate a policy of an agency to the extent that the employee’s conduct would warrant discipline up to and including discharge; (4) while the Commission rules upon certain questions of law and jurisdictional issues, in general, those rulings are based on recommendations by the administrative law judge based on an understanding of statutes and case law. Finally, the ALJ issued his opinion as follows:
“It is my opinion that the Commissioners should not be put in a position to make significant rulings of law in cases of first impression. This case was initiated when the Executive Branch of Government, relying on legal opinions, solicited from non-governmental attorneys who were apparent partisans in an election, relied upon an opinion of those lawyers and determined that prior conduct of the Joint Committee on Administrative Rules acted inconsistently with statutes and acted in contravention to requirements that had previously been imposed on hiring as determined by CMS, the legislature, and the Courts. In other words, this case involved the Executive Branch of Government ruling that the conduct of the Legislative Branch was illegal resulting in the discharge of many State employees.
The Commission, I need to point out[,] is an arm of the Executive Branch of Government. It is created by Statute in the Chapter of Illinois Laws that deals with the Executive Branch. There are some quasi judicial functions performed by the Commission, but it was, in my opinion, never intended to serve as an arbiter of disputes between the Legislature and the Executive.
The proper forum for this decision is the Circuit Court, and if necessary, higher Courts. Traditionally, the Courts resolve disputes between the Executive and the Legislature, and in my view after cutting through all of the facts and briefs, that’s what this case is all about.
My recommendation to the Commission is for the Commission to presume that the Rules are proper and were properly promulgated. Based on that recommendation, it necessarily follows that the employees need to be reinstated.”
The Commission adopted the recommendation of the ALJ, without making any new findings of fact. Plaintiffs filed a complaint .in administrative review in the trial court requesting that the decision of the Commission be rendered void for want of subject matter jurisdiction, reversed as “contrary to the law and public policy of the State of Illinois,” or reversed as against the manifest weight of the evidence. The trial court, in affirming the decision of the Commission, made no new findings of fact.
Ill
The ALJ properly characterizes this action as a dispute between the executive branch and the legislature. The Commission adopted the decision of the ALJ. The ALJ determined that it was not within the province of the Commission to determine the validity of the October 15 rules. The ALJ further found that if the executive branch believed that the statute was improperly enacted or unconstitutional, it was incumbent upon the executive branch to take its case against the legislature directly to the court system or back to the legislature to amend the statute.6 And yet, the executive branch did no such thing. Instead, the plaintiffs, under the orders of the executive branch, and based on the advice of outside and “politically partisan counsel,” ipso facto determined that the law was “void,” and sua sponte issued letters of termination to the defendant employees; essentially shooting first and asking questions later. The plaintiffs then attempted to bootstrap their belief in the invalidity of the October 15 rules, without making a proper claim, onto the ordinary hearing procedure for appeals of termination.
It is well settled that issues not raised in the trial court are deemed waived and may not be raised for the first time on appeal. Haudrich v. Howmedica, Inc., 169 Ill. 2d, 525, 536 (1996); Daniels v. Anderson, 162 Ill. 2d 47, 58-59 (1994). In Daniels, our supreme court held that “ ‘the theory upon which a case is tried in the lower court cannot be changed on review, and *** an issue not presented to or considered by the trial court cannot be raised for the first time on review.’ ” Daniels, 162 Ill. 2d at 58, quoting Kravis v. Smith Marine, Inc., 60 Ill. 2d 141, 147 (1975).
The majority, however, without precedent and authority, delves into the record of the hearings and into hearsay de hors the record to reinterpret the facts in order to make its own and numerous findings of fact contrary to the standard of review on administrative appeal. After making its own findings of fact, the majority leads us on a field excursion through the legislative process. Along the way, the majority, echoing the plaintiffs’ brief, complains that in enacting the October 15 rules, CMS refused to comply with the recommendations of JCAR. At the same time, the majority concedes in a footnote and within the text of the opinion that “[t]he opinions of JCAR are not binding on administrative agencies,” and that CMS properly submitted a response to the recommendation issued by JCAR, with an explanation for the changes in the rules. 357 Ill. App. 3d at 359 n.2.
Finally, based on its own fact-finding, the majority concludes that the October 15 rules are void ab initio, i.e., “from their inception” based on the illogical argument that the prior rules were “different” than the amended rules; the prior rules for probation required a 6-month period of eligibility, while the amended rules required 30 days.
The posture of this case is such that this court assumes common questions of law and fact and defers to the expertise of the agency to determine whether a serious mistake has been committed by the administrative body. The majority fails to recognize that by the time of the commencement of the individual hearings, the defendant employees would have held their respective positions in excess of six months, thereby more than meeting the prior standard for employment eligibility. The record fails to suggest that the defendants were unqualified to hold their respective positions; that the various agencies intentionally hired individuals who were unqualified for the respective positions; or that the agencies failed to comply with the appropriate hiring procedures. No mistake is apparent.
The majority distinguishes between gubernatorial administrations rather than recognizing that every gubernatorial administration is the same branch of government: the executive branch. To adopt the majority’s opinion one would have to believe that with every change of administration, all laws enacted during a prior administration are unlawful. The majority improperly acts as a vehicle to promote politics rather than reviewing the administrative decision before this court.
The majority’s further conclusion that the October 15 rules somehow altered the enabling statute’s operation is without support in the record. The majority relies on a series of cases where it was held that police departments unlawfully promulgated probation rules in order to effectuate demotions which conflicted with the Illinois State Police Act (Popejoy v. Zagel, 115 Ill. App. 3d 9, 449 N.E.2d 1373 (1983)) or the sheriffs merit system act (Vanko v. Sheahan, 278 Ill. App. 3d 302, 662 N.E.2d 512 (1996)). These cases are inapposite. The personnel rules applicable to the Cook County sheriff are governed by the sheriffs merit system act (55 ILCS 5/3 — 7008 (West 2002)), which establishes appointment eligibility criteria, and the personnel rules applicable to the Illinois State Police are governed by the rulemaking authority of the Illinois State Police Act (20 ILCS 2610/0.01 et seq. (West 2002)). Neither police department is subject to the rulemaking of the Administrative Procedure Act, which sets forth its own distinct rulemaking criteria.
In the present case, the defendant employees were properly certified according to the October 15 rules, which did not purport to extend the power of the Civil Service Commission. The October 15 rules purported to reduce the probationary period from 6 months to 30 days. Section 8b.6 of the Personnel Code provides for probationary periods “up to one year.” A 30-day probationary period is, by definition, within one year.
The majority further notes via footnote that subsequent to the entry of the decision of the Commission and during the pendency of the present case, effective November 19, 2003, the Illinois legislature enacted an amendment to the Personnel Code section 90 — 11, providing: “for a person appointed to a term appointment under Section 8b.8 or 8b.l9, the period of probation shall not be less than 6 months.” See 357 Ill. App. 3d at 366 n.4. This very legislation is evidence that the plaintiffs are well aware of the appropriate method for amending legislation.
IV
As stated above, our review here involves a mixed question of law and fact. The facts as found by the ALJ, and adopted by the Commission, support the determination that the defendant employees were improperly terminated under the rules pertaining to their employment. “To say that a court is ‘not bound’ by the administrative determination does not mean, however, that the court is free to wholly ignore the ruling, afford it no probative value, or substitute its own findings on the matter after conducting a de novo review of the evidence.” In re Austin W., 214 Ill. 2d 31, 55 (2005). Judicial review of an administrative agency decision is limited. Courts may not consider evidence outside of the record of the administrative appeal, reweigh the evidence to determine where the preponderance lies, or evaluate the credibility of the witnesses. 735 ILCS 5/3 — 110 (West 2002); In re Austin W., 214 Ill. 2d at 56, citing Lyons v. Department of Children & Family Services, 209 Ill. 2d 264 (2004).
Under the facts found by the ALJ and adopted by the Commission, the question of law, whether the defendant employees were appointed to their positions under an improperly promulgated rule, was properly answered in the negative by the trial court. There are no facts in the record which reveal that the rules were improperly amended to reduce the probationary period. The plaintiffs’ allegations are fraught with hearsay attempts to circumvent an ordinary interpretation of the applicable enabling statutes.
The record further shows that plaintiffs never raised the issue of the constitutionality of the October 15 rules at the trial court level; thus the trial court was never afforded the opportunity to rule on any constitutional violation. While a party may raise a constitutional challenge to a statute at any time (People v. Zeisler, 125 Ill. 2d 42, 46, 531 N.E.2d 24 (1988)), this court cannot, sua sponte, determine that a constitutional violation has ensued. Any constitutional issue is waived on review. See Haudrich, 169 Ill. 2d at 536; Daniels, 162 Ill. 2d at 58. Meanwhile, well aware of the flaws of its arguments here, and concurrent to the pendency of this action, plaintiffs undertook to reamend the rules under the proper legislative process to reinstate a probationary period of six months for certain types of employees. Under the clearly erroneous standard of review, no mistake has been committed by the Commission in presuming that the October 15 rules were properly promulgated and that the defendant employees were improperly terminated.
For these reasons, I would affirm the decision of the Commission and the judgment of the trial court.
In fact, plaintiffs eventually did so: see infra.