concurring in part and dissenting in part:
Today the majority affirms the dismissal by the Illinois State Board of Elections (Board) of 10 complaints brought by the Cook County Republican Party (GOP) alleging violations of the Election Code (Code) (10 ILCS 5/1 — 1 et seq. (West 2004)). The majority first affirms the Board’s dismissals, by 5-3 votes,1 of two of the complaints — against the 5th Ward Regular Democratic Organization (5th Ward complaint) and the 28th Ward Democratic committeeman (28th Ward complaint). The majority also affirms the Board’s dismissals, by 4-4 tie votes, of the remaining eight complaints. I agree with the majority’s decision affirming the dismissals of the 5th Ward and 28th Ward complaints. Accordingly, I concur with this portion of the majority’s judgment and opinion. However, I disagree with the majority’s decision affirming the Board’s tie-vote dismissals of the remaining eight complaints. I respectfully dissent from that part of the judgment and opinion.
An important question in this case is whether tie-vote dismissals by the Board, pursuant to the amended section 9 — 21 of the Code (10 ILCS 5/9 — 21 (West 2004)), are judicially reviewable. Section 9 — 21 provides, in pertinent part: “If the Board fails to determine that the complaint has been filed on justifiable grounds, it shall dismiss the complaint without further hearing.” 10 ILCS 5/9 — 21 (West 2004). Five votes are necessary for any action of the Board to become effective. 10 ILCS 5/1A — 7 (West 2004). Accordingly, if the Board fails to reach a five-vote majority on whether a complaint has been filed on justifiable grounds — e.g., the vote is a 4-4 tie — the Board has failed to determine that the complaint was filed on justifiable grounds, and under section 9 — 21, the complaint must be dismissed.2
In my view, such tie-vote dismissals are not reviewable. Without a five-vote majority, the Board could not adopt any findings or reasons for its dismissals, including that the complaint lacked justifiable grounds. See 10 ILCS 5/1A — 7 (West 2004). In these circumstances, there is essentially nothing for this court to review, other than the question of whether the Board followed the statute and dismissed the complaints. However, it is a foregone conclusion that the Board complied with the statute. The subject at issue is tie-vote dismissals under section 9 — 21. If the Board dismissed the complaints pursuant to section 9 — 21, the Board clearly complied with the statute. Any review of whether the complaints were dismissed in compliance with section 9 — 21 would be a meaningless exercise.
Notwithstanding the foregoing, the Board argues that dismissals based on tie votes are judicially reviewable. In support of this argument, the Board points to sections 9 — 22 and 9 — 21 of the Code. Section 9 — 22 provides: “Any *** person who files a complaint on which a hearing was denied *** may obtain judicial review” (10 ILCS 5/9 — 22 (West 2004)), and section 9 — 21 states: “If the Board fails to determine that the complaint has been filed on justifiable grounds, it shall dismiss the complaint without further hearing” (10 ILCS 5/9 — 21 (West 2004)). The Board appears to argue that, because section 9 — 22 provides for review of complaints where a hearing was denied, and because section 9 — 21 includes within its scope tie-vote dismissals, such dismissals are subject to judicial review. This argument is unpersuasive.
I note, initially, that section 9 — 22 does not expressly mention tie votes. A more important point, however, is that the Board’s argument leaves unanswered the question of what the scope of our review would be if we were to review tie-vote dismissals. As previously indicated, because tie-vote dismissals lack the requisite five-vote majority “necessary for any action of the Board to become effective” (10 ILCS 5/1A — 7 (West 2004)), the Board cannot, in such situations, have made any determinations that the complaints at issue lacked justifiable grounds. As a result, there would be, in these cases, essentially nothing for this court to review.
The Board next argues, in further support of its claim that tie-vote dismissals are reviewable, that there is no other statutory prohibition against such review. The Board notes, for example, that there is no requirement in the Administrative Review Law (the Review Law) (735 ILCS 5/3 — 101 et seq. (West 2004)) that a final administrative decision must be based on a majority vote in order to be subject to judicial review. This argument also is unpersuasive. While the Review Law does not expressly prohibit tie-vote dismissals, it also does not expressly allow them. There is no mention of tie-vote dismissals in the Review Law.
In a third argument in support of its reviewability contention, the Board asserts that, in the case at bar, its dismissal orders, taken together with the administrative record, “adequately show the allegations and evidence that the [Board] considered and the reasons for the tie-vote dismissals to permit judicial review.” According to the Board, there was sufficient support for these (tie-vote) dismissals to meet the standard for judicial review set forth in Reinhardt v. Board of Education of Alton Community Unit School District No. 11, 61 Ill. 2d 101 (1975), which stated:
“It is clear that a decision by an administrative agency must contain findings to make possible a judicial review of the agency’s decision. The Supreme Court in Securities [&] Exchange Com[m’n] v. Chenery Corp., 318 U.S. 80, 94, 87 L. Ed. 626, [636,] 63 S. Ct. 454[, 462 (1943)], described the requirement[,] stating that ‘the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.’ ” Reinhardt, 61 Ill. 2d at 103.
The record in the case at bar contains sufficient support to allow review of the dismissals of complaints where the dismissals are based on majority votes. In such a case, it is clear that the Board, by virtue of its majority vote, adopted the relevant findings and reasons that are of record. However, where the dismissals were by tie votes, it cannot be said that the Board adopted the relevant reasons, no matter how clearly they were disclosed in the record.
If tie-vote dismissals under the amended section 9 — 21 are not reviewable, this raises the question of whether the amendment to section 9 — 21 is constitutional. The GOP argues that it is not. According to the GOB if dismissals by tie vote (pursuant to section 9 — 21) are not subject to judicial review, while dismissals by majority vote are subject to such review, this constitutes a violation of the constitutional guarantee of equal protection. Ill. Const. 1970, art. I, §2.
In its opinion in the case at bar, the majority holds that, because the constitutionality of section 9 — 21 was not raised in the parties’ original briefs to this court, this issue has been waived. 378 Ill. App. 3d at 763-64. In my view, the waiver rule should be disregarded in this instance. “The waiver rule is a limitation on the parties and not on the court.” Mid-West Energy Consultants, Inc. v. Covenant Home, Inc., 352 Ill. App. 3d 160, 166 (2004). “[T]his court is not bound by the principle of waiver and, in the interest of a just result, we may elect to address an argument.” Chubb Insurance Co. v. DeChambre, 349 Ill. App. 3d 56, 60 (2004).
During initial oral argument in the case at bar, this court raised, sua sponte, the issue of whether dismissals by tie vote, pursuant to section 9 — 21, were judicially reviewable, and we invited the parties to brief this issue. The majority opinion mentions this request for supplemental briefing. However, the majority fails to mention that, while discussing this additional briefing with the parties, we expressly noted that, if tie-vote dismissals were not reviewable, this might raise a question as to the constitutionality of the amendment to section 9 — 21. Given our mention of this issue at the time we requested additional briefing, it is understandable that the GOP chose to argue this question in its supplemental brief. In these circumstances, the waiver rule should be disregarded, and the GOP’s argument regarding the constitutionality of section 9 — 21 should be addressed.
I agree with the GOP that, if tie-vote dismissals are not reviewable, the amendment to section 9 — 21 violates the constitutional guarantee of equal protection. Ill. Const. 1970, art. I, §2. “Whether a statute is constitutional presents a question of law that we review de novo.” Schultz v. Lakewood Electric Corp., 362 Ill. App. 3d 716, 720 (2005).
The principles of equal protection analysis are well established.
“In conducting an equal protection analysis, we apply the same standards under both the United States Constitution and the Illinois Constitution. [Citation.] The guarantee of equal protection requires the government to treat similarly situated individuals in a similar fashion. [Citation.] It does not prevent the government from drawing distinctions between different categories of people in enacting legislation, but it does prohibit the government from doing so on the basis of criteria wholly unrelated to the legislation’s purpose. [Citation.] Where legislation does not affect a fundamental right or involve a suspect or quasi-suspect classification, the appropriate level of scrutiny is the rational basis test. [Citation.] Under the rational basis test, a court’s review of a classification is limited and deferential. [Citation.] *** If any set of facts can reasonably be conceived to justify the classification, it will not be construed as violating the equal protection guarantee. [Citation.]” Wauconda Fire Protection District v. Stonewall Orchards, LLP, 214 Ill. 2d 417, 434 (2005).
“ ‘The rational basis test is satisfied where the challenged statute bears a rational relationship to the purpose the legislature intended to achieve in enacting the statute.’ [People a] Cornelius, 213 Ill. 2d [178,] 203-04 [(2004)]. *** ‘So long as there is a conceivable basis for finding the statute rationally related to a legitimate state interest, the law must be upheld.’ Village of Lake Villa [v. Stokovich], 211 Ill. 2d [106,] 126 [(2004)].” Schultz, 362 Ill. App. 3d at 720.
In the case at bar, the GOP is similarly situated to other claimants whose complaints have been dismissed by the Board. However, under the amended section 9 — 21, the GOP is not treated similarly to claimants whose complaints were dismissed by a majority vote of the Board. Those claimants whose complaints were dismissed by a vote of 8-0, 7-1, 6-2 or 5-3 may seek judicial review of the decision. Claimants such as the GOI] on the other hand, whose complaints were dismissed by a tie vote pursuant to the amended section 9 — 21, may not — in my view — seek judicial review.
As is noted in the parties’ supplemental briefing, there is essentially no legislative history regarding the 2003 amendment to section 9 — 21. The Board’s brief states:
“The section 9 — 21 amendment was a small part of an omnibus, 200[-]page, Election Code reform amendment added by the Illinois House of Representatives [citation] to an Illinois Senate bill [citation], As such, it engendered no debate or comment on the floor of either chamber.”
As a result, it is unclear what the legislature intended to achieve in amending section 9 — 21. However, even without a clearly articulated legislative purpose, the analysis here is the same.
I can conceive of no legitimate state interest in a statutory scheme under which claimants whose complaints were dismissed by a majority vote may seek judicial review, but claimants whose complaints were dismissed by a tie vote may not.3 It follows that there is no conceivable basis for finding the amendment to section 9 — 21 “rationally related to a legitimate state interest” (Schultz, 362 Ill. App. 3d at 720) where no such interest exists. In my view, the 2003 amendment to section 9 — 21, on its face, violates the constitutional guarantee of equal protection.
In making this determination, I necessarily conclude that the amendment to section 9 — 21 “cannot reasonably be construed in a manner that would preserve its validity.” 210 Ill. 2d R. 18(c)(3). I also conclude, again necessarily, that there is no alternative, nonconstitutional ground on which the decision could be based. See Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 396 (1994). In keeping with Supreme Court Rule 18(c)(4) (210 Ill. 2d R. 18(c)(4)), I have carefully considered the alternative ground (argued by the Board) that tie-vote dismissals are subject to judicial review. As previously indicated, I reject the Board’s arguments on this point.
I would hold that the amendment to section 9 — 21 violates the constitutional guarantee of equal protection, and the amendment therefore must be stricken. Section 9 — 21 would revert to its preamendment version, which stated: “If the Board determines that the complaint has not been filed on justifiable grounds, it shall dismiss the complaint without further hearing.” 10 ILCS 5/9 — 21 (West 2002). Under our supreme court’s construction of this version of the statute (Illinois Republican Party v. Illinois State Board of Elections, 188 Ill. 2d 70 (1999)), a deadlock vote on a complaint automatically results in the complaint’s advancing to a public hearing.
For the reasons set forth above, I would reverse the Board’s tie-vote dismissals of the eight remaining complaints and would remand these complaints to the Board for public hearing. I respectfully dissent from that portion of the majority’s judgment and opinion which holds otherwise.
The Board consists of eight members, four from each of the two major political parties. 10 ILCS 5/1A — 2 (West 2004). Five votes are necessary for any action of the Board to become effective. 10 ILCS 5/1A — 7 (West 2000).
Prior to the amendment to section 9 — 21 (Pub. Act 93 — 574, eff. August 21, 2003), there was no such requirement that the complaint be dismissed if the Board failed to reach a five-vote majority. See Illinois Republican Party v. Illinois State Board of Elections, 188 Ill. 2d 70, 72-75 (1999). The preamendment version of section 9 — 21 provided, in pertinent part: “If the Board determines that the complaint has not been filed on justifiable grounds, it shall dismiss the complaint without further hearing.” 10 ILCS 5/9 — 21 (West 2002).
As the Board argues in contending that section 9 — 21 dismissals should be reviewable, it makes no sense for “[bipartisan, majority-vote dismissals [to] be reviewable while partisan, tie-vote dismissals [are] not.”