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, § 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 (181 Ill. 2d at 536-37), “[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 separation of powers provision of the Illinois Constitution. Accordingly, I respectfully dissent.
JUSTICES HEIPLE and NICKELS join in this dissent.