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IN THE
ILLINOIS SUPREME COURT
COOK COUNTY REPUBLICAN PARTY, ) Appeal from the Illinois Appellate
GARY J. SKOIEN, CHAIRMAN, ) Court, First District, Appeal Nos. 05-
Petitioner ) 3407 though 05-3416, a Consolidated
) Petition for Judicial Review of
) Proceedings Nos. 05 CD 044, 05 CD
v. ) 46, 05 CD 47, 05 CD 50, 05 CD 55,
) 05 CD 56, 05 CD 57, 05 CD 58,
THE ILLINOIS STATE BOARD OF ) and 05 CD 59 Before the Illinois
ELECTIONS et al. ) State Board of Elections.
Respondents. )
PETITION FOR LEAVE TO APPEAL
Stephen F. Boulton, Esq.
208 South LaSalle St., Suite 1721
Chicago, Illinois 60604
PRAYER FOR LEAVE TO APPEAL
Petitioner-Appellant, COOK COUNTY REPUBLICAN PARTY, GARY J, SKOIEN, CHAIRMAN, (hereinafter "Petitioner"), hereby requests that this Honorable Court grant it leave to appeal from the Illinois Appellate Court, First District, in Appeal No. 05-3407 (Illinois State Board of Elections and 4th Ward Democratic Organization, Respondents) ; Appeal No. 05-3409 (Illinois State Board of Elections and 7th Ward Democratic Organization, Respondents); Appeal No. 05-3410 (Illinois State Board of Elections and Anthony Beale, 9th Ward Democratic Committeeman, Respondents), Appeal No. 05-3411 (Illinois State Board of Elections and Theodore Thomas, 15th Ward Democratic Committeeman, Respondents) ; Appeal No. 05-3413 (Illinois State Board of Elections, 31st Ward Democratic Campaign Fund and Joseph Berrios Respondents); Appeal No. 05-3414 (Illinois State Board of Elections and 39th Ward Regular Democratic Organization, and Randy Barnette, Respondents); Appeal No. 05-3415 (Illinois State Board of Elections and 40th Ward Regular Democratic Organization, and Patrick J. OConnor, Respondents); and Appeal No. 05-3416 (Illinois State Board of Elections and Democratic Party of the 49th Ward, and David Fagus, Respondents), all being petitions for judicial review from proceedings before the Illinois State Board of Elections, consolidated into Appeal No. 05-3407.
PROCEDURAL HISTORY
The judgment of the Appellate Court was entered on December 17, 2007. A Petition for Rehearing was filed by Petitioner. The Order denying the Petition for Rehearing was entered on January 31, 2008.
ISSUES ON WHICH APPEAL IS REQUESTED
1. Whether the Appellate Court properly applied principles of judicial review by denying full judicial review on the merits of a dismissal by the Board of Elections after a tie vote on whether the Complaint before the Board presented justifiable grounds to proceed after Closed Preliminary Hearings under the Illinois Election Code.
2. Whether the evidence presented by Petitioner in Closed Preliminary Hearings before the Illinois State Board of Elections presented justifiable grounds to proceed to Open Public Hearings before the Board.
3. Whether Sections 9-21 and 9-22 of the Illinois Election Code are unconstitutional on grounds of denial of equal protection as applied by the Appellate Court to deny full judicial review on the merits of a dismissal by the Board of Elections after a tie vote on whether the Complaint presented justifiable grounds to proceed after Closed Preliminary Hearings under the Illinois Election Code.
4. Whether the Appellate Court erred in ruling that Petitioner engaged in waiver of a constitutional argument on the scope of judicial review under Sections 9-21 and 9-22 of the Illinois Election Code by not raising the argument in its initial appellate briefing.
STATEMENT OF FACTS
The eight proceedings that are the subject of this Petition all commenced on August 30, 2005 when Petitioner, the Cook County Republican Party (hereinafter referred to as Petitioner), filed sixteen separate actions against Democratic Ward Organizations in the City of Chicago and, in some cases, Chicago Ward Committeemen of the Cook County Democratic Party, before the Illinois State Board of Elections (hereinafter ISBE or the Board).
In all the cases, Petitioner alleged that the respective Respondents had violated the Illinois Election Code by (1) using Aldermanic service office space that was paid for, in whole or part, with funds appropriated by the Chicago City Council for the purpose of establishing governmental offices for elected Aldermen; and (2) failing to report the use as an in-kind donation on Form D-2 financial disclosure statements filed with the Illinois State Board of Elections. In two of the cases, Petitioner further alleged that the Respondent had violated the Illinois Election Code by failing to file a Form D-1 Statement of Organization for a ward organization with the ISBE, when the circumstances required such a filing. Upon service, the cases proceeded to an initial review required under the Illinois Election Code, a Closed Preliminary Hearing before Phillip Krasny, a Hearing Officer appointed by the Board.
In the Closed Preliminary Hearings, Petitioner presented evidence that the Aldermanic office identified on the City of Chicago website, and the Democratic Committeeman office identified on the website of the Cook County Democratic Party were identical. (Appeal No. 05-3407, R. 31, 33; Appeal No. 05-3410, R. 19, 21; Appeal No. 05-3411, R. 21, 19; Appeal No. 05-3413 R. 22, 25; Appeal No. 05-3414, R. 26, 29; Appeal No. 05-3415, R. 19, 22; Appeal No. 05-3416, R. 44, 48.)
In the Closed Preliminary Hearings, Petitioner presented the affidavits and testimony of witnesses that they had entered the Aldermanic Service Offices in question, and received affirmative responses to questions on whether the office was where political work was done, where political volunteers would come, where yard signs would be passed out, and where palm cards would be handed out. (Appeal No. 05-3407, R. 107, 103-5; Appeal No. 05-3410, 103-9; Appeal No. 05-3411, R. 77-86, 102-3; Appeal No. 05-3413 R. 86, 122-3; R.109-113; Appeal No. 05-3414; Appeal No. 05-3415, R. 68-82; Appeal No. 05-3416, R. 99-107.) Petitioner presented photographs of the exterior of several offices, which contained signage identifying the office as that of the Democratic Committeeman. (Appeal No. 05-3407, R. 26-29; Appeal No. 05-3409, R. 26; Appeal No. 05-3410, R.16-17; Appeal No. 05-3411, R. 13-17; Appeal No. 05-3413 R. 19-20; Appeal No. 05-3414, R. 22-4.) Petitioner presented evidence of the payment of public funds as rent for the offices (Appeal No. 05-3407, R. 37; Appeal No. 05-3409, R. 139; Appeal No. 05-3410, R. 25, 127; Appeal No. 05-3411, R. 25; Appeal No. 05-3413 R. 37; Appeal No. 05-3414, R. 32; Appeal No. 05-3415, R. 25; Appeal No. 05-3416, R. 50.) Finally, Petitioner presented evidence of either no rent payments at all by the Respondents, or the payment of minimal amounts. (Appeal No. 05-3407, R. 9-10; 9-18; Appeal No. 05-3409, R. 139; Appeal No. 05-3410, R. 119-20; Appeal No.; Appeal No. 05-3413 R. 9-12; Appeal No. 05-3414, R. 120-126; Appeal No. 05-3415, R. 9-12; Appeal No. 05-3416, R. 9-32.)
The individual Respondents either presented no evidence to rebut the allegations of political activity on the premises (Appeal No. 05-3407, Appeal No. 05-3411, Appeal No. 05-3414, Appeal No. 05-3415, Appeal No. 05-3416), or admitted that political activity was taking place at the Aldermanic offices. (Appeal No. 05-3409, R. 135-139; Appeal No. 05-3410, R. 119, 129; Appeal No. 05-3413 at R. 143-5.)
In each of the cases at bar, the ISBE Hearing Officer recommended a finding of justifiable grounds and the scheduling of Open Preliminary Hearings. (Appeal No. 05-3407, R. 72; Appeal No. 05-3409, R. 113; Appeal No. 05-3410, R. 72; Appeal No. 05-3411, R. 54; Appeal No. 05-3413, R. 63; Appeal No. 05-3414, R. 67; Appeal No. 05-3415, R. 60; Appeal No. 05-3416, R. 86.)
On October 17, 2005, the ISBE met in executive session to consider the cases. (S.R. 1-216.) In the Executive Hearing, the General Counsel of the ISBE recommended that the ISBE reject all the recommendations of the Hearing officer in the cases at bar. (S.R. 152-3). In each case, the ISBE deadlocked along strict party lines in 4 to 4 votes, resulting in a failure to muster five votes to determine that the complaints were filed on justifiable grounds. (Appeal No. 05-3407, R. 161-2; Appeal No. 05-3409, R. 163-71; Appeal No. 05-3410, R. 88; Appeal No. 05-3411, R. 60; Appeal No. 05-3413, R. 63; Appeal No. 05-3414, R. 67; Appeal No. 05-3415, R. 208-9; Appeal No. 05-3416, R. 86.) In virtually identical orders, each case was then dismissed pursuant to Section 9-21 of the Election Code. (Appeal No. 05-3407, R. 66; Appeal No. 05-3409, R. 106; Appeal No. 05-3410, R. 81; Appeal No. 05-3411, R. 54; Appeal No. 05-3413, R. 57; Appeal No. 05-3414, R. 61; Appeal No. 05-3415, R. 54; Appeal No. 05-3416, R. 79.)
Pursuant to Section 9-22 of the Illinois Election Code, 10 ILCS 5/9-22 (2006), Petitioner filed an original proceeding for judicial review with the Illinois Appellate Court, First District, which later consolidated the cases.
Before the Appellate Court, Petitioner filed a Brief that asserted the standard of review was de novo, because no findings were made. Petitioners Brief, p. 6-7. The Consolidated Brief filed by the Attorney General for the ISBE, as well as the Respondents Brief filed in Appeals No, 05-3413, and Appeal No. 05-3414 contained no discussion of the standard or scope of review whatsoever. The Briefs filed by other Respondents asserted that the standard of review was a manifest disregard of the evidence test for factual findings, and a clearly erroneous standard for applications of law to facts. (Appeal No. 05-3407, Respondents Brief, p. iv; Appeal No. 05-3409, Respondents Brief, p. iii; Appeal No. 05-3411, Respondents Brief, p. iii; Appeal No. 05-3411, Respondents Brief, p. 6; Appeal No. 3415, Respondents Brief, p. iii; Appeal No. 3416, Respondents Brief, p. iii;; Appeal No. 05-3413, 09.) None of the Briefs filed by any of the Respondents questioned the scope of review in the Appellate Court.
At oral argument, the Appellate Court panel raised for the first time the concern that the scope of judicial review may be limited. Cook Cty. Republican Party v. Ill St. Bd. of Elections, Ill. App. 3d (2007) (hereinafter Slip Op., attached hereto as Appendix, at p. 13.) Upon hearing the Courts concerns at the first oral argument, Petitioners counsel immediately asserted the existence of a constitutional deprivation from the podium. The Appellate Court requested that the parties file Supplemental Briefs addressing the question. Ibid. In the Supplemental Briefing, both the Petitioner and the Attorney General, representing the ISBE, asserted that full judicial review of the merits of the case was available. Id. In their Consolidated Supplemental Brief, the Individual Respondents before the ISBE denied that judicial review was available. In its Supplemental Brief, Petitioner asserted that denial of judicial review on ground of a tie vote result at the ISBE would create a deprivation of due process and equal protection. Slip Op. at 19, 24-25.
After a second oral argument, on December 17, 2007, a divided panel issued its majority and dissenting Opinions. In the majority Opinion, authored by Justice Cahill, the Appellate Court refused to reach the merits of the cases, and simply reviewed whether the ISBE acted properly followed the Election Code by dismissing the actions given the tie votes, a point not contested by Petitioner. The majority Opinion rejected judicial review on the merits, but admitted that full judicial review was quite practical, given that the full record of proceedings in each case was included in the record. The Appellate Court refused to address the constitutional issues raised by Petitioner in response to the Courts assertions on ground of waiver, stating [t]his issue was not raised in the parties' original briefs to this court. Slip Op. p. 19.
Justice Gordon filed a dissenting Opinion. The dissent agreed that under the existing version of Section 9-21 and 9-22 of the Election Code, judicial review on the merits was precluded by the tie votes at the ISBE. Justice Gordon opined, however, that the denial of full judicial review constituted a constitutional deprivation. Slip Op. at p. 25-29. The dissent rejected application of waiver principles to a constitutional issue created by the Courts sua sponte assertions at oral argument. Slip Op. at p. 24-25.
ARGUMENT
This Petition has been brought to defend two fundamental principles of democracy in a republican form of government: that the public funds of a government cannot be used to support the political operations of a particular political party, and that similarly situated persons receive due process of law and equal protection of the law.
This Court has on more than one occasion stressed the important role intended for the Illinois State Board of Elections within the civic life of Illinois. The Boards constitutional purpose is as follows: A State Board of Elections shall have general supervision over the administration of the registration and election laws throughout the State. Ill. Const., Art. III, Sec. 5. A common thread of jurisprudence concerning the Board is the recognition that in setting the original rules of the Board in the Illinois Election Code, the General Assembly obviously sought to negate partisanship as much as possible and to guarantee the Board's political independence. Lunding v. Walker, 65 Ill. 2d 516, 527, 3 Ill. Dec. 686, 359 N.E.2d 96 (1976).
In its Opinion, however, the Appellate Court has consigned the people of Illinois to a condition in which their Illinois State Board of Elections is rendered inert in so-called political cases, and partisanship reigns to block Board action. Further, the Appellate Courts decision sanctions an unconstitutional denial of judicial review of decisions of the ISBE to complainants whose cases are dismissed after a tie vote. Additionally, the Appellate Court now leaves Illinois jurisprudence in the awkward position that two separate standards exist for judicial review from decisions of the Board of Elections, one for tie cases, and another for cases decided by a majority. Such a result not only insults constitutional sensibilities, it defies common sense. Leave to appeal is requested.
In 1998, this Court last addressed the issue of votes at the ISBE. Ill. Republican Party v. Ill. St. Bd. of Elections, 188 Ill. 2d 70, 76, 241 Ill. Dec. 776, 779, 720 N.E.2d 231, 234 (1999). Under the then existing Election Code in 1999, the case proceeded to Open Preliminary Hearings unless five votes were cast to find a lack of justifiable grounds. 10 ILCS 5/9-21 (1997). This Court ruled that a 4-3 vote of the ISBE in favor of a finding of justifiable grounds required the holding of Open Preliminary Hearings, notwithstanding the fact that less than five votes of the ISBE were cast. In his concurring Opinion, Justice Rathje predicted the present condition of Illinois law after the appellate opinion below:
By contrast, under the dissent's construction of section 9-21, a strict party line vote precludes any further inquiry into the verified complaint. Thus, as long as partisanship prevails and the two sides never break ranks, no complaint will ever be considered on its merits in a public forum. Were the dissent's view to prevail, the Board might as well pack up and go home, as no complaint would ever receive a public hearing.
Ill. Republican Party, 188 Ill. 2d at 76, 241 Ill. Dec. at 779, 720 N.E.2d at 234.
In 2003, the legislature amended Section 9-21. P.A. 93-574, §5, eff. August 21, 2003. Under the amended version of Section 9-21, five votes are required in favor of justifiable grounds before the case could move on to Open Preliminary Hearings. Absent five votes, the statute mandates dismissal, as occurred here. 10 ILCS 5/9-21 (2007).
I. A COMPLAINT DISMISSED BY THE ISBE AFTER A DEADLOCK TIE VOTE IS SUBJECT TO FULL JUDICIAL REVIEW ON THE MERITS.
In a troubling decision in what is effectively a case of first impression in Illinois, the Appellate Court refused to engage in judicial review on the merits in a case in which the ISBE, at deadlock, took no action as defined in the Illinois Election Code, made no findings, and applied no law to any fact. While noting that the Record was sufficient to allow de novo review, the Appellate Court ruled that to do so would be contrary to principles of judicial review. Slip Op. at p. 15.
In support of its position, the Appellate Court cited the inapposite case law. The Court first cited a case which a school board that acted to issue regulations for teachers for the principle that the courts cannot substitute their discretion for that of an agency. Richards v. Bd. of Ed. of Tship H. S. Dis. No. 201, 21 Ill. 2d 104, 110, 171 N.E.2d 37 (1960). The next case was a medical boards action to deny a medical license, based on an affirmative finding of a lack of good character in the applicant, cited for the principle that courts cannot make independent review of the facts. Abrahamson v. Ill. Dept. of Prof. Reg., 153 Ill. 2d 76, 88, 606 N.E.2d 1111 (1992). The third was the case of a school board that refused to detach a piece of real estate from a school district, cited for the principle that the courts should not make decisions entrusted to an administrative agency. Zejmowicz v. Cty. Bd. of School Trustees of Whiteside Cnty., 133 Ill. App. 2d 735, 738, 272 N.E.2d 783 (1971).
The Appellate Court overlooked, however, crucial differences in the cases at bar. First, as a matter of law the Board took no action as the result was a 4-4 tie vote. Under the Election Code, 5 votes are necessary for any action of the Board to become effective. . . 10 ILCS 5/1A-7 (2004). As the Appellate Court noted, all the ISBE did was follow a statutory directive contained in the Election Code: 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 (2004). Slip Op. at p. 13. The Appellate Court also noted that the Board made no findings of fact or conclusions of law with respect to the complaints. Slip Op. at p. 15. Simply put, the Appellate Court had no ISBE action before it to review as arbitrary or capricious; no ISBE exercise of discretion to supersede; no ISBE decision to which to defer, no factual findings to review for manifest disregard or replace with independent review, and no application of law to fact to test as clear error. Given that all the evidence before the ISBE was in the appellate record, a de novo standard of review was the only lawful outcome.
The Majority Opinion below contains a lengthy effort to distinguish the cases cited by the Attorney General to argue that full judicial review was available. The majority attempted to distinguish the factually similar case of Dem. Congressional Campaign Comm. v. Fed. Election Comm'n, 831 F.2d 1131 (D.C. Cir. 1987), on ground that the court refused to decide the merits of the complaint itself. Slip Op. at 16. In the case, however, then Circuit Judge Ruth Bader Ginsburg merely referred the matter back to the deadlocked election board to allow it an opportunity to state its reasoning before judicial review was conducted. The court fully endorsed judicial review of a dismissal by a deadlocked election board, stating [i]n accord with the district judge, we conclude that the FEC's dismissal of DCCC's complaint is reviewable. DCCC, 831 F. 2d at 1133.
The Appellate Court also rejected a wide range of case law from other states and jurisdictions supporting the principle that tie votes at administrative agencies are subject to full judicial review. Slip Op. at 16-17.
Finally, in response to the Attorney Generals observation that without judicial review bipartisan dismissals are subject to judicial review but votes most likely to be partisan dismissals are not, (Slip Op. at p. 18), the majority cited West End Sav. & Loan v. Smith, 16 Ill. 2d 523, 158 N.E.2d 608 (1959) for the principle that allowing de novo review of the administrative decision would violate the concept of separation of powers. In Smith, however, the administrative agency heard evidence and issued a determination on the merits of the claim before it. This Court simply ruled that courts had no power to hear new evidence, or to reweigh the evidence adduced before the administrative agency. Smith, 16 Ill. 2d at 525, 158 N.E.2d at 609. In the cases at bar, however, Petitioner asked only that the established record before the ISBE be utilized, and no weighing of evidence was ever conducted by the ISBE, since no factual findings were issued. Smith has no application to bar full judicial review.
In conclusion, the principles of judicial review, the case law of other jurisdictions, simple logic and a sense of fair play and justice all call for judicial review of case after the non-decision created by the deadlock at the ISBE. Leave to appeal is requested.
II. PETITIONERS EVIDENCE MET THE LOW BURDEN OF PROOF IN CLOSED PRELIMINARY HEARINGS BEFORE THE ISBE.
Petitioner met its light burden of demonstrating justifiable grounds before the ISBE. Justifiable grounds are defined as some preliminary showing that the complaint was based on reasonable grounds and that the violations alleged were within the ambit of the Boards cognizance under the statute. Troy v. Ill. St. Bd. of Elections, 84 Ill. App. 3d 740, 742, 40 Ill. Dec. 556, 406 N.E.2d 562 (1st Dist. 1980). The Illinois Administrative Code defines the Closed Preliminary Hearing as not an adjudication, but shall be an inquiry to elicit evidence on the question whether the complaint was filed on justifiable grounds, and having some basis in fact and law. 26 IL ADC 125.252 (2005). The Closed Preliminary Hearing procedure was created to prevent the Board being made an instrument for the transmission of unfair accusations of wrongdoing made by political partisans against their opponents under circumstances in which the accused have an unfair and inadequate opportunity to defend themselves, such as untrue or ill-founded accusations filed a scant few days before an election. Ill. Republican Party v. Ill. St. Bd. of Elections, 188 Ill. 2d 70, 89, 241 Ill. Dec. 776, 786, 720 N.E.2d 231, 241 (1999) (Bilandic, J., dissenting). No such concern is presented in the cases at bar.
As detailed in the Statement of Facts, supra, Petitioner presented affidavits, testimony, filed financial reports of the Respondents, records of the City of Chicago and the Cook County Democratic Party. When available, Petitioner presented cross-examination of adverse witnesses. In some of the cases, Respondents presented no evidence in the hearing whatsoever. In each of the cases in which appeal is sought, the Hearing Officer agreed that Petitioner had met its minimal burden of proof. A deadlocked ISBE, voting along strict party lines, simply refused to proceed.
III. THE DENIAL OF FULL JUDICIAL REVIEW AFTER A TIE VOTE AT THE ISBE CONSTITUTES A CONSTITUTIONAL DEPRIVATION.
The constitutional deprivation created by the Appellate Court decision below arises from the fact that similarly situated complainants at the ISBE either receive full judicial review or not depending on the numerical outcome of the ISBE vote. The amendment to section 9-21 of the Election Code, as applied through Section 9-22, violates the constitutional guarantee of equal protection. Ill. Const. 1970, art. I, § 2.
In conducting an equal protection analysis, Illinois courts apply the same standards under both the United States Constitution and the Illinois Constitution. The guarantee of equal protection requires the government to treat similarly situated individuals in a similar fashion, by prohibiting the government from distinguishing between similarly situated citizens on the basis of criteria wholly unrelated to the legislation's purpose. Where, as here, the 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. Under the rational basis test, a court's review of a classification is limited and deferential. If any set of facts can reasonably be conceived to justify the classification, it will not be construed as violating the equal protection guarantee. Wauconda Fire Protection Dist. v. Stonewall Orchards, LLP, 214 Ill. 2d 417, 434, 293 Ill. Dec. 246, 828 N.E.2d 216 (2005).
Under Section 9-21 of the Election Code as interpreted by the Appellate Court, a complainant who case is dismissed after a 4-4 tie vote is denied full judicial review on the merits, while complainants whose complaints were dismissed by votes of 8-0, 7-1, 6-2 or 5-3 may receive full judicial review. As stated by Justice Gordon below, 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. Slip Op. p. 27-28.
The constitutional deprivation is crucial in this case. If the 2003 amendment to Section 9-21 is unconstitutional, it is void. In re Contest of Election for Offices of Governor and Lieutenant Governor Held at General Election on November 2, 1982, 93 Ill. 2d 463, 67 Ill. Dec. 131, 444 N.E.2d 170 (1983). Under the previous version of Section 9-21 the tie votes of the ISBE would result in the case proceeding before the Board, as five votes would be required to dismiss the cases. 10 ILCS 5/9-21 (2002). The constitutional issue is therefore unavoidable, and leave to appeal is accordingly requested.
IV. THE APPELLATE COURT IMPROPERLY FOUND WAIVER OF AN ARGUMENT FIRST RAISED IN RESPONSE TO ASSERTIONS BY THE COURT SUA SPONTE AT ORAL ARGUMENT.
The Appellate Courts application of waiver conflicts with the precedent of this Court. This Court has already rejected waiver in a factually parallel case, which involved constitutional deprivation in application of an election statute.
In the case of In re Contest of Election for Offices of Governor and Lieutenant Governor Held at General Election on November 2, 1982, 93 Ill. 2d 463, 67 Ill. Dec. 131, 444 N.E.2d 170 (1983), this Court was asked to empanel a special commission of three judges to rule on an election challenge in a gubernatorial election. In the briefing, the parties never addressed the constitutionality of the statute in question. Rather than assert waiver, this Court affirmatively raised and ruled on the constitutional issue:
We must first consider an issue which was not raised by either Stevenson and Stern or Thompson and Ryan-the constitutionality of the statute involved. Although this issue was not raised, in view of the nature of the proceedings and the public interest involved, failure to raise the constitutional question does not constitute a waiver. . . In fact, it would border on the irresponsible if, believing as we do that the statute is unconstitutional, we permit this election contest to commence. It is hornbook law that an unconstitutional statute is void.
In re Contest of Election, 93 Ill. 2d 463, 470-1, 444 N.E.2d 170, 172-3, 67 Ill. Dec. 131, 133-4 (1983). See also People ex rel. Peoria Civic Center Authority v. Vonachen, 62 Ill. 2d 179, 340 N.E.2d 1 (1975).
The cases at bar presents circumstances even more compelling than those in which this Court acted in In re: Contest of Election. In this case, Petitioner specifically attacked the constitutionality of the statute in question in response to positions asserted by the Appellate Court sua sponte. The Appellate Court failed to fulfill its judicial responsibilities by avoiding a squarely presented constitutional issue.
The majoritys assertion of waiver also conflicts with the basis of the waiver doctrine. The concept of waiver is rooted in the concept of fairness in the adversarial system. See Hux v. Raben, 38 Ill. 2d 223, 225, 230 N.E.2d 831 (1967). Such considerations do not come into play when the asserted waiver is issued against a position argued in response to a contention of a court issued sua sponte. Instead, the pursuit of a just result must be the goal, a goal that is not advanced by silencing parties from addressing contentions never made by the opposing litigant.
In proceedings below, Petitioner asserted a standard of de novo review in its Petitioners Brief. No Respondent ever raised the issue of the scope of judicial review in their Briefs. Petitioner quite properly did not address the matter in its Reply. Under the precedent of this case, however, a litigant in Illinois is now not only under a duty to respond to the contentions of the opponent, but also to anticipate every conceivable objection that the Court might raise sua sponte, address every such contention in the original appellate brief, upon pain of waiver. Such a burden is inherently unfair and unjust.
In asserting waiver against Petitioner, the majority below ignored the affirmative waiver engaged in by the Respondents. By failing to raise the scope of review in their briefs, Respondents engaged in a waiver of the argument. Ill. Sup. Ct. Rule 366. Further, as noted by the Appellate Court, in their Supplemental Briefs, the Attorney General and the Petitioner presented an aligned position: that this court can and should review the substantive allegations of the complaints and decide whether there were justifiable, grounds to warrant a public hearing. (Slip Op. p. 13-14.) It is difficult to conceive of a more obvious waiver than when a party affirmatively agrees with its opponents position before the court.
For their part, the individual Respondents asserted waiver in the Supplemental Briefing on ground that Petitioner had not raised the issue at the Board of Elections or in the Petitioners Brief. (Consolidated Supplemental Brief of Certain Aldermanic Respondents, at p. 5.) The ISBE, however, is hardly the proper forum in which to obtain a ruling on the scope of the scope of review available in the Illinois Appellate Court, nor did the Board have any authority to determine the issue. The Appellate Court simply erred in applying waiver to avoid the constitutional issue raised by their own contentions.
WHEREFORE, Petitioner, COOK COUNTY REPUBLICAN PARTY, hereby requests that this Honorable Court grant it leave to appeal.
Respectfully submitted,
COOK COUNTY REPUBLICAN PARTY
By: __________________________
Stephen F. Boulton
Stephen F. Boulton
208 South LaSalle St, Suite 1721
Chicago IL 60604
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