Chicago Republicans

 BEFORE THE
 ILLINOIS STATE BOARD OF ELECTIONS
 
COOK COUNTY REPUBLICAN PARTY,   )
GARY J. SKOIEN, CHAIRMAN,    )
       )
   Complainant,   )
v.       ) No. 05 CD 044
       )
4th WARD DEMOCRATIC ORGANIZATION,  )
       )
Respondent.   )

COMPLAINANT’S RESPONSE TO MOTION TO DISMISS 

NOW COMES Complainant, COOK COUNTY REPUBLICAN PARTY, GARY J. SKOIEN, CHAIRMAN, by and through its attorney, and for its response to the Motion to Dismiss filed by Respondent, 4th WARD DEMOCRATIC ORGANIZATION, states as follows: 
This proceeding rests upon a principle so obviously fundamental to the preservation of democracy in a republican form of government that it should scarcely bear explaining:  the public funds of a government cannot be used to support the political operations of a particular political party.  
Respondent now moves this Board to dismiss an action brought to enforce and defend that very principle.  The Motion must be denied.  Public funds may not be used to support the political operations of a political party or candidate.  If such aid is provided to a political organization that organization is bound to disclose the receipt of such aid.  Further, the Illinois State Board of Elections is fully empowered to hear complaints as to both the use of public funds for political purposes and failures in disclosure.
By employing a stilted interpretation of the statute at issue, and a narrow rendition of a single taxpayer case, Respondent seeks this Board’s silence on an unlawful practice.  Adoption of Respondent’s strained argument would not only eviscerate a key section of the Illinois Election Code, but it would also remove a primary legal protection against a use of tax dollars for partisan political purposes.  It is sobering to contemplate the abuses that could result from this Board’s endorsement of Respondent’s view of the law.   
Respondent also attacks the Complaint as insufficient to state a claim.  Complainant’s filings, however, have attached the Forms D-2 that demonstrate either no rent payments at all or inadequate rent, and no in-kind donations.  Complainant has attached a supporting affidavit in which an eye witness has testified to the absence of any identifiable physical demarcation between Aldermanic and political areas of the rental space in question.  Thus, the Respondent committees have either violated Section 9-25.1 of the Election Code, or else filed false and incomplete Forms D-2.   The Complaints must stand.  
I.  SECTION 9-25.1 OF THE ELECTION CODE PROHIBITS RESPONDENT’S CONDUCT, AND THE BOARD OF ELECTIONS HAS JURISDICTION TO CONSIDER COMPLAINTS RELATING TO SUCH CONDUCT.

Respondent’s argument must be rejected as contrary to a plain reading of the law.  Section 9-25.1 of the Illinois Election Code reads in relevant part as follows:
(a) As used in this section, “public funds” means any funds appropriated by the Illinois General Assembly or any political subdivision of the State of Illinois.

(b) No public funds shall be used to urge any elector to vote for or against any candidate or proposition, or be appropriated for political or campaign purposes to any candidate or political organization.

10 ILCS 5/9-25.1.  The purpose of this statute is not only obvious, it is recognized in law:
In our view, section 3 of the Act (Ill.Rev.Stat.1985, ch. 46, par. 103) [recodified as 10 ILCS 5/9-25.1] appears to have several, interrelated objectives. First, it helps to ensure that public funds will be devoted to the public purposes for which they were levied and not to the personal political interests of public officeholders. Taxes should, after all, support the operation of government; they ought not to be treated as campaign contributions to government officials. Similarly, the statute serves to eliminate the advantage which incumbent officeholders might have in affecting the electoral process if they were permitted to use the public monies at their disposal in support of their own political agendas.

Jenner v. Wissore, 164 Ill. App. 3d 259, 269-70, 115 Ill. Dec. 1220, 1227, 517 N.E.2d 534, 540 (5th Dist. 1988).  Each of the purposes identified above are now at risk in the case before the Board, and must be protected by a continuing broad interpretation of the statue.  First, public funds have indeed been allotted “to the personal political interests of public officeholders,” in that Alderman are housing their local political committees in space rented by the City of Chicago.  Second, incumbent officeholders gain an advantage in that competing organizations, candidates or committees must rent space at their expense, while Democratic ward committees enjoy free rent, and can therefore use the funds that might otherwise be paid to a landlord for campaign literature and other political expenses. 
 A. Statutory Interpretation Favors a Broad Scope for Section 9-25.1(b).
 Respondent’s interpretation of Section 9-25.1 does not survive close review of the statutory language.   As Respondent would have it, Section 9-25.1 only bars “monies given to or appropriated for a political organization or committee”  (Motion to Dismiss, p. 3) and that “the statute basically prohibits writing campaign checks from a government account.”  Ibid.   Apparently, in Respondent’s view anything else is lawful, no matter how improper.
Respondent overlooks the fact that the Legislature used the term “appropriated” in two different contexts in Section 9-25.1.   The term “public funds” is defined in Section 9-25.1(a) as funds “appropriated by the Illinois General Assembly or any political subdivision of the State of Illinois.”   Subsection (b) immediately employs this definition by beginning with the phrase “No public funds shall . . . ”   Most revealingly, however, in subsection (b), the Legislature used the term “appropriated” a second time, without the qualifying phrase of  “by the Illinois General Assembly or any political subdivision of the State of Illinois,” and in a very different context:  “No public funds shall . . . be appropriated for political or campaign purposes to any candidate or political organization.”     Given the inclusion of legislative action in the definition of “public funds” in subsection (a), the second use of the term “appropriated” in subsection (b) either has a different context, or else it is superfluous, and the Legislature engaged in an obvious redundancy.   Illinois courts have long held, however, that statures should be construed so that no word or phrase is rendered superfluous or meaningless.   Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 149 Ill. Dec. 286, 561 N.E.2d 656 (1990);  People v. Parvin, 125 Ill. 2d 519, 127 Ill. Dec. 731, 533 N.E.2d 813 (1988).
The conflict is resolved by the fact that the verb “to appropriate" has two meanings.  One definition is “to set aside or apart for a specified purpose” and is synonymous with “allocate.” The second definition is “to lay claim to for oneself or as one's right” and is synonymous with  “arrogate”, or  “usurp.”  Read in the second sense, subsection (b) simply states that public funds, i.e. “funds appropriated by the by the Illinois General Assembly or any political subdivision of the State of Illinois” cannot be secretly used in a manner to support private political parties under the guise of lawful expenditures, precisely the type of conduct alleged in this case. 
Respondent’s narrow interpretation of Section 9-25.1 must also be set aside as unconstitutional.    In Illinois, where possible statutes must be construed to avoid an unconstitutional result.  Sayles v. Thompson 99 Ill. 2d 122, 75 Ill. Dec. 446, 457 N.E.2d 440 (1983).   Under the Illinois Constitution of 1970, “Public funds, property and credit may only be used for public purposes.”  Ill. Const. 1970, art. VIII, sec. 1(a).   Under Respondent’s interpretation of Section 9-25.1, use of public funds and property is perfectly legal, so long as no check is physically written from a government account to a campaign or committee.  Such an interpretation of the law is in direct conflict with the Illinois Constitution, and must be set aside.
Finally, Respondent’s interpretation breeds absurd results.  In Illinois, legislative intent can be ascertained from a consideration of the entire act, its nature, its purpose, and the consequences that would result from interpreting the provision a specific way. People ex rel. Meyer v. Kerner, 35 Ill. 2d 33, 39, 219 N.E.2d 617 (1966)(emphasis added.)    In the instant case, under Respondent’s interpretation of Section 9-25.1, the entire Democratic Party apparatus in the city of Chicago could be moved to rent-free offices in Chicago’s City Hall, all without violating the Illinois Election Code, so long as no funds were specifically appropriated by the Chicago City Council to pay money to those entities.  It is difficult to fathom why the Legislature would construct a statute that would allow such a blatantly improper situation. 
While Respondent asserts that a narrow interpretation is mandatory because Section 9-25.1 is a “criminal statute”, that is no longer the case in the context of this proceeding.  The Motion to Dismiss ignores that in the codification of the Election Interference Law, the General Assembly transferred the provision into Article 9 of the Illinois Election Code, entitled "Disclosure of Campaign Contributions and Expenditures."  P.A. 87-1052. , Art. 5, Sec. 5-30, eff. Sept. 11, 1992.  The current Illinois Election Code grants authority to this Board to supervise compliance with the Code, 10 ILCS 5/1A-1, 13.  Under Section 9-20, the power to commence proceedings is granted to the public, not prosecutors:  “Any person who believes a violation of this Article has occurred may file a verified complaint with the Board.”  10 ILCS 5/ 9-20 (2005).   The Board is empowered to hold hearings upon such complaints, 10 ILCS 5/9-18 et seq., and to issue orders under Section 9-21 that are subject to Court review under Section 9-22.    The Board is authorized to issue  “civil penalties” for violations.   10 ILCS 5/9-23 (2005).    No provision exempts violations of Section 9-25 from these procedural provisions.  Only when an order of the  Board is ignored is the target entity subject to court proceedings and referral to prosecutorial authorities. Ibid.   Accordingly, Respondent has no grounds to assert a narrow interpretation of Section 9-25.1.  This Board is free to interpret the provision broadly.
B. Respondent has Violated the Prohibition in Section 9-25.1(b) against Use “to Urge any Elector to Vote for or against any Candidate.”

Respondent also overlooks the broad scope of language of in first clause of Section 9-25.1(b), which states that public funds cannot “be used” to urge any elector to vote for or against any candidate or proposition.”  10 ILCS 5/9-25.1(b) (2004)(emphasis added).  The term “be used” is capable of multiple and broad definitions.   Revealingly, the Legislature did not limit the term to “direct” as opposed to “indirect”’ use, nor did it state that the “use” could only be performed by the actual recipient of public funds.   Indeed, by adopting so expansive a term as “be used” without qualification, the Legislature obviously intended a very broad interpretation of Section 9-25.1(b). 
As Democratic Ward committees, the very purpose of the Respondent committees is to undertake operations to urge voters to vote for Democratic candidates.  Funds expended to provide free rent to these organizations in locations from which they will conduct campaign operations can easily be interpreted as being indirectly “used” to urge voters to vote for the candidates of the Democratic Party.   The Complaints must stand.
 C. Respondent’s Cited Case is Inapposite.
Respondent’s primary argument rests upon an extremely selective reading of Jenner v. Wissore, 164 Ill. App. 3d 259, 115 Ill. Dec. 534 (5th Dist. 1988).  Respondent’s reliance upon Jenner is simply misplaced.   In Jenner, a taxpayer sued to enjoin a college administrator from expending funds and allowing the use of college property by supporters of a tax referendum, and, after entry of an injunction, later pursued contempt proceedings based upon the administrator’s failure to comply.   The Jenner court dismissed the entire action on the narrow ground that the taxpayer had no standing to sue on a number of grounds.  The Appellate Court ruled that the college in question was not an agency of the state, and the college administrator was not a state officer.  The Appellate Court ruled that the plaintiff failed to engage in pre-suit demands upon the officer as required under Illinois law.  The Appellate Court ruled that the taxpayer was neither a person or a member of the class designed to be protected by the provision, nor a person for whose benefit the statute was enacted, nor the body to which a duty of compliance was owed.   The case is in accord with the Illinois courts’ careful restrictions on taxpayer suits.  See, e.g., Fuchs v. Bidwill, 65 Ill. 2d 503, 3 Ill. Dec. 748 (1976).   In the instant case, Complainant’s standing to file the Complaint is incontestable.  See, 10 ILCS 5/ 9-20 (2005).
 Jenner is distinguishable on its facts as well.  Notably, in Jenner, all expenses incurred by  the college were paid by the committee in question, and the complainant was unable to identify any specific funding that was depleted through use for the benefit of the committee.  Jenner, 164 Ill. App. 3d at 269, 115 Ill. Dec. at 1227, 517 N.E.2d at 534.   In the case before the Board, aldermanic office rent payments are paid by the City of Chicago from specified funds, appropriated by the City Council, by use of vouchers submitted by the Alderman, upon which the City directly pays the landlord.  Complainant has specifically identified the exact funds paid by the City as rent for aldermanic offices, including voucher records from the City.   Plaintiff sues to prevent further use of City funds to support Democratic Party operations.  Jenner must be distinguished.
II. COMPLAINANT HAS STATED A CAUSE OF ACTION.
Defeating Respondent’s procedural argument is but quick work, given that the Respondent is a political committee registered with the Board.  When ruling on a motion to dismiss, Illinois courts have adopted a standard that a court should grant the motion only if  the Complainant can prove no set of facts that would support a cause of action.  Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 542, 582 N.E.2d 108, 163 Ill. Dec. 842 (1991).   A court must accept all well-pleaded facts in the complaint as true and draw all reasonable inferences from those facts in favor of the nonmoving party.  Storm & Associates, Ltd. v. Cuculich, 298 Ill. App. 3d 1040, 700 N.E.2d 202, 233 Ill. Dec. 101 (1st Dist. 1998).
A. Adequate Facts have been Pleaded to Maintain the Complaint. 
 Respondent’s first argument, that not enough facts have been pleaded regarding political activity, blithely ignores two points.   First, the various Respondents are political committees.  The only purpose of the committees is to perform political work on behalf of the Democratic Party and /or its candidates.  For example, the stated purpose of the Respondent-Movant, as stated in filings with the Board, is “Democratic political activity in the 4th Ward.”   Given that the Fourth Ward currently is represented by an Alderman, Mayor, State Representative, State Senator, Congressman, Governor, and two United States Senators, all of whom are members of the Democratic Party, it is a fair inference, for purposes of the Motion to Dismiss, that some Democratic political activity is occurring in the Fourth Ward, and, in light of its stated purpose as a political committee, Respondent plays a role in it.
Second, each of the Respondent committees, including the Fourth Ward, lists an address that is the same address as an aldermanic ward office.  Complainant has also attached photographs in which the dual role of the office in question is advertised.   The affidavit demonstrates that in office after office there is no visible demarcation between aldermanic and ward functions.  Complainant has more than stated a claim.
B. Respondent has No Defense Based Upon Purported Payments by “Other Committees.”

 Respondent’s unsupported contention that “other committees” may have made rent payments is completely irrelevant.  The filed and sworn Forms D-2 for the Respondent ward organizations show either no rent payments as expenses, or wholly inadequate rent payments on an occasional basis.  Just as importantly, the Respondent organizations show no in-kind contributions to reflect free rent, nor do they list in kind contributions to reflect the contribution that occurred when “other committees” - never named or identified - made rent payments on their behalf.    Given the sworn statements made in the Form D-2s, Respondent’s argument cannot be accepted, as Respondent is seeking dismissal of the Complaint by contradicting its own sworn filing before the Board.   Under Respondent’s asserted but completely unproven facts, at a minimum the ward organization Form D-2s require substantial amendments to reflect the true state of contributions, either direct or in-kind.   The Complaint states a claim.
C. Respondent’s Free Rent Office Space Qualifies as a “Contribution” under the Election Code.
 
 Respondent’s attempt to evade the definition of “contribution” is in conflict with the provisions of Sections 9-10, 9-11 and other sections of the Election Code that mandate disclosure of contributions to political committees.  While relying on only one portion of Section 9-1.4 to assert that no “contribution” is alleged, Respondent overlooks Section 9-1.4(5), which excludes from the definition of “contribution” the use of real estate only when done at an individual ‘s residence and in an aggregate value of less that $150.  Respondent’s free rent arrangement meets neither aspect of that test.  Moreover, Section 1.4 includes the phrase “anything of value” in defining a “contribution.”   Under the Election Code, the term “anything of value” is defined as “all things, services or goods, regardless of whether they may be valued in monetary terms according to ascertainable market value.”  10 ILCS 5/ 9-1.12 (2005).   Free rent certainly meets this broad definition.
CONCLUSION
 Respondent’s Motion to Dismiss fails at every turn.  Complainant therefore asks that the several proceedings move forward to preliminary hearing.
WHEREFORE, Complainant, COOK COUNTY REPUBLICAN PARTY, GARY J. SKOIEN, CHAIRMAN, respectfully requests that the Board deny Respondent’s Motion to Dismiss, and grant Complainant any such further relief as the Board deems equitable and just. 
     Respectfully submitted,
COOK COUNTY REPUBLICAN PARTY,
GARY J. SKOIEN, CHAIRMAN

    
By:________________________________
           One of Its Attorneys

Stephen F. Boulton
General Counsel
Cook County Republican Party
208 South LaSalle, Suite 1721
Chicago Illinois  60604