Chicago Republicans

Rehearing is respectfully requested of this Court on ground that this Court has engaged in a highly selective and openly inconsistent application of the application of principles of appellate waiver, resulting in a disturbing precedent in Illinois election law.

This Petition addresses the eight cases in which the Board engaged in a 4-4 tie vote on the question of “justifiable grounds,” or cases 05 CD 44, 05 CD 46, 05 CD 47, 05 CD 50, 05 CD 56, 05 CD 57, 05 CD 58, and 05 CD 59. In its Opinion issued on December 17, 2007, this Court refused to address the constitutional issues raised by Appellant, which made in response to concerns raised by the Court sua sponte at oral argument, and not by any Appellee, stating:

We do not address petitioner's argument that section 9-21 is unconstitutional because it immunizes from judicial review procedural dismissals due to tie votes. This issue was not raised in the parties' original briefs to this court. The original briefs assumed we could reach the substantive allegations of the complaints. The supplemental briefs we ordered were to address the narrow issue of our scope of review. Petitioner's additional argument on the constitutionality of section 9-21 is not properly before the court. See Orlowski v. Village of Villa Park Board of Fire & Police Commissioners, 273 Ill. App. 3d 42, 652 N.E.2d 366 (1995) (general rule that points not argued in appellant's brief are waived applies to appeals for administrative review).

Opinion of December 17, 2008, at p. 19.

At the outset, waiver cannot be found since Appellant quite specifically addressed its position on the standard of review in the brief. No Appellee, including the Attorney General, representing the Illinois State Board of Elections, and the individual Respondent Appellees ever raised the issue of the scope of this Court’s scope of review in their briefs, so Appellant was under no notice to do so in the Reply filed with this Court. In Hux v. Raben, 38 Ill.2d 223, 224-25, 230 N.E.2d 831 (1967), a plaintiff brought an action for specific performance of an option contract for the sale of land. The circuit court entered a decree directing the defendants to convey the property to the plaintiff. On appeal, to the Supreme Court, the Court stated as follows:

The responsibility of a reviewing court for a just result and for the maintenance of a sound and uniform body of precedent may sometimes override the considerations of waiver that stem from the adversary character of our system.

Hux, 38 Ill.2d at 225, 230 N.E.2d 831.

An important point made by the Supreme Court in Hux is that waiver stems from the adversarial position of the parties. Such considerations do not come into play when the asserted waiver is issued against a position argued in response to a contention of the Court issued sua sponte. Instead, the pursuit of a just result must be the goal, a goal that is not advance by silencing parties from addressing contentions never made by the opposing litigant. Under this Court’s current analysis, however, Appellant was under a duty not to state its position, but to anticipate every conceivable objection that the Court might raise sua sponte, address every such contention in the Appellant’s Brief, upon pain of waiver. Such a burden is inherently unfair and unjust.

The peculiar nature of the position taken in the Opinion is amply demonstrated by the precedent cited on the issue of waiver, Orlowski v. Village of Villa Park Board of Fire& Police Commissioners, 273 Ill. App. 3d 42, 652 N.E.2d 366 (2nd Dist. 1995). Besides being from another District, the Orlowski case is questionable precedent. In Orlowski, the Second District dismissed the cause before it based upon the failure to name appropriate parties, even though the issue was first raised in the appellant’s reply brief. Thus, the court in Orlowski did not find waiver, asserting instead:

[T]he rule of waiver is a limitation on the parties and not on the courts. Consequently, it is in the discretion of the reviewing court to consider points made for the first time in reply briefs. A reviewing court should exercise this discretionary authority when the interests of justice and the need to maintain a sound and uniform body of precedent are at stake.

Orlowski, 273 Ill. App. 3d at 48, 209 Ill. Dec. at 830, 652 N.E.2d at 370.

The interests of justice are served by the consideration of the constitutional question, for the Court itself has raised concerns not addressed in either the Appellant’s or the Appellees’ original submissions. To do otherwise is for the Court to ask a question not raised by the Appellant’s opponents, then effectively foreclose the Appellant from an important and substantial responsive argument, even before Appellant is aware of the concern raised sua sponte by the Court.

While the majority of this Court rejects the dissent’s assertion of the constitutional issue as an attempt to “relax the waiver rule,” (Opinion, p. 19), the Illinois Supreme Court has in turn rejected the majority’s reasoning to address the constitutionality of an Illinois election statute. In the case of n 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), the Supreme 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, the Supreme Court affirmatively raised and addresses the constitutional issue, as described as bordering on irresponsible for a court to avoid consideration of a squarely presented 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. The question also is one of jurisdiction. Although this court usually will not decide a constitutional issue if the case can be decided on other grounds we must do so in this case because the issue affects the legitimacy of the proceedings we are asked to institute. 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. Nor is our sua sponte consideration of the constitutional issue unprecedented, for in People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill.2d 179, 181, 340 N.E.2d 1, this court on its own initiative considered a constitutional question not raised by the parties and held the governing statute unconstitutional. 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). The case at bar presents circumstances even more compelling than those in which the Supreme Court was compelled to act in In re Contest of Election. In this case, Appellant has specifically attacked the constitutionality of the statute in question, and did so in response to positions asserted by the Court sua sponte. This Court will default on its judicial responsibilities should it choose to avoid the issue based on “waiver.” A second disturbing flaw in this Court’s assertion of waiver against Appellant is the blind eye this Court chooses to turn towards the obvious waiver by the Appellees. In the briefing before the Court, no Appellee ever raised the issue of a limited scope of review. The Attorney General, representing the Illinois State Board of Elections, asserted an abuse of discretion standard for the findings and action of the Board. The individual Respondents-Appellees filed virtually identical briefs, in which they asserted that a “manifest weight of the evidence” test applied to the findings of the Board. No party questioned that judicial review was available, and no party asserted that the scope of that review was as limited as found by the Court in its Opinion of December 17, 2007. The Appellees therefore engaged in affirmative waiver of the point, issue and argument. Illinois Sup. Ct. Rule 366. In the supplemental briefing ordered by this Court, the Office of the Attorney General, representing the Illinois State Board of Elections, raised no argument of waiver. In fact, and as noted in the Court’s Opinion, the Attorney General and the Appellant 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.” (Opinion of December 17, 2007, p. 13-14.) It is difficult to conceive of a more obvious waiver than when a party affirmatively agrees with its opponent’s position on an issue in briefing submitted to the court. For their part, the individual Respondent-Appellees asserted waiver, on ground that Appellant had not raised the issue at the Board of Elections or in the Appellant’s Brief. (Consolidated Supplemental Brief of Certain Aldermanic Respondents, at p. 5.) It is irrational, however, to expect that the Illinois State Board of Elections is the proper forum in which to obtain a ruling on the scope of this Court’s appellate review under the Election Code, or to assume that the Board had any authority to determine the issue. Further, the Individual Respondent-Appellees waived on a second ground, which was the lack of any assertion of a limited scope of review in their briefs before the Court. Ill. Sup. Ct. Rule 366. By its decision in this case, this Court has consigned the people of Illinois to a state in which their Illinois State Board of Elections is now rendered inert in “political” cases. The Illinois State Board of Elections was created by the Illinois Constitution of 1970. Ill. Const., Art. III, Sec. 5. The Board’s 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. Ibid. 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). After the decision of this Court, it is questionable if that refrain has any meaning any longer. Indeed, the hypothetical that concerned Justice Rathje in 1999 has come to pass, with this Court’s approval: Assume that a verified complaint is filed against a Republican candidate. Assume next that, during the closed preliminary hearing, the Board membership votes along strict party lines on whether the complaint was “filed on justifiable grounds.” Under the majority's construction of section 9-21, these facts would lead to a public hearing on the verified complaint. Partisanship goes unrewarded, and the investigation continues. 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. Illinois Republican Party v. Illinois State Bd. of Elections, 188 Ill.2d 70, 76, 241 Ill. Dec. 776, 779, 720 N.E.2d 231, 234 (1999). Additionally, this Court now leaves the State of Illinois 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, with the former being only a cursory review. Such a result not only insults constitutional sensibilities, it defies common sense. The proper result is for this Court to reach the constitutional issue presented by its own conclusions, and rule that the applicable provisions of the Illinois Election Code are unconstitutional. Petitioner otherwise adopts by reference the arguments made in its Supplemental Brief and those raised in the dissenting opinion of Gordon, J. in the Opinion of December 17, 2007 on the question of the constitutionality of Section 9-21 of the Illinois Election Code. WHEREFORE, Petitioner-Appellant, COOK COUNTY REPUBLICAN PARTY, GARY J. SKOIEN, CHAIRMAN, respectfully request that this Honorable Court grant this Petition for Rehearing; reverse the Final Orders of the Illinois State Board of Elections in cases 05 CD 44, 05 CD 46, 05 CD 47, 05 CD 50, 05 CD 56, 05 CD 57, 05 CD 58, and 05 CD 59; remand said cases to the Board with instructions to conduct Open Preliminary Hearings and further proceedings thereafter in all said cases, and grant Petitioner-Appellant such other and further relief as this Court deems appropriate in the premises. Respectfully submitted COOK COUNTY REPUBLICAN PARTY, GARY J. SKOIEN, CHAIRMAN. By: Stephen F. Boulton Stephen F. Boulton 208 South LaSalle, Suite 2850 Chicago IL 60604 (312) 343-3228