April 26, 2009

Illinois Supreme Court: Clear Error Standard For Election Board’s Justifiable Grounds Decision

We pick up today with the second part of the Illinois Supreme Court’s opinion in Republican Party v. Illinois State Board of Elections. (The entry directly below explains the important facts and the court’s ruling that it has power to review tie votes rendered by the Board.)

The supreme court also ruled on the correct standard of review of the Board’s decision: “clearly erroneious.”

Arguments over the standard of review ran to both ends of scale − the Republicans arguing the Board should get no discretion, the Board arguing that its decision should be reviewed for “abuse of discretion.” Here is how the court described the parties’ positions: “The Party argues that the dismissals should be reviewed de novo because the Board did not make a decision that may be granted deference. Conversely, the Board argues that the dismissals should be reviewed for abuse of discretion. According to the Board, the "justifiable grounds" standard grants it discretion to dismiss complaints after preliminary investigations.”

The Illinois Supreme Court ruled that Board’s inquiry involved a mixed question of law and fact, which called for a standard of clear error. This is how the supreme court saw it:

We agree that the statutory standard of "justifiable grounds" [for filing the complaint before the Board] focuses on the complaint's factual and legal sufficiency. The essential inquiry is whether the complaint is factually and legally justified. A decision based on those factors does not require the exercise of discretion. Rather, the Board is only required to apply the Election Code provisions to the facts presented at the closed preliminary hearing to determine whether the complaint was filed on justifiable grounds.

In our view, this inquiry presents a mixed question of fact and law. As noted, an agency's decision on a mixed question of fact and law is reviewed for clear error … The standard of review is deferential, providing for reversal only when the reviewing court has a definite and firm conviction that a mistake has been made.

The whole case, Cook County Republican Party v. Illinois State Board of Elections, No. 106139 (1/23/09), is available by clicking here.

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April 21, 2009

Illinois Election Board Tie Vote Dismissal Of Republican Party Complaints Reviewable By Appellate Court

The Cook County (Illinois) Republican Party filed eight complaints against various Democratic Party organizations and individuals asserting violations of the Illinois Election Code. The complaints were filed with the Illinois Board of Elections, which has eight members. The Board tied on each of the complaints, four to four, meaning there was not a majority vote on the question of whether the complaints were filed on justifiable grounds. Each complaint therefore was dismissed.

The Republicans filed a direct appeal to the Illinois Appellate Court, which is allowed by the Illinois Election Code. Because the Board did not state factual findings, the appellate court ruled that it did not have authority to review the question of whether the Republicans’ complaints had justifiable grounds to proceed.

Instead, the appellate court stated that its jurisdiction was limited to the question of whether the Board acted “contrary to law.” In this case, that meant assuring the actual vote count was accurate. The appellate court thus affirmed the Board’s dismissals.

The Republicans appealed to the Illinois Supreme Court. The Democrats asked the court to dismiss the appeal because: (1) it was premised upon reviewing tie votes by the Board; but (2) the Board’s orders did not state they were tie votes, so the supreme court “must presume that the complaints were dismissed based on majority votes.”

The Illinois Supreme Court denied the request to dismiss the appeal. The court acknowledged the Board’s orders did not state whether they were based on tie votes, but:

Despite any shortcomings in the Board's final orders, we are not required to ignore the clear evidence of the tie votes in the hearing transcript … A review of the transcript of the closed preliminary hearing clearly indicates the Board voted four-to-four on each of the complaints. We will not disregard the clear vote shown in the transcript of the hearing absent plain evidence that it did not reflect the Board's true vote. While the final orders should have stated the complaints were dismissed for "failure to determine" that they were filed on justifiable grounds, that error does not conclusively show the complaints were dismissed by majority vote of the Board. Thus, we find the record establishes that these complaints were dismissed on tie votes. Given that finding, we deny the respondents' motion to dismiss the appeal.

The Democrats also argued that the Board’s vote was not reviewable by a court because “the Board’s exercise of judgment and discretion in its investigatory capacity must be ‘absolute, final and non-reviewable.’” The supreme court disagreed, and ruled that it had authority under the Election Code to review the Board’s tie vote. “The Board’s orders state they are ‘final and appealable.’ Hence, the orders are judgments of the Board. The [Republican Party] was adversely affected because the orders resulted in dismissal of its complaints without a public hearing. Those dismissals are, therefore, subject to judicial review under the plain language of section 9-22 [of the Illinois Election Code].”

Next up: The Illinois Supreme Court’s analysis of the standard of review of the Board’s dismissals. But if you can’t wait, click here for Cook County Republican Party v. Illinois State Board of Elections, No. 106139 (1/23/09

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April 16, 2009

No Appellate Standing For Knox County Employees Being Investigated; Appellate Court Lacks Supervisory Authority To Order A Special Prosecutor On Remand

This lawsuit grows from a political fight in Knox County, Illinois. After he took office as Knox County State’s Attorney, John Pepmeyer began an investigation into “improprieties” by current and former county employees of the county state’s attorney’s and sheriff’s offices. Two Assistant State’s Attorneys, Dean Stone and Michael Kraycinovich, were targets of Pepmeyer’s investigation. Stone and Kraycinovich in turn started their own investigation of Pepmeyer concerning allegations that he was guilty of sexual harassment.

Stone and Kraycinovich asked the trial court for appointment of a special counsel for their investigation into Pepmeyer. Pepmeyer asked the court for a special prosecutor for his investigation into Stone and Kraycinovich. The trial court appointed the Illinois Attorney General as special prosecutor of both investigations.

The trial court later modified the appointments. The Attorney General was left to investigate Pepmeyer. A former State’s Attorney for another county, William Poncin, was named special prosecutor to investigate “other Knox County public officials,” including Stone and Kraycinovich.

Pepmeyer appealed. He claimed that Poncin’s powers were too broad and infringed on Pepmeyer’ authority. While the appeal was pending, the Attorney General found there was no basis to investigate Pepmeyer − so the trial court terminated the Attorney General’s appointment.

Further complicating the case, Pepmeyer and Poncin brought the State’s Attorneys Appellate Prosecutor into the act. All three reached an agreement to divide their investigatory powers. Pepmeyer and Poncin then asked the appellate court for a “conditional remand” to direct the trial court to issue an order in accord with the agreement among Pepmeyer, Poncin, and the Appellate Prosecutor.

Stone and Kraycinovich objected to Pepmeyer’s and Poncin’s request. In response, Pepmeyer argued that Stone and Kraycinovich did not have standing in the appellate court to raise an objection or to participate in the appeal. Pepmeyer’s theory was that Stone and Kraycinovich lost standing when the trial court terminated the Attorney General’s appointment to investigate Pepmeyer.

The Third District Illinois Appellate Court ruled that Stone and Kraycinovich did not have standing in the appellate court “because they have failed to show an injury to a legally cognizable interest.” Nor did they have a sufficient “direct, immediate, and substantial interest in the subject matter” to give them standing as non-parties under the Illinois Supreme Court Rules.

The appellate court also denied Pepmeyer’s request for conditional remand “because a remand to the circuit court with directions to enter the proposed order would amount to an exercise of supervisory authority, which the appellate court lacks.”

Read the entire case, In re Appointment of Special Prosecutor, No. 3-07-0553 (1/29/09), by clicking here.

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April 15, 2009

Administrative Code Okay In Appendix; Dictionary Excerpt Stricken

Taxpayers sued to prevent the local school district from transferring cash that was raised by a sale of bonds to the district’s operations and maintenance fund. The taxpayers argued that the money rightfully belonged in the district’s educational fund.

Cross motions for summary judgment were filed by the taxpayers and the school district. The trial court denied the taxpayers’ motion and granted summary judgment to the school district. The taxpayers appealed.

Although they were not included in the record on appeal, the taxpayers put into their appendix copies of two sections of the Illinois Administrative Code and a “printout of an internet thesaurus website containing the synonyms and antonyms for the word ‘abolish.’” The school district asked the appellate court to strike those parts of the taxpayers’ appendix and the parts of their brief that referred to those items.

The Second District Illinois Appellate Court ruled that it was permitted to take judicial notice of the administrative code, so the taxpayers were allowed to include them in their appendix. However, stating it had no legal basis, the appellate court struck the dictionary excerpt. Here is what the court stated.

We first note that courts are required to take judicial notice of all rules published in the Illinois Administrative Code and the Illinois Register … This court may take judicial notice of rules and regulations even when they are not part of the record on appeal … Thus, while [Illinois] Supreme Court Rule 342(a) [stating the requirements for the appendix] … does not provide for the inclusion in the appendix of such nonrecord material as rules and regulations, we do not find that the inclusion of the Illinois Administrative Code sections is improper, and we deny the motion to strike as it relates to this material. However, the inclusion of the printout of the Internet thesaurus has no legal basis, and it and all references to it are stricken.

Get the whole case, G.I.S. Venture v. Novak, No. 2-07-0934 (2/16/09), by clicking here.

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April 13, 2009

Ford Motor Preserves Risk-Utility Jury Instruction Argument For Appeal

In this product liability case, Ford Motor Co. was sued by the estate of a driver who died in a rear-end auto accident. After trial, a jury reached a verdict for the estate.

At trial, the parties fought about the correct way to instruct the jury to determine whether Ford was liable under a product liability theory. The estate argued that the jury should be instructed to use the “consumer expectation test.” Ford argued for a “risk-utility test.” The trial court gave the jury only the “consumer expectation test.”

The issue for the Illinois Supreme Court was whether Ford preserved this argument for the appeal. The supreme court stated the general rule to preserve an argument that the trial court improperly refused a jury instruction. “A party forfeits the right to challenge a jury instruction that was given at trial unless it makes a timely and specific objection to the instruction and tenders an alternative, remedial instruction to the trial court … These requirements ensure that the trial court has the opportunity to correct a defective instruction and to prevent the challenging party from gaining an unfair advantage by failing to act when the trial court could remedy the faulty instruction and then obtaining a reversal on appeal.”

In this case, Ford did object to the estate’s instruction, and did tender an alternative “risk-utility” instruction. In addition, there was sufficient evidence at the trial to support giving the “risk-utility” instruction. “Further, we are not persuaded by plaintiff's argument that the tendered nonpattern instruction is so flawed or confusing that it did not meet the [correct] standard … Defendants, therefore, have properly preserved for appeal the question of whether the evidence presented was sufficient to entitle them to have the jury instructed on the risk-utility test.”

In the end, the Illinois Supreme Court ruled that the trial court’s refusal to give the “risk-utility” instruction deprived Ford of a fair trial. The estate’s judgment was vacated and a new trial was ordered. Read the whole case, Mikolajczyk v. Ford Motor Co., No. 104983 (10/17/08), by clicking here.

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