and timothy sprague i represent the cook county republican party in this proceeding if it pleases a court of like to waive any review of the case and move on to what we consider the salient points of argument i took it as a brief your honor in that address the merits of the case that was filed on october third on the date which they requested leave the father brief by october third then they filed this motion which was then taken with the case if you're on a will know if there are no procedural issues raised in that motion it simply addresses the merits of the case the only question getting to you you're not consenting to them no i'm not could say that but i will address in my argument as i did not follow reply in this brief given the fact that the attorney general and our positions a line on so many points that there are actually not that many in contention and i believe i could address that simply an this type i would also note that in an intervening opinion a day panel of the first district has also agreed that there should be full judicial review in the only campaign case of three d to elapse third fifty seven there's a logical inconsistency in the opinion taken by the is not the case but the appellate court importantly did not rely on any administrative code proceedings in denying judicial review to relied upon common law he appellate court in fact mis characterized the holding of the chief case which we and the attorney general presented t that court to state that there should be judicial review the democratic committee case out of the eleventh circuit in the d c circuit in a washington in that case justice ginsburg now on the supreme court ruled that there should be judicial review agency was in effect of dismissal and was therefore entitled to full judicial review on the merits those cases included supreme courts in new york connecticut and nevada and wyoming i believe that there is therefore a a strong bod is in fact a denial and is entitle to full judicial review on the merits in reaching its decision the appellate court instead relied upon three state court cases all of which involve affirmative decisions by a body in the in the richards case the board issued administrative law courts typically find facts were applied to a lot of affairs in the first instance i would agree that as a general principle of administrative review that's true your honor however i believe that many ways this case presents a very unique court before you go further and then and i appreciate your enthusiasm but i do have a question here in till recently section nine days two one provided that and i think we have to listen carefully because it's pretty close but it's as if the board determines that the complaint is not been filed and just justifiable grounds it shall dismiss the complaint without further hearing that's what it said until recently yes ron and in comparing that language with the current language suit which that if the board fails to determine that the complaint has been filed under justifiable grounds it shall dismiss the complaint without further hearing so doesn't the amendment really reflect a clear that is the way the legislature currently reads it that's the way the statute reads today there's no question about that ok so it would seem that then at least is their intention right the legislature legislatures intention here but i would also note that in il in the illinois republican party case the last time that the votes before the election board him before this court this court found that there was a policy established in the in the election code through its various filing requirements of financial disclosure of openness and handedness in the proceedings of the board and it and its actions that that action by the legislature clearly contravenes the entire intent and spirit of election code that all should be placed before the public due to the new voting requirements that's been and acted in the statute your honor now a party essentially for democrats and for republicans a party must vote a member must vote against his own party to have a case heard in public and open otherwise the case dies a quiet death behind closed doors in a closed primary here so all we believe that that was intended to restrict the ability of people to obtain closed when their hearings which we believe is completely contrary to the intent there was no decision to which to defer there were no findings to defer to and there was no application of law the fact which this anybody could judge to be to be clearly erroneous therefore we assert that there should be de novo review on judicial review when when the illinois election board least the case and such a tenure in the motion to dismiss filed by some of the individual respondents they stated that there was a decision that somehow there must have been one given though the statements made in the final order i invite the court to review the supplementary record in this case which will demonstrate quite amply that there were tied votes on each one of our cases and that the cases were dismissed upon the existence of the tie vote and the simple operation of the statute indeed that's exactly how the appellate court ruled on the matter by addressing only whether the appellate know whether the only state board of elections properly met the election code by this missing the cases in the event of the tie vote which they ruled it did thus the appellate court's review was limited solely to whether the illinois board of elections followed the mechanical operation of the statute and never reached the merits of the case in its brief the attorney general has stated that there should be broad discretion allowed to the to the illinois state board of elections and that the  court should only interfere in the in the most rarest of occasions but in so doing we assert that the attorney general is attempting to pigeonhole the board of elections into the into the area of administrative agency or department of the state of illinois we respectfully assert that given the origin of the only state board of elections that is not the case the only state board of elections was a stablished in the constitution of the state of illinois by the people of the state of illinois and in that constitution they laid out a broad purpose for this this body to supervise the election laws and regulations of the state therefore when the attorney general or any party states that this is a matter simply of administrative review of an administrative agency we differ the it we state that the only state board of elections is a body and to itself because of its constitutional origin similarly when the attorney general argues against de novo review on separation of powers grounds as did the appellate court below we again point back to the constitution and say this is a constitutionally created body there was no power of the legislature to grant to the board of elections the the power of the board of elections was granted by the people of the state of illinois in their constitution it therefore becomes the power of this court to state what the constitution means so we believe that the state board of elections powers and the limits of that power properly reside in this court not of the legislature therefore we believe that de novo review is there for the appropriate standards befor this court and its inferior court at the appellate court in deciding on time both before the illinois state board of elections responses stated that there was some sort of a decision but we invite you to review the record to state that was not as an additional grounds and in response to the motion to dismiss we wish to state that these grounds were never raised below where they were never raised in what effectively was the how would we be able to accomplish a noble review i mean you're not taking evidence or weighing evidence how would that really have a hard time understanding how h court would be able to to engage and i do know your honor in this case as in as i know as far as i know every case before the only state board of elections the entire record before that board is in the record of this case all of the testimony before the board is in the record all the findings of the hearing officer are in the record the entire two hour hearing before the only state board of elections is in the record of this case there is only precedence cited in our brief which states that when the entire because of the state of the record but they chose not to from a logistical standpoint de novo review is quite possible in that the the entire record is present your honors and going to the actual merits of the case in the interest of time i court's function is to ascertain whether the findings and decision of the agency are going to the manifest where they consider the record in that case judge in that case abramson there were findings in the record there was a denial based upon of the medical license based upon the fact that there was misconduct which was documented in the record so when the quen the appellate court in that case was presented with a record they had findings they had evidence to back up those findings they had legal decisions with rationales behind them and this case the only state board of elections gave the appellate court nothing so i think that there is allowable deference in those kinds of cases or honors but i believe in this case that that kind of deference and that kind of withholding of judicial review cannot be allowed given the fact that there is nothing here to wit to give difference too going back state board of elections our burden of proof at the close preliminary hearing stage is essentially that of probable cause the a wall of a florida state's only that we should give some reasonable basis some basis in law in fact as the what we before an election by an opponent and our case there are no elections pending there were no elections pending when we filed this we filed this very intentionally far from any election this was an attempt to try and obtain relief upon the merits of our claims so we therefore under the minimal burden of proof to show some basis the i would submit to you that if you read the record here that we were put back at the only state board of elections somewhat unfairly to a two showing the merits of our case based only o investigation i would note that the only election code provides for subpoena power by the board we would have the power to bring in witnesses we would have the power to get documentation that we could not get in our initial investigation simply walking into word offices we would have greater power to go to prepare for the open limiter hearing yet we were held to the standard of virtually proving our case and whatever we could put together from the outside and out of it in that regard your honour's the the attorney general search that  minority member of the former members who voted against our cases were adopting the opinion of the general counsel of the illinois state board of elections that opinion iran has was that the affidavit stated clearly that no political activity was observed by our affiant when he walked into the offices and asked questions is this where volunteers gather is this where volunteers work is this where signs of distribute is this where palm cards it's trivia all answered in the affirmative i submit that on the record your honour's out of the eight cases here in three of them the committeeman in these cases alderman beale commissioner beavers and commissioner barrios each admitted on the record that there was political activity occurring in those city rented offices the other five cases the responded put on no evidence whatsoever called no witnesses brought in no attempt to contest our allegation that there was political activity occurring in the city rented property so we therefore have a case in which three of these parties have needed the political activity five of them if the general counsel asked the board to ignore affidavits to ignore our photographs which showed the the banner of fifteenth of twenty's are in the seventh ward committeeman on the front of the offices website lists these aldermanic offices as the offices of their committeeman with the same telephone number he asked all he asked the board to ignore all of that and say that there is no political activity so the cases must be dismissed we submit that that that that finding cannot survive any test of law given the evidence presented in this case and the admissions of three of these parties and the complete refusal of the respondents in the other five to present any defense to allegations of all we believe that we more than met our burden to basis some basis of fact in law in our in our in our cases your honor and in order to meet my time i'd like to move on quickly to the constitutional issue if i might we simply submit your honor that no party in this proceeding thus far be it the only appellate court be of the individual respondents or be it the attorney general the state of illinois has ever ever tried to state or assert that there is not a constitutional deprivation when people who lose on a four to four tired denied full judicial review on the merits when people who lose five to three six to two seven to one or eight to nothing yet full judicial review on the four should be niagra judicial review when people who lose by a wide vote of eight to nothing yet judicial review and showing you the equal protection argument your honour's i did find a case in preparing for argument in which the then which this court upheld a classification property that could be immediately appealed but if not there would be no interlocutory appeal it was then brought that this was a denial of equal protection this court properly reasoned back in one thousand two thousand and three that the creation of the receivership deprives the owner of the real estate of his property rights because they're going to the receiver thus the court's action has placed the parties who have who are under receivership and a completely different legal stance than those who have survived and are not subject to receivership so the court there found that the action of the court had placed the parties in completely different legal positions i think i think we're back through the standard of review to even in the equal protection argument because clinton the rational basis of the judicial review is warranted when there are findings in judicial review isn't warranted when something is dismissed by operation of law i mean we get back to the general principles of administrative law and what's what you're able to review go back to the language of the statute mr justice go back to the language of nine twenty two that says any person denied a hearing it doesn't say dismiss case it says denied a hearing shall have traditional review which is precisely what we are so i believe page forty five this is the for the jury into part three you say the constitutional i know you don't have this only but the constitutional issue therefore on a on a boiled unavoidable and leave to appeal is accordingly that were the defendants before the state board of elections along the writers before i go into the presentation i want to make in the order of argument i think i want to address three of the questions that were raised by the court very directly first the change in the law after this course the previous decision the only republican party case is that in the absence of bipartisan consensus majority decision by the board the default position is in fact that there is not a hearing and  exactly on point and all of those administrative review principles that we cite in our brief i believe are on point because this ancillary let me just stop you there because my purpose in asking that question was really to indicate if the legislature made a default position after that case which would would be no one here and it certainly isn't above the realm of possibilities to believe that the legislature is position was also known review in the  counsel them raises the argument that he's relying on the illinois constitution and says this is more within the purview of the judiciary that is the legislature and under his argument i guess he's he's not there concern with what the intent of the legislature is but rather what this court deems our role so how do you address that or we grieve that to start with you on a constitution that only constitution created this very unique body which by law must be four to four in terms of preventing political parties in the state at the time of the appointment and the only custody issue requires enabling legislation for the manner composition coyote employment and various processes of the board the constitution and noble's the principle that no one party should have control over the electoral process and grants to this agency a very unique agency it's not simply just an administrative agency but it grants of this agency two types of powers investigat y saying when you're in the investigatory function fundamentally what is happening is you are protecting all parties were up before the agency to make sure that the agency is not used as a bludgeon that there is not unfair political advantage and independence is protected and that only those complaints that meet the basic threshold of evidence of justifiable cause will go forward see the light of day in the formal process of a formal open hearing once you get to the formal open hearing and you're in a question now where the board is making inward argument before because the eight to nothing vote or this or the seven to one vote is an action of the board which is defined by statute as meaning five votes once the board takes the five votes step it is doing a formal action of the board and that is reviewable what we have here is not an action of the board all right now we do maintain in our motion your honor but in effect we do have an action of the board because that order that was signed by the chairman who by the way voted in the opposite you know in the in the executive session is signed by the chairman it is without dissent it is a finding of the board and it does three things it says in effect we reject the hearing officers recommendation we accept the recommendation of the general dismiss these cases to look at the four corners of that order and not looking to parallel evidence or anything else as to how to interpret you order it says what it says so we believe sure that we have an order and we don't have a constitutional question of raucous out of order for traffic when we left the executive session we knew how the individuals had expressed their opinions and that is in the transcript we don't know how and why the final order came out as it is however directly to answer your question yes if there is action of the board it's absolute reviewable but if there is not action of the board about the fifth vote the legislature has made a policy determination that it wants by by bipartisan consensus decision making and that somebody has to come over from the other side before you bring the power of the agency upon  the litigant before it and then also point out your honors what's interesting about this is that the board has a sort of vessel between powers and could have brought its own case against any one of these defendants on its own review of filings before it and the unique circumstance here would be that the board could not have possibly on its own motion brought a complaint for these types of lead violations unless it had five votes our contention is that a private party can have no power than the agency itself a private party but a different position t of hearing if the board itself could have garnered five votes by virtue of the fact that there was a tie so i'd like to also look at the the nature of the evidence but before i do that but let me address the question was raised by you by your honor concerning the dinner review would that take place your honor having been a review anywhere i think underlines the problem here this is an agency in which the members are by law required to have expertise in election law before they're even appointed five members of this board are lawyers and the hierarchy of the board process you go from here we examiner who makes a recommendation that is reviewed by a general counsel that's general counsel recommendations and reviewed by the board five members of attorneys they are required by law to have expertise in election law one of them is a former judge judge judge porter and the fact of the matter is that they bring to this a specialized knowledge training and expertise which exactly which are administrative decisions teach you raise below that's exactly the point that all you are going to shriek if cases raise you have the same transcript you have the same record and with respect to this court the question here is does any court have the same level of learning training experience and expertise that leads to form informed decision making by an agency that has special tragic history actually special knowledge such as the pollution control board of the board and the state board of elections so i think the answer your question is how could you you have the same record they tested the evidence they tested the the materials presented before them and they had four hours of well argument with multiple counts before the board and what was the nature of the evidence that they had were didn't have well perhaps we should look as to what just fab forty four time well your honor no i think you take the record as a holding you do what you think is appropriate and fair with the entire record i will say that the order is required by your own rules from which the heel is taken must be presented as part of the case and this was the order that was appealed so it says what it says i will go beyond at the one in response to your question and say this that this board in its expertise knows how to write an order that we friends but there is a tired deadl will do so and his counsel little before he says well the issue here is about a four to four trial you'll always have partisanship your own is these cases are decided every day the state board goes the hearing all the time in public hearings the fact that some of the appellate review reflect ty's shouldn't skew our analysis to understand that the state board of election is a continuing body that hears these cases all the time and many cases many with very note notable defendants go before the board in public hearings elsa one follow question was there on this october twenty that's what what's in the record is the chairman closed the hearing after four hours with words to the effect well we've been at this for four hours let's go back to open session he didn't say draft in order in conformity with the votes here he didn't say draft in order to a certain manner the order was presented to us later on and this is the order that we received in eight in each of the eight cases your honor so now if we can look at the evidence counsel indicates this large amount of evidence that ex justifiable grounds we think justifiable grounds as troy the decision said some preliminary showing of the complaint was based upon reasonable grounds and the violations alleged within the ambit of the board's cognisance we know from troy but it's not it's not newspaper stories it's not self serving statements interviews and perceptions throughout the record you will see mr swiss testify no demarcation as i could discern that's not the standard they're not assumptions all the assumptions are replete on page forty one of the brief of the parent  facilities or the equipment to look to whether or not a payment was made for something that was directly political activity and that conforms to the deaf definition of a contribution under the campaign financing act it conforms to the whole idea of what is a political activity what do we have in this case no evidence of political activity here honestly if you scour through the record here you will not find that he did he complainants were able to discover one iota of political activity occurring  any of these offices and in fact if you go through the records you will see then in the testimony concerning the fourth ward there was no literature appear from earlier present in the testimony concerning the thirty first what they heard no discussion of politics no materials imprisonment we have the absolute constitutional right of confrontation of the person who signs to verify complaint a notice to produce was filed it was ignored mr screen was never produced but his affidavit is his statements for the basis of the complaint that he verified statements by third party persons that were never quite as witnesses for on the basis of the affidavits of mr swiss of the testimony he gave compound hearsay upon his say and we as the defendants put yourself occur to me that the name was as important as the information i was to seek no inquiry as to position title authority who these people were not one of them called as a witness how are you supposed to defend in a situation like that we believe that in that context state board of elections did the absolute correct thing it dismissed this complaint on detroit under jenner and under the general principles of our contributions are under the election code there was no evidence here this was simply throwing your allegations a review of the evidence in this case by this court to determine whether or not the ruling was proper you know i believe your honor that in the past or that it is that that the state board should be given tremendous deference and and it exercise of discretion if in fact you agree with me that there was an order that is an action of the board should be affirmed if you agree with me that it was a ford if if you agree that it was a four to four tie then it's an exercise of prosecutorial discretion  affirm for that basis also your honor his reaction may be i haven't are you suggesting that that the order may have been based upon something other than a four to four time your honor i can't begin to say how the order came to which is a specific statute which was the general assembly's response to your decision of the republican party which therefore opinions of the court all equally reasonable all equally understandable policy points of view the deal legislature chose one of the other that's a general that's a specific when hearing is the nagger runner is an action of the board i agree there should be judicial review i think you need to read two statutes you cited in conjunction with the statute i think it's one a seven that defines the five vote the five zero determination the board to be an state my case and have five minutes thank you your honor mr ball if you need an extra five minutes you  can your honor the board believes that the clear legislative intent of the election code after the legislature's two thousand and three amendment to section nine twenty one is that even when a under such an one twenty one when there is a failure to determine if a complaint was filed on justifiable grounds because of a tie vote  that there is still judicial review on the merits under section nine twenty two when they amended such an one twenty one they did not change one twenty two and as justice qamar pointed out nine twenty two says any person denied hearing this entitle to judicial review now another rule of construction of this court is that when the oil just later acts this court presumes that it was aware of the prevailing case law the prevailing case law in two thousand and three when it amended section one twenty one was this court's decision in the illinois republican party clearly nine twenty one was amended to change the result of the decision in illinois republican party in that case this court said that when there's a tie vote nine twenty one as as it the previous one twenty one was interpreted so that you would go to a he justice thomas pointed out after the amendment one twenty one one twenty one the default position is when there's a tie vote you dismiss the case the legislature was aware of the decision of this court and as you will recall at the appellate level the court of the fourth district court of appeals held that the case would be dismissed on a tie vote and that there would be judicial review on the merits and the way that would occur was that the court would review the reasons of the four members who voted to dismiss and that would be the review on the merits that would be the merits of the case that would be reviewed the does the reasons of the people who voted to dismiss those four that procedure the fourth district was adopting the procedure that the district of columbia court of appeals federal court of appeals adopted in the democratic campaign action which is statutorily very similar to our election code here justice ginsburg said that was the procedure that the district of columbia court of appeals would fall when there was a tie vote they would analyze the instance to review the merits of a tie vote decision by reviewing the reasons of the four members who voted to dismiss and that is the merit review that every party is entitled to now i believe that the appe court's decision here if you adopt that interpretation you get a pretty clear issue of whether there's a denial of equal protection the parties a party whose decision whose a complaint is dismissed has a statutory right to note review based on section one twenty two and if you say that a party whose complaint is dismissed by a majority vote gets a merit review where the party who  dismissed by a tie vote does not get a merit review then such in nine twenty one in one twenty two read together clearly nine twenty two doesn't give the same protection of law to a person who was denied a vote reveal we believe the standard of review should be for an abuse of discretion whether those four members the reasons that they gave would be an abuse of discretion we say abuse of discretion because this is an investigative state for your  held found facts and if you look at the record the only facts in the record are that it was a tie vote on each of these eight cases this was the first case major case that the  board of elections tied on something after the court after their legislature amended nine twenty one frankly i think it's in the record in the transcript you can see that there is some confusion about what we have this type of what are we doing and i believe in the records also the general counsel had to remind the board that there had been this amendment to the statute and now a tie vote was a dismissal when the order was written it's just poorly worded what the what the order what the order properly should have said was that the case was dismissed because four members of the board adopt the recommendations of the general counsel that's another reason why this court we believe the standard of review should be abuse of discretion because similar to the cases under the department of human rights when the under the old statute when the chief legal counsel of the department of human rights dismisses the case after investigation or in the public labor relations board the murray case that we cite in our brief when that is dismissed after investigation it's at the investigative stage we agree with mr bolton and mr chicken  an investigative stage they're not finding facts and making conclusions of law they're only determining whether there is sufficient evidence to whether it rises to the level of justifiable grounds for the complaint so you're essentially reviewing a determination after an investigation and to find a parallel in existing administrative law you would look to whether that decision in this case four people who voted to dismiss of use their discretion in this in voting to dismiss for the reasons that they've stated in this case the reasons are stated in the record as the general counsel's statement which is in  well beyond five minutes thank you your honor if there's no further questions we would ask that the court from the board of elections for the ground stated in our brief believe that there should be a day novo standard review here and at best clearer whereas all of the respondents are arguing that there should be very broad discretion to granted to the board of elections in this decision our position is that  given that the as i will not reiterate but a given the fact that this is a constitutional body not a legislative body it is not one that is necessarily granted the broad review of the administrative code it is also one that given its findings before this court it is difficult for us to understand how any discretion is to be granted to them when they have given this court no basis upon which to decide that there should be described that there was this question was properly exercised so therefore if they're not giving you a basis upon which to decide whether there was a proper  exercise of the super bowl is there is there an extensive record in this case it seems to me listening to the all the arguments that there was there is a fairly extensive record the testimony below is in the record the hearing officer reports are on the record the extensive proceedings the extensive transcript before the only state board of elections in executive session is in the record here it was a very long hearing these are good morning poet court say that there was insufficient record to review yes that's in their opinions or they just decided they wouldn't and we also learned that there are the appointees to the to the to the board are people who are supposed to be expert in election law well that is mr jack and his assertion i would i would only point out judge mr jack kennedy made a number of assertions for this court but they never filed a brief so there are a number of assertions that are never put in the record below that they're asking you to rely on and trust us they're fine given all that discretion i don't deny that there are good and honest people but i i of you'll see in our brief there are cases in which only states if there are no findings to give deference to the court can't do it essentially they're asking you to write this board a blank check whatever you do is fine we're giving you discretion even though you've given this court no basis upon which to decide whether that district recently did to us is not a very good answer your honor there's this board is now different members have gone and members have left that members referred this case years ago if we were very or some of the court was reviewing the four votes to well your honor i also believe that going by which which the attorney general suggested just taking snippets from the record as to what comments they made in executive session as to why they might have felt one way or the other to me is a very dangerous i reject the practice of straining to find which is quite frankly what they're doing some basis somewhere gives us something that we can give deference to our position is countervailing there are no findings there is a record there should be de novo review was used by people posing a tax from referendum you'll see in that case that there was a renter agreement between that committee and that college in fact they pay double rent because the college is trying to avoid any sort of inference that public funds are being used i think a fundamental process a fundamental principle that's being ignored by the respondents is in the constitution as well a different section article eight section one a public funds property and credit make only be used for public purposes so when they say to you that well you know generous stands for the proposition it's really not that bad or they'll cite that there's a fundamental command by our people in the constitution that this cannot occur our entire case was only to try and stop what we believed was a use of public money to provide rent free offices for a political party whether it's democrat or republican that was the that's entire nature of our case we therefore asked that this court send it back to either the state board of elections to hold open pulmonary hearings which we believe is the proper just result given this record in the minimal standards of review that we have had and i would also note the mr jack and he is once again attempting to place us on a decision virtually on a preponderance of the evidence and the merits when the standard of review the standard of proof that we must meet at this stage in the proceedings is minimal but they're attempting to say well you haven't proven your case well we're entitled to subpoenas were entitled to subpoena witnesses were entitled and those five respondents who never even showed up at the hearing with a witness or a document now have to come in and testify as to what's been going on in those offices so we're only at the opening round of this your honour's and they're asking us to put our case on it chief without discovery without subpoenas the best we can do by sending affiance into offices i think we have more than that our burden to try and demonstrate that there is a legitimate cause here that is worthy of open public hearings by whatever vote the court the board may make after them but we believe we've earned our right to have those open public hearings without further questions your honor i will waive the balance of my