thank you mr chief justice may please the court i'm a system to turn a general richard haass sack counsel for the illinois state board of education and i urge the court to reverse the holding of the appellate court in this case that declared section seven dash to be of the only school code unconstitutional that provision limits the evidence that the state board of education may hear and the issues that it may decide in school redistricting proceedings under the specific provisions of section seven point too the holding of the pole court in this case created a direct conflict with the country decision of the  court first district in the rich township case which held that federal law claims like those asserted by the apple lead in this case julian high school district tool for are properly developed factually and decided by the circuit court not by the state board of education so the issue here is not whether claims like district will for a search under federal law shall be implemented by the state and whether federal law shall be enforced the question is who has the responsibility for adjudicating the merits of those federal law claims in the first district the court held that it is the circuit court that does so in this case the third district struck down the provision of the school code that says the state board of education cannot do so and it remained of this action in order to the state board of education contrary to the terms of section seven to be to develop a factual record and decide the merits of the federal law claim which was asserted as a challenge to the validity of the redistricting petition that had been filed before it there was no need for appellate court to reach the constitutional question in this case and i allude to the well recognized and established principle that constitutional question should be decided only when they are indispensably necessary to a resolution of the case and only when there is no other way to resolve the matter and that is as a last resort because to some question could have been avoided and should have been avoided based upon a proper statutory interpretation of the relevant provisions of the school code and of the administrative review law if under the interpretation that the i s b e advocates in this case the issues under federal law are decided by the circuit courts rather than by the board of education then the federal preemption question goes away there will be no impediment to the fulfilment of federal law that federal law will be implemented in illinois as it should be but that implementation shall be done as we believe the illinois legislature directed by the circuit courts rather than by the state board of education th decisions by the state board of education that grant the petition to change school district boundaries are subject to the provisions of the administrative review law that authorize the losing party to file an action for administrative review that falls within the circuit court statutory jurisdiction to review the decision in is the i asked the east position that that is not the entirety of the circuit court's jurisdiction that the circuit court also has a regional jurisdiction over the type of federal law claim that is asserted here by district tool for them but in normal administrative review cases the trial court would be limited to the record that was developed by the administrator that is correct or are there other situations where the trial court has the authority to develop a separate record on it in the street view there are other situations  i am not aware of any other statute like this one that says that the agency cannot make a factual record in which a party could base a claim  contesting the ultimate agency action or decision and i would i would want to emphasize is that although the appellate court focused on the provision in the ministry to review law section three dash one ten that says that you cannot go outside the administrative record for purposes of applying the statutory authority that the administrative review law provides that same section also says that the school of review of the circuit court extends to all questions of law in fact presented by the administrative record so what that provision does is it both limits and grants the same time it grants jurisdiction to review walk questions presented by the record but by the same token it excludes from the statutory administrative review jurisdiction those questions that can not be presented by the record and that is where section seven to be kick sand because it says that the agency can't hear any evidence or accept any evidence and claims like the one that district tool for search here if a party is statutorily prohibited and the agency is statutorily prohibited from offering evidence or receiving evidence on certain issues then that then claims based upon that evidence cannot be ones presented by the record and so section three one ten that the appellate court focused on ironically supports the i s b s position that the federal law civil rights claims here that the joliet high school district wanted to assert are not ones presented by the administrative record and so for outside the administrative review jurisdiction the circuit boards and that doesn't mean that there is no judicial authority to consider those claims what it means is that the catchall fallback adjudicated that was the choice made by the legislature when you put these two statutory provisions together side by side in district tool for doesn't dispute that if that's a correct interpretation the federal preemption question the constitutional issue goes away and nor does it even dispute that the circuit courts are better equipped to implement these federal laws because of the aspects of the original jurisdiction of circuit courts but they have better expertise in interpreting statutes applying constitutional law they have the power of discovery you know so there are those additional reasons beyond the plain language of the two statutory provisions that support the interpretation  claims outside their statutory jurisdiction and i believe this would be a case in which the circuit court could exercise its discretion subject to appellate review i think under rule three three zero five as to whether it should stay the administrative review proceeding beyond just an adjudication of the administrative us facts of the case in light of a weighing of the potential merits and severity of harm to balance the hardships with respect to the federal civil rights oh if if a party like in this case the district disagrees with the because of the racial back or a change in the students even though they would agree that the he was right in finding that the territory to be trashed in the next to the other district is less than five percent of that was assessed valuation the three requirements i believe they would have to appeal that is being a wrong decision or what would they do they just start a new action in the file or if they don't have any basis to challenge the sufficiency of the factual findings regarding the three statutory criteria under section  seven to be i they would have to file an independent action where they'd have to do so in addition to seeking administrative review generally it isn't a question i can immediately answer the answer is binding decision that isn't challenged out of that statute in this category of cases or in this situation would not prevent the filing of the separate claim one of the court's original jurisdiction to challenge the decision as violating federal civil rights laws it did that answer your question and i think what happened here is that although the third district cited the rich township case for another point of law which is th agencies can't declare the statutes they operate under unconstitutional it it didn't mention the separate critical holding of that case which is that it's this circuit courts that develop the facts and decide the merits of these issues involving alleged violations of federal civil rights laws and i think it it made an incorrect assumption that there were only two options here that the only options were between  striking down section seven to be what i refer to as the scope limitation clause that limits what the i s b e can hear and decide in having no place at all in illinois to decide the merits of these federal law claims and that was not a correct set of alternatives it was a false choice because there was the third option which is the statutory interpretation one which avoided the preemption issue and avoided then the constitutional question of one of the federal supremacy clause and that third option was interpreted in the statutes in a way that excluded this federal law claim or federal law claims of this friday from the statutory administrative review jurisdiction of the circuit court and put it into the original jurisdiction of the circuit or where the court would conduct discovery of necessary and and engage in fact finding develop a factual record and decide the merits of those claims even if though the third district were correct that there was an irreconcilable conflict between section three one ten and seven to be the only alternative was not the strike seven to be the alternative was to look at which of those two statutes should take precedence and as we've indicated the section seven to be provision is more recent it's more specific so even if it were just a matter of resolving a conflict between two statutes which we don't believe there is there was another alternative than the one that the that the appellate court adopted here and again  constitutional question of violation of federal law the returning momentarily to the to the question about the scope of administrative review generally i don't want to suggest that every time somebody has a federal law theory for overturning administrative decision you know the agency violated my procedural due process rights or something that that entitles the party to go outside the scope of the administrative review law  texaco cities case establishes and carpet land by this or recently reiterated that the it is incumbent upon a party to make the record that they can in any constitutional challenges or federal law questions that they may have to contests a final administrative agency decision and that those then are questions even if the administrative agency itself can't decide them that the circuit court would decide within the scope of its administrative review powers but those are issues where the record can include the factual basis for those federal law challenges or constitutional questions we have a unique situation i'm not aware of any other provision in illinois that has this unusual aspect to it which categorically prohibits the agency from making a record that would  support the factual basis for a federal law challenge to the validity of an agency decision and it is that unique aspect of this provision that puts the claims the federal claims here are outside  scope of review of the administrative review law under section three one ten because they are not then questions that can be presented by that record there are other reasons for adopting that view of this interplay between section three one ten and section seven to be beyond what i consider to be the plain language of the statute and that is those are among other things that agencies are creatures of statute they have only those powers that the general assembly gives them in this case the general assembly could not have been more emphatic it said that the state board of education now one of the new provision of the statute the regional board of school trustees have no authority or discretion to hear any evidence or consider any other issues besides the three statutory criteria specified in session seven to be for these detachment  cases so what we would be doing is disrespecting the legislative choice and its parag would have to determine the scope of an agency's powers by striking down that provision enforcing that agency exercise authority that the general assembly said it does not have and i can't say that there's no precedent for a court ordering an agency to exercise authority at this general simply said it cannot have but certainly this is not a case that would extraordinary power in addition the supremacy clause which was the basis for the appellate court's decision in this case creates a presumption that federal law will be implemented by courts of general jurisdiction not agencies and in this case that appears to be clearly the preference that the legislature followed in the presumption that it followed when it said that  these that the state board of education shall not be looking at this type of question or deciding these issues or or even hearing any evidence related to them and again as i think i've elaborated somewhat in my briefs having circuit decide these questions sometimes involving difficult problems of of alleged discrimination including alleged discrimination by the agency itself is problematic these are sometimes difficult cases they are difficult questions to resolve in the circuit courts are better equipped to handle them i don't think we want to situation in which the agency is responsible for deciding whether it's guilty itself of of violating federal laws that's probably not where we want to propose authority for deciding these very important civil rights questions again the issue is not whether federal law should be implemented the question is where that implementation shall take place and our position is that the legislature in this case has legitimately impermissibly designated the circuit courts as the place to decide those issues by saying that the agency cannot decide them can't even make a record related to them and the result of that is that those decisions are outside administrative review jurisdiction and are part of the circuit courts would rather matters than what would be order that you would like this issue in like i would ask that you reverse the decision of the appellate court with respect to the question of the the state board of education responsibility you would reverse  say that the section seven to be was a constitutional question that didn't or that the declared unconstitutional was was wrong because as a matter of statutory interpretation you didn't have to reach the constitutionality the statute by concluding that these issues in which side that the constitutional question needed to be resolved yes remained at the end of the circuit court for that yeah we're not trying to cut district tool for often say that because they didn't present any evidence in the circuit court it's too late they don't get a second chance you know i think even rich township in that case there was a similar situation they said ok there was a misunderstanding here you know let's give the parties that you know the shot to present the evidence the way they should  statute which limits the evidence which can be presented before the administrative body such as such as section seven to be i think the problem we have in this case is not the appellate court's decision the problem is the statute  itself and i like take issue with my opponent who would say that you might be disrespectful to the general assembly when when you critique it statute i think when the general assembly engages in mischief like they have in this case i think it's the affirmative duty of this court to declare it unconstitutional for the very reasons that are mentioned by judgment date and i think we point out in our brief if you look at the history of the school called the way when parties don't agree on changing school boundaries was always covered until one thousand nine hundred one by section seven two of the school cup and that was a relatively simple statute you want to change boundary you file a petition with the regional board of school trustee they hear evidence on what is called the best interests of the students involved and they render a decision you know something must have been wrong in one nine hundred eighty one when the legislature decided that you should not consider the best interests of the children involved when you're going to change school boundaries but for whatever reason they did it and what they've done is created a statute where parents children in school districts are high bound when they appear either the state board of education or the school districts and a case where they're trying to change the boundaries in this case well we read with just judge mcdade that something has to be done in this case where you have this conflict between states that you know i believe that she we we accept her decision is a second best decision because we have consistently say throw this statute out as my opponent says it's the only one in illinois that puts you in a strange place i'm a trial lawyer i just go to court i read the rules and i see what are the rules say and i try to follow the laws met so that we can know what we're doing on an everyday basis ok i go to court and i see the administrative root law and i knew this before i even was a lawyer that if i don't put the evidence before administrative review i can't argue that before the circuit court everyone knows that if i called my first witness in the circuit court of will county they throw me out the same problem you have here i go before the administrative review body in this case the s p l week and i say the s b only i'd like to present my evidence and it's actually clear we're it's we are a creature of limited by what the general assembly did and has been limited by what the general assembly did you can't put on evidence so i go up to this to the circuit court i want to call my first witness the judge turns to me he says counsel the general assembly made a decision and the general assembly's decision was you don't present evidence in the circuit is it your position counsel that you are precluded from ever litigating the discrimination issue i believe that if this court were to reverse the decision entirely and other words if you were to say what you just lose i think i probably would be the problem is that remaining the case is as the think part of education suggested the circuit court instead of the regional statutory scheme and that's the problem administrative review makes sense to me when the way it's set up if your administrative body gets to hear the evidence and the judge gets to consider that administrative review courts are limited in what they're doing and that's why i think the easiest thing to do the easiest thing to do is to throw the statute out and say it is unconstitutional it doesn't allow hearing these claims would you be prohibited if we said if we upheld the stance you would you be prohibited from filing a lawsuit in the circuit court or in the federal district court to address the seventeen zero three issue i don't know your honor i think that i'm fearful what would happen because i've seen it happen too often i could see very speedily let's say by the declaratory judgments some type of nature then the question gets the beat what is the effect of yes we always ruling does that have to have the secondly i'm almost you're almost guaranteed given at the state board what about the petitioners who aren't even before you hear what if those petitioners come in and say wait they had their chance this is a case where they would legislature has decided that disputes regarding school district boundaries be decided only by the state board of education regional board of school trustees so you're saying you're saying that this legislation by the state sensually intentionally precluded anybody from receiving any civil rights issues yes your honor i do and i would even go a little step farther and suggest that's why the statute was created the first place when you plug in your car plugs into with computer her computer seven to be of the school code and you look at the types of cases that have addressed it and locally and in the federal courts the word race comes up each and every time i've been involved in a head half of that was i've seen what happens the only possible potential purpose you can take to cynical view cynical view number one is the legislature doesn't want anyone to consider the best interests of the students in deciding the school with the next cynical view number two  that why is it in all these cases there's a question of race and bomb the simple matter is to bring it out into the open in a forum where somebody can present some evidence and if i'm wrong on loans and if i'm right i'll win but you can't have it this way shouldn't be a dog case and a it should be a simple system so that simple people like myself can see what it is your petition it fairly heard and have the situation decide and it just thirty can be nothing b i had seen improper purpose maybe they met really well but sometimes the best of intentions result in something good only and in this case it was really the another interesting question and my opponent properly cites do that in this case if you look at the rulings and even the state boards position counsel yes sir you're really asking us i think to to decide the constitutionality of the statute go beyond the preemption issue and into that i disagree i think i what i'm saying is that the preemption issue makes the statute on parents ok either are there other facts that ought to be in the in the record to make that decision in this case in this in that there were no facts to developed on the issue in the administrative agency there are certainly that i don't know that i would say that you're out of because if i'm asking you to say it's preempted it's preempted by the words not by the facts the allegation was made before the state board regarding i guess my question is  if we were going to decide the constitutionality this is the record sufficient for us to do that second question he has in him the fact they have that has there ever been at a hearing in which they were developing the facts on the constitutional issue and the answer then of course which practitioners like myself if they're really lucky and they read a lot see it find it in the appellate court decisions follow what but i think that when you see the basic problem that we have what's going to happen the next time that somebody stumbles on a statute like this where federal law may be inconsistent with this statute maybe your decision will be read by the practitioners to say well then i guess we're going to be able to have this exceptional hearing that the legislature has the authority to grant the administrative bodies authority to make these changes or to take that away from the administrative body and put it to the courts would we not also except mister  those acts argument that the legislature consciously allowed the minutiae to be decided by the i r s be a that is a very technical factors on the percentage and the boundaries on those things but left to the trial court the more important decision under seventeen or three the position is valid and consistent your honor that no one could simply say well they they become gatekeeper number one the fear and the problem as when the circuit court judge is asking now he's got exception number one to the administrative review law saying that in this case however you can hear evidence regarding these matters and you can weigh the evidence you can decide what's going on unlike administrator you you can make a decision on credibility then you can make a decision on the law and that can go up just as my opponent has suggested to you that this is the only i think the last thing simple come the corporate tax revenues have occurred we create all these exceptions going left and right sometimes you have to i appreciate that this is what i don't think that we have if we have to we have to but i really i really think that no one should be sitting and having a purse any type of proceeding that where you can't put on evidence let it doesn't take a genius to figure out there has to be some  petitioner if you throw this out the jacobs are without a remedy at all they think jacobs can file a petition under seven to the dog presently before the regional board school trustees will make a decision the state superintendent himself will get to rule on that and honour's i would like to answer some of the comments made by my opposing counsel and address some of the questions made by the court i return to the basic principle here court here in district tool for have presented a false choice between implementation of federal law and striking down section seven to be and that is not the only option the other option is we believe the one that the legislature chose and that is for this unique category of cases to take the claims that a  petition under section seven dash to be violate federal civil rights laws outside of the scope of the circuit court's administrative review jurisdiction in putting those into the circuit or its original jurisdiction the sky won't fall if the court holds that that is a proper interpretation of these statutes or that if they are in conflict that that is the way that they should be reconciled the rich township case was out there it already held that this is the way to this well they would be in it there might be an argument that the application of that statute as applying to these unique circumstances would be unconstitutional because it violates the federal statute but that's not striking down the statute on its face i mean that's essentially the type of issue that arises all the time where you know whether it's under equal protection analysis or other laws you can say that something violates due process as applied but that leaves the statute on the books and leaves it to be implemented and it leaves the state board of education's will clear and it leaves the role of the circuit courts clear with respect to their respective responsibilities in cases like this one mr de can you come up with another reason  rhythm's word mischief as to why the administrative agency is not allowed to look at the fence and thank you for asking that question i wanted to address it and i'd like to take a minute to do so first the appellate court said that that was not the legislative  intention there was no evidence of that there's been no record to that effect made and i i bristle at the suggestion that the courts should automatically impute to the legislature some racially discriminatory purpose in the passage of this law it is correct that the standard way to obtain detachments an annexation is between school districts before adoption of seven to be was through the general provision that look to the educational welfare of the  children which included their whole education and welfare not just their academic interests and the impact upon the respective school districts and there was much focus upon the community of interest tests and i think the  district i'm sorry the i was a decision by this court in one thousand nine hundred two that emphasized the community of interest in whole child factors but when you have a limited situation like this where instead of going into this long complicated someone fuzzy set of factors that can take quite a while and you have the in you have the fate of the children at stake which school they're going to go to who's going to get the tax revenues is a court challenge then you know it stayed pending that court challenge this was a category where they said hey we think community of interests can be pretty much you know determined at least on a limited basis by saying that you've got high school district and great school district boundaries that are not pro tremendous so children going to same grade school don't go to the same high school and the notion is typically in illinois you have both unitary school districts and then separate school districts for the grade and high school levels that if you could take very small parts of one school district and transfer it to another so that you will line those boundaries in the students that go to the same grade school wind up going to the same high school that's a completely permissible objective it essentially says we don't have to get into community of interest we don't have to get into that the whole educational benefits of the child or the impact on the schools in this limited category of circumstances where the registered voters of that limited body of land by two thirds majority say please move our land from one school district to another it was legitimate for the for the for the legislative assembly the general assembly to say we don't need to get into this whole community of interest and whole educational child factors there's nothing wrong with that determination  i do understand that although the constitutionality of statutes is normally determined on their face there isn't this gets into arcane constitutional law there is a limited category of cases in which the courts do look to whether the legislative body had a racially discriminatory purpose in passing the law i don't think that this case is one where there's any pleading suggesting that where there's any any basis in the record to do so i i i  can't say as i stand here now that there should be an absolute prohibition upon the joliet district two a for trying to make such a showing based upon proper pleadings and proof in the in the circuit court but there's no basis for this court to  occasion in the invitation of opposing counsel in this case to declare this statute unconstitutional because it has a discriminatory purpose the issue before this case is whether it's on its face preempted by federal law because it deprives parties who assert redistricting under this provision would frustrate their ability to to obtain compliance with federal law likely equal educational opportunities act in the answer is there is no preemption problem because those issues are not ones to be decided by the state board of education and it makes sense although you know it's hard to say that there's perfect harmony in the wisdom of the entire statute books but it makes sense to say if those types of challenges are going to be raised in asserted the state board of education is not the body in which you want to be deciding those questions it's legitimate to say that the circuit courts should do so  invitation to strike down the statutes being illogical or unwise is unwarranted that's not the role of this court there was a question regarding the potential precludes of a fact of the i s p each decision but if the only scope of that decision was to determine that the three statutory criteria under section seven to be were met then i submit that the scope of preclusion of that ruling would not bar a claim in this case or other cases  timely filed that the decision nonetheless is in violation of of federal civil rights laws and those claims would be addressed and resolved on of the circuit courts of original jurisdiction  the as to the remedy i submit that the court should reverse and remain in this matter to the circuit court for full development of any of the grounds that district tool for wants to raise to challenge this redistricting order by the state board of education as being in violation of federal civil rights laws again the state board of education here is not a party to the dispute over whether the land should be moved  just purges the court to say that it is not the person to decide the other issues which are whether that transfer of land would be in violation of federal civil rights laws based upon the meaning of the statutes that the court is being asked to interpret and that would avoid even having to decide the preemption issue in the constitutionality of setting to be