FIFTH DIVISION

        									  June 30, 2003                   

1-02-1791

ILLINOIS LABOR RELATIONS BOARD,		) Appeal from the

						 		) Circuit Court of	

		Petitioner-Appellee,		) Cook County.

								)

			v.					)

								)

CHICAGO TRANSIT AUTHORITY,			)

								)

		Respondent-Appellant		)

								)

								)

(Amalgamated Transit Union Local 241,	) Honorable

								) John K. Madden,

		Intervenor-Appellee).		) Judge Presiding.

	JUSTICE QUINN delivered the opinion of the court:

	In May 2001, intervenor Amalgamated Transit Union Local 241 (Union) filed an unfair labor practice charge against respondent

Chicago Transit Authority (CTA) with petitioner Illinois Labor

Relations Board (ILRB).  After the ILRB issued an administrative

subpoena requesting potentially privileged documents relating to

the CTA's collective bargaining strategies, the CTA moved to

revoke the subpoena.  An administrative law judge (ALJ) with the

ILRB ruled that the CTA must produce the requested documents and

that an ALJ other than himself would conduct an in camera inspection to determine the extent of the privilege.  The CTA

refused to comply with the ALJ's ruling and the ILRB filed a petition with the circuit court seeking enforcement of its subpoena.  The circuit court affirmed the ruling of the ALJ.  On

appeal, the CTA contends that the trial court, rather than an

ALJ, must make the determination as to whether the requested

documents are privileged.  For the reasons set forth below, we

reverse the judgment of the trial court.  

BACKGROUND

	In its charge filed with the ILRB, the Union alleged that

the CTA had violated various provisions of the Illinois Public

Labor Relations Act (5 ILCS 315/1 et seq. (West 2000)) (Labor Relations Act).  The basis of the charge was the CTA's alleged

refusal to sign a collective bargaining agreement that had been

negotiated with the Union.  According to the Union, the CTA had

attempted to add new terms and conditions that had either been

rejected during negotiations or never proposed.  After conducting

an investigation into the Union's charges, the ILRB issued a

complaint for hearing and the case was assigned to an ALJ.  The

ILRB subsequently issued a subpoena ordering the CTA to produce

documents in existence since January 1, 2001, including "[a]ny

and all bargaining notes taken by" various CTA representatives

and "[a]ny and all notes or memoranda concerning collective

bargaining with Local 241 for a successor agreement, except those

privileged as attorney-client communications or attorney work

product."  

	In response to the subpoena, the CTA filed a motion with the ILRB to revoke the subpoena, arguing that many of the requested

materials related to its bargaining strategies and were therefore

privileged.  In support of this assertion, the CTA relied upon

the supreme court's decision in Illinois Educational Labor Relations Board v. Homer Community Consolidated School District

No. 208, 132 Ill. 2d 29 (1989).  The CTA further argued that in accordance with the Homer decision, only the circuit court was permitted to determine whether the requested notes contained

privileged materials.  

	When ruling on the motion to revoke, the ALJ noted that

absent a respondent's refusal to comply with an order to produce,

the Labor Relations Act did not provide a procedure allowing the

circuit court to make rulings with respect to allegedly

privileged materials.  Addressing the concern in Homer that the person or entity called upon to decide the substantive merits of

a case should not also decide issues relating to the bargaining

strategy privilege, the ALJ ordered the CTA to produce the

requested bargaining notes to another ALJ with the ILRB for an in camera inspection to determine the extent of the privilege.  

	After the CTA refused to comply with the ILRB's order to

turn the requested materials over to a different ALJ, the ILRB

filed a petition in the circuit court to enforce its

administrative subpoena pursuant to section 11(b) of the Labor

Relations Act (5 ILCS 315/11(b) (West 2000)).  The CTA moved to

dismiss the ILRB's petition pursuant to 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)) (Civil

Code), arguing that the petition was substantially insufficient

in law because the circuit court, rather than the ILRB, should

perform the in camera inspection.  The Union, which was allowed to intervene in the action, and the ILRB filed responses to the

CTA's motion to dismiss, wherein they argued the Homer case was inapplicable and that requiring an independent ALJ to conduct the

in camera inspection prevented unnecessary delay and was appropriate under various provisions of the Labor Relations Act.  

	After hearing argument of counsel, the trial court denied

the CTA's motion to dismiss and ordered the CTA to comply with

the subpoena by turning over the requested documents to an ALJ

not assigned to the case for an in camera inspection to allow the ALJ to rule on matters relating to privilege.  The trial court

later stayed enforcement of its order pending this appeal filed

by the CTA.

ANALYSIS

	On appeal, the CTA contends that the trial court erred in

denying its motion to dismiss the ILRB's petition for enforcement

of administrative subpoena.  It first argues that because this

case is controlled by Homer, only the circuit court can review the potentially privileged documents requested by the ILRB.  The

CTA further argues that the ALJ's ruling that an ALJ with the

ILRB other than himself should review the documents in camera and make a determination as to the extent of privilege amounts to improper administrative rule making.  See Panhandle Eastern Pipe Line Co. v. Environmental Protection Agency, 314 Ill. App. 3d 296, 303 (2000) ("Administrative agencies are required to apply

their rules as written, without making ad hoc exceptions in adjudications of particular cases"). 

	This case is before us based upon the trial court's ruling

on the CTA's motion filed pursuant to section 2-615 of the Civil

Code, wherein it was argued that the ILRB's petition for

enforcement was substantially insufficient in law.  See 735 ILCS

5/2-615(b) (West 2000).  A motion to dismiss for defects in the

pleadings when the complaint is substantially insufficient in law

attacks the legal sufficiency of the complaint and is solely

based on defects appearing on the face of the complaint. 

Aboufariss v. City of De Kalb, 305 Ill. App. 3d 1054, 1066 (1999).  Our review of the denial of a section 2-615 motion to

dismiss is de novo.  Stratman v. Brent, 291 Ill. App. 3d 123, 134 (1997), citing Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993).

	This case is before us based upon the circuit court's powers

to enforce administrative subpoenas under section 11(b) of the

Labor Relations Act, which provides:

		"The Board shall have the power to issue subpoenas

and administer oaths.  If any party wilfully fails or

neglects to appear or testify or to produce books,

papers and records pursuant to the issuance of a subpoena by the Board, the Board may apply to a court

of competent jurisdiction to request that such party be

ordered to appear before the Board to testify or

produce the requested evidence."  5 ILCS 5/315/11(b)

(West 2000). 

	A statute should be interpreted and applied based upon the

language contained in the statute.  See City of East St. Louis v. East St. Louis Financial Advisory Authority, 188 Ill. 2d 474, 480 (1999).  A statute should not be rewritten by a court to make it

consistent with the court's idea of orderliness and public

policy.  Lawrence v. Regent Realty Group, Inc., 197 Ill. 2d 1, 11 (2001).

	In Homer, a school district and an education association both filed charges with the Illinois Educational Labor Relations

Board (IELRB) alleging bad-faith bargaining.  After the education

association requested documents from the school district relating

to the school district's collective bargaining strategy, the

school district filed a motion with the IELRB to preclude

discovery of the information, claiming the evidence was

privileged.  The IELRB denied the motion, issued a subpoena to

compel production of the documents and moved to enforce the

subpoena in the circuit court pursuant to section 15 of the

Illinois Educational Labor Relations Act, which provided:

	"If any party wilfully fails or neglects to appear or

testify or to produce books, papers and records pursuant to subpoena issued by the Board, the Board

shall apply to the circuit court for an order to compel

the attendance of the party at the hearing to testify

or produce requested documents."  Ill. Rev. Stat. 1985,

ch. 48, par. 1715.   

	The circuit court ordered that the subpoena be enforced and

the school district appealed.  The appellate court reversed in a

split decision and the IELRB appealed its ruling.  The supreme

court first ruled that the requested documents were subject to a

qualified privilege.  Homer, 132 Ill. 2d at 42.  The supreme court then went on to decide "which body will perform an in camera examination of the allegedly privileged materials to determine if in fact the requested materials are privileged."  

Homer, 132 Ill. 2d at 42.  In ruling on this issue, the supreme court stated: 

		"We agree with the appellate court that the reason

the circuit court should perform the in camera examination is that the circuit court is in a position

of detachment.  While the [IELRB] might decide that the

materials sought to be discovered are privileged and

thus inadmissible, it would nevertheless be placed in

an awkward position of having seen the materials but

yet having to disregard them in adjudicating the unfair

labor practice complaint.  Moreover, a party to a labor

dispute might fear that the [IELRB] would be subtly influenced if the [IELRB] were to view the privileged

materials.  Allowing the circuit court to examine the

materials relieves the [IELRB] of the burden of having

to disregard privileged materials.  The [IELRB] argues

that a judge is often put in the position of having to

conduct an in camera examination of evidence in a case which he must ultimately decide.  The [IELRB] argues

that it can perform in the same impartial manner as

judges.  The appellate court in this case addressed

this argument, and we adopt the explanation given by

the appellate court as to why, in the circumstances of

this case, it should be rejected: 

 		'Judges are often placed in situations where they must become privy to information which is prejudicial to a

party but is not subject to consideration in deciding

the merits of a dispute.  This creates an awkward

situation which should be avoided when that can

reasonably be done.  The situation here would be even

more difficult for the [IELRB] if it was to become

privy to the matters disclosed in the in limine hearing and then decide the merits of the case.  We have held

that information involving the bargaining strategy

sessions does not become discoverable merely because it

is relevant.  It must meet the necessity standard.  A

great burden would be placed on the [IELRB] if, after hearing what happened in the various meetings, it is

then required to make a decision on the merits without

considering matters which do not meet the necessity

standard.  

			The [IELRB] need not be put into this position and

the party subject to a discovery order need not be

subjected to fears that the [IELRB] would be

subtly influenced.  The circuit court is placed in

a rare position of detachment in making the

decision as to the discovery to be required and

the [IELRB] will then be placed in a position of

detachment in deciding the merits'  (160 Ill. App.

3d at 741-42.)"  Homer, 132 Ill. 2d at 43-44.

	The supreme court also rejected the IELRB's argument that it

should rule on the privilege issue because it was vested with

particular knowledge in labor law matters, stating that "the

circuit court has more experience in deciding questions of

evidence, including issues involving privileges."  Homer, 132 Ill. 2d at 44.

	The CTA argues, and we agree, that the Homer case mandates reversal of the circuit court's order.  Initially, because

section 11 of the Labor Relations Act and section 15 of

Educational Labor Relations Act are so similar, no different

result should be reached with respect to the entity that should

determine the applicability of the bargaining strategy privilege.  The CTA correctly argues that because the ILRB is a small agency,

the concerns addressed in Homer that the IELRB could be influenced if it were to review the potentially privileged

documents are only slightly ameliorated by the circuit court's order that an ALJ other than the one presiding over the labor

dispute should rule on the privilege issues.  This is

particularly true given the importance of confidentiality the

supreme court in Homer assigned to collective bargaining strategy and the possibility that an ALJ ruling on matters of privilege

might later be called upon to decide the merits of subsequent

claims involving bad-faith negotiating on the part of the CTA. 

Furthermore, the Homer case supports the CTA's assertions that the circuit court remains uniquely detached from the ILRB and

that judges at the circuit court level possess greater expertise

in ruling on matters relating to privilege. 

	The Union and ILRB argue that the statutory and regulatory

provisions governing the issuance of subpoenas by the ILRB

specifically contemplate that questions of privilege will be

considered and decided by the agency.  In support of this claim,

the Union and ILRB direct this court to section 11 of the Labor

Relations Act, which grants the ILRB authority to issue subpoenas

and seek judicial enforcement of them and provides that the ILRB

and its agents are bound by "the rules of privilege recognized by

law."  5 ILCS 315/11(a)(West 2000).  They also cite section

1200.90 of the Illinois Administrative Code, which is applicable to the ILRB and states that "[g]rounds for revocation of a

subpoena shall include irrelevance, burdensomeness and

privilege."  80 Ill. Adm. Code §1200.90 (2001).  The Union and

ILRB also assert that ALJs are competent to adjudicate privilege

issues and that to require the trial court to make rulings

relating to privilege undermines the purpose of the Labor

Relations Act to promote expeditious resolutions of labor

disputes.  See 5 ILCS 315/2 (West 2000). 

	These arguments raised by the ILRB and Union were similarly

raised in Justice Clark's dissent in Homer.  For instance, Justice Clark cited section 12 of the Administrative Procedure

Act, which provided that in adjudicatory proceedings before

administrative agencies, " '[t]he rules of evidence and privilege as applied in civil cases in the Circuit Courts of this State

shall be followed.' (Emphasis added.)"  Homer, 132 Ill. 2d at 45 (Clark, J., dissenting, joined by Calvo, J.) quoting Ill. Rev.

Stat. 1987, ch. 127, par. 1012(a).  Justice Clark concluded that

"the General Assembly intended that administrative agencies

themselves apply the rules of privilege in ruling on evidentiary

matters."  Homer, 132 Ill. 2d at 45 (Clark, J., dissenting, joined by Calvo, J.).

	As for the Homer majority's holding that the IELRB should not review the requested material because to do so would hinder

its ability to later perform its adjudicatory function, the

dissenters referred to this conclusion as "judicial snobbery" and stated that "[t]here is simply no reason to believe that the

[IELRB] would be incapable of disregarding inadmissible evidence

or would be likely to make incorrect decisions."  Homer, 132 Ill. 2d at 46 (Clark, J., dissenting, joined by Calvo, J.).  The

dissenters also opined that the majority's ruling would frustrate

the purpose of the Illinois Educational Labor Relations Act,

(Ill. Rev. Stat. 1987, ch. 48, par. 1701) to provide for the

expeditious resolution of public educational labor disputes and

rejected the notion that a party to a labor dispute would be

subtly influenced if the IELRB were to view the privileged

material.

	The dissent in Homer supports our conclusion that the reasons advanced by the Union and the ILRB in support of

affirming the trial court's ruling are without merit.  Despite being aware of these alleged deficiencies in their reasoning, the

majority in Homer nonetheless ruled that the circuit court, rather than the IELRB, must make rulings with respect to issues

of privilege.  After the supreme court has declared the law with

respect to an issue, this court must follow that law because only

the supreme court has authority to overrule or modify its

decisions.  See Orr v. Edgar, 298 Ill. App. 3d 432, 441-42 (1998).  Therefore, we find that the trial court erred in

ordering that an ALJ with the ILRB could review the subpoenaed

documents in the instant case for purposes of ruling on matters

of privilege relating to the CTA's collective bargaining strategy.   

	The ILRB next argues that because the Homer case did not address whether issues of privilege could be decided at the

agency level by an ALJ other than the one rendering the ultimate

decision on the merits, Homer cannot be cited by the CTA as precedent requiring the reversal of the circuit court's ruling. 

See Board of Governors of State Colleges & Universities for Chicago State University v. Illinois Fair Employment Practices

Comm'n, 78 Ill. 2d 143, 149 (1979) ("A judicial opinion is authority only for what is actually decided").  Additionally, the

Union and ILRB argue that any potential for bias by the decision

maker is eliminated by having an ALJ other than the one assigned

to hear the case rule on matters relating to privilege.

	We reject both of these arguments.  In Homer, after deciding that the materials requested by the IELRB implicated issues of

privilege, the supreme court then stated "we must address the

issue of which body will perform an in camera examination of the allegedly privileged materials."  Homer, 132 Ill. 2d at 42.  The two "bodies" were the trial court and the IELRB.  At the time

Homer was decided, the definitions section of the Educational Labor Relations Act provided that "Board," as used in that act,

"means the Illinois Educational Labor Relations Board."  Ill.

Rev. Stat. 1985, ch. 48, par. 1702(e).  Because ALJs clearly make

up part of the IELRB, we interpret the supreme court's use of

"body" to include all ALJs at the IELRB.  That is certainly the case with respect to the ILRB.  The Administrative Code states

that "[t]he term 'Board' shall refer to the Illinois State Labor

Relations Board and the Illinois Local Labor Relations Board or

each Board individually as applicable, or an agent designated by

the Board."  80 Ill. Adm. Code §1200.10(c) (2001).  

	As for the final argument advanced by the ILRB and Union,

the supreme court in Homer was clear in its pronouncement that the circuit court should make rulings on issues of privilege

because it "has more experience in deciding questions of

evidence, including issues involving privileges."  Homer, 132 Ill. 2d at 44.  Thus, regardless of whether the ALJ assigned to

the case or a different ALJ reviews the allegedly privileged

documents, the fact remains that Homer holds that circuit court judges are better qualified to rule on matters of privilege. 

	The CTA also argues that the trial court's judgment must be

reversed because the ALJ's ruling is improper administrative rule

making.  Because our ruling with respect to the first issue is

dispositive of this appeal, we need not reach the CTA's second

claim of error.  Chicago Tribune Co. v. Board of Education of the City of Chicago, 332 Ill. App. 3d 60, 69 (2002).

	Accordingly, the judgment of the circuit court of Cook

County is reversed and this cause is remanded for further

proceedings.

	Reversed and remanded.

	REID Aand HARTIGAN, JJ., concur.