Gregg v. Rauner

JUSTICE NEVILLE delivered the judgment of the court, with opinion.

Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Burke, and Theis concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Governor Bruce Rauner, terminated the appointment of plaintiff, Eric Gregg, to the Illinois Prisoner Review Board (IPRB or Board) pursuant to section 10 of article V of the Illinois Constitution (Ill. Const. 1970, art. V, § 10). Gregg filed an action in the circuit court of Saline County challenging his removal. The circuit court found that Gregg's removal was judicially reviewable and, at the close of a trial, determined that Governor Rauner wrongfully terminated Gregg's appointment. A divided panel of the appellate court reversed, holding that Governor Rauner's decision to remove Gregg from the Board was not subject to judicial review. 2017 IL App (5th) 160474. This court allowed Gregg's petition for leave to appeal (Ill. S. Ct. R. 315 (eff. July 1, 201)), and we now affirm the judgment of the appellate court.

¶ 2 I. BACKGROUND

¶ 3 In May 2012, then Governor Patrick Quinn nominated Gregg to be a member of the IPRB. Upon his nomination, the Governor's office provided Gregg with a blank form to make a statement of economic interests for the preceding calendar year. On May 20, 2012, Gregg completed and returned his statement of economic interests. In the space provided to identify any unit of government that employed him in 2011, Gregg wrote that he was mayor of Harrisburg. In the space provided to identify any gift valued over $500 and its source received in 2011, Gregg wrote "None." Gregg signed the form verification that the information provided was "true, correct and complete." ¶ 4 At the time of his nomination, Gregg was recovering from an illness. As a result, he was not actually appointed until April 26, 2013. On that date, the Governor's office filed his May 2012 statement of economic interests, which related to calendar year 2011, with the Illinois Secretary of State. Gregg did not complete a statement of economic interests relating to calendar year 2012. Gregg immediately commenced his duties as a Board member, for which he received a salary. In July 2013, Gregg resigned as mayor of Harrisburg. ¶ 5 In September 2013, Charles Will, a former Harrisburg city treasurer, notified a senior legal advisor in the Illinois Department of Corrections that Gregg failed to include in his statement of economic interests a medical lift chair received as a gift prior to the statement's April 26, 2013, filing. Ken Tupy, the IPRB legal counsel at the time, investigated the matter, but neither the IPRB nor the Governor's office took any further action. In November 2013, the Illinois Senate approved Gregg's appointment for a six-year term ending in January 2019. ¶ 6 In December 2014, Gregg filed a petition for bankruptcy pursuant to Chapter 13 of the Bankruptcy Code (11 U.S.C. § 1301 (2012)). On December 22, 2014, supporting information, and your admissions constitute a sufficient basis for your removal pursuant to Article V, Section 10 of the Illinois Constitution." ¶ 12 In a letter dated October 5, 2015, Gregg's counsel asked Barclay to identify which of "the allowable grounds for dismissal for cause the Governor is relying on to support Mr. Gregg's termination." The letter also stated that the Governor ignored Gregg's evidence that the original bankruptcy statement of monthly income was merely a clerical error that was corrected. ¶ 13 In an October 7, 2015, letter, Barclay responded to Gregg's counsel as follows. Barclay observed that section 10 of article V of the Illinois Constitution "expressly provides that the Governor may remove any gubernatorial appointee for 'incompetence, neglect of duty, or malfeasance.' " Barclay viewed his October 2 letter as clearly stating why Gregg's conduct met that constitutional standard. Regarding the original bankruptcy statement of monthly income, Barclay reasoned that Gregg either knowingly filed the false bankruptcy statement of monthly income in violation of federal law or he signed the document under penalty of perjury without reviewing it. Barclay informed Gregg's counsel that "[u]nder either formulation, Mr. Gregg's conduct constitutes either malfeasance or complete incompetence and neglect of duty. This conduct alone is sufficient for removal." ¶ 14 Regarding the statement of economic interests, Barclay reasoned that Gregg

"either allowed Governor Quinn's office to file his 2012 Statement of Economic Interests in 2013 knowing that it was false, or he neglected to file an accurate Statement of Economic Interests in 2013 to disclose gifts he received in 2012 altogether. *** While Mr. Gregg has made efforts to correct a portion of his false bankruptcy filing, he has made no attempts to correct his false Statement of Economic Interests. Here again under either formulation, Mr. Gregg's conduct was either intentional, and therefore would constitute malfeasance, or complete incompetence and neglect of duty. This conduct alone would also be sufficient for removal."

Barclay concluded that Gregg's filing of these two false documents, considered together, "constitute solid grounds for his removal." 2016, the circuit court heard the testimony of Gregg and Olson, and the parties filed a stipulation of the above-recited underlying facts. ¶ 19 On September 26, 2016, the circuit court entered a declaratory judgment in favor of Gregg and granted injunctive relief. After noting its previous ruling that Gregg's removal is judicially reviewable, the court determined that the conduct upon which Governor Rauner relied to remove Gregg did not constitute cause under the pertinent constitutional and statutory standard. The court, therefore, concluded that Governor Rauner wrongfully terminated Gregg's appointment to the IPRB, resulting in damages to Gregg. ¶ 20 A divided panel of the appellate court reversed. 2017 IL App (5th) 160474. The appellate court concluded that the exercise of the Governor's removal authority over members of the IPRB is not judicially reviewable. Id. ¶ 28. However, the dissenting justice concluded that a Governor's removal of an IPRB member is judicially reviewable. Id. ¶ 34 (Overstreet, J., dissenting). The dissenter did not address whether Governor Rauner's grounds for removing Gregg were supported by the evidence. Gregg appeals to this court.

Further, Gregg accused two individuals of supplying information to the newspaper. According to Gregg, "[t]hese individuals are filled with hate and revenge" and "were dealt with appropriately during my time as mayor."

¶ 21 II. ANALYSIS

¶ 22 Gregg initially contends that Governor Rauner's decision to remove him from the IPRB, pursuant to section 10 of article V of the Illinois Constitution (Ill. Const. 1970, art. V, § 10), is subject to judicial review, which the Governor opposes. If so, the parties further dispute the appropriate level of deference to be accorded to Governor Rauner's decision and whether that decision was supported by the evidence. We view our resolution of Gregg's initial contention as dispositive. ¶ 23 Our analysis requires us to construe the relevant provisions of the Illinois Constitution. The same general principles that govern the construction of statutes also govern our construction of constitutional provisions. In construing a constitutional provision, a court's primary objective is to ascertain and give effect to the common understanding of the voters who adopted it, and courts look first to the common meaning of the words used. It is also proper to consider constitutional language in light of the history and condition of the times, the objective to be attained, and the evil to be remedied. Blanchard v. Berrios, 2016 IL 120315, ¶ 16; Walker v. McGuire, 2015 IL 117138, ¶ 16. Effective constitutional interpretation requires that the court view the constitution as a whole, construing provisions in context with other relevant provisions. People ex rel. Chicago Bar Ass'n v. State Board of Elections, 136 Ill. 2d 513, 527 (1990). If ambiguities remain after considering the language of a constitutional provision, a court may look to the debates of the delegates to the constitutional convention. Blanchard, 2016 IL 120315, ¶ 16. It is appropriate to ascertain the meaning that the delegates attached to those provisions because it is only with the consent of the convention that such provisions were submitted to the voters in the first place. League of Women Voters v. County of Peoria, 121 Ill. 2d 236, 244 (1987). The interpretation and application of constitutional provisions presents a question of law reviewed de novo. Hawthorne v. Village of Olympia Fields, 204 Ill. 2d 243, 254-55 (2003). ¶ 24 Section 9 of article V of the Illinois Constitution provides that "[t]he Governor shall nominate and, by and with the advice and consent of the Senate, *** shall appoint all officers whose election or appointment is not otherwise provided for." Ill. Const. 1970, art. V, § 9(a). Further, section 10 of article V provides: "The Governor may remove for incompetence, neglect of duty, or malfeasance in office any officer who may be appointed by the Governor." Id. § 10.

¶ 25 A. The "Wilcox Rule" and the "Lunding Exception"

¶ 26 The parties disagree as to the reviewability of the Governor's removal authority as provided by the Illinois Constitution. The appellate court stated, as a general rule, that once the Governor has identified a basis to remove someone for incompetence, neglect of duty, or malfeasance, the doctrine of separation of powers prohibits the courts from questioning the Governor's determination of cause. 2017 IL App (5th) 160474, ¶ 14 (citing Wilcox v. People ex rel. Lipe, 90 Ill. 186, 205 (1878)). However, according to the appellate court, where a board requires complete independence from executive control, a board member is entitled to seek judicial review of the Governor's exercise of the constitutional removal authority. Id. ¶ 15 (citing Lunding v. Walker, 65 Ill. 2d 516, 527-28 (1976)). Gregg assigns error to the appellate court's analysis of this court's Wilcox and Lunding decisions. ¶ 27 In Wilcox, this court was presented with a challenge to the Governor's removal of members of a public body. Similar to the 1970 Illinois Constitution, the 1870 Illinois Constitution provided: "The Governor shall nominate and, by and with the advice and consent of the Senate, *** appoint all officers whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not otherwise provided for ***." Ill. Const. 1870, art. V, § 10. Correspondingly, article V also provided: "The Governor shall have power to remove any officer whom he may appoint, in case of incompetency, neglect of duty, or malfeasance in office; and he may declare his office vacant, and fill the same as is herein provided in other cases of vacancy." Id. § 12. ¶ 28 Construing these sections together, the Wilcox court observed that the purpose of section 12 of article V of the 1870 Constitution was to adopt the rule that had become established under the United States Constitution with respect to presidential appointments, namely, that the Governor's power of removal was incident to and coextensive with the power of appointment. Wilcox, 90 Ill. at 198. ¶ 29 The court next observed: "It being found that the power of removal existed in the Governor, the inquiry remains whether it was validly exercised." Id. at 204. The court reasoned as follows:

"Undoubtedly, the Governor can only remove for some one of the causes specified; but the removal here was for one of these causes—incompetency. The Governor ascertained the existence of the cause here, and made the removal on account of it. The constitution is silent as to who shall ascertain the cause of removal or the mode of its ascertainment. It simply gives to the Governor the power to remove any officer whom he may appoint, in case of incompetency, etc. It follows, then, that it is with the Governor, who is to act in the matter, to determine, himself, whether the cause of removal exists, from the best lights he can get, and no mode of inquiry being prescribed for him to pursue, it rests with him to adopt that method of inquiry and ascertainment as to the charge involved which his judgment may suggest as the proper one, acting under his official responsibility, and it is not for the courts to dictate to him in

what manner he shall proceed in the performance of his duty, his action not being subject to their revision." Id. at 204-05.

Thus, as we observed in Lunding, "the true holding of Wilcox was not that the Governor's removal power was unlimited and unbridled" (Lunding, 65 Ill. 2d at 521) but rather that the power " 'was incident to and co-extensive with his power of appointment.' " Id. (quoting Ramsay v. VanMeter, 300 Ill. 193, 201-02 (1921)). Also, the removal must be based on one of the three constitutionally specified grounds. Id. at 520 (citing Wilcox, 90 Ill. at 205). ¶ 30 Surprisingly, Gregg contends that "there is no 'Wilcox rule' in the 1970 Illinois Constitution." Gregg observes that Wilcox addressed the Governor's removal power pursuant to the 1870 Illinois Constitution. Therefore, according to Gregg, "[t]he Wilcox rule has no bearing on Gregg's right to judicial review because Wilcox does not apply to the 1970 Illinois Constitution." ¶ 31 This contention lacks merit. The delegates to the 1970 Constitutional Convention plainly understood the Wilcox construction of section 12 of article V of the 1870 Illinois Constitution: "(1) Section 12 covered any officer appointed by the Governor and not just those who were subject to senatorial confirmation; (2) that no notice or hearing was required; and (3) that the Governor's discretion was not reviewable in the courts." George D. Braden & Rubin G. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 286 (1969); accord Dawn Clark Netsch, The Executive, in Issues for the Illinois Constitutional Convention 16 (1970) (Wilcox "held that while the governor can remove only for the causes specified in the constitution (incompetency, neglect of duty, or malfeasance), it is for the governor to determine the existence of the cause, and his decision is not subject to judicial review"). ¶ 32 As this court observed in Lunding, the delegates to the 1970 Constitutional Convention chose to retain the constitutional grounds of incompetence, neglect of duty, or malfeasance in office. During the presentation and explanation of what is now section 10 of article V, delegate Netsch proposed that the section be amended to read: " 'The governor may remove any officer whom he appoints.' " Lunding, 65 Ill. 2d at 525 (quoting 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1325 (hereinafter Proceedings)). Proponents of the amendment expressly reasoned that, in light of the Wilcox rule of nonreview, express the Commission "was established as an adjudicating body with all the paraphernalia by which legal claims are put to the test of proof, with finality of determination not subject to review by any other official of the United States or by any court." (Internal quotation marks omitted.) Id. at 354-55. Claims before the Commission were to be adjudicated on the merits of each claim, supported by evidence and governing legal principles, by a body that was entirely free from the direct or indirect control or coercion of either the President or Congress. Id. at 355-56. The Court concluded:

"Judging the *** claim that the President could remove a member of an adjudicatory body like the War Claims Commission merely because he wanted his own appointees on such a Commission, we are compelled to conclude that no such power is given to the President directly by the Constitution ***. The philosophy of Humphrey's Executor, in its explicit language as well as its implications, precludes such a claim." Id. at 356.

¶ 38 The Lunding court found the reasoning of the Myers-Humphrey's Executor-Wiener trilogy to be persuasive. This court viewed the considerations of "independence" in Humphrey's Executor and Wiener to be analogous to Lunding's case. Lunding, 65 Ill. 2d at 524-25. ¶ 39 Carefully examining the 1970 Constitutional Convention debates, the Lunding court determined that the delegates intended that the State Board of Elections be "highly independent." Id. at 526. The Lunding court reasoned: "If the holding of this court in Wilcox were extended and applied to the removal of the members of the State Board of Elections, the political independence of that body envisioned by the delegates to the constitutional convention and sought to be achieved by the legislature would be jeopardized." Id. at 527. Therefore, because of the distinctive and unique features of the State Board of Elections, the Lunding court held that the adequacy of the cause cited by the Governor for removing a member of that board is judicially reviewable. Id. at 528-29. The Lunding court repeatedly limited its holding to that case. Id. at 518 ("in this particular instance"), 519 ("in this case"), 529 ("in this particular factual setting"). ¶ 40 We observe that the parties cite post-Lunding federal case law. However, the Lunding court did not "feel inexorably bound by Federal decisions in this matter." Id. at 524. Indeed, it would be difficult to import the entire body of federal removal law into section 10 of article V of the Illinois Constitution based on the significant differences between the federal and Illinois governments. For example, the federal constitution makes no reference to the mode of or grounds for removal of officers, except by impeachment. U.S. Const., art. II, § 4. In contrast, the Illinois Constitution expressly provides the specific grounds for the removal of gubernatorial appointees—incompetency, neglect of duty, or malfeasance in office. Ill. Const. 1970, art. V, § 10. ¶ 41 Another significant difference between federal and Illinois state government is found in the foundational case law earlier discussed. The President may remove at will an executive branch officer, while Congress has the power to prescribe and require good cause for the removal of a member of an agency that cannot properly be characterized as "an arm or an eye of the executive." Humphrey's Executor, 295 U.S. at 628. In Illinois, the Governor may remove appointed members of executive agencies only for constitutionally specified cause, the determination of which is not subject to judicial review except where the agencies' functions require political independence. Lunding, 65 Ill. 2d at 527-28. Accordingly, we see no reason for relying on post-Lunding federal decisions based on a different constitutional foundation. See, e.g., Methodist Old Peoples Home v. Korzen, 39 Ill. 2d 149, 159 (1968). ¶ 42 However, despite the foundational differences between federal and Illinois state government, reference to post-Lunding federal decisions actually lends support to the Wilcox/Lunding framework. In Morrison v. Olson, 487 U.S. 654 (1988), after discussing the Myers-Humphrey's Executor-Wiener trilogy, the United States Supreme Court acknowledged as follows:

"We undoubtedly did rely on the terms 'quasi-legislative' and 'quasi-judicial' to distinguish the officials involved in Humphrey's Executor and Wiener from those in Myers, but our present considered view is that the determination of whether the Constitution allows Congress to impose a 'good cause'-type restriction on the President's power to remove an official cannot be made to turn on whether or not that official is classified as 'purely executive.' The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but to ensure that Congress does not interfere with the President's

exercise of the 'executive power' and his constitutionally appointed duty to 'take care that the laws be faithfully executed' under Article II
." (Emphasis added.) Id. at 689-90.

The Court further explained:

"[T]he characterization of the agencies in Humphrey's Executor and Wiener as 'quasi-legislative' or 'quasi-judicial' in large part reflected our judgment that it was not essential to the President's proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will. We do not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant. But the real question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light." (Emphasis added.) Id. at 690-91.

In the case at bar, judicial review of the Governor's removal of a member of the IPRB would be impermissible according to Morrison because such review would interfere with the Governor's responsibility "for the faithful execution of the laws." Ill. Const. 1970, art. V, § 8. ¶ 43 Moreover, in Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, 513-14 (2010), the Court stressed that the President's constitutionally conferred power to execute the laws "includes, as a general matter, the authority to remove those who assist him in carrying out his duties." Prior to holding unconstitutional the statute before it, the Court acknowledged that "we have sustained in certain cases limits on the President's removal power." Id. at 514. ¶ 44 These cases decided subsequent to Lunding describe a general executive removal power with specific exceptions thereto. Accordingly, we find nothing in post-Lunding federal case law that would cause us to depart from this court's Wilcox/Lunding framework. We now turn to whether the IPRB meets the Illinois constitutional standard.

Section 12 of article V of the 1870 Illinois Constitution overruled Field v. People ex rel. McClernand, 3 Ill. 79 (1839), which held that the Governor's removal power was not to be implied as an inherent part of the executive power; rather, the Governor had only the power of removal expressly provided by the Illinois Constitution. Lunding, 65 Ill. 2d at 519; Wilcox, 90 Ill. at 198. --------

¶ 45 B. Lunding and the IPRB

¶ 46 The parties disagree as to whether the IPRB falls within the Lunding exception to the Wilcox rule. The appellate court concluded that the IPRB was not so independent a body as the State Board of Elections in Lunding because "there is no indication that the legislature intended the IPRB to be a neutral, bipartisan board whose duties require absolute freedom from the executive branch." 2017 IL App (5th) 160474, ¶ 22. Acknowledging that "the IPRB does perform some quasi-judicial functions," the appellate court determined that "those duties do not make the IPRB a quasi-judicial agency for which political independence is necessary for the integrity of its processes." Id. ¶ 25. The court concluded that "the exercise of some quasi-judicial duties by itself is insufficient to remove the agency from Wilcox's general rule of judicial nonreviewability and place it within the Lunding exception." Id. ¶ 47 The dissenting justice opined that the legislature intended the IPRB to be "an independent board that is quasi-judicial in nature, tasked with hearing and deciding parole matters." Id. ¶ 33 (Overstreet, J., dissenting). He posited that "the IPRB was established to be neutral, bipartisan, and independent in the performance of its significant responsibilities." Id. ¶ 34. He reasoned that "[t]his need for political independence to discharge quasi-judicial duties supports the conclusion that *** a Governor's decision removing an IPRB member is subject to judicial review." Id. ¶ 48 We agree with the appellate court majority. The IPRB does not share the unique characteristics of the State Board of Elections, an agency that requires a high degree of political independence, that led this court in Lunding to carve out an exception to the general rule of judicial nonreview. Initially, the Lunding court deemed it significant that the "State Board of Elections, unlike most other State agencies, boards, and commissions, is constitutionally mandated." Lunding, 65 Ill. 2d at 526 (citing Ill. Const. 1970, art. III, § 5). By creating an independent body within the executive branch, the framers of the 1970 Illinois Constitution intended to supersede the operation of the Wilcox rule and alter the structure of the executive branch. Id. at 526-27. In contrast, the Illinois Constitution neither creates the IPRB nor even requires its establishment. Rather, the General Assembly established the IPRB, separate from the Department of Corrections, in article 3 of the Unified Code of Corrections (Code of Corrections). 730 ILCS 5/3-3-1 et seq. (West 2014). ¶ 57 As we earlier noted, the parties present additional arguments pertaining to the appropriate level of deference to be accorded to Governor Rauner's decision and whether that decision was supported by the evidence. However, we have held that Governor Rauner's decision to remove Gregg from the IPRB is not subject to judicial review. "We will not decide an issue that has no bearing on the case before this court." Barth v. Reagan, 139 Ill. 2d 399, 419 (1990). Because these arguments are not necessary to our disposition of this case, we do not address them. See, e.g., Standard Mutual Insurance Co. v. Lay, 2013 IL 114617, ¶ 35.

¶ 58 III. CONCLUSION

¶ 59 For the foregoing reasons, the judgment of the appellate court is affirmed. ¶ 60 Appellate court judgment affirmed. ¶ 61 Circuit court judgment reversed.