Lead Opinion
delivered the opinion of the court:
The primary issue presented in this original action for a writ of mandamus is whether section 23 — 15 of the Property Tax Code (35 ILCS 200/23 — 15 (West 1996)), violates the separation of powers provision of the Illinois Constitution (Ill. Const. 1970, art. II, § 1). For the reasons which follow, we hold that it does not.
BACKGROUND
In 1995, the General Assembly enacted a comprehensive revision of the tax objection provision of the Illinois Property Tax Code, section 23 — 15. See 35 ILCS 200/ 23 — 15 (West 1996). The principal modification of prior law made by the revision of section 23 — 15 was the abolition of the judicially created doctrine known as constructive fraud. Under this doctrine, courts had been prevented from granting direct relief from excessive property tax assessments unless the assessments were shown to be actually or constructively fraudulent. See generally A. Ganz & D. Laswell, Review of Real Estate Assessments — Cook County (Chicago) v. Remainder of Illinois, 11 J. Marshall J. of Prac. & Proc. 17, 37-60 (1977) (reviewing the history of the doctrine of constructive fraud).
Section 23 — 15 replaced the doctrine of constructive fraud with a new statutory mechanism which permits objections to property tax assessments to be addressed directly in the circuit court. The assessments which the court considers are those which have been reviewed and corrected by the board of appeals or review. Under section 23 — 15, the tax assessment adopted by the boards is presumed to be correct and legal. However, this presumption may be rebutted by clear and convincing evidence. The court is to hear the objection to the property tax assessment de novo and determine whether the assessment is incorrect or illegal. See 35 ILCS 200/23— 15(b)(2), (b)(3) (West 1996). At the same time that the General Assembly revised section 23 — 15, it also made minor revisions to section 23 — 30 of the Property Tax Code. Section 23 — 30 authorizes the State’s Attorney to reach settlement agreements in tax objection cases. See 35 ILCS 200/23 — 30 (West 1996).
On February 6, 1997, Judge Michael J. Murphy sua sponte issued a memorandum opinion in In re Application of Rosewell v. CPC International Inc./Corn Products, Nos. 91 — 1197, 92 — 2448, 93 — 3539, 94 — 4093, 95 — 1143 cons. (Cir. Ct. Cook Co.), in which he declared section 23 — 15 unconstitutional. In the memorandum opinion, Judge Murphy noted that the assessment of property taxes is a matter committed to the legislature and not the courts. Citing to several cases involving the doctrine of constructive fraud, Judge Murphy concluded that under separation of powers principles, the courts, in the absence of fraud or constructive fraud, have no power to directly review property tax assessments. Accordingly, Judge Murphy held that the legislature’s attempt to abolish the doctrine of constructive fraud violated the separation of powers provision of the Illinois Constitution (Ill. Const. 1970, art. II, § 1).
In addition to ruling that section 23 — 15 was unconstitutional, Judge Murphy also indicated in the memorandum opinion that he would not sign a settlement order which had been negotiated pursuant to section 23— 30. Judge Murphy stated that, because he had ruled section 23 — 15 unconstitutional, he could not sign the settlement order absent some showing that the assessment to be affected by the order was the product of fraud or constructive fraud. Signing and approving a settlement order which did not establish fraud or constructive fraud, Judge Murphy explained, would require the judge to exceed the proper scope of judicial review and would violate the separation of powers doctrine.
Following the issuance of Judge Murphy’s memorandum opinion, several additional orders declaring section 23 — 15 unconstitutional were entered in the circuit court of Cook County. In two property tax objection cases which were being tried under section 23 — 15, Judge Murphy repeated his ruling that section 23 — 15 was unconstitutional and, consequently, declared mistrials. In a third case, Judge Murphy refused to enter a settlement order which had been negotiated pursuant to section 23 — 30. In a separate case, Judge Curtis Heaton also refused to enter a settlement order which had been negotiated under section 23 — 30. In addition, Presiding Judge Francis Barth and Judge Murphy issued a public notice which provided, in part, that pending resolution of the constitutionality of section 23 — 15, “All regularly scheduled Calendar Calls, Scheduling Calls, Trial Management Calls, Trial Assignment Calls, and Trials in Tax Objection Cases are immediately suspended until further notice.”
As a result of the orders entered in the circuit court declaring section 23 — 15 unconstitutional, petitioner, Richard A. Devine, State’s Attorney of Cook County, filed a motion in this court seeking leave to file a petition for a writ of mandamus. We granted the motion. The petition for writ of mandamus requests this court to order the respondent judges of the circuit court of Cook County to (1) vacate their orders holding unconstitutional section 23 — 15; (2) vacate their orders refusing settlements in tax objection cases based on the unconstitutionality of section 23 — 15 and to approve such settlements where the State’s Attorney has negotiated in good faith and has adequately represented the public interest in reaching the settlements; and (3) withdraw the public notice issued by Presiding Judge Barth and Judge Murphy suspending all tax objection cases.
We granted leave to several property tax objectors to join in the petition for mandamus. We also allowed the Civic Federation, the Taxpayers’ Federation of Illinois, the Chicago Bar Association, and the Illinois State Bar Association to file a joint amici curiae brief in support of petitioners. 155 Ill. 2d R. 345(a).
ANALYSIS
I
Statutes are presumed constitutional and the party challenging the validity of a statute has the burden of clearly establishing that it is unconstitutional. People v. Inghram,
Section 23 — 15 provides, in relevant part:
“(2) The taxes, assessments, and levies that are the subject of the objection shall be presumed correct and legal, but the presumption is rebuttable. The plaintiff has the burden of proving any contested matter of fact by clear and convincing evidence.
(3) Objections to assessments shall be heard de novo by the court. The court shall grant relief in the cases in which the objector meets the burden of proof under this Section and shows an assessment to be incorrect or illegal. If an objection is made claiming incorrect valuation, the court shall consider the objection without regard to the correctness of any practice, procedure, or method of valuation followed by the assessor, board of appeals, or board of review in making or reviewing the assessment, and without regard to the intent or motivation of any assessing official. The doctrine known as constructive fraud is hereby abolished for purposes of all challenges to taxes, assessments, or levies.” 35 ILCS 200/23 — 15(b)(2), (b)(3) (West 1996).
Respondents maintain that section 23 — 15 violates the separation of powers provision of the Illinois Constitution. In support of this proposition, respondents cite to numerous decisions of this court discussing the doctrine of constructive fraud and the role of the judiciary in reviewing property tax assessments. See, e.g., In re Application of the County Treasurer,
Prior to the enactment of section 23 — 15, direct judicial review of property tax assessments was not provided for by statute. In the absence of a statutory remedy, the only authority which the courts could exercise to provide direct relief for tax objectors was the courts’ inherent, equitable authority to correct a fraud. See, e.g., White v. Board of Appeals,
Because no standard for directly reviewing property tax assessments had been provided by the legislature, the cases cited by respondents deal solely with the nature and scope of the judicial remedy available in tax objection cases in the absence of a statutorily defined standard of review. The cases do not discuss the validity of any statute similar to section 23 — 15. The cases cited by respondents establish that, prior to the enactment of section 23 — 15, the courts could use only their equitable power against fraud to complement the available statutory remedies. However, the cases do not hold that the General Assembly itself was prevented from enacting a broader form of judicial review.
Section 9 of article VI of our constitution expressly provides that the circuit courts “shall have such power to review administrative action as provided by law.” Ill. Const. 1970, art. VI, § 9. The phrase “as provided by law” is used “[w]hen our constitution intends that the legislature is to act in governing the activities of the court.” People v. Joseph,
Respondents maintain that even if the legislature may constitutionally provide for a standard of judicial review of property tax assessments other than fraud or constructive fraud, it may not adopt the standard set forth in section 23 — 15. Respondents specifically challenge the language in section 23 — 15 which provides that objections to property tax assessments “shall be heard de novo by the court.” See 35 ILCS 200/23— 15(b)(3) (West 1996). Respondents contend that by mandating that the tax objections “shall be heard de novo” from the board of appeals or review, the legislature has improperly granted the courts the same executive authority possessed by those boards and, thus, violated the principle of separation of powers.
The separation of powers provision of the Illinois Constitution provides: “The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” Ill. Const. 1970, art. II, § 1. The doctrine of separation of powers “does not contemplate that there should be ‘ “rigidly separated compartments” ’ ” of government. McAlister v. Schick,
In support of their contention that section 23 — 15 violates the separation of powers provision, respondents rely upon West End Savings & Loan Ass’n v. Smith,
In Borreson, this court held unconstitutional a statute which granted an applicant the right to “trial de novo” in the circuit court when, by administrative decision, the applicant was denied welfare benefits under the Old Age Assistance Act (Ill. Rev. Stat. 1937, ch. 23, par. 410 et seq.). The Borreson court emphasized that the administration of the program for assistance to the aged was “essentially an executive function,” and further determined that “[w]hether assistance should be granted, modified, or denied, presents no question of law or fact for judicial determination.” Borreson,
The constitutional defects which existed in the statutes reviewed in West End and Borreson are not present in section 23 — 15. First, unlike the substantive matters found “not judicially cognizable,” in West End and Borreson, the administrative determination of an individual’s property rights has long been held to be within the reviewing province of the courts. In Rowand v. Little Vermilion Special Drainage District,
“Where the court is to determine from pleadings whether the order assailed is lawful and reasonable, and where the questions presented concern property rights of which the court has jurisdiction, there is no transgression of constitutional requirements. (Investors Syndicate of America v. Hughes,378 Ill. 413 .) Statutes providing for such procedure merely authorize the court to exercise what is already a part of its function.” West End,16 Ill. 2d at 526 .
Cf. Murneigh v. Gainer,
A second, and equally significant difference between the statutes at issue in West End and Borreson, and section 23 — 15, relates to the scope of the circuit court proceedings created by the statutes. The circuit court trials provided for in West End and Borreson were unconditional de novo proceedings, i.e., proceedings in which the matter at issue was to be tried “ ‘anew the same as if it had not been heard before and as if no decision had been previously rendered.’ [Citation.]” Creamer v. Police Pension Fund Board,
Under section 23 — 15, however, considerable deference is given to the decisions made by the board of review or appeals. Section 23 — 15 expressly states that “[t]he taxes, assessments, and levies that are the subject of the objection shall be presumed correct and legal.” 35 ILCS 200/23 — 15(b)(2) (West 1996). This presumption can only be overcome by “clear and convincing evidence.” 35 ILCS 200/23 — 15(b)(2) (West 1996). Even if a tax objector can present to the circuit court a tax assessment which is equally as credible as the assessment which was adopted by the board, the board’s assessment must be sustained. See Executive Summary of the Report of the Civic Federation Task Force on Reform of the Cook County Property Tax Appeals Process 5 (March 2, 1995) (noting that when “the outcome turns solely on the competing opinions of equally compelling witnesses *** the assessment would be sustained since such evidence would not constitute clear and convincing proof that the assessment is incorrect”).
The conclusion that section 23 — 15 does not give the circuit court the discretionary authority possessed by the assessing officials is not altered by the existence of the phrase “heard de novo” within the statute. The phrase “heard de nova” is used in section 23 — 15 to indicate that evidence may be presented in the circuit court and that the tax objection proceedings are not an appeal on the record from the board of appeals or review.
“In resolving the questions of the standard of review and burden of proof in assessment challenges, the Task Force was required to balance the need to provide effective taxpayer relief against the need to avoid opening up the process so widely that the courts could potentially be called on to reassess any or all property in the county. The consensus on the Task Force was to provide for a standard of review permitting recovery upon proof of an incorrect or illegal assessment, but to require the taxpayer to meet a burden of proof by ‘clear and convincing’ evidence (the highest burden applied in civil litigation, but clearly not the criminal burden, ‘beyond a reasonable doubt’) in order to establish that such an incorrect or illegal assessment has occurred. This choice of balance was preferred over the alternative of choosing the lower burden of proof and then attempting the seemingly impossible task of defining an enhanced standard of review, in which the ‘degree of incorrectness’ would be in issue.” Executive Summary of the Report of the Civic Federation Task Force on Reform of the Cook County Property Tax Appeals Process 5 (March 2, 1995).
Furthermore, the fact that additional evidence may be presented in the circuit court does not, in itself, render the statute constitutionally infirm. See Illinois Hospital Service, Inc. v. Gerber,
This court has explained that “ ‘[a] branch of the judiciary does not exercise executive or administrative power unless there devolves upon the court the same power to exercise discretion as has been committed to the administrative agency. (Borreson v. Department of Public Welfare,
In addition, section 23 — 15 does not impose any duty or power on the courts to classify properties for assessment, to inspect properties, or to set assessment policies. In sum, none of the myriad executive or administrative activities which are carried out by assessing officials are conferred on the courts by section 23 — 15. The only power granted to the courts is the power to consider a matter which falls within the reviewing province of the courts, and to do so in a way that gives considerable deference to the administrative decision at issue. Therefore, in light of the prior precedents of this court, and the language of section 23 — 15 itself, we conclude that section 23 — 15 does not violate the separation of powers provision. Because we have determined that section 23 — 15 is constitutional, we grant that portion of the petition for writ of mandamus which requests this court to order the respondents to vacate their orders holding section 23 — 15 unconstitutional.
II
Responder ts seek this court’s guidance as to the standards to be applied under the settlement provision of the Property Tax Code, section 23 — 30. See 35 ILCS 200/23 — 30 (West 1996). Respondents express concern that the statute prevents the trial judge from exercising any discretion as to the contents of the agreed orders.
Section 23 — 30 provides:
“Following the filing of an objection under Section 23— 10, the court may hold a conference with the objector and the State’s Attorney. Compromise agreements on tax objections reached by conference shall be filed with the court, and the parties shall prepare an order covering the settlement and submit the order to the court for entry.” 35 ILCS 200/23 — 30 (West 1996).
The trial court’s role in the settlement proceedings under section 23 — 30 is a limited one. The State’s Attorney has express authority under section 23 — 30 to compromise tax objections, as well as the inherent executive authority to compromise tax matters generally. In re Application of the County Collector for Delinquent Taxes, for at Least Five Years Prior to 1987,
However, the trial court must exercise its discretion in considering a settlement with respect to certain important issues. Specifically, the trial court must consider whether the settlement was negotiated by fraud or in bad faith (see, e.g., Anderson,
In their petition for a writ of mandamus, petitioners request that respondents be ordered to vacate their orders refusing settlements in tax objection cases based on the unconstitutionality of section 23 — 15, and compelled to enter settlement orders if the State’s Attorney has negotiated in good faith and has adequately represented the public interest. We note that in the tax objection cases at issue, the circuit court has not yet expressly considered whether the State’s Attorney has satisfied these conditions. In addition, petitioners acknowledge that the determination of whether the State’s Attorney has negotiated in good faith and has adequately represented the public interest is left to the discretion of the trial court. It is well settled that mandamus is not available to compel discretionary acts. See, e.g., Chicago Bar Ass’n v. Illinois State Board of Elections,
Petitioners also request that respondents be ordered to withdraw the public notice issued by Presiding Judge Barth and Judge Murphy suspending all tax objection cases. The suspension involves internal administrative functions of the circuit court. Having determined that section 23 — 15 is constitutional, we assume that the circuit court will proceed in tax objection cases under the dictates of sections 23 — 15 and 23 — 30.
CONCLUSION
For the foregoing reasons the petition for writ of mandamus is granted in part and denied in part. The respondents are ordered to vacate their orders which hold section 23 — 15 unconstitutional, and vacate their orders refusing settlements in tax objection cases based on the unconstitutionality of section 23 — 15.
Writ granted in part and denied in part.
Notes
The Civic Federation describes itself as “an independent, non-partisan taxpayer watchdog and government research organization.” The Report of the Civic Federation Task Force on Reform of the Cook County Property Tax Appeals Process was incorporated as part of the legislative history of section 23 — 15. See 89th Ill. Gen. Assem., Senate Proceedings, May 23, 1995, at 111 (statements of Senator O’Malley).
Dissenting Opinion
dissenting:
I agree with the majority that the legislature may provide by law for the administrative review of property tax assessments in cases other than those involving fraud. Unlike the majority, however, I believe that section 23 — 15 of the Property Tax Code (35 ILCS 200/ 23 — 15 (West 1996)) violates the separation of powers provision of the Illinois Constitution (Ill. Const. 1970, art. II, § 1) by delegating to the courts the authority to set property tax assessments under the guise of administrative review.
Section 23 — 15 provides that property tax objections “shall be heard de novo by the court” (35 ILCS 200/23— 15(b)(3) (West 1996)) and that the plaintiff (tax objector) “has the burden of proving any contested matter of fact by clear and convincing evidence” (35 ILCS 200/23— 15(b)(2) (West 1996)). Under the statute, a court conducts what is in effect a de novo proceeding in which evidence is presented and factual findings are made. After considering the evidence and making findings of fact, the “court shall grant relief in the cases in which the objector meets the burden of proof under this Section and shows an assessment to be incorrect or illegal.” 35 ILCS 200/23 — 15(b)(3) (West 1996).
Thus, once a court has determined that a tax assessment is incorrect or illegal, the court is directed to grant relief. Section 23 — 15 then provides that a successful objector is entitled to a court-ordered tax refund. See 35 ILCS 200/23 — 15(c) (West 1996). It is apparent that before ordering a refund pursuant to section 23 — 15(c), a judge must first set a property tax assessment so that the refund can be calculated. Therefore, instead of providing for the administrative review of a property tax assessment, section 23 — 15 provides for the judicial determination of that assessment.
As noted by the majority (
JUSTICES HEIPLE and NICKELS join in this dissent.