IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION JOSEPH COMMITTEE TO ELECT JOSEPH COOK COUNTY and 3 Ward DEMOCRATIC ORGANIZATION, No. Calendar 13 Plaintiffs, Judge Anna H. DemacopoulOs COOK COUNTY BOARD OF ETHICS, er al. Defendants. ORDER This matter comes before the Court on Plaintiffs? Second Amended Complaint for Writ of Certiomri. On August 13, 2019, the Court held Oral arguments for the Writs of Ce'rtz?omrz? for 18- and 18-CH-6937. After oral argument on August 13, 2019, the Court permitted both Plaintiffs and Defendants to submit supplemental brie?ng related to Plaintiffs? Second Amended Complaint for Writ of Certiomrz'. Having reviewed the petitions, response, reply, and exhibits thereto, the Administrative Records, and heard argument, and thereby being fully informed in the premises, for the following reasons, Plaintiffs? Petition is denied. 1. OVERVIEW A. Parties Until December 3, 2018, Plaintiff Joseph Berrios (Berrios) was the elected Cook County Assessor and was a candidate for re-election in the March 2018 Democratic Primary. Plaintiff Committee to Elect Joseph Berrios (Committee to Elect Berrios or Committee) is a political candidate committee established to support Berrios? candidacy for of?ce. Plaintiff 3lst Ward Page 1 of 41 Democratic Organization (31st Ward Organization) is a political party committee1 established to support Berrios? candidacy for office of the Assessor. Defendant Peggy Daley is the Chairperson for the Cook County Board of Ethics (CCBOE, Board of Ethics, or Board). Defendants David Grossrnan, Von Matthews, Juliet Sorensen, and Thomas Szromba are all members ofthe Board of Ethics. The Cook County Board of Ethics imposed ?nes on Plaintiff Berrios, the Committee to Elect Berrios, and the 3lst Ward Organization. These ?nes related to sections and 2-602(d) of the Cook County Ethics Ordinance (Ethics Ordinance or Ordinance). RA.079, 279. B. Facts Three related cases are at issue (1) the Cook County Board of Ethics Administrative Proceedings; (2) Judge Tailor?s case, Barrios I, af?rmed on appeal; and (3) the cases before this court for writ of cartiorari to review the CCBOE. Saa Barrios 1). Cook County Board of Comm ?rirs, 2018 IL App 180654 hereinafter (Barrios I). Plaintiffs tend to con?ate the cases in their briefs, so the Court will brie?y clarify each case and how they are related. The Board issued two sets of notices to Plaintiffs that they were violating the Cook County Ethics Ordinance. Cook County Code of Ordinances 2-560 2?642 (approved Aug. 3, 1993). The only difference between the two Board notices issued to Berrios and the related committees in support of Berrios is that the second set of notices are for a different reporting period in the election cycle. Each notice was issued based up on the same course of conduct. Only after plaintiffs contested these notices with the Board did the CCBOE Administrative Proceedings come into being and go forward. The ?nding of both administrative proceedings before the CCBOE was that plaintiffs violated the Ethics Ordinances and were thus subject to monetary ?nes. Barrios [concerned causes of action for (1) Injunctive Relief, seeking to prevent the Ethics Board from enforcing certain provisions of the Ethics Ordinance; and (2) Declaratory Judgement, seeking a declaration that certain provisions of the Ethics Ordinance are facially unconstitutional. It did not seek a writ of cartiorari for review of the CCBOE Administrative Proceedings. 2018 IL App 180654. 1 Discussed in more detail in Section Jurisdiction Over the 3 1 st Ward Organization, below. Page The cases before this Court seek review of the CCBOE Administrative Proceedings. The Second Amended Complaint has a single labeled cause of action for writ of certiorari, seeking, in pertinent part, a ?nding that the ?nes imposed by the Ethics Board are excessive and reversal of the Ethics Board ?ndings. One of the reasons the ?nes are excessive, the plaintiffs plead, is that they are contrary to law as the Ethics Ordinance is unconstitutional as-applied to Berrios. But there is-no speci?c labeled cause of action alleging a violation of due process or asking for a declaration that the Ordinance is unconstitutional as-applied. That relief is not requested. The only prayer for relief concerns the ?nes, and ?such other relief appropriate and necessary under the circumstances underlying this case,? a common catch-all provision. C. Timeline The Court ?nds it helpful to review the timeline of the cases. On July 21, 2017, the Cook County Board of Ethics (CCBOE) issued the ?rst of a series of Notices of Excess Contribution to the Committee to Elect Joseph Berries andthe 3 1 st Ward Democratic Organization for 4Q16 and 1Q17 (presumably the Fourth Quarter of 2016 and the First Quarter of 2017 for the Illinois State Board of Election reporting periods). RA.001-04, 311-313.2 As part of these notices, the CCBOE advised Plaintiffs to return the excess contributions within 30 days, which would bring Plaintiff into compliance with the-Ethics Ordinance. RA.004. On 08/21/17, Berrios? counsel, James Nally, sent a letter to the CCBOE articulating Berrios? position that the Ordinance was unconstitutional and that the CCBOE lacks jurisdiction to enforce it. RA.005-07. On 09/30/17, the Illinois State Board of Elections issued a notice of self- funding (as to Berrios? opponent in the election) to the Committee to Elect Joe Berrios Assessor. RA.130. The Executive Director of the CCBOE, Ranjit Hakim, replied to Nally?s August letter on 10/05/17, responding to the legal issued raised and explicitly reminding him that if the excess contributions were not returned he would recommend the maximum ?ne to the CCBOE. Nally asked for an extension before the CCBOE on 10/16/17. RA.048. The extension was granted on 10/31/17, giving Nally until 11/27/17 to respond. RA.050. There was a CCBOE meeting on 12/20/17. RA.295. And on 12/21/17, Hakim issued another letter to Nally notng they had not yet received a response, and again warning that if the excess contributions 2 Citations to the Administrative Record for 18-CH-04717 appear as Page 3 of 41 . were not returned he would recommend the maximum ?nes. The letter also extended Nally?s deadline to 01/05/18 to respond. RA.051-52. Nally requested another extension or stay of the CCBOE on 01/03/18. RA.053. Hakim responded the next day, 01/04/ 18, advising it was unlikely Nally?s requests (1) to revise the Ethics Ordinance to escape his current liabilities and (2) request to stay would be granted by the CCBOE. RA.064-65. Berrios, in his of?cial capacity as Assessor (who was never a party to any administrative proceeding), ?nally ?led his Memorandum in Opposition to the Excess Contributions before the CCBOE on 01/08/18. RA.066-77. That same day, 01/08/18, the CCBOE issued its decision, the initial CCBOE Administrative Proceeding ?ndings, the subject of the case before this Court (l8-CH-47l7). RA.078-83, 377-84. The CCBOE ordered Berrios to either pay the ?ne or ?le a Motion to Reconsider within 30 days. Id. At the CCBOE meeting Berrios stated he still had not returned the excess contributions. Id. On 01/26/18, Berrios I was ?led in the Circuit Court (1 102). 3 Berrios ?led a motion asking for ?a Temporary Restraining Order (TRO) in Berrios I a few days later. In support of his motion for TRO, Berrios submitted an af?davit on behalf of himself, the Committee to Elect Berrios, and the 31st Ward Organization that articulates the exact same arguments before this Court. See Plaintiffs Motion for TRO, Ex. B., ?led 01/3 0/1 8 in The motion for TRO was continued on 02/01/18, the same day a brie?ng schedule on summary judgment was entered in Berrios I. On 02/06/18, Berrios ?led a motion to reconsider or to stay the CCBOE Administrative Proceedings ?ndings with the CCBOE. RA.089-103. On 03/13/18, (1) summary judgment was issued by the Circuit Court in Berrios I at 1:35 pm; (2) the CCBOE held its meeting, stating it 3 The Court would like to note that the people of Cook County funded both sides (the defense and prosecution) of Berrios 1 instead of the more usual approach of defending only. Mr. Kevin ord was appointed as Special States Attorney to represent Berrios as Assessor in Berrios 1 and prosecute the case, the appointment occurred in case number 73. Berrios was only able to have the Special States Attorney appointed to represent him because he insisted on suing, not as an individual, but in his of?cial capacity as Assessor. As a candidate running for Assessor whom the Ordinance had been applied to, this Court sees no reason Berrios, as an individual, would have lacked standing to sue. It ultimately cost the county $128,187.92for Berrios? attempt to bypass the CCBOE. See In re Petition for Appointment of a Special State Attorney, No. 2018-CI-I-0373 (Cir. Ct. Cook Cty., 111. July 9, 2019). Berrios tried to sue in his of?cial capacity in this case as well, likely in another attempt to get the County to foot his legal bills, but was denied. In fact, Berrios also attempted to have his legal fees before this Court included in the Special State?s Attorney appointment in 18-CH-03 73, but was also denied. Id. Page 4 of 41 would issue its ?ndings later that day; and (3) at 3:25 pm. the CCBOE denied Berrios? motion to reconsider its administrative ?ndings. RA.232-283, R605. Then, on 03/16/18, the CCBOE issued new, additional notices of violation to contributors for Berrios? campaign based upon the same course of conduct but in a new reporting period, 4Ql7 (Fourth Quarter 2017). RB.001. The primary election took place on 03/20/18, ultimately resulting in Berrios losing. See Berrios I at On 03/29/18, the Board of Ethics then issued notices to the Committee to Elect Joe Berrios Cook County Assessor and the 3lst Ward Democratic Organization for a different reporting period in the election cycle than the previous set of notices. RB.123-26.4 On 04/11/18, the Complaint for writ of certiofarz' in was ?led before this Court, alleging the ordinance was facially unconstitutional, but not alleging it was unconstitutional as?applied. The CCBOE met for a meeting on 05/01/18. RB.207-211. On 05/02/18, the Board of Ethics issued its second administrative decision and ?ndings as to the Committee to Elect Berrios and 3lst WardOrganization. RB.198-205, 445?52. On 05/31/18, the Complaint for writ of certiorari in was filed before this Court, alleging the ordinance was facially unconstitutional, but not alleging it was unconstitutional as-applied. On 09/21/18 the Appellate Court af?rmed the judgement in Berrios I Berrios v. Cook County Board of Comm ?nrs, 2018 IL App 180654. On 01/31/19, the Illinois Supreme Court denied the appeal of Berrios I. Berrios v. Cook County Board of Comm ?nrs, 2019 111. Lexis 160. On 02/15/19,Ithe Second Amended Complaints in each of the cases before this Court (?4717 and ?6937) were ?led, they are substantially identical documents, and both kept the facially unconstitutional argument and added in language for the as-applied unconstitutional argument. The Court notes that, although these cases have never been formally consolidated, the parties have acted as though the two cases before us and are one and the same, by 4 Citations to the Administrative Record for appear as Page 5 of 41 ?ling identical pleadings and briefs as well as coming in for court status on the same days, at the same time, with the same counsel}, 6 II. RES JUDICATA Defendants argue that Plaintiffs are precluded from bringing argument as to the constitutionality of the ordinance based upon the doctrine of res judicata. Defendants argue that, because the Ordinance was challenged in Barrios I as facially unconstitutional, then, under the sub-doctrine of claims splitting, Plaintiffs are barred from bringing an as?applied constitutional challenge here because Plaintiffs should have also brought that argument in Barrios I. Defendants also deny that any of the alleged equitable exclusions cited by Plaintiffs apply. Plaintiffs argue that the Ethics Board ?nes should be reversed because the ?nes are contrary to law, and thus arbitrary and capricious. Plaintiffs argue the ?nes are contrary to law because the Ordinance is unconstitutional as-applied. Plaintiffs argue their constitutional argument is not barred by res judicata because certain equitable exclusions apply, namely (1) the parties agreed, in terms or in effect, that the plaintiffs may split their claims; (2) defendants acquiesced to the plaintiff? splitting of claims into two actions; and (3) the Court in Barrios I reserved plaintiff right to bring this subsequent action. Plaintiffs argue they could not have brought the ?as-applied? argument in Barrios I because the Ordinance, at that time, had not been applied to them. As this Court has already noted, Plaintiffs have not ?led a formal separate cause of action attacking the constitutionality of the Ethics Ordinance. The only formal, speci?ed cause of action before this Court is for writ of certiorari. There is no situation in which Barrios I could ever bar judicial review of the administrative ethics decisions under the doctrine of res judicata. Plaintiffs will always be allowed to seek judicial review of each ethics board administrative decision rendered as to them. The Second Amended Complaint, however, is replete with allegations as to the constitutionality of the Ordinance, both facial and as-applied. And the parties have consistently 5 See Plaintiff?s Memorandum .In Support of Petition for Writ of Ceriiorari at 1, ?This memorandum is submitted in support of two separate Complaints for writ of ceriiorari ?led by former Cook County Assessor Joseph Berrios and two political committees that received political contributions that are the subjects of these proceedings. Because of the similarities in the two separate complaints, this memorandum is submitted separately in both cases.? 6 Given the parties conduct in litigating these two cases, the Court takes judicial notice of the Administrative Record in and as applicable. - Page 6 of 41 behaved as though there were a cause of action as to the constitutionality of the Ordinance. It is a well?known principle in Illinois that all pleadings are to be liberally construed to allow for substantial justice between the parties. Hailiburton Co v. Marlen, 154 Ill. App. 3d 111, 116 (5th Dist. 1987). Thus, courts have not hesitated to characterize a pleading by its content rather than by its title. Nelson v. Biegel, 118 Ill. App. 3d 592, 594 (3d Dist. 1983). This allows controversies to be determined by the merits, as opposed to on mere technicalities. Davis v. United Fire Gas. Co., 81 Ill. App. 3d 220, 224 (3d Dist. 1980). And so, the essential test of a complaint is that it has informed a defendant of a valid claim under a general class of cases of which a court has jurisdiction, as opposed to a Complaint that fails to state any cause of action. Matcher! v. Rose, 36 -Ill. App. 3d 638, 652-53 (1St Dist. 1976). This determination requires an examination of the complaint as a whole, not its distinct parts. No pleading is bad in substance that contains such information as reasonably informs the opposing party of the claim the party is called upon to meet. Lloyd v. County ofDuPage, 303 Ill App. 3d 544, 552 (2d Dist. 1999). Thus, this Court, in the interests of thoroughness, judicial economy, and ?nality, will go forward under the theory that that the Second Amended Complaint is actually two counts 4 one for writ of certiorari and one for Declaratory Judgment, seeking a declaration that certain provisions of the Ethics Ordinance are unconstitutional both facially and as-applied. ?Under the doctrine of res judicata, a ?nal judgment on the merits rendered by a court of I competent jurisdiction acts as a bar to a subsequent suit between the parties involving the same cause of action.? In re Marriage of Lyman, 27 126, 147 (Ill. App. 2015) quoting River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 302 (Ill. 1998). It is ?an equitable doctrine and is applied to prevent a multiplicity of lawsuits between the same parties where the facts and issues are the same.? Piagentim' v. Ford Motor Co., 387 Ill.App.3d 887, 890 (2009). It promotes judicial economy by preventing repetitive litigation and protects parties from being forced to bear the unjust burden of re-litigating essentially the same case. Id. The party claiming res judicata has ?a duty to clarify the record so as to clearly demonstrate his entitlement to the doctrine?s application.? Hernandez v. Pritikin, 2012 IL 113054, TI 52 (emphasis in original). Res judicata applies to bar a claim when a ?nal judgment on the merits is rendered by a Court of competent jurisdiction; (2) an identity of the causes of action exists; and (3) the parties or their privies are the same in both actions. Rein v. David/1. Noyes Co., 172111. 2d 325, 334 (1996). Page 7 of 41 Plaintiffs at no point actually argue that the doctrine res judicata itself is inapplicable in this matter they do not argue there is no ?nal judgment on the merits, no identity of causes of action, or no identical parties or their privies. By failing to argue that res judicata is inapplicable in this matter, Plaintiffs concede that point. See Reiiabie Fire Equip. Co. v. Arredorido, 2011 IL 111871 *29 (stating where a party fails to argue or challenge a point then that point is conceded). Instead, Plaintiffs argue that this Court should not apply res judicata in the interest of equity, alleging exclusions apply. Plaintiffs later argue, after their discussion of why applying the claims splitting doctrine would be inequitable, that res judicaia should not apply I because the alleged ?as-applied? claims did not accrue until after Berrios I was decided. This ripeness challenge is simply a roundabout way of alleging there is no identity of cause of action, but is ultimately unpersuasive. A. Final Judgment on the Merits Again, this Court notes that Plaintiffs do not explicitly argue against this, or any, of the primary elements of res judicata, conceding the point. Regardless, a complete analysis is appropriate in this matter. A judgment is ?nal if it determines the litigation on the merits so that all that remains is to proceed with the execution of judgment, and the possibility of appellate review has been exhausted. Dookerarz v. County of Cook, 2013 IL App 111095 *18. Berrios I was decided by the Circuit Court on March 13, 2018. It was af?rmed by the Appellate Court on September 21, 2018. Lastly, on January 31, 2019, the Illinois Supreme Court denied the appeal of Berries I. This Court ?nds that there is a ?nal judgment on the merits as to all its claims, namely Injunctive Relief, seeking to prevent the Ethics Board from enforcing certain provisions of the Ethics Ordinance; and (2) Declaratory Judgement, seeking a declaration that certain provisions of the Ethics Ordinance are facially unconstitutional. In Berries I the Court held that the Ethics Ordinance was not facially unconstitutional. B. Identity of Causes of Action Plaintiffs do not even attempt to distinguish their facial and as-applied arguments before the Court. Plaintiffs focused their res judicata analysis on the claim that the Ethics Ordinance is unconstitutional as-applied and did not fully accrue until the second set of notices of Violation were issued on March 16, 2018, three days after Berrios I was decided by the Circuit Court. The court notes that these notices concerned the exact same course of conduct as the initial set of notices Page 8 of 41 issued in September of 2017. The Court further notes that the exact same provisions of the Ethics Ordinances are challenged in Berries I and the Second Amended Complaints at issue in this matter. The final notices of determination for ?4717 were issued on January 8, 2018 and covered the Fourth Quarter of 2016 and the First Quarter of 2017 in the Illinois State Board of Election reporting periods. RA.078-88, 377-84. The notices of determination for ?6937 were issued on May 2, 2018 and covered the Fourth Quarter of 2017 in the Illinois State Board of Election reporting periods. 445-52. Separate claims will be considered the same cause of action for res judicata purposes if they arise from a single group of operative facts, regardless of whether they assert different theories of relief. In re Marriage of Lyman, 27 126, 147 (Ill. App. 1st 2015) citing Doe v. Gleicher, 393 Ill. App. 3d 31, 37 (Ill. 2009). The test for determining when two causes of action are the same is whether they are based on the same facts or whether the same evidence would be necessary to sustain both actions. ThorIeif Larsen Son, Inc. v. PPG Indus, Inc, 177 Ill. App. 3d 656, 659-60 (2d Dist. 1988). ?Although a single group of operative facts may give rise to the assertion of more than one kind of relief or more than one theory of recovery, assertions of different kinds or theories of relief arising out of a single group of operative facts constitute but a single cause of action.? Cooney v. Rossiter, 2012 IL 113227, 11 22 citing Torcasso v. Standard Outdoor Sales, Inc. 157 Ill. 2d 484, 490-91 (1993). I Res jadicata applies ?not only to what was actually decided in the original action, but also to matters which could have been decided in that suit.? Rein, 172 Ill. 2d at 224-35. A plaintiff is not permitted to sue for part of a claim in one action and then sue for the remainder in another action, they must assert all the grounds of recovery they may have against the defendant, arising from a single nucleus of facts, in one lawsuit. Piagenini, 387 Ill. App. 3d at 890-91. A plaintiff cannot preserve the right to bring a second action after losing their first suit merely by limiting the theories of recovery opened by the pleadings in the ?rst action. Id. at 891. This is based upon the principle that litigation should have an end and that no one should be unnecessarily harassed with a multiplicity of lawsuits. Id. Plaintiffs are correct in their statement that an unsuccessful facial challenge to a statute or ordinance does not necessarily bar a subsequent challenge by the same party on an ?as-applied? basis. See Whole Women ?s HeaZth v. Hellerstedt, 136 S. Ct. 2292, 2305 (2016) (declining to apply Page 9 of 41 res judicata based upon new material facts). As the US. Supreme Court noted in Whole Women ?s Health v. Hellersc?edz?, when there are new material facts after the decision of an action with respect to the same subject matter, those new material facts bring a claim outside of res judz'eata because they destroy the alleged single group of operative facts at issue. Id. But that is not the situation here. There is no dispute that Plaintiffs? facial challenge is identical to Berrios I and barred. But Plaintiffs argue that their as-applied claims did not accrue until after Berrios I was decided and after all administrative proceedings were concluded. This is because, Plaintiffs claim, the Ethics Ordinance was not actually applied to their conduct until the CCB OE issued its ?ndings. But that argument ignores the facts in the Record. Berrios, and his campaign and related entities, were always subject to the Ethics Ordinance and the notices issued by the Illinois State Board of Elections. The Record is clear that as late as March 2017 Berrios was subject to the notices, and in fact, at that time, complied with the Board of Elections and CCBOE ?ndings without issue. RA.18, 27, 34. I Only after Berrios became concerned that he would lose his elected of?ce did he begin attacking the Ethics Ordinance, in other words, Berrios only took issue with the Ethics Ordinance once his goal became preserving his power, and he abused his position as Assessor to ful?l that goal. Berrios? af?davit in support of his petition for TRO in Berrios I con?rms this point, will suffer irreparable harm- without a temporary restraining order because the Ethics Ordinance inhibits my ability to accept campaign contributions and thus, prevents a level playing ?eld in a contested primary election against a ?millionaire candidate?? See Plaintiffs Motion for TRO, EX. B. at *27, ?led 1/30/18 in 102. Berrios averted that ?money damages cannot compensate me' for an uneven playing field in the primary election.? Id. at *28. Plaintiffs state that any new facts bring their claim as to (the administrative case before this Court that concluded after Berrios I was decided) outside of the realm of res 7 Other relevant quotes include, 0 ?The Cook County Ethics Ordinance purports to prohibit me and my campaign committees [Committee to Elect Berrios as Assessor and the 3 1 st Ward Democratic Organization] from accepting contributions in excess of 33750;? At *7 (emphasis supplied) 0 ?Section 2-585(b) of the Ethics Ordinance infringes on my First Amendment right to freer associate with my contributors and supporters;? at *24 Page 10 of 41 judicata. But Plaintiffs do not even claim the ?new? facts at issue are material to the analysis. The additional facts at issue are simply more violations based upon the same course of conduct, but this time in the Fourth Quarter of 2017 of the Illinois State Board of Election reporting periods. These new facts show the same behavior and type of violation occurred, but in a different reporting period in the election cycle. These arguments are Where plaintiffs continually con?ate the various judicial and quasi?judicial actions concerned in this matter. Yes, Barrios I cannot prevent Plaintiffs actions for writ of cartiorari on any given review of an Ethics Board administrative decision; however, merely because Plaintiffs strategically choose to leave out a labeled cause of action for declaratory judgment does not mean Plaintiffs are entitled to re-litigate the same issue, or an issue that should have been brought in Barrios I In fact, the Second Amended Complaint and the Complaint in Barrios 1 contain substantial similarities, The following paragraphs of the complaints are either identical in Whole or in part, and all of them concern the constitutionality of the Ethics Ordinance: Barrios I Complaint Second Amended Complaint (1 1144 - identical 1190 - identical 1145 - identical 1191 - identical 1146 - identical 1192 - identical 1147 identical 1193 - identical 1148 identical 1194 - identical 1149 - identical 1195 - identical 1150 - identical 1196 identical 1151 identical 1197 identical 1152 - identical 1198 identical 1153 - identical 1199 - identical 1154 identical 11100 - identical 1155 - identical 1160 identical 1156 identical 1162 - identical 1158 ?identical, in part 1169 ?identical, in part 1159 - identical 1170 - identical 1160 - identical 1171 identical 1161 4 identical 1172 - identical 1162 identical 1173 - identical 1166 - identical 1176 - identical 1167 identical 1177 - identical 1170 - identical, in part 1181 identical, in part 1171 - identical 1182 a 11103 - identical 1172 - identical, in part 1183 - identical, in part Page 11 of 41 Berrios I ComplaintUS-CH-Ol 102) Second Amended Complaint 18-CH-06937) - identical 1189 - identical i i i A single pattern and group of material, operative facts give rise to the claims in Berrios I and the claims before this Court. These cases each arise out of Plaintiffs behavior while running for reelection, each case arises as a direct result of the excess contributions solicited by Plaintiffs, and the Notices of Excess Contributions sent out by the Ethics Board. It is all the same course of conduct. The only difference between the Ethics Board notices issued to Berrios is that the second set of notices are for a different reporting period in the election cycle. But again, the behavior is identical. The policy behind res jadicata is explicitly to prevent repetitive litigation and protect parties from being forced to bear the burden of re?litigating the same case endlessly. Piagentini v. Ford Motor Co. 387 887, 890 (2009). ?Although a single group of operative facts may give rise to the assertion of more than one kind of relief or more than one theory of recovery, assertions of different kinds or theories of relief arising out of a single group of operative facts constitute but a single cause of action.? Cooney v. Rossiter, 2012 IL 113227, 11 22 citing Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 490-91 (1993). Plaintiffs could have brought an as-applied constitutional challenge in Barrios I. At the time of ?ling, the Ordinance had in fact been applied to them Notices of Excess Contributions had been sent, and Notices of Determination had been issued against them, and a motion to reconsider the ?ndings before the CCBOE was pending. Nothing at that time precluded Plaintiffs from attacking the constitutionality of the Ordinance as-applied. An' identity of claims bars re- litigating this issue. C. Identical Parties 01' Parties in Privity Again, the Court notes that the Plaintiffs have not denied they are in privity with each other for res judicata purposes. A party who fails to make an argument to the trial court waives that argument and concedes the point. See Vantage Hospitality Group, Inc. v. Ill. Den, LLC, 2016 IL App (4th) 160271 *47-49. Regardless, the Court will analyze whether privity exists in this case. When determining if identical parties or privity exists, the focus is on the interests of the parties in question. See Agol? LLC v. Vill. of Arlington Heights, 409 Ill. App. 3d 211, 220 (1St Dist. 2011). Privity exists between parties who adequately represent the same legal interests. See People Page 12 of 41 ex rel. Burris v. Progress Land Devs., 151 Ill. 2d 285, 296 (Ill. 1992). It is the identity of interest that controls in determining privity, not the nominal identity of the parties. Id. A nonparty to a prior suit may be bound pursuant to privity if its interests ?are so closely aligned to those of a party? in that prior suit that the party was, essentially, a virtual representative of the nonparty. Agoljf LLC v. Vill. ofArlington Heights, 409 Ill. App. 3d 211, 220 (1St Dist. 2011). The focus is ?on the interests of the parties in question,? with a ?case-by-case? determination usually required. Id In the context of res judicai?a, the issue as to whether privity exists is generally a question of fact. Atherron v. Connecticut General Life Ins. Co., 2011 IL App 090727 *14. Many Illinois Courts, including the Illinois Supreme Court, in discussing privity for the purposes of res jadicata, have relied upon the de?nition found in the restatement of Judgements: ?Privity is a word which expresses the idea that as to certain matters and in certain circumstances persons who are not parties to an action but who are connected with it in their interests are affected by the judgment with reference to interests involved in the action, as if they were parties.? People ex rel. Burris v. Progress Land Deva, 151 Ill. 2d 285, 296 (Ill. 1992) (inner citations removed) citing RESTATEMENT 0F JUDGMENTS 83, Comment a, at 389 (1942). When determining privity between entities, a court should primarily focus on the congruence of legal interests and adequacy of representation. See also People ex rel. Burris v. Progress Land Devs., 151 Ill. 2d 285 (Ill. 1992). The plaintiffs in Berrios I were John K. Norris and Joseph Berries, in his of?cial capacity as Assessor of Cook. County, Illinois. As articulated in the Second Amended Complaint, the Plaintiffs before this Court currently are (1) Joseph Berries, individually; (2) the Committee to Elect Joseph Berrios Cook County Assessor; and (3) the 3lst Ward Democratic Organization. Berrios I sought a declaration that the Ethics Ordinance was unconstitutional, which would obviate the CCBOE hearings and levying of ?nes pursuant thereto. Joseph Berrios, individually, is the Chair of both (2) the Committee and (3) the 3 1 st Ward Organization. RB.203, 450; RA.378, 384; Plaintiffs Motion for TRO, Ex. B. at *14, ?led 1/30/ 18 in (af?davit of Joe Berrios). The Court ?nds it important to note that in the initial complaint ?led in this matter Plaintiff Berrios was not individually named, instead Berrios tried to Page 13 of 41 bring this case in his of?cial capacity as Assessor of Cook County, Illinois.8 This is highly probative in the privity analysis. Ohly after the CCBOE objected and ?led a motion to dismiss did Plaintiff agree to sue individually, as opposed to in his of?cial capacity. Regardless, the goals of Berrios as an individual and the purposes of both the Committee to Elect Joseph Berrios and the 3 Ward Organization in this case were to have the Ethics Ordinance declared unconstitutional, obviating the ?nes levied against them; and (2) on a larger scale, to try and ensure Berrios? reelection as Assessor. As the Court Will discuss below in Section V. (A) Jurisdiction Over the 3lst Ward Democratic Organization, the 3 1 st Ward Organization, though nominally labeled as a democratic ?party? committee, was, de facto, a committee. run by, and exclusively for, Joseph Berrios. The mere revision of a Form to change a candidate committee into a party committee, given the unchanged conduct of that committee, cannot be used as a shield for res judicata purposes. The 31st Ward Organization was originally formed with the committee name ?Joseph Berrios, 3lst Ward Committeeman.? CCBEOOIS 1. Even after changing the name to the 3 Ward Democratic Organization,9 the facts are clear that the main democratic candidate supported was Joseph Berrios. Berrios received almost 97% of the funding from the 31st Ward Organization. See Defendant?s Supplemental Brief in Support of their Opposition to Plaintiff?s Petitions for Writ of Certiorarz?, Group Exhibit A (3lst Ward Organization?s Quarterly Reports). Lastly, the Notices of Determinations that instigated Berrios I were assessed against Berrios as himself, and as Chair of both the Committee and the 31st Ward Organization, the same parties in this case. See Berrios I, 2018 IL App 180654. The goal of all three plaintiffs in this matter, (1) Joseph Berrios, individually; (2) the Committee to Elect Joseph Berrios Cook County Assessor; and (3) the 3lst Ward Democratic Organization, were to have the Ethics Ordinance declared unconstitutional obviating the ?nes against them and to reelect Joseph Berrios as Assessor. Their interests were and are aligned, and- all three were adequately represented by Berrios'in his of?cial capacity in Berrios I It is indisputable that if Berrios as Assessor had been successful in Berrios I, then Berrios individually, 3 As discussed in?a in footnote 1, this Court believes this was an effort to avoid paying his own legal fees and instead have them paid by the County. - 9 A change performed by crossing out the words ?Joseph Berrios? and ?Committeeman? in the previous form, so that the of?cial form reads ?Jeseph?Berries, 3 Ward Gemnaitteeman Democratic Org.? CCBEOO 1 5 l. Page 14 of 41 the Committee, and the 3lst Ward Organization would have directly bene?tted by having the Ethics Board Determinations issued against them nulli?ed. That these entities were not actual parties to Berrios I does not change the fact that their legal interests were involved and adequately represented. See People ex rel. Burris v. Progress Land Deva, 151 Ill. 2d 285, 296 (Ill. 1992). Berrios as Assessor, Berrios the individual as candidate for Assessor, the 31st Ward Organization, and the Committee all have. the same legal interests: (1) have the Ethics Ordinance declared unconstitutional, obviating any ?nes levied thereunder, and (2) reelect Joseph Berrios as Cook County Assessor. See People ex rel. Burris v. Progress Land Deva, 151 Ill. 2d 285, 296 (Ill. 1992). It is clear to this court that the interests of each of the three plaintiffs ?are so closely aligned to those? of Berrios as Assessor in Berrios I that the he was, essentially, a virtual representative of himself individually, the Committee, and the 3lst Ward Organization. See Agolf LLC v. Viil. of Ariirzgiorz Heights, 409 Ill. App. 3d 211, 220 (1St Dist. 2011). An identity of parties with an identity of interests bars re-litigating this issue. D. Equitable Exclusions to Claim?Splitting? The rule against claim-splitting has been relaxed where there has been an omission due to ignorance, mistake or fraud, or where it would be inequitable to apply the rule. Rein v. David Noyes 172 Ill. 2d-325, 341 (1996). The Illinois Supreme Court has identi?ed circumstances in which application of the claim-splitting rule would be inequitable, including (1) agreement by the parties, in terms or in effect, that the plaintiff may split their claim or defendant?s acquiescence to the plaintiff?s splitting of claims into two actions; (2) express reservation by the court in the ?rst action of the plaintiff right to maintain the second action; (3) the plaintiff was unable to obtain relief on his claim because of a restriction on the subj ect-matter jurisdiction of the court in the ?rst action; (4) the judgment in the ?rst action was plainly inconsistent with the equitable implementation of a statutory scheme; (5) the case involves a continuing or recurrent wrong; or (6) it is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason. Rein v. David Noyes C0., 172 Ill. 2d 325, 340 (1996) citing Restatement (Second) of Judgments 26(1) (1980). Page 15 of 41 r?ww?A Plaintiffs claim the ?rst two circumstances are met in this case, (1) that Defendants either agreed or acquiesced to this second-action and (2) the Appellate Court expressly reserved the right to this second action. An agreement in terms to claim-splitting would be something that happened before the re?ling, and means that the parties explicitly agreed that Defendants would not object to the plaintiff?s re?led action on res judicata grounds. Dinerstez'n v. Evanston Athletic Clubs, 2016 IL App 153388 *53. An agreement in effect is something short of an agreement in terms, but still must occur prior to the re?ling of the second action. Id. at *57. When a defendant engages in conduct that implies the viability of a claim separate and apart from a pending'lawsuit, such as negotiations over a related issue, then the defendant agrees in effect to the litigation of that claim in a separate suit. Id. at *58 citing Saxon Mortg. Inc. v. United in. Mortg. Corp, 312 Ill. App; 3d 1098, 1 102-1 1 10 (lSt Dist. 2000). But silence alone is not enough to establish an agreement in effect, the defendant must imply a lack of objection to the claims splitting in either word or deed. Id. *61. An acquiescence is the failure to object to claim-splitting once the action is refiled, not an agreement in advance of that re-flled action. Dinerstez'n v. Evanston Athletic Clubs, 2016 IL App 153388 *49. The Illinois Appellate Court has found that a defendant acquiesces to the splitting of claims when they actively defend against the second action through answering the complaint, raising af?rmative defenses, and initiating discovery and fail to object to claim-splitting in a second case. See Thorleif Larsen Son Inc. v. PPG Indus, Inc, 177 Ill. App. 3d 656, 662-63 (2d Dist. 1988) (parties were simultaneously litigating cases in both DuPage and Cook County); Piagentz'ni 12. Ford Motor Co, 387 Ill. App. 3d 887, 896?98 (1St Dist. 2009) (finding acquiescence to claims splitting where the defendant participates in litigation and fails to object based upon res judicata for over three years after re?ling). Plaintiffs argues there is a third-way to acquiesces to claim- splitting, which is by representing to Court'A that plaintiffs have a remedy to certain related claims simultaneously being litigated in Court based upon a Second District Illinois appellate opinion. See harleif Larsen Son Inc, 177 Ill. App. 3d at 662-63. But the First District Illinois Appellate Court has explicitly rejected that as a basis for acquiescing to claim-splitting, emphasizing it is the failure to object and active litigation in the second ?led case which is the basis for acquiescence. Piagentz'nz' v. Ford Motor Co, 387 Ill. App. 3d 887, 897 (lSt Dist. 2009). Page 16 of 41 Plaintiffs fail to specify whether they believe there is an agreement in terms, an agreement in effect, or an acquiescence to claim-splitting. Plaintiffs argue that Defendants never sought to bar the Ethics Boards administrative proceedings, and point out that the Appellate Court in Barrios I speci?cally acknowledged that the judicial review of the ethics board cases was proceeding separately. This shows, plaintiffs argue, that defendants either agreed or acquiesced to the claim-splitting and that the appellate court reserved plaintiff? 3 right to maintain this second action. Plaintiffs also do not address the distinction between their claims as to judicial review of the Ethics Board decisions versus claims which constitutionally challenge the Ethics Ordinance. At the outset, this Court ?nds that the record is devoid of any allegations of ignorance, mistake, or fraud in ?ling the as?applied constitutional claims. And it is clear that Defendants did not agree to allow Plaintiffs to split their claims. Plaintiffs have pointed to no express agreement in terms by Defendants that would allow for claim-splitting, and Defendants deny any such agreement exists. Moreover, there is nothing in the record, or speci?cally argued by the Plaintiffs, that shows the type of conduct by the Defendant such that there is an agreement in effect to allow Plaintiffs to split their claims. The fact that the parties may have, at one point, engaged in settlement discussions as to the administrative proceedings, or even in general as to this matter, is insuf?cient to establish an agreement in effect. Thus, the Court?s analysis will focus on whether Defendants acquiesced to claim?splitting. Defendants? arguments as to resjudicata are narrowly drawn as to the constitutional claims alone. Defendants claim they did not actively defend or litigate the case before this Court and timely raised their resjudicata arguments at the appropriate time. Defendants point out that the original complaint in this case, ?led on 04/11/18 (for and 05/31/18 (for 18-CH-6937), raised no as-applied challenge to the Ordinance, but instead claimed the Ordinance was unconstitutional on its face. The as-applied challenge ?rst appeared alongside the facial challenge in Plaintiffs Amended Complaint on December 21, 2018. Now, the operative complaint, the Second Amended Complaint, contains both facial and as-applied challenges, and this was ?led on February 15, 2019. Defendants claim the parties were not at issue until Plaintiffs ?led their memorandum in support of their petition. After Plaintiffs petition was ?led, Defendants immediately brought their res judicata claims. Defendants claim they did not actively ?defend? against the action before ?ling their resjndicata arguments, rather Page 17 of 41 Defendants simply ?led the Record as their Answer and raised their defenses at the appropriate time when the parties were ?nally at issue. Plaintiff claims this case is like Thorleif Larsen, and that, as in that case, Defendants have similarly acquiesced to claim-splitting. See harleif Larsen Son Inc. v. PPG Indus, Inc, 177 Ill. App. 3d 656, 662-63 (2d Dist. 1988). The plaintiff in harleif Larsen ?led two suits on the same day involving the same construction project, one in Cook County and one in DuPage County. 1d. at 657. Defendant moved to dismiss the Cook County action, arguing that plaintiff was not without remedy as it had a pending action in DuPage. County which was set for trial. Id. at 662. The defendant in Thorle if Larsen then went on to defend the DuPage County action never objecting to the claim-splitting. Id. at 662. The court concluded that defending the action with no objection to the claim-splittingconstituted acquiescence, not the defendant's representation that plaintiff would have a remedy because of the second suit. Id. at 662-63. Plaintiffs claim that because Defendants never tried to stop the second administrative hearing, they acquiesced to the claim-splitting. Defendants point out they had no reason to bar or prevent any administrative proceeding before the Ethics Board, as constitutional claims are outside the Ethics Board?s jurisdiction. The Court notes that Defendants would not even have the ability to raise that argument before the Ethics Board. Administrative proceedings themselves are non- adversarial, the only parties are the petitioner and the administrative agency, and the purpose-of the hearing is fact-?nding. See Abrahamson v. Ill. Dep?t of Professional Regulation, 153 Ill. 2d 76, 94-95 (Ill. 1992). Moreover, that Defendants failed to raise this resjudi'cata argument in a motion to dismiss does not mean they acquiesced to the claim-splitting either. The only substantive thing Defendants did in this case, before raising this argument, is ?ling the administrative record as their answer. Defendants did not engage in protracted litigation before raising this argument, all they did was ?le the administrative record and then supplement it. This Court does not find that sufficient to show an acquiescence to claim-splitting. No equitable exclusions to claim-splitting apply in this matter. Lastly, this Court finds that the Appellate Court did not expressly reserve Berrios? right to Split claims as to the Ethics Ordinance. All the Appellate Court made clear was that it was not Page ruling on the ?as-applied? basis, expressing no opinion as to several hypotheticals outside the fact pattern of the Berrios cases; and that it was not ruling on the judicial review of the Ethics Board administrative proceeding. See Barrios v. Cook County Board of Comm ?rzrs, .2018 IL App 180654 *41, 74. This Court has already ruled that res judicata cannot bar judicial review of the Ethics Board administrative hearings, and it is clear that none of the constitutional hypotheticals reserved by the Appellate Court are at issue. This Court ?nds that res judicata bars the cause of action claiming the Ethics Ordinance is unconstitutional as-applied, (1) there is a ?nal judgment on the merits in Berrios (2) an identity of causes of action exist, as there are the same operative facts here and in Berrios and (3) the parties in Berrios I and here are the same and, if not the same, are in privity. No equitable exclusions to claim-splitting apply. AS-APPLIED CONSTITUTIONAL CHALLENGE A. Plaintiffs? Request for an As-Applied Constitutional Analysis and Plaintiffs? Interpretation of the Barrios I Appellate Court Opinion Even if resjudicata is not appropriate in this matter, which again, this Court believes his, for the sake of completeness, the Court will still address Plaintiffs? request for an as-applied constitutional challenge to Section 2?585(b) of the Ordinance.10 This Court permitted the parties to provide supplemental brie?ng regarding an as-applied constitutional challenge to the Ordinance. In the Supplemental Brie?ng and during the August 13, 2019 oral arguments, Plaintiffs had con?icting arguments about the Appellate Court?s facial challenge or an as-applied challenge in Barrios I. Plaintiffs? Supplemental Brief in Support of Plaintiffs? Petition for Writ of ertiorari at 3 (?Plaintiff Supplemental Brief in Support?). Given the cyclical nature of Plaintiffs? pleadings in the various cases, this Court would like to note that both stare decisis and law of the case bind this Court. Courts are bound by controlling legal precedent to the facts of the case before them under the fundamental principle of Stare decisis. Yakich v. Aulds, 2019 IL 123667, 11 13 (lower courts are bound by higher court?s legal rulings). As it relates to the constitutional challenges, the facts are essentially the same for and 1" As was pointed out during oral argument on August 13, 2019, Plaintiffs? Second Amended Complaint for this writ of certiorari in both 18-CH-4717 and 18-CH-16937 is almost identical to the complaint ?led for declaratory judicial action before Judge Tailor in 18-CH-1102. See chart in Section Identity of Causes of Action for a more speci?c comparison. Page 19 of 41 and Berries I. The administrative review challenges will be addressed below in Section IV. Petition for Writ of Certiorari. In addition to stare decisis, the ?law of the case? also binds this Court. The law of the case doctrine provides that issues presented and disposed of in a prior appeal are binding and will control in the circuit court on remand, as well as the appellate court in a subsequent appeal, unless the facts presented are so different as to require a different interpretation. Bilut v. Northwestern Univ., 296 Ill. App. 3d 42, 47 (1998) citing Aardvark Art, Inc. v. Lehigh/Steck? Warlick, Inc. 284 Ill. App. 3d 627 (1996). Thus, absent substantially different facts, a party cannot re-argue issues previously decided by the appellate court. Id. Instead, the remedy for a dissatis?ed party is to ?le a petition for rehearing or petition for leave to appeal to the state?s supreme court. Id. In the prior appeal for Bilat, the court held that defendants' academic judgment of plaintiff was not arbitrary and capricious because there was a discernable rational basis for the decisions of Northwestern and its faculty regarding plaintiffs dissertation. Id. Since the facts in the circuit court on remand and in this subsequent appeal are substantially the same as those in the prior appeal, the facts did not require a different interpretation. Id. As shown above in the res judicata section, the pleadings and the relevant facts in Berrios I and Plaintiffs? Second Amended Complaint for Writ of Certiorari are strikingly similar and at times verbatim. Thus, the Berries I decision is binding and controls for these proceedings, especially with regards to the constitutional challenge holdings. Bilut, 296 Ill. App. 3d at 47. According to Plaintiffs and their selective analysis of the Berrios I order, the ?Appellate Court did not consider Berrios? argument that violations by the other county of?cers were purposely ignored, saving this issue for an ?as-applied? argument.? Plaintiff?s Supplemental Brief in Support at 3. However, the Appellate Court never reserved Plaintiffs as-applied argument for a later time. The Appellate Court stated the following regarding an as-applied challenge: Again, we note the plaintiffs are not challenging the Ethics Ordinance on an as?applied basis. We express no opinion on whether the Ethics Ordinance would survive such a challenge if, for instance, the Ethics Board took action against someone who sought innocuous or ministerial ?of?cial action? from the county such as a marriage license or copy of a document. In sum, we ?nd that the Ethics Ordinance is not unconstitutionally vague. Berries 12. Cook Cry. Bd. ofCommr 2018 IL App (1 st) 1806541] 19. Clearly, the Appellate Court stated that it is making no comment if there was as an as-applied challenge for ministerial or Page 20 of 41 administrative requests. Contrary to Plaintiffs? confused beliefs, the Appellate Court did not use language reserving the issue for Plaintiffs writ of certiorari. See id. 1] 41. Hence, the Appellate Court did not comment on whether another group challenging 2?585(b) for an as-applied basis would succeed. Plaintiffs believe their request for an as-applied constitutional challenge is justi?ed. In Plaintiffs? Supplemental Brief in Support, they assert that they are entitled to an as-applied analysis: ?[a]nd while there is a similarity in the actions (Berrios I and the writ cases), the controlling pleading (the ebr'uary 15, 2019 Second Amended Complaint) repeatedly asserts the as-applied argument.? Id. at 3 (emphasis added). In reviewing the Second Amended Complaint, Plaintiffs pled that: ?Section 2-585(b) of the Ethics Ordinance is unconstitutional on its face and as-applied because it is not narrowly tailored to the government?s interest in preventing quid pro quo corruption.? Second Amended Complaint for (?2ACompl.A.?) at 15. While this Court disagrees with Plaintiffs? interpretation of the Appellate Opinion for Berries I, this Court would also like to point out that even with an as-applied constitutional challenge that Plaintiffs? arguments fail for the reasons stated below. 1. Facial versus As?Applied Constitutional Challenges Facial and as-applied constitutional challenges are not interchangeable. People v. Harris, 2018 IL 121932, 52. An as-applied challenge requires a showing that the statute is unconstitutional as it applies to the challenging party?s speci?c circumstances, it is fact speci?c to the party challenging the statute. 1d. (citing People v. Thompson, 2015 IL 118151, 36). In contrast, a facial challenge requires the challenging party to establish that the statute is unconstitutional under any possible set of facts. Id. (emphasis supplied). Berries I af?rmed that 2-585 of the Ethics Ordinance is facially constitutional. Berrios v. Cook Cty. Bd. of Commr 2018 IL App (1st) 180654 11 44. This is undisputed. 2. Plaintif?s?Allegations That the Ordinance is Unconstitutional As-Applied Plaintiffs? Second Amended Complaint alleges that ?Section 2-585(b) of the Ethics Ordinance. infringes on the First Amendment rights of all citizens of Cook County to support candidates of their choice.? 76. The Second Amended Complaint further claims restriction on campaign contributions may withstand a constitutional challenge only if the government demonstrates that the restriction promotes a suf?ciently important interest and is Page 21 of 41 closely drawn to avoid unnecessary abridgment of associational freedoms.? Id. 1[ 77. This is a facial challenge analysis and not at issue here because facial challenges were clearly addressed by the Appellate Court in Berrios 1. While Plaintiffs use various constitutional analyses interchangeably, this Court will look to the ordinance with an as-applied analysis and with a strict scrutiny standard. This Court is reviewing ?nal decisions regarding constitutionality under a de nova review standard. A de novo review is appropriate because this review is based upon a question of law. An administrative agency's conclusion on a question of law is reviewed de nova. AFM Messenger Serv, Inc. v. Dept. of Emp. Security, 198 Ill. 2d 380, 390 (2001). The constitutionality of a statute presents a legal question and thus, this Court must review the present as-applied challenge to the Ordinance de nova. People ex rel. Hartrich v. 2010 Harley-Davidson, 2018 IL 121636, 11 13. B. Quid pro quo Plaintiffs assert that: ?2-585 limits contributions to County of?cials and candidates for County of?ce with whom the donor has no connection whatsoever and therefore, it does not further the only government interest that the Supreme Court has accepted as legitimate preventing quid pro quo corruption.? 2ACompl.A. 11 8.6 (emphasis added). Because of this alleged ?lack of connection,? Plaintiff also asserts that 2-585 ?does not further the only government interest . . . preventing quid pro qua corruption.? Id. Further, Plaintiffs believe that Cook County ?cannot show that its freedom of speech limits, which apply to one class of donors and not to others, are narrowly tailored to meet First Amendment standards.? Id The Court will address Plaintiffs? allegations in two sections: Cook County?s interest in preventing quid pro quo corruption and (ii) that the freedom of speech limits applying to ?one class of donors and not to others.? 1. Prevention of Active! and Apparent Quid pro qua Corruption The United States Supreme Court has recognized that preventing actual or apparent quid pro qua is a suf?cient interest to justify campaign-?nance restrictions under the closely drawn standard. Praft v. Raoul, 944 F.3d 686, 691, 2019 US. App. LEXIS 37158, *13, 2019 WL 6835279 (citing Wis. Right to Life State PAC v. Barland, 664 F.3d 139, 153; FEC v. Nat? Conservative PAC, 470 US. 480, 496-97 (1985)). In Illinois there is a clear limit on the campaign contributions to prevent this very type of quid pro qua corruption as shown by the Ethics Ordinance. Cook County Code of Ordinances 2?585(b) (approved Oct. 5, 2016). Page 22 of 41 Moreover, Chairman Peggy Daley articulated with speci?city the importance of preventing quidpro quo corruption: The importance of the County?s interest in ensuring that candidates for County of?ce do not arrive in of?ce beholden to special interests is clear. The County Board?s rationale for enacting Section 2-585 is no different, and no less constitutionally important than the federal or any state government?s interest in doing the same. Buckley v. VaZeo, 424 US. 1, 25-29 (1976); Nixon v. Shrink Missouri Gov PAC, 528 US. 377, 390-95 (2000). The history of corruption in Cook County government is well-known. This history includes ?pay-for?play? allegations and other serious misconduct in the County?s tax assessment of?ces, including the CCAO.1 Moreover, the public?s acute concern about the appearance of quid pro quo corruption with respect to the in?uence of campaign donors who seek of?cial action from Cook County of?cials they supported as candidates is also well documented. RA.277. The history of corruption in Cook County is well?known. 1d. Thus, Cook County created ?rm boundaries for campaign contributions. Id. Property tax appeal attorneys and the Assessor?s of?ce have an unparalleled connection and working relationship, such that even the appearance of a quid pro quo must be avoided, See id. The Assessor?s of?ce makes decisions that can allow for property tax appeal attorneys to directly pro?t. Id. It has been noted that after property owners win appeals, the assessed values of many prOperties immediately ?snap right back to the Same number in the next reassessment . . feed[ing] a property tax appeal industry that provides the bulk of Berrios?s campaign contributions.? Id. (citing Jason Grotto, et al., Assessor ?s estimates de?/ logic, bene?t lawyers, CHICAGO TRIBUNE, Dec. 10, 2017).11 Regardless of the assessed value returning to the sanie amount or not, the property tax appeal attorneys directly pro?t and bene?t from the actions of the Cook County Assessor?s of?ce. Id. In Plaintiffs? Second Amended Complaint, they allege that a ?political contribution cannot in?uence a government action sought by a donor when that action has already occurred, particularly when that action may have occurred up to four years before the contribution was made.? 2ACompl.A 11 88. This is exactly why a property tax appeal lawyer who has appeared before the Cook County Board of Review is prohibited from over-contributing to a race and is limited by the rules clearly set out in See RA.277. A lawyer is likely to ?le another tax Plaintiff does not challenge the factual ?ndings relied upon by the administrative agency, CCBOE, in issuing its ?nal decision. Page 23 of 41 appeal. Id. That is Why it is reasonable to infer what motivates a lawyer to contribute, or over-contribute, to the campaign. Id. As CCBOE already. stated in their Order Denying a Request for Reconsideration, 2-585(b) does not create a ?consequence to the law practice of any of the contributors.? Id. The only consequences of knowingly giving more than $750 are that the attorney must obtain a refund of the excess contribution after receiving a notice of violation, or pay a maximum ?ne of $1,000.? Id. Plaintiffs cannot assume that the property tax appeal attorneys that specialize in this area of the law will never appear in front of the Assessor?s of?ce again for future matters.12 2. Applying 2-585 to (1 Clearly De?ned Group and Class of Donors The Ordinance articulates a clear group of people that covered by section Particularly, 2-585(b) deters ?the acute risk of corruption presented by campaign contributions from a smaller subset of donors based on their particular relationship with Cook County government as vendors, lobbyists, and now, of?cial action seeker.? RA.279. There is not a complete bar to campaign contributions. Id at 277. Rather, the Ethics Ordinance only sets an upper limit for the size of such contributions in the aggregate. Id at 027. Berrios alleged that for these cases ?the Board of Ethics applied the Ordinance inan arbitrary and discriminatory manner by limiting the amount of contributions Mr. Berrios and the Committees were permitted to accept from lawyers and law ?rms who had ?led appeals on behalf of property taxpayers.? Plaintiffs Memorandum in Support of Writ of Certiorart for at 13-14. However, simply ?limiting? a campaign contribution amount does not equate to being ?arbitrary? and ?discriminatory.? The United States Supreme Court has de?nitively held, on more than one occasion, that a blanket limitation on all campaign contributions passes constitutional muster as closely drawn to address the government?s anti?corruption interests. Id. (citing Buckley, 424 US. at 34 (rejecting a facial challenge to $1,000 campaign contribution limits on all donors to federal candidates); Nixon, 528 US. at 397-98 (upholding $275 campaign contribution limits on all donors to some state candidates against First Amendment challenge). Section 2?5 85(b), which only-applies to some 12 Some law ?rms make up large percentages of the property tax appeal cases ?led in Cook County: ?Crane and Norcross, which ?led nearly 20 percent of all appeals ?led with the CCAO between 2010-2014.? RA.277. Michael Crane of Crane and Norcross is listed as one of the excess contributors that is alleged to have violated 2-5 85(b). RA.002. Page 24 of 41 potential donors, is certainly more closely drawn to the County?s interest than the campaign contribution limits in Buckley and Nixon, which expressly applied to every potential donor. Id. If there were not limits on the campaign contributions, these donors with clear connections to the of?ce up for election could inundate a race for a Cook County elected position, like the ?13 allegations and Assessor?s of?ce race. With Cook County?s history including ?pay-for-play other serious misconduct in the County?s tax assessment of?ces, section 2-585(b) is well within the bounds to keep these races for elected of?ce as bipartisan as possible. RA.277. Berrios understood that keeping the improper contributions violated 2-585 Further, the Ethics Board did take the time to compare the contributions to public records and make a clear ?nding that there was a direct correlation between those contributions and the attorneys that sought property tax reductions from the Assessor?s Of?ce: I ?As a matter of course of regular business, the Ethics Board compared the contributions that Berrios?s committees received and compared them to public records showing that attorneys and law ?rms sought property tax reductions from the assessor?s of?ce. This analysis revealed that some of those attorneys and law ?rms contributed more than $750 to one or more campaign committees related to Berrios.? Berrios v. Cook Bd. of Comm 2018 IL App (1st) 180654 11 9. Berrios had the opportunity to return the contributions subject to this lawsuit. RA.297. However, Berrios chose not to return that money to the contributors. Id. at 282. Berrios? conduct demOnstrates that by keeping the excess contribution he was abusing his power in an effort to maintain his power, which is exactly what the 2-585(b) is intended to prevent. Id. at 276. Further, if Berrios hypothetically prevailed for an as-applied claim, he may ?enjoin the objectionable enforcement of a statute only against himself, While a successful facial challenge voids enactment in its entirety and in all applications.? Jackson v. City of Chicago, 2012 IL App (1st) 111044, 26-27 (citing Mow-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 498 (2008)). If Berrios enjoined enforcement of 2?585(b) only against himself, then that defeats Cook County?s goal to prevent quid pro quo corruption in the ?rst place. This outcome would mean that Berrios ?3 Jason Grotto, Appeals system worsens inequality, Chicago Tribune, June 10, 2017 (noting that 2015, when appeals hit an all-time high, records show that attorneys? fees from residential appeals totaled roughly $35 million, triple the amount in 2003. Many of these lawyers have helped ?ll the campaign coffers of Berrios, who is also chairman of the Cook County Democratic Party and committeernan of the 3 Ward Organization?). RA.277. Page 25 of 41 would not be subject to 2-585(b) and the long-standing ordinance that he had previously complied with, would be rendered pointless. C. Ordinance Narrowly Tailored To reiterate Plaintiffs? own language, they assert that 2-585(b) is unconstitutional as-applied because it is not narrowly tailored to the government?s interest in preventing qaidpro qua corruption. 1] 86. The phrase ?narrowly tailored? arises from a strict scrutiny constitutional challenge. See Napleton v. Vill. oinnsdaZe, 229 Ill. 2d 296, 307 (2008). In order to survive strict scrutiny, the measures employed by the government body must be necessary to serve a compelling state interest, and must be narrowly tailored meaning that the government must use the least restrictive means consistent with the attainment of its goal. Id. (citing In re R. C. 195 Ill. 2d 291, 303). 1. As~Applied Analysis, Generally A traditional as?applied challenge contains facts unique to the challenger. An as-applied challenge ?requires a party to show that the statute violates the constitution as the statute applies to him.? City of Chicago v. AZexander, 2015 IL App (1st) 122858, {l 85. This is a Petition for Writ of Certiorari, so this Court is limited to factual ?ndings of the agency. The Administrative Review Law, which applies for this writ of certiorari, provides that ?the ?ndings and conclusions of an administrative agency on questions of fact shall be held to be prima facie true and correct.? 735 ILCS 5/3?1 10 (Lexis 2016). An administrative agency's ?ndings of fact are not reversed unless they are ?against the manifest weight of the evidence.? Lyon v. Dep?t of Children Family Servs. 209 Ill.2d 264, 271 (Ill. 2004). ?The agency's ?ndings of fact are against the manifest weight of the evidence only if the opposite conclusion'is clearly evident.? Bd. ofEdac. of Rich Twp. High Sch. Dist. No. 227 v. Ill. State Bd. 0fEdac., 2011 IL App (lst) 110182, ii 61 (lst Dist. 2011). Plaintiffs do not challenge the ?ndings of fact. See generally, id. In order to satisfy the "narrow tailoring" requirement, a regulation need not be ?the least restrictive or least intrusive means of [achieving the stated governmental interest]." Id. 1} 39 (citing Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2d Cir. 2006) (quoting Hobbs v. City of Westchester, 397 F.3d 133, 149 (2d Cir. 2005), quoting Ward v. Rock Against Racism, 491 US. 781, 798)). Instead, the requirement is satis?ed if the substantial governmental interest that the law is designed to serve would be achieved less effectively in the law's absence and the law does not Page 26 of 41 burden substantially more speech than is necessary to further the government's objective. City of Chicago v. Pooh Bah Enterprises, Inc, 224 Ill. 2d 390, 411 (2006). The First District agreed that the ordinance ?responds precisely to the substantive problems which legitimately concern the [Government]." City of Chicago v. Alexander, 2015 IL App (lst) 122858-B, 1] 43 (citing Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984)). I The general principles that apply to a ?narrowly tailored? approach are to ensure that the actions are protecting: substantial interests of the government and (2) the law does not burden substantially more speech than is necessary. I 2. As?Applied Analysis in this Case While the Court is aware that Alexander and this case at hand have differing facts, the analysis for the as-applied constitutional challenge for the ordinance being ?narrowly tailored to serve a substantial government interest? is the same. CCBOE has consistently been transparent about 2-585(b) and why the ordinance is in place in Cook County. In Ranjit Hakim?s letter to James P. Nally on October 5, 2017, Hakim elaborates about the intent of the ordinance and why it is constitutional: Section 2?585(b) in no way displaces the generally applicable contribution limits in the Election Codeor otherwise thwarts the ability of the State to take further action with respect to campaign contributions. Rather, Section 2-5 85 is narrowly targeted toward persons who have an identi?able interest in currying favor with elected of?cials. The fact that the Election Code provides certain generally applicable contribution limits to individuals, corporations, and political action committees does not preclude the Cook County Board of Commissioners from enacting lower contribution limits upon certain narrow categories of donors whose campaign contributions to County of?cials or candidates for County of?ce carry the highest risk of quidpro quo corruptiOn or an appearance of impropriety. RA.012. In the Second Amended Complaint, Plaintiffs assert that the Supreme Court requires ?a ?t that is reasonable and that employs a means narrowly tailored to achieve a desired objective? regarding restrictions on campaign contributions. 2ACompl.A. 1M 76?77. Moreover, Plaintiffs assert that Section 2-585(b) is not narrowly tailored to simply limit the amount a donor can contribute to the County of?cial from whom he or she sought ?of?cial action.? Id. 1] 79. Page 27 of 41 I Plaintiffs read the plain language of 2?585(b) as prohibiting ?a person who has sought of?cial action by the County in the preceding four years from contributing more than $75 0 to any candidate for County of?ce or to any elected County of?cial even as to those of?cials from whom the donor never sought any action.? Id 1] 80. Plaintiffs claim that the Board?s interpretation of 2-585(b) means that: section 2-585(b) prohibits any attorney or law?rm who practices before Cook County courts or agencies from donating more than $750 to any candidate holding or seeking public of?ce in Cook County. Id. 81-82 (emphasis added). In Berries I, the First District addressed concerns over de?ning ?of?cial action? and how attorneys and law ?rms that represent taxpayers in property tax appeals fall into this category. Berrios v. Cook Cty. Bd. of Commr 2018 IL App (-1 st) 180654, 11 36. Berries I clearly articulated what ?of?cial action? means for Berries v. Cook Cty. Bd. of Commr 2018 IL App (1 st) 180654, 1] 36. ?The meaning of the term ?of?cial action? must be read as applying to action requiring the application of discretion, such that an excessive campaign contribution could be seen as facilitating a quid pro one exchange between the of?cial and the requestor. That being the case, the term ?of?cial action? is not unconstitutionally vague.? Id. Yet Plaintiffs still assert a need for this Court to de?ne ?of?cial action.? The term ?of?cial action? is de?ned ?as applying to action requiring the application of discretion, Such that an excessive campaign contribution could been seen as facilitating a quid pro quo exchange between the of?cial and the requester.? Id. The term ?of?cial action is not unconstitutionally vague.? Id. (emphasis added). Here, Plaintiffs? sweeping generalization that because ?of?cial action? is not de?ned to their liking by the Ethics Ordinance and that ?hundreds of thousands of other citizens in Cook County could be deemed to have sought ?of?cial action? by the County? is pure speculation and an absurdist reading of the Ordinance. 2ACompl.A 11 83.14 Plaintiffs try to allege that 2-585(b) ?prohibits any attorney or law ?rm who practices before Cook County courts or agencies from donating more than $750.? Id. 111] 81-82. Indeed, those individuals ?4 Additionally, Plaintiffs allege a hypothetical regarding ?of?cial action? in their Second Amended Complaint: ?section 2-585(b) prohibits every homeowner in Cook County who has-applied for a Homeowner Exemption (or any other tax exemption) from contributing more than $750 to any candidate for County of?ce or to any elected County of?cial even though each homeowner has sought action solely from the Assessor. 2ACompl.A 11 84. This hypothetical is completely outside the bounds of the Record provided and unrelated to these requests for administrative review. Further, Plaintiffs? attempt to say that for this as-applied challenge, a citizen or his or her lawyer who obtains no relief or acts in a pro bono capacity is subject to the prohibitions of this Ordinance. Id. 85. This second hypothetical is also outside the bounds of the Record and not ?t for administrative review. Page 28 of 41 - seeking ?of?cial action? are a much more speci?c group than all ?attorney or law ?rms that practice in Cook County courts.? See id. Looking back to Alexander, Plaintiffs need to show that for an as-applied challenge ?that the statute violates the constitution as the statute applies to him.? City of Chicago v. Alexander, 2015 IL App (lst) 122858-B, ii 36 (citing People v. Brady, 369 Ill. App. 3d 836, 847 (2007)). Plaintiffs have not shown anything in the Record that 2?585(b) violates the constitution, in particular applying 2-585(b) to Berrios and the other Plaintiffs. If anything, information about the ordinance re?ects the opposite outcome. The ordinance in question gives Berrios and others in the same exact position, individuals running for of?ce where the caps have been ?lifted,? the chance to (1) receive notice about the excess funds, (2) return the excess funds that violate and (3) make a request for reconsideration under Section 5.17 of the Board?s Amended Rules and Regulations. RA.083. I 3. Section 2-5 85 Does Not Provide for an Absolute Bar to Contributions Additionally, 2-585(b) does not provide for an absolute bar to campaign contributions; instead, there is an upper limit to contributions. In the March 13, 2018 Order Denying Request for Reconsideration, Peggy Daley, Chairperson for CCBOE, states that ?[g]iven the importance of this interest, the means the County has Selected a $750 campaign contribution limit to address this interest is not over inclusive.? RA.277. Under strict scrutiny in order to satisfy the ?narrow tailoring? requirement, a regulation need not be the ?least restrictive or least intrusive means of [achieving the stated government interest].? Alexander, 2015 IL App (lst) 12285 8-B, ll 39. This - limit on donations for $750 is not overly ?restrictive? or intrusive.? See id. This ordinance should not and does not burden more speech than is necessary to further the government?s objective. City of Chicago v. Pooh Bah Enterprises, 224 Ill. 2d 390, 432 (2006). A reasonable limit of $750 is not a burden on political donations and this freedom of speech. RA.277. Cook County has ?not banned contributions from of?cial action seekers though there would have been no constitutional impediment to doing so.? Id. (citing FEC v. Beaumont, 539 U.S. 146, 161-63 (2003) (af?rming a ban on federal campaign contributions by all corporations and labor unions); Wagner v. FEC, 793 F.3d 1 (DC. Cir. 2015) (en banc) (upholding a ban on federal campaign contributions from individual government contractors as closely drawn). Moreover, the penalty for violating the ordinance is not an automatic penalty. Berrios 12. Cook ty. Bd. of Commr 2018 IL App (1st) 180654, 1] 31. Instead, CCBOE (1) issues a warning and (2) Page 29 of 41 gives the violator an opportunity to return the excess funds. Id. The ordinance contains a scienter requirement because a ?ne can only be imposed if one ?knowingly violates it. Id. (citing Cook County Code of Ordinances 2-602(d) (approved Oct. 5, 2016)). 4. Berrios Was on Notice and Complied with the Ordinance in the Post Plaintiffs assert that the ordinance, as-applied by the CCBOE, is void for vagueness. The void-for-vagueness doctrine addresses at least two due process concerns: that regulated parties should know what is required of them so they may act accordingly; and (2) precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way.? Plaintiff?s Memo in Support of Writ of Certtoram' for at 9 (citing Fox Federal Communications Comm ?n v. Fox Television Stations, Inc, 567 U.S. 239, 253 (2012)). Defendants have shown that both parts of this void for vagueness are not appropriate for these two cases Berrios knew what was required of him because he complied with the very ordinance, before and (2) as stated above in the quidpro quo and as-applied sections, this ordinance is not arbitrary or discriminatory. I As of August 25, 2014, Berrios, as an individual, was aware of the Ordinance and its enforcement procedures because Berrios had previously complied with this exact ordinance. RA.018. Further, Berrios complied with this Notice of Excess Contributions when Berrios returned the excess contribution on September 8, 2014 to Walgreens Company. Id at 21. Even two and a half years later, Berrios continued to comply with Id. at 24?25. Berrios retuned two other contributions based on violations of 2-585(b) as recent as March 10, 2017. Id. at 27; 34. The threat of losing the election for Cook County Assessor is what spurred Plaintiffs? new ?constitutional? arguments for in particular the facial and as-applied challenges to 2-5 85 was. It was not until September 2017, when the Illinois State Board of Elections received Fritz Kaegi?s Noti?cation of Self?Funding that Berrios started to contest Id. at 130. When Kaegi challenged Berrios in the election and the threat of losing was on the horizon for Berrios, that this challenge to the constitutionality of 2-585(b) came up. By alleging that Berrios and his Committees were acting in good faith and by advice of counsel by not returning the excess campaign contributions, Plaintiffs try to shield themselves from accountability for their actions. Plaintiff?s Memorandum in Support of Writ of Certz'orart for at 18-19. Plaintiffs believe they acted in ?good faith by following their counsels? advice not to return the contributions at issue.? Id. But Plaintiffs? ?good faith? claims are Page 30 of 41 disingenuous. As stated very clearly by this Court, Plaintiffs were aware of the ordinance, complied with the ordinance, knew the repercussions of the ordinance, and actively chose to violate the ordinance by refusing to return the excess contributions. Any ?legitimate disputes? Plaintiffs had involving state election law, the constitutionality of the ordinance, and the applicability of 2-585(b) to lawyers and law ?rms that made excess contributions were self-created disputes done by Plaintiffs. See id. at 19. IV. PETITION FOR WRIT OF CERTIORARI These two cases and 18-CH-6937 are both Writs of Certiomri. common law writ of certiorari is a general method for obtaining circuit court review of administrative actions when the act conferring power on the agency does not expressly adopt the Administrative Review Law and provides for no other form of review.? innerty v. Personnei Bd. of the City of Chicago, 303 Ill. App. 3d 1, 8 (lst Dist. 1999). ?The standards of review are essentially the same under a common law writ of certiorari and the Administrative Review Law.? Id. The standards of review for administrative review are as follows: ?agency decisions involving mixed questions of fact and law are reviewed under a ?clearly erroneous standard.? Lyon v. Dept of Children Family Servs., 209 Ill.2d 264, 271 (Ill. 2004). mixed question of law and fact asks the legal effect of a given set of facts.? Comprehensive Cmty. Solutions, Inc. v. Rockford Sch. Dist. No. 205, 216 Ill. 2d 455, 472. resolving a mixed question of law and fact, a reviewing court'must determine whether established facts satisfy applicable legal rules? and an agency's conclusion on a mixed question of law and fact is reviewed for clear error. Id. ?Such review is signi?cantly deferential to an agency's experience in construing and applying the statutes that it administers.? Id; ?Under a clearly erroneous standard, the conclusion by the administrative agency ?will not be reversed unless, after review of the entire record, we are left with the de?nite and ?rm conviction that a mistake has been committed.? Kinsello 12. Bd. of Educ. of City of Chicago, 2015 IL App (lst) 132694, 1] 23 (lst Dist. 2015). i In Plaintiffs? Second Amended Complaint for Writ of erriorari for 18-CH-4717, Plaintiffs seek review of ?Notice of Determination? entered on January 8, 2018. RA.078. CCBOE determined that the 30 campaign contributions reported in the fourth quarter of 2016 and the four campaign contributions reported in the ?rst quarter of 2017 by the Committee to Elect Joseph Berrios Cook County Assessor violated CCBOE ordered that Page 31 of 41 the Comrnittee and Joseph Berries pay a ?ne of $1,000 for failing to return the excess portions of the 30 contributions made in violation, for a total of $30,000. Id. Plaintiffs also seek review in 18-CH-4717 for a separate Notice of Determination entered on January 8, 2018. RA.144. This second Notice of Determination is related to eleven campaign contributions reported in the ?rst quarter of 2017 by the 31st Ward Democratic Organization in violation of Id. CCBOE ordered that the Ward Democratic Organization and Joseph Berries to pay a ?ne of$11,000. RA.148. Plaintiff?s other case involves the Second Amended Complaint for Writ of Certiorari for and'Plaintiffs seek review of the Board?s Notices of Determination issued on May 2, 2018. For 18-CH-6937, CCBOE-determined whether 50 campaign contributions reported in the last three quarters of 2017 by the Committee to Elect Joseph Berries Cook County Assessor were made in violation of RB.198. CCBOE ordered that the Committee to Elect Joseph Berries Cook County Assessor and Joseph Berries pay a $50,000 ?ne. RB.204. The second Notice of Determination subject to review for 18-CH-6937 was also issued on May 2, 2018. CCBOE reviewed whether 77 campaign contributions reported in the last three quarters of 2017 by the 3 Ward Democratic Organization were made in violation of RB.445. CCBOE ordered that the 3lst Ward Democratic Organization pay a total ?ne of $77,000. RB.451. Plaintiffs? do not suggest what standard of review would be appropriate for these Writs of Certiorari. This Court is concerned with Plaintiffs? confusing allegations in the Complaint, but these Writs of Certiorarz? involves mixed questions of law and fact and will be reviewed under a clearly erroneous standard as stated above. Lyon, 209 Ill. 2d at 271.15 A. Jurisdiction Over the 31st Ward Democratic Organization Plaintiffs claim the CCBOE lacked jurisdiction over contributions made to the 3 1 st Ward Organization because the CCBOE has no authority to regulate political committees created under the Illinois Campaign Finance Act. See Topinka v. Kimme, 2017 IL App 161000 *9-10. Article 9 of the Election Cede governs the ?Disclosure and Regulations of Campaign Contributions and ?5 In this Court?s two cases for Writ of Certiorari, Plaintiffs express concerns over the Hakim Af?davit and the Appellate Court?s decision not to consider the Hakim Af?davit. Berries 1, 1] 23. The Hakim Af?davit was attached to motion for summary judgment in Berries 1. Even if this Court was to consider the Hakim af?davit, it does not change the as-applied interpretation of the Moreover, this Court does not believe that the Hakim af?davit would affect the requests for administrative review pursuant to the Writs of Certiorari. Page 32 of 41 Expenditures.? 10 ILCS 5/9?1 (Lexis 2020). Section 9-8.5 of the Code allows a candidate political committee to accept contributions with an aggregate value of up to $5,600.00 but lifts that limitation against a self-funding candidate. Plaintiffs claim, without citing to any authority, that the Illinois State Board of Elections has exclusive authority and original jurisdiction over the regulations of campaign ?nances. Thus, Plaintiffs reason, the CCBOE lacked any authority to compel the 3lst Ward Organization, as a political party committee, to refund campaign contributions or levy ?nes. Plaintiffs claim it is clear error for the CCBOE to claim jurisdiction over the 31st Ward Organization based upon a 2010 D?l Statement of Organization that listed Berrios as the candidate it was supporting, especially given the 2/4/13 amendment to the D-1 Statement that is devoid of any reference to'candidates. Importantly, Plaintiffs point out that all the contributions to the 3lst Ward Organization at issue took place after 2/4/13. Plaintiff Supplement Brief in Support of Writ of certiorari, Ex. B. Plaintiffs primarily rely upon the case of Topinka v. Kimme for the proposition that the exclusive jurisdiction regarding cammign finance matters rests with the Illinois State Board of Elections. 2017 IL App (lst) 161000. In opinka the husband of the deceased State Comptroller, Topinka, sued the committee created to support Topinka?s political campaigns, seeking ?mds. Id. Appellate Court found that administrative remedies" must be exhausted prior to judicial review and that, for matters involving the State Board of Elections judicial review goes straight to the appellate court. Id. at *14. This case is distinguishable for two main reasons, (1) the plaintiff in Topinka tried to bypass the administrative system and go straight to court, failing to exhaust their administrative remedies, unlike here where a full hearing was held, and (2) it involves a state government position, as opposed to a county position. Plaintiffs also claim the Ethics Ordinance in Section limits regulation to political committees established in relation to individuals, bringing the 3 Ward Organization out of its jurisdiction. See Cook County Ordinance No. 16-5326, 2?585(b) (amended October 5, 2016) (Ethics Ordinance or Ordinance). The Ordinance states, in pertinent part No person who does business with the County or. . . has sought of?cial action by the County. . . shall make contributions in an aggregate amount exceeding $750.00. . . (3) To any local, state, or Page 33 of 41 federal political committee that is established in support of, a speci?c candidate for County of?ce or an elected County of?cial. Id. Plaintiffs point out that the 31st Ward Organization is registered as a political party committee under the Illinois Campaign Finance Act. The Campaign Finance Act de?nes a ?candidate political committee,? in pertinent part, as the candidate or any entity designated by the candidate that accepts contributions or makes expenditures during any 12-month period exceeding $5,000.00 on behalf of the candidate. 10 ILCS Whereas ?political party committee? is? de?ned as, in pertinent part, a committee formed by a ward of a political party. 10 ILCS Since the 3 Ward Organization is a registered political party committee, Plaintiff claims, then the CCBOE has no jurisdiction over it. Although on paper the 31st Ward Organization claims it supports the Democratic Party, it is clear that it defacto supports Joe Berrios? candidacy. This is partly shown through the 3 1 st Ward Organization?s D-l form which shows Joe Berrios? name crossed out in the committee name form. RA.383-84. Moreover, Section 7 of the D-1 form lists Joe Berrios as the sole candidate the Committee is supporting. Id. Even taking judicial notice of the updated D-l form from 2014, which lacks the cross-out in the committee name, Section 7 still only lists Joe Berrios as the sole candidate supported. See Plaintiffs Supplement Brief in Support of Writ of Certiorari, Ex. B. And even more probative is that fact that, from all the funds the 31st Ward Organization collected from July 2017 to June 2018, $490,225.00, or almost 97% of its collections, went to Berrios. See Defendant?s Supplemental Brief in Support of their Opposition to Plaintiff?s Petitions for Writ of Certioram?, Group Exhibit A (3lst Ward Organization?s Quarterly Reports). ?5 Lastly, Plaintiffs own language makesclear that the 3lst Ward Organization was formed to help Joe Berrios and is de facto a candidate political committee. The Second Ainended Complaint states ?Plaintiff 3 1 st Ward Democratic Organization is an organization established to support Plaintz?Berrios candidacy for of?ce.? Second Amended Complaint for 18-CH-4717, 1] 15, emphasis supplied; Second Amended Complaint for 14, emphasis supplied. It is clear that what distinguishes a ?candidate political committee? from a ?political party committee,? according to their mutual de?nitions, is whether a given committee supports a speci?c ?6 A court can take judicial notice of matters that are readily veri?able from sources of indisputable accuracy, such as public records. City ofCentralia v. Garland 2019 IL App 180439 *10. Page 34 of 41 candidate as opposed to anyone within the party. Compare 10 ILCS (de?ning candidate political committee) with 10 ILCS (de?ning political party committee). The record shows that the 3 Ward Organization?s D?l form states it is only supporting Joe Berrios. And having taken judicial notice of the 3 1 st Ward Organizations Quarterly reports it becomes even more clear that it was formed to funnel more money into Berrios? campaign. Lastly, via the Second Amended Complaint, Plaintiffs admit it was formed to support Berrios? candidacy for of?ce. Plaintiffs form over function argument is unpersuasive, this Court ?nds no error by the CCBOE and ?nds that the ?ndings are supported by the manifest weight of the evidence. It is clear the CCBOE, and this Court, have jurisdiction over the 3 1 st Ward Organization. B. Writ of Certiorari Review for 18-CH-4717 Upon Review of the entire record, this Court must now determine ?with the de?nite and ?rm conviction that a mistake has been made? regarding Final Order entered on March 2018. Kinsella, 2015 IL App (lst) 132694, 23; 823. Plaintiffs allege ?[u]nder the Board?s reasoning set forth in its Notices of Determination, section 2-5-85(b) prohibits any attorney or law ?rm who practices before Cook County courts or agencies from donating more than $750 to any candidate holding or seeking public of?ce in Cook County.? AComplA 1i 82. These allegations about 2-585(b) were previously addressed in the as~ applied analysis in Section As-Applied Constitutional Challenge. To reiterate, Plaintiffs? allege that ?of?cial action? applies to a broad of a group of attorneys and law ?rms, but this argument is not supported by any part of the Administrative Record. This allegation is also not supported by the as-applied analysis stated above. Plaintiffs? huge leap and incorrect interpretation that ?any attorney or law ?rm that practices before Cook County courts or agencies?. is seeking ?of?cial action? from Cook County, This interpretation and attempt to misconstrue the Record for has been addressed by the Appellate Court in Barrios I, where they clearly de?ne ?of?cial action.? Barrios v. Cook Cry. Bd. of Commr?s, 2018 IL App (lst) 180654, 1] 19. With an election looming, Plaintiffs had the opportunity to comply with the ordinance and the appropriate remedies but chose not to. This number of Plaintiffs? violations only continued to rise as the election progressed, Berrios? questionable chances of winning the election created higher stakes, and the need for more contributions became dire. In total, Plaintiffs violated Page 35 of 41 2-585(b) at least 168 times. Defendant?s Supplemental Response Brief at 6; CCBOE imposes ?nes of $1,000.00 per each violation against Plaintiffs for the 168 total violations of the Ordinance. Id. The total amount of ?nes incurred by Committee to Elect Joseph Berrios Cook County Assessor, the 3lst Ward Democratic Organization, and Joseph Berrios for both cases, 18-CH-4717 and 18-CH-6937, equal $168,000. Plaintiffs assert that ?[g]ood cause exists for issuance of a writ of certiorari because decision to ?ne Plaintiffs is contrary to law and arbitrary. 2ACompl.A. 11 82. The Record does not support this contention. Section 2-602(d) of the Ethics Ordinances imparts the Board with the discretionary power to levy ?nes. It states: The Board may impose a ?ne of up to $1,000.00 per offense on any person, including of?cials or candidates, found by the Board to have knowingly violated any provision of this article other than Section 2-574 or 2-583, to have knowingly furnished false or misleading information to the Board or to have failed to cooperate with an investigation under this article. Ethics Ordinance, Sec. The total ?nes levied against Plaintiffs in both cases before this Court (?4717 and ?6937) are $168,000.00. The Board found that Plaintiffs knowingly engaged in violations of the County?s campaign ?nance rules because Plaintiffs refused to return the contributions at issue within 30 days of having received the Notices of Violation. RB.204, 451. Essentially the Board warned Plaintiffs, by issuing the Notices of Violation, that they were violating the Ordinance, and if they did not fix their behavior, e. g, return the excess contributions, there would be repercussions. A format the CCBOE uses for all its dealings, and one which the Plaintiffs had complied with in the past. RA.82. Plaintiffs claim that because there were ?legitimate disputes? about the enforceability of the ordinance and authority of the Board when the Notices of Violation issued, then there could be no knowing violation. Plaintiffs support for this novel proposition is solely?documents drafted by Plaintiffs? previous counsels. 'See RA.005-11 (08/21/17 Letter from James P. Nally), (the same 08/21/17 Letter from James P. Nally), (Plaintiffs Memorandum in Opposition to Notice of Excess Contributions, dated 01/08/18). Plaintiffs argue that because they had a good faith belief (I) the Illinois State Election Code superseded the Cook County Ethics Ordinance; (2) the Cook County Ethics Ordinance was unconstitutional; and (3) Section 2-585(b) of the Ethics Ordinance did not apply to the contributions at issue, then the ?nes levied against Page 36 of 41 them are arbitrary and excessive. This self-serving argument is entirely unsupported, Plaintiffs fail to cite a single case in support of this irrational proposition. The only arguably precedential document Plaintiffs use is a 2010 Advisory Letter by the Of?ce of the State?s Attorney that answers a questiOn speci?c to the Board of Review. RA.008-011. Defendants are correct that the State?s Attorney letter is outdated and inapplicable to the issues in this case, and point out that Plaintiffs repeatedly complied with the Ethics Ordinance, including refunding excess contributions, before deciding it was not in their best interests to comply. The facts in these cases are not disputed. Plaintiffs admit they were noti?ed by the CCBOE of the violations of the ordinance. That Plaintiffs chose to gamble on litigating whether the Ordinance was valid does not act as a shield in this matter. Moreover, the second set of notices I issued by the CCBOE in March of 2018 were sent to Plaintiffs a full-two weeks after the Circuit Court issued its ruling in Barrios I. Despite Barrios I clearly setting forth the validity of the Ordinance, Plaintiffs still chose not to comply. Until a court order is overturned or rendered obsolete through legislation, it is binding and enforceable. Merely because a party may not agree with any given court order does not mean they get to ignore it, nor are they free from the consequences of failing to follow it. See Cheek v. United States, 498 U.S. 192, 2036 (1991). A party?s View about the validity of a given statute is irrelevant to the issue of willfulness. See Id. Although a party has the right to assume that an ordinance is valid and proceed thereunder, there is no corresponding right to assume an ordinance is invalid and proceed in violation thereof. City of Elgirt v. All Nations Worship Ctr, 369 Ill. App. 3d 664', 669 (2d Dist. 2006). To allow otherwise would make a mockery of the courts. Plaintiffs argument that they did not ?knowingly? violate the ordinance is self-serving and incorrect. Plaintiffs were aware of the interpretation of the ordinance, which, similar to a court order, is binding until overturned. Plaintiffs had complied with the CCBOE method before and avoided fines. RA.82. Plaintiffs were aware of the Circuit Court?s ruling as to the Ordinance, and still chose not to follow. the established interpretation of the Ordinance as to the second set of notices. RB.204. And to this day, after Barrios I was af?rmed by the Appellate Court and appeal was denied by the Illinois Supreme Court, there is no evidence in the Record that Plaintiffs have complied with the Ordinance and returned the funds, even when the donors asked them to. Page 37 of 41 .. An unambiguous term in a statute or ordinance is given its plain and ordinary meaning. Kagart v. Waldheim Cemetery 2016 IL App 131274 *68. The word ?knowingly? does have a plain and ordinary meaning, it means ?awareness or understanding; well?informed, deliberate; conscious.? Id. Citing Black?s Law Dictionary 888 (8th ed. 2004) (cleaned up quotation). Defendants are correct that the ?ne provisions of the ordinance, like the substantive provisions establishing standards of ethical conduct, are presumptively valid. See Express Valet, Inc. v. Chicago, 373 Ill. App. 3d 838, 854 (1St Dist. 2007). Plaintiffs, indisputably, were well informed as to the CCBOE interpretation of the Ordinance, and later were even better informed after Judge Tailor issued his opinion in Berrios I. Plaintiffs sole argument that the ?nes were levied in a punitive, arbitrary, and excessive manner rests on this imagined defense claiming that because Plaintiffs did not agree and sought judicial action, then Plaintiffs are free from consequences ever: though they were wrong. That is not how the judicial system works. Fines are only assessed if a candidate fails to return the excess contributions within 30 days after noti?cation from the CCBOE. Here Plaintiffs refused, and still have not, returned the excess contributions. Importantly, all of Plaintiffs arguments about the inequity of having to compete against a ?self-funding? candidate are unpersuasive for the simple and clear reason Plaintiffs unethical conduct and the ?rst CCBOE notice of violation related to that conduct happened almost two months before the notice of the self-funding competitor issued. Compare RA.001-04, 31 1-313 (?rst series of CCBOE Notices of Excess contribution dated 07/21/17) with RA.130 (Illinois State Board of Elections notice of self-funding dated 09/30/17). And, it should be noted, even though the maximum ?nes were assessed against Plaintiffs, the amount of excess contributions far exceeds the amount of the ?nes. Fiscally, that means it was to Berrios? bene?t to keep the excess contributions and challenge the ?nes. RA.81, 379, RB.203, 450. Berrios made no good faith effort to save the money during the pendency of his various court cases the funds were not put in escrow. Of course, the ultimate good faith effort would have been to return the excess contributions, stop collecting excess contributions, and then wait for Berrios Ito be fully decided with all appeals exhausted. RA.304, 600.? Instead, Berrios spent the funds and still has made no move to repay the excess or, at minimum, put it in escrow until all litigation is over. The ?nes imposed by the CCBOE are a deterrent, and a clearly necessary one at ?7 A method the Record shows other public of?cials adopted. Page 38 of 41 that. The ?nes are neither arbitrary nor capricious, and are supported by the manifest weight of the evidence. As to the ?rst set of ?nes the Board issued the maximum ?ne per penalty contribution), for a total amount of $41,000.00. RA.078-88, 377-84. The amount of the excess contributions themselves totaled $62,250.00.18 RA.081, 379. This means that even if Berrios had paid the ?nes, which again, he did not, he still gets an extra $21,250.00 for his campaign. And it is clear that the Board carefully considered each excess contribution and their decision, given the fact that the Board removed several of the alleged excess ?nes before issuing the ?nal determination. RA.80 n.1, 379 n.2. This shows the Board?s restraint, attention to detail, and caution in their consideration of whether levying ?nes would be appropriate. Given these facts, it is extremely reasonable for the Board to impose the maximum ?ne under the ordinance. And particularly as to the later set of ?nes the Board?s decision is exceedingly clear and well-reasoned. A total ?ne of $127,000.00 was issued. RB.203, 450. But again, the amount of excess contributions, $258,250.00, far exceeded the ?nes themselves. RB.203, 450. This means that even if Berrios had-paid the ?nes, which again, he did not, he would have been up $131,250.00. And again, this is after the Board went through the excess contributions and removed some before issuing their decision. RB.200 11.1, 203 n.2, 447 n.2-3. As the Board stated in its decision, Clearly, the Board?s enforcement efforts with respect to the excessive contributions made in the ?rst quarter of 2017 [Case did not have a deterrent effect upon the Committee or Berrios?s fundraising efforts from ?of?cial action seekers? in the ?nal three quarters of the year. Treating the more recent violations more leniently than the prior violations would send the wrong message 126., that delay and litigation tactics can help County of?cials and candidates for County of?ce avoid their obligations to comply with the Ethics Ordinance, and/or avoid consequences when they ?out those obligations. That would be particularly inappropriate given that the Board waited to enforce these violations until after the Circuit Court soundly rejected Berrios?s constitutional arguments against Section 2-585, such that any legal grounds for continuing to defy the Board?s compliance efforts are tenuous at best. RB.451. ?3 The Court wishes to make clear these amounts only re?ect what is excess over the allowed contributable amount. These ?gures do not re?ect the total amount of contributions. Page 39 of 41 Lastly, Berrios was given an explicit opportunity to articulate any ?mitigating factors,? before the Board. RA.304, 600. But he failed to present any, stating, he ?relied on state campaign ?nance limits in good faith and on the advice of counsel.? RA.304, 600. Plaintiffs also allege that CCBOE ?is targeting certain attorneys and law ?rms for enforcement (those who appear before the Assessor or Board of Review), but not other attorneys who request non-ministerial acts from County of?cials or agencies.? 1[ 137. Once again, the Record does not support Plaintiffs? allegations that CCBOE is targeting a Speci?c type of attorney or law ?rm. A plain reading of the language 2-585(b) and a reading of Berrios I show that the ordinance has simply been enforced by CCBOE against those attorneys and law ?rms that have sought ?of?cial action.? See Berrios v. Cook Cty. Bd. of Commr 2018 IL App (lst) 180654, 1[ 19. Plaintiffs failed to show any ?targeting? that CCBOE did towards a speci?c individual attorney or law ?rm related to their excess contributions. It is clear from the Record and in Berrios I that those seeking ?of?cial action? are required to comply with the clear rule set out in In addition to attorneys and law ?rms seeking ?of?cial action,? Berrios and his various entities, the Committee to Elect Joseph Berrios Cook County Assessor, the 31st Ward Democratic Organization, the Plaintiffs, are also required to comply with Nothing in the Record for shows that the ?nes imposed were excessive or arbitrary for the January 8, 2019 Notices of Determination. C. Writ of Certiorari Review for 18-CH-6937 While the Complaints for both Second Amended Writs of Certiomrz? are nearly identical, this Court notes that Plaintiffs in case sought review of the Notices of Determination from May 2, 2018. Second Amended Complaint for (2ACompl.B.) at 10. These Notices of Determination from May 2, 2018 were still subject to the same 2?585(b) ordinance, and that same ordinance was in place for the violations related to case The Board found that 50 contributions to the Committee to Elect Berrios and 77 contributions to the 31st Ward Organization exceeded the $750 limit in section 2ACompl.B. 11 10. Because Berrios, the Committee to Elect Berrios, and the 3 Ward Organization did not return these contributions within 30 days of having received the notice of the violations, the Board imposed a ?ne of $50,000 jointly upon Plaintiff Berrios and the Committee to Elect Berrios, and a ?ne of $77,000 jointly upon Plaintiff Berrios and the 3 1 st Ward Organization. Id. Page 40 0f 41 Plaintiffs make the same oonstitutiOnal and substantive allegations for why they believe ?3 (E the May 2, 2018 Notices of Determination were ?arbitrary, unconstitutional as-applied and on its face,? and ?not narrowly tailored to prevent quidpro qua corruption.? 2ACornpl.B. 87; 109; 127. Again, this Court notes that there is nothing provided in the Record to Show under a clearly erroneous review standard that that the May 2, 2018 Notices of Determination were excessive or arbitrary. The same analysis of ?nes as discussed in the above section applies. The Board acted reasonably, "its decision is not clearly erroneous, and its decision is supported by the manifest weight of the evidence. IT IS HEREBY ORDERED: Defendants? Motion to Quash Plaintiff?s R23 7(b) request is granted. 19 Plaintiffs 'Petition for Writ of Certiorari is denied. The Board is Af?rmed. This is a ?nal and appealable order. ENTERED: MMW Judge Anna H. Demacopoulos, 2002 .. 19 See Cohn v. Northern Trust Co., 250 Ill. App. 3d 222, 227-28 (15t Dist. 1993). Page 41 of 41