Sigcho-Lopez v. Illinois State Board of Elections

2022 IL 127253IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 127253)
BYRON SIGCHO-LOPEZ, Appellant, v. THE ILLINOIS STATE
BOARD OF ELECTIONS et al., Appellees.
Opinion filed March 24, 2022.
JUSTICE OVERSTREET delivered the judgment of the court, with opinion.
Justices Garman, Michael J. Burke, and Carter concurred in the judgment and
opinion.
Chief Justice Anne M. Burke and Justices Theis and Neville took no part in the
decision.
OPINION
¶1 Byron Sigcho-Lopez, the alderman for Chicago’s 25th Ward, filed a complaint
with the Illinois State Board of Elections (Board), alleging that his predecessor’s
campaign committee, the 25th Ward Regular Democratic Organization
(Committee), unlawfully paid personal legal fees from campaign funds. The Board
dismissed Sigcho-Lopez’s complaint, and Sigcho-Lopez filed for administrative
review in the appellate court. On administrative review, the appellate court affirmed
the Board’s dismissal. 2021 IL App (1st) 200561. This court allowed Sigcho-
Lopez’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Oct. 1, 2020)), and for
reasons other than those set forth by the Board and the appellate court, we affirm
the appellate court’s judgment and the Board’s dismissal.
¶2 BACKGROUND
¶3 On July 20, 2000, the Committee (10 ILCS 5/9-1.9 (West 2000)) filed its
statement of organization as required by section 9-3 of the Election Code (id. § 9-
3) in order to support the candidacy for public office of Sigcho-Lopez’s
predecessor, Daniel Solis. When the Committee registered with the Board, Solis
was listed as its chairman, and Grace Perales was listed as its treasurer.
¶4 In succeeding Solis as alderman of Chicago’s 25th Ward, Sigcho-Lopez was
sworn into that office on May 20, 2019. Solis did not seek reelection to retain his
aldermanic position in 2019 or his Democratic committeeman position in 2020, and
the last time he ran for office was in 2016 when he ran for committeeman. As of
February 19, 2020, at a hearing before the Board, the Committee remained active.
¶5 Beginning in June 2016, while serving as alderman and Democratic
committeeman of Chicago’s 25th Ward, Solis began cooperating with the Federal
Bureau of Investigation (FBI) and the United States Department of Justice (DOJ)
in their investigation of alleged political corruption by Illinois public officials.
Acting at the direction of the FBI and DOJ, he recorded conversations with other
Illinois public officials. The Committee states in its brief that Solis’s assistance
contributed to the indictment of at least one public official and other individuals on
federal corruption charges and that his assistance is ongoing.
¶6 When the FBI requested Solis’s assistance, he retained the law firm of Foley &
Lardner LLP. On May 21, 2019, the Committee paid $220,000 to Foley & Lardner
LLP for legal fees the Committee states were related to Solis’s cooperation with
the FBI. On July 15, 2019, the Committee disclosed “legal fees” as an expenditure
-2-
in its quarterly report filed with the Board (10 ILCS 5/9-10(b) (West 2018)).
¶7 Board Proceedings
¶8 On October 17, 2019, Sigcho-Lopez filed a complaint with the Board alleging
that “[t]he expenditure of May 21, 2019, in the amount of $220,000, to the law firm
of Foley & Lardner LLP for the criminal defense of Daniel Solis against federal
allegations of corruption” violated campaign disclosure and regulation provisions
of the Election Code (id. § 9-8.10(a)(3)). In the complaint, Sigcho-Lopez alleged
that the $220,000 payment by the Committee was “for a personal debt that [was]
neither campaign-related nor for governmental or political purposes directly related
to a candidate’s or public official’s duties and responsibilities.” Sigcho-Lopez
requested the Board to find that, by paying Solis’s personal debt with campaign
funds, the Committee had violated section 9-8.10(a)(3) of the Election Code (id.);
to assess a $220,000 civil penalty against the Committee for the amount paid to
Foley & Lardner LLP; and to levy a $500 fine on each of its officers, Solis and
Perales, for knowingly making an expenditure in violation of section 9-8.10 of the
Election Code (see id. § 9-8.10(b)).
¶9 On January 8, 2020, a closed preliminary hearing was held to determine
whether the complaint had been filed on “justifiable grounds” such that the matter
should proceed to a public hearing. See id. § 9-21. At the closed hearing before the
Board’s hearing officer, Sigcho-Lopez argued that, even if the use of campaign
funds to pay for a politician’s criminal defense constituted an “expenditure” as
defined by section 9-1.5(A)(1) of the Election Code (id. § 9-1.5(A)(1)
(“expenditure” is payment in connection with nomination for election, election, or
retention of any person to or in public office)), it was nonetheless expressly
prohibited as an expenditure for repayment of a personal debt pursuant to section
9-8.10(a)(3) of the Election Code (id. § 9-8.10(a)(3)).
¶ 10 The Committee countered that section 9-8.10(a) of the Election Code does not
specifically prohibit the use of campaign money to pay for legal fees. See id. § 9-
8.10(a). The Committee also contended that Solis’s cooperation with the FBI
rendered the legal fees an appropriate campaign expenditure and not a personal debt
prohibited by section 9-8.10(a)(3) of the Election Code (id. § 9-8.10(a)(3)).
According to the Committee, Solis’s obligation to pay legal fees in relation to his
-3-
cooperation with federal authorities would not have existed irrespective of Solis’s
responsibilities as Chicago alderman and chair of the city council’s zoning
committee, and thus, the legal fees were not personal in nature. The Committee
asserted that the FBI would not have sought Solis’s cooperation if he had not held
the official positions that provided the opportunity to communicate with other
officials in whom they were interested.
¶ 11 The Committee noted that Solis had not been indicted or charged with any crime
but that he was cooperating with the federal government. The Committee contended
that Solis acted as “an officeholder in connection with the performance of
governmental and public service functions” by cooperating and acting on behalf of
the federal government in his official capacity and, thus, the expense for legal fees
was appropriate pursuant to section 9-8.10(c) of the Election Code (id. § 9-8.10(c)).
¶ 12 On January 14, 2020, following the closed hearing, the hearing officer filed his
written report containing suggested findings of fact and recommendations.
Addressing whether the payment for Solis’s legal defense was an expenditure as
defined by section 9-1.5(A)(1) of the Election Code (id. § 9-1.5(A)(1)), the hearing
officer concluded that “money spent on defenses as presented in this case can be an
acceptable use of campaign funds.” The hearing officer further stated that “[m]ore
importantly, since [section 9-8.10(a) of the Election Code] does not contain a
specific prohibition against using campaign funds for legal expenses, *** these
types of expenditures can be made.”
¶ 13 Addressing whether the payment of legal fees was prohibited as a payment for
satisfaction or repayment of a personal debt, the hearing officer found that the word
“debt” in section 9-8.10(a)(3) of the Election Code (id. § 9-8.10(a)(3)) refers only
to a specific type of debt, i.e., debt from personal loans, as identified in the
subsection. Concluding that money spent on a legal defense is separate and different
than debt related to personal loans, the hearing officer recommended that Sigcho-
Lopez’s complaint “be found not to have been filed on justifiable grounds and [that
the] *** complaint be dismissed.” On February 18, 2020, the Board’s general
counsel sent a memorandum to the Board in which he stated that he had reviewed
the hearing officer’s report and concurred with the recommendations contained
therein.
-4-
¶ 14 On February 19, 2020, in the course of the Board’s closed hearing, the
Committee argued that the record revealed only that federal investigators directed
Solis to wear a wire and take certain actions. The Committee asserted that nothing
“is more of a public service function than [when] the FBI asks you to do something
and you do it.”
¶ 15 During the hearing, Board chair Charles W. Scholz asked acting general counsel
Bernadette Matthews to confirm the Board policy on the expenditure of campaign
funds for legal fees. Matthews responded that, although she had not previously dealt
with a formal complaint, the payment of legal fees from campaign funds was
questioned consistently and it was “just generally accepted as something that can
be considered an expenditure.” Matthews stated that two bills were before the
General Assembly prohibiting the payment of legal fees from campaign funds to
defend criminal charges. Board member William M. McGuffage stated that the
expenditure of funds for a criminal defense was not prohibited under the Election
Code because it was connected with Solis’s position as a public official and related
to his future candidacy. McGuffage believed that, although reprehensible, the
payment of legal fees from campaign funds to defend criminal activity was not
prohibited under the current legislation. Board member William R. Haine stated,
“We don’t have any authority to add to what the General Assembly says are the
prohibited uses.” Vice chair Ian Linnabary stated, “I find it absolutely reprehensible
that a candidate can use [his] campaign fund to defer *** weekly expenses in
association with criminal defense.”
¶ 16 The Board nevertheless adopted the recommendation of the general counsel and
hearing officer and found that the complaint was not filed on justifiable grounds.
On March 19, 2020, after ratifying its decision, the Board issued its written final
order adopting the recommendations of its general counsel and the hearing officer
and dismissed Sigcho-Lopez’s complaint.
¶ 17 Appellate Court Proceedings
¶ 18 On March 25, 2020, Sigcho-Lopez filed a petition for administrative review of
the Board’s final order to the appellate court. Id. § 9-22. On April 9, 2021, the
Appellate Court, First District, affirmed the Board’s dismissal on administrative
review. 2021 IL App (1st) 200561. The appellate court addressed, inter alia,
-5-
Sigcho-Lopez’s argument that the Committee’s payment of Solis’s legal fees
constituted a prohibited expenditure under section 9-8.10(a) of the Election Code.
Id. ¶ 16. The appellate court noted that legal fees were not specifically included in
section 9-8.10(a)’s list of 11 categories of expenditures that political committees
were prohibited from paying from campaign funds. Id. The appellate court agreed
with the Committee that the enumeration of exceptions in a statute is considered to
be an exclusion of all other exceptions and, thus, the payment of legal fees by a
political committee was not a per se prohibited expenditure. Id.
¶ 19 The appellate court then addressed whether the Committee’s payment of Solis’s
legal fees was a prohibited expenditure under any of the enumerated categories set
forth in section 9-8.10(a) of the Election Code. Id. ¶ 17. Specifically, the appellate
court addressed the category of expenditures set forth in section 9-8.10(a)(3), noting
that, “[c]onstrued literally, section 9-8.10(a)(3) appears to prohibit the satisfaction
or repayment of all debts of every name and nature except those specifically
exempted.” Id. ¶ 18. Accordingly, the appellate court held that the language of
section 9-8.10(a)(3) of the Election Code does not limit its proscription to the
payment of personal loans, as the hearing officer had found. Id. ¶ 20. The appellate
court noted that the second sentence of subsection (a)(3) of section 9-8.10
specifically prohibits the use of campaign funds to repay “personal loans” and
would be rendered superfluous if the hearing officer’s interpretation that the
prohibition contained in the first sentence of subsection (a)(3) against a political
committee’s expenditure of funds in satisfaction or repayment of “any debts” refers
only to the satisfaction or repayment of personal loans. Id. ¶ 22.
¶ 20 The appellate court further considered section 9-8.10(c) of the Election Code,
which provides that “[n]othing in this Section prohibits the expenditure of funds of
a political committee controlled by an officeholder or by a candidate to defray the
customary and reasonable expenses of an officeholder in connection with the
performance of governmental and public service functions” (10 ILCS 5/9-8.10(c)
(West 2018)). 2021 IL App (1st) 200561, ¶ 21. The appellate court held that
“[g]iving effect to both section 9-8.10(a)(3) and section 9-8.10(c)” leads to the
conclusion that the prohibited “debt” in section 9-8.10(a)(3) refers to debt of a
personal nature that does not defray the customary and reasonable expenses of an
officeholder in connection with the performance of governmental and public
service functions. Id.-6-
¶ 21 To determine if debt is personal, the appellate court adopted the federal
“irrespective test” set forth in the Federal Election Campaign Act (52 U.S.C.
§ 30114(b)(2) (2018) (“a contribution or donation shall be considered to be
converted to personal use if the contribution or amount is used to fulfill any
commitment, obligation, or expense of a person that would exist irrespective of the
candidate’s election campaign or individual’s duties as a holder of [f]ederal
office”)). 2021 IL App (1st) 200561, ¶ 25. The appellate court held that because
“[a]llegations of misconduct in the discharge of an officeholder’s official duties
would not exist independent of the individual’s status as an elected official,” “[t]he
payment of legal fees incurred in defense of such allegations by a political
committee can, therefore, qualify as an expenditure to defray a reasonable expense
of an officeholder in connection with the performance of a governmental function
as permitted pursuant to section 9-8.10(c) of the campaign disclosure statute.” Id.
¶ 27.
¶ 22 Thus, the appellate court concluded that “the dismissal of Sigcho-Lopez’s
complaint and the findings of the hearing officer supporting that dismissal ***
[were] not clearly erroneous, and as a consequence, *** affirm[ed] the Board’s final
order, dismissing Sigcho-Lopez’s complaint.” Id. ¶ 31. On September 29, 2021,
this court allowed Sigcho-Lopez’s petition for leave to appeal. Ill. S. Ct. 315 (eff.
Oct. 1, 2020).
¶ 23 ANALYSIS
¶ 24 “Pursuant to article III, section 5, of the Illinois Constitution of 1970, the Board
has general supervision of Illinois’s election laws.” Cooke v. Illinois State Board of
Elections, 2021 IL 125386, ¶ 48. Any person may file a verified complaint with the
Board alleging a campaign finance violation under the Election Code. 10 ILCS 5/9-
20 (West 2018). Upon receipt of the complaint, the Board must hold a closed
preliminary hearing to determine whether the complaint appears to have been filed
on justifiable grounds, and the Board “shall dismiss the complaint without further
hearing” if it “fails to determine that the complaint has been filed on justifiable
grounds.” Id. § 9-21.
¶ 25 The purpose of a closed preliminary hearing is to elicit evidence on whether the
complaint was filed on justifiable grounds and has some basis in fact and law. 26
-7-
Ill. Adm. Code 125.252 (2018). The complainant bears the burden of introducing
sufficient evidence or information for the Board to conclude that the complaint has
been filed on justifiable grounds. 26 Ill. Adm. Code 125.252(c)(4) (2018). The
justifiable grounds standard focuses on the factual and legal sufficiency of the
complaint, and “[t]he essential inquiry is whether the complaint is factually and
legally justified.” Cook County Republican Party v. Illinois State Board of
Elections, 232 Ill. 2d 231, 245 (2009).
¶ 26 Any party adversely affected by a judgment of the Board may obtain judicial
review directly in the appellate court for the district in which the cause of action
arose, and such judicial review shall be governed by the provisions of the
Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2018)) and its
accompanying rules. 10 ILCS 5/9-22 (West 2018). The determination of whether a
complaint has been filed on justifiable grounds presents a mixed question of fact
and law and is reviewed for clear error. Cook County Republican Party, 232 Ill. 2d
at 245. The Board’s decision will be deemed clearly erroneous where the record
leaves the reviewing court with the definite and firm conviction that the Board
committed a mistake. Cinkus v. Village of Stickney Municipal Officers Electoral
Board, 228 Ill. 2d 200, 211 (2008).
¶ 27 “Although this case is before this court following review in the appellate court,
we are reviewing the Board’s decision and not that of the appellate court.” Cooke,
2021 IL 125386, ¶ 48. Before addressing the Board’s application of the relevant
statutory provisions to the established facts, we must interpret the relevant statutory
provisions. Id. ¶ 51. “When determining how the Election Code should be
construed, we employ the same basic principles of statutory construction applicable
to statutes generally.” Jackson-Hicks v. East St. Louis Board of Election
Commissioners, 2015 IL 118929, ¶ 21. The primary objective of statutory
construction is to ascertain and give effect to the legislature’s intent, and the most
reliable indicator of legislative intent is the language of the statute, given its plain
and ordinary meaning. Maksym v. Board of Election Commissioners, 242 Ill. 2d
303, 318 (2011); County of Du Page v. Illinois Labor Relations Board, 231 Ill. 2d
593, 603-04 (2008). Where the statutory language is clear and unambiguous, we
will enforce it as written and will not read into it exceptions, conditions, or
limitations that the legislature did not express. In re Christopher K., 217 Ill. 2d 348,
364 (2005).
-8-
¶ 28 In construing a statute, a court must not focus exclusively on a single sentence
or phrase but must view the statute as a whole, construing words and phrases in
light of other relevant statutory provisions and not in isolation. Standard Mutual
Insurance Co. v. Lay, 2013 IL 114617, ¶ 26. “Each word, clause[,] and sentence of
a statute must be given a reasonable meaning, if possible, and should not be
rendered superfluous.” Id. In addition to the statutory language, the court may
consider the reason for the law, the problems sought to be remedied, the purposes
to be achieved, and the consequences of construing the statute one way or another.
County of Du Page, 231 Ill. 2d at 604. Also, a court presumes that the legislature
did not intend absurd, inconvenient, or unjust results. Bank of New York Mellon v.
Laskowski, 2018 IL 121995, ¶ 12.
¶ 29 “We *** keep in mind the subject addressed by the statute and the legislature’s
apparent intent in enacting it,” and the legislature’s intent in enacting the campaign
disclosure and regulation provisions of the Election Code is “ ‘to preserve the
integrity of the electoral process by requiring full public disclosure of the sources
and amounts of campaign contributions and expenditures.’ ” Cooke, 2021 IL
125386, ¶ 52 (quoting Sorock v. Illinois State Board of Elections, 2012 IL App (1st)
112740, ¶ 2). Article 9 of the Election Code governs the disclosure and regulation
of campaign contributions and expenditures. 10 ILCS 5/art. 9 (West 2018). Section
9-1.5(A)(1) of the Election Code defines “expenditure” to mean, inter alia:
“(1) a payment, distribution, purchase, loan, advance, deposit, gift of
money, or anything of value, in connection with the nomination for election,
election, or retention of any person to or in public office or in connection with
any question of public policy.” Id. § 9-1.5(A)(1).
¶ 30 Thus, an expenditure, which a Committee pays from campaign funds and
discloses pursuant to the Election Code (id. § 9-10), must be a payment “in
connection with the nomination for election, election, or retention of any person”
(id. § 9-1.5(A)(1)). The Board was therefore tasked with, among other things,
determining whether the Committee’s payment of Solis’s legal fees was in
-9-
connection with his nomination for election, election, or retention to or in public
office. 1
¶ 31 Likewise, section 9-8.10(a) of the Election Code prohibits the use of a political
committee’s funds for personal matters that are neither campaign related nor for
governmental or political purposes related to a candidate’s or public official’s
duties and responsibilities. Id. § 9-8.10(a) (political committee shall not use
campaign funds to repay personal loans, for the satisfaction of any debts or payment
of any expenses relating to a personal residence, for clothing or personal laundry
expenses, for personal travel expenses, for an individual’s tuition, or for payments
to the public official or candidate). In other words, the campaign disclosure and
regulation provisions of the Election Code consistently reveal the legislative intent
to preclude payments from campaign funds for merely personal use. See id.
¶ 32 In the present case, we decline to adopt the Committee’s argument that the
payment of criminal defense fees from campaign funds is in all circumstances
consistent with the Election Code because the General Assembly declined to
specifically designate criminal defense fees as a prohibited expenditure under
section 9-8.10(a) of the Election Code. See id. (specifically prohibiting
expenditures in violation of law, in excess of fair market value of services, for
satisfaction or repayment of debts, for the payment of any expenses relating to a
personal residence, for clothing or personal laundry expenses, for personal travel
expenses, for health club dues, etc.). The Committee asserts that we must apply the
maxim expressio unius est exclusio alterius, which means that “the enumeration of
an exception in a statute is considered to be an exclusion of all other exceptions.”
Schultz v. Performance Lighting, Inc., 2013 IL 115738, ¶ 17. The Committee
contends that Sigcho-Lopez asks this court to read into section 9-8.10(a) a
prohibited category that simply does not exist.
1
The Committee asserts that, by failing to argue it in this court, Sigcho-Lopez has waived the
argument that personal legal fees are not an “expenditure” as defined by the Election Code.
However, the rule of waiver is a limitation on the parties, not on the courts, and a reviewing court
can, in furtherance of its responsibility to provide a just result, override considerations of waiver.
In re Madison H., 215 Ill. 2d 364, 371 (2005). Moreover, we must view the statute as a whole,
construing words and phrases in light of other relevant statutory provisions and not in isolation.
People v. Jackson, 2011 IL 110615, ¶ 12.
- 10 -
¶ 33 However, this court has explained:
“[T]he principle that the expression of one thing in a statute excludes any other
thing is only a rule of statutory construction, not a rule of law. It is merely a
rule that courts use to help them ascertain the intent of the legislature where
such intent is not clear from the statute’s plain language. The maxim is applied
only when it appears to point to the intent of the legislature, not to defeat the
ascertained legislative intent. The rule may be overcome by a strong indication
of legislative intent.” Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141,
153-54 (1997).
¶ 34 In this case, we find that the maxim is overcome by a strong indication of
legislative intent, pursuant to the statute’s plain language, including the remaining
language of section 9-8.10, in particular the language of section 9-8.10(a)(3) in
correlation with section 9-8.10(c). See 10 ILCS 5/9-8.10(a)(3), (c) (West 2018); see
also Lay, 2013 IL 114617, ¶ 26 (in construing a statute, court must view statute as
a whole, construing words and phrases in light of other relevant statutory provisions
and not in isolation). Section 9-8.10(a)(3) prohibits a political committee from
making expenditures “[f]or satisfaction or repayment of any debts other than loans
made to the committee” or on behalf of the committee or “repayment of goods and
services purchased by the committee under a credit agreement.” 10 ILCS 5/9-
8.10(a)(3) (West 2018); Merriam-Webster’s Collegiate Dictionary 320 (11th ed.
2003) (“debt” defined as “something owed”). Section 9-8.10(a)(3) further provides
that “[n]othing in this Section authorizes the use of campaign funds to repay
personal loans.” 10 ILCS 5/9-8.10(a)(3) (West 2018). Moreover, section 9-8.10(c)
of the Election Code provides:
“Nothing in this Section prohibits the expenditure of funds of a political
committee controlled by an officeholder or by a candidate to defray the
customary and reasonable expenses of an officeholder in connection with the
performance of governmental and public service functions.” Id. § 9-8.10(c).
¶ 35 Here, we partially adopt the reasoning of the appellate court and hold that
section 9-8.10(a)(3) (id. § 9-8.10(a)(3)) prohibits an expenditure for satisfaction or
repayment of a personal debt that does not defray the customary and reasonable
expenses of an officeholder in connection with the performance of governmental
and public service functions (id. § 9-8.10(c)). 2021 IL App (1st) 200561, ¶ 21.
- 11 -
Whether legal defense fees amount to a personal debt that does not defray the
customary and reasonable expenses of an officeholder in connection with the
performance of governmental and public service functions must be evaluated on a
case-by-case basis.
¶ 36 In the case sub judice, the parties ostensibly agree that campaign fund payments
expended for personal use are prohibited by the Election Code. Sigcho-Lopez
argues that legal fees expended for the criminal defense of public corruption
charges amount to personal debt prohibited as a campaign fund expenditure, and
the Committee argues that legal fees expended for the criminal defense of public
corruption charges are not personal in nature because the public corruption charges
would not exist irrespective of the public official’s position.
¶ 37 Following the Committee’s proposal to determine if its expenditure amounts to
a prohibited personal debt, the appellate court adopted the federal “irrespective test”
developed by the Federal Election Commission (FEC) for federal candidates and
later codified into federal law. The “irrespective test” was applied in Federal
Election Comm’n v. Craig for U.S. Senate, 816 F.3d 829, 832 (D.C. Cir. 2016),
where the United States Court of Appeals addressed the FEC’s allegations that a
former senator, his campaign committee, and the committee’s treasurer converted
campaign funds to the senator’s personal use in violation of the Federal Election
Campaign Act of 1971 (52 U.S.C. § 30101 et seq. (2006)).
¶ 38 The FEC had concluded that campaign funds disbursed by the senator to his
attorneys to overturn his convictions of disorderly conduct and interference with
privacy were similar to legal expenses associated with a divorce or driving while
under the influence of alcohol, would exist irrespective of the officeholder’s status,
and constituted an impermissible personal use of campaign funds, even though the
underlying proceedings may have impacted the officeholder’s status. Craig, 816
F.3d at 838; see id. at 834 (FEC had determined that legal fees incurred in
connection with Senate Ethics Committee’s inquiry and for public relations fees
incurred in responding to press inquiries were not incurred irrespective of the
senator’s campaign or official duties and were therefore permissible). The federal
court of appeals in Craig agreed, concluding that the legal fees expended to
withdraw the guilty plea would have existed irrespective of the senator’s reelection
campaign or official duties and, thus, the appellants violated 52 U.S.C. § 30114(b)
- 12 -
when they used campaign committee funds to pay for the legal fees incurred in
pursuing withdrawal of the plea. Craig, 816 F.3d at 839.
¶ 39 The “irrespective test” applied in Craig mirrored the language of the federal
statute. See id. (“FEC’s focus on the allegations of the legal proceedings fits well
with the irrespective definition embodied in the statutory language”); 52 U.S.C.
§ 30114(b)(2) (2012) (contributions are converted to personal use if used to fulfill
expense of a person that would exist “irrespective” of the candidate’s election
campaign or individual’s duties as office holder). However, the plain language of
the Illinois statute at issue here does not include “irrespective” language or an
“irrespective test.” Accordingly, although we adopt the appellate court’s plain-
language construction of section 9-8.10(a)(3) and 9-8.10(c) of the Election Code,
we reject the appellate court’s adoption of the federal “irrespective test” as applied
to federal election law. We instead apply the plain language of the relevant
campaign disclosure and regulation provisions of Illinois’s Election Code.
¶ 40 In doing so, we reject the Committee’s argument that legal fees incurred as a
result of public corruption and criminal activity, resulting in conviction even, may
be subsidized by campaign funds because they are not personal debt incurred
irrespective of the officeholder’s position. We cannot ignore that a public official’s
actions that result, for example, in convictions of official misconduct or corruption
are “clearly committed for their own interests.” See Wright v. City of Danville, 174
Ill. 2d 391, 406 (1996) (“[a] conviction for corrupt practices establishes that a public
official exploited his fiduciary position for his personal benefit”). The essence of a
conviction for official misconduct, conflict of interest, or public corruption is that
the public official has attempted “to personally enrich himself or another by an act
exceeding his lawful authority as a public servant.” (Internal quotation marks
omitted.) Id. at 406-07 (although public officials’ employment provided
opportunity for misconduct, “by no stretch of the imagination could their actions
be deemed an extension of their legitimate functions as elected officials”).
¶ 41 Moreover, considering the plain language of the campaign disclosure and
regulation provisions of the Election Code, we also reject the contention that,
because an officeholder could not engage in public corruption absent his position
as officeholder, his personal legal defense fees for proven official misconduct or
public corruption may be subsidized by campaign funds as an expenditure “to
- 13 -
defray the customary and reasonable expenses of an officeholder in connection with
the performance of governmental and public service functions.” 10 ILCS 5/9-
8.10(c) (West 2018); see In re Toney, 2012-1887, p. 3 (La. App. 1 Cir. 5/30/14);
145 So. 3d 1043, 1049-50 (any use by sheriff of campaign funds for the defense of
his criminal indictment following a guilty plea is prohibited under campaign
finance disclosure statute as unrelated to the holding of a public office).
¶ 42 This court has never condoned public corruption. See Peabody v. Sanitary
District of Chicago, 330 Ill. 250, 261 (1928) (statute should be construed broadly
to prohibit corrupt practices by public officers, state or local, holding office by
election or appointment); Cook v. Shipman, 24 Ill. 614, 616 (1860) (“When official
corruption can go unwhipt of justice, and when it may with impunity stalk forth in
open day, with its hideous and monstrous form appearing through its transparent
covering, and when courts shall cease to employ every power that the law has
conferred upon them, to inflict the severest penalties it has denounced against such
crime, then organized society is ready to dissolve, and governments cease to
exist.”).
¶ 43 Accordingly, we find compelling the New Jersey Supreme Court’s response
when faced with a similar issue. In holding that the payment of legal fees from
campaign funds to defend against an indictment alleging official corruption was not
an ordinary and necessary expense of holding public office, the New Jersey
Supreme Court stated the following:
“Despite blaring headlines that announce the most recent prosecution and
conviction of a public official, we have yet to reach the point when it can be
said that defending against a federal or state criminal indictment alleging
corrupt practices is an ‘ordinary’ expense of holding public office. A grand jury
indictment is not a customary, or usual, or normal incident of holding public
office, nor does it occur in the regular course of events. The vast majority of
elected public officials carry out their duties honestly and honorably and will
not, in the course of their long careers, be the target of a criminal prosecution.
We cannot conclude that the Legislature intended that defending against a
federal or state criminal indictment would be an ordinary incident of holding
public office, or that the use of campaign funds to cover such defense costs
would be an ‘expense that reasonably promotes or carries out the
- 14 -
responsibilities of a person holding elective public office,’ N.J.A.C. 19:25-
6.7(a).” (Emphasis in original.) In re Election Law Enforcement Comm’n
Advisory Opinion No. 01-2008, 989 A.2d 1254, 1259-60 (N.J. 2010).
This court agrees. Allowing campaign monies to subsidize public corruption
amounts to an unreasonable interpretation of the Election Code.
¶ 44 On the other hand, we also reject Sigcho-Lopez’s contention that legal fees
incurred to pay for a public official’s criminal defense against investigations or
charges of public corruption amount to a per se prohibited personal debt pursuant
to the plain language and spirit of section 9-8.10(a)(3) of the Election Code (10
ILCS 5/9-8.10(a)(3) (West 2018). We cannot ignore that not all allegations by
political rivals are sound and that baseless allegations are at times asserted against
public officials because of their very capacity as public officials. See Williams v.
Graves County, No. 5:21-CV-21-TBR, 2021 WL 2828517 (W.D. Ky. July 6, 2021)
(plaintiff’s civil Racketeer Influenced and Corrupt Organizations Act (RICO) (18
U.S.C. § 1962 (2018)) allegations were conclusory and unsupported by specific
plausible factual allegations supporting a claim for any of the predicate offenses);
Green v. William, No. 1:17-cv-266-PLR-SKL, 2017 WL 6892910 (E.D. Tenn. Dec.
15, 2017), report and recommendation adopted, No. 1:17-cv-00266, 2018 WL
387630 (E.D. Tenn. Jan. 11, 2018) (complaint’s rambling allegations mentioning,
among other things, extortion and bribery by public officials failed to show
entitlement to relief); Huffmaster v. Foster, 565 F. Supp. 2d 693, 698 (S.D. Miss.
2008) (allegations by politician that other members of his political party committed
acts of mail fraud, wire fraud, and bank fraud were insufficient in that politician’s
complaint did not specifically identify anything any of the defendants was alleged
to have done to support the claims); Hawkins v. Schirack, 659 F. Supp. 1, 3 (N.D.
Ohio 1986) (because routine check would have disclosed no basis in fact for public
official’s suspected involvement in illegal contract allegations but would have
disclosed that the amended complaint was filed for harassment purposes by political
rival, public official was entitled to award of reasonable attorney fees).
¶ 45 In such a case, the payment of legal defense fees from campaign funds may be
appropriately considered as a payment “in connection with the nomination for
election, election, or retention of any person to or in public office” (10 ILCS 5/9-
1.5(A)(1) (West 2018)) and, although personal debt, “the expenditure of funds of a
- 15 -
political committee *** to defray the customary and reasonable expenses of an
officeholder in connection with the performance of governmental and public
service functions” (id. § 9-8.10(c)). Therefore, in limited circumstances, pursuant
to the plain language of the campaign disclosure and regulation provisions of the
Election Code, the Board may appropriately allow the use of campaign funds to
pay for legal expenses in defending such allegations. See Wright, 174 Ill. 2d at 404(holding ordinance invalid to the extent it attempted to indemnify officials
convicted of crimes for their attorney fees and costs incurred in their unsuccessful
criminal defense but making no express determination regarding the authority of
any municipality or home rule unit to indemnify its officers and employees for legal
expenses incurred in a successful defense); see also State v. Ferguson, 709 N.E.2d
887 (Ohio 1998) (although public officeholder may generally not use campaign
funds to pay for legal defense against criminal charges, use of campaign funds to
pay attorney fees incurred in connection with dismissed indictment that failed to
state prosecutable violation was not prohibited attorney fees).
¶ 46 Until the General Assembly amends the statute to, for example, specifically
prohibit payment from campaign funds for legal fees incurred in defense of criminal
allegations against a public official or candidate, the issue requires the Board’s
consideration on a case-by-case basis, applying the plain language of the applicable
statutory provisions. In this case, despite the parties’ arguments regarding legal
defense fees incurred as a result of public corruption allegations, the record here
reveals that Solis had not been indicted on criminal charges but only that he had
worked with federal investigators using his official capacity to expose public
corruption. Considering the evidence before the Board, we find that the Board’s
conclusion—that Solis’s legal fees amounted to a proper expenditure not prohibited
as “satisfaction or repayment” of a personal debt (10 ILCS 5/9-8.10(a)(3) (West
2018)) but incurred “to defray the customary and reasonable expenses of an
officeholder in connection with the performance of governmental and public
service functions” (id. § 9-8.10(c))—was not clearly erroneous. Thus, we affirm the
Board’s decision, finding that the complaint was not factually and legally justified.
- 16 -
¶ 47 CONCLUSION
¶ 48 For the foregoing reasons, we affirm the judgment of the appellate court, and
we affirm the Board’s decision to dismiss Sigcho-Lopez’s complaint.
¶ 49 Appellate court judgment affirmed.
¶ 50 Board decision affirmed.
¶ 51 CHIEF JUSTICE ANNE M. BURKE and JUSTICES THEIS and NEVILLE
took no part in the consideration or decision of this case.
- 17 -