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August 7, 2022

Statutory Construction – 101 – What lawyers taught us

By Kirk Allen & John Kraft

On May 31, 2021

Illinois  (ECWd) –

We continue to monitor the Shelby County farm ground lease issue and comments being made during the county board meetings.  Comments from the State’s Attorney deserves to be put in full context to how our laws are to be applied, commonly called statutory construction.

The State’s Attorney, in response to a statement from a member of the public about the statute in question vs. comments from legislators in Springfield when the bill was being adopted, made some very interesting comments, both about the land in question and how she was trained to read law.  A video of the public comment portion of the meeting is found below.

  • “I’m saying the property we own pursuant to the statute I cited at the last meeting is not useful to us unless we are leasing it”

Why is the State’s Attorney saying the property is not useful to “us” unless they are leasing it?  Her role is not to make such a determination.  This points to advocating for an outcome rather than applying the law in our opinion.

As of this publication, there has been no determination by the county board that the farm ground in question is not useful to the county unless they lease it.  Any claim to the contrary is inconsistent with the public record.  More concerning on this point is the fact that just a few months ago it was considered useful and they were going to license the management of the farm to a local bank, without bidding, however, that fell through because they did not have the necessary budget to go that direction.  How did this land go from being useful to not useful in such a short time frame?

This statement related to why she is relying on the answer to a single question during the Senate debate on the law.

  • “that’s what you’re trained to do in law school when the plain reading of the statute is not clear.”

Statutory ConstructionThe process of determining what a particular statute means so that a court may apply it accurately

“Any question of statutory interpretation begins with looking at the plain language of the statute to discover its original intent. To discover a statute’s original intent, courts first look to the words of the statute and apply their usual and ordinary meanings.”

Every lawyer we have talked to agrees with the definition from Cornell Law on statutory construction.

The plain reading of the law in question is not ambiguous at all in our opinion and that of several other lawyers we have spoken with. Why this law is not clear to the State’s Attorney is confusing, unless of course, the goal is to advocate for a certain outcome desired by a select group of board members.

Please don’t take our word that this law is clear.  Read the statute yourself at this link. When you do, apply the plain language of the statute, as that is the original intent, not what one person said in response to a question, which never found its way into the law, which I mention for a reason.

If you think the law is not plain, follow the next guidelines outlined for Statutory Construction

“If after looking at the language of the statute the meaning of the statute remains unclear, courts attempt to ascertain the intent of the legislature by looking at the legislative history and other related sources. Courts generally steer clear of any interpretation that would create an absurd result which the Legislature did not intend.

Most would agree, interpreting a law that points to using public property for a private purpose being legal is an interpretation that creates an absurd result, especially since our state constitution outlines public property shall only be used for a public purpose.

Still not convinced?

“Because legislators may intend different things when they vote for a bill, statutory construction is often fairly difficult. Statutes are sometimes ambiguous enough to support more than one interpretation. In these cases, courts are free to interpret statutes themselves. Once a court interprets the statute, other courts usually will not go through the exercise again, but rather will enforce the statute as interpreted by the other court, similar to stare decisis.”

So who do they point to as the one to interpret the intent of the legislators?  The court.  A simple filing for a declaratory action can be done and the courts could make a ruling, however, doing so would stop the process of getting an opinion from the Attorney General.

While the State’s Attorney took issue with the actual lease in Kankakee County since it was not presented when the bill passed, she ignores the fact it was the result of the law, a lease that outlined a public purpose by the very people who sought the new section in the county code.  In this case, it’s OK for her to apply the legislative debate to support her position but not OK for a member of the public to see how the very law was applied by the very entity who sought its passage.  We believe the reason for such posturing is because the actual lease provided a public purpose as required under the State Constitution and that hurts her argument.

Back to Statutory Construction

“A particular section of the statute should not be inconsistent with the rest of the statute.” (Cornell Law School)

The statute, in this case, is the Counties Code and the section is the law in the Counties Code she claims gives them certain powers.  We disagree the law is to be applied as she claims because she is reading it in isolation of the rest of the statute and applying her opinion from floor debate comments that never found their way into the law. Understand that we are not saying we are right or she is wrong.  We are saying we disagree and explaining why in as much detail as possible.

What other sections of the counties code pertain to leasing and what establishes the consistent position on a matter? Taking one section in a direction completely inconsistent with all the other sections is not a proper application of statutory constructions.  The entire counties code must be read to identify consistencies.

What is consistent within the Counties Code as it relates to contracts and leases of county property? While there are a few more examples, they all have the same consistent language.

  • 55 ILCS 5/5-1089 – “or may enter into contractual agreements with established youth service bureaus, public or private, serving the general area of the county.”
  • 55 ILCS 5/5-1090- “Runaway or homeless youths. A county board may annually appropriate funds to private nonprofit organizations for the purpose of providing services to runaway or homeless youths and their families.”
  • (55 ILCS 5/5-21005)- “..Such farms or acreage may be rented or leased to either public or private entities at such time or times and on such terms and conditions, including crop-sharing arrangements, as the Board deems best for the interest of the county.”
  • 55 ILCS 5/5-23004- “If the tuberculosis sanitarium facilities are leased to a public or private agency other than the county, or are sold, then such leasing or sale must be for a consideration at least equal to the fair market value or fair rental value.”
  • 55 ILCS 5/5-25013 – “Enter into contracts with municipal health departments, county health departments, other boards of health, private or public hospitals, and not for profit entities to provide public health services outside of a board of health’s own jurisdiction in order to protect the public health in an effective manner.”
  • 55 ILCS 5/5-26003 – “If any county shall own and possess any real estate suitable for a site for a memorial building, it shall be lawful for the county board or board of county commissioners, as the case may be, by two-thirds vote, to enter into a lease for a period not exceeding ninety-nine years, by which said real estate may be leased to the organization or individuals contemplating the erection of a memorial building through private donations or contributions: Provided, the amount contributed or donated by public subscriptions for such purpose shall be equal to at least double the value of such real estate: Provided, further, that said lease shall provide that said building shall, when erected, be used exclusively for public or civic purposes, and that upon the expiration of said lease, or the violation of any of its terms or conditions, the improvements thereon shall revert to and become the property of said county.”
  • 55 ILCS 5/5-1005 – “To lease space on a telecommunications tower to a public or private entity.”

Had the legislature intended county property no longer useful to the county to be leased to a “private” entity they would have used the word private in that section of the law, just as they have consistently in so many other sections. The silence of such permission is known as a prohibition, especially when there are so many other sections of the law that speak to leases with private entities.  To insert the word private or imply there is a public purpose in leasing to a private person just because you make money from it ignores the consistent language in the actual counties code as a whole.  Reading a section of the law in isolation and then inserting keywords not found in the section of the law to make an argument is in contradiction to the basic application of statutory construction according to all our research and input from numerous attorneys.  Regardless, any lease must have a proper public purpose.

  • “it does not reference for private or public use. That is why I ordered the transcripts, to see what was discussed at the time the bill was debated and passed”

The plain reading of the law is to be applied according to every court case we have read that speaks to statutory construction.  The State’s Attorney admits, the section in question does not reference for private or public use”. The only reason to seek out a transcript is to put words or meanings into the law that are unwritten.  That points to a doubt as to what the law really means.

According to Dillon’s Rule, when there is doubt it goes against the government.

If it makes no mention of private or public purpose, there is no need to order transcripts because there is no confusion.  Had the legislature intended such a lease to be to a private entity or interest they would have included such language as they have in so many others.  Such an analysis is found throughout numerous court cases in Illinois and other states.

We agree this matter has never been adjudicated in the courts, and if or when it does, we believe it should find its way to the Supreme Court unless the legislature takes steps to further clarify.

The only argument to support a public purpose for the current leasing attempts is making money from the lease.  If the government making money is considered a public purpose as the State’s Attorney is claiming, then every single prior Attorney General Opinion has to be wrong because in every one of those farm lease opinions the counties would have all made money, which was not identified as a public purpose by numerous Attorney Generals.

 

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1 Comment
  • Publius
    Posted at 17:17h, 31 May

    “The only argument to support a public purpose for the current leasing attempts is making money from the lease.” that is exactly right if take it the next level as making money is for public use which unfortunately the supreme court sanctioned it in Kelo v. New London

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