October 25, 2002

 

VIA FEDERAL EXPRESS

 

 

 

Presiding Justice Scotland and Associate Justices

California Court of Appeal, Third Appellate District

900 N Street, Room 400Sacramento, CA  95814-4869

RE:            Supplemental Letter Brief

Fair Political Practices Commission v. Californians Against Corruption et al (C038246)

 

Dear Presiding Justice Scotland and Associate Justices:

 

Pursuant to this court’s order, Appellants Californians Against Corruption, Carl Russell Howard and Stephen Cicero submit this letter brief discussing the application of the de facto officer doctrine to this case.

 

In short, the de facto officer doctrine prevents a party from collaterally attacking the validity of an order on the ground that there was a technical defect in the appointment of the officer who issued the order.  As the California Supreme Court has explained:

 

“‘Persons claiming to be public officers while in possession of an office, ostensibly exercising their functions lawfully and with the acquiescence of the public, are de facto officers. * * * The lawful acts of an officer de facto, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of office, as valid and binding as if he were the officer legally elected and qualified for the office and in full possession of it.’ [Citations.]”  (In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21, 42.)

 

In this letter brief, Howard and Cicero demonstrate that the de facto officer doctrine does not apply in this particular case as a matter of law, and even if it did apply, Ahuja and Tribe were not in fact de facto officers.

 

I. THE DE FACTO OFFICER DOCTRINE DOES NOT APPLY TO THIS CASE.

 

The de facto officer doctrine does not apply in this case — and thus does not provide a ground to affirm the judgment in the FPPC’s favor — for four independent reasons.   First, since one element of the FPPC’s cause of action is “[t]hat the monetary penalties, fees, or civil penalties were imposed following the procedures set forth in this title and implementing regulations” (Gov. Code, § 91013.5, subd. (a)), Howard and Cicero are not collaterally attacking the underlying order, but instead are directly demonstrating that one necessary element of the FPPC’s claim cannot be met.  Second, as numerous cases and commentators have recognized, the doctrine simply does not apply to cases like this one where the appointment requirements are imposed specifically to protect parties subject to the officer’s authority.  Third, the FPPC is barred from relitigating this issue under collateral estoppel.  And fourth, the de facto officer doctrine is simply unsound law and should not be followed.  Each argument will be discussed in turn.

 

A. Since Ahuja and Tribe Were Improperly Delegated The Authority to Act As The Executive Director, The FPPC Cannot Show That the Fine Here Was Imposed Following The Necessary Procedures.  Accordingly, Howard And Cicero Are Making A Direct Attack, Not A Collateral Attack.

 

The de facto officer doctrine applies to precludes a party from collaterally attacking a judgment or order by attacking the validity of the officer’s appointment.  “[T]he right of a de facto officer to an office cannot be collaterally attacked.”  (In re Redevelopment Plan for Bunker Hill, supra, 61 Cal.2d 21, 42.)  A direct attack is one where the officer’s qualifications are directly at issue in the case; a collateral attack is one where the officer’s qualifications are not directly at issue but a party is attempting to invalidate a judgment or order by claiming that the officer issuing the order had not properly been appointed.

 

For example, in People v. Bowen (1991) 231 Cal.App.3d 783, a convicted defendant challenged his conviction on the ground that his trial judge did not live in the same county as he sat, thereby violating Government Code, section 69502.  On appeal, this court ruled that the de facto officer doctrine applied and precluded the appellant from collaterally attacking the judgment on this basis.  (Id. at pp. 789-791.)  In doing so, this court rejected the appellant’s claim that this was a direct attack:

 

“Defendant urges the issue is not collateral ‘but was a direct challenge to the proceedings prior to the entry of judgment.’  It is true his attack was not undertaken following a final judgment and is not ‘collateral’ in that sense, but it is nonetheless an issue wholly removed from the question of his guilt or innocence or the fairness of the trial.  Under the ‘de facto’ officer doctrine the attack on the judge’s qualifications is deemed collateral and must be raised separately. [Citation] ” (Id. at p. 789-790.)

 

A similar situation was present in Ensher, Alexander & Barsoom v. Ensher (1965) 238 Cal.App.2d 250 (Ensher), where a party attacked the judgment on the ground that the trial judge had just accepted the position of Administrator of the California Health and Welfare Agency.  The appellant noted that a provision of the California Constitution provided that a judge’s acceptance of any other position constituted a resignation of his judicial office.  The appellant challenged the underlying order on this basis, but the trial court and Court of Appeal held that the de facto officer doctrine applied.

 

            In contrast, suppose that the Ensher judge’s monthly pension was based on the time he served as judge, and he and his pension fund disagreed on when he actually retired from the bench.  In hypothetical litigation between the judge and the pension fund, the pension fund could properly claim that the judge had in fact retired by accepting another position.  This would be a direct attack, not a collateral attack, since when the judge retired would be directly at issue in that case.

 

Here, the propriety of the Ahuja and Tribe’s appointments is directly at issue, and so Howard and Cicero are directly, not collaterally, attacking the order.  One required element of the FPPC’s enforcement cause of action is “[t]hat the monetary penalties, fees, or civil penalties were imposed following the procedures set forth in this title and implementing regulations.” (Gov. Code, § 91013.5, subd. (a), emphasis added.)  One of the procedures set forth in that title and its regulations is that the FPPC acting as a body — not its chairman acting unilaterally — must appoint the Executive Director and other employees, and only the Executive Director or the FPPC itself may conduct probable cause hearings.  (Gov Code, §§ 83107, 83116; Cal.Code Regs., tit. 2, § 18361, subd. (d)(4).)  Thus, since Ahuja and Tribe lacked the authority to conduct probable cause hearings, the FPPC cannot prove that the fine here was imposed following the procedures set forth in the Political Reform Act and its implementing regulations.  In short, the FPPC cannot prove a necessary element of its case.  Accordingly, in this action, Howard and Cicero’s claim is a direct attack on whether the proper procedures were followed, not a collateral attack on the underlying order.

 

B. The De Facto Officer Doctrine Does Not Apply At All To This Case Because The Appointment Requirements Here — Unlike The Appointment Requirements in Most Cases — Were Enacted To Protect People Subject To The FPPC’s Authority.

 

In general, there are two interests that are implicated by the de facto officer doctrine: the public’s interest in the stability and finality of government decisions, and an individual’s personal interest in procedural due process, fairness, and impartiality.  Most appointment requirements are not imposed to protect the person subject to the officer’s authority.  Accordingly, only one interest — the public’s interest in finality and stability — is implicated in such cases, and the de facto officer doctrine applies and prevents a person from challenging the judgment or order on the ground that the officer who imposed it was improperly appointed.  As the Ensher court explained, “[t]he reason for the doctrine is that it is necessary to the supremacy and execution of the laws and that private challenge of the authority of officers in fact would produce inconsistency, confusion and insecurity of rights and of titles to property.”  (238 Cal.App.2d at p. 255.)

 

However, if a government officer’s appointment requirements were imposed to protect the person subject to the officer’s authority, the doctrine does not apply and a person subject to a judgment or order may challenge it on the basis of the improper appointment.  As the Illinois Supreme Court has recognized earlier this year in a closely analogous case (discussed in detail below), the appointment requirements here falls in the latter category and the de facto officer doctrine simply does not apply.

 

In most cases, appointment requirements are not imposed to protected individuals subject to the officer’s jurisdiction.  For example, the constitutional provision at issue in Ensher — the requirement that judges not hold other offices — is part of the separation of powers and prevents one person from exercising both judicial and executive (or judicial and legislative) powers.  “‘“The courts have long recognized that [the] primary purpose [of the separation‑of‑powers doctrine] is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government.”’[Citation]” (Carmel Valley Fire Protection Dist. v. State (2001) 25 Cal.4th 287, 297.)  This requirement was not imposed to protect litigants, and thus the de facto officer doctrine applies.  (See also Elliott v. Van Delinder (1926) 77 Cal.App. 716, 719 [justice of the peace allegedly holding executive office].)

 

Similarly, most residency requirements are not enacted to protect litigants.  Thus, the doctrine applied in People v. Bowen, supra, 231 Cal.App.3d 783, as well as the cases it cited.  (See id. at p. 790, citing In re Development for Bunker Hill (1964) 61 Cal.2d 21 [member of Community Redevelopment Agency of the City of Los Angeles not a resident of the City of Los Angeles];  Matter of Danford (1910) 157 Cal. 425, 431 [judge alleged to be an alien]; People v. Mellon (1871) 40 Cal. 648, 655-656 [judge from different county tries part of case];)

 

In contrast, where an appointment requirement is provided for the protection of a party, the de facto officer doctrine does not apply and an aggrieved party may challenge the judgment or order on the ground that the appointment was improper.  The clearest example is the prohibition of peremptory juror challenges based on race.  A convicted defendant may challenge his conviction on the ground that the prosecutor improperly excused jurors on account of their race. (See generally People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69].)  However, if a jury is formed after a prosecutor improperly exercised peremptory challenges, the jurors nonetheless are de facto judicial officers; they are “in possession of an office” and “ostensibly exercising their functions lawfully and with the acquiescence of the public.”  If the de facto officer doctrine applied in all cases, it would apply here.  However, no one suggests that the de facto officer doctrine would apply in such a situation.  And the reason that this doctrine would not apply that the specific purpose for the ban on racially motivate peremptory challenges is to ensure that the defendant receives a fair trial by a representative jury.

 

Similarly, Howard and Cicero cited four cases in their opening brief where an order rendered by a hearing officer who did not have the proper authority to conduct the hearing was declared void. (See AOB 43, citing Langan v. City of El Monte (2000) 79 Cal.App.4th 608 [city improperly delegated authority to conduct hearing to a hearing officer in disability retirement benefits appeal hearing]; Usher v. County of Monterey (1998) 65 Cal.App.4th 210, [same], Moyer v. State Board of Equalization (1956) 140 Cal.App.2d 651 [city improperly delegated authority to conduct hearing on motion to reconsider suspension of liquor license], and National Automobile & Casualty Ins. Co. v. Downey (1950) 98 Cal.App.2d 586 [insurance commission improperly delegated authority to conduct hearing to deputy insurance commissioner].)  None of these cases discussed the de facto officer doctrine, but if the doctrine applied in all cases, it would apply to these cases as well. But the doctrine does not apply in all cases.  Since the purpose of the limitation on who may conduct an administrative hearing is to provide a parties with an impartial, neutral, and competent hearing officer, a party aggrieved by a violation of these appointment requirements should be allowed to set aside the improperly rendered order, regardless of whether the hearing officer was acting as a de facto officer at the time.

 

Several federal cases have refused to apply the de facto officer doctrine in similar contexts.  For example, in United States v. Beltran (N.D.Cal.1969) 306 F.Supp. 385, a draftee who failed to report for induction into the armed services was criminally charged.  He moved for an acquittal, arguing that the draft board members resided outside of their jurisdiction in violation of a federal statute and regulation that required that the draft board to be composed of members of the area over which the board has jurisdiction.  The district court granted the motion.  The court first reviewed the history of this requirement, noting that its purpose was to promote impartiality and justice:

 

“‘The members of the local boards thus assume a great and important responsibility which they carry out under the continuous observation of all other members of the local community.  This in itself is the best assurance both of efficiency and impartiality and justice. . . . ’”  (Id. at p. 387, quoting 86 Cong.Rec. 11678 (1940) [Statement of Representative Mott].)

 

The requirement also promoted better decision-making in controversial cases:

 

“Still more important is the fact that local citizens possess greater in-depth knowledge of social and economic conditions in their respective communities than employees of Area Offices could be expected to have.  Also, being more accessible than Area Offices, Local Boards are more likely, in controversial cases, to have direct contact with the registrant, who has the right of a personal appearance before his Board, as well as with the registrant's family and employer.  Local Boards with this better local knowledge and closer contacts are far better able to render reasonable decisions than Area Offices.”  (Id. at p. 388, quoting Task Force on the Structure of the Selective Service System, X-2 (1967)).

 

Because these requirements were not just formalities, but were specifically designed to protect potential draftees from poor decisions, the District Court ruled that the de facto officer doctrine did not apply and the defendant could defend against criminal charges by arguing that the draft board was improperly constituted.  (Id. at pp. 388-390.)  Other courts have reached the same decision on the same grounds (see U.S. v. Cabbage (6th Cir. 1970) 430 F.2d 1037, 1041-1042; U.S. v. Williams (E.D. Penn. 1970) 317 F.Supp. 1363; U.S. v. Machado (N.D.Cal.1969) 306 F.Supp. 995, 999-1002), although some courts have disagreed and held that this defense would not be permitted (see, e.g., Czepil v. Hershey (7th Cir. 1970) 425 F.2d 251.)  The point for these purposes is not whether this defense applies in draft cases; it is simply to note that some federal courts have recognized that the de facto officer doctrine did not apply where the appointment requirements were designed to protect the interests of people subject to the officer’s jurisdiction.

 

A Columbia Law Review note reviewed the history and case law of the de facto officer doctrine, and summarized this limited exception as follows:

 

“Although the de facto officer doctrine generally denies individuals an interest in enforcing title requirements, the doctrine should not apply when a qualification for a specific office aims to protect the individuals subject to that official’s authority.  A breach of these statutes gives individuals a sufficiently personalized injury to challenge official action on the ground of defective title.”  (Kathryn A. Clokey, Note, The De Facto Officer Doctrine:  The Case for Continued Application (1985) 85 Colum. L. Rev. 1121, 1135.)

 

The  appointment requirements at issue in this case were imposed to protect a person subject to the FPPC’s jurisdiction.  As noted in the opening brief (see AOB 4), the Political Reform Act imposes deliberate limitations on the FPPC because the FPPC regulates political speech and political activities.  The Political Reform Act limits the political makeup of the FPPC Commissioners: no more than three of the five members of the FPPC may be from the same political party (Gov. Code, § 83100), and its members are appointed by four different elected state officials (Gov. Code, §§ 83101, 83102).  This carefully selected set of FPPC commissioners — acting as a body — must then appoint the FPPC’s Executive Director, officers, directors, and employees.  (Gov. Code, § 83107.)  Only the FPPC itself or its Executive Director may make a finding of probable cause and hold a hearing. (Gov. Code, § 83116; Cal.Code Regs., tit. 2, § 18361, subd. (d)(4).)  It is these careful restrictions that protect the public from politically motivated decisions and even the appearance of politically motivated decisions.

 

In Daniels v. Industrial Commission (2002) 201 Ill.2d 160 [775 N.E.2d 936], the Illinois Supreme Court, reviewing the actions of an improperly appointed board refused to apply the de facto officer doctrine.  There, an injured worker obtained worker’s compensation benefits, but a three-member panel of the Industrial Commission (the Illinois agency that reviews worker’s compensation awards) reduced this award.  On appeal, the injured worker argued that the three-member panel was improperly appointed.  Illinois law requires that the governor appoint Industrial Commission commissioners and carefully restricts who may be appointed (in much the same way as California law restricts membership of the FPPC):

 

“The law is carefully designed to insure that the Industrial Commission represents a balance of interests.  Under the law the Governor is required to make his appointments to the Commission in such a way that two members represent employers, two represent employees, and three are representative of citizens ‘not identified with either the employing or employee classes.’ [Citation.]  In addition, not more than four of the members may be of the same political party.”  (Id. at p. — [775 N.E.2d at p. 939], emphasis added.)[1]

 

However, the governor did not appoint two of the three commissioners that reduced the appellant’s award.  Instead, the chairman of the Industrial Commission appointed a series of arbitrators as “acting commissioners.”  (Id. at p. — [775 N.E.2d at pp. 938-939].)  The Illinois Supreme Court held that because the commissioners were improperly appointed, the commission’s order was void.  (Id. at p. — [775 N.E.2d at pp. 939-940].)  The Illinois Supreme Court then rejected the commission’s argument that the de facto officer doctrine applies and saves the commission’s order:

 

“The doctrine recognizing de facto public officers prevents third parties or members of the public from raising collateral challenges to a public officer’s qualifications to hold office if considerations of public policy require the officer's acts to be considered valid. [Citation.]  No considerations of public policy militate in favor of preventing workers’ compensation claimants from challenging the legal status of the commissioners who passed on their claims where, as here, the challenge is raised on direct review of the workers' compensation award and the commissioners were appointed in a manner that threatens the Act's basic objectives.  (Id. at p. — [775 N.E.2d at p. 940].)[2]

 

Here, the Political Reform Act carefully limits the political makeup of the FPPC for the same reason that the Illinois statute limited the makeup of the Industrial Commission.   In both cases, the appointment requirements ensure that the board is composed of a careful political balance between different interests.  And in both cases, a violation of these appointment requirements carries the risk of politically motivated decisions, or at least the appearance of politically motivated decisions and the concomitant loss of confidence in the impartiality and nonpartisanship of the agency’s decisions.  Because these protections are provided for the benefit of the parties that are subject to FPPC orders, the de facto officer doctrine simply does not apply here, just as it did not apply in Daniels.

 

C. Even If the De Facto Officer Doctrine Applies, Collateral Estoppel Bars the FPPC from Asserting This Claim.

 

Collateral estoppel precludes the FPPC from arguing that its order may be saved by the de facto officer doctrine.  In both the opening brief (see AOB 44-46) and the reply brief (see ARB 22-24), Howard and Cicero explained that the validity of these appointments have already been litigated and resolved against the FPPC in Horcher v. FPPC.  The FPPC never responded to this argument in its respondent’s brief.

 

Collateral estoppel generally bars a party from litigating a defense that could have been raised in an earlier action.  Thus, in Warga v. Cooper (1996) 44 Cal.App.4th 371, a husband and wife entered into a stipulated judgment regarding the amount of back child support the husband owed the wife.  Later, the husband moved to reduce this amount because during part of this time, the wife had concealed the child’s whereabouts from the husband.  The trial court agreed, but on appeal, this court reversed, noting that collateral estoppel barred the husband from presenting this defense since the defense could have been presented in the underlying action.

 

“‘If the matter was within the scope of the [prior] action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. . . . . In Price v. Sixth District, 201 Cal. 502, 511, this court said: “[] This principle also operates to demand of a defendant that all of its defenses to the cause of action urged by the plaintiff be asserted under the penalty of forever losing the right to thereafter so urge them.”’” (Id. at pp. 377-378, quoting Sutphin v. Speik (1940) 15 Cal.2d 195, 202, italics added by Warga court.)

 

Here, the FPPC could have asserted in the Horcher case that the de facto officer doctrine applied to Chairman Mehta’s unilateral delegations of authority and precluding a fined party from challenging the fine on this basis.  However, the FPPC failed to assert this argument in that litigation, and it is now bound by the result.  It cannot avoid collateral estoppel by asserting this defense now.

 

D. The De Facto Officer Doctrine Is Simply Bad Law And Should Not Be Applied.

 

In the previous three sections, Howard and Cicero explained ways in which the doctrine is limited or inapplicable here that is consistent with existing case law.  Nonetheless, Howard and Cicero further assert — as the Ninth Circuit has held — that the de facto officer doctrine is simply bad law and should not be followed.  Howard and Cicero recognize that the California Supreme Court in In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21 (among other cases) has held that California courts will follow the de facto officer doctrine, and that decision in binding on this court.  Nonetheless, to preserve this issue, Howard and Cicero now explain that the doctrine should simply be abandoned.

 

In two cases, the Ninth Circuit has refused to apply the de facto officer doctrine.  In Silver v. United States Postal Service (9th Cir.1991) 951 F.2d 1033, the Ninth Circuit noted that only two federal circuits had adopted the doctrine, one circuit had limited the doctrine, and the United State Supreme Court in two cases — Freytag v. Commissioner (1991) 501 U.S. 868 [111 S.Ct. 2631, 115 L.Ed.2d 764] and Morrison v. Olson (1988) 487 U.S. 654 [108 S.Ct. 2597, 101 L.Ed.2d 569] — had entertained challenges based on the Appointments Clause without considering the de facto officer doctrine.  (Id. at p. 1036 fn. 2.)  The court refused to apply the doctrine and simply reached the merits of whether the officer had been properly appointed.  Similarly, in U.S. v. Gantt (9th Cir. 1999) 194 F.3d 987, the Ninth Circuit stated, “[f]ollowing the modern trend we choose not to ratify the actions of an improperly appointed officer of the United States under the ancient ‘de facto officer’ doctrine.”  (Id. at p. 998.)  The court refused to apply the doctrine and reached the merits of whether the officer had been properly appointed.

 

There are two fundamental problems with the de facto officer doctrine.  First, it gives no weight to the party’s and the public’s interest in seeing that appointment requirements are met.  Second, the suggested method of removing improperly appointed officers — a quo warranto action — is simply too inefficient and does not provide anyone with an incentive to pursue such an action.  Howard and Cicero recognize that not applying the doctrine could allow for some government orders to be invalidated.  But in numerous areas of the law — for example, the exclusionary rule, broad protection of free speech, and qui tam lawsuits — we tolerate other social costs to protect an important right.[3]  Here, we should tolerate the costs of an occasionally invalided order to protect society’s right to see that its government officers are properly appointed.

 

II. AHUJA AND TRIBE WERE NOT DE FACTO OFFICERS SINCE THEY WERE OPERATING OUTSIDE THE SCOPE OF THEIR APPARENT AUTHORITY.

 

Even if the de facto officer doctrine did apply to this case, the FPPC could not enforce its order because Ahuja and Tribe were not in fact de facto officers.

 

A de facto officer must be operating within the scope and apparent authority of his position: “‘Persons claiming to be public officers while in possession of an office, ostensibly exercising their functions lawfully and with the acquiescence of the public, are de facto officers. . . .’ [Citations] * * * The lawful acts of an officer de facto, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of office, as valid and binding as if he were the officer legally elected and qualified for the office and in full possession of it.’ [Citations.]”  (In re Redevelopment Plan for Bunker Hill, supra, 61 Cal.2d at p. 42, emphasis added; see also Ensher, at p. 255 [same definition, citing Bunker Hill].) 

 

Here, Ravi Mehta, the Chairman of the FPPC, acting alone and in excess of his statutory authority purported to delegate to Ahuja and Tribe them the authority to do acts — including conduct probable cause hearings — that are reserved by statute to the FPPC itself or the Executive Director.  (AA 400.)  Mehta’s purported delegation of authority did not purported to appoint Ahuja and Tribe to this position; instead, it confirmed that they were Senior Commission Counsel and Chief Deputy Director, respectively, but purported to delegate to them the authority of the Executive Director.  (AA 400.)[4]   Thus, this is not a case about a defective appointment; it is a case about a defective delegation of authority.[5]

 

Ahuja and Tribe — serving as Senior Commission Counsel and Chief Deputy Director, respectively — did not have the authority to conduct probable cause hearings.  Accordingly, they were not acting within the scope and apparent authority of their position, and thus they were not de facto officers.

 

By analogy, suppose that Ensher and Bowen did not involve judges who might have been disqualified from office, but instead involved the governor issuing a purported delegation of authority to the court clerk to conduct trials and enter judgment.  This purported delegation would not merely be invalid, but it could not be rescued by the de facto officer doctrine.  Since the court clerk did not have the apparent authority to conduct trials, the court clerk would not be deemed a de facto officer for these purposes, and any purported judgments he entered would be void.  The same is true with respect to Ahuja and Tribe’s actions outside the scope of their apparent authority.

 

 

 

 

Respectfully submitted,

 

 

Bruce Adelstein

Attorney for Defendants and Appellants

CALIFORNIANS AGAINST CORRUPTION, CARL RUSSELL HOWARD, treasurer, and STEPHEN J. CICERO, treasurer

 

 

 

cc:       Carl Russell Howard

Stephen Cicero

(See proof of service for service copies)


[1]/         Illinois law allowed for the appointment of arbitrators under limited circumstances, and these arbitrators were not considered to represent either employers or employees.  The court noted that allowing such appointments in this situation could allow the governor to pack the commission with commissioners who represented either employers or employees, thereby upsetting the careful balance of interests imposed by the act:

 

“Accordingly, if arbitrators could be designated as acting commissioners even after the commissioners whose workload they were handling left office, there would be no mechanism to insure that the balance of interests contemplated by the Act would be preserved.  Through contrived designations and inaction by the Governor, the departure from office of sitting commissioners could be exploited to pack the Commission with members of the Governor's political party or representatives of whatever economic class the Governor favored.  Such a result would be directly contrary to the Act's objectives.”  (Id. at p. — [775 N.E.2d at p. 939].)

[2]/         One justice specially concurred.  She concluded that the improperly appointed commissioners were de facto officers, but that allowing a challenge in this case (but no others) served the public interest by revealing improperly appointed commissioners.  (Daniels v. Industrial Commission, supra, 201 Ill.2d at pp. — - — [775 N.E.2d at pp. 940-947] (McMorrow, J., specially concurring).)  The New Jersey Supreme Court had followed this approach in In re Fichner (1996) 144 N.J. 459 [677 A.2d 201].

[3]/            Professor Ronald Dworkin has argued there are often costs to enforcing rights, but if we take these rights seriously, we accept the costs nonetheless.  (See, e.g., Dworkin, Taking Rights Seriously (1977) p. 200.)

[4]/         It is not clear why Ahuja and Tribe started calling themselves “Acting Executive Directors.”  Nothing in the record suggests that anyone appointed, or purported to appoint, them to this position.

[5]/         This purported delegation was void. “Administrative action that is not authorized by, or is inconsistent with, acts of the Legislature is void.”  (Association for Retarded Citizens v. Department of Developmental Services (1985) 38 Cal.3d 384, 391 [finding certain spending directives to be unauthorized and thus void].)  “If a state agency was created by statute, the agency's authority is circumscribed by the relevant legislation. [Citation.] ‘“[T]he powers of public [agencies] are derived from the statutes which create them and define their functions. [Citation.]”’ [Citation.] ‘[A]dministrative regulations may not exceed the scope of authority conferred by the Legislature.’ [Citation.]” (Kaiser Foundation Health Plan, Inc. v. Zingale (2002) 99 Cal.App.4th 1018, 1023-1024.)