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FIFTH DIVISION
June 30, 2003

JUSTICE QUINN delivered the opinion of the court:

In May 2001, intervenor Amalgamated Transit Union Local 241(Union) filed an unfair labor practice charge against respondentChicago Transit Authority (CTA) with petitioner Illinois LaborRelations Board (ILRB). After the ILRB issued an administrativesubpoena requesting potentially privileged documents relating tothe CTA's collective bargaining strategies, the CTA moved torevoke the subpoena. An administrative law judge (ALJ) with theILRB ruled that the CTA must produce the requested documents andthat an ALJ other than himself would conduct an in camerainspection to determine the extent of the privilege. The CTArefused to comply with the ALJ's ruling and the ILRB filed apetition with the circuit court seeking enforcement of itssubpoena. The circuit court affirmed the ruling of the ALJ. Onappeal, the CTA contends that the trial court, rather than anALJ, must make the determination as to whether the requesteddocuments are privileged. For the reasons set forth below, wereverse the judgment of the trial court.

BACKGROUND

In its charge filed with the ILRB, the Union alleged thatthe CTA had violated various provisions of the Illinois PublicLabor Relations Act (5 ILCS 315/1 et seq. (West 2000)) (LaborRelations Act). The basis of the charge was the CTA's allegedrefusal to sign a collective bargaining agreement that had beennegotiated with the Union. According to the Union, the CTA hadattempted to add new terms and conditions that had either beenrejected during negotiations or never proposed. After conductingan investigation into the Union's charges, the ILRB issued acomplaint for hearing and the case was assigned to an ALJ. TheILRB subsequently issued a subpoena ordering the CTA to producedocuments in existence since January 1, 2001, including "[a]nyand all bargaining notes taken by" various CTA representativesand "[a]ny and all notes or memoranda concerning collectivebargaining with Local 241 for a successor agreement, except thoseprivileged as attorney-client communications or attorney workproduct."

In response to the subpoena, the CTA filed a motion with theILRB to revoke the subpoena, arguing that many of the requestedmaterials related to its bargaining strategies and were thereforeprivileged. In support of this assertion, the CTA relied uponthe supreme court's decision in Illinois Educational LaborRelations Board v. Homer Community Consolidated School DistrictNo. 208, 132 Ill. 2d 29 (1989). The CTA further argued that inaccordance with the Homer decision, only the circuit court waspermitted to determine whether the requested notes containedprivileged materials.

When ruling on the motion to revoke, the ALJ noted thatabsent a respondent's refusal to comply with an order to produce,the Labor Relations Act did not provide a procedure allowing thecircuit court to make rulings with respect to allegedlyprivileged materials. Addressing the concern in Homer that theperson or entity called upon to decide the substantive merits ofa case should not also decide issues relating to the bargainingstrategy privilege, the ALJ ordered the CTA to produce therequested bargaining notes to another ALJ with the ILRB for an incamera inspection to determine the extent of the privilege.

After the CTA refused to comply with the ILRB's order toturn the requested materials over to a different ALJ, the ILRBfiled a petition in the circuit court to enforce itsadministrative subpoena pursuant to section 11(b) of the LaborRelations Act (5 ILCS 315/11(b) (West 2000)). The CTA moved todismiss the ILRB's petition pursuant to 2-615 of the IllinoisCode of Civil Procedure (735 ILCS 5/2-615 (West 2000)) (CivilCode), arguing that the petition was substantially insufficientin law because the circuit court, rather than the ILRB, shouldperform the in camera inspection. The Union, which was allowedto intervene in the action, and the ILRB filed responses to theCTA's motion to dismiss, wherein they argued the Homer case wasinapplicable and that requiring an independent ALJ to conduct thein camera inspection prevented unnecessary delay and wasappropriate under various provisions of the Labor Relations Act.

After hearing argument of counsel, the trial court deniedthe CTA's motion to dismiss and ordered the CTA to comply withthe subpoena by turning over the requested documents to an ALJnot assigned to the case for an in camera inspection to allow theALJ to rule on matters relating to privilege. The trial courtlater stayed enforcement of its order pending this appeal filedby the CTA.ANALYSIS On appeal, the CTA contends that the trial court erred indenying its motion to dismiss the ILRB's petition for enforcementof administrative subpoena. It first argues that because thiscase is controlled by Homer, only the circuit court can reviewthe potentially privileged documents requested by the ILRB. TheCTA further argues that the ALJ's ruling that an ALJ with theILRB other than himself should review the documents in camera andmake a determination as to the extent of privilege amounts toimproper administrative rule making. See Panhandle Eastern PipeLine Co. v. Environmental Protection Agency, 314 Ill. App. 3d296, 303 (2000) ("Administrative agencies are required to applytheir rules as written, without making ad hoc exceptions inadjudications of particular cases").

This case is before us based upon the trial court's rulingon the CTA's motion filed pursuant to section 2-615 of the CivilCode, wherein it was argued that the ILRB's petition forenforcement was substantially insufficient in law. See 735 ILCS5/2-615(b) (West 2000). A motion to dismiss for defects in thepleadings when the complaint is substantially insufficient in lawattacks the legal sufficiency of the complaint and is solelybased on defects appearing on the face of the complaint. Aboufariss v. City of De Kalb, 305 Ill. App. 3d 1054, 1066(1999). Our review of the denial of a section 2-615 motion todismiss is de novo. Stratman v. Brent, 291 Ill. App. 3d 123, 134(1997), citing Kedzie & 103rd Currency Exchange, Inc. v. Hodge,156 Ill. 2d 112, 116 (1993).

This case is before us based upon the circuit court's powersto enforce administrative subpoenas under section 11(b) of theLabor Relations Act, which provides:

"The Board shall have the power to issue subpoenasand administer oaths. If any party wilfully fails orneglects to appear or testify or to produce books,papers and records pursuant to the issuance of asubpoena by the Board, the Board may apply to a courtof competent jurisdiction to request that such party beordered to appear before the Board to testify orproduce the requested evidence." 5 ILCS 5/315/11(b)(West 2000).

A statute should be interpreted and applied based upon thelanguage contained in the statute. See City of East St. Louis v.East St. Louis Financial Advisory Authority, 188 Ill. 2d 474, 480(1999). A statute should not be rewritten by a court to make itconsistent with the court's idea of orderliness and publicpolicy. Lawrence v. Regent Realty Group, Inc., 197 Ill. 2d 1, 11(2001).

In Homer, a school district and an education associationboth filed charges with the Illinois Educational Labor RelationsBoard (IELRB) alleging bad-faith bargaining. After the educationassociation requested documents from the school district relatingto the school district's collective bargaining strategy, theschool district filed a motion with the IELRB to precludediscovery of the information, claiming the evidence wasprivileged. The IELRB denied the motion, issued a subpoena tocompel production of the documents and moved to enforce thesubpoena in the circuit court pursuant to section 15 of theIllinois Educational Labor Relations Act, which provided:

"If any party wilfully fails or neglects to appear ortestify or to produce books, papers and recordspursuant to subpoena issued by the Board, the Boardshall apply to the circuit court for an order to compelthe attendance of the party at the hearing to testifyor produce requested documents." Ill. Rev. Stat. 1985,ch. 48, par. 1715.

The circuit court ordered that the subpoena be enforced andthe school district appealed. The appellate court reversed in asplit decision and the IELRB appealed its ruling. The supremecourt first ruled that the requested documents were subject to aqualified privilege. Homer, 132 Ill. 2d at 42. The supremecourt then went on to decide "which body will perform an incamera examination of the allegedly privileged materials todetermine if in fact the requested materials are privileged." Homer, 132 Ill. 2d at 42. In ruling on this issue, the supremecourt stated:

"We agree with the appellate court that the reasonthe circuit court should perform the in cameraexamination is that the circuit court is in a positionof detachment. While the [IELRB] might decide that thematerials sought to be discovered are privileged andthus inadmissible, it would nevertheless be placed inan awkward position of having seen the materials butyet having to disregard them in adjudicating the unfairlabor practice complaint. Moreover, a party to a labordispute might fear that the [IELRB] would be subtlyinfluenced if the [IELRB] were to view the privilegedmaterials. Allowing the circuit court to examine thematerials relieves the [IELRB] of the burden of havingto disregard privileged materials. The [IELRB] arguesthat a judge is often put in the position of having toconduct an in camera examination of evidence in a casewhich he must ultimately decide. The [IELRB] arguesthat it can perform in the same impartial manner asjudges. The appellate court in this case addressedthis argument, and we adopt the explanation given bythe appellate court as to why, in the circumstances ofthis case, it should be rejected:

'Judges are often placed in situations where they mustbecome privy to information which is prejudicial to aparty but is not subject to consideration in decidingthe merits of a dispute. This creates an awkwardsituation which should be avoided when that canreasonably be done. The situation here would be evenmore difficult for the [IELRB] if it was to becomeprivy to the matters disclosed in the in limine hearingand then decide the merits of the case. We have heldthat information involving the bargaining strategysessions does not become discoverable merely because itis relevant. It must meet the necessity standard. Agreat burden would be placed on the [IELRB] if, afterhearing what happened in the various meetings, it isthen required to make a decision on the merits withoutconsidering matters which do not meet the necessitystandard.

The [IELRB] need not be put into this position andthe party subject to a discovery order need not besubjected to fears that the [IELRB] would besubtly influenced. The circuit court is placed ina rare position of detachment in making thedecision as to the discovery to be required andthe [IELRB] will then be placed in a position ofdetachment in deciding the merits' (160 Ill. App.3d at 741-42.)" Homer, 132 Ill. 2d at 43-44.

The supreme court also rejected the IELRB's argument that itshould rule on the privilege issue because it was vested withparticular knowledge in labor law matters, stating that "thecircuit court has more experience in deciding questions ofevidence, including issues involving privileges." Homer, 132Ill. 2d at 44.

The CTA argues, and we agree, that the Homer case mandatesreversal of the circuit court's order. Initially, becausesection 11 of the Labor Relations Act and section 15 ofEducational Labor Relations Act are so similar, no differentresult should be reached with respect to the entity that shoulddetermine the applicability of the bargaining strategy privilege. The CTA correctly argues that because the ILRB is a small agency,the concerns addressed in Homer that the IELRB could beinfluenced if it were to review the potentially privilegeddocuments are only slightly ameliorated by the circuit court'sorder that an ALJ other than the one presiding over the labordispute should rule on the privilege issues. This isparticularly true given the importance of confidentiality thesupreme court in Homer assigned to collective bargaining strategyand the possibility that an ALJ ruling on matters of privilegemight later be called upon to decide the merits of subsequentclaims involving bad-faith negotiating on the part of the CTA. Furthermore, the Homer case supports the CTA's assertions thatthe circuit court remains uniquely detached from the ILRB andthat judges at the circuit court level possess greater expertisein ruling on matters relating to privilege.

The Union and ILRB argue that the statutory and regulatoryprovisions governing the issuance of subpoenas by the ILRBspecifically contemplate that questions of privilege will beconsidered and decided by the agency. In support of this claim,the Union and ILRB direct this court to section 11 of the LaborRelations Act, which grants the ILRB authority to issue subpoenasand seek judicial enforcement of them and provides that the ILRBand its agents are bound by "the rules of privilege recognized bylaw." 5 ILCS 315/11(a)(West 2000). They also cite section1200.90 of the Illinois Administrative Code, which is applicableto the ILRB and states that "[g]rounds for revocation of asubpoena shall include irrelevance, burdensomeness andprivilege." 80 Ill. Adm. Code