                                                                              FOURTH DIVISION
                                                                              March 31, 2016




2016 IL App (1st) 141109

Nos. 14-1109 and 15-0816, Consolidated

SCOTT MITCHELL,                                 )           Appeal from the
                                                )           Circuit Court of
      Petitioner-Appellant,                     )           Cook County.
                                                )
v.                                              )           No. 96 CR 6771-01
                                                )
THE PEOPLE OF THE STATE OF ILLINOIS,            )           Honorable
                                                )           Matthew E. Coghlan,
      Respondent-Appellee.                      )           Judge Presiding.
______________________________________________________________________________

DARRELL FAIR,                                   )           Appeal from the
                                                )           Circuit Court of
      Petitioner-Appellant,                     )           Cook County.
                                                )
v.                                              )           No. 98 CR 25742
                                                )
THE PEOPLE OF THE STATE OF ILLINOIS,            )           Honorable
                                                )           Maura Slattery-Boyle,
      Respondent-Appellee.                      )           Judge Presiding.
______________________________________________________________________________


       JUSTICE HOWSE delivered the judgment of the court, with opinion.
       Justices Ellis and Cobbs concurred in the judgment and opinion.

                                             OPINION

¶1     Under the Illinois Torture Inquiry and Relief Commission Act (Torture Act) (775 ILCS

40/1 et seq. (West 2012)), the Illinois legislature created the Illinois Torture Inquiry and Relief

Commission (TIRC) "[t]o conduct inquiries into claims of torture with priority to be given to

those cases in which the convicted person is currently incarcerated solely for the crime to which
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he or she claims torture by Jon Burge or officers under his command, or both." 775 ILCS 40/35

(West 2012). The Torture Act defines a "claim of torture" as: "a claim on behalf of a living

person convicted of a felony in Illinois asserting that he was tortured into confessing to the crime

for which the person was convicted and the tortured confession was used to obtain the conviction

and for which there is some credible evidence related to allegations of torture committed by

Commander Jon Burge or any officer under the supervision of Jon Burge." 775 ILCS 40/5(1)

(West 2012).

¶2     Petitioners in this case allege they were tortured by individuals who previously served

under the supervision of Jon Burge. Jon Burge was first suspended from the Chicago police

department (CPD) in 1991 and was subsequently fired from the CPD in 1993. The acts of torture

alleged in the cases now before us occurred after Jon Burge had been fired by the CPD. The

TIRC found each of petitioners' claims had merit and referred the claims to the circuit court of

Cook County, where each claim was assigned to a different judge. Soon thereafter, the State

filed motions to dismiss in each case arguing that the TIRC did not have jurisdiction to review

the claims filed by petitioners because those claims arose out of alleged torture committed after

Jon Burge had been fired and was no longer employed by the CPD. The circuit court granted the

motions to dismiss. For the reasons that follow, we reverse the judgments of the trial court and

remand the cases for further proceedings.

¶3                                    BACKGROUND

¶4     This consolidated appeal involves appeals from separate orders entered by the circuit

court of Cook County dismissing petitioners Darrell Fair's and Scott Mitchell's claims of torture

that were filed with the TIRC pursuant to the Torture Act. 775 ILCS 40/1 et seq. (West 2012).

¶5     In the first case, Fair, who was a student at Roosevelt University at the time of his arrest,


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was convicted of first degree murder and sentenced to a 50-year penitentiary sentence following

a 2003 jury trial for the murder of Chris Stubblefield. Fair's conviction and sentence were

upheld on direct appeal, and the trial court's summary dismissal of Fair's postconviction petition

was affirmed on appeal as well. Fair sought a writ of habeas corpus in federal court, which was

denied by the United States District Court for the Northern District of Illinois. In his claim of

torture, Fair alleged that after his arrest in 1998, he was taken into police custody and after 30

hours of interrogation and torture committed by detectives Przepiora, Porter and McDermott, he

gave a confession to the State's Attorney. The record reflects that McDermott was a Chicago

police officer who was supervised by Jon Burge for a number of years, and he testified in federal

court against Jon Burge under a grant of immunity.

¶6     In the second case, Mitchell alleged police officers took him into custody for questioning

to investigate his alleged involvement in a homicide committed during the course of an armed

robbery. After 33 hours of interrogation and torture committed by Chicago police officers

Joseph Danzi, Glen Turner and others who previously worked under the supervision of Jon

Burge, he made a confession to the police officers. Mitchell was convicted of first degree

murder and attempted first degree murder after he entered into a negotiated plea of guilty in

exchange for consecutive sentences of 30 and 15 years imprisonment for the murder of Michael

Mickey and wounding of Marvin Harris. Following the denial of Mitchell's motion to withdraw

his guilty plea, this court reversed that ruling and remanded the matter for compliance with

Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). On remand, Mitchell withdrew his

motion to withdraw his guilty plea. Mitchell later filed a postconviction petition that the trial

court summarily dismissed, and that ruling was affirmed on appeal.

¶7     Separate from the ongoing proceedings in each of the cases, the TIRC had been


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reviewing both cases with respect to petitioners' claims of torture. On May 20, 2013, the TIRC

issued a "Case Disposition" pursuant to section 45 of the Torture Act (775 ILCS 40/45 (West

2012)), finding there was sufficient and credible evidence to warrant judicial review of Fair's

claim of torture and directing the circuit court to consider Fair's claim of a forced confession

while being held in police custody. The circuit court made a similar finding of merit in

Mitchell's case on July 23, 2015 and, accordingly, directed the circuit court to consider Mitchell's

claim of a forced confession while being held in police custody.

¶8     The chief judge of the circuit court of Cook County assigned petitioners' claims to two

different circuit court judges. Shortly thereafter, the State filed motions to dismiss in both cases

pursuant to section 2-615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615

(West 2012)), asserting that petitioners' claims and the TIRC's "Case Dispositions" failed to state

a valid cause of action under the Torture Act because neither case involved any allegations or

evidence that Jon Burge or any officers under his command or supervision tortured petitioners.

In both cases, the alleged torture occurred years after Jon Burge was first suspended from the

CPD in 1991 and then fired in 1993.

¶9     Fair and Mitchell responded to the State's motions to dismiss by arguing that their cases

fell within the scope of those claims that were reviewable under the Torture Act because the

detectives who conducted their interrogations and engaged in torture had previously served under

the command of Jon Burge. Petitioners also argued that the State's motions to dismiss were

improper because the State failed to follow the governing administrative review procedures when

challenging the TIRC's final findings and, in doing so, forfeited its right to challenge those

findings.

¶ 10   With respect to Fair's case, the circuit court granted the motion to dismiss on December


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23, 2013 after the judge made an oral finding that the Torture Act was not meant to apply to

alleged torture by an officer many years after Jon Burge had been fired.

¶ 11    With respect to Mitchell's case, the circuit court granted the motion to dismiss on

February 11, 2015. In the court's written order, the court found that, under the plain language of

the Torture Act, the TIRC exceeded its statutory authority by investigating and filing a "Case

Disposition" with respect to Mitchell's claim when Jon Burge no longer worked for the CPD

when Mitchell's allegations of torture had occurred. Therefore, it found the TIRC's decision was

void.

¶ 12    Fair was granted leave to file a late notice of appeal with respect to the circuit court's

grant of the State's motion to dismiss, and Mitchell timely filed a notice of appeal with respect to

the circuit court's grant of the State's motion to dismiss. The cases were consolidated on appeal.

For the reasons that follow, we reverse the circuit court's orders granting the State's motions to

dismiss and remand each matter to the circuit court for further proceedings consistent with this

opinion.

¶ 13                                    ANALYSIS

¶ 14    In each case now before this court, petitioners seek reversal of the circuit court's grant of

the State's motions to dismiss. We review the circuit court's order granting a section 2-615

motion to dismiss de novo. Phoenix Insurance Co. v. Rosen, 242 Ill. 2d 48, 54 (2011).

¶ 15    In this appeal, petitioners argue that the trial court lacked jurisdiction to enter orders

granting the State's motions to dismiss because any challenge to the TIRC's findings needed to be

filed within 35 days pursuant to the Administrative Review Law, and that never happened here.

Petitioners also argue that the trial court erred when it dismissed their cases because their cases

fell within the scope of those cases that could be reviewed by the TIRC pursuant to the clear and


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unambiguous language of the Torture Act. Finally, petitioners argue that even if the language of

the Torture Act is found to be ambiguous, evidence beyond the language of the Torture Act

demonstrates that it intended to encompass cases like theirs where torture occurred at the hands

of officers previously under Jon Burge's command as those that could be reviewed by the TIRC.

¶ 16   The State also argues that the language of the Torture Act is clear and unambiguous, but

argues that the language provides that only those cases of torture that occurred at the hands of

Jon Burge or officers under Jon Burge's command at the time the torture occurred can be

reviewed by the TIRC. The State argues that this interpretation necessarily excludes any claims

of torture occurring after Jon Burge was terminated, which would include petitioners' claims.

¶ 17                          Circuit Court's Jurisdiction

¶ 18   First we address petitioners' argument that the circuit court did not have jurisdiction to

hear the State's motions to dismiss and enter orders granting the motions to dismiss. Petitioners

argue that because no petition for administrative review was filed as provided for in the Torture

Act, the court did not have jurisdiction to hear the motions to dismiss filed by the State. Section

55(a) of the Torture Act states: "Unless otherwise authorized by this Act, the decisions of the

Commission are final and are subject to review as final decisions under the provisions of the

Administrative Review Law, and shall only be overturned if the court finds that they are against

the manifest weight of the evidence." 775 ILCS 40/55(a) (West 2012). "The Administrative

Review Law provides that parties to a proceeding before an administrative review agency shall

be barred from obtaining judicial review of an agency's administrative decision unless review is

sought within the time and manner set forth in the statute." Nudell v. Forest Preserve District of

Cook County, 207 Ill. 2d 409, 413-14 (2003); 735 ILCS 5/3-102 (West 2012) ("Unless review is

sought of an administrative decision within the time and in the manner herein provided, the


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parties to the proceeding before the administrative agency shall be barred from obtaining judicial

review of such administrative decision."). "Every action to review a final administrative decision

shall be commenced by the filing of a complaint and the issuance of summons within 35 days

from the date that a copy of the decision sought to be reviewed was served upon the party

affected by the decision ***." 735 ILCS 5/3-103 (West 2012). Petitioners argue that because

the findings of the TIRC were never challenged within 35 days of issuing the TIRC's decision,

which was mailed to the State's Attorney, after 35 days the circuit court no longer had

jurisdiction to make rulings challenging the findings made by the TIRC or entertain the motions

to dismiss filed by the State. We disagree.

¶ 19   An administrative agency is different from a court because an agency only has the

authorization given to it by the legislature through the statutes. Alvarado v. Industrial Comm'n,

216 Ill. 2d 547, 553 (2005); Business & Professional People for the Public Interest v. Illinois

Commerce Comm'n, 136 Ill. 2d 192, 243 (1989). Consequently, to the extent an agency acts

outside its statutory authority, it acts without jurisdiction. Business & Professional People for

the Public Interest, 136 Ill. 2d at 243. A decision by an agency which lacks the statutory power

to enter the decision is treated the same as a decision by an agency which lacks personal or

subject matter jurisdiction—the decisions are void. Id. at 243-44. Because such actions are

“void,” they may be attacked at any time, in any court, either directly or collaterally. Id.; Genius

v. County of Cook, 2011 IL 110239, ¶ 25. Accordingly, because the State's motions to dismiss

argued that the TIRC acted outside of its inherent authority when it reviewed petitioners' claims,

we find that the circuit court had jurisdiction to address those arguments. See People ex rel.

Madigan v. Burge, 2014 IL 115635, ¶ 21; see also Newkirk v. Bigard, 109 Ill. 2d 28, 36 (1985).

¶ 20                          Language of the Torture Act


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¶ 21   Having found that the circuit court had jurisdiction to address the State's argument that

the TIRC acted outside of its inherent power when it reviewed petitioners' claims, we must now

determine whether the circuit court was correct in finding that the TIRC acted outside of those

inherent powers when it reviewed petitioners' claims and subsequently found they had sufficient

merit. Of relevance to this appeal, the stated purpose of the Torture Act is "to investigate and

determine factual claims of torture related to allegations of torture that shall require an individual

to voluntarily waive rights and privileges as described in this Act." 775 ILCS 40/10 (West

2012). The Torture Act defines "claims of torture" as:

               "a claim on behalf of a living person convicted of a felony in

               Illinois asserting that he was tortured into confessing to the crime

               for which the person was convicted and the tortured confession

               was used to obtain the conviction and for which there is some

               credible evidence related to allegations of torture committed by

               Commander Jon Burge or any officer under the supervision of Jon

               Burge." 775 ILCS 40/5 (West 2012).

The Torture Act further states that the TIRC shall have the following power and duty: "To

conduct inquiries into claims of torture with priority to be given to those cases in which the

convicted person is currently incarcerated solely for the crime to which he or she claims torture

by Jon Burge or officers under his command, or both." 775 ILCS 40/35 (West 2012).

¶ 22   Petitioners argue that the plain language of the Torture Act's definition of a "claim of

torture" grants the TIRC with the power to review their cases, i.e., claims of torture at the hands

of officers formerly under Jon Burge's command, because the Torture Act provides for relief in

any case where there is some evidence "related to" allegations of torture committed by Jon Burge


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or any officer under the supervision of Jon Burge, and the Torture Act does not give a definition

for "related to." Petitioners further argue that the State's assertion that the TIRC's jurisdiction

does not extend to claims arising after Jon Burge was fired is without merit because there is no

temporal limitation in the Torture Act's definition of "related to claims of torture" that would

limit the TIRC's review to only those claims of torture that occurred while Jon Burge was still

employed by the CPD. In the absence of any temporal limiting language, the State's

interpretation of the Torture Act would necessarily involve adding the words "while under the

supervision of Jon Burge" to the end of the definition of "claims of torture," which is something

the court cannot do. Poullette v. Silverstein, 328 Ill. App. 3d 791, 794 (2002) ("The court must

not construe a statute to add exceptions or limitations or change the law set forth in the statute so

as to depart from the statute's plain meaning."). Petitioners argue that nowhere in the language

of the Torture Act does it state that Jon Burge must "directly" be involved in the alleged torture,

as suggested by the State; instead, petitioners note that the State's interpretation of the Torture

Act would lead to absurd results because it would allow review of claims of torture at the hands

of an officer under Jon Burge's command one day before Jon Burge was fired, but would not

allow review of a claim of torture by the same officer who had been under the command of Jon

Burge occurring one day after Jon Burge was fired. Last, Mitchell argues that the circuit court's

construction of the Torture Act and the definition of "claims of torture" violate the rule of lenity.

¶ 23   The State argues that the plain language of the Torture Act's definition of "claims of

torture" grants the TIRC with the power to review only "claims of torture" where the alleged

torture was committed by Jon Burge or an officer under the command of Jon Burge at the time of

the alleged torture. As such, the State argues that because the officers who allegedly tortured

petitioners were not under the command of Jon Burge at the time of the alleged torture—the


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alleged torture occurred several years after Jon Burge left the CPD—the TIRC did not have

jurisdiction to review those claims. The State argues that petitioners' interpretation of the

Torture Act would impermissibly require rewriting the Torture Act's definition of "claims of

torture" to state "allegations of torture committed by Commander Jon Burge or any officer who

was ever under the supervision of Jon Burge[]," which the court cannot do. Poullette, 328 Ill.

App. 3d at 794 ("The court must not construe a statute to add exceptions or limitations or change

the law set forth in the statute so as to depart from the statute's plain meaning."). Last, the State

argues that because there is a sunset provision in the Torture Act requiring all claims be brought

before the TIRC no later than August 10, 2014 (775 ILCS 40/70 (West 2012)), this shows that

the legislature could not have intended the Torture Act to encompass claims of torture by any

officer who was ever supervised by Jon Burge even if the torture allegedly occurred many years

after Jon Burge had left the CPD because it would render the sunset provision meaningless.

¶ 24    Based on identical language in the Torture Act, the State and petitioners argue two

different interpretations of the definition of "claims of torture" in support of their arguments on

appeal. The construction of statutes presents a question of law which we review de novo. Acme

Markets, Inc. v. Callanan, 236 Ill. 2d 29, 35 (2009). In construing a statute, “ ‘[o]ur primary

objective is to ascertain and give effect to legislative intent.’ ” Blum v. Koster, 235 Ill. 2d 21, 29

(2009) (quoting People v. Perry, 224 Ill. 2d 312, 323 (2007)). “ ‘[T]he surest and most reliable

indicator of [legislative intent] is the statutory language itself, given its plain and ordinary

meaning.’ ” Id. (quoting Perry, 224 Ill. 2d at 323). “In determining the plain meaning of

statutory terms, we consider the statute in its entirety, the subject it addresses, and the apparent

intent of the legislature in enacting it.” Id. “When the statutory language is clear and

unambiguous, we must apply it as written, without resort to extrinsic aids of statutory


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construction.” Id. “We do not depart from the plain language of the statute by reading into it

exceptions, limitations, or conditions that conflict with the expressed intent.” Id. A court

should not construe a statute in a manner that would lead to consequences that are absurd,

inconvenient, or unjust. Paciga v. Property Tax Appeal Board, 322 Ill. App. 3d 157, 161 (2001).

Further, a court should avoid an interpretation of a statute that would render any portion of it

meaningless or void. Id. However, when statutory language is ambiguous and susceptible to

more than one interpretation, both of which are reasonable, it is appropriate to resort to other aids

of construction to determine legislative intent. People ex rel. Madigan v. Illinois Commerce

Comm'n, 2015 IL App (1st) 140275, ¶ 27; Tri-State Coach Lines, Inc. v. Metropolitan Pier &

Exposition Authority, 315 Ill. App. 3d 179, 190 (2000) (a statute is ambiguous if it is capable of

two reasonable and conflicting interpretations).

¶ 25     Here, we find the language of the Torture Act, specifically the definition of "claims of

torture," is ambiguous because it is susceptible to two reasonable interpretations. On the one

hand, we find that by using the words "related to" in the definition of "claims of torture" (see 775

ILCS 40/5 (West 2012) ("a claim *** for which there is some credible evidence related to

allegations of torture committed by Commander Jon Burge or any officer under the supervision

of Jon Burge" (emphasis added))), it is reasonable to interpret that language as including those

claims of torture committed by officers formerly under Jon Burge's command because such

claims could conceivably be "related to" "allegations of torture committed by Commander Jon

Burge or any officer under the supervision of Jon Burge."

¶ 26   On the other hand, however, without any temporal language indicating when the officer

accused of torture had to be under Jon Burge's command—at the time of the torture or at any

time—and given that the definition is written in the present tense, it is also reasonable to


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interpret the statute's language as only encompassing "claims of torture" committed by Jon Burge

or an officer presently under his command. Given that the State and petitioners offer two

reasonable interpretations of the Torture Act, we find that the Torture Act's definition of "claims

of torture" is ambiguous. See Tri-State Coach Lines, Inc., 315 Ill. App. 3d at 190 (a statute is

ambiguous if it is capable of two reasonable and conflicting interpretations).

¶ 27   Where a statute's language is ambiguous, we may look to other sources to ascertain the

legislature's intent. Krohe v. City of Bloomington, 204 Ill. 2d 392, 395 (2003). It is generally

recognized that courts will give substantial weight and deference to an interpretation of an

ambiguous statute by the agency charged with the administration and enforcement of the statute.

Illinois Consolidated Telephone Co. v. Illinois Commerce Comm'n, 95 Ill. 2d 142, 152-53

(1983); Illinois Bell Telephone Co. v. Illinois Commerce Comm'n, 362 Ill. App. 3d 652, 656

(2005) ("[I]f the legislature has charged an agency with administering and enforcing a statute, we

will give substantial weight and deference to the agency's resolution of any ambiguities in that

statute—even if the ambiguity concerns the extent of the agency's jurisdiction under that statute."

(Internal quotation marks omitted.)). A significant reason for this deference is that courts

appreciate that agencies can make informed judgments upon the issues, based upon their

experience and expertise. Illinois Consolidated Telephone Co., 95 Ill. 2d at 153; Adams v. Jewel

Cos., Inc., 63 Ill. 2d 336, 344-45 (1976) (“interpretations by administrative agencies express an

informed source for ascertaining the legislative intent”). Therefore, while an agency's

interpretation of a statute is not binding on this court (Boylan v. Matejka, 331 Ill. App. 3d 96, 98

(2002)), we “must give substantial weight and deference to statutory interpretations made by an

administrative agency charged with administration of a particular statute.” Oregon Community

Unit School District No. 220 v. Property Tax Appeal Board, 285 Ill. App. 3d 170, 175 (1996).


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¶ 28   Here, prior to this consolidated appeal, the TIRC was presented with the same question

we are asked to decide today, and in an "Order Concerning its Jurisdiction" and in proposed

regulations, the TIRC clearly expressed its opinion that "claims of torture" includes those like

Fair's and Mitchell's claims, where the alleged torture occurred at the hands of officers

previously under the supervision of Jon Burge and, therefore, such claims fell within the TIRC's

jurisdiction and were reviewable by the TIRC. In In re Claim of Jaime Hand, TIRC Claim No.

2011-025-H (June 18, 2014), the TIRC issued an "Order Concerning its Jurisdiction" that states:

               "the Commission believes that the plain language of the Act is not

               limited to claims of torture that were committed under the direct

               supervision of Jon Burge, but extends to claims that are 'related to

               allegations of torture committed by Commander Jon Burge or any

               other officer under the supervision of Jon Burge.' The

               Commission believes that the use of the phrase 'related to' includes

               claims against officers formerly supervised by Burge who

               allegedly continued to commit the same types of acts, and that

               including those claims is consistent with the statutory purpose, the

               plain language, and the uncertainty in the legislature history." In

               re Claim of Jaime Hand, TIRC Claim No. 2011-025-H (June 18,

               2014).

Later, in an effort to adopt this interpretation, the TIRC engaged in formal notice-and-comment

rulemaking proceedings and enacted regulations in the Administrative Code clarifying the extent

of its jurisdiction when reviewing "claims of torture." That regulation begins by restating the

Torture Act's language that "claims of torture" is defined as "a claim on behalf of a living person


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convicted of a felony in Illinois asserting that the person was tortured into confessing to the

crime for which the person was convicted, the tortured confession was used to obtain the

conviction, and for which there is some credible evidence related to allegations of torture

committed by Commander Jon Burge or any officer under the supervision of Jon Burge"

(emphasis in original) (20 Ill. Adm. Code 2000.10 (2014)). The rule goes on to explain that:

                       " 'Related to allegations of torture committed by

               Commander Jon Burge or any officer under the supervision of Jon

               Burge' means that the claim or allegations involved are similar to

               allegations of torture discussed in:

                                the November 2, 1990 Office of Professional

               Standards report on allegations against Burge;

                       the July 19, 2006 Cook County Special Prosecutor's

               Report; and/or

                       testimony in the 2010 federal criminal trial of Jon Burge;

               and

                                       that the allegations involve:

                                       Commander Burge himself;

                                one or more officers who were, at the time of the

               interrogation (or other incident) in question, under the supervision

               of Burge; and/or

                       one or more officers who had previously been under the

               supervision of Burge." (Emphasis added.) Id.




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Based on the above, we find it clear that the TIRC interprets the definition of "claims of torture"

to include those claims of torture committed by officers previously under Jon Burge's command.

¶ 29   On appeal, the State does not argue that the TIRC's interpretation of the Torture Act was

unreasonable—in fact, the State did not offer any arguments on appeal to address what its

position would be in the event we found the language of the Torture Act ambiguous. See

Michael v. Pella Products, Inc., 2014 IL App (1st) 132695, ¶ 22 (An agency's regulation is given

the force and effect of law and presumed valid and may not be invalidated unless the regulation

is clearly arbitrary, unreasonable or capricious.). Given the TIRC's clear interpretation of the

Torture Act, that "claims of torture" include those claims of torture committed by an officer

"who had previously been under the supervision of Burge" (20 Ill. Adm. Code 2000.10 (2014)),

and in light of the fact that we "must give substantial weight and deference to statutory

interpretations made by an administrative agency charged with administration of a particular

statute” (Oregon Community Unit School District No. 220, 285 Ill. App. 3d at 175), we defer to

the TIRC's interpretation and reverse the circuit's finding that petitioners' claims fell outside of

the TIRC's jurisdiction. Accordingly, we reverse the trial court's rulings granting both motions

to dismiss and remand for further proceedings in accordance with the provisions of the Torture

Act.

¶ 30                                   CONCLUSION

¶ 31   For the reasons above, the circuit court's orders granting the State's motions to dismiss are

reversed. The circuit court is directed to review petitioners' claims pursuant to the Torture Act

and in accordance with this opinion.

¶ 32   Reversed and remanded with instructions.




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