THE CHICAGO BAR ASSOCIATION et al., Appellees, v. ILLINOIS STATE BOARD OF ELECTIONS et al., Appellants.
No. 77405.- (No. 77566.-
Supreme Court of Illinois
Announced August 10, 1994.—Opinion filed September 7, 1994.
Rehearing denied September 12, 1994.
161 Ill. 2d 502
For all of these reasons, I respectfully dissent.
JUSTICE FREEMAN joins in this dissent.
THE CHICAGO BAR ASSOCIATION et al., Appellees, v. ILLINOIS STATE BOARD OF ELECTIONS et al., Appellants.
Announced August 10, 1994.—Opinion filed September 7, 1994.—Rehearing denied September 12, 1994.
Gordon B. Nash, Jr., and Ina L. Turner, of Gardner, Carton & Douglas, and Rene A. Torrado, Jr., Janet M. Hedrick and Paula K. Bebensee, of Vedder, Price, Kaufman & Kammholz, all of Chicago, for petitioners-appellees.
Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, of Chicago, of counsel), for respondents-appellants State Board of Elections et al.
Thomas E. Johnson and Phillip H. Snelling, of Johnson, Jones & Snelling, of Chicago, for intervening respondents-appellants.
PER CURIAM: These consolidated cases involve a proposed amendment to article IV, the legislative article, of the
BACKGROUND
Two organizations, the Eight is Enough Committee and Term Limits Illinois (Proponents) petitioned to amend article IV, sections 2(a), 2(b), and 2(c), of the Illinois Constitution (
Ҥ 2. Legislative Composition
(a) One Senator shall be elected from each Legislative District. Immediately following each decennial redistricting, the General Assembly by law shall divide the Legislative Districts as equally as possible into three groups. Senators from one group shall be elected for terms of four years, four years and two years; Senators from the second group, for terms of four years, two years and four years; and Senators from the third group, for terms of two years, four years and four years. The Legislative Districts in each group shall be distributed substantially equally
over the State. For the exclusive purpose of calculating of service under the tenure limitation contained in Section 2(c), a person who serves two years or less of a term of a Senator shall be deemed to have served two years and a person who serves more than two years of a four-year term of a Senator shall be deemed to have served four years. (b) Each Legislative District shall be divided into two Representative Districts. In 1982 and every two years thereafter one Representative shall be elected from each Representative District for a term of two years. For the exclusive purpose of calculating length of service under the tenure limitation contained in Section 2(c), a person who serves any part of a term of a Representative shall be deemed to have served two years.
(c) To be eligible to serve as a member of the General Assembly, a person must be a United States citizen, at least 21 years old, and for the two years preceding his election or appointment a resident of the district which he is to represent. No person shall be eligible to serve as a member of the General Assembly for more than eight years. No person who has served six years in the General Assembly shall be eligible to be elected to a four-year term as a Senator. This tenure limitation is not retroactive and shall not apply to service as a member of the General Assembly before the second Wednesday in January, 1995. In the general election following a redistricting, a candidate for the General Assembly may be elected from any district which contains a part of the district in which he resided at the time of the redistricting and reelected if a resident of the new district he represents for 18 months prior to the reelection.”
The Proponents circulated their petition pursuant to
The CBA named the same parties as defendants in the taxpayer action and respondents in the original mandamus proceeding: the Illinois State Board of Elections, the State Comptroller, the State Treasurer, the Secretary of State, the Cook County clerk, and the Chicago board of election commissioners (officials). Also, the Proponents have been allowed to intervene on the side of the officials.
In the mandamus proceeding, we allowed the CBA‘s motion for leave to file its petition for the writ. In the taxpayer action, the trial court entered an order in favor of the CBA. The court declared the proposed amendment to be invalid and permanently enjoined the expenditure of State funds for the amendment. We ordered that the trial court enter an automatic notice of appeal, and that the appeal be transferred directly to this court and consolidated with the mandamus proceeding.
DISCUSSION
Preliminary Matters
Initially, we agree with the dissent that issues of standing and ripeness do not preclude a review of the merits. 161 Ill. 2d at 516 (Harrison, J., joined by Miller & Heiple, JJ., dissenting).
Also, we agree with the dissent that the mandamus proceeding in this court must be dismissed. (161 Ill. 2d
Applying these principles to the present case, it is clear that the CBA seeks prohibitory and not mandatory relief. Indeed, we note that several times during oral argument in this court the CBA stated that the “initiative process should go no further.” Also, no party has alleged that any of the officials have failed to perform any official duty related to the proposed amendment. The appropriate proceeding for a case such as this is not a petition for a writ of mandamus, but rather a taxpayer action for injunctive relief.
Taxpayer Action
We now turn to the merits of the taxpayer action.
“Amendments to Article IV of this Constitution may be proposed by a petition signed by a number of electors equal in number to at least eight percent of the total votes cast for candidates for Governor in the preceding gubernatorial election. Amendments shall be limited to structural and procedural subjects contained in Article IV.” (Emphasis added.)
Ill. Const. 1970, art. XIV, § 3 .
The CBA contends that the proposed amendment is
We emphasize that this court voices no opinion as to the wisdom or desirability of the proposed amendment. Rather, our judgment is based solely on our settled construction of
As in Coalition I, we are presented with the question of whether a proposed amendment to our constitution satisfies the constitution‘s own requirements for its amendment. As this court explained in Coalition I:
“Article XIV, section 3, of the Constitution provides specific requirements for the proposing of amendments under the initiative procedure. The Constitution has an express limitation as to the subject matter of a proposal: ‘Amendments shall be limited to structural and procedural subjects contained in Article IV.’ Any offered amendment under the initiative obviously must comply with the procedure and limitations on amendment set out in section 3 before it can be submitted to the electorate. As this court has observed: ‘The constitution is the supreme law *** and every court is bound to enforce its provisions.’ [Citation.]” Coalition I, 65 Ill. 2d at 460.
The controlling legal principles are settled. The prior constitutions of this State did not provide for amendment through the direct initiative process. (CBA, 137 Ill. 2d at 398.) The Framers of the 1970 Illinois Constitution intended
Based on the Framers’ concerns,
In Coalition I, this court held that the word “and” in the “structural and procedural” requirement means “and.” Accordingly:
“As commonly understood, the word ‘and’ would thus limit initiatives to amendments whose subjects would be both structural and procedural, such as a proposal for the conversion from a bicameral to a unicameral legislature or for the conversion from multiple- to single-member legislative districts. Giving effect to the language of section 3 would produce no absurdity or unreasonable result. This court is without authority to substitute ‘or’ for the ‘and’ the constitutional convention used in stating ‘structural and procedural’ unless a contrary intention is clearly manifested. We judge a contrary intention is not clearly manifested.” Coalition I, 65 Ill. 2d at 466.
Applying these principles to the instant case, it is clear that the proposed amendment does not meet the “structural and procedural” requirement of
Likewise, the eligibility or qualifications of an individual legislator do not involve any of the General Assembly‘s procedures. The process by which the General Assembly adopts a law would remain unchanged.
However, even if the word “and” in the “structural and procedural” requirement meant “or,” the result in this case would not change. As we explained, the proposed amendment does not meet either the structural or the procedural requirement of
Further, and more fundamentally, the dissent relies upon a dissent and not the law as declared by this court. The doctrine of stare decisis is the means by which courts ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. Stare decisis permits society to presume that fundamental principles are established in the law rather than in the proclivities of individuals. The doctrine thereby contributes to the integrity of our constitutional system of government both in appearance and in fact. Stare decisis is not an inexorable command. However, a court will detour from the straight path of stare decisis only for articulable reasons, and only when the court must bring its decisions into agreement with experience and newly ascertained facts. Vasquez v. Hillery (1986), 474 U.S. 254, 265-66.
Specifically, “[a]lthough adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands special justification.” (Arizona v. Rumsey (1984), 467 U.S. 203, 212.) In the
For the foregoing reasons, the petition for a writ of mandamus in cause No. 77405 is dismissed; and the judgment of the circuit court of Cook County in cause No. 77566 is affirmed.
No. 77405—Petition dismissed.
No. 77566—Judgment affirmed.
JUSTICE HARRISON, dissenting:
These consolidated actions challenge an initiative to amend article IV of the Illinois Constitution (
The facts are these. Two organizations, known as the Eight is Enough Committee and Term Limits Illinois (hereinafter referred to collectively as the Proponents), circulated a petition to amend subsections (a), (b), and (c) of section 2, article IV of our constitution (
Ҥ 2. Legislative Composition
(a) One Senator shall be elected from each Legislative District. Immediately following each decennial redistricting, the General Assembly by law shall divide the
Legislative Districts as equally as possible into three groups. Senators from one group shall be elected for terms of four years, four years and two years; Senators from the second group, for terms of four years, two years and four years; and Senators from the third group, for terms of two years, four years and four years. The Legislative Districts in each group shall be distributed substantially equally over the State. For the exclusive purpose of calculating of service under the tenure limitation contained in Section 2(c), a person who serves two years or less of a term of a Senator shall be deemed to have served two years and a person who serves more than two years of a four-year term of a Senator shall be deemed to have served four years. (b) Each Legislative District shall be divided into two Representative Districts. In 1982 and every two years thereafter one Representative shall be elected from each Representative District for a term of two years. For the exclusive purpose of calculating length of service under the tenure limitation contained in Section 2(c), a person who serves any part of a term of a Representative shall be deemed to have served two years.
(c) To be eligible to serve as a member of the General Assembly, a person must be a United States citizen, at least 21 years old, and for the two years preceding his election or appointment a resident of the district which he is to represent. No person shall be eligible to serve as a member of the General Assembly for more than eight years. No person who has served six years in the General Assembly shall be eligible to be elected to a four-year term as a Senator. This tenure limitation is not retroactive and shall not apply to service as a member of the General Assembly before the second Wednesday in January, 1995. In the general election following a redistricting, a candidate for the General Assembly may be elected from any district which contains a part of the district in which he resided at the time of the redistricting and reelected if a resident of the new district he represents for 18 months prior to the reelection.”
The Proponents circulated their petitions pursuant to
The Proponents filed their initiative petition with the Secretary of State on May 8, 1994, which was “at least six months before [the] general election” as required by
Before the Board was able to officially declare the petition to be valid and to certify the proposed amendment for inclusion on the November 8 ballot (
Named as defendants in the circuit court action are the Board, its chairman, vice-chairman and members; the State Comptroller, Treasurer and Secretary of State; the county clerk of Cook County; and the Chicago board of election commissioners, its chairman and members. These same parties are named as respondents in the mandamus proceeding. In addition, the Proponents and several of their members have been allowed to intervene both as defendants in the circuit court proceeding and as respondents in the original mandamus action before our court.
The substantive allegations of the circuit court complaint and the mandamus petition are identical. In each case, the CBA bases its claim on
In cause No. 77405, we granted the CBA‘s motion for leave to file a writ of mandamus, established an expedited briefing schedule, and set the matter for hearing at a special session of court on July 21, 1994. During the course of that hearing, this court learned for the first time of the existence of the circuit court
In compliance with our order, the circuit court entered judgment in cause No. 77566 on July 22, 1994. That judgment declared the proposed amendment to be invalid, found that the CBA had established the requisite elements for injunctive relief, and permanently enjoined the expenditure of State funds for the amendment. An appeal was then taken according to our directions, and, by order of this court, no further briefing was allowed. The parties were left to stand on the briefs previously filed in cause No. 77405, and no additional oral argument was held. It is in this posture that the circuit court‘s judgment and the original petition for a writ of mandamus have now come before us for consideration.
As a preliminary matter, there is no question that the Proponents, as citizens and taxpayers, have standing to bring their circuit court action against the named State defendants pursuant to the disbursement of public moneys statute (
Although the Board has not officially declared the petition valid and certified the proposition for the ballot, the parties do not assert that there is any technical impediment to approval. From the record before us, it appears that there are no further facts to be developed and no further acts to be performed except for mere formalities. Accordingly, unless the court intervenes, the proposed amendment will, in due course, be presented to the voters in November.
Under these circumstances, further delay will serve no useful purpose. To the contrary, it will defeat the CBA‘s objective in bringing suit, which is to stop any expenditure of public funds on a measure it claims is wholly improper. While it is true, as a general rule, that a court may not enjoin an election (Fletcher v. City of Paris (1941), 377 Ill. 89), we have recognized an exception to this rule where, as here, injunctive relief is sought to prevent the waste of public funds on a ballot proposition that is alleged to be in violation of the constitution. Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 460 (Coalition I); Jordan v. Officer (1987), 155 Ill. App. 3d 874, 877.
While standing and ripeness do not bar our resolution of this dispute, cause No. 77405 must nevertheless be dismissed. As noted at the outset of this discussion, that cause seeks to invoke this court‘s original jurisdiction over cases relating to mandamus. (
Second, the constitution‘s grant of original mandamus jurisdiction does not give us a roving commission to pronounce justice whenever we think it might serve the public interest. The writ is an extraordinary remedy to enforce, as a matter of public right, “the performance of official duties by a public officer where no exercise of discretion on his part is involved.” (Madden v. Cronson (1986), 114 Ill. 2d 504, 514.) Its purpose is to compel a public officer to perform a ministerial, nondiscretionary duty (see People ex rel. Ryan v. Retirement Board of the Firemen‘s Annuity & Benefit Fund (1985), 136 Ill. App. 3d 818, 820) which the officer has failed to perform (see AFSCME v. Illinois State Labor Relations Board (1989), 187 Ill. App. 3d 585, 601) and to which the petitioner is entitled as a matter of right (see Harris v. State (1991), 212 Ill. App. 3d 13, 15).
Implicit in these principles is that mandamus will only lie to force a public official to do what the law requires him to do. Accordingly, use of the writ might be proper if the Board refused to certify a ballot measure which met all technical requirements of the Election Code (
What the CBA‘s petition assails, instead, is the substantive validity of the term-limit initiative. This is not a question that any of the named officials have the power or authority to decide. (Coalition I, 65 Ill. 2d at 463mandamus. (Daley v. Hett (1986), 113 Ill. 2d 75, 80.) The CBA‘s mandamus petition should therefore be dismissed.
Where, as here, an amendment proposed by initiative meets the requisite statutory requirements, but a party claims that it should be kept off the ballot on the grounds that it violates the terms of section 3, article XIV of our constitution (
In reviewing the circuit court‘s judgment, a threshold question this court must consider is how the second sentence of article XIV, section 3 (
The sentence at issue here was included simply “to prevent use of initiative amendment to add substantive matter to the Constitution.” (6 Record of Proceedings, Sixth Illinois Constitutional Convention 1561 (hereinafter cited as Proceedings).) As the court acknowledged in its last discussion of this provision,
“the proposal and the debates reflected the intent that the limited initiative not be used to accomplish substantive changes in the constitution, but that the proposals pertain only to the basic qualities of the legislative branch—namely, structure, size, organization, procedures, etc. 6 Proceedings 1401.
*** By so limiting the use of the initiative, the delegates sought to avoid the use of the initiative to incorporate into the constitution what in effect was legislation.” (Emphasis in original.) Chicago Bar Association, 137 Ill. 2d at 403-04.
The proposed term-limit amendment challenged here would in no way produce a substantive change in the constitution. The proposal relates solely to the composition of the legislature as set forth in
The CBA argues, in the alternative, that the proposed amendment cannot be said to be “limited” to substantive or procedural changes within the meaning of article XIV, section 3 (
This aside, it is difficult to envision any structural change to the legislature that would not have at least some residual effects on the right of candidates to run for election and the right of voters to cast ballots for the candidates of their choice. As a result, if the CBA‘s construction of article XIV were accepted, there would be almost no instance in which the legislative article could legitimately be amended by means of the initiative process. Section 3 of article XIV would be rendered a nullity.