HONORABLE WILLIAM D. MADDUX et al., Appellants, v. ROD R. BLAGOJEVICH, Governor, State of Illinois, et al., Appellees.
No. 107416
Supreme Court of Illinois
June 18, 2009
233 Ill. 2d 508
III. CONCLUSION
For the foregoing reasons, the judgment of the appellate court is affirmed.
Affirmed.
Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro, Solicitor General, and Paul Berks, Assistant Attorney General, of Chicago, of counsel), for appellees Illinois State Board of Elections and Its Members.
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Chief Justice Fitzgerald and Justices Kilbride and Burke concurred in the judgment and opinion.
Justice Karmeier dissented, with opinion, joined by Justice Garman.
Justice Thomas took no part in the decision.
OPINION
Plaintiffs, Cook County Circuit Court Judge William D. Maddux and five Cook County voters eligible to vote in judicial elections, sought a declaration from the circuit
BACKGROUND
Plaintiffs’ complaint challenged the constitutionality of the Retirement Act on a number of grounds, including that it impermissibly imposes limitations on the judicial retention process in violation of article VI, section 12(d), of the Illinois Constitution of 1970 (
Plaintiffs’ complaint alleged that Judge Maddux is currently the presiding judge of the law division of the Cook County circuit court. He was first appointed a circuit judge in 1991 and was subsequently elected as a circuit judge in 1992. He was later retained by the voters as a circuit judge in the 1996 and 2002 elections. His current term expires in 2010. Judge Maddux will be 75 years old by the date his term expires and will, at that time, be subject to the Retirement Act‘s provisions. In an amendment to their complaint, plaintiffs alleged that Judge Maddux intends to run for retention should the Act be invalidated, but will not run in a contested election should the Act be upheld.
The circuit court filed a memorandum opinion and order, granting the defendants’ motions to dismiss and denying plaintiffs’ motion for summary judgment. The court dismissed the case in its entirety with regard to all defendants.2 In so doing, the circuit court determined that it was bound to accept the “judicial gloss” placed on the Retirement Act by the First District‘s decision in Anagnost v. Layhe, 230 Ill. App. 3d 540 (1992). The circuit court noted that Anagnost had construed the Act as preventing a judge from running in a retention election after the expiration of the term in which the judge attains the age of 75, but allowing a judge to run for judicial office in a contested election, regardless of any age limitation. The circuit court concluded that there was no basis to conclude that the Retirement Act amounted to a constitutionally unauthorized modification of the retention process, as the text and history of the judicial article
ANALYSIS
The dismissal of a complaint is reviewed de novo. People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 120 (2001).
This case turns on the meaning of the Retirement Act and whether its operation is consistent with our state constitution.
The Retirement Act provides:
“A judge is automatically retired at the expiration of the term in which the judge attains the age of 75. Such judge shall conclude all matters pending before him unless the Supreme Court makes other provisions for the disposition of such matters. This Section shall apply to all Supreme Court, appellate, circuit and associate judges.”
705 ILCS 55/1 (West 2006).
As in all cases of statutory construction, our goal is to ascertain and give effect to the intent of the General Assembly in passing the Act, and the enacted language is generally the best evidence of that. In re Donald A.G., 221 Ill. 2d 234, 246 (2006). We may also consider the purpose behind the Act and the evils sought to be remedied, as well as the consequences that would result from construing it one way or the other, a critical consideration for this case. County of Du Page v. Illinois Labor Relations Board, 231 Ill. 2d 593, 604 (2008).
The Act states that a judge is “automatically retired” at the expiration of the term in which he attains the age of 75. The word “retired” is modified by the adverb “automatically.” Thus, the Act makes clear that, once a judge reaches the age of 75 while still serving a judicial term of office, the termination of work is not left to choice. Giving the language its plain and ordinary meaning, as we must (People v. Roos, 118 Ill. 2d 203, 210 (1987)), the Act dictates that a judge who turns 75 at any point during his term must cease to be employed as a
The circuit court, following the construction of the Act offered in Anagnost v. Layhe, 230 Ill. App. 3d 540 (1992), interpreted the Act in a manner that departs considerably from its plain language. As we explain, however, that construction does not effectuate the purpose behind it and cannot stand.
In Anagnost, the appellate court construed the Act to bar sitting judges from seeking retention of their seats once they reach the age of 75 within a term, but not from seeking election. The case involved a 75-year-old licensed attorney who sought the nomination for the office of supreme court justice. The defendants challenged his nominating petitions on the basis that he was ineligible for office under the Act because he was too old. The attorney challenged the constitutionality of the Act, arguing that the legislature lacked authority to prohibit persons 75 years old or older from running for judicial office. The appellate court recognized the difficult constitutional question that the case presented. Anagnost, 230 Ill. App. 3d at 542-43. On the one hand, the court acknowledged the long line of authority which prevents the legislature from adding to the qualifications for judicial office, as specified in section 11 of the judicial article.3 Anagnost, 230 Ill. App. 3d at 542. On the other
Ultimately, the appellate court did not reach the constitutional question. Anagnost, 230 Ill. App. 3d at 542-43. Instead, it resolved the case by construing the Act as not barring a “person over the age of 75[,] and otherwise qualified to serve as a judge from running in a judicial election.” Anagnost, 230 Ill. App. 3d at 544. The court noted that the “language of the Judges Act leaves little room for an interpretation that it is applicable to any one [sic] other than sitting judges.” Anagnost, 230 Ill. App. 3d at 544. It also noted the difference between an adversarial election and the retention process. Anagnost, 230 Ill. App. 3d at 543-44. Although the court held that a citizen 75 years or older was eligible to run for judicial office, the effect of its holding on sitting judges was that a judge retired under the Act could yet run for election.
Justice Jiganti, in dissent, correctly recognized that the majority‘s holding was that “a judge may seek election beyond retirement age but not retention.” Anagnost, 230 Ill. App. 3d at 546 (Jiganti, J., dissenting). He noted that while there arguably may be a difference between seeking election and seeking retention, holding that a judge beyond retirement age may seek election but not retention brought about an absurd result. Anagnost, 230 Ill. App. 3d at 546 (Jiganti, J., dissenting).
In this case, both parties see in Anagnost reason to consider whether legislative acquiescence, a canon of
The Attorney General, recognizing that this case differs factually from Anagnost, nevertheless argues that the circuit court correctly applied Anagnost‘s construction in this case. The Attorney General reasons as follows. If a judge turns 75 during his term in office, then his seat becomes vacant automatically at the conclusion of that term. The seat being vacant, it cannot be retained because the judge would be ineligible to run for retention. The judge would thus be effectively retired. The Attorney General sees nothing in the Act, however, that would preclude that same judge, so “retired” by the Act‘s operation, from running for a judicial seat in an open5 election, including the very one that the judge was “retired” from.
This interpretation, referred to by both parties as the ”Anagnost gloss,”6 departs in no small way from the Act‘s plain language. Specifically, the Act draws no
This construction, moreover, would disqualify by age sitting judges who would seek retention, but not those sitting judges retired by the Act‘s operation who would seek election. Such a construction is not supported by the actual language of the Act, which purports to retire all judges. And, it is critical to point out that providing for the mandatory retirement of judges was the only thing that the General Assembly may do under section 15(a). We have long acknowledged that the intent of the drafters in section 15(a) was to have the legislature designate an age beyond which a judge could no longer hold office. Cusack v. Howlett, 44 Ill. 2d 233, 244 (1969) (construing 1964 amendment to the judicial article of the Constitution of 1870, the precursor to the current judicial article, as granting to the General Assembly the authority to fix a “mandatory” retirement age for judges); see also 2 Record of Proceedings, Sixth Illinois Constitutional Convention 1089 (Delegate Rachunas noting that the proposal for the 1970 Constitution deals with the “automatic retirement for age *** of judges“). See also G. Braden & R. Cohn, The Illinois Constitution: An Annotated & Comparative Analysis 375 (1969) (noting that
More importantly, and as Justice Jiganti recognized in his dissent in Anagnost, under this construction, mandatory retirement is easily avoided by running in an open election for a judicial seat, including the one made vacant by the Act‘s operation. Thus, under this construction, the Act does not provide for mandatory retirement at all. The only judges retired under this construction would be those who choose to be. This entirely undermines the notion of a mandatory retirement based on age. Consider, for example, a 76-year judge, who is “retired” by virtue of attaining the age of 75 during his term. That person could still run for, and be elected to, the same seat he vacated by operation of the Act. Moreover, if elected, that judge, beginning his term at an age older than 75 would thus be immune from the Act altogether. That judge would never “attain” 75 within a judicial term.
purports to provide for mandatory judicial retirement based on age.
Thus, under the Anagnost construction, the Act does not achieve mandatory retirement at all. It is, in effect, nothing but an anti-retention provision.9 A judge disqualified by age from running for retention, yet able to hold a judicial seat, even the one he was retired from, via an open election is, in no sense of the word, “retired.” As such, the Act, so construed, fails to fulfill the constitutional mandate of compulsory retirement.
The appellate court in Anagnost, and the circuit court here, stated that their interpretation of the Act was reasonable given that the distinction between retention elections and open elections provides a means for voters to assess the fitness of 75-year “retired” judges to again hold office. The point is not relevant for constitutional analysis, but the logic is nevertheless flawed, as we explain below.
Nothing in section 15(a) expressly links age-based mandatory retirement to fitness. While infirmities of age might have been the concern of the drafters of section 15(a), it is also possible that they sought to preclude life tenure for judges, which, at the time, some viewed as having been made possible through the retention process.10 As we have pointed out, under the interpretation in Anagnost, a judge can avoid the effect of being retired
simply by running again, even for the same seat made vacant by his “retirement.” This obviously thwarts the intent to keep someone from sitting on the bench for life.
The concern with limiting judicial tenure through retirement by age might explain why, in sections 15(c) and (e), the judicial article provides an explicit procedure for the removal of a judge for reasons of unfitness.
Nevertheless, there is some evidence to support the appellate court‘s conclusion that fitness was the concern behind the mandatory retirement provision contained in section 15(a). The legislative history of the Act, whose original passage predated section 15(a) of the 1970 Constitution,11 shows that some legislators believed that age-based mandatory retirement “will tend to insure a more vigorous judiciary to which the public is entitled.” Report of the Judicial Advisory Council of Illinois 9-10 (June
But the legitimate interest in “a more vigorous judiciary” is not realized under the construction of the Act advanced by the appellate court in Anagnost. Once again, under that construction, a judge precluded from retaining his seat may nevertheless hold judicial office via an open election, including the very seat he was “retired” from. If the drafters of the constitution were concerned about the infirmities of age, that concern would exist for any person 75 and older. Logically, the same disqualification based on the infirmities of age could logically apply to both those who would seek either retention or election.13 Such inconsistent treatment cannot rationally be tied to the method of election; either age
determines the ability to hold judicial office or it does not.
In light of the foregoing, we hold that the circuit court in this case and the appellate court in Anagnost erred in construing the Act as they did. The Anagnost interpretation is not supported by the plain language of the Act and, more problematically, does not achieve the constitutional mandate of compulsory judicial retirement contemplated by section 15(a). Accordingly, Anagnost is overruled.
Having overruled Anagnost, we return to the plain language of the Act for purposes of assessing plaintiffs’ arguments. As we have noted, that language compels mandatory retirement for all judges at the expiration of the term in which they attain the age of 75.
Plaintiffs contend that section 15(a) does not authorize the General Assembly to enact mandatory judicial retirement legislation, but the argument lacks merit. The constitution operates as a limitation upon the General Assembly‘s sweeping authority, not as any grant of power (see City of Chicago v. Holland, 206 Ill. 2d 480, 489 (2003)); thus the General Assembly is free to enact any legislation that the constitution does not expressly prohibit (Cincinnati Insurance Co. v. Chapman, 181 Ill. 2d 65, 78 (1998)). Nevertheless, where the constitution specifically addresses the power of the General Assembly to enact particular legislation, basic principles of constitutional and statutory interpretation still apply.
Section 15(a) of the 1970 Constitution states that the General Assembly “may provide by law for the retirement of Judges and Associate Judges at a prescribed age.”
thus plainly allows the General Assembly to enact legislation regarding mandatory retirement of judges based on age if it so chooses. Moreover, as we have explained, the conclusion that section 15(a) intended for any such legislation to be mandatory is consistent with both case law and the constitutional debates. See Cusack, 44 Ill. 2d at 244; 5 Proceedings 3958.
In acting pursuant to section 15(a) of the judicial article, the General Assembly created in the Act a scheme that declares a vacancy in the office of a judge at the expiration of the term in which that judge reaches the age of 75. See Tully v. State of Illinois, 143 Ill. 2d 425 (1991) (noting, in passing, that a seat becomes vacant upon compulsory retirement under the Act). That the Act renders the seat “vacant” is consistent with section 12(b) of the judicial article, which provides that a judicial office “shall be vacant upon [the judge‘s] death, resignation, retirement, removal, or upon the conclusion of [the judge‘s] term without retention in office.”
Although giving effect to the Act‘s plain language obviously fulfills the constitutional goal of mandatory retirement, it raises other constitutional problems that cannot be remedied simply by statutory construction or constitutional interpretation. As already pointed out, section 11 of the judicial article establishes only three criteria for eligibility to be a judge. These do not include
Consider the situation of a 76-year-old citizen who has never held judicial office. If that person runs for judicial office and wins, he would never face the prospect of compulsory retirement because, under the Act‘s operation, automatic retirement occurs “at the expiration of the term in which the judge attains the age of 75.”
The Act, therefore, does nothing to advance the goal of insuring a “more vigorous judiciary” since it would allow for people older than 75 years to serve terms of 6 and possibly 10 years. More importantly, the Act creates an irrational classification that could not, in terms of equal protection, withstand scrutiny under our state constitution. Equal protection requires that similarly
There is no rational basis upon which the legislature can prevent 75-year-old or older former judges from running in an election, but not citizens 75 years old or older who were never judges when the disqualifying characteristic is age. If the legitimate state interest is to insure a “vigorous judiciary,” the classification we describe above cannot be deemed rationally related to that purpose. We stress again that if age defines ability (and both the constitutional and legislative history indicate that it was believed that it does), either all those 75 years of age or older are unfit or they are not. No presumption of constitutionality could save legislation like this that so blatantly violates equal protection. See People v. Nastasio, 19 Ill. 2d 524, 529 (1960) (explaining courts’ duty to avoid interpretations that raise constitutional questions and cast doubt on validity).
The Attorney General, perhaps anticipating the constitutional problems arising from the Act‘s plain language, suggests that sections 11, 12, and 15 of the judicial article can be read together as an implicit grant of authority to the legislature to create additional eligibility factors pertaining to age for judges.16 In other words, because section 15(a) mandates retirement at a certain
age, the constitution implicitly authorizes that age to be considered as a kind of de facto eligibility criterion with respect to sections 11 and 12. This argument is rooted in the notion that if such implicit authorization is not read into the judicial article, this court would, in effect, be reading out of the constitution section 15(a)‘s allowance for mandatory retirement.
Such an analysis, however, departs from the text of the constitution. Statutory constructions based on looking beyond the text of a statute are disfavored since a court has no authority to depart from the law‘s plain meaning or alter its language in a “way that constitutes a change in the plain meaning of the words actually adopted by the legislature.” U.S. Bank National Ass‘n v. Clark, 216 Ill. 2d 334, 346 (2005). The same is true in construing constitutional provisions, perhaps even more so given that the language in question was what was presented to the citizens who voted to approve it.
To interpret the constitution in the manner suggested by the Attorney General is especially problematic because, as we have stated, the constitution acts as a limitation on the General Assembly‘s authority. In section 15(a), the drafters gave the legislature the discretion to enact judicial retirement legislation. Section 11 acts as a limitation on the General Assembly to add to the eligibility of citizens to run for judicial office. We cannot, merely because of section 15(a), read into section 11 an additional eligibility criterion that would impair the rights of people who have never been judges to run for
Legislation is presumed constitutional and must be construed as not offending the constitution, provided, of course, that the construction is reasonable. Gill v. Miller, 94 Ill. 2d 52, 56 (1983). This presumption, however, is only the starting point in constitutional analysis; it is not outcome determinative. Thus, notwithstanding a statute‘s presumption of constitutionality, this court has acknowledged its “power to strike down” legislation when it is “violative of the clear requirements of the constitution.” Donovan v. Holzman, 8 Ill. 2d 87, 93 (1956). This court has long acknowledged its “duty to interpret the law and to protect the rights of individuals against acts beyond the scope of the legislative power.” People ex rel. Huempfner v. Benson, 294 Ill. 236 (1920). If a statute is unconstitutional, courts are obligated to declare it invalid. Wilson v. Department of Revenue, 169 Ill. 2d 306, 310 (1996). This duty cannot be evaded or neglected, no matter how desirable or beneficial the legislation may appear to be. Wilson, 169 Ill. 2d at 310; Grasse v. Dealer‘s Transport Co., 412 Ill. 179, 190 (1952).
As we have explained, the judicial article allows for the General Assembly to enact mandatory judicial retirement legislation; however, the plain language of the specific legislation that has been enacted pursuant to the constitution violates equal protection. Moreover, as it is
“[T]his court, the legislature and the executive are bound by the limitations of the constitution. No matter how politically or socially desirable a piece of legislation may be, if it is contrary to the provisions of our constitution, it cannot stand. Possibly, this court is more conscious of constitutional restrictions than are the other branches of our State government because we must constantly square our holdings with the constitution, whereas the legislative and executive branches must often measure their positions by social and political concerns. Nonetheless, the final product of those branches must stand the constitutional test.” State Board of Elections, 136 Ill. 2d at 539 (Ryan, J., specially concurring).
These observations are particularly apt in this case.
Finally, the circuit court here correctly observed that the General Assembly “must navigate” with “precision” in this area given the tensions that exist in the judicial article between having no age ceiling for eligibility in
It may well be that the route to mandatory retirement for judges lies in constitutional amendment.17 Such concerns, however, are beyond the scope of this opinion. Our duty in this case is limited to assessing the constitutionality of the Act as it currently exists, not to redraft it. We have determined that the Act as written is unconstitutional. It is, of course, the General Assembly‘s prerogative, under
CONCLUSION
In light of the above, the Act is declared unconstitutional and the order of the circuit court is reversed.
Reversed.
JUSTICE THOMAS took no part in the consideration or decision of this case.
JUSTICE KARMEIER, dissenting:
The Compulsory Retirement of Judges Act (the Retirement Act) (
As described in the majority‘s opinion, plaintiffs are a Cook County circuit court judge named William D. Maddux and five Cook County voters who are eligible to vote in judicial elections and would like to vote to retain Judge Maddux in office. Plaintiffs filed a declaratory judgment action in the circuit court of Cook County challenging the constitutionality of the Retirement Act on a number of grounds, including that it impermissibly imposes limitations on the judicial retention process in violation of
According to plaintiffs’ complaint, Judge Maddux currently serves as presiding judge of the Law Division of the Cook County circuit court. Plaintiffs allege that Judge Maddux was first appointed circuit judge in 1991 and was subsequently elected to that post in 1992. He
The circuit court issued a memorandum opinion and order granting the defendants’ motions to dismiss and denying plaintiffs’ motion for summary judgment. The court dismissed the case in its entirety with regard to all defendants. In so doing, the circuit court correctly recognized that it was bound to accept the interpretation placed on the Retirement Act by the First District‘s decision in Anagnost v. Layhe, 230 Ill. App. 3d 540 (1992). That decision construed the Retirement Act as barring a judge from seeking retention after the expiration of the term in which the judge attained the age of 75, but permitting him or her to run for judicial office in contested elections no matter how old he or she may be. The circuit court believed that the text and history of the judicial article of the Illinois Constitution supported the constitutionality of the Act as interpreted by Anagnost. It therefore rejected the claim that the Retirement Act had modified the retention process in a manner not authorized by our state‘s constitution.
Plaintiffs appealed. After the matter was docketed in the appellate court, plaintiffs moved to transfer the cause to our court pursuant to Supreme Court Rule 302(b) (210 Ill. 2d R. 302(b)) on the grounds that the public interest
Here, as in the circuit court, the central issue is whether the Retirement Act is unconstitutional because it exceeds the authority given to the General Assembly by the Illinois Constitution to prescribe a retirement age for judges. The standards governing our review are familiar. The constitutionality of a statute is a question of law we review de novo. Illinois State Chamber of Commerce v. Filan, 216 Ill. 2d 653, 661 (2005). All statutes carry a strong presumption of constitutionality, and it is the burden of the party challenging the statute to rebut that presumption and to establish a constitutional violation. Filan, 216 Ill. 2d at 661; Flynn v. Ryan, 199 Ill. 2d 430, 436 (2002). Moreover, it is the duty of a court to construe a statute in a manner upholding its constitutionality, if such construction is reasonably possible. People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 120 (2001).
Plaintiffs first contend that the Illinois Constitution does not authorize the General Assembly to fix a mandatory retirement age in any form. This contention is patently without merit.
Citing the provision‘s use of the phrase “may provide,” plaintiffs make the claim that the retirement allowed by the constitution is meant to be discretionary with the judge and that the mention of the age of 75 in the statute is merely a suggested retirement age. This argument is untenable. By the clear and unambiguous terms of
Even if one could legitimately argue that the language of
The delegates to the 1970 constitutional convention were aware of the then-existing constitutional provision. They also knew that the legislature had exercised its authority in connection with that provision and that our court had interpreted the provision as allowing the General Assembly to enact a statute prescribing a mandatory retirement age. See 2 Record of Proceedings, Sixth
Plaintiffs suggest that sections 15(b) and (c) of the judicial article, which establish procedures for removing judges for misconduct or physical or mental incapacity, support their claim that
Plaintiffs next argue that, assuming the legislature is constitutionally allowed to prescribe a mandatory retirement age, this was not done by the current statute because it does not set a specific age, but allows the judge who reaches 75 to finish out his or her term. A similar argument was rejected by the Seventh Circuit Court of Appeals in Trafelet v. Thompson, 594 F.2d 623, 627, 631 (7th Cir. 1979). There, the court considered whether section 2 of the Act (Ill. Rev. Stat. 1977, ch. 37, par. 23.72), which has since been deleted, violated
Because lower federal courts exercise no appellate jurisdiction over state courts, decisions of lower federal courts are not conclusive on state courts, except insofar as the decision of the lower federal court may become the law of the case. People v. Kokoraleis, 132 Ill. 2d 235, 293-94 (1989). While the Seventh Circuit‘s decision in Trafelet is therefore not binding on this tribunal, I believe its rationale is persuasive and should be followed.
Correspondingly, I find plaintiffs’ reading of the authority to set a retirement age is too narrow. The General Assembly has taken a reasonable approach in allowing judges to finish out their terms rather than set a
Because the Illinois Constitution allows the General Assembly to prescribe mandatory retirement and because the statute currently in effect does prescribe a mandatory retirement age, it is necessary to address the crux of plaintiffs’ constitutional challenge. Plaintiffs claim that the Retirement Act exceeds the authority of
The petitioner in Anagnost was a 78-year-old licensed attorney who sought the Republican nomination to the office of supreme court justice. His nominating petitions were challenged based on the claim that he was ineligible for office under the Retirement Act. The petitioner responded by challenging the constitutionality of the Act and claiming that the legislature had no constitutional authority to prohibit persons 75 years of age or older
The decision in Anagnost was not unanimous. A dissenting justice observed that the majority‘s holding “effectively is that a judge may seek election while beyond retirement age but not retention.” Anagnost, 230 Ill. App. 3d at 546 (Jiganti, J., dissenting). The dissent further noted that while there arguably may be a difference between seeking election and seeking retention, the holding that a judge beyond retirement age may seek election but not retention brings about an absurd result. Anagnost, 230 Ill. App. 3d at 546 (Jiganti, J., dissenting).
As I have indicated, Anagnost‘s construction of the law enabled the court to avoid a constitutional question. This enhances, rather than diminishes, its precedential value. As we have often held, courts are required to interpret statutes in such a manner so as to avoid raising constitutional questions when it is possible to do so. Villegas v. Board of Fire & Police Commissioners, 167 Ill. 2d 108, 124 (1995).
Contrary to plaintiffs’ view, I do not believe that the Retirement Act can be dismissed as being merely an antiretention statute rather than a true retirement statute.
A judicial candidate is open to much greater public scrutiny in a contested election. The voters can more readily observe the candidate and distinguish him from his adversary. In contrast, in a retention election, the candidate‘s name simply appears on a long list without an opponent. Many sitting judges 75-or-over would likely conclude, as Judge Maddux has, that the effort and expense required to run in a contested election are more than they are willing to undertake. Under these circumstances, the legislature could certainly have concluded that the number of judges 75-or-over who would want to run in contested elections would be negligible, that barring retention would result in permanent retirement in most cases,20 and that the rigors of running in contested primary and general elections would help ensure that any judge who did elect to run rather than retire would possess the stamina and ability to fulfill the require
Plaintiffs’ reliance upon People ex rel. Nachman v. Carpentier, 30 Ill. 2d 475 (1964), is misplaced. In Nachman, the statute in question prevented a sitting judge from running for retention while also accepting a nomination for another judicial office. Under the statute, when receiving a nomination to a different judicial office than the one the judge held, the judge was required to withdraw his declaration of candidacy for the retention election or “be deemed” to have resigned his office. Nachman, 30 Ill. 2d at 476. Nachman held that the legislature “may not impose the condition in question upon the constitutionally unqualified right of a previously elected judge to seek retention of his office.” Nachman, 30 Ill. 2d at 478. In reaching this conclusion, this court first scrutinized those constitutional provisions that conferred authority on the legislature. This court specifically listed the authority to “fix a judicial retirement age” as being among the provisions that gave power to the legislature to act. Nachman, 30 Ill. 2d at 477. Finding no constitutional authority that would bar retention in the context before it, however, Nachman held that the legislative enactment barring retention while seeking nomination for another judicial office was invalid. Nachman, 30 Ill. 2d at 478.
Nachman is easily distinguishable from the present case. What sets the Retirement Act apart from the statute in Nachman is the express grant of authority found in
Plaintiffs rely upon
Even if the constitutional provisions in sections 12(d) and 15(a) could somehow be said to conflict, I believe that they would have to be read in harmony with the overriding intent of the drafters and delegates of the constitutional convention to allow the General Assembly to establish mandatory retirement for judges. Constitutional provisions that govern a particular subject should not be viewed in isolation, but instead should be read as a rational plan for the regulation of the state‘s judiciary. See Thies, 124 Ill. 2d at 323; Anagnost, 230 Ill. App. 3d at 542.
Plaintiffs’ final argument on appeal is that the Retirement Act is vague and therefore violates the due process clauses of the United States and Illinois Constitutions.
Void for vagueness is a concept derived from the notice requirement of the due process clause. A statute can be impermissibly vague for either of two independent reasons: (1) if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits; and (2) if it authorizes or even encourages arbitrary and discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732 (2000); see also People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 124 (2001). As a general rule, a litigant whose conduct falls squarely within a statute‘s prohibition cannot complain of the vagueness of the law as applied to others. City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill. 2d 390, 442 (2006). Moreover, in order to succeed on a vagueness challenge that does not involve a first amendment right, a party must establish that the statute is vague as applied to the conduct for which the party is being prosecuted. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 291 (2003).
For reasons already discussed, I reject plaintiffs’ claim that there is no retirement under the Act when applying the Anagnost interpretation. I would now further hold that plaintiffs have not satisfied either prong of Hill for establishing a vagueness claim. Within the context of the statute, the meaning of automatic retirement is clear. A judge is retired at the end of the term in which he or she turns 75 years old. Retention is not an option. The fact that another, more difficult course exists for continued judicial service does not make the meaning of the provisions ambiguous.
Furthermore, the vagueness of which plaintiffs complain—that the Act does not bar running in a contested election—is irrelevant in this case because
In declaring the Retirement Act invalid, the majority relies on equal protection principles. What my colleagues fail to mention is that plaintiffs themselves did not raise an equal protection challenge to the law in the circuit court, nor has an equal protection argument been raised by any party on appeal. The issue is therefore not properly before us. People ex rel. Madigan v. Kinzer, 232 Ill. 2d 179, 190 (2009). Indeed, for the majority to raise the issue sua sponte directly conflicts with the court‘s obligation to uphold the constitutionality of a statute whenever it is reasonably possible to do so. See Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306-07 (2008).
Because the equal protection argument is not properly before us, I hesitate to address the equal protection claim fashioned by my colleagues. I feel compelled to note, however, that the majority‘s equal protection concerns are misguided. As a preliminary matter, I am not persuaded that the Retirement Act would necessarily result in disparate treatment of former judges who have turned 75 within their terms. In accordance with the
Even if one is unwilling to accept this construction of the Retirement Act, the majority‘s equal protection theory would fail. Age is not a suspect classification under the equal protection clause. Arvia v. Madigan, 209 Ill. 2d 520, 538 (2004). Where, as in this case, a classification burdens neither a suspect group nor a fundamental interest, courts are ” ‘quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws.’ ” Gregory v. Ashcroft, 501 U.S. 452, 470-71 (1991), quoting Vance v. Bradley, 440 U.S. 93, 97 (1979). A classification will be upheld so long as the state can assert a rational basis for it. Gregory v. Ashcroft, 501 U.S. at 470-71. The standard is deferential. That is particularly so where the classification relates to matters falling within a state‘s constitutional prerogatives. Indeed, the United States Supreme Court has specifically held that the states’ power to define the qualifications of their officeholders has force even as against the proscriptions of the fourteenth amendment. Gregory v. Ashcroft, 501 U.S. at 469.
In this case, the legislature could certainly have assumed that focusing on judges currently in office was the most effective way to meet the objectives it hoped to advance through mandatory retirement rules. While some persons who have passed the age of 75 may seek judicial office for the first time or, having previously held judicial office when they turned 75, may seek to return to office through a contested election, the number of such persons is likely to be small, their chances of success are remote, and the likelihood that they would want to remain in office after completing their first post-seventy-fifth birthday term is negligible. The mere theoretical possibility that such individuals may exist and could potentially end up being treated more favorably than judges who are precluded from seeking retention under the Retirement Act‘s provisions, as construed by the majority, cannot work to render the law invalid.
Finally, there is no merit whatever to the majority‘s perception that a conflict exists between
The only way
“[i]f different parts of the constitution appear to be in conflict, the court must harmonize them, if practicable, and must favor a construction which will render every word operative rather than one which will make some words idle and nugatory. (1 Cooley‘s Constitutional Limitations 128 (8th ed. 1927); 2 J. Sutherland, Statutes and Statutory Construction, sec. 4705 (3d ed. 1943).) One clause will not be allowed to defeat another if by any reasonable construction the two can be made to stand together. 1 Cooley‘s Constitutional Limitations 129 (8th ed. 1927).” Oak Park Federal Savings & Loan Ass‘n v. Village of Oak Park, 54 Ill. 2d 200, 203 (1973).
Such a construction would also lead to an absurd result, for if
There is likewise no merit to the majority‘s suggestion that
For the foregoing reasons, the circuit court of Cook County reached the correct result when it upheld the constitutionality of the Retirement Act. Its judgment should therefore be affirmed. Because my colleagues reach a contrary conclusion, I respectfully dissent.
JUSTICE GARMAN joins in this dissent.