*1 Wilcox, Governor, to remove established power no clear indication that officer he any appoints, intended in interest was “liberty” protected “property” to be filled any by gubernatorial appointment. position of the Governor’s broad removal aware legislature, the Constitution establish and authorized by power Board, the members other means selecting members were to be nevertheless determined that Board I conclude that Governor. accordingly appointed due removal exists unrestricted by summary power process requirements.
I would vacate the and remand injunction temporary the cause with directions to dismiss complaint.
MR. SCHAEFER in this dissent. joins JUSTICE .
(No. 47981 al., DANIEL WALKER et v. THE STATE Appellees, al., BOARD OF ELECTIONS et Appellants.
Opinion Nov. Rehearing denied 1977. filed 1976 . Jan.
SCHAEFER, J., part. took no UNDERWOOD, in dissenting part. J., concurring part Scheuneman, Calkins, of Burditt Chicago (Tom Hasten, of for Immel, and V. Michael counsel), Thomas J. appellants. Kamin, Block, of & of Chester T. Chicago, Jenner Potter, of & F.
Thomas Londrigan Spring- Londrigan, field, for appellees. A. amici curiae Cecil Neal, L.
Earl Chicago, Senate, et al. Partee, of the Illinois President MR. delivered the CREBS opinion JUSTICE court: of the circuit court
This is an from a judgment appeal held certain which unconstitutional Sangamon County for creation of of the Election Code portions providing State Board Elections Rev. Stat. ch. par. have defendants this 1). appealed directly 1A — court Court Rule Ill. Rev. pursuant Supreme 302(a). 110A, Stat. ch. par. 302(a). 30, 1975,
On the Illinois Better Government June filed with the Association State Board of complaint Elections, Walker, that Daniel Sneider and alleging James the All-Illinois Democratic Committee had failed to with 9 of the Election comply requirements *6 Code referred the to as Disclosure (hereinafter Campaign 46, Rev. Stat. ch. 9 — 1 et The Act) (Ill. par. seq.). All-Illinois Democratic Committee an was organization formed Sneider and others for the of by purpose raising to retire the debts incurred money during guberna torial of 3, 1975, Governor Walker. On campaign July Lavelle, Michael E. a member State of Board Elections, was officer to conduct a appointed hearing on the preliminary hearing complaint. 7, 1975,
On case, the in the instant July plaintiffs Walker, Sneider and the Democratic All-Illinois Commit tee, filed a suit to obtain an and a injunction declaratory Lavelle and the State Board of judgment Elections. against The that Public Act 78—918 Rev. complaint alleged Stat. ch. art. which established the State 1A), Elections, Board of was unconstitutional a sought to that effect. it was declaratory judgment Specifically, that the method of members of alleged the State selecting Board Elections and the method which the Board by resolves tie votes are unconstitutional. The also plaintiffs a requested order and temporary restraining injunctive relief the defendants from prohibiting with the proceeding filed the Better Government complaint Association and by further the from other prohibiting conducting any The function. were an ex plaintiffs granted parte tempo order rary defendants from restraining barring proceed with the filed the Better ing Government complaint by dissolved, order a second
Association. After that was The order was issued. filed restraining plaintiffs temporary there on the that a motion for alleging judgment pleadings, to the no of fact with were material issues respect filed The defendants then constitutional issues raised. most of the answer allegations complaint, denying After certain defenses. made by raising plaintiffs the court extensive granted plain- hearing arguments, The court on the tiffs’ motion for pleadings. judgment the method determined that both selecting the method used of Elections and by State Board unconstitutional. Accord- tie votes were Board to resolve the court issued a judgment limiting declaratory ingly, Fur- functions. ministerial Board to the performance from thermore, the Board hearing the court enjoined A Association. filed the Better Government by complaint a filed, the trial court granted notice was appeal order appeal. stay pending the defendants raised The first several issues by this not have did standing bring plaintiffs will not entertain that a court It is well established action. of a statute the constitutionality party challenge its the statute who is not affected aggrieved 44 Ill. defend 2d 215.) Hogsett, operation. (Edelen *7 to that record show in the ants assert that there is nothing the manner were by alleged the any aggrieved plaintiffs the State which created of the statute unconstitutionality the of that In argument, Elections. support to has not threatened that the Board defendants allege and cite of the authority take action plaintiffs against any adminis cannot that a challenge for the party proposition do.” based what agency “might trative action upon to be without We find the defendants’ argument the filed the We need consider complaint merit. only that the to determine Government Association Better unconstitutionality the affected were alleged plaintiffs of the State Board used to select of the method of Elections. that each of That the alleged complaint had violated certain plaintiffs provisions Campaign filed, Disclosure Act. After the was a complaint hearing for examiner was and a date was set a appointed on the matter. If the Board had held a preliminary hearing and found that the had violated hearing plaintiffs any Act, Disclosure the Board provision Campaign would have had a to the violation to statutory duty report the General and to State’s Attorney appropriate 1975, 46, Rev. Stat. ch. Attorney. (Ill. par. 23.) 9 — Board also would have had the to issue an power duty order to take such action as the directing plaintiffs Board deemed to correct the violation. Rev. necessary (Ill. 1975, 46, Stat. ch. Since one of the par. 21.) allegations 9 — made the Better Government Association was that had failed to file a statement plaintiffs organization Act, section 9—3 of the could pursuant plaintiffs have been their if violation were prosecuted criminally 1975, to be “willful.” Rev. Stat. ch. judged par. A has of a 26.) party standing challenge validity 9— statute he if has sustained or if he is in immediate danger some direct as a result enforcement sustaining injury Instruction, the statute. Public v. Board (Cramp U.S. 7 L. Ed. S. Ct. When the Better 275.) Government Association filed its complaint against the State Board of Elections obtained (cid:127)plaintiffs, jurisdic tion to hear the and the charges, danger plaintiffs was immediate.
The defendants that also assert this case is not ripe constitutional because the have adjudication plaintiffs failed to exhaust the administrative remedies available to them. The is based on the contention that if the argument of the Better Government Association were to complaint would proceed hearing, allege plaintiffs All-Illinois Democratic Committee was not a “State committee” and was therefore not political subject rule, Disclosure Act. who is As Campaign general party *8 552 in the seek relief action cannot administrative
aggrieved remedies all administrative first courts without pursuing Co. v. Bell Allphin, available to him. Telephone (Illinois the maintain plaintiffs defendants Ill. 2d 350.) should have their nonconstitutional defense presented of Elections before suit for the State Board filing If relief. the had injunctive declaratory plaintiffs Board, the there would have at a before hearing prevailed If been no need for court the Board had intervention. ruled the constitutional against plaintiffs, questions could then in court. have been presented
We have certain exceptions general recognized remedies rule that a must exhaust administrative party One of before relief. those seeking judicial exceptions Cook, in In v. County this case. Bank Lyons applies between distinction 493, we considered Ill. in in a statute invalid its statute invalid its terms and only need not exhaust There we held that a party application. remedies if constitutional infirm administrative the alleged If a statute is valid on is found in the terms of a statute. ity face is in a its but discriminatory arbitrary applied hand, manner, on other must challenging party remedies before administrative seeking judicial pursue case, the contend that the relief. In the instant plaintiffs for the selection the State Board statute providing If the is Elections is unconstitutional. plaintiffs’ argument our decision affect the wiH jurisdiction accepted, do not attack Board in all matters. The merely plaintiffs them, but rather as it is statute challenge applied we hold that statute in its terms. Consequently, were to exhaust their administrative not plaintiffs required remedies. court erred the trial also maintain that
The defendants on the motion judgment granting plaintiffs’ the defendants filed because the answer pleadings complaint denied the material plaintiffs’ allegations on the A raised certain defenses. judgment pleadings not of exist after fact if law proper only questions have been filed. Champaign (City *9 pleadings of Roseman, for on the A motion 15 Ill. judgment 2d 363.) the of facts well admits the truth by pleaded pleadings Memorial Hos v. MacNeal opposite party. Cunningham 443. Ill. 47 pital, and declara- for
The injunctive plaintiffs’ complaint The constitutional law. of relief raised issues tory only made the of fact material by plaintiffs only allegations filed with the were a had them that been against complaint State of that an actual Board Elections and controversy them The existed between and the defendants. defendants their that a the answer acknowledged against complaint been had filed the Better Government plaintiffs by the of There Association with State Board Elections. was fact, therefore, no of whether not question concerning in fact exist between the actual did controversy that the The defendants assert a and defendants. plaintiffs because on the was five judgment pleadings improper. answer. Those defenses were defenses were in their pleaded to raise the that the did not have standing plaintiffs the failed constitutional questions, plaintiffs them, available to that the exhaust administrative remedies for that no action was not constitutional adjudication, ripe and was raised the justiciable controversy complaint from that the Walker was estopped maintaining plaintiff the these all raise of action. Since defenses only questions law, from the court was not granting judgment precluded on The contend that material the defendants pleadings. fact whether the of was question namely disputed, was a “State All-Illinois Democratic Committee political Act. committee” Disclosure This subject Campaign of have been raised if case is a fact which question may not had been heard The was raised Board. question before the trial court. not The was pleadings issues, since the raised constitutional only plaintiffs rather statute attacked on its face than as was applied no of fact had be resolved plaintiffs, questions before the constitutional reaching questions. contend that the method used to select plaintiffs
the members of the State of Elections violative of V, the Illinois Constitution of 1970. 9(a), The statute for the of the first providing appointment State Board Elections states: appointment “In the the first State Board speaker Elections House and the House Minority designate each nominees to serve Leader shall 1975; ending a term President June Minority desig Senate and the Senate Leader shall each ending nate nominees to serve for a term 1977. June All all subsequent nominees to the first Board and have persons knowledge nominees shall be who extensive of the election of this The Governor shall laws State. one of the nominees of each appoint to the Board *10 subsequent The of legislative officer. terms of all members Board, terms, upon expiration the of the shall be original years. for of member of the Board shall terms Each duly appointed and has serve until his successor is 46, par. 3.) ch. qualified.” (Ill. Rev. Stat. 1A — fill The for vacancies statute providing appointments of new terms on the Board Elections reads as State follows: and for each vacancy to fill each appointment
“An Elections shall be made new term on the Board of State officer designated by legislative from nominees the same for appointment original and in the same manner as the vacancy fill be appointment shall position. that Each position. of that In of the term completion the officer authorized in legislative the years, odd-numbered designate so the designate nominees shall this Article the Governor shall May no 30 and nominees later than If the no than 15. the later appoint members June Repre- of the or the House Leadership of either Senate the manner that changed have in such sentatives shall vacancy to fill a nominees designate officer authorized to officer from the affiliation political party of different position, the the vacated designation for making prior the Representatives, or of of the House other officer Senate be, to fill the the nominees may designate the shall as case 46, par. 5.) (Ill. ch. vacancy.” Rev. Stat. 1A — V, of the Constitution Article section provides: 9(a), and, by and with the
“The Governor shall nominate Senate, majority advice consent of the vote, appoint concurring by record shall members elected other appointment is not all officers whose election provided Any wise for. upon by nomination not acted the receipt the thereof days Senate within 60 session after deemed have and consent shall be received advice Assembly power The have no Senate. General shall appoint to elect or officers the Executive Branch.” V, 9(a).) Const. art. sec. assert that of the State Board of members plaintiffs that,
Elections are executive officers and pursuant statute, in the legislature participates appointment these officers.
In the defendants raise a response, variety argu ments. we of the defendants’ Initially, may dispose contention that the manner of selecting V, Board does not violate article since the 9(a), not in the General as a whole does Assembly participate that actual It is now settled selection process. force to of section with equal 9(a) apply proscriptions indirect the General Assembly through appointments 63 Ill. 159. its leaders. King Lindberg, legislative The defendants also participation allege does not consti- leaders in the selection legislative process tute an “election” or “appointment” of section In accord- members within meaning 9(a). statute, with four leaders each ance legislative *11 individuals, nominate two it is the Governor who members of the Board. While it may actually appoints be true that the Governor retains the technically power members, that is so limited by appoint power find the leaders do statute that we must legislative exercise of the in the de participate appointive facto a view The General has power. Assembly expressed of our In Resolution conclusion. Senate supportive Joint of the General 41, both houses Assembly passed by 918, of Public Act it was enactment subsequent 78— *** “Resolved, the clear intent of the declared: That it is under General Illinois power given Assembly was to the Governor Public Act 78—918 ‘appoint’ between each limited in fact to a selection 2 appointees ***.” We hold leader the General Assembly respective case, to this that section notwithstanding 9(a) applicable of at least nominal the Governor’s retention power Board members. appoint that, even if addition, insist section
In defendants 9(a) rule features barring legislative appointments general 5, III, creates officers, article section executive nonetheless of the State rule in the case to that exception specific III, in section states Elections. Article Board of law shall “The General Assembly by part: pertinent size, manner of selection determine the compensation that, if The defendants of the Board.” argue separate parts conflict, courts should of a constitution to be appear which will render favor a construction every provision that a also maintain The defendants specific operative. over a section will constitutional general prevail provision ex rel. Nauert v. if the two are People citing incompatible, Lewis, Smith, ex rel. Ill. and People Ogilvie Ill. 476. of these no with
We have applicability quarrel the manner in which Rather, we differ as to principles. case. If the terms to this are to be these applied principles the method choosing the statute establishing been had of Elections State Board itself, then we III 5 of article into section incorporated as creating exception would that section regard V, As article section adopted, rule found in 9(a). general no III, sanctions however, section particular not its terms 5 does While selection. method it neither does expressly legislative appointment, prohibit We find is neutral. such, effect As its permit practice.
557 III, to treat article which us no requires incompatibility to the 5, section as proscription fashioning exception in section contained 9(a). against legislative appointment however, of an the existence apparent Assuming, of section we believe that proscription inconsistency, the same rules must be accorded Applying 9(a) primacy. defendants, note that article construction utilized we by III, 5, General section Assembly imposes upon which Board manner determining responsibility are to be selected. Section 5 thus in recognizes the General a wide discretion choose an Assembly To be measured method of selection. against appropriate nevertheless, is the this general recognition authority, found specific prohibition against legislative appointment that, in section It follows if we are 9(a). give logical V, effect to both we must treat article section provisions, otherwise as limitation broad authority 9(a), upon III, in the General section recognized Assembly 5. that,
In related the defendants assert argument, of section notwithstanding language all-encompassing intended to that section was 9(a)’s proscription, apply In the made to its terms. only appointments pursuant case, continue, instant are made defendants appointments III, 5, in accordance with the of article section terms thus are different” from which “genetically appointments V, occur of article section In terms pursuant 9(a). order to answer we first look to the this must argument, V, of article section language 9(a). V, Governor the
Article vests in the 9(a), election or all officers “whose power appoint appoint ment is not otherwise Const. art. for.” (Ill. provided V, that, We sec. have observed in the as to 9(a).) past offices, in the General this statutory language recognizes of selection discretion to methods Assembly great provide other than (People Chicago gubernatorial appointment. 97-98; ex rel. Transit Ill. Authority, People Pollock, Ill. Yet it is axiomatic Peterson v. 361.) that if the could evade the legislature against proscription officers, of executive legislative merely appointment “otherwise for” own its exercise providing] be then the ban would rendered appointive power, Therefore, case completely nugatory. statutory offices, the proscription against legislative appointments *13 where the limits viable alternatives necessarily range method of selection to devise a seeks General Assembly other than gubernatorial appointment. is created where an office follow
The same result must from much is evident So the Constitution. mandated by Evans, Evans, In Ill. 547. close v. People reading which of a statute this court constitutionality upheld appoint vested judges power county language boards. parallel miners’ Analyzing examining 1870, art. Const. Constitution contained in the 1870 V, the court stated: sec. 10), section found in said
“The language or election constitution, ‘and whose appointment and for,’ is is not otherwise plain provided that if indicates by unambiguous, clearly established and office is constitution constitution out in the filling method pointed by office is otherwise than such by appointment which Governor, of the section portion nominate Governor shall ‘the provides of the senate’ consent with the advice and officers, not as etc., would apply shall all appoint office; ***.” to such constitutional (People 556; Evans, 547, Elliott v. University Ill. Illinois, 338, 365 Ill. 348.) “otherwise the Constitution then, pro- where Clearly, of section office within the meaning 9(a), for” an vide^] of the section vesting “the appointive it is only portion” The rendered which is in the Governor inapplicable. power forbidding “the section remainder of that portion” (i.e., of executive legislative continues appointment officers) as a restriction operate upon permissible scope overridden unless the consti- implementing legislation, tutional the office in provision establishing question. seen,
As we have III, article section does not its terms override the proscription against legislative appoint- ment V, contained in Furthermore, article section we 9(a). believe that no intent to override is inferable. The fairly focus the floor debates at the 1970 Constitutional Convention, insofar as III, to article section they pertain concerned the need for a central election and the authority relative merits of reference such an including authority in the Constitution. Little to have been thought appears given manner in which particular Board members be chosen. might Committee on report Suffrage and Constitution no sheds as commit- Amending light, tee voted not to recommend inclusion of a for a provision State Board of Elections in the Constitution. Record of (7 Sixth Illinois Constitutional Proceedings, Convention 2358 cited as (hereinafter in comment- Proceedings).) Finally, III, ing upon the authors of the *14 to the voters stated: explanation “This section is merely new and In self-explanatory.” (7 Proceedings 2693.) contrast, V, intent article section regarding 9(a), manifest. The of the on the Committee Executive report relates that section “carries forward 9(a) existing language which would block effort at selection of an any legislative officer in the executive branch.” (Emphasis added.) (6 To like effect is Proceedings 385-86.) explanation voters, wherein it is stated that section “maintains 9(a) the ban on election or of executive officers appointment the General This ban Assembly.” Proceedings (7 2709.) has been in each constitution of this State incorporated since 1848. Absent affirmative evidence to the contrary, we must that the ban intended was presume here. apply
In so we mindful of are determining, possible ramifications of the defendants’ if position, accepted. III, section as read article
Defendants would seemingly blanche the General carte authority Assembly allowing members. Carried Board choose method selecting any extreme, would defendants’ to its argument permit logical Board, themselves leaders legislative appoint oral for defendants conceded argument as counsel during We need not elaborate trial court. upon before the such which militate considerations against policy Grivetti, rel. v. ex Scott People (See interpretation. Also, would Ill. defendants’ presumably position 2d 156.) to confer allow the General appointive power Assembly we individuals practice and organizations, upon private as an unconstitutional delegation have condemned Rini, 64 Ill. rel. Rudman v. ex power. sovereign (People 98; Ill. 321; Brady, Illinois Farmers’ Institute the notion that Lasher v. 183 Ill. We People, reject 226.) such III, 5, allows the General Assembly section unrestricted authority. of the Board
The concede that members defendants of the executive branch government. are officers are executive of the Board that members allegation curiae officers, however, an amici has been challenged on behalf President brief filed leave of this court Senate and the of the Illinois Leader Minority the Illinois House Leader of and the Minority Speaker brief that the State in their It is alleged Representatives. executive, and judicial of Elections has legislative does not V, section and that article apply functions 9(a), to this situation. on behalf
The first made legislative argument was intended to V, is that article leaders 9(a), officers of those only prohibit legislative appointment officers of executive as in the Illinois Constitution listed Governor, Lieutenant officers are the State. Those State, General, Governor, Comp Secretary Attorney *15 V, We sec. art. Const. 1.) troller and Treasurer. (Ill. V, section Article 9(a), specifically this reject argument. officer of the of any legislative appointment proscribes the executive officers in There are executive branch. course, those listed in other than branch government, V, article section 1. maintain that the Board leaders also legislative or duties which are quasi- some quasi-legislative
performs not be of the Board should and that members judicial that some of the executive officers. We considered agree functions, functions are in as those Board’s prescribed or Code, considered Election be may quasi-legislative Nevertheless, whether an determining quasi-judicial. “[i]n Branch,’ we officeholder is an ‘officer of the Executive consideration to his or must give greatest predominant v. 63 Ill. After a duties.” Lindberg, 2d (King 159.) primary review of the character and of the functions scope assigned Board, we have concluded that the duties of its are in nature. members executive Section 1A—1 primarily of the Election Code reads: “A State Board of Elections is established which shall have hereby general supervision over the administration election registration State, shall laws such throughout only perform or be duties as are hereafter law.” may prescribed in we declared that Analogously, King primary “[t]he board is to function of the permanent Fair] [State Fair, the State and this is clearly supervise operate function.” Ill. While executive (63 163.) members exercise certain may quasi-legislative quasi- functions, we these functions as incidental judicial regard to the Board’s executive responsibilities.
In we held unconstitutional King Lindberg, statute which allowed the of State Fair Board appointment However, leaders the General Assembly. Board, unlike the State Fair which was a creature of purely of Elections is an State Board legislature, agency III, whose establishment was mandated 5, of the in we took 1970 Constitution. Thus while King cognizance objectives legislature’s establishing *16 562 Board, in the instant case it becomes
State Fair important to look the intentions of the drafters of our to constitu- A of the convention debates evidences the tion. reading central concern of the that be strong authority delegates of created to administer the election laws this State. statement Illustrative of this concern is the following by to the convention the who Keegan, presented Delegate III, 5: article section “We which later became provision bent to no election need a central authority, particular view, of the decisions point implement policy partisan of the General We also Assembly.” (2 Proceedings 1056.) that, note in the directed that only colloquy specifically debates, the the subject during Keegan Delegate expressed belief that the board would be a proposed part executive branch of 5 4300. government. Proceedings
We feel that a broad of section of interpretation 9(a) V article would effectuate best the intentions of the framers of our of constitution. The task the General towas the constitutional directive Assembly implement embodied III, in article 5. In our view, section that directive envisioned the establishment of a execu- strong tive we hold that members agency. Accordingly, State Board Elections are “officers Executive Branch” within the V, article section meaning 9(a).
As the method which the Board regards resolves tie by votes, the relevant is section 1A—7.1 of statutory provision Election Code Rev. Stat. ch. par. which 7.1), provides: 1A —
“In the event there a tie vote of the membership respect State Board of Elections with to proposed action of respect any the Board with issue requiring Board, by a vote the clerk of the upon any certify direction members who that there is a deadlock, by name of shall select lot one of the members of the Board. The member-so selected shall be from on disqualified voting particular proposition remaining qualified proceed members shall to decide proposition. any proposition The vote on decided pursuant procedure of tie-breaking this Section any policy determined nor shall shall not be reconsidered by thereby except for months unanimous be revised ” vote of the of the State Board. The contend that the tie-breaker provision plaintiffs it due of law because causes decisions violates process be made lot or chance in some cases. plaintiffs the mandate of the tie-breaker contravenes also maintain Constitution III, 5, of the Illinois that of members of o shall have a majority political party “[n] III, sec. 5. the Board.” Ill. Const. art. dministrative as well
It is as beyond dispute “[a] are the fundamental judicial governed proceedings of due law.” *17 requirements principles process Board, 450, 454; 37 Ill. v. Air Pollution Control (Brown Com., In such v. 44 Ill. Ellis Illinois Commerce 2d 438.) he of this constitutional proceedings, object safeguard “[t] is to the and of a preserve personal property rights person the of action officials.” v. against arbitrary public (People Belcastro, 144, Ill. “Due of law 147.) process a fair and before a fair and presupposes impartial hearing tribunal.” impartial Department (Smith Registration Education, the of a Ill. Yet guarantee 341.) be a if the fair and would mockery hearing impartial which the at its decision were tribunal arrived by process itself arbitrary capricious. at in this case is to be
The tie-breaker issue procedure vote of the whenever there is a “tie membership employed *** or with to action with respect proposed a vote the Board” issue by respect any requiring two Rev. Stat. ch. 7.1), any par. 1A — of a deadlock. members Necessarily certify presence actions the are those included within tie breaker’s scope of individual and issues which depend. rights parties upon utilized, result, breaker, when causes As a if the tie manner, the decisions to be arrived at an arbitrary violative due statute must then be considered process. does estimation, In our tie-breaker scheme cause the decisions rest basis. upon arbitrary Operation tie breaker results in the of one Board disqualification member whose name is selected lot. The by remaining then the members to decide the “proceed proposition,” that each member will adhere to logical expectation being former his with two the three now members position, Since the resolution the majority. constituting the of the member controversy depends upon identity eliminated ultimate outcome rests not lottery, deliberation, reasoned but chance. To upon upon highlight scheme, and reinforce character arbitrary Board, section 1A—7.1 further prohibits except vote, unanimous from vote any reconsidering revising determined to the tie for breaker any policy pursuant months, of nine of the merits or the period irrespective sentiments of the majority.
We realize that are not remaining from their views inflexibly altering precluded prior upon Nevertheless, their it disqualification colleague. strains that shift of would credulity suggest any position occur, be the fact that the tie breaker comes likely given into when the to reach operation only inability agreement a deadlock. We also concur with defendants produces the tie not breaker does cause decisions to be made overtly chance, case, would as be if the through example, matter at issue were decided of a coin. flip *18 However, outcome, seen, the we since ultimate as have is the of the member whose name is dependent upon identity lot, who selected from thereby disqualified issue, at defendants voting upon proposition urge upon us a distinction without a difference.
Plaintiffs also contend that the tie-breaker provision III, 5, of that the mandate section contravenes of of shall have a members majority political party “[n]o 1970, III, Board.” Const. art. sec. We are not 5.) with defendants’ that the tie breaker impressed argument III, not does run afoul of article since of of the Board is left unaffected. membership Operation from one member removes breaker effectively the tie two of If in vote question. Board, for purposes the same political belong members three remaining have been 5, will III, section of article the mandate party, violated. court the circuit of affirm the judgment
We therefore the statutory holds that itas insofar County Sangamon of the State to select members used method are statute of said the tie-breaker Elections and provision members, that the we While recognize unconstitutional. dea selected, have constituted even improperly though unconstitutional, selection Board, we their since find facto which court’s order the trial we that reverse portion need However, cognizant in office. them continues for response, legislative allow sufficient opportunity United States the recent decision guided by Valeo, 1, 144, U.S. in Buckley Court Supreme 659, 759, Ct. we stay 96 S. 46 L. Ed. 2d not to extend beyond for a of our effect judgment period 15, 1977. March in and reversed part. in part
Affirmed MR. SCHAEFER took no in the part JUSTICE consideration or decision of this case.
MR. UNDERWOOD, in part concurring JUSTICE dissenting part:
IWhile concur with the court’s that conclusion method of State Board nominating Elections is I do not constitutionally impermissible, agree that the “tie-breaker” the due violates procedure process of either guarantees the Federal or State constitutions. The court cites no its authority holding the clerk of the Board select lot the permitting name of one Board member who shall then be disqualified vote on the deadlocked it to be proposition, leaving members, resolved is a denial of due remaining *19 This side of the to those on the losing proposition. process of the deadlocked because resolution is to be so said manner,” without in an is arrived at “arbitrary question deliberation,” “the of individual “reasoned rights But it this is true. are affected thereby. Certainly parties” a own constitution no Our provides means unique. of decennial for legis method similar resolving questions neither the Assembly when lative General reapportionment nor the Redistricting Legislative subsequently appointed this court In that event can reach Commission agreement. of not the same of two the names “shall submit persons, State,” who thereafter of to the Secretary political party, of one the name random selection draw shall “publicly the ninth member to serve as the two of persons IV, sec. That art. Const. 3(b).) Commission.” (Ill. is, indistinguishable which in judgment, my provision, of Election dead for from resolving provision v. Grivetti locks, ex rel. Scott (1971), People was upheld on constitutional challenges equal 50 Ill. against The rights and first amendment grounds. protection an individual’s time right are also affected every individuals 1975, ch. lot Rev. Stat. office is decided to public selected when identity persons 27) par. 23 — mention is determined service by lottery, military case, of no I am aware a few illustrative examples. only held these none, which has lottery cites majority a denial of to involve those methods resolving problems in most their use results unhappy due even though process for the “losers.” consequences as a these lotteries tolerates Our government system are because they means of questions resolving important or individuals to the interested to be fairest believed have been unable agree. or those who involved groups number the same who receive For those candidates no other there be office practical votes for a may public a coin than tie other by tossing means breaking here that It is from a hat. a name suggested drawing member, of a fifth appointment “independent,” means of deadlocks. Board would be viable avoiding that individuals of reasonable exist intelligence Assuming *20 who are who have been so uncon- “independent,” truly cerned with the of their officials and qualifications public of their as to have never voted functioning government in a election or one or the other of the primary supported well the General major Assembly might political parties, served have interest best thought by leaving public rather chance the resolution deadlocked issues than the vote of individual. so sterile an politically
Nor do I of a Board that random agree disqualification on member a deadlocked issue unbalances political in the Board members sense that representation III, such imbalance is in article proscribed provision 5, o shall have political party majority “[n] the Board.” The temporary disqualification of a Board member on a does not question particular I also that the statute remove him from the Board. note the occurrence of vacancies Rev. Stat. contemplates (Ill. 46, ch. neither certainly par. 14), 1A — en constitutional drafters nor the General Assembly visioned that the Board would cease in the functioning event of Rev. illness death of a member Stat. ch. par. 7). 1A —
If the is to be “tie-breaker” validity provision all, I it considered at would hold valid.