Bridges v. State Board of Elections ( 2006 )

Docket No. 102489.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
HON. GEORGE BRIDGES et al., Appellees, v. THE STATE
BOARD OF ELECTIONS et al., Appellants.
Opinion filed September 26, 2006.
JUSTICE FITZGERALD delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
On April 14, 2006, the Sangamon County circuit court declared
Public Act 94–727, which amended the Circuit Courts Act (705 ILCS
35/1 et seq. (West 2004)), unconstitutional. The State Board of
Elections and its members (SBE) filed a direct appeal. See 134 Ill. 2d
R. 302(a)(1). For the reasons that follow, we reverse the judgment of
the circuit court.
BACKGROUND
The Nineteenth Judicial Circuit currently covers Lake County and
McHenry County. See 705 ILCS 35/1 (West 2002). There are 16
judgeships in that circuit: seven at-large judgeships elected by voters
in both counties (see 705 ILCS 35/2, 2h(f) (West 2002)), six resident
judgeships elected by voters in Lake County, and three resident
judgeships elected by voters in McHenry County (see 705 ILCS
35/2f–1(c) (West 2004)).
The Ninety-Third General Assembly sought to change the
composition of the Nineteenth circuit. Senate Bill 75 split the
Nineteenth circuit into the new Nineteenth circuit, covering Lake
County, and the new Twenty-Second circuit, covering McHenry
County. The bill also added five subcircuit judgeships in the new
Nineteenth circuit and one at-large judgeship in the new Twenty-
Second circuit. Thus, Senate Bill 75 left the new Nineteenth and
Twenty-Second circuits with a total of 22 judges, 6 more than the
current Nineteenth circuit.
The House offered an amendment to this bill. Like Senate Bill 75,
the House amendment split the Nineteenth circuit into the new
Nineteenth and Twenty-Second circuits, and it created subcircuits in
both. The House, however, deleted the portion of Senate Bill 75
adding the six judgeships, and instead directed 11 of the 16 judgeships
in the current Nineteenth circuit to the new Nineteenth circuit and the
remaining five judgeships to the new Twenty-Second circuit. As
amended, Senate Bill 75 passed the House and the Senate, Governor
Blagojevich signed it, and it became Public Act 93–541 on August 18,
2003.
While Senate Bill 75 was pending, the Administrative Office of the
Illinois Courts (AOIC) submitted fiscal and judicial notes regarding
the House amendment. The notes read, in part: “Currently, the 19th
Circuit has seven at-large judges. A total of 12 at-large circuit judges
would be elected in the new 19th and 22nd Circuits, a net increase in
five judges.” The AOIC’s notes were based upon its reading of section
2 of the Circuit Courts Act, which ties the number of at-large
judgeships in a circuit to the population of the circuit: circuits other
than Cook County with a population of more than 475,000 have eight
at-large judgeships; circuits other than Cook County with a population
of more than 270,000 have four at-large judgeships. 705 ILCS 35/2
(West 2004). The new Nineteenth circuit fell into the first category,
and the new Twenty-Second circuit fell into the second category.
Because Public Act 93–541 allocated five of the current Nineteenth
circuit’s seven at-large judgeships to the new Nineteenth circuit, the
AOIC advised that that circuit was entitled to three additional at-large
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judgeships. Because the Act allocated the other two at-large
judgeships to the new Twenty-Second circuit, the AOIC advised that
that circuit was entitled to two additional at-large judgeships.
On June 13, 2005, the SBE announced these five additional at-
large judgeships would appear on the March 2006 primary election
ballot. The new Nineteenth circuit judgeships were designated
“Additional Judgeships A, B and C,” and the new Twenty-Second
circuit judgeships were designated as “Additional Judgeships A and
B.” On December 5, 2005, the SBE then posted a notice entitled
“JUDICIAL OFFICES THAT WILL APPEAR ON THE MARCH
21, 2006 PRIMARY ELECTION BALLOT” on its website. The
notice listed various vacancies, including the additional judgeships in
the new Nineteenth and Twenty-Second circuits, but stated:
“The Board has received information from the Speaker of the
Illinois House and the President of the Illinois Senate that a
bill will be called in January which would eliminate the full
circuit additional judgeships in the newly created 19th and
22nd circuits. The Board will accept nomination papers during
the period of December 12-19, 2005 for these judgeships if
candidates choose to file, but please note that if such
legislation is enacted by January 19, 2006, the Board will not
certify the judgeships for the March 21, 2006 primary election
ballot. Please note that if the legislation is enacted subsequent
to the SBE certification date, the Board will amend the
certification to remove those judgeships.”
The General Assembly considered Senate Bill 1681, which
addressed those additional judgeships, during the 2005 fall veto
session. This bill failed to receive the supermajority required for it to
become effective immediately, so the House Speaker moved the bill
to another reading and later reconsideration. Because this bill was not
enacted by January 19, 2006, the SBE certified the additional
judgeships to appear on the March 2006 primary election ballot.
Weeks later, Senate Bill 1681 passed the House and the Senate.
Governor Blagojevich signed it, and it became Public Act 94–727 on
February 14, 2006, more than a month before the primary election.
Public Act 94–727 provided that the number of at-large judgeships
in the new Nineteenth and Twenty-Second circuits shall be the number
set forth in Public Act 93–541–five in the new Nineteenth circuit and
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two in the new Twenty-Second circuit–plus the judgeships which the
SBE had certified as Additional Judgeship A in the Nineteenth circuit
and Additional Judgeship A in the Twenty-Second circuit. See Public
Act 94–727, eff. February 14, 2006 (adding 705 ILCS 35/2f–1(b–5)).
Public Act 94–727 also amended section 2 of the Circuit Courts Act:
“[Section 2] shall not apply to the determination of the number of
circuit judgeships in the 19th and 22nd judicial circuits.” Public Act
94–727, eff. February 14, 2006 (amending 705 ILCS 35/2).
The next day, February 15, 2006, the candidates for the new
judgeships1 filed a complaint against the SBE, its members, the Lake
County clerk, and the McHenry County clerk in the Sangamon County
circuit court. The plaintiffs sought a declaratory judgment that Public
Act 94–727 was unconstitutional, an injunction preventing the SBE
from decertifying the five additional judgeships, and an order
commanding the county clerks to count the primary election votes for
these judgeships. On February 17, 2006, the trial court entered an
order prohibiting the SBE from decertifying candidates for the five
additional judgeships. The SBE filed a motion to dismiss the plaintiffs’
complaint, and the plaintiffs filed a motion for summary judgment.
After a hearing on these motions, the trial court asked the parties
to submit draft orders. On April 14, 2006, the trial court signed the
order submitted by the plaintiffs, denying the SBE’s motion, and
granting the plaintiffs’ motion. This order stated that Public Act
93–541, coupled with section 2 of the Circuit Courts Act, created five
new at-large judgeships–three for the new Nineteenth circuit and two
for the new Twenty-Second circuit. The order then summarily
concluded, without any legal analysis, that Public Act 94–727 violated
article VI, sections 12(a), 12(c), and 12(e), of the Illinois Constitution
(Ill. Const. 1970, art. VI, §§12(a), (c), (e)); article II, section 1, of the
Illinois Constitution (Ill. Const. 1970, art. II, §1); article IV, section
1
The candidates, and plaintiffs, are Nineteenth Circuit Associate Judge
George Bridges, Nineteenth Circuit Associate Judge Valerie Ceckowski,
Nineteenth Circuit McHenry County Resident Judge Michael Chmiel,
Nineteenth Circuit Associate Judge Wallace Dunn, Nineteenth Circuit
Associate Judge Gordon Graham, Nineteenth Circuit Associate Judge John
Phillips, Nineteenth Circuit Associate Judge Theodore Potkonjak, and
Stephen Haugh.
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13, of the Illinois Constitution (Ill. Const. 1970, art. IV, §13); and
article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I,
§2). The order finally stated that because Public Act 94–727 was not
enacted until after the SBE had certified the candidates for the March
2006 primary election, the SBE was estopped from removing their
names or the offices they seek from the November 2006 general
election ballot.
The SBE appealed the trial court’s order directly to this court. We
allowed the plaintiffs’ motion for an expedited briefing and hearing
schedule.
ANALYSIS
All statutes carry a strong presumption of constitutionality. People
v. Botruff, 212 Ill. 2d 166, 178 (2004), citing People v. Maness, 191
Ill. 2d 478, 483 (2000). To overcome this presumption, a party
challenging a statute must clearly establish that it violates the
constitution. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 290
(2003). This court will affirm a statute’s constitutionality if the statute
is reasonably capable of such an interpretation. See People v. Einoder,
209 Ill. 2d 443, 450 (2004). Our review proceeds de novo. Arvia v.
Madigan, 209 Ill. 2d 520, 536 (2004).
Though the constitutionality of Public Act 94–727 is before us, the
SBE initially addresses Public Act 93–541. The SBE contends that
Public Act 93–541 did not create five additional judgeships for the
new Nineteenth and Twenty-Second circuits, and Public Act 94–727
necessarily passes constitutional muster because it merely clarified the
legislature’s intent.
The plaintiffs respond that Public Act 93–541 did create five
additional judgeships, albeit indirectly. According to the plaintiffs,
Public Act 93–541 did not place a ceiling on the number of at-large
judges in the new Nineteenth and Twenty-Second circuits, but section
2 of the Circuit Courts Act did provide a floor. Section 2 established
the minimum number of at-large judgeships for each circuit, based on
population. The plaintiffs argue that when Public Act 93–541
allocated the seven at-large judgeships in the current Nineteenth
circuit to the new Nineteenth and Twenty-Second circuits, it also
dropped the new circuits below the number of at-large judgeships
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mandated by section 2. The new circuits were, consequently, entitled
to more judgeships.
We need not decide this disagreement, because even if Public Act
93–541 created additional judgeships, Public Act 94–727 clearly
eliminated them, and clearly resolved any confusion about the effect
of section 2 on the new circuits. Public Act 94–727 provided that the
number of at-large judgeships in the new Nineteenth and Twenty-
Second circuits shall be the number assigned to those circuits by
Public Act 93–541–five and two, respectively–plus one additional at-
large judgeship in each circuit. Public Act 94–727, eff. February 14,
2006 (adding 705 ILCS 35/2f–1(b–5)). The Act also amended section
2 to provide that it “shall not apply to the determination of the number
of circuit judgeships in the 19th and 22nd judicial circuits.” Public Act
94–727, eff. February 14, 2006 (amending 705 ILCS 35/2).
The General Assembly apparently felt that the SBE had
misinterpreted Public Act 93–541, and Public Act 94–727 clarified the
legislature’s intent. Our inquiry turns to whether the legislature could
correct the SBE without violating the Illinois Constitution.
The plaintiffs argue that Public Act 94–727 violates the separation
of powers clause of the Illinois Constitution. See Ill. Const. 1970, art.
II, §1; see also Walker v. State Board of Elections, 65 Ill. 2d 543, 562
(1976) (holding that the SBE is part of the executive branch). Public
Act 94–727, the plaintiffs claim, is “an attack” on the SBE. The
Election Code provides that “the State Board of Elections shall
determine whether the General Assembly has created new judgeships
which are to be filled at the next general election” (10 ILCS
5/25–3(b)(4) (West 2004)), and the plaintiffs assert that the SBE
made this determination twice when it certified the plaintiffs as
candidates for the additional judgeships. According to the plaintiffs,
the legislature cannot certify or decertify candidates, and cannot
determine who is on or off the ballot.
The plaintiffs fail to grasp that, while the SBE has the authority to
determine whether a statute created new judgeships, the General
Assembly has the authority to create such a statute in the first
instance. Article VI, section 7(b), of the Illinois Constitution provides:
“Each Judicial Circuit shall have one Circuit Court with such number
of Circuit Judges as provided by law.” Ill. Const. 1970, art. VI, §7(b).
The General Assembly has plenary power to determine the number of
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circuit judges; creating additional judgeships is “an act exclusively
within the province of the legislature pursuant to our constitution.”
McDunn v. Williams, 156 Ill. 2d 288, 306-07 (1993). Any
infringement on this power not only violates the clear language of
article VI, section 7, but also threatens the separation of powers.
McDunn, 156 Ill. 2d at 307; see generally People v. Walker, 119 Ill.
2d 465, 473 (1988). And because only the legislature may appropriate
revenues for state expenditures, there are no funds available to pay for
judgeships that the legislature did not create. McDunn, 156 Ill. 2d at
308, citing Ill. Const. 1970, art. VIII, §2(b).
The plaintiffs concede that the General Assembly has the
constitutional authority to determine the number of judges in each
circuit, but insists the General Assembly established this number with
finality in section 2. Apparently, the plaintiffs do not believe that
plenary power to determine the number of judges includes the power
to reconsider because they contend that the General Assembly may
not eliminate judgeships created by prior legislation. The plaintiffs rely
on article VI, section 12(a), of the Illinois Constitution:
“Supreme, Appellate and Circuit Judges shall be
nominated at primary elections or by petition. Judges shall be
elected at general or judicial elections as the General Assembly
shall provide by law. A person eligible for the office of Judge
may cause his name to appear on the ballot as a candidate for
Judge at the primary and at the general or judicial elections by
submitting petitions. The General Assembly shall prescribe by
law the requirements for petitions.” Ill. Const. 1970, art. VI,
§12(a).
As the SBE correctly observes, a candidate’s right to seek ballot
access for a particular judgeship assumes that the judgeship exists.
Here, the General Assembly eliminated three of the additional
judgeships certified by the SBE, and section 12(a) provides no right
to appear on the ballot to fill nonexistent judgeships. Further, article
VI, section 12(e), of the Constitution provides that the legislature may
reduce the number of judges, provided it does not prejudice the right
of any judge to seek retention. See Ill. Const. 1970, art. VI, §12(e)
(“A reduction shall become effective when a vacancy occurs in the
affected unit”); see also Hirschfield v. Barrett, 40 Ill. 2d 224 (1968).
Public Act 94–727 eliminated three judgeships, none of which, of
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course, were occupied. The legislature could act without affecting any
judge’s right to seek retention. Sections 7(b) and 12(e) of article VI,
by their express terms, permit this legislative action.
The plaintiffs assert that this result would establish a dangerous
precedent because the legislature then could effectively control who
holds office. According to the plaintiffs, if the legislature has the
power to abolish judgeships that have been twice certified by the SBE,
then it has seized the power to choose candidates, and therefore
judges. The plaintiffs again ignore the fact that it is the General
Assembly, not the SBE, which decides to create judgeships. The SBE
announced five additional judgeships in the new Nineteenth and
Twenty-Second circuits, and the legislature eliminated them, prior to
any 2006 election.
The plaintiffs argue that Public Act 94–727 violates both the
special legislation clause (Ill. Const. 1970, art. IV, §13) and the equal
protection clause (Ill. Const. 1970, art. I, §2) of our state constitution.
The plaintiffs essentially contend that Public Act 94–727 either treats
citizens in other circuits with similar populations better than citizens
in the new Nineteenth and Twenty-Second circuits or treats citizens
in the new Nineteenth and Twenty-Second circuits worse than citizens
in other circuits with similar populations. The new Nineteenth circuit,
state the plaintiffs, is in the same population classification as the
Twelfth and the Eighteenth circuits. Under section 2 of the Act, all
such circuits are entitled to eight at-large judges. The Twelfth and
Eighteenth circuits each have eight at-large judges; pursuant to Public
Act 94–727, the new Nineteenth circuit would have only five at-large
judges. The Twenty-Second circuit is in the same population
classification as the Third and the Seventeenth circuits. Under section
2, all such circuits are entitled to four at-large judges; pursuant to
Public Act 94–727, the new Twenty-Second circuit has only two.
According to the plaintiffs, Lake County and McHenry County rank
number one and three respectively in new filings per judge for 2004;
these are the third and fourth fastest growing counties in the state.
The new circuits need more judges.2
2
The plaintiffs acknowledge that Public Act 94–727 added an at-large
judgeship in the new Nineteenth circuit and an at-large judgeship in the
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The General Assembly has plenary power to determine the
number of judges in each circuit. It exercised this power more than 50
years ago when it enacted the precursor to section 2 and put in place
a default population rule. See Ill. Rev. Stat. 1951, ch. 37, par. 72.2.
Since 1975, the parameters of the default rule have remained the
same, despite obvious growth in certain circuits. Compare Ill. Rev.
Stat. 1975, ch. 37, par. 72.2 with 705 ILCS 35/2 (West 2004). The
legislature has freely departed from the default rule with impunity,
adding judgeships in subsequent acts as the need for them arose and
the resources to fund them appeared. See, e.g., 705 ILCS 35/2c, 2d,
2g, 2h, 2i, 2j (West 2004). Likewise, section 2 and its default rule was
amended by Public Act 94–727. The legislature chose to determine
the number of circuit judges in a manner besides population; this was
the legislature’s prerogative, and it was not limited by either the
special legislation clause or the equal protection clause. See
Hirschfield, 40 Ill. 2d at 233 (holding that the special legislation
clause may not be used to upset legislation enacted in compliance with
the Judicial Article of the state constitution). The plaintiffs’ argument
fails.
The plaintiffs finally argue that Public Act 94–727 violates the due
process clause of our state constitution. See Ill. Const. 1970, art. I,
§2. According to the plaintiffs, the legislature unconstitutionally
changed the rules in the middle of the game. That is, the plaintiffs
relied on the SBE’s certification of the additional judgeships to their
detriment, incurring obligations, conducting their campaigns, and
somehow obtaining a vested interest in additional judgeships that the
legislature never intended to create.
The plaintiffs had no such vested interest, merely “unilateral
expectations” in the face of strong indications that the additional
judgeships would be subject to further legislative action. See Big Sky
Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d 221, 242
(2005). The due process clause does not protect such expectations.
Twenty-Second circuit. Thus, the plaintiffs contend that the actual number
of judgeships in dispute is three. The plaintiffs do not mention that before
Public Act 94–727 became law, Public Act 93–1102 also added a subcircuit
judgeship in the Twenty-Second circuit. See Pub. Act 93–1102, eff. April 7,
2005 (amending 705 ILCS 35/2f–5(a)).
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Again, the plaintiffs’ argument fails. We note that our conclusion here
is limited to the facts of this case. We express no opinion whether our
conclusion would have been different if the legislature had failed to act
before the March 2006 primary election.
Because we conclude that the trial court erred in declaring Public
Act 94–727 unconstitutional, we need not address the SBE’s
severability argument.
CONCLUSION
For the reasons that we have stated, the judgment of the circuit
court is reversed. The mandate shall issue forthwith.
Reversed;
mandate issued forthwith.
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