O'Brien v. White ( 2006 )

Docket No. 102077.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
JOAN MARGARET O=BRIEN et al., Appellees, v. JESSE
WHITE,
Secretary of State of Illinois, et al., Appellants.
Opinion filed March 6, 2006.
CHIEF JUSTICE THOMAS delivered the judgment of the
court, with opinion.
Justices Freeman, McMorrow, Fitzgerald, Kilbride, Garman,
and Karmeier concurred in the judgment and opinion.
OPINION
At issue is the constitutionality of section 7AB1 of the
Election Code (10 ILCS 5/7AB1 (West 2004)), which sets a
deadline by which an elected judge who wishes to be retained
in office must file a declaration of candidacy to succeed himself
or herself.
BACKGROUND
Plaintiff Joan Margaret O=Brien was elected judge of the
circuit court of Cook County in November 2000. Wishing to run
for retention in the November 2006 general election, O=Brien
filed with the Secretary of State a declaration of candidacy to
succeed herself. She filed the declaration on December 6,
2005, which was one day after the deadline set by section
7AB1 of the Election Code. That section provides that the
declaration must be filed Aon or before the first Monday in
December before the general election preceding the expiration
of [the judge=s] term of office.@ 10 ILCS 5/7AB1 (West 2004).
The Secretary refused to accept the declaration and, on
December 8, 2005, certified to the State Board of Elections that
O=Brien had not timely filed a retention declaration. The State
Board then certified that O=Brien=s position would become
vacant in December 2006.
O=Brien then filed in the circuit court of Cook County a
verified complaint for mandamus and other relief against
defendants Jesse White, in his official capacity as Secretary of
State; the State Board of Elections and all of its members in
their official capacities; David D. Orr, in his official capacity as
Cook County clerk; and the Chicago board of election
commissioners. The complaint alleged that the deadline set by
section 7AB1 is unconstitutional because it conflicts with a
provision of the Illinois Constitution that allows a judge to file a
declaration of candidacy to succeed himself or herself A[n]ot
less than six months before the general election preceding the
expiration of his term of office.@ Ill. Const. 1970, art. VI, '12(d).
Because O=Brien filed her declaration of candidacy within this
time frame, she asserted that the Secretary of State was
required to accept it. Count I sought writs of mandamus
requiring (1) the Secretary of State to accept O=Brien=s
declaration of candidacy and to amend his certification to show
O=Brien as eligible to run for retention; (2) the State Board of
Elections and its members to accept the amended certification
nunc pro tunc and not to accept petitions from candidates
seeking to fill a putative O=Brien vacancy; and (3) commanding
the Cook County clerk and the Chicago board of election
commissioners to place the question of O=Brien=s retention on
the November 7, 2006, general election ballot. Counts II and III
sought similar relief through declaratory judgments and
injunctions.
O=Brien then moved for a temporary restraining order
(TRO). Her TRO motion incorporated the allegations of her
complaint. In the motion, O=Brien argued that she had
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established a clearly ascertainable right upon which relief could
be granted; that she would suffer irreparable injury if the relief
was not granted; that she had no adequate remedy at law; and
that she was likely to succeed on the merits. She gave three
reasons why she was likely to succeed on the merits: (1) the
statute expressly conflicted with a constitutional provision
addressing the same subject; (2) the statute violated
separation of powers principles; and (3) the statute was
directory, not mandatory.
The circuit court allowed two other judges to intervene in
the action. Intervening plaintiff Carole Kamin Bellows was
appointed to serve as a Cook County circuit court judge in
November 1986. She was elected in 1988 and thereafter
retained on two occasions. She was eligible to seek retention
again in November 2006, and she filed her declaration of
candidacy to succeed herself on December 15, 2005. The
Secretary of State refused to accept the declaration, and the
State Board certified the position as open and subject to
nomination at the March 2006 primary election. Intervening
plaintiff James M. Varga was elected as a Cook County circuit
court judge in November 1994. He was retained in November
2000 and was eligible to run for retention again in November
2006. On December 8, 2005, he verbally notified the Secretary
of State that he intended to seek retention and also sent a copy
of the declaration via facsimile machine. He sent his
declaration by Federal Express to the Secretary of State that
day, but it was not received until December 12, 2005. The
Secretary of State refused to accept the declaration, and the
State Board certified Varga=s position as becoming vacant in
December 2006.
On December 20, 2005, the circuit court granted plaintiffs=
motion for a temporary restraining order. The defendants did
not dispute that plaintiffs had ascertainable rights in need of
protection, lacked an adequate remedy at law, and would
suffer irreparable harm if no relief was granted. The court thus
confined its analysis to whether plaintiffs had established a
likelihood of success on the merits. The court concluded that
plaintiffs had established a likelihood of success on their claim
that section 7AB1 was unconstitutional under article VI, section
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12(d), of the Illinois Constitution. Accordingly, the court granted
a TRO enjoining the Secretary of State from certifying to the
State Board of Elections that vacancies existed in the offices of
circuit court judge currently occupied by plaintiffs. The court
also enjoined the State Board of Elections from accepting
nominating petitions from any candidate seeking to be placed
on the March 2006 primary election ballot to succeed to the
offices of circuit court judge currently held by plaintiffs.
Defendants petitioned for review of the TRO under
Supreme Court Rule 307(d) (188 Ill. 2d R. 307(d)). The
appellate court reversed. O=Brien v. White, No. 1B05B4043
(2006). The appellate court noted that the purpose of a
temporary restraining order is to maintain the status quo until
the case is disposed of on the merits. Here, the circuit court=s
order had altered, rather than maintained, the status quo
because the Secretary had already refused to accept the
declarations of candidacy and had certified the vacancies to
the State Board of Elections. The appellate court also held that
plaintiffs had failed to demonstrate irreparable harm if the State
Board accepted nominating petitions from other candidates,
reasoning that, if plaintiffs ultimately prevailed in this suit, the
effect would be that no vacancies had ever existed and that no
one could be elected to their positions.
Plaintiffs then moved for summary judgment, incorporating
by reference all of the arguments they made in previous filings.
The trial court granted the motion. The trial court disagreed
with plaintiffs= arguments that section 7AB1 was merely
directory and that it violated separation of powers principles.
The trial court agreed with plaintiffs, however, that section
7AB1 was unconstitutional under article VI, section 12(d). The
circuit court noted that the constitution created two schemes for
electing judges. The first involves the initial election process,
and the constitution gives the General Assembly the authority
to determine the content of nominating petitions and whether
judges will be elected at general or judicial elections. See Ill.
Const. 1970, art. VI, '12(a). The constitution further allows the
General Assembly to determine how vacancies in the offices of
supreme, appellate, or circuit court judge shall be filled. If the
General Assembly does not do so, vacancies are filled by the
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supreme court. Ill. Const. 1970, art. VI, '12(c).
The second election scheme is a nonpartisan retention
scheme for elected judges. Here, the constitution is specific in
its requirements for how the retention process should be
carried out. Ill. Const. 1970, art. VI, '12(d). One of the
provisions of section 12(d) is that the judge may file for
retention A[n]ot less than six months before the general election
preceding the expiration of his term of office.@ Ill. Const. 1970,
art. VI, '12(d). The circuit court concluded that section 12(d)
limited the General Assembly=s role in the retention process,
and no authority was given to the General Assembly to alter
the time limits set forth in the constitution. Thus, the General
Assembly had exceeded its authority in setting a deadline
different from the one established by the constitution. The
circuit court rejected defendants= argument that section 12(d)
could be interpreted to mean that the General Assembly can
set a different deadline by which judges must file for retention,
as long as that deadline is not less than six months before the
general election. The circuit court entered an order (1)
declaring section 7AB1 unconstitutional; (2) issuing a writ of
mandamus commanding the Secretary of State to accept
plaintiffs= declarations of candidacy to succeed themselves and
to certify to the State Board of Elections that they are
candidates for retention in the 2006 general election; and (3)
permanently enjoining the State Board of Elections from
certifying any candidates to fill the offices of judge held by
plaintiffs. Pursuant to Supreme Court Rule 302(a) (134 Ill. 2d
R. 302(a)), the Secretary of State, the State Board of Elections,
and the members of the State Board of Elections, 1 appealed
directly to this court.
1
Defendants State Board of Elections and all of its members do not take
a position on the legal arguments set forth in defendants= brief, but request
the benefit of any order or judgment entered in favor of defendants.
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ANALYSIS
Article VI, section 12(d), of the Illinois Constitution
addresses the procedure for judicial retention elections:
ANot less than six months before the general election
preceding the expiration of his term of office, a
Supreme, Appellate or Circuit Judge who has been
elected to that office may file in the office of the
Secretary of State a declaration of candidacy to
succeed himself. The Secretary of State, not less than
63 days before the election, shall certify the Judge=s
candidacy to the proper election officials. The names of
Judges seeking retention shall be submitted to the
electors, separately and without party designation, on
the sole question whether each Judge shall be retained
in office for another term. The retention elections shall
be conducted at general elections in the appropriate
Judicial District, for Supreme and Appellate Judges, and
in the circuit for Circuit Judges. The affirmative vote of
three-fifths of the electors voting on the question shall
elect the Judge to the office for a term commencing on
the first Monday in December following his election.@ Ill.
Const. 1970, art. VI, '12(d).
In 1977, the legislature enacted its own provision
addressing the same subject. Section 7AB1 of the Election
Code provides as follows:
AAny Supreme, Appellate or Circuit Judge who has
been elected to that office and who seeks to be retained
in that office under subsection (d) of Section 12 of
Article VI of the Constitution shall file a declaration of
candidacy to succeed himself in the office of the
Secretary of State on or before the first Monday in
December before the general election preceding the
expiration of his term of office. Within 3 business days
thereafter, the Secretary of State shall certify to the
State Board of Elections the names of all incumbent
judges who were eligible to stand for retention at the
next general election but failed to timely file a
declaration of candidacy to succeed themselves in
office or, having timely filed such a declaration,
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withdrew it. The State Board of Elections may rely upon
the certification from the Secretary of State (a) to
determine when vacancies in judicial office exist and (b)
to determine the judicial positions for which elections will
be held. The Secretary of State, not less than 63 days
before the election, shall certify the Judge=s candidacy
to the proper election officials. The names of Judges
seeking retention shall be submitted to the electors,
separately and without party designation, on the sole
question whether each Judge shall be retained in office
for another term. The retention elections shall be
conducted at general elections in the appropriate
Judicial District, for Supreme and Appellate Judges, and
in the circuit for Circuit Judges. The affirmative vote of
three-fifths of the electors voting on the question shall
elect the Judge to the office for a term commencing on
the first Monday in December following his election.@ 10
ILCS 5/7AB1 (West 2004).
Section 7AB1 was added by Public Act 80B1057 (Pub. Act
80B1057, eff. November 23, 1977). Public Act 80B1057 began
as House Bill 585. During the Senate debates on House Bill
585, the bill=s Senate sponsor, Senator Knuppel, explained that
the bill was designed to address the problem of judges who
waited until after the primary election was over to decide that
they were not running for retention. 80th Ill. Gen. Assem.,
Senate Proceedings, June 26, 1977, at 194 (statements of
Senator Knuppel). In that situation, the supreme court would
appoint someone to fill the vacancy, and that person would
hold the seat until the next election, two years later. When
another senator raised the language of article VI, section 12(d),
of the constitution, Senator Knuppel responded:
AThis is the language as you=ve pointed out, of the
Constitution. However, in commenting on that Judge
Roy O. Gully says this language seems to indicate that
a judge has until the first Tuesday in May. However, the
practice is a bad one as is now exercised and since it
only seems to be constitutionally prohibited, I think this
is good legislation and we should attempt it.@ 80th Ill.
Gen. Assem., Senate Proceedings, June 28, 1977, at
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395 (statements of Senator Knuppel).
After the bill was passed, Senator Berning stated for the record
that the Senate had Aestablished an interesting precedent.
Violating absolutely the word of the Constitution.@ 80th Ill. Gen.
Assem., Senate Proceedings, June 28, 1977, at 396
(statements of Senator Berning).
Then-Governor James R. Thompson vetoed the bill and
sent a letter to the General Assembly explaining his vote.
Governor Thompson explained that a statute setting a deadline
for judges to file for retention by the first Monday in December
preceding the election would be in express conflict with article
VI, section 12(d), of the constitution, which gives judges until
six months before the election to decide whether to run for
retention. Governor Thompson recognized the legislature=s
intent in enacting section 7AB1, but found it irrelevant in light of
the express language of the constitution:
AClearly, the sponsor=s intent is to ensure that where
an incumbent does not file for retention, persons who
may wish to become candidates for the seat may file for
nomination in the primary election. However, a judge
who did not, according to the provision of this bill, file for
retention by the first Monday in December, but decided
at some later point to stand for retention while still within
the time frame enunciated in the Constitution, would be
totally within his right. A statute cannot attempt to take
away a right so unequivocally mandated by the
Constitution.@
The Senate overrode the Governor=s veto and enacted section
7AB1. Senator Knuppel acknowledged that the legislation might
Acreate a court case@ to determine its validity. 80th Ill. Gen.
Assem., Senate Proceedings, November 22, 1977, at 37
(statements of Senator Knuppel). Twenty-nine years later, that
day has arrived.
Before reaching the constitutional issue, this court must
address plaintiffs= argument that the deadline set forth in
section 7AB1 is directory rather than mandatory. Courts
consider the constitutionality of statutes only when necessary
to decide the case. Vuagniaux v. Department of Professional
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Regulation, 208 Ill. 2d 173, 184 (2003). Plaintiffs contend that,
if this court properly construes the time limit in section 7AB1 as
merely directory, then it can affirm the circuit court=s decision
without reaching the constitutional questions. According to
plaintiffs, the deadline set forth in section 7AB1 must be read
as directory because that section does not specify a penalty for
a judge=s failure to comply. Moreover, plaintiffs note that, as
their declarations were filed shortly after the deadline and
before the time for other candidates to file for the vacancies, no
one would have been prejudiced if the Secretary of State had
certified their candidacies.
This court recently noted that the mandatory-directory
dichotomy Aconcerns the consequences of a failure to fulfill an
obligation.@ People v. Robinson, 217 Ill. 2d 43, 52 (2005). In
other words, the question is whether A >the failure to comply
with a particular procedural step will or will not have the effect
of invalidating the governmental action to which the procedural
requirement relates.= @ Robinson, 217 Ill. 2d at 51-52, quoting
Morris v. County of Marin, 18 Cal. 3d 901, 908, 559 P.2d 606,
610-11, 136 Cal. Rptr. 251, 255-56 (1977). A strong indication
that the legislature intended a provision to be mandatory is if
the statute prescribes a consequence for failing to obey the
statutory provision. Robinson, 217 Ill. 2d at 54. In the election
context this court has stated that A >[w]hether a statute is
mandatory or directory does not depend upon its form but upon
the legislative intention to be ascertained from a consideration
of the entire act, its nature, its object, and the consequences
which would result from construing it one way or the other.= @
People ex rel. Meyer v. Kerner, 35 Ill. 2d 33, 39 (1966), quoting
People ex rel. Agnew v. Graham, 267 Ill. 426, 436 (1915).
Whether a statute is mandatory or directory is an issue of law
that is reviewed de novo. Robinson, 217 Ill. 2d at 54.
The circuit court correctly determined that the filing deadline
in section 7AB1 is mandatory. That section clearly prescribes a
consequence for a judge=s failure to meet the deadline:
AWithin 3 business days [of the deadline], the Secretary
of State shall certify to the State Board of Elections the
names of all incumbent judges who were eligible to
stand for retention at the next general election but failed
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to timely file a declaration of candidacy to succeed
themselves in office or, having timely filed such a
declaration, withdrew it. The State Board of Elections
may rely upon the certification from the Secretary of
State (a) to determine when vacancies in judicial office
exist and (b) to determine the judicial positions for which
elections will be held.@ 10 ILCS 5/7AB1 (West 2004).
Plaintiffs rely on several cases in which provisions of the
Election Code were held to be directory rather than mandatory.
Kerner, 35 Ill. 2d 33; People ex rel. Harris v. Powell, 35 Ill. 2d
384 (1966); People ex rel. Bell v. Powell, 35 Ill. 2d 381 (1966);
McNamara v. Oak Lawn Municipal Officers Electoral Board,
356 Ill. App. 3d 961 (2005); Courtney v. County Officers
Electoral Board, 314 Ill. App. 3d 870 (2000); Ballentine v.
Bardwell, 132 Ill. App. 3d 1033 (1985). As defendants point
out, however, the statutory provisions at issue in these cases
did not provide penalties for failure to comply. By contrast,
when an Election Code provision specifies the consequences
of noncompliance, the provision has been held to be
mandatory. See, e.g., Marquez v. Aurora Board of Election
Commissioners, 357 Ill. App. 3d 187 (2005); Purnell v.
Municipal Officers Electoral Board, 275 Ill. App. 3d 1038
(1995); Simmons v. DuBose, 142 Ill. App. 3d 1077 (1986).
Section 7AB1 clearly specifies the consequences of a judge=s
failure to comply with the deadline, and thus it must be given a
mandatory reading.
The next issue is whether this mandatory deadline is
constitutional. Statutes are presumed to be constitutional, and
the burden of rebutting that presumption is on the party
challenging the validity of the statute. Illinois State Chamber of
Commerce v. Filan, 216 Ill. 2d 653, 661 (2005). Additionally,
this court has a duty to uphold the constitutionality of a statute
when reasonably possible. City of Chicago v. Morales, 177 Ill.
2d 440, 448 (1997). The constitutionality of a statute is a
question of law that is reviewed de novo. People ex rel.
Sherman v. Cryns, 203 Ill. 2d 264, 290 (2003).
The thrust of defendants= argument is that section 7AB1 is
not unconstitutional because article VI, section 12(d), of the
constitution reasonably may be interpreted two different ways.
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Thus, according to defendants, this constitutional provision is
ambiguous and this court must look to interpretive aids to
determine its meaning. Defendants acknowledge that the first
sentence of section 12(d) can be read as establishing a
deadline by which judges must file their retention declarations.
However, defendants assert that it is equally reasonable to
construe this passage as merely establishing a constitutional
floorBthe date after which an incumbent judge may not file a
retention declarationBbut not as limiting the authority of the
General Assembly to set another deadline for those
declarations, as long as that deadline is not less than six
months before the general election. Here, the legislature set a
deadline of the first Monday in the December preceding the
general election, which is 11 months prior to the general
election. Because this is not less than six months before the
general election, defendants assert that the statute comports
with the constitution.
The first sentence of section 12(d) is not ambiguous.
Rather, it means exactly what it says: ANot less than six months
before the general election preceding the expiration of his term
of office, a Supreme, Appellate or Circuit Judge who has been
elected to that office may file in the office of the Secretary of
State a declaration of candidacy to succeed himself.@ Ill. Const.
1970, art. VI, '12(d). If the judge does so, A[t]he Secretary of
State, not less than 63 days before the election, shall certify
the Judge=s candidacy to the proper election officials.@ Ill.
Const. 1970, art. VI, '12(d). This section clearly and
unambiguously sets a deadline for retention declarations of six
months before the general election. Plaintiffs met this deadline,
and the constitution requires the Secretary of State to certify
their candidacies to the proper election officials.
Defendants are incorrect in suggesting that they have
offered an equally reasonable construction of the constitution.
Defendants interpret the first sentence of section 12(d) as if it
read Athe General Assembly may set a deadline for a Supreme,
Appellate or Circuit judge to file in the office of Secretary of
State a declaration of candidacy to succeed himself, and this
deadline must be not less than six months before the general
election.@ This is obviously not what the provision says. The
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first sentence of section 12(d) is directed at the judge, not the
General Assembly, and it gives the judge the right to file his or
her declaration not less than six months before the general
election. Section 7AB1, which provides a different deadline, is
in direct conflict with this provision and is therefore
unconstitutional.
Because we find that article VI, section 12(d), is not
ambiguous, we need not consider the interpretive aids on
which defendants rely. We note briefly, however, that none of
these matters help defendants= argument. Defendants rely on
the broad authority to regulate elections granted to the General
Assembly in articles III and VI of the constitution. Defendants
are correct that the constitution grants the General Assembly a
significant role in the election process. This is irrelevant to the
matter at hand, however, because the constitution sets forth
very specific requirements for the retention process, and the
General Assembly cannot enact legislation that conflicts with
specific provisions of the constitution, unless the constitution
specifically grants the legislature that authority. See, e.g., Thies
v. State Board of Elections, 124 Ill. 2d 317, 325-26 (1988)
(where constitution sets forth qualifications for office,
legislature cannot change or add to those qualifications unless
the constitution gives it that power). There is no provision in the
constitution giving the legislature the authority to change the
retention requirements established by the constitution.
Defendants further rely on the history and debates of the
Constitutional Convention. Defendants note that the question
of whether judges would be appointed or elected was
submitted to the voters as a constitutional referendum. The
people voted for the election of judges, and the framers
adopted a system in which judges would be nominated at
primary elections or by petitions, elected at the general
election, and subjected to retention votes thereafter. According
to defendants, this shows that the framers intended for a broad
application of the franchise to judicial elections and that judges
should be elected by the people whenever possible. When an
eligible judge waits until after the primary and then does not file
a retention declaration, however, the vacancy would be filled
by appointment and the unelected judge could hold the seat
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until the next election, a period of two years. In this situation,
defendants contend that the people=s right to select judgesBa
right granted by the constitutionBwill have been undermined.
The problem with this argument is that, these broad policy
goals notwithstanding, article VI, section 12(d), of the
constitution sets forth very specific requirements for retention
elections, including a deadline for judges to file their retention
declarations, and this election scheme was ratified by the
people. Moreover, the people do not lose their right to fill the
judicial office in question. An appointment to fill a vacancy is
merely temporary. Finally, the framers clearly contemplated the
situation in which a vacancy is filled by appointment for two
years. Article VI, '12(c), provides, in part, that A[a] person
appointed to fill a vacancy less than 60 days prior to the next
primary election to nominate Judges shall serve until the
vacancy is filled at the second general or judicial election
following such appointment.@ It is difficult to see how the
constitution can be undermined by itself.
Defendants also rely on the legislative intent behind section
7AB1. Defendants cite portions of the Senate debates on
House Bill 585 to show that the legislature wanted to ensure
the constitutional mandate of elected judges by moving up the
deadline for retention declarations. This would ensure that the
electorate filled vacant judgeships immediately, rather than
having to wait until two-year supreme court appointments had
run their course. Defendants assert that this was a valid
exercise of the General Assembly=s power under articles III and
VI to provide by law for the filling of judicial vacancies as well
as an exercise of its power to establish the manner of judicial
elections. The problem with this argument is that the General
Assembly enacted legislation that directly conflicted with the
constitution. Moreover, the legislative debates cited by
defendants show that the legislators knew that there was a
constitutional problem and that they were likely creating a court
case.
Defendants further contend that their interpretation is
supported by the change in language from the 1870
Constitution, as amended by the Judicial Article of 1964, and
the 1970 Constitution. The 1870 Constitution, as amended by
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the Judicial Article of 1964, also required a judge to file a
declaration of candidacy to succeed himself or herself A[n]ot
less than six months prior to the general election next
preceding the expiration of his term of office.@ Ill. Const. 1870,
art. VI (1964) '11. However, it further provided that A[a]ny
judge who does not file a declaration within the time herein
specified, or, having filed, fails of reelection, shall vacate his
office at the expiration of his term.@ (Emphasis added.) Ill.
Const. 1870, art. VI (1964), '11. Defendants argue that it was
this latter clause that gave judges the absolute right to wait
until six months before the election to file their retention
declarations, and the deletion of this language in the 1970
Constitution evinces an intent to remove that right and make
retention subject to further time restrictions as the General
Assembly may provide by law. With all due respect to
defendants, it was not this latter clause that gave judges the
right to file not less than six months before the general election,
but rather the clause that provided that A[n]ot less than six
months prior to the general election next preceding the
expiration of his term of office, any judge previously elected
may file in the office of the Secretary of State a declaration of
candidacy to succeed himself.@ Ill. Const. 1870, art. VI (1964),
'11. This language, and the right it confers, was retained in the
1970 Constitution. The circuit court correctly found that the
change in language was merely a stylistic change, not affecting
substance. It appears that this language was just removed as
unnecessary. Section 12(b) of article VI provides that A[t]he
office of a Judge shall be vacant upon his death, resignation,
retirement, removal, or upon the conclusion of his term without
retention in office.@ (Emphasis added.) Ill. Const. 1970, art. VI,
'12(b). A judge who either is not retained or is not eligible for
retention because he or she fails to file his or her declaration of
candidacy on time will conclude his or her term in office without
retention and his or her office will be vacant. Thus, the
language that was deleted was unnecessary surplusage.
In sum, article VI, section 12(d), of the Illinois Constitution is
not ambiguous. It plainly provides that judges have the right to
file retention declarations not less than six months before the
general election preceding the expiration of their terms in
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office. Section 7AB1 of the Election Code, which attempts to
change this deadline, is facially unconstitutional. Our
determination that section 7AB1 is unconstitutional on this
basis renders unnecessary a discussion of plaintiffs= separation
of powers argument.
The judgment of the circuit court of Cook County is
affirmed. Additionally, because the judicial offices in question
are not vacant, it is hereby ordered that defendants Cook
County clerk and Chicago board of election commissioners
shall neither tally any votes in the March 2006 primary election
for these offices nor certify any results of the March 2006
primary election for these offices.
Affirmed.
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