Municipal Officers Electoral Board of the Village of Elk Grove Village ( 2021 )

Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Supreme Court Date: 2021.02.09
10:56:55 -06'00'
Burns v. Municipal Officers Electoral Board of the Village of Elk Grove Village,
2020 IL 125714Caption in Supreme TIMOTHY BURNS, Appellee, v. THE MUNICIPAL OFFICERS
Court: ELECTORAL BOARD OF THE VILLAGE OF ELK GROVE
VILLAGE et al. (Benjamin R. Lee, Appellant).
Docket No. 125714
Filed February 26, 2020
Decision Under Appeal from the Circuit Court of Cook County; the Hon. Maureen O.
Review Hannon, Judge, presiding.
Judgment Circuit court judgment reversed in part and vacated in part.
Board decision affirmed.
Counsel on Pericles C. Abbasi, of Chicago, for appellant.
Appeal
Burton S. Odelson and Ross D. Secler, of Odelson & Sterk, Ltd., of
Evergreen Park for appellee.
Justices JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Burke and Justices Thomas, Kilbride, Garman, and
Karmeier concurred in the judgment and opinion.
Justice Neville took no part in the decision.
OPINION
¶1 In this case we are asked to consider the validity of a referendum seeking to impose term
limits on the elected offices of village president and village trustee in Elk Grove Village. The
village electoral board concluded that the referendum violated section 3.1-10-17 of the Illinois
Municipal Code. Pub. Act 101-114, § 5 (eff. July 19, 2019) (adding 65 ILCS 5/3.1-10-17). On
judicial review, the circuit court of Cook County reversed, holding that section 3.1-10-17 was
unconstitutional and ordering that the term-limits referendum appear on the March 17, 2020,
general primary ballot. 1 The matter was appealed directly to this court pursuant to Illinois
Supreme Court Rule 302(a) (eff. Oct. 4, 2011). For the following reasons, we reverse the
judgment of the circuit court in part, vacate in part, and affirm the decision of the electoral
board.
¶2 BACKGROUND
¶3 On July 8, 2019, Timothy Burns, the principal proponent of a term-limits referendum, filed
a petition seeking to place the question of whether to impose term limits on the elected offices
of village president and village trustee in Elk Grove Village on the March 17, 2020, general
primary election ballot. The proposed question asked:
“Shall the terms of office for those persons seeking nomination or election to, or who
are holding the office of, Village President (Mayor) and Village trustee in the Village
of Elk Grove Village, be limited such that, at the February 23, 2021 Consolidated
Primary Election and all subsequent elections, no person shall be eligible to seek
nomination or election to, or to hold, elected office in the Village of Elk Grove Village
where that person has held the same elected office for two (2) or more consecutive,
four (4) year terms?”
¶4 Benjamin Lee, a registered voter of the village, filed an objection, relying on section 3.1-
10-17 of the Municipal Code. Lee argued that section provides that any term-limit referendum
must be prospective only—that is, a referendum can only consider terms in office served after
the passage of the referendum to determine a candidate’s eligibility. Lee maintained that the
referendum proposed by Burns violated that section because it calculated and counted prior
service as village president or village trustee before the passage of the referendum in
determining eligibility to seek another term in that office. In response to the objection, Burns
maintained that section 3.1-10-17 was unconstitutional, facially and as applied to his petition
for referendum.
1
The election held on the third Tuesday in March is the “general primary election,” pursuant to the
Election Code. 10 ILCS 5/2A-1.1 (West 2018).
-2-
¶5 The electoral board agreed with Lee, 2 sustaining the objection to the petition on the
grounds that the petition conflicted with section 3.1-10-17. The board found that the statute
allowed term limits to be prospective only, that the referendum was not prospective in its
consideration of prior service, and that the limited scope of the board’s authority required it to
accept the validity of the statute without considering whether it was unconstitutional.
Accordingly, the board ordered that the referendum should not appear on the ballot in the
March 17, 2020, general primary election.
¶6 Burns sought judicial review in the circuit court of Cook County and requested that the
court consider the constitutionality of the statute. The circuit court reversed the decision of the
electoral board, holding that section 3.1-10-17 was unconstitutional on its face and as applied.
¶7 The circuit court found that the General Assembly has the constitutional authority to
expressly restrict the power of home rule municipalities to ensure that term limits can only be
instituted prospectively. However, the court ruled that section 3.1-10-17 unlawfully applied
retroactively to term limits referenda that had already been approved by the voters in other
municipalities since November 2016. The circuit court further found that the unlawful
provisions could not be severed from the rest of the statute.
¶8 Thereafter, Lee filed a notice of appeal directly to this court pursuant to Rule 302(a)(1). Ill.
S. Ct. R. 302(a)(1) (eff. Oct. 4, 2011). This court granted the parties’ agreed motion to expedite
the appeal and set an expedited briefing schedule without oral argument. Ill. S. Ct. R. 311(b)
(eff. July 1, 2018).
¶9 ANALYSIS
¶ 10 When an election board’s decision is challenged in the circuit court pursuant to section 10-
10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2018)), the proceeding is one of
administrative review. Accordingly, it is the election board’s decision that is ultimately before
us, and not the decision of the circuit court. However, the election board has no authority to
declare a statute unconstitutional or to question the validity of the statute. Goodman v. Ward,
241 Ill. 2d 398, 411 (2011). Thus, it is the circuit court’s declaration that section 3.1-10-17 is
unconstitutional that warrants this court’s direct review. The constitutionality of a statute
involves a question of law, making our review de novo. Bartlow v. Costigan, 2014 IL 115152,
¶ 17.
¶ 11 Section 3.1-10-17 provides as follows:
“(a) The imposition of term limits by referendum, ordinance, or otherwise must be
prospective. Elective office held prior to the effective date of any term limit imposed
by a municipality shall not prohibit a person otherwise eligible from running for or
holding elective office in that municipality. Term limits imposed in a manner
2
The electoral board agreed with Lee on remand from the circuit court, after initially dismissing
Lee’s objection as “premature.” Lee had filed his objection on October 22, and the electoral board
reasoned that he had to wait until December 17. See 10 ILCS 5/10-8 (West 2018) (requiring objections
to petitions for referendum to be “duly made in writing within 5 business days after the last day for
filing the *** petition for a public question”). After the electoral board found for Lee on remand, the
circuit court ruled on Burns’s counterpetition in an order captioned Burns v. Municipal Officers
Electoral Board, No. 19-COEL-37 (Cir. Ct. Cook County, Jan. 15, 2020).
-3-
inconsistent with this Section remain valid prospectively, but are invalid as they apply
to service prior to the enactment of the term limits.
(b) The imposition of term limits by referendum, ordinance, or otherwise shall only
apply to terms for the same office or that category of municipal office. Term limits
imposed in a manner inconsistent with this subsection are invalid as they apply to
service in other categories of municipal offices.
(c) A home rule unit may not regulate term limits in a manner inconsistent with this
Section. This Section is a limitation under subsection (i) of Section 6 of Article VII of
the Illinois Constitution on the concurrent exercise by home rule units of powers and
functions exercised by the State.
(d) This Section applies to all term limits imposed by a municipality by referendum,
ordinance, or otherwise passed on or after November 8, 2016.” Pub. Act 101-114, § 5
(eff. July 19, 2019) (adding 65 ILCS 5/3.1-10-17).
¶ 12 There is no dispute here that, if valid, the term-limits statute would bar the referendum
question from the ballot. However, Burns contends that section 3.1-10-17 unlawfully deprives
the voters of the village and the voters of other municipalities their state constitutional right to
choose by referendum the terms and manner of selecting their elected municipal officers. He
maintains that the statute is unconstitutional both facially and as applied to this case.
¶ 13 A facial challenge to a statute is the most difficult challenge to mount because a statute will
be deemed facially invalid only if no set of circumstances exists under which the statute would
be valid. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305-06 (2008). An as-applied
challenge requires a showing that the statute violates the constitution as it applies to the facts
and circumstances of the challenging party. City of Chicago v. Alexander, 2017 IL 120350,
¶ 27.
¶ 14 Under either, we are mindful that statutes enjoy a strong presumption of constitutionality.
Oswald v. Hamer, 2018 IL 122203, ¶ 29. “The party challenging the validity of a statute has
the burden of clearly establishing the alleged constitutional infirmity.” Id. If reasonably
possible, it is the court’s duty to construe the statute in a way that will uphold its
constitutionality, and any doubt in the statute’s construction will be resolved in favor of the
statute’s validity. Id.¶ 15 Contrary to Burns’s assertion, we agree with the circuit court that the General Assembly
has the authority to legislate in this area prospectively because it has expressly indicated its
intent to do so.
¶ 16 In order to understand Burns’s argument that the legislature exceeded its authority, we must
first consider the relationship between the State and the units of local government under the
1970 Illinois Constitution. Generally, every subject within the scope of governmental affairs
rests in the General Assembly, unless inhibited by some constitutional provision. See Ill. Const.
1970, art. II, § 2; Ill. Const. 1970, art. IV, § 1 (the General Assembly is vested with all
legislative power by the constitution). Article VII, section 6, of the constitution provides home
rule units with certain powers with respect to local concerns. Ill. Const. 1970, art. VII, § 6(a)
(“a home rule unit may exercise any power and perform any function pertaining to its
government”).
¶ 17 Relevant to this referendum, Elk Grove Village is a home rule municipality. As such, it is
specifically governed by article VII, section 6(f), of the Illinois Constitution, which addresses
-4-
a home rule municipality’s manner of selection of officers and implementation of terms of
office. That section empowers a home rule municipality to “provide for its officers, their
manner of selection and terms of office only as approved by referendum or as otherwise
authorized by law.” Ill. Const. 1970, art. VII, § 6(f). Thus, under section 6(f), in the absence
of a legislative grant of authority, a home rule municipality is authorized to “chang[e] the
eligibility requirements for those candidates running [for office]” by limiting the officeholder’s
term via a referendum approved by the voters. Johnson v. Ames, 2016 IL 121563, ¶ 19.
¶ 18 Under the same constitutional framework, however, the General Assembly may choose to
“preempt the exercise of a municipality’s home rule powers by expressly limiting that
authority.” Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 31 (citing
Schillerstrom Homes, Inc. v. City of Naperville, 198 Ill. 2d 281, 287 (2001)). Under article VII,
section 6(h), the General Assembly “may provide specifically by law for the exclusive exercise
by the State of any power or function of a home rule unit.” Ill. Const. 1970, art. VII, § 6(h).
¶ 19 If the General Assembly has not expressly preempted an area and taken exclusive control
over it, it may, instead, limit the power of home rule units to act concurrently with the State. If
the General Assembly wishes to limit the power of home rule units in this way, it must also do
so with express language to that effect. Ill. Const. 1970, art. VII, § 6(i); 5 ILCS 70/7 (West
2018) (providing that, if the legislature seeks to limit the exercise of home rule powers, the
statute must contain an express statement to that effect).
¶ 20 Here, section 3.1-10-17 of the Municipal Code indeed contains an express limitation on
the power of a home rule unit to regulate matters involving term limits. Subsection (c)
specifically provides that
“[a] home rule unit may not regulate term limits in a manner inconsistent with this
Section. This Section is a limitation under subsection (i) of Section 6 of Article VII of
the Illinois Constitution on the concurrent exercise by home rule units of powers and
functions exercised by the State.” Pub. Act 101-114, § 5 (eff. July 19, 2019) (adding
65 ILCS 5/3.1-10-17(c)).
¶ 21 Thus, while the General Assembly has not exclusively preempted a home rule unit from
exercising its home rule powers with respect to term limits, it has chosen to place a limitation
on the manner in which term limits are calculated in the next election and subsequent elections.
By enacting section 3.1-10-17, the General Assembly demonstrated its intent that any term-
limit referendum must be applied prospectively, because only terms served after the passage
of the referendum may be considered to determine a candidate’s eligibility. The General
Assembly properly followed the required procedures and asserted its proper authority under
the Illinois Constitution to limit a function of a home rule unit. Burns’s novel reading of section
6(f) would read sections 6(h) and 6(i) out of the constitution. The General Assembly may
always limit the powers of a home rule unit under sections 6(h) and 6(i) as long as it does so
expressly.
¶ 22 Accordingly, consistent with the circuit court’s findings, this case presents a circumstance
under which the statute can be validly applied. Accordingly, Burns’s challenge must fail, both
as applied and facially. In re M.T., 221 Ill. 2d 517, 537 (2006) (“[S]o long as there exists a
situation in which a statute could be validly applied, a facial challenge must fail.” (Internal
quotation marks omitted.)).
-5-
¶ 23 Nevertheless, Burns additionally argues that the statute is otherwise invalid because it
retroactively applies to other municipalities that have already passed term limits by
referendum, nullifying their voters’ constitutional rights. The circuit court agreed, basing its
ruling on what it perceived was a problem in the manner of the statute’s “retroactive
application” in the last sentence in subsection (a) and in subsection (d).
¶ 24 The last sentence in subsection (a) provides that “[t]erm limits imposed in a manner
inconsistent with this Section remain valid prospectively, but are invalid as they apply to
service prior to the enactment of the term limits.” Pub. Act 101-114, § 5 (eff. July 19, 2019)
(adding 65 ILCS 5/3.1-10-17(a)). Subsection (d) is an express temporal limitation on
subsection (a), providing that “[t]his Section applies to all term limits imposed by a
municipality by referendum, ordinance, or otherwise passed on or after November 8, 2016.”
Id. (adding 65 ILCS 5/3.1-10-17(d)).
¶ 25 To the extent that these provisions refer to term limits that have already been imposed, they
are not implicated here. No term limit has yet been imposed by Elk Grove Village. Thus, Burns
is asking us to consider whether provisions in the statute that are not applicable here have any
unlawful retroactive impact as applied to voters’ constitutional rights in other municipalities.
¶ 26 As we have explained, “ ‘[a] fundamental rule of constitutional law is that a court will not
determine the constitutionality of a provision of a statute which does not affect the parties to
the cause under consideration.’ ” Flynn v. Ryan, 199 Ill. 2d 430, 438-39 (2002) (quoting
Chicago Teachers Union, Local 1 v. Board of Education of the City of Chicago, 189 Ill. 2d
200, 206 (2000)); People v. Mosley, 2015 IL 115872, ¶ 11 (“courts do not rule on the
constitutionality of a statute where its provisions do not affect the parties” (citing Klein v.
Department of Registration & Education, 412 Ill. 75, 87-88 (1952))). Whether the statute
implicates voters’ constitutional rights as applied to term limit referenda previously passed in
other municipalities does not affect Elk Grove Village or its voters. Accordingly, we find the
trial court erred in considering those provisions.
¶ 27 CONCLUSION
¶ 28 For all of the foregoing reasons, we find the relevant provisions of section 3.1-10-17 of the
Municipal Code to be constitutional both facially and as applied to the proposed referendum
in Elk Grove Village. Accordingly, we reverse the judgment of the circuit court, vacate that
portion of the court’s ruling as to provisions that do not affect the parties, and affirm the
decision of the electoral board, which found the proposed referendum invalid.
¶ 29 Circuit court judgment reversed in part and vacated in part.
¶ 30 Board decision affirmed.
¶ 31 JUSTICE NEVILLE took no part in the consideration or decision of this case.
-6-