Buchanan v. Jones

2021 IL App (1st) 210169
FIFTH DIVISION
Opinion filed: March 9, 2021
No. 1-21-0169
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
YARA BUCHANAN, ) Appeal from the
) Circuit Court of
Petitioner-Appellant, ) Cook County
)
)
v. ) No. 2021 CH 00478
)
SHERMAN JONES, in his capacity as Candidate; THE )
MUNICIPAL OFFICERS ELECTORAL BOARD FOR )
THE VILLAGE OF BROADVIEW, sitting as the duly )
constituted electoral board to hear and pass upon )
objections to the nominating papers of the candidates for )
the office of mayor of The Village of Broadview for the )
April 6, 2021 consolidated election; and its members, )
MICHAEL DORF, ELLEN RAYMOND, and ALFRED )
SWANSON; and the HONORABLE KAREN )
YARBROUGH, in her capacity as the Cook County )
Clerk, ) Honorable
) LaGuina Clay-Herron,
Respondents-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
Presiding Justice Delort and Justice Rochford concurred in the judgment and opinion.
OPINION
No. 1-21-0169
¶1 Yara Buchanan appeals from an order of the Circuit Court of Cook County that affirmed a
decision of the Municipal Officers Electoral Board for the Village of Broadview (hereinafter
referred to as the Board), dismissing her objections to the nominating papers of Sherman Jones for
nomination to the office of President of the Village of Broadview (hereinafter referred to as the
Village) at the April 6, 2021 Consolidated Election. For the reasons that follow, we affirm the
judgment of the circuit court.
¶2 In this appeal, we are tasked with determining the constitutionality of section 3.1-10-17 of
the Illinois Municipal Code (65 ILCS 5/3.1-10-17 (West 2018)) as applied to a referendum adopted
by the voters of the Village limiting the terms of office for individuals elected to the office of
village president.
¶3 On November 8, 2016, a majority of the voters of the Village voting in the general election
approved the following referendum (hereinafter referred to as the 2016 Referendum):
“Shall the terms of office of those persons elected to the office of Village President
in the Village of Broadview, at the April 4, 2017 consolidated election, and each election
for said office thereafter, be limited such that no person shall be eligible to seek election to
or hold the office of Village President where that person has been previously elected to the
office of Village President of the Village of Broadview for two (2) consecutive full four
(4) year terms?”
¶4 The Illinois Municipal Code was amended effective July 19, 2019, adding section 3.1-10-
17, which provides, in relevant part, that:
“(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
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elective office in that municipality. Term 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.
(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.
***
(d) This Section applies to all term limits imposed by a municipality by referendum,
ordinance, or otherwise passed on or after November 8, 2016.” 65 ILCS 5/3.1-10-17 (West
2018).
¶5 Jones filed nomination papers for nomination to the office of President of the Village at
the April 6, 2021 Consolidated Election. Buchanan, a registered voter in the Village, filed
objections to Jones’s nomination papers with the Board. Her objection petition listed a number of
objections to Jones’s nominating papers. However, Buchanan withdrew all of her objections with
the exception of one. In the remaining objection, Buchanan argued that, pursuant to the 2016
Referendum, Jones was not eligible to seek election to or hold the office of village president,
having been previously elected to that office for two consecutive full four-year terms prior to the
passage of the 2016 Referendum, and as a consequence, Jones’s name should not appear on the
April 6, 2021 Consolidated Election ballot.
¶6 On January 26, 2021, the Board issued a unanimous decision, dismissing Buchanan’s
objection and ordering Jones’s name to appear on the Village’s April 6, 2021 Consolidated
Election ballot. The Board found that section 3.1-10-17 of the Illinois Municipal Code applied to
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candidates seeking election at the Village’s April 6, 2021 Consolidated Election, and, therefore,
any terms of office as village president that Jones served prior to November 8, 2016, cannot be
included in determining his eligibility to run for the office of village president in the April 6, 2021
Consolidated Election.
¶7 Buchanan filed a timely petition for judicial review of the Board’s decision in the circuit
court pursuant to section 10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2018). On
February 19, 2021, the circuit court entered an order affirming the Board’s decision, finding that
section 3.1-10-17 of the Illinois Municipal Code is constitutional. On February 22, 2021, Buchanan
filed a notice of appeal and a motion requesting this court to expedite the appeal. That motion was
granted on the same day.
¶8 When a decision of an electoral board is challenged in the circuit court, the proceeding is
akin to one for administrative review. Burns v. The Municipal Officers Election Board of the
Village of Elk Grove Village, 2020 IL 125714, ¶ 10. On review, it is ordinarily the electoral board’s
decision that is before us, not the circuit court’s decision. Buchanan acknowledged before the
circuit court that “the Board correctly decided the case based upon the facts, law, issues, and
arguments they could consider.” However, when, as in this case, the constitutionality of a statute
is at issue, a question beyond the jurisdiction of an electoral board, it is the circuit court’s resolution
of the issue that we review. Id. The constitutionality of a statute is a question of law, and our review
is de novo. Id.
¶9 In Burns, the supreme court was 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 (hereinafter referred to as the 2020 Elk Grove Referendum) to be voted on at the March
17, 2020 General Primary election. Id. ¶ 1. The supreme court held that section 3.1-10-17 of the
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Illinois Municipal Code is both facially constitutional and constitutional as applied to the 2020 Elk
Grove Referendum. Id. ¶ 28. Buchanan acknowledges that, based on the supreme court’s decision
in Burns, there is no issue in this case as to the facial constitutionality of the statute. She argues,
however, that the facts in Burns are distinguishable from those present in the instant case as they
relate to the constitutionality of section 3.1-10-17 as applied to referendums adopted prior to the
effective date of the statute. In Burns, the 2020 Elk Grove Referendum was to be voted on at the
March 17, 2020 General Primary election, a date after the adoption of section 3.1-10-17; whereas,
in this case, the voters of Broadview approved the 2016 Referendum prior to the adoption of
section 3.1-10-17. As Buchanan correctly notes, the supreme court in Burns declined to rule on
the constitutionality of section 3.1-10-17 as applied to term-limit referendums such as the 2016
Referendum approved by municipalities prior to the enactment of the statute. Id. ¶ 26.
¶ 10 As a preliminary matter, we note that, on February 22, 2021, Buchanan sent notice to the
Illinois Attorney General as required by Illinois Supreme Court Rule 19 (eff. Sept. 1, 2006) that
the constitutionality of section 3.1-10-17 of the Illinois Municipal Code has been raised in this
appeal. On March 3, 2021, the clerk of this court was notified that the Attorney General has elected
not to intervene.
¶ 11 In urging reversal of the circuit court’s judgment, Buchanan argues that section 3.1-10-17
of the Illinois Municipal Code is unconstitutional as applied to the 2016 Referendum; and as a
result, Jones is ineligible to seek election to or hold the office of village president of the Village
under the provisions of the 2016 Referendum, and his name should be stricken from the April 6,
2021 Consolidated Election ballot. She does not contest the legislature’s ability to alter or limit the
powers of a non-home-rule municipality but contends that the legislature cannot invalidate prior
voter action that was constitutionally exercised. Buchanan asserts that the right to vote is
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guaranteed under Article III, Section 1 of the Illinois Constitution (Ill. Const. 1970, art III, § 1)
and argues that section 3.1-10-17 of the Illinois Municipal Code as applied to the 2016 Referendum
implicates the voting rights of the citizens of Broadview because it nullifies the results of a valid
election, which set term limits for individuals holding the office of village president and
determined who is ineligible to seek election to or hold that office. See Tully v. Edgar, 171 Ill. 2d
297, 305 (1996).
¶ 12 In support of the circuit court’s judgment and the constitutionality of section 3.1-10-17 of
the Illinois Municipal Code as applied to the 2016 Referendum, Jones argues that, in enacting the
statute, the legislature did not nullify the results of the election at which the 2016 Referendum was
adopted. He contends that section 3.1-10-17 merely alters the eligibility requirements for
candidates in municipalities that have, by referendum, adopted term limits in elections occurring
on or after November 8, 2016, by providing that service prior to the adoption of such a term-limits
referendum is not to be considered in determining a candidate’s eligibility to seek election to or
hold office. According to Jones, section 3.1-10-17 does not in any way implicate the manner in
which a term-limits referendum was applied in elections occurring prior to the effective date of the
statute, and as a consequence, the statute has no retroactive impact.
¶ 13 For the reasons that follow, we find that section 3.1-10-17 of the Illinois Municipal Code
is not unconstitutional as applied to the two-term prior service provision set forth in the 2016
Referendum.
¶ 14 Clearly, the passage of the 2016 Referendum adopting term limits for the office of village
president was a constitutionally valid exercise by the voters of the Village. Article VII, section 7
of the Illinois Constitution provides, in relevant part, that “municipalities which are not home rule
units shall have only powers granted them by law and the powers *** to provide by referendum
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for their officers, manner of selection and terms of office ***.” Ill. Const. 1970, art. VII, § 7. It is
equally clear that the basic sovereign power of the State resides in the legislature. Ill. Const. 1970,
art. IV, § 1. The legislature may exercise all powers not forbidden by the State’s constitution,
delegated to another branch of government, or prohibited by the Constitution of the United States.
Hader’s Fireproof Storage & Van Co. v. City of Chicago, 235 Ill. 58, 69 (1908). The Illinois
Constitution is not a grant of power to the legislature, but only checks its power. Client Follow-
Up Co. v. Hynes, 75 Ill. 2d 208, 215 (1979). The Illinois Constitution contains no constraint on the
legislature’s power to statutorily provide for the qualifications and terms of office for elected
officials in a non-home rule municipality such as the Village. In the exercise of its power, the
legislature has provided that the chief executive officer of a village shall be a village president
(who may also be called a mayor) with a four-year term of office (see 65 ILCS 5/3.1-15-10 (West
2020)) and has established qualifications for holding an elective municipal office (see 65 ILCS
5/3.1-10-5 (West 2020)).
¶ 15 Buchanan does not contest the legislature’s power to establish qualifications for holding
an elective municipal office or to provide for terms of office. She argues, however, that when the
voters of a non-home-rule municipality such as the Village have exercised their constitutional right
to provide by referendum the terms of office for its elected officials, the legislature “cannot go
back in time to invalidate voter action” in that regard. As applied to the 2016 Referendum,
Buchanan asserts that section 3.1-10-17 “nullifies the result of a valid election.” We disagree.
¶ 16 Although the 2016 Referendum provides that no person shall be eligible to seek election
to or hold the office of village president where that person has been previously elected to that
office for two consecutive full four-year terms, the referendum is silent as to whether service as
village president prior to the referendum’s adoption is to be considered in the calculation of
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consecutive terms. Section 3.1-10-17(a) provides that the imposition of term limits must be
prospective, and 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. 65 ILCS 5/3.1-10-17(a) (West 2020). As the supreme court determined
in Burns, by enacting section 3.1-10-17, the legislature demonstrated its intent that any term-limit
referendum adopted on or after November 8, 2016, must be applied prospectively, because only
terms served after the passage of the referendum may be considered to determine a candidate’s
eligibility. Burns, 2020 IL 125714, ¶ 21. Section 3.1-10-17(a) merely places a limitation on the
manner in which term limits are calculated in elections taking place subsequent to July 19, 2019,
the effective date of the statute. Id. Contrary to Buchanan’s assertion, application of section 3.1-
10-17(a) to the 2016 Referendum does not invalidate voter action or nullify the result of a valid
election. The statute does not act to repeal or invalidate the 2016 Referendum. We find that section
3.1-10-17 is the legislature’s exercise of its concurrent power to set terms of office for elected
municipal officers by regulating the manner in which their term-limits set by referendum or
ordinance are to be calculated prospectively.
¶ 17 Based upon the foregoing analysis, we hold that section 3.1-10-17 of the Illinois Municipal
Code is not unconstitutional as applied to the 2016 Referendum and affirm the judgment of the
circuit court.
¶ 18 Affirmed.
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