2016 IL 121563
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 121563)
MAXINE JOHNSON, Appellee, v. MATTHEW AMES, Appellant.
Opinion filed December 30, 2016.
JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Freeman, Garman, Burke, and Theis
concurred in the judgment and opinion.
Justice Thomas specially concurred, with opinion.
OPINION
¶1 This cause is before us on the appellate court’s certificate of importance
pursuant to Illinois Supreme Court Rule 316 (eff. Dec. 6, 2006), addressing
whether a referendum seeking to impose term limits on the elected office of village
president in the village of Broadview was invalid because it was vague and
ambiguous. The village election board concluded that the proposition was vague
and ambiguous because it did not clearly state whether the term limits were
prospective or retroactive. On judicial review, the trial court reversed and reinstated
the referendum on the November 8, 2016, general election ballot, finding the
language was not vague or ambiguous. The appellate court affirmed. Because of
the time constraints present in this election case, we granted the appellant’s
emergency motion for expedited consideration of the certificate of importance and
affirmed the judgment of the appellate court, with our opinion to follow. We now
issue our opinion on the question presented in the appellate court’s certificate of
importance.
¶2 I. BACKGROUND
¶3 Appellee Maxine Johnson filed a referendum petition seeking to place on the
November 8, 2016, general election ballot the question of imposing term limits on
the elected office of village president in the village of Broadview. Appellant
Matthew Ames filed an objection on various grounds. Citing this court’s decisions
in Leck v. Michaelson, 111 Ill. 2d 523, 530 (1986), and Lipinski v. Chicago Board
of Election Commissioners, 114 Ill. 2d 95 (1986), the village of Broadview
electoral board voted 2-1 to invalidate the referendum as vague and ambiguous
“because it is not clear whether the Referendum applies retroactively as well as
prospectively,” making it unable “to ‘stand on its own terms.’ ” In her dissent, the
board’s chair relied on the understanding that she had universally heard from many
constituents: the referendum applied to anyone who had been elected village
president prior to the April 2017 election. Nonetheless, the board majority ordered
that the proposition “shall not appear on the ballot in the November 8, 2016
election.”
¶4 Johnson sought judicial review in the circuit court of Cook County. That court
concluded the referendum was self-executing, not vague or ambiguous, and applied
prospectively. The court ordered the referendum to appear on the general election
ballot. On October 20, 2016, Ames filed a motion seeking expedited appeal that
was granted by the appellate court. Following expedited briefing, a majority of the
appellate court agreed with the election board dissent, concluding the referendum
was not ambiguous. The court affirmed the trial court’s reversal of the board’s
decision and ordered that the proposition remain on the ballot.
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¶5 Objector Ames filed a petition for leave to appeal and an emergency motion for
expedited consideration of that petition in this court. We allowed the emergency
motion to expedite and denied the petition for leave to appeal on November 8,
2016. The proposition appeared on the village of Broadview ballot that day, but the
results of the referendum were not released, in compliance with an appellate court
injunction issued on November 2, 2016, pending the outcome of Ames’s appeal to
this court.
¶6 On November 14, 2016, the appellate court filed a certificate of importance in
this court solely on the issue of whether the referendum was vague. Ill. S. Ct. R. 316
(eff. Dec. 6, 2006). Ames filed an emergency motion for expedited consideration of
the Rule 316 certificate of importance, expedited briefing schedule, and expedited
decision. On November 17, 2016, this court allowed the emergency motion for
expedited consideration and affirmed the appellate court decision, taking the case
on the briefs filed in the appellate court and stating that an opinion would be filed in
due course.
¶7 Johnson also filed an emergency motion on November 14, 2016, requesting that
this court order the referendum results to be posted, and Ames filed an objection.
We allowed Johnson’s emergency motion and ordered the appellate court to vacate
its injunctive order and the Cook County circuit clerk to release the election results
by 4:30 p.m. on November 16, 2016. We take judicial notice that the referendum
was approved at the November 8, 2016, election. See Blumenthal v. Brewer, 2016
IL 118781, ¶ 35 (indicating that we may take judicial notice of public records).
¶8 II. ANALYSIS
¶9 At the outset, we note that the certificate of importance issued by the appellate
court in this case was legally ineffective, in that it was issued subsequent to
appellant Ames having filed a petition for leave to appeal in this court. See People
v. Collins, 202 Ill. 2d 59, 65 (2002) (“once a petition for leave to appeal is filed in
this court, the appellate court loses jurisdiction over the cause”). Nevertheless, in
the exercise of our supervisory authority, and in accordance with our November 17,
2016, order affirming the appellate court’s judgment, we choose to proceed with
our consideration of this matter.
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¶ 10 In his appellate court brief, Ames raised several issues, but we need address
only the one presented in the appellate court’s certificate of importance: “whether
the following ballot question was vague: ‘Shall the terms of office for those persons
elected to the office of Village President in the Village of Broadview, at the April 4,
2017 consolidated election, and at 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.’ ” On administrative review of an electoral board’s decision pursuant to
section 10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2006)), the
decision of the board is before us, not the order of the trial court or the appellate
court. Jackson-Hicks v. East St. Louis Board of Election Commissioners, 2015 IL
118929, ¶ 19. Because the issue in this case is purely a matter of law, we review the
board’s decision de novo. Jackson-Hicks, 2015 IL 118929, ¶ 20.
¶ 11 The parties largely agree on the applicable law in this case. They both cite this
court’s decisions in Leck v. Michaelson, 111 Ill. 2d 523 (1986), and Lipinski v.
Chicago Board of Election Commissioners, 114 Ill. 2d 95 (1986). The parties
disagree, however, on how to apply those cases.
¶ 12 In Leck, voters filed a suit that challenged a referendum vote and subsequent
ordinance mandating a runoff election if no candidate for a village office received
50% of the election votes. The referendum required a runoff election for “ ‘any
candidates for public office *** who do not receive fifty percent (50%) of the votes
cast for that office.’ ” The ordinance, however, declared the winner of the runoff
election to be the candidate who received “ ‘the highest number of votes.’ ” Leck,
111 Ill. 2d at 526-27. According to the ordinance, a candidate who won the runoff
election by a plurality vote could take the office, even though the referendum
required the winner to have a majority of the votes. This court examined the
referendum and the ordinance, noting that neither clearly stated how to determine
what constituted “ ‘50% of the votes cast.’ ” Therefore, the referendum was vague
and ambiguous. “Because the referendum could not stand on its own terms, *** the
voters *** cannot be said to have approved a coherent scheme for altering the
election of their officials,” as required by the Illinois Constitution. Leck, 111 Ill. 2d
at 530. For that reason, we declared the proposition “fatally defective” under the
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home rule provision of the 1970 Illinois Constitution “because of its vagueness and
ambiguity.” Leck, 111 Ill. 2d at 531.
¶ 13 Seven months later, this court adhered to that standard in another referendum
case. In Lipinski, as in the present appeal, a proposed referendum was challenged.
The referendum for Chicago’s November 1986 election sought to have certain city
officers “ ‘elected on a non-partisan ballot, by at least a 50% majority vote, but if no
candidate receive[d] at least 50% of the votes cast for the respective office,’ ” a
runoff election would be held between the two candidates receiving the most votes.
Lipinski, 114 Ill. 2d at 97. The challengers alleged, in relevant part, that the
proposition was vague and ambiguous.
¶ 14 Relying on our recent decision in Leck, we examined whether the referendum
could “ ‘stand on its own terms’ ” and was “self-executing” or left “gaps to be filled
by either the legislature or municipal body,” creating uncertainty about what voters
approved. Lipinski, 114 Ill. 2d at 99-100 (quoting Leck, 111 Ill. 2d at 530). We
concluded that the proposition was fatally vague and ambiguous, citing a number of
problems. First, it was unclear when the initial nonpartisan election required by the
referendum would be held. Lipinski, 114 Ill. 2d at 100. Next, the court expressed
concern that the number of signatures needed to become a candidate on a
nonpartisan ballot would increase dramatically, creating a question of “[w]hether
those who might vote for the nonpartisan referendum—with perhaps the idea of
opening up the municipal election process—would be aware that it would be much
more difficult to become a candidate for municipal office in Chicago.” Lipinski,
114 Ill. 2d at 102. That lack of clarity would add to the uncertainty of what voters
were approving. Moreover, the referendum was facially ambiguous because it
referred to a “ ‘50% majority vote,’ ” a term we deemed “self-contradictory.”
Lipinski, 114 Ill. 2d at 103. In addition, the proposition had the potential to shorten
an incumbent officeholder’s term, in violation of existing law, and did not indicate
how two runoff candidates would be identified in the case of a second-place tie.
Lipinski, 114 Ill. 2d at 103-04. Citing the criteria established in Leck, we concluded
that “[t]he nonpartisan referendum proposition is too vague and ambiguous to
qualify as a binding referendum *** because it leaves in its wake significant
questions unanswered and details which conflict with the Election Code.” Lipinski,
114 Ill. 2d at 104-05.
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¶ 15 In this case, Ames argues that Leck and Lipinski require referendums to include
“clear and unequivocal language identifying [its] temporal reach” or risk being
declared vague and ambiguous. He claims the language at issue here is vague and
ambiguous as to when the “two (2) consecutive full four (4) year terms” must start
to trigger ineligibility “to seek election or hold the office of Village President.” We
disagree. While the proposition admittedly did not provide an express date marking
the relevant timeframe for the prior terms of office, that omission alone does not
render the referendum invalid due to vagueness and ambiguity. The referendum is
directed at that those “who seek election to or hold the office of Village President”
beginning with the April 2017 election who have “been previously elected” to that
office for two consecutive full terms. When read in its entirety, the language used
explains that the initial starting point for determining whether candidates were
“previously elected” village president is the April 2017 election. We conclude that
the meaning of the referendum is sufficiently clear even in the absence of an
express statement of its “temporal reach.”
¶ 16 Ames next contends that two clauses in the referendum require interpretation
because they are inherently contradictory, violating Leck and Lipinski. He
maintains that the first clause “implies” that the term limit requirement would first
apply to the individual “elected to the office of Village President in the Village of
Broadview, at the April 4, 2017 consolidated election.” In other words, having been
elected to two full terms in an office prior to the April 2017 election would not be a
bar to running for that same office in the April 2017 election. Whoever wins that
election would be subject to the two-term limit, however. Ames asserts that the
referendum effectively creates a condition precedent that cannot be fulfilled prior
to the April 2017 election. That clause, however, conflicts with the referendum’s
second clause that broadly states, “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.” (Emphasis added.) Ames argues that the use
of the word “previously” in the second clause creates an ambiguity as to when the
prior election must have occurred: on or before April 4, 2017. If the former, the
second clause cannot be reconciled with the condition precedent in the first clause
restricting the application of term limits to those elected “at” or after the April 2017
election. If the latter, then the second clause makes the first one superfluous.
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¶ 17 We are not persuaded by Ames’s argument. The first clause of the referendum
presents voters with the question of whether the office of village president on or
after April 2017 should be subject to new eligibility requirements. In its simplest
form, the second clause defines those new eligibility requirements, barring anyone
from seeking or holding the office of village president if previously elected to that
office for two consecutive full terms. As the appellate court noted, eligibility to
“seek” office is generally determined when nominating petitions are filed. 2016 IL
App (1st) 162770, ¶ 26. See Goodman v. Ward, 241 Ill. 2d 398, 408-09 (2011)
(noting various Election Code provisions and decisions of this court stating that
eligibility for office is determined at the time nomination papers are filed). See also,
e.g., Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 12 (noting
the issue was whether the candidates’ tax arrearage made her ineligible for office
“at the time she filed her nomination papers”). Therefore, the plain meaning of the
referendum is that one who “has been previously elected *** Village President for
two (2) consecutive full four (4) year terms” when the nominating petition is filed
may not “seek election or hold the office” “at the April 4, 2017 consolidated
election” or any subsequent election. Contrary to Ames’s claim, the two clauses
work together to create a complete and coherent eligibility scheme for anyone
interested in running for or holding the office of Broadview village president.
When read as a whole, the proposition is not vague or ambiguous.
¶ 18 While Ames suggests alternative variations that he asserts are clearer, a valid
referendum need not be presented in optimal form. Leck and Lipinski merely
mandate that the language used avoids the pitfalls of vagueness and ambiguity by
permitting a clear determination of what voters approved. Lipinski, 114 Ill. 2d at
104-05; Leck, 111 Ill. 2d at 530-31. We hold that the referendum at issue in this
case meets that basic standard and affirm the appellate court’s judgment reversing
the board’s order finding the referendum invalid as vague and ambiguous.
¶ 19 Our construction properly provides for prospective application of the approved
term limit restriction by changing the eligibility requirements for those candidates
running for village president in elections beginning with the one slated for April 4,
2017. In other words, after the passage of the referendum, no candidate for village
president in any election may have been previously elected to that office for two
consecutive full terms. Altering the eligibility requirements for candidates in future
elections has no retroactive impact. Indeed, that is precisely the type of change
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authorized for both home rule units and non-home rule units of government in our
constitution. Ill. Const. 1970, art. VII, §§ 6(f), 7(3) (granting municipalities the
power to provide for their officers, the way they are selected, and their terms of
office by referendum). Thus, we need not address Ames’s assertion that retroactive
application of a referendum proposition is permissible only if it is expressly stated
in the referendum itself.
¶ 20 III. CONCLUSION
¶ 21 In addressing the appellate court’s Rule 316 certificate of importance, we
examined only whether the referendum at issue, imposing term limits on the village
president in the village of Broadview, was invalid because it was vague and
ambiguous. After applying the criteria we established in Leck and Lipinski, we
conclude that the referendum was not vague or ambiguous. Accordingly, we affirm
the judgment of the appellate court.
¶ 22 Affirmed.
¶ 23 JUSTICE THOMAS, specially concurring:
¶ 24 I agree entirely with the majority’s analysis and conclusion. I write separately
only to address the appellate court’s determination that the granting of a certificate
of importance was warranted in this case.1
¶ 25 In most instances, whether a lower court decision warrants review by this court
is a matter left to this court’s “sound judicial discretion.” Ill. S. Ct. R. 315(a) (eff.
Mar. 15, 2016). And while the court may take any number of factors into
consideration when exercising that discretion, this court has enumerated certain
factors that “indicate the character of reasons which will be considered.” Id. These
1
The court correctly concludes that the certificate of importance issued in this case was
legally ineffective for lack of jurisdiction. I write not to dispute that point but only to
address the appellate court’s determination that this is the type of case that warrants such
certification.
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include “the general importance of the question presented; the existence of a
conflict between the decision sought to be reviewed and a decision of the Supreme
Court, or of another division of the Appellate Court; the need for the exercise of the
Supreme Court’s supervisory authority; and the final or interlocutory character of
the judgment sought to be reviewed.” Id. In short, this court’s decision to grant
review turns largely on whether the issue involved warrants an authoritative
resolution of statewide impact or whether it is the type of case whose final
resolution we may entrust to the appellate court.
¶ 26 That said, the Illinois Constitution provides that an appeal from the appellate
court to this court exists as “a matter of right” whenever “a division of the Appellate
Court certifies that a case decided by it involves a question of such importance that
the case should be decided by the Supreme Court.” (Emphasis added.) Ill. Const.
1970, art. VI, § 4(c). And while the constitution does not specify what types of
cases rise to this level, I would like to think that, at the very least, our appellate
court would be guided by the factors set forth in Rule 315, thereby reserving the
exercise of its certification power only for those rare cases that truly compel an
authoritative resolution of statewide impact.
¶ 27 Which brings me to this case. As certified by the appellate court, the question of
“such importance that the case should be decided by the Supreme Court” is whether
the local ballot initiative at issue in this case “was vague.” This question does not
require this court to construe any constitutional or statutory language, to resolve
any conflict in the appellate court or between this court and the appellate court, or
to correct any errant exercise of judicial power. On the contrary, and as today’s
decision makes all too manifest, it requires this court only to read and interpret a
local ballot initiative that was drafted locally, applies locally, and almost certainly
will never appear again in the same form on any ballot anywhere. It is a question
whose resolution, while no doubt of tremendous and understandable importance to
the approximately 8000 residents of Broadview, will be of no consequence and at
best only passing interest to the approximately 12.8 million Illinois residents who
do not live in Broadview. It is purely a local matter, never again to be repeated. And
as such, it is the very opposite of “a question of such importance that the case
should be decided by the Supreme Court.”
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¶ 28 The appellate court’s power to compel review by this court is a serious one and
one that historically the appellate court only rarely exercises. I would hope that, in
the future, our appellate court would recommit itself to exercising that power with
the restraint, sobriety, and cautious discretion it deserves.
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