dissenting:
The parties in this case are contesting for election to a vacant judgeship on the circuit court of Cook County. The facts are somewhat bizarre; the rulings of the trial, appellate and supreme courts even more so.
A vacant seat on the circuit court was created by the resignation of Judge Roger J. Kiley, Jr. The office was certified for nomination and election in 1990. The declared winner of the primary election in March of 1990, James H. Williams, went on to win the general election that November.
TRIAL COURT DECISION
In March of 1992, sixteen months following the November 1990 general election, the trial court decided that Williams had lost the 1990 primary election to Susan J. McDunn. Thus, the court ruled that Williams was out of office, since a person who loses a primary election should not be listed on the general election ballot in the fall. The 1990 general election being history, the court ordered that McDunn’s name should be placed on the ballot for the general election to be held in 1992! This, despite the fact that contestants in the 1990 primary election were specifically seeking the right to run only in the 1990 general election and despite the additional fact that the 1992 primary election, also now history, was the only vehicle to furnish candidates for the 1992 general election. Since no other person was afforded any opportunity to contest for the 1992 election, the trial judge, by this ruling, effectively appointed McDunn the winner of the yet to be held 1992 general election.
THE APPELLATE COURT DECISION
On review, the appellate court, in a decision unparalleled in the annals of election contests for both creativity and generosity, decided that both Williams and McDunn should be judges; thus creating two judgeships out of one. For hoary precedent, one may cite back to Genesis and Adam’s rib. Intervening statutory and case law, however, furnish no support.
THE SUPREME COURT OPINION
A majority of this court found the appellate court's creation of a new judicial seat constitutionally flawed. Next it went on to find that McDunn had indeed won the 1990 primary. Finally, it found that McDunn was properly placed on the 1992 ballot.
I am in agreement with the majority up to the point where it found that McDunn was properly placed on the 1992 general election ballot to fill Kiley’s vacancy. Up to this point, the analysis was sound and almost excessively thorough. But in part V of the opinion, in a cursory discussion on whether the Election Code authorized McDunn to be placed on the 1992 ballot, the majority briefly waves its magic wand over the statutory language and the facts of this case and concludes yes. Embarrassingly opaque, this clumsy sleight of hand is unconvincing to all but the unconcerned or distracted.
As the majority points out, section 2A — 1.2(b)(1) of the Election Code specifically states that:
“(1) in each even-numbered year candidates of political parties shall be nominated for those offices to be filled at the general election in that year ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 46, par. 2A — 1.2(b)(1).)
There is only one conceivable reading of the phrase “in that year.” This means that if a candidate wins a primary in 1990, she has been nominated to be placed on the general election ballot for 1990 — not 1992.
The majority asserts that despite the clear language of section 2A — 1.2(b)(1), the rest of the Election Code grants the authority for the trial court’s ruling. Even a brief analysis of the Code, however, will bring into focus the majority’s contortion of the statute.
The majority first points to section 7 — 59(a) to support its view. Section 7 — 59(a) provides:
“The person receiving the highest number of votes at a primary as a candidate of a party for the nomination for an office shall be the candidate of that party for such office, and his name as such candidate shall be placed on the official ballot at the election then next ensuing ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 46, par. 7— 59(a).)
How this section supports the majority’s position is a mystery. Rather than supporting the result that the majority strains at, this section merely reinforces section 2A — 1.2(b)(1), which the majority concedes could have allowed McDunn to run only in the 1990 general election. 156 Ill. 2d at 323-24.
Sections 2A — 1.2(b)(1) and 7 — 59(a) are logical and consistent with one another. As primary elections are held in the same year as general elections, a candidate who won the primary in 1990 has the right to have his or her name put on the general election ballot for 1990, and only 1990.
The majority next purports to rely on section 7 — 63 of the Election Code, which details the procedure of primary election contests. This section provides:
“If the grounds alleged are sufficient in law, the court shall proceed in a summary manner and may hear evidence, examine the returns, recount the ballots and make such orders and enter such judgment as justice may require.” (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 63.)
While this section seemingly gives the trial court broad powers in disposing of a primary election contest, its authority is not unlimited. Significantly, this section only speaks to the disposition of election contests for primaries. While it may be true that the trial court can do what is necessary to determine and declare the actual winner of a primary, no language in this section authorizes the court to put a candidate’s name on a subsequent general election ballot two years after the original general election contested for had been held.
Finally, the majority suggests that section 2A — 1(e) offers the strongest foundation for today’s ruling. This section, however, is similarly insubstantial supporting material. Section 2A — 1(e) provides:
“(e) In the event any court of competent jurisdiction declares an election void, the court may order another election without regard to the schedule of elections set forth in this Article.” (Ill. Rev. Stat. 1989, ch. 46, par. 2A — 1(e).)
After rotely reciting this section like a magic incantation, the majority attempts to transmogrify the actions of the trial court into what the section allows. Incredibly, the majority finds:
“What the trial court did, although relying on the general authority found in section 7 — 63 of the Election Code, was to declare the 1990 general election to fill Riley’s vacancy void, and order another election ‘without regard to the schedule of elections ***.’ (Ill. Rev. Stat. 1989, ch. 46, par. 2A — 1(e).) Thus, the Election Code specifically provided that the trial court could place McDunn on the 1992 general election ballot to run for Kiley’s vacancy, even though she had won the 1990 primary election to run for that vacancy.” (Emphasis in original.) (156 Ill. 2d at 324.)
This attempt to convince the reader that the emperor is actually clothed is almost laughable. Not only are these two sentences conclusory and incorrect, they are complete non sequiturs. The trial court did not order a new election. The November 3, 1992, general election for Cook County was going to take place regardless of what happened in this case. Further, as no one else would be aware that Judge Kiley’s seat remained open, the trial judge effectively appointed McDunn the winner of the general election. Finally, even assuming that what the trial court did was order a new election, there is still no statutory authority for placing McDunn on the November 1992 general election ballot.
The correct disposition of this case is that Judge Kiley’s seat remains open until the next general election. Williams cannot fill the vacancy as he was not the winner of the 1990 Democratic primary and therefore was not properly on the 1990 general election ballot. McDunn cannot fill the vacancy as she was not the winner of the 1992 Democratic primary. The fact that she was the “actual” winner of the 1990 primary is of no moment. She cannot use that election to bootstrap herself into the 1992 general election.
In upholding the trial court’s placement of McDunn on the 1992 general election ballot, the majority has turned a blind eye to the clear language of the Election Code. I can only surmise that the majority believes that this is the fair result in this case. After all, McDunn did win the 1990 primary.
It must be remembered, however, that she did not win the 1992 primary — a statutorily imposed prerequisite to being placed on the 1992 general election ballot. It being decided that the judgeship seat is still open, all eligible citizens must be given the opportunity to participate whether as candidates or electors in a subsequent primary and general election.
McDunn won the 1990 primary election. So be it. Once, however, the 1990 general election had come and gone, McDunn’s opportunity to participate in the 1990 general election was defunctus. Her only opportunity for the specific relief of getting her candidacy before the voters was to get her primary election contest concluded before the 1990 general election. When that opportunity passed, her candidacy was at an end.
The winning of a party’s nomination for the election next ensuing is analogous to having a ticket for a Chicago Bulls basketball game. If you have a ticket and you miss the game, you are out of luck. You do not get a refund and you cannot exchange your expired ticket for another game. Your ticket is good for that day and that game only.
While it may seem harsh that McDunn should lose a judgeship through no fault of her own, the courts are not in a position to formulate an equitable remedy when the statutory directives are clear. We are authorized only to interpret and apply the clear language of the Election Code. Once we have determined that the statute denies her the requested relief, we must not succumb to the temptation to rewrite legislation in order to accomplish what some members of this court may deem a fair result. I submit, however, that this is exactly what the majority has done today.
For the reasons given, I respectfully dissent.