specially concurring in part and dissenting in part:
The Calumet City municipal officers’ electoral board (the electoral board) refused to place James J. Pappas (petitioner) on the April 1, 1997, general election ballot as a candidate for the office of mayor of Calumet City. Although petitioner’s nominating papers were in order, the electoral board ruled that section 3.1 — 10—5 of the Illinois Municipal Code (65 ILCS 5/3.1 — 10—5 (West 1994)) disqualified petitioner from being a candidate because he had been convicted of two felonies some 15 years earlier. Petitioner, on March 11, 1997, sought judicial review in the circuit court of Cook County. The circuit court, on March 18, 1997, affirmed the electoral board’s decision by written order.
Petitioner filed notice of appeal in this court on March 19, 1997, and filed an emergency motion seeking expedited appellate review on March 20, 1997. Petitioner’s motion was filed just before ballots for the election were to be printed. Respondents filed responses to the motion on March 24, 1997, and petitioner filed his reply that same day. On March 25, 1997, without the benefit of either briefs or oral argument, we entered judgment affirming the trial court. Because we were unable to issue our written opinion within the 21-day jurisdictional window which exists following our entry of judgment (see 134 Ill. 2d R. 367(b); Woodson v. Chicago Board of Education, 154 Ill. 2d 391, 397, 609 N.E.2d 318 (1993)), we stayed judgment pending filing of the attached opinion.
The majority’s opinion implies that petitioner challenged the constitutionality of Municipal Code section 3.1 — 10—5 for the first time on appeal. This is simply not the case. My review of the record indicates petitioner cited Coles v. Ryan, 91 Ill. App. 3d 382, 414 N.E.2d 932 (1980), both in the proceedings before the election board and in his petition for judicial review in the circuit court. Both the election board and the circuit court discussed Coles and its relation to the constitutionality of the Municipal Code in rendering their decisions. The election board determined that it was without jurisdiction to address a- constitutional challenge to the Act; the circuit court rejected the analysis set out in Coles.
In Coles, the sole issue was whether the equal protection clause of the fourteenth amendment to the United States Constitution was violated by the General Assembly’s disparate treatment of convicted felons who sought election to a constitutionally created office vis-a-vis those who sought election to a legislatively created office. The court noted that the General Assembly had made provisions restoring the qualification of convicted felons to run for constitutional office upon completion of their sentence pursuant to the Uniform Code of Corrections (see 730 ILCS 5/5 — 5—5(b) (West 1994)), but had failed to provide this same right to those who ran for the lesser offices. Coles, 91 Ill. App. 3d at 385. Applying traditional equal protection analysis, the court determined that the equal protection clause was violated because there was no rational basis justifying the distinction.
Although the trial court recognized that the Coles decision is factually similar to the instant case, the court declined to follow the result suggested by Coles. Instead, the court stated it believed a rational basis supporting the legislative distinction existed, even though the appellate court in Coles stated no such basis was apparent. Coles, 91 Ill. App. 3d at 386. In my view, whatever else may be said, the trial court violated its obligation to follow appellate precedent in rendering its decision. Although, as the respondents have argued, Coles involved a candidate for township supervisor and certain provisions of the Election Code, as opposed to a candidate for mayor and the provisions of the Municipal Code that are at issue here, the ultimate issue is the same in both cases. If there was an equal protection violation in Coles, it follows logically and necessarily that there is an equal protection violation in petitioner’s case.
An even more troubling aspect of this case, however, is not in what the trial court did but, rather, in what the majority here has failed to do. Recently, in Tully v. Edgar, 171 Ill. 2d 297, 664 N.E.2d 43 (1996), our supreme court explained that when legislation affects any stage of the election process, including the stage at which candidates are nominated, the public’s fundamental right to vote is necessarily implicated. Tully, 171 Ill. 2d at 307. Moreover, although the court recognized that legislation is presumed to be constitutional when challenged in the courts, it stated this presumption is lessened when the right to vote is at issue. Tully, 171 Ill. 2d at 304. The court determined that "far more demanding scrutiny” is warranted in cases involving legislation that affects voting rights. Tully, 171 Ill. 2d at 304.
The Tully decision represents a recent and dramatic change in Illinois election law. Before Tully, it was generally recognized that the only rights at stake in an election case brought by a potential candidate for office were the candidate’s nonfundamental rights to government employment. See, e.g., Coles, 91 Ill. App. 3d at 385; Strobeck v. Illinois Civil Service Comm’n, 70 Ill. App. 3d 772, 388 N.E.2d 912 (1979). However, the supreme court has now recognized the significant difficulties that arise when attempting to separate a candidate’s right to run for public office from the right of the electorate to place that person in office. The Tully case establishes that limiting the former necessarily restricts the latter.
In justifying its decision to avoid the constitutional issue presented by petitioner, the majority cites petitioner’s failure to comply with Supreme Court Rule 19. This argument is makeweight. As I have noted, petitioner’s constitutional challenge was timely raised in both the election board proceedings and in the trial court. Although Rule 19 provides that a litigant must give "prompt notice” to the state if he wishes to challenge the constitutionality of a statute, the rule is directory only, and nowhere does the rule state that failure to give such notice necessarily must result in waiver of the constitutional claim. Such an interpretation of the rule is particularly unfair where, as here, the respondents have raised the rule for the first time in their motions on appeal. Moreover, Rule 19 specifically envisions that notice of a constitutional challenge may be given to the state when a constitutional issue is raised for the first time on review. See 134 Ill. 2d R. 19(b). This being the case, I would grant petitioner leave to comply with the rule rather than find waiver.
The majority next determines that petitioner has waived his constitutional claim because he failed to argue Tully in his initial motion before this court and because he now states he did not challenge the constitutionality of the Municipal Code in the circuit court.1 However, the rule of waiver is a limitation on the parties, not the courts. A reviewing court, in the exercise of its responsibility for a just result and the maintenance of a sound and uniform body of precedent, may consider issues not properly preserved by the parties. Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 514, 639 N.E.2d 1273 (1994). In this case, the potential harm to the electorate’s voting rights is too severe to invoke waiver simply because petitioner delayed four days in raising Tully.
I recognize that the passing of the April 1 election has rendered moot the petitioner’s request to be added to the ballot and that no meaningful relief can now be given to the petitioner. The issue presented, however, is of substantial public interest and warrants consideration even now, after the election is over. Cf. Cintuc, Inc. v. Kozubowski, 230 Ill. App. 3d 969, 972-73, 596 N.E.2d 101 (1992); Trotter v. Education Officers Electoral Board of Canton Union School District No. 66, 158 Ill. App. 3d 848, 512 N.E.2d 115 (1987). In addition, this issue should be addressed because it is "capable of repetition, yet evading review.” Stephens v. Education Officers Electoral Board Community College District No. 504, 236 Ill. App. 3d 159, 161, 603 N.E.2d 642 (1992). This is particularly true since a future challenge to this Municipal Code section will likely be raised in the hurried and expedited fashion typical of election cases. Because these circumstances do not allow for the possibility of "full litigation” (Stephens, 236 Ill. App. 3d at 161), it would be better for us to decide this important constitutional question now after the parties have been given the opportunity to brief it, rather than at the last minute in a subsequent case. Such an approach is also preferable to the majority’s suggestion that the petitioner file a declaratory judgment action in the circuit court. It is a patent waste of the parties’ resources and the circuit court’s time to require that a second record be created when we already have before us one that fully presents the issue.
In sum, although I have no particular disagreement with the majority’s analysis of the statutory language involved, I am disheartened by its unwillingness to consider the petitioner’s significant constitutional challenge. Instead of summarily rejecting petitioner’s claim by invoking Supreme Court Rule 19 and the waiver rule, I would allow him the opportunity to comply with the notice provisions of Rule 19 and then order whatever constitutional arguments are raised to be briefed and argued on a non-expedited basis. In my view, the rights of the voters of this state mandate nothing less.
The majority incorrectly states that petitioner filed a "reply brief.” In fact, the document in which petitioner cites Tully v. Edgar is his "Motion for Leave to File Reply to Respondents.” This is not a case involving a constitutional challenge made for the first time by an appellant who has otherwise had the opportunity to fully brief his arguments.