Buchanan v. Jones

2021 IL App (1st) 210169

Opinion

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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