Chicago Bar Association v. White

• Court: Appellate Court of Illinois
• Decided: October 28, 2008
• Docket: 1-08-2741 Rel
• Status: Published

Opinion

SIXTH DIVISION October 28, 2008

No. 1-08-2741

THE CHICAGO BAR ASSOCIATION, TERRENCE M. ) Appeal from MURPHY, ROBERT K. COSTELLO, ELIZABETH ) the Circuit Court BLATZ, RUSSELL L. LORRAINE, and RICHARD ) of Cook County LORENC, ) ) Plaintiffs-Appellants, ) ) v. ) ) JESSE WHITE, in his Official Capacity as Illinois ) Secretary of State; ILLINOIS STATE BOARD OF ) ELECTIONS; ALBERT PORTER, in his Official Capacity ) as Chairman of the Illinois State Board of Elections; ) BRYAN SCHNEIDER, in his Official Capacity as Vice- ) Nos. 08 COEL 11 & Chairman of the Illinois State Board of Election; and ) 08 COEL 12, PATRICK A. BRADY, JOHN R. KEITH, WILLIAM M. ) Consolidated McGUFFAGE, JESSE R. SMART, WANDA L. ) REDNOUR, and ROBERT J. WALTERS, in their Official ) Capacities as Members of the Illinois State Board of ) Elections, ) ) Defendants-Appellees ) ) (Patrick Quinn, Lieutenant Governor, ) ) Intervening Plaintiff-Appellant, ) ) David Orr, in his Official Capacity as County Clerk of ) Cook County; and Board of Election Commissioners for ) Honorable the City of Chicago, ) Nathaniel R. Howse, ) Judge Presiding. Intervening Defendants-Appellees). 1-08-2741

JUSTICE CAHILL delivered the opinion of the court:

We review a final order by the trial court disposing of a multicount declaratory judgment

action challenging the format and the language on the November 4, 2008, ballot for the calling of

a constitutional convention (con-con referendum or referendum). The complaint was originally

filed on September 19, 2008. The trial court issued its final order on October 6, 2008. A notice

of appeal from that order was filed the same day. This court held oral argument on October 15,

2008, and issued an order affirming the trial court on October 16, 2008. This opinion explains

our decision.

The question whether to hold a state constitutional convention will be submitted to the

voters in the upcoming November 4, 2008, general election. See Ill. Const. 1970, art. XIV, §1.

Some of the language on the ballot that was submitted by the Secretary of State and certified by

the State Board of Elections (collectively, state defendants) for this purpose was declared by the

trial court to be inaccurate and misleading, and in some parts, unconstitutional. Rather than order

corrections to the ballot itself, the trial court directed defendants to issue a "corrective notice" to

be distributed to voters along with the ballot. The remedy ordered by the trial court was based

primarily on testimony of expert witnesses that there was not enough time before the November

4 election to correct the ballot itself. We are asked to decide whether the trial court's remedy

corrects the defects found in the ballot.

We hold that the trial court was correct to characterize some of the language on the ballot

as inaccurate and misleading, but we do not believe that any of the ballot deficiencies rise to the

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level of a constitutional question. As to the remedy ordered by the trial court, we affirm it in all

respects as not constituting an abuse of discretion.

The con-con referendum contains this language from section 16-6 of the Election Code

(Code) (10 ILCS 5/16-6 (West 2006)):

" 'NOTICE

THE FAILURE TO VOTE THIS BALLOT IS THE EQUIVALENT

OF A NEGATIVE VOTE.' "

The referendum also includes this language not contained in section 16-6:

"Explanation of Proposed Call

This proposal deals with a call for a state constitutional convention. The last such

convention was held in 1969-70, and a new Constitution was adopted in 1970.

The 1970 Illinois Constitution requires that the question of calling a convention

be placed before the voters every 20 years. In 1988 the electors rejected the call

for a constitutional convention, with 75% voting against calling a convention and

25% voting in favor of calling a convention. If you believe the 1970 Illinois

Constitution needs to be revised through the convention process, vote 'YES' on the

question of calling a constitutional convention. If you believe that a

constitutional convention is not necessary, or that changes can be accomplished

through other means, vote 'NO' on the calling of a constitutional convention."

(Emphasis added.)

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Several registered voters of Cook County filed a declaratory judgment action on

September 19, 2008, to challenge the inclusion on the con-con referendum of the notice

provision taken from section 16-6 of the Code and the explanatory language emphasized above.

The lawsuit was consolidated with another, similar suit brought the Chicago Bar Association and

others. The consolidated, amended complaint alleged that the statutory notice language

misinformed the voters that not voting on the referendum was the equivalent of a negative vote.

Plaintiffs alleged as a consequence that the election would be void, since the constitution requires

only that the referendum be "approved by three-fifths of those voting on the question or a

majority of those voting in the election." Ill. Const. 1970, art. XIV, §1(c). The complaint

contained several other counts alleging violations of the Code and our state constitution that are

not at the heart of this appeal but will be addressed later in this opinion.

The corrective notice ordered by the trial court informs voters that they will receive a

ballot asking whether Illinois should hold a constitutional convention. It then advises voters to

ignore the "Notice" and "Explanation of Proposed Call" on that ballot. The corrective notice sets

out a new explanation of the proposed call, deleting the emphasized language quoted above, and

directing voters to vote "YES" to support the calling of a convention or "NO" to oppose it.

Plaintiffs argue the corrective notice does not remedy the infirmities in the ballot.

Plaintiffs ask that this court fashion a remedy that would require defendants to issue a new,

separate ballot for voters. Plaintiffs also ask that we review the trial court's dismissal of the

remaining counts in their complaint. Whether the trial court chose the best remedy from those

presented is reviewed for an abuse of discretion. See Orr v. Edgar, 283 Ill. App. 3d 1088, 1104,

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670 N.E.2d 1243 (1996) ("a trial court is endowed with broad discretion to fashion such remedies

or to grant such relief as equity may require to remedy a wrong"). All other issues raised in this

appeal involve questions of law and are reviewed de novo. See Hawthorne v. Village of Olympia

Fields, 204 Ill. 2d 243, 254-55, 790 N.E.2d 832 (2003).

We note at the outset that all parties, including the Attorney General on behalf of the state

defendants, have been careful not to argue that the only statute directly implicated in this appeal

(section 16-6 of the Code) was held unconstitutional by the trial court. We directed all parties to

furnish us with memoranda addressing our jurisdiction. See People v. Smith, 228 Ill. 2d 95, 106,

885 N.E.2d 1053 (2008) (appellate court has an independent duty to determine its jurisdiction).

All of the parties responded that Supreme Court Rule 302(a), which requires direct review by the

supreme court of a final judgment declaring a statute unconstitutional (210 Ill. 2d R. 302(a)), is

not implicated by the trial court's final order. The parties insist they are in the proper court and

that the trial judge did not even inadvertently hold that section 16-6 is unconstitutional.

Our concern over jurisdiction was prompted by count IV of plaintiffs' amended

complaint. That count urged the trial court to declare section 16-6 of the Code unconstitutional

on the ground that the notice provision would misinform the voters that the failure to vote would

be counted as a vote opposing a constitutional convention. Although the trial judge in his final

order found in favor of plaintiffs on count IV of their complaint, he was explicit in his refusal to

hold the statute unconstitutional. Citing to our supreme court's admonition that cases should be

decided on nonconstitutional grounds whenever possible (see In re E.H., 224 Ill. 2d 172, 178,

863 N.E.2d 231 (2006)), the trial court declared the ballot inaccurate and misleading.

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After reviewing the memoranda on jurisdiction, particularly that of the Attorney General,

we agree that this case can be decided without reaching the constitutionality of section 16-6 of

the Code. The notice provision at issue was added to section 16-6 in 1949 and applied to

proposals for a constitutional convention under the 1870 constitution. Although the statute was

amended after the current constitution went into effect, the legislature apparently overlooked the

outdated notice provision, leaving it intact despite its inapplicability under the current

constitution. The trial court's corrective notice directs voters to ignore the incorrect notice

language and provides voters with correct instructions on how to cast their votes. It does not

expressly or by implication hold section 16-6 unconstitutional. The alternative remedies

proposed by plaintiffs also fall short of holding section 16-6 unconstitutional. For these reasons,

we agree with the parties that this court has jurisdiction. We turn now to the merits of plaintiffs'

arguments.

Plaintiffs first contend that the corrective notice fails to remedy the constitutional

deficiencies found in the ballot. Plaintiffs explain that the corrective notice has no legal

significance because it was not certified by the Board of Elections and, as a practical matter,

cannot prevent voters from reading the ballot language that the trial court ruled was inaccurate

and misleading. Our constitution requires that all elections be "free and equal." Ill. Const. 1970,

art. III, §3. This means that every qualified voter has a right to vote and that all votes have equal

influence. See Craig v. Peterson, 39 Ill. 2d 191, 195, 233 N.E.2d 345 (1968). A propositional

ballot, such as the con-con referendum here, satisfies this constitutional requirement "if it

presents the proposition in such a manner that the voter has a clear opportunity to express his

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choice either for or against it." Hoogasian v. Regional Transportation Authority, 58 Ill. 2d 117,

124, 317 N.E.2d 534 (1974); see also People ex rel. Royal v. Cain, 410 Ill. 39, 57, 101 N.E.2d 74

(1951).

It appears undisputed by the parties that the con-con referendum would not have

sufficiently apprised the voters of their opportunity to vote for or against a constitutional

convention. This is because the notice provision of section 16-6 would misinform voters that by

leaving the ballot blank, they would be voting against a convention. But in reality, their vote

would not be counted against those voting in favor of a convention, making the three-fifths

requirement for passage arguably easier to obtain. See Ill. Const. 1970, art. XIV, §1(c). This

flaw was addressed by the corrective notice, which informs voters that they must vote "NO" to

oppose a convention. The corrective notice is not misleading or ambiguous. We believe the

remedy fashioned by the court given the time restraints imposed by an election date of November

4, 2008, satisfies the constitutional mandate that voters be given a clear opportunity to express

their choice either for or against a constitutional convention. See Hester v. Kamykowski, 13 Ill.

2d 481, 485, 150 N.E.2d 196 (1958) ("[t]he whole purpose of the ballot as an institution is to

obtain a correct expression of intention; and if in a given case the voter's intention can be

gathered from the ballot it should be given effect despite irregularities of form").

Plaintiffs next argue that the corrective notice does not satisfy the separate ballot

requirement. Section 1(c) of article XIV of the constitution directs that "[t]he vote on whether to

call a Convention shall be on a separate ballot." Ill. Const. 1970, art. XIV, §1(c). A separate

ballot draws special attention to a particular issue, making it more likely that voters will cast a

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vote. See Scribner v. Sachs, 18 Ill. 2d 400, 410-11, 164 N.E.2d 481 (1960). Plaintiffs contend

this purpose is frustrated here because the corrective notice does nothing to separate the con-con

referendum from other election contests contained on the same ballot. They urge that the

separate ballot requirement can be met only by submitting the referendum to the voters through a

separate paper ballot, a separate optical scan ballot or a separate touch screen page.

As the Attorney General points out, plaintiffs have offered no authority for the

proposition that "separate ballot" means a ballot physically distinct from the general ballot. To

the contrary, our legislature has defined "special ballot" within the meaning of the Code as a

separate portion of the ballot clearly distinguishable from other election contests. See 10 ILCS

5/24B-2, 24C-2 (West 2006). The con-con referendum is separated from the rest of the ballot by

blue shading and is the only portion of the ballot containing the color blue. It also appears at the

beginning of the ballot and is marked in bold typeface: "Proposed Call for a Constitutional

Convention." The corrective notice is printed on blue paper as well and uses bold and capital

typeface to draw attention to the proposed call for a constitutional convention. We believe the

ballot and the corrective notice comply with the requirement that the referendum be contained on

a separate ballot and, more importantly, that the manner in which the referendum and corrective

notice are presented will achieve the purpose of drawing special attention to the question of

whether to hold a state constitutional convention.

Plaintiffs next argue that the remedy must prevent voters from seeing the incorrect

language on the ballot or, at a minimum, ensure that voters do not see the incorrect language

before they cast their vote on the referendum. Plaintiffs offer three alternatives to prevent voters

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from seeing the ballot before voting. They argue that local election authorities should be given

discretion to choose which remedy would best work for their particular circumstances.

The Attorney General argues, and we agree, that there are too many obstacles at this late

date to alter the method of voting and invest broad discretion in local election judges. See

Purcell v. Gonzalez, 549 U.S. __, __, 166 L. Ed. 2d 1, 5, 127 S. Ct. 5, 7 (2006) ("Court orders

affecting elections *** can themselves result in voter confusion ***. As an election draws

closer, that risk will increase"); Williams v. Rhodes, 393 U.S. 23, 35, 21 L. Ed. 2d 24, 34, 89 S.

Ct. 5, 12 (1968) (confusion that would attend a last-minute change to ballot outweighs interest in

change); see also People ex rel. Agnew v. Graham, 267 Ill. 426, 442 (1915) ("uniformity of

procedure" is "as essential to secure truth and exactness in elections as in anything else"). We

note the observation made at oral argument by counsel for the Cook County clerk that there are in

excess of 20,000 election judges in Cook County who have been trained already on the existing

equipment and ballot.

Nor do we take the time, which is of the essence here, to address the validity of plaintiffs'

proposed alternatives. We note that the trial court devoted much time to these alternatives and

rejected them only after the officials charged with conducting the November 4, 2008, election

testified to their impracticality given the time frame allowed. Westcon/Dillingham

Microtunneling v. Walsh Construction Co., 319 Ill. App. 3d 870, 878, 747 N.E.2d 410 (2001)

(relevant considerations in fashioning a remedy "include both what is fair and what is

workable"). The trial judge's selection of a remedy under these circumstances was not an abuse

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of discretion.

We turn to the remaining counts of plaintiffs' amended complaint. Count I sought a

declaration that the explanatory language contained in the con-con referendum violated section

16-6 of the Code. Plaintiffs argue that while the statute requires a brief explanation to be

included in ballots to amend the constitution, a similar requirement is not imposed on ballots to

call a constitutional convention. See 10 ILCS 5/16-6 (West 2006). Plaintiffs maintain the

omission evinces a legislative intent to prohibit explanatory language from appearing in ballots

for the calling of a constitutional convention.

The Attorney General argues that, even assuming the correctness of plaintiffs' position,

count I is defeated by the substantial compliance doctrine. That doctrine provides that the form

of a ballot need only comply substantially with the statutorily mandated form. See Samour, Inc.

v. Board of Election Commissioners, 224 Ill. 2d 530, 540, 866 N.E.2d 137 (2007). A ballot is in

substantial compliance as long as it contains a fair portrayal of the statute's chief features in plain

language. Samour, 224 Ill. 2d at 541. When a deviation from the statute occurs, a court should

consider the likelihood of confusion on the voters and the impact it would have on voters' ability

to cast their vote. Samour, 224 Ill. 2d at 541. " 'The focus is on the existence of a meaningful

choice for the voters. A ballot is sufficient if the voter has a clear opportunity to express a choice

either for or against it.' " Samour, 224 Ill. 2d at 541, quoting Krauss v. Board of Election

Commissioners, 287 Ill. App. 3d 981, 984, 681 N.E.2d 514 (1997).

At issue here is this language:

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This proposal deals with a call for a state constitutional convention. The last such

convention was held in 1969-70, and a new Constitution was adopted in 1970.

The 1970 Illinois Constitution requires that the question of calling a convention

be placed before the voters every 20 years."

We believe the language would not confuse voters or restrict their ability to cast a vote on the

con-con referendum according to their intentions. To the contrary, we believe the language aids

the voter in casting an informed vote. Plaintiffs' count I was properly dismissed.

Count V of plaintiffs' complaint sought a declaration that the Constitutional Convention

Act (5 ILCS 25/1 et seq. (West 2006)), as well as certain actions by the General Assembly, are

unconstitutional to the extent they authorize the General Assembly to prepare the con-con

referendum. Plaintiffs cite section 1(b) of article XIV, which provides that "[i]f the question of

whether a Convention should be called is not submitted during any twenty-year period, the

Secretary of State shall submit such question at the general election in the twentieth year

following the last submission." (Emphasis added.) Ill. Const. 1970, art. XIV, §1(b). There is no

language in the constitution that would prohibit the General Assembly from participating in the

drafting of the con-con referendum. Plaintiffs' count V fails to state a claim on which relief can

be granted and was properly dismissed. Count VI of the complaint, which sought an order

directing the Secretary of State himself to prepare a new ballot for the November 4 election, was

properly dismissed on the same ground.

Count VII of plaintiffs' complaint sought a declaration that the State Board of Elections

lacked authority to certify the con-con referendum. Plaintiffs cite section 28-5 of the Code (10

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ILCS 5/28-5 (West 2006)), which addresses the certification of public questions. Contrary to

plaintiffs' argument, the statute in no way limits the State Board of Elections' power to certify a

ballot for the calling of a constitutional convention. Section 1A-8(5) of the Code, on the other

hand, gives the State Board of Elections authority to "[p]repare and certify the form of ballot for

*** any referendum to be submitted to the electors throughout the State." 10 ILCS 5/1A-8(5)

(West 2006); see also Ill. Const. 1970, art. III, §5 ("State Board of Elections shall have general

supervision over the administration of the registration and election laws throughout the State").

We are aware of no statute that limits this broad grant of authority in the manner urged by

plaintiffs. Count VII is defeated by section 1A-8 of the Code and was properly dismissed.

Count VIII of plaintiffs' complaint sought a declaration that the State Board of Elections

violated section 1(b) of article XIV of the constitution by certifying the con-con referendum. As

stated above, that section of the constitution provides that the Secretary of State shall "submit"

the question of whether to hold a constitutional convention every 20 years. Ill. Const. 1970, art.

XIV, §1(b). Section 1(b) does not prohibit, either expressly or through implication, the State

Board of Elections from certifying the con-con referendum. Count VIII fails for the same reason

we hold count V is inadequate to state a claim.

The final count of plaintiffs' complaint, count IX, sought a declaration that the legislation

authorizing placement of the con-con referendum on the same ballot as other election contests is

unconstitutional. Plaintiffs cite section 24B-6 of the Code, which applies to optical scan ballots

and requires:

"All propositions, including but not limited to propositions calling for a

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constitutional convention *** shall be placed on separate portions of the ballot

sheet or marking device by utilizing borders or grey screens. *** Constitutional

convention *** propositions shall be printed or displayed on a separate portion of

the ballot sheet or marking device and designated by borders or grey screens[.]"

10 ILCS 5/24B-6 (West 2006).

Plaintiffs also cite section 24C-6 of the Code, which applies to computerized touch-screen ballots

and requires that:

"questions calling for a constitutional convention *** shall be placed on the ballot

separate and apart from candidates. *** Constitutional convention ***

propositions shall be placed on a separate portion of the ballot and designated by

borders or unique color screens[.]" 10 ILCS 5/24C-6 (West 2006).

It is undisputed by the parties that the purpose of the constitutional requirement that the con-con

referendum appear on a separate ballot is to draw special attention to the referendum in an effort

to increase voter participation. The legislation cited by plaintiffs, authorizing the placement of

the referendum on a separate portion of the ballot distinguished from other election contests by

color, achieves this purpose. There is no language in the constitution that requires anything

more. Count IX was properly dismissed.

The judgment of the circuit court is affirmed.

Affirmed.

O'MALLEY, P.J., and J. GORDON, J., concur.