2016 IL App (1st) 162770 No. 1-16-2770 Opinion filed November 1, 2016
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
MAXINE JOHNSON, ) Appeal from the Circuit Court ) of Cook County. Petitioner-Appellee, ) ) v. ) ) MATTHEW AMES, ) No. 13 L 014527 ) Respondent-Appellant ) The Honorable ) Paul A. Karkula, (The Village of Broadview Municipal ) Judge, presiding. Officers Electoral Board, and its ) Members, Judy Brown-Marino, ) Chairman; Kevin McGrier, Member; ) Robert M. Hodge, Member; and David ) Orr, in His Official Capacity as Cook ) County Clerk, ) Respondents). )
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justice Reyes concurred in the judgment and opinion. Justice Lampkin dissented, with opinion.
OPINION No. 1-16-2770
¶1 After obtaining the signatures of hundreds of voters in the Village of
Broadview, petitioner Maxine Johnson filed a "Petition for Referendum–Term
Limits on Mayor's Office" with the Clerk of the Village of Broadview. The
petition sought to place a term limits question on the ballot for the November 8,
2016, general election. If passed by the voters on November 8, 2016, the
referendum question would govern the eligibility of candidates seeking to run in
the April 4, 2017, municipal election for village president, as well as in
subsequent elections.
¶2 In response to an objector's petition, the Village of Broadview electoral
board issued a decision on October 3, 2016, finding that the term limits question
was vague and ambiguous because the question was unclear as to whether the
limits applied prospectively or retroactively. On October 19, 2016, the trial
court reversed the decision of the electoral board, finding that the question was
not vague or ambiguous.
¶3 For the following reasons, we agree with the trial court and conclude that
the question is not vague or ambiguous and, thus, order its placement on the
November 8, 2016, ballot.
¶4 BACKGROUND
¶5 The question at issue states:
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"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."
¶6 As we observed above, on August 8, 2016, the proponent of the above
question, Maxine Johnson, filed a petition signed by several hundred voters in
the Village of Broadview. On August 15, 2016, an objector, Matthew Ames,
filed an eight-count petition challenging the validity of this question.
¶7 On October 3, 2016, the electoral board issued a written decision
sustaining only the third objection. Concerning the third objection, the board
stated, in relevant part:
"In applying Illinois law, the Board finds that the Referendum is
vague and ambiguous and cannot stand on its own terms and is therefore
invalid and sustains the [objection]. The Referendum is uncertain with
respect to whether a person's service as Village President prior to the
passage of the Referendum is to be considered in determining if that
person has served more than eight years in that position."
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¶8 With respect to the other objections, the board noted that the second,
seventh and eighth objections were withdrawn by the objector and, thus, were
not considered by the board. With respect to the first objection, which was a
challenge to the number and validity of the signatures, the board heard evidence
and concluded that the petition had the requisite number of valid signatures:
"The Board makes the following Findings and Conclusions as to
Objection I [which states: ']The Limit Referendum is invalid because it
does not have the requisite number of signatures necessary to satisfy 10
ILCS 5/28-7.['1]
The Proponent and the Objector filed motions pursuant to Rule 8 and
10 of the adopted rules of the Board. The Board heard evidence on the
issues of signatures and voter registration and heard evidence as well as a
records exam.
The Board finds that the number of valid signatures appearing on the
referendum petition following a completion of the records examination
was 224 valid signatures which was 3 signatures over the statutory
requirement of 221. Under the Election code 221 signatures were
1 Section 28-7 of the Election Code provides, in relevant part, that a "public question may be initiated *** by the filing with the clerk or secretary of the governmental unit of a petition signed by a number of qualified electors equal to or greater than at least 8% of the total votes cast for candidates for Governor in the preceding gubernatorial election[.]" 10 ILCS 5/28-7 (West 2014). 4 No. 1-16-2770
required which was calculated based on 8% of the total amount of voters
in the local governmental unit which voted in the last governor's election.
The Board therefore overrules Objection 1.”
The objector had argued before the electoral board that the board should strike
certain affidavits which were notarized by the proponent, Maxine Johnson, and
which were submitted to rehabilitate certain signatures; and that, if these
affidavits were struck, the petition would then have less than the statutorily
required minimum of 221 signatures.
¶9 With respect to the fourth and fifth objections, which were claims that the
question violated the voters' constitutional rights to vote and to associate, the
board held that it had "no authority to decide United States Constitutional
issues." With respect to the sixth objection, which claimed that the Village of
Broadview was not empowered to impose term limits, the board concluded that
no Illinois statute prohibited term limits.
¶ 10 The board's decision was a split 2 to 1 decision. The chairperson, who
was the one dissenting member, filed a strong dissenting opinion stating that, in
the week since the board's decision, she had shown the question to a number of
her constituents and they all understood the calculation of a person's prior
service to include "those persons who had already (previously) been elected
Village President" and that any other conclusion was "ridiculous and absurd."
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¶ 11 In response to the board's decision, the proponent of the question, Maxine
Johnson, sought judicial review in the trial court. On October 19, 2016, the trial
court issued a written order, which states in relevant part:
"Both parties have introduced ancillary issues in their briefs, i.e., the
timely convening of the Electoral Board and the validity of several
notarized affidavits. The court believes that those matters were
adequately addressed by the board and have little, if any, bearing on the
case in chief.
The issue in this case is the validity of the proposed referendum as
drafted.
An examination of the proposed ballot referendum and a comparative
analysis of a recent case on point Davis v. Welch, 14 CH 13948 (Circuit
Court of Cook County October 1, 2014, affirmed 2014 [IL App (1st)
142998-U] pertain to a referendum that was challenged on the same
grounds as are being raised here. The Circuit Court of Cook County,
affirmed by the Appellate Court, found that the term limit referendum,
which would prevent current officeholders from seeking future terms
based on consecutive terms of prior service, was both lawful and
constitutional.
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It is clear that the referendum in the case at bar is not vague or
ambiguous but is effective upon passage, self-executing and applies
prospectively."
¶ 12 The trial court then reversed the decision of the electoral board and
ordered that the referendum question "shall appear on the ballot at the General
Election November 8, 2016 in the Village of Broadview, Illinois."
¶ 13 On October 20, 2016, the objector, Matthew Ames, filed a motion with
this court seeking an expedited appeal, in which he stated that the "referendum
question at issue is currently on the 11/08/2016 general election ballot," and
that "this matter requires action by the Court on or before 11/01/2016."
¶ 14 This court then granted his motion for an expedited appeal and directed:
(1) the appellant to file a brief by October 25, 2016; (2) the appellee to file a
brief by October 28, 2016; and (3) the appellant to file a reply brief by October
30, 2016. This court also ordered the appellant to "notify [the] clerk of the
court and comply with all rules and procedures for the procurement of the
record," so that the clerk of the circuit court could produce the record by
October 28, 2016.
¶ 15 On October 25, 2016, the objector filed an appellate brief but the board
failed to do so. Although the cover page of the brief is entitled the brief of
"Respondents" in the plural, the text of the brief refers only to the "Appellant"
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in the singular and the "Certificate of Service" states that the brief was
submitted by an attorney only "for Appellant Matt Ames," who was the
objector. In addition, the objector requests that this court reverse one of the
board's findings, which was that the petition was supported by the required
number of signatures. By not filing a brief with this court, the board decided
not to contest the trial court's findings on appeal and, thus, only the objector
pursues this appeal.
¶ 16 ANALYSIS
¶ 17 In the case at bar, the electoral board concluded in a 2 to 1 decision that
the referendum question was vague and ambiguous. The trial court, however,
reversed the decision of the board. For the following reasons, we agree with the
dissenting board member that the question is not ambiguous and affirm the trial
court's reversal of the board.
¶ 18 I. Standard of Review
¶ 19 " 'Judicial review of the decision of an electoral board is intended to
remedy arbitrary or unsupported decisions.' " Anderson v. McHenry Township,
289 Ill. App. 3d 830, 832 (1997) (quoting Reyes v. Bloomingdale Township
Electoral Board, 265 Ill. App. 3d 69, 72 (1994)). While we review questions of
fact deferentially and will disturb factual determinations only if they are against
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the manifest weight of the evidence, we review questions of law de novo.
Anderson, 289 Ill. App. 3d at 832 (citing Reyes, 265 Ill. App. 3d at 72).
¶ 20 In the case at bar, whether the referendum question is vague and
ambiguous is a legal question that we review de novo. Roman v. Cook County
Sheriff's Merit Board, 2014 IL App (1st) 123308, ¶ 73 (whether the board's
decision was vague was a question of law that we reviewed de novo). See also
People v. Sharp, 2015 IL App (1st) 130438, ¶ 138 (whether a statute was
unconstitutionally vague such that its terms were "so ill-defined that their
meaning will ultimately be determined by the opinions and whims of the trier of
fact rather than objective criteria" was a pure question of law to which we
applied de novo review). De novo consideration means that we perform the
same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP,
408 Ill. App. 3d 564, 578 (2011).
¶ 21 When an appeal includes both a decision by an electoral board and a
ruling by the trial court, we review the decision by the electoral board and not
the ruling by the trial court. Cinkus v. Village of Stickney Municipal Officers
Electoral Board, 228 Ill. 2d 200, 212 (2008) ("where a circuit court reviews an
electoral board's decision *** we review the decision of the board, not the
court").
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¶ 22 II. The Referendum Question
¶ 23 In finding the referendum question vague, the electoral board relied upon
our supreme court's opinions in Lipinski v. Chicago Board of Election
Commissioners, 114 Ill. 2d 95, 99-100 (1986), and Leck v. Michaelson, 111 Ill.
2d 523, 530 (1986), which held that a proposed referendum question must be
able to stand on its own terms and offer the voters a coherent scheme for
altering the election of their officials. If the referendum is not self-executing
and has gaps, then it is vague and ambiguous. Lipinski, 114 Ill. 2d at 99-100
(citing Leck, 111 Ill. 2d at 530).
¶ 24 In its written decision, the board concluded that the referendum question
was vague "with respect to whether a person's service as Village President prior
to the passage of the Referendum is to be considered in determining if that
person has served more than eight years in that position." The board found that
the referendum question "does not specifically state whether the calculation of a
person's prior service would include service occurring prior to the passage of
the Referendum or after." (Emphasis added.) After finding that the referendum
did not specifically state whether prior service counted, the board, nonetheless,
concluded that prior service did not count, stating: "the limit of two
consecutive terms only applies upon occurrence of a person being elected on
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April 4, 2017[,] and each election after and as such, it is only after the person
has been elected does the limitation of prior service begin to accrue."
¶ 25 For the following reasons, we conclude that the referendum question is
not vague or ambiguous. As we noted above, the question states:
"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)
¶ 26 The question applies only to "those persons elected to the office *** in
the April 4, 2017 consolidated election" and in all elections "thereafter."
Eligibility to "seek" office is generally measured at the time the nominating
petitions are due and filed for each election.2 At that time, no person may
"seek" the office if "that person has been previously elected" to the office "for
2 E.g., Jackson v. Board of Election Commissioners of the City of Chicago, 2012 IL 111928, ¶ 12 (issue was whether the candidate was "ineligible for municipal office *** at the time she filed her nomination papers"). See also Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 219-20 (2008) ("when a candidate submits his or her nomination papers to run for office, the candidate swears that he or she is—not will be—qualified for the office" he or she seeks). 11 No. 1-16-2770
two (2) consecutive full four (4) year terms." (Emphasis added.) If "that
person" has already—previously—been elected for two consecutive full four-
year terms, he or she is not eligible. In addition, no person who has been
"elected to the office *** in the April 4, 2017 consolidated election" or in any
election "thereafter" may "hold" the office if "that person has been previously
elected for two (2) consecutive full four (4) year terms." Thus, we must
conclude that the question is not vague or ambiguous.
¶ 27 In Lipinski, which was cited by the board, the referendum question
contained the phrase "50% majority vote." Lipinski, 114 Ill. 2d at 103. Our
supreme court observed that this phrase was meaningless, since the word
"majority" meant a number greater than "50%." Lipinski, 114 Ill. 2d at 103;
Leck, 111 Ill. 2d at 529-31 (the Leck decision also concerned a "50%" issue).
Since the phrase "50% majority" was inherently contradictory, it was vague and
ambiguous. Contrary to Lipinski, the referendum question before us contains
no inherently contradictory phrases.
¶ 28 In its written decision, the board concluded that the referendum has
retroactive application because a candidate's prior service may bar him or her
from prospective service. However, prior conditions, such as where a candidate
previously lived, may remove him or her from eligibility for a prospective
office. E.g., Maksym v. Board of Election Commissioners of the City of
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Chicago, 242 Ill. 2d 303, 308 (2011) (Rahm Emanuel would not have been
eligible for election if he had not previously resided in Chicago). Thus, we do
not find this argument persuasive.
¶ 29 III. Statutorily-Required Minimum Signatures
¶ 30 In addition to challenging the question itself, the objector's appellate brief
also claims that the petition lacked the statutorily-required minimum signatures.
The objector argues before this court that the electoral board should have struck
certain affidavits which were notarized by the proponent, Maxine Johnson, and
which were submitted to rehabilitate certain signatures; and that, if these
affidavits were struck, the petition would then have less than the statutorily
required minimum of 221 signatures. Specifically, the objector argues that
section 6-104(b) of the Illinois Notary Public Act barred Maxine Johnson from
serving as a notary public in connection with a referendum where she was the
proponent. 5 ILCS 312/6-104(b) (West 2014).
¶ 31 The interpretation of a statute is a question of law that we also review de
novo. Maschek v. City of Chicago, 2015 IL App (1st) 150520, ¶ 42. As we
observed above, de novo consideration means that we perform the same
analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill.
App. 3d 564, 578 (2011). With statutory interpretation, our primary goal is to
ascertain the legislators' intent, and the best indication of their intent is the plain
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and ordinary meaning of the words which they chose to use. People v.
Chatman, 2016 IL App (1st) 152395, ¶ 30 (citing MD Electrical Contractors,
Inc. v. Abrams, 228 Ill. 2d 281, 287 (2008)).
Section 6-104(b) is quoted by both parties in their briefs to this court, and
it states, in full: "A notary public shall not acknowledge any instrument in
which the notary's name appears as a party to the transaction." 5 ILCS 312/6-
104(b) (West 2014). If one applies the plain words of this sentence to the facts
of our case, the "instrument" is the petition which the voters signed, and "the
notary's name" does not "appear[] as a party" anywhere on this instrument.
Thus, the plain words of the statute require us to reject this argument, as did the
trial court and all three board members.
¶ 32 CONCLUSION
¶ 33 For the foregoing reasons, the decision of the board is reversed and the
decision of the trial court is affirmed, and we order that the referendum question
shall remain on the ballot.
¶ 34 Affirmed.
¶ 35 JUSTICE LAMPKIN, dissenting.
¶ 36 I respectfully dissent. I would hold that the referendum was
unconstitutionally vague and ambiguous. I would conclude that the Municipal
Officers Electoral Board of the Village of Broadview (Board) acted properly
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when it found the referendum invalid and granted the objector’s motion for
summary judgment. Accordingly, I would reverse the order of the circuit court
that reversed the Board’s decision.
¶ 37 The proposed referendum would ask the following question of the voters
of the Village of Broadview:
“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?”
¶ 38 A referendum submitted under the provisions of section 6 or 7 of article
VII of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, §§ 6, 7) must
“stand on its own terms” such that the voters can “be said to have approved a
coherent scheme for altering the election of their officials.” Leck v. Michaelson,
111 Ill. 2d 523, 530 (1986). Such referendum must not be “uncertain,” and must
not need “to be interpreted, supplemented and modified in order to be
implemented.” Id. A referendum that violates these requirements is “fatally
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defective under article VII *** of the 1970 Illinois Constitution because of its
vagueness and ambiguity.” Id.
¶ 39 Applying these standards to the referendum proposed here, I would
conclude that the Board properly found it to be unconstitutionally vague and
ambiguous. The referendum is uncertain with respect to whether a person’s
service as the village president of the Village of Broadview prior to the passage
of the referendum and the April 2017 election is to be considered in
determining if that person has served more than two consecutive full four-year
terms. The referendum seeks to impose a term limit on the people elected to the
office of village president by deeming a person who previously was elected to
that office for two consecutive full four-year terms ineligible to seek election to
or hold that office. Although this term limit would apply prospectively to the
April 4, 2017 consolidated election and each election thereafter, the referendum
as written is open to at least two interpretations concerning whether 8
consecutive years of service as village president prior to April 2017 would
prevent a person from seeking or holding that office after April 2017. The
referendum does not indicate whether the relevant calculation of a person’s 8
consecutive-year limit either includes or excludes a person’s prior service
occurring before the passage of the resolution and the 2017 election. The
referendum merely states that the 8 consecutive-year limit on eligibility is
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calculated based on having been “previously elected” to the office of village
president. This unclear provision necessarily begs the question: previous to
when?
¶ 40 The proponent’s reliance on the unpublished order Davis v. Welch, 2014
IL App (1st) 142998-U for persuasive authority is misplaced. In Davis, the
court concluded that a referendum related to limiting the terms of elected
officials was clearly worded and self-executing. Id. ¶ 18. The text of the
referendum at issue here, however, bears no similarity to the clear wording of
the referendum at issue in Davis, which set forth a term limit for a specific
office and included the phrase “with all prior consecutive terms of a current
officeholder counted in determining term limits for that office holder.” Id. ¶ 6.
The clear statement in Davis that a person’s prior terms in office would be
included in determining the person’s eligibility to hold office under the new
term limits is completely absent in the text of the referendum at issue in the
instant case.
¶ 41 Reading the proposed referendum in its entirety, I would conclude that it
does not stand on its own terms such that voters can be said to have approved a
coherent scheme for altering the election of their officers. Leck, 111 Ill. 2d at
530. A voter could reasonably conclude he or she was voting for a new term
limit for the office of village president that would become effective April 2017
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and determine a person’s eligibility to seek or hold that office based on a
calculation that either (1) included the person’s 8 consecutive-years of service
that occurred previous to April 2017, or (2) excluded such service because the
new term limits would become effective in the 2017 election and thereafter and
would apply going forward only. Accordingly, just what the voters would be
approving under this referendum would be uncertain, and the referendum is
thus vague and ambiguous and therefore invalid. Lipinski v. Chicago Board of
Election Commissioners, 114 Ill. 2d 95, 100 (1986). I, therefore, would affirm
the Board’s decision to sustain Objection III and the Board’s conclusion that the
referendum was invalid and should not appear on the ballot.
¶ 42 Contrary to established law, the majority’s analysis interprets,
supplements and modifies the language of the referendum by manipulating the
sequence of the words and adding or omitting certain words to arrive at the
conclusion that the referendum question is neither vague nor ambiguous. I
believe the majority’s holding that the referendum question will remain on the
ballot should not be allowed to stand and “involves a question of such
importance that it should be decided by the Supreme Court.” Ill. S. Ct. R. 316
(eff. Dec. 6, 2006).