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Hirschfield v. Barrett

OPINION FILED MAY 29, 1968.

JOANNE HIRSCHFIELD ET AL., APPELLANTS,

v.

EDWARD J. BARRETT, COUNTY CLERK, APPELLEE.



APPEAL from the Circuit Court of Cook County, the Hon. JAMES E. MURPHY, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT: Rehearing denied September 17, 1968.

Plaintiffs bring this complaint for a mandatory injunction to compel defendant as county clerk of Cook County to count and report the write-in votes of eight of the plaintiffs who voted at the November 8, 1966, general election in Cook County outside of the city of Chicago. These plaintiffs wrote in the name of Michael M. Phillips, also a plaintiff, and voted for him for associate judge of Cook County to fill an allegedly unexpired term resulting from the death of Associate Judge H.R. Stoffels on August 28, 1966. There was no indication on the ballots submitted to the electorate at that election that any such vacancy existed, and Phillips's eight votes constituted all of the votes cast for this office. Plaintiffs therefore now assert that by virtue of their eight votes defendant should certify Phillips as the duly elected judge to fill said allegedly unexpired term. Defendant filed a motion to dismiss the complaint for failure to state a cause of action and the trial court sustained the motion and dismissed the suit. On direct appeal to this court plaintiffs assert both State and Federal constitutional questions.

The following additional facts are not in dispute: that Associate Judge H.R. Stoffels at the time of his death was holding office as associate judge pursuant to paragraph 4 of the schedule of article VI of our constitution by virtue of his election to the office of judge prior to January 1, 1964, for a term running beyond January 1, 1964, which would not expire in 1966; that at the time of his death 71 days prior to the general election of November 8, 1966, and at the time of the general election, there were and are now more than 20 associate judges of the circuit court of Cook County outside Chicago; that no political party nominated a candidate by party convention for the vacancy claimed by plaintiffs to require filling; that eight of the plaintiffs in this action were duly registered and qualified voters residing outside of Chicago in the county of Cook; that plaintiff, Michael M. Phillips, was a resident of the county of Cook outside of the city of Chicago and is a duly licensed attorney at law and a member of the Illinois Bar in good standing; that the defendant county clerk following the general election of November 8, 1966, proclaimed the results of the election as required by law but did not report any of the eight votes cast for plaintiff Phillips to fill the alleged vacancy.

It is clear that the reason for the failure of officials to hold a formal election to fill the alleged vacancy and defendant's refusal to certify Phillips as a duly elected associate judge for the remaining portion of Judge Stoffels's unexpired term was because of the officials' common belief that such an election was prevented by section I of the so-called Attrition Statute (Ill. Rev. Stat. 1965, chap. 37, par. 72.41) which reads in pertinent part:

"§ 1. Except as provided in sub-paragraphs (1), (2), (3) and (4), vacancies in the office of associate judge in any county or unit of any circuit shall not be filled.

"(4) If in the unit comprised of the territory of the circuit of Cook County outside the corporate limits of Chicago the occurrence of a vacancy results in fewer than 12 resident associate judges remaining in office in such unit, the vacancy shall be filled. If in the unit comprised of the territory of the unit of the circuit of Cook County within the corporate limits of Chicago the occurrence of a vacancy results in fewer than 36 resident associate judges remaining in office in such unit, the vacancy shall be filled.

"Vacancies authorized to be filled by this Act shall be filled in the manner provided in Article VI of the Constitution."

This Act was passed on August 1, 1963, some nine months after the new judicial amendment (article VI, hereinafter referred to as the Judicial Article) to the Illinois constitution was adopted, and plaintiffs allege that the Attrition Statute is wholly void because it conflicts with the clear language of the Judicial Article.

The gist of the plaintiffs' argument is that their eight votes should have been counted to effect the election of Phillips because of the language embodied in the second paragraph of section 10 of the Judicial Article:

"The office of any judge shall be deemed vacant upon his death, resignation, rejection, removal or retirement. Whenever a vacancy occurs in the office of judge, the vacancy shall be filled for the unexpired portion of the term by the voters at an election as above provided in this Section, or in such other manner as the General Assembly may provide by law as set out in this Section and approved by the electors."

Plaintiffs contend that "everyone is presumed to know the law", that the Attrition Statute in only permitting the election of associate judges in Cook County outside the city of Chicago to fill vacancies which result in fewer than 12 resident associate judges therefrom is repugnant to the affirmative mandate of the above constitutional provision and is thus void; that therefore the "law" in this instance was the constitutional dictate of section 10 which required that the judicial vacancy created by Judge Stoffels's death be filled in the election at which plaintiffs cast eight votes for Phillips. They further assert that they should not be disenfranchised by a refusal to count the ballots on which they recorded their votes for Phillips by writing in both the office and his name; and they contend that the failure of the major political parties to nominate candidates for this office under the normal election procedure (article VI, section 10) may not be used to defeat their diligent efforts to elect Phillips to the "vacant" associate judgeship.

The fallacy of the plaintiffs' argument is that they overstate the effect of what they consider to be the unequivocal and mandatory language of the above-quoted second paragraph of section 10, thereby ignoring the fundamental principle governing constitutional and legislative construction: the intention of the drafters. In Peabody v. Russel, 301 Ill. 439, 443, we noted: "The same general principles to be applied in construing statutes apply in the construction of constitutions. [Citations.] In the construction of a constitution courts should not indulge in speculation apart from the spirit of the document, or apply so strict a construction as to exclude its real object and intent." In People ex rel. Chicago Bar Ass'n v. Feinberg, 348 Ill. 549, 566, we stated: "The meaning of the constitution is not to be ascertained by giving too great weight to a single phrase, sentence or section. Its several provisions are all parts of one instrument and must be construed together, giving each its proper consideration." And in construing the same Judicial Article now at issue we have said: "we must read the amendment as a whole and attribute to each part a meaning that is consistent and harmonious with the amendment's overall intendment and purpose. [Citing cases.]" People ex rel. Giannis v. Carpentier, 30 Ill.2d 24, 28.

When the Judicial Article is viewed as a whole it is clear that plaintiffs' contention that the second paragraph of section 10 required the filling of Judge Stoffels's position by the electors of Cook County outside of Chicago is wholly without merit. The second paragraph of section 8 of the Judicial Article set out below clearly invests the legislature with the power to prescribe by statute the number of Cook County associate judges to be elected outside of Chicago subject to a constitutionally designated minimum of 12 resident judges from that area:

"There shall be one circuit court for each judicial circuit which shall have such number of circuit and associate judges and magistrates as may be prescribed by law; provided, that there shall be at least twelve associate judges elected from the area in Cook County outside the City of Chicago and at least thirty-six associate judges from the City of Chicago. In Cook County, the City of Chicago and the area outside the City of Chicago shall be separate units for the election or selection of associate judges. All associate judges from said area ...


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