No. 48746. Original petition for mandamus.
No. 48758. Appeal from the Circuit Court of Cook Couty; the
Hon. Nathan M. Cohen, Judge, presiding.
Rehearing denied January 28, 1977.
William J. Scott, Attorney General, of Chicago (Herbert Lee Caplan, Assistant Attorney General, of counsel), for appellants State Board of Elections et al.
Thomas R. Meites, of Chicago, for appellants Coalition for Political Honesty et al.
Ancel, Glink, Diamond & Murphy, O'Keefe, Ashenden & Lyons, and Witwer, Moran, Burlage & Atkinson, all of Chicago (Louis Ancel, Stewart H. Diamond, Gordon V. Levine, Thomas G. Lyons, and Samuel W. Witwer, of counsel), for appellees.
These consolidated cases involve an initiative petition proposing three amendments to article IV, the legislative article of the Illinois Constitution of 1970. In cause No. 48758 the plaintiffs, who are citizens and taxpayers of Illinois, filed an action in the circuit court of Cook County seeking to enjoin the State Board of Elections and other State and county officials from expending approximately $1,750,000 in public funds to determine the validity and sufficiency of the initiative petition and to arrange for and to conduct an election on the proposed amendments. The plaintiffs are Elmer Gertz, Thomas J. McCracken, Louis J. Perona, Lucy Reum, Maurice W. Scott and Elbert S. Smith, who served as delegates to the 1970 constitutional convention and Ann M. Lousin, who served as a member of the research staff of the convention. Plaintiff Louis J. Perona served as the spokesman for the Committee on the Legislature at the debates concerning the legislative initiative at the constitutional convention. The president of the 1970 constitutional convention, Samuel W. Witwer, represents the plaintiffs. His co-counsel is Thomas G. Lyons, who was a delegate and the vice president of the constitutional convention. Prior to the convention he served as the chairman of the Constitution Study Commission, which was created by the General Assembly to do preparatory work in the organization of the convention. The Coalition For Political Honesty (hereafter, the Coalition), an association that circulated the initiative petition throughout the State, was allowed to intervene in the proceeding as a defendant. The circuit court issued the injunction, holding the proposed amendments failed to meet the Constitution's requirements and also holding the petitions unconstitutional under the Illinois and United States constitutions. This court allowed the defendants' motion to transfer their appeal from the appellate court to us under our Rule 302(b). 58 Ill.2d R. 302(b).
Cause No. 48746 was an original action brought in this court (58 Ill.2d R. 381) by the petitioner, the Coalition, seeking a writ of mandamus directing the respondents, the State Board of Elections and its members, to certify the amendments proposed by the initiative petition on or before September 2, 1976. We consolidated the two cases for oral argument, which was heard on August 23, 1976. On August 31, 1976, we announced our affirmance of the circuit court's judgment in cause No. 48758, and that we were dismissing the petition for mandamus in cause No. 48746. This opinion will state the reasons for our holdings.
Article XIV of our constitution of 1970 provides the methods by which the Constitution may be revised. Section 3, which is relevant here, provides:
"CONSTITUTIONAL INITIATIVE FOR LEGISLATIVE ARTICLE
Amendments to Article IV of this Constitution may be proposed by a petition signed by a number of electors equal in number to at least eight percent of the total votes cast for candidates for Governor in the preceding gubernatorial election. Amendments shall be limited to structural and procedural subjects contained in Article IV. A petition shall contain the text of the proposed amendment and the date of the general election at which the proposed amendment is to be submitted, shall have been signed by the petitioning electors not more than twenty-four months preceding that general election and shall be filed with the Secretary of State at least six months before that general election. The procedure for determining the validity and sufficiency of a petition shall be provided by law. If the petition is valid and sufficient, the proposed amendment shall be submitted to the electors at that general election and shall become effective if approved by either three-fifths of those voting on the amendment or a majority of those voting in the election." Ill. Const. 1970, art. XIV, sec. 3.
The initiative thus is limited to the legislative article. The proposed amendments would have been to three sections of article IV, the legislative article.
Proposal 1 would amend section 2(e) of article IV as follows (the language to be added under the amendment is in italics, and the language to be deleted is lined through):
"No member of the General Assembly shall receive compensation
as a public officer or employee from any other governmental entity for time during which he is in attendance during his term as a member of the General Assembly."
Proposal 2 would amend section 8(c) of article IV as follows (the added language is in italics):
"No bill shall become a law without the concurrence of a majority of the members elected to each house. Final passage of a bill shall be by record vote. In the Senate at the request of two members, and in the House at the request of five members, a record vote may be taken on any other occasion. A record vote is a vote by yeas and nays entered on the journal. A member who has a conflict of interest as a result of a personal, family, or financial interest in a bill shall disclose that interest to the house of which he is a member, and shall not vote thereon. A member so precluded from voting shall not be counted as an elected member on that vote."
Proposal 3 would amend section 11 of article IV as follows (the addition is italicized):
"A member shall receive a salary and allowances as provided by law, except that no member shall receive payments of salary in advance of performance of duties as a member of the General Assembly.
but Changes in the salary of a member shall not take effect during the term for which he has been elected."
The plaintiffs' complaint alleged that none of the three proposals conformed to the provisions of the Constitution which restrict the subject matter of constitutional amendments. The complaint noted that the second sentence of section 3 of article XIV states: "Amendments shall be limited to structural and procedural subjects contained in Article IV." (Ill. Const. 1970, art. XIV, sec. 3.) The plaintiffs argued that this limitation requires that any amendments proposed under section 3 must be to effect changes in both the structure and procedure of subjects in article IV, the existing legislative article, and that none of the proposals satisfied this requirement. They contended that section 3 contemplated only amendments such as converting from multiple- to single-member legislative districts, changing provisions for cumulative to ones for normal voting for house members, or from a bicameral to a unicameral legislature structural changes which would necessarily require additional procedural changes. The plaintiffs contended further that propositions 1 and 2 violated the due process and equal protection clauses of the constitutions of Illinois and the United States. Ill. Const. 1970, art. 1, sec. 2; U.S. Const., amend. XIV, sec. 1.
The circuit court granted the plaintiffs' motion for summary judgment. It held that to comply with the requirements of section 3 amendments proposed under the intitiative must be both "structural and procedural." The court considered that while each of the three proposals could arguably relate to procedural matters, none of them conformed to the combined requirement. It further held that proposal 1, which would preclude a member of the legislature from receiving compensation from another governmental entity during his term of office, violated the due process and equal protection clauses and that proposal 2, relating to conflicts of interest, was so vague and indefinite as to violate the due process clauses of both constitutions.
The defendants make several contentions on this appeal, challenging the circuit court's holding. They say first that the court improperly took jurisdiction and rendered an opinion in the "abstract," since the controversy was not "ripe" for decision. They contend that if the initiative petition was proper as to form, having, for example, the proper number of valid signatures, the proposals must be submitted to the electorate and then approved by the electorate before a justiciable controversy exists. To support this contention they cite decisions to the effect that courts will not enjoin the holding of an election. Slack v. City of Salem, 31 Ill.2d 174; People ex rel. Schlaman v. Electoral Board, 4 Ill.2d 504; Fletcher v. City of Paris, 377 Ill. 89.
We do not consider those holdings are controlling. We are not concerned with an election or a legislative referendum, but rather, with the question whether proposed amendments to our constitution satisfy the Constitution's own requirements for its amendment. Article XIV, section 3, of the Constitution provides specific requirements for the proposing of amendments under the initiative procedure. The Constitution has an express limitation as to the subject matter of a proposal: "Amendments shall be limited to structural and procedural subjects contained in Article IV." Any offered amendment under the initiative obviously must comply with the procedure and the limitations on amendment set out in section 3 before it can be submitted to the electorate. As this court has observed: "The constitution is the supreme law, and every citizen is bound to obey it and every court is bound to enforce its provisions. It is a most extraordinary doctrine that the court has a discretion to enforce or not enforce a provision of the constitution according to its judgment as to its wisdom or whether the public good will be subserved by disregarding it." People ex rel. Miller v. Hotz, 327 Ill. 433, 437.
This was expressed, too, in Cooley's Constitutional Limitations, where it was said:
"But the will of the people to this end can only be expressed in the legitimate modes by which such a body politic can act, and which must either be prescribed by the constitution whose revision or amendment is sought, or by an act of the legislative department of the State, which alone would be authorized to speak for the people upon this subject * * *." 1 Cooley's Constitutional Limitations, 84-85 (8th ed. 1927).
A taxpayer's suit, as was brought here, to enjoin the disbursement of public moneys (Ill. Rev. Stat. 1975, ch. 102, pars. 11 through 18) is an appropriate proceeding to determine whether proposed amendments by initiative meet requirements of article XIV, section 3. In Allen v. Powell, 42 Ill.2d 66, 68, this court stated: "It has been held that injunctive relief will be granted to prevent a waste of public funds by the holding of an election under an unconstitutional election statute. (Moran v. Bowley, 347 Ill. 148; Niebling v. Town of Moline, 8 Ill.2d 11.) It follows that any election called in violation of the constitution likewise may be restrained and an action for injunctive relief is a proper remedy." See also McAlpine v. Dimick, 326 Ill. 240, 250-51.
The parties stipulated that approximately $1,750,000 in public funds would be spent to determine the sufficiency of the petition and to conduct the election on the three proposed amendments. Had this court postponed its consideration of the question presented here until the proposals had been submitted and then determined that the proposals did not meet the requirements in section 3 for amendment, almost $2 million in public funds would have been wasted. Further, even if it could be said that substantive constitutional questions of due process and equal protection under the proposed amendments were not ripe for determination (see Annot., 19 A.L.R.2d 519 (1951)), the question of whether the proposed amendments met the requirements of the initiative under our constitution were directly before us. No future events or consideration would or could sharpen or better define this issue for our decision.
We would observe that other jurisdictions have held it proper to enjoin the holding of citizens' referenda on proposed amendments which did not comply with amending provisions of their constitutions. See McFadden v. Jordan (1948), 32 Cal.2d 330, 196 P.2d 787; Mathews v. Turner (1931), 212 Iowa 424, 236 N.W. 412; Cohen v. Attorney General (1968), 354 Mass. 384, 237 N.E.2d 657; Moore v. Brown (1942), 350 Mo. 256, 165 S.W.2d 657; Leach v. Brown (1957), 167 Ohio St. 1, 3 Ohio Op.2d 346, 145 N.E.2d 525.
It appears plain, too, that it was the intention of the constitutional convention that the courts were to determine whether constitutional requirements for a proposed amendment were satisfied. Delegate Louis Perona was the spokesman for the majority on the Committee on the Legislature, concerning the initiative process for amendments to the legislative article. In discussing the permissible scope of proposed amendments he was ...