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Leck v. Michaelson

OPINION FILED DECEMBER 18, 1984.

PATRICIA LECK ET AL., PLAINTIFFS-APPELLEES,

v.

RONALD MICHAELSON, DIRECTOR, ILLINOIS STATE BOARD OF ELECTIONS ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Joseph Schneider, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 16, 1985.

This case presents constitutional issues of first impression relating to Illinois election law. Plaintiffs are voters residing in the village of Lansing (village). Plaintiff Leck was also a candidate for the office of village trustee in the 1983 village election. Defendants Malkas, Eggert and Kelsven were likewise candidates for village trustee in that election. Plaintiffs brought this action in the Cook County circuit court, requesting the court to direct the village to conduct a runoff election for the office of trustee, pursuant to the provisions of village ordinance No. 539 (the ordinance). *fn1

Defendants argued that no runoff election should be held. They urged the trial court to hold the ordinance invalid on the ground that the village — a home rule unit — was without authority to enact such ordinance because the 1970 Illinois Constitution made the regulation of election procedures a State, not a home rule, function. Defendants claimed that the ordinance conflicted with controlling State statutes. Defendants also contended that the ordinance was invalid because it had not been "approved by referendum" within the meaning of the Constitution.

The record presents the following facts. In April 1979, the village held a referendum on the proposition:

"Shall a run-off election be held for any candidates for public office in the Village of Lansing who do not receive fifty percent (50%) of the votes cast for that office."

The proposition carried. Thereafter, the village board drafted and, in July 1979, passed the ordinance which purported to "implement" the referendum proposition. Defendant Mayor La Mourie vetoed the ordinance. The village board overrode the mayor's veto, and the ordinance took effect in September 1979.

The ordinance, some five pages in length, requires that in order to be elected to the position of village president, clerk or trustee, a candidate must "receive fifty percent of the votes cast at an election held for those respective offices * * *." If the office is not won by a candidate with at least 50% of the vote, the ordinance calls for a runoff election to determine the winning candidate. *fn2

Runoff elections are scheduled by the ordinance for "4 weeks after the regular municipal election." In a section entitled "Procedures for Conducting a Run-off Election," the ordinance addresses such items as the time polls will be open; determining tie votes; ballots; publication of notices; candidate ballot positions; and prohibits the replacement of a candidate who withdraws from a runoff election. *fn3

In April 1983, election was held for several village offices, including three village trustee positions. Eight candidates vied for the three trustee seats. "Ballot applications" were filed by 3,516 voters. Each voter was entitled to cast three non-cumulative votes for trustee candidates. Thus, the maximum possible number of votes which could be cast for trustee candidates was 10,548 (three votes by each of the 3,516 voters). The number of votes actually cast for trustee candidates was 9,702, as follows:

Eisha ..................... 1,821 Eggert .................... 1,617 Kelsven ................... 1,303 Leck ...................... 1,266 Malkas .................... 1,203 Imes ...................... 854 Swansey ................... 845 Substalea ................. 793

Pursuant to certification of the above vote totals, candidates Eisha, Eggert and Kelsven were declared to be the elected trustees, and they were sworn into office.

Plaintiffs then instituted this action, alleging that the ordinance mandated a runoff election because none of the trustee candidates had received 50% of the "votes cast at the election for that office."

The case was presented to the trial court on the pleadings, memoranda of law and stipulated facts. In a memorandum decision, the trial court held that under its home rule power the village had authority to establish the 50% majority requirement for election; to prescribe the runoff election system to effect the 50% majority; and to schedule runoff elections four weeks after the "regular" village election, notwithstanding the fact that such schedule conflicted with the "consolidated election schedule" in the State Election Code. The trial court held invalid those provisions of the ordinance which purport to establish "Procedures" for conducting a runoff election, holding that these aspects of election law are controlled by State statute. The court also upheld the referendum procedure whereby the ordinance was "approved" by the village voters, even though the court noted that "certain provisions of the ordinance are outside the authorization of the referendum."

Applying the ordinance to the 1983 village trustees election, the trial court determined that the number of "votes cast" for the office of trustee was 3,516 (the number of voters who requested ballots at the election) and on that basis found that only candidate Eisha had garnered the necessary 50% majority. The court ordered defendants Eggert and Kelsven removed from office, and directed that a runoff election for the resultant two trustee vacancies be held between the four remaining candidates with the highest vote totals. The court also denied plaintiffs' request for attorney fees and stayed its order pending this appeal.

Defendants appeal from those portions of the court's order which upheld sections of the ordinance and the village's referendum procedure. Plaintiffs cross-appeal from the denial of their request for attorney fees.

Resolution of the issues raised in this case compels consideration of several provisions of the 1970 Illinois Constitution. The concept of home rule delineated in the 1970 Constitution altered drastically the relationship between State and local governments. Previously, local governments were limited to the exercise of only those powers granted to them by the General Assembly. Now, home rule units are granted wide autonomy in the conduct of their government and affairs. To accomplish such independence, the Constitution accorded substantial authority to home rule units, subject only to the restrictions imposed or authorized in the Constitution. See Kanellos v. County of Cook (1972), 53 Ill.2d 161, 290 N.E.2d 240.

We consider first the validity of the village ordinance.

I

THE ORDINANCE

We find distinct those provisions of the ordinance which (A) establish a 50% majority vote requirement for election to village office and a runoff election system to implement such requirement; and (B) those provisions which set the runoff election schedule and define the runoff election "procedures."

A

• 1 We agree that the village of Lansing, as a home rule unit, is empowered to establish a 50% majority vote requirement for election to village office, and to adopt a runoff election system to achieve such requirement. Article VII, section 6(f), of the Constitution provides, in part:

"A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as ...


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