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Walgreen Co. v. Ill. Liq. Control Com.

OPINION FILED JANUARY 23, 1986.

WALGREEN COMPANY ET AL., APPELLANTS,

v.

THE ILLINOIS LIQUOR CONTROL COMMISSION ET AL. (THE ILLINOIS LIQUOR CONTROL COMMISSION ET AL., APPELLANTS; DENNIS E. BOBER ET AL., APPELLEES). — LEWIS H. WINDON ET AL., APPELLANTS,

v.

RUTH KURT ET AL. (WALTER S. KOZUBOWSKI, CITY CLERK, ET AL., APPELLANTS; RUTH KURT ET AL., APPELLEES).



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

JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

This is a direct appeal from the order and judgment of the circuit court of Cook County. (94 Ill.2d R. 302(a).) Plaintiffs, retail liquor licensees, filed separate actions to challenge the validity of petitions gathered to initiate local-option referenda pursuant to section 9-2 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1983, ch. 43, par. 167) on the question of whether the sale of alcoholic liquor should be banned in three precincts of the city of Chicago. Named as defendants were Walter S. Kozubowski, city clerk, and the board of election commissioners of the city of Chicago. The circuit court entered summary judgments in favor of plaintiffs. Intervening defendants, appellees here, filed a complaint in the District Court of the United States for the Northern District of Illinois for injunctive, declaratory and other relief seeking a declaration that section 9-2 of the Liquor Control Act was unconstitutional. Under the doctrine of abstention the district court declined to act and the cause was transferred to the circuit court. Although the record does not contain orders granting leave to intervene to all of the intervenors, the parties have not questioned the standing of any of the intervenors.

Section 9-2 in pertinent part provides:

"When any legal voters of a precinct in any city, village or incorporated town of more than 200,000 inhabitants, as determined by the last preceding Federal census, desire to pass upon the question of whether the sale at retail of alcoholic liquor shall be prohibited in the precinct, they shall, at least 90 days before an election, file in the office of the clerk of such city, village or incorporated town, a petition directed to the clerk, containing the signatures of not less than 25% of the legal voters registered with the board of election commissioners or county clerk, as the case may be, from the precinct. * * *"

On November 1, 1984, the circuit court entered an order in which it vacated the prior orders for summary judgment entered in favor of plaintiffs; declared the 25% requirement of section 9-2 unconstitutional; found that the 10% requirement contained in section 28-6 of the Election Code (Ill. Rev. Stat., 1984 Supp., ch. 46, par. 28-6) applied; and ordered the board of election commissioners if it determined, pursuant to section 28-6 of the Election Code, that the petitions were signed by 10% of the registered voters of the respective precincts, to certify for placement on the November 6, 1984, ballot the local-option questions.

On November 2, 1984, plaintiffs filed their notices of appeal to this court, an emergency petition to vacate and/or reverse the circuit court's order of November 1, 1984, and a motion to stay the force and effect of that order. We denied the motion for stay, the local-option question was placed on the ballots of the precincts, and the voters in each of the precincts voted to prohibit the retail sale of alcoholic liquor. Plaintiffs filed with this court their motion to stay the force and effect of the results of the November 6, 1984, election, and to permit them to remain in operation pending the final disposition of their appeal. We allowed that motion on December 5, 1984. By order of the circuit court several of the causes were consolidated for purposes of appeal, and this court on its own motion consolidated all of the causes.

Section 28-1 of the Election Code in pertinent part provides that questions of public policy which have legal effect shall be submitted to referendum only as authorized by the statute which so provides or by the Constitution. (Ill. Rev. Stat. 1983, ch. 46, par. 28-1.) It further provides that when a statute authorizes the initiation of a public question by a petition of electors the provisions of such statute shall govern with respect to the number of signatures required, the qualifications of persons entitled to sign the petition, the contents of the petition, the officer with whom the petition must be filed, and the form of the question to be submitted. If such statute does not specify any of the foregoing petition requirements, the corresponding petition requirements of section 28-6 shall govern such petition.

Because appellants are plaintiffs, defendants, and an intervening defendant, and the intervening defendants are the appellees, further discussion of the issues will refer to appellants and appellees rather than plaintiffs and defendants.

Appellants contend first that the States, through the twenty-first amendment to the Constitution of the United States, "have a broad right to prohibit or regulate traffic in intoxicating liquor as a valid exercise of their police power." In the exercise of this power the States are vested with wide discretion "subject to minimal demands of the fourteenth amendment's due process and equal protection requirements." They argue that a litigant who challenges the constitutionality of a State's regulation of the liquor industry bears a heavy burden of persuasion and his objection cannot be sustained "unless the objectors demonstrate that the law in question is completely arbitrary and irrational." They assert that since the provisions of section 9-2 of the Liquor Control Act relate exclusively to the liquor industry, its validity must be determined under the foregoing rule.

Appellants contend that the circuit court erred in holding that the 25% signature requirement violated the equal protection clause of the fourteenth amendment to the United States Constitution. They argue that the validity of referenda procedures must be determined by the rational-basis test, which requires only that the classification bear a "rational relationship to a legitimate governmental interest, not whether it is overly broad." (Kalodimos v. Village of Morton Grove (1984), 103 Ill.2d 483, 509.) Appellants argue that the 25% requirement does not improperly interfere with the voters' right to vote, or of any other rights guaranteed them by the first amendment to the United States Constitution. They contend further that the circuit court erred in holding the 10% signature provision of section 28-6 of the Election Code applicable for the reason that a referendum authorized by section 9-2 of the Liquor Control Act is not within the scope of section 28-6.

Appellees contend that section 9-2 "unduly burdens access to the ballot in a referendum and must be examined with heightened scrutiny," rather than the minimum rationality test proposed by appellants. (Williams v. Rhodes (1968), 393 U.S. 23, 30-31, 21 L.Ed.2d 24, 31, 89 S.Ct. 5, 10.) Citing Anderson v. Celebrezze (1983), 460 U.S. 780, 789, 75 L.Ed.2d 547, 558, 103 S.Ct. 1564, 1570, appellees assert that a constitutional challenge to the validity of a State election statute requires that the court examine the character and magnitude of the injury resulting from the State action to the rights protected by the first and fourteenth amendments and the legitimacy and strength of the State's justifications for imposing the burden, and determine whether the State requires such a heavy burden to vindicate its interests. Appellees assert that the 25% petition requirement places too heavy a burden upon the voters, and violates the voters' first amendment rights because it prevents the voters from effectively associating with their fellow precinct residents.

We consider first whether the requirement of section 9-2 that the petitions be signed by 25% of the legal voters is violative of the equal protection clause of the fourteenth amendment or the first amendment to the United States Constitution.

We have examined the authorities cited by appellees and conclude that they are distinguishable from the situation here. Those cases involved access to the ballot by distinct political parties (Anderson v. Celebrezze (1983), 460 U.S. 780, 75 L.Ed.2d 547, 103 S.Ct. 1564; Illinois State Board of Elections v. Socialist Workers Party (1979), 440 U.S. 173, 59 L.Ed.2d 230, 99 S.Ct. 983); voters' first amendment rights to freedom of speech to advertise in support of or opposition to a referendum (First National Bank v. Bellotti (1978), 435 U.S. 765, 55 L.Ed.2d 707, 98 S.Ct. 1407); and voters' first amendment rights of association with a political party and political expression to contribute funds in support of or opposition to a referendum (Citizens Against Rent Control v. City of Berkeley (1981), 454 U.S. 290, 70 L.Ed.2d 492, 102 S.Ct. 434; Buckley v. Valeo (1976), 424 U.S. 1, 46 L.Ed.2d 659, 96 S.Ct. 612).

In Town of Lockport v. Citizens for Community Action (1977), 430 U.S. 259, 51 L.Ed.2d 313, 97 S.Ct. 1047, the Supreme Court held valid a New York statute which provided that the effectuation of certain changes in county government required that in a referendum the proposed change be approved by both a majority of the voters in the cities in the county, ...


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