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Lipinski v. Chicago Bd. of Elec. Comm'rs





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


This appeal results from a proposed referendum for the November 4, 1986, election in the city of Chicago providing:

"Shall the mayor, the treasurer and the clerk of the City of Chicago be elected on a non-partisan ballot, by at least a 50% majority vote, but if no candidate receives at least 50% of the votes cast for the respective office, then in a run-off election between the two candidates for the office who received the greatest number of votes for that office at the initial election?"

The referendum proposition (the nonpartisan referendum) was initiated by petition pursuant to section 28-7 of the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 28-7), and filed with the Chicago board of election commissioners (the board) on August 18, 1986, by William Lipinski, Anthony Haswell, Richard Mell, and Robert Molaro (the Lipinski plaintiffs).

Betty J. Willhoite, the Reverend Jesse W. Cotton, and Mary E. Zuniga (the Willhoite plaintiffs) filed a timely verified objector's petition challenging the proposed referendum (Ill. Rev. Stat. 1985, ch. 46, pars. 10-8, 28-4.) They claimed that the petition was not supported by the number of valid signatures necessary to initiate a referendum (Ill. Rev. Stat. 1985, ch. 46, par. 28-7). In addition, the Willhoite plaintiffs claimed that the referendum could not appear on any ballot because the proposition was fatally vague and ambiguous. They also argued that the Chicago city council had previously adopted resolutions authorizing three advisory referenda to be submitted to voters at the November election, and under the "Rule of Three," which precludes "more than 3 public questions" from being "submitted to referendum with respect to a political subdivision at the same election" (Ill. Rev. Stat. 1985, ch. 46, par. 28-1), there was no room for the nonpartisan referendum on the November 4 ballot.

On September 3, 1986, the board decided (with one member dissenting) that while the "Rule of Three" prevented the nonpartisan referendum from appearing on the November ballot, it was eligible for submission to the voters at the consolidated primary election scheduled for February 24, 1987.

The Lipinski plaintiffs sought judicial review of the board's decision and mandamus relief to compel the board to place the nonpartisan referendum on the November ballot and to remove the Chicago city council's three advisory referenda from that ballot. The Willhoite plaintiffs sought judicial review of that portion of the board's decision certifying the nonpartisan referendum for the February 1987 consolidated primary election. The circuit court denied the relief requested by the Lipinski plaintiffs. It also ruled that although the board failed to conduct a full hearing on the Willhoite plaintiffs' objections, it would, rather than remanding the entire matter to the board for a complete hearing, expedite the election process by ruling on some of the objections regarding the sufficiency in law and content of the nonpartisan referendum. The court then held, inter alia, that the nonpartisan referendum presented a proper question and was neither vague nor ambiguous. It remanded the issue regarding the sufficiency of the signatures on the initiating petition to the board for a full hearing. The effect of the circuit court ruling was to deny placement of the nonpartisan referendum on the November 4, 1986, ballot and to leave open the question of whether the referendum should be placed on the February 24, 1987, ballot.

The circuit court also found under Supreme Court Rule 304 (103 Ill.2d R. 304) that there was no just reason to delay enforcement or appeal. All parties asked this court to accept a direct and expedited appeal under our Rule 302(b) (94 Ill.2d R. 302(b)). We ordered briefs filed on an expedited basis, took the appeal without oral argument, and on October 1, 1986, entered the following order (Chief Justice Clark and Justice Ward not participating):

"The judgment of the circuit court, to the extent that it affirmed the decision of the Chicago board of election commissioners that the nonpartisan election referendum not be placed on the November 4, 1986 ballot, is affirmed. A written opinion will follow."

The issues presented to this court are: (1) Is the nonpartisan referendum proposition vague and ambiguous and therefore fatally defective? (2) Does the city of Chicago have authority to initiate advisory referenda? and (3) Is the nonpartisan referendum barred from the November ballot under the "Rule of Three?" Our conclusion with respect to the first issue makes it unnecessary to address the other two issues.

Article VII, section 6(f), of the Illinois Constitution gives each home rule unit "the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law." (Ill. Const. 1970, art. VII, sec. 6(f).) In Leck v. Michaelson (1986), 111 Ill.2d 523, this court recently considered this constitutional provision and concluded that it requires voters to approve "a coherent scheme for altering the election of their officials." (Emphasis added.) (111 Ill.2d 523, 530.) The holding of Leck is clear: A referendum submitted under the provisions of article VII, section 6(f), must be able to "stand on its own terms"; if the referendum submitted to voters is not self-executing — leaving gaps to be filled by either the legislature or municipal body — then "[j]ust what was approved by the voters [in the referendum proposition] is uncertain." (111 Ill.2d 523, 530.) Because the referendum seeking to change the manner of selecting municipal officers at issue in Leck required additional provisions "not clearly contemplated by the terms of [the referendum] proposition" (111 Ill.2d 523, 528), we held that it was vague and ambiguous, and therefore invalid.

The referendum proposition in the instant case suffers from infirmities similar to those which doomed the referendum examined in Leck, and the Election Code does not supply the answers necessary to make the referendum self-executing. The proposition fails to specify when it would take effect — at the 1987 election of city officials, or at a subsequent one. Since the proposition is mute regarding the election to which it would first apply, we have no way of determining the intent of those who signed the initiating petition with respect to this important but omitted detail. Similarly, should the referendum be submitted to the voters, their intent regarding when the referendum should take effect also could not be be ascertained. Whether the nonpartisan election would commence in 1987, or at a later election, however, could not only significantly affect the outcome of the vote, but also could create a constitutional problem.

Specifically, the Lipinski plaintiffs contend that the initial nonpartisan election would be held on February 24, 1987 (see Ill. Rev. Stat. 1985, ch. 46, pars. 2A-1.1(b), 2A-1.2(d)), but were the nonpartisan election conducted on that date, the time for candidates to circulate their nominating petitions would be drastically reduced. Petitions for candidates for the February 24, 1987, election must be filed between December 8, 1986, and December 15, 1986. (Ill. Rev. Stat. 1985, ch. 46, par. 10-6; see also Chicago Board of Election Commissioners 1987 Election Calendar.) The Election Code, however, allows each candidate for office to circulate a nominating petition commencing "90 days preceding the last day provided * * * for the filing of such petition." (Ill. Rev. Stat. 1985, ch. 46, par. 10-4.) This means that candidates throughout the State running at the time of the February 1987 consolidated primary election could begin circulating petitions on September 16, 1986. Were the nonpartisan referendum adopted at the November 4, 1986, election and applied to the February 24, 1987, election date, however, candidates for municipal offices in Chicago could not start to circulate their petitions until November 5, 1986, or whatever later date the proper authorities might certify the adoption of the nonpartisan referendum. The result would be that the time for circulating nominating petitions would be reduced from 90 days (September 16 to December 15) to at most 40 (November 5 to December 15) and perhaps fewer days. The nonpartisan referendum, by depriving candidates seeking office in the city of Chicago from having the same time to circulate their nominating petitions as other candidates for office, runs afoul of article III, section 4, of the Constitution, which mandates that laws governing conduct of elections be "general and uniform." Ill. Const. 1970, art. III, sec. 4.

Along with the significant reduction in the number of days available for circulating nominating petitions if the first nonpartisan election is held in February 1987, the number of signatures required to become a nonpartisan candidate would be substantially greater than under the existing partisan election system. The nonpartisan referendum is silent with respect to how many signatures are needed to get on the nonpartisan ballot. In this circumstance the Election Code refers us to its requirements for filing independent party petitions. (See Ill. Rev. Stat. 1985, ch. 46, pars. 10-3, 10-3.1.) An independent party candidate must obtain the signatures of "not less than 5%, nor more than 8% * * * of the number of persons, who voted at the next preceding regular election in such * * * political sub-division in which such * * * political sub-division voted as a unit for the election of officers to serve its respective territorial area," provided that the number not exceed 25,000. (Ill. Rev. Stat. 1985, ch. 46, par. 10-3.) Five percent of the number of persons who voted in the 1983 mayoral election exceeds 25,000; consequently, under the Election Code any nonpartisan candidate for mayor, treasurer or clerk of Chicago would be required to file a minimum of 25,000 signatures to have his name placed on the ballot. That number of signatures would be approximately a 500% increase over the number currently required to file a nominating petition under the partisan system for Democratic candidates for mayor, treasurer and clerk, and more than an 800% increase for Republican candidates. The increase, while dramatic, does not invalidate the nonpartisan referendum because the Election ...

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