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12/30/87 League of Women Voters of v. the County of Peoria Et Al

December 30, 1987

LEAGUE OF WOMEN VOTERS OF PEORIA ET AL., APPELLANTS

v.

THE COUNTY OF PEORIA ET AL., APPELLEES



SUPREME COURT OF ILLINOIS

520 N.E.2d 626, 121 Ill. 2d 236, 117 Ill. Dec. 275

Appeal from the Circuit Court of Peoria County, the Hon. Robert E. Manning, Judge, presiding. 1987.IL.1941

APPELLATE Judges:

JUSTICE MORAN delivered the opinion of the court. JUSTICE SIMON, Dissenting. CHIEF JUSTICE CLARK joins in this Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

Plaintiffs, the proponents of a successful Peoria County referendum, filed in the circuit court of Peoria County a complaint to obtain a writ of mandamus commanding the defendants, the County of Peoria and Mary E. Harkrader as Peoria County clerk, to implement and enforce the referendum. During the circuit court proceedings, 10 incumbent members of the Peoria County Board were allowed to intervene and joined defendants in moving to dismiss the complaint. The circuit court dismissed the complaint with prejudice. We allowed a direct appeal to be taken to this court under Rule 302(b) (107 Ill. 2d R. 302(b)).

The issues presented for review are: (1) whether, under sections 3(b), 4(c) or 7(2) of article VII of the Illinois Constitution, the electorate of a county can change by referendum both the method of electing county board members from multimember to single-member districts and the number of county board members; (2) whether a county-wide referendum attempting to change both the method of electing county board members and the number of members is valid and enforceable when it is in apparent conflict with the State reapportionment statutes (Ill. Rev. Stat. 1985, ch. 34, par. 831 et seq.); (3) whether, if such a referendum is valid, the county and county clerk have a duty to implement the referendum, and if so, what is the extent of their respective duties.

The relevant facts as alleged in the complaint are not in dispute. A Peoria County resolution, adopted by the Peoria County Board and filed June 9, 1981, provides in pertinent part:

"6. That Peoria County shall be divided into nine (9) County Board Districts for election purposes.

9. That from each of the nine (9) County Board Districts, three (3) County Board Members shall be elected thereby making the size of the Peoria County Board twenty-seven (27) members." (Peoria County Resolution, pars. 6, 9 (June 9, 1981).)

Article II, section 2 -- 16, of the Code of Peoria County presently provides:

"The county board shall be composed of twenty-seven (27) members with three (3) members elected from each of the nine (9) county board districts established by the county board." Code of Peoria County, art. II, § 2 -- 16 (1982).

On August 11, 1986, plaintiffs filed with defendant Harkrader, the Peoria County clerk, a petition for submission of a public question pursuant to section 28-7 of the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 28-7). The petition requested submission of the following proposition to Peoria County voters at the November 4, 1986, general election:

"Shall the number of members of the Peoria County Board be reduced from twenty-seven (27) to nine (9), one member to be elected from each district? Provided, the change shall be effective in the 1988 election, at which time nine (9) members shall be elected as described above to replace all members then in office. Following the 1988 election, the newly elected members shall draw lots, with five (5) members to be chosen to serve four-year terms and four (4) members chosen to serve two-year terms. Subsequent terms of office shall be four (4) years."

No one objected to plaintiffs' petition.

The proposition appeared on the November 1986 ballot. 29,988 voted yes and 11,517 voted no. After the November election, no election contest was filed, and no recount was requested.

In December 1986, plaintiffs made several written requests to defendants that the referendum results be implemented. The defendants have failed to act in response to those demands.

Plaintiffs argue that under article VII of the Illinois Constitution, the electors may by county-wide referenda: (1) change the method of electing county board members (Ill. Const. 1970, art. VII, § 3(b)); (2) eliminate or change the terms of office and manner of selection of any county office (Ill. Const. 1970, art. VII, § 4(c)); and (3) adopt, alter and repeal their forms of local government provided by law (Ill. Const. 1970, art. VII, § 7). They further argue that each of the above constitutional provisions is sufficient in itself to authorize the Peoria County referendum that is before this court. Plaintiffs also assert that the Peoria County referendum is coherent and self-executing as required by Lipinski v. Chicago Board of Election Commissioners (1986), 114 Ill. 2d 95. They conclude that the referendum is valid and enforceable and that defendants have a duty to implement the referendum. Specifically, plaintiffs request a writ of mandamus commanding the County of Peoria to amend article II, § 2 -- 16, of the Code of Peoria County, and the resolution of Peoria County filed June 9, 1981, to read in conformity with the referendum. They further request a writ of mandamus commanding Mary E. Harkrader as Peoria County clerk to: prepare appropriate campaign and election materials implementing the single-member-district method of election; notify all interested persons that there will be only single-member districts in Peoria County for the 1988 election; notify all incumbent county board members that their terms of office expire when their successors are elected in 1988; and to notify all interested persons that the nine newly elected board members in 1988 will be subject to a draw of lots for five four-year terms and four two-year terms.

Defendants respond that the determination of the number of county board members is a power reserved exclusively to the county board under section 3(a) of article VII of the Illinois Constitution. They also contend that the referendum does not allow for reapportionment to comply with the constitutional requirement of "one man, one vote" as implemented by Illinois State statute (Ill. Rev. Stat. 1985, ch. 34, par. 831 et seq.). Finally, defendants argue that even if the referendum is valid and enforceable, a writ of mandamus would still not be appropriate because neither the County of Peoria nor the county clerk has a legal duty to perform the actions requested by plaintiffs. The intervenors basically echo the arguments of defendants.

Mandamus is not a writ of right but is awarded only in the exercise of sound judicial discretion in accord with legal principles. (People ex rel. Cannella v. City of Chicago (1955), 7 Ill. 2d 416, 418.) Mandamus is appropriate only where there is a clear right to the requested relief, a clear duty on the part of the respondent to act, and clear authority in the respondent to comply with the terms of the writ. (In re Claudia K. (1982), 91 Ill. 2d 469, 476.) Therefore, in this case, plaintiffs must show not only that the referendum is valid and enforceable, thus giving plaintiffs the right to relief, but also that the County of Peoria and the county clerk have the duty to perform the requested actions.

To be valid and enforceable, a referendum must be authorized by article VII of the Illinois Constitution or by law. (Ill. Const. 1970, art. VII,

Resolution of that question requires interpretation of various constitutional provisions. The meaning of a constitutional provision depends on the common understanding of the citizens who, by ratifying the Constitution, gave it life. (Kalodimos v. Village of Morton Grove (1984), 103 Ill. 2d 483, 492; People ex rel. Cosentino v. County of Adams (1980), 82 Ill. 2d 565, 569; Client Follow-Up Co. v. Hynes (1979), 75 Ill. 2d 208, 222.) This understanding, however, is best determined by referring to the common meaning of the words used. (Kalodimos, 103 Ill. 2d at 492-93; Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 464.) If ambiguities remain after consulting the language of the provision, it is appropriate to consult the debates of the delegates to the constitutional convention to ascertain the meaning which the delegates attached to those provisions. (Kalodimos, 103 Ill. 2d at 493; Client Follow-Up Co., 75 Ill. 2d at 220.) The reason is that it is only with the consent of the convention that such provisions are submitted to the voters in the first place. Kalodimos, 103 Ill. 2d at 493.

In this case, there are four relevant constitutional provisions: sections 3(a), 3(b), 4(c) and 7 of article VII of the Illinois Constitution. We shall take each section in turn.

SECTION 3(a)

Section 3(a) provides:

"(a) A county board shall be elected in each county. The number of members of the county board shall be fixed by ordinance in each county within limitations provided by law." (Ill. Const. 1970, art. VII, 3(a).)

The plain meaning of section 3(a) is that the number of county board members is determined by the county board and not by referendum. The use of the term "shall" requires that each county enact ordinances fixing the number of county board members. That power to fix the number is limited only by "law."

Plaintiffs assert that the common meaning of "law" includes a successful referendum and thus section 3(a) allows voters to place limitations on the number of county board members by referendum. However, not all "successful" referenda will be given the effect of law. For example, certain referenda that are not self-executing will not be enforced. (Leck v. Michaelson (1986), 111 Ill. 2d 523. See also Lipinski v. Chicago Board of Election Commissioners (1986), 114 Ill. 2d 95.) Referenda not expressly authorized by the Illinois Constitution will also not be given the effect of law. (Ill. Const. 1970, art. VII, § 11. See also Coalition for Political Honesty v. State Board of Elections (1977), 65 Ill. 2d 453 (Illinois Constitution limits popular initiatives (referenda) to amendments whose subjects would effect both the structure and procedure of the legislature; initiative proposal which did not meet that requirement held invalid).) Therefore, plaintiffs' assertion is at best only partially acceptable; a referendum that is not authorized by the Illinois Constitution or that is otherwise invalid cannot be a "law."

Section 3(a) does not expressly authorize a referendum to fix the number of county board members. Therefore, even assuming that the term "law" as used in article VII would include a valid, authorized, successful referendum, section 3(a) does not by itself provide the necessary authority for a referendum. The authority for a referendum to fix the number of county board members must come, if at all, from elsewhere -- in this case, either sections 3(b), 4(c) or 7 of article VII.

SECTION 3(b)

Plaintiffs concede that a county board has the authority to fix the number of its members but assert that that authority is not exclusive. Plaintiffs contend that section 3(b) of article VII gives the electorate the power ...


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