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11/21/88 Dennis S. Kluk, v. Louis I. Lang Et Al.

November 21, 1988

DENNIS S. KLUK, APPELLEE AND CROSS-APPELLANT

v.

LOUIS I. LANG ET AL., APPELLANTS AND CROSS-APPELLEES. -- ISAAC DANIEL, APPELLANT,

v.

LOUIS I. LANG ET AL., APPELLEES



SUPREME COURT OF ILLINOIS

531 N.E.2d 790, 125 Ill. 2d 306, 126 Ill. Dec. 163 1988.IL.1681

Appeal from the Circuit Court of Cook County, the Hon. Eugene L. Wachowski, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

In each of these consolidated cases, the plaintiff challenged the constitutionality of section 25-6 of the Election Code (Ill. Rev. Stat., 1986 Supp., ch. 46, par. 25-6) (the statute), which provides a method for filling a vacancy in the office of State Senator or Representative in the General Assembly. The plaintiffs asserted that the statute represents an unconstitutional delegation of legislative power to private individuals. Louis I. Lang, the defendant in each case, had been appointed by the Democratic Party's representative committee of the First Representative District to succeed the former Representative, who had resigned.

The issues presented to the court are:

(a) Whether plaintiffs have standing.

(b) If so, whether the statute is unconstitutional as an improper delegation of legislative power.

(c) If so, whether the circuit court properly denied injunctive relief and denied a motion to amend the complaint.

Because we hold that plaintiffs have standing but that the statute is constitutional, we need not reach the remaining issue.

FACTS

On May 29, 1987, Representative Alan J. Greiman, a member of the Democratic Party, was appointed by this court as a Judge of the circuit court of Cook County, his appointment to be effective on July 10, 1987. (In re Judicial Vacancy (May 29, 1987), M.R. 1403.) On June 9, 1987, Isaac Daniel, as a resident, voter, and taxpayer in the First Representative District (the district), filed a complaint in the circuit court of Cook County under the title of Daniel v. Sutker, No. 87 -- CO -- 205, seeking (1) a declaratory judgment that the statute is unconstitutional and (2) an injunction to prevent the Democratic Party's representative committee (the committee) of the district from meeting to make an appointment to fill the impending vacancy in Representative Greiman's office. The defendants asserted that Representative Greiman had not yet resigned and had not been tendered an appointment in conflict with the Election Code, and on June 16 the circuit court dismissed Daniel's first complaint for lack of an actual controversy. That complaint is not involved in the appeals sub judice.

On July 1, 1987, Representative Greiman announced his intention to resign as of July 5. On July 2, the committee met, and its chairman announced that the purpose of the meeting was to consider candidacies for the "possible" vacancy to be created by resignation of Representative Greiman. At this meeting, the committee heard presentations from various candidates, including Kluk and Lang, and then (as Daniel asserts in his brief without contradiction) adjourned without announcing a date for its reconvening.

Representative Greiman's resignation became effective at 8 a.m. on Sunday, July 5, 1987. The committee met, appointed Lang to the vacancy in the office of Representative, and filed the appointment with the Secretary of State and the clerk of the House of Representatives, all on or under date of July 5.

While the record is silent on the point, it appears that, prior to filing the appointment of Lang with the Secretary and clerk, the committee never separately declared that a vacancy had occurred and never gave notification of the vacancy (rather than the appointment) to the State Board of Elections, the Secretary, and the clerk as required by the statute. (See Ill. Rev. Stat., 1986 Supp., ch. 46, par. 25-6(a).) However, a declaration of the vacancy was contained within the committee's certificate of Lang's appointment to fill the vacancy, and no party's brief raises as an issue any failure by the committee to make the statutory declaration and give notification of the vacancy to any of the specified recipients before appointing Lang (or to the State Board of Elections at all). Nor is it explicit in the statute that such declaration and notification must precede rather than accompany or follow an appointment.

On July 8, 1987, Daniel filed his complaint against Lang. Daniel sued as a resident, voter, and member of the Democratic Party in the district. Daniel stated his desire that only a duly and legally appointed person represent him in the House of Representatives. In his complaint, Daniel sought a declaratory judgment of unconstitutionality, a permanent injunction prohibiting Lang from serving in the House of Representatives under color of an unconstitutional appointment, and the designation of some public official or public body to take action to fill the vacancy created by Representative Greiman's resignation. By agreement of the parties, the People intervened to defend the statute's constitutionality, and Daniel moved for summary judgment.

Both Lang and the People filed motions to dismiss, which were granted. The circuit court held that Daniel failed to establish a sufficient interest in the controversy by merely relying upon his status as a taxpayer, registered voter, district resident, and member of the Democratic Party and that accordingly he lacked standing. Daniel appealed to the Appellate Court, First District, from the dismissal. Subsequently, we granted his motion for direct appeal under Rule 302(b) (107 Ill. 2d R. 302(b)) and consolidated his appeal with the appeals in Nos. 66321 and 66323.

Following dismissal of Daniel's complaint against Lang, Kluk filed his complaint against Lang on September 2, 1987. Kluk's claims and supporting allegations were similar to Daniel's, except that Kluk additionally alleged that he was qualified to fill the vacancy and that he had appeared before the committee prior to its appointment of Lang. The People intervened, and on October 16 the circuit court denied motions to dismiss filed by Lang and the People, finding that Kluk had standing because he had appeared before the committee.

On November 19, 1987, the circuit court granted Kluk's motion for summary judgment, finding the statute unconstitutional and in conflict with the principles announced in People ex rel. Rudman v. Rini (1976), 64 Ill. 2d 321, because it delegated to political party committees the power to appoint persons to fill the unexpired terms of members of the General Assembly. The court further held that Lang's appointment was invalid but that the court lacked power to remove Lang from office or to "delegate who shall fill a vacancy in a legislative office." Implicitly, therefore, the circuit court denied Kluk's request to enjoin Lang from serving as a Representative and Kluk's request to designate some public body or official to act to fill the Greiman vacancy. In addition, by an order entered on December 4, the circuit court denied Kluk's post-judgment motion for leave to amend his complaint to add a count sounding in quo warranto.

The People and Lang each appealed, pursuant to Rule 302(a)(1) (107 Ill. 2d R. 302(a)(1)), from the November 19 order finding the statute unconstitutional and holding that Kluk had standing, and from the October 16 order denying the motions to dismiss. Kluk cross-appealed from the circuit court's denial of his motion for entry of an injunction and from the denial of his post-judgment motion to amend. By leave of court, the Speaker and Minority Leader of the House of Representatives and the President and Minority Leader of the Senate have jointly filed briefs as amici curiae. I. Standing

Though the People do not raise the issue, Lang challenges each plaintiff's standing to litigate the constitutionality of the statute. He does so on two grounds: (1) that neither plaintiff has alleged a sufficient interest in the controversy or has a personal stake in it, and (2) that plaintiffs may not challenge the statute's constitutionality through a declaratory judgment action under section 2-701(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-701(a)) because their complaints involve a political question that is outside the court's jurisdiction under section 2-701(a).

Plaintiffs reply that under Lang's view of standing requirements, no one would have standing to bring such an action as theirs, since an individual legislator cannot single out a particular person for prosecution, subpoena, taxation, or other peril that would give the person a standing superior to that of fellow voters and taxpayers who might wish to contest the constitutionality of the statute under which the legislator assumed office. In this connection, plaintiffs seek to distinguish People ex rel. Turner v. Lewis (1982), 104 Ill. App. 3d 75, on which, after apparently viewing Kluk but not Daniel as a rival claimant to Lang's office, the circuit court relied to hold that ...


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