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09/07/94 CHICAGO BAR ASSOCIATION ET AL. v. ILLINOIS

September 7, 1994

THE CHICAGO BAR ASSOCIATION ET AL., APPELLEES,
v.
ILLINOIS STATE BOARD OF ELECTIONS ET AL., APPELLANTS.



Harrison, Miller, Heiple

The opinion of the court was delivered by: Per Curiam

PER CURIAM: These consolidated cases involve a proposed amendment to article IV, the legislative article, of the Illinois Constitution of 1970, by use of the initiative procedure established in article XIV, section 3, of our constitution. On August 10, 1994, this court entered a judgment preventing various public officials from placing the proposed amendment on the November 1994 general election ballot. This opinion will state the reasons for that judgment.

BACKGROUND

Two organizations, the Eight is Enough Committee and Term Limits Illinois (Proponents) petitioned to amend article IV, sections 2(a), 2(b), and 2(c), of the Illinois Constitution (Ill. Const. 1970, art. IV, §§ 2(a), 2(b), 2(c)). The Proponents seek to impose a limit on the number of years a State legislator may serve in the General Assembly As amended, the constitutional provisions would read as follows (additions are underlined):

"§ 2. Legislative Composition

(a) One Senator shall be elected from each Legislative District. Immediately following each decennial redistricting, the General Assembly by law shall divide the Legislative Districts as equally as possible into three groups. Senators from one group shall be elected for terms of four years, four years and two years; Senators from the second group, for terms of four years, two years and four years; and Senators from the third group, for terms of two years, four years and four years. The Legislative Districts in each group shall be distributed substantially equallyover the State. For the exclusive purpose of calculating of service under the tenure limitation contained in Section 2(c), a person who serves two years or less of a term of a Senator shall be deemed to have served two years and a person who serves more than two years of a four-year term of a Senator shall be deemed to have served four years.

(b) Each Legislative District shall be divided into two Representative Districts. In 1982 and every two years thereafter one Representative shall be elected from each Representative District for a term of two years. For the exclusive purpose of calculating length of service under the tenure limitation contained in Section 2(c), a person who serves any part of a term of a Representative shall be deemed to have served two years.

(c) To be eligible to serve as a member of the General Assembly, a person must be a United States citizen, at least 21 years old, and for the two years preceding his election or appointment a resident of the district which he is to represent. No person shall be eligible to serve as a member of the General Assembly for more than eight years. No person who has served six years in the General Assembly shall be eligible to be elected to a four-year term as a Senator. This tenure limitation is not retroactive and shall not apply to service as a member of the General Assembly before the second Wednesday in January, 1995. In the general election following a redistricting, a candidate for the General Assembly may be elected from any district which contains a part of the district in which he resided at the time the redistricting and reelected if a resident of the new district he represents for 18 months prior to the reelection."

The Proponents circulated their petition pursuant to article XIV, section 3, of our constitution. The Proponents obtained more than the required number of voters' signatures-437,088, which represents approximately 13% of all those who voted for Governor in the preceding gubernatorial election in 1992. (See ILL. Const. 1970, art. XIV, § 3.) The Proponents filed the petition with the Illinois Secretary of State, who in turn forwarded it to the Illinois State Board of Elections.

The Chicago Bar Association and two of its officers (CBA) began two legal proceedings. The CBA alleged in both proceedings that the proposed amendment did not meet the requirements of article XIV, section 3. In cause No. 77566, the CBA brought a taxpayer action in the circuit court of Cook County under the Disbursement of Public Moneys statute, seeking declaratory and injunctive relief. (735 ILCS 5/11-301 et seq. (West 1992).) In cause No. 77405, the CBA brought an original action in this court, seeking a writ of mandamus. Ill. Const. 1970, art. VI, § 4(a); 134 Ill. 2d R. 381.

The CBA named the same parties as defendants in the taxpayer action and respondents in the original mandamus proceeding: the Illinois State Board of Elections, the State Comptroller, the State Treasurer, the Secretary of State, the Cook County clerk, and the Chicago board of election commissioners (officials). Also, the Proponents have been allowed to intervene on the side of the officials.

In the mandamus proceeding, we allowed the CBA's motion for leave to file its petition for the writ. In the taxpayer action, the trial court entered an order in favor of the CBA. The court declared the proposed amendment to be invalid and permanently enjoined the expenditure of state funds for the amendment. We ordered that the trial court enter an automatic notice of appeal, and that the appeal be transferred directly to this court and consolidated with the mandamus proceeding.

Discussion

Preliminary Matters

Initially, we agree with the Dissent that issues of standing and ripeness do not preclude a review of the merits. Slip op. at 11 (Harrison, J., joined by Miller & Heiple, JJ., Dissenting).

Also, we agree with the Dissent that the mandamus proceeding in this court must be dismissed. (Slip op. at 12(Harrison, J., joined by Miller & Heiple, JJ., Dissenting).) It must be remembered that a writ of mandamus commands a public officer to perform an official, nondiscretionary duty that the petitioner is entitled to have performed and that the officer has failed to perform. ( Madden v. Cronson (1986), 114 Ill. 2d 504, 514, 103 Ill. Dec. 729, 501 N.E.2d 1267; People ex rel. Heydenreich v. Lyons (1940), 374 Ill. 557, 567-68, 30 N.E.2d 46.) The writ provides affirmative rather than prohibitory relief. Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, 468, 130 Ill. Dec. 455, 537 N.E.2d 784.

Applying these principles to the present case, it is clear that the CBA seeks prohibitory and not mandatory relief. Indeed, we note that several times during oral argument in this court the CBA stated that the "initiative process should go no further." Also, no party has alleged that any of the officials have failed to perform any official duty related to the proposed amendment. The appropriate proceeding for a case such as this is not a petition for a writ of mandamus, but rather a taxpayer action for injunctive relief. 735 ILCS 5/11-301 et seq. (West 1992); Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 461, 3 Ill. Dec. 728, 359 N.E.2d 138 (Coalition I); see Chicago Bar Association v. State Board of Elections (1990), 137 Ill. 2d 394, 396, 148 Ill. Dec. 744, 561 N.E.2d 50 (CBA).

Taxpayer Action

We now turn to the merits of the taxpayer action. Article XIV, section 3, of our constitution establishes a constitutional initiative process for amending the legislative article:

"Amendments to Article IV of this Constitution may be proposed by a petition signed by a number of electors equal in number to at least eight percent of the total votes cast for candidates for Governor in the preceding gubernatorial election. Amendments shall be limited to structural and procedural subjects contained in Article IV." (Emphasis added.) Ill. Const. 1970, art. XIV, § 3.

The CBA contends that the proposed amendment isinvalid because it does not meet the subject matter requirement of article XIV, section 3. The CBA argues that the proposed amendment does not affect either the General ...


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