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03/21/96 JOHN F. TULLY v. JIM EDGAR

March 21, 1996

JOHN F. TULLY, INDIV. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, APPELLEE,
v.
JIM EDGAR, GOVERNOR OF THE STATE OF ILLINOIS, ET AL., APPELLANTS (GLORIA JACKSON BACON ET AL., SUED IN THEIR OFFICIAL CAPACITY AS TRUSTEES OF THE UNIVERSITY OF ILLINOIS, APPELLEES).



Chief Justice Bilandic delivered the opinion of the court:

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The plaintiff, John Tully, brought a declaratory judgment action in the circuit court of Cook County against the Governor of the State of Illinois and President of the Illinois Senate (the appellants) and the nine elected trustees of the Board of Trustees of the University of Illinois, challenging the constitutionality of Public Act 89--5, "An Act Relating to the University of Illinois" (the Act) (Pub. Act 89--5, eff. January 1, 1996). The complaint asked the circuit court to declare the Act unconstitutional as violative of the right to vote embodied in article III of the Illinois Constitution of 1970 (Ill. Const. 1970, art. III). The complaint also asked the circuit court to enjoin Governor Edgar and Senate President Philip from appointing any individuals as trustees for the University of Illinois and to declare that the current trustees would continue to serve until completion of their terms as established by law prior to the enactment of Public Act 89--5. One of the trustees, Judith Ann Calder, filed a cross-claim to the complaint, raising eight additional constitutional challenges to the Act.

On October 10, 1995, the circuit court entered an order declaring the Act unconstitutional. The circuit court concluded that the Act violated the right to vote found in article III, section 1, of the Illinois Constitution; that it amended the charter creating the University of Illinois in violation of article I, section 10, paragraph 1, of the United States Constitution; and that it ended the perpetual succession of the University of Illinois Board of Trustees in violation of article IV, section 8(d), of the Illinois Constitution. On October 13, 1995, the circuit court entered an order applying its ruling to the President of the Senate and entered a separate final and appealable order. This court allowed Governor Edgar and Senate President Philip's direct appeal to this courtpursuant to Supreme Court Rule 302(a) (134 Ill. 2d R. 302(a)).

FACTS

The Act amends, inter alia, the University of Illinois Trustees Act (110 ILCS 310/1 et seq. (West 1994)) and the Election Code (10 ILCS 5/1--1 et seq. (West 1994)). In particular, the Act, which was intended to take effect on January 1, 1996, changes the Board of Trustees of the University of Illinois (the Board of Trustees) from an elective to an appointive office. The current Board of Trustees is comprised of nine elected trustees. 110 ILCS 310/2 (West 1994). Three trustees are elected to serve six-year terms at the general election in November of each even-numbered year. 110 ILCS 310/2 (West 1994). The most recent election for trustees occurred during the November 1994 general election.

Three months after that election, in February 1995, the General Assembly enacted and the Governor signed the Act. Specifically, the Act provides:

"The Board of Trustees of the University of Illinois shall consist of 9 trustees appointed by the Governor, by and with the advice and consent of the Senate, the Governor, and one nonvoting student member from each campus of the University of Illinois." Pub. Act 89--5, § 15, eff. January 1, 1996.

The sole limitation on whom may be appointed under this process specified in the Act is that no more than five of the members whom the Governor appoints shall be affiliated with the same political party. Pub. Act 89--5, § 15, eff. January 1, 1996. The Act states that the appointed trustees will serve six-year terms, beginning in January.

The Act also provides:

"The term of each elected trustee who is in office on the effective date of this amendatory Act of 1995 shall terminate on the second Monday in January, 1996, or when a quorum of the trustees initially to be appointedunder this amendatory Act of 1995 is appointed and qualified, whichever last occurs." Pub. Act 89--5, § 15, eff. January 1, 1996.

This provision, which curtails the term of the existing elected trustees and effectively removes them from office, is the focus of the constitutional challenges in this case.

On May 15, 1995, Tully filed a class action suit attacking this provision on the ground that it violates his right of suffrage and the right of suffrage of others similarly situated in violation of article III, section 1, of the Illinois Constitution (Ill. Const. 1970, art. III, § 1). He argued that the Act shortens the terms of elected officers after their elections have occurred, which operates as a "post-hoc" negation of his right to vote. He also argued that the Act infringes upon his right to free and equal elections in violation of article III, section 3, of the Illinois Constitution (Ill. Const. 1970, art. III, § 3) and that it violates article III, section 4, of the Illinois Constitution (Ill. Const. 1970, art. III, § 4), which provides that laws governing voter registration and the conduct of elections shall be general and uniform. Tully asked the circuit court to declare the Act unconstitutional, to enjoin Governor Edgar and Senate President Philip from appointing any individuals as trustees, and to declare that the current trustees shall continue to serve until completion of the terms to which they were elected.

Governor Edgar filed an answer to Tully's complaint. Judith Ann Calder, one of the sitting trustees, also filed an answer and eight "affirmative pleadings," which were subsequently considered a cross-claim. Calder challenged the constitutionality of the Act on a number of grounds. She claimed that the Act: (1) ends the "perpetual succession" of the Board of Trustees (110 ILCS 305/1 (West 1994)) in violation of the contract clause of the United States Constitution (U.S. Const., art. I, § 10); (2) violates the amendment-without-reference provision of the Illinois Constitution (Ill Const. 1970, art. IV, § 8(d)); (3) is a bill of attainder and works a forfeiture of estate in violation of the United States and Illinois Constitutions (U.S. Const., art. I, § 10; Ill. Const. 1970, art. I, § 11); (4) violates the due process rights of the current trustees in violation of the United States and Illinois Constitutions (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. 1, § 2); (5) violates the freedom of speech and freedom of association rights of Calder and other Democratic members of the Board of Trustees (U.S. Const., amend. I; Ill. Const. 1970, art. I, § 4); (6) violates the impeachment provision of the Illinois Constitution (Ill. Const. 1970, art. IV, § 14); and (7) violates the separation of powers provision of the Illinois Constitution (Ill. Const. 1970, art. II, § 1). Calder also argued that, to avoid the constitutional problems raised, the Act should be construed so that the elected trustees are replaced with appointed trustees only at the end of the terms to which they were elected.

Tully and Governor Edgar ultimately filed cross-motions for summary judgment in the circuit court, alleging that no issues of fact existed and that the case could be resolved as a matter of law. The circuit court granted Tully's motion for summary judgment and declared the Act unconstitutional on several grounds. The court first found that the Act violates the right to vote contained in article III, section 1, of the Illinois Constitution. The court stated that the right to vote is a fundamental right and that the State had failed to identify a compelling state interest that required the statutory abridgment of the Board of Trustee's elected terms of office. The circuit court did not consider Tully's allegations that the Act violates sections 3 and 4 of article III of the Illinois Constitution.

The circuit court also found that the Act violatesthe contract clause of the United States Constitution (U.S. Const., art. I, § 10), an argument advanced by Calder in her affirmative pleadings. The circuit court held that the Act ends the perpetual succession of the Board of Trustees by substituting a "wholly new body in its stead," in violation of the contract clause of the United States Constitution (U.S. Const., art. I, § 10). The court also accepted Calder's argument that the Act violates the amendment-by-reference provision found in article IV, section 8(d), of the Illinois Constitution, which requires that "a bill amending a law shall set forth completely the sections amended." The court's finding was again based upon its conclusion that the Act purports to end ...


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