Orr v. Edgar
Annotate this Case
SIXTH DIVISION
July 20, 1998
Nos. 1-98-1485 & 1-98-1508
DAVID ORR, as Cook County Clerk and as a
Taxpayer, Resident, Future Candidate for
Elected Office, and Registered Voter of
Cook County and the ILLINOIS STATE
COUNCIL OF SENIOR CITIZENS'
ORGANIZATIONS, and JOSEPH RAMSKI,
Plaintiffs-Appellants,
v.
JIM EDGAR, Governor of the State of
Illinois, RONALD D. MICHAELSON,
Executive Director of the Illinois State
Board of Elections, and HANNELORE
HUISMAN, KENNETH BOYLE, CHARLES DURHAM,
DAVID MURRAY, WANDA REDNOUR, and ELAINE
ROUPAS, as members of the Illinois State
Board of Elections,
Defendants-Appellees. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
Honorable
Francis Barth,
Judge Presiding.
_________________________________________
CLINT KRISLOV AND CONSTANCE HOWARD,
Plaintiffs-Appellants,
v.
THE ILLINOIS STATE BOARD OF ELECTIONS,
Defendant-Appellee.
JUSTICE QUINN delivered the opinion of the court:
On January 7, 1997, the Illinois General Assembly passed
Public Act 89-700 (Act) (Pub. Act 89-700, eff. January 17, 1997)
which abolished "one-punch" straight-party voting in Illinois.
Governor Edgar signed the Act into law on January 17, 1997. On
September 24, 1997, plaintiffs David Orr (Orr) and the Illinois
State Council of Senior Citizens' Organizations (Council) filed a
complaint for declaratory judgment and injunctive relief alleging
that the Act was unconstitutional and that the Act violated the
State Mandates Act (30 ILCS 805/1 et seq. (West 1994)). Plaintiff
Joseph Ramski later joined the lawsuit and a five-count second
amended complaint was filed. Plaintiffs Clint Krislov (Krislov)
and Constance Howard also filed a complaint on September 24, 1997,
which challenged the constitutionality of the Act. These cases
were consolidated in the court below. Plaintiffs Orr, Ramski and
the Council (plaintiff Orr) moved for summary judgment on three of
their five counts, and plaintiffs Krislov and Howard (plaintiff
Krislov) moved for summary judgment on all counts. Defendants Jim
Edgar, Ronald D. Michaelson, Hannelore Huisman, Kenneth Boyle,
Charles Durham, David Murray, Wanda Rednour and Elaine Roupas
responded with a motion to dismiss each of plaintiffs' counts
pursuant to sections 2-615 and 2-619 of the Illinois Code of Civil
Procedure (Code) (735 ILCS 5/2-615, 619 (West 1994)). On April 24,
1998, the circuit court of Cook County granted defendants' motion
to dismiss as to both complaints.
On appeal, these two cases were consolidated. Plaintiff Orr
maintains on appeal that: (1) the Act stripped a voting right from
the Illinois voters in violation of the Illinois Constitution; (2)
the General Assembly violated the constitutional three-fifths
majority vote requirement necessary to pass the Act with an
immediate effective date; (3) the Act never became law since it was
not enacted during the legislative term of the 89th General
Assembly; (4) the state legislature violated the three readings
requirement of the Illinois Constitution; and (5) the Act violates
the State Mandates Act and plaintiff Orr has standing to challenge
this violation. Plaintiff Krislov's issues on appeal mirror issues
two through four in plaintiff Orr's brief. In the interest of
judicial economy, we will address these common issues together.
For the following reasons, we affirm.
The facts relevant to this appeal are as follows. The 89th
General Assembly passed Public Act 89-700 on January 7, 1997, the
last day of its legislative term, which ran from January 11, 1995,
to January 7, 1997. The Act abolished "one-punch" straight-party
voting in Illinois and set forth the various requirements necessary
to effectuate its goal. Pub. Act 89-700, 1-7, eff. January 17,
1997. The Act began its life in 1995 as House Bill 444, which
would have amended the University of Illinois Trustees Act (110
ILCS 310/1 et seq. (West 1994)). Eventually the bill ended up in
a conference committee where the committee stripped the bill of its
original language and inserted the current language abolishing
"one-punch" voting. After a brief floor debate on January 7, 1997,
the bill was read one time in both houses and passed along partisan
lines that same day. The Act, which had an immediate effective
date, received 60 out of a possible 118 votes in the House and 32
out of a possible 59 in the Senate. The 89th General Assembly then
adjourned the following day on January 8, 1997, and the Act was
sent to Governor Edgar the same day. Governor Edgar signed the Act
into law on January 17, 1997.
On September 24, 1997, plaintiff Orr filed his complaint
seeking declaratory judgment and injunctive relief. The complaint
challenged the substantive and procedural validity of the Act and
further alleged that it violated the State Mandates Act (30 ILCS
805/1 et seq. (West 1994)). Plaintiff Orr subsequently filed a
second amended complaint on February 24, 1998, which added Ramski
as a named plaintiff. Count I of the second amended complaint
alleged that the Act violated articles I and III of the Illinois
Constitution (Constitution), which require: (1) the State to
respect due process, equal protection, and voting rights; (2)
elections to be free and equal; and (3) the General Assembly to
facilitate voting and to pass election laws that are general and
uniform. Count II alleged that the passage of the Act violated
article IV, section 10, of the Constitution, which requires bills
with an immediate effective date passed after May 31 to receive a
three-fifths majority vote in the General Assembly. Count III
alleged that the Act violated article IV, section 5(a), of the
Constitution (requiring the General Assembly to be a continuous
body) and that the late timing of the passage of the Act precluded
the Governor and legislature from exercising their amendatory,
veto, and veto override powers under article IV, section 9, of the
Constitution. Count IV alleged that the passage of the Act
violated article IV, section 8(d), of the Constitution, which
requires that a bill be read three times in each house of the
General Assembly in order to pass. Count V alleged that the Act
violated the State Mandates Act (30 ILCS 805/1 et seq. (West
1994)). Count I of plaintiff Krislov's complaint mirrors count II
of plaintiff Orr's complaint, count II mirrors count IV of
plaintiff Orr's complaint, and count III mirrors count III of
plaintiff Orr's complaint. Plaintiffs filed a motion for summary
judgment on their common issues.
Defendants responded with a motion to dismiss for a failure to
state a claim pursuant to sections 2-615 and 2-619 of the Code (735
ILCS 5/2-615, 619 (West 1994)). Defendants also filed a motion to
dismiss the State Mandates Act claim due to plaintiff Orr's lack of
standing. Various other motions also were filed that are not the
subject of this appeal. On April 24, 1998, the circuit court, in
a 41-page opinion, granted defendants' motions to dismiss and
denied plaintiffs' motion for summary judgment. The circuit court
dismissed count I of plaintiff Orr's complaint on the grounds that
the Act did not interfere with the citizens' fundamental right to
vote. The court reviewed the Act under the rational basis test and
found that the Act bore a rational relationship to a legitimate
governmental interest. The court also found that the Act was
consonant with the legislature's duty to facilitate voting and to
pass election laws that are general and uniform. The court further
found that the mandate of article III that all elections be free
and equal was not offended by the Act. The circuit court dismissed
count II of plaintiff Orr's complaint and count I of plaintiff
Krislov's complaint, finding that the Illinois Supreme Court
already had determined that bills passed in January with an
immediate effective date need only pass with a simple majority.
The circuit court dismissed count III of plaintiff Orr's complaint
and count III of plaintiff Krislov's complaint, finding that the
Constitution requires the Governor to be provided with the time to
sign or veto legislation regardless of whether the General
Assembly's term has expired. The circuit court dismissed count IV
of plaintiff Orr's complaint and count II of plaintiff Krislov's
complaint on the grounds that the enrolled bill doctrine precluded
the court from inquiring into whether the legislature complied with
its procedural requirements for passage of bills. The court also
noted that the Illinois Supreme Court had reserved the right to
revisit the issue of whether the use of the enrolled bill doctrine
violates the Constitution. Finally, the circuit court dismissed
count V of plaintiff Orr's complaint on the grounds that individual
public officials do not have standing to sue under the State
Mandates Act. The court also found that even if plaintiff Orr had
standing, the Act would not violate the State Mandates Act as it
imposes no new duties on the Cook County clerk.
We review the trial court's ruling on a motion to dismiss and
the court's decision on a motion for summary judgment de novo.
Murneigh v. Gainer, 177 Ill. 2d 287, 298, 685 N.E.2d 1357 (1997);
Pryweller v. Cohen, 282 Ill. App. 3d 899, 907, 668 N.E.2d 1144
(1996).
Plaintiff Orr's first contention on appeal is that the Act
stripped a voting right from Illinois voters. We disagree.
It is axiomatic that the right to vote is a fundamental right
that deserves zealous protection by the courts. Tully v. Edgar,
171 Ill. 2d 297, 306, 664 N.E.2d 43 (1996); Fumarolo v. Chicago
Board of Education, 142 Ill. 2d 54, 74, 566 N.E.2d 1283 (1990). As
such, legislation that infringes upon the right to vote is subject
to strict scrutiny. Tully, 171 Ill. 2d at 304; Fumarolo, 142 Ill. 2d at 74. However, it is as equally well established that the
legislature has the right to reasonably regulate the time, place
and manner in which the citizens exercise their right to vote.
McDunn v. Williams, 156 Ill. 2d 288, 316, 620 N.E.2d 385 (1993);
Walgreen Co. v. Liquor Control Comm'n, 111 Ill. 2d 120, 488 N.E.2d 980 (1986). Legislation that affects voting in this regard is
subject to the rational basis analysis. Walgreen, 111 Ill. 2d at
127.
Here, we find that the legislation in question does not
infringe upon the right to vote. Rather, the legislation affects
the manner in which citizens exercise their right to vote. The Act
does not prohibit voters from voting a straight-party ballot.
Indeed, an individual voter still has the right to cast a ballot
entirely for candidates of one political party. The Act only
dictates the manner in which the voter may select candidates.
Plaintiffs cite Tully, 171 Ill. 2d 297, 664 N.E.2d 43, for the
proposition that legislation that affects any stage of the election
process triggers the strict scrutiny standard of review. In Tully,
the legislature passed a statute that terminated the terms of the
trustees of the University of Illinois after they had been elected
to their positions but before the end of their terms. Our supreme
court found that the legislation in question affected the voters'
fundamental right to vote. Tully, 171 Ill. 2d at 306-07. The
court found that the legislation "basically eviscerates the
election process by providing that, even though the trustees
received the majority of votes cast and counted on election day,
they are prohibited from holding office for the terms to which they
were elected." Tully, 171 Ill. 2d at 306. Here, we find no such
intrusion into the citizens' right to vote. The Act only affects
the manner in which the citizens cast their votes, not the
fundamental right to vote. Accordingly, we apply the rational
basis analysis to the Act.
In order to survive the rational basis test, "the method or
means employed in the statute to achieve the stated goal or purpose
of the legislation [must be] rationally related to that goal." In
Re A.A., 181 Ill. 2d 32, 38, 690 N.E.2d 980 (1998). Whether a
rational basis exists for legislation presents a question of law,
which we review de novo. Jacobson v. Department of Public Aid, 171 Ill. 2d 314, 323, 664 N.E.2d 1024 (1996). We also presume that the
legislation in question is constitutional, and the complaining
party has the burden to prove otherwise. People ex rel. Chicago
Bar Ass'n v. State Board of Elections, 136 Ill. 2d 513, 524, 558 N.E.2d 89 (1990). When a court is faced with a challenge to the
validity of a statute, the court's job is to determine whether the
act is constitutional, not whether it is wise. Best v. Taylor
Machine Works, 179 Ill. 2d 367, 390, 689 N.E.2d 1057 (1997).
Here, the circuit court found that the Act satisfied the
rational basis test. The legislative record reflects that the Act
was introduced with a stated purpose of achieving a number of
goals, including: increased voter awareness, the selection of
better qualified candidates by the political parties, and an
increased involvement by third-party groups in the political
process. The circuit court found that the abolition of "one-punch"
straight-party voting was rationally related to these governmental
interests. Upon reviewing this determination, we are mindful that,
"'"a legislative choice is not subject to courtroom fact-finding
and may be based on rational speculation unsupported by evidence or
empirical data."'" In re AA, 181 Ill. 2d at 40, quoting Cutinello
v. Whitley, 161 Ill. 2d 409, 421-22, 641 N.E.2d 360 (1994), quoting
Federal Communications Comm'n v. Beach Communications, Inc., 508 U.S. 307, 315, 124 L. Ed. 2d 211, 222, 113 S. Ct. 2096, 2102
(1993). The Act, which regulates only the manner in which the
citizens exercise their right to vote, represents legislation that
is rationally related to a legitimate government interest. We
therefore affirm the trial court's ruling.
Plaintiff Orr also maintains that the Act violates the due
process and equal protection clauses of the Illinois Constitution
(Ill. Const. 1970, art. I, 2) and the Illinois constitutional
provisions regarding the right to vote (Ill. Const. 1970, art. III,
1 et seq.). Specifically, plaintiff Orr argues that the
constitutional provisions requiring the State to facilitate voting
for all qualified persons and to adopt election laws that are
general and uniform (Ill. Const. 1970, art. III, 4) are violated
when the Act is coupled with section 17-11 of the Election Code (10
ILCS 5/17-11 (West 1994)), which provides that no voter shall spend
more than five minutes in a voting booth if other voters are
waiting. Plaintiff Orr maintains that the Act will be especially
harmful to the voting rights of the elderly and handicapped in Cook
County because of the extremely long ballots in Cook County.
The Act does not impede voting by all qualified persons. As
pointed out by defendants, a "one-punch" straight-party vote is not
available to the voters who participate in the primary elections.
In Cook County, primary election ballots routinely contain the
names of many more candidates than are on the general election
ballot. The unavailability of "one-punch" voting has not prevented
the elderly and handicapped from fully exercising their voting
rights in primary elections. Plaintiff Orr has presented no basis
to believe that their participation in general elections will be
negatively impacted by the absence of "one-punch" straight-party
voting. Further, as noted by the trial court, the time limitations
of section 17-11 are not intended to rush impeded voters, but are
meant to ensure that ballot casting itself is not utilized as a
stalling tactic by those motivated to prevent others from voting.
As to plaintiff Orr's assertion that the Act violates the
constitutional requirement that election laws be general and
uniform, the Act's applicability is uniform throughout the state.
Finally, we note that the "one-punch" straight-party vote was
first adopted by the legislature in 1891 and abolished in 1997.
"One-punch" voting currently is not available to voters in 31
states. We reject plaintiff Orr's contention that such a voting
method constitutes a fundamental right that cannot be revisited by
the legislature. There is no vested right in the mere continuance
of a law - the legislature retains an ongoing right to amend a
statute. First of America Trust Co. v. Armstead, 171 Ill. 2d 282,
291, 664 N.E.2d 36 (1996). We affirm the circuit court's rulings
on these issues.
Plaintiff Orr's second contention on appeal (plaintiff
Krislov's second issue on appeal) is that the General Assembly
violated the three-fifths majority vote requirement necessary to
pass the Act with an immediate effective date. The 89th General
Assembly first convened on January 11, 1995. The legislature then
reconvened for its second legislative session on January 10, 1996.
Then, as has become common practice during the past decade and a
half, the legislature convened for a third January session on
January 6 and 7, 1997. It was during this third January session
that the General Assembly passed the Act by a simple majority and
with an immediate effective date.
Article IV, section 10, of the Illinois Constitution provides:
"The General Assembly shall provide by law for a
uniform effective date for laws passed prior to June 1 of
a calendar year. The General Assembly may provide for a
different effective date in any law passed prior to June
1. A bill passed after May 31 shall not become effective
prior to June 1 of the next calendar year unless the
General Assembly by the vote of three-fifths of the
members elected to each house provides for an earlier
effective date." Ill. Const. 1970, art. IV, 10.
The enabling act for this provision provides the following:
"A bill passed after May 31 of a calendar year shall
become effective on June 1 of the next calendar year
unless the General Assembly by a vote of three-fifths of
the members elected to each house provides for an earlier
effective date in the terms of the bill or unless the
General Assembly provides for a later effective date in
the terms of the bill; provided that if the effective
date provided in the terms of the bill is prior to the
date the bill becomes a law then the date the bill
becomes a law shall be the effective date." 5 ILCS 75/2
(West 1996).
Plaintiffs maintain that the 89th General Assembly had only two
opportunities to pass the Act with a simple majority and an
immediate effective date: from January 11, 1995, to May 31, 1995,
and from January 10, 1996, to May 31, 1996. Plaintiffs contend
that the framers of the Constitution did not intend for the General
Assembly to be able to pass a bill with a simple majority and an
immediate effective date after June 1 of the second year of a
legislative term.
The circuit court disagreed with plaintiffs and found that a
simple majority was sufficient to pass an act with an immediate
effective date during a third January session. In reaching its
decision, the circuit court followed the reasoning set forth by our
supreme court in Polich v. Chicago School Finance Authority, 79 Ill. 2d 188, 208, 402 N.E.2d 247 (1980). In Polich, the supreme
court was faced with the issue of whether a bill introduced during
March of the first legislative session and passed during January of
the second session required a three-fifths majority vote in order
to have an immediate effective date. The court found that only a
simple majority was required. Polich, 79 Ill. 2d at 208. In
Polich, the appellants argued that when article IV, section 10, of
the Constitution spoke of laws passed prior to July 1 (now June 1),
it was contemplated that such bills would have been introduced
after the legislature convened on the second Wednesday of that
calendar year. Our supreme court rejected this argument, pointing
out that the constitutional provision "referred to a bill 'passed
prior to July 1 of a calendar year' without regard to when the bill
may have been filed or its prior course through the legislative
process. [Citations.] In our opinion, this clear and explicit
constitutional provision requires no construction ***." Polich, 79 Ill. 2d at 208.
Here, plaintiffs argue that article IV, section 10, was not
meant to apply to bills introduced by an outgoing legislature
immediately prior to the end of the legislature's term. While this
case concerns a bill passed in a legislature's third January
session, rather than its second January session as in Polich, the
analysis does not change. The supreme court found that article IV,
section 10, of the Constitution was a "clear and explicit
constitutional provision [that] required no construction." Polich,
79 Ill. 2d at 208.
Upon reviewing the constitutionality of a statute, there is a
judicial presumption in favor of finding the statute
constitutional. Mulligan v. Joliet Regional Port District, 123 Ill. 2d 303, 312, 527 N.E.2d 1264 (1988). However, this court must
avoid rendering an interpretation that would make an enactment
absurd and illogical. Mulligan, 123 Ill. 2d at 312-13; Midwest
Bank & Trust Co. v. Roderick, 132 Ill. App. 3d 463, 470, 476 N.E.2d 1326 (1985). Statutes must be construed in a manner that prevents
hardship or injustice, and that opposes prejudice to public
interests. Mulligan, 123 Ill. 2d at 313. We also note that
appellate courts "are without authority to overrule the supreme
court or to modify its decisions." Rickey v. Chicago Transit
Authority, 98 Ill. 2d 546, 551, 457 N.E.2d 1 (1983).
In the present cause, we agree with the circuit court and find
that only a simple majority was necessary to pass the Act with an
immediate effective date during a third January session.
Plaintiffs advance persuasive arguments as to why a three-fifths
majority was required to pass the Act with an immediate effective
date. Plaintiffs point out, and defendants agree, that if the Act
had been voted on between June 1, 1996, and December 31, 1996, it
would have required a three-fifths majority to pass with an
immediate effective date. This being so, plaintiffs argue that it
is absurd to allow the legislature to pass a statute with a simple
majority in a third January session and have it be immediately
effective. Plaintiffs also cite the floor comments offered by the
delegates to the Constitutional Convention of 1970 to support their
proposition that the framers of the Constitution did not
contemplate the legislature being in session in the third January
of their legislative term. Plaintiffs assert that had the framers
considered such a possibility, they would have required any bill
passed in such a third January session to be passed with a three-
fifths majority if it included an immediate effective date.
We do not reach the issue of the intent of the framers of
article IV, section 10, of the Constitution. Ill. Const. 1970,
art. IV, 10. It is fundamental that the appellate court does not
have the authority to abandon supreme court precedent. Niziolek v.
Chicago Transit Authority, 251 Ill. App. 3d 537, 549, 620 N.E.2d 1097 (1993); Rickey, 98 Ill. 2d at 551. If precedent is not
followed, the uniformity and stability of decisions, which are
essential to the proper administration of justice, will be
destroyed. Niziolek, 251 Ill. App. 3d at 549.
Our supreme court has ruled that article IV, section 10, is
"clear and explicit" and "requires no construction." Polich, 79 Ill. 2d at 208. Thus, we are compelled to apply the plain meaning
of the language of article IV, section 10, to the present case
without the use of extrinsic aids. Baker v. Miller, 159 Ill. 2d 249, 257, 636 N.E.2d 551 (1994). As the circuit court properly
found, if the continued vitality of this constitutional
interpretation is ripe for reexamination, such a task should be
undertaken by the tribunal that rendered the interpretation.
Since the Polich decision was rendered in 1980, the General
Assembly has met in a third January session in each legislative
term. As noted by the trial court, it is not unreasonable to
conclude that the General Assembly began meeting in a third January
session in reliance upon the interpretation of article IV, section
10, rendered by the coordinate branch of government authorized to
make such determinations. When the General Assembly makes a
practical construction of a law over the years, that construction
is entitled to great weight when determining whether it is valid.
Droste v. Kerner, 34 Ill. 2d 495, 500, 217 N.E.2d 73 (1966). The
enabling act for article IV, section 10, contains almost identical
language and fails to support plaintiffs' argument that the
legislature cannot pass an immediately effective bill with a simple
majority in a third January session. Further, the 88th General
Assembly proposed an amendment to article IV, section 10, that was
approved by voter referendum on November 8, 1994. Had the General
Assembly wished to amend or clarify the language of article IV,
section 10, it certainly could have done so at that time. Finally,
given our finding that the Act is constitutional as passed, we need
not address whether the effective date of the Act is severable.
Plaintiff Orr's third contention on appeal (plaintiff
Krislov's third issue on appeal) is that the Act never became law
since it was not enacted during the life of the 89th General
Assembly. As discussed above, the 89th General Assembly passed the
Act on January 7, 1997. On January 8, 1997, the 89th General
Assembly ceased to exist pursuant to article IV, section 5(a), of
the Constitution. Ill. Const. 1970, art. IV, 5(a). Governor
Edgar signed the bill into law on January 17, 1997. Plaintiffs
maintain that the Governor cannot sign legislation after a session
of the General Assembly has permanently adjourned because the
Governor could veto the legislation without recourse from the
legislature. Thus, the system of checks and balances between the
executive branch and legislative branch would be tilted in favor of
the executive branch. According to plaintiffs, such a system
undermines the Constitution, and the situation can only be remedied
by a judicial finding that all unsigned legislation expires at the
end of a General Assembly's term.
In support of their argument, plaintiffs cite to article IV,
section 9, the relevant portion of which provides:
"(b) If the Governor does not approve [a] bill, he
shall veto it by returning it with his objections to the
house in which it originated. Any bill not so returned
by the Governor within 60 calendar days after it is
presented to him shall become law. If recess or
adjournment of the General Assembly prevents the return
of a bill, the bill and the Governor's objections shall
be filed with the Secretary of State within such 60
calendar days. The Secretary of State shall return the
bill and objections to the originating house promptly
upon the next meeting of the same General Assembly at
which the bill can be considered." (Emphasis added.)
Ill. Const. 1970, art. IV, 9.
The drafters of the Constitution directed that all vetoed bills be
returned to the General Assembly in which they originated. Thus,
according to plaintiffs, all unsigned legislation must expire when
a General Assembly permanently adjourns because a vetoed bill will
never return to that General Assembly. Plaintiffs raise an
interesting point, but that issue currently is not before this
court. The issue before this court is whether legislation approved
by the Governor after the final adjournment of a General Assembly
is valid. We find that such legislation is valid.
Initially, we note that the Illinois General Assembly is a
continuous body for its 24-month term, and, as plaintiffs concede,
the legislature is capable of passing laws at any point during its
tenure. Ill. Const. 1970, art. IV, 5(a); First of America Trust
Co., 171 Ill. 2d at 290. Further, the Governor has 60 calendar
days from the date that a bill is presented to him or her in which
to sign or veto the bill. Ill. Const. 1970, art. IV, 9(b).
Adoption of plaintiffs' position would necessarily invalidate
either article IV, section 5(a), or article IV, section 9(b).
As recognized by plaintiffs, defendants, and the trial court,
"[i]f separate parts of a constitution appear to be in conflict,
courts should favor a construction which will render every
provision operative." Walker v. State Board of Elections, 65 Ill. 2d 543, 556, 359 N.E.2d 113 (1976). The United States Supreme
Court addressed the issue of executive action taken on legislation
after the legislature had adjourned in the "Pocket Veto" case.
Okanogan, Methow, San Poelis, Nespelem, Colville, & Lake Indian
Tribes or Bands v. United States, 279 U.S. 655, 73 L. Ed. 894, 49 S. Ct. 463 (1929) (Pocket Veto). There, Congress passed
legislation on June 24 and adjourned on July 3. Congress was not
in session on July 6, the tenth day after the bill had been
presented to the President. Article I, section 7, of the
Constitution of the United States provides that the President has
10 days to sign or veto a bill passed by both houses of Congress.
If the President has neither signed the bill nor vetoed it by
returning it to the house in which it originated within 10 days of
its presentation to him, the bill becomes law. U.S. Const., art.
I, 7.
In Pocket Veto, the President had neither signed nor vetoed
the bill before Congress adjourned nine days after its passage.
The issue to be decided by the United States Supreme Court was
whether the bill became law without the President's signature in
circumstances where Congress by its adjournment prevented the
President from returning the bill within 10 days after its
presentation. The Supreme Court held that the power conferred
under article I, section 7, to approve or veto legislation cannot
be reduced by Congress nor can the time allotted for the exercise
of the power be lessened. Pocket Veto, 279 U.S. at 677-78, 73 L. Ed. at 897, 49 S. Ct. at 465-66. Therefore, the bill did not
become law.
In Edwards v. United States, 286 U.S. 482, 76 L. Ed. 1239, 52 S. Ct. 627 (1932), the Supreme Court held that under article I,
section 7, of the United States Constitution, a bill signed by the
President within 10 days after it was presented to him, but after
the final adjournment of the Congress that had passed it, became
law. The reasoning behind this holding is especially significant
to the instant case:
"There is nothing in the words of the Constitution
which prohibits the President from approving bills,
within the time limited for his action, because the
Congress has adjourned, and the spirit and purpose of the
clause in question forbid the implication of such a
restriction. The provision that a bill shall not become
a law if its return has been prevented by the adjournment
of Congress is apposite to bills that are not signed, not
to those that are signed. There is no requirement that
bills that are signed should be returned. No further
action is required by Congress in respect of a bill which
has been presented to the President, unless he
disapproves it and returns it for reconsideration as the
Constitution provides." Edwards, 286 U.S. at 492, 76 L. Ed. at 1244, 52 S. Ct. at 630-31.
The Illinois Supreme Court in People ex rel. Peterson v.
Hughes, 372 Ill. 602, 25 N.E.2d 75 (1939), cited both Pocket Veto
and Edwards when it held that, under the Illinois Constitution of
1870, the General Assembly had authority to present bills to the
Governor after adjournment and that the time accorded to the
Governor to consider bills presented cannot be reduced by
adjournment of the legislature. Plaintiffs distinguish Hughes from
the instant case on the basis that the adjournment in Hughes
occurred 1« years prior to expiration of the General Assembly's
term. The adjournment in Hughes, as in the case sub judice, was
"sine die." Hughes, 372 Ill. at 604. Black's Law Dictionary
defines sine die as "[w]ithout day," "[a] final adjournment."
Black's Law Dictionary 1385 (6th ed. 1990).
In addressing the distinction advanced by plaintiffs, the
Supreme Court in Edwards sustained the President's authority to
approve bills when Congress was not in session, so long as the
approval was within the time limit set forth in the Constitution.
The Supreme Court found that its holding "applies with as much
force to the case of an adjournment, whether it is at the close of
a session or is the final adjournment of the Congress, as to the
case of a recess for a specified period." Edwards, 286 U.S. at
490, 76 L. Ed. at 1243, 52 S. Ct. at 630.
As in Edwards, the instant case involves a bill that was
signed, not vetoed, by the Governor. No further action was
required by the General Assembly to implement passage of the bill.
Finally, when the adjournment of the legislature prevents that
legislature from being able to override any potential veto by the
head of the executive branch, such loss of the legislative
prerogative is attributed solely to the action of the legislature.
Pocket Veto, 279 U.S. at 678-79, 73 L. Ed. at 897, 49 S. Ct. at
466. Accordingly, we hold that the legislature has authority to
present bills to the Governor after adjournment, and if the
Governor signs such bills within the time accorded under the
Constitution, those bills become law.
Plaintiff Orr's fourth contention on appeal (plaintiff
Krislov's first issue on appeal) is that the General Assembly
violated the three-readings requirement of the Illinois
constitution.
Article IV, section 8(d), of the Constitution states that "[a]
bill shall be read by title on three different days in each house."
Ill. Const. 1970, art. IV, 8(d). Here, it is not disputed that
the Act was read only one time in each house before its passage.
The circuit court found that it was precluded from inquiring into
the constitutionality of this legislative process due to the
enrolled bill doctrine. The enrolled bill doctrine creates a
presumption that a bill was properly passed if the speaker of the
house of representatives and the president of the senate sign the
bill to certify that the procedural requirements for passage have
been met. Ill. Const 1970, art. IV, 8(d); Geja's Cafe v.
Metropolitan Pier & Exposition Authority, 153 Ill. 2d 239, 259, 606 N.E.2d 1212 (1992).
Our supreme court has affirmed the use of the enrolled bill
doctrine on numerous occasions. The court first addressed the
doctrine in Fuehrmeyer v. City of Chicago, 57 Ill. 2d 193, 198, 311 N.E.2d 116 (1974), where it held that the verification of
procedural matters is within the province of the presiding officers
of the House and Senate. The court revisited the doctrine in
Benjamin v. Devon Bank, 68 Ill. 2d 142, 368 N.E.2d 878 (1977),
where it cited the legislative committee notes from the
Constitutional Convention of 1970. The notes make it clear that
the framers understood the enrolled bill doctrine to mean that when
the president of the Senate and speaker of the House each sign a
bill, their signatures become conclusive proof that all
constitutional procedures were properly followed during the passage
of the bill. Benjamin, 68 Ill. 2d at 272; see also Polich, 79 Ill. 2d at 211. Then, in Geja's, the court issued a warning to the
legislature about the use of the doctrine and noncompliance with
the three-readings requirement. Specifically, the court made the
following finding:
"Plaintiffs urge us to abandon the enrolled bill
doctrine because history has proven that there is no
other way to enforce the constitutionally mandated three-
readings requirement. While plaintiffs make a persuasive
argument, we decline their invitation. We do so because,
for today at least, we feel that the doctrine of
separation of powers is more compelling. However, we
defer to the legislature hesitantly, because we do not
wish to understate the importance of complying with the
Constitution when passing bills. If the General Assembly
continues its poor record of policing itself, we reserve
the right to revisit this issue on another day to decide
the continued propriety of ignoring this constitutional
violation." Geja's, 153 Ill. 2d at 260.
The court, however, has not exercised its right to revisit the
issue in subsequent opinions. See Cutinello v. Whitley, 161 Ill. 2d 409, 641 N.E.2d 360 (1994); People v. Dunigan, 165 Ill. 2d 235,
650 N.E.2d 1026 (1995) (Heiple, J., dissenting); Cincinnati
Insurance Co. v. Chapman, 181 Ill. 2d 65, 691 N.E.2d 374 (1998).
Constitutional violations of any nature are of great concern
to this court. And while we acknowledge the importance of strict
compliance with the mandates of the Constitution, we decline to
deviate from the enrolled bill doctrine in this context due to our
supreme court's holding in Geja's. In Geja's, our supreme court
expressly reserved the right to revisit this issue. Geja's, 153 Ill. 2d at 260. This court is bound by the decisions of the
supreme court. Rickey, 98 Ill. 2d at 551; Niziolek, 251 Ill. App.
3d at 548; Vonholdt v. Barba & Barba Construction, Inc., 276 Ill.
App. 3d 325, 329, 657 N.E.2d 1156 (1995), aff'd on other grounds,
175 Ill. 2d 426, 677 N.E.2d 836 (1997). Thus, we leave to our
supreme court the issue of whether the state legislature may
disregard constitutional requirements and maintain the legality of
its actions under the auspices of the enrolled bill doctrine. As
such, we affirm the ruling of the circuit court.
Plaintiff Orr's final contention on appeal is that the Act
violates the State Mandates Act and that plaintiff Orr has standing
to challenge this violation.
Under the State Mandates Act, the state must reimburse units
of local government if the state creates new programs or expands
existing ones that increase the costs to a local government. 30
ILCS 805/2 (West 1994); Board of Education of Maine Township High
School District 207 v. State Board of Education, 139 Ill. App. 3d
460, 462, 487 N.E.2d 1053 (1985); County of Macon v. Board of
Education of Decatur School District No. 61, 165 Ill. App. 3d 1, 8,
518 N.E.2d 653 (1987). Plaintiff Orr argues that the Act actually
is a service mandate as defined under section 3(f) of the State
Mandates Act, and that the State therefore must reimburse Orr's
office for at least 50% of the additional expenses that the office
will incur by complying with the Act. 30 ILCS 805/3(f) (West
1994); Board of Trustees of Community College District No. 508 v.
Burris, 118 Ill. 2d 465, 469, 515 N.E.2d 1244 (1987). Plaintiff
Orr maintains that the abolition of "one-punch" straight-party
voting will require a greater number of voting machines to
accommodate all of the voters in a timely manner. Section 17-11 of
the Election Code provides that no voter shall spend more than 10
minutes in a voting booth and that a voter may only spend up to
five minutes in the booth if other voters are waiting. 10 ILCS
5/17-11 (West 1994). It is Orr's position that his office cannot
comply with requirements of section 17-11 with the current number
of voting machines in Cook County. This is so because the
abolition of "one-punch" voting will require voters to spend more
time in the voting booth as they must now review each of the
election races individually. Orr calculates that his office will
need $900,000 for the November 1998 election in order to have a
sufficient number of machines to comply with the time restrictions
of section 17-11. Upon considering a motion to dismiss pursuant to
section 2-615 of the Code, all well-pleaded facts must be taken as
true. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 490, 675 N.E.2d 584 (1996). Defendants argue that the Act does not require
Orr to purchase any new machines. By statute, Orr is only required
to provide enough voting machines so that each precinct has at
least one machine for every 75 people who voted in the previous
election. 10 ILCS 5/17-8 (West 1994). Defendants further assert
that the Act itself imposes no additional duties on Orr.
The circuit court found that Orr did not have standing to
bring an action under the State Mandates Act. The court rejected
Orr's argument that he had standing by virtue of his position as
Cook County clerk. Orr cites to People ex rel. Issacs v. Johnson,
26 Ill. 2d 268, 186 N.E.2d 346 (1962), in support of his position
that public officials may question the constitutionality of a state
statute. However, the court in Johnson held that a public official
may challenge the constitutionality of legislation when he or she
is being sued in a mandamus action to compel performance of duties.
Johnson, 26 Ill. 2d at 271. The facts in the instant case are
completely inapposite to those in Johnson. The circuit court also
noted that no reported cases have ruled that individual public
officials have standing under the State Mandates Act. See
generally Orr v. Edgar, 283 Ill. App. 3d 1088, 1097 n.1, 670 N.E.2d 1243 (1996) (holding that the City of Chicago had standing to sue
under the State Mandates Act). We agree with the circuit court.
The State Mandates Act applies to units of local government.
"Local government" is defined in the act as "a municipality,
county, township, other unit of local government, school district,
or community college district." 30 ILCS 805/3(a) (West 1994). The
Illinois Constitution defines units of local government as
"counties, municipalities, townships, special districts, and units,
designated as units of local government by law." Ill. Const. 1970,
art. VII, 1. In order to have standing under the act, the
plaintiff must be a unit of local government. Here, Orr does not
qualify as a unit of local government per the definition set forth
in the State Mandates Act, nor under the definition set forth in
the Constitution. Therefore, the circuit court properly ruled that
Orr did not have standing to bring an action under the State
Mandates Act.
In light of the foregoing, we affirm the judgment of the
circuit court of Cook County.
Affirmed.
HOFFMAN, J., concurs.
JUSTICE ZWICK, dissenting:
I respectfully dissent.
As the majority has noted, the defendants readily concede that
passage of this act was done in violation of article IV, section
(d), of our state constitution. Notwithstanding this concession,
it is the majority's view that the enrolled bill doctrine is an
absolute bar to judicial examination of the clearly unethical and
perhaps even fraudulent conduct of the speaker of the House and the
president of the Senate in certifying that this legislation was
read on three separate days. It is on this single but critically
important point that I depart from my colleagues.
The three-readings requirement for enacting legislation found
in article IV, section 8(d), serves two distinct functions. The
first is procedural. By providing that each bill be read "by
title" on the floor of each house, it assures that every member of
the General Assembly receives fair notice of pending legislation.
In furtherance of this purpose, section 8(d) also provides that new
legislation must be "reproduced and placed on the desk of each
member before final passage." Ill. Const. 1970, art. IV, 8(d).
After a bill is passed, the speaker of the House and the president
of the Senate certify that all the procedural requirements
necessary for its passage into law have been faithfully met. When
legislation is so certified, the enrolled bill doctrine, as the
majority notes, precludes a court challenge on the basis that the
proper notices had not been given. Thus, the legislation becomes
procedurally unassailable.
The three-readings requirement also serves a substantive
purpose, a function that has never before been put at issue on
appeal. By requiring that every bill be read publicly "on three
different days," section 8(d) creates a specific period of time
during which members of the General Assembly, the media, and the
public have the opportunity to inform themselves about pending
changes in Illinois law. The three-day requirement also presents
a window of opportunity when out citizenry can contact their
representatives to urge a vote in favor of or against pending
legislation. In this case, where the bill was read only once on
the same day that it was passed, even the press, armed with
satellite uplinks and high-speed internet connections, could not
have disseminated the potential effects of this law before it was
set for vote.
The majority cites several cases in which our supreme court
has invoked the enrolled bill doctrine to uphold legislation
against constitutional attack similar to that now made by the
plaintiffs. See People v. Dunigan, 165 Ill. 2d 235, 650 N.E.2d 1026 (1995); Cutinello v. Whitely, 161 Ill. 2d 409, 641 N.E.2d 360
(1994); Geja's Cafe v. Metropolitan Pier & Exposition Authority,
153 Ill. 2d 239, 606 N.E.2d 1212 (1992); Fuehrmeyer v. City of
Chicago, 57 Ill. 2d 193, 311 N.E.2d 116 (1974). These cases are
distinguishable. Except in Geja's Cafe, the defendants in each of
these cases argued that the passage of the Act complied with the
three-readings requirement. Thus, in all of those cases but Geja's
Cafe, the court was presented with a good-faith argument that the
particular act in question had been read in conformity with the
constitutional mandate. Because those cases presented a genuine
issue as to whether the procedural requirements had been met, the
court elected, out of concern for separation of powers, to
reasonably rely upon the certifications of the speaker of the House
and the president of the Senate. In stark contrast to those cases,
the defendants here concede that the Act was not read three times
on three different days, as constitutionally mandated by article
IV, section 8(d).
Geja's Cafe is similar to the instant case in that the
defendants there acknowledged that the act had not been properly
read in accordance with article IV, section 8(d). In that case,
however, the supreme court noted that the enrolled bill doctrine
had been designed to preclude invalidation of legislation on "some
procedural error or technicality." Geja's Cafe, 153 Ill. 2d at
259, quoting 6 Record of Proceedings Sixth Illinois Constitutional
Convention 1386-87. Unlike the facts at issue in Geja's Cafe,
where the General Assembly was found to have regularly ignored the
three-readings requirement (see Geja's Cafe, 153 Ill. 2d at 260),
the case at bar does not present such a technical or "purely
procedural" (Geja's Cafe, 153 Ill. 2d at 259) challenge. Rather,
we are confronted with a case in which it is undisputed that the
speaker of the House and the president of the Senate deliberately
and shamelessly falsified their certifications regarding passage of
the Act knowing that the bill was fundamentally defective. As the
majority has observed, this act had been introduced for the first
time on the very last day of the legislative session. At this point
in time, section 8(d) made the enactment of newly introduced
legislation constitutionally impossible. It should be noted that
the very next day, indeed, the very next hour, the opposite
political party took majority control of the House of
Representatives. The deliberate falsification of the certifications
required by section 8(d) to achieve passage of a defective bill
that would have otherwise lapsed is unprecedented. Certainly our
supreme court never intended to give its judicial imprimatur to
such extraordinary and reprehensible conduct by its application of
the enrolled bill doctrine, and never before has this doctrine been
used to shield such patent dishonesty.
Taken to its logical extreme, the enrolled bill doctrine,
interpreted as the majority suggests, would force this court to
uphold legislation against constitutional attack even if it were
conceded that a majority of the members of the House and Senate had
voted against its passage, so long as the President of the Senate
and Speaker of the House had issued certifications indicating that
all procedures had been properly followed. See Dunigan, 165 Ill. 2d at 258 (Heiple, J., dissenting). This certainly cannot be the
law of Illinois.
Unfortunately, what was true more than 130 years ago
necessarily remains true today: "[N]o man's life, liberty or
property are safe while the Legislature is in session." Final
Accounting in the Estate of A.B., 1 Tucker (N.Y. Surr.) 247, 249
(1866). The drafters of our constitution wisely recognized the
awesome power our General Assembly wields over the lives of our
citizenry and tempered that power with a requirement that all
legislation be announced on three separate days before it can be
enacted into law. The failure to read this legislation on three
separate days in this case was no mere "technical omission."
Rather, its passage, after 11 p.m. on the last day of the
legislative session, with no previous warning, was an unprincipled
ambush, a final power grab by a political party that had been
relegated by the voters in the previous election to serve a
minority role during the next legislative term in the House. This
was, and there is no kinder way to say it, the act of desperate
legislative leaders unwilling to subject their handiwork to the
public scrutiny required by our state's constitution. The enrolled
bill doctrine was never inteNded to be applied in such
circumstances. It should not be applied here.
In this case, the Act is plainly unconstitutional.
Accordingly, I respectfully but most vigorously dissent.
July 20, 1998
Nos. 1-98-1485 & 1-98-1508
DAVID ORR, as Cook County Clerk and as a
Taxpayer, Resident, Future Candidate for
Elected Office, and Registered Voter of
Cook County and the ILLINOIS STATE
COUNCIL OF SENIOR CITIZENS'
ORGANIZATIONS, and JOSEPH RAMSKI,
Plaintiffs-Appellants,
v.
JIM EDGAR, Governor of the State of
Illinois, RONALD D. MICHAELSON,
Executive Director of the Illinois State
Board of Elections, and HANNELORE
HUISMAN, KENNETH BOYLE, CHARLES DURHAM,
DAVID MURRAY, WANDA REDNOUR, and ELAINE
ROUPAS, as members of the Illinois State
Board of Elections,
Defendants-Appellees. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
Honorable
Francis Barth,
Judge Presiding.
_________________________________________
CLINT KRISLOV AND CONSTANCE HOWARD,
Plaintiffs-Appellants,
v.
THE ILLINOIS STATE BOARD OF ELECTIONS,
Defendant-Appellee.
JUSTICE QUINN delivered the opinion of the court:
On January 7, 1997, the Illinois General Assembly passed
Public Act 89-700 (Act) (Pub. Act 89-700, eff. January 17, 1997)
which abolished "one-punch" straight-party voting in Illinois.
Governor Edgar signed the Act into law on January 17, 1997. On
September 24, 1997, plaintiffs David Orr (Orr) and the Illinois
State Council of Senior Citizens' Organizations (Council) filed a
complaint for declaratory judgment and injunctive relief alleging
that the Act was unconstitutional and that the Act violated the
State Mandates Act (30 ILCS 805/1 et seq. (West 1994)). Plaintiff
Joseph Ramski later joined the lawsuit and a five-count second
amended complaint was filed. Plaintiffs Clint Krislov (Krislov)
and Constance Howard also filed a complaint on September 24, 1997,
which challenged the constitutionality of the Act. These cases
were consolidated in the court below. Plaintiffs Orr, Ramski and
the Council (plaintiff Orr) moved for summary judgment on three of
their five counts, and plaintiffs Krislov and Howard (plaintiff
Krislov) moved for summary judgment on all counts. Defendants Jim
Edgar, Ronald D. Michaelson, Hannelore Huisman, Kenneth Boyle,
Charles Durham, David Murray, Wanda Rednour and Elaine Roupas
responded with a motion to dismiss each of plaintiffs' counts
pursuant to sections 2-615 and 2-619 of the Illinois Code of Civil
Procedure (Code) (735 ILCS 5/2-615, 619 (West 1994)). On April 24,
1998, the circuit court of Cook County granted defendants' motion
to dismiss as to both complaints.
On appeal, these two cases were consolidated. Plaintiff Orr
maintains on appeal that: (1) the Act stripped a voting right from
the Illinois voters in violation of the Illinois Constitution; (2)
the General Assembly violated the constitutional three-fifths
majority vote requirement necessary to pass the Act with an
immediate effective date; (3) the Act never became law since it was
not enacted during the legislative term of the 89th General
Assembly; (4) the state legislature violated the three readings
requirement of the Illinois Constitution; and (5) the Act violates
the State Mandates Act and plaintiff Orr has standing to challenge
this violation. Plaintiff Krislov's issues on appeal mirror issues
two through four in plaintiff Orr's brief. In the interest of
judicial economy, we will address these common issues together.
For the following reasons, we affirm.
The facts relevant to this appeal are as follows. The 89th
General Assembly passed Public Act 89-700 on January 7, 1997, the
last day of its legislative term, which ran from January 11, 1995,
to January 7, 1997. The Act abolished "one-punch" straight-party
voting in Illinois and set forth the various requirements necessary
to effectuate its goal. Pub. Act 89-700, 1-7, eff. January 17,
1997. The Act began its life in 1995 as House Bill 444, which
would have amended the University of Illinois Trustees Act (110
ILCS 310/1 et seq. (West 1994)). Eventually the bill ended up in
a conference committee where the committee stripped the bill of its
original language and inserted the current language abolishing
"one-punch" voting. After a brief floor debate on January 7, 1997,
the bill was read one time in both houses and passed along partisan
lines that same day. The Act, which had an immediate effective
date, received 60 out of a possible 118 votes in the House and 32
out of a possible 59 in the Senate. The 89th General Assembly then
adjourned the following day on January 8, 1997, and the Act was
sent to Governor Edgar the same day. Governor Edgar signed the Act
into law on January 17, 1997.
On September 24, 1997, plaintiff Orr filed his complaint
seeking declaratory judgment and injunctive relief. The complaint
challenged the substantive and procedural validity of the Act and
further alleged that it violated the State Mandates Act (30 ILCS
805/1 et seq. (West 1994)). Plaintiff Orr subsequently filed a
second amended complaint on February 24, 1998, which added Ramski
as a named plaintiff. Count I of the second amended complaint
alleged that the Act violated articles I and III of the Illinois
Constitution (Constitution), which require: (1) the State to
respect due process, equal protection, and voting rights; (2)
elections to be free and equal; and (3) the General Assembly to
facilitate voting and to pass election laws that are general and
uniform. Count II alleged that the passage of the Act violated
article IV, section 10, of the Constitution, which requires bills
with an immediate effective date passed after May 31 to receive a
three-fifths majority vote in the General Assembly. Count III
alleged that the Act violated article IV, section 5(a), of the
Constitution (requiring the General Assembly to be a continuous
body) and that the late timing of the passage of the Act precluded
the Governor and legislature from exercising their amendatory,
veto, and veto override powers under article IV, section 9, of the
Constitution. Count IV alleged that the passage of the Act
violated article IV, section 8(d), of the Constitution, which
requires that a bill be read three times in each house of the
General Assembly in order to pass. Count V alleged that the Act
violated the State Mandates Act (30 ILCS 805/1 et seq. (West
1994)). Count I of plaintiff Krislov's complaint mirrors count II
of plaintiff Orr's complaint, count II mirrors count IV of
plaintiff Orr's complaint, and count III mirrors count III of
plaintiff Orr's complaint. Plaintiffs filed a motion for summary
judgment on their common issues.
Defendants responded with a motion to dismiss for a failure to
state a claim pursuant to sections 2-615 and 2-619 of the Code (735
ILCS 5/2-615, 619 (West 1994)). Defendants also filed a motion to
dismiss the State Mandates Act claim due to plaintiff Orr's lack of
standing. Various other motions also were filed that are not the
subject of this appeal. On April 24, 1998, the circuit court, in
a 41-page opinion, granted defendants' motions to dismiss and
denied plaintiffs' motion for summary judgment. The circuit court
dismissed count I of plaintiff Orr's complaint on the grounds that
the Act did not interfere with the citizens' fundamental right to
vote. The court reviewed the Act under the rational basis test and
found that the Act bore a rational relationship to a legitimate
governmental interest. The court also found that the Act was
consonant with the legislature's duty to facilitate voting and to
pass election laws that are general and uniform. The court further
found that the mandate of article III that all elections be free
and equal was not offended by the Act. The circuit court dismissed
count II of plaintiff Orr's complaint and count I of plaintiff
Krislov's complaint, finding that the Illinois Supreme Court
already had determined that bills passed in January with an
immediate effective date need only pass with a simple majority.
The circuit court dismissed count III of plaintiff Orr's complaint
and count III of plaintiff Krislov's complaint, finding that the
Constitution requires the Governor to be provided with the time to
sign or veto legislation regardless of whether the General
Assembly's term has expired. The circuit court dismissed count IV
of plaintiff Orr's complaint and count II of plaintiff Krislov's
complaint on the grounds that the enrolled bill doctrine precluded
the court from inquiring into whether the legislature complied with
its procedural requirements for passage of bills. The court also
noted that the Illinois Supreme Court had reserved the right to
revisit the issue of whether the use of the enrolled bill doctrine
violates the Constitution. Finally, the circuit court dismissed
count V of plaintiff Orr's complaint on the grounds that individual
public officials do not have standing to sue under the State
Mandates Act. The court also found that even if plaintiff Orr had
standing, the Act would not violate the State Mandates Act as it
imposes no new duties on the Cook County clerk.
We review the trial court's ruling on a motion to dismiss and
the court's decision on a motion for summary judgment de novo.
Murneigh v. Gainer, 177 Ill. 2d 287, 298, 685 N.E.2d 1357 (1997);
Pryweller v. Cohen, 282 Ill. App. 3d 899, 907, 668 N.E.2d 1144
(1996).
Plaintiff Orr's first contention on appeal is that the Act
stripped a voting right from Illinois voters. We disagree.
It is axiomatic that the right to vote is a fundamental right
that deserves zealous protection by the courts. Tully v. Edgar,
171 Ill. 2d 297, 306, 664 N.E.2d 43 (1996); Fumarolo v. Chicago
Board of Education, 142 Ill. 2d 54, 74, 566 N.E.2d 1283 (1990). As
such, legislation that infringes upon the right to vote is subject
to strict scrutiny. Tully, 171 Ill. 2d at 304; Fumarolo, 142 Ill. 2d at 74. However, it is as equally well established that the
legislature has the right to reasonably regulate the time, place
and manner in which the citizens exercise their right to vote.
McDunn v. Williams, 156 Ill. 2d 288, 316, 620 N.E.2d 385 (1993);
Walgreen Co. v. Liquor Control Comm'n, 111 Ill. 2d 120, 488 N.E.2d 980 (1986). Legislation that affects voting in this regard is
subject to the rational basis analysis. Walgreen, 111 Ill. 2d at
127.
Here, we find that the legislation in question does not
infringe upon the right to vote. Rather, the legislation affects
the manner in which citizens exercise their right to vote. The Act
does not prohibit voters from voting a straight-party ballot.
Indeed, an individual voter still has the right to cast a ballot
entirely for candidates of one political party. The Act only
dictates the manner in which the voter may select candidates.
Plaintiffs cite Tully, 171 Ill. 2d 297, 664 N.E.2d 43, for the
proposition that legislation that affects any stage of the election
process triggers the strict scrutiny standard of review. In Tully,
the legislature passed a statute that terminated the terms of the
trustees of the University of Illinois after they had been elected
to their positions but before the end of their terms. Our supreme
court found that the legislation in question affected the voters'
fundamental right to vote. Tully, 171 Ill. 2d at 306-07. The
court found that the legislation "basically eviscerates the
election process by providing that, even though the trustees
received the majority of votes cast and counted on election day,
they are prohibited from holding office for the terms to which they
were elected." Tully, 171 Ill. 2d at 306. Here, we find no such
intrusion into the citizens' right to vote. The Act only affects
the manner in which the citizens cast their votes, not the
fundamental right to vote. Accordingly, we apply the rational
basis analysis to the Act.
In order to survive the rational basis test, "the method or
means employed in the statute to achieve the stated goal or purpose
of the legislation [must be] rationally related to that goal." In
Re A.A., 181 Ill. 2d 32, 38, 690 N.E.2d 980 (1998). Whether a
rational basis exists for legislation presents a question of law,
which we review de novo. Jacobson v. Department of Public Aid, 171 Ill. 2d 314, 323, 664 N.E.2d 1024 (1996). We also presume that the
legislation in question is constitutional, and the complaining
party has the burden to prove otherwise. People ex rel. Chicago
Bar Ass'n v. State Board of Elections, 136 Ill. 2d 513, 524, 558 N.E.2d 89 (1990). When a court is faced with a challenge to the
validity of a statute, the court's job is to determine whether the
act is constitutional, not whether it is wise. Best v. Taylor
Machine Works, 179 Ill. 2d 367, 390, 689 N.E.2d 1057 (1997).
Here, the circuit court found that the Act satisfied the
rational basis test. The legislative record reflects that the Act
was introduced with a stated purpose of achieving a number of
goals, including: increased voter awareness, the selection of
better qualified candidates by the political parties, and an
increased involvement by third-party groups in the political
process. The circuit court found that the abolition of "one-punch"
straight-party voting was rationally related to these governmental
interests. Upon reviewing this determination, we are mindful that,
"'"a legislative choice is not subject to courtroom fact-finding
and may be based on rational speculation unsupported by evidence or
empirical data."'" In re AA, 181 Ill. 2d at 40, quoting Cutinello
v. Whitley, 161 Ill. 2d 409, 421-22, 641 N.E.2d 360 (1994), quoting
Federal Communications Comm'n v. Beach Communications, Inc., 508 U.S. 307, 315, 124 L. Ed. 2d 211, 222, 113 S. Ct. 2096, 2102
(1993). The Act, which regulates only the manner in which the
citizens exercise their right to vote, represents legislation that
is rationally related to a legitimate government interest. We
therefore affirm the trial court's ruling.
Plaintiff Orr also maintains that the Act violates the due
process and equal protection clauses of the Illinois Constitution
(Ill. Const. 1970, art. I, 2) and the Illinois constitutional
provisions regarding the right to vote (Ill. Const. 1970, art. III,
1 et seq.). Specifically, plaintiff Orr argues that the
constitutional provisions requiring the State to facilitate voting
for all qualified persons and to adopt election laws that are
general and uniform (Ill. Const. 1970, art. III, 4) are violated
when the Act is coupled with section 17-11 of the Election Code (10
ILCS 5/17-11 (West 1994)), which provides that no voter shall spend
more than five minutes in a voting booth if other voters are
waiting. Plaintiff Orr maintains that the Act will be especially
harmful to the voting rights of the elderly and handicapped in Cook
County because of the extremely long ballots in Cook County.
The Act does not impede voting by all qualified persons. As
pointed out by defendants, a "one-punch" straight-party vote is not
available to the voters who participate in the primary elections.
In Cook County, primary election ballots routinely contain the
names of many more candidates than are on the general election
ballot. The unavailability of "one-punch" voting has not prevented
the elderly and handicapped from fully exercising their voting
rights in primary elections. Plaintiff Orr has presented no basis
to believe that their participation in general elections will be
negatively impacted by the absence of "one-punch" straight-party
voting. Further, as noted by the trial court, the time limitations
of section 17-11 are not intended to rush impeded voters, but are
meant to ensure that ballot casting itself is not utilized as a
stalling tactic by those motivated to prevent others from voting.
As to plaintiff Orr's assertion that the Act violates the
constitutional requirement that election laws be general and
uniform, the Act's applicability is uniform throughout the state.
Finally, we note that the "one-punch" straight-party vote was
first adopted by the legislature in 1891 and abolished in 1997.
"One-punch" voting currently is not available to voters in 31
states. We reject plaintiff Orr's contention that such a voting
method constitutes a fundamental right that cannot be revisited by
the legislature. There is no vested right in the mere continuance
of a law - the legislature retains an ongoing right to amend a
statute. First of America Trust Co. v. Armstead, 171 Ill. 2d 282,
291, 664 N.E.2d 36 (1996). We affirm the circuit court's rulings
on these issues.
Plaintiff Orr's second contention on appeal (plaintiff
Krislov's second issue on appeal) is that the General Assembly
violated the three-fifths majority vote requirement necessary to
pass the Act with an immediate effective date. The 89th General
Assembly first convened on January 11, 1995. The legislature then
reconvened for its second legislative session on January 10, 1996.
Then, as has become common practice during the past decade and a
half, the legislature convened for a third January session on
January 6 and 7, 1997. It was during this third January session
that the General Assembly passed the Act by a simple majority and
with an immediate effective date.
Article IV, section 10, of the Illinois Constitution provides:
"The General Assembly shall provide by law for a
uniform effective date for laws passed prior to June 1 of
a calendar year. The General Assembly may provide for a
different effective date in any law passed prior to June
1. A bill passed after May 31 shall not become effective
prior to June 1 of the next calendar year unless the
General Assembly by the vote of three-fifths of the
members elected to each house provides for an earlier
effective date." Ill. Const. 1970, art. IV, 10.
The enabling act for this provision provides the following:
"A bill passed after May 31 of a calendar year shall
become effective on June 1 of the next calendar year
unless the General Assembly by a vote of three-fifths of
the members elected to each house provides for an earlier
effective date in the terms of the bill or unless the
General Assembly provides for a later effective date in
the terms of the bill; provided that if the effective
date provided in the terms of the bill is prior to the
date the bill becomes a law then the date the bill
becomes a law shall be the effective date." 5 ILCS 75/2
(West 1996).
Plaintiffs maintain that the 89th General Assembly had only two
opportunities to pass the Act with a simple majority and an
immediate effective date: from January 11, 1995, to May 31, 1995,
and from January 10, 1996, to May 31, 1996. Plaintiffs contend
that the framers of the Constitution did not intend for the General
Assembly to be able to pass a bill with a simple majority and an
immediate effective date after June 1 of the second year of a
legislative term.
The circuit court disagreed with plaintiffs and found that a
simple majority was sufficient to pass an act with an immediate
effective date during a third January session. In reaching its
decision, the circuit court followed the reasoning set forth by our
supreme court in Polich v. Chicago School Finance Authority, 79 Ill. 2d 188, 208, 402 N.E.2d 247 (1980). In Polich, the supreme
court was faced with the issue of whether a bill introduced during
March of the first legislative session and passed during January of
the second session required a three-fifths majority vote in order
to have an immediate effective date. The court found that only a
simple majority was required. Polich, 79 Ill. 2d at 208. In
Polich, the appellants argued that when article IV, section 10, of
the Constitution spoke of laws passed prior to July 1 (now June 1),
it was contemplated that such bills would have been introduced
after the legislature convened on the second Wednesday of that
calendar year. Our supreme court rejected this argument, pointing
out that the constitutional provision "referred to a bill 'passed
prior to July 1 of a calendar year' without regard to when the bill
may have been filed or its prior course through the legislative
process. [Citations.] In our opinion, this clear and explicit
constitutional provision requires no construction ***." Polich, 79 Ill. 2d at 208.
Here, plaintiffs argue that article IV, section 10, was not
meant to apply to bills introduced by an outgoing legislature
immediately prior to the end of the legislature's term. While this
case concerns a bill passed in a legislature's third January
session, rather than its second January session as in Polich, the
analysis does not change. The supreme court found that article IV,
section 10, of the Constitution was a "clear and explicit
constitutional provision [that] required no construction." Polich,
79 Ill. 2d at 208.
Upon reviewing the constitutionality of a statute, there is a
judicial presumption in favor of finding the statute
constitutional. Mulligan v. Joliet Regional Port District, 123 Ill. 2d 303, 312, 527 N.E.2d 1264 (1988). However, this court must
avoid rendering an interpretation that would make an enactment
absurd and illogical. Mulligan, 123 Ill. 2d at 312-13; Midwest
Bank & Trust Co. v. Roderick, 132 Ill. App. 3d 463, 470, 476 N.E.2d 1326 (1985). Statutes must be construed in a manner that prevents
hardship or injustice, and that opposes prejudice to public
interests. Mulligan, 123 Ill. 2d at 313. We also note that
appellate courts "are without authority to overrule the supreme
court or to modify its decisions." Rickey v. Chicago Transit
Authority, 98 Ill. 2d 546, 551, 457 N.E.2d 1 (1983).
In the present cause, we agree with the circuit court and find
that only a simple majority was necessary to pass the Act with an
immediate effective date during a third January session.
Plaintiffs advance persuasive arguments as to why a three-fifths
majority was required to pass the Act with an immediate effective
date. Plaintiffs point out, and defendants agree, that if the Act
had been voted on between June 1, 1996, and December 31, 1996, it
would have required a three-fifths majority to pass with an
immediate effective date. This being so, plaintiffs argue that it
is absurd to allow the legislature to pass a statute with a simple
majority in a third January session and have it be immediately
effective. Plaintiffs also cite the floor comments offered by the
delegates to the Constitutional Convention of 1970 to support their
proposition that the framers of the Constitution did not
contemplate the legislature being in session in the third January
of their legislative term. Plaintiffs assert that had the framers
considered such a possibility, they would have required any bill
passed in such a third January session to be passed with a three-
fifths majority if it included an immediate effective date.
We do not reach the issue of the intent of the framers of
article IV, section 10, of the Constitution. Ill. Const. 1970,
art. IV, 10. It is fundamental that the appellate court does not
have the authority to abandon supreme court precedent. Niziolek v.
Chicago Transit Authority, 251 Ill. App. 3d 537, 549, 620 N.E.2d 1097 (1993); Rickey, 98 Ill. 2d at 551. If precedent is not
followed, the uniformity and stability of decisions, which are
essential to the proper administration of justice, will be
destroyed. Niziolek, 251 Ill. App. 3d at 549.
Our supreme court has ruled that article IV, section 10, is
"clear and explicit" and "requires no construction." Polich, 79 Ill. 2d at 208. Thus, we are compelled to apply the plain meaning
of the language of article IV, section 10, to the present case
without the use of extrinsic aids. Baker v. Miller, 159 Ill. 2d 249, 257, 636 N.E.2d 551 (1994). As the circuit court properly
found, if the continued vitality of this constitutional
interpretation is ripe for reexamination, such a task should be
undertaken by the tribunal that rendered the interpretation.
Since the Polich decision was rendered in 1980, the General
Assembly has met in a third January session in each legislative
term. As noted by the trial court, it is not unreasonable to
conclude that the General Assembly began meeting in a third January
session in reliance upon the interpretation of article IV, section
10, rendered by the coordinate branch of government authorized to
make such determinations. When the General Assembly makes a
practical construction of a law over the years, that construction
is entitled to great weight when determining whether it is valid.
Droste v. Kerner, 34 Ill. 2d 495, 500, 217 N.E.2d 73 (1966). The
enabling act for article IV, section 10, contains almost identical
language and fails to support plaintiffs' argument that the
legislature cannot pass an immediately effective bill with a simple
majority in a third January session. Further, the 88th General
Assembly proposed an amendment to article IV, section 10, that was
approved by voter referendum on November 8, 1994. Had the General
Assembly wished to amend or clarify the language of article IV,
section 10, it certainly could have done so at that time. Finally,
given our finding that the Act is constitutional as passed, we need
not address whether the effective date of the Act is severable.
Plaintiff Orr's third contention on appeal (plaintiff
Krislov's third issue on appeal) is that the Act never became law
since it was not enacted during the life of the 89th General
Assembly. As discussed above, the 89th General Assembly passed the
Act on January 7, 1997. On January 8, 1997, the 89th General
Assembly ceased to exist pursuant to article IV, section 5(a), of
the Constitution. Ill. Const. 1970, art. IV, 5(a). Governor
Edgar signed the bill into law on January 17, 1997. Plaintiffs
maintain that the Governor cannot sign legislation after a session
of the General Assembly has permanently adjourned because the
Governor could veto the legislation without recourse from the
legislature. Thus, the system of checks and balances between the
executive branch and legislative branch would be tilted in favor of
the executive branch. According to plaintiffs, such a system
undermines the Constitution, and the situation can only be remedied
by a judicial finding that all unsigned legislation expires at the
end of a General Assembly's term.
In support of their argument, plaintiffs cite to article IV,
section 9, the relevant portion of which provides:
"(b) If the Governor does not approve [a] bill, he
shall veto it by returning it with his objections to the
house in which it originated. Any bill not so returned
by the Governor within 60 calendar days after it is
presented to him shall become law. If recess or
adjournment of the General Assembly prevents the return
of a bill, the bill and the Governor's objections shall
be filed with the Secretary of State within such 60
calendar days. The Secretary of State shall return the
bill and objections to the originating house promptly
upon the next meeting of the same General Assembly at
which the bill can be considered." (Emphasis added.)
Ill. Const. 1970, art. IV, 9.
The drafters of the Constitution directed that all vetoed bills be
returned to the General Assembly in which they originated. Thus,
according to plaintiffs, all unsigned legislation must expire when
a General Assembly permanently adjourns because a vetoed bill will
never return to that General Assembly. Plaintiffs raise an
interesting point, but that issue currently is not before this
court. The issue before this court is whether legislation approved
by the Governor after the final adjournment of a General Assembly
is valid. We find that such legislation is valid.
Initially, we note that the Illinois General Assembly is a
continuous body for its 24-month term, and, as plaintiffs concede,
the legislature is capable of passing laws at any point during its
tenure. Ill. Const. 1970, art. IV, 5(a); First of America Trust
Co., 171 Ill. 2d at 290. Further, the Governor has 60 calendar
days from the date that a bill is presented to him or her in which
to sign or veto the bill. Ill. Const. 1970, art. IV, 9(b).
Adoption of plaintiffs' position would necessarily invalidate
either article IV, section 5(a), or article IV, section 9(b).
As recognized by plaintiffs, defendants, and the trial court,
"[i]f separate parts of a constitution appear to be in conflict,
courts should favor a construction which will render every
provision operative." Walker v. State Board of Elections, 65 Ill. 2d 543, 556, 359 N.E.2d 113 (1976). The United States Supreme
Court addressed the issue of executive action taken on legislation
after the legislature had adjourned in the "Pocket Veto" case.
Okanogan, Methow, San Poelis, Nespelem, Colville, & Lake Indian
Tribes or Bands v. United States, 279 U.S. 655, 73 L. Ed. 894, 49 S. Ct. 463 (1929) (Pocket Veto). There, Congress passed
legislation on June 24 and adjourned on July 3. Congress was not
in session on July 6, the tenth day after the bill had been
presented to the President. Article I, section 7, of the
Constitution of the United States provides that the President has
10 days to sign or veto a bill passed by both houses of Congress.
If the President has neither signed the bill nor vetoed it by
returning it to the house in which it originated within 10 days of
its presentation to him, the bill becomes law. U.S. Const., art.
I, 7.
In Pocket Veto, the President had neither signed nor vetoed
the bill before Congress adjourned nine days after its passage.
The issue to be decided by the United States Supreme Court was
whether the bill became law without the President's signature in
circumstances where Congress by its adjournment prevented the
President from returning the bill within 10 days after its
presentation. The Supreme Court held that the power conferred
under article I, section 7, to approve or veto legislation cannot
be reduced by Congress nor can the time allotted for the exercise
of the power be lessened. Pocket Veto, 279 U.S. at 677-78, 73 L. Ed. at 897, 49 S. Ct. at 465-66. Therefore, the bill did not
become law.
In Edwards v. United States, 286 U.S. 482, 76 L. Ed. 1239, 52 S. Ct. 627 (1932), the Supreme Court held that under article I,
section 7, of the United States Constitution, a bill signed by the
President within 10 days after it was presented to him, but after
the final adjournment of the Congress that had passed it, became
law. The reasoning behind this holding is especially significant
to the instant case:
"There is nothing in the words of the Constitution
which prohibits the President from approving bills,
within the time limited for his action, because the
Congress has adjourned, and the spirit and purpose of the
clause in question forbid the implication of such a
restriction. The provision that a bill shall not become
a law if its return has been prevented by the adjournment
of Congress is apposite to bills that are not signed, not
to those that are signed. There is no requirement that
bills that are signed should be returned. No further
action is required by Congress in respect of a bill which
has been presented to the President, unless he
disapproves it and returns it for reconsideration as the
Constitution provides." Edwards, 286 U.S. at 492, 76 L. Ed. at 1244, 52 S. Ct. at 630-31.
The Illinois Supreme Court in People ex rel. Peterson v.
Hughes, 372 Ill. 602, 25 N.E.2d 75 (1939), cited both Pocket Veto
and Edwards when it held that, under the Illinois Constitution of
1870, the General Assembly had authority to present bills to the
Governor after adjournment and that the time accorded to the
Governor to consider bills presented cannot be reduced by
adjournment of the legislature. Plaintiffs distinguish Hughes from
the instant case on the basis that the adjournment in Hughes
occurred 1« years prior to expiration of the General Assembly's
term. The adjournment in Hughes, as in the case sub judice, was
"sine die." Hughes, 372 Ill. at 604. Black's Law Dictionary
defines sine die as "[w]ithout day," "[a] final adjournment."
Black's Law Dictionary 1385 (6th ed. 1990).
In addressing the distinction advanced by plaintiffs, the
Supreme Court in Edwards sustained the President's authority to
approve bills when Congress was not in session, so long as the
approval was within the time limit set forth in the Constitution.
The Supreme Court found that its holding "applies with as much
force to the case of an adjournment, whether it is at the close of
a session or is the final adjournment of the Congress, as to the
case of a recess for a specified period." Edwards, 286 U.S. at
490, 76 L. Ed. at 1243, 52 S. Ct. at 630.
As in Edwards, the instant case involves a bill that was
signed, not vetoed, by the Governor. No further action was
required by the General Assembly to implement passage of the bill.
Finally, when the adjournment of the legislature prevents that
legislature from being able to override any potential veto by the
head of the executive branch, such loss of the legislative
prerogative is attributed solely to the action of the legislature.
Pocket Veto, 279 U.S. at 678-79, 73 L. Ed. at 897, 49 S. Ct. at
466. Accordingly, we hold that the legislature has authority to
present bills to the Governor after adjournment, and if the
Governor signs such bills within the time accorded under the
Constitution, those bills become law.
Plaintiff Orr's fourth contention on appeal (plaintiff
Krislov's first issue on appeal) is that the General Assembly
violated the three-readings requirement of the Illinois
constitution.
Article IV, section 8(d), of the Constitution states that "[a]
bill shall be read by title on three different days in each house."
Ill. Const. 1970, art. IV, 8(d). Here, it is not disputed that
the Act was read only one time in each house before its passage.
The circuit court found that it was precluded from inquiring into
the constitutionality of this legislative process due to the
enrolled bill doctrine. The enrolled bill doctrine creates a
presumption that a bill was properly passed if the speaker of the
house of representatives and the president of the senate sign the
bill to certify that the procedural requirements for passage have
been met. Ill. Const 1970, art. IV, 8(d); Geja's Cafe v.
Metropolitan Pier & Exposition Authority, 153 Ill. 2d 239, 259, 606 N.E.2d 1212 (1992).
Our supreme court has affirmed the use of the enrolled bill
doctrine on numerous occasions. The court first addressed the
doctrine in Fuehrmeyer v. City of Chicago, 57 Ill. 2d 193, 198, 311 N.E.2d 116 (1974), where it held that the verification of
procedural matters is within the province of the presiding officers
of the House and Senate. The court revisited the doctrine in
Benjamin v. Devon Bank, 68 Ill. 2d 142, 368 N.E.2d 878 (1977),
where it cited the legislative committee notes from the
Constitutional Convention of 1970. The notes make it clear that
the framers understood the enrolled bill doctrine to mean that when
the president of the Senate and speaker of the House each sign a
bill, their signatures become conclusive proof that all
constitutional procedures were properly followed during the passage
of the bill. Benjamin, 68 Ill. 2d at 272; see also Polich, 79 Ill. 2d at 211. Then, in Geja's, the court issued a warning to the
legislature about the use of the doctrine and noncompliance with
the three-readings requirement. Specifically, the court made the
following finding:
"Plaintiffs urge us to abandon the enrolled bill
doctrine because history has proven that there is no
other way to enforce the constitutionally mandated three-
readings requirement. While plaintiffs make a persuasive
argument, we decline their invitation. We do so because,
for today at least, we feel that the doctrine of
separation of powers is more compelling. However, we
defer to the legislature hesitantly, because we do not
wish to understate the importance of complying with the
Constitution when passing bills. If the General Assembly
continues its poor record of policing itself, we reserve
the right to revisit this issue on another day to decide
the continued propriety of ignoring this constitutional
violation." Geja's, 153 Ill. 2d at 260.
The court, however, has not exercised its right to revisit the
issue in subsequent opinions. See Cutinello v. Whitley, 161 Ill. 2d 409, 641 N.E.2d 360 (1994); People v. Dunigan, 165 Ill. 2d 235,
650 N.E.2d 1026 (1995) (Heiple, J., dissenting); Cincinnati
Insurance Co. v. Chapman, 181 Ill. 2d 65, 691 N.E.2d 374 (1998).
Constitutional violations of any nature are of great concern
to this court. And while we acknowledge the importance of strict
compliance with the mandates of the Constitution, we decline to
deviate from the enrolled bill doctrine in this context due to our
supreme court's holding in Geja's. In Geja's, our supreme court
expressly reserved the right to revisit this issue. Geja's, 153 Ill. 2d at 260. This court is bound by the decisions of the
supreme court. Rickey, 98 Ill. 2d at 551; Niziolek, 251 Ill. App.
3d at 548; Vonholdt v. Barba & Barba Construction, Inc., 276 Ill.
App. 3d 325, 329, 657 N.E.2d 1156 (1995), aff'd on other grounds,
175 Ill. 2d 426, 677 N.E.2d 836 (1997). Thus, we leave to our
supreme court the issue of whether the state legislature may
disregard constitutional requirements and maintain the legality of
its actions under the auspices of the enrolled bill doctrine. As
such, we affirm the ruling of the circuit court.
Plaintiff Orr's final contention on appeal is that the Act
violates the State Mandates Act and that plaintiff Orr has standing
to challenge this violation.
Under the State Mandates Act, the state must reimburse units
of local government if the state creates new programs or expands
existing ones that increase the costs to a local government. 30
ILCS 805/2 (West 1994); Board of Education of Maine Township High
School District 207 v. State Board of Education, 139 Ill. App. 3d
460, 462, 487 N.E.2d 1053 (1985); County of Macon v. Board of
Education of Decatur School District No. 61, 165 Ill. App. 3d 1, 8,
518 N.E.2d 653 (1987). Plaintiff Orr argues that the Act actually
is a service mandate as defined under section 3(f) of the State
Mandates Act, and that the State therefore must reimburse Orr's
office for at least 50% of the additional expenses that the office
will incur by complying with the Act. 30 ILCS 805/3(f) (West
1994); Board of Trustees of Community College District No. 508 v.
Burris, 118 Ill. 2d 465, 469, 515 N.E.2d 1244 (1987). Plaintiff
Orr maintains that the abolition of "one-punch" straight-party
voting will require a greater number of voting machines to
accommodate all of the voters in a timely manner. Section 17-11 of
the Election Code provides that no voter shall spend more than 10
minutes in a voting booth and that a voter may only spend up to
five minutes in the booth if other voters are waiting. 10 ILCS
5/17-11 (West 1994). It is Orr's position that his office cannot
comply with requirements of section 17-11 with the current number
of voting machines in Cook County. This is so because the
abolition of "one-punch" voting will require voters to spend more
time in the voting booth as they must now review each of the
election races individually. Orr calculates that his office will
need $900,000 for the November 1998 election in order to have a
sufficient number of machines to comply with the time restrictions
of section 17-11. Upon considering a motion to dismiss pursuant to
section 2-615 of the Code, all well-pleaded facts must be taken as
true. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 490, 675 N.E.2d 584 (1996). Defendants argue that the Act does not require
Orr to purchase any new machines. By statute, Orr is only required
to provide enough voting machines so that each precinct has at
least one machine for every 75 people who voted in the previous
election. 10 ILCS 5/17-8 (West 1994). Defendants further assert
that the Act itself imposes no additional duties on Orr.
The circuit court found that Orr did not have standing to
bring an action under the State Mandates Act. The court rejected
Orr's argument that he had standing by virtue of his position as
Cook County clerk. Orr cites to People ex rel. Issacs v. Johnson,
26 Ill. 2d 268, 186 N.E.2d 346 (1962), in support of his position
that public officials may question the constitutionality of a state
statute. However, the court in Johnson held that a public official
may challenge the constitutionality of legislation when he or she
is being sued in a mandamus action to compel performance of duties.
Johnson, 26 Ill. 2d at 271. The facts in the instant case are
completely inapposite to those in Johnson. The circuit court also
noted that no reported cases have ruled that individual public
officials have standing under the State Mandates Act. See
generally Orr v. Edgar, 283 Ill. App. 3d 1088, 1097 n.1, 670 N.E.2d 1243 (1996) (holding that the City of Chicago had standing to sue
under the State Mandates Act). We agree with the circuit court.
The State Mandates Act applies to units of local government.
"Local government" is defined in the act as "a municipality,
county, township, other unit of local government, school district,
or community college district." 30 ILCS 805/3(a) (West 1994). The
Illinois Constitution defines units of local government as
"counties, municipalities, townships, special districts, and units,
designated as units of local government by law." Ill. Const. 1970,
art. VII, 1. In order to have standing under the act, the
plaintiff must be a unit of local government. Here, Orr does not
qualify as a unit of local government per the definition set forth
in the State Mandates Act, nor under the definition set forth in
the Constitution. Therefore, the circuit court properly ruled that
Orr did not have standing to bring an action under the State
Mandates Act.
In light of the foregoing, we affirm the judgment of the
circuit court of Cook County.
Affirmed.
HOFFMAN, J., concurs.
JUSTICE ZWICK, dissenting:
I respectfully dissent.
As the majority has noted, the defendants readily concede that
passage of this act was done in violation of article IV, section
(d), of our state constitution. Notwithstanding this concession,
it is the majority's view that the enrolled bill doctrine is an
absolute bar to judicial examination of the clearly unethical and
perhaps even fraudulent conduct of the speaker of the House and the
president of the Senate in certifying that this legislation was
read on three separate days. It is on this single but critically
important point that I depart from my colleagues.
The three-readings requirement for enacting legislation found
in article IV, section 8(d), serves two distinct functions. The
first is procedural. By providing that each bill be read "by
title" on the floor of each house, it assures that every member of
the General Assembly receives fair notice of pending legislation.
In furtherance of this purpose, section 8(d) also provides that new
legislation must be "reproduced and placed on the desk of each
member before final passage." Ill. Const. 1970, art. IV, 8(d).
After a bill is passed, the speaker of the House and the president
of the Senate certify that all the procedural requirements
necessary for its passage into law have been faithfully met. When
legislation is so certified, the enrolled bill doctrine, as the
majority notes, precludes a court challenge on the basis that the
proper notices had not been given. Thus, the legislation becomes
procedurally unassailable.
The three-readings requirement also serves a substantive
purpose, a function that has never before been put at issue on
appeal. By requiring that every bill be read publicly "on three
different days," section 8(d) creates a specific period of time
during which members of the General Assembly, the media, and the
public have the opportunity to inform themselves about pending
changes in Illinois law. The three-day requirement also presents
a window of opportunity when out citizenry can contact their
representatives to urge a vote in favor of or against pending
legislation. In this case, where the bill was read only once on
the same day that it was passed, even the press, armed with
satellite uplinks and high-speed internet connections, could not
have disseminated the potential effects of this law before it was
set for vote.
The majority cites several cases in which our supreme court
has invoked the enrolled bill doctrine to uphold legislation
against constitutional attack similar to that now made by the
plaintiffs. See People v. Dunigan, 165 Ill. 2d 235, 650 N.E.2d 1026 (1995); Cutinello v. Whitely, 161 Ill. 2d 409, 641 N.E.2d 360
(1994); Geja's Cafe v. Metropolitan Pier & Exposition Authority,
153 Ill. 2d 239, 606 N.E.2d 1212 (1992); Fuehrmeyer v. City of
Chicago, 57 Ill. 2d 193, 311 N.E.2d 116 (1974). These cases are
distinguishable. Except in Geja's Cafe, the defendants in each of
these cases argued that the passage of the Act complied with the
three-readings requirement. Thus, in all of those cases but Geja's
Cafe, the court was presented with a good-faith argument that the
particular act in question had been read in conformity with the
constitutional mandate. Because those cases presented a genuine
issue as to whether the procedural requirements had been met, the
court elected, out of concern for separation of powers, to
reasonably rely upon the certifications of the speaker of the House
and the president of the Senate. In stark contrast to those cases,
the defendants here concede that the Act was not read three times
on three different days, as constitutionally mandated by article
IV, section 8(d).
Geja's Cafe is similar to the instant case in that the
defendants there acknowledged that the act had not been properly
read in accordance with article IV, section 8(d). In that case,
however, the supreme court noted that the enrolled bill doctrine
had been designed to preclude invalidation of legislation on "some
procedural error or technicality." Geja's Cafe, 153 Ill. 2d at
259, quoting 6 Record of Proceedings Sixth Illinois Constitutional
Convention 1386-87. Unlike the facts at issue in Geja's Cafe,
where the General Assembly was found to have regularly ignored the
three-readings requirement (see Geja's Cafe, 153 Ill. 2d at 260),
the case at bar does not present such a technical or "purely
procedural" (Geja's Cafe, 153 Ill. 2d at 259) challenge. Rather,
we are confronted with a case in which it is undisputed that the
speaker of the House and the president of the Senate deliberately
and shamelessly falsified their certifications regarding passage of
the Act knowing that the bill was fundamentally defective. As the
majority has observed, this act had been introduced for the first
time on the very last day of the legislative session. At this point
in time, section 8(d) made the enactment of newly introduced
legislation constitutionally impossible. It should be noted that
the very next day, indeed, the very next hour, the opposite
political party took majority control of the House of
Representatives. The deliberate falsification of the certifications
required by section 8(d) to achieve passage of a defective bill
that would have otherwise lapsed is unprecedented. Certainly our
supreme court never intended to give its judicial imprimatur to
such extraordinary and reprehensible conduct by its application of
the enrolled bill doctrine, and never before has this doctrine been
used to shield such patent dishonesty.
Taken to its logical extreme, the enrolled bill doctrine,
interpreted as the majority suggests, would force this court to
uphold legislation against constitutional attack even if it were
conceded that a majority of the members of the House and Senate had
voted against its passage, so long as the President of the Senate
and Speaker of the House had issued certifications indicating that
all procedures had been properly followed. See Dunigan, 165 Ill. 2d at 258 (Heiple, J., dissenting). This certainly cannot be the
law of Illinois.
Unfortunately, what was true more than 130 years ago
necessarily remains true today: "[N]o man's life, liberty or
property are safe while the Legislature is in session." Final
Accounting in the Estate of A.B., 1 Tucker (N.Y. Surr.) 247, 249
(1866). The drafters of our constitution wisely recognized the
awesome power our General Assembly wields over the lives of our
citizenry and tempered that power with a requirement that all
legislation be announced on three separate days before it can be
enacted into law. The failure to read this legislation on three
separate days in this case was no mere "technical omission."
Rather, its passage, after 11 p.m. on the last day of the
legislative session, with no previous warning, was an unprincipled
ambush, a final power grab by a political party that had been
relegated by the voters in the previous election to serve a
minority role during the next legislative term in the House. This
was, and there is no kinder way to say it, the act of desperate
legislative leaders unwilling to subject their handiwork to the
public scrutiny required by our state's constitution. The enrolled
bill doctrine was never inteNded to be applied in such
circumstances. It should not be applied here.
In this case, the Act is plainly unconstitutional.
Accordingly, I respectfully but most vigorously dissent.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
