Bluthardt v. Breslin

• Decision Date: 12 January 1979
• Docket Number: No. 49857,49857
• Citation: 384 N.E.2d 1309,74 Ill.2d 246,24 Ill.Dec. 151
• Parties: , 24 Ill.Dec. 151 Edward E. BLUTHARDT et al., Appellees, v. Peg McDonnell BRESLIN et al. (Peg McDonnell Breslin, Appellant).
• Court: Illinois Supreme Court

Page 1309

384 N.E.2d 1309

74 Ill.2d 246, 24 Ill.Dec. 151

Edward E. BLUTHARDT et al., Appellees, v. Peg McDonnell BRESLIN et al. (Peg McDonnell Breslin, Appellant).

No. 49857.

Supreme Court of Illinois.

Jan. 12, 1979.

Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, Springfield (Herman G. Bodewes and John R. Keith, Springfield, of counsel), for appellant Peg McDonnell Breslin.

Andrew M. Raucci, Chicago, for appellees.

Lee J. Schwartz, Chicago (David A. Epstein, Thomas Scheuneman, Michael E. Pollak and Ronald J. Nelson, Chicago, of counsel), for amici curiae.

THOMAS J. MORAN, Justice:

This is a direct appeal from an order of the circuit court of Sangamon County, entered on August 12, 1977. The trial court, relying on this court's decision in People ex rel. Rudman v. Rini (1976), 64 Ill.2d 321, 1 Ill.Dec. 4, 356 N.E.2d 4, declared unconstitutional those portions of section 25-6 of the Election Code which provide the method of appointment to fill vacancies in the General Assembly (Ill.Rev.Stat.1975, ch. 46, par. 25-6). The trial court also decreed that the appointment of Peg McDonnell Breslin (defendant), as a member of the Illinois House of Representatives of the 80th General Assembly was invalid and enjoined her from acting as a member. On September 14, 1977, this court stayed the enforcement of the judgment order.

On November 2, 1976, defendant was elected to a two-year term to represent the 38th legislative district in the Illinois House of Representatives. On November 29, 1976, a resident and legal voter of the 38th legislative district filed a challenge, claiming that defendant had not been a resident of the legislative district for two years prior to the election. After committee hearings and debate on the floor of the House of Representatives, the House, on June 30, 1977, voted to unseat defendant. The motion to unseat defendant and to declare vacant the seat to which defendant had been elected was passed by a roll call vote of 91-75, with five members voting present. A report, adopted by the House, found that defendant had been a resident of the city of Chicago from October 5, 1970, through December 1975, that she did not reside in the 38th legislative district prior to December 1975, and that she did not, therefore, meet the two-year residency requirement mandated by the 1970 Illinois Constitution (Ill.Const.1970, art. IV, sec. 2(c)).

Pursuant to section 25-6 of the Election Code, the vacancy created by defendant's ouster was to be filled "within 30 days by appointment of the representative committee of that legislative district of the political party of which the incumbent was a candidate at the time of (her) election." (Ill.Rev.Stat.1975, ch. 46, par. 25-6(b).) The section also provides that the appointee shall be a member of the same political party as the former incumbent and shall be "otherwise eligible to serve as a member of the General Assembly." (Ill.Rev.Stat.1975, ch. 46, par. 25-6(b).) On the same day that the House voted to unseat defendant, the five-member Legislative Committee of the 38th legislative district appointed defendant to fill the vacancy. By the following day (July 1, 1977), defendant had taken the oath of office and assumed the duties and responsibilities of a member of the 80th General Assembly. Consequently, defendant, who had served in an elective capacity from January 12, 1977, until June 30, 1977, continued to serve as a representative, but as of July 1, 1977, in an appointive capacity.

Shortly thereafter, Edward E. Bluthardt, Philip W. Collins, and Richard A. Mugalian (plaintiffs in the instant action) filed with the clerk of the House of Representatives a challenge to defendant's qualifications to serve as an appointed member. Each challenger was a member of the House of Representatives and served on the House Committee on Elections. The House took no action on the challenge prior to July 18, 1977, when plaintiffs filed the instant complaint for declaratory judgment and injunctive relief.

The action was brought in three counts. Count I sought a declaratory judgment, against defendant and the five members of the Legislative Committee which appointed her, to have the court determine whether defendant was a validly appointed member of the House of Representatives. Count II sought to enjoin defendant from purporting to act as a member of the House of Representatives. Count III sought to enjoin the State Comptroller and State Treasurer from facilitating the payment of defendant's salary and from honoring vouchers submitted by her. The trial court dismissed the action in count III for failing to comply with statutory procedures regarding suits to enjoin the disbursement of State funds (Ill.Rev.Stat.1975, ch. 102, par. 11 Et seq.).

In requesting declaratory and injunctive relief in counts I and II, plaintiffs did not seek to have section 25-6 of the Election Code declared unconstitutional. On its own initiative, the trial court requested briefs on the ...