O'Brien v. White

• Court: Illinois Supreme Court
• Writing for the Court: Thomas
• Citation: O'Brien v. White, 846 N.E.2d 116, 219 Ill.2d 86, 301 Ill.Dec. 154 (Ill. 2006)
• Decision Date: 06 March 2006
• Docket Number: No. 102077.,102077.
• Parties: Joan Margaret O'BRIEN et al., Appellees, v. Jesse WHITE, Secretary of State of Illinois, et al., Appellants.

Page 116

846 N.E.2d 116

219 Ill.2d 86

Joan Margaret O'BRIEN et al., Appellees, v. Jesse WHITE, Secretary of State of Illinois, et al., Appellants.

No. 102077.

Supreme Court of Illinois.

March 6, 2006.

Lisa Madigan, Attorney General, Springfield (Gary Feinerman, Solicitor General, and Brett E. Legner, Assistant Attorney General, Chicago, of counsel), for appellants.

Richard A. Devine, State's Attorney (Patrick T. Driscoll, Jr., Donna M. Lach and Elizabeth E. Howlett, Assistant State's Attorneys, of counsel), and James M. Scanlon, Chicago, for appellants Cook County Clerk and The Chicago Board of Elections Commissioners.

Mathias W. Delort and Aaron G. Allen, of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., and William J. Harte and Joan M. Mannix, Chicago, and Burton S. Odelson, of Odelson & Sterk, Ltd., Evergreen Park, for appellees.

OPINION

Chief Justice THOMAS delivered the judgment of the court, with opinion:

At issue is the constitutionality of section 7A-1 of the Election Code (10 ILCS 5/7A-1 (West 2004)), which sets a deadline by which an elected judge who wishes to be retained in office must file a declaration of candidacy to succeed himself or herself.

BACKGROUND

Plaintiff Joan Margaret O'Brien was elected judge of the circuit court of Cook County in November 2000. Wishing to run for retention in the November 2006 general election, O'Brien filed with the Secretary of State a declaration of candidacy to succeed herself. She filed the declaration on December 6, 2005, which was one day after the deadline set by section 7A-1 of the Election Code. That section provides that the declaration must be filed "on or before the first Monday in December before the general election preceding the expiration of [the judge's] term of office." 10 ILCS 5/7A-1 (West 2004). The Secretary refused to accept the declaration and, on December 8, 2005, certified to the State Board of Elections that O'Brien had not timely filed a retention declaration. The State Board then certified that O'Brien's position would become vacant in December 2006.

O'Brien then filed in the circuit court of Cook County a verified complaint for mandamus and other relief against defendants Jesse White, in his official capacity as Secretary of State; the State Board of Elections and all of its members in their official capacities; David D. Orr, in his official capacity as Cook County clerk; and the Chicago board of election commissioners. The complaint alleged that the deadline set by section 7A-1 is unconstitutional because it conflicts with a provision of the Illinois Constitution that allows a judge to file a declaration of candidacy to succeed himself or herself "[n]ot less than six months before the general election preceding the expiration of his term of office." Ill. Const.1970, art. VI, § 12(d). Because O'Brien filed her declaration of candidacy within this time frame, she asserted that the Secretary of State was required to accept it. Count I sought writs of mandamus requiring (1) the Secretary of State to accept O'Brien's declaration of candidacy and to amend his certification to show O'Brien as eligible to run for retention; (2) the State Board of Elections and its members to accept the amended certification nunc pro tunc and not to accept petitions from candidates seeking to fill a putative O'Brien vacancy; and (3) commanding the Cook County clerk and the Chicago board of election commissioners to place the question of O'Brien's retention on the November 7, 2006, general election ballot. Counts II and III sought similar relief through declaratory judgments and injunctions.

O'Brien then moved for a temporary restraining order (TRO). Her TRO motion incorporated the allegations of her complaint. In the motion, O'Brien argued that she had established a clearly ascertainable right upon which relief could be granted; that she would suffer irreparable injury if the relief was not granted; that she had no adequate remedy at law; and that she was likely to succeed on the merits. She gave three reasons why she was likely to succeed on the merits: (1) the statute expressly conflicted with a constitutional provision addressing the same subject; (2) the statute violated separation of powers principles; and (3) the statute was directory, not mandatory.

The circuit court allowed two other judges to intervene in the action. Intervening plaintiff Carole Kamin Bellows was appointed to serve as a Cook County circuit court judge in November 1986. She was elected in 1988 and thereafter retained on two occasions. She was eligible to seek retention again in November 2006, and she filed her declaration of candidacy to succeed herself on December 15, 2005. The Secretary of State refused to accept the declaration, and the State Board certified the position as open and subject to nomination at the March 2006 primary election. Intervening plaintiff James M. Varga was elected as a Cook County circuit court judge in November 1994. He was retained in November 2000 and was eligible to run for retention again in November 2006. On December 8, 2005, he verbally notified the Secretary of State that he intended to seek retention and also sent a copy of the declaration via facsimile machine. He sent his declaration by Federal Express to the Secretary of State that day, but it was not received until December 12, 2005. The Secretary of State refused to accept the declaration, and the State Board certified Varga's position as becoming vacant in December 2006.

On December 20, 2005, the circuit court granted plaintiffs' motion for a temporary restraining order. The defendants did not dispute that plaintiffs had ascertainable rights in need of protection, lacked an adequate remedy at law, and would suffer irreparable harm if no relief was granted. The court thus confined its analysis to whether plaintiffs had established a likelihood of success on the merits. The court concluded that plaintiffs had established a likelihood of success on their claim that section 7A-1 was unconstitutional under article VI, section 12(d), of the Illinois Constitution. Accordingly, the court granted a TRO enjoining the Secretary of State from certifying to the State Board of Elections that vacancies existed in the offices of circuit court judge currently occupied by plaintiffs. The court also enjoined the State Board of Elections from accepting nominating petitions from any candidate seeking to be placed on the March 2006 primary election ballot to succeed to the offices of circuit court judge currently held by plaintiffs.

Defendants petitioned for review of the TRO under Supreme Court Rule 307(d) (188 Ill.2d R. 307(d)). The appellate court reversed. O'Brien v. White, No. 1-05-4043 (2006). The appellate court noted that the purpose of a temporary restraining order is to maintain the status quo until the case is disposed of on the merits. Here, the circuit court's order had altered, rather than maintained, the status quo because the Secretary had already refused to accept the declarations of candidacy and had certified the vacancies to the State Board of Elections. The appellate court also held that plaintiffs had failed to demonstrate irreparable harm if the State Board accepted nominating petitions from other candidates, reasoning that, if plaintiffs ultimately prevailed in this suit, the effect would be that no vacancies had ever existed and that no one could be elected to their positions.

Plaintiffs then moved for summary judgment, incorporating by reference all of the arguments they made in previous filings. The trial court granted the motion. The trial court disagreed with plaintiffs' arguments that section 7A-1 was merely directory and that it violated separation of powers principles. The trial court agreed with plaintiffs, however, that section 7A-1 was unconstitutional under article VI, section 12(d). The circuit court noted that the constitution created two schemes for electing judges. The first involves the initial election process, and the constitution gives the General Assembly the authority to determine the content of nominating petitions and whether judges will be elected at general or judicial elections. See Ill. Const.1970, art. VI, § 12(a). The constitution further allows the General Assembly to determine how vacancies in the offices of supreme, appellate, or circuit court judge shall be filled. If the General Assembly does not do so, vacancies are filled by the supreme court. Ill. Const.1970, art. VI, § 12(c).

The second election scheme is a nonpartisan retention scheme for elected judges. Here, the constitution is specific in its requirements for how the retention process should be carried out. Ill. Const. 1970, art. VI, § 12(d). One of the provisions of section 12(d) is that the judge may file for retention "[n]ot less than six months before the general election preceding the expiration of his term of office." Ill. Const.1970, art. VI, § 12(d). The circuit court concluded that section 12(d) limited the General Assembly's role in the retention process, and no authority was given to the General Assembly to alter the time limits set forth in the constitution. Thus, the General Assembly had exceeded its authority in setting a deadline different from the one established by the constitution. The circuit court rejected defendants' argument that section 12(d) could be interpreted to mean that the General Assembly can set a different deadline by which judges must file for retention, as long as that deadline is not less than six months before the general election. The circuit court entered an order (1) declaring section 7A-1 unconstitutional; (2) issuing a writ of mandamus commanding the Secretary of State to accept plaintiffs' declarations of candidacy to succeed themselves and to certify to the State Board of Elections that they are candidates for retention in the 2006 general election; and (3) permanently enjoining the State Board of Elections from certifying any...