Contest of Election for Offices of Governor and Lieutenant Governor Held at General Election on November 2, 1982, In re

• Decision Date: 02 November 1982
• Citation: 93 Ill.2d 463,444 N.E.2d 170,67 Ill.Dec. 131
• Parties: , 67 Ill.Dec. 131 In re CONTEST OF the ELECTION FOR the OFFICES OF GOVERNOR AND LIEUTENANT GOVERNOR HELD AT the GENERAL ELECTION ON
• Court: Illinois Supreme Court

Page 170

444 N.E.2d 170

93 Ill.2d 463, 67 Ill.Dec. 131

In re CONTEST OF the ELECTION FOR the OFFICES OF GOVERNOR

AND LIEUTENANT GOVERNOR HELD AT the GENERAL

ELECTION ON NOVEMBER 2, 1982.

No. 57637.

Supreme Court of Illinois.

Jan. 7, 1983.

John R. Schmidt, Frank Cicero, Jr., David A. Epstein, Chicago, for petitioners.

Anton R. Valukas, James S. Montana, Jr., Jeremiah Marsh, Chicago, Saul J. Morse, Springfield, and Eugene R. Wedoff, Jenner & Block, Chicago, for respondents.

RYAN, Chief Justice:

On November 2, 1982, the voters of this State cast their ballots to elect, among other officials, a governor and a lieutenant governor. On November 22, 1982, the State Board of Elections certified the results of the election, which certification showed as to the Republican and Democratic candidates for these offices the following results:

                James R. Thompson and George H
                Ryan (Republican)                  1,816,101
                Adlai E. Stevenson and Grace Mary
                Stern (Democrat)                   1,811,027
                

Thus, the certification revealed that the Republican candidates for governor and lieutenant governor, Thompson and Ryan, had been elected by a plurality of 5,074 votes.

Thereafter on December 7, 1982, within 15 days following certification of the election results, Stevenson and Stern filed with the clerk of this court an action entitled "Petition Of State Election Contest." As required by statute (Ill.Rev.Stat.1981, ch. 46, par. 23-1.1) the clerk of this court notified the chief justice, who immediately convened the court, and notices of the filing of the petition were mailed by the clerk of the court to all parties required by statute. On December 10, 1982, Thompson and Ryan filed a motion to strike the petition, supported by a memorandum of law, and on December 13, 1982, petitioners Stevenson and Stern filed objections to the motion to strike. This court set the motion to strike and the objections thereto for oral argument and directed the parties to file memoranda in support of their respective positions. Following oral argument on December 21, 1982, the matter was taken under advisement.

The constitution of this State provides that election contests for statewide executive offices "shall be decided by the courts in a manner provided by law." (Ill. Const.1970, art. V, sec. 5.) In 1977 the General Assembly enacted Public Act 80-883 (Ill.Rev.Stat.1981, ch. 46, par. 23-1.1 et seq.). The statute provides that anyone qualified under the statute to contest an election shall, within 15 days of the date of the official proclamation of the results of such an election, file a "Petition Of State Election Contest" with the clerk of this court, together with the filing fee of $10,000. The statute, after providing for the contents of the petition (Ill.Rev.Stat.1981, ch. 46, par. 23-1.2), which we will discuss later, and notice to the parties (Ill.Rev.Stat.1981, ch. 46, par. 23-1.3), provides that upon receipt of notification of the filing, the chief justice shall call the court into session and the court, by a majority vote, shall designate three judges of the circuit court to serve as a special panel, which shall be designated as the "State Election Contest Panel." (Ill.Rev.Stat.1981, ch. 46, par. 23-1.4.) Following the organization of the panel, the statute provides that each candidate in the election contest may become a party to the contest proceeding by entering his appearance or otherwise filing written pleadings in response to the petition. (Ill.Rev.Stat.1981, ch. 46, par. 23-1.9.) The statute then provides that the three-judge panel shall proceed to hear relevant evidence and shall adjudicate and decide the issues presented in the election-contest petition "on or before the 180th day after the election." (Ill.Rev.Stat.1981, ch. 46, par. 23-1.10.) All final decisions made by the panel are final judgments of a circuit court. Ill.Rev.Stat.1981, ch. 46, par. 23-1.10.

We must first consider an issue which was not raised by either Stevenson and Stern or Thompson and Ryan-- the constitutionality of the statute involved. Although this issue was not raised, in view of the nature of the proceedings and the public interest involved, failure to raise the constitutional question does not constitute a waiver. (Welton v. Hamilton (1931), 344 Ill. 82, 176 N.E. 333; Chicago & Eastern Illinois Ry. Co. v. Miller (1923), 309 Ill. 257, 140 N.E. 823.) The question also is one of jurisdiction. Although this court usually will not decide a constitutional issue if the case can be decided on other grounds (People v. Fleming (1971), 50 Ill.2d 141, 277 N.E.2d 872; Exchange National Bank v. Lawndale National Bank (1968), 41 Ill.2d 316, 243 N.E.2d 193) we must do so in this case because the issue affects the legitimacy of the proceedings we are asked to institute.

In fact, it would border on the irresponsible if, believing as we do that the statute is unconstitutional, we permit this election contest to commence. It is hornbook law that an unconstitutional statute is void. (Van Driel Drug Store, Inc. v. Mahin (1970), 47 Ill.2d 378, 381, 265 N.E.2d 659; People ex rel. Barrett v. Sbarbaro (1944), 386 Ill. 581, 590, 54 N.E.2d 559; People v. Schraeberg (1932), 347 Ill. 392, 394, 179 N.E. 829; City of Ottawa v. Hulse (1928), 332 Ill. 286, 293, 163 N.E. 685.) Nor is our sua sponte consideration of the constitutional issue unprecedented, for in People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill.2d 179, 181, 340 N.E.2d 1, this court on its own initiative considered a constitutional question not raised by the parties and held the governing statute unconstitutional.

In considering the constitutional question we again refer to the provisions of article V, section 5, of the Illinois Constitution of 1970, which provides that election contests "shall be decided by the courts in a manner provided by law." Thus, under this provision it is the courts that must decide election contests, and the General Assembly may provide by law for the manner of conducting election contests. This conclusion is supported by the explanation of this provision of the Constitution by the Committee on the Executive at the constitutional convention. The explanation states:

"The legislature will have ample power to define the procedures for determining the actual election results and to specify how contests shall be handled in the courts. The only limitation on the legislature in enacting laws on that subject will be constitutional provisions, such as those in the Judicial Article dealing with the courts and their basic character." (Emphasis added.) 6 Record of Proceedings, Sixth Illinois Constitutional Convention 367-68.

Thus, this section of the Constitution does not confer upon the General Assembly the power to create a court or to alter the basic character of a court. The power conferred upon the General Assembly is, as noted above, to provide for the procedure to be followed and the manner of conducting an election contest. Article VI, section 1, of the Illinois Constitution of 1970 provides that the judicial power of the State is vested in a supreme court, an appellate court and circuit courts. Thus, the courts in which article V, section 5, of the Constitution vests the power to decide election contests are the courts created by article VI of our constitution.

In People ex rel. Rice v. Cunningham (1975), 61 Ill.2d 353, 336 N.E.2d 1, this court considered the constitutionality of a death penalty statute which provided that the determination of whether or not the death penalty should be imposed would be made by a three-judge panel. We need not here discuss the rationale of the Cunningham case at length. We note only that it held that the General Assembly did not have the authority to provide that a case be heard by a three-judge panel. The court stated that this is not merely a procedural requirement but rather involves the scope of a circuit judge's jurisdiction. (People ex rel. Rice v. Cunningham (1975), 61 Ill.2d 353, 361, 336 N.E.2d 1.) The court also held that the 1970 Constitution confers no authority on the legislature to create new courts.

The legislature in the statute now under consideration clearly intended that the three-judge State Election Contest Panel operate collectively as a court. The statute itself provides that the panel shall hear evidence and adjudicate and decide the issues presented and that all final decisions of the panel are final judgments of a circuit court. (Ill.Rev.Stat.1981, ch. 46, par. 23-1.10.) This is an attempt by the legislature to alter the basic character of the circuit courts, which the Committee on the Executive stated, in its explanation of this article, that the General Assembly was constitutionally prohibited from doing. Also, the attempt by the legislature to confer authority upon a panel of three circuit judges to act as a court is invalid under the holding of this court in Cunningham. Because of this clear holding that the legislature has no power to act in this manner, we must consider the constitutional question involved in this case although, as stated below, there is another ground upon which the motion now before us can be decided.

Often, if a statute is found to be invalid, the prior statute which it had repealed becomes operative. (Fiorito v. Jones (1968), 39 Ill.2d 531, 236 N.E.2d 698; People v. Fox (1920), 294 Ill. 263, 128 N.E. 505.) However, by our holding the statute under consideration in this case invalid, the prior statute governing election contests for offices of State government is not revived. That statute provided that the legislature, in a joint meeting, should decide election contests. (Ill.Rev.Stat.1969, ch. 46, par. 23-1.) The 1970 Constitution, however, provides that such election contests shall be heard by the courts. (Ill. Const.1970, art. V, sec. 5.) It would therefore be constitutionally impermissible to apply the previous law.

In addition, the allegations of the petition...