O'Brien v. White

Docket No. 102077.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

JOAN MARGARET O=BRIEN et al., Appellees, v. JESSE

WHITE,

Secretary of State of Illinois, et al., Appellants.

Opinion filed March 6, 2006.

CHIEF JUSTICE THOMAS delivered the judgment of the

court, with opinion.

Justices Freeman, McMorrow, Fitzgerald, Kilbride, Garman,

and Karmeier concurred in the judgment and opinion.

OPINION

At issue is the constitutionality of section 7AB1 of the

Election Code (10 ILCS 5/7AB1 (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

7AB1 of the Election Code. That section provides that the

declaration must be filed Aon or before the first Monday in

December before the general election preceding the expiration

of [the judge=s] term of office.@ 10 ILCS 5/7AB1 (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 7AB1 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 A[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

-2-

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 7AB1 was unconstitutional under article VI, section

-3-

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. 1B05B4043

(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 7AB1 was merely

directory and that it violated separation of powers principles.

The trial court agreed with plaintiffs, however, that section

7AB1 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

-4-

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 A[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 7AB1 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 candidates to fill the offices of judge held by

plaintiffs. Pursuant to Supreme Court Rule 302(a) (134 Ill. 2d

R. 302(a)), the Secretary of State, the State Board of Elections,

and the members of the State Board of Elections, 1 appealed

directly to this court.

1

Defendants State Board of Elections and all of its members do not take

a position on the legal arguments set forth in defendants= brief, but request

the benefit of any order or judgment entered in favor of defendants.

-5-

ANALYSIS

Article VI, section 12(d), of the Illinois Constitution

addresses the procedure for judicial retention elections:

ANot less than six months before the general election

preceding the expiration of his term of office, a

Supreme, Appellate or Circuit Judge who has been

elected to that office may file in the office of the

Secretary of State a declaration of candidacy to

succeed himself. The Secretary of State, not less than

63 days before the election, shall certify the Judge=s

candidacy to the proper election officials. The names of

Judges seeking retention shall be submitted to the

electors, separately and without party designation, on

the sole question whether each Judge shall be retained

in office for another term. The retention elections shall

be conducted at general elections in the appropriate

Judicial District, for Supreme and Appellate Judges, and

in the circuit for Circuit Judges. The affirmative vote of

three-fifths of the electors voting on the question shall

elect the Judge to the office for a term commencing on

the first Monday in December following his election.@ Ill.

Const. 1970, art. VI, '12(d).

In 1977, the legislature enacted its own provision

addressing the same subject. Section 7AB1 of the Election

Code provides as follows:

AAny Supreme, Appellate or Circuit Judge who has

been elected to that office and who seeks to be retained

in that office under subsection (d) of Section 12 of

Article VI of the Constitution shall file a declaration of

candidacy to succeed himself in the office of the

Secretary of State on or before the first Monday in

December before the general election preceding the

expiration of his term of office. Within 3 business days

thereafter, the Secretary of State shall certify to the

State Board of Elections the names of all incumbent

judges who were eligible to stand for retention at the

next general election but failed to timely file a

declaration of candidacy to succeed themselves in

office or, having timely filed such a declaration,

-6-

withdrew it. The State Board of Elections may rely upon

the certification from the Secretary of State (a) to

determine when vacancies in judicial office exist and (b)

to determine the judicial positions for which elections will

be held. The Secretary of State, not less than 63 days

before the election, shall certify the Judge=s candidacy

to the proper election officials. The names of Judges

seeking retention shall be submitted to the electors,

separately and without party designation, on the sole

question whether each Judge shall be retained in office

for another term. The retention elections shall be

conducted at general elections in the appropriate

Judicial District, for Supreme and Appellate Judges, and

in the circuit for Circuit Judges. The affirmative vote of

three-fifths of the electors voting on the question shall

elect the Judge to the office for a term commencing on

the first Monday in December following his election.@ 10

ILCS 5/7AB1 (West 2004).

Section 7AB1 was added by Public Act 80B1057 (Pub. Act

80B1057, eff. November 23, 1977). Public Act 80B1057 began

as House Bill 585. During the Senate debates on House Bill

585, the bill=s Senate sponsor, Senator Knuppel, explained that

the bill was designed to address the problem of judges who

waited until after the primary election was over to decide that

they were not running for retention. 80th Ill. Gen. Assem.,

Senate Proceedings, June 26, 1977, at 194 (statements of

Senator Knuppel). In that situation, the supreme court would

appoint someone to fill the vacancy, and that person would

hold the seat until the next election, two years later. When

another senator raised the language of article VI, section 12(d),

of the constitution, Senator Knuppel responded:

AThis is the language as you=ve pointed out, of the

Constitution. However, in commenting on that Judge

Roy O. Gully says this language seems to indicate that

a judge has until the first Tuesday in May. However, the

practice is a bad one as is now exercised and since it

only seems to be constitutionally prohibited, I think this

is good legislation and we should attempt it.@ 80th Ill.

Gen. Assem., Senate Proceedings, June 28, 1977, at

-7-

395 (statements of Senator Knuppel).

After the bill was passed, Senator Berning stated for the record

that the Senate had Aestablished an interesting precedent.

Violating absolutely the word of the Constitution.@ 80th Ill. Gen.

Assem., Senate Proceedings, June 28, 1977, at 396

(statements of Senator Berning).

Then-Governor James R. Thompson vetoed the bill and

sent a letter to the General Assembly explaining his vote.

Governor Thompson explained that a statute setting a deadline

for judges to file for retention by the first Monday in December

preceding the election would be in express conflict with article

VI, section 12(d), of the constitution, which gives judges until

six months before the election to decide whether to run for

retention. Governor Thompson recognized the legislature=s

intent in enacting section 7AB1, but found it irrelevant in light of

the express language of the constitution:

AClearly, the sponsor=s intent is to ensure that where

an incumbent does not file for retention, persons who

may wish to become candidates for the seat may file for

nomination in the primary election. However, a judge

who did not, according to the provision of this bill, file for

retention by the first Monday in December, but decided

at some later point to stand for retention while still within

the time frame enunciated in the Constitution, would be

totally within his right. A statute cannot attempt to take

away a right so unequivocally mandated by the

Constitution.@

The Senate overrode the Governor=s veto and enacted section

7AB1. Senator Knuppel acknowledged that the legislation might

Acreate a court case@ to determine its validity. 80th Ill. Gen.

Assem., Senate Proceedings, November 22, 1977, at 37

(statements of Senator Knuppel). Twenty-nine years later, that

day has arrived.

Before reaching the constitutional issue, this court must

address plaintiffs= argument that the deadline set forth in

section 7AB1 is directory rather than mandatory. Courts

consider the constitutionality of statutes only when necessary

to decide the case. Vuagniaux v. Department of Professional

-8-

Regulation, 208 Ill. 2d 173, 184 (2003). Plaintiffs contend that,

if this court properly construes the time limit in section 7AB1 as

merely directory, then it can affirm the circuit court=s decision

without reaching the constitutional questions. According to

plaintiffs, the deadline set forth in section 7AB1 must be read

as directory because that section does not specify a penalty for

a judge=s failure to comply. Moreover, plaintiffs note that, as

their declarations were filed shortly after the deadline and

before the time for other candidates to file for the vacancies, no

one would have been prejudiced if the Secretary of State had

certified their candidacies.

This court recently noted that the mandatory-directory

dichotomy Aconcerns the consequences of a failure to fulfill an

obligation.@ People v. Robinson, 217 Ill. 2d 43, 52 (2005). In

other words, the question is whether A >the failure to comply

with a particular procedural step will or will not have the effect

of invalidating the governmental action to which the procedural

requirement relates.= @ Robinson, 217 Ill. 2d at 51-52, quoting

Morris v. County of Marin, 18 Cal. 3d 901, 908, 559 P.2d 606,

610-11, 136 Cal. Rptr. 251, 255-56 (1977). A strong indication

that the legislature intended a provision to be mandatory is if

the statute prescribes a consequence for failing to obey the

statutory provision. Robinson, 217 Ill. 2d at 54. In the election

context this court has stated that A >[w]hether a statute is

mandatory or directory does not depend upon its form but upon

the legislative intention to be ascertained from a consideration

of the entire act, its nature, its object, and the consequences

which would result from construing it one way or the other.= @

People ex rel. Meyer v. Kerner, 35 Ill. 2d 33, 39 (1966), quoting

People ex rel. Agnew v. Graham, 267 Ill. 426, 436 (1915).

Whether a statute is mandatory or directory is an issue of law

that is reviewed de novo. Robinson, 217 Ill. 2d at 54.

The circuit court correctly determined that the filing deadline

in section 7AB1 is mandatory. That section clearly prescribes a

consequence for a judge=s failure to meet the deadline:

AWithin 3 business days [of the deadline], the Secretary

of State shall certify to the State Board of Elections the

names of all incumbent judges who were eligible to

stand for retention at the next general election but failed

-9-

to timely file a declaration of candidacy to succeed

themselves in office or, having timely filed such a

declaration, withdrew it. The State Board of Elections

may rely upon the certification from the Secretary of

State (a) to determine when vacancies in judicial office

exist and (b) to determine the judicial positions for which

elections will be held.@ 10 ILCS 5/7AB1 (West 2004).

Plaintiffs rely on several cases in which provisions of the

Election Code were held to be directory rather than mandatory.

Kerner, 35 Ill. 2d 33; People ex rel. Harris v. Powell, 35 Ill. 2d

384 (1966); People ex rel. Bell v. Powell, 35 Ill. 2d 381 (1966);

McNamara v. Oak Lawn Municipal Officers Electoral Board,

356 Ill. App. 3d 961 (2005); Courtney v. County Officers

Electoral Board, 314 Ill. App. 3d 870 (2000); Ballentine v.

Bardwell, 132 Ill. App. 3d 1033 (1985). As defendants point

out, however, the statutory provisions at issue in these cases

did not provide penalties for failure to comply. By contrast,

when an Election Code provision specifies the consequences

of noncompliance, the provision has been held to be

mandatory. See, e.g., Marquez v. Aurora Board of Election

Commissioners, 357 Ill. App. 3d 187 (2005); Purnell v.

Municipal Officers Electoral Board, 275 Ill. App. 3d 1038

(1995); Simmons v. DuBose, 142 Ill. App. 3d 1077 (1986).

Section 7AB1 clearly specifies the consequences of a judge=s

failure to comply with the deadline, and thus it must be given a

mandatory reading.

The next issue is whether this mandatory deadline is

constitutional. Statutes are presumed to be constitutional, and

the burden of rebutting that presumption is on the party

challenging the validity of the statute. Illinois State Chamber of

Commerce v. Filan, 216 Ill. 2d 653, 661 (2005). Additionally,

this court has a duty to uphold the constitutionality of a statute

when reasonably possible. City of Chicago v. Morales, 177 Ill.

2d 440, 448 (1997). The constitutionality of a statute is a

question of law that is reviewed de novo. People ex rel.

Sherman v. Cryns, 203 Ill. 2d 264, 290 (2003).

The thrust of defendants= argument is that section 7AB1 is

not unconstitutional because article VI, section 12(d), of the

constitution reasonably may be interpreted two different ways.

-10-

Thus, according to defendants, this constitutional provision is

ambiguous and this court must look to interpretive aids to

determine its meaning. Defendants acknowledge that the first

sentence of section 12(d) can be read as establishing a

deadline by which judges must file their retention declarations.

However, defendants assert that it is equally reasonable to

construe this passage as merely establishing a constitutional

floorBthe date after which an incumbent judge may not file a

retention declarationBbut not as limiting the authority of the

General Assembly to set another deadline for those

declarations, as long as that deadline is not less than six

months before the general election. Here, the legislature set a

deadline of the first Monday in the December preceding the

general election, which is 11 months prior to the general

election. Because this is not less than six months before the

general election, defendants assert that the statute comports

with the constitution.

The first sentence of section 12(d) is not ambiguous.

Rather, it means exactly what it says: ANot less than six months

before the general election preceding the expiration of his term

of office, a Supreme, Appellate or Circuit Judge who has been

elected to that office may file in the office of the Secretary of

State a declaration of candidacy to succeed himself.@ Ill. Const.

1970, art. VI, '12(d). If the judge does so, A[t]he Secretary of

State, not less than 63 days before the election, shall certify

the Judge=s candidacy to the proper election officials.@ Ill.

Const. 1970, art. VI, '12(d). This section clearly and

unambiguously sets a deadline for retention declarations of six

months before the general election. Plaintiffs met this deadline,

and the constitution requires the Secretary of State to certify

their candidacies to the proper election officials.

Defendants are incorrect in suggesting that they have

offered an equally reasonable construction of the constitution.

Defendants interpret the first sentence of section 12(d) as if it

read Athe General Assembly may set a deadline for a Supreme,

Appellate or Circuit judge to file in the office of Secretary of

State a declaration of candidacy to succeed himself, and this

deadline must be not less than six months before the general

election.@ This is obviously not what the provision says. The

-11-

first sentence of section 12(d) is directed at the judge, not the

General Assembly, and it gives the judge the right to file his or

her declaration not less than six months before the general

election. Section 7AB1, which provides a different deadline, is

in direct conflict with this provision and is therefore

unconstitutional.

Because we find that article VI, section 12(d), is not

ambiguous, we need not consider the interpretive aids on

which defendants rely. We note briefly, however, that none of

these matters help defendants= argument. Defendants rely on

the broad authority to regulate elections granted to the General

Assembly in articles III and VI of the constitution. Defendants

are correct that the constitution grants the General Assembly a

significant role in the election process. This is irrelevant to the

matter at hand, however, because the constitution sets forth

very specific requirements for the retention process, and the

General Assembly cannot enact legislation that conflicts with

specific provisions of the constitution, unless the constitution

specifically grants the legislature that authority. See, e.g., Thies

v. State Board of Elections, 124 Ill. 2d 317, 325-26 (1988)

(where constitution sets forth qualifications for office,

legislature cannot change or add to those qualifications unless

the constitution gives it that power). There is no provision in the

constitution giving the legislature the authority to change the

retention requirements established by the constitution.

Defendants further rely on the history and debates of the

Constitutional Convention. Defendants note that the question

of whether judges would be appointed or elected was

submitted to the voters as a constitutional referendum. The

people voted for the election of judges, and the framers

adopted a system in which judges would be nominated at

primary elections or by petitions, elected at the general

election, and subjected to retention votes thereafter. According

to defendants, this shows that the framers intended for a broad

application of the franchise to judicial elections and that judges

should be elected by the people whenever possible. When an

eligible judge waits until after the primary and then does not file

a retention declaration, however, the vacancy would be filled

by appointment and the unelected judge could hold the seat

-12-

until the next election, a period of two years. In this situation,

defendants contend that the people=s right to select judgesBa

right granted by the constitutionBwill have been undermined.

The problem with this argument is that, these broad policy

goals notwithstanding, article VI, section 12(d), of the

constitution sets forth very specific requirements for retention

elections, including a deadline for judges to file their retention

declarations, and this election scheme was ratified by the

people. Moreover, the people do not lose their right to fill the

judicial office in question. An appointment to fill a vacancy is

merely temporary. Finally, the framers clearly contemplated the

situation in which a vacancy is filled by appointment for two

years. Article VI, '12(c), provides, in part, that A[a] person

appointed to fill a vacancy less than 60 days prior to the next

primary election to nominate Judges shall serve until the

vacancy is filled at the second general or judicial election

following such appointment.@ It is difficult to see how the

constitution can be undermined by itself.

Defendants also rely on the legislative intent behind section

7AB1. Defendants cite portions of the Senate debates on

House Bill 585 to show that the legislature wanted to ensure

the constitutional mandate of elected judges by moving up the

deadline for retention declarations. This would ensure that the

electorate filled vacant judgeships immediately, rather than

having to wait until two-year supreme court appointments had

run their course. Defendants assert that this was a valid

exercise of the General Assembly=s power under articles III and

VI to provide by law for the filling of judicial vacancies as well

as an exercise of its power to establish the manner of judicial

elections. The problem with this argument is that the General

Assembly enacted legislation that directly conflicted with the

constitution. Moreover, the legislative debates cited by

defendants show that the legislators knew that there was a

constitutional problem and that they were likely creating a court

case.

Defendants further contend that their interpretation is

supported by the change in language from the 1870

Constitution, as amended by the Judicial Article of 1964, and

the 1970 Constitution. The 1870 Constitution, as amended by

-13-

the Judicial Article of 1964, also required a judge to file a

declaration of candidacy to succeed himself or herself A[n]ot

less than six months prior to the general election next

preceding the expiration of his term of office.@ Ill. Const. 1870,

art. VI (1964) '11. However, it further provided that A[a]ny

judge who does not file a declaration within the time herein

specified, or, having filed, fails of reelection, shall vacate his

office at the expiration of his term.@ (Emphasis added.) Ill.

Const. 1870, art. VI (1964), '11. Defendants argue that it was

this latter clause that gave judges the absolute right to wait

until six months before the election to file their retention

declarations, and the deletion of this language in the 1970

Constitution evinces an intent to remove that right and make

retention subject to further time restrictions as the General

Assembly may provide by law. With all due respect to

defendants, it was not this latter clause that gave judges the

right to file not less than six months before the general election,

but rather the clause that provided that A[n]ot less than six

months prior to the general election next preceding the

expiration of his term of office, any judge previously elected

may file in the office of the Secretary of State a declaration of

candidacy to succeed himself.@ Ill. Const. 1870, art. VI (1964),

'11. This language, and the right it confers, was retained in the

1970 Constitution. The circuit court correctly found that the

change in language was merely a stylistic change, not affecting

substance. It appears that this language was just removed as

unnecessary. Section 12(b) of article VI provides that A[t]he

office of a Judge shall be vacant upon his death, resignation,

retirement, removal, or upon the conclusion of his term without

retention in office.@ (Emphasis added.) Ill. Const. 1970, art. VI,

'12(b). A judge who either is not retained or is not eligible for

retention because he or she fails to file his or her declaration of

candidacy on time will conclude his or her term in office without

retention and his or her office will be vacant. Thus, the

language that was deleted was unnecessary surplusage.

In sum, article VI, section 12(d), of the Illinois Constitution is

not ambiguous. It plainly provides that judges have the right to

file retention declarations not less than six months before the

general election preceding the expiration of their terms in

-14-

office. Section 7AB1 of the Election Code, which attempts to

change this deadline, is facially unconstitutional. Our

determination that section 7AB1 is unconstitutional on this

basis renders unnecessary a discussion of plaintiffs= separation

of powers argument.

The judgment of the circuit court of Cook County is

affirmed. Additionally, because the judicial offices in question

are not vacant, it is hereby ordered that defendants Cook

County clerk and Chicago board of election commissioners

shall neither tally any votes in the March 2006 primary election

for these offices nor certify any results of the March 2006

primary election for these offices.

Affirmed.

-15-