Delgado v. Board of Election Commissioners

No. 104105

IN THE

SUPREME COURT OF ILLINOIS

______________________________________________________________________________

READONIA BRYANT, ) Direct Appeal from the Circuit Court

) of Cook County, Illinois

Appellant, )

)

vs. ) No. 07 COEL 00005

)

THE BOARD OF ELECTION )

COMMISSIONERS OF THE CITY OF )

CHICAGO, et al., ) Hon. Alfred Paul

) Judge Presiding

Appellees. )

_________________________________________________________________________

ORDER

Appellant, Readonia Bryant, has appealed directly to our court pursuant to Supreme Court

Rule 302(a)(1) (134 Ill.2d R. 302(a)(1)) from a judgment of the Circuit Court of Cook County which

affirmed, on administrative review, an order of the Board of Election Commissioners of the City of

Chicago (the Election Board) rejecting his challenge to nomination papers filed by Virgil Jones for

election to the office of aldmerman for the 15th Ward of the City of Chicago in the February 27, 2007,

municipal election. The Attorney General of the State of Illinois has been granted leave to intervene

as an additional appellant. Because the election to which this challenge pertains is imminent, we

allowed a motion by appellant for expedited briefing and determined, on our own motion, that the

matter would be submitted and decided without oral argument.

The court has now had the opportunity to read the parties’ briefs and review the record of the

proceedings below. Based on the record, the applicable statutes and rules of court and the arguments

of the parties, the court has determined that this litigation is properly disposed of through supervisory

order rather than a direct appeal to our court. For the reasons that follow, we shall therefore dismiss

the appeal. In the exercise of our supervisory authority, the judgment of the circuit court shall be

vacated and the cause shall be remanded to the circuit court with instructions to enter judgment

vacating the Election Board’s decision and directing it to: (1) declare that Mr. Jones is ineligible to

run for the office of alderman pursuant to section 3.1-10-5(b) of the Illinois Municipal Code (65 ILCS

5/3.1-10-5(b)(West 2004)), (2) reject his nomination papers, and (3) remove his name from the ballot

for the upcoming election. The court’s judgment shall further provide that if removal of Mr. Jones’

name from the ballot cannot be accomplished prior to election day, the Election Board shall disregard

any votes cast for him in determining the winner of the election.

Background and Analysis

Virgil E. Jones is a former Chicago alderman. In January of 1999, he was convicted in federal

court of various felonies arising out of misconduct in office and sentenced to 41 months in prison

followed by 2 years of supervised release. Section 3.1-10-5(b) of the Municipal Code expressly

provides that a person who "has been convicted in any court located in the United States of any

infamous crime, bribery, perjury or other felony" is "not eligible for an elective municipal office." 65

ILCS 5/3.1-10-5 (West 2004). This bar is not necessarily permanent. Under the Election Code (10

ILCS 5/1-1, et seq. (West 2004)), convicted felons may recover their right to run for office through

"the terms of a pardon for the offense or otherwise according to law.” 10 ILCS 5/29-15 (West 2004).

Although Jones has completed his sentence, there is no dispute that he has received no pardon nor

otherwise had his right to hold office restored. Jones is therefore ineligible to hold elective municipal

office in this State.

-2-

Despite his lack of eligibility, Jones filed nomination papers to run for the office of alderman

for the 15th Ward of the City of Chicago, an "elective municipal office" within the meaning of the

prohibition contained in section 3.1-10-5(b) of the Municipal Code (65 ILCS 5/3.1-10-5 (b) (West

2004)). As noted at the outset of this order, Jones’ nomination papers were duly challenged by

Readonia Bryant. Bryant’s challenge, which was timely and procedurally proper, was assigned by the

Election Board to a hearing examiner who issued findings of fact and conclusions of law. Based on

the evidence presented, arguments of counsel and the applicable law, the hearing examiner concluded

that because Jones was a convicted felon whose right to hold municipal office had not been restored,

he was ineligible to hold elective municipal office, including the office of alderman in the City of

Chicago. The hearing examiner therefore recommended to the Election Board that the objections to

Jones’ nomination papers be sustained and that Jones’ name not appear on the ballot for election to

the office of alderman at the upcoming municipal election to be held February 27, 2007.

The Election Board rejected the hearing examiner’s recommendation. Based on its analysis

of various court cases, the Election Board concluded that section 3.1-10-5(b) of the Municipal Code

(65 ILCS 5/3.1-10-5(b)(West 2004)) is "unconstitutional and unenforceable as a violation of equal

protection." It therefore overruled Bryant’s objection to Jones’ nomination papers, concluded that

those papers were valid, and ordered that Jones’ name be printed on the ballot as a candidate for

alderman for Chicago’s 15th Ward.

As a creature of statute, the Election Board possesses only those powers conferred upon it

by law. Any power or authority it exercises must find its source within the law pursuant to which it

was created. Under section 10-10 of the Election Code (10 ILCS 5/10-10 (West 2004)), an election

-3-

board’s scope of inquiry with respect to objections to nomination papers is limited to ascertaining

whether those papers comply with the provisions of the Election Code governing such papers. See

Nader v. Illinois State Board of Elections, 354 Ill.App.3d 335, 340 (2004). Administrative agencies

such as the Election Board have no authority to declare a statute unconstitutional or even to question

its validity. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill.2d 263, 278 (1998); see Wiseman

v. Elward, 5 Ill.App.3d 249, 257 (1972). In ruling as it did, the Election Board therefore clearly

exceeded its authority.

Any action or decision taken by an administrative agency in excess of or contrary to its

authority is void. Alvarado v. Industrial Commission, 216 Ill.2d 547, 553-54 (2005); see Citizens

to Elect Collins v. Illinois State Board of Elections, 366 Ill.App.3 993, 998 (2006). Because the

constitutionality of section 3.1-10-5(b) of the Municipal Code (65 ILCS 5/3.1-10-5(b)(West 2004))

was the sole basis for the Election Board’s determination that Jones was eligible to hold office as a

Chicago alderman notwithstanding that he had never been pardoned for his felony convictions, and

because the Board’s ruling on the constitutionality of the law is void and therefore a nullity, the

Election Board’s rejection of Bryant’s challenge to Jones’ nomination papers has no lawful basis.

Bryant promptly filed a complaint in the Circuit Court of Cook County pursuant to the

Administrative Review Law (735 ILCS 5/3-101, et seq. (West 2004)) to obtain judicial review of the

Election Board’s decision. That complaint directly challenged the Election Board’s authority to

assess the constitutionality of State statutes. Because the Election Board’s decision was premised

exclusively on a legal determination it had no authority to make and directly contravened provisions

of the Municipal and Election Codes which the Election Board was required to follow, the circuit

court should have vacated the Board’s decision and remanded with instructions for it to resolve

-4-

Bryant’s challenge to Jones’ candidacy in accordance with the governing statutory requirements.

Indeed, under established principles of Illinois law, the court had a duty to take such action. See

People v. Thompson, 209 Ill. 2d 19, 27 (2004) (courts have an independent duty to vacate void

orders and may sua sponte declare an order void). Had the court done that here, it would have had

no need to address the merits of the Election Board’s constitutional analysis. Without a ruling on

the constitutionality of the statute, there would, in turn, have been no basis for seeking direct review

by our court under Rule 302(a).

The circuit court’s resolution of this case is fatally infirm for two additional reasons. First,

where, as here, a circuit court can decide a case without reaching the constitutionality of a statute,

it is required to do so. Constitutional questions should only be reached as a last resort. In re E.H.,

No. 100202, slip op. at 4 (Dec. 21, 2006). So important is this principle that before a circuit court

takes the extraordinary step of declaring legislation unconstitutional, our rules now require that the

circuit court state in writing that the finding of unconstitutionality is necessary to the decision or

judgment rendered and that such decision or judgment cannot rest upon an alternate ground. 210

Ill.2d R. 18(c)(4). A circuit court judgment which fails to adhere to this requirement may be

summarily vacated and remanded. In re E.H., No. 100202, slip op. at 4 (Dec. 21, 2006). This is such

a case. In affirming the Electoral Board’s decision, the circuit court purported to comply with the

formalities of Supreme Court Rule 18, but did not properly implement the substantive principles

underlying that rule. The non-constitutional flaw in the Election Board’s decision, which would have

been dispositive of the litigation, went unmentioned.

Second, even if the circuit court had some justification for reaching the constitutionality of

section 3.1-10-5(b) of the Municipal Code, it had no proper basis for holding that the statute violates

-5-

the equal protection guarantees of the United States and Illinois Constitutions. To the contrary, the

circuit court was able to find the law unconstitutional only by rejecting the appellate court's decision

in People v. Hofer, 363 Ill.App.3d 719 (2006). This it was not permitted to do. Hofer specifically

considered and specifically rejected the identical equal protection challenge to section 3.1-10-5(b) of

the Municipal Code at issue in this case. No other decision by the appellate court or this court

conflicts with that precedent.

Coles v. Ryan. 91 Ill.App. 3d 382 (1980), an older decision from the Second Distict, has been

cited as justification for the circuit court’s rejection of Hofer. That opinion, however, did not

involve section 3.1-10-5(b) of the Illinois Municipal Code (65 ILCS 5/3.1-10-5(b)(West 2004)), the

statute at issue in this case and upheld by Hofer. Morever, in marked contrast to Hofer, the State

in Coles suggested no rational basis on which the law challenged in that case could be defended

against an equal protection challenge. Coles was therefore clearly distinguishable as the court in

Hofer unanimously recognized. The appellate court’s ruling in Hofer that Coles was not dispositive

of the constitutionality of section 3.1-10-5(b) was controlling on the circuit court, just as any other

aspect of an appellate court’s ruling would be.

Although Hofer was decided by a panel of the appellate court from the Fifth District, not the

First District, where the Circuit Court of Cook County is located, that is of no consequence. Nearly

two decades ago, we recognized that it is "fundamental in Illinois that the decisions of an appellate

court are binding on all circuit courts regardless of locale.” People v. Harris, 123 Ill.2d 113, 128

(1988). The notion that circuit courts are bound only by the appellate court decisions from their own

district is a relic of the pre-1964 Illinois Constitution of 1870 and has been expressly disavowed by

our court. See People v. Layhew, 139 IIl. 2d 476, 489 (1990). Until this court says otherwise, an

-6-

appellate court's decision must therefore be followed regardless of the appellate court's district. See

People v. Harris, 123 Ill. 2d at 129.

In People ex rel. Birkett v. Bakalis, 196 Ill.2d 510, 513 (2001), our court observed that:

“[b]eyond our leave to appeal docket, supervisory orders are disfavored. As a general rule,

we will not issue a supervisory order unless the normal appellate process will not afford

adequate relief and the dispute involves a matter important to the administration of justice

[citation] or intervention is necessary to keep an inferior tribunal from acting beyond the

scope of its authority [citation].”

In this case, however, we believe that such considerations are present. Although the circuit court

acted within its jurisdiction, the manner in which this case was handled presents important issues

regarding the administration of justice, and direct and immediate action is necessary to insure that

the Election Board adheres to the law and that any challenge to its decision in the circuit court

comports with controlling principles of judicial review.

Conclusion

For the foregoing reasons, this appeal is dismissed. In the exercise of our supervisory

authority,

IT IS HEREBY ORDERED that this cause is remanded to the circuit court with

instructions to enter judgment vacating the Election Board’s decision and directing it to: (1) declare

that Mr. Jones is ineligible to run for the office of alderman pursuant to section 3.1-10-5(b) of the

Illinois Municipal Code (65 ILCS 5/3.1-10-5(b)(West 2004)), (2) reject his nomination papers, and

(3) remove his name from the ballot for the upcoming election. The court’s judgment shall further

provide that if removal of Mr. Jones’ name from the ballot cannot be accomplished prior to election

-7-

day, the Election Board shall be required to disregard any votes cast for him in determining the

winner of the election.

IT IS FURTHER ORDERED that the circuit court shall enter its judgment as herein directed

within 24 hours of this supervisory order, which is to be filed by the Clerk of the Supreme Court

immediately. The circuit court’s judgment shall not be subject to stay by the circuit court or the

appellate court.

IT IS FURTHER ORDERED that after the Election Board complies with the circuit court’s

judgment, administrative review of its decision may be taken to the circuit court as provided by law.

IT IS FURTHER ORDERED that the mandate of this court shall issue forthwith.

Order entered by the court.

Chief Justice Thomas and Justices Freeman and Burke, N.P.

-8-