People Ex Rel. Adamowski v. Kerner

Mr. Justice Schaefer, dissenting:

I think that the court should not have directed the issuance of a writ of mandamus to compel the holding of a special primary and a special election. In my opinion no vacancy in the office of county judge existed when the special elections were called. Moreover, I think that those elections were called in violation of applicable statutes, the validity of which has not been attacked.

The original resignation in this case was delivered to the Governor on January 25, to take effect at midnight on January 31. The Governor did not accept the resignation or reject it. He did not acknowledge its receipt. On January 29, Judge Kerner withdrew his resignation. On February 23, the Governor called the special elections. Upon these facts, the question presented is whether a resignation, which by its terms is not to become effective until a future date, can be withdrawn before it is accepted or acted upon.

The “wide spectrum of views” upon this question, to which the opinion alludes, is not really so very wide. Neither of the two Illinois cases cited in the opinion is concerned with that question, and that question was not involved in any of the four cases from other jurisdictions that are cited in the opinion. Counsel have referred to no case that holds that a resignation to take effect in the future may not be withdrawn before it has been accepted or acted upon and we have found none. Those decisions that have approached the question intimate or hold that it should be decided the other way. See, e.g., Warner v. Selectmen of Amherst, 326 Mass. 435 , 95 N.E.2d 180 ; Green v. Jones, (W. Va.) 108 S.E.2d 1 ; Biddle v. Willard, 10 Ind. 62 ; State v. Clayton, 27 Kan. 442 ; Sawyer v. City of San Antonio, 149 Tex. 408 , 234 S.W.2d 398 .

The decision of the majority not only is unsupported by the authorities; it serves no sound policy objective. Certainty as to the identity of public officers is not affected. There seems to be no good reason why a withdrawal should not be permitted before a resignation has been accepted or acted upon. Neither in government nor in business does advance notice of a future resignation benefit the person who is resigning. Such a notice is ordinarily designed to avoid or minimize the inconvenience that would follow upon an unannounced resignation. The net effect of the majority opinion will be to curtail or to eliminate in the case of public officers, and probably public employees as well, a wholesome practice that operates to serve the convenience of the public. I think that result is undesirable.

The requirement of section 7 — 61 that notice of a special primary must be given 15 days in advance of the time for filing nominating petitions is unmistakable. The opinion properly indicates that the purpose of this notice is to give prospective candidates time to determine whether they wish to seek the nomination and to get signatures on their nominating petitions. But it then eliminates this requirement from the law. It does so by holding “that the writ of election, itself, is the notice of such primary * * If that was what the General Assembly meant, it would have said so.

The majority apparently reaches the result that it does because it is not satisfied with the form of notice provided in section 7 — 15. That section provides for a notice which is required to be published in two or more newspapers in election units having less than 500,000 population, and three copies of which are required to be posted in each precinct in units having more than 500,000 population. The notice is required to state the time and place of the primary election, the offices for which candidates will be nominated and the political parties entitled to participate in the election. It also is required to state the hours during which the polls will be open.

The form of notice described in section 7 — 15 is also the notice that is required to be given, in the manner described, 20 days before the date of the primary. It is obvious that a better form of notice could readily be drafted for the specific purpose of advising prospective candidates of the impending primary. But it is equally obvious that the General Assembly has required that notice be given, and the fact that a better form of notice could be prepared does not, in my opinion, justify the court in disregarding the statutory requirement. It is of course no answer to say that in the case of regular primary elections, the date of which is fixed by law, prospective candidates are required to take notice of the statute, and no additional notice is required. Cf. Bilek v. City of Chicago, 396 Ill. 445 , 459 ff.

In awarding the writ of mandamus in this case the court has also disregarded section 7 — 5 of the Code. That section fixes the time for all primaries. The primary for the regular November election is fixed for the second Tuesday in April. The primary for the regular April municipal elections is fixed for February. The section then continues: “A primary for the nomination of all other officers, nominations for which are required to be made under this Article, shall be held seven weeks preceding the date of the general or municipal election for such officers respectively.” This section is made applicable to special primaries by section 7 — 61 which directs that “Whenever a special election is necessary the provisions of this Article are applicable to the nomination of candidates to be voted for at such special election.” Section 7 — 5 thus governs the time interval between the special primary and the special election in all cases of special elections to fill vacancies. Indeed, it was conceded upon the argument of this case that it can refer to nothing else.

The opinion states that “In filling vacancies in office by special primary and election, there must be room for an expansion and contraction of time tables which are observed in the regular election procedures.” But room for “expansion and contraction” in the time interval between a special primary and the ensuing special election is exactly what the General Assembly has forbidden.

Mr. Justice Hershey joins in this dissent.