2016 IL 121563



                                        IN THE
                               SUPREME COURT
                                            OF
                          THE STATE OF ILLINOIS



                                   (Docket No. 121563)

            MAXINE JOHNSON, Appellee, v. MATTHEW AMES, Appellant.


                             Opinion filed December 30, 2016.



        JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

        Chief Justice Karmeier and Justices Freeman, Garman, Burke, and Theis
     concurred in the judgment and opinion.

        Justice Thomas specially concurred, with opinion.



                                        OPINION

¶1       This cause is before us on the appellate court’s certificate of importance
     pursuant to Illinois Supreme Court Rule 316 (eff. Dec. 6, 2006), addressing
     whether a referendum seeking to impose term limits on the elected office of village
     president in the village of Broadview was invalid because it was vague and
     ambiguous. The village election board concluded that the proposition was vague
     and ambiguous because it did not clearly state whether the term limits were
     prospective or retroactive. On judicial review, the trial court reversed and reinstated
     the referendum on the November 8, 2016, general election ballot, finding the
     language was not vague or ambiguous. The appellate court affirmed. Because of
     the time constraints present in this election case, we granted the appellant’s
     emergency motion for expedited consideration of the certificate of importance and
     affirmed the judgment of the appellate court, with our opinion to follow. We now
     issue our opinion on the question presented in the appellate court’s certificate of
     importance.


¶2                                    I. BACKGROUND

¶3       Appellee Maxine Johnson filed a referendum petition seeking to place on the
     November 8, 2016, general election ballot the question of imposing term limits on
     the elected office of village president in the village of Broadview. Appellant
     Matthew Ames filed an objection on various grounds. Citing this court’s decisions
     in Leck v. Michaelson, 111 Ill. 2d 523, 530 (1986), and Lipinski v. Chicago Board
     of Election Commissioners, 114 Ill. 2d 95 (1986), the village of Broadview
     electoral board voted 2-1 to invalidate the referendum as vague and ambiguous
     “because it is not clear whether the Referendum applies retroactively as well as
     prospectively,” making it unable “to ‘stand on its own terms.’ ” In her dissent, the
     board’s chair relied on the understanding that she had universally heard from many
     constituents: the referendum applied to anyone who had been elected village
     president prior to the April 2017 election. Nonetheless, the board majority ordered
     that the proposition “shall not appear on the ballot in the November 8, 2016
     election.”

¶4       Johnson sought judicial review in the circuit court of Cook County. That court
     concluded the referendum was self-executing, not vague or ambiguous, and applied
     prospectively. The court ordered the referendum to appear on the general election
     ballot. On October 20, 2016, Ames filed a motion seeking expedited appeal that
     was granted by the appellate court. Following expedited briefing, a majority of the
     appellate court agreed with the election board dissent, concluding the referendum
     was not ambiguous. The court affirmed the trial court’s reversal of the board’s
     decision and ordered that the proposition remain on the ballot.




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¶5       Objector Ames filed a petition for leave to appeal and an emergency motion for
     expedited consideration of that petition in this court. We allowed the emergency
     motion to expedite and denied the petition for leave to appeal on November 8,
     2016. The proposition appeared on the village of Broadview ballot that day, but the
     results of the referendum were not released, in compliance with an appellate court
     injunction issued on November 2, 2016, pending the outcome of Ames’s appeal to
     this court.

¶6       On November 14, 2016, the appellate court filed a certificate of importance in
     this court solely on the issue of whether the referendum was vague. Ill. S. Ct. R. 316
     (eff. Dec. 6, 2006). Ames filed an emergency motion for expedited consideration of
     the Rule 316 certificate of importance, expedited briefing schedule, and expedited
     decision. On November 17, 2016, this court allowed the emergency motion for
     expedited consideration and affirmed the appellate court decision, taking the case
     on the briefs filed in the appellate court and stating that an opinion would be filed in
     due course.

¶7        Johnson also filed an emergency motion on November 14, 2016, requesting that
     this court order the referendum results to be posted, and Ames filed an objection.
     We allowed Johnson’s emergency motion and ordered the appellate court to vacate
     its injunctive order and the Cook County circuit clerk to release the election results
     by 4:30 p.m. on November 16, 2016. We take judicial notice that the referendum
     was approved at the November 8, 2016, election. See Blumenthal v. Brewer, 2016
IL 118781, ¶ 35 (indicating that we may take judicial notice of public records).


¶8                                      II. ANALYSIS

¶9       At the outset, we note that the certificate of importance issued by the appellate
     court in this case was legally ineffective, in that it was issued subsequent to
     appellant Ames having filed a petition for leave to appeal in this court. See People
     v. Collins, 202 Ill. 2d 59, 65 (2002) (“once a petition for leave to appeal is filed in
     this court, the appellate court loses jurisdiction over the cause”). Nevertheless, in
     the exercise of our supervisory authority, and in accordance with our November 17,
     2016, order affirming the appellate court’s judgment, we choose to proceed with
     our consideration of this matter.




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¶ 10       In his appellate court brief, Ames raised several issues, but we need address
       only the one presented in the appellate court’s certificate of importance: “whether
       the following ballot question was vague: ‘Shall the terms of office for those persons
       elected to the office of Village President in the Village of Broadview, at the April 4,
       2017 consolidated election, and at each election for said office thereafter, be
       limited such that no person shall be eligible to seek election to or hold the office of
       Village President where that person has been previously elected to the office of
       Village President of the Village of Broadview for two (2) consecutive full four (4)
       year terms.’ ” On administrative review of an electoral board’s decision pursuant to
       section 10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2006)), the
       decision of the board is before us, not the order of the trial court or the appellate
       court. Jackson-Hicks v. East St. Louis Board of Election Commissioners, 2015 IL
118929, ¶ 19. Because the issue in this case is purely a matter of law, we review the
       board’s decision de novo. Jackson-Hicks, 2015 IL 118929, ¶ 20.

¶ 11       The parties largely agree on the applicable law in this case. They both cite this
       court’s decisions in Leck v. Michaelson, 111 Ill. 2d 523 (1986), and Lipinski v.
       Chicago Board of Election Commissioners, 114 Ill. 2d 95 (1986). The parties
       disagree, however, on how to apply those cases.

¶ 12       In Leck, voters filed a suit that challenged a referendum vote and subsequent
       ordinance mandating a runoff election if no candidate for a village office received
       50% of the election votes. The referendum required a runoff election for “ ‘any
       candidates for public office *** who do not receive fifty percent (50%) of the votes
       cast for that office.’ ” The ordinance, however, declared the winner of the runoff
       election to be the candidate who received “ ‘the highest number of votes.’ ” Leck,
111 Ill. 2d at 526-27. According to the ordinance, a candidate who won the runoff
       election by a plurality vote could take the office, even though the referendum
       required the winner to have a majority of the votes. This court examined the
       referendum and the ordinance, noting that neither clearly stated how to determine
       what constituted “ ‘50% of the votes cast.’ ” Therefore, the referendum was vague
       and ambiguous. “Because the referendum could not stand on its own terms, *** the
       voters *** cannot be said to have approved a coherent scheme for altering the
       election of their officials,” as required by the Illinois Constitution. Leck, 111 Ill. 2d
       at 530. For that reason, we declared the proposition “fatally defective” under the




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       home rule provision of the 1970 Illinois Constitution “because of its vagueness and
       ambiguity.” Leck, 111 Ill. 2d at 531.

¶ 13       Seven months later, this court adhered to that standard in another referendum
       case. In Lipinski, as in the present appeal, a proposed referendum was challenged.
       The referendum for Chicago’s November 1986 election sought to have certain city
       officers “ ‘elected on a non-partisan ballot, by at least a 50% majority vote, but if no
       candidate receive[d] at least 50% of the votes cast for the respective office,’ ” a
       runoff election would be held between the two candidates receiving the most votes.
       Lipinski, 114 Ill. 2d at 97. The challengers alleged, in relevant part, that the
       proposition was vague and ambiguous.

¶ 14       Relying on our recent decision in Leck, we examined whether the referendum
       could “ ‘stand on its own terms’ ” and was “self-executing” or left “gaps to be filled
       by either the legislature or municipal body,” creating uncertainty about what voters
       approved. Lipinski, 114 Ill. 2d at 99-100 (quoting Leck, 111 Ill. 2d at 530). We
       concluded that the proposition was fatally vague and ambiguous, citing a number of
       problems. First, it was unclear when the initial nonpartisan election required by the
       referendum would be held. Lipinski, 114 Ill. 2d at 100. Next, the court expressed
       concern that the number of signatures needed to become a candidate on a
       nonpartisan ballot would increase dramatically, creating a question of “[w]hether
       those who might vote for the nonpartisan referendum—with perhaps the idea of
       opening up the municipal election process—would be aware that it would be much
       more difficult to become a candidate for municipal office in Chicago.” Lipinski,
114 Ill. 2d at 102. That lack of clarity would add to the uncertainty of what voters
       were approving. Moreover, the referendum was facially ambiguous because it
       referred to a “ ‘50% majority vote,’ ” a term we deemed “self-contradictory.”
       Lipinski, 114 Ill. 2d at 103. In addition, the proposition had the potential to shorten
       an incumbent officeholder’s term, in violation of existing law, and did not indicate
       how two runoff candidates would be identified in the case of a second-place tie.
       Lipinski, 114 Ill. 2d at 103-04. Citing the criteria established in Leck, we concluded
       that “[t]he nonpartisan referendum proposition is too vague and ambiguous to
       qualify as a binding referendum *** because it leaves in its wake significant
       questions unanswered and details which conflict with the Election Code.” Lipinski,
114 Ill. 2d at 104-05.




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¶ 15        In this case, Ames argues that Leck and Lipinski require referendums to include
       “clear and unequivocal language identifying [its] temporal reach” or risk being
       declared vague and ambiguous. He claims the language at issue here is vague and
       ambiguous as to when the “two (2) consecutive full four (4) year terms” must start
       to trigger ineligibility “to seek election or hold the office of Village President.” We
       disagree. While the proposition admittedly did not provide an express date marking
       the relevant timeframe for the prior terms of office, that omission alone does not
       render the referendum invalid due to vagueness and ambiguity. The referendum is
       directed at that those “who seek election to or hold the office of Village President”
       beginning with the April 2017 election who have “been previously elected” to that
       office for two consecutive full terms. When read in its entirety, the language used
       explains that the initial starting point for determining whether candidates were
       “previously elected” village president is the April 2017 election. We conclude that
       the meaning of the referendum is sufficiently clear even in the absence of an
       express statement of its “temporal reach.”

¶ 16       Ames next contends that two clauses in the referendum require interpretation
       because they are inherently contradictory, violating Leck and Lipinski. He
       maintains that the first clause “implies” that the term limit requirement would first
       apply to the individual “elected to the office of Village President in the Village of
       Broadview, at the April 4, 2017 consolidated election.” In other words, having been
       elected to two full terms in an office prior to the April 2017 election would not be a
       bar to running for that same office in the April 2017 election. Whoever wins that
       election would be subject to the two-term limit, however. Ames asserts that the
       referendum effectively creates a condition precedent that cannot be fulfilled prior
       to the April 2017 election. That clause, however, conflicts with the referendum’s
       second clause that broadly states, “no person shall be eligible to seek election to or
       hold the office of Village President where that person has been previously elected
       to the office of Village President of the Village of Broadview for two (2)
       consecutive full four (4) year terms.” (Emphasis added.) Ames argues that the use
       of the word “previously” in the second clause creates an ambiguity as to when the
       prior election must have occurred: on or before April 4, 2017. If the former, the
       second clause cannot be reconciled with the condition precedent in the first clause
       restricting the application of term limits to those elected “at” or after the April 2017
       election. If the latter, then the second clause makes the first one superfluous.




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¶ 17       We are not persuaded by Ames’s argument. The first clause of the referendum
       presents voters with the question of whether the office of village president on or
       after April 2017 should be subject to new eligibility requirements. In its simplest
       form, the second clause defines those new eligibility requirements, barring anyone
       from seeking or holding the office of village president if previously elected to that
       office for two consecutive full terms. As the appellate court noted, eligibility to
       “seek” office is generally determined when nominating petitions are filed. 2016 IL
       App (1st) 162770, ¶ 26. See Goodman v. Ward, 241 Ill. 2d 398, 408-09 (2011)
       (noting various Election Code provisions and decisions of this court stating that
       eligibility for office is determined at the time nomination papers are filed). See also,
       e.g., Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 12 (noting
       the issue was whether the candidates’ tax arrearage made her ineligible for office
       “at the time she filed her nomination papers”). Therefore, the plain meaning of the
       referendum is that one who “has been previously elected *** Village President for
       two (2) consecutive full four (4) year terms” when the nominating petition is filed
       may not “seek election or hold the office” “at the April 4, 2017 consolidated
       election” or any subsequent election. Contrary to Ames’s claim, the two clauses
       work together to create a complete and coherent eligibility scheme for anyone
       interested in running for or holding the office of Broadview village president.
       When read as a whole, the proposition is not vague or ambiguous.

¶ 18       While Ames suggests alternative variations that he asserts are clearer, a valid
       referendum need not be presented in optimal form. Leck and Lipinski merely
       mandate that the language used avoids the pitfalls of vagueness and ambiguity by
       permitting a clear determination of what voters approved. Lipinski, 114 Ill. 2d at
       104-05; Leck, 111 Ill. 2d at 530-31. We hold that the referendum at issue in this
       case meets that basic standard and affirm the appellate court’s judgment reversing
       the board’s order finding the referendum invalid as vague and ambiguous.

¶ 19       Our construction properly provides for prospective application of the approved
       term limit restriction by changing the eligibility requirements for those candidates
       running for village president in elections beginning with the one slated for April 4,
       2017. In other words, after the passage of the referendum, no candidate for village
       president in any election may have been previously elected to that office for two
       consecutive full terms. Altering the eligibility requirements for candidates in future
       elections has no retroactive impact. Indeed, that is precisely the type of change




                                                -7-
       authorized for both home rule units and non-home rule units of government in our
       constitution. Ill. Const. 1970, art. VII, §§ 6(f), 7(3) (granting municipalities the
       power to provide for their officers, the way they are selected, and their terms of
       office by referendum). Thus, we need not address Ames’s assertion that retroactive
       application of a referendum proposition is permissible only if it is expressly stated
       in the referendum itself.


¶ 20                                      III. CONCLUSION

¶ 21       In addressing the appellate court’s Rule 316 certificate of importance, we
       examined only whether the referendum at issue, imposing term limits on the village
       president in the village of Broadview, was invalid because it was vague and
       ambiguous. After applying the criteria we established in Leck and Lipinski, we
       conclude that the referendum was not vague or ambiguous. Accordingly, we affirm
       the judgment of the appellate court.


¶ 22       Affirmed.


¶ 23       JUSTICE THOMAS, specially concurring:

¶ 24       I agree entirely with the majority’s analysis and conclusion. I write separately
       only to address the appellate court’s determination that the granting of a certificate
       of importance was warranted in this case.1

¶ 25       In most instances, whether a lower court decision warrants review by this court
       is a matter left to this court’s “sound judicial discretion.” Ill. S. Ct. R. 315(a) (eff.
       Mar. 15, 2016). And while the court may take any number of factors into
       consideration when exercising that discretion, this court has enumerated certain
       factors that “indicate the character of reasons which will be considered.” Id. These

           1
             The court correctly concludes that the certificate of importance issued in this case was
       legally ineffective for lack of jurisdiction. I write not to dispute that point but only to
       address the appellate court’s determination that this is the type of case that warrants such
       certification.




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       include “the general importance of the question presented; the existence of a
       conflict between the decision sought to be reviewed and a decision of the Supreme
       Court, or of another division of the Appellate Court; the need for the exercise of the
       Supreme Court’s supervisory authority; and the final or interlocutory character of
       the judgment sought to be reviewed.” Id. In short, this court’s decision to grant
       review turns largely on whether the issue involved warrants an authoritative
       resolution of statewide impact or whether it is the type of case whose final
       resolution we may entrust to the appellate court.

¶ 26       That said, the Illinois Constitution provides that an appeal from the appellate
       court to this court exists as “a matter of right” whenever “a division of the Appellate
       Court certifies that a case decided by it involves a question of such importance that
       the case should be decided by the Supreme Court.” (Emphasis added.) Ill. Const.
       1970, art. VI, § 4(c). And while the constitution does not specify what types of
       cases rise to this level, I would like to think that, at the very least, our appellate
       court would be guided by the factors set forth in Rule 315, thereby reserving the
       exercise of its certification power only for those rare cases that truly compel an
       authoritative resolution of statewide impact.

¶ 27       Which brings me to this case. As certified by the appellate court, the question of
       “such importance that the case should be decided by the Supreme Court” is whether
       the local ballot initiative at issue in this case “was vague.” This question does not
       require this court to construe any constitutional or statutory language, to resolve
       any conflict in the appellate court or between this court and the appellate court, or
       to correct any errant exercise of judicial power. On the contrary, and as today’s
       decision makes all too manifest, it requires this court only to read and interpret a
       local ballot initiative that was drafted locally, applies locally, and almost certainly
       will never appear again in the same form on any ballot anywhere. It is a question
       whose resolution, while no doubt of tremendous and understandable importance to
       the approximately 8000 residents of Broadview, will be of no consequence and at
       best only passing interest to the approximately 12.8 million Illinois residents who
       do not live in Broadview. It is purely a local matter, never again to be repeated. And
       as such, it is the very opposite of “a question of such importance that the case
       should be decided by the Supreme Court.”




                                                -9-
¶ 28       The appellate court’s power to compel review by this court is a serious one and
       one that historically the appellate court only rarely exercises. I would hope that, in
       the future, our appellate court would recommit itself to exercising that power with
       the restraint, sobriety, and cautious discretion it deserves.




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