                                           2020 IL 125714



                                             IN THE
                                    SUPREME COURT
                                                 OF
                              THE STATE OF ILLINOIS




                                        (Docket No. 125714)

     TIMOTHY BURNS, Appellee, v. THE MUNICIPAL OFFICERS ELECTORAL BOARD OF
         THE VILLAGE OF ELK GROVE VILLAGE et al. (Benjamin R. Lee, Appellant).


                                  Opinion filed February 26, 2020.



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

            Chief Justice Burke and Justices Thomas, Kilbride, Garman, and Karmeier
         concurred in the judgment and opinion.

            Justice Neville took no part in the decision.



                                             OPINION

¶1           In this case we are asked to consider the validity of a referendum seeking to
         impose term limits on the elected offices of village president and village trustee in
         Elk Grove Village. The village electoral board concluded that the referendum
         violated section 3.1-10-17 of the Illinois Municipal Code. Pub. Act 101-114, § 5
     (eff. July 19, 2019) (adding 65 ILCS 5/3.1-10-17). On judicial review, the circuit
     court of Cook County reversed, holding that section 3.1-10-17 was unconstitutional
     and ordering that the term-limits referendum appear on the March 17, 2020, general
     primary ballot. 1 The matter was appealed directly to this court pursuant to Illinois
     Supreme Court Rule 302(a) (eff. Oct. 4, 2011). For the following reasons, we
     reverse the judgment of the circuit court in part, vacate in part, and affirm the
     decision of the electoral board.


¶2                                         BACKGROUND

¶3       On July 8, 2019, Timothy Burns, the principal proponent of a term-limits
     referendum, filed a petition seeking to place the question of whether to impose term
     limits on the elected offices of village president and village trustee in Elk Grove
     Village on the March 17, 2020, general primary election ballot. The proposed
     question asked:

         “Shall the terms of office for those persons seeking nomination or election to,
         or who are holding the office of, Village President (Mayor) and Village trustee
         in the Village of Elk Grove Village, be limited such that, at the February 23,
         2021 Consolidated Primary Election and all subsequent elections, no person
         shall be eligible to seek nomination or election to, or to hold, elected office in
         the Village of Elk Grove Village where that person has held the same elected
         office for two (2) or more consecutive, four (4) year terms?”

¶4       Benjamin Lee, a registered voter of the village, filed an objection, relying on
     section 3.1-10-17 of the Municipal Code. Lee argued that section provides that any
     term-limit referendum must be prospective only—that is, a referendum can only
     consider terms in office served after the passage of the referendum to determine a
     candidate’s eligibility. Lee maintained that the referendum proposed by Burns
     violated that section because it calculated and counted prior service as village
     president or village trustee before the passage of the referendum in determining
     eligibility to seek another term in that office. In response to the objection, Burns



         1
          The election held on the third Tuesday in March is the “general primary election,” pursuant to
     the Election Code. 10 ILCS 5/2A-1.1 (West 2018).




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     maintained that section 3.1-10-17 was unconstitutional, facially and as applied to
     his petition for referendum.

¶5       The electoral board agreed with Lee, 2 sustaining the objection to the petition
     on the grounds that the petition conflicted with section 3.1-10-17. The board found
     that the statute allowed term limits to be prospective only, that the referendum was
     not prospective in its consideration of prior service, and that the limited scope of
     the board’s authority required it to accept the validity of the statute without
     considering whether it was unconstitutional. Accordingly, the board ordered that
     the referendum should not appear on the ballot in the March 17, 2020, general
     primary election.

¶6       Burns sought judicial review in the circuit court of Cook County and requested
     that the court consider the constitutionality of the statute. The circuit court reversed
     the decision of the electoral board, holding that section 3.1-10-17 was
     unconstitutional on its face and as applied.

¶7       The circuit court found that the General Assembly has the constitutional
     authority to expressly restrict the power of home rule municipalities to ensure that
     term limits can only be instituted prospectively. However, the court ruled that
     section 3.1-10-17 unlawfully applied retroactively to term limits referenda that had
     already been approved by the voters in other municipalities since November 2016.
     The circuit court further found that the unlawful provisions could not be severed
     from the rest of the statute.

¶8       Thereafter, Lee filed a notice of appeal directly to this court pursuant to Rule
     302(a)(1). Ill. S. Ct. R. 302(a)(1) (eff. Oct. 4, 2011). This court granted the parties’
     agreed motion to expedite the appeal and set an expedited briefing schedule without




          2
           The electoral board agreed with Lee on remand from the circuit court, after initially dismissing
     Lee’s objection as “premature.” Lee had filed his objection on October 22, and the electoral board
     reasoned that he had to wait until December 17. See 10 ILCS 5/10-8 (West 2018) (requiring
     objections to petitions for referendum to be “duly made in writing within 5 business days after the
     last day for filing the *** petition for a public question”). After the electoral board found for Lee on
     remand, the circuit court ruled on Burns’s counterpetition in an order captioned Burns v. Municipal
     Officers Electoral Board, No. 19-COEL-37 (Cir. Ct. Cook County, Jan. 15, 2020).




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       oral argument. Ill. S. Ct. R. 311(b) (eff. July 1, 2018).


¶9                                          ANALYSIS

¶ 10       When an election board’s decision is challenged in the circuit court pursuant to
       section 10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2018)), the
       proceeding is one of administrative review. Accordingly, it is the election board’s
       decision that is ultimately before us, and not the decision of the circuit court.
       However, the election board has no authority to declare a statute unconstitutional
       or to question the validity of the statute. Goodman v. Ward, 241 Ill. 2d 398, 411
       (2011). Thus, it is the circuit court’s declaration that section 3.1-10-17 is
       unconstitutional that warrants this court’s direct review. The constitutionality of a
       statute involves a question of law, making our review de novo. Bartlow v. Costigan,
       2014 IL 115152, ¶ 17.

¶ 11      Section 3.1-10-17 provides as follows:

              “(a) The imposition of term limits by referendum, ordinance, or otherwise
          must be prospective. Elective office held prior to the effective date of any term
          limit imposed by a municipality shall not prohibit a person otherwise eligible
          from running for or holding elective office in that municipality. Term limits
          imposed in a manner inconsistent with this Section remain valid prospectively,
          but are invalid as they apply to service prior to the enactment of the term limits.

              (b) The imposition of term limits by referendum, ordinance, or otherwise
          shall only apply to terms for the same office or that category of municipal office.
          Term limits imposed in a manner inconsistent with this subsection are invalid
          as they apply to service in other categories of municipal offices.

              (c) A home rule unit may not regulate term limits in a manner inconsistent
          with this Section. This Section is a limitation under subsection (i) of Section 6
          of Article VII of the Illinois Constitution on the concurrent exercise by home
          rule units of powers and functions exercised by the State.

              (d) This Section applies to all term limits imposed by a municipality by
          referendum, ordinance, or otherwise passed on or after November 8, 2016.”
          Pub. Act 101-114, § 5 (eff. July 19, 2019) (adding 65 ILCS 5/3.1-10-17).




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¶ 12       There is no dispute here that, if valid, the term-limits statute would bar the
       referendum question from the ballot. However, Burns contends that section 3.1-10-
       17 unlawfully deprives the voters of the village and the voters of other
       municipalities their state constitutional right to choose by referendum the terms and
       manner of selecting their elected municipal officers. He maintains that the statute
       is unconstitutional both facially and as applied to this case.

¶ 13       A facial challenge to a statute is the most difficult challenge to mount because
       a statute will be deemed facially invalid only if no set of circumstances exists under
       which the statute would be valid. Napleton v. Village of Hinsdale, 229 Ill. 2d 296,
       305-06 (2008). An as-applied challenge requires a showing that the statute violates
       the constitution as it applies to the facts and circumstances of the challenging party.
       City of Chicago v. Alexander, 2017 IL 120350, ¶ 27.

¶ 14       Under either, we are mindful that statutes enjoy a strong presumption of
       constitutionality. Oswald v. Hamer, 2018 IL 122203, ¶ 29. “The party challenging
       the validity of a statute has the burden of clearly establishing the alleged
       constitutional infirmity.” Id. If reasonably possible, it is the court’s duty to construe
       the statute in a way that will uphold its constitutionality, and any doubt in the
       statute’s construction will be resolved in favor of the statute’s validity. Id.

¶ 15      Contrary to Burns’s assertion, we agree with the circuit court that the General
       Assembly has the authority to legislate in this area prospectively because it has
       expressly indicated its intent to do so.

¶ 16       In order to understand Burns’s argument that the legislature exceeded its
       authority, we must first consider the relationship between the State and the units of
       local government under the 1970 Illinois Constitution. Generally, every subject
       within the scope of governmental affairs rests in the General Assembly, unless
       inhibited by some constitutional provision. See Ill. Const. 1970, art. II, § 2; Ill.
       Const. 1970, art. IV, § 1 (the General Assembly is vested with all legislative power
       by the constitution). Article VII, section 6, of the constitution provides home rule
       units with certain powers with respect to local concerns. Ill. Const. 1970, art. VII,
       § 6(a) (“a home rule unit may exercise any power and perform any function
       pertaining to its government”).




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¶ 17       Relevant to this referendum, Elk Grove Village is a home rule municipality. As
       such, it is specifically governed by article VII, section 6(f), of the Illinois
       Constitution, which addresses a home rule municipality’s manner of selection of
       officers and implementation of terms of office. That section empowers a home rule
       municipality to “provide for its officers, their manner of selection and terms of
       office only as approved by referendum or as otherwise authorized by law.” Ill.
       Const. 1970, art. VII, § 6(f). Thus, under section 6(f), in the absence of a legislative
       grant of authority, a home rule municipality is authorized to “chang[e] the eligibility
       requirements for those candidates running [for office]” by limiting the
       officeholder’s term via a referendum approved by the voters. Johnson v. Ames,
       2016 IL 121563, ¶ 19.

¶ 18       Under the same constitutional framework, however, the General Assembly may
       choose to “preempt the exercise of a municipality’s home rule powers by expressly
       limiting that authority.” Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013
       IL 110505, ¶ 31 (citing Schillerstrom Homes, Inc. v. City of Naperville, 198 Ill. 2d
       281, 287 (2001)). Under article VII, section 6(h), the General Assembly “may
       provide specifically by law for the exclusive exercise by the State of any power or
       function of a home rule unit.” Ill. Const. 1970, art. VII, § 6(h).

¶ 19        If the General Assembly has not expressly preempted an area and taken
       exclusive control over it, it may, instead, limit the power of home rule units to act
       concurrently with the State. If the General Assembly wishes to limit the power of
       home rule units in this way, it must also do so with express language to that effect.
       Ill. Const. 1970, art. VII, § 6(i); 5 ILCS 70/7 (West 2018) (providing that if the
       legislature seeks to limit the exercise of home rule powers, the statute must contain
       an express statement to that effect).

¶ 20       Here, section 3.1-10-17 of the Municipal Code indeed contains an express
       limitation on the power of a home rule unit to regulate matters involving term limits.
       Subsection (c) specifically provides that

          “[a] home rule unit may not regulate term limits in a manner inconsistent with
          this Section. This Section is a limitation under subsection (i) of Section 6 of
          Article VII of the Illinois Constitution on the concurrent exercise by home rule
          units of powers and functions exercised by the State.” Pub. Act 101-114, § 5
          (eff. July 19, 2019) (adding 65 ILCS 5/3.1-10-17(c)).



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¶ 21       Thus, while the General Assembly has not exclusively preempted a home rule
       unit from exercising its home rule powers with respect to term limits, it has chosen
       to place a limitation on the manner in which term limits are calculated in the next
       election and subsequent elections. By enacting section 3.1-10-17, the General
       Assembly demonstrated its intent that any term-limit referendum must be applied
       prospectively, because only terms served after the passage of the referendum may
       be considered to determine a candidate’s eligibility. The General Assembly
       properly followed the required procedures and asserted its proper authority under
       the Illinois Constitution to limit a function of a home rule unit. Burns’s novel
       reading of section 6(f) would read sections 6(h) and 6(i) out of the constitution. The
       General Assembly may always limit the powers of a home rule unit under sections
       6(h) and 6(i) as long as it does so expressly.

¶ 22       Accordingly, consistent with the circuit court’s findings, this case presents a
       circumstance under which the statute can be validly applied. Accordingly, Burns’s
       challenge must fail, both as applied and facially. In re M.T., 221 Ill. 2d 517, 537
       (2006) (“[S]o long as there exists a situation in which a statute could be validly
       applied, a facial challenge must fail.” (Internal quotation marks omitted.)).

¶ 23       Nevertheless, Burns additionally argues that the statute is otherwise invalid
       because it retroactively applies to other municipalities that have already passed term
       limits by referendum, nullifying their voters’ constitutional rights. The circuit court
       agreed, basing its ruling on what it perceived was a problem in the manner of the
       statute’s “retroactive application” in the last sentence in subsection (a) and in
       subsection (d).

¶ 24       The last sentence in subsection (a) provides that “[t]erm limits imposed in a
       manner inconsistent with this Section remain valid prospectively, but are invalid as
       they apply to service prior to the enactment of the term limits.” Pub. Act 101-114,
       § 5 (eff. July 19, 2019) (adding 65 ILCS 5/3.1-10-17(a)). Subsection (d) is an
       express temporal limitation on subsection (a), providing that “[t]his Section applies
       to all term limits imposed by a municipality by referendum, ordinance, or otherwise
       passed on or after November 8, 2016.” Id. (adding 65 ILCS 5/3.1-10-17(d)).

¶ 25      To the extent that these provisions refer to term limits that have already been
       imposed, they are not implicated here. No term limit has yet been imposed by Elk
       Grove Village. Thus, Burns is asking us to consider whether provisions in the



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       statute that are not applicable here have any unlawful retroactive impact as applied
       to voters’ constitutional rights in other municipalities.

¶ 26        As we have explained, “ ‘[a] fundamental rule of constitutional law is that a
       court will not determine the constitutionality of a provision of a statute which does
       not affect the parties to the cause under consideration.’ ” Flynn v. Ryan, 199 Ill. 2d
       430, 438-39 (2002) (quoting Chicago Teachers Union, Local 1 v. Board of
       Education of the City of Chicago, 189 Ill. 2d 200, 206 (2000)); People v. Mosley,
       2015 IL 115872, ¶ 11 (“courts do not rule on the constitutionality of a statute where
       its provisions do not affect the parties” (citing Klein v. Department of Registration
       & Education, 412 Ill. 75, 87-88 (1952))). Whether the statute implicates voters’
       constitutional rights as applied to term limit referenda previously passed in other
       municipalities does not affect Elk Grove Village or its voters. Accordingly, we find
       the trial court erred in considering those provisions.


¶ 27                                      CONCLUSION

¶ 28       For all of the foregoing reasons, we find the relevant provisions of section 3.1-
       10-17 of the Municipal Code to be constitutional both facially and as applied to the
       proposed referendum in Elk Grove Village. Accordingly, we reverse the judgment
       of the circuit court, vacate that portion of the court’s ruling as to provisions that do
       not affect the parties, and affirm the decision of the electoral board, which found
       the proposed referendum invalid.


¶ 29      Circuit court judgment reversed in part and vacated in part.

¶ 30      Board decision affirmed.

¶ 31      JUSTICE NEVILLE took no part in the consideration or decision of this case.




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