                             2016 IL App (1st) 162770
                                   No. 1-16-2770
                           Opinion filed November 1, 2016

                                                                   FIFTH DIVISION

                                       IN THE

                        APPELLATE COURT OF ILLINOIS

                                  FIRST DISTRICT


MAXINE JOHNSON,                             )     Appeal from the Circuit Court
                                            )     of Cook County.
      Petitioner-Appellee,                  )
                                            )
      v.                                    )
                                            )
MATTHEW AMES,                               )     No. 2016 COEL 00021
                                            )
      Respondent-Appellant                  )     The Honorable
                                            )     Paul A. Karkula,
(The Village of Broadview Municipal         )     Judge, presiding.
Officers Electoral Board, and its           )
Members, Judy Brown-Marino,                 )
Chairman; Kevin McGrier, Member;            )
Robert M. Hodge, Member; and David          )
Orr, in His Official Capacity as Cook       )
County Clerk,                               )
       Respondents).                        )


           PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
           Justice Reyes concurred in the judgment and opinion.
           Justice Lampkin dissented, with opinion.



                                    OPINION
     No. 1-16-2770


¶1           After obtaining the signatures of hundreds of voters in the Village of

       Broadview, petitioner Maxine Johnson filed a "Petition for Referendum–Term

       Limits on Mayor's Office" with the Clerk of the Village of Broadview. The

       petition sought to place a term limits question on the ballot for the November 8,

       2016, general election. If passed by the voters on November 8, 2016, the

       referendum question would govern the eligibility of candidates seeking to run in

       the April 4, 2017, municipal election for village president, as well as in

       subsequent elections.

¶2           In response to an objector's petition, the Village of Broadview electoral

       board issued a decision on October 3, 2016, finding that the term limits question

       was vague and ambiguous because the question was unclear as to whether the

       limits applied prospectively or retroactively. On October 19, 2016, the trial

       court reversed the decision of the electoral board, finding that the question was

       not vague or ambiguous.

¶3           For the following reasons, we agree with the trial court and conclude that

       the question is not vague or ambiguous and, thus, order its placement on the

       November 8, 2016, ballot.

¶4                                  BACKGROUND

¶5           The question at issue states:


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              "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."

¶6            As we observed above, on August 8, 2016, the proponent of the above

       question, Maxine Johnson, filed a petition signed by several hundred voters in

       the Village of Broadview. On August 15, 2016, an objector, Matthew Ames,

       filed an eight-count petition challenging the validity of this question.

¶7            On October 3, 2016, the electoral board issued a written decision

       sustaining only the third objection. Concerning the third objection, the board

       stated, in relevant part:

                 "In applying Illinois law, the Board finds that the Referendum is

              vague and ambiguous and cannot stand on its own terms and is therefore

              invalid and sustains the [objection]. The Referendum is uncertain with

              respect to whether a person's service as Village President prior to the

              passage of the Referendum is to be considered in determining if that

              person has served more than eight years in that position."

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¶8             With respect to the other objections, the board noted that the second,

         seventh and eighth objections were withdrawn by the objector and, thus, were

         not considered by the board. With respect to the first objection, which was a

         challenge to the number and validity of the signatures, the board heard evidence

         and concluded that the petition had the requisite number of valid signatures:

                  "The Board makes the following Findings and Conclusions as to

               Objection I [which states: ']The Limit Referendum is invalid because it

               does not have the requisite number of signatures necessary to satisfy 10

               ILCS 5/28-7.['1]

                  The Proponent and the Objector filed motions pursuant to Rule 8 and

               10 of the adopted rules of the Board. The Board heard evidence on the

               issues of signatures and voter registration and heard evidence as well as a

               records exam.

                  The Board finds that the number of valid signatures appearing on the

               referendum petition following a completion of the records examination

               was 224 valid signatures which was 3 signatures over the statutory

               requirement of 221.      Under the Election code 221 signatures were

     1
      Section 28-7 of the Election Code provides, in relevant part, that a "public
     question may be initiated *** by the filing with the clerk or secretary of the
     governmental unit of a petition signed by a number of qualified electors equal to or
     greater than at least 8% of the total votes cast for candidates for Governor in the
     preceding gubernatorial election[.]" 10 ILCS 5/28-7 (West 2014).
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       No. 1-16-2770

               required which was calculated based on 8% of the total amount of voters

               in the local governmental unit which voted in the last governor's election.

               The Board therefore overrules Objection 1.”

         The objector had argued before the electoral board that the board should strike

         certain affidavits which were notarized by the proponent, Maxine Johnson, and

         which were submitted to rehabilitate certain signatures; and that, if these

         affidavits were struck, the petition would then have less than the statutorily

         required minimum of 221 signatures.

¶9             With respect to the fourth and fifth objections, which were claims that the

         question violated the voters' constitutional rights to vote and to associate, the

         board held that it had "no authority to decide United States Constitutional

         issues." With respect to the sixth objection, which claimed that the Village of

         Broadview was not empowered to impose term limits, the board concluded that

         no Illinois statute prohibited term limits.

¶ 10           The board's decision was a split 2 to 1 decision. The chairperson, who

         was the one dissenting member, filed a strong dissenting opinion stating that, in

         the week since the board's decision, she had shown the question to a number of

         her constituents and they all understood the calculation of a person's prior

         service to include "those persons who had already (previously) been elected

         Village President" and that any other conclusion was "ridiculous and absurd."

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       No. 1-16-2770

¶ 11           In response to the board's decision, the proponent of the question, Maxine

         Johnson, sought judicial review in the trial court. On October 19, 2016, the trial

         court issued a written order, which states in relevant part:

                   "Both parties have introduced ancillary issues in their briefs, i.e., the

               timely convening of the Electoral Board and the validity of several

               notarized affidavits.     The court believes that those matters were

               adequately addressed by the board and have little, if any, bearing on the

               case in chief.

                   The issue in this case is the validity of the proposed referendum as

               drafted.

                   An examination of the proposed ballot referendum and a comparative

               analysis of a recent case on point Davis v. Welch, 14 CH 13948 (Circuit

               Court of Cook County October 1, 2014, affirmed 2014 [IL App (1st)

               142998-U] pertain to a referendum that was challenged on the same

               grounds as are being raised here. The Circuit Court of Cook County,

               affirmed by the Appellate Court, found that the term limit referendum,

               which would prevent current officeholders from seeking future terms

               based on consecutive terms of prior service, was both lawful and

               constitutional.



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       No. 1-16-2770

                  It is clear that the referendum in the case at bar is not vague or

               ambiguous but is effective upon passage, self-executing and applies

               prospectively."

¶ 12           The trial court then reversed the decision of the electoral board and

         ordered that the referendum question "shall appear on the ballot at the General

         Election November 8, 2016 in the Village of Broadview, Illinois."

¶ 13           On October 20, 2016, the objector, Matthew Ames, filed a motion with

         this court seeking an expedited appeal, in which he stated that the "referendum

         question at issue is currently on the 11/08/2016 general election ballot," and

         that "this matter requires action by the Court on or before 11/01/2016."

¶ 14           This court then granted his motion for an expedited appeal and directed:

         (1) the appellant to file a brief by October 25, 2016; (2) the appellee to file a

         brief by October 28, 2016; and (3) the appellant to file a reply brief by October

         30, 2016. This court also ordered the appellant to "notify [the] clerk of the

         court and comply with all rules and procedures for the procurement of the

         record," so that the clerk of the circuit court could produce the record by

         October 28, 2016.

¶ 15           On October 25, 2016, the objector filed an appellate brief but the board

         failed to do so. Although the cover page of the brief is entitled the brief of

         "Respondents" in the plural, the text of the brief refers only to the "Appellant"

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         in the singular and the "Certificate of Service" states that the brief was

         submitted by an attorney only "for Appellant Matt Ames," who was the

         objector. In addition, the objector requests that this court reverse one of the

         board's findings, which was that the petition was supported by the required

         number of signatures. By not filing a brief with this court, the board decided

         not to contest the trial court's findings on appeal and, thus, only the objector

         pursues this appeal.

¶ 16                                      ANALYSIS

¶ 17            In the case at bar, the electoral board concluded in a 2 to 1 decision that

         the referendum question was vague and ambiguous. The trial court, however,

         reversed the decision of the board. For the following reasons, we agree with the

         dissenting board member that the question is not ambiguous and affirm the trial

         court's reversal of the board.

¶ 18                                 I. Standard of Review

¶ 19           " 'Judicial review of the decision of an electoral board is intended to

         remedy arbitrary or unsupported decisions.' " Anderson v. McHenry Township,

         289 Ill. App. 3d 830, 832 (1997) (quoting Reyes v. Bloomingdale Township

         Electoral Board, 265 Ill. App. 3d 69, 72 (1994)). While we review questions of

         fact deferentially and will disturb factual determinations only if they are against



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         the manifest weight of the evidence, we review questions of law de novo.

         Anderson, 289 Ill. App. 3d at 832 (citing Reyes, 265 Ill. App. 3d at 72).

¶ 20           In the case at bar, whether the referendum question is vague and

         ambiguous is a legal question that we review de novo. Roman v. Cook County

         Sheriff's Merit Board, 2014 IL App (1st) 123308, ¶ 73 (whether the board's

         decision was vague was a question of law that we reviewed de novo). See also

         People v. Sharp, 2015 IL App (1st) 130438, ¶ 138 (whether a statute was

         unconstitutionally vague such that its terms were "so ill-defined that their

         meaning will ultimately be determined by the opinions and whims of the trier of

         fact rather than objective criteria" was a pure question of law to which we

         applied de novo review). De novo consideration means that we perform the

         same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP,

         408 Ill. App. 3d 564, 578 (2011).

¶ 21           When an appeal includes both a decision by an electoral board and a

         ruling by the trial court, we review the decision by the electoral board and not

         the ruling by the trial court. Cinkus v. Village of Stickney Municipal Officers

         Electoral Board, 228 Ill. 2d 200, 212 (2008) ("where a circuit court reviews an

         electoral board's decision *** we review the decision of the board, not the

         court").




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¶ 22                             II. The Referendum Question

¶ 23            In finding the referendum question vague, the electoral board relied upon

         our supreme court's opinions in Lipinski v. Chicago Board of Election

         Commissioners, 114 Ill. 2d 95, 99-100 (1986), and Leck v. Michaelson, 111 Ill.

         2d 523, 530 (1986), which held that a proposed referendum question must be

         able to stand on its own terms and offer the voters a coherent scheme for

         altering the election of their officials. If the referendum is not self-executing

         and has gaps, then it is vague and ambiguous. Lipinski, 114 Ill. 2d at 99-100

         (citing Leck, 111 Ill. 2d at 530).

¶ 24           In its written decision, the board concluded that the referendum question

         was vague "with respect to whether a person's service as Village President prior

         to the passage of the Referendum is to be considered in determining if that

         person has served more than eight years in that position." The board found that

         the referendum question "does not specifically state whether the calculation of a

         person's prior service would include service occurring prior to the passage of

         the Referendum or after." (Emphasis added.) After finding that the referendum

         did not specifically state whether prior service counted, the board, nonetheless,

         concluded that prior service did not count, stating:         "the limit of two

         consecutive terms only applies upon occurrence of a person being elected on




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          April 4, 2017[,] and each election after and as such, it is only after the person

          has been elected does the limitation of prior service begin to accrue."

¶ 25             For the following reasons, we conclude that the referendum question is

          not vague or ambiguous. As we noted above, the question states:

                    "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."

¶ 26             The question applies only to "those persons elected to the office *** in

          the April 4, 2017 consolidated election" and in all elections "thereafter."

          Eligibility to "seek" office is generally measured at the time the nominating

          petitions are due and filed for each election.2 At that time, no person may

          "seek" the office if "that person has been previously elected" to the office "for

             2
                E.g., Jackson v. Board of Election Commissioners of the City of Chicago,
       2012 IL 111928, ¶ 12 (issue was whether the candidate was "ineligible for
       municipal office *** at the time she filed her nomination papers"). See also Cinkus
       v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 219-20
       (2008) ("when a candidate submits his or her nomination papers to run for office,
       the candidate swears that he or she is—not will be—qualified for the office" he or
       she seeks).
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         two (2) consecutive full four (4) year terms." (Emphasis added.)        If "that

         person" has already—previously—been elected for two consecutive full four-

         year terms, he or she is not eligible. In addition, no person who has been

         "elected to the office *** in the April 4, 2017 consolidated election" or in any

         election "thereafter" may "hold" the office if "that person has been previously

         elected for two (2) consecutive full four (4) year terms." Thus, we must

         conclude that the question is not vague or ambiguous.

¶ 27           In Lipinski, which was cited by the board, the referendum question

         contained the phrase "50% majority vote." Lipinski, 114 Ill. 2d at 103. Our

         supreme court observed that this phrase was meaningless, since the word

         "majority" meant a number greater than "50%." Lipinski, 114 Ill. 2d at 103;

         Leck, 111 Ill. 2d at 529-31 (the Leck decision also concerned a "50%" issue).

         Since the phrase "50% majority" was inherently contradictory, it was vague and

         ambiguous. Contrary to Lipinski, the referendum question before us contains

         no inherently contradictory phrases.

¶ 28           In its written decision, the board concluded that the referendum has

         retroactive application because a candidate's prior service may bar him or her

         from prospective service. However, prior conditions, such as where a candidate

         previously lived, may remove him or her from eligibility for a prospective

         office. E.g., Maksym v. Board of Election Commissioners of the City of

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       No. 1-16-2770

         Chicago, 242 Ill. 2d 303, 308 (2011) (Rahm Emanuel would not have been

         eligible for election if he had not previously resided in Chicago). Thus, we do

         not find this argument persuasive.

¶ 29                     III. Statutorily-Required Minimum Signatures

¶ 30           In addition to challenging the question itself, the objector's appellate brief

         also claims that the petition lacked the statutorily-required minimum signatures.

         The objector argues before this court that the electoral board should have struck

         certain affidavits which were notarized by the proponent, Maxine Johnson, and

         which were submitted to rehabilitate certain signatures; and that, if these

         affidavits were struck, the petition would then have less than the statutorily

         required minimum of 221 signatures. Specifically, the objector argues that

         section 6-104(b) of the Illinois Notary Public Act barred Maxine Johnson from

         serving as a notary public in connection with a referendum where she was the

         proponent. 5 ILCS 312/6-104(b) (West 2014).

¶ 31           The interpretation of a statute is a question of law that we also review de

         novo. Maschek v. City of Chicago, 2015 IL App (1st) 150520, ¶ 42. As we

         observed above, de novo consideration means that we perform the same

         analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill.

         App. 3d 564, 578 (2011). With statutory interpretation, our primary goal is to

         ascertain the legislators' intent, and the best indication of their intent is the plain

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         and ordinary meaning of the words which they chose to use.               People v.

         Chatman, 2016 IL App (1st) 152395, ¶ 30 (citing MD Electrical Contractors,

         Inc. v. Abrams, 228 Ill. 2d 281, 287 (2008)).

¶ 32           Section 6-104(b) is quoted by both parties in their briefs to this court, and

         it states, in full: "A notary public shall not acknowledge any instrument in

         which the notary's name appears as a party to the transaction." 5 ILCS 312/6-

         104(b) (West 2014). If one applies the plain words of this sentence to the facts

         of our case, the "instrument" is the petition which the voters signed, and "the

         notary's name" does not "appear[] as a party" anywhere on this instrument.

         Thus, the plain words of the statute require us to reject this argument, as did the

         trial court and all three board members.

¶ 33                                    CONCLUSION

¶ 34           For the foregoing reasons, the decision of the board is reversed and the

         decision of the trial court is affirmed, and we order that the referendum question

         shall remain on the ballot.

¶ 35           Affirmed.

¶ 36           JUSTICE LAMPKIN, dissenting.

¶ 37           I respectfully dissent. I would hold that the referendum was

         unconstitutionally vague and ambiguous. I would conclude that the Municipal

         Officers Electoral Board of the Village of Broadview (Board) acted properly

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         when it found the referendum invalid and granted the objector’s motion for

         summary judgment. Accordingly, I would reverse the order of the circuit court

         that reversed the Board’s decision.

¶ 38           The proposed referendum would ask the following question of the voters

         of the Village of Broadview:

                  “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?”

¶ 39           A referendum submitted under the provisions of section 6 or 7 of article

         VII of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, §§ 6, 7) must

         “stand on its own terms” such that the voters can “be said to have approved a

         coherent scheme for altering the election of their officials.” Leck v. Michaelson,

         111 Ill. 2d 523, 530 (1986). Such referendum must not be “uncertain,” and must

         not need “to be interpreted, supplemented and modified in order to be

         implemented.” Id. A referendum that violates these requirements is “fatally

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         defective under article VII *** of the 1970 Illinois Constitution because of its

         vagueness and ambiguity.” Id.

¶ 40           Applying these standards to the referendum proposed here, I would

         conclude that the Board properly found it to be unconstitutionally vague and

         ambiguous. The referendum is uncertain with respect to whether a person’s

         service as the village president of the Village of Broadview prior to the passage

         of the referendum and the April 2017 election is to be considered in

         determining if that person has served more than two consecutive full four-year

         terms. The referendum seeks to impose a term limit on the people elected to the

         office of village president by deeming a person who previously was elected to

         that office for two consecutive full four-year terms ineligible to seek election to

         or hold that office. Although this term limit would apply prospectively to the

         April 4, 2017 consolidated election and each election thereafter, the referendum

         as written is open to at least two interpretations concerning whether 8

         consecutive years of service as village president prior to April 2017 would

         prevent a person from seeking or holding that office after April 2017. The

         referendum does not indicate whether the relevant calculation of a person’s 8

         consecutive-year limit either includes or excludes a person’s prior service

         occurring before the passage of the resolution and the 2017 election. The

         referendum merely states that the 8 consecutive-year limit on eligibility is

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         calculated based on having been “previously elected” to the office of village

         president. This unclear provision necessarily begs the question: previous to

         when?

¶ 41           The proponent’s reliance on the unpublished order Davis v. Welch, 2014

         IL App (1st) 142998-U for persuasive authority is misplaced. In Davis, the

         court concluded that a referendum related to limiting the terms of elected

         officials was clearly worded and self-executing. Id. ¶ 18. The text of the

         referendum at issue here, however, bears no similarity to the clear wording of

         the referendum at issue in Davis, which set forth a term limit for a specific

         office and included the phrase “with all prior consecutive terms of a current

         officeholder counted in determining term limits for that office holder.” Id. ¶ 6.

         The clear statement in Davis that a person’s prior terms in office would be

         included in determining the person’s eligibility to hold office under the new

         term limits is completely absent in the text of the referendum at issue in the

         instant case.

¶ 42           Reading the proposed referendum in its entirety, I would conclude that it

         does not stand on its own terms such that voters can be said to have approved a

         coherent scheme for altering the election of their officers. Leck, 111 Ill. 2d at

         530. A voter could reasonably conclude he or she was voting for a new term

         limit for the office of village president that would become effective April 2017

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         and determine a person’s eligibility to seek or hold that office based on a

         calculation that either (1) included the person’s 8 consecutive-years of service

         that occurred previous to April 2017, or (2) excluded such service because the

         new term limits would become effective in the 2017 election and thereafter and

         would apply going forward only. Accordingly, just what the voters would be

         approving under this referendum would be uncertain, and the referendum is

         thus vague and ambiguous and therefore invalid. Lipinski v. Chicago Board of

         Election Commissioners, 114 Ill. 2d 95, 100 (1986). I, therefore, would affirm

         the Board’s decision to sustain Objection III and the Board’s conclusion that the

         referendum was invalid and should not appear on the ballot.

¶ 43           Contrary to established law, the majority’s analysis interprets,

         supplements and modifies the language of the referendum by manipulating the

         sequence of the words and adding or omitting certain words to arrive at the

         conclusion that the referendum question is neither vague nor ambiguous. I

         believe the majority’s holding that the referendum question will remain on the

         ballot should not be allowed to stand and “involves a question of such

         importance that it should be decided by the Supreme Court.” Ill. S. Ct. R. 316

         (eff. Dec. 6, 2006).




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