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The Law: When Do We Vote?

Sawyer v. Evans, round three: a case study in how lawyers can make a complicated mess out of something that ought to be simple.



The case now before the Illinois Supreme Court is called United Citizens of Chicago and Illinois v. Coalition to Let the People Decide in 1989, but it really should be called Sawyer v. Evans, round three.

Eugene Sawyer won round one last December, when the City Council adversaries of Harold Washington, aided by a few black aldermen, elected him acting mayor. Alderman Timothy Evans won round two this March, when staunch Sawyer allies such as Alderman Bill Henry were denied reelection as ward committeemen.

And by the time you read this or soon thereafter, Evans will in all likelihood have won round three, by persuading the state's highest court to require a new mayoral election in 1989, not in 1991 as Sawyer would prefer.

After a century of legal history during which several Chicago mayors have died in office, you might think that by now the law would clearly specify when the mayoral election should be held. But you would be wrong. The labyrinth of Illinois laws governing such special elections is a case study in how lawyers can make a complicated mess out of what ought to be simple.

The prime statutory culprit is the mayoral vacancy law in the Illinois Municipal Code. It provides that "if a vacancy occurs in the office of the mayor of a city with a four-year term, and there remains an unexpired portion of the term of at least 28 months, and the vacancy occurs at least 130 days before the general municipal election next scheduled under the general election law, the vacancy shall be filled at that general municipal election."

Since Mayor Washington died with more than 28 months remaining in his term (actually about 41 months), and more than 130 days before the next general municipal election, the mayoral vacancy must be filled at the next general municipal election. Until then, Chicago has no mayor--only an acting mayor, which is all the City Council had the power to elect last December.

But when is the next "general municipal election"? In 1989, when municipal elections are held in many other municipalities in Illinois? Or in 1991, when the next general municipal elections in Chicago will take place?

The answer is clear enough to the Coalition to Let the People Decide in 1989--a surrogate gladiator for Alderman Evans, who would very much like to run against Sawyer while the memory of Sawyer's December treachery is still fresh in the minds of Harold Washington's constituency.

Last March the coalition asked the Chicago Board of Elections to set a mayoral election in 1989. In early April the board met but failed to decide when the election should be held.

The coalition, joined by 2nd Ward Alderman Bobby Rush, 24th Ward Committeeman Jesse Miller, and west-side activist Nancy Jefferson--Evans allies all--thereupon sued the Board of Elections in Cook County Circuit Court. Evans owns up to having helped raise money to fund the lawsuit.

Then along came Kenneth Hurst and the United Citizens of Chicago and Illinois. Who? Kenneth Hurst, former 39th Ward Republican committeeman, unsuccessful Republican candidate for mayor (in 1987), and well-heeled Saginaw businessman (real estate and insurance), is founder of the United Citizens, whose other members are even less well known than he.

Hurst professes to worry about the "money that's going to be blown on this special election for a small group of people that want to dislodge this mayor against whom they have an ax to grind." Acting strictly as a "private citizen," and together with his United Citizens, Hurst sued the city (and state) Board of Elections to prevent any mayoral election in 1989, and to declare that the election should be held in 1991 instead.

Was Hurst merely a surrogate gladiator for the Republican party? "Absolutely not," he told me twice; he's never even discussed the case with county Republican chair Jim Dvorak or his predecessor Donald Totten. In fact, Hurst doesn't "give two whoops in hell what happens to either one of them."

Nor is born-again Republican Edward Vrdolyak behind Hurst's lawsuit. A Vrdolyak ally, one Tom Corcoran, unseated Hurst from his committeeman post in the last election. "Vrdolyak and I," says Hurst, "would never get along. In my estimation he's through."

Hurst blames Dvorak and Totten for allowing a slate of "Democratic rejects" to run as Republicans in last week's county elections, and he blames Vrdolyak for being one of them. In his view their transparent posing accounts for the county Republicans' "crashing defeat."

Why, then, is citizen Hurst so bent on blocking an early election? After all, while he won't divulge the exact cost of his lawsuit, he admits that his attorney's fees are already in the ballpark of $10,000 or higher, and "we're not through yet."

The answer, he says, is that he's a "principled individual. When I feel the laws are not being complied with, I'll be there."

Unfortunately for Mr. Hurst, who is himself pondering another run for mayor, principled individuals sometimes finish last. His lawsuit was quickly rebuffed. On the eve of the court hearing in May, the city Board of Elections ruled that the mayoral vacancy law requires an election next year. It set February 28, 1989, for the primary and April 4 for the general election. A few days later, Circuit Court Judge Eugene Wachowski upheld the board and dismissed Hurst's suit. Judge Wachowski relied on a combination of logic, precedent, legislative history, and the language of another provision in the Municipal Code to rule that the next "general municipal election" in the mayoral vacancy statute refers to 1989 and not 1991. Considered individually, the points he cited were not as sharp as the ones lawyers ordinarily like to hang their hats on. For example, in two prior cases involving special elections--one to replace 44th Ward Alderman Bruce Young, who resigned in 1980, and another to replace a Springfield city commissioner who also resigned--the courts had ordered interim elections without waiting until the end of the four-year terms. But each case turned on other legal questions, and the courts had not specifically discussed the timing matter at issue now. Similarly, the legislative history cited by Judge Wachowski--statements by two opponents of the bills at issue--was weaker than lawyers usually like; normally the explanation of a bill by one of its sponsors, preferably the chief sponsor, is given greater weight.

Nonetheless the combination of reasons given by Judge Wachowski, considered overall, was persuasive. Moreover, his conclusion appears to be correct for yet another reason, later cited by the 1989 coalition's lawyers in their appellate brief: Another provision of the Illinois Municipal Code specifically defines "general municipal election"--the same term used in the mayoral vacancy law--as the "biennial regularly scheduled election for the election of officers of cities . . . as prescribed by the general election law . . ." By definition, then, the next such "biennial" election would occur two years after the 1987 mayoral election.

To the surprise of some observers, Hurst appealed his loss on an expedited basis to the state supreme court, whose decision we await. His prospects, however, appeared dim in view of the foregoing, especially in light of the argument that public policy ought to favor allowing Chicagoans to elect their mayor directly without having to abide the indirect vote of the City Council for another three years.

Throughout the legal battles before the Board of Elections and the circuit court, Eugene Sawyer maintained a discreet silence. On other issues he might be Mayor Mumbles; on this one he was--and still is--Mayor Mum, As much as he might wish to defer his day of reckoning until 1991, he could not risk suing to block a 1989 election, for fear of angering voters even more.

But lo, when the case reached the state's high court this summer, a miracle occurred. Along came a guardian angel to bless Hurst's legal case and to offer a prayer for Mayor Mum.

The angel was called the Coalition for a 1991 Election, whose friend-of-the-court brief described itself as an ad hoc public interest association of Chicago voters "dedicated to adherence to the statutory electoral process."

Majestic as may be our electoral statutes, this new coalition was plainly inspired by something more. While Mayor Mum continued his effort to stay at a deniable distance, his fingerprints on the 1991 coalition were not hard to discern. There on its roster appeared the names of such surrogates as the Reverend Al Sampson and Dorothea Washington, who was recently dispatched by Sawyer to serve as CHA security chief. And the 1991 coalition was represented by the law firm of Jones, Ware & Grenard, which has done a lot of business with the city under the auspices of our acting mayor.

The new coalition brought in not only new lawyers, but also a new legal theory, one so superficially attractive that Hurst's lawyer, on appeal, adopted it as his own, all but abandoning the losing arguments he had presented earlier. The Illinois Municipal Code, it seems, has certain provisions dealing specifically with Chicago, which take precedence over any inconsistent provisions of the statewide code. One of the provisions specific to Chicago is the vice-mayor law, passed in 1977 in the wake of the confusion over who was supposed to succeed Mayor Daley upon his death in December 1976. Until Michael Bilandic was elected acting mayor by the City Council, there had been turmoil for several days, with Kenneth Sain, the deputy mayor, and Wilson Frost, the City Council president pro tem, both claiming to be mayor for the moment.

To forestall a repetition of this spectacle, in 1977 the Illinois General Assembly created the new post of vice mayor for Chicago. The vice mayor's sole duty is to serve as interim mayor in the event of the death or disability of the elected mayor. When Mayor Washington passed away last November 25, Vice Mayor David Orr held the mayoral reins for a brief period until Sawyer was elected acting mayor.

The vice-mayor law is understandably silent on the question of how long the acting mayor is to serve. But it does provide that the vice mayor "will serve until the City Council shall elect one of its members acting mayor or until the mayoral term expires." So, say the lawyers representing the 1991 coalition, if the vice mayor, who is even more temporary than the acting mayor, can serve until the mayoral term expires, shouldn't the acting mayor have the same right?

By itself this contention was not likely to shake Evans's lawyers in their wingtips. The plain and simple fact is that the vice-mayor law says nothing about how long the acting mayor will serve, while the mayoral vacancy law does, and it requires an election next year for the reasons already explained.

But Mayor Mum's lawyers had a little something extra in their briefcases. The vice-mayor law had been sponsored by Michael Holewinski, who was then a state representative. In a 1977 floor speech supporting his bill, Holewinski had explained that "what the effect will be is that upon the death or disability of a mayor the vice mayor will act as interim mayor until the City Council meets to elect amongst its members a member who will serve out the remainder of the term until the next election."

Now this sent Evans's lawyers scrambling. On a fair reading this statement by the bill's sponsor appeared to sanction the argument that Sawyer should "serve out the remainder of [Harold Washington's] term until the next election."

Still, it was not the law, only a floor speech. While floor speeches can help explain a law, they cannot rewrite it. Moreover, this floor speech was also ambiguous: the term "next election" in Holewinski's statement could be interpreted to mean the next general municipal election as spelled out in the mayoral vacancy law, which would mean 1989, not 1991.

Nonetheless, this was not something to be ignored. The Evans forces responded with a friend-of-the-court brief and a sworn affidavit from Mr. Holewinski himself (who had gone on to serve as a top aide to Mayor Washington). The vice-mayor law had never been intended to do anything more than solve the problem of who serves as interim mayor until the acting mayor is elected, Holewinski explained in his brief. "Any inference to the contrary drawn from comments I made in connection with this bill is simply an incorrect interpretation of those comments."

So much for the 1991 coalition's best argument.

The basic flaw in the argument does not appear to have escaped the supreme court's notice. At the oral argument in September, several judges pressed Mr. Hurst's lawyer on whether anything in the vice-mayor law purports to govern the length of the acting mayor's term.

Evans thus must be rated the odds-on favorite to best Sawyer in round three. A decision is expected this week or next. Whichever way it comes down, you can bet that Mayor Mum will be too modest to take any of the credit.

Art accompanying story in printed newspaper (not available in this archive): illustration/Tony Griff.

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