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Lisk v. Benjamin

OPINION FILED MARCH 25, 1982.

NORBERT M. LISK, PLAINTIFF-APPELLANT,

v.

GEORGE BENJAMIN ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Lake County; the Hon. WARREN FOX, Judge, presiding.

JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Petitioner, Norbert M. Lisk, appeals from an order of the circuit court of Lake County dismissing his petition challenging the election of defendant, George Benjamin, to the office of village president of Hainesville. He contends that (1) the trial court considered improper evidence in denying the petition and (2) errors and omissions of the official conducting the election require that it be voided or that petitioner be declared the winner.

An election was conducted by the Lake County clerk on April 7, 1981, to determine the office of village president of Hainesville, and other offices. Petitioner and defendant Benjamin were each candidates for that office. Prior to the election the county clerk's office received applications for absentee ballots from Florence Lisk, Ralph Lisk and James Lisk, who were, respectively, petitioner's daugher-in-law and sons and also from Marvin Rogers, his son-in-law. Each of the applications listed these prospective voters' address as "Rte 1, Box 21B, Grayslake, Illinois." The clerk referred to a street address index kept for that purpose in order to determine the voting precinct represented by the address given, then changed that address to read "121 E. Belvidere Road, Grayslake, Illinois" and noted the voting precinct as "8D."

The street index, however, was in error and the correct precinct for the address listed on the applications for ballot should have been precinct 8A; precinct 8D was, in fact, in the adjoining Village of Grayslake while precinct 8A, where the applicants were alleged to have resided, was in the Village of Hainesville. As a result of this error ballots to be voted in the Grayslake election, also being held at that time, were sent to the four applicants.

The absentee ballots sent to Florence, Ralph and James Lisk were duly returned to the county clerk with the name "Norbert Lisk" entered as a writein candidate for "Mayor" and were delivered to the Grayslake polling place for precinct 8D where they were counted. The absentee ballot sent to Marvin Rogers was not returned to the county clerk for voting. The canvass of the election for the office of village president of Hainesville determined that petitioner received 33 votes, defendant Benjamin received 36 votes, and Benjamin was declared the winner. The returns of the Grayslake election disclosed that petitioner there received three writein votes for the office of mayor of Grayslake.

Petitioner challenged the Hainesville election on the ground that the three absentee ballots voted in the Grayslake election should be counted in Hainesville and he declared the winner or that a tie resulted; he alternatively alleged that the Hainesville election for the office of village president be declared null and void because of errors by the county clerk in conducting it.

Hearings were held on the petitions at which the ballots cast in both elections, the applications for absentee ballots, the canvass of the elections and the street index used by the county clerk were offered by petitioner and admitted into evidence by the trial court. They had all been in the custody of the clerk until produced in court. Attorney Rudolph Magna, who represented Benjamin at the hearing, apparently noticed a similarity in the handwriting on the three absentee ballots as in his cross-examination of petitioner he inquired:

"Q. Looking at the ballots in your hand, Group Exhibit Number 13, does that handwriting that appears on those ballots bear any resemblance to the handwriting of your daughter-in-law Florence?

A. It could be.

Q. And when you say it could be, you looked at all three of these ballots?

A. Yes.

Q. Do you have any personal knowledge of whether or not Florence cast the ballots, those three ballots in Group Exhibit 13?

A. No, I don't."

On one of the days the hearing was being conducted, but at a time when the other parties were not present, Weidenfeld appeared ex parte before the trial judge and requested permission to remove petitioner's exhibits (the applications for ballots and the writein ballots cast) for a hand-writing analysis by an examiner at the Northern Illinois Police Crime Laboratory. His motion was granted and Weidenfeld placed the exhibits in the custody of Joseph J. Lesk, a document examiner for the crime laboratory. They were returned to court on the next day when the hearing reconvened. Subsequently, Lesk testified to his opinion that the three ballots were written in the same hand and that based upon examples of her handwriting that Florence Lisk was the ...


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