Petition for State election contest.
CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
On November 2, 1982, the voters of this State cast their ballots to elect, among other officials, a governor and a lieutenant governor. On November 22, 1982, the State Board of Elections certified the results of the election, which certification showed as to the Republican and Democratic candidates for these offices the following results:
James R. Thompson and George H. Ryan (Republican) 1,816,101
Adlai E. Stevenson and Grace Mary Stern (Democrat) 1,811,027
Thus, the certification revealed that the Republican candidates for governor and lieutenant governor, Thompson and Ryan, had been elected by a plurality of 5,074 votes.
Thereafter on December 7, 1982, within 15 days following certification of the election results, Stevenson and Stern filed with the clerk of this court an action entitled "Petition Of State Election Contest." As required by statute (Ill. Rev. Stat. 1981, ch. 46, par. 23-1.1) the clerk of this court notified the chief justice, who immediately convened the court, and notices of the filing of the petition were mailed by the clerk of the court to all parties required by statute. On December 10, 1982, Thompson and Ryan filed a motion to strike the petition, supported by a memorandum of law, and on December 13, 1982, petitioners Stevenson and Stern filed objections to the motion to strike. This court set the motion to strike and the objections thereto for oral argument and directed the parties to file memoranda in support of their respective positions. Following oral argument on December 21, 1982, the matter was taken under advisement.
The constitution of this State provides that election contests for statewide executive offices "shall be decided by the courts> in a manner provided by law." (Ill. Const. 1970, art. V, sec. 5.) In 1977 the General Assembly enacted Public Act 80-883 (Ill. Rev. Stat. 1981, ch. 46, par. 23-1.1 et seq.). The statute provides that anyone qualified under the statute to contest an election shall, within 15 days of the date of the official proclamation of the results of such an election, file a "Petition Of State Election Contest" with the clerk of this court, together with the filing fee of $10,000. The statute, after providing for the contents of the petition (Ill. Rev. Stat. 1981, ch. 46, par. 23-1.2), which we will discuss later, and notice to the parties (Ill. Rev. Stat. 1981, ch. 46, par. 23-1.3), provides that upon receipt of notification of the filing, the chief justice shall call the court into session and the court, by a majority vote, shall designate three judges of the circuit court to serve as a special panel, which shall be designated as the "State Election Contest Panel." (Ill. Rev. Stat. 1981, ch. 46, par. 23-1.4.) Following the organization of the panel, the statute provides that each candidate in the election contest may become a party to the contest proceeding by entering his appearance or otherwise filing written pleadings in response to the petition. (Ill. Rev. Stat. 1981, ch. 46, par. 23-1.9.) The statute then provides that the three-judge panel shall proceed to hear relevant evidence and shall adjudicate and decide the issues presented in the election-contest petition "on or before the 180th day after the election." (Ill. Rev. Stat. 1981, ch. 46, par. 23-1.10.) All final decisions made by the panel are final judgments of a circuit court. Ill. Rev. Stat. 1981, ch. 46, par. 23-1.10.
We must first consider an issue which was not raised by either Stevenson and Stern or Thompson and Ryan — the constitutionality of the statute involved. Although this issue was not raised, in view of the nature of the proceedings and the public interest involved, failure to raise the constitutional question does not constitute a waiver. (Welton v. Hamilton (1931), 344 Ill. 82; Chicago & Eastern Illinois Ry. Co. v. Miller (1923), 309 Ill. 257.) The question also is one of jurisdiction. Although this court usually will not decide a constitutional issue if the case can be decided on other grounds (People v. Fleming (1971), 50 Ill.2d 141; Exchange National Bank v. Lawndale National Bank (1968), 41 Ill.2d 316) we must do so in this case because the issue affects the legitimacy of the proceedings we are asked to institute.
In fact, it would border on the irresponsible if, believing as we do that the statute is unconstitutional, we permit this election contest to commence. It is hornbook law that an unconstitutional statute is void. (Van Driel Drug Store, Inc. v. Mahin (1970), 47 Ill.2d 378, 381; People ex rel. Barrett v. Sbarbaro (1944), 386 Ill. 581, 590; People v. Schraeberg (1932), 347 Ill. 392, 394; City of Ottawa v. Hulse (1928), 332 Ill. 286, 293.) Nor is our sua sponte consideration of the constitutional issue unprecedented, for in People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill.2d 179, 181, this court on its own initiative considered a constitutional question not raised by the parties and held the governing statute unconstitutional.
In considering the constitutional question we again refer to the provisions of article V, section 5, of the Illinois Constitution of 1970, which provides that election contests "shall be decided by the courts> in a manner provided by law." Thus, under this provision it is the courts> that must decide election contests, and the General Assembly may provide by law for the manner of conducting election contests. This conclusion is supported by the explanation of this provision of the Constitution by the Committee on the Executive at the constitutional convention. The explanation states:
"The legislature will have ample power to define the procedures for determining the actual election results and to specify how contests shall be handled in the courts>. The only limitation on the legislature in enacting laws on that subject will be constitutional provisions, such as those in the Judicial Article dealing with the courts> and their basic character." (Emphasis added.) 6 Record of Proceedings, Sixth Illinois Constitutional Convention 367-68.
Thus, this section of the Constitution does not confer upon the General Assembly the power to create a court or to alter the basic character of a court. The power conferred upon the General Assembly is, as noted above, to provide for the procedure to be followed and the manner of conducting an election contest. Article VI, section 1, of the Illinois Constitution of 1970 provides that the judicial power of the State is vested in a supreme court, an appellate court and circuit courts>. Thus, the courts> in which article V, section 5, of the Constitution vests the power to decide election contests are the courts> created by article VI of our constitution.
In People ex rel. Rice v. Cunningham (1975), 61 Ill.2d 353, this court considered the constitutionality of a death penalty statute which provided that the determination of whether or not the death penalty should be imposed would be made by a three-judge panel. We need not here discuss the rationale of the Cunningham case at length. We note only that it held that the General Assembly did not have the authority to provide that a case be heard by a three-judge panel. The court stated that this is not merely a procedural requirement but rather involves the scope of a circuit judge's jurisdiction. (People ex rel. Rice v. Cunningham (1975), 61 Ill.2d 353, 361.) The court also held that the 1970 Constitution confers no authority on the legislature to create new courts>.
The legislature in the statute now under consideration clearly intended that the three-judge State Election Contest Panel operate collectively as a court. The statute itself provides that the panel shall hear evidence and adjudicate and decide the issues presented and that all final decisions of the panel are final judgments of a circuit court. (Ill. Rev. Stat. 1981, ch. 46, par. 23-1.10.) This is an attempt by the legislature to alter the basic character of the circuit courts>, which the Committee on the Executive stated, in its explanation of this article, that the General Assembly was constitutionally prohibited from doing. Also, the attempt by the legislature to confer authority upon a panel of three circuit judges to act as a court is invalid under the holding of this court in Cunningham. Because of this clear holding that the legislature has no power to act in this manner, we must consider the constitutional question involved in this case although, as stated below, there is another ground upon which the motion now before us can be decided.
Often, if a statute is found to be invalid, the prior statute which it had repealed becomes operative. (Fiorito v. Jones (1968), 39 Ill.2d 531; People v. Fox (1920), 294 Ill. 263.) However, by our holding the statute under consideration in this case invalid, the prior statute governing election contests for offices of State government is not revived. That statute provided that the legislature, in a joint meeting, should decide election contests. (Ill. Rev. Stat. 1969, ch. 46, par. 23-1.) The 1970 Constitution, however, provides that such election contests shall be heard by the courts>. (Ill. Const. 1970, art. V, sec. 5.) It would therefore be constitutionally impermissible to apply the previous law.
In addition, the allegations of the petition do not conform to the statute and the prior decisions of this court and are not sufficient in any event to confer jurisdiction upon the courts> to proceed with this election contest.
The petitioners contend that under the statute this court does not have the authority to entertain the Thompson-Ryan motion to strike the petition. It is petitioners' contention that this court only has the authority to appoint the three-judge State Election Contest Panel and that the Thompson-Ryan motion to strike should be presented to this panel, which would then determine the sufficiency of the petition. We do not agree.
Election contests were unknown at common law and are strictly creatures of statute. A court has no jurisdiction in such cases unless provided by statute. (Young v. Mikva (1977), 66 Ill.2d 579, 582.) In Brown v. VanKeuren (1930), 340 Ill. 118, this court was asked to decide an action under the "Pauper's act," which the court stated was purely a statutory action. The court held:
"The petition required to put the court in motion and give it jurisdiction must be in conformity with the statute granting the right and must show all the facts necessary to authorize it to act, — i.e., it must contain all the statements which the statute says the petition shall state, — and if the petition fails to contain all of these essential elements the court is without jurisdiction." Brown v. VanKeuren (1930), 340 Ill. 118, 122.
Thus, before this court has any authority to act under the statute, a petition sufficient to trigger the application of the statute must be filed. The statute does not specifically confer upon this court the authority to entertain a motion to strike. However, the court has stated "it is the province of the court to determine for itself whether the particular case is one within its jurisdiction." (Fico v. Industrial Com. (1933), 353 Ill. 74, 79; see also People ex rel. Adamowski v. Dougherty (1960), 19 Ill.2d 393, 399.) Since the petition has been filed in this court, we must consider if what has been filed is sufficient to confer jurisdiction under the statute. This court has the inherent power to make this determination even in the absence of a specific grant of statutory authority. The motion to strike filed by Thompson and Ryan is an appropriate method of bringing this issue before the court.
There is a further and very practical reason for entertaining the motion to strike. An election contest of the magnitude of the one sought by the petitioners is necessarily an extremely burdensome, time-consuming and costly undertaking. It could well consume the entire 180 days after election allowed by the statute for its completion. It is a much more efficient use of all the resources that will be involved in such proceedings if the sufficiency of the petition is determined now, before the expenditure of those resources, instead of after an appeal of a decision of a three-judge State Election Contest Panel.
We now address the sufficiency of the allegations in the petition which has been filed in this case. Relevant to the decision of this case are sections 23-1.2(d), (e), (g) and (h) of the statute (Ill. Rev. Stat. 1981, ch. 46, pars. 23-1.2(d), (e), (g), (h)), which provide that the petition shall contain:
"(d) A statement that each petitioner believes (i) mistake or fraud has been committed in the casting, counting or return or canvass of the votes for the office involved or (ii) there was some other irregularity in the conduct of the contested election, or both;
(e) A statement declaring with particularity the specific precincts in which the mistake, fraud or irregularity relied upon by Petitioner was believed to have occurred, or such other grounds relied upon by Petitioner;
(g) A statement declaring that, as a consequence of the mistake, fraud or irregularity alleged, the result of the election, as officially proclaimed was incorrect;
(h) A statement declaring the Petitioner's belief as to which candidate did receive the highest number of votes; * * *."
Paragraph 4 of the petition follows the language of section 23-1.2(d) and states that each petitioner believes that mistake or fraud has been committed in the casting, counting, return and canvass of the votes and that there were irregularities in the conduct of the election. This paragraph of the petition then lists 12 different categories of mistake, fraud or irregularity. Paragraph 5 of the petition alleges that the specific precincts in which mistake, fraud or irregularities are believed to have occurred are set forth in exhibit A and that, in addition to the mistake, fraud or irregularities set forth in exhibit A, petitioners believe that similar instances of mistake, fraud or irregularities occurred in other precincts.
Paragraph 7 of the petition alleges that, as a consequence of the mistake, fraud or irregularities alleged, the officially proclaimed result of the election for governor and lieutenant governor was incorrect. Paragraph 8 alleges that the petitioners believe that Adlai E. Stevenson and Grace Mary Stern received the highest number of votes for the offices of governor and lieutenant governor.
Stevenson and Stern contend that the petition conforms to the requirements of section 23-1.2 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 23-1.2) and that it is therefore sufficient. It is their position that the provisions of this statute control, and not the case law developed through election-contest decisions involving different statutes in cases which we will discuss later. We do not agree that the bare allegations, either parroting or paraphrasing the statute, state sufficient facts to trigger the proceedings under the election-contest statute. (See Vanderbilt v. Marcin (1970), 127 Ill. App.2d 192.) Such allegations constitute only conclusions of the pleader. Thus, the allegations of paragraph 4, which only allege in the language of the statute that petitioners believe mistake or fraud has been committed in the casting, counting, return and canvassing of the votes, and that there were other irregularities, are conclusions of the pleader unsupported by allegations of specific facts. We will discuss the sufficiency of other allegations of the petition later.
Thompson and Ryan, in support of their position that the allegations of the petition are insufficient, rely on this court's decision in Zahray v. Emricson (1962), 25 Ill.2d 121. In that case, an election contest petition had been filed in the circuit court of McHenry County under the provisions of sections 23-19 and 23-20 of the Election Code (Ill. Rev. Stat. 1959, ch. 46, pars. 23-19, 23-20) contesting an election for certain city offices. As stated in the opinion, the amended petition "alleged upon the basis of information and belief that fraud and mistake had occurred in the election in the following respects: That unqualified voters had been permitted to vote in each of the city's four election districts; that ballots included in the official count were not endorsed as required by law; that ballots included in the official count were not marked according to law; that ballots marked according to law were not included in the official count; that the election judges in the four districts did not canvass and tally the votes polled according to law; and that the vote tallies for each candidate, when added together, did not equal the number of votes represented as tallied." (25 Ill.2d 121, 123.) The petition in Zahray "prayed that a recount be made of the votes cast for each councilman in each district, and that the persons who should appear as elected should be declared as elected." (25 Ill.2d 121, 123.) The trial court denied a motion to dismiss the amended petition. An answer was then filed denying the irregularities. At the close of plaintiffs' proof, the trial court dismissed the petition on the ground that the plaintiffs had not made out a prima facie case. On review, this court stated:
"While we are in accord with the result reached by the trial court, it is our opinion that the cause should have been dismissed for the insufficiency of the plaintiffs' petition." (Zahray v. Emricson (1962), 25 Ill.2d 121, 123.)
Although Zahray came to this court following a partial hearing of evidence and a dismissal for failure of the plaintiffs to establish a prima facie case, it nonetheless is a clear holding on the question of the sufficiency of the allegations of the petition. In Easdale v. Sparta Community School District (1963), 29 Ill.2d 554, this court stated that the court in Zahray "in approving the result, [dismissal at the close of the plaintiffs' proof] held that the cause should have been dismissed for insufficiency of the complaint." (Emphasis added.) (Easdale v. Sparta Community School District (1963), 29 Ill.2d 554, 557.) Thus the decision in Zahray was and has been held by this court to be a holding on the sufficiency of the complaint and not a holding on the sufficiency of proof to establish a prima facie case.
In discussing the sufficiency of the allegations in an election contest case, this court stated in Zahray:
"Equally certain is the principle that the proceeding cannot be employed to allow a party, on mere suspicion, to have the ballots opened and subjected to scrutiny to find evidence upon which to make a tangible charge. [Citations.] And while the pleadings in contest proceedings are not required to comply with the strict technical rules applicable in civil actions, there should be such strictness as will prevent the setting aside of the acts of sworn officials without adequate and well defined cause. [Citations.] Stated otherwise, there should be no reason for a recount of the votes unless there is a positive and clear assertion, allegation or claim that such a recount will change the result of the election." (Emphasis added.) Zahray v. Emricson (1962), 25 Ill.2d 121, 124.
Stevenson and Stern contend that Zahray does not require that the allegations of fact in the petition be such that if proved the court would be required to declare the petitioners the winners. They contend that Zahray requires only that the petition contain either an allegation that the results of the election would be changed by the alleged irregularity, or that there must be allegations of fact which show such results. Stevenson and Stern contend that their petition, in paragraph 7, alleges that as a consequence of the mistake, fraud or irregularities alleged the official result was in error. They further contend that since in paragraph 8 of the petition they state that they believe they received the highest number of votes, the petition complies with the alternative expressed in Zahray. Stevenson and Stern point to language from another part of the Zahray opinion and have placed a construction on it that is inconsistent with the plain language on this question which is stated in the italicized part of that opinion quoted above. That holding is that there must be "a positive and clear assertion, allegation or claim that such a recount will change the result of the election." (Zahray v. Emricson (1962), 25 Ill.2d 121, 124.) The allegations of paragraphs 7 and 8 of the petition that the official results were incorrect and that the petitioners believe that they received the highest number of votes do not come close to being "positive and clear assertion[s]" that a recount will change the result of the election. They amount to little more than an expression of hope.
Section 23-1.2(h) requires that the petition contain "[a] statement declaring the Petitioner's belief as to which candidate did receive the highest number of votes." The language of the statute does not obviate the necessity for positive and clear allegations of fact in the petition supporting such conclusions but rather supports and is consistent with the requirement that the facts upon which the belief is based be set forth with particularity.
In McCaslin v. Moore (1966), 67 Ill. App.2d 355, the court reviewed a case under section 23-20 of the Election Code (Ill. Rev. Stat. 1963, ch. 46, par. 23-20). The court, relying on Zahray, held that, in addition to the requirement of the statute, the petition must contain the allegations held essential in Zahray, stating:
"This rule will eliminate the proliferation of unjustified and inconsequential election contests which would otherwise waste the court's time and do damage to our democratic creed." (McCaslin v. Moore (1966), 67 Ill. App.2d 355, 358.)
The pleading requirements of Zahray were restated in Louden v. Thompson (1971), 1 Ill. App.3d 809, 811-12. The court in that case stated:
"Under the circumstances the only conclusion which can be drawn is that the petitioner `hoped' to discover errors or mistakes in a recount which might be favorable to her. Such a reason is not an appropriate basis for a recount." 1 Ill. App.3d 809, 812.
In Smith v. Stewart (1973), 14 Ill. App.3d 1039, the court considered an appeal from the dismissal of a complaint contesting an election for aldermen in the city of Chicago. The court followed the holding in Zahray. In Savage v. Frost (1973), 14 Ill. App.3d 1036, the same court, in another contest of the election of an alderman in the city of Chicago, followed Zahray and affirmed the dismissal of the election contest petition.
In Cooper v. Marcin (1976), 44 Ill. App.3d 918, the trial court had dismissed a complaint filed pursuant to article IX, section 17, of the Liquor Control Act (Ill. Rev. Stat. 1973, ch. 43, par. 182), contesting local-options elections. The court, following Zahray, held the complaints were properly dismissed. See also ...