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Likens v. Baas

OPINION FILED APRIL 26, 1985.

DENISE M. LIKENS, PLAINTIFF-APPELLEE,

v.

ROGER J. BAAS ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Joseph Schneider, Judge, presiding.

JUSTICE PINCHAM DELIVERED THE OPINION OF THE COURT:

Defendants Anton Rous and Doroteja Rous lived in the 29th precinct of the 1st ward of Countryside. Their polling place for the April 12, 1983, municipal election was at the Ideal School on 58th Street, which was also the polling place for the 90th precinct of the 3d ward of Countryside.

On election day, the Rouses arrived at the 29th precinct, 1st ward, polling place, and produced their voter registration cards, which indicated they were to vote at that polling place. The election judges told them, however, that their names were not in the county clerk's binder for the 29th precinct, 1st ward. The election judges sent the Rouses across the hall to the 90th precinct, 3d ward, polling place. The Rouses' names were not found in the county clerk's binder for the 90th precinct, 3d ward, and they were sent back across the hall to the 29th precinct, 1st ward, polling place. The 29th precinct election judges again directed the Rouses to return to the 90th precinct, 3d ward, polling place and when they returned, their names were found in the 90th precinct, 3d ward, binder.

Although the Rouses resided in the 29th precinct of the 1st ward, their names appeared in the registration binder of the 90th precinct of the 3d ward because of the redrawing of ward boundaries in Countryside pursuant to a September 22, 1982, city ordinance.

Plaintiff Denise M. Likens and defendant Roger J. Baas were aldermanic candidates in the 1st ward Countryside municipal election. Baas ran as a candidate of the Independent Party of Countryside. Neither Baas nor Likens was a candidate on the 3d ward ballot. Willard L. Schuessler and Jeffrey R. Shepler were the aldermanic candidates in the 3d ward. Although the official ballots are not a part of the appeal record, the parties agreed during oral argument before this court that the names of the aforementioned aldermanic candidates appeared on the ballots in the precincts and wards in which they were candidates.

The Rouses did not attempt to change their polling place from the 3d ward, 90th precinct, to their correct 1st ward, 29th precinct, polling place. Instead, they cast their 3d ward, 90th precinct, ballots at that precinct polling place.

The official canvass of the election results revealed that Denise M. Likens was the 1st ward aldermanic winner over Roger J. Baas by the narrowest of margins, one vote, 404 to 403. Likens was declared elected to that office, and on April 27, 1983, she received her certificate of election, was administered the oath and undertook the duties of the office. Her aldermanic tenure was short-lived.

The day following the election, Carl W. LeGant, the successful Countryside mayoral candidate in the April 12 election, and Countryside alderman Joseph Fajdich visited the Rouses in their home. Mayor LeGant and Alderman Fajdich, both members of the Independent Party of Countryside, pointed out to the Rouses that their failure to vote in the 1st ward aldermanic contest allowed Denise M. Likens to win and caused the Independent Party of Countryside candidate Roger J. Baas to lose the 1st ward aldermanic contest by one vote. Mayor LeGant and Alderman Fajdich requested the Rouses' assistance to rectify Baas' defeat.

On May 16, 1983, the Rouses and defeated 1st ward aldermanic candidate Roger J. Baas filed a petition for election contest with the Countryside city council. The petition in essence alleged the above-mentioned facts and circumstances of the Rouses' voting in the 90th precinct, 3d ward, instead of in the 29th precinct, 1st ward. The election contest petition further alleged that although the Rouses intended to cast a straight vote for the Independent Party of Countryside in precinct 29, ward 1, "which vote would have included a vote for the candidacy of Roger J. Baas," the Rouses "each cast a straight vote for the Independent Party of Countryside in Precinct 90, Ward 3." The petition pointed out that Roger J. Baas lost the 1st ward aldermanic election to Denise M. Likens by one vote. The petition did not allege fraud or an erroneous computation of the ballots cast, nor did the petition pray for a recount of the ballots. Instead, the petition prayed the Countryside city council to withdraw two votes that were cast for 3d ward aldermanic candidate Willard L. Schuessler, recast them for 1st ward aldermanic candidate Roger J. Baas, and declare Baas the winner of the 1st ward aldermanic race.

On May 19, 1983, Denise M. Likens, the previously declared and installed 1st ward aldermanic winner, filed with the Countryside city council a motion to dismiss the Rous and Baas petition for election contest. On May 23, Likens also filed a complaint for declaratory judgment in the circuit court of Cook County to enjoin the Countryside city council from hearing the election contest. Likens' request for a preliminary injunction was denied, and her complaint for declaratory judgment was dismissed. Likens then filed with the Countryside city council a supplemental motion to dismiss the petition for election contest, which along with the original motion to dismiss, asserted that the petition for election contest "was insufficient in law to confer jurisdiction on the city council to hear the subject matter." The city council denied Likens' dismissal motions on June 2, 1983.

On August 5, 1983, the Countryside city council conducted an evidentiary hearing on the Rous-Baas petition for election contest. The assistant director of elections for the Cook County clerk testified that his voter registration records for the Rouses in the 3d ward, 90th precinct, were erroneous and that the Rouses should have been registered in the 29th precinct of the 1st ward.

The Rouses testified at the hearing that they cast a straight Independent Party of Countryside ballot in the 90th precinct of the 3d ward in the April 12 municipal election but that they would have voted the straight Independent Party of Countryside ballot in the 1st ward had they voted there. Anton Rous testified that he knew he had voted in the wrong ward. Doroteja Rous testified that she voted as she wanted on election day.

According to Likens, as stated in her brief to this court:

"At the conclusion of the [Countryside city council] hearing, a typewritten decision stating that the City Council had heard the evidence was read by Alderman Schuessler, the IPOC [Independent Party of Countryside] aldermanic candidate elected in Ward 3. Alderman Blazina questioned whether the decision was prepared prior to the hearing since no recess occurred for the preparation of the decision and since Alderman Schuessler mistakenly started reading the decision before plaintiff presented any evidence. Alderman Blazina's questions were never answered and the city council refused to make the document a part of the record."

Likens predicated the foregoing on the following excerpt of the evidentiary hearing and proceedings before the Countryside city council on August 5, 1983:

"MR. PECK [attorney for the city of Countryside]: Any rebuttal.

MR. PONTIKES [attorney for the Rouses and defeated 1st Ward aldermanic candidate Baas]: * * *. It is absolutely clear, it is not contradicted that the Rouses were going to go in to cast a straight party vote with the independent party of Countryside. They intended to do it in Precinct 29, Ward 1. They went to Precinct 90, Ward 3. All we're doing is asking that the vote be recorded where it should have been recorded. We all know it happened that way. It was a mistake in the office of the County Clerk. It should now be corrected. On that basis, we ask [that the] petition be granted.

MR. PECK: Thank you, gentlemen. At this point, I believe that my function has been completed. So, I will turn the rest of the hearing over to the Mayor and to the Council.

MAYOR LE GANT: This is a mayoral declaration to make a decision at this time. I will entertain the —

ALDERMAN SCHUESSLER: Mr. Mayor, Council heard the evidence. * * *. I move that Petitioners, Anton Rous, Doroteja Rous and Roger Baas has [sic] proven their allegations in [their] petition for election contest and that the two straight votes for the independent party of Countryside cast by Mr. and Mrs. Rous in Ward 3 be transferred to Ward 1 decreasing the total vote by Willard Schuessler of Ward 3 by two and increasing the total number of votes received by Roger Baas by Alderman of Ward 1 by two and that Roger Baas be declared to have been elected as Alderman of Ward 1 at April 12, 1983, City of Countryside election.

MAYOR LE GANT: Is there a second to the motion?

[ALDERMAN] FAJDICH: Second the motion.

MAYOR LE GANT: Any discussion?

ALDERMAN BLAZINA: Yes, I would like to question a member of the Council about a prepared statement saying this Council has discussed or heard any of —

[ALDERMAN] SCHUESSLER: I prepared it right here.

ALDERMAN BLAZINA: I'm asking how you possibly could have prepared a statement already made up when we haven't heard the testimony and decide from the last three hours and you haven't been out of this room approximately —

[ALDERMAN] SCHUESSLER: I prepared it right here.

MR. GIERACH [attorney for Denise M. Likens]: It's typewritten and I would ask that it be introduced into evidence and erroneously read into the record because I looked ...


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