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Torres v. Board of Election Commissioners





Appeal from the Circuit Court of Cook County; the Hon. Eugene L. Wachowski and the Hon. Joseph Schneider, Judges, presiding.


Rehearing denied April 16, 1986.

On March 18, 1986, there was a special aldermanic election in the city of Chicago in which the plaintiff, Manuel A. Torres, and the defendant, Luis V. Gutierrez, were candidates for the office of alderman in the 26th ward. According to the raw vote totals announced by the board of election commissioners for the city of Chicago and the canvassing board, Gutierrez was the apparent winner of that election. On March 21, 1986, Torres filed a complaint in the circuit court of Cook County seeking, among other things, to enjoin the board of election commissioners and Stanley T. Kusper, county clerk for Cook County, from certifying Gutierrez as the winner. The matter was heard before Circuit Court Judge Eugene Wachowski. Torres alleged that there were certain voting irregularities, the most significant being that the polls were open beyond the voting times directed under the Election Code, 6 a.m. to 7 p.m. Ill. Rev. Stat. 1985, ch. 46, par. 17-1.

On election date at approximately 5:30 p.m., James P. Chapman, appeared before circuit court Judge Joseph Schneider and based upon certain representations, but without notice to his opponent Torres, obtained a mandatory injunction requiring that the polling places in five precincts of the 26th ward remain open until 9 p.m., two hours beyond the ordinary closing time. Chapman alleged that this action was necessary due to the fact that those polls did not open in a timely fashion at 6 a.m. After hearing additional testimony and evidence with respect to the petition for injunctive relief, Judge Wachowski denied Torres' request. This appeal is taken from that denial. In addition, the order of Judge Schneider requiring that the polls remain open is also being appealed and will be considered as the second issue in this appeal.

• 1, 2 Gutierrez makes several contentions concerning this appeal, among them that the trial court acted within its discretion in denying Torres' request for preliminary injunctive relief. With this contention we agree. A preliminary injunction may be issued if the plaintiff proves, by a preponderance of the evidence, that (1) he possesses a certain and clearly ascertained right which needs protection; (2) he will suffer irreparable injury without the protection of the injunction; (3) there is no adequate remedy at law for the injury; and (4) he is likely to be successful on the merits. (Baal v. McDonald's Corp. (1981), 97 Ill. App.3d 495, 499, 422 N.E.2d 1166.) We believe the plaintiff has failed to prove the inadequacy of the remedy at law and also has failed to prove a likelihood of success on the merits.

There is a remedy at law in this case which precludes the granting of the extraordinary remedy of injunctive relief. (City of Chicago v. Festival Theatre Corp. (1982), 91 Ill.2d 295, 312, 438 N.E.2d 159.) The plaintiff in his brief on appeal from Judge Wachowski's order specifically requests this court to order a supplementary election and enjoin the certification of Gutierrez. A new election, however, is precisely the relief obtainable in an election contest under the statute, section 21-27 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 21-27). That section provides that any candidate may contest the election for alderman within five days after the election by filing a complaint setting forth the grounds. The circuit court of Cook County will then have jurisdiction to conduct hearings and determine whether the candidate who appears to have been elected was in fact elected. If that candidate was not in fact duly elected, a supplementary election shall be conducted as provided for in section 21-26 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 21-26).

Not only is there a remedy at law, the Illinois courts have consistently stated that an election contest was unknown at common law and is strictly a creature of statute. (In re Contest of Election for Governor (1983), 93 Ill.2d 463, 474, 444 N.E.2d 170; Young v. Mikva (1977), 66 Ill.2d 579, 363 N.E.2d 851.) Election contests under statute have been the subject of litigation in the courts for at least a century, during which time an entire body of case law has developed to explain the law of election contests. (See, e.g., People ex rel. Cummings v. Head (1861), 25 Ill. 325; Cleland v. Porter (1874), 74 Ill. 76; Smiley v. Lenane (1936), 363 Ill. 66, 1 N.E.2d 213; Whitley v. Frazier (1961), 21 Ill.2d 292, 171 N.E.2d 644; Young v. Mikva (1977), 66 Ill.2d 579, 363 N.E.2d 851; In re Contest of Election for Governor (1983), 93 Ill.2d 463, 444 N.E.2d 170.) Torres, however, would have the circuit court, under the guise of its equitable powers, overturn the election solely on the contention that the circuit court erroneously extended the voting hours from 7 p.m. to 9 p.m. on election day. This request and the suggestion on appeal that the electoral process was hopelessly and irretrievably tainted cannot supplant this body of law. The separate matter consolidated with this appeal, the ruling of Judge Schneider extending the polling hours, even if it were found to be improper, is not sufficient to overcome the fact that the statutory electoral contest is the proper way to proceed. The decision as to the propriety of Judge Schneider's ruling is simply a fact that will have to be considered in the election contest. Additionally, we note that Torres has filed a separate suit under the election-contest statute seeking the same relief as that sought here. It would seem patent that both of these causes of action may not subsist side by side.

While there is a remedy at law, Torres contends that that remedy is inadequate. He argues that it is inadequate because an election contest will take quite some time, and he needs the injunctive powers of the court to prevent Gutierrez from being certified by the election board and assuming office. As to the time argument, the statute specifically provides that the election contest is to proceed with expedition. Ill. Rev. Stat. 1985, ch. 24, par. 21-27, in conjunction with Ill. Rev. Stat. 1985, ch. 46, par. 7-63.

• 3 As to the contention that Torres needs the aid of the court to issue an injunction, it must be reiterated that election contests are matters of statutory law rather than common law. As such, the Illinois General Assembly has detailed the procedures to be followed and the rights to be afforded in election-contest proceedings. Clearly absent from the statute, however, is any provision for the granting of the type of injunctive relief sought by Torres. Thus, to grant Torres' request would require that this court judicially amend the Election Code. Such judicial legislation, we believe, is beyond the duty and power of this court. Moreover, the possible consequences of providing for injunctions could mean that during the course of an election contest, a person who was the apparent winner according to the electoral board would be prevented from assuming office and the predecessor who presumably lost would still hold office. In another situation, if there was a vacancy in the office, the citizens in that governmental unit would be required to go without any representation. We believe that these concerns foreclose this court from using its equitable powers in aid of the statute. Consequently, the plaintiff has failed to prove that the remedy at law is inadequate.

As to the contention of Gutierrez that there is no probability of success on the merits, the previous comments are directly implicated. Specifically, there is no probability of success on the merits because the ultimate relief requested by Torres, a supplemental election, could not properly be granted by the trial court outside the strictures of the election-contest statute.

• 4 The second issue in this appeal stems from Torres' appeal from the order entered on March 18, 1986, by Judge Joseph Schneider mandating that the polls in the five precincts in the 26th ward remain open until 9 p.m. Torres filed a notice of appeal from that order on March 27, 1986. Because of the exigencies of the matter, on March 27, 1986, plaintiff requested that the appeal from the order of Judge Wachowski be consolidated with the appeal from Judge Schneider. On March 31, 1986, this court granted the order of consolidation. On April 1, 1986, Gutierrez filed an objection to the motion to consolidate, along with a motion to dismiss the appeal. The motion to dismiss the appeal was denied, and a majority of this court reaffirmed the order of consolidation. While all parties were anxious to expedite this matter, we find that the record in this case is inadequate and the briefs do not properly present the issues sufficiently for this court to rule upon. As a result, the Schneider appeal must be dismissed without prejudice. Bank of Ravenswood v. Maiorella (1982), 104 Ill. App.3d 1072, 1074, 433 N.E.2d 1044; In re Marriage of Snow (1980), 81 Ill. App.3d 1148, 1149, 401 N.E.2d 1352.

Supreme Court Rules 341 through 343 (87 Ill.2d Rules 341 through 343) provide for the filing of an adequate brief and record in order for the appellate court to consider the issues on appeal. In this case, the record consists only of the notice of appeal from Judge Schneider's order, the order itself, and Chapman's petition for mandatory injunction. Although in the briefs accompanying the appeal from Judge Wachowsi's order Torres questions the propriety of Judge Schneider's ruling, there have been no briefs submitted to this court setting forth legal arguments with specific regard to Judge Schneider's order. Without a statement of facts, points and authorities, cohesive legal argument or an adequate record, an informed review of Judge Schneider's order by this court is impossible. (Wilson v. Continental Body Corp. (1981), 93 Ill. App.3d 966, 969, 418 N.E.2d 56.) This court needs and is entitled to have briefs submitted that are articulate and present organized and cohesive legal argument in accordance with the applicable supreme court rules. (In re Marriage of Souleles (1982), 111 Ill. App.3d 865, 869, 444 N.E.2d 271.) Without such, the appeal from Judge Schneider's order must be dismissed without prejudice.

For the foregoing reasons, the order of Judge Wachowski if affirmed and the appeal from the order of Judge Schneider is dismissed without prejudice. *fn1

JIGANTI, J., concurs.

JUSTICE McMORROW, dissenting:

For the reasons set forth more fully below, I respectfully dissent from the decision of the majority.

The case at bar represents a consolidation of two appeals from interrelated orders of the circuit court of Cook County pertaining to the validity and regularity of the special aldermanic election held in the 26th ward of the city of Chicago on March 18, 1986. One appeal, taken by Torres, a candidate for alderman in the ward election, seeks review of the orders of the trial court which extended voting hours in certain precincts of the ward and directed sequestration of votes cast during this extension of polling time. For the sake of clarity, I will refer to these orders of the trial court as the "voting hours orders" and the appeal from these orders as the "voting hours appeal."

The second appeal at issue here, also instituted by Torres, seeks review of the trial court's later denial of his motion for a preliminary injunction. This motion sought to restrain the Chicago board of election commissioners (the board) from certifying Gutierrez as the elected alderman for the 26th ward. Torres sought the preliminary injunction so that the status quo could be preserved until the trial court ruled upon his underlying complaint for injunctive relief. This pleading challenged the validity of the election because of the alleged wrongful issuance of the voting-hours orders, the board's allegedly wrongful removal of 50 persons from the roll of registered voters in the ward prior to the election, and the allegedly illegal voting of one individual in the ward when that individual did not reside in the ward. For the sake of clarity, I will refer to the trial court's order which denied Torres' motion for preliminary injunction as the "preliminary injunction order" and the appeal from this order as the "preliminary injunction appeal."

In my view the majority's dismissal "without prejudice" of the appeal from the voting-hours orders is erroneous because adjudication of the voting-hours appeal is crucial to a full understanding and well-reasoned disposition of the appeal from the preliminary injunction order; severed consideration of the preliminary-injunction appeal alone is likely to lead to an implicit adjudication of the merits of the voting-hours appeal, which is what the majority decision accomplishes; and the more appropriate method to remedy the majority's perceived deficiencies in the record and briefs regarding the voting-hours appeal would be to direct the parties to supplement the record and briefs, rather than to dismiss the entire appeal with the oblique remark that dismissal is "without prejudice" as the majority does here.

I also disagree with the majority's affirmance of the preliminary-injunction order. The majority's decision concludes, in essence, that Torres' motion for a preliminary injunction was properly denied by the trial court because his sole and exclusive remedy is a statutory election-contest action. In my estimation this legal determination is in error because it misconstrues Illinois Supreme Court precedent regarding the scope of an election-contest action, ignores Illinois Supreme Court case law which may recognize the right to challenge the validity of an election under legal ...

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