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05/18/87 Dennis Keating Et Al., v. Mike Iozzo Et Al.

May 18, 1987

DENNIS KEATING ET AL., PETITIONERS-APPELLEES

v.

MIKE IOZZO ET AL., RESPONDENTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

508 N.E.2d 503, 155 Ill. App. 3d 774, 108 Ill. Dec. 342 1987.IL.642

Appeal from the Circuit Court of Du Page County; the Hon. John A. Darrah, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. WOODWARD and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

Respondents appeal from a trial court ruling which reversed a decision of the local electoral board and ordered petitioners' names to be placed on the ballot for the Villa Park municipal election to be held on April 7, 1987. Respondents assert that the trial court erred in finding that objections to petitioners' nominating papers were not filed on time and that the nominations were thus valid.

Petitioners timely filed nominating petitions for the office of village trustee. Respondent Iozzo subsequently filed objections to petitioners' nominating papers. The municipal officers electoral board of the village of Villa Park (board) convened on February 11, 1987, to hear the objections. At the outset of the proceedings a motion was made by petitioner Mieszcak to cancel the hearing on grounds that the objections were not filed on time and the board thus lacked jurisdiction.

Evidence was heard on the motion which indicated that on February 2, 1987, the undisputed final date for filing objections, the village clerk was in her office at the village hall to receive objections only between the hours of approximately 10:30 a.m. and 12 noon. Around 10:50 a.m. she called all the candidates, including objector Iozzo, and informed them that she would be available only until noon. Iozzo told her he would be filing his objection at 3 p.m. According to Iozzo's testimony, the clerk responded, "Okay" but did not indicate she would be present at that time to accept his objections. There was some evidence that the village hall itself was open all day that day.

Iozzo appeared at the village hall shortly after 3 that afternoon, but the village clerk was not in her office. Nor was there a deputy clerk available. Thus, candidate Iozzo was not able to file his objections until the following day.

On these facts the board found that the objector had attempted to file during business hours on February 2, 1987, but was unable to do so due to misfeasance on the part of the village clerk. Business hours, according to the board's order, were from 9 a.m. to 5 p.m. The board concluded that objections filed on February 3 were timely and thus subject to its jurisdiction. Accordingly, the board heard evidence on and ultimately sustained objections to the sufficiency of the signatures on the petitioners' nominating petitions. Petitioners' names were stricken from the ballot on this basis.

Petitioners subsequently filed a petition with the circuit court for review of the board's decision. The court reversed the board's finding that the objections were timely filed and ordered petitioners' names to be placed on the ballot. Respondents then filed this appeal.

Respondent Iozzo first asserts that the motion to the board to cancel the hearing based on his allegedly untimely filing was made only by petitioner Mieszcak. He insists that the other petitioners, Keating and Vittorio, may not raise the issue for the first time. Petitioners answer that Iozzo makes his allegations regarding Keating and Vittorio now for the first time. They claim he did not present this matter to the trial court. According to the record, this claim is not entirely correct. Respondent alleged in his answer to the petition for judicial review that Keating and Vittorio had not raised the matter of untimely filing during the board hearing and should be precluded from raising it before the trial court. However, respondent subsequently failed to preserve the issue. No testimony or evidence on the point was taken at trial, and respondent did not ask the court to resolve it. A question never considered by the trial court may not be raised for the first time on appeal. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417; Pannett v. Schnitz (1977), 50 Ill. App. 3d 128, 133, 365 N.E.2d 191.) Moreover, Mieszcak's motion raised the question of jurisdiction, which may be raised at any time. If the board lacked jurisdiction over the objections to Mieszcak's nominating papers on the basis of untimeliness, it also lacked jurisdiction over the other objections which were filed at the same time. Thus, none of the petitioners are barred from raising the timeliness issue on appeal.

It is worthy of note at the outset of Discussion of timeliness that judicial review of decisions of an electoral board is not intended to provide a de novo hearing but rather to provide a remedy against arbitrary or unsupported decisions. (Williams v. Butler (1976), 35 Ill. App. 3d 532, 538, 341 N.E.2d 394.) The findings of an electoral board will not be reversed unless they are against the manifest weight of the evidence. (35 Ill. App. 3d 532, 538, 341 N.E.2d 394.) In this case the trial court reversed the board's Conclusion that the objections were filed on time. The inquiry is whether the board's decision was against the manifest weight of the evidence.

The board decided the objections had been filed on time because, as revealed by the transcript, it was their understanding that the law required that the office of the village clerk be open between the hours of 9 a.m. and 5 p.m. on the last day for filing objections. Since the office was not open during those hours, the board excluded that day as the final day for filing. However, the board was mistaken in its understanding. The law the board alluded to was probably the statute mandating that offices in which nominating petitions must be filed are to remain open for the receipt of such petitions until 5 p.m. on the last day of the filing period. ...


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