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06/30/87 the Du Page County Board v. the Village of Lombard Et

June 30, 1987

THE DU PAGE COUNTY BOARD OF ELECTION COMMISSIONERS ET AL., PLAINTIFFS-APPELLANTS

v.

THE VILLAGE OF LOMBARD ET AL., DEFENDANTS-APPELLEES

"EXCEPT AS PROVIDED HEREIN, EACH COUNTY SHALL PROVIDE FOR AND PAY THE COSTS AND EXPENSES OF ALL ELECTIONS WITHIN THE COUNTY . . .." (ILL. RE

v.

STAT. 1985, CH. 46, PAR. 17-30.)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

510 N.E.2d 571, 157 Ill. App. 3d 346, 109 Ill. Dec. 703 1987.IL.942

Appeal from the Circuit Court of Du Page County; the Hon. Fredrick Henzi, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. DUNN and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiff, the Du Page County board of election commissioners (board), appeals from a summary judgment entered in favor of defendants, the village of Lombard, the city of Elmhurst, the city of West Chicago and the city of Willowbrook, in which the court determined that the board was solely responsible for expenses it incurred in making requested discovery recounts of certain municipal elections. The board contends that the defendant municipalities are responsible for all costs incurred in a discovery recount of their municipal election.

On April 2, 1985, the board conducted a consolidated election for township, municipal and park district offices at which officers were elected within such defendant municipality. Following the canvass and proclamation of results by defendants' local canvassing boards, four unsuccessful candidates for municipal office filed petitions for discovery recounts with the board (Ill. Rev. Stat. 1985, ch. 46, pars. 22-9.1, 22-17), and the board notified each defendant municipality to reconvene its local canvassing board to conduct the discovery recounts. In its notice, the board stated that it would bill defendants for expenses it incurred in scheduling and conducting the recounts, including costs for personnel, computer time and computer programming. Upon recount, defendants' canvassing boards found no error in the proclaimed results and the candidates did not file an election contest.

Subsequently, the board filed separate complaints against defendants in the circuit court seeking compensation for its costs in the discovery recounts, and the cases were consolidated. The parties filed cross motions for summary judgment and after the court denied the board's motion and granted defendants' motion for summary judgment, the board appealed.

The board's sole contention on appeal is that a municipality must bear the financial responsibility for discovery recounts. It first argues that the history and structure of the Election Code indicates that the legislature did not intend to make the county, which funds the board, responsible for expenses resulting from a municipal election recount.

Prior to 1980, section 3-2-2 of the Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 3-2-2) provided that municipalities should follow the Election Code (Ill. Rev. Stat. 1977, ch. 46, par. 1-1, et seq.) as nearly as possible in the conduct of their elections. The municipal authorities were charged with the responsibility to print and distribute the ballots, count the ballots, examine and canvass the returns and declare the results of municipal elections. After 1980, the Election Code was modified to give counties control over the conduct of elections, i.e., registration of voters (Ill. Rev. Stat. 1985, ch. 46, pars. 4-4, 5-4); notice of elections (Ill. Rev. Stat. 1985, ch. 46, par. 12-1); appointing election Judges (Ill. Rev. Stat. 1985, ch. 46, pars. 13-1, 13-2); providing ballot boxes (Ill. Rev. Stat. 1985, ch. 46, par. 15-1) and polling booths (Ill. Rev. Stat. 1985, ch. 46, par. 17-8); printing the ballots (Ill. Rev. Stat. 1985, ch. 46, par. 16-5); paying the election commissioners (Ill. Rev. Stat. 1985, ch. 46, par. 6-70); and establishing the precincts and places of election (Ill. Rev. Stat. 1985, ch. 46, par. 11-2). However, the municipalities retain responsibility, inter alia, for the certification of municipal candidates before the election (Ill. Rev. Stat. 1985, ch. 46, pars. 7-13, 7-13.1, 10-15) and conducting discovery recounts of municipal candidates (Ill. Rev. Stat. 1985, ch. 46, par. 22-9.1, 22-17). The board terms these municipal functions "pre-election" and "post-election" activities and argues that the legislature intended that the responsibility for costs for such activities remain with the municipalities.

The board also notes that Public Act 80 -- 1469 (1978 Ill. Laws 1786), which consolidated Illinois elections under county control and management, originally called for the county to assess the local units for their proportional shares of the costs of each election. However, when that process proved too complex and vague to administer, the legislature shifted the primary burden of election costs to the county in Public Act 81 -- 814 (1979 Ill. Laws 2934). Section 17 -- 30 of the Election Code presently provides:

The board argues that as the legislature did not specifically transfer the responsibility for costs resulting from municipal preelection and post-election functions such as discovery recounts to the county, the costs must remain with the municipalities. The board finds support for its position in the fact that the sole provision in the Election Code relating to discovery recount (Ill. Rev. Stat. 1985, ch. 46, par. 22-9.1) does not expressly assign the costs of a recount to the county.

Generally, a statute will not be construed to effect a change in the settled law of the State unless its terms clearly require such a construction. (In re Contest of the Election for the Offices of Governor and Lieutenant Governor (1983), 93 Ill. 2d 463, 483, 444 N.E.2d 170.) Toward this end, the intent of the legislature can best be determined by the plain and ordinary meaning of the statutory language. Du Page County v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151, 485 N.E.2d 1076.

We first note that the Election Code does not make a distinction between preelection, election and post-election activities, and we are not persuaded by the board's argument that such a distinction exists between county and municipal functions. The Election Code also provides that counties are responsible for certain activities, such as registration of voters and payment of the election commissioners, which could be termed preelection and post-election ...


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