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03/08/88 Melvin G. Caldwell, v. James R. Nolan Et Al.

March 8, 1988

MELVIN G. CALDWELL, PLAINTIFF-APPELLANT

v.

JAMES R. NOLAN ET AL., COMMISSIONERS OF THE CHICAGO BOARD OF ELECTION COMMISSIONERS AND MEMBERS OF THE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

Electoral Board for the Hearing and Passing

Upon of Objections to Nominating

Petitions for the Offices of

Representative in the General

Assembly and State

Senator, et al., Defendants-Appellees

No. 88-0583

522 N.E.2d 175, 167 Ill. App. 3d 1057, 118 Ill. Dec. 720 1988.IL.308

Appeal from the Circuit Court of Cook County; the Hon. Eugene L. Wachowski, Judge, presiding.

APPELLATE Judges:

JUSTICE SULLIVAN delivered the opinion of the court. LORENZ, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

Plaintiff, Melvin G. Caldwell, appeals from an order dismissing his complaint for a writ of mandamus against defendants James R. Nolan, Nikke M. Zollar and Michael J. Hamblet, commissioners of the Chicago Board of Election Commissioners and members of the Electoral Board for the Hearing and Passing Upon of Objections to Nominating Petitions for the Offices of Representative in the General Assembly and State Senator (Electoral Board or Board), and Charles G. Morrow III.

Defendant Charles G. Morrow III (Morrow) is a State representative seeking re-election from the 32nd representative district. Plaintiff, Melvin G. Caldwell (Caldwell), is one of Morrow's two opponents in the March 15, 1988, Democratic primary. Caldwell filed objections to Morrow's 1988 statement of candidacy claiming, inter alia, that Morrow is not a registered voter and that the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 8-8) requires Morrow to be registered. After an evidentiary hearing was conducted before a hearing officer, the Chicago Board of Election Commissioners, acting as members of the Electoral Board, issued a decision on January 13, 1988, which upheld Caldwell's objection to Morrow's statement of candidacy and ordered Morrow's name to be taken off of the ballot for the March 15, 1988, Democratic primary.

Two days later, on January 15, 1988, Morrow filed a motion to vacate the Electoral Board's decision and for a rehearing, based in part on new evidence. On January 19, 1988, the Board granted Morrow's motion in part and issued an "Amended Decision" vacating the January 13, 1988, decision and remanding the cause to the hearing officer on the existing record for reargument of certain points raised in Morrow's motion. The "Amended Decision," however, prohibited the hearing officer from considering any new or additional evidence.

The rehearing before the hearing officer was held the same day, January 19, 1988. Both Caldwell and Morrow were present. Caldwell objected to the rehearing but he also argued the merits of his objection to Morrow's statement of candidacy. Following the rehearing, the Electoral Board issued its "Second Amended Decision" on January 22, 1988, overruling the registration objection and ordering Morrow's name to be placed on the ballot. The Board found that Morrow's statement of candidacy was valid because his registration had been cancelled due to a clerical error by the Board of Election Commissioners, which had intended to cancel his deceased father's registration.

On Monday, January 25, 1988, Morrow received the Electoral Board's "Second Amended Decision." Morrow then filed a petition in the circuit court requesting judicial review of the Board's January 13, 1988, decision in the event that the Board's January 22, 1988, decision was invalidated in any other proceeding. The case was assigned to Judge Schneider. On February 1, 1988, Morrow was allowed to dismiss his petition for judicial review with leave to reinstate. Morrow claims that he took a voluntary dismissal because of Caldwell's representation that he was not going to file an action challenging the Board's decisions of January 19, 1988, and January 22, 1988. Although Caldwell disputes this claim, we have not been provided with the transcript of proceedings before Judge Schneider on February 1, 1988, and thus we are unable to resolve this factual issue.

On Friday, February 5, 1988, Caldwell filed a complaint for a writ of mandamus. Caldwell asserted that the Electoral Board lacks statutory authority "to grant [a] rehearing or to make subsequent decisions in a matter once it has rendered a decision," and for that reason the Board's decisions of January 19, 1988, and January 22, 1988, were void and should be expunged. Caldwell also alleged that Morrow did not file a timely appeal from the January 13, 1988, decision.

Morrow moved to dismiss Caldwell's complaint on the following grounds: failure to exhaust statutory remedies; statute of limitations; waiver and estoppel; laches ; and failure to join necessary parties. The Electoral Board also moved to dismiss the complaint, on the ground that the Board has authority to amend its decision within the 10-day period for judicial review so long as no new evidence is admitted. Subsequently, on February 17, 1988, and before any ruling on the motions ...


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