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11/21/88 William E. Foster Et Al., v. the Chicago Board of

November 21, 1988

WILLIAM E. FOSTER ET AL., PLAINTIFFS-APPELLANTS

v.

THE CHICAGO BOARD OF ELECTION COMMISSIONERS, DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

531 N.E.2d 920, 176 Ill. App. 3d 776, 126 Ill. Dec. 293 1988.IL.1679

Appeal from the Circuit Court of Cook County; the Hon. Francis Barth, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. O'CONNOR and QUINLAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

Plaintiffs brought this action to contest a local option election which resulted in the prohibition of the retail sale of liquor in their precinct. The complaint alleged that certain fraudulent acts committed by defendants permeated the balloting and election process prior to and during the day of election. On defendants' motion, the trial court summarily dismissed the action, and plaintiffs appealed. We affirm.

On November 4, 1986, a local option election was conducted in the 16th precinct of the 17th ward of the City of Chicago to determine whether the sale of alcoholic beverages by retail liquor licensees should be prohibited within that precinct. A canvass of the voting completed thereafter established that 85 residents voted "Yes" and 63 residents voted "No."

On December 9, 1986, plaintiffs, a group of registered voters and residents of the 16th precinct, filed a complaint alleging that the results of the election should be vacated because of various improprieties in the assignment of election Judges in violation of article 14 of the Illinois Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 14-1 et seq.) (Code). They further alleged that the inclusion of the local option referendum on the ballot was prohibited under section 28-1 of the Code (Ill. Rev. Stat. 1985, ch. 46, par. 28-1), as it represented a fourth, and therefore impermissible, question submitted to the voters.

Defendants, the Chicago Board of Election Commissioners and its chairman Michael Lavelle, moved to strike and dismiss the complaint. Following a hearing on the motion, the trial court found in favor of defendants on the ground that plaintiffs' complaint lacked the specificity required by In re Contest of the Election for the Offices of Governor (1983), 93 Ill. 2d 463, 444 N.E.2d 170, that the allegations concerning the substitute Judges cover actions not prohibited by the Code, and that the "rule-of-three limitation" in section 28 -- 1 of the Code did not apply to local option elections. Plaintiffs appeal the dismissal of their complaint.

The first issue raised by this appeal is whether plaintiffs' complaint sets forth sufficient grounds to contest the results of the election. Summarized, the complaint alleged that the election was invalid for the following reasons: (1) the three substitute Judges were not selected from an approved certified list in violation of sections 14 -- 3.1 and 14 -- 3.2 of the Code, were not selected more than five days prior to the election as required by section 14 -- 5, and falsified their polling time; (2) all members of the five-Judge panel were female, lived on the same residential block, and signed the petition placing the local option on the ballot; (3) the panel did not represent the appropriate party affiliations under sections 14 -- 3.1 and 14 -- 6; (4) one confirmed Judge falsified her party affiliation; and (5) only three Judges were present when the polling place opened in violation of sections 14 -- 1 and 14 -- 6.

Turning to the relevant case law, it is well established that the failure to plead specific changes in election results sufficient to reverse the outcome of the election is fatal to a pleading initiating an election contest. (In re Contest of the Election for the Offices of Governor (1983), 93 Ill. 2d 463, 444 N.E.2d 170; Zahray v. Emricson (1962), 25 Ill. 2d 121, 182 N.E.2d 756; Goree v. Lavelle (1988), 169 Ill. App. 3d 696, 523 N.E.2d 1078; Duncan v. Marcin (1980), 82 Ill. App. 3d 963, 403 N.E.2d 653; Cooper v. Marcin (1976), 44 Ill. App. 3d 918, 358 N.E.2d 1218.) This standard was most clearly set forth in Cummings v. Marcin (1973), 16 Ill. App. 3d 18, 22, 305 N.E.2d 606, 609:

"The pleading must specifically allege facts which, if proved, would show that the irregularity complained of will change the results of the election; or that the irregularity, if proved, will impose on the trial court a duty to declare the election void."

Applying these principles to the case at bar, it is apparent that plaintiffs' complaint falls short in this respect. Even assuming the election panel was improperly constituted as plaintiffs allege, they fail to aver how many votes would have been changed but for this alleged impropriety and whether that specific number of changes would have altered the election results. Although plaintiffs allege that 267 votes were cast in the election while the signature cards in the precinct registry reveal that only 242 persons voted, nowhere is it alleged that any discrepancy existed between the number of votes cast and the number of ballot applications. Accordingly, any shortage of voting notations on the signature cards is inconsequential.

Moreover, pleadings in an election contest charging violations of directory rather than mandatory provisions of the Code, without sufficient allegations of fraud, are subject to dismissal. (Goree v. Lavelle (1988), 169 Ill. App. 3d 696, 523 N.E.2d 1078.) As this court noted in Vanderbilt v. Marcin (1970), 127 Ill. App. 2d 192, 197, 262 ...


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