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05/11/89 Tommy Chambers Et Al., v. the Board of Election

May 11, 1989

TOMMY CHAMBERS ET AL., PLAINTIFFS-APPELLANTS

v.

THE BOARD OF ELECTION COMMISSIONERS OF THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

539 N.E.2d 267, 183 Ill. App. 3d 567, 131 Ill. Dec. 914 1989.IL.707

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

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Tommy Chambers, Russell Leake, Edwin A. Hunter, Tiffany Greer, Benford Chambers, Edward White, Lemoyne Eloby, and Thelma Eloby bring this appeal seeking to reverse the order of the circuit court of Cook County granting defendants' motion to strike and dismiss their petition. Defendants are the Board of Election Commissioners of the City of Chicago and Michael Lavelle. The following issues are raised on appeal: (1) whether the trial court properly dismissed plaintiffs' complaint because it lacked the required specificity; (2) whether the local option question is prohibited by section 28-1 of the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 28-1); and (3) whether the local option question is unconstitutional.

We affirm.

On November 4, 1986, a local option election was held in the 18th precinct of the 21st ward in the City of Chicago. The purpose of the election was to determine whether sale of alcoholic beverages should be prohibited by retail liquor licensees within the 18th precinct. The canvass of the election returns completed on November 12, 1986, revealed that 148 "Yes" votes and 45 "No" votes were cast by the residents.

On December 12, 1986, plaintiffs filed a verified complaint in the circuit court of Cook County contesting the results of the local option election. On January 14, 1987, defendants filed a motion to strike and dismiss the complaint. Plaintiffs filed a response to the motion on January 30, 1987. On March 5, 1987, the trial court granted defendants' motion. This appeal followed.

Plaintiffs' first contention is that the trial court erred in dismissing their complaint. Plaintiffs argue that the trial court improperly relied on In re Contest of the Election for the Offices of Governor & Lieutenant Governor Held at the General Election on November 2, 1982 (1983), 93 Ill. 2d 463. They allege that In re Contest is not only legally and factually distinguishable from the instant case, but that it does not apply where fraud is an issue.

The trial court expressly ruled in its March 5, 1987, order that plaintiffs' petition lacked the specificity required by In re Contest. That case involved a challenge to the results of the November 2, 1982, election for Governor and Lieutenant Governor for the State of Illinois. Adlai E. Stevenson, plaintiff, challenged the canvass of the election and petitioned the court for a recount, pursuant to section 23-1.2 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 23-1.2) (hereinafter the Code). James R. Thompson and George H. Ryan, defendants, filed a motion to strike the petition, which was granted. The court, relying on Zahray v. Emricson (1962), 25 Ill. 2d 121, held that the allegations in the petition were insufficient and merely stated Conclusions unsupported by specific facts. Zahray held that "while the pleadings in contest proceedings are not required to comply with the strict technical rules applicable in civil actions, there should be such strictness as will prevent the setting aside of the acts of sworn officials without adequate and well defined cause. [Citations.] Stated otherwise, there should be no reason for a recount of the votes unless there is a positive and clear assertion, allegation or claim that such a recount will change the result of the election." Zahray, 25 Ill. 2d at 124.

The complaint here fails to meet the pleading requirements of In re Contest and Zahray. Plaintiffs' complaint does not clearly assert or allege that a recount will change the result of the election. Rather, plaintiffs argue that the entire conduct of the election evidenced fraud and, therefore, must be invalidated. The alleged fraudulent acts included irregularities in the petition which placed the question on the ballot and electioneering. However, these allegations lack the specificity to support an election contest claim.

Plaintiffs rely on several fraudulent election contest cases to support their argument. In Lehman v. Hill (1953), 414 Ill. 173, the court invalidated the election based on the following fraudulent conduct: only 60 persons were entitled to assistance at the polls, but hundreds of voters were given assistance; one person who gave assistance was not entitled to do so; no affidavits or oaths were administered prior to giving assistance and hundreds of blank affidavits for assistance were included in the election supplies but later disappeared without explanation. In Drolet v. Stentz (1967), 83 Ill. App. 2d 202, the election Judges failed to take voter applications for the first 2 1/2 hours and thereafter commingled the good ballots with tainted ballots. As a result, it was impossible to segregate or mathematically compute the number of ballots illegally cast. The court found that the election was fraudulent and aborted the election results in the precinct at issue.

The above two cases involve specific, well-pleaded allegations to support an election contest. However, in the present case, plaintiffs' allegations of election irregularities were Conclusions of the pleaders and failed to set forth facts sufficient to warrant invalidating the election results. Thus, we agree with the trial court's finding that plaintiffs' complaint lacked the specificity required by In re Contest of the Election for the ...


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