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08/07/89 Ole, Ole, Inc., D/B/A the v. Walter S. Kozubowski

August 7, 1989

AL., PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES

v.

WALTER S. KOZUBOWSKI, AS CITY CLERK, CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

OLE, OLE, INC., d/b/a the Ultimate Sports Bar & Grill, et

(Judith M. James, Intervenor-Appellee and

Cross-Appellant)

543 N.E.2d 178, 187 Ill. App. 3d 277, 134 Ill. Dec. 895 1989.IL.1212

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

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Plaintiffs, Ole, Ole, Inc., d/b/a The Ultimate Sports Bar & Grill; and Frank R. Diaz, Lisa Seltzer and John F. Hartray, Jr., registered voters of the 14th precinct of the 43rd ward in the City of Chicago, appeal from the dismissal of their amended complaint and supplement thereto which challenged the validity of local option referendum petitions filed pursuant to section 9-4 of the Liquor Control Act of 1934 (Liquor Control Act) (Ill. Rev. Stat. 1987, ch. 43, par. 169) and which also challenged the validity of the redistricting of the 14th precinct of the 43rd ward pursuant to section 11-3 of the Election Code (Election Code) (Ill. Rev. Stat. 1987, ch. 46, par. 11-3). Defendants were Walter Kozubowski, City Clerk of the City of Chicago; and Michael LaVelle, James Nolan and Nikki Zollar, as members of the Board of Election Commissioners of the City of Chicago (the Board). Judith M. James, registered voter of the 14th precinct of the 43rd ward, intervened on behalf of defendants. On appeal, plaintiffs contend that: (1) the redistricting of the 14th precinct of the 43rd ward, which resulted in Ole remaining as the sole liquor licensee in the precinct, followed by the filing of local option referendum petitions by voters of the 14th precinct, denied Ole, as a liquor licensee, its constitutional rights to due process; (2) the boundaries of the 14th precinct of the 43rd ward were altered in violation of section 11-3 of the Election Code; and (3) plaintiff-voters were not barred by the doctrine of laches from challenging the redistricting. On cross-appeal, defendants and intervenor contend that the plaintiff-voters lacked standing to challenge the validity of the local option referendum petitions pursuant to the Liquor Control Act and lacked standing to challenge the validity of the redistricting pursuant to the Election Code. For the following reasons, we affirm that part of the trial court's order which dismissed the amended complaint and supplement thereto; vacate that part of the order which enjoined the Board from issuing a proclamation and certifying the results of April 7, 1987, election as to the local option referendum; and remand the cause to the trial court for issuance of an order directing the Board to issue a proclamation and certify the election results regarding the local option referendum.

The record sets forth the following facts relevant to this appeal. Pursuant to section 9-2 of the Liquor Control Act (Ill. Rev. Stat. 1987, ch. 43, par. 167), in June 1986, residents of the 14th precinct of the 43rd ward in Chicago began preparing and circulating local option referendum petitions requesting that the proposition as to whether the sale at retail of alcoholic liquor shall be prohibited in the 14th precinct of the 43rd ward be placed on the November 1986 general election ballot. In late July 1986, the Board redistricted the 14th precinct of the 43rd ward. As a result of the redistricting, Ole was the only remaining liquor licensee in that precinct. Prior to the redistricting, there had been four liquor licensees in the precinct. Because the Liquor Control Act requires that local option referendum petitions contain an accurate legal description of the relevant precinct, the legal description on the original petitions had to be revised to reflect the new boundaries and the petitions then had to be recirculated. Because of this delay, the petitions could not be timely filed for the November 1986 general election. Instead, the revised referendum petitions were filed with the city clerk on January 5, 1987, for the April 7, 1987, municipal election.

On March 5, 1987, Ole filed its verified petition challenging the validity of the referendum petitions and the redistricting, and seeking injunctive relief. Rather than divide its complaint into counts, as is the customary practice, Ole set forth its allegations and prayer for relief in four sections, entitled: (1) "Introductory Material"; (2) "Grounds alleging challenges to validity and sufficiency of signatures on petition"; (3) Grounds challenging validity of petition for unreasonable revision of precinct immediately prior to filing of petition of January 5, 1987"; and (4) "Relief Requested." In the "Introductory Material" section, Ole alleged, inter alia, that it was the only liquor licensee affected by the petitions and, thus, had standing to challenge the validity of the petitions under section 9 -- 4 of the Liquor Control Act, and that the duty and power of the Board to revise and to regulate precincts is governed by section 11 -- 3 of the Election Code. The second section of Ole's complaint challenged the validity of the signatures on the petitions, alleging that the petitions contained signatures of persons who were not registered voters, forged signatures and duplicate signatures. The third section of the complaint alleged that the change in precinct boundaries was not done in accordance with section 11 -- 3 of the Election Code; that the change in precinct boundaries was for "the sole purpose of attempting to curtail the business of [Ole] without affecting other liquor licensees"; that the rearrangement of precinct boundaries was a "thinly disguised attempt to use the provisions of [section 9 -- 4 of the Liquor Control Act] to revoke the license of [Ole] without any cause whatsoever"; that the rearrangement was arbitrary and capricious; and that the redistricting was done solely to put Ole out of business in violation of its due process rights. In its prayer for relief, Ole requested, inter alia, that the court: (1) invalidate the improper petition signatures and determine that the petitions did not contain the requisite number of signatures; (2) determine that the redistricting of the 14th precinct was unconstitutional "and/or" in violation of section 11 -- 3 of the Election Code; (3) enjoin the submission to the voters of the proposition banning the sale of alcoholic beverages; (4) enjoin defendants from allowing the proposition until the court has had an opportunity to make a full determination; (5) direct defendant Board to return the 14th precinct boundaries to their previous position or to some reasonable arrangement in accord with section 11 -- 3 of the Election Code.

Thereafter, Judith M. James, a registered voter in the 14th precinct of the 43rd ward, was granted leave to intervene and filed a motion to strike and dismiss Ole's complaint. At the hearing on the motion, Ole dismissed by stipulation that portion of its complaint which alleged irregularities in the referendum petition signatures. Thus, the only issue remaining was the challenge to the redistricting. The court then granted intervenor's motion to dismiss the complaint on the grounds that neither the Election Code nor the Liquor Control Act conferred standing upon Ole to contest the redistricting. Thereafter, on March 24, 1987, Ole filed its amended complaint which added two registered voters of the 14th precinct of the 43rd ward as party plaintiffs. Although Ole had previously dismissed by stipulation the challenge to the petition signatures, the amended complaint reiterated the same allegations. In fact, with minor changes, the amended complaint was identical to the original complaint. In response, the intervenor moved to strike and dismiss the amended complaint on the grounds, inter alia, that: (1) Ole had previously dismissed count I by stipulation; (2) the court had previously held that Ole did not have standing to challenge the redistricting; (3) the additional plaintiffs have no standing to contest the redistricting because they have suffered no injury or threat of injury as a result of the redistricting; and (4) the doctrine of laches bars the claims of the additional plaintiffs. The trial court again struck that portion of the complaint alleging irregularities in the petition signatures and dismissed Ole as a party plaintiff for lack of standing, but otherwise denied the intervenor's motion to dismiss the amended complaint.

The intervenor then filed her answer and affirmative defenses. As defenses, intervenor reasserted her contentions that: (1) the additional plaintiffs lacked standing because they had suffered no injury as a result of the redistricting and (2) the doctrine of laches and waiver barred plaintiff-voters from challenging the redistricting. In addition, the intervenor argued that: (1) a challenge to redistricting "is not a proper vehicle" to contest the liquor option referendum petitions; (2) plaintiffs failed to follow the procedure for contesting precinct boundaries set forth in section 11 -- 5 of Election Code; and (3) the redistricting was properly effectuated pursuant to section 24A -- 3.1 of the Election Code. Thereafter, plaintiffs were granted leave to add another 14th precinct registered voter as a party plaintiff.

On April 29, 1987, the trial court entered its order, finding that: (1) section 11 -- 3, not section 24A -- 3.1 of the Election Code, governed redistricting of the 14th precinct of the 43rd ward; (2) section 9 -- 4 of the Liquor Control Act does not confer standing on Ole to contest the redistricting; (3) Ole did not set out with specificity the defects in the petitions; (4) section 11 -- 5 of the Election Code is not applicable to this case; (5) Ole has no standing to contest redistricting under the Election Code; (6) plaintiff-voters have standing to challenge the redistricting; (7) due to untimely filing, plaintiff-voters are barred by the doctrine of laches from maintaining this action; and (8) the Board has "canvassed" the results of the local liquor option election in the 14th precinct of the 43rd ward. *fn1 Accordingly, the trial court dismissed plaintiffs' amended complaint with prejudice and enjoined the Board from ...


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