APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
546 N.E.2d 994, 190 Ill. App. 3d 610, 137 Ill. Dec. 881 1989.IL.1593
Appeal from the Circuit Court of Bond County; the Hon. Daniel Stack, Judge, presiding.
JUSTICE HARRISON delivered the opinion of the court. LEWIS, J., concurs. JUSTICE HOWERTON, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON
On November 4, 1986, in the election for sheriff of Bond County, the official canvass disclosed that William Gribble, the plaintiff, and Bill Willeford, the defendant, each received 2,912 votes from the voters of that county. In compliance with section 23-27 of the Election Code (the Code) (Ill. Rev. Stat. 1985, ch. 46, par. 23-27), a coin toss was held on November 10, 1986, which was won by the incumbent candidate Willeford. On November 17, 1986, pursuant to section 23-20 of the Code (Ill. Rev. Stat. 1985, ch. 46, par. 23-20), Gribble filed a petition to contest the election, filed an amended petition on December 10, 1986, and filed a second amended petition on February 3, 1987. Gribble attached two affidavits to his second amended petition, one from two election Judges asserting that an absentee ballot from Alvina Foehner-a registered voter residing at the Hillview Manor Nursing Home in Central Precinct Number 5-was mistakenly rejected because at the time of the election the Judges believed that Foehner was dead, and the other from Foehner asserting that she was in fact alive at the time of the election and had voted for Gribble for sheriff. On February 11, 1987, Willeford filed a motion to dismiss the second amended petition, which the court denied, and on February 20, 1987, he filed his answer and affirmative defenses. After hearing extensive testimony and examining the evidence, the trial court, on June 8, 1988, entered a judgment in favor of Gribble and filed an "explanation" of this judgment on June 30, 1988. On July 7, 1988, Willeford filed a post-trial motion, and the trial court denied this motion on November 15, 1988. Willeford appeals. We affirm.
Willeford contends on this appeal that: (1) the trial court erred in denying his motion to dismiss Gribble's second amended petition because the trial court did not have jurisdiction to hear that petition; (2) the trial court erred in considering the ballots of voters who were not challenged by poll watchers or election Judges at the polls on election day; and (3) the trial court erred in utilizing the voters' party affiliations in prior elections in determining which candidate should gain or lose a vote.
Willeford initially contends that the trial court erred when it denied his motion to dismiss Gribble's second amended petition. In his motion to dismiss, Willeford attacked Gribble's second amended petition -- in particular that petition's reliance on the alleged erroneous failure to count Alvina Foehner's vote -- by asserting, inter alia, that the election Judges properly rejected, albeit for the wrong reasons, Foehner's absentee ballot. In support of this assertion, Willeford attached to his motion Foehner's discovery deposition which allegedly revealed that Foehner did not comply with the requisite statutory procedural formalities when she cast her absentee ballot.
Willeford's reliance on Foehner's discovery deposition in his motion to dismiss was misplaced. In his motion, Willeford failed to specify under which statutory section he sought to dismiss Gribble's petition, although in his brief he asserts that the motion was brought under sections 2-619(a)(1) and 2-619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-619(a)(1), (a)(9)). A section 2-619(a)(1) motion to dismiss alleges that the court does not have jurisdiction over the subject matter of the action. (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(1).) Certainly the trial court in the instant case would have subject-matter jurisdiction so long as Gribble's petition met the requisite statutory requirements. Section 2-619(a)(9) provides that the "[d]efendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. . . . That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(9).) Other affirmative matter in the context of a section 2-619(a)(9) motion for dismissal "is something in the nature of a defense that negates an alleged cause of action completely or refutes crucial Conclusions of law or Conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint." (Longust v. Peabody Coal Co. (1986), 151 Ill. App. 3d 754, 757, 502 N.E.2d 1096, 1098.) Well-pleaded facts are taken as true for purposes of a motion to dismiss under section 2-619(a)(9). Longust, 151 Ill. App. 3d at 757, 502 N.E.2d at 1098.
In this instance, as in Longust, the party moving to dismiss the complaint failed to assert affirmative matter which avoided the legal effect of or defeated the claim in the plaintiff's petition. Willeford attempted to attack the basis of Gribble's petition by asserting, essentially, that even if the election Judges erroneously rejected Foehner's absentee ballot, her ballot should have been rejected anyway since Foehner did not comply with all of the requisite formalities of casting an absentee ballot. Willeford thus offered evidence which tended to negate an ultimate factual allegation contained in Gribble's petition; i.e., that Foehner's vote was "erroneously rejected." Such an assertion, which implies that no genuine issue of material fact exists, is appropriate in a motion for summary judgment (see Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c)), but has no place in an involuntary motion to dismiss under section 2-619(a)(9) of the Code of Civil Procedure. See People ex rel. Skinner v. FGM, Inc. (1988), 166 Ill. App. 3d 802, 807, 520 N.E.2d 1024, 1028 ("a motion to dismiss should not be employed as a substitute for [a motion for] summary judgment").
Willeford's motion also alleged that Gribble's petition failed to state a cause of action, which would indicate an intention to move to dismiss pursuant to section 2-615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-615.) In Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 585-86, 325 N.E.2d 799, 808, the court noted that all well-pleaded facts in a section 45 (the predecessor of section 2-615) motion are taken as true, and that the motion must attack the legal sufficiency of the complaint, not the factual sufficiency. As previously noted, Willeford's motion to dismiss attacked several factual allegations in Gribble's petition, which is clearly inappropriate in a section 2-615 motion to dismiss. However, we still must determine whether Gribble's second amended petition complied with the legal requirements of a petition to contest an election. Repeated decisions have firmly established that the purpose of an election contest is to ascertain how many votes were cast for or against a candidate, or for or against a measure, and thereby ascertain and effectuate the will of the people. (Wagler v. Stoecker (1946), 393 Ill. 560, 562, 66 N.E.2d 408.) In Wood v. Hartman (1942), 381 Ill. 474, 480, 45 N.E.2d 864, 867, the Illinois Supreme Court noted that "[t]he right to contest the election of an individual to office is not a common law right, but exists only by statute." Section 23-20 of the Code (Ill. Rev. Stat. 1985, ch. 46, par. 23-20) prescribes the rules which govern a petition to contest an election to an office other than those statewide offices listed in section 23-19 of the Code (Ill. Rev. Stat. 1985, ch. 46, par. 23-19). Section 23-20 specifies that the petition to contest an election "shall allege that the petitioner voted at the election, and that he believes that a mistake or fraud has been committed in specified precincts in the counting or return of the votes for the office or proposition involved or that there was some other specified irregularity in the conduct of the election in such precincts." Ill. Rev. Stat. 1985, ch. 46, par. 23-20.
In addition to those requirements, the petition must make further allegations. Prior to the enactment of section 23-23.2 of the Code (Ill. Rev. Stat. 1985, ch. 46, par. 23-23.2), effective January 1, 1986, a petition to contest an election was required to show a positive and clear assertion, allegation or claim that such a recount would change the results of the election. (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, 478-79, 444 N.E.2d 170, 177 (hereinafter In re Contest).) In re Contest involved a challenge to the results of the November 2, 1982, election for Governor and Lieutenant Governor for the State of Illinois. Adlai Stevenson, plaintiff, challenged the canvass of the election and filed a petition with the clerk of the Illinois Supreme Court to contest the election pursuant to section 23-1.1 of the Code. (Ill. Rev. Stat. 1981, ch. 46, par. 23-1.1.) James Thompson and George Ryan, defendants, filed a motion to strike the petition, which the supreme court granted. The supreme court held that the allegations in Stevenson's petition lacked a positive and clear assertion that the election contest would change the result of the election, failed to contain allegations of fact sufficient to support such a change, and were thus legally insufficient to support the election contest. In re Contest, 93 Ill. 2d at 491, 444 N.E.2d at 183.
The supreme court relied on its prior decision in Zahray v. Emricson (1962), 25 Ill. 2d 121, 182 N.E.2d 756, as authority for its holding in In re Contest. The Zahray court reasoned that in the absence of an allegation that the results of the election were changed by the alleged irregularities, or facts showing such a result, the petition assumes the proportions of an exploratory process to which neither the courts nor election officials should be subjected. (Zahray, 25 Ill. 2d at 125, 182 N.E.2d at 758.) The Zahray court warned that the election contest
"cannot be employed to allow a party, on mere suspicion, to have the ballots opened and subjected to scrutiny to find evidence upon which to make a tangible charge. [Citations.] And 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 ...