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12/15/89 Fred Carbonara Et Al., v. North Palos Fire

December 15, 1989

FRED CARBONARA ET AL., PETITIONERS-APPELLANTS

v.

NORTH PALOS FIRE PROTECTION DISTRICT ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

548 N.E.2d 1100, 192 Ill. App. 3d 275, 139 Ill. Dec. 544 1989.IL.1953

Appeal from the Circuit Court of Cook County; the Hon. Martin Brodkin, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Fred Carbonara, Jayne A. Duewerth, Patricia A. Phelps, Stanley Chlopek, and David P. Phelps (petitioners) appeal from the dismissal of their petition for election contest.

We affirm.

Petitioners, all resident electors and legal voters in suburban Palos Township in Cook County, Illinois, successfully sought to place on the ballot in the general election held November 8, 1988, a referendum to transfer territory from the North Palos Fire Protection District to the Roberts Fire Protection District. The referendum, however, was defeated by a vote of 156 to 143 against the transfer.

Petitioners thereafter filed a petition, as amended, in the circuit court of Cook County against the North Palos Fire Protection District (North Palos) and the clerk of Cook County, seeking to nullify the results of the election. The petition stated that each of the precincts in which the election was held contained voters who resided in the territory and voters who resided outside the territory. Although election Judges were provided with instructions as to which voters should vote on the fire district proposition, petitioners alleged, on information and belief, improprieties concerning the direction of voters.

More specifically, petitioners alleged that election Judges in Palos precincts 11, 23, and 27 "failed or refused to properly direct" voters who were eligible to vote on the referendum to the appropriate voting booths. Petitioners alleged four voters in each of precincts 11 and 23, and five voters in precinct 27, were "never eventually directed to the proper voting booth and cast their ballot[s] at the improper voting booth."

As to Palos precinct 11, petitioners alleged at least 12 persons were directed to voting booths "without regard to whether or not the booths contained the appropriate ballot." Further, petitioners alleged voting booths in the precinct "did not bear a sign designating which type of ballot the booth contained." The petition named the four voters in the precinct who were eligible to vote on the referendum but could not because they were allegedly directed to the wrong voting booth.

Petitioners also alleged, generally, that "in several of the precincts" voters outside the territory were directed to the voting machine which contained the referendum.

In other allegations not made on information and belief, the petition stated the ballots failed to contain separate security punches as required under section 26A-6.1 of the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 24A-6.1). Because the same computer ballots were issued to all voters in the precincts, petitioners alleged, "a voter residing outside the territory may have punched a vote against the proposition by hand even though he was directed to the appropriate non-proposition voting booth."

North Palos moved to dismiss the amended petition pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615), contending the allegations were insufficient to support nullification of the election and that petitioners had failed to allege facts to establish the ...


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