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02/16/94 TIMOTHY C. EVANS v. TONI PRECKWINKLE

February 16, 1994

TIMOTHY C. EVANS, PLAINTIFF-APPELLANT,
v.
TONI PRECKWINKLE, THE CHICAGO BOARD OF ELECTION COMMISSIONERS, AND THE CANVASSING BOARD FOR THE SUPPLEMENTARY ALDERMANIC ELECTION HELD ON APRIL 2, 1991, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Marjan Staniec, Judge Presiding.

Tully, Cerda, Greiman

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

On April 2, 1991 Toni Preckwinkle and Timothy Evans faced off in an election bid to become the next alderman of the 4th ward in the City of Chicago. Immediately following the election, Preckwinkle was declared the unofficial winner, winning with less than a 5 percent majority over Evans. On April 4, 1991, less than two days after the election, Evans filed a petition for a discovery recount with the Board of Election Commissioners of the City of Chicago (Board of Elections), wherein he demanded an immediate discovery recount. (See, Ill. Rev. Stat. 1991, ch. 46, par. 22-9.1.) In accordance with statutory guidelines, the Board of Elections refused to conduct the discovery recount until the official results were proclaimed on April 9, 1991.

However, in accordance with statute, Evans was required to file an election contest complaint within 5 days of the election or on April 8, 1991, which he did. (Ill. Rev. Stat. 1991, ch. 24, par. 21-27.) Evans' initial complaint alleged certain irregularities in the election, which he had learned based upon poll watchers and other individuals with first-hand knowledge of events which occurred on election night. With this complaint, Evans concurrently filed a motion for leave to amend pending discovery and the results of the recount. The court continued the motion.

The discovery recount process was not complete until April 29, 1991. Preckwinkle was declared to be the winner by a margin of 109 votes. After all but one of the precincts had been counted, Evans presented his First Amended Complaint, incorporating the results of the recount, on April 24, 1991.

On June 5, 1991, the trial court rendered its written Judgment Order finding that the initial complaint failed to sufficiently allege with specificity at least 109 votes which were mistallied. The initial complaint was, therefore, dismissed with prejudice. Secondly, the First Amended Complaint was found to be legally insufficient because it was filed beyond the statutory deadline of April 8, 1991. The motion for leave to amend, which was timely filed on April 8, 1991, was also denied.

On appeal, Appellant argues that the First Amended Complaint should not have been dismissed under the election statutes. There are two statutes which must be concurrently read within the context of this case. The first governs the filing of the initial complaint and its legal sufficiency:

"Any candidate whose name appears on the ballots used in any ward of the city at any election for alderman, may contest the election of the candidate who appears to be elected * * * by filing within 5 days after such election with the Clerk of the Circuit Court of Cook County, a complaint in writing, verified by the candidate making the contest, setting forth the grounds for the contest * * * . In the case the court shall decide that the case is insufficient in law, or that the candidate who appears to have been elected on the face of the return has been duly elected, the complaint shall be dismissed. " Ill. Rev. Stat. 1991, ch. 46, par. 21-27. (Emphasis added.)

Whether or not a complaint is "legally sufficient" may depend on the interpretation of one or more election laws, including:

"A court hearing an election contest pursuant to this Article or any other provision of the law shall grant a petition for a recount properly filed where, based on the facts alleged in such petition, there appears a reasonable likelihood the recount will change the results of the election."

Ill. Rev. Stat. 1991, ch. 46, pars. 23 and 23.2

On appeal Evans contends that absent the allowance of his First Amended Complaint, under the election laws, he is forced to argue his entire case without first availing himself of the fruits of the discovery recount. In election contests other than Chicago aldermanic, candidates are given 17 days to file an election contest in court. Chicago alderman, however, are held to stricter standards and they must file an election contest within 5 days of the election. Ill. Rev. Stat. 1991, ch. 24, par. 21-27; Robinson v. Jones (1989) 186 Ill. App. 3d 82, 542 N.E.2d 127.

Evans contends that the trial court's holding that an aldermanic pleading may never be amended in order to incorporate the results of a discovery recount, renders the contest statute of the Election Code a nullity. Section 22-9.1 of the Election Code, which permits losing candidates to examine all of the election paper work in one-quarter of the precincts to find errors, applies to all candidates. Such information is made available to the candidate provided he or she files a discovery recount petition with the Board of Election within 5 days "after the last day for proclamation of the results of any canvass" or within 12 days of the election. Where the count is incorrect, the losing candidate is then given up to 37 days after the election to file a challenge in court. See, Ill. Rev. Stat. 1991, ch. 46, par. 23-20.

Chicago alderman, however, are treated differently as they must file their election contest within 5 days of the election. Although Evans filed his initial challenge within the statutory time frame, he then attempted to file a First Amended Complaint on April 24, 1991, after the expiration of the 5-day period. However, within that original 5-day period, Evans had filed a motion for leave to amend his original complaint, explaining that he wanted to incorporate the results of the election recount.

In support of his argument that his First Amended Complaint was improperly dismissed, Evans relies on Orbach v. Axelrod (1981), 100 Ill. App. 3d 973, 427 N.E.2d 399. Orbach involved a ward committeeman contest, wherein the election contest was required to be filed within a ten-day period. As in the case sub judice, Orbach sought to incorporate the results of the discovery recount in his election complaint, so he waited until after the expiration of the ten-day period to file. While the court held that the complaint not filed within the statutory time limit must be dismissed, it also found that a petition first filed within the 10 days could always be amended to incorporate the discovery recount:

"We believe that the parties could seek to amend a timely filed petition for election contest to incorporate the findings of the discovery recount in time to avoid an adverse ruling from a motion to dismiss based, for instance, on allegations of lack of specificity. Moreover, we note there is no allegation in the record that either or ...


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