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08/19/94 GLORIA REYES v. BLOOMINGDALE TOWNSHIP

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT


August 19, 1994

GLORIA REYES, PETITIONER-APPELLANT,
v.
BLOOMINGDALE TOWNSHIP ELECTORAL BOARD AND PHYLLIS STAPINSKI, RESPONDENTS-APPELLEES.

Appeal from the Circuit Court of Du Page County. No. 93-MR-88. Honorable S. Keith Lewis, Judge, Presiding.

Supplemental Opinion of September 15, 1994, Reported at 640 N.E.2d 956, Inglis, Bowman, Quetsch

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

Petitioner, Gloria Reyes (the candidate), appeals the order of the circuit court of Du Page County, denying her petition for judicial review of the actions of the respondent, Bloomingdale Township Electoral Board (the Board). On February 8, 1993, the candidate petitioned for nomination as an independent candidate for the office of township supervisor on the ballot of the regular election to be held on April 20, 1993. On February 12, 1993, respondent Phyllis Stapinski (the objector) filed an objection to the candidate's nominating papers.

The Board conducted a hearing on the objection on February 20, 1993. During this hearing, the Board allowed the objector to amend her objection after the candidate had rested her case. After the close of the evidence, the Board examined the signature cards of the registered voters and consulted with counsel. The Board reconvened on February 22, 1993, and sua sponte reopened the proofs as to 12 signatures. After examining the additional signatures, the Board rendered its decision, finding invalid 206 of the 886 signatures presented by the candidate. Because the number of valid signatures required for placement on the ballot was 685, the Board denied the candidate a place on the ballot for lack of five signatures.

The candidate petitioned for judicial review on March 2, 1993. She initially pointed out a mathematical error, as the number of signatures removed did not coincide with the record of the proceedings. The objector conceded this point as to two signatures, leaving the petition three signatures short of ballot eligibility. The trial court heard the arguments on the petition for review on March 22, 1993. The court denied the petition, finding without elaboration that the ruling of the Board was "consistent with the manifest weight of the evidence." This timely appeal followed.

Initially, we address the respondents' motion to dismiss this appeal on the ground of mootness. We ordered this motion to be taken with the case and briefed by the parties. A case is moot where no actual controversy exists or where it has become impossible for a court to grant effective relief. Stephens v. Education Officers Electoral Board, Community College District No. 504 (1992), 236 Ill. App. 3d 159, 161, 177 Ill. Dec. 572, 603 N.E.2d 642.

The Board contends that the occurrence of the election on April 20, 1993, renders this case moot, because the court can no longer grant effective relief. The candidate argues that the case should be excepted from the mootness doctrine, because the issues involved are capable of repetition and evasive of review. She also argues that because the court can order a special election, the case is not moot.

A court may resolve an otherwise moot issue if the issue involves a substantial public interest. ( Bonaguro v. County Officers Electoral Board (1994), 158 Ill. 2d 391, 395, 199 Ill. Dec. 659, 634 N.E.2d 712.) This public interest exception requires a clear showing that (1) the question is public in nature; (2) an authoritative determination is desirable for the guidance of public officers; and (3) the question will likely recur. Bonaguro, 158 Ill. 2d at 395; In re A Minor (1989), 127 Ill. 2d 247, 257, 130 Ill. Dec. 225, 537 N.E.2d 292.

The present case meets this test. First, ballot access is a substantial right and not lightly to be denied. ( Welch v. Johnson (1992), 147 Ill. 2d 40, 56, 167 Ill. Dec. 989, 588 N.E.2d 1119.) Second, electoral boards are creatures of statute (Election Code) (10 ILCS 5/1-1 et seq. (West 1992)), endowedwith no power beyond what the Election Code (the Code) enumerates. ( Kozel v. State Board of Elections (1988), 126 Ill. 2d 58, 68, 127 Ill. Dec. 714, 533 N.E.2d 796; Maske v. Kane County Officers Electoral Board (1992), 234 Ill. App. 3d 508, 510, 175 Ill. Dec. 582, 600 N.E.2d 513.) Case law interpreting the Code with respect to the issues presented here is sparse, and election boards dispose of similar issues inconsistently. (See Ross v. Phillip, (Circuit Court Du Page County), No. 92-MR-36; Objection to Petition of Oury (Du Page County Officers Electoral Board), March 25, 1991, unnumbered.) Thus, an authoritative determination is desirable.

Finally, this inconsistency among electoral boards, coupled with the frequency of objections to nominating petitions, demonstrates that these issues are capable of repetition. We therefore deny respondents' motion to dismiss the appeal and address the merits under the public interest exception to the mootness doctrine.

The candidate contends that the Board erred in (1) allowing the objector to amend her objection to add new objectionable signatures; (2) striking 38 signatures because the notary date preceded the signature dates; and (3) striking 23 signatures for penmanship. Judicial review of the decision of an electoral board is intended to remedy arbitrary or unsupported decisions. ( Keating v. Iozzo (1987), 155 Ill. App. 3d 774, 776, 108 Ill. Dec. 342, 508 N.E.2d 503.) Decisions as to questions of fact will not be disturbed if they are consistent with the manifest weight of the evidence. Keating, 155 Ill. App. 3d at 776.

The review of a question of law, however, is independent and not deferential. ( Stephens, 236 Ill. App. 3d at 161.) The trial court found the Board's decision on these objections to be consistent with the manifest weight of the evidence. These issues, however, present questions of law, not fact, and should have been reviewed de novo.

The candidate first argues that the Board erred in allowing the objector to amend her objection. The Board argues that a hearing before it is just like a trial, and in a trial the pleadings may be amended at any time prior to the entry of the judgment. Again, the Board is a creature of statute. ( Kozel, 126 Ill. 2d at 68; Maske, 234 Ill. App. 3d at 510.) It may only allow amendments to the objection where it is authorized by statute to do so. (See Caldwell, 167 Ill. App. 3d at 1061; Pearce Hospital Foundation v. Illinois Public Aid Comm'n (1958), 15 Ill. 2d 301, 307, 154 N.E.2d 691.) The Code does not authorize amendments to the objection, and therefore the Board's action in so doing is void. See Stein v. Cook County Officers Electoral Board (June 10, 1994), No. 1-94-0556.

The record before us indicates that at least five signatures were stricken as a result of the amendment. Had these signatures remained on the petition, the candidate would have had sufficientsignatures to place her name on the ballot. Thus, the Board should not have denied the candidate her rightful place on the ballot, where it incorrectly found her petition to be insufficient by five signatures.

"In the event any court of competent jurisdiction declares an election void, the court may order another election without regard to the schedule of elections set forth in this Article." (10 ILCS 5/2A-1(e) (West 1992).) We declare the April 20, 1993, election of the supervisor of Bloomingdale Township void as a result of the Board's wrongful interference with the candidate's right of access to the ballot. Because our decision on this issue requires reversal of the Board's decision, we do not reach the remaining issues.

We therefore reverse the decision of the trial court and order the Board to cause to be conducted (by the appropriate agency in Du Page County) a special election for the office of township supervisor with plaintiff, Gloria Reyes, and the two candidates previously listed on the ballot for such office in the election of April 20, 1993, in conjunction with the regular election scheduled for November 1994. The winner of this special election shall serve as township supervisor until the next election of the office regularly scheduled in accordance with section 2A-33 of the Code (10 ILCS 5/2A-33 (West 1992)).

Motion to dismiss denied; trial court reversed; special election ordered.

BOWMAN and QUETSCH, JJ., concur.

19940819

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