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11/08/95 JOSEPH SCHEIDLER v. COOK COUNTY OFFICERS

November 8, 1995

JOSEPH SCHEIDLER, DENNIS MCCARTHY, JAMES EDER, LENORE DE PYPER, GERALD DE PYPER, MARY LOU MOCKUS, AND ROBERT SUTTER, ON BEHALF OF THEMSELVES AND ALL OTHER VOTERS SIMILARLY SITUATED, AND LAWRENCE JOSEPH JOYCE, PETITIONERS-APPELLANTS,
v.
COOK COUNTY OFFICERS ELECTORAL BOARD, AND ITS MEMBERS, DANIEL P. MADDEN, DONALD A. MIZERK, AND KELLY PETERS, DAVID D. ORR, IN HIS OFFICIAL CAPACITY AS COOK COUNTY CLERK, MICHAEL J. HAMBLET, ARNETTE HUBBARD, AND CHRISTOPHER FITZHENRY ROBLING, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE CHICAGO BOARD OF ELECTION COMMISSIONERS AND GEORGE EDWARD LARNEY, RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Curtis Heaston, Judge Presiding.

Released for Publication December 21, 1995.

Presiding Justice Greiman delivered the opinion of the court: Rizzi, J., and Tully, J., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

On April 14, 1994, petitioners filed a petition contesting the primary election held on March 15, 1994, and alleging that the name of Lawrence Joseph Joyce (Joyce) was not listed on some ballots. Petitioners requested the court to invalidate the primary election, schedule a new primary and order respondents to pay the attorney fees and costs of petitioners.

The circuit court granted the respondents' various motions to dismiss and we affirm.

On appeal the parties primarily present two issues: (1) whether a supervisory order entered by the Illinois Supreme Court dispositivelydetermined that the name of Joyce should appear on the primary ballot; and (2) whether petitioners have stated a cause of action cognizable under section 1983 of the Federal civil rights law (42 U.S.C.A. ยง 1983 (1994)).

The facts of the present appeal are related to earlier litigation involving the underlying dispute of whether or not Joyce's name should appear on the primary election ballot. Legg v. Cook County Officers Electoral Board ( Cook County Circuit Court No. 94 Co. 69) (hereinafter referred to as the Legg case).

Petitioner Joyce sought to be the Republican Party's nominee for the office of Representative in Congress for the Ninth Congressional District. To this end, Joyce filed nomination papers for that office and thereafter Steven H. Legg filed objections to Joyce's nominating petitions.

On February 3, 1994, the Cook County Officers Electoral Board overruled the objections of Legg, declared that Joyce's nomination papers were valid and ordered that Joyce's name be placed on the primary election ballot. Legg appealed this decision to the circuit court of Cook County.

On February 22, 1994, the circuit court reversed the decision of the Cook County Officers Electoral Board and ordered Joyce's name to be removed from the ballot. The circuit court directed its ruling to the Cook County clerk and the order specifically stated:

"the name LAWRENCE JOSEPH JOYCE shall not appear on the Republican ballot as a candidate for U.S. Congress (Ill. 9th Cong. Dist.) in the March 15, 1994 Primary Election or ballots printed by the County Clerk, subject to modification by an appellate court; and 3) the County Clerk shall continue the process of issuing absentee ballots with Respondent Joyce's name as a candidate, subject to modification of the appellate court."

The order further directed the county clerk to remove the name of Joyce from the primary ballot by means of a sticker and if Joyce's "name does not appear on the March 15, 1994 Primary ballot, any absentee ballots cast for Joyce will not be counted by the County Clerk." Joyce appealed the circuit court order to this court.

On March 4, 1994, this court entered a one-page order summarily affirming the February 22, 1994, order of the circuit court and stating that an opinion would follow at a later date. Subsequently, however, this March 4 order was vacated by a supreme court supervisory order entered on March 14, 1994.

On March 11, 1994, Joyce filed with the Illinois Supreme Court an emergency motion for a supervisory order pursuant to SupremeCourt Rule 383. 157 Ill. 2d R. 383 ...


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