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02/28/96 FRANK JOHNSON v. JANE THEIS

February 28, 1996

FRANK JOHNSON, CAROL LUDWIG, JAMES BONKOSKI, NANCY SMITH, PAUL MICHALSKI, STEPHEN SIRACUSA, ROXANNE JOHNSON, JOHN VAN ACKER, RAYMOND O'CONNOR, AND LEO SEVERSON, PLAINTIFFS-APPELLEES,
v.
JANE THEIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. MR--KA--95--0322. Honorable R. Peter Grometer, Judge, Presiding.

Rehearing Denied March 28, 1996. Released for Publication March 28, 1996.

The Honorable Justice Geiger delivered the opinion of the court. McLAREN, P.j., and Doyle, J., concur.

The opinion of the court was delivered by: Geiger

The Honorable Justice GEIGER delivered the opinion of the court:

Plaintiff Frank Johnson, designated as the principal proponent of a referendum question regarding the issuance of sewerage revenue bonds in the Village of East Dundee, Illinois (the Village), as well as the nine remaining plaintiffs, all circulators of petitions in support of the referendum, filed this mandamus action seeking to direct the defendant, Jane Theis, as Village clerk, to certify the referendum question for placement on the ballot for the November 7, 1995, election. Following the decision of the East Dundee Municipal Officers Electoral Board (the Electoral Board) to sustain objections to the plaintiffs' petitions, the plaintiffs amended their complaint to include allegations relating to the Electoral Board's recent action.

The court below rejected the mandamus claim, electing instead to treat the complaint as a request for judicial review of the Electoral Board's decision pursuant to section 10--10.1 of the Election Code (the Code) (10 ILCS 5/10--10.1 (West 1994)). Although the trial court found the Electoral Board's decision regarding the alleged defects in the plaintiffs' petitions to be correct "if properly objected to," it nonetheless held the Electoral Board's action to be invalid due to its failure to comply with the notice requirements of section 10--10 of the Code (10 ILCS 5/10--10 (West 1994)). Accordingly, the court ordered that the referendum question be certified and placed on the March 1996 ballot. The court subsequently stayed its order pending appeal.

On appeal, the defendant argues that the defects in the notice given by the Electoral Board did not deprive it of jurisdiction over the objections to the petitions and that the trial court erred in reversing the Electoral Board's decision. We find, however, that the plaintiffs' failure to comply with the requirements of section 10--10.1 of the Code in seeking judicial review of the Electoral Board's decision left the trial court without jurisdiction to consider the Electoral Board's decision on the merits. Our review, therefore, is limited to whether the trial court's rejection of the plaintiffs' claim for mandamus was correct. Because we agree with the defendant that the Electoral Board's failure to strictly comply with the Code's notice requirements did not deprive it of jurisdiction to consider the objections to the plaintiffs' petitions, we conclude that the trial court's denial of the plaintiffs' claim for mandamus was proper.

The facts of the case are as follows. On July 24, 1995, the East Dundee Village Board passed an ordinance authorizing the issuance of sewerage revenue bonds in the amount of $5,900,000. At that meeting, one of the trustees stated that citizens could petition for a referendum on the issuance of the bonds. The Village subsequently made petitions for this purpose available at the Village Hall.

Nine people, all plaintiffs herein, circulated the petitions. On September 1, 1995, the defendant received 21 petitions containing 192 signatures. No principal proponent was designated. Thereafter, on September 11, 1995, the defendant received an "Objectors Petition" from Fernando Pannepucci. The defendant then forwarded a copy of Pannepucci's petition to Jill Yucuis, Village president and chairman of the Electoral Board. The Electoral Board scheduled a meeting, pursuant to section 10--10 of the Code (10 ILCS 5/10--10 (West 1994)), to consider the objections.

On September 13, 1995, pursuant to an administrative order entered by the chief judge of the Sixteenth Judicial Circuit, the Village Hall was designated as a place of holding court for purposes of the hearings of the Electoral Board, as required by section 10--10 of the Code (10 ILCS 5/10--10 (West 1994)). Also on that date, the nine circulators were served with copies of the objector's petition and a notice of the Electoral Board hearing to be held on September 18, 1995. Although the notice provided the date and time of the Electoral Board hearing, it failed to designate a location for the hearing.

Plaintiff Johnson testified that he first saw a copy of the Electoral Board's notice when his niece, plaintiff Nancy Smith, showed it to him. At that time, Johnson was not formally involved with the petition drive. A day or two before the September 18 meeting, however, he agreed to become the principal proponent of the measure.

On September 18, 1995, Johnson appeared at the hearing and tendered his certificate of principal proponent and filed an objection to the hearing based on defective notice. He had learned of the location of the meeting by contacting the office of the chief judge and had relayed the information to three of the circulators, plaintiffs Paul Michalski, Raymond O'Connor, and John Van Acker. The Electoral Board continued the hearing in order to consider Johnson's objection.

On September 26, 1995, the Electoral Board rejected Johnson's objection. The Electoral Board's order held as follows: (1) that the notice provisions of section 10--8 and section 10--10 of the Code had been substantially complied with; (2) that strict compliance with notice to Johnson was rendered impossible by virtue of his failure to include a certificate of principal proponent with the petition; (3) that Johnson submitted to the jurisdiction of the Electoral Board by submitting the certificate designating him the principal proponent in this matter; (4) that no prejudice resulted to Johnson as a result of the technical defect in the notice given to the circulators of the petition, parties who are not designated to receive notice under the Code.

Also on September 26, the plaintiffs filed a complaint for mandamus in circuit court. The complaint sought to compel the defendant to certify the referendum question for placement on the ballot for the November 7, 1995, election. On October 4, 1995, the trial court continued the cause, ...


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