The Honorable Justice McMORROW delivered the opinion of the court:
The opinion of the court was delivered by: Mcmorrow
The Honorable Justice McMORROW delivered the opinion of the court:
We granted leave to appeal in this case (155 Ill. 2d R. 315) in order to determine whether the circuit court is the proper forum in which to bring a post-election challenge to a candidate's nomination papers. We must also decide whether a canvassing board's declaration of the results of an election precludes a circuit court from later declaring the true winner in an election contest. Alternatively, we are asked to determine whether a mandamus action may lie against a canvassing board which, having discharged its duties, has ceased to exist functus officio.
On April 18, 1994, Ronald L. Geer filed a "Petition to Contest" the election of Robert A. Kadera, Geer's sole opponent in the March 15, 1994, general primary election. Geer sought a judicial declaration that Kadera's election to the two-year term of precinct 155 Lake County Republican committeeman was null and void. Geer claimed, among other things, that Kadera was not legally qualified to hold office because he did not reside within the precinct as required by the Election Code. 10 ILCS 5/7-8(b) (West 1994). Specifically, Geer alleged that Kadera misrepresented his place of residence as being 21990 6th Avenue, Lake Villa, Illinois, in a sworn statement of candidacy filed on December 6, 1993. 10 ILCS 5/7-10 (West 1994). Geer did not notify election officials of Kadera's misrepresentation, however, until the day after the election.
Geer further claimed that the Lake County canvassing board improperly declared Kadera the winner of the election 21 days after it previously announced that Geer had won. According to Geer, the board originally convened on March 18, 1994, and proclaimed him the winner even though he had received fewer votes than Kadera. Geer later received a "Certificate of Election" from the Lake County clerk's office which confirmed his election as Republican precinct committeeman. Notwithstanding the issuance of the certificate, the board subsequently reconvened on April 8, 1994, and declared Kadera the winner. This subsequent declaration of Kadera as winner, Geer asserted, was void ab initio because the board lacked statutory authority to recanvass the votes more than seven days after the election. 10 ILCS 5/22-1 (West 1994).
Kadera moved to dismiss the action pursuant to section 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619 (West 1994). With respect to the accusation that he had filed a fraudulent statement of candidacy, Kadera admitted that he "incorrectly" stated that he resided at 21990 6th Avenue. He argued, however, that pursuant to the Election Code any objections to a candidate's qualifications, including residency, must be brought before the proper election authority within five business days after the last day for filing the nomination papers. 10 ILCS 5/10-8 (West 1994). Relying on section 10-8 of the Code, Kadera further claimed that, because Geer failed to object within the time limits set forth in the Code, he had waived any objection to Kadera's nomination papers, including his compliance with the statutory residency requirements.
In regard to the other charge, Kadera did not directly address Geer's contention that the Lake County canvassing board improperly recanvassed the votes more than seven days after the election. Nevertheless, he noted that election contests are ordinarily limited to a determination of the results of the election, i.e., the number of valid votes for each candidate, and that in this case, the circuit court should only hear evidence limited to that issue. In support of this argument, Kadera attached to his motion to dismiss a certified copy of a computer printout of the election returns. The printout indicated that Kadera received 102 votes versus the 65 votes cast for Geer. Even so, next to Geer's total was the following handwritten notation: "3/21/94 [checkmark] = winner per SAO." *fn1 Directly beneath that notation was another handwritten notation, purportedly attested to by Lake County clerk and board member Linda Hess, which states: "4/8/94 Kadera winner per States Atty Office. LH."
The circuit court of Lake County was then called upon to resolve the following conundrum: Upon which candidate should the office of Republican precinct committeeman fall: the candidate armed with a certificate of election which he had received as the result of being declared the winner by a state agency with no authority to do so, but who otherwise lived in the proper geographic territory, or the candidate embraced by nearly two-thirds of the voters, but who admittedly did not reside among his constituents? The circuit court, deciding in favor of the latter, ruled as follows:
"1) The canvassing board [sic] 1st official certification found Mr. Kadera having [the] highest number of votes for Prec. 155 Lake Villa.
2) That the question of residency brought by Pet. Geer is not properly brought for the Ct. [sic] determination but is a matter to be decided by the Republican Central Committee.
3) That [the] motion to take evidentiary evidence is denied, [the] facts not disputed & [the] documents unambiguous regarding [the] action of [the] canvassing board."
On appeal, the appellate court affirmed the circuit court's dismissal of the action, holding that the circuit court properly found that Kadera had won the election by virtue of his having received the greater number of votes. No. 2-95-0456 (unpublished order under Supreme Court Rule 23). The appellate court further concluded that an election contest was not the appropriate legal vehicle for challenging a candidate's failure to comply with the statutory residency requirement. Thus, the appellate court affirmed the dismissal of the election contest.
After rendering its decision on the merits and hence disposing of the entire appeal, the appellate court then invited Geer to pursue a common law writ of mandamus. In dicta, the appellate court stated that, "under the circumstances of this case, [Geer] may sue the Board to seek a writ of mandamus invalidating the election of [Kadera]."
Geer then filed a new and separate mandamus action against the canvassing board, joining Kadera as a necessary party. Geer v. Lake County Canvassing Board, No. 95-MR-368 (Cir. Ct. Lake County). That complaint focused exclusively upon the fact that Kadera did not reside within precinct 155. Consistent with the appellate court's suggestion, Geer requested a writ of mandamus directing the canvassing board to reconvene and invalidate Kadera's election.
Meanwhile, in the case at bar, Kadera filed a petition for leave to appeal before this court despite the appellate court's affirmance of the circuit court's order dismissing Geer's election contest in toto. Not surprisingly, Kadera did not seek review of the appellate court's favorable judgment; instead, he sought a reversal of what he described as the appellate court's "ruling" that a writ of mandamus may lie against the Lake County canvassing board. Among other things, Kadera pointed out that the canvassing board had performed all of its functions in 1994, and therefore no longer exists. He further noted that this court has previously held that a writ of mandamus will not issue against a defunct canvassing board. People ex rel. ...