Appeal from the Circuit Court of Cook County. No. 95-CO-119. 22nd Precinct of 46th Ward. Honorable Curtis Heaston, Judge Presiding. Appeal from the Circuit Court of Cook County. No. 95-CO-120. 21st Precinct of 21st Ward. Honorable Curtis Heaston, Judge Presiding.
As Modified Upon Denial of Rehearing May 23, 1997. Released for Publication June 2, 1997.
The Honorable Justice Theis delivered the opinion of the court. Greiman, P.j., and Zwick, J., concur.
The opinion of the court was delivered by: Theis
MODIFIED UPON DENIAL OF REHEARING
The Honorable Justice THEIS delivered the opinion of the court:
Appellants, 13 registered voters of the 22nd Precinct of the 46th Ward and five registered voters of the 21st Precinct of the 21st Ward in the City of Chicago (voters), present a consolidated appeal from the dismissal of their complaints challenging the validity of ballots used in local option elections held on April 4, 1995. The local option elections were held to determine whether to allow the retail sale of alcoholic liquor in those precincts. Afterwards, voters from both precincts promptly filed suit in the circuit court of Cook County challenging the validity of the election ballots and seeking to have the elections declared void. ILCS 5/23-24 (West 1994); 235 ILCS 5/9-1 (West 1994). The Board of Election Commissioners of the City of Chicago (Board) filed motions to strike and dismiss the voters complaints. 735 ILCS 5/2-615, 5/2-619 (West 1994). The trial court granted the Board's motions and dismissed the voters' complaints with prejudice. On appeal, the voters contend that the trial court erred in dismissing their complaints. We agree and reverse the trial court's decision.
The voters alleged that the election ballots did not comply with the format as required by section 9-6 of the Liquor Control Act, and thus, the elections were void. 235 ILCS 5/9-6 (West 1994); Smith v. Calhoun Community Unit School District No. 40, 16 Ill. 2d 328, 332, 157 N.E.2d 59, 61 (1959). The Board filed motions to strike and dismiss the voters' complaints. The Board argued that no prejudice or actual voter confusion was alleged by the plaintiffs. In addition, the Board asserted that the ballots substantially complied with the required statutory form, and that laches barred the voters from bringing suit. Four registered voters in the 22nd precinct intervened in support of the Board's position. The trial court granted the Board's motions and dismissed the voters' complaints with prejudice. The trial court then stayed the order pending appeal.
The first issue on appeal is whether the voters' complaints failed to state a cause of action because they failed to allege prejudice or actual voter confusion. 735 ILCS 5/2-615 (West 1994). We review section 2-615 motions de novo. Lawson v. City of Chicago, 278 Ill. App. 3d 628, 634, 662 N.E.2d 1377, 1382, 215 Ill. Dec. 237 (1996). On review, the court looks to whether the complaint alleged the essential elements of a cause of action and accepts all well-pleaded facts and all reasonable inferences as true. Lawson, 278 Ill. App. 3d at 634, 662 N.E.2d at 1382.
Suits seeking to contest the validity of a local option election are governed by the specific procedures of the Illinois Liquor Control Act. 235 ILCS 5/9-19 (West 1994); Chambers v. Board of Election Commissioners of the City of Chicago, 183 Ill. App. 3d 567, 569, 571, 539 N.E.2d 267, 269, 270, 131 Ill. Dec. 914 (1989). Section 9-19 of the Liquor Control Act provides the procedures for contesting the validity of a local option election:
"Any 5 legal voters *** may within 10 days after the canvass of the returns *** contest the validity of such election ***. *** Any registered voter in the political subdivision or precinct in which the election has been held may appear in person, or by counsel, in any such contest to defend or oppose the validity of the election." 235 ILCS 5/9-19 (West 1994).
Nothing in the Liquor Control Act requires plaintiffs contesting the validity of local option elections to allege prejudice or actual voter confusion. Further, no cases addressing the validity of a ballot proposition have required a plaintiff to allege actual voter confusion. The rationale is that challenges to the validity of an election question the basic legality of the election, not the outcome. Ross v. Kozubowski, 182 Ill. App. 3d 687, 694, 538 N.E.2d 623, 628, 131 Ill. Dec. 248 (1989), citing Village of Hinsdale v. Du Page County Court, 281 Ill. App. 571 (1935). We find that the voters stated a cause of action challenging the validity of the ballot used in the local option elections.
The next question is whether the trial court erred in dismissing the voters' complaints on the ground that the ballots were legally sufficient. 735 ILCS 5/2-619 (West 1994). This court also reviews section 2-619 motions under a de novo standard. Lawson, 278 Ill. App. 3d at 634, 662 N.E.2d at 1382.
When a special statute dictates the form of the ballot, there must be substantial compliance with the special statutory mandate or the election is void. Smith v. Calhoun Community Unit School District No. 40, 16 Ill. 2d 328, 332, 157 N.E.2d 59, 61 (1959). Substantial compliance, rather than exact compliance, with this type of statutory ballot is sufficient. People ex rel. Davis v. Chicago, Burlington & Quincy R.R. Co., 48 Ill. 2d 176, 182, 268 N.E.2d 411, 414-15 (1971).
Determination of substantial compliance is a question of law for the court. The test is whether the voter was given as clear an alternative as if the statutory form had been identically followed. Dick v. Roberts, 8 Ill. 2d 215, 221, 133 N.E.2d 305, 309 (1956). The focus is on the existence of a meaningful choice for the voters. A ballot is sufficient if the voter has a clear opportunity to express a choice either for or against it. Hoogasian v. Regional Transportation Authority, 58 Ill. 2d 117, 123, 317 N.E.2d 534, 538 (1974). Accord Knappenberger v. Hughes, 377 Ill. 126, 132, 35 N.E.2d 317, 320 (1941); People ex rel. Howard v. Chicago & Eastern Illinois R.R. Co., 296 Ill. 246, 251, 129 N.E. 846, 848 (1921).
Thus, courts consider whether the deviation in the ballot was misleading or confusing to the voters. Davis, 48 Ill. 2d at 182, 268 N.E.2d at 415; Smith, 16 Ill. 2d at 336, 157 N.E.2d at 63. In People ex rel. Davis v. Chicago, Burlington & Quincy Railroad Co., when the ballot provided "for" and "against" rather than "yes" and "no." the Court found the deviation acceptable because "there is no contention or likelihood that the deviation in wording confused the voters or obstructed them in voting either for or against the proposition, in accordance with their inclinations." Davis, 48 Ill. 2d at 182, 268 N.E.2d at 415. Moreover, deviations consisting merely of additional information not affecting the voters' choice do not void the election. Smith, 16 Ill. 2d at 335, 157 N.E.2d at 63; Dick, 8 Ill. 2d at 222, 133 N.E.2d at 309; Knappenberger, 377 Ill. at 132-33, 35 N.E.2d at 320.
Section 9-6 of the Illinois Liquor Control Act (235 ILCS 5/9-6 (West 1994)) specifies the format of local referenda on the retail sale of alcoholic liquor and provides: "The ...