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Fayhee v. State Board of Elections

March 27, 1998

DENNIS FAYHEE, PLAINTIFF-APPELLANT,
v.
THE STATE BOARD OF ELECTIONS OF THE STATE OF ILLINOIS, EDUCATIONAL OFFICERS ELECTORAL BOARD OF THE PARIS UNION SCHOOL DISTRICT NO. 95, THE BOARD OF EDUCATION OF PARIS UNION SCHOOL DISTRICT NO. 95, RONALD DORIS AND WARREN SPERRY, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Presiding Justice Garman

THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Plaintiff Dennis Fayhee appeals the April 29, 1997, decision of the circuit court of Sangamon County dismissing his complaint against the Board of Elections of the State of Illinois (Board of Elections), the Educational Officers Electoral Board of the Paris Union School District No. 95 (Electoral Board), the Board of Education of Paris Union School District No. 95 (Board of Education), Ronald Doris, and Warren Sperry. For the reasons set forth below, we affirm.

I. FACTS

Plaintiff, a registered voter and resident of the Paris Union School District No. 95, filed a petition with the Board of Education on April 30, 1993, seeking to place a referendum question on the ballot in the November 2, 1993, general election. The question sought voter approval for reduction of the school district's property tax rate. Plaintiff purported to bring the petition pursuant to section 162a of the Revenue Act of 1939 (Revenue Act) (35 ILCS 205/162a (West 1992) (now the Property Tax Code, 35 ILCS 200/18-120 through 18-130 (West 1996))). On May 10, 1993, several other residents and taxpayers of the school district, including individual defendants Doris and Sperry, filed objections to plaintiff's petition. The school district convened an Electoral Board that conducted a hearing on May 15, 1993, to consider the objections. The Electoral Board issued an order on June 3, 1993, sustaining certain of the objections and ordering that the proposed question not appear on the ballot.

On June 9, 1993, plaintiff sought review of this decision by the State Board of Elections pursuant to the Election Code (10 ILCS 5/10-10.1 (West 1992)), naming the Electoral Board as defendant. After a hearing on August 16, 1993, the Board of Elections voted 4 to 4 on a motion to take jurisdiction of the case and issued an order to this effect on August 17, 1993. As a result of this deadlock, the order of the Electoral Board was left undisturbed.

Plaintiff then filed a complaint (No. 93-MR-227) with the circuit court of Sangamon County on August 20, 1993, pursuant to the Election Code (10 ILCS 5/10-10.1 (West 1992)), seeking administrative review of the final order of the Board of Elections. After resolution of a number of procedural issues, the circuit court remanded the cause of action to the Board of Elections, finding that its August 17, 1993, order was not effective because it had not been adopted by a vote of at least five members.

The Board of Elections reopened the case on February 21, 1995, and heard arguments. The Board of Elections then issued a final order on February 22, 1995, dismissing the matter for want of jurisdiction and stating its findings:

"1. The Board has jurisdiction to determine whether Section 162a of the Revenue Act of 1939 applies to school boards.

2. Section 162a of the Revenue Act of 1939 has no application to school boards.

3. The Board is without jurisdiction to determine any other matter, the jurisdiction of the Board being limited by statute to review of the decisions of Electoral Boards passing upon petitions for referenda brought pursuant to Section 162a of the Revenue Act of 1939."

Plaintiff filed an entirely new complaint (No. 95-MR-81) that is the subject of this appeal on March 21, 1995, seeking judicial review of this final order. All defendants filed answers except the Electoral Board. Plaintiff filed a motion for summary Judgement and defendants filed cross-motions for summary Judgement and seeking dismissal for failure to name and serve all necessary parties, specifically the chairman and members of the Board of Elections. The circuit court granted defendants' motion on April 29, 1997, and made a docket entry which reads, in part:

"Based upon the Board of Education of Bethany Unit School District #310 v. Regional Board of School Trustees, (1994) 255 Ill. App. 3d 763, the Court finds that Defendants' Motions for Summary Judgment should be granted and this administrative appeal should be dismissed because Plaintiff has failed to name and serve all necessary parties. Should the Appellate Court find otherwise on this issue and reach the merits, this Court would affirm the decision of the State Board of Elections holding that Section [162a] of the Revenue Act does not apply to school districts. The Court rejects circular argument with respect to the meaning of the last sentence of Section [162a]."

Plaintiff appeals the circuit court Judgement on both the procedural issue and the decision on the merits. The Board of Elections and the Electoral Board have not submitted briefs. The Illinois Association of School Boards (Association) has been permitted to file a brief as amicus curiae. On June 24, 1997, plaintiff filed a motion seeking to have the record on appeal include the earlier case, No. 93-MR-227, in addition to the present case, No. 95-MR-81. Defendants opposed the motion, arguing that the time for appeal of the issues raised in the earlier case had long since passed. This court agreed and denied plaintiff's motion on July 1, 1997. This appeal is thus limited to the Judgement of the circuit court entered on April 29, 1997.

II. ANALYSIS

The material in sections A and B is not to be published pursuant to Supreme Court Rule ...


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