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In re Purported Election of Bill Durkin

October 06, 1998

IN RE THE PURPORTED ELECTION OF BILL DURKIN (NEWTON FINN, PETITIONER- APPELLANT, V. WILLIAM DURKIN, A/K/A BILL DURKIN, AS PURPORTED MAYOR-ELECT OF WAUKEGAN, ILLINOIS; WILLIAM DURKIN, SAM FILIPPO, AND BRIAN GRACH, AS MEMBERS OF THE CANVASS BOARD OF THE CITY OF WAUKEGAN, ILLINOIS; WILLARD HELANDER, AS CLERK OF LAKE COUNTY, ILLINOIS; LAWRENCE TENPAS, A/K/A LARRY TENPAS; AND SAM FILIPPO, AS CITY CLERK OF WAUKEGAN, ILLINOIS, RESPONDENTS-APPELLEES).


The opinion of the court was delivered by: Justice Hutchinson

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Appeal from the Circuit Court of Lake County. No. 97--MR--195

Honorable Maureen P. McIntyre, Judge, Presiding.

Petitioner, Newton Finn, appeals from the dismissal by the circuit court of Lake County of his petition to contest an election (the petition). The petition contested the election of respondent William Durkin, a/k/a Bill Durkin, as mayor of Waukegan, Illinois, in the general election held on April 1, 1997 (the election). In addition to Durkin in his capacity as mayor-elect, the petition named as respondents Durkin, Sam Filippo, and Brian Grach, as members of the Canvass Board of the City of Waukegan; Willard Helander, as clerk of Lake County; Filippo, as city clerk of Waukegan; and Lawrence TenPas, a/k/a Larry TenPas.

According to a certified canvass of the election results that was attached to the petition, Durkin was the winning mayoral candidate in the election with 4,296 total votes to petitioner's 4,260 total votes. The canvass showed that TenPas, who was also a candidate for mayor in the election, received a total of 1,069 votes. TenPas did not actively participate in the election contest proceedings.

The allegations in the petition included the following. In the election, petitioner was an independent candidate for mayor; Durkin was the Democratic candidate; mistakes or irregularities in the counting or return of votes were made in the election; "[t]hese mistakes or irregularities entailed the illegal counting of purported absentee ballots cast by purported absentee voters whose purported applications for absentee ballots failed to indicate why they could not be at the polling place on election day or indicated that they were 'physically incapacitated' without specifying the reasons for their incapacity"; there were (according to precinct-by-precinct tabulations attached to the petition) 256 such illegal absentee ballots; because absentee ballots were mingled with all precinct ballots, it was not possible to ascertain the specific candidate for whom the illegal absentee ballots were cast; therefore, "all illegal absentee ballots must be apportioned among respective mayoral candidates in each precinct according to the percentages of the total vote that each candidate received in that precinct"; after apportioning the illegal votes in this way, and after recounting the resulting legal votes, petitioner was the true election winner.

The petition sought a declaration that the challenged absentee votes were illegal and should not have been counted, an allocation of the illegal absentee ballots among the candidates in the election, a recount of the resulting legal votes, and a declaration that petitioner was the winner of the election. Arguing that the relevant statutory provisions manifested a legislative intent that election contests proceed with dispatch to a Conclusion, petitioner also filed a motion for a swift Disposition of the matter.

Durkin and the Canvass Board responded to the petition by filing separate motions to dismiss the petition pursuant to section 2--619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619 (West 1996)). Helander filed an answer to the petition. TenPas did not respond and was subsequently defaulted.

On July 8, 1997, at a hearing on the matter, the trial court determined that 185 of the 256 challenged absentee ballots were legal and should have been counted. With respect to those 185 ballots, the trial court entered an order granting the motions to dismiss. We will present additional facts where relevant to our Discussion of the issues.

We turn first to the nature of appellate review of a trial court's dismissal of a complaint pursuant to section 2--619. The purpose of section 2--619 is to allow for the Disposition of questions of law and easily proved fact issues at the outset of the case. See, e.g., Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995). Section 2--619(a)(9) permits involuntary dismissal where "the claim asserted *** is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2--619(a)(9)(West 1996). A trial court ruling on a section 2--619 motion should consider the "pleadings, depositions, and affidavits." Zedella, 165 Ill. 2d at 185. Finally, we conduct an independent review of the propriety of dismissing the complaint and, therefore, are not required to defer to a trial court's reasoning. In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997).

On appeal, petitioner first contends that the trial court erred when it determined that the 185 absentee ballots were legal and should have been counted. The facts relevant to this issue are essentially undisputed. The issue of the legality of these ballots centers on the applications for the absentee ballots submitted by the voters who cast these ballots. The absentee ballot applications in question listed seven different choices for the voter's absence from the polling place on election day. On the back of the applications, several "INSTRUCTIONS FOR COMPLETING THE APPLICATION" were listed. The first of these instructed the voter to "[c]heck one of the seven reasons why you will not be able to vote at your polling place." One of the seven reasons on the front of the application was "I am physically incapacitated." Nothing else, such as the word "reason(s)" or a nearby blank space, directed the voter to indicate the reason(s) for the physical incapacity.

On each of the absentee ballot applications submitted for the 185 absentee ballots in question, the voter checked the "physically incapacitated" choice, but did not indicate any reason for the physical incapacity. Petitioner asserts that the trial court erred in determining that the 185 absentee ballots cast by the voters who completed these absentee ballot applications were legal because the Election Code (10 ILCS 5/1--1 et seq. (West 1996)) requires a voter applying for an absentee ballot on the basis of physical incapacity to specify the reason(s) for the incapacity.

Section 19--3 of the Election Code (10 ILCS 5/19--3 (West 1996)) governs application forms for absentee ballots. Section 19--3 provides that "application for ballot shall be substantially in the following form" and sets out sample absentee ballot application forms. See 10 ILCS 5/19--3 (West 1996). Section 19--3 contains several examples of forms to be used when the voter expresses a specific reason for absence from the polling place. One of these reason-specific forms is entitled "APPLICATION FOR BALLOT BY PHYSICALLY INCAPACITATED ELECTOR." See 10 ILCS 5/19--3 (West 1996). This sample form provides, in relevant part, "I shall be physically incapable of being present at the polls *** for the following reasons[.]" 10 ILCS 5/19--3 (West 1996).

Section 19--3 also sets out a sample form entitled "APPLICATION FOR ABSENT VOTER'S BALLOT." See 10 ILCS 5/19--3 (West 1996). This form is nonreason-specific in that it lists several different reasons for the voter's absence and directs the person completing the form to "Check One" of the reasons. See 10 ILCS 5/19--3 (West 1996). One of the choices is "I am physically incapacitated" followed, on the next line, by the word "Reason(s)" and a blank space. See 10 ILCS 5/19--3 (West 1996).

Petitioner contends that section 19--3 requires a person applying for an absentee ballot on the basis of physical incapacity to specify the reason(s) for the incapacity, and that, because this requirement is mandatory, an application that fails to specify the reason for the incapacity renders the related absentee ballot illegal. In support of this position, petitioner relies on People ex rel. Ciaccio v. Martin, 220 Ill. App. 3d 89 (1991), which appears to be the only case that has directly addressed this issue.

In Ciaccio, the reviewing court stated that the only issue on appeal was "whether the trial court erred in finding mandatory the requirement that a voter applying for an absentee ballot based on physical incapacity state the reason for that incapacity." Ciaccio, 220 Ill. App. 3d at 90. Citing the language of section 19--3, perjury provisions in the Election Code, and legislative concerns for the security of the electoral process, the Ciaccio court ...


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