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In re Objection of Russo

June 12, 2002

IN RE OBJECTION OF DAVID RUSSO TO THE PETITION FOR PUBLIC QUESTION REFERENDUM REGARDING THE ELECTION OF VILLAGE TRUSTEES FROM DISTRICTS TO BE VOTED UPON AT THE MARCH 19, 2002, PRIMARY ELECTION
(DAVID RUSSO, PETITIONER, V. THE VILLAGE OF WINFIELD MUNICIPAL OFFICERS ELECTORAL BOARD, RESPONDENT AND COUNTERDEFENDANT-APPELLEE (MARY E. LARSON, RESPONDENT AND COUNTERPLAINTIFF-APPELLANT; JOHN KIRSCHBAUM, JENI OZARK, AND RUDY CZECH, COUNTERDEFENDANTS-APPELLEES)).



Appeal from the Circuit Court of Du Page County. No. 02-MR-83 Honorable Ronald B. Mehling, Judge, Presiding.

The opinion of the court was delivered by: Justice Geiger

The respondent, Mary Larson, appeals from the February 15, 2002, order of the circuit court of Du Page County dismissing her counterclaim against the Village of Winfield Municipal Officers Electoral Board (the Board) and its members, John Kirschbaum, Jeni Ozark, and Rudy Czech. Larson's counterclaim sought a writ of mandamus requiring the Board to place a public question upon the March 19, 2002, primary election ballot. The trial court dismissed the action, finding that an action for mandamus was precluded by the availability of judicial review under the Election Code (the Code) (10 ILCS 5/10--10.1 (West 2000)). We affirm.

Larson, a resident of the Village of Winfield (Village), has circulated a petition among the Village's voters for the placement of a referendum on the March 19, 2002, primary election ballot. The referendum sought to change the manner of electing Village trustees from at-large elections, where trustees are selected by all of the Village's residents, to by-district elections, where the Village is divided up into districts and one trustee is selected from each district. See 65 ILCS 5/3.1--25--80 (West 2000). After obtaining the required number of signatures, Larson timely filed her petition with the Village's clerk on December 28, 2001.

David C. Russo, also a resident of the Village, filed several objections to Larson's petition. The Board conducted a hearing on these objections on January 14, 2002. On January 17, 2002, the Board filed its written order sustaining one of Russo's objections. The Board ordered that Larson's petition be stricken and that the public question not appear on the ballot.

Despite prevailing in the proceedings before the Board, Russo filed a petition for judicial review of the Board's decision in the circuit court of Du Page County on January 24, 2002. Russo's petition for review was filed pursuant to section 10--10.1 of the Code (10 ILCS 5/ 10--10.1 (West 2000)) and sought a review of those objections that were not sustained by the Board. The Board and Larson were named as respondents in this action.

On January 25, 2002, Larson filed a counterclaim for a writ of mandamus and requested that the Board's decision be reversed and that the Board be ordered to certify the petition and place the referendum on the March 19, 2002, ballot. The counterclaim, which consisted of three counts, alleged (1) that Russo lacked standing to raise objections to the petition; (2) the Board's decision was predicated upon speculation, rather than evidence; and (3) the Board's decision was without legal basis and against the manifest weight of the evidence. The Board and its members were named as counterdefendants.

The Board and Russo filed motions to dismiss Larson's counterclaim pursuant to section 2--619(a)(1) of the Code of Civil Procedure (735 ILCS 5/2--619(a)(1) (West 2000)). These parties argued that the trial court was without jurisdiction to review the Board's decision in a mandamus action. These parties instead argued that Larson was obligated to file an action for judicial review pursuant to the statutory authority provided by section 10--10.1 of the Code. Because Larson's counterclaim did not seek review pursuant to section 10--10.1 and did not comply with the procedural requirements of that section, the Board and Russo asserted that the counterclaim should be dismissed.

On February 15, 2002, the trial court held a hearing on the motions to dismiss. At the beginning of the hearing, Russo voluntarily dismissed his petition for judicial review of the Board's decision. The trial court then proceeded with the hearing and granted the Board's motion to dismiss Larson's counterclaim. The trial court found that Larson's sole method to seek judicial review of the Board's decision was through the procedure provided by section 10--10.1 of the Code. Because Larson had filed an action for mandamus rather than comply with the requirements of section 10--10.1, the trial court found that it was without the authority to review the merits of the Board's decision. After the denial of her motion to reconsider, Larson filed this timely notice of appeal.

On March 7, 2002, Larson filed a motion in this court for an expedited hearing and emergency interlocutory relief. Larson requested that, due to the nearness of the March 19, 2002, primary election, this court enter an order requiring the referendum to be placed on the ballot. On March 8, 2002, this court granted Larson's motion for an expedited hearing, but continued the motion for interlocutory relief until all the briefs had been filed. The court has now had the opportunity to review the parties' briefs and is prepared to rule.

The dispositive issue on appeal is whether an action for mandamus is an appropriate means to seek judicial review of the Board's decision. Larson argues that, in instances where there is insufficient time before an election to conduct judicial review under section 10--10.1 of the Code, an action for mandamus is an appropriate remedy to seek expedited judicial review. Larson alternatively argues that, as the proponent of the referendum, she had no statutory basis to file a petition for judicial review under section 10--10.1. The Board responds that section 10--10.1 was Larson's sole remedy to seek the review of its decision and that there was sufficient time prior to the election for the trial court to conduct such review.

The circuit court's power to review administrative action is limited to that provided by law. Ill. Const. 1970, art. IV, §9; Kozel v. State Board of Elections, 126 Ill. 2d 58, 69 (1988). The review procedure contained in section 10--10.1 is a statutory creation, and compliance with the requirements of that section is necessary to invoke the circuit court's jurisdiction. Kozel, 126 Ill. 2d at 69. A party's failure to commence a timely proceeding for judicial review pursuant to section 10--10.1 of the Code deprives the trial court of jurisdiction to review the merits of the electoral board's decision. Kozel, 126 Ill. 2d at 69-70; Johnson v. Theis, 282 Ill. App. 3d 966, 971 (1996). An action for a writ of mandamus is therefore insufficient to vest the trial court's jurisdiction to review the merits of the electoral board's decision. Johnson, 282 Ill. App. 3d at 971.

In Johnson, the proponent of a referendum filed a writ of mandamus requesting the trial court to direct the village clerk to certify the referendum for placement on the ballot. Johnson, 282 Ill. App. 3d at 967. The action was filed in response to the electoral board's decision to sustain certain objections to the proponent's petition. Johnson, 282 Ill. App. 3d at 967. The trial court 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. The trial court subsequently found that the electoral board's action was invalid due to its failure to comply with the notice provisions of the Code and ordered that the referendum question be certified and placed on the ballot. Johnson, 282 Ill. App. 3d at 967.

On review, this court held that the trial court erred in treating the proponent's mandamus complaint as a request for judicial review. Johnson, 282 Ill. App. 3d at 971. After noting that the trial court's special statutory jurisdiction was limited by the language of section 10--10.1, we explained:

"It is clear in the case at bar that the plaintiffs did not comply with the provisions of section 10--10.1 in their challenge to the Electoral Board's decision. *** That the trial court chose to treat the plaintiffs' mandamus complaint as a request for judicial review is of no consequence, for the court was wholly without authority to do so. Because the court was limited in its jurisdictional authority by the review procedures set forth in section 10--10.1 of the Code and because the plaintiffs failed to strictly pursue those procedures, we conclude that the trial court had no jurisdiction to review the Electoral Board's decision on the merits." Johnson, 282 Ill. App. 3d at 971. This court further held that a trial court's authority in a mandamus action was limited to a consideration of whether the electoral board complied with its ministerial obligations as imposed by the provisions of the Code. Johnson, 282 Ill. App. ...


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