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Potts v. Fitzgerald

February 07, 2003

JOSEPHINE A. POTTS, PLAINTIFF-APPELLEE,
v.
MICHAEL P. FITZGERALD, DIANNE BARRETT, ANDY SMITH, AND MARY WILLIAMS; DEAN WESTROM, CHAIRMAN OF THE DU PAGE COUNTY ELECTION COMMISSION, IN HIS OFFICIAL CAPACITY; ROBERT T. SAAR, EXECUTIVE DIRECTOR OF THE DU PAGE COUNTY ELECTION COMMISSION, IN HIS OFFICIAL CAPACITY; CLARENDON HILLS PARK DISTRICT CANVASSING BOARD; KEN NOLAN, ED HOSEK, AND DONNA SKUPIEN, NOT INDIVIDUALLY BUT IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE CLARENDON HILLS PARK DISTRICT CANVASSING BOARD, DEFENDANTS (DU PAGE COUNTY ELECTION COMMISSION, DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Du Page County. No. 01-MR-338 Honorable Ronald B. Mehling Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

Defendant the Du Page County Election Commission (Commission) appeals from the circuit court's denial of its petition for reimbursement of statutory costs and fees. We affirm.

BACKGROUND

This appeal arose from an action brought by plaintiff, Josephine A. Potts, challenging her electoral defeat for the office of park commissioner for the Clarendon Hills Park District, by seeking a recount of the votes cast in an election. On April 3, 2001, three park district commissioner seats were up for election in the Clarendon Hills Park District. The three candidates running on the ballot included plaintiff and defendants Michael P. Fitzgerald and Dianne Barrett. Two additional persons, defendants Andy Smith and Mary Williams, were declared write-in candidates and did not appear on the ballot.

The Clarendon Hills Park District canvassing board (Canvassing Board) was charged with canvassing the results of the election. On April 9, 2001, the Canvassing Board certified the following results, as tabulated by the Commission:

Michael Fitzgerald 1,093 votes

Dianne Barrett 700 votes

Josephine A. Potts 577 votes

Andy Smith 584 votes (write-in)

Mary Williams 581 votes (write-in).

Fitzgerald, Barrett, and Smith were declared elected to the office of park district commissioner, as they were the three highest vote-getters according to the results tabulated by the Commission on the night of the election. Candidates Williams and Potts were declared not elected.

On April 13, 2001, plaintiff filed a petition for a discovery recount, requesting to examine the ballots in 3 of the 12 Clarendon Hills Park District precincts. The discovery recount was conducted on April 27, 2001. The recount indicated several improperly counted votes, and plaintiff filed a petition in the circuit court contesting the election.

Following a hearing on the motions, the trial court granted an order to recount all precincts involved in the April 3, 2001, election for Clarendon Hills Park District commissioner. During the course of this recount, it was discovered that an error in tabulation was made by the Commission, which resulted in the write-in vote totals for Williams and Smith being transposed. It is undisputed that, had that error not occurred, Williams would have been credited with more votes than Smith and would have been declared elected. In addition to this error, other changes in the vote totals were made during the recount. Following the conclusion of the recount, the Commission presented a report to the trial court.

On September 12, 2001, the trial court issued an order changing the results of the election pursuant ...


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