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In re Objection of McSparin

September 02, 2004

IN RE OBJECTION OF KENNETH J. MCSPARIN
TODD P. BITTLE, PETITIONER-APPELLANT,
v.
SALINE COUNTY ELECTORAL BOARD AND ITS MEMBERS, KENNETH CLORE, LOWELL D. TISON, JR., AND JACK T. NOLEN, RESPONDENTS, AND KENNETH J. MCSPARIN, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Saline County. No. 04-MR-30. Honorable Stephen L. Spomer, Judge, presiding.

The opinion of the court was delivered by: Justice Donovan

PUBLISHED

On August 31, 2004, we entered an order affirming the circuit court in this matter and stated that our opinion would follow. An opinion is now rendered, with a special concurrence by Justice Kuehn and with a dissent by Justice Welch..

On May 7, 2004, appellant, Todd P. Bittle, filed nomination papers to fill a vacancy in nomination for the Republican candidate for Saline County State's Attorney. Appellee, Kenneth J. McSparin, filed a petition objecting to Bittle's nomination papers. The Saline County Electoral Board (Board) convened and heard the objections of McSparin. On June 22, 2004, the Board reconvened and rendered its decision. The Board held that Bittle's nomination papers were legally insufficient and that the vacancy sought to be filled had not been filled in accordance with section 7-61 of the Election Code (Code) (10 ILCS 5/7-61 (West 2002)). The Board ruled that Bittle's name was not to be listed on the ballot for the November 2, 2004, general election.

Bittle sought judicial review of the Board's decision in the circuit court of Saline County, Illinois. McSparin also sought judicial review. On July 26, 2004, the circuit court filed its order affirming the ruling of the Board, but it gave a different reason than the one given by the Board. Bittle filed his notice of appeal on August 2, 2004. We denied his motion to stay the circuit court's order, but we granted his motion for an expedited appeal. We affirm.

BITTLE'S MOTION TO STRIKE

On August 27, 2004, Bittle filed in this court a motion to strike all the portions of McSparin's appellee's brief that addressed the reason the Board had denied Bittle access to the ballot. In his motion Bittle contends that because his brief in this matter raised only one issue-whether the trial court erred in finding that his nomination papers were invalid because he had voted in the Democratic primary in March 2004-McSparin could not raise the issue he lost in the circuit court-whether Bittle's nomination papers are invalid because the date of his selection does not appear on the face of the resolution. We disagree and deny Bittle's motion to strike. An appeal from a final judgment draws into issue all prior non-final orders that produced the judgment. Steinberg v. System Software Associates, Inc., 306 Ill. App. 3d 157, 713 N.E.2d 709 (1999). It is well established that the findings of a lower tribunal that are adverse to an appellee do not require the appellee to cross-appeal if the final decision was not at least in part against the appellee. Citizens Utilities Co. of Illinois v. Pollution Control Board, 265 Ill. App. 3d 773, 639 N.E.2d 1306 (1994).

BACKGROUND

During the March 2004 primary election, no Republican candidate for Saline County State's Attorney was listed on the ballot. Thereafter, Bittle filed his nomination papers to fill the vacancy in nomination as the Republican candidate for Saline County State's Attorney.

On May 24, 2004, McSparin filed his objector's petition pursuant to section 10-8 of the Code (10 ILCS 5/10-8 (West 2002)). McSparin objected to the listing of Bittle as a candidate for Saline County State's Attorney for the following reasons:

"A. Mr. Bittle's nomination papers are invalid because in his sworn statement of candidacy he claims to be a qualified primary voter of the Republican Party while in fact he voted in the March 16, 2004, Democratic primary.

B. The date of Mr. Bittle's selection by the Republican Party does not appear on the face of the resolution filed with the nomination papers, as required by law."

The Board convened on May 28, 2004, and attended to only procedural matters on that date. It reconvened on June 3, 2004, and heard testimony and accepted documents into evidence. During that hearing, Bittle testified on his own behalf. He stated he had always voted Republican and that the March 2004 primary election was the first time he had voted Democrat. He did so because he was an attorney practicing criminal law in the county, and since there was no Republican candidate, he felt he should have a say in the election for the next State's Attorney. After the primary, he was approached by members of the Saline County Republican Central Committee about running as the Republican nominee for State's Attorney.

Thereafter, Bittle was invited to attend a meeting of the Republican central committee and on April 17 or 18, 2004, was appointed as a Republican precinct committeeman. He was eventually nominated as the Republican candidate for State's Attorney.

Bittle stated that, when he filled out his statement of candidacy, he was already a Republican precinct committeeman. He had always voted Republican. He considered himself a Republican and felt that on May 7, 2004, when he signed his statement of candidacy, he was a Republican.

The Board issued its decision on June 22, 2004. The Board overruled McSparin's first objection, which complained that Bittle had voted in the Democratic primary but now seeks office as a Republican. The Board did, however, sustain McSparin's second objection, which related to the date of Bittle's selection not appearing on the resolution filed by the Republican Party. The Board based its decision entirely on Zerante v. Bloom Township Electoral Board, 287 Ill. App. 3d 976, 679 N.E.2d 459 (1997). Because it sustained one of the objections, it ruled that the vacancy had not been filled in accordance with section 7-61 of the Code, that Bittle's nomination papers were invalid, and that he should not be listed on the ballot for the November 2, 2004, general election.

Bittle filed his petition for judicial review on July 1, 2004, seeking to have the circuit court overturn the decision of the Board. McSparin also filed a petition for judicial review on the same date. The circuit court filed its decision July 26, 2004, sustaining the ruling of the Board not to allow Bittle's name on the general election ballot. The circuit court's decision, however, was based on a different reason than the one on which the Board had based its decision. The circuit court held that because Bittle had voted in the Democratic primary and his statement of candidacy stated he was a "qualified primary voter of the Republican party," his statement of candidacy could not comply with the requirements of the Code. Bittle filed his notice of appeal on August 2, 2004.

ANALYSIS

Section 7-61 of the Code provides in pertinent part as follows: "Any vacancy in nomination under the provisions of this Article 7 occurring on or after the primary and prior to certification of candidates by the certifying board or officer[] must be filled prior to the date of certification. Any vacancy in nomination occurring after certification but prior to 15 days before the general election shall be filled within 8 days after the event creating the vacancy. The resolution filling the vacancy shall be sent by U.S. mail or personal delivery to the certifying officer or board within 3 days of the action by which the vacancy was filled; provided, if such resolution is sent by mail and the U.S. postmark on the envelope containing such resolution is dated prior to the expiration of such 3[-]day limit, the resolution shall be deemed filed within such 3[-]day limit. Failure to so transmit the resolution within the time specified in this Section shall authorize the certifying officer or board to certify the original candidate. ***

The resolution to fill a vacancy in nomination shall be duly acknowledged before an officer qualified to take acknowledgements of deeds and shall include, upon its face, the following information:

(a) the name of the original nominee and the ...


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