Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gardner v. Mullins

September 24, 2009

CAROLYN GARDNER, APPELLANT,
v.
MARGIE MULLINS ET AL. (THEODORE BIONDO, APPELLEE).



The opinion of the court was delivered by: Justice Garman

Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.

OPINION

INTRODUCTION

Section 25--11 of the Election Code requires that a vacancy in an elective county office be filled by appointment within 60 days of the vacancy's occurrence. 10 ILCS 5/25--11 (West 2006). Ordinarily, a person appointed to fill such a vacancy would serve the remainder of the original term. However, the appointment will be only until the next general election "if more than 28 months remain in the term." 10 ILCS 5/25--11 (West 2006). The question presented by this case is whether this 28-month remainder is calculated from the date the vacancy occurs or from the date a replacement is appointed. The trial court held that time is calculated from the date the vacancy occurs. The appellate court, in a summary order, reversed and held that the time is calculated from the date the replacement is appointed. For the following reasons, we now reverse the judgment of the appellate court and reinstate the judgment of the trial court.

BACKGROUND

Mary Ann Aiello, a member of the Winnebago County board (board), passed away on June 26, 2008. Her term was set to expire on December 6, 2010. Thus, at the time of her death, 29 months and 10 days remained in her term. Her death created a vacancy that, pursuant to statute, had to be filled by appointment within 60 days. 10 ILCS 5/25--11 (West 2006). On August 14, 2008, Theodore Biondo was appointed by the board to fill Aiello's vacant seat. By the time Biondo was appointed, 27 months and 22 days remained in Aiello's term.

The difference between the manners of calculating the time remaining in the term brings this case before the court. If the time remaining is to be judged from the time of the occurrence of the vacancy, more than 28 months remained and an election was necessary. If the time is measured from the time of the appointment, less than 28 months remained in the term and there was no need for an election.

On September 3, 2008, the Winnebago County Democratic Party filed with the Winnebago County clerk, Margie Mullins, the names of candidates for various offices that were to be placed on the ballot for the November 4, 2008, election. Among these names was the name of Carolyn Gardner. Gardner's name was submitted as the Democratic candidate to fill Aiello's seat for the remainder of her unexpired term. The Green Party did not submit a candidate for Aiello's seat. Biondo states that neither he nor the Winnebago County Republican Party submitted his name to be placed on the ballot, as they believed that he had been appointed to serve until the end of Aiello's term in 2010 because his appointment was for less than 28 months. Biondo states that this belief was "fostered by the advice of [Mullins] and of the Winnebago State's Attorney's Office." Biondo asserts that both Mullins and the State's Attorney's office informed him that because his appointment was for less than 28 months, he "need not, indeed that he could not file" to have his name placed on the ballot as a candidate for Aiello's seat.*fn1

Consistent with what Mullins told Biondo, and despite Gardner's name having been submitted as a candidate for Aiello's seat, Mullins refused to place Gardner's name on the ballot. Mullins stated that she would not place Gardner's name on the ballot because the length of time from Biondo's appointment to the end of Aiello's term was less than 28 months and, therefore, an election was not necessary. Thereafter, Gardner sought a writ of mandamus directing Mullins to place Gardner's name on the ballot.

On October 3, 2008, the trial court ruled in Gardner's favor and directed Mullins to place Gardner's name on the November 4 ballot as a candidate for Aiello's seat. After this order was entered, Biondo filed a petition to intervene in the case. This motion was granted over Gardner's objection. Biondo argued that his name should also be placed on the ballot. The trial court denied his motion. Thereafter, Biondo filed a motion to reconsider and a motion for a temporary restraining order to prevent the election for Aiello's seat from being held. The trial court denied Biondo's motions on October 27, 2008.

Two days later, on October 29, Biondo appealed the denial of his restraining order by filing a petition for interlocutory appeal as a matter of right pursuant to Supreme Court Rule 307 (188 Ill. 2d R. 307). Gardner objected and filed a motion to dismiss the appeal, arguing that the appellate court lacked jurisdiction to hear Biondo's appeal. On November 3, 2008, the day before the election, the appellate court filed a summary order reversing the trial court's denial of Biondo's restraining order. The basis for the appellate court's judgment was that the 28-month time period of section 25--11 runs from the time of appointment, not from the time of vacancy. No. 2--08--1022 (unpublished order under Supreme Court Rule 23). Therefore, an election was not required and the restraining order should have been granted.

Because the appellate court order was entered the day before the scheduled election, there was not time to modify the ballots. Accordingly, the Winnebago County voters who resided in Aiello's district received ballots that asked them to cast a vote to fill Aiello's vacancy. Gardner was the only candidate on the ballot for this office.

The parties represented that votes for Gardner were counted but that the results were not certified. Indeed, Biondo's counsel conceded that as Gardner was the only candidate on the ballot, she "won" the election, if such an election was required in the first instance.

Thereafter, Gardner filed a petition for leave to appeal to this court pursuant to Rule 315 (210 Ill. 2d R. 315). In her petition, Gardner asserts that the appellate court erred in its interpretation of section 25--11 or, in the alternative, that the appellate court lacked jurisdiction to reverse the trial court's denial of Biondo's restraining order. For the reasons that follow, we reverse the appellate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.