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Elsamny v. The Peoria County Board of Election Commissioners

Court of Appeals of Illinois, Third District

January 9, 2018

AMR ELSAMNY, Plaintiff-Appellant,
v.
THE PEORIA COUNTY BOARD OF ELECTION COMMISSIONERS; THOMAS BRIDE, in His Official Capacity as Executive Director; ROBERT HANAUER; SID RUCKRIEGEL; JOHN KELLY; and ZACHARY OYLER, Defendants-Appellees.

         Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. Circuit No. 17-MR-205 Honorable James A. Mack, Judge, Presiding.

          JUSTICE McDADE delivered the judgment of the court, with opinion. Justice O'Brien concurs in the judgment and opinion. Justice Schmidt dissented, with opinion.

          OPINION

          McDADE, JUSTICE

         ¶ 1 Plaintiff, Amr Elsamny, argues that the circuit court erred in dismissing his complaint contesting the Peoria County city council primary election and requesting a preliminary injunction staying the general election. We dismiss the appeal as moot.

         ¶ 2 FACTS

         ¶ 3 A primary election for the Peoria city council was held on February 28, 2017. Six people were named on the ballot for two city council at-large seats, including plaintiff and defendants Robert Hanauer, Sid Ruckriegel, John Kelly, and Zachary Oyler. Defendant, the Peoria County board of election commissioners (Board), completed the canvass of the primary election on March 9, 2017. Based on the ballots cast, Hanauer, Ruckriegel, Kelly, and Oyler were nominated for the general election; plaintiff and one other were not. Hanauer received one more vote than plaintiff.

         ¶ 4 On March 15, 2017, plaintiff filed an untitled letter in the circuit court, declaring that he was contesting the results of the primary. On March 17, 2017, he filed a verified complaint contesting the election and requesting a preliminary injunction staying the general election. The complaint named only the Board and its executive director, Thomas Bride, as defendants. Plaintiff amended his complaint on March 20, 2017. Bride was the only party that had been served with notice, and he filed a motion to dismiss. The court granted the motion, without prejudice, for plaintiff's failure to name Hanauer as a party.

         ¶ 5 On March 30, 2017, plaintiff filed another amended complaint under the same case number, which named Hanauer, Ruckriegel, Kelly, and Oyler as defendants, along with the Board and Bride. Again, only Bride had been served. A hearing was held on March 31, 2017. Bride renewed the motion to dismiss. The court granted the motion with prejudice, noting that injunctive relief was only available to stay an election based on a limited exception, which was not applicable in plaintiff's case. The court further noted that the complaint was untimely under section 7-63 of the Election Code. 10 ILCS 5/7-63 (West 2016). The general election was held on April 4, 2017, and plaintiff filed his notice of appeal on May 1, 2017.

         ¶ 6 ANALYSIS

         ¶ 7 On appeal, plaintiff argues that the court erred in dismissing his complaint. We find that the appeal is moot as the general election has already taken place.

         ¶ 8 At the outset, we consider our jurisdiction to hear this appeal. As our supreme court has stated on several occasions, jurisdiction of a court of review "is restricted to cases which present an actual controversy." Steinbrecher v. Steinbrecher, 197 Ill.2d 514, 523 (2001); see also People v. Blaylock, 202 Ill.2d 319, 325 (2002). Stated another way, " 'The existence of a real controversy is a prerequisite to the exercise of our jurisdiction.' " (Emphasis omitted.) In re J.B., 204 Ill.2d 382, 390 (2003) (quoting In re Adoption of Walgreen, 186 Ill.2d 362, 365 (1999)). Therefore, where an actual controversy does not exist (i.e., where the issue is moot), we generally do not have jurisdiction to consider the appeal. See In re Lance H., 2014 IL 114899, ¶ 12. This is so "[w]here intervening events have made it impossible for the reviewing court to grant effective relief to the complaining party." Id.; see also Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 28.

"Since the existence of a real controversy is an essential requisite to appellate jurisdiction, the general rule is that where a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved, it will dismiss the appeal or writ of error even though such facts do not appear in the record." La Salle National Bank v. City of Chicago, 3 Ill.2d 375, 379 (1954).

         ¶ 9 In Bettis v. Marsaglia, 2014 IL 117050, ¶ 12, a case whose procedural posture is similar to ours here, our supreme court was charged with answering the question of whether the circuit court erred in dismissing an election case for a lack of subject matter jurisdiction. Before doing so, however, the court considered whether they could hear the appeal or whether it was moot. Id. ¶ 8. The court determined that the case was moot, as the election had already taken place, but determined that it was not barred from hearing the appeal as one of the exceptions to the mootness doctrine applied. Id. ¶¶ 8-11.

         ¶ 10 Here, the general election took place on April 4, 2017. "It is well established under Illinois law that the conclusion of an election cycle normally moots an election contest." Jackson, 2012 IL 111928, ¶ 36. Plaintiffs complaint asked the court to stay an election that has already taken place. The council members elected have had their positions for over six months. Reversing the circuit court's judgment would have no practical effect on the parties. See Harris v. Education Officers Electoral Board of Community Consolidated School District 110, 203 Ill.App.3d 917, 920 (1990). Therefore, we find the issue moot. In doing so, we note that plaintiff does not argue that any exceptions to the mootness doctrine apply. Instead, he solely states, "this Court has the power to order the City of Peoria to redo the General Election in Peoria for the at-large Peoria City Council spot only, which was the position that Appellant had run for." Plaintiff cites no law in support of this proposition. "[O]rdering new ...


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