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Quinn v. The Board of Election Commissioners for City of Chicago Electoral Board

Court of Appeals of Illinois, First District, Fifth Division

June 21, 2019

PAT QUINN, TAKE CHARGE CHICAGO COMMITTEE FOR MAYORAL TERM LIMITS AND ELECTED CONSUMER ADVOCATE, MARK WALLACE, ELIZABETH NORDEN, SANDRA FERNANDEZ, GEORGE OTTO, STEPHEN CAXTON-IDOWU, and CHERYL BYERS, Petitioners-Appellants,
v.
THE BOARD OF ELECTION COMMISSIONERS FOR THE CITY OF CHICAGO ELECTORAL BOARD, and Its Members, MARISEL A. HERNANDEZ, JONATHAN T. SWAIN, and WILLIAM J. KRESSE; and THE BOARD OF ELECTION COMMISSIONERS FOR THE CITY OF CHICAGO, Respondents-Appellees Brett Allen Czaja and Karen Larson, Objectors-Appellees.

          Appeal from the Circuit Court of Cook County. No. 2018-COEL-28 Honorable Maureen O. Hannon, Judge Presiding.

          PRESIDING JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Justices Hoffman and Lampkin concurred in the judgment and opinion.

          OPINION

          ROCHFORD PRESIDING JUSTICE

         ¶ 1 The petitioners-appellants, Pat Quinn, Take Charge Chicago Committee for Mayoral Term Limits and Elected Consumer Advocate (Take Charge), Mark Wallace, Elizabeth Norden, Sandra Fernandez, George Otto, Stephen Caxton-Idowu, and Cheryl Byers (petitioners), appeal from the dismissal of their amended complaint seeking a writ of mandamus and from the denial of their motion for summary judgment with respect to the amended complaint. For the following reasons, we affirm the dismissal of the amended complaint.[1]

         ¶ 2 I. BACKGROUND[2]

         ¶ 3 On August 6, 2018, Pat Quinn and Take Charge (original petitioners) submitted petitions with the clerk of the City of Chicago in support of placing on the ballot two binding referendum questions for the citizens of Chicago to consider at the November 6, 2018, general election. The first proposed referendum question generally asked if the office of mayor for Chicago should be subject to a term limit of two, four-year terms "effective for the mayoral election in 2019 and thereafter," while the second proposed referendum question asked if Chicago should establish an elected position for a "Consumer Advocate for taxpayer and consumers."

         ¶ 4 Objections to the proposed referenda were filed by the objectors-appellees, Brett Allen Czaja and Karen Larson, on August 13, 2018. Therein, the objectors asserted that the referenda petitions were invalid due to violations of various provisions of the Election Code (10 ILCS 5/1-1 et seq. (West 2016)) and the Illinois Constitution. The objectors first contended that the two proposed referendum questions were ineligible to appear on the ballot for the November 6, 2018, election because three advisory referenda were already scheduled to appear on that ballot and- subject to exceptions not relevant here-a "rule of three" included in section 28-1 of the Election Code limited to three the total number of referenda that could be placed on the ballot for the voters of Chicago to consider at a single election. Id. § 28-1. The objectors also contended that the petitions circulated by the original petitioners improperly contained two proposed referenda on a single petition, in violation of both section 28-3 of the Election Code (id. § 28-3) and article III, section 3 of the Illinois Constitution (Ill. Const. 1970, art. III, § 3).

         ¶ 5 The objections were first addressed at an August 20, 2018, public hearing presided over by the respondents-appellees, The Board of Election Commissioners for the City of Chicago Electoral Board, and its members, Marisel A. Hernandez, Jonathan T. Swain, and William J. Kresse (collectively, the Electoral Board). The matter was referred to a hearing officer appointed by the Electoral Board, and a second hearing was held on August 29, 2018. The original petitioners filed a motion to strike the objections, and the parties thereafter fully briefed that motion, agreeing that only legal issues were presented and that a ruling on this motion would be dispositive. In their briefs, the original petitioners both responded directly to the arguments raised by the objectors and, in the alternative, asserted several facial and as-applied constitutional challenges to the objectors' proposed application of sections 28-1 and 28-3 of the Election Code to this matter.

         ¶ 6 On September 7, 2018, the hearing officer issued a written report and recommendation, wherein it was recommended that the motion to strike be denied, the objections be sustained, and the two referenda not appear on the November 6, 2018, election ballot. In the order, the hearing officer declined to consider the original petitioners' constitutional arguments, concluding that the Electoral Board lacked the authority to declare a statute unconstitutional or even to question a statute's validity.

         ¶ 7 In a written order entered on September 12, 2018, the Electoral Board adopted the hearing officer's recommendations and entered a final, written administrative decision that ordered that the two referenda not appear on the ballot for the November 6, 2018, election or on the ballot for any other election. For the same reasons detailed by the hearing officer, the Electoral Board's written order also declined to consider the original petitioners' constitutional arguments. The Electoral Board's final decision was served upon the original petitioners by email (pursuant to a prior agreement) and hand delivery the same day.

         ¶ 8 On September 14, 2018, the original petitioners filed a one-count petition in the circuit court seeking both administrative review and a writ of mandamus. Naming the Electoral Board and the objectors as respondents-defendants with respect to that portion of its petition seeking administrative review, brought pursuant to section 10-10.1 of the Election Code (id. § 10-10.1), the original petitioners sought reversal of the Electoral Board's final administrative decision. Naming only The Board of Election Commissioners for the City of Chicago (Board of Election), as a respondent-defendant with respect to that portion of its petition seeking a writ of mandamus, brought pursuant to article 14 of the Code of Civil Procedure (Code) (735 ILCS 5/14-101 et seq. (West 2016)), the original petitioners sought to compel the Board of Election to print the two referenda on the ballot for the November 6, 2018, election, or-in the alternative-the ballot for the following election, to be held on February 26, 2019.[3]

         ¶ 9 The petition filed by the original petitioners was served upon the Electoral Board, the Board of Elections, and the attorney for the objectors on September 17, 2018, by certified mail. The objectors themselves were not served personally by certified mail until September 19, 2018.

         ¶ 10 Also on September 19, 2018, the objectors filed a motion to dismiss the petition for judicial review, contending that the circuit court lacked subject-matter jurisdiction over the petition due to the original petitioners' failure to strictly comply with the service requirements contained in section 10-10.1(a) of the Election Code, which required service upon all parties within five days. 10 ILCS 5/10-10.1(a) (West 2016). The motion to dismiss did not make any reference to the portion of the petition seeking a writ of mandamus. In their written reply in support of the motion to dismiss, the objectors again solely attacked the circuit court's subject-matter jurisdiction to consider the portion of the original petitioners' petition seeking judicial review, and again did not make any reference to the portion of the petition seeking a writ of mandamus.

         ¶ 11 On September 25, 2018, the original petitioners filed a motion to file a first amended complaint for a writ of mandamus, instanter. Therein, the original petitioners contended that no response to the portion of their petition seeking a writ of mandamus had yet been filed.

         ¶ 12 The following day, oral argument was heard on the motion to dismiss. That same day, the circuit court entered a written order granting the motion to dismiss the petition for judicial review of the Electoral Board's decision, on the basis that the failure of the original petitioners to comply with the service requirements contained in section 10-10.1 of the Election Code deprived the court of subject-matter jurisdiction. While the circuit court's order dismissed the petition in its entirety, the circuit court's order made no specific reference to the portion of the petition seeking a writ of mandamus, or to the motion seeking to file an amended complaint with respect to that claim.

         ¶ 13 On September 28, 2018, the original petitioners filed a prior notice of appeal, in which they asserted that they were appealing from the dismissal of both the portion of their petition seeking judicial review and the portion of their petition seeking a writ of mandamus. In an opinion filed on November 5, 2018, this court: (1) affirmed the circuit court's dismissal of the portion of the original petitioners' petition seeking administrative review of the Electoral Board's decision under the Election Code; (2) reversed the dismissal of the portion of the original petitioners' petition seeking a writ of mandamus; and (3) remanded for further proceedings solely with respect to the original petitioners' request for a writ of mandamus. Quinn v. Board of Election Commissioners for the City of Chicago Electoral Board, 2018 IL App (1st) 182087, ¶ 33.

         ¶ 14 On remand, the circuit court granted the original petitioners' leave to file an amended, two-count complaint for a writ of mandamus, and such an amended complaint was subsequently filed on December 17, 2018. The other parties identified above (supra ¶ 1) were added as additional petitioners, with these additional petitioners alleged to be voters registered in Chicago that had signed the referenda petitions. Some were additionally alleged to have circulated the petitions or notarized them, while Mr. Caxton-Idawu was also alleged to have "voted in favor of the referendums as an early voter." The caption of the amended complaint identifies only the "[Electoral Board], et al." as "respondents-defendants." However, the body of the amended complaint makes clear that the petitioners only sought a writ of mandamus against the Board of Election and its members, Marisel A. Hernandez, Jonathan T. Swain, and William J. Kresse.

         ¶ 15 Substantively, the amended complaint again asserted several facial and as-applied constitutional challenges to the application of sections 28-1 and 28-3 of the Election Code to this matter. The amended complaint also asserted violations of due process and contended that the petitions filed in this matter should not have been stricken because they "substantially comply" with the Election Code.

         ¶ 16 With respect to the Board of Election and its members, the amended complaint ...


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