Rivera v. City of Chicago Electoral Board ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Rivera v. City of Chicago Electoral Board, 2011 IL App (1st) 110283Appellate Court JOSE “JOE” RIVERA, Petitioner-Appellant, v. THE CITY OF
Caption CHICAGO ELECTORAL BOARD, LANGDON D. NEAL, Chairman,
RICHARD A. COWEN, Commissioner, MARISEL A. HERNANDEZ,
Commissioner, TIMOTHY J. RADDATZ, and GERALD J. HOLST, JR.,
Respondents-Appellees.
District & No. First District, Fifth Division
Docket No. 1-11-0283
Filed July 29, 2011
Held Where petitioner failed to strictly comply with the service requirements
(Note: This syllabus of section 10-10.1 of the Election Code, the trial court’s dismissal of his
constitutes no part of petition for judicial review of the declaration that his candidacy for
the opinion of the court alderman was invalid was affirmed and his appeal to the appellate court
but has been prepared was dismissed.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 2011-COEL-12; the
Review Hon. Susan Fox Gillis, Judge, presiding.
Judgment Order affirmed; appeal dismissed.
Counsel on Andrew Finko, of Chicago, for appellant.
Appeal
James M. Scanlon and Joan T. Agnew, both of James M. Scanlon &
Associates, of Chicago, for appellee City of Chicago Electoral Board.
Thomas A. Jaconetty, of Chicago, for appellees Timothy J. Raddatz and
Gerald J. Holst, Jr.
Panel PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment
of the court, with opinion.
Justices Howse and Quinn concurred in the judgment and opinion.
OPINION
¶1 Following the declaration of the invalidity of his candidacy, petitioner-appellant Jose
“Joe” Rivera (petitioner) moved for an expedited briefing schedule and decision related to
the general municipal election for alderman of the 45th Ward of the City of Chicago to be
held on February 22, 2011. His motion was denied as a practical matter due to insufficient
time to address and resolve his appeal before the scheduled election. The cause has since
been briefed for appeal by petitioner, as well as by respondents-appellees the City of
Chicago Electoral Board (Board); Langdon D. Neal, chairman, Richard A. Cowen,
commissioner, and Marisel A. Hernandez, commissioner (collectively, members); and
Timothy J. Raddatz and Gerald J. Holst, Jr. (individually, or objectors). Upon review, we
issue the instant order affirming the decision of the trial court and dismissing petitioner’s
appeal.
¶2 BACKGROUND
¶3 Petitioner filed nomination papers to become a candidate in said election. Raddatz and
Holst filed objections to the validity of petitioner’s candidacy and the cause proceeded
before a hearing officer in December 2010 pursuant to an order from the Board. During this
hearing, in addition to the matter at hand (the validity of his candidacy), petitioner filed
multiple motions to strike. In them, he complained, in part, that the hearing officer initially
defaulted objectors for failure to appear but then vacated that default when they eventually
appeared following a delay, and that objectors were improperly represented by a nonattorney
at the hearing (i.e., a clerk for their attorney of record). After considering these motions, the
hearing officer orally denied them, concluding that the delay in appearance was
understandable due to special circumstances, and that the nonattorney had not provided any
legal services but only obtained the briefing schedule on the motions. The hearing officer
then took the case under advisement and, on December 22, 2010, submitted a
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recommendation to the Board that the objections be sustained, that petitioner’s candidacy
be declared invalid, and that petitioner’s name not be printed on the election ballot.
¶4 On January 7, 2011, the Board met to review the hearing officer’s recommendations.
Counsel for petitioner, as well as counsel for objectors, were present and argued at this
meeting. At the conclusion of the argument, the Board verbally stated that it would affirm
the hearing officer’s recommendation. Later, on this same day, the Board issued its written
decision, officially adopting the hearing officer’s recommendation and sustaining the
objections to petitioner’s candidacy. It is unclear from the record which, if any, of the parties
or their representatives were present at the time the Board issued its written decision.1 On
this same day, the Board sent a copy of its written decision by mail in a sealed envelope with
postage prepaid to petitioner’s counsel of record. In the decision, immediately after the
signatures of the Board members who comprised the panel involved, it is stated:
“NOTICE: Pursuant to Section 10-10.1 of the Election Code (10 ILCS 5/10-10.1)
a party aggrieved of this decision and seeking judicial review of this decision
must file a petition for judicial review with the Clerk of the Circuit Court of
Cook County within 5 days after service of the decision of the Electoral Board.”
(Emphasis in original.)
¶5 Petitioner admits, for the record, that he, via his counsel, received the Board’s written
decision on either January 10 or 11, 2011. On January 12, 2011, petitioner filed a petition
for judicial review with the clerk of the circuit court of Cook County, arguing that the
Board’s decision should be reversed and attaching a copy of that decision. In his “Notice of
Filing” accompanying the petition, petitioner stated that he served his petition upon the
parties involved by “placing same into the US Postal Service mail receptacle in Chicago,
Illinois at or before 5:00 pm on January 11, 2011.” In his “Service List,” petitioner listed the
Board and its three members and stated that each was served “c/o: James Scanlon, General
Counsel, 69 W. Washington St., 8th Floor, Chicago, Illinois 60602”; petitioner also listed
objectors and stated that each was served “c/o: Thomas A. Jaconetty, Esq., Attorney for
Objectors, 33 North La Salle Street, Suite 3300, Chicago, Illinois 60602.”
¶6 Also on January 12, 2011, petitioner filed a “Notice of Emergency Motion” to set a
hearing date on his petition for January 14, 2011. In an order, the trial court instructed the
Board and its members to file their motion to dismiss on January 14, 2011, and told
petitioner to submit his response via email to the court on January 17, 2011 (a court holiday),
and file it on January 18, 2011. The court then set a hearing date for January 18, 2011, at 2
p.m.
¶7 In their motion to dismiss, the Board and its members argued that petitioner failed to
effectuate proper service of his petition as required by section 10-10.1 of the Illinois Election
Code (Code) (10 ILCS 5/10-10.1 (West 2010)), because he served their attorney and not
them personally, and, thus, that the trial court lacked jurisdiction to hear the petition.
Objectors, too, filed a motion to dismiss for lack of subject matter jurisdiction.
1
Pursuant to the parties’ discussion of this point in their briefs, there is a clear indication that
one, more or all of them were absent at the time the Board reconvened on this day to issue its written
decision.
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¶8 On January 18, 2011, at 1:55 p.m. (immediately preceding the hearing), in addition to
filing his response to the Board’s motion to dismiss, petitioner filed a “Supplemental
Certificate of Service and Corrected Notice of Filing–Corrected Certificate of Service.” In
this filing, petitioner “corrected” the date when he notified the parties that he filed his
petition for judicial review with the court, stating it was January 12, 2011 and not January
11, 2011, as he originally claimed. He also included a “corrected” certificate of service,
stating the he served the parties listed in his “Service List” by “certified mail–return receipt
requested,” as well as by “hand delivering copies of same” to them before 5 p.m. on January
12, 2011. Attached to this was a “Service List,” identical to the original one petitioner filed
with his petition, listing the Board and its members as served “c/o: James Scanlon” and
objectors as served “c/o: Thomas A. Jaconetty, Esq.” Petitioner further filed, at the same
time, a “Supplemental Certificate of Service,” certifying that he served objectors, each
individually, with a copy of his petition by certified mail-return receipt requested on January
14, 2011.
¶9 Arguments were then heard before the trial court. At their conclusion, the court entered
an order on January 18, 2011 granting both the Board’s and objectors’ motions to dismiss
for the “reasons stated in open court, including improper service on the Board and
[o]bjectors.” Ultimately, the court held that it “lack[ed] subject-matter jurisdiction” over
petitioner’s cause.
¶ 10 Later that day, at 4:20 p.m., petitioner filed with the court a document titled “Section 10-
10.1 Proof of Service.” In it, petitioner stated that he served a copy of his petition “upon all
Respondents by CERTIFIED MAIL–RETURN RECEIPT REQUESTED” on January 18,
2011. (Emphasis in original.) However, the only “Respondents” he indicated were the Board
and its members, not objectors. Petitioner listed the address for each as “69 W. Washington
Street,” and for the first time did not serve them “c/o: James Scanlon.” Attached to this
document were photocopies of four certified mail receipts, one for the Board and one for
each member, all dated January 18, 2011.
¶ 11 Then, on January 24, 2011, petitioner filed another document titled “Section 10-10.1
Proof of Service” with the court. In this document, petitioner stated that he served a copy of
his petition “upon all Respondents” by certified mail–return receipt requested “a third time,
on January 18, 2011.” Petitioner attached the return receipt cards for the Board, the three
members and objector Raddatz; he did not list objector Holst nor did he include any receipt
card from him.
¶ 12 On January 26, 2011, petitioner filed his Notice of Appeal with our court.
¶ 13 ANALYSIS
¶ 14 On appeal, petitioner makes several contentions. First, he claims that sections 10-10 and
10-10.1 of the Code are unconstitutional because their short time frames deprive aggrieved
parties of meaningful judicial review and violate equal protection. He then asserts that he in
fact timely filed his petition and complied with the service requirements of the Code. Finally,
he urges that, if we were to find that the trial court did, indeed, have subject matter
jurisdiction over his cause, we should also reverse on the merits to find that the Board’s
decision here was improper. We disagree with all his contentions.
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¶ 15 We must begin by noting that petitioner’s cause is technically moot. The existence of an
actual case or controversy is essential to our appellate jurisdiction. See In re Andrea F., 208
Ill. 2d 148, 156 (2003); Richardson v. Rock Island County Officers Electoral Board, 179 Ill.
2d 252, 256 (1997) (the function of our court is to decide controverted issues). Thus, a court
of review will not generally decide cases that are moot. See Andrea F., 208 Ill. 2d at 156.
A case is moot when it presents no actual controversy or when the legal issue involved has
ceased to exist. See Andrea F., 208 Ill. 2d at 156; Richardson, 179 Ill. 2d at 256. The test to
determine mootness is whether the issue involved in the trial court no longer exists because
intervening events have rendered it impossible for the reviewing court to grant effectual
relief to the complaintant. See Andrea F., 208 Ill. 2d at 156; Richardson, 179 Ill. 2d at 256;
see also Nelson v. Qualkinbush, 389 Ill. App. 3d 79, 84 (2009) (discussing judicial review
of election matter). Where the issue before the court is moot, the pending appeal is generally
dismissed. See Andrea F., 208 Ill. 2d at 156; Nelson, 389 Ill. App. 3d at 84; see also
Richardson, 179 Ill. 2d at 256.
¶ 16 In the instant cause, the relief petitioner seeks is to have his name placed on the ballot
as a candidate for office of alderman of the 45th Ward for the municipal general election to
be held on February 22, 2011. However, that election has passed. So, too, then, has the issue
that was involved in the trial court; it has ceased to exist. Due to this intervening event, it is
simply impossible for us to grant the relief petitioner requests. As such, and without the
existence of an actual controversy, the instant cause is technically moot. See, e.g.,
Richardson, 179 Ill. 2d at 256 (appeal in election case asserting constitutional vagueness of
statute dismissed as moot where, in part, election had already passed).
¶ 17 However, notwithstanding these general mootness rules, a reviewing court may address
an otherwise moot issue pursuant to one of several exceptions: the public-interest exception,
the capable-of-repetition exception, or the collateral-consequences exception. See In re
Alfred H.H., 233 Ill. 2d 345, 355-62 (2009). Regarding the public-interest exception, which
is particularly applicable to election cases, mootness will be excused if there is a
substantially public nature to the question involved, there is a need for an authoritative
determination that will help guide our public officers, and there is a likelihood that the
question will recur. See Cinkus v. Village of Stickney Municipal Officers Electoral Board,
228 Ill. 2d 200, 208 (2008).
¶ 18 We find that the instant cause meets the public-interest exception to the mootness rules.
Clearly, it involves questions of election law, “which inherently is a matter of public
concern.” Cinkus, 228 Ill. 2d at 208. And, the issue is likely to recur in future municipal
elections. The sections of the Code in question–particularly, section 10-10.1–involve the
most basic tenets of the specific legal procedure that must be followed to obtain review from
the Board: the time allowed in which to file a petition for judicial review and the steps
required to effectuate service. Therefore, an authoritative determination on these issues is
desirable to guide public officers. Accordingly, we decline to dismiss the instant appeal as
moot. See, e.g., Cinkus, 228 Ill. 2d at 208 (wherein reviewing court, pursuant to public-
interest exception, chose to address election case that was otherwise technically moot
because time for election had already come and gone).
¶ 19 Turning to the issues before us, then, we note that all the parties agree as to the
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appropriate standard of review which we must employ. As noted earlier, petitioner appeals
the trial court’s grant of the Board’s and objectors’ motions to dismiss for lack of subject
matter jurisdiction. An appeal from the grant of a motion to dismiss is reviewed de novo. See
DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006) (motion to dismiss based on defect is
reviewed de novo); accord Krauss v. Board of Election Commissioners, 287 Ill. App. 3d 981,
984 (1997). More specifically, whether a court has subject matter jurisdiction over issues
resulting from a petitioner’s alleged failure to comply with the Code is a question of law that,
likewise, requires de novo review. See Nelson, 389 Ill. App. 3d at 83. And, petitioner here
asks us to interpret section 10-10.1 of the Code–again, requiring de novo review. See Cinkus,
228 Ill. 2d at 210 (interpretation of meaning of statutory language mandates independent
review by court).
¶ 20 Illinois courts do not have general jurisdiction over election cases, but may only review
them pursuant to statute, namely, sections 10-10 and 10-10.1 of the Code. See Nelson, 389
Ill. App. 3d at 86; Hough v. Will County Board of Elections, 338 Ill. App. 3d 1092, 1094
(2003); Bill v. Education Officers Electoral Board of Community Consolidated School
District No. 181, 299 Ill. App. 3d 548, 551 (1998) (citing Allord v. Municipal Officers
Electoral Board, 288 Ill. App. 3d 897, 900 (1997)). Accordingly, the requirements mandated
upon the parties as provided in these sections are jurisdictional requirements that must be
followed. See Nelson, 389 Ill. App. 3d at 86; Hough, 338 Ill. App. 3d at 1094. “The ‘[f]ailure
of a party to comply with any of the *** requirements when appealing [a Board] decision
invites dismissal via section 2-619 (735 ILCS 5/2-619 [(West 2010) of the Illinois Code of
Civil Procedure]), for lack of subject matter jurisdiction.’ ” Hough, 338 Ill. App. 3d at 1094
(quoting Bill, 299 Ill. App. 3d at 551-52); accord Nelson, 389 Ill. App. 3d at 86-87.
Therefore, a motion to dismiss must be granted “if strict compliance with section 10-10.1
[of the Code] is not demonstrated in the record.” Nelson, 389 Ill. App. 3d at 87 (“the rule of
strict compliance with the *** Code to establish subject matter jurisdiction is abundantly
clear”); Rita v. Mayden, 364 Ill. App. 3d 913, 917 (2006) (Illinois courts have no jurisdiction
over election cases in which party seeking review of Board’s decision did not strictly comply
with Code procedure).
¶ 21 Sections 10-10 and 10-10.1 of the Code were amended in July 2010. Section 10-10,
which deals with what the Board must do upon a determination regarding the validity of a
petitioner’s candidacy, states, in pertinent part:
“The [Board] must state its findings in writing and must state in writing which
objections, if any, it has sustained. A copy of the decision shall be served upon the
parties to the proceedings in open proceedings before the [Board]. If a party does not
appear for receipt of the decision, the decision shall be deemed to have been served
on the absent party on the date when a copy of the decision is personally delivered
or on the date when a copy of the decision is deposited in the United States mail, in
a sealed envelope or package, with postage prepaid, addressed to each party affected
by the decision or to such party’s attorney of record, if any, at the address on record
for such person in the files of the [Board].” (Emphasis added.) 10 ILCS 5/10-10
(West 2010).
Section 10-10.1 allows a potential candidate, such as petitioner here, who was aggrieved by
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a decision of the Board and removed or prohibited from having his name placed on a ballot
to secure judicial review of that decision. That section states, in pertinent part:
“The party seeking judicial review must file a petition with the clerk of the court and
must serve a copy of the petition upon the [Board] and other parties to the
proceeding by registered or certified mail within 5 days after service of the decision
of the [Board] as provided in Section 10-10. The petition shall contain a brief
statement of the reasons why the decision of the [B]oard should be reversed. The
petitioner shall file proof of service with the clerk of the court.” (Emphasis added.)
10 ILCS 5/10-10.1 (West 2010).
¶ 22 Clearly, then, the Code mandates that, once the Board serves its written decision upon
the parties either orally at a hearing (if they are present), by personal delivery or by
depositing it in the mail, a petitioner must satisfy “four explicit prerequisites to subject
matter jurisdiction” and obtain judicial review of that decision. Nelson, 389 Ill. App. 3d at
86. Specifically, he must (1) file his challenging petition with the clerk of the court within
five days after the Board’s service of its decision; (2) serve copies of the petition on the
Board and the other parties to the proceedings by registered or certified mail within five days
after the Board’s service of its decision; (3) state in that petition why the Board’s decision
should be reversed; and (4) file proof of service with the clerk of the court. See 10 ILCS
5/10-10, 10-10.1 (West 2010); see, e.g., Nelson, 389 Ill. App. 3d at 86; accord Hough, 338
Ill. App. 3d at 1094 (noting that these four elements were the same under the preamended
version of Code; only time factor was changed, narrowing a petitioner’s time for filing and
service from 10 days to 5 days); Bill, 299 Ill. App. 3d at 551 (these are “four distinct
requirements that must be complied with in order to properly confer jurisdiction upon” our
courts).
¶ 23 There is no dispute in the instant cause that petitioner satisfied the first, third and fourth
requirements of section 10-10.1. That is, the record demonstrates that he filed his petition
for judicial review of the Board’s decision with the clerk of the court within five days after
the Board’s service was complete, he stated in that petition the reasons why he believed the
Board’s decision should be reversed to allow his name to appear on the ballot, and he filed
proof of service with the clerk of the court. The issue in this cause focuses instead on the
second requirement of service, pursuant to which petitioner was required to serve copies of
the petition on the Board and the other parties to the proceedings by registered or certified
mail within five days after the Board’s service of its decision upon him. To properly obtain
review of his cause, then, and in accordance with the well-established rules of strict
compliance with the Code, petitioner must have strictly followed the service requirement of
section 10-10.1, which prescribes who must be served, how they must be served and when
they must be served with his petition for judicial review.
¶ 24 First, with respect to who must be served, section 10-10.1 requires a petitioner to serve
a copy of his petition upon those who are indispensable parties to his cause, namely, “upon
the [Board] and other parties to the proceeding[s].” 10 ILCS 5/10-10.1 (West 2010); see
Allord, 288 Ill. App. 3d at 902 (service must occur upon all “necessary parties”). Clearly,
from the statutory language, this includes the Board itself, as the entity that issued the
decision which the petitioner seeks to challenge. See 10 ILCS 5/10-10.1 (West 2010);
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Nelson, 389 Ill. App. 3d at 87 (“[t]here can be no doubt that section 10-10.1 requires service
of the Board”); Allord, 288 Ill. App. 3d at 901-02; Russ v. Hoffman, 288 Ill. App. 3d 281,
284 (1997) (failure to serve board with petition deprives courts of subject matter jurisdiction
to review petition). However, this also includes those individual Board members who
participated in the decision, as they were the ones who actually reached the decision of the
Board. See Nelson, 389 Ill. App. 3d at 87 (“it follows that the Code requires that service
must be effected on both the Board as the entity making the decision and its members who
voted on the decision” (emphasis in original)); Bill, 299 Ill. App. 3d at 552-53 (individual
members of board are necessary parties who must be served under section 10-10.1, since
they render the decision that determines the rights and liabilities of the parties involved in
this administrative adjudication; failure to serve them results in loss of subject matter
jurisdiction upon courts); accord Russ, 288 Ill. App. 3d at 284 (service must be made upon
individual board members, as they are necessary parties). And, the petitioner must also serve
the objectors to his candidacy, as they, too, are indispensable parties to the litigation. See
Hough, 338 Ill. App. 3d at 1094 (those who contest candidacy comprise “other parties to the
proceedings” and must be promptly served under section 10-10.1).2
¶ 25 Next, regarding how these necessary parties must be served, section 10-10.1 mandates
that petitioner must serve a copy of his petition upon them “by registered or certified mail.”
10 ILCS 5/10-10.1 (West 2010). Moreover, this service must be done personally. See
Hough, 338 Ill. App. 3d at 1094. Specifically, our courts have made explicitly clear that a
petitioner’s service on the attorneys who represent the necessary parties involved is wholly
impermissible; it is simply “not sufficient for purposes of meeting the requirements of the
Code” and will result in the dismissal of the cause for lack of jurisdiction. Nelson, 389 Ill.
App. 3d at 87 (service on attorney for board did not satisfy service requirements of section
10-10.1 and, thus, dismissal of cause was proper as courts were deprived of subject matter
jurisdiction); accord Hough, 338 Ill. App. 3d at 1094 (the petitioner’s service on the
objectors’ attorney and not on the objectors themselves did not comply with statutory
requirement and resulted in dismissal of appeal); Allord, 288 Ill. App. 3d at 902 (that
candidates’ attorney was served, rather than candidates personally, “is without significance”
and review of appeal was precluded).
¶ 26 Finally, in addition to who and how, section 10-10.1 prescribes when the petitioner must
serve the necessary parties. The section clearly states that this must be done “within 5 days
after service of the decision of the [Board] as provided in Section 10-10.” 10 ILCS 5/10-10.1
(West 2010). Thus, once the Board has served the petitioner with its written hearing decision
declaring his candidacy invalid via section 10-10, namely, by either giving it to him in the
open proceedings that led to the decision or, if he is not present, by personally delivering it
to him or depositing a copy of it in the mail addressed to him or his attorney of record (see
10 ILCS 5/10-10 (West 2010)), the burden falls upon the petitioner to serve the necessary
parties with his petition for judicial review within five days from that date and in accordance
2
Another necessary party required to be served would be the candidate himself, were, for
example, an objector seeking judicial review of a board decision. See Allord, 288 Ill. App. 3d at 902-
03.
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with the remaining requirements of section 10-10.1. See 10 ILCS 5/10-10.1 (West 2010).
¶ 27 Again, we must emphasize that the requirements imposed by the Code upon a petitioner
seeking review of a Board’s decision, particularly regarding filing and service as dictated in
section 10-10.1, are jurisdictional and must be strictly followed or else no court may review
his petition due to a lack of subject matter jurisdiction. See Nelson, 389 Ill. App. 3d at 86-87;
Hough, 338 Ill. App. 3d at 1094; Bill, 299 Ill. App. 3d at 551-52; Rita, 364 Ill. App. 3d at
917.
¶ 28 In the instant cause, the record reveals that the Board met on January 7, 2011 to review
and consider the hearing officer’s recommended decision that petitioner’s name not be
printed on the ballot. Both petitioner and objectors were present and argued before the Board
at this hearing. Petitioner admits that, at the conclusion of this hearing, the Board gave a
verbal decision in the matter–it announced during the open proceedings that it would be
affirming the hearing officer’s recommendation that petitioner’s candidacy be declared
invalid. What can be gleaned next from the record is that the Board adjourned so it could
transcribe its decision in the matter in writing, as required by section 10-10 of the Code. See
10 ILCS 5/10-10 (West 2010) (“[t]he [Board] must state its findings in writing”). When the
Board reconvened later on this same day to issue that written decision officially declaring
petitioner’s candidacy invalid, it was unclear which, if any, of the parties or their
representatives were present to receive it. Therefore, with some or all of the parties absent
from this portion of the open proceedings, the Board chose, as per its authority under section
10-10, to serve petitioner with a copy of its decision by depositing it in the mail addressed
to his counsel of record. See 10 ILCS 5/10-10 (West 2010) (“[i]f a party does not appear for
receipt of the decision, the decision shall be deemed to have been served on the absent party
*** on the date when a copy of the decision is deposited in the United States mail ***
addressed to each party *** or to such party’s attorney of record”). The Board mailed its
written decision to petitioner’s attorney on the same date it concluded the hearing.
Accordingly, the record clearly establishes that petitioner was served with the Board’s
decision on this date–January 7, 2011.
¶ 29 Petitioner admits in his brief on appeal that his attorney received the Board’s written
decision in the mail on either January 10 or 11, 2011. Written at the end of the decision,
following the Board members’ signatures, was the following reminder to petitioner:
“NOTICE: Pursuant to Section 10-10.1 of the Election Code (10 ILCS 5/10-10.1)
a party aggrieved of this decision and seeking judicial review of this decision
must file a petition for judicial review with the Clerk of the Circuit Court of
Cook County within 5 days after service of the decision of the Electoral Board.”
(Emphasis in original.)
¶ 30 Accordingly, under the time provision of section 10-10.1, petitioner had five days from
January 7, 2011 to file his petition for judicial review with the clerk of the court and to serve
all necessary parties with it. Indeed, the record reveals that petitioner timely filed his
petition. On January 12, 2011, petitioner filed it with the clerk of the court, arguing why the
Board’s decision should be reversed. See 10 ILCS 5/10-10.1 (West 2010) (petitioner must
state reasons for reversal). To his petition, he attached a copy of the Board’s decision–clearly
showing the date he was served (January 7, 2011) and the timeliness of his filing (January
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12, 2011). In addition, and also as required by section 10-10.1, petitioner filed proof of
service with the clerk of the court. See 10 ILCS 5/10-10.1 (West 2010).
¶ 31 However, in his proof of service, petitioner stated that he served his petition upon the
parties involved by “placing same into the US Postal Service mail receptacle in Chicago,
Illinois at or before 5:00 pm on January 11, 2011.” In his service list, regarding the “parties
involved,” petitioner separately listed the Board and its three members, but stated under each
that he served them “c/o: James Scanlon, General Counsel, 69 W. Washington St., 8th Floor,
Chicago, IL 60602.” He then listed objectors Raddatz and Holst together and stated that he
served them “c/o: Thomas A. Jaconetty, Esq., Attorney for Objectors, 33 North La Salle
Street, Suite 3300, Chicago, Illinois 60602.”
¶ 32 From our review of the record, it is obvious that, while petitioner timely filed his petition
for judicial review and even complied with three of the four mandatory requirements for
such review under section 10-10.1 of the Code (i.e., timely filing, stating reasons for
reversal, and filing proof of service with the court), he did not comply with the service
requirement.
¶ 33 As we discussed at length above, to obtain review of his petition, a petitioner must serve
the proper parties within the proper time and in the proper manner dictated by section 10-
10.1. Petitioner here named all the necessary parties to this litigation: the Board, its
individual members and both objectors. And, he stated that he mailed his petition to them
by January 11, 2010, within the five-day service time frame set by section 10-10.1. Yet, he
failed to properly effectuate service in two critical, and mandatory, ways. First, petitioner
stated only that he placed a copy of his petition “into [a] US Postal Service mail receptacle”
in order to serve the parties. However, section 10-10.1 requires that petitioner send the
parties a copy of his petition “by registered or certified mail.” Clearly, then, petitioner did
not properly serve the Board, its members or objectors when he failed to do this. Second,
petitioner also missed the mark by failing to serve the parties personally. Again, petitioner’s
service list shows that he served “James Scanlon, General Counsel”–the attorney for the
Board and its members–rather than these parties individually. Likewise, he served Thomas
Jaconetty, “Attorney for Objectors,” rather than Raddatz and Holst themselves. Petitioner
served these indispensable parties “care of” their attorneys at the addresses of their
attorneys’ offices; nowhere in his service list did petitioner list the personal (or even
business) addresses of any of the parties. As we noted earlier, in the context of election
cases, service to a party’s attorney, rather than to a party personally, is entirely improper
under the Code and directly violates section 10-10.1. See Nelson, 389 Ill. App. 3d at 87;
Hough, 338 Ill. App. 3d at 1094; Allord, 288 Ill. App. 3d at 902.
¶ 34 In an effort to, perhaps, clarify his actions, petitioner filed multiple documents on
January 18, 2011, immediately before, as well as after, the trial court’s hearing of his matter.
However, none of these save his claim. Before the hearing, he filed a document entitled
“Supplemental Certificate of Service and Corrected Notice of Filing–Corrected Certificate
of Service.” In it, he stated that he mailed his petition to the parties on January 12, 2011, not
January 11, 2011 as he stated originally in his proof of service when he filed his petition with
the court. This, technically, is irrelevant–as we have noted, the five-day time period for
service under section 10-10.1 elapsed on January 12, 2011; so, whether petitioner mailed his
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petition on January 11 or one day later, he was still within the proper time limit. Next,
petitioner included a “corrected” certificate of service, stating that he served the parties by
“certified mail–return receipt requested.” However, the service list he attached to this was
identical to the original one he filed with his petition, listing that he served the Board and
its members “c/o: James Scanlon, General Counsel” and objectors “c/o: Thomas Jaconetty,
Esq., Attorney for Objectors.” Again, service to a necessary party’s attorney in an election
case does not equate to proper service of the necessary party itself under section 10-10.1.
And, immediately before his hearing, petitioner filed a “Supplemental Certificate of
Service,” stating that he served objectors, each individually, with a copy of his petition by
certified mail-return receipt requested “on January 14, 2011.” While in this document,
petitioner finally states he served objectors not via their attorney but, rather, personally at
their own addresses, and that he did so by certified mail–return receipt requested, he clearly
did not do so by January 12, 2011, within the five-day time limit prescribed by section 10-
10.1; moreover, he did not mention any such similar service upon the Board or its members.
¶ 35 After the trial court had found it lacked subject matter jurisdiction due to petitioner’s
improper service upon the parties, petitioner continued to file more documents in his effort
to effectuate proper service. However, just as those he filed before his hearing, none of these
even remotely indicate that he complied with the service requirements of section 10-10.1.
His first posthearing document was entitled “Section 10-10.1 Proof of Service.” In this, he
stated that he served a copy of his petition upon all the parties by certified mail–return
receipt requested “on January 18, 2011” (the day of the hearing), and attached photocopies
of four certified mail receipts all dated January 18, 2011. For the first time, the service list
indicated that petitioner served the Board and each member individually, and not “in care
of” their attorney. However, again, petitioner was outside the five-day time limit for service
when he did this. Petitioner’s second, and last, posthearing filing came on January 24, 2011,
several days after the trial court’s decision. Identically entitled “Section 10-10.1 Proof of
Service,” he stated that he served a copy of his petition “upon all Respondents” by certified
mail–return receipt requested “a third time, on January 18, 2011.” This time, while he
attached return receipt cards for the Board, the members and objector Raddatz, he did not
attach a card for objector Holst or even named him as having been served. Again, then,
petitioner failed to complete proper service upon all the necessary parties via certified mail
within the five-day time frame of section 10-10.1.
¶ 36 Accordingly, precisely due to petitioner’s failure to comply with the strict service
requirements of the Code regarding time and method of service, the trial court did not have
subject matter jurisdiction over his petition for judicial review and, likewise, we do not have
similar jurisdiction to entertain his appeal.
¶ 37 Petitioner presents a wide array of claims on appeal which he believes entitles the merits
of his cause to be reviewed. We find that none of these, however, can effectuate this in light
of the rules we have discussed and the record before us.
¶ 38 Petitioner’s first and main argument is that the time for filing his petition for judicial
review did not begin to run on January 7, 2011, the date the Board deposited its written
decision in the mail, but, rather, on the date he received it, which he states was January 10
or 11, 2011. Pursuant to this claim, petitioner asserts that his five-day window to file and
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serve his petition under section 10-10.1 did not expire, then, until January 18, 2011, when
the trial court reopened following a weekend and a Monday holiday. Thus, he claims that
his additional prehearing and posthearing filings regarding service should save his petition
for review. He also blasts the Board as being “delinquent” for failing to provide proof of
service of its decision and for failing to “adhere to its custom and practice of serving
documents by fax or e-mail delivery.”
¶ 39 Petitioner’s argument is wholly unsupported by any case law or legal precedent. Indeed,
he presents us with none. To the contrary, sections 10-10 and 10-10.1 are plain, ordinary and
unambiguous. If a party is not present at the open proceedings when the Board issues its
written decision, the Board is permitted, within its statutory purview, to either personally
deliver its decision or mail that decision to the party or his attorney of record. Under section
10-10, if the Board chooses to mail its decision, “the decision shall be deemed to have been
served *** on the date when” the Board deposits a copy of it “in the United States mail, in
a sealed envelope or package, with postage prepaid.” 10 ILCS 5/10-10 (West 2010). And,
under section 10-10.1, it is “within 5 days after service of the decision” by the Board in
which petitioner must file his petition for judicial review and properly serve it upon the
necessary parties. 10 ILCS 5/10-10.1 (West 2010). Thus, the time frame and the
requirements upon the Board prescribed by the Code are unmistakably clear: time began to
run on the day the Board mailed its decision (January 7, 2011), not on the day petitioner
received it, and there is no requirement upon the Board to file any sort of proof of service
with respect to this mailing or to perfect service by any means other than depositing it in the
mail, such as by fax or e-mail. See, e.g., Land v. Board of Education, 202 Ill. 2d 414, 421-22
(2002) (where the statutory language is plain, ordinary and unambiguous, we are bound to
enforce the law as written and may not resort to other tools of statutory construction).
¶ 40 Next, petitioner claims that he “substantially” complied with the service requirements
of section 10-10.1 by serving the parties’ attorneys by January 12, 2011, within the five-day
statutory time limit. He further attempts to distinguish several cases which we have
highlighted herein. Again, petitioner’s claim cannot stand. We have already discussed at
length that strict compliance with the Code is required; this rule has been repeatedly tested
and is now well established. See Nelson, 389 Ill. App. 3d at 86-87; Hough, 338 Ill. App. 3d
at 1094; Bill, 299 Ill. App. 3d at 551-52; Rita, 364 Ill. App. 3d at 917. The burden was
entirely on petitioner to meet every mandate of the Code in order to secure review of his
petition. See Bill, 299 Ill. App. 3d at 553 (“[A]ppellants are well advised to serve and notify
all *** necessary parties in order to perfect their appeal. Failure to exercise abundant caution
in this matter compels the termination of an appellant’s case even before it has begun. Such
is the unfortunate consequence” of this failure to strictly comply with the Code.). One of
these requirements is the personal, individual service of all necessary parties–not their
attorneys. See Nelson, 389 Ill. App. 3d at 87; Hough, 338 Ill. App. 3d at 1094; Allord, 288
Ill. App. 3d at 902. Thus, that petitioner may have served the attorneys for the Board, its
members and objectors with his petition by January 12, 2011 is, at best, wholly irrelevant
and, at worst, wholly impermissible. The undeniable fact remains that he failed to timely
serve these parties personally.
¶ 41 Petitioner’s last argument is that section 10-10.1 of the Code is unconstitutional because
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the five-day time period to file and serve a petition for judicial review of a Board’s decision
is too short. He further insists that the section violates due process and equal protection, and
cites the Administrative Review Law (735 ILCS 5/3-103 (West 2010)) and Chin v.
Department of Public Aid, 78 Ill. App. 3d 1137 (1979), while advocating for the imposition
of a longer statutory time period.
¶ 42 This argument is invalid for several reasons. First, petitioner has no standing to challenge
the constitutionality of the filing portion of section 10-10.1. A party has standing to
challenge the constitutionality of a statute only when he has suffered under it. See In re
Veronica C., 239 Ill. 2d 134, 150 (2010) (party lacked standing to challenge constitutionality
of statute because she was not adversely affected by its operation); accord Cwik v.
Giannoulias, 237 Ill. 2d 409, 423 (2010) (party has standing to challenge constitutionality
of statute only when it negatively impacts his own rights). Here, the record establishes that
petitioner timely filed his petition for judicial review under section 10-10.1, when he did so
with the court on January 12, 2011. Moreover, as we have discussed, his petition was not
only timely filed, but also properly included, as per the statute’s mandate, a brief statement
of the reasons why the Board’s decision should be reversed and proof of service filed with
the court. Clearly, petitioner strictly complied with this portion of section 10-10.1 and was
not aggrieved by it in any way.
¶ 43 We consider that petitioner might have standing to challenge the service portion of
section 10-10.1. It was his errors in relationship to this portion that divested the court of
subject matter jurisdiction. However, his assertions that the Administrative Review Law
should control this portion of the Code to afford more time for service and his reliance on
Chin are completely misplaced.
¶ 44 We begin by reiterating the guiding principles of our laws regarding statutory
interpretation. A statute is presumed constitutional, and courts must construe a statute so as
to uphold its constitutionality when it is reasonably possible to do so. See Irwin Industrial
Tool Co. v. Department of Revenue, 238 Ill. 2d 332, 340 (2010). The party challenging the
statute bears the burden of clearly proving its invalidity and establishing a constitutional
violation. See Irwin Industrial, 238 Ill. 2d at 340.
¶ 45 Arguments similar to petitioner’s that the Administrative Review Law should somehow
control the provisions of the Code have already been addressed by our courts. Essentially,
petitioner here argues that, since the Administrative Review Law allows 35 days for
aggrieved parties to file their petitions for judicial review (see 735 ILCS 5/3-103 (West
2010)), the Code must follow suit in order to protect against due process and equal
protection violations. However, our courts have specifically examined the possible
application of the Administrative Review Law to the Code and concluded that in only one
instance does it apply: with respect to section 10-10.1 of the Code, where a party is
aggrieved by a Board decision regarding section 18-120 of the Property Tax Code (35 ILCS
200/18-120 (West 2010)). See Bill, 299 Ill. App. 3d at 554-55; see, e.g., Nelson, 389 Ill. App.
3d at 88. Only then does the Code refer the party to the time and procedures prescribed by
the Administrative Review Law. See Bill, 299 Ill. App. 3d at 554-55. Specifically, “[i]n
examining section 10-10.1 of the Code, there exists no similar express language indicating
that the Administrative Review Law should apply.” Bill, 299 Ill. App. 3d at 554. To the
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contrary, our courts have consistently held that “the Administrative Review Law will not
dictate what procedural requirements must be followed in order to appeal a decision rendered
by the [Board].” Bill, 299 Ill. App. 3d at 555; accord Nelson, 389 Ill. App. 3d at 88 (The
Administrative Review Law “ ‘has no direct bearing upon the clearly drawn procedural
mechanisms that must be followed when a[ Board] decision is appealed under [section 10-
10.1].’ Bill, 299 Ill. App. 3d at 556.”).
¶ 46 Finally, Chin does not support petitioner’s arguments. Petitioner states that Chin stands
for the proposition that “at least seven days after actual delivery of an administrative agency
decision, or nine days after mail delivery,” are necessary for an aggrieved party to effectuate
his rights. This is totally incorrect, and Chin is entirely distinguishable from the instant
cause. First, Chin involved the application of provisions of the Public Aid Code and the
Administrative Review Law; nowhere was the Code involved. See Chin, 78 Ill. App. 3d at
1139. Moreover, Chin actually supports our findings, rather than petitioner’s, regarding
when service is effectuated. That is, the Chin court reviewed an administrative decision
which terminated a doctor’s participation in a medical assistance program. One of the issues
raised before the court was when the 35-day time period for filing a complaint under the
Administrative Review Law, which was the applicable statute, began to run. The Chin court
noted that section 4 of the then-current version of the Administrative Review Law stated that
“a decision shall be deemed to have been served either when personally delivered or when
deposited in the United States mail, in a sealed envelope or package, with postage prepaid,
addressed to the party affected thereby at his last known residence or place of business.”
(Internal quotation marks omitted.) Chin, 78 Ill. App. 3d at 1139. The Chin court ultimately
determined that this plain and unambiguous statutory language made clear that the time
period began to run when the decision was deposited in the mail and not, as the plaintiff
insisted, when he received the decision. See Chin, 78 Ill. App. 3d at 1139-40 (citing with
approval this same conclusion as found in Thompson v. Illinois Civil Service Comm’n, 63
Ill. App. 3d 153 (1978)). Finally, the Chin court also address the plaintiff’s insistence that
his constitutional rights were violated by such a reading of the service requirement. It
concluded that his argument failed. Examining other cases holding that shorter time periods
for filing (for example, seven and nine days) were constitutionally valid, the Chin court
found the 35-day period constitutional as well, and concluded that as long as the party
seeking review receives notice within the statutory time period, that period should be upheld.
See Chin, 78 Ill. App. 3d at 1140-41.
¶ 47 Thus, it is apparent that, not only did Chin not involve the Code, but it also presents itself
as inherently contradictory to petitioner’s arguments here. The applicable language regarding
service in Chin is almost identical to the language regarding service in section 10-10.1 of the
Code, which predominates this cause. Just as the Chin court found from this language that
service begins to run on the date a decision is placed in the mail and not from when it is
received, we, too, find that service here began to run on the date when the Board placed its
decision in the mail on January 7, 2011, and not from when petitioner received it on January
10 or 11, 2011. And, any allegation that his constitutional rights are somehow violated by
this interpretation is meritless. Petitioner received notice of the Board’s decision, he had time
to file and serve his petition for judicial review within the statutory five-day time period of
section 10-10.1, and he timely filed it and (attempted to) served it. He simply did not carry
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through his burden by completing proper service in the manner prescribed by section 10-10.1
within the time period as well, which required certified mail and service upon the necessary
parties individually.
¶ 48 Ultimately, petitioner’s failures in strictly following the service requirements of section
10-10.1 of the Code divested the trial court of subject matter jurisdiction to consider his
petition for judicial review of the Board’s decision to invalidate his candidacy and bar his
name from appearing on the ballot. As the trial court did not have jurisdiction over the
matter, we, too, lack jurisdiction to review the merits of his appeal.3 Therefore, we hold that
the trial court properly granted the Board’s and objectors’ motions to dismiss petitioner’s
cause, and we must dismiss the instant appeal.
¶ 49 CONCLUSION
¶ 50 Accordingly, for all the foregoing reasons, we affirm the order of the trial court and
dismiss the instant appeal.
¶ 51 Order affirmed; appeal dismissed.
3
Accordingly, we do not consider petitioner’s substantive claims, namely, that the hearing
officer improperly vacated its default order when objectors initially failed to appear before him and
that the presence of objectors’ counsel’s nonattorney clerical legal assistant before the hearing officer
violated certain rules concerning the unauthorized practice of law.
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