Bettis v. Marsaglia , 2013 IL App (4th) 130145 ( 2014 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Bettis v. Marsaglia, 2013 IL App (4th) 130145Appellate Court CAROLYN BETTIS, Plaintiff-Appellant, v. CHARLES M.
Caption MARSAGLIA and MELISSA O’NEAL, Objectors; STEPHEN
FURMAN, Electoral Board Chairperson; ROBYN HAYS, Electoral
Board Secretary; and FARLEY COLE, Electoral Board Member,
Defendants-Appellees.
District & No. Fourth District
Docket No. 4-13-0145
Filed November 13, 2013
Held Although plaintiff’s petition for judicial review of an electoral board’s
(Note: This syllabus dismissal of her petition to submit a proposition to the voters of a school
constitutes no part of district regarding the district’s issuance of working cash bonds was moot
the opinion of the court because the election specified in her petition had been held, the appeal
but has been prepared was considered under the public-interest exception to the mootness
by the Reporter of doctrine, and the dismissal was upheld on the ground that plaintiff’s
Decisions for the failure to comply with the explicit requirement of section 10-10.1(a) of
convenience of the the Election Code that the board be served with her petition for judicial
reader.)
review as a separate legal entity deprived the trial court of subject-matter
jurisdiction.
Decision Under Appeal from the Circuit Court of Macoupin County, No. 13-MR-14; the
Review Hon. Patrick J. Londrigan, Judge, presiding.
Judgment Affirmed.
Counsel on Vince Moreth, of Carlinville, for appellant.
Appeal
Robert Kohn and Steven M. Richart, both of Hodges, Loizzi,
Eisenhammer, Rodick & Kohn LLP, of Arlington Heights, for appellees.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Appleton and Pope concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Carolyn Bettis, filed a petition for judicial review of a decision of the Education
Officers Electoral Board (Electoral Board) for North Mac Community Unit School District
No. 34, Macoupin, Montgomery and Sangamon Counties, Illinois (School District), pursuant
to section 10-10.1(a) of the Election Code (10 ILCS 5/10-10.1(a) (West 2012)). On the
motion of defendants Charles M. Marsaglia and Melissa O’Neal, the circuit court dismissed
plaintiff’s petition pursuant to section 2-619 of the Code of Civil Procedure (Civil Code)
(735 ILCS 5/2-619 (West 2012)). Plaintiff appeals, arguing the court erred by granting
defendants’ motion to dismiss. We affirm.
¶2 I. BACKGROUND
¶3 On January 28, 2013, plaintiff filed her petition for judicial review of the Electoral
Board’s decision in the circuit court. She alleged the Electoral Board erroneously sustained
objections to petitions she submitted to the School District, which sought to submit a
proposition to voters on the April 9, 2013, ballot regarding the School District’s issuance of
$2 million in working cash bonds. Plaintiff asserted the objections were filed by defendants
Marsaglia and O’Neal on the basis that her petitions were unnumbered and not appropriately
bound. She asked that the court reverse the Electoral Board’s decision as being against the
manifest weight of the evidence.
¶4 In the caption of her petition, plaintiff expressly named only Marsaglia and O’Neal as
opposing parties. However, she filed a certificate of service with her petition and the record
reflects copies of the petition were sent by certified mail to eight individuals, including
Marsaglia; O’Neal; and the three members of the Electoral Board, Stephen Furman, Robyn
Hays, and Farley Cole.
¶5 On February 5, 2013, defendants filed their motion to dismiss plaintiff’s petition, arguing
the circuit court lacked subject-matter jurisdiction because plaintiff failed to name and join
the Electoral Board and its members as parties to the proceedings as required by section 10-
10.1(a) of the Election Code (10 ILCS 5/10-10.1(a) (West 2012)). On February 7, 2013, the
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court conducted a hearing in the matter and granted defendants’ motion to dismiss.
¶6 This appeal followed.
¶7 II. ANALYSIS
¶8 Initially on appeal, we address defendants’ claim that plaintiff’s appeal should be
dismissed as moot. They contend no actual controversy exists where plaintiff’s petition to
submit a proposition to voters specified the April 9, 2013, election and that election has
passed.
¶9 Generally, a reviewing court will not decide moot questions and a case that is moot will
be dismissed on appeal. Rivera v. City of Chicago Electoral Board, 2011 IL App (1st)
110283, ¶ 15, 956 N.E.2d 20. “A case is moot when it presents no actual controversy or
when the legal issue involved has ceased to exist.” Rivera, 2011 IL App (1st) 110283, ¶ 15,
956 N.E.2d 20. The conclusion of an election cycle normally renders an election contest
moot. Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 43, 975 N.E.2d 583;
see also Rivera, 2011 IL App (1st) 110283, ¶ 16, 956 N.E.2d 20. However, a reviewing court
may address an otherwise moot issue pursuant the public-interest exception to the mootness
doctrine. Rivera, 2011 IL App (1st) 110283, ¶ 17, 956 N.E.2d 20. “The public interest
exception *** allows a court to reach the merits of a case which would otherwise be moot
if the question presented is of a public nature, an authoritative resolution of the question is
desirable for the purpose of guiding public officers, and the question is likely to recur.”
Jackson, 2012 IL 111928, ¶ 44, 975 N.E.2d 583.
¶ 10 Here, we agree that plaintiff’s appeal is moot. Her petition to submit a proposition to
voters regarding the School District’s issuance of $2 million in working cash bonds specified
the April 9, 2013, election and that election has passed. However, we also find this case
meets the requirements of the public-interest exception and choose to address the merits of
plaintiff’s appeal. We note a question of election law is inherently a matter of public concern.
Jackson, 2012 IL 111928, ¶ 44, 975 N.E.2d 583. Additionally, this case presents questions
for which an authoritative resolution is desirable because, not only have the issues involved
not been previously addressed by this appellate district, but there is disagreement as to the
resolution of the issues among the other appellate districts.
¶ 11 Finally, we find the questions presented by plaintiff’s appeal are likely to recur.
Defendants argue this case is incapable of repetition because the Election Code has been
amended so that the County Officers Electoral Board, rather than the Educational Officers
Electoral Board, would address the issues raised by plaintiff’s underlying action. See Pub.
Act 98-115, § 5 (eff. July 29, 2013) (amending 10 ILCS 5/10-9 (West 2012)). However,
section 10-10.1(a) of the Election Code continues to govern petitions for judicial review of
any electoral board decision and was unchanged by recent amendments. The same issues
presented by this appeal could have occurred no matter which electoral board presided over
the underlying proceedings.
¶ 12 On appeal, plaintiff argues the circuit court erred in dismissing her petition for judicial
review for lack of subject-matter jurisdiction. She contends she met the express requirements
of section 10-10.1(a) of the Election Code, which sets forth the procedures for seeking
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judicial review of an electoral board decision, and maintains that naming the Electoral Board
in the caption of her petition was not required by section 10-10.1(a) to establish subject-
matter jurisdiction. Plaintiff cites the Second District’s decision in Zack v. Ott, 381 Ill. App.
3d 545, 886 N.E.2d 487 (2008), to support her position and argues the cases cited by
defendants are inapposite.
¶ 13 “Where *** judicial review of an electoral board’s decision is sought pursuant to section
10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2010)), the proceeding is in the
nature of administrative review.” Jackson, 2012 IL 111928, ¶ 46, 975 N.E.2d 583.
“[W]hether a court has subject matter jurisdiction over issues resulting from a petitioner’s
alleged failure to comply with the [Election] Code is a question of law that *** requires de
novo review.” Rivera, 2011 IL App (1st) 110283, ¶ 19, 956 N.E.2d 20.
¶ 14 “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 [Election] Code.” Rivera,
2011 IL App (1st) 110283, ¶ 20, 956 N.E.2d 20; see also Pullen v. Mulligan, 138 Ill. 2d 21,
32, 561 N.E.2d 585, 589 (1990) (“Courts have no inherent power to hear election contests,
but may do so only when authorized by statute and in the manner dictated by statute.”).
“Accordingly, the requirements mandated upon the parties as provided in [the Election Code]
are jurisdictional requirements that must be followed.” Rivera, 2011 IL App (1st) 110283,
¶ 20, 956 N.E.2d 20. The failure to strictly comply with section 10-10.1’s requirements
“invites dismissal for lack of subject matter jurisdiction under section 2-619 of the [Civil]
Code.” Nelson v. Qualkinbush, 389 Ill. App. 3d 79, 86-87, 907 N.E.2d 400, 407 (2009).
¶ 15 Section 10-10.1(a) of the Election Code (10 ILCS 5/10-10.1(a) (West 2012)) provides
as follows:
“[A] candidate or objector aggrieved by the decision of an electoral board may secure
judicial review of such decision in the circuit court of the county in which the hearing of
the electoral board was held. 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 electoral board and
other parties to the proceeding by registered or certified mail within 5 days after service
of the decision of the electoral board as provided in Section 10-10. The petition shall
contain a brief statement of the reasons why the decision of the board should be reversed.
The petitioner shall file proof of service with the clerk of the court. No answer to the
petition need be filed, but the electoral board shall cause the record of proceedings before
the electoral board to be filed with the clerk of the court on or before the date of the
hearing on the petition or as ordered by the court.”
Courts interpreting section 10-10.1(a) have found that a petitioner must satisfy four explicit
jurisdictional prerequisites to obtain judicial review of an electoral board decision, including
that the petitioner “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.” Rivera, 2011 IL
App (1st) 110283, ¶ 22, 956 N.E.2d 20; see also Nelson, 389 Ill. App. 3d at 86, 907 N.E.2d
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at 406-07; Zack, 381 Ill. App. 3d at 550, 886 N.E.2d at 491; Allord v. Municipal Officers
Electoral Board, 288 Ill. App. 3d 897, 901, 682 N.E.2d 125, 128 (1997).
¶ 16 In Zack, 381 Ill. App. 3d at 550, 886 N.E.2d at 491, the Second District held section 10-
10.1’s plain language did “not mandate a caption at all, let alone one that identifies particular
parties.” In that case, the respondents argued the circuit court lacked subject-matter
jurisdiction because the petitioner failed to name the Electoral Board’s members in the
caption of his petition. Zack, 381 Ill. App. 3d at 550, 886 N.E.2d at 491. However, the
Second District noted there was no dispute that the petitioner met the express requirements
of section 10-10.1 and “proper service on each of the members of the Electoral Board [was]
not disputed.” Zack, 381 Ill. App. 3d at 550-52, 886 N.E.2d at 491-92. The court further
reasoned as follows:
“Our reading of section 10-10.1 reveals that the General Assembly intended for
procedural due process to be accomplished by an objector serving the electoral board
members with the petition by registered or certified mail. Apparently, the General
Assembly believed that the additional task of naming the parties served was unnecessary.
If the General Assembly had intended a caption requirement and the naming of the
parties, it would have included them in section 10-10.1.” Zack, 381 Ill. App. 3d at 550-
51, 886 N.E.2d at 491.
¶ 17 In reaching its decision, the Second District distinguished two cases defendants now rely
upon to support their position on appeal, Russ v. Hoffman, 288 Ill. App. 3d 281, 681 N.E.2d
519 (1997), and Bill v. Education Officers Electoral Board of Community Consolidated
School District No. 181, 299 Ill. App. 3d 548, 701 N.E.2d 262 (1998). Zack, 381 Ill. App.
3d at 552, 886 N.E.2d at 492-93. It pointed out that both Russ and Bill involved a lack of
service upon necessary electoral board members, an issue not present in the case before it.
Zack, 381 Ill. App. 3d at 552-53, 886 N.E.2d at 492-93. On appeal, defendants cite a third
case to support their position, Allord, 288 Ill. App. 3d 897, 682 N.E.2d 125. However, that
case is similarly distinguishable from Zack, in that it also involved a lack of service on
necessary parties. Allord, 288 Ill. App. 3d at 901, 682 N.E.2d at 128-29.
¶ 18 Here, we agree with the Second District’s decision in Zack. Clearly, the requirements of
section 10-10.1(a) are jurisdictional and must be complied with by a petitioner seeking
judicial review of an electoral board decision. Naming necessary parties in the petition is not
a requirement of section 10-10.1(a), and the cases cited by defendants in opposition to the
holding in Zack are distinguishable in that each of those cases, Russ, Bill, and Allord,
involved a lack of appropriate service on necessary parties.
¶ 19 Defendants further argue that proceedings under the Election Code are substantially the
same as those under the Administrative Review Law (735 ILCS 5/3-101 to 3-113 (West
2012)). They point out that this court has held that the Administrative Review Law requires,
as a jurisdictional prerequisite, that an administrative agency and its members be named in
the caption of a complaint for administrative review. See Associated General Contractors
of Illinois v. Chun, 245 Ill. App. 3d 750, 756, 615 N.E.2d 386, 391 (1993). Although we
agree that proceedings under the Election Code are in the nature of administrative review,
we disagree that the Administrative Review Law applies to section 10-10.1(a).
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¶ 20 The Administrative Review Law only applies where it is adopted by express reference
in the act creating or conferring power upon the administrative agency involved and “there
exists no *** express language indicating that the Administrative Review Law should apply
to the judicial review of Electoral Board decisions.” Bill, 299 Ill. App. 3d at 554, 701 N.E.2d
at 266. Where the legislature has intended for the Administrative Review Law to apply to
proceedings under the Election Code it has made an express reference to that statute. See 10
ILCS 5/10-10.1(b) (West 2012) (providing that the Administrative Review Law applies to
proceedings for judicial review of decisions of the State Board of Elections involving
petitions filed under the Property Tax Code). Moreover, we note it was logical for this court
to determine in Associated General that the naming of an administrative agency and its
members in the caption of a complaint for administrative review was necessary under the
Administrative Review Law because the Administrative Review Law contains such express
requirements. See 735 ILCS 5/3-107 (West 2012). However, section 10-10.1(a) contains no
similar express requirements.
¶ 21 On appeal, defendants additionally argue plaintiff’s request for judicial review was
deficient in several other respects. Specifically, they contend plaintiff failed to (1) include
the legal name of the Electoral Board in her petition, (2) identify the Electoral Board
members in her petition, (3) include a copy of the Electoral Board’s written decision in her
filings, (4) quote text from the Electoral Board’s decision in her petition, (5) identify the
roles or titles of any of the persons and/or entities being served, and (6) include any summons
in her filings. Again, we point out that, to confer subject-matter jurisdiction on the circuit
court, plaintiff had to meet only the requirements of section 10-10.1(a) of the Election Code.
The majority of the deficiencies alleged by defendants were neither set forth in section 10-
10.1(a) as requirements nor were they necessary to confer jurisdiction on the court.
¶ 22 However, as stated, section 10-10.1(a) does expressly require that a petitioner “serve a
copy of the petition upon the electoral board and other parties.” As defendants’ indicate,
plaintiff did not identify the Electoral Board as having been served with a copy of her
petition for judicial review. Instead, her certificate of service states only that eight individuals
were served, including Marsaglia, O’Neal, the three members of the Electoral Board, two
attorneys involved in the case, and a witness who appeared in the underlying proceedings.
¶ 23 A review of applicable case authority reveals disagreement among the appellate districts
as to whether service on an electoral board as a separate legal entity is necessary or whether
service on electoral board members is sufficient to comply with the requirements of section
10-10.1(a). In Nelson, 389 Ill. App. 3d at 87, 907 N.E.2d at 407, the First District held that
“[t]here can be no doubt that section 10-10.1 requires service of the Board” and the Election
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 to obtain jurisdiction over them.”
(Emphasis in original.) In so holding, the court rejected arguments that service on electoral
board members was sufficient or that service on an electoral board may be impossible
because it is a temporary entity. Nelson, 389 Ill. App. 3d at 87-88, 907 N.E.2d at 407-08. The
court noted the Election Code details who comprises an electoral board and where and when
it must meet. Nelson, 389 Ill. App. 3d at 88, 907 N.E.2d at 408. Specifically, the Electoral
Board at issue in that case, the Municipal Officers Electoral Board, “conduct[ed] its business
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at the City of Calumet City building and the Board [could have been] served there by filing
with the city clerk.” Nelson, 389 Ill. App. 3d at 88, 907 N.E.2d at 408.
¶ 24 The First District reached the same conclusion in Rivera, 2011 IL App (1st) 110283,
¶ 24, 956 N.E.2d 20. There the court held that the statutory language clearly required service
upon “the Board itself, as the entity that issued the decision which the petitioner seeks to
challenge.” Rivera, 2011 IL App (1st) 110283, ¶ 24, 956 N.E.2d 20.
¶ 25 Conversely, in Langenstein v. Kassimali, 2012 IL App (5th) 120343, ¶ 7, 975 N.E.2d
340, the Fifth District held that where petitions for review had been served upon electoral
board members, the requirements of section 10-10.1(a) have been followed. The court
expressly chose not to follow Nelson, finding an electoral board was a temporary entity and
“serving of duplicate papers to the county clerk, in order to serve the board separately, was
unnecessary to invoke the subject matter jurisdiction of the court.” Langenstein, 2012 IL App
(5th) 120343, ¶¶ 7-11, 975 N.E.2d 340. Additionally, the court found its decision was
bolstered by Zack, quoting language from that decision that “ ‘the General Assembly
intended for procedural due process to be accomplished by an objector serving the electoral
board members with the petition by registered or certified mail.’ ” Langenstein, 2012 IL App
(5th) 120343, ¶ 10, 975 N.E.2d 340 (quoting Zack, 381 Ill. App. 3d at 550, 886 N.E.2d at
491). See also Carlasare v. Will County Officers Electoral Board, 2012 IL App (3d) 120699,
¶ 17, 977 N.E.2d 298 (citing Langenstein for the proposition that it was unnecessary to make
duplicate service of a petition for judicial review under section 10-10.1(a)).
¶ 26 We agree with the First District’s holdings in Nelson and Rivera and find section 10-
10.1(a) of the Election Code clearly requires service on an electoral board as a separate legal
entity. As expressed by the dissenting justice in Langenstein, the plain language of section
10-10.1(a) “requires that a petition for judicial review be served upon ‘the electoral board.’ ”
Langenstein, 2012 IL App (5th) 120343, ¶ 17, 975 N.E.2d 340 (Donovan, P.J., dissenting).
Additionally, as further noted by the dissent, the Second District’s decision in Zack was not
supportive of the ultimate holding in Langenstein as Zack “was concerned with the question
of whether section 10-10.1 requires naming an electoral board as a party in the caption for
jurisdictional purposes, and *** not *** with the question of service of process.”
Langenstein, 2012 IL App (5th) 120343, ¶ 18, 975 N.E.2d 340 (Donovan, P.J., dissenting).
¶ 27 Here, plaintiff was required to strictly comply with the requirements of section 10-10.1(a)
of the Election Code when seeking judicial review of the Electoral Board’s decision.
Although naming the Electoral Board and its members in the caption of her petition is not
expressly mandated by section 10-10.1(a), service of the petition on the Electoral Board is
an explicit requirement. In this instance, the record failed to show plaintiff served the
Electoral Board, as a separate legal entity, with her petition for judicial review. As a result,
the circuit court committed no error in granting defendants’ motion to dismiss her petition.
¶ 28 III. CONCLUSION
¶ 29 For the reasons stated, we affirm the circuit court’s judgment.
¶ 30 Affirmed.
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