Bettis v. Marsaglia , 2014 IL 117050 ( 2015 )

Illinois Official Reports
Supreme Court
Bettis v. Marsaglia, 2014 IL 117050Caption in Supreme CAROLYN BETTIS, Appellant, v. CHARLES M. MARSAGLIA
Court: et al., Appellees.
Docket No. 117050
Filed December 18, 2014
Held After an electoral board sustained objections to plaintiff’s petition for
(Note: This syllabus a referendum on school bonds and plaintiff sought judicial review, the
constitutes no part of the Election Code provision calling for service on the board was satisfied,
opinion of the court but and there was no lack of subject matter jurisdiction in the circuit court,
has been prepared by the where every board member was served individually, even though no
Reporter of Decisions relief could later be granted once the election was over—issue
for the convenience of addressed in spite of mootness.
the reader.)
Decision Under Appeal from the Appellate Court for the Fourth District; heard in that
Review court on appeal from the Circuit Court of Macoupin County, the Hon.
Patrick J. Londrigan, Judge, presiding.
Judgment Appellate court judgment reversed.
Circuit court judgment reversed.
Counsel on Vincent W. Moreth, of Carlinville, for appellant.
Appeal
Robert W. Dodd, of Virden, for appellees Charles M. Marsaglia and
Melissa O’Neal.
Robert A. Kohn and Steven M. Richart, of Hodges, Loizzi,
Eisenhammer, Rodick & Kohn LLP, of Arlington Heights, for
appellees Stephen Furman, Robyn Hays and Farley Cole.
Justices JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, and
Burke concurred in the judgment and opinion.
Justice Theis dissented, with opinion.
OPINION
¶1 Petitioner, Carolyn Bettis, filed a petition for judicial review of a decision of the Education
Officers Electoral Board for North Mac Community Unit School District No. 34, Macoupin,
Montgomery and Sangamon Counties (School District) pursuant to section 10-10.1(a) of the
Election Code (Code) (10 ILCS 5/10-10.1(a) (West 2012)). Objectors, Charles M. Marsaglia
and Melissa O’Neal, filed a motion to dismiss under section 2-619(a)(1) of the Code of Civil
Procedure (735 ILCS 5/2-619(a)(1) (West 2012)), arguing that the circuit court lacked subject
matter jurisdiction because of petitioner’s failure to comply with the procedural requirements
of section 10-10.1(a). The circuit court of Macoupin County granted the motion to dismiss, and
the appellate court affirmed (2013 IL App (4th) 130145). We allowed petitioner’s petition for
leave to appeal, and we now reverse.
¶2 BACKGROUND
¶3 On November 28, 2012, the School District adopted a resolution declaring its intent to
issue working cash bonds in the amount of $2 million. Petitioner Carolyn Bettis filed a petition
with the School District, seeking to submit the proposition of issuing the bonds to the voters.
The petition specified that the proposition should be submitted to voters at the “election to be
held on the 9th day of April, 2013.” Charles M. Marsaglia and Melissa O’Neal filed objections
to the petition on seven separate bases, including that the petition sheets were neither
numbered nor securely bound, as required by section 28-3 of the Code (10 ILCS 5/28-3 (West
2012)). Following a hearing, the electoral board sustained the objections that the petitions were
neither numbered nor bound. The objectors then withdrew their remaining objections.
¶4 Petitioner commenced an action for judicial review in the circuit court. The caption of the
petition identified only objectors Marsaglia and O’Neal as opposing parties. Nevertheless, in
-2-
addition to serving a copy of the petition for judicial review on objectors, petitioner served, by
certified mail, all three members of the electoral board, counsel for the electoral board, counsel
for the objectors, and the School District secretary. On February 5, 2013, the defendants
moved to dismiss the petition, arguing that the circuit court lacked jurisdiction because
petitioner had failed to name and join as parties the Education Officers Electoral Board and its
members. The circuit court granted the motion and dismissed the complaint.
¶5 The appellate court affirmed the dismissal. The court first noted that the appeal was moot
because the election had already passed. However, the court found that the case qualified for
review under the public interest exception to the mootness doctrine. 2013 IL App (4th)
130145, ¶¶ 10-11. The court agreed with petitioner that section 10-10.1(a) of the Code clearly
spells out the jurisdictional requirements for judicial review of an electoral board decision, and
that naming necessary parties is not one of these requirements. Thus, petitioner’s failure to
name the electoral board as a party in her petition did not require the court to dismiss the
petition for lack of subject matter jurisdiction. Id. ¶ 18. Nevertheless, the appellate court
agreed with defendants that, although petitioner served all three members of the electoral
board, her failure to serve the electoral board as a separate legal entity required the dismissal of
her petition. Id. ¶ 26. On this basis, the court upheld the circuit court’s dismissal of the petition.
Id. ¶ 27. We allowed petitioner’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1,
2013).
¶6 ANALYSIS
¶7 On appeal, petitioner argues that she complied with section 10-10.1(a)’s requirement that
she serve the electoral board when she served every member of the board. She contends that
duplicate service on the board as a separate legal entity is not necessary. By way of cross
appeal, defendants argue that: (1) the court lacked subject matter jurisdiction because the
petition failed to name the electoral board and did not contain any portion of the electoral
board’s written decision; and (2) the electoral board’s decision must be affirmed because the
complaint admits that the petition pages were not numbered and, according to two witnesses,
were not bound.
¶8 Before proceeding to the merits of the appeal, we must address defendants’ argument that
we should dismiss the appeal as moot. A case on appeal becomes moot where the issues
presented in the trial court no longer exist because events subsequent to the filing of the appeal
render it impossible for the reviewing court to grant the complaining party effectual relief.
Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 28. The conclusion of an
election cycle generally renders an election contest moot. Id. ¶ 43. There is no question that all
of the issues raised in this appeal are moot. Petitioner’s petition sought to submit a proposition
to voters at the April 9, 2013, election, and that date has long since passed.
¶9 Nevertheless, one exception to the mootness doctrine allows a court to resolve an
otherwise moot issue if the issue involves a substantial public interest. Wisnasky-Bettorf v.
Pierce, 2012 IL 111253, ¶ 12. The criteria for invoking the public interest exception are that:
(1) the question presented is of a public nature; (2) an authoritative resolution of the question is
desirable for the purpose of guiding public officers; and (3) the question is likely to recur.
Jackson, 2012 IL 111928, ¶ 44. When the public interest exception is invoked, the court must
-3-
examine each of the issues to see which ones qualify for resolution under that exception. See In
re Christopher K., 217 Ill. 2d 348, 360-63 (2005).
¶ 10 We hold that petitioner’s issue and one of the two cross-appeal issues qualify for resolution
under the public interest exception. One of defendants’ cross-appeal issues is that the electoral
board’s decision may be affirmed on the basis that petitioner’s petition pages were neither
numbered nor securely bound. This is merely a case-specific, factual issue, for an election that
has long since passed. Consequently, it does not meet the criteria of the public interest
exception.
¶ 11 By contrast, the other two issues—whether a party must serve both the electoral board as
an entity and all of the members of the board, and whether a party must name the electoral
board and attach the board’s decision—meet all three criteria of the public interest exception.
As we noted in Jackson, questions relating to election law are inherently a matter of public
concern. Jackson, 2012 IL 111928, ¶ 44. Moreover, the fact that these issues have already
arisen in several cases and generated conflicting answers indicates that the issues will continue
to arise until this court resolves the conflict.1 For that reason, an authoritative decision from
this court to guide the lower courts is desirable.
¶ 12 Petitioner argues that the circuit court erred in dismissing her petition for judicial review.
According to petitioner, she complied with the statutory requirement that she serve the
electoral board when she served every member of the board. For two reasons, our review of
this issue is de novo. Review of the granting of a motion to dismiss for lack of subject matter
jurisdiction is de novo. People v. Philip Morris, Inc., 198 Ill. 2d 87, 94 (2001). Further,
resolving this particular issue requires us to construe section 10-10.1(a), and issues of statutory
construction are reviewed de novo. Home Star Bank & Financial Services v. Emergency Care
& Health Organization, Ltd., 2014 IL 115526, ¶ 22.
¶ 13 When construing a statute, this court’s primary objective is to ascertain and give effect to
the intent of the legislature. Barragan v. Casco Design Corp., 216 Ill. 2d 435, 441 (2005). The
best indication of legislative intent is the language used in the statute, which must be given its
plain and ordinary meaning. Gillespie Community Unit School District No. 7 v. Wight & Co.,
2014 IL 115330, ¶ 31. It is improper for a court to depart from the plain statutory language by
reading into the statute exceptions, limitations, or conditions that conflict with the clearly
expressed legislative intent. Metropolitan Life Insurance Co. v. Hamer, 2013 IL 114234, ¶ 18.
Words and phrases should not be viewed in isolation, but should be considered in light of other
relevant provisions of the statute. Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314,
320 (2003). Further, each word, clause and sentence of a statute must be given a reasonable
construction, if possible, and should not be rendered superfluous. Prazen v. Shoop, 2013 IL
115035, ¶ 21. This court presumes that the legislature did not intend absurdity, inconvenience,
or injustice. Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 23.
1
Defendants argue that petitioner’s issue will not arise again because Public Act 98-115 abolished
school district electoral boards. However, this change merely means that similar election challenges
will be heard by the County Officers Electoral Board rather than the Education Officers Electoral
Board. See Pub. Act 98-115, § 5 (eff. July 29, 2013) (amending 10 ILCS 5/10-9 (West 2012)). The
disputed statutory language in section 10-10.1(a) was unchanged by the amendment, and thus the issues
raised in this appeal will continue to arise until this court resolves them.
-4-
Where statutory language is clear and unambiguous, it will be given effect without resort to
other aids of construction. Kunkel v. Walton, 179 Ill. 2d 519, 534 (1997). However, where the
meaning of an enactment is unclear from the statutory language itself, the court may look
beyond the language employed and consider the purpose behind the law and the evils the law
was designed to remedy. Id. at 533-34.
¶ 14 Circuit courts may exercise jurisdiction over election cases only as provided by statute.
Pullen v. Mulligan, 138 Ill. 2d 21, 32 (1990); Ill. Const. 1970, art. VI, § 9 (“Circuit Courts shall
have such power to review administrative action as provided by law.”). When a court exercises
special statutory jurisdiction, that jurisdiction is limited to the language of the act conferring it,
and the court has no powers from any other source. Fredman Brothers Furniture Co. v.
Department of Revenue, 109 Ill. 2d 202, 210 (1985). In the exercise of special statutory
jurisdiction, if the mode of procedure prescribed by statute is not strictly pursued, no
jurisdiction is conferred on the circuit court. Id.¶ 15 The procedure for obtaining judicial review of an electoral board decision is spelled out in
section 10-10.1(a) of the Code:
“(a) Except as otherwise provided in this Section, 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.” 10 ILCS 5/10-10.1(a) (West 2012).
¶ 16 Initially, we note that the issue before us is not one of strict compliance versus substantial
compliance. There is no question that strict compliance with section 10-10.1(a) is required. See
Fredman, 109 Ill. 2d at 210. Rather, the question is how a party strictly complies with section
10-10.1(a). The statute clearly requires that the electoral board be served, but the appellate
court has split over what that means. In other words, if a petitioner serves every member of the
board, has the petitioner served the board, or is duplicate service on the board as an entity also
required?
¶ 17 The first case to address the issue on facts similar to those we have here was Nelson v.
Qualkinbush, 389 Ill. App. 3d 79 (2009). In that case, the petitioner served every member of
the electoral board, both at their home and at the city building. Id. at 87. The Appellate Court,
First District, held that this was not sufficient to confer jurisdiction on the circuit court because
there was “no doubt” that section 10-10.1(a) required service both on every member of the
board and the board as a separate entity. As authority, the court relied on a line of cases that
held that the court did not obtain jurisdiction when the petitioner failed to name and serve all of
the board members. See Russ v. Hoffman, 288 Ill. App. 3d 281 (1997); Bill v. Education
Officers Electoral Board of Community Consolidated School District No. 181, 299 Ill. App. 3d
548 (1998); Johnson v. Theis, 282 Ill. App. 3d 966 (1996). The court acknowledged the
-5-
petitioner’s concern that electoral boards are simply temporary entities with no regular
meeting place or address. However, the court found that this was not a concern because the
Code specified where the electoral board was to hold its meetings. That case involved the
Municipal Officers Electoral Board, which is required to hold its meetings where the
governing body of the municipality meets. Thus, the court held that the board should have been
served at the Calumet City building. Nelson, 389 Ill. App. 3d at 87-88.
¶ 18 The First District reiterated this view in Rivera v. City of Chicago Electoral Board, 2011 IL
App (1st) 110283, ¶ 24, when it again stated that there was “no doubt” that section 10-10.1(a)
required service on the board itself but also on the individual board members who participated
in the decision. The jurisdictional problems in that case, however, were that the petitioner had
failed to show that he served the petition by “registered or certified mail,” and that he
attempted service on the board and its members by serving their attorney. The court explained
that section 10-10.1(a) clearly requires service by registered or certified mail, and the courts
had already held that service on a party’s attorney is not sufficient to serve the party. Id. ¶ 33.
¶ 19 The Fifth District took a contrary view in Langenstein v. Kassimali, 2012 IL App (5th)
120343. In that case, the petition for judicial review was served on each individual board
member, but not on the board as a separate legal entity. The court held that this was sufficient
to comply with section 10-10.1(a):
“In this case, the Board is a temporary entity convened for a particular purpose and
then dissolved once that purpose has been realized. Therefore, in order for the
appellants to serve the Board with their petitions for review, they would be required to
serve the Jackson County clerk. The appellants served the petitions upon the individual
members of the Board, which included the county clerk (in his individual capacity as a
board member). Because the appellants served the petitions for review on the members
of the county election board designated under section 10-9, we find that the
requirements of section 10-10.1 have been followed. Accordingly, we conclude that the
circuit court had subject matter jurisdiction to consider the appellants’ petitions for
review.” Id. ¶ 7.
The court specifically declined to follow Nelson and Rivera, and it found support for its
decision in Zack v. Ott, 381 Ill. App. 3d 545, 550-51 (2008), in which the Second District
stated that, “[o]ur 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.” Langenstein, 2012 IL App (5th) 120343,
¶ 10.2
¶ 20 The Third District would follow Langenstein in Carlasare v. Will County Officers
Electoral Board, 2012 IL App (3d) 120699. In that case, the objectors contended that the
courts lacked jurisdiction over the petition for review because the county clerk was not served
separately as the representative of the electoral board. The court cited Langenstein approvingly
2
It should be noted, however, that the issue in Zack was whether section 10-10.1 requires a
petitioner to name the members of the electoral board in the petition. The petitioner in that case served
the members of the electoral board, but the opinion does not say one way or the other whether the board
was served as a separate legal entity.
-6-
for the proposition that duplicate service on the county clerk is not necessary to comply with
section 10-10.1(a). Id. ¶ 17.
¶ 21 The Fourth District then issued its decision in the present case. The court acknowledged the
split in the appellate districts, and decided to follow the First District’s position. According to
the Fourth District, section 10-10.1(a) “clearly” requires service on the electoral board as a
separate entity. 2013 IL App (4th) 130145, ¶ 26.
¶ 22 Finally, the First District revisited the issue in Solomon v. Ramsey, 2014 IL App (1st)
140339. In that case, the petitioner served the electoral board as an entity, but not the
individual members. For the first time, the First District seemed to question whether its
previous position had been the correct one. The court discussed Langenstein approvingly, but
found that it would not change the result in the case before it because the opposite facts were
present: the board was served, but not the individual members. For the first time, however, the
First District acknowledged that the plain language of the statute was confusing. Id. ¶ 17. This
was a change from previous First District opinions that had held that there was “no doubt” that
service on the board and all of its members was required. See Nelson, 389 Ill. App. 3d at 87.
Ultimately, because of stare decisis concerns, the court decided to adhere to the First District
position. However, the court called on the legislature to address the statute and spell out “once
and for all who must be named, who must be served and whose service to the clerk must be
made.” Solomon, 2014 IL App (1st) 140339, ¶¶ 17, 18.
¶ 23 We do not believe that the plain language of the statute resolves the issue. Rather, we agree
with Solomon that the statutory language is unclear, and we are not surprised that courts have
split over its meaning. The statute is ambiguous and requires construction.
¶ 24 The precise issue before us is whether petitioner complied with section 10-10.1(a)’s
mandate that she “serve a copy of the petition upon the electoral board” (10 ILCS 5/10-10.1(a)
(West 2012)) when she served a copy of the petition on all three members of the electoral
board. The two constructions of section 10-10.1(a) that have been proposed by the appellate
court are both reasonable. One could certainly read the statute and conclude, as did Nelson and
its progeny, that service on the board and each member of the board is required. However, we
believe that someone could just as easily reach the same conclusion as the Third and Fifth
Districts: that service on every member of the board necessarily accomplishes service on the
board.
¶ 25 For several reasons, we believe that the Third and Fifth Districts have proposed the better
interpretation. First, we note our agreement with Langenstein and Carlasare that, in cases such
as this, service on the Education Officers Electoral Board as an entity when the petitioner has
already served every member of the board would be entirely duplicative. Langenstein and
Carlasare pointed out that service on the board as a separate entity would mean serving the
same person with process twice. No one who had not already been served with a copy of the
petition would receive notice when the board was served as a separate legal entity. Thus, we
would be hesitant to endorse this redundant requirement unless the statute clearly required it,
and we do not believe that it does. Our overriding purpose in construing a statute is to ascertain
the legislature’s intent, and the obvious intent behind section 10-10.1(a) is to ensure that all
necessary parties receive notice that a petition for judicial review has been filed. That purpose
was accomplished fully in this case, and neither the statute nor the public policy informing the
statute requires more.
-7-
¶ 26 Moreover, when the statute is read in conjunction with section 10-9, we find that the better
interpretation is that a petitioner has served the board when he or she has served every member
of the board. Section 10-10.1(a) requires service upon the electoral board, and the board has a
statutorily defined membership. Section 10-9 defines who comprises the various electoral
boards. For purposes of this case, the relevant board is the Education Officers Electoral Board:
“5. The education officers electoral board to hear and pass upon objections to the
nominations of candidates for offices in school or community college districts shall be
composed of the presiding officer of the school or community college district board,
who shall be the chairman, the secretary of the school or community college district
board and the eligible elected school or community college board member who has the
longest term of continuous service as a board member.” 10 ILCS 5/10-9(5) (West
2012).
¶ 27 Plugging this definition into section 10-10.1(a) shows that service is required upon the
presiding officer of the school district board (who acts as chairman), the secretary of the school
district board, and the longest continuous serving member of the board. And that is precisely
who petitioner served. She served the three persons whom the statute defines as making up the
board. As petitioner states in her brief, she served everyone she could possibly think of to
serve.
¶ 28 Finally, this court has noted that access to a place on the ballot is a substantial right not
lightly to be denied. Welch v. Johnson, 147 Ill. 2d 40, 56 (1992). Defendants, citing In re
Petition of Voters, 234 Ill. App. 3d 294, 298 (1992), contend that ballot access for referenda is
different than for individual candidates, and that the courts have not allowed ballot access
concerns to excuse partial compliance with statutory requirements. Be that as it may,
substantial compliance is not the issue before us. Rather, we are faced with an ambiguous
provision of the Code, and the question before us is which of two reasonable statutory
constructions to adopt. We see no reason why the policy favoring ballot access should not lead
us to adopt the interpretation that simplifies procedure. Moreover, this interpretation will apply
both to individual candidates seeking a place on the ballot and to those seeking to place
referenda on the ballot. For all of the above reasons, we conclude that petitioner served the
board when she served every member of the board.
¶ 29 Next, defendants argue by way of cross-appeal that the dismissal should be affirmed on the
basis that the petition for judicial review did not name the electoral board or its members and
did not have attached thereto a copy of the electoral board’s decision. The appellate court has
split over whether naming parties is required. The courts in Russ, Bill, and Johnson3 all held
that naming the board and its members was a necessary prerequisite to the circuit court’s
exercise of subject matter jurisdiction over the petition. Zack rejected this view, holding that
the requirements for the court to exercise subject matter jurisdiction were clearly set forth in
section 10-10.1 and that, if the legislature intended to require the naming of parties, it would
have included that requirement in the statute. Zack, 381 Ill. App. 3d at 550-51.
3
Johnson was a Second District decision, and the Second District later held in Zack that Johnson
should not be read as endorsing a naming requirement. Zack, 381 Ill. App. 3d at 551-52. Nevertheless,
when listing the reasons that the Johnson petitioners had failed to comply with section 10-10.1, the
Johnson court stated that the board was “never served or named as a party to the action.” (Emphasis
added.) Johnson, 282 Ill. App. 3d at 971.
-8-
¶ 30 In the present case, the Fourth District agreed with Zack, holding that the only
jurisdictional requirements are those listed in the statute. 2013 IL App (4th) 130145, ¶ 18. The
court also noted that other decisions such as Russ, Bill, and Allord v. Municipal Officers
Electoral Board, 288 Ill. App. 3d 897 (1997), were distinguishable in that they involved lack
of naming and service of necessary parties. 2013 IL App (4th) 130145, ¶ 17. The court also
noted the defendants’ reliance on the Administrative Review Law, which requires naming of
parties in the caption of the petition, but held that this requirement could not be read into the
Code. Although proceedings under the Code are in the nature of administrative review, the
Administrative Review Law applies only where it is adopted by express reference, and there is
no express adoption of the Administrative Review Law for electoral board decisions. Id.
¶¶ 19-20. Moreover, the Administrative Review Law’s naming requirement is expressly
provided for in section 3-107 of that statute (see 735 ILCS 5/3-107 (West 2012)), and the
legislature provided no similar requirement in section 10-10.1(a) of the Code. Thus, cases such
as Associated General Contractors of Illinois v. Chun, 245 Ill. App. 3d 750, 753-54 (1993),
that have found a naming requirement to be a jurisdictional prerequisite under the
Administrative Review Law have done so because that requirement is expressly set forth in the
statute. 2013 IL App (4th) 130145, ¶ 20.
¶ 31 We agree with the analyses of the appellate court in this case and in Zack. As we explained
in Fredman, when a court exercises special statutory jurisdiction, that jurisdiction is conferred
only when the mode of procedure set forth in the statute is strictly pursued. Fredman, 109 Ill.
2d at 210. As the appellate court has noted numerous times, section 10-10.1(a) sets forth four
explicit jurisdictional prerequisites:
“[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; see also 2013 IL App (4th) 130145, ¶ 15;
Nelson, 389 Ill. App. 3d at 86; Zack, 381 Ill. App. 3d at 550; Allord, 288 Ill. App. 3d at
901.
¶ 32 If the legislature intends any other prerequisites for the exercise of jurisdiction over
petitions for review of electoral board decisions, it is up to the legislature to set them forth. The
courts may not add to or subtract from the requirements listed in the statute. Petitioner
complied with the requirements of section 10-10.1(a), and we reject defendants’ argument that
petitioner was required to comply with additional requirements not set forth by the legislature.
The statute does not require the naming of parties, and it does not require that a copy of the
electoral board’s decision be attached to the petition. For all of the above reasons, the circuit
court erred in dismissing petitioner’s petition for judicial review.
¶ 33 In the prayer for relief in her brief, petitioner asks this court to reverse the decisions of the
appellate and circuit courts and to remand the case to the circuit court with directions to accept
her petition for judicial review. Although we agree with petitioner that the lower courts should
be reversed, we have also determined that a remand under these circumstances would not be
appropriate. The only question that would be in front of the court on remand would be whether
the electoral board erred in sustaining the objections to petitioner’s petitions. As we explained
-9-
above, however, this issue has been mooted by the passage of the only election specified in the
petition. It would be a waste of judicial resources to remand this case to the circuit court to
determine a moot issue. See, e.g., Girot v. Keith, 212 Ill. 2d 372, 382-83 (2004) (after
reviewing moot case under public interest exception and finding that a due process violation
occurred in front of the electoral board, court finds no purpose would be served by a remand to
determine if petitions had been securely bound); People v. Roberson, 212 Ill. 2d 430, 440-41
(2004) (under public interest exception review, court holds that defendant was improperly
denied sentencing credits, but simply reverses outright because defendant had already
completed his prison term and period of mandatory supervised release); In re E.G, 133 Ill. 2d
98, 112-13 (1989) (after reviewing case under public interest exception, court holds that
“nothing would be gained” by remanding for a determination if E.G. was a mature minor
because E.G. was no longer a minor). Accordingly, we will simply reverse the appellate
court’s judgment outright.
¶ 34 Appellate court judgment reversed.
¶ 35 Circuit court judgment reversed.
¶ 36 JUSTICE THEIS, dissenting:
¶ 37 I disagree with the majority’s decision to reverse the lower courts. In my view, the circuit
court lacked subject matter jurisdiction because petitioner Carolyn Bettis failed to comply with
section 10-10.1(a) of the Election Code. 10 ILCS 5/10-10.1(a) (West 2012).
¶ 38 The majority’s analysis begins in the right place, stating that this court’s primary objective
in construing a statute is to ascertain and effectuate the legislature’s intent as expressed in the
plain language of the statute, but the majority fails to sketch the statutory landscape in
sufficient detail. Section 10-9 of the Code describes the composition of various electoral
boards. The relevant board in this case is the Education Officers Electoral Board for North Mac
Community Unit School District No. 34. Education officers electoral boards are empowered
“to hear and pass upon objections to the nominations of candidates for offices in school or
community college districts.” 10 ILCS 5/10-9(5) (West 2012). This case does not involve an
objection to a petition for a candidate’s nomination, but an objection to a petition for the
submission of a public question to referendum under article 28 of the Code. See 10 ILCS
5/28-1 et seq. (West 2012). Section 28-4 of the Code states that sections 10-8 through 10-10.1
apply to public question petitions. 10 ILCS 5/28-4 (West 2012). That leads us to section
10-10.1(a), which provides, “The party seeking judicial review [of an electoral board decision]
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 ***.” (Emphasis added.) 10 ILCS
5/10-10.1(a) (West 2012).
¶ 39 The question before us is simply whether, under section 10-10.1(a), Bettis was required to
serve the board itself in order to confer jurisdiction upon the circuit court. The statute refers to
the electoral board, and not to electoral board members. Presumably, the legislature knows the
difference between an entity and the individuals who conduct its proceedings. This court
cannot depart from the plain language of the statute to substitute one for the other by adding a
word—“members”—that the legislature chose not to use. See Home Star Bank & Financial
Services v. Emergency Care & Health Organization, Ltd., 2014 IL 115526, ¶ 24 (“It is
- 10 -
improper for a court to depart from the plain statutory language by reading into the statute
exceptions, limitations, or conditions that conflict with the clearly expressed legislative
intent.”); Nordine v. Illinois Power Co., 32 Ill. 2d 421, 428 (1965) (“plain and unambiguous
provisions of a statute do not need construction”). Thus, the statute offers a clear, affirmative
answer to the question before us: Bettis was required to serve the electoral board itself. The
majority even seems to acknowledge that answer when it states, “The statute clearly requires
that the electoral board be served ***.” Supra ¶ 16; accord Nelson v. Qualkinbush, 389 Ill.
App. 3d 79, 87 (2009) (“There can be no doubt that section 10-10.1 requires service on the
Board” as “the entity making the decision” on the objection.); Rivera v. City of Chicago
Electoral Board, 2011 IL App (1st) 110283, ¶ 24.
¶ 40 Rather than accepting that unmistakable answer, however, the majority poses another
question. According to the majority, the relevant question is not whether a petitioner must
strictly comply with the statute’s requirement to serve the electoral board, but rather how a
petitioner accomplishes that. Supra ¶ 16. Under the plain language of the statute, there is only
one acceptable answer to this “how” inquiry. A petitioner strictly complies with the statute by
serving the board itself, not its members. Bettis did something else. She served the three
electoral board members at what appear to be their home addresses.
¶ 41 The majority offers three soft policy reasons to excuse Bettis’ failure to comply with the
terms of section 10-10.1(a). First, the majority states that service on the board itself would be
“entirely duplicative,” and notes its hesitance “to endorse this redundant requirement unless
the statute clearly required it.” Supra ¶ 25. In fact, the statute does require a petitioner to serve
the board, and it does so quite clearly. The majority directs its argument at a version of section
10-10.1(a) that does not exist, which masks its attempt to rewrite the version that does exist.
Such a holding damages our well-established rules of statutory construction and ultimately
undercuts our authority to say what laws mean.
¶ 42 Second, the majority states that section 10-9 of the Code, which outlines who comprises
various electoral boards, informs section 10-10.1(a). Section 10-9 discusses who the board
members are, not who must be served. Supra ¶ 26. Section 10-10.1(a) discusses who must be
served, and, as noted above, it refers to the electoral board and not to board members. If we
should look to any other provision of the Code, I would suggest that section 10-10, which sets
the location for board hearings, would be more instructive. Under section 10-10, the electoral
board here may hold hearings at the county courthouse or where the governing body of the
school district holds its regular meetings. 10 ILCS 5/10-10 (West 2012). Thus, Bettis should
have served the board at either of those places, rather than the individual board members at
home. See Nelson, 389 Ill. App. 3d at 88 (“Under section 10-10 of the Code, the Municipal
Officers Electoral Board is required to meet where the governing body of the municipality
holds its meetings. Accordingly, the Board conducts its business at the City of Calumet City
building and the Board may be served there by filing with the city clerk.”). The board, through
its members, may have received notice of the petition, but notice is a different issue than
jurisdiction. Jurisdiction under the Code rests upon strict compliance with its provisions (see
Pullen v. Mulligan, 138 Ill. 2d 21, 32 (1990)), which never occurred in this case.
¶ 43 Third, the majority cites ballot access as a reason for adopting a simplified procedure.
While I agree with the majority that ballot access is an important right with constitutional
underpinnings (see Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 84
- 11 -
(Freeman, J., concurring in part and dissenting in part, joined by Burke, J.)), I fail to see how
allowing a petitioner to serve three individuals at their home addresses, instead of one entity at
the location of its meetings, simplifies procedure. Indeed, identifying those individuals under
section 10-9 and finding their home addresses before serving them significantly complicates
matters. An electoral board may be “a temporary entity convened for a particular purpose”
(Langenstein v. Kassimali, 2012 IL App (5th) 120343, ¶ 7), but it is not ephemeral. The board
must remain intact through the period in which proceedings for judicial review must be
commenced (see Nelson, 389 Ill. App. 3d at 88), and, where, as here, a petition seeking such
review has been filed, until a court has held a hearing and made a decision promptly thereafter
(see 10 ILCS 5/10-10.1(a) (West 2012)).
¶ 44 Although section 10-10.1(a) is unambiguous, the General Assembly should recognize that
a majority of this court has now declared that the statute is, in some measure, less than clear.
Certainly, the legislature may amend the statute if today’s decision is not consistent with its
intent. See Solomon v. Ramsey, 2014 IL App (1st) 140339, ¶ 17 (“[T]he legislature would
provide a valuable service if it, and not the courts, spelled out once and for all who must be
named, who must be served and whose service to the clerk must be made.”).
¶ 45 Respectfully, I dissent.
- 12 -