Pate v. Wiseman

2019 IL App (1st) 190449
FOURTH DIVISION
June 20, 2019
No. 1-19-0449
______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
SUSAN M. PATE and MAX SOLOMON, ) Appeal from
) the Circuit Court
Plaintiffs-Appellants, ) of Cook County
)
v. )
)
ISAAC R. WISEMAN, in His Official Capacity as Clerk and Local )
Election Official for the Village of Hazel Crest, Cook County, Illinois, )
and KAREN YARBROUGH, in Her Official Capacity as Cook County )
Clerk, ) 2019 COEL 000025
)
Defendants-Appellees )
)
(The Village of Hazel Crest; Municipal Central Committee of the )
Democratic Party for the Village of Hazel Crest; and Vernard Alsberry )
Jr., Chairperson of the Municipal Central Committee of the Democratic )
Party for the Village of Hazel Crest and in His Official Capacity as ) Honorable
Democratic Party Township Committeeman for Bremen Township, ) Sharon M. Sullivan,
Cook County, Illinois, Intervenors-Appellants). ) Judge Presiding
______________________________________________________________________________
PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Justices Gordon and Lavin concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs, Susan M. Pate and Max Solomon, filed an emergency complaint in mandamus
against Isaac R. Wiseman, in his official capacity as clerk and local election official for the
Village of Hazel Crest, and Karen Yarbrough, in her official capacity as Cook County Clerk
No. 1-19-0449
(collectively, defendants), seeking an order directing defendants to place plaintiffs’ names on the
ballot as slated candidates of the Democratic Party for the office of trustee of the Village of
Hazel Crest. The Village of Hazel Crest (Village), the Municipal Central Committee of the
Democratic Party for the Village of Hazel Crest (Committee), and its chairperson, Vernard
Alsberry Jr., in his official capacity as Democratic Party Township Committeeman for Bremen
Township (collectively, intervenors), filed a petition to intervene, which the circuit court
allowed, and thereafter, the court denied plaintiffs’ complaint in mandamus. In this court,
plaintiffs contend that the court erred in granting the intervenors’ petition to intervene and in
denying plaintiffs’ complaint in mandamus.
¶2 The record shows that on November 26, 2018, Wayne M. Johnson, Helen J. Nowels, and
Tiffanni Y. Human filed nomination papers as slated candidates of the Democratic Party for
nomination to three available offices of trustee of the Village, at the February 26, 2019, primary
election. No other candidates filed nomination papers seeking nomination of the Democratic
Party for those offices by the end of the filing period.
¶3 Pursuant to the provisions of the Election Code, objections to nomination papers were to
be filed by December 3, 2018 (10 ILCS 5/10-8 (West 2016)), but none were filed against the
slated candidates. Accordingly, Johnson, Nowels, and Human were automatically nominated
uncontested, and a primary was not required for the three available trustee offices in the February
26, 2019, primary election.
¶4 Thereafter, on January 22, 2019, Johnson and Nowels executed affidavits stating that
they declined the nominations and requested that their names not be certified as candidates for
the office of trustee for the Village.
2
No. 1-19-0449
¶5 On January 24, 2019, plaintiffs filed nomination papers with the office of Isaac R.
Wiseman, clerk of the Village. The papers included, among others, documents titled “Resolution
to Fill a Vacancy in Nomination of Wayne M. Johnson occurring where no Party Primary” and
“Resolution to Fill a Vacancy in Nomination of Helen J. Nowels occurring where no Party
Primary.” Those Resolutions were executed by Human, who stated that, as “the remaining
candidate serving as party officer of the Democratic Party in and for the Village of Hazel Crest,”
she “voted to nominate a candidate of the Democratic Party to fill [each] vacancy.” Accordingly,
Human “nominate[d]” Pate to fill the vacancy of Johnson, and Solomon to fill the vacancy of
Nowels.
¶6 On January 28, 2019, Wiseman issued notice to Human that he was “in receipt of two
separate proposed nominations which you have made as ‘the remaining party candidate as party
officer of the Democratic Party in and for the Village of Hazel Crest,’ to fill the Johnson and
Nowels’ vacancies.” Wiseman informed Human that the Election Code provision allowing
nominations to be filled by a party’s remaining candidate applied only in cases “of political
parties other than a statewide political party,” which did not include the Democratic Party.
Accordingly, Wiseman informed Human that the “proposed nomination is not in apparent
conformity with the applicable provisions of the Illinois Election Code. Under these
circumstances, my office will not be certifying the name of either Ms. Pate or Mr. Solomon as
Democratic Party candidates for the office of Trustee in and for the Village of Hazel Crest.”
¶7 On February 19, 2019, plaintiffs filed an emergency complaint in mandamus with the
circuit court, contending that Wiseman “ha[d] failed and refused to certify” plaintiffs’ names “in
violation of the Illinois Code” and that plaintiffs were entitled to mandamus relief.
3
No. 1-19-0449
¶8 On February 22, 2019, the intervenors filed their petition to intervene in plaintiffs’
mandamus action, alleging that the court should allow them to intervene either as “a matter of
right or at the discretion of the Court.” Specifically, the intervenors asserted that the Village’s
interests would be directly affected and “bound by a judgment” rendered in this matter, and that
the judgment would “directly impact the operations of the Village, the rights of voters of in [sic]
the Village, and any potential financial liability.” As for the Committee, the intervenors argued
that its interests “derive[d] from its statutorily mandated role to conduct and make appointments
to fill vacancies in nomination and to ensure that its sole authority to act in an official capacity
on behalf of the Democratic Party within the Village of Hazel Crest is unimpeded and is not
fraudulently claimed by another individual or entity.” The intervenors alternatively argued that
permissive intervention should be allowed because “the defense of the Intervenors[’] rights and
interests at issue in this matter involve common questions of law and fact. The defense of the
Village’s interests and the defense of the Committee’s interests should be allowed in order to
protect the voting rights of the citizens of the Village of Hazel Crest.”
¶9 That same day, February 22, 2019, the court set a briefing schedule on the complaint and
the petition to intervene and set the matters for hearing on March 7, 2019.
¶ 10 On February 26, 2019, Wiseman and the intervenors jointly filed their “motion to
dismiss, and response in opposition to complaint in mandamus.” On March 1, 2019, the plaintiffs
filed their “Response to proposed Intervenors’ petition to intervene; and Reply to Defendants’
motion to dismiss & response in opposition to complaint in mandamus.” On March 5, 2019,
Wiseman and the intervenors filed their “reply.”
¶ 11 On March 7, 2019, the circuit court entered an order granting the intervenors’ petition to
intervene both as of right and as a matter of discretion and denying plaintiffs’ complaint in
4
No. 1-19-0449
mandamus “[f]or the reasons stated in open court.” The circuit court specifically found that
plaintiffs had “no clearly ascertainable right” to the relief sought. No transcript of the March 7,
2019, hearing appears in the record on appeal. Plaintiffs filed a notice of appeal from that order
the same day, and this court has jurisdiction to consider this appeal pursuant to Illinois Supreme
Court Rule 301 (eff. Feb. 1, 1994).
¶ 12 In this court, plaintiffs contend the court erred in granting the intervenors’ petition and
denying plaintiffs’ compliant for mandamus. We will consider each issue in turn.
¶ 13 Plaintiffs first contend that the circuit court erred in granting the intervenors’ petition,
asserting that the requirements for intervention were not met in this case.
¶ 14 Section 2-408 of the Code of Civil Procedure allows for intervention either as a matter of
right or at the discretion of the court. 735 ILCS 5/2-408(a), (b) (West 2016).
¶ 15 As relevant here, section 2-408 provides:
“(a) Upon timely application anyone shall be permitted as of right to intervene in
an action: *** (2) when the representation of the applicant’s interest by existing
parties is or may be inadequate and the applicant will or may be bound by an
order or judgment in the action ***.
(b) Upon timely application anyone may in the discretion of the court be
permitted to intervene in an action: *** (2) when an applicant’s claim or defense
and the main action have a question of law or fact in common.” Id. § 2-408.
¶ 16 The decision to allow or deny intervention, whether permissively or as of right, is a
matter of judicial discretion that will not be reversed absent an abuse of that discretion. People
ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 58 (2002); see also Redmond v. Devine, 152 Ill.
App. 3d 68, 74 (1987).
5
No. 1-19-0449
¶ 17 Initially, we note that our review of this issue is impeded due to the incomplete record on
appeal. “[A]n appellant has the burden to present a sufficiently complete record of the
proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it
will be presumed that the order entered by the trial court was in conformity with law and had a
sufficient factual basis.” Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). “Any doubts which
may arise from the incompleteness of the record will be resolved against the appellant.” Id. at
392. “An issue relating to a circuit court’s factual findings and basis for its legal conclusions
obviously cannot be reviewed absent a report or record of the proceeding.” Corral v. Mervis
Industries, Inc., 217 Ill. 2d 144, 156 (2005). When a court’s ruling is reviewed for an abuse of
discretion, this court generally will not reverse that ruling in the absence of a record sufficient to
show the basis for the court’s decision. See Gakuba v. Kurtz, 2015 IL App (2d) 140252, ¶ 22
(presumption that the court acted properly in absence of a complete record applies “especially”
when standard of review is abuse of discretion).
¶ 18 The record in this case does not include a transcript or acceptable substitute of the March
7, 2019, hearing in which the court considered the intervenors’ petition to intervene. See Ill. S.
Ct. R. 323(c), (d) (eff. July 1, 2017) (noting that in lieu of a trial transcript, an appellant may file
a bystander’s report or an agreed statement of facts). Consequently, this court has no knowledge
of what evidence was presented, what arguments were made, what findings the court made, or
the reasoning and rationale that provided the bases for the circuit court’s ruling. All we have is
the circuit court’s order granting the intervenors’ petition without further discussion. Under such
circumstances, this court must presume that the circuit court acted in conformity with the law
and ruled properly after considering the evidence before it. Webster v. Hartman, 195 Ill. 2d 426,
433-34 (2001); Foutch, 99 Ill. 2d at 391-92.
6
No. 1-19-0449
¶ 19 Nonetheless, even considering the limited common law record, we would find no abuse
of discretion on the part of the circuit court in allowing intervention.
¶ 20 Plaintiffs assert that the intervenors did not meet the requirement for intervention as a
matter of right under section 408(a) because they cannot show that they will be bound by the
order or judgment entered in this matter. Plaintiffs contend that the order, “if entered, will have
nothing to do with the Village of Hazel Crest or impact the Village in any way ***, any more
than it will if the Clerk had [certified their names] in the first place.” Similarly, plaintiffs contend
that the Committee has no real interest in the judgment where plaintiffs’ desired relief is “an
order or judgment ordering the Clerk to perform his ministerial duty, which he is under duty and
obligation to perform.” Plaintiffs’ circular reasoning—that an order requiring defendants to
certify plaintiffs’ names does not affect the intervenors because the clerk should have certified
them initially—provides no basis for finding that the circuit court’s order allowing intervention
was an abuse of discretion.
¶ 21 As stated above, a party shall be permitted to intervene as of right when the
representation of the applicant’s interests by existing parties is or may be inadequate and the
applicant will or may be bound by a judgment, decree, or order rendered in the action. 735 ILCS
5/2-408(a)(2) (West 2016); see also Redmond, 152 Ill. App. 3d at 74. “The purpose of this
section is to liberalize the practice of intervention so as to avoid, upon timely application, the
relitigation of issues in a second suit which were being litigated in a pending action.” Birkett, 202
Ill. 2d at 57. A party “need not have a direct interest in the pending suit, [but] it must have an
interest greater than that of the general public, so that the party may stand to gain or lose by the
direct legal operation and effect of a judgment in the suit.” Id. at 57-58. The allegations of an
applicant’s petition to intervene are to be taken as true in determining whether the applicant’s
7
No. 1-19-0449
interests are sufficient. Redmond, 152 Ill. App. 3d at 74. Illinois’s intervention statute is remedial
in nature and should be construed liberally. Id.
¶ 22 Here, the intervenors’ petition to intervene alleged that the court’s judgment “will
directly impact the operations of the Village, the rights of voters of in [sic] the Village, and any
potential financial liability, *** which are not adequately represented by the Village Clerk
alone.” Specifically in terms of financial liability to the Village, the intervenors point to
plaintiffs’ prayer for relief which requested that they be paid for “all the court costs and fees
incurred by the Plaintiffs in bringing this action,” noting that any such relief, if granted, would be
paid for by the Village. The intervenors further alleged that the Committee had an interest in the
matter based on
“its statutorily mandated role to conduct and make appointments to fill vacancies in
nomination and to ensure that its sole authority to act in an official capacity on behalf of
the Democratic Party within the Village of Hazel Crest is unimpeded and is not
fraudulently claimed by another individual or entity.”
In these circumstances, we find no abuse of discretion by the circuit court in allowing
intervention as of right.
¶ 23 Having found that the circuit court did not abuse its discretion in allowing intervention as
of right, we need not determine whether the circuit court abused its discretion in finding that the
intervenors had also met the requirements for permissive intervention.
¶ 24 Plaintiffs next contend that the court erred in denying mandamus relief, specifically
asserting that “the doctrine of ‘apparent conformity’ does not work to excuse or absolve the clerk
in this case of his failure to perform his ministerial obligation and duty of certifying the
plaintiffs’ names to the ballot.” Plaintiffs try to invoke de novo review by characterizing this
8
No. 1-19-0449
issue as a question of statutory construction of the Election Code (10 ILCS 5/10-8 through 10-
10.1 (West 2016)). However, upon review, it is clear that their challenge is actually to the court’s
denial of their complaint for mandamus.
¶ 25 Mandamus is an “extraordinary remedy” that may be used to enforce the performance of
official duties by a public officer only where the petitioner is entitled to the performance “as a
matter of right” and only “ ‘where no exercise of discretion’ ” on the part of the officer “ ‘is
involved.’ ” Noyola v. Board of Education of the City of Chicago, 179 Ill. 2d 121, 133 (1997)
(quoting Madden v. Cronson, 114 Ill. 2d 504, 514 (1986)). “Mandamus cannot be used to direct
a public official or body to reach a particular decision or to exercise its discretion in a particular
manner, even if the judgment or discretion has been erroneously exercised.” Crump v. Illinois
Prisoner Review Board, 181 Ill. App. 3d 58, 60 (1989).
¶ 26 A writ of mandamus will be awarded only if the petitioner establishes (1) a clear right to
the relief requested, (2) a clear duty of the public official to act, and (3) clear authority in the
public official to comply with the writ. Burris v. White, 232 Ill. 2d 1, 7 (2009).
¶ 27 This court has previously recognized that the relevant standard of review when evaluating
a circuit court’s grant or denial of a writ of mandamus is unclear. See Mabwa v. Mendoza, 2014
IL App (1st) 142771, ¶¶ 37-38. Some courts have held that “absent an abuse of discretion” on the
part of the trial court, “a reviewing court will not overturn the trial court’s grant or denial of a
writ of mandamus.” Crump, 181 Ill. App. 3d at 60. Other courts, however, have found that the
trial court’s decision to grant or deny a writ of mandamus “should be reversed on appeal only
when the decision is against the manifest weight of the evidence.” Baldacchino v. Thompson,
289 Ill. App. 3d 104, 109 (1997); People ex rel. Braver v. Washington, 311 Ill. App. 3d 179, 186
(1999) (“A decision to grant or deny mandamus will be reversed on appeal only when it is
9
No. 1-19-0449
against the manifest weight of the evidence.”); 1350 Lake Shore Associates v. Randall, 401 Ill.
App. 3d 96, 102 (2010). Our supreme court has stated that the “issuance of a writ of mandamus”
is “discretionary in nature,” and where there is no clear evidence that the circuit court’s order
was incorrect, mandamus “will not lie.” People v. Latona, 184 Ill. 2d 260, 277-78 (1998).
¶ 28 An abuse of discretion exists where the trial court’s decision is arbitrary or fanciful or
where no reasonable person would agree with the court’s position, and a decision is “against the
manifest weight of the evidence only when an opposite conclusion is apparent or when the
findings appear to be unreasonable, arbitrary, or not based on the evidence.” (Internal quotation
marks omitted.) Mabwa, 2014 IL App (1st) 142771, ¶ 39. We need not decide which standard of
review applies in this case because we would find no error on the part of the circuit court under
either standard.
¶ 29 Again, we note that our review of this issue is hindered by the incomplete record on
appeal and that “[a]ny doubts which may arise from the incompleteness of the record will be
resolved against the appellant.” Foutch, 99 Ill. 2d at 392. The circuit court’s order of March 7,
2019, specifically noted that it was denying plaintiffs’ complaint in mandamus “[f]or the reasons
stated in open court.” Without a transcript of the hearing, however, this court does not have the
benefit of knowing what was before the court, or what those reasons were.
¶ 30 Nonetheless, based solely on our review of the common law record, we would not find an
abuse of discretion by the circuit court, nor would we find such decision to be against the
manifest weight of the evidence.
¶ 31 Wiseman’s refusal to certify plaintiffs’ names was based on the proposed nominations
made by Human as “the remaining party candidate” to fill the Johnson and Nowels vacancies
and Human’s lack of authority to make such nominations. Plaintiffs do not dispute that Human
10
No. 1-19-0449
lacked authority to fill the vacancies, but contend that the determination of “who has the
authority to fill vacancies in nomination where there is no primary is a matter of judicial exercise
that is not ‘apparent’ on the face of the resolution documents filed with the clerk in this case.”
Accordingly, plaintiffs contend that Wiseman lacked the authority to determine that their
documents “were not in compliance with the Illinois Election Code,” and he was required to
“perform his ministerial obligation and duty of certifying plaintiffs’ names to the ballot.”
¶ 32 Section 10-15 of the Election Code provides that local election officials “shall certify ***
the names of all candidates entitled to be printed on the ballot.” 10 ILCS 5/10-15 (West 2016).
Candidates so entitled are “those whose nominating papers are (1) filed as required by the
[Election] Code, (2) in apparent conformity with the [Election] Code when filed, and (3) not
subject to a duly filed objection.” North v. Hinkle, 295 Ill. App. 3d 84, 87 (1998); see 10 ILCS
5/10-8 (West 2016). In determining whether a document is in “apparent conformity” with the
law, the local election official is limited to the face of the document, and he may not go behind
what appears on the face. See People ex rel. Giese v. Dillon, 266 Ill. 272, 275-76 (1914).
¶ 33 Here, the nominating papers filed with the clerk were facially defective because they
contained resolutions purporting to fill the vacancies of withdrawn candidates by the remaining
candidate, who had no authority to do so. See 10 ILCS 5/7-61 (West 2016). In such
circumstances, the village clerk had the authority to make a determination and refuse to certify
plaintiffs’ names, even if no objection to the purported nomination papers was filed. As this
court has stated:
“Section 10-8 does not state that all nominating papers are deemed valid unless
they are subject to a duly filed objection. Rather, the Code states that all
nominating papers, ‘being filed as required by this Code, and being in apparent
11
No. 1-19-0449
conformity with the provisions of this Act,’ are deemed valid unless they are
subject to a duly filed objection. (Emphasis added.) [Citation.] Clearly, section
10-8 contemplates that the question of whether papers were duly filed and in
apparent conformity with the law when filed is a threshold question that will be
answered through a procedure other than statutory objection. Otherwise, the
qualification, ‘being filed as required by this Code, and being in apparent
conformity with the provisions of this Act,’ aside from making no sense, would be
wholly superfluous.” (Emphases in original.) North, 295 Ill. App. 3d at 89.
¶ 34 Accordingly, under either the abuse of discretion or manifest weight standards of review,
plaintiffs have not shown that they have a clear right to the relief sought for a writ of mandamus.
See Latona, 184 Ill. 2d at 277. For the foregoing reasons, the judgment of the circuit court of
Cook County is affirmed.
¶ 35 Affirmed.
12