Langenstein v. Kassimali

ILLINOIS OFFICIAL REPORTS
Appellate Court
Langenstein v. Kassimali, 2012 IL App (5th) 120343
Appellate Court SHAREE LANGENSTEIN, Candidate of the Republican Party for the
Caption Office of Jackson County State’s Attorney in the General Election to be
held on November 6, 2012, Petitioner-Appellant, v. MAUREEN
KASSIMALI and DeWITT McGRIFF, Objectors, JACKSON COUNTY
OFFICERS ELECTORAL BOARD, and Its Members, MICHAEL
WEPSIEC, LARRY REINHARDT, and ROBERT BURNS, All in Their
Official Capacity as Jackson County State’s Attorney, Jackson County
Clerk, and Jackson County Sheriff, Respectively, Respondents-
Appellees.–CHRISTINE WARD OSINGA, Candidate of the Republican
Party for Jackson County Circuit Clerk in the General Election to be held
on November 6, 2012, Petitioner-Appellant, v. CHRISTINA PORRITT
and DeWITT McGRIFF, Objectors, JACKSON COUNTY OFFICERS
ELECTORAL BOARD and Its Members, MICHAEL WEPSIEC,
LARRY REINHARDT, and ROBERT BURNS, All in Their Official
Capacity as Jackson County State’s Attorney, Jackson County Clerk, and
J ackson County Sheriff, Respect i vel y, R es pondents-
Appellees.–WILLIAM J. “BILL” BURKE, Candidate of the Republican
Party for Jackson County Board, District 3, in the General Election to be
held on November 6, 2012, Petitioner-Appellant, v. CHRISTINA
PORRITT and JAMES CLOUGH, Objectors, JACKSON COUNTY
OFFICERS ELECTORAL BOARD and its Members, MICHAEL
WEPSIEC, LARRY REINHARDT, and ROBERT BURNS, All in Their
Official Capacity as Jackson County State’s Attorney, Jackson County
Clerk, and Jackson County Sheriff, Respectively, Respondents-Appellees.
District & No. Fifth District
Docket Nos. 5-12-0343, 5-12-0346, 5-12-0347 cons.
Filed August 23, 2012
Held Appellants’ service of their petitions for review of decisions of
(Note: This syllabus respondent electoral board finding appellants ineligible to appear on a
constitutes no part of ballot on the individual members of the board without serving the board
the opinion of the court separately was sufficient to satisfy section 10-10.1 of the Election Code
but has been prepared and invoke the circuit court’s subject matter jurisdiction.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Jackson County, Nos. 12-MR-135, 12-
Review MR-136, 12-MR-138; the Hon. Todd D. Lambert, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Sharee S. Langenstein, of Law Office of Sharee S. Langenstein, of
Appeal Murphysboro, for appellants.
Daniel Brenner, State’s Attorney, of Murphysboro, and John R. Clemons
and Michael Burke, both of Southern Illinois Law Center, of Carbondale,
for appellees.
Panel JUSTICE WELCH delivered the judgment of the court, with opinion.
Justice Wexstten concurred in the judgment and opinion.
Presiding Justice Donovan dissented, with opinion.
OPINION
¶1 In these three cases, consolidated by this court for argument and decision, appellants
contest the decisions of the Jackson County Officers Electoral Board (Board) that appellants
are ineligible to appear on the ballot for the general election on November 6, 2012. For the
reasons that follow, we disagree with the circuit court of Jackson County’s decision that the
appellants failed to comply with the procedures necessary to invoke the court’s jurisdiction
over the decisions of the Board. Accordingly, we reverse the circuit court’s decision and
remand for further proceedings.
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¶2 On June 11, 2012, objectors Maureen Kassimali and DeWitt McGriff filed an objection
with the Board to the petition for candidacy of Sharee Langenstein. Langenstein sought
nomination as the Republican candidate for State’s Attorney of Jackson County in the
general election to be held on November 6, 2012. On that same date, objectors Christina
Porritt and McGriff filed an objection to the petition for candidacy of Christine Ward Osinga,
who sought nomination as the Republican candidate for circuit clerk in the same general
election. Porritt, along with objector James Clough, also filed an objection to the petition for
candidacy of William J. “Bill” Burke, who sought nomination as the Republican candidate
for Jackson County Board, District 3, also in the same general election.
¶3 On June 18, 2012, the Board convened to hold hearings on all objections. Following the
hearings, the Board issued written decisions in which it sustained, in part, the objections to
the candidacies of Langenstein, Osinga, and Burke (appellants), thereby determining that
appellants would not be placed on the ballot for the general election. Appellants filed timely
petitions for judicial review. The petitions were served upon the individual members of the
Board, but were not served upon the Board itself as a separate legal entity. Objectors moved
to dismiss the petitions for judicial review, contending that the Board had not been properly
served with the petitions, and that therefore the trial court was without jurisdiction to hear
the petitions. The court agreed and dismissed the petitions with prejudice. Appellants appeal,
contending the court erred in dismissing their petitions because providing ballot access
should be the primary concern and removal of a candidate from a ballot should only be done
in the most egregious of circumstances. Appellants argue that personal service upon the
individual members of the Board constituted service on the Board itself within the
intendment of the Illinois Election Code (10 ILCS 5/10-10.1 (West 2010)).
¶4 We begin our analysis by noting that courts in Illinois possess no inherent authority to
resolve disputes relating to elections. Our authority is derived strictly by statute. Zack v. Ott,
381 Ill. App. 3d 545, 548, 886 N.E.2d 487, 489 (2008). Accordingly, the requirements
mandated on a party seeking judicial review of an electoral board’s decision as provided in
the Election Code are jurisdictional requirements that must be followed. Id. at 548, 886
N.E.2d at 489; Rita v. Mayden, 364 Ill. App. 3d 913, 917, 847 N.E.2d 578, 581 (2006).
Whether any court is deprived of subject matter jurisdiction by a petitioner’s alleged failed
compliance with the requirements of the Election Code is a question of law and, as such, is
reviewed de novo. Nelson v. Qualkinbush, 389 Ill. App. 3d 79, 83, 907 N.E.2d 400, 404
(2009).
¶5 Objectors argue that the appellants’ petitions for judicial review were only served on the
individual members of the Board, and not on the Board as a separate legal entity. According
to the objectors, the appellants failed to strictly comply with the language of section 10-10.1
of the Election Code (10 ILCS 5/10-10.1 (West 2010)), which requires that a petition for
judicial review be served upon “the electoral board.” Therefore, they conclude that the circuit
court did not have jurisdiction to review the electoral board’s decision. In response, the
appellants argue that service on the individual board members was sufficient to satisfy the
statutory requirements of section 10-10.1 because nothing in the Election Code suggests that
the county election board exists beyond its individual members or that separate, duplicative
service must be made upon the entity and its members. We agree with the appellants.
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¶6 Section 10-10.1(a) of the Election Code (10 ILCS 5/10-10.1(a) (West 2010)) sets forth
the following requirements for service of the petition for review: “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
***.” According to section 10-9(2) of the Election Code (10 ILCS 5/10-9(2) (West 2010)),
the county electoral board is comprised of the following members: the county clerk or an
assistant designated by the county clerk, the State’s Attorney of the county or an assistant
State’s Attorney designated by the State’s Attorney, and the clerk of the circuit court or an
assistant designated by the circuit court clerk. Further, section 10-9(2) designates the county
clerk or his designee as the chairman of the county electoral board.
¶7 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.
¶8 We recognize that the objectors cited Nelson v. Qualkinbush, 389 Ill. App. 3d 79, 87, 907
N.E.2d 400, 407 (2009), a First District case, for the proposition that failure to serve a
petition for judicial review upon an electoral board as a separate legal entity is tantamount
to a failure to strictly comply with the Election Code, depriving both the trial and appellate
courts of subject matter jurisdiction to review the decision of the electoral board. However,
we decline to follow the reasoning of Nelson as we are not required to recognize horizontal
stare decisis.
¶9 Further, we note that Rivera v. City of Chicago Electoral Board, 2011 IL App (1st)
110283, 956 N.E.2d 20, another First District case, also held that the challenging party must
serve the electoral board as a separate legal entity in order to satisfy the requirements of
section 10-10.1. However, Rivera is clearly distinguishable. In Rivera, 2011 IL App (1st)
110283, ¶ 33, 956 N.E.2d 20, the court concluded that it lacked subject matter jurisdiction
because the petitioner failed to show that he had sent the parties a copy of his petition “by
registered or certified mail” and because he improperly served the board members’ attorney.
The court stated that “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.” Id.
¶ 10 The Second District’s decision in Zack v. Ott, 381 Ill. App. 3d 545, 886 N.E.2d 487
(2008), bolsters our position. In Zack, the court stated the following:
“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.
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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.” Id. at 550-51, 886 N.E.2d at
491.
¶ 11 Here, procedural due process was accomplished by “serving the electoral board members
with the petition.” The petitioners properly served the individual members of the Board,
including the county clerk in his individual capacity as a board member. Like Zack, we
conclude that the petitioners’ 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.
¶ 12 Last, we note that our decision is consistent with the strong public policy that Illinois
courts favor ballot access for candidates who wish to run for public office.
¶ 13 For the foregoing reasons, we conclude that the circuit court incorrectly held it did not
have subject matter jurisdiction over appellants’ challenges to the Board’s decisions.
Accordingly, the judgment of the circuit court of Jackson County is reversed and the mandate
shall issue immediately.
¶ 14 Reversed and remanded.
¶ 15 PRESIDING JUSTICE DONOVAN, dissenting.
¶ 16 While I agree that public policy favors ballot access, that does not mean that we are to
bend the law to allow such access. Personal service upon the individual members of the
Board does not constitute service on the Board itself within the intendment of the Illinois
Election Code (10 ILCS 5/10-10.1 (West 2010)). As the majority points out, our authority
to resolve disputes relating to elections is derived strictly by statute. A party seeking judicial
review of an electoral board’s decision therefore must strictly follow the mandates set forth
in the Election Code in order to confer jurisdiction upon us or any court of review. Rita v.
Mayden, 364 Ill. App. 3d 913, 917, 847 N.E.2d 578, 581 (2006).
¶ 17 The language of section 10-10.1 of the Illinois Election Code (10 ILCS 5/10-10.1 (West
2010)) requires that a petition for judicial review be served upon “the electoral board.” The
electoral board is a separate legal entity, and as such, it too needed to be served in this
instance. As recognized in Rivera v. City of Chicago Electoral Board, 2011 IL App (1st)
110283, 956 N.E.2d 20, “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. *** Clearly, from the statutory language, this
includes the Board itself, as the entity that issued the decision which the petitioner seeks to
challenge.” Rivera, 2011 IL App (1st) 110283, ¶¶ 23-24, 956 N.E.2d 20; see also Nelson v.
Qualkinbush, 389 Ill. App. 3d 79, 87, 907 N.E.2d 400, 407 (2009). Neither Nelson nor
Rivera has been overruled by the Illinois Supreme Court, or called into question by any
subsequent decision, nor has the General Assembly amended the Election Code in response
to either decision. As stated in Harvey Firemen’s Ass’n v. City of Harvey, 75 Ill. 2d 358, 389
N.E.2d 151 (1979), “ ‘It is never proper for a court to depart from plain language by reading
into a statute exceptions, limitations or conditions which conflict with the clearly expressed
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legislative intent.’ ” Harvey Firemen’s Ass’n, 75 Ill. 2d at 363, 389 N.E.2d at 153 (quoting
Certain Taxpayers v. Sheahen, 45 Ill. 2d 75, 84, 256 N.E.2d 758, 764 (1970)).
¶ 18 The majority cites Zack v. Ott, 381 Ill. App. 3d 545, 548, 886 N.E.2d 487, 489 (2008),
in support of its opinion. It is true that the Zack court, when listing the four requirements of
section 10-10.1, stated that the petition for judicial review must be served upon, inter alia,
“the Electoral Board members,” rather than upon “the electoral board” that is explicitly
mentioned in section 10-10.1. However, as the Nelson court points out, the Zack court 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 was not concerned with the question
of service of process. Nelson, 389 Ill. App. 3d at 87, 907 N.E.2d at 407. Accordingly, I
believe that the Zack opinion is inapposite to the case at bar.
¶ 19 Given the language of the Election Code and our limited jurisdiction, I must conclude
that appellants failed to strictly comply with the Election Code by not serving their petitions
for judicial review upon the Board itself as a separate legal entity, and as a result, we have
no jurisdiction to consider the petitions for judicial review. I therefore believe the instant
appeals must be dismissed.
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