Elsamny v. Peoria County Board of Election Commissioners

2018 IL App (3d) 170295Opinion filed January 9, 2018
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
AMR ELSAMNY, ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
Plaintiff-Appellant, ) Peoria County, Illinois.
)
v. )
)
THE PEORIA COUNTY BOARD OF ) Appeal No. 3-17-0295
ELECTION COMMISSIONERS; THOMAS ) Circuit No. 17-MR-205
BRIDE, in His Official Capacity as Executive )
Director; ROBERT HANAUER; SID )
RUCKRIEGEL; JOHN KELLY; and ) Honorable
ZACHARY OYLER, ) James A. Mack,
) Judge, Presiding.
Defendants-Appellees. )
_____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court, with opinion.
Justice O’Brien concurs in the judgment and opinion.
Justice Schmidt dissented, with opinion.
_____________________________________________________________________________
OPINION
¶1 Plaintiff, Amr Elsamny, argues that the circuit court erred in dismissing his complaint
contesting the Peoria County city council primary election and requesting a preliminary
injunction staying the general election. We dismiss the appeal as moot.
¶2 FACTS
¶3 A primary election for the Peoria city council was held on February 28, 2017. Six people
were named on the ballot for two city council at-large seats, including plaintiff and defendants
Robert Hanauer, Sid Ruckriegel, John Kelly, and Zachary Oyler. Defendant, the Peoria County
board of election commissioners (Board), completed the canvass of the primary election on
March 9, 2017. Based on the ballots cast, Hanauer, Ruckriegel, Kelly, and Oyler were nominated
for the general election; plaintiff and one other were not. Hanauer received one more vote than
plaintiff.
¶4 On March 15, 2017, plaintiff filed an untitled letter in the circuit court, declaring that he
was contesting the results of the primary. On March 17, 2017, he filed a verified complaint
contesting the election and requesting a preliminary injunction staying the general election. The
complaint named only the Board and its executive director, Thomas Bride, as defendants.
Plaintiff amended his complaint on March 20, 2017. Bride was the only party that had been
served with notice, and he filed a motion to dismiss. The court granted the motion, without
prejudice, for plaintiff’s failure to name Hanauer as a party.
¶5 On March 30, 2017, plaintiff filed another amended complaint under the same case
number, which named Hanauer, Ruckriegel, Kelly, and Oyler as defendants, along with the
Board and Bride. Again, only Bride had been served. A hearing was held on March 31, 2017.
Bride renewed the motion to dismiss. The court granted the motion with prejudice, noting that
injunctive relief was only available to stay an election based on a limited exception, which was
not applicable in plaintiff’s case. The court further noted that the complaint was untimely under
section 7-63 of the Election Code. 10 ILCS 5/7-63 (West 2016). The general election was held
on April 4, 2017, and plaintiff filed his notice of appeal on May 1, 2017.
2
¶6 ANALYSIS
¶7 On appeal, plaintiff argues that the court erred in dismissing his complaint. We find that
the appeal is moot as the general election has already taken place.
¶8 At the outset, we consider our jurisdiction to hear this appeal. As our supreme court has
stated on several occasions, jurisdiction of a court of review “is restricted to cases which present
an actual controversy.” Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 523 (2001); see also People
v. Blaylock, 202 Ill. 2d 319, 325 (2002). Stated another way, “ ‘The existence of a real
controversy is a prerequisite to the exercise of our jurisdiction.’ ” (Emphasis omitted.) In re J.B.,
204 Ill. 2d 382, 390 (2003) (quoting In re Adoption of Walgreen, 186 Ill. 2d 362, 365 (1999)).
Therefore, where an actual controversy does not exist (i.e., where the issue is moot), we
generally do not have jurisdiction to consider the appeal. See In re Lance H., 2014 IL 114899,
¶ 12. This is so “[w]here intervening events have made it impossible for the reviewing court to
grant effective relief to the complaining party.” Id.; see also Jackson v. Board of Election
Commissioners, 2012 IL 111928, ¶ 28.
“Since the existence of a real controversy is an essential requisite to appellate
jurisdiction, the general rule is that where a reviewing court has notice of facts
which show that only moot questions or mere abstract propositions are involved,
it will dismiss the appeal or writ of error even though such facts do not appear in
the record.” La Salle National Bank v. City of Chicago, 3 Ill. 2d 375, 379 (1954).
¶9 In Bettis v. Marsaglia, 2014 IL 117050, ¶ 12, a case whose procedural posture is similar
to ours here, our supreme court was charged with answering the question of whether the circuit
court erred in dismissing an election case for a lack of subject matter jurisdiction. Before doing
so, however, the court considered whether they could hear the appeal or whether it was moot. Id.3
¶ 8. The court determined that the case was moot, as the election had already taken place, but
determined that it was not barred from hearing the appeal as one of the exceptions to the
mootness doctrine applied. Id. ¶¶ 8-11.
¶ 10 Here, the general election took place on April 4, 2017. “It is well established under
Illinois law that the conclusion of an election cycle normally moots an election contest.”
Jackson, 2012 IL 111928, ¶ 36. Plaintiff’s complaint asked the court to stay an election that has
already taken place. The council members elected have had their positions for over six months.
Reversing the circuit court’s judgment would have no practical effect on the parties. See Harris
v. Education Officers Electoral Board of Community Consolidated School District 110, 203 Ill.
App. 3d 917, 920 (1990). Therefore, we find the issue moot. In doing so, we note that plaintiff
does not argue that any exceptions to the mootness doctrine apply. Instead, he solely states, “this
Court has the power to order the City of Peoria to redo the General Election in Peoria for the at-
large Peoria City Council spot only, which was the position that Appellant had run for.” Plaintiff
cites no law in support of this proposition. “[O]rdering new elections is an extreme remedy rarely
ordered by the courts of Illinois.” Jackson, 2012 IL 111928, ¶ 37. Plaintiff has not provided any
legally valid reason “as to why this particular case should be exempt from [this] normal rule.” Id.¶ 11 Our result is bolstered by the fact that plaintiff did not even file his notice of appeal until
May 1, 2017, almost a month after the general election was held on April 4, 2017. Plaintiff could
have filed his notice of appeal immediately after his complaint was dismissed on March 31,
2017, thus appealing before the general election. Considering the immediate nature of such a
challenge to a primary election, it was imperative that plaintiff act quickly. See Lenehan v.
Township Officers Electoral Board, 2013 IL App (1st) 130619, ¶¶ 18-19.
4
¶ 12 In closing, we note that the dissent fails to cite any case law in which a court expressly
held that it lacks jurisdiction to consider whether a case is moot. Moreover, the dissent ignores
the several Illinois Supreme Court cases cited above (supra ¶ 8), which hold that a court lacks
jurisdiction to hear moot issues. Finally, because both offerings in the instant case find a lack of
jurisdiction, we believe the dissent actually constitutes a special concurrence (infra ¶ 17). Were
we to find an applicable exception to the mootness doctrine, we would agree with Justice
Schmidt’s offering to the extent that plaintiff failed to meet the jurisdictional requirements of
section 7-63 of the Election Code (10 ILCS 5/7-63 (West 2016)). See infra ¶ 18.
¶ 13 CONCLUSION
¶ 14 The appeal is dismissed as moot.
¶ 15 Appeal dismissed.
¶ 16 JUSTICE SCHMIDT, dissenting.
¶ 17 I suppose it is a toss-up as to whether to characterize this offering as a special
concurrence or dissent. Because we have no jurisdiction to even address the mootness issue, I
dissent from the majority’s finding that the appeal should be dismissed as moot. For the reasons
stated below, we should dismiss it for lack of jurisdiction.
¶ 18 Illinois courts may only exercise jurisdiction over election cases when authorized by
statute. Pullen v. Mulligan, 138 Ill. 2d 21, 32 (1990). Section 7-63 of the Election Code (10 ILCS
5/7-63 (West 2016)) required that plaintiff’s complaint be filed with the clerk of the circuit court
within 10 days after the final canvass. The trial court correctly found that plaintiff’s March 30,
2017, amended verified complaint failed to meet the jurisdictional requirements of section 7-63.
The Peoria County Board of Election Commissioners completed its canvass of the primary
election on March 9, 2017. As the majority points out, plaintiff filed a defective verified
5
complaint on March 17, 2017. Although titled as “Verified,” plaintiff failed to provide a signed
verification. There were other problems. On March 20, 2017, plaintiff filed an amended verified
complaint. Once again, among other deficiencies, plaintiff failed to execute the verification. On
March 29, 2017, the trial court dismissed plaintiff’s amended verified complaint for failure to
join necessary parties.
¶ 19 On March 30, 2017, plaintiff, without leave of court, filed a new amended verified
complaint with no supporting affidavit. At a hearing on March 31, 2017, the trial court found that
it was without jurisdiction and dismissed plaintiff’s amended verified complaint with prejudice.
¶ 20 The trial court found that section 7-63 of the Election Code applied (10 ILCS 5/7-63
(West 2016)). Therefore, the trial court lacked jurisdiction and properly dismissed the amended
verified complaint. Because the trial court lacked jurisdiction to address the merits of plaintiff’s
verified complaint, so do we. Nelson v. Qualkinbush, 389 Ill. App. 3d 79, 86-87 (2009).
¶ 21 Because we have no jurisdiction, we have no power to address whether or not the
mootness doctrine applies. The majority mistakenly relies on Bettis v. Marsaglia, 2014 IL
117050, to support its mootness analysis. Supra ¶ 9. The majority finds that Bettis shared
procedural posture with this case. It does not. For whatever reason, in Bettis, the supreme court
addressed the mootness issue before addressing the jurisdictional issue. However, the supreme
court found that it had jurisdiction. Bettis, 2014 IL 117050, ¶ 32. The majority finds it significant
that the supreme court addressed mootness before jurisdiction. Supra ¶ 9. I do not. The author of
the Bettis decision knew that the court had found jurisdiction before writing the opinion. For
some reason, the author decided to address the mootness issue first with full knowledge that the
court had jurisdiction. Had the supreme court found no jurisdiction, it would not have addressed
the mootness issue (I hope).
6
¶ 22 The fact that we get to the same result (dismissal) does not change the fact that the
majority opinion stands for the proposition that a court without jurisdiction can ponder whether
or not to apply the mootness doctrine. It cannot; nothing in Bettis changes that. Therefore, rather
than dismissing this appeal as moot, I would affirm the trial court and dismiss this appeal for lack
of jurisdiction.
7