Quinn v. The Board of Election Commissioners for the City of Chicago Electoral Board

2018 IL App (1st) 182087
Opinion filed: November 5, 2018
FIRST DISTRICT
FIFTH DIVISION
No. 1-18-2087
PAT QUINN and TAKE CHARGE CHICAGO ) Appeal from the
COMMITTEE FOR MAYORAL TERM LIMITS ) Circuit Court of
AND ELECTED CONSUMER ADVOCATE, ) Cook County.
)
Petitioners-Appellants, ) No. 2018-COEL-28
)
v. ) Honorable
) Maureen O. Hannon,
THE BOARD OF ELECTION COMMISSIONERS ) Judge Presiding.
FOR THE CITY OF CHICAGO ELECTORAL )
BOARD, and its members, MARISEL A. )
HERNANDEZ, JONATHAN T. SWAIN and )
WILLIAM J. KRESSE; Objectors, BRETT ALLEN )
CZAJA and KAREN LARSON; and THE BOARD )
OF ELECTION COMMISSIONERS FOR THE )
CITY OF CHICAGO, )
)
Respondents-Appellees. )
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Justices Hoffman and Lampkin concurred in the judgment and opinion.
OPINION
¶1 Petitioners-appellants, Pat Quinn and Take Charge Chicago Committee for Mayoral
Term Limits and Elected Consumer Advocate (proponents), appeal from the dismissal of their
petition seeking judicial review and a writ of mandamus. For the following reasons, we affirm in
part, reverse in part, and remand for further proceedings. 1
¶2 I. BACKGROUND
1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1,
2018), this appeal has been resolved without oral argument upon the entry of a separate
written order stating with specificity why no substantial question is presented.
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¶3 On August 6, 2018, proponents submitted petitions with the clerk of the City of Chicago
in support of placing on the ballot two binding referenda questions for the citizens of Chicago to
consider at the November 6, 2018, general election. The first question generally asked if the
office of mayor for Chicago should be subject to a term limit of two terms, while the second
asked if Chicago should establish an elected position for a “Consumer Advocate for taxpayer and
consumers.”
¶4 Objections to the proposed referenda were filed by respondents-appellees, objectors
Brett Allen Czaja and Karen Larson, on August 13, 2018. The matter was first addressed at an
August 20, 2018, public hearing presided over by respondents-appellees, The Board of Election
Commissioners for the City of Chicago Electoral Board, and its members, Marisel A. Hernandez,
Jonathan T. Swain and William J. Kresse (collectively, the Electoral Board). The matter was
referred to a hearing officer appointed by the Electoral Board, and a second hearing was held on
August 29, 2018. Proponents filed a motion to strike the objections, and the parties thereafter
fully briefed that motion, agreeing that only legal issues were presented and that a ruling on this
motion would be dispositive.
¶5 On September 7, 2018, the hearing officer issued a written report and recommendation,
wherein it recommended that the motion to strike be denied, the objections be sustained, and the
two referenda not appear on the November 6, 2018, election. In a written order entered on
September 12, 2018, the Electoral Board adopted the hearing officer’s recommendations and
entered a final, written administrative decision which ordered that the two referenda not appear
on the ballot for the November 6, 2018, election, or in any other election. The Electoral Board’s
final decision was served upon proponents by email (pursuant to a prior agreement) and hand
delivery the same day.
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¶6 On September 14, 2018, proponents filed a one-count petition in the circuit court seeking
both judicial review and a writ of mandamus. Naming the Electoral Board and objectors as
defendants with respect to that portion of its petition seeking judicial review, brought pursuant to
section 10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2016)), proponents sought
reversal of the Electoral Board’s final decision. Naming only respondent-appellee, The Board of
Election Commissioners for the City of Chicago (Board of Election), as a defendant with respect
to that portion of its petition seeking a writ of mandamus, brought pursuant to Article 14 of the
Code of Civil Procedure (Code) (735 ILCS 5/14-101, et seq. (West 2016)), proponents sought to
compel the Board of Election to print the two referenda on the ballot for the November 6, 2018,
election, or—in the alternative—the ballot for the following election, to be held on February 26,
2019. 2
¶7 The petition filed by proponents was served upon the Electoral Board, the Board of
Elections, and the attorney for objectors on September 17, 2018, by certified mail. Objectors
were not served personally by certified mail until September 19, 2018.
¶8 Also on September 19, 2018, objectors filed a motion to dismiss the petition for judicial
review, contending that the circuit court lacked subject matter jurisdiction over the petition due
to proponents’ failure to strictly comply with the service requirements contained in section 10­
10.1 of the Election Code, which required service upon all parties within five days. 10 ILCS
5/10-10.1 (West 2016). The motion to dismiss did not make any reference to the portion of the
2
The Board of Election Commissioners for the City of Chicago was sued both in its
capacity as an electoral board with respect to the request for judicial review (Electoral
Board), and as an election authority with respect to the request for a writ of mandamus
(Board of Election). In this order, we use this shorthand to clarify which capacity we are
referring to at any given time.
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petition seeking a writ of mandamus. This point was raised in proponents’ written response to the
motion to dismiss, wherein proponents argued that the motion to dismiss:
“is directed solely at the portion of the Petition that seeks review of the Election Board’s
decision and not to the Petition for Writ of Mandamus. Objectors are not currently a party
to the mandamus claims so they do not have standing to object, and a mandamus action
does not have the same jurisdictional requirements as a petition for judicial review under
the Illinois Election Code.”
In their written reply, objectors again solely attacked the circuit court’s subject matter
jurisdiction to consider the portion of proponents’ petition seeking judicial review, and again did
not make any reference to the portion of the petition seeking a writ of mandamus.
¶9 On September 25, 2018, proponents filed a motion to file a first amended complaint for a
writ of mandamus instanter. Therein, proponents again contended that no response to the portion
of their petition seeking a writ of mandamus had yet been filed.
¶ 10 The following day, oral argument was heard on the motion to dismiss. No report of
proceedings for this hearing was included in the record on appeal, and the docketing statement
filed by proponents indicates that no court reporter was present.
¶ 11 That same day, the circuit court entered a written order granting the motion to dismiss the
petition for judicial review of the Electoral Board’s decision, on the basis that the failure of
proponents to comply with the service requirements contained in section 10-10.1 of the Election
Code deprived the court of subject matter jurisdiction. While the circuit court’s order dismissed
the proponent’s petition in its entirety, the circuit court’s order made no specific reference to the
portion of the petition seeking a writ of mandamus, or to the motion seeking to file an amended
complaint with respect to that claim.
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¶ 12 On September 28, 2018, proponents filed a notice of appeal, in which it asserted that it
was appealing from the dismissal of both the portion of its petition seeking judicial review and
the portion of its petition seeking a writ of mandamus. With respect to the latter, the notice of
appeal asserted that it was a “separate claim that the Court had jurisdiction to consider.”
¶ 13 On October 5, 2018, proponents filed a motion seeking to have this appeal transferred
directly to the supreme court, pursuant to Illinois Supreme Court Rule 302(b) (eff. Oct. 4, 2011).
The supreme court denied that motion in an order entered on October 15, 2018. The following
day, proponents filed a motion with this court to expedite this appeal, pursuant to Illinois
Supreme Court Rule 311(b) (eff. July 1, 2018). That motion was granted in an order entered by
this court on October 22, 2018.
¶ 14 II. ANALYSIS
¶ 15 On appeal, proponents challenge the dismissal of both the portion of its petition seeking
judicial review and the portion of its petition seeking a writ of mandamus. For the following
reasons, we affirm the circuit court’s dismissal of the portion of the petition seeking judicial
review of the Electoral Board’s decision, reverse the dismissal of the portion of the petition
seeking a writ of mandamus, and remand for further proceedings solely with respect to the
proponent’s request for a writ of mandamus.
¶ 16 The circuit court dismissed proponent’s petition in its entirety, pursuant to section 2­
619(a)(1) of the Code. 735 ILCS 5/2-619(a)(1) (West 2016). Section 2–619(a)(1) provides for
the involuntary dismissal of an action based on lack of subject matter jurisdiction. Id. A section
2-619 motion "admits the legal sufficiency of the plaintiff's cause of action." Avon Hardware Co.
v. Ace Hardware Corp., 2013 IL App (1st) 130750, ¶ 13 (citing Schrager v. Bailey, 2012 IL App
(1st) 111942, ¶ 18). When deciding a section 2-619 motion, a court accepts all well-pleaded facts
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in the complaint as true and will grant the motion when it appears no set of facts can be proved
which would allow the plaintiff to recover. Wilson v. Quinn, 2013 IL App (5th) 120337, ¶ 11.
We review de novo the grant or denial of a motion to dismiss under section 2–619(a)(1). Country
Mutual Insurance Co. v. D & M Tile, Inc., 394 Ill. App. 3d 729, 735 (2009).
¶ 17 “Subject-matter jurisdiction refers to a tribunal's power to hear and determine cases of the
general class to which the proceeding in question belongs.” J&J Ventures Gaming, LLC v. Wild,
Inc., 2016 IL 119870, ¶ 23. Under the Illinois Constitution of 1970, the circuit courts have
original jurisdiction over all justiciable matters, with the following two general exceptions: (1)
the circuit courts have only such power to review administrative action as is provided by law,
and (2) our supreme court has exclusive and original jurisdiction over questions relating to the
redistricting of the General Assembly and the ability of the Governor to serve or resume office.
Ill. Const. 1970, art. VI, § 9; Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp., 2011 IL
111611, ¶ 27.
¶ 18 Here, a portion of the petition filed by proponents below sought judicial review of the
Electoral Board’s final administrative decision. As such, the circuit court had subject matter
jurisdiction to review that decision only “as is provided by law.” Id.; Pullen v. Mulligan, 138 Ill.
2d 21, 32 (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.”). The statutory authority for
such judicial review is contained in section 10-10.1 of the Election Code, which in relevant part
provides as follows:
“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
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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.” 10 ILCS 5/10-10.1(a) (West 2016).
¶ 19 While this section specifically refers only to judicial review sought by “a candidate or
objector aggrieved by the decision of an electoral board” (id.), it has been recognized that—in
light of other provisions in the Election Code—this section also provides the method for judicial
review to be followed by “proponents” of referenda aggrieved by the decision of an electoral
board (In re Russo, 331 Ill. App. 3d 111, 117 (2002)). The failure to strictly comply with the
requirements of section 10-10.1 deprives the circuit court of subject matter jurisdiction to review
an electoral board’s final decision. Hough v. Will County Board of Elections, 338 Ill. App. 3d
1092, 1094 (2003).
¶ 20 As they did below, on appeal proponents contend that the portion of their petition seeking
judicial review of the Electoral Board’s final administrative decision should not have been
dismissed for a lack of subject matter jurisdiction, because they timely served objectors, care of
objectors’ attorney, on September 17, 2018. However, on at least four separate occasions, courts
have recognized that service upon an attorney is insufficient to strictly comply with section 10­
10.1’s requirement that service must be made personally upon “the electoral board and other
parties to the proceeding.” 10 ILCS 5/10-10.1 (West 2016); Rivera v. City of Chicago Electoral
Board, 2011 IL App (1st) 110283, ¶ 33, abrogated on other grounds by Bettis v. Marsaglia, 2014
IL 117050, ¶ 28; Nelson v. Qualkinbush, 389 Ill. App. 3d 79, 87 (2009), abrogated on other
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grounds by Bettis, 2014 IL 117050, ¶ 28; Hough, 338 Ill. App. 3d at 1094; Allord v. Municipal
Officers Electoral Board for the Village of South Chicago Heights, 288 Ill. App. 3d 897, 904
(1997). While proponents attempt to distinguish this authority in various ways, this court has
made it explicitly clear 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.” (Emphasis added.) Rivera, 2011 IL App (1st) 110283, ¶ 33.
¶ 21 Moreover, we reject proponents contention that its position is supported by a purportedly
“more expansive reading” of section 10-10.1 applied in Bettis, 2014 IL 117050, and Solomon v.
Ramsey, 2015 IL App (1st) 140339-B. In Bettis, 2014 IL 117050, ¶ 28, our supreme court
concluded that the section 10-10.1’s requirement that an electoral board be personally served is
met when every member of that board is properly served. In Solomon, 2015 IL App (1st)
140339-B, ¶ 19, this court concluded the converse also satisfied section 10-10.1; that is to say,
section 10-10.1’s requirement that the individual members of an electoral board be served is met
when service is properly effectuated upon the electoral board itself.
¶ 22 In light of these decisions, proponents assert that “the law now supports serving parties
through representatives.” We disagree, as neither the Bettis nor the Soloman decision involved
service upon a “representative.” Rather, these decisions merely recognized that duplicative
service upon both an electoral board and its members is not necessary to satisfy the service
requirements set forth in section 10–10.1. Neither decision calls into question the decisions cited
above, or supports proponents’ contention that service solely upon a party’s attorney satisfies the
requirements of section 10-10.1.
¶ 23 For the forgoing reasons, we affirm the circuit court’s dismissal of the portion of
proponents’ petition seeking judicial review of the Electoral Board’s decision, as the circuit court
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clearly lacked subject matter jurisdiction over that claim in light of proponents’ failure to strictly
comply with the requirements of section 10-10.1 of the Election Code.
¶ 24 We now turn to proponents’ challenge to the dismissal of the portion of their petition
seeking a writ of mandamus.
¶ 25 As noted above, while proponents’ petition was pleaded as a single count, it plainly
included requests for both judicial review, pursuant to section 10-10.1 of the Election Code, and
a writ of mandamus, pursuant to Article 14 of the Code. However, in seeking to have the petition
dismissed in its entirety, and in dismissing the petition in its entirety, objectors and the circuit
court, respectively, focused solely on the question of the circuit court’s subject matter
jurisdiction to consider the petition’s request for judicial review pursuant to section 10-10.1 of
the Election Code. Below, the request for a writ of mandamus was never specifically addressed
by either objectors or the circuit court. 3 In effect, both objectors and the circuit court apparently
viewed the request for a writ of mandamus as part and parcel of the petition for judicial review,
subject to dismissal for lack of subject matter jurisdiction due to the defects in service discussed
above. This was improper.
¶ 26 Again, under the Illinois Constitution of 1970, the circuit courts have original jurisdiction
over all justiciable matters. Ill. Const. 1970, art. VI, § 9; Crossroads, 2011 IL 111611, ¶ 27. “The
writ of mandamus was long known at common law [citations] and has long been recognized to
lie within the inherent power and jurisdiction of our circuit courts.” In re Claudia K., 91 Ill. 2d
469, 475 (1982). Thus, unlike in the case of administrative review, mandamus actions do not rely
3
At the very least, there is no indication in the common law record that this issue was
addressed by objectors or the circuit court. While we do not have a report of proceedings
for the oral argument on the motion to dismiss, no party on appeal has indicated that the
request for a writ of mandamus was specifically addressed at the hearing.
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on any special statutory provisions to confer upon the circuit court subject matter jurisdiction
over such a claim. Owens v. Snyder, 349 Ill. App. 3d 35, 40 (2004).
¶ 27 It is true that, where a statute involving an administrative body specifically adopts the
Administrative Review Law (735 ILCS 5/3–101 et seq. (West 2016)), the “Administrative
Review Law eliminates the use of mandamus, certiorari, injunction and other equitable,
statutory and common law actions as a means of reviewing agency decisions, thus providing a
single uniform method of review.” Outcom, Inc. v. Illinois Department of Transportation, 233
Ill. 2d 324, 333 (2009). However, the Administrative Review Law does not apply unless it has
been expressly adopted. Porter v. Illinois State Board of Education, 2014 IL App (1st) 122891, ¶
23. Our courts have consistently held that section 10–10.1 of the Election Code explicitly does
not adopt the Administrative Review Law in circumstances such as presented here. See Rivera,
2011 IL App (1st) 110283, ¶ 45.
¶ 28 In light of the above discussion, we conclude that in addition to a request for judicial
review, proponents’ petition contained a separate claim for a writ of mandamus, one that fell
within the original subject matter jurisdiction of the circuit court. It was therefore improper for
the circuit court to dismiss that claim solely on the basis that proponents’ failure to comply with
the requirements of section 10-10.1 of the Election Code deprived the circuit court of subject
matter jurisdiction.
¶ 29 On appeal, objectors do not argue otherwise. 4 Rather, and by essentially invoking this
court’s power to “affirm the decision of the trial court for any reason appearing in the record,
regardless of whether the reasoning of the trial court was correct,” (Dunlap v. Illinois Founders
4
On appeal, the Electoral Board and the Board of Elections took no substantive position
on the dismissal of claim for a writ of mandamus, but reserved the right to respond
should this matter be remanded for further proceeding on that claim.
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Insurance Co., 250 Ill. App. 3d 563, 569 (1993), objectors point to a number of alternative
reasons this court should affirm the dismissal of proponents’ petition in its entirety. These
include the assertion of various purported pleading deficiencies in proponents’ request for a writ
of mandamus, and citation to case law indicating that a request for a writ of mandamus is not a
substitute for the filing and service of a proper complaint for judicial review of an electoral
board’s decision under the provisions of the Election Code
¶ 30 However, while this court may affirm the decision of the circuit court for any reason
appearing in the record, we are not required to search the record for reasons to affirm. Dunlap,
250 Ill. App. 3d at 569–70. In some circumstances, our review of the circuit court's decision
should be limited to the issues the circuit court actually addressed and decided, and in some
circumstances it may be more prudent to remand the matter to the circuit court to consider and
rule upon any further issues in the first instance. Id.; Ward v. Hilliard, 2018 IL App (5th)
180214, ¶ 56; Garrido v. Arena, 2013 IL App (1st) 120466, ¶ 33. We believe that this appeal
presents such a circumstance, where the request for a writ of mandamus was never specifically
addressed below by either objectors or the circuit court.
¶ 31 In so ruling, we note that with respect to proponents’ request for a writ of mandamus, our
ruling is limited to a conclusion that it was improper to dismiss that claim solely on the basis that
proponents’ failure to comply with the requirements of section 10-10.1 of the Election Code
deprived the circuit court of subject matter jurisdiction. We express no opinion on the sufficiency
of the pleading, the ultimate merits of this claim, or with respect to any attacks upon or defenses
to this claim that may be raised below.
¶ 32 III. CONCLUSION
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¶ 33 For the foregoing reasons, we: (1) affirm the circuit court’s dismissal of the portion of
proponents’ petition seeking judicial review of the Electoral Board’s decision under the Election
Code; (2) reverse the dismissal of the portion of the proponents’ petition seeking a writ of
mandamus; and (3) remand for further proceedings solely with respect to the proponent’s request
for a writ of mandamus.
¶ 34 Affirmed in part and reversed in part.
¶ 35 Cause remanded.
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