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Delay v. Bd. of Election Comm'ners of Chicago, No. 1-00-0565

1st District, 7 March 2000

FOURTH DIVISION

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, William "Mr. D." Delay, filed the instant action seeking judicial review of a decision of the Board of Election Commissioners of the City of Chicago (Board) finding that his nomination papers as a candidate for the office of Republican Ward Committeeman for the 5th Ward of the City of Chicago were "not valid" and ordering that his name not appear on the official ballot for the March 21, 2000, election. The circuit court dismissed the plaintiff's action for lack of subject matter jurisdiction, and this appeal followed. For the reasons stated herein, we now reverse the order of the circuit court and remand this action for further proceedings.

The facts of this case are undisputed. After the plaintiff filed his nomination papers with the Cook County Clerk, Clara Simms-Johnson (hereinafter referred to as the "objector") filed timely objections to those nomination papers. The Board, consisting of Langdon D. Neal, Richard A. Cowen, and Theresa M. Petrone (collectively referred to as the "commissioners"), held hearings on those objections. On February 1, 2000, the Board issued its written decision signed by each of the commissioners.

On February 9, 2000, the plaintiff filed the instant action pursuant to section 10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 1998)), seeking a reversal of the Board's decision. The petition named the Board, the commissioners, and the objector as defendants. On the same day that he filed his petition, the plaintiff placed summons for service upon all of the defendants with the sheriff of Cook County. The record in this case does not contain any returns of service by the sheriff, but the Board and the commissioners acknowledge in their brief that they were served with a summons and copy of the petition for judicial review by the sheriff on February 17, 2000. Nothing in the record allows us to determine if the objector was ever served by the sheriff, but the record does reflect that she appeared in court on February 14, 2000, at the time that the plaintiff's motion for an expedited briefing schedule was heard.

On February 17, 2000, the Board and the commissioners filed both an appearance and a motion to dismiss the petition pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1998)), arguing that the court lacked jurisdiction by reason of the plaintiff's failure to serve the defendants with a copy of the petition by certified or registered mail within 10 days after the Board issued its decision. On that same day, after the Board and the commissioners filed their motion to dismiss, the plaintiff placed copies of the petition for judicial review in the United States mail for delivery to each of the defendants by certified mail. On February 18, 2000, the plaintiff filed a "Proof of Service" with the clerk of the court. The record does not contain receipts evidencing delivery of the certified mail to any of the defendants, but it does contain admissions by the Board and the commissioners that they received copies of the petition by certified mail on February 18, 2000, and evidence that the objector received her copy via certified mail on February 19, 2000.

On February 23, 2000, the circuit court ruled on the motion to dismiss filed by the Board and the commissioners. The court found that:

"Section 10-10.1 of the Election Code requires that the party seeking review must serve a copy of the petition for judicial review upon the electoral board and other parties to the proceeding by certified or registered mail within 10 days of the date of the electoral board's decision by placing it in the mail *** within 10 days of the electoral board decision."

In the alternative, the court found that, even if section 10-10.1 does not require the filing of a proof of service within 10 days of the issuance of the electoral board's decision, a party seeking judicial review is, nevertheless, required to serve a copy of the petition "promptly." After determining that the plaintiff failed to comply under either alternative, the circuit court dismissed the petition for lack of subject matter jurisdiction.

"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 within 10 days after the decision of the electoral board. The petition shall contain a brief statement of the reasons why the decision of the board should be reversed. The petitioner shall serve a copy of the petition upon the electoral board and other parties to the proceeding by registered or certified mail and shall file proof of service with the clerk of the court. No answer to the petition need be filed, but any answer must be filed within 10 days after the filing of the petition.

The court shall set the matter for hearing to be held within 30 days after the filing of the petition and shall make its decision promptly after such hearing." 10 ILCS 5/10-10.1 (West 1998).

In Allord, the court held that:

"section 10-10.1 includes four explicit requirements that must be met before the circuit court may obtain jurisdiction over the case: (1) a challenging petition must be filed with the clerk of the court within 10 days after the electoral board issues its decision; (2) the petition shall state briefly the reasons why the board's decision should be reversed; (3) the petitioner shall serve copies of the petition upon the electoral board and other parties to the proceeding by registered or certified mail; and (4) the petitioner shall file proof of service with the clerk of the court." Allord, 288 Ill. App. 3d at 901.

The court went on to find that service of the petition must be made "promptly" so as to permit an actual opportunity for a defendant to answer the petition within the short time period provided in section 10-10.1. Allord, 288 Ill. App. 3d at 902-03. Contrary to the assertion of the Board and the commissioners, though, the Allord court did not hold that service of the petition must be effectuated within 10 days after the issuance of the electoral board's decision. Rather, the court stated that: "Allord's failure to include five candidates in his original petition, or to serve them with notice of the petition within 10 days of filing it, precluded the circuit court from exercising jurisdiction over the election contest." (Emphasis added.) Allord, 288 Ill. App. 3d at 904.