The opinion
2015 IL App (1st) 150263
No. 1-15-0263
Opinion filed February 20, 2015
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
CURTISS LLONG BEY, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellant, )
)
v. ) No. 15 COEL 000003
)
GEORGE BROWN, ) The Honorable
) David A. Skyrd,
Defendant-Appellee. ) Judge, presiding.
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 On January 5, 2014, the Chicago Board of Election Commissioners
notified plaintiff Curtiss Llong Bey of its decision not to print his name on the
February 24, 2015, ballot for alderman of the ninth ward of the City of Chicago.
No. 1-15-0263
Plaintiff then filed a petition for review with the circuit court. On January 8,
2015, defendant George Brown objected to plaintiff's petition for judicial
review on the basis that plaintiff: (1) failed to comply with the service
provisions of section 10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West
2012)) requiring service by registered or certified mail; and (2) failed to name
the Chicago Board of Election Commissioners (Election Board) in his petition
for review.
¶2 On January 14, 2015, the circuit court dismissed the matter for lack of
jurisdiction. For the following reasons, we agree and dismiss the appeal.
¶3 BACKGROUND
¶4 I. The Election Board
¶5 Plaintiff Curtiss Llong Bey filed a nominating petition seeking to place
his name on the February 24, 2015, ballot as a candidate for alderman of the
ninth ward in the City of Chicago.
¶6 Defendant George Brown filed an "Objector's Petition" alleging: (1) that
plaintiff failed to file a "Statement of Economic Interest"; and (2) that plaintiff
signed each of 66 petition sheets containing approximately 900 signatures as a
witness to those signatures, and that plaintiff did not personally witness each
and every person sign his or her name.
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¶7 Plaintiff responded in a document dated December 16, 2014, that he had
filed a Statement of Economic Interest and that his signatures were in order.
¶8 On January 5, 2015, the Electoral Board issued its "Findings and
Decision," in which it stated that a hearing officer had held an evidentiary
hearing on the issue of whether plaintiff had witnessed every signature.
Plaintiff testified at the hearing, and the hearing officer "found that the
Candidate's testimony that he witnessed all of the signatures that he swore to
have witnessed was not credible and thus called into question the integrity of all
of his petition sheets." Accordingly, the hearing officer found an appearance of
fraud and ruled that the petition should be invalidated and the objections
sustained.
¶9 The Electoral Board adopted the hearing officer's recommended findings
and conclusions of law, and ordered that plaintiff's name not be printed on the
ballot for the general election to be held on February 24, 2015.
¶ 10 The last page of the Electoral Board's decision contains a "Notice" which
appears in bold after the signatures of the three commissioners, and it reads in
full:
"NOTICE: Pursuant to Section 10-10.1 of the Election Code (10 ILCS
5/10-10.1), a party aggrieved of this decision and seeking judicial review
of this decision must file a petition for judicial review with the Clerk of
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the Circuit Court of Cook County within 5 days of service of the decision
of the Electoral Board."
¶ 11 There was no dispute before the circuit court that plaintiff filed his
subsequent petition within five days of service of the decision of the Electoral
Board, as the above notice directed him to do. The issue was whether plaintiff
acted fully "[p]ursuant to Section 10-10.1 of the Election Code" (10 ILCS 5/10-
10.1 (West 2012)) as the notice also instructed. This statutory section is quoted
in full in our Analysis section below.
¶ 12 II. The Circuit Court
¶ 13 On January 8, 2015, plaintiff filed a petition with the circuit court entitled
"Candidate's Petition." Plaintiff asked for dismissal of the objector's petition on
the grounds: (1) that the objector had failed to provide the required appendix
sheet indicating the page and line upon which the protested signature appears;
and (2) that the objector failed to attach the required exhibits showing an
irregularity.
¶ 14 On January 8, plaintiff also filed with the circuit court a "Petition for
Review of Administrative Action," a "Notice of Motion," and a "Notice of
Motion and Emergency Motion." The "Notice of Motion" and the "Notice of
Motion and Emergency Motion" each had sections entitled "Proof of Service by
Mail" and "Proof of Service by Hand-Delivery."
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¶ 15 The sections entitled "Proof of Service by Mail" state: "I, Curtiss Llong
Bey, non-attorney certify that I served this notice by mailing a copy to: George
Brown, Objector[,] 12413 South Wacker Ave[. ,] Chicago, Illinois 60628[.]
And depositing the same, with proper postage prepaid, in the U.S. Mail at: Mail
Box 100th St. at King Dr." These sections do not state on what day this action
was taken.
¶ 16 The section entitled "Proof of Service by Hand-Delivery" in the "Notice
of Motion" lists only defendant.
¶ 17 The section entitled "Proof of Service by Hand-Delivery" in the "Notice
of Motion and Emergency Motion" lists both the "Electoral Board" and
defendant, and states that plaintiff both personally served them and mailed this
notice to them by dropping it in a mailbox. Although there are blank spaces in
this section for a date to be completed, the date sections are left blank. The
section begins: "I, Curtiss Llong Bey, non-attorney[,] certify that on the __ day
of ______, 2015, I served this notice ***."
¶ 18 Plaintiff's "Emergency Motion" stated: "Specific references of
'objections' do not appear in the Objector's Petition; for there is no Appendix
present, nor is [sic] there any examples of alleged signature irregularities, page
or line."
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¶ 19 On January 14, 2015, the circuit court entered a written order stating in
full: "This matter having been heard is hereby dismissed for lack of
jurisdiction; the Court hereby finding the Candidate failed to properly serve the
parties by registered or certified mail and for failure to file proof of service with
the Clerk of Court as required by statute."
¶ 20 On January 22, 2015, plaintiff filed in the circuit court an "Emergency
Motion[:] Motion to Vacate Order to Dismiss[,] January 14, 2015." This
motion reiterated what was stated in the prior "Emergency Motion," namely,
that: "Specific references of 'objections' do not appear in the Objector's Petition;
for there is no Appendix present, nor is [sic] there any examples of alleged
signature irregularities, page or line."
¶ 21 A "Notice of Motion," also filed January 22, states that service was made
on defendant by depositing the motion in a mailbox and by fax. The notice
does not list the Election Board.
¶ 22 A "Notice of Motion and Emergency Motion," also filed January 22
states: (1) that service was made to defendant by depositing the motion in a
mailbox; (2) that service was made by hand-delivery on defendant and on his
counsel, Luke J. Keller; and (3) that service was made "by certified mail[,]
notice and motion sent the [sic] to the parties noted above." Below this line
appears:
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"Certified Mail 0000 0000 0000 0000 0000 Return Receipt Requested
{GEORGE BROWN}
Certified Mail 0000 0000 0000 0000 0000 Return Receipt Requested
{LUKE J. KELLER}"
The above seems to be a reference to a certified mail number but no number is
filled in. In addition, there is not even a set of zeros for the Electoral Board.
¶ 23 The appellate record contains a black-and-white photocopy of three
certified mail receipts with payment transaction slips. Two of the receipts and
three of the slips are partially obscured because the documents appear to have
been laid partially on top of one another when photocopied. The transaction
slips are dated January 22, 2015, and the certified mail receipts are addressed
to: (1) the Electoral Board; (2) Luke J. Keller; and (3) "Commissioner Rich"
and "Chairman Langdon." The rest of the names on the third receipt are not
visible.
¶ 24 On January 28, 2015, the circuit court issued a written order which stated
in full: "This case having been on call and heard by this court; Candidate's
motion to vacate the order to dismiss is hereby denied. This matter is off call."
¶ 25 II. The Appeal
¶ 26 On January 30, 2015, plaintiff filed a "Notice of Appeal," in the circuit
court naming the January 28, 2015, order as the order being appealed.
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¶ 27 In the appellate record, after the "Notice of Appeal," there appears to be
another black-and-white photocopy of the January 22, 2015, certified receipts
and transaction slips which, like the first photocopy, is partially obscured by
overlapping documents.
¶ 28 After these black-and-white photocopies are three color photocopies of
certified mail receipts. However, the fees sections and the postmark sections
are blank, and the receipts are not dated. They are addressed to: (1) the
Electoral Board; (2) Luke J. Keller; and (3) the Electoral Board Commissioners,
including Chairman Langdon D. Neal and Commissioners Richard A. Cowen
and Marisel A. Hernandez.
¶ 29 The appellate record does not contain: (1) a Statement of Economic
Interests by plaintiff; (2) the petition sheets which were the subject of the
Electoral Board's decision; or (3) certified or registered mail receipts showing
service on the Electoral Board or defendant on January 8, 2015, when plaintiff
filed with the circuit court a "Petition for Review of Administrative Action."
¶ 30 The photocopies appear to show that certified mail receipts were not
utilized until January 22, 2015, which was more than a week after the circuit
court's January 14, 2015, order dismissing the petition for lack of jurisdiction.
The appellate record does not contain any original certified receipts.
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¶ 31 III. The Expedited Briefing
¶ 32 On January 30, 2015, plaintiff also filed an emergency pro se motion
with the appellate court asking this court to vacate the trial court's order to
dismiss. On February 5, 2015, plaintiff filed: (1) an emergency pro se motion
asking the appellate court to rule on his election case, so that his name could be
placed on the February 24, 2015, ballot; and (2) a pro se brief.
¶ 33 The pro se brief contains a photocopy of a "Statement of Economic
Interests," file stamped by the Cook County clerk's office as received on
October 8, 2014. All the responses in the statement are filled out with zeros or
the word "none." This statement does not appear in the record on appeal.
¶ 34 The brief also contains three black-and-white photocopies of certified
mail receipts addressed to: (1) the Electoral Board commissioners; (2) Luke J.
Keller; and (3) the Electoral Board. The fees section and the postmark section
are blank, and so is the section which is to be completed upon delivery. There
is also no date.
¶ 35 Although the brief has a section entitled "Jurisdiction," it does not
address the question of whether the trial court properly dismissed plaintiff's
petition for lack of jurisdiction.
¶ 36 On February 6, 2015, the appellate court ruled that the emergency motion
was premature and denied it. The appellate court further ordered that the
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"defendant-appellant" must either hire a lawyer or follow the applicable
Supreme Court Rules in prosecuting an appeal. The order further stated:
"Appellant's motion to expedite appeal is granted. Appellee to file his brief by
February 12, 2015. Reply brief due February 15, 2015."
¶ 37 Instead of filing a brief as ordered, defendant chose instead to file a
"motion to dismiss appeal for lack of jurisdiction," with a sentence stating "[i]f
this Motion is not granted, Defendant-Appellee respectfully requests [an
additional] five days to file a Brief in support of the underlying decision." This
motion flies in the face of our order directing an expedited briefing schedule.
Appellate court orders are not advisory. Since the issue on appeal and the issue
in the motion are one and the same, namely, jurisdiction, we will consider
defendant's motion as his brief on appeal.
¶ 38 After defendant's motion, plaintiff filed a pro se reply brief which, like
his initial brief, does not discuss the jurisdiction issue before us. The brief is
captioned both a "Reply Brief" and a "Motion for Default Judgment," and it
contains a page entitled "Proof of Service" for "the attached 'Motion for Default
Judgment." The "Proof of Service" contains a section entitled "Proof of Service
by Certified Mail" which names "Board Members, 8th Floor," "The Electoral
Board, 6th Fl," and "Atty. Luke J. Keller." Attached to the proof is a color
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photocopy of three "Return Receipt[s]" and the sections entitled "Complete the
Section on Delivery" are blank.
¶ 39 ANALYSIS
¶ 40 The only issue before us is jurisdiction. Even if we found jurisdiction,
we could not then consider the underlying substantive issues which concerned
the candidate's nominating sheets and statement of economic interests, since
those documents are not in the record on appeal. Thus, even if we found that
we had jurisdiction, the time and practical constraints are such that plaintiff's
name could not be placed on the ballot in time for the general election, which is
only a few days away.
¶ 41 However, we conclude, for the reasons discussed below, that we lack
jurisdiction.
¶ 42 I. Standard of Review
¶ 43 The question before us on appeal is whether plaintiff complied with
section 10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2012)) in his
method of service. Whether plaintiff's failure to comply with the Election Code
deprived the circuit court, and this court, of subject matter jurisdiction is a legal
question that we review de novo. Bettis v. Marsaglia, 2014 IL 117050, ¶12.
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¶ 44 II. The Governing Statute
¶ 45 "Circuit courts may exercise jurisdiction over election cases only as
provided by statute." Bettis, 2014 IL 117050, ¶ 14. Recently, our supreme
court specifically discussed section 10-10.1 of the Election Code and held:
"When a court exercises special statutory jurisdiction, that jurisdiction is limited
to the language of the act conferring it, and the court has no powers from any
other source." Bettis, 2014 IL 117050, ¶ 14.
¶ 46 The governing statutory section for this appeal is Section 10-10.1(a) of
the Election Code (10 ILCS 5/10-10.1 (West 2012)), and it states in full:
"(a) 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 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. No answer to the petition need be filed, but
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the electoral board shall cause the record of proceedings before the
electoral board to be filed with the clerk of the court on or before the date
of the hearing on the petition or as ordered by the court.
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." (Emphasis added.) 10 ILCS 5/10-10.1(a) (West 2012).
¶ 47 Section 10-10 of the Election Code (10 ILCS 5/10-10 (West 2012),
which is mentioned in the quote above, governs the proceedings of the Electoral
Board, not the service of the party seeking judicial review of the Electoral
Board's decision.
¶ 48 Section 10-10.1 outlines four explicit prerequisites to establish subject
matter jurisdiction. Specifically, the party seeking judicial review must: (1)
"file a petition with the clerk of the court *** within 5 days" after the Board's
service of its decision; (2) serve copies of the petition "upon the electoral board
and other parties to the proceeding by registered or certified mail within 5 days"
after the Board's service of its decision; (3) state in that petition "why the
decision of the board should be reversed"; and (4) "file proof of service with the
clerk of the court." 10 ILCS 5/10-10.1 (West 2012).
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¶ 49 In the instant appeal, the second and fourth requirements are at issue. If
plaintiff failed to serve by registered or certified mail as required, then proof of
an act not done is obviously not possible.
¶ 50 III. Strict Compliance
¶ 51 Although some appellate courts had previously held that substantial
compliance was sufficient, our supreme court has recently held: "There is no
question that strict compliance with section 10-10.1(a) is required." Bettis,
2014 IL 117050, ¶ 16. Thus, as long as the dictates of section 10-10.1(a) are
clear and not confusing, they must be strictly observed. Bettis, 2014 IL 117050,
¶¶ 16, 22-23, 28. In the case at bar, plaintiff has not argued that there was
anything confusing about section 10-10.1's requirement of "registered or
certified mail." 10 ILCS 5/10-10.1 (West 2012).
¶ 52 IV. No Service by Registered or Certified Mail
¶ 53 The record on appeal shows that plaintiff failed to serve a copy of his
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 section 5/10-10.1 requires. (Emphasis added.) 10 ILCS
5/10-10.1 (West 2012).
¶ 54 On January 8, 2015, three days after the Electoral Board's decision,
plaintiff filed his petition seeking judicial review of the Electoral Board's
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decision. The petition was accompanied by two "Notice[s] of Motion." These
notices contain sections entitled "Proof of Service." In the proof sections,
plaintiff swore that he completed service by hand delivery and by dropping the
petition in a particular mailbox with prepaid postage. There is no mention of
registered or certified mail.
¶ 55 The first indication in the record that plaintiff utilized certified mail
occurs on January 22, 2015, which is more than a week after the circuit court
already dismissed the case for lack of jurisdiction. There are photocopies of
certified mail receipts with payment transaction slips dated January 22, 2015.
¶ 56 Utilizing certified mail on January 22 is like closing the barn door when
the horse is already a mile down the road. It is just too late. While "access to a
place on the ballot is a substantial right not lightly to be denied," that concern
does not undercut the strict compliance with section 10-10.1 (10 ILCS 5/10-
10.1 (West 2012)) explicitly required by our supreme court. Bettis, 2014 IL
117050, ¶ 28. Plaintiff failed to send his petition for judicial review by
registered or certified mail as required by statute and we, thus, lack jurisdiction
to hear it.
¶ 57 CONCLUSION
¶ 58 For the foregoing reasons, we agree with the circuit court and dismiss
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this appeal for lack of jurisdiction.
¶ 59 Appeal dismissed.
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