Wisnasky-Bettorf v. Pierce

ILLINOIS OFFICIAL REPORTS

Supreme Court

Wisnasky-Bettorf v. Pierce, 2012 IL 111253

Caption in Supreme WHITNEY WISNASKY-BETTORF, Appellant, v. PEGGY PIERCE et

Court: al., Appellees.

Docket No. 111253

Filed March 22, 2012

Held Where a candidate was designated by her party after a primary in which

(Note: This syllabus it had no name on the ballot and there was no write-in, the Election Code

constitutes no part of requirement that a “resolution filling the vacancy” be filed within three

the opinion of the court days was not applicable, and failure to comply did not justify her

but has been prepared exclusion from the ballot.

by the Reporter of

Decisions for the

convenience of the

reader.)

Decision Under Appeal from the Appellate Court for the Fifth District; heard in that court

Review on appeal from the Circuit Court of St. Clair County, the Hon. Andrew

J. Gleeson, Judge, presiding.

Judgment Judgments reversed.

Counsel on Brian M. Funk, of O’Fallon, for appellant.

Appeal

Robert J. Sprague, of Sprague & Urban, and Garrett P. Hoerner, of

Becker, Paulson, Hoerner & Thompson, P.C., all of Belleville, for

appellee.

Justices JUSTICE FREEMAN delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke,

and Theis concurred in the judgment and opinion.

OPINION

¶1 Petitioner, Whitney Wisnasky-Bettorf, appeals from the circuit court’s order sustaining

petitioner’s removal from the ballot for the general election held on November 2, 2010. A

divided panel of the appellate court affirmed (403 Ill. App. 3d 1080), and we granted leave

to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)). We now reverse the judgments of the circuit

and appellate courts.

¶2 Background

¶3 At the Republican Party’s general primary election held on February 2, 2010, no

candidate’s name for the office of board of review for St. Clair County, Illinois, was printed

on the ballot, and no candidate was nominated as a write-in for that office. Accordingly, on

March 25, 2010, the St. Clair County central committee of the Republican Party (the

committee) held a meeting at which it passed a motion designating petitioner as the

appointee for candidacy for the office of board of review member.

¶4 On April 1, 2010, the committee filed a “resolution/certificate of appointment” with the

county clerk of St. Clair County, indicating that the executive committee of the Republican

Party in St. Clair County had voted to nominate petitioner for the office of board of review

member as required pursuant to section 7-61 of the Election Code (10 ILCS 5/7-61 et seq.

(West 2010)). On April 16, 2010, petitioner filed her nominating petitions with the clerk

together with the notice of appointment, her statement of candidacy and her receipt for filing

a statement of economic interests.

¶5 On April 26, 2010, the objector, Peggy Pierce, filed a verified objector’s petition

requesting that petitioner’s name not appear on the ballot for election to the office of board

of review member because the resolution was not filed within three days as required by

section 7-61. On April 30, 2010, the St. Clair County electoral board held a hearing on the

objection. At the conclusion of the hearing, the St. Clair County electoral board sustained the

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objection and removed petitioner’s name from the ballot for the general election to be held

on November 2, 2010. In doing so, the St. Clair County electoral board stated the committee

was required to file a resolution under section 7-61 in order to fill the vacancy in nomination

and that this resolution was to be filed within three days after the committee’s meeting on

March 25, 2010.

¶6 On May 3, 2010, the St. Clair County electoral board entered a written decision, ordering

that petitioner’s name was to be removed from the ballot for the November 2, 2010, general

election. On May 10, 2010, petitioner sought judicial review in the circuit court of St. Clair

County, arguing that: (1) the committee was not required to file a resolution under section

7-61 in order for petitioner to fill the general primary vacancy, and (2) even if the committee

were required to file a resolution, the objections in this case were untimely.

¶7 On June 2, 2010, the circuit court held a hearing on the petition. Petitioner asked the

court for relief, specifically to have her name placed back on the ballot for that election. At

the conclusion of the hearing, the circuit court confirmed the decision of the St. Clair County

electoral board.

¶8 A divided panel of our appellate court affirmed, holding section 7-61 required the filing

of a resolution under the circumstances. 403 Ill. App. 3d 1080. The dissenting justice

concluded that the amended portion of section 7-61 sets forth a distinct procedure for

situations such as the case at hand and specifically substitutes a “notice of appointment” for

the filing of a resolution. 403 Ill. App. 3d at 1091 (Spomer, J., dissenting). Petitioner seeks

reversal of the judgment of the appellate court.

¶9 ANALYSIS

¶ 10 Mootness

¶ 11 We must initially address the contention that this matter is moot given that the November

2010 election has already occurred and the petitioner does not request a new election if she

were to prevail in this appeal.

¶ 12 One exception to the mootness doctrine allows a court to resolve an otherwise moot issue

if the issue involves a substantial public interest. Petitioner invokes this exception

specifically requesting that this court clarify this area of the law for future elections. The

criteria for application of the public interest exception are: (1) the public nature of the

question, (2) the desirability of an authoritative determination for the purpose of guiding

public officers, and (3) the likelihood that the question will recur. In re A Minor, 127 Ill. 2d

247, 257 (1989); People ex rel. Wallace v. Labrenz, 411 Ill. 618, 622 (1952). A clear

showing of each criterion is required to bring a case within the public interest exception. See

Kohan v. Rimland School for Autistic Children, 102 Ill. App. 3d 524, 527 (1981).

¶ 13 The present case meets this test. Issues regarding the filling of vacancies in nomination

of a public office are of substantial public interest. The appellate court correctly observed

that issues regarding this subject are long-standing and have not been addressed by courts or

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the legislature (Phelan v. County Officers Electoral Board, 240 Ill. App. 3d 368, 371, 381

(1992)). See Thurston v. State Board of Elections, 76 Ill. 2d 385, 387-88 (1979);

Administrative Office of the Illinois Courts, 1981 Annual Report to the Supreme Court of

Illinois 22. An authoritative guide for future controversies is needed; the issue will likely

recur. We therefore will address the merits of this cause.

¶ 14 Election Code

¶ 15 The question before us is whether an established political party must file a resolution

pursuant to section 7-61 of the Election Code (10 ILCS 5/7-61 (West 2010)) in order to fill

a vacancy in nomination when no candidate appeared on the primary ballot and no write-in

candidate was nominated. Regarding our standard of review, factual findings made by an

electoral board will not be disturbed unless they are against the manifest weight of the

evidence. Girot v. Keith, 212 Ill. 2d 372, 378-79 (2004). We are not bound, however, by the

board’s interpretation of a statute. King v. Justice Party, 284 Ill. App. 3d 886, 888 (1996).

The construction of a statute is a question of law, which we review de novo. Sylvester v.

Industrial Comm’n, 197 Ill. 2d 225, 232 (2001).

¶ 16 The primary rule of statutory interpretation and construction, to which all other canons

and rules are subordinate, is to ascertain and effectuate the true intent and meaning of the

legislature. People ex rel. Hanrahan v. White, 52 Ill. 2d 70, 73 (1972). In interpreting a

statute, a court must give the legislative language its plain and ordinary meaning. Illinois

Power Co. v. Mahin, 72 Ill. 2d 189 (1978). If the language of the statute is plain, clear, and

unambiguous, and if the legislative intent can be ascertained therefrom, it must prevail and

will be given effect by the courts without resorting to other aids for construction. In re

Marriage of Logston, 103 Ill. 2d 266 (1984). Also, the statute should be evaluated as a

whole; each provision should be construed in connection with every other section. Bonaguro

v. County Officers Electoral Board, 158 Ill. 2d 391, 397 (1994). Statutes should be

construed, if possible, so that no term is rendered superfluous or meaningless. Bonaguro, 158

Ill. 2d at 397.

¶ 17 The objection in this case was based on section 7-61 of the Election Code. We note that

section 7-61 consists of multiple paragraphs which address different circumstances in which

vacancies in nomination occur. According to the objection, section 7-61 requires the filing

of a resolution in this case. In so arguing, the objector relied upon paragraph 3, which states:

“Any vacancy in nomination under the provisions of this Article 7 occurring on

or after the primary and prior to certification of candidates by the certifying board or

officer, must be filled prior to the date of certification. Any vacancy in nomination

occurring after certification but prior to 15 days before the general election shall be

filled within 8 days after the event creating the vacancy. The resolution filling the

vacancy shall be sent by U.S. mail or personal delivery to the certifying officer or

board within 3 days of the action by which the vacancy was filled; provided, if such

resolution is sent by mail and the U.S. postmark on the envelope containing such

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resolution is dated prior to the expiration of such 3 day limit, the resolution shall be

deemed filed within such 3 day limit. Failure to so transmit the resolution within the

time specified in the Section shall authorize the certifying officer or board to certify

the original candidate. Vacancies shall be filled by the officers of a local municipal

or township political party as specified in subsection (h) of Section 7-8, other than

a statewide political party, that is established only within a municipality or township

and the managing committee (or legislative committee in case of a candidate for State

Senator or representative committee in the case of a candidate for State

Representative in the General Assembly or State central committee in the case of a

candidate for statewide office, including but not limited to the office of United States

Senator) of the respective political party for the territorial area in which such vacancy

occurs.” 10 ILCS 5/7-61 (West 2010).

In response, petitioner maintains that paragraph 3 does not apply to the situation present in

this case—where no name had appeared on the primary ballot—and that paragraph 9 controls

in such situations. We agree.

¶ 18 The plain language of section 7-61, when read in its entirety, reveals that paragraph 3,

quoted above, does not apply where no established political party candidate was printed on

the general primary ballot for a particular office and no person was nominated as a write-in

candidate at the general primary election. Rather, paragraph 3 applies to situations where a

candidate has been nominated at the primary and a vacancy in nomination occurs as a result

of the death or resignation of that person nominated. There are four paragraphs in section 7-

61 which address the “resolution to fill the vacancy”: paragraphs 3, 4, 5, and 6. There is

language in two of those paragraphs that makes it clear that the filing of the resolution refers

to situations where a candidate was nominated at a primary. For example, the fourth sentence

in paragraph 3 states: “Failure to so transmit the resolution within the time specified in this

Section shall authorize the certifying officer or board to certify the original candidate.” 10

ILCS 5/7-61 (West 2010). Moreover, paragraph 4 of the statute, which sets forth the

information that must be included in the resolution, states:

“The resolution to fill a vacancy in nomination shall be duly acknowledged

before an officer qualified to take acknowledgments of deeds and shall include, upon

its face, the following information:

(a) the name of the original nominee and the office vacated;

(b) the date on which the vacancy occurred;

(c) the name and address of the nominee selected to fill the vacancy and the date

of selection.” 10 ILCS 5/7-61 (West 2010).

These references to the “original candidate” and the “original nominee” make no sense in

cases such as this where no original candidate or nominee existed.

¶ 19 In contrast, paragraph 9 specifically sets forth the procedure to be followed in situations

such as those here, i.e., where no name was put forth on the primary ballot and no write-in

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candidate was nominated by primary voters. Paragraph 9 states:

“If the name of no established political party candidate was printed on the

consolidated primary ballot for a particular office and if no person was nominated as

a write-in candidate for such office, a vacancy in nomination shall be created which

may be filled in accordance with the requirements of this Section. If the name of no

established political party candidate was printed on the general primary ballot for a

particular office and if no person was nominated as a write-in candidate for such

office, a vacancy in nomination shall be filled only by a person designated by the

appropriate committee of the political party and only if that designated person files

nominating petitions with the number of signatures required for an established party

candidate for that office within 75 days after the day of the general primary. The

circulation period for those petitions begins on the day the appropriate committee

designates that person. The person shall file his or her nominating petitions,

statements of candidacy, notice of appointment by the appropriate committee, and

receipt of filing his or her statement of economic interests together. The electoral

boards having jurisdiction under Section 10-9 to hear and pass upon objections to

nominating petitions also shall hear and pass upon objections to nomination petitions

filed by candidates under this paragraph.” 10 ILCS 5/7-61 (West 2010).

¶ 20 We note that the current paragraph 9 was amended in 2009. The amendment, which went

into effect on January 1, 2010, added specific requirements for a vacancy in nomination

when no established political party candidate was printed on the general primary ballot.1

¶ 21 In such situations, paragraph 9 provides that the vacancy in nomination may be filled

only when the following four conditions are met: (1) the person to fill the vacancy in

nomination has been “designated by the appropriate committee of the political party” in

question, (2) the designated person obtains nominating petitions with the number of

signatures required for an established party candidate for that office, with the circulation

period to begin “on the day the appropriate committee designates that person,” (3) the

designated person has filed, together, the following required documents, within 75 days after

the day of the general primary: “his or her nominating petitions, statements of candidacy,

notice of appointment by the appropriate committee, and receipt of filing his or her statement

1

A review of the preamended version of paragraph 9 of section 7-61 reinforces our

interpretation. We provide it as a means of comparison:

“If the name of no established political party candidate was printed on the

consolidated primary ballot for a particular office and if no person was nominated as a

write-in candidate for such office, a vacancy in nomination shall be created which may be

filled in accordance with the requirements of this Section. If the name of no established

political party candidate was printed on the general primary ballot for a particular office and

if no person was nominated as a write-in candidate for such office, a vacancy in nomination

shall be created, but no candidate of the party for the office shall be listed on the ballot at

the general election unless such vacancy is filled in accordance with the requirements of this

Section within 60 days after the date of the general primary.”10 ILCS 5/7-61 (West 2008).

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of economic interests,” and (4) “[t]he electoral boards having jurisdiction under Section 10-9

to hear and pass upon objections to nominating petitions also shall hear and pass upon

objections to nomination petitions filed by candidates under [paragraph 9].” 10 ILCS 5/7-61

(West 2010). We note that the requirement that the candidate who is filling a vacancy created

by reason of a lack of candidate on the primary ballot must file nomination petitions with the

number of signatures required for an established party is inconsistent with the requirements

set forth in paragraphs 3 through 8, which do not require that nomination petitions be filed.

Finally, paragraph 9 does not include the word “resolution”; thus it is reasonable to conclude

that paragraph 9 does not require the filing of a resolution in the case at bar.

¶ 22 The amended language of paragraph 9 makes clear that the legislature intended that in

situations where there is no original candidate on the ballot and no write-in, a candidate must

now show, basic level, “grassroots” support by complying with the requirements in

paragraph 9 that were not previously included in paragraph 9 prior to the amendment. To

hold otherwise would be clearly against the legislative intent in making this amendment and

against this state’s position in favor of ballot access for candidates running for public office.

See Hossfeld v. Illinois State Board of Elections, 398 Ill. App. 3d 737, 743 (2010).

¶ 23 Our conclusion that paragraph 3 does not apply to a vacancy created by reason of a lack

of candidate on the primary ballot is further strengthened by the legislative history of Public

Act 86-809, which amended paragraph 9. The statements from the House debate indicate that

the legislature intended to provide specific requirements exclusive to a candidate who fills

a vacancy when no one was nominated in the primary to serve as that party’s candidate

nomination. 96th Ill. Gen. Assem., House Proceedings, April 2, 2009, at 7, 10 (statements

of Representatives Fortner and Graham). These same comments further reveal that the

legislature viewed the requirements in paragraphs 3 through 8 to apply to those candidates

who fill a vacancy when there was a candidate on the primary ballot. Id.

¶ 24 Finally, we note that the appellate court relied upon dicta contained in Forcade-Osborn

v. Madison County Electoral Board, 334 Ill. App. 3d 756, 759 (2002). However, Forcade-

Osborn was decided prior to the amendment of paragraph 9, and whatever persuasiveness

Forcade-Osborn’s dicta might have once had is now extinguished.

¶ 25 CONCLUSION

¶ 26 For the foregoing reasons, the judgments of the circuit and appellate courts are reversed.

¶ 27 Judgments reversed.

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