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

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Appellate Court Date: 2019.01.15

17:23:35 -06'00'

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

2018 IL App (1st) 182087

Appellate Court PAT QUINN and TAKE CHARGE CHICAGO COMMITTEE FOR

Caption MAYORAL TERM LIMITS AND ELECTED CONSUMER

ADVOCATE, Petitioners-Appellants, v. 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;

Objectors BRETT ALLEN CZAJA and KAREN LARSON; and THE

BOARD OF ELECTION COMMISSIONERS FOR THE CITY OF

CHICAGO, Respondents-Appellees.

District & No. First District, Fifth Division

Docket No. 1-18-2087

Filed November 5, 2018

Decision Under Appeal from the Circuit Court of Cook County, No. 2018-COEL-28;

Review the Hon. Maureen O. Hannon, Judge, presiding.

Judgment Affirmed in part and reversed in part.

Cause remanded.

Counsel on Ed Mullen, of Bucktown Law, and Pat Quinn, both of Chicago, for

Appeal appellants.

Michael J. Kasper and James E. Hartmann, of Chicago, for appellees

Brett Allen Czaja and Karen Larson.

Panel 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

¶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

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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final decision was served upon proponents by e-mail (pursuant to a prior agreement) and hand

delivery the same day.

¶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

Election, 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

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

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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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.

¶ 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 (quoting Kedzie &

103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993)). When deciding a

section 2-619 motion, a court accepts all well-pleaded facts 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 provided by law.” Ill. Const. 1970, art. VI, § 9;

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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

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 Objection of 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 grounds by Bettis, 2014 IL 117050, ¶ 28; Hough, 338 Ill. App. 3d

at 1094; Allord v. Municipal Officers Electoral Board, 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.”

(Emphases 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.

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¶ 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 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 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

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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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

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. Id. 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. at 570; 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

¶ 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.

4

On appeal, the Electoral Board and the Board of Election 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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¶ 34 Affirmed in part and reversed in part.

¶ 35 Cause remanded.

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