Brief for the Respondent in Opposition — Smith v. Stewart

TABLE OF CONTENTS

PAGE

STATEMENT OF THE CASES 2

REASONS FOR NOT GRANTING THE WRIT ..... 3

L

The Questions Petitioners Seek To Present For

Review Were Not Raised Below 3

i.

The State Courts’ Decisions In Tiese Cases Are

In Accord With The Decisions Of This Court... 4

IIL

Petitioners Did Not Raise, Brief Or Argue Any

Due Process Claim, Procedural Or Substantive,

Below 5

IV.

There Are No Principles Involved In This Case

Warranting The Exercise Of This Court’s Power

Of Supervision . =

List Or Auruorriries Crrep

Cases

Briscoe v. Kusper, 435 F.2d 1046, 1056 ( _ Se 5, 6

Clay v. Sun Insurance Office Limited, 363 U.S. 207 , 80

S.Ct. 1222 (1960) 7

Duignan v. United States, 274 U.S. 195, 47 S.Ct. 566

(1927) 4

a ON REL LU OE ITE LETRA SE EBL OE be Re pres PAOLO PM AOD DP

ii

Lake Carriers Association v. MacMullan, 406 U.S. 498,

92 S.Ct. 1749 (1972) - 7

Lindsey v. Normet, 405 USS. 56, 92 S.Ct. 862 (1972) .. 5, 6

People for Use of Dyer v. Sawyer, 284 Ill.App. 463,

2, N.E.2d 343 (1936)

Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788 (1970) .... 7

Rice v. Sioux City Memorial Park Cemetery, 349 US.

70, 79, 75 S.Ct. 614, 619 (1955) 8,9

Richards v. Leimbacher, 267 N.E.2d 523, 525 (1971) .. 7

Savage v. Frost, 14 Ti. App.3d 1036, 304 N.E.2d 1, 3

(1973) 4, 6,8

Smiley v. Lenane, 363 Hl. 66, 1 N.E.2d 213, 216 (1936) 8

Smith v. Stewart, 14 Ill.App.3d 1039, 304 N.E.2d 3, 5

(1973) 4, 6,8

Surowitz v. Hilton Hotels Corporation, 393 U.S. 363,

86 S.Ct. 845 (1966) . 6

Susie A. Tyrell, ete. v. District of Columbia, 243 U.S.

* ar ” " :

1, 37 S.Ct. 361 (1917) —————— 4

Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526

(1964) 4

Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10

(1968) 4

Wuellner v. Illinois Bell Telephone Co., 390 Tl. 126,

60 N.E.2d 867 (1945) 7

Zahray v. Emricson, 25 Til.2d 121, 124, 182 N.E.2d 756,

758 (1962) 8

Constitutional Provisions and Statutes

XIV Amendment to the Constitution of the United

States 3, 5, 6

IL Rev.Stats., Ch. 24, §21-27 6,7

Til. Rev.Stats., Ch. 46, §7-63 6

Ill_Rev.Stats., Ch. 46 §§29A-1, 294-8 5

In THE

Supreme Court of the United States

Octoser TERM, 1973

PHILIP G. SMITH,

Petitioner,

vs.

BENNETT M. STEWART and STANLEY T. KUSPER, JR., FRANCIS

P. CANARY, and MARIE H. SUTHERS, individually and (in the case

of the latter three) as together constituting THE CHICAGO BOARD

OF ELECTION COMMISSIONERS,

Respondents.

AUGUSTUS A. SAVAGE,

Petitioner,

vs.

WILSON FROST and STANLEY T. KUSPER, JR., FRANCIS P. CANARY,

and MARIE H. SUTHERS, individually and (in the case of the latter

three) as together constituting THE CHICAGO BOARD

OF ELECTION COMMISSIONERS,

Respondents.

BRIEF OF BENNETT STEWART AND WILSON FROST,

RESPONDENTS, IN OPPOSITION TO

THE PETITION FOR A WRIT OF CERTIORARI

~~

STATEMENT OF THE OASES.

The February 23, 1971 Aldermanic Election in the City

of Chicago was a regularly scheduled election for Alder-

man in each of the 50 Wards of the City of Chicago. The

terms of the incumbents involved in this case will end

in April, 1975. The next Aldermanic Election will be held

in February, 1975. The Petitioners’ Statement of the

Cases should be examined in the light of the decision of

the trial court and of the Illinois Appellate Court that

what Petitioners refer to as fact was insufficient to war-

rant an election contest being allowed to proceed in the

courts of Illincis. Further, we do not believe that the

inferences drawn by the Petitioners from the Complaints

(Pet.App. C & G) and stated as facts in their Statement

of the Cases are warrantei, even as advocacy.

— a

REASONS FOR NOT GRANTING THE WRIT.

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THE QUESTIONS PETITIONERS SEEK TO PRESENT FOR

REVIEW WERE NOT RAISED BELOW.

The “Questions Presented” in the Petition For A Writ

of Certiorari in reality appear to suggest two basic ques-

tions:

1. Whether the state requirement of specificity of

pleading invoked in this case violated the due process

clause of the XIV Amendment to the Constitution of the

United States; and

2. Whether the state statutory limitation of five days

in which to specifically plead facts sufficient to show a

right to maintain an election contest proceeding violates

the due process clause of the XIV Amendment to the

Constitution of the United States.

Neither the “Questions Presented” in the “Petition For

A Writ Of Certiorari” nor the questions suggested as the

basic questions raised by the Petition were raised in the

proceedings below. The Petitioners, in their briefs before

the Illinois Appellate Court, as an issue presented for

review, state the question:

In dismissing the complaint, did the court below

violate plaintiff’s rights under the XIV Amendment

to the United States Constitution... . (Res.App. Al,

B1)

The Appellate Court of Illinois, First District, in dis-

posing of that question stated:

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Plaintiff next contends that the decision of the

trial court violates his federal and state constitu-

tional rights. He cites no authority nor could we find

any, even suggesting that the statutory requirement

is unconstitutional.” Savage v. Frost, 14 Ill.App.3d

1036, 304 N.E.2d 1, 3 (1973); Smith v. Stewart, 14

Il. App.3d 1039, 304 N.E.2d 3, 5 (1973).

It thus appears that the constitutional question, if it

exists in this case, was not urged and briefed below. (Res.

App. A1-9, B1-9). In that circumstance, this case may not

properly be maintained in this Court, Susie A. Tyrell, etc.

v. District of Columbia, 243 U.S. 1, 37 S.Ct. 361 (1971),

absent some exceptional consideration. Duignan v. United

States, 274 U.S. 195, 47 S.Ct. 566 (1927). No exceptional

circumstances are offered for consideration by the Peti-

tion. We urge, on that basis alone, the denial of the Peti-

tion For A Writ Of Certiorari.

Il.

THE STATE COURTS’ DECISIONS IN THESE CASES ARE

IN ACCORD WITH THE DECISIONS OF THIS COURT.

The Petitioners conclude the first point in the Reasons

For Granting The Writ by stating “The issues are truly

of major significance.” They cite and quote from Wesberry

vy. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526 (1964) and Wil-

liams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10 (1968). No

person cognizant of the Constitution of the United States

and the development of the law in the area of personal

rights in elections woald take issue with the abstract

statements of the law and quotations. However, those

statements have no relationship to the failure of a candi-

date to plead substantially enough to warrant a court

entertaining his complaint. The Petitioners assert that the

ae

decisions of the Appellate Court of Illinois in these cases

have determined that there is no remedy for vote fraud

in Aldermanic Elections in Chicago. Nothing could be

further from the truth. See: Ill.Rev.Stats., Ch. 46 §$§29A-1,

294-8. The County Prosecutor, the United States District

Attorney and the election authorities have prosecuted

persons for misconduct in elections since those decisions.

The trial court determined that these Petitioners did

not plead sufficiently to warrant the court entertaining

their cases and the Appellate Court of Illinois agreed.

The Petitioners seem to rely primarily on their assertions

that election irregularities are prevalent in Chicago. This

assertion, while it may well have significant appeal for

demagogic politicians, has not been demonstrated to be

true, nor was the claim made below.

The federal court has considered the question of whether

or not a five day time requirement in an Aldermanic

Election is a denial of due process. The Court of Appeals

for the 7th Cireuit in Briscoe vy. Kusper, 435 F.2d 1046,

1056 (1970) held, in a case involving the 1967 Aldermanic

Election in Chicago, that a similar five day time limit for

initiating action to secure a remedy did not contravene

the due process requirements of the XIV Amendment to

the Constitution of the United States.

This court in Lindsey v. Normet, 405 U.S. 56, 92 S.Ct.

862 (1972), in ruling on the constitutionality of a require-

ment of trial not later than six days after service of the

complaint contained in the Oregon Forcible Entry and

Wrongful Detainer Statute, rejected the assertion of the

Plaintiff that the due process clause of the XIV Amend-

ment was violated by that statutory requirement. This in

a case where shelter, one of the basic requirements of

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man, was threatened; if the Plaintiff was without funds

with which to post the bond required by the Oregon

statute while the case was pending, it appears that the

detainor was dispossessed.

Thus, it appears that the Illinois Appellate Court in

Smith v. Stewart, supra, Savage v. Frost, supra, the Court

of Appeals for the 7th Circuit in Briscoe v. Kusper, supra,

and this Court in Lindsey v. Normet, supra, have all ruled

that a short period of limitation found in state statutes

does not violate the due process clause of the XIV Amend-

ment to the Constitution of the United States. No decision

of or dicta from any court to the contrary is submitted by

the Petitioners. The Petitioners’ conclusion that “The

issues are truly of major significance” fades into insigni-

ficance in the light of reasonable examination.

Ii.

PETITIONERS DID NOT RAISE, BRIEF OR ARGUE ANY

DUE PROCESS CLAIM, PROCEDURAL OB SUBSTANTIVE,

BELOW.

The reliance of the Petitioners on Surowitz v. Hilton

Hotels Corporation, 383 U.S. 363, 86 S.Ct. 845 (1966), in

Part 2 of their Brief is unwarranted. Surowitz presented

a question of the proper construction of the then existing

Rule 23(b) of the Federal Rules of Civil Procedure, a

matter of construction wholly within the competence of

the federal courts. The pleading requirements in this case

are governed by Ch. 24, §21-27, Ill.Rev.Stats. and Ch. 46,

§7-63, Ill. Rev.Stats., and the primary court to determine

the proper construction of those statutes are the courts

of Illinois. This Court on numerous occasions has required

the federal courts to ewait construction of state statutes

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before determining the federe’ constitutionality of the

statute. Reetz v. Bozanich, 397 U.S. $2, 90 S.Ct. 788 (1970) .

Lake Carriers Association v. MacMullan, 406 U.S. 498, 92

S.Ct. 1749 (1972); Clay v. Sun Insurance Office Limited,

363 U.S. 207, 80 S.Ct. 1290 (1960). That construction has

been made in this case but the Petitioners neither ade-

quately briefed or argued any constitutional question

below. (Res. App. A,B). We concede that the construction

of the Illinois statute is not final on the question of the

constitutionality of the statute, but the constitutionality

of the statute involved in this ease, Ch. 24, §21-27, Ill.

Rev.Stats., has not been attacked by the Petitioners either

in the trial court, in the Illinois Appellate Court or this

Court.

The contention of the Petitioners that the dismissal

of a complaint without the hearing of evidence is denial

of a hearing is totally without merit. A Motion to Dismiss

the complaint for failure to state a claim upon which

relief may be granted is the usuai inethod in the federal

courts of testing the legal sufficiency of a complaint. The

same role is played in the Illinois State courts by a motion

to dismiss the complaint as substantially insufficient as a

matter of law. Wuellner v. Illinois Bell Telephone Co.,

390 Tll. 126, 60 N.E.2d 867 (1945) ; People for Use of Dyer

v. Sawyer, 284 Tll.App. 463, 2 N.E.2d 343 (1936); Rich-

ards v. Leimbacher, 267 N.E.2d 523, 525 (1971). It is

obvious that the Petitioners’ real complaint is that they

were not allowed to present evidence on an insufficient

complaint. They had a judicial hearing and an order was

entered. (Pet.App. 15a, 36a). Petitioners neither cite nor

allude to any euthority supporting any right to present

evidence on an insufficient complaint. The Petitioners

here, as they did in the Appellate Court of Illinois, have

furnished no authority for the novei position they urge.

: a ~ eee. ee ee on

a

Iv.

THERE ARE NO PRINCIPLES INVOLVED IN THIS CASE

WARRANTING THE EXERCISE OF THIS COURT'S POWER

OF SUPERVISION.

The statements of the Petitioners in part three of

their Reasons for Granting A Writ of Certiorari impugn

the integrity of every plaintiff and suggests subornation

of perjury by every lawyer who represents a plaintiff

in an election contest proceeding in Illinois. As in their

brief hefore the Illinois Appellate Court, they state no

authority to support the extravagant position which they

urge. The Supreme Court of Illinois has considered the

requirements of pleadings in election contest cases and

approved pleading on information and belief in Smiley

v. Lenane, 363 Ill. 66, 1 N.E.2d 213, 216 (1936). The Illi-

nois Appellate Court in both Savage v. Frost, supra, at

page 2, and Smith v. Stewart, supra, at page 4, relied on

a prior decision of the Illinois Supreme Court, Zahray v.

Emricson, 25 Ill.2d 121, 124, 182 N.E.2d 756, 758 (1962),

and quoted and stated:

“Equally certain is the principle that the proceed-

ings cannot be employed to allow a party, on mere

suspicion to have the ballots opencd and subjected

to scrutiny to find evidence upon which to make a

tangible charge.” In following this principle the courts

are obliged to insure carefully that all the statutory

procedures are fulfilled when an election contest com-

plaint is filed.

We respectfully suggest that particularly apt in con-

sidering this case is the statement of this Court in Rice

v. Sioux City Memorial Park Cemetery, 349 US. 70, 79,

75 S.Ct. 614, 619 (1955), that:

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- .. it is very important that we be consistent in

not granting the Writ of Certiorari except in cases

involving principles the settlement of which is of

importance to the public, as distinguished from that

of the parties ... .

This case is one where two defeated political candi-

dates seek to gain a right to examine ballots apparently

to find out if there is any basis on which they can over-

turn the will of the people in a proper election. It in-

volves no principle which is of importance to the people.

The Petitioners have not brought themselves within

the considerations governing review by a Writ of Certio-

rari as set out in Rule 19 of the rules of this Court.

We respectfully suggest that for all of the foregoing

reasons the Petition For A Writ Of Certiorari should be

denied.

Respectfully submitted,

ALDUS &. MITCHELL

ANDREW M. RAUCCI

6408 West Gale

Chicago, Illinois

Attorneys for Certain Respondents

APPENDIX

APPENDIX A

no. Seedy ¢

IN THE

Dourt of UWlinnig

PHILLY G. SMITH,

Plaintiff-Appellant,

vs.

BENNETT M. STEWART, and STANLEY J, KUSPER, JR,

FRANCIS P. CANARY AND MARIE H. SUTHERS, individually

and (in the case of the latter three) as together constituting

THE CHICAGO BOARD OF ELECTION COMMISSIONERS,

Defendants-Appellees.

Appeal from the Circuit Court of Cook County, County Division.

Cireuit Court Nu. 71 Co. 283.

Honorable Harry @. Comerford, Judge Presiding.

BRIEF OF PLAINTIFF-APPELLANT

DONALD PAGE MOORE

POPE. BALLARD, KENNEDY, SHEPARD & FOWLE

69 West Washington Strcet

Chicago, Illinois 60602

Telephone: 346-0900

Attorney for Plaintiff-Appellant

Oral Argument Requested

IN THE

Supreme Court of UWlinnis

PHILLIP G. SMITH,

Plaintiff-Appellant,

Vs.

BENNETT M. STEWART, and STANLEY J. KUSPER, JR.,

FRANCIS P. CANARY AND MARIE H. SUTHERS, individually

and (in the case of the latter three) as together constituting

THE CHICAGO BOARD OF ELECTION COMMISSIONERS,

Defendants-Appellees.

Appeal from the Cireuit Court of Cook County, County Division.

Circuit Court No. 71 Co. 283.

Honorable Harry G. Comerford, J udge Presiding.

BRIEF OF PLAINTIFF-APPELLANT

NATURE OF THE CASE

Plaintiff’s election contest complaint was dismissed by

the court below for failure to state a cause of action under

the relevant statute, Ch. 24, 21-27, Ill. Rev.Stat. 1969. Plain-

tiff appeals the order of dismissal. The issues presented

are raised by the pleadings.

ISSUES PRESENTED FOR REVIEW

(1) In dismissing the complaint, did the court below

violate plaintiff’s rights under the 14th Amendment to the

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United States Constitution or the due process and ‘‘free

and equal elections’’ provisions of the Illinois Constitu-

tion?

(2) Did the complaint state a cause of action under

Ch. 24, §21-27, Ill. Rev.Stat. 19697?

JURISDICTION

} This direct appeal from the Circuit Court of Cook Coun-

: ty invokes this Court’s jurisdiction under §302(a)(2) of

j this Court’s rules because it involves a question arising

q under the federal and Illinois constitutions. The direct

appeal is proper, see, e.g., Thompson vy. Conti, 39 Ill.2d

160, 165 (1968) ; Craig v. Peterson, 39 I11.2d 191 (1968).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

Ch. 24, §21-27, Ill.Rev.Stat. 1969:

(Election contest—Petition.) Any candidate whose

name appears on the ballots used in any ward

of the city at any election for alderman, may

contest the election of the candidate who appears

to be elected from such ward on the face of the returns,

or may contest the right of the candidates who appear

to have received the highest and second highest num-

ber of votes to places on the official ballot at any sup-

plementary election, by filing within 5 days after such

election with the Clerk of the Circuit Court of Cook

County, a complaint in writing, verified by the candi-

date making the contest, setting forth the grounds of

the contest. The contestant in each contest shall also

serve notice on all persons who were candidates for

alderman of such ward at the election, within such 5

days, informing them that such complaint has been or

will be filed. The judge of the Circuit Court of Cook

County shall have jurisdiction to hear and determine

such contest. All proceedings in relation to such con- 3

atid aials thd eS Ca Re tla tas a

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test after the filing of such complaint shall be the same,

as near as may be, as provided for in the case of a

contest at a primary election in such city. In case the

court shall decide that the complaint is insufficient

in law, or that the candidate who appears to have been

elected on the face of the return has been duly elected,

the complaint shall be dismissed. If it shall appear

to the satisfaction of the court that the face of the

returns are not correct, and that the candidate who

appears thereby to have been elected was not in fact

elected, then the candidates having the highest and

secend highest number of votes as determined by such

contest shall be candidates at the subsequent supple-

mentary election as provided for in section 21-26. As

amended by act approved Aug. 24, 1965. L.1965, p.

3375.

14th Amendment, United States Constitution :

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law: nor deny to any person

within its jurisdiction the equal protection of the laws.

Art. II, §2, Iinois Constitution of 1870:

No person shall be deprived of life, liberty or prop-

erty, without due process of law.

Art. I, $2, Illinois Constitution of 1970:

No person shall be deprived of life, liberty or prop-

erty without due process of law nor be denied the

equal protection of the laws.

Art. II, $18, Illinois Constitution of 1870 and Art. III,

§3, Illinois Constitution of 1970:

All elections shall be free and equal,

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POINTS AND AUTHORITIES

L

THE DECISION BELOW VIOLATES PLAINTIFF'S

RIGHTS UNDER BOTH THE FEDERAL AND STATE

CONSTITUTIONS.

Gray v. Sanders, 372 U.S. 368 (1963).

United States v. Classic, 313 U.S. 299 (1941).

Boddie v. Connecticut, ........ ee , 28 L.Ed.2d

113 (1971).

Craig v. Peterson, 39 Tll.2d 191 (1968).

Lehman v. Hill, 414 Ill. 173 (1953).

II.

THE COMPLAINT PROPERLY PLEADED A CAUSE

OF ACTION UNDER SECTION 21-27.

Whitseli v. Rutherford, 118 Dll.App.2d 401 (5th

Dist. 1969). [No citations since decided. ]

Easdale v. Sparta Community School District, 29

Tll.2d 554 (1963).

MacGuidwin v. South Park Commissioners, 333

Ill. 58 (1928).

Zahray v. Emricson, 25 Tll.2d 121 (1962).

Ch. 24, $21-27, Ill.Rev.Stat. 1969.

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STATEMENT OF FACTS

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The complaint was dismissed for failure to state a cause

of action. Therefore, this statement of facts treats the

factual allegations of the complaint as being true.

On February 23, 1971, the City of Chicago conducted an

election for the office of Alderman of the 21st Ward. (R.

C3.) Plaintiff Smith won that election by more than 800

votes. (R. C7.) However, because of a series of deliberate

miscounts and other frauds (see R. C-7-15) the official

canvass recorded, and the statutory election board pro-

claimed, that defendant Stewart had won by 518 votes out

of 9,936 votes east. (R. C3.)

Plaintiff then commenced this action by filing his verified

election contest compiaint within the five-day statute of

limitations imposed by Ch, 24, $21-27, Il Rev.Stat. 1969.

The complaint prayed that a recount of the ballots (this

was a paper ballot election, rather than one conducted by

use of voting machines, sce R. C3) be conducted. (R.

C11-12.)

In support of its allegation that the plaintiff had been

defrauded of his victory, the complaint ‘“‘by way of ex-

ample only’”’ (R. C8, 19) detailed a series of specific wrongs

which had been committed by the judges of election in the

21st Ward on election day. (R. (8-10, 99.)

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The following table sets out some of the specific wrongs

alleged in the complaint. It shows the votes actually cast

for each candidate in five precincts. It contrasts these

‘‘actual’’ totals with the ‘‘canvass’’ totals, i.¢., the totals

fraudulently reported to, and proclaimed by, the Circuit

Court in the official canvass. (The numbers in the table

are taken from the respective allegations of paragraph 9

of the complaint. R. C8-10.)

Precinct Actual Canvass Actual Canvass

21 129 63 63 129

53 93 74 74 93

42 42 100

59 85 94

70 110 55 55 110

In addition to the miscounts set forth in the table, the

complaint specifies miscounts aggregating 58 votes in two

additional precincts (R. C8-9, ]{9(a) and (f)), and alleges

that in at least two other precincts Plaintiff’s watchers

were illegally precluded from observing the count. (R.

C10, 79(i).) The complaint alleges over 400 miscounted

votes in addition to those specified above. (R. C9-10,

¥ 9(h).)

Defendants filed answers to the complaint, denying

Plaintiff's key factual allegations and adding a conten-

tion that Plaintiff’s complaint was insufficient in any event.

(R. C19-21, 24-27.) The trial court dismissed the com-

plaint as insufficient on its face. (R. C38.)

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ARGUMENT

THE DECISION BELOW VIOLATES PLAINTIFF’

RIGHTS UNDER BOTH THE FEDERAL AND STATE

CONSTITUTIONS.

“*All procedures used by a State as an integral part

of the election process must pass muster against the

charges of discrimination or of abridgment of the

right to vote.’’

Moore v. Ogilvie, 394 U.S. 814, 818 (1969).

In effect, the court below held that despite the fact that

plaintiff received a majority of the votes cast in the 21st

Ward, it was proper and permissible for the defendant

Stewart to be sworn in as the duly elected alderman of the

2lst Ward. This characterization of the holding below

follows ineluctably from the circumstances that:

(1) The complaint clearly sets forth the factual allega-

tion that plaintiff received a majority of the ballots cast.

(R. C6-7, §7; RB. C10, 719-2.)

(2) For present purposes the factual allegations of the

complaint must be taken as true, because the court below

dismissed the complaint on motion, without taking any

evidence.

Thus, the court below has sanctioned the wrongful in-

stallation of an important elected official who received a

minority of the ballots cast while denying all relief to

the candidate who was in fact elected by a majority vote.

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No more basic violation of the constitutional right of

the candidate and hi constituents to have their votes ‘‘cor-

rectly counted and reported ... [and] protected from the

diluting effect of illegal ballots,’’ Gray vy. Sanders, 372

U.S. 368, 380 (1963), can be imagined.*

The conduct by the judges of election which is related

in the complaint unquestionably violated plaintiff’s fed-

eral constitutional rights. See, e.g., United States v. Clas-

sic, 313 U.S. 299 (1941). It also violated the due process

and ‘‘free and equal elections’’ provisions of the Illinois

Constitutions of 1870 (Art. II, §§ 2 and 18) and 1970 (Art.

I, $2 and Art. III, § 3):

‘‘When the ballot-box becomes the receptacle of

fraudulent votes the freedom and equality of elections

are destroyed. That election is free and equal where

all of the qualified electors in the precinct are care-

fully distinguished from the unqualified and are pro-

tected in the right to deposit their ballots in safety

and unprejudiced by fraud.’’

Lehman v. Hill, 414 Il. 173, 178 (1953) quoting from

Emery v. Hennessy, 331 Ul. 296 (1928).

‘*Elections are equal when the vote of each voter is

equal in its influence upon the result to the vote of

every other elector—where each ballot is as effective

as every other ballot.’’

Craig v. Peterson, 39 Ill. 2d 191, 195 (1968) quoting

Moran v. Bowley, 347 Ill. 148, 162-3 (1932).

Since the official conduct set forth in the complaint is

unconstitutional, the State is constitutionally compelled to

afford plaintiff ‘‘a meaningful opportunity to be heard.”

Boddie v. Connecticut, ....... U.S. ........, 28 L.Ed.2d 113, 118

* Plaintiff is a qualified voter who voted in the 21st Ward

election here involved, see R. C3-4, {[2.

9

(1971). But the only meaningful and effective **oppor-

tunity to be heard’’ which Illinois affords to the victims

of the constitutional wrongs involved in this case is the

remedy which the court below has refused—an election

contest under IIl.Rev.Stat. Ch. 24, §21-27. The enormity

of this result is magnified by the circumstance that the

wrongdoing officials involved were, by statute, the agents

of the very court which has now refused all remedy for

their misconduct. Ill. Rev. Stat. Ch. 46, §§ 6-21, 14-5.

II.

THE COMPLAINT PROPERLY PLEADE]) A CAUSE

OF ACTION UNDER SECTION 21-27.

The requirements for a proper election contest com-

plaint have been concisely summarized in the most recent

reported Illinois opinion to consider the subject:

“*, .. [T]he petition must allege: that a mistake

or fraud was committed; that some irregularities oc-

curred in the conduct of the election; and that the

results of the election were changed by the fraud or

irregularities. .. . Qur examination of the pleadings

reveals that these requirements were - +. met by the

petitioner. While the specific irregularities are not set

out in the petition, this is not necessary and general

allegations are sufficient. Joyce v. Blankenship, 399 Tl.

136, 77 NE2d 325 (1948).”’

Whitsell v. Rutherford, 118 Ill.App.2d 401, 405

(Sth Dist. 1969) ( Eberspacher, Moran, and

Goldenhersh, JJ.)

The present complaint clearly meets the above criteria.

Accord, Easdale v. Sparta Community School District, 29

Ill. 2d 554 (1963).

10

i MacGuidwin v. South Park Commissioners, 333 Ill. 58

: (1928) is squarely in point on the decisive issue here. The

recount petition which this Court sustained in that case

was, in its key allegations, verified on the petitioners’ in-

formation and belief (333 Ill. at 63) and was in all relevant

respects comparable to the allegations in the present com-

plaint. (See the Court’s careful summary of the complaint,

333 Ill. at 63-71.) Note that the petitioners in McGuidwin,

like the plaintiff here, were forced to estimate the numbers

of miscounted or uncounted votes. (333 Tll. at 65-67).*

In appraising the applicability of the above cases to the

present controversy, it is important to note that the present

complaint deals with a reasonably close election, that it

sets forth numerous specific examples of outrageous fraud

and vote stealing with great particulity, and that it

clearly alleges that a recount would change the result.

Given the rule that “the pleadings in contest proceedings

are not required to comply with the strict technical rules

applicable in civil actions,’’ Zahray v. Emricson, 25 Til.

2d 121, 124 (1962), it is clear that the complaint is sufficient

to warrant a recount, because its allegations, if true, con-

stitute the required ‘‘adequate and well-defined cause’’ for

setting aside the results of the election. Ibid. See Easdale

v. Sparta Community School District, 29 Tll.2d 554, 557-58

(1963).

—

mee oo fond a Pee ee ee Eee ee

id ane ce RON, Lest \'

sate dite ~ :

i

Se 5 4,

ates

—

* Defendants have attacked the complaint because it ‘‘esti-

mates” what the results of a recount will be. However,

it is hard to understand how a truthful and honest plaintiff

could ever do more than estimate the result of a recount which

has not yet taken place.

f

é

,

POOP FO TT A cao > SOLE LEED OG MOLLE Po PEG IM. PE RDI IA eGOLTN ES SH EX —

11

CONCLUSION

For the foregoing reasons, the order of the Circuit Court

dismissing plaintiff's complaint should be reversed and the

cause remanded with instructions to conduct the recount,

hold a hearing on the factual issues raised by the pleadings

and grant the other relief prayed by the complaint if the

evidence so warrants.

Respectfully submitted,

Donaup Pace Moore

Pore, Bayar, Kennepy, Sueparp

& Fowrz

69 West Washington Street

Chicago, Illinois 60602

346-0900

Attorney for Plaintiff-A ppellant

, 4 APPENDIX B

Oe i>. .

No. Par

pla a. of Tllinnis

AUGUSTUS A. SAVAGE,

Plaintiff-Appellant,

Defendants- Appellees.

Appeal from the Circuit Court of Cook County, County Division.

Cireuit Court No. 71 Co. 282.

Honorable Harry G. Comerford, Judge Presiding.

BRIEF OF PLAINTIFF-APPELLANT

DONALD PAGE MOORE

POPE, BALLARD, KENNEDY, SHEPARD & FOWLE

69 West Washington Street

Chicago, Illinois 60602

Telephone: 346-0900

Attorney for Plaintiff-Appellant

Oral Argument Requested

ASAE “4

IN THE

Supreme Court of Ulinvis

AUGUSTUS A. SAVAGE,

Plaintiff-A ppellant,

VS.

WILSON FROST, and STANLEY J. KUSPER, JR., FRANCIS P.

CANARY AND MARIE i. SUTHERS, individually and (in

the case of the latter three) as together constituting THE

CHICAGO BOARD OF ELECTION COMMISSIONERS,

Defendants-Appellees.

Appeal from the Circuit Court of Cook County, County Division.

Cireuit Court No. 71 Co. 282.

Honorable Harry G. Comerford, Judge Presiding.

7

pe

BRIEF OF PLAINTIFF-APPELLANT

NATURE OF THE CASE

Plaintiff’s election contest complaint was dismissea by

ihe court below for failure to state a cause of action under

the relevant statute, Ch. 24, 121-27, Ill.Rev.Stat. 1969. Plain-

tiff appeals the order of dismissal. The issues presented is

are raised by the pleadings.

ISSUES PRESENTED FOR REVIEW

(1) In dismissing the complaint, did the court below

violate plaintiff’s rights under the 14th Amendment to the

ger FEARED AR

2

United States Constitution or the due process and ‘free

and equal elections’’ provisions of the illinois Constitu-

tion?

(2) Did the complaint state a canse of action under

Ch. 24, §21-27, Ill.Rev.Stat. 1969?

JURISDICTION

This direct appeal from the Cireuit Court of Cook Coun-

ty invokes this Court’s jurisdiction under $302(a)(2) of

this Court’s rules because it involves a question arising

under the federal and Illinois constitutions. The direct

appeal is proper, see, e.g., Thompson v. Conti, 39 Ill.2d

160, 165 (1968); Craig v. Peterson, 39 111.2d 191 (1968).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

Yh. 24, §21-27, Ill. Rev.Stat. 1969:

(Election contest—Petition.) Any candidate whose

name appears on the ballots used in any ward

of the city at any election for alderman, may

contest the election of the candidate who appears

to be elected from such ward on the face of the returns,

or may contest the right of the candidates who appear

to have received the highest and second highest num-

ber of votes to places on the official ballot at any sup-

plementary election, by filing within 5 days after such

election with the Clerk of the Circuit Court of Cook

County, a complaint in writing, verified by the candi-

date making the contest, setting forth the grounds of

the contest. The contestant in each contest shall also

serve notice on all persons who were candidates for

alderman of such ward at the election, within such 5

days, informing them that such complaint has been or

will be filed. The judge of the Circuit Court of Cook

County shall have jurisdiction to hear and determine

such contest. All proceedings in relation to such con-

3

Sr Pee

test after the filing of such complaint shall be the same,

as Rear as may be, as provided for in the case of a

contest at a primary election in such city. In case the

court shall decide that the complaint is insufficient

in law, or that the candidate who appears to have been

elected on the face of the return has been duly elected,

the complaint shall be dismissed. If it shall appear

to the satisfaction of the court that the face of the

returns are not correct, and that the eandidate who

appears thereby to have been elected was not in fact

elected, then the candidates having the highest and

second highest number of votes as determined by such

contest shall be candidates at the subsequent supple-

mentary election as provided for in section 21-26. As

amended by act approved Aug. 24, 1965. L.1965, p.

3375.

14th Amendment, United States Constitution:

—

er

EAA ID NE A IT ET

PUP Ra er

TA POROIL, 2° 8

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law: nor deny to any person

within its jurisdiction the equal protection of the laws.

Art. II, $2, linois Constitution of 1870:

HERS

ISAM

No person shall be deprived of life, liberty or prop-

erty, without due process of law.

i

a

E

E

i

&

E

Art. I, §2, Illinois Constitution of 1970:

No person shall be deprived of life, liberty or prop-

erty without due process of law nor be denied the

equal protection of the laws.

Art. II, $18, Illinois Constitution of 1870 and Art. III,

$3, Illinois Constitation of 1970:

All elections shall be free and equal.

POINTS AND AUTHORITIES

L

THE DECISION BELOW VIOLATES PLAINTIFF'S

RIGHTS UNDER BOTH THE FEDERAL AND STATE

CONSTITUTIONS.

Gray v. Sanders, 372 U.S. 368 (1963).

United States v. Classic, 313 U.S. 299 (1941).

Boddie v. Connecticut, ........ if en , 28 L.Ed.2d

113 (1971).

Craig v. Peterson, 39 Ill.2d 191 (1968).

Lehman v. Hill, 414 Ill. 173 (1953).

II.

THE COMPLAINT PROPERLY PLEADED A CAUSE

OF ACTION UNDER SECTION 21-27.

Whitsell v. Rutherford, 118 Dl.App.2d 401 (5th

Dist. 1969). [No citations since decided. ]

Easdale v. Sparta Community School District, 29

Tll.2d 554 (1963).

MacGuidwin v. South Park Commissioners, 333

Til. 58 (1928).

Zahray v. Emricson, 25 Tli.2d 121 (1962).

Ch. 24, §21-27 Ill.Rev.Stat. 1969.

Te

ee oe ae pga

q

STATEMENT OF FACTS

The complaint was dismissed for failure to state a cause

of action. Therefore, this statement of facts treats the

factual allegations of the complaint as being true.

On February 23, 1971, the City of Chicago conducted an

election for the office of Alderman of the 34th Ward. (R.

C3.) Plaintiff Savage won that election by more than 600

votes. (R. C7.) However, because of a series of deliberate

miscounts and other frauds (see R. C7-15) the official

canvass recorded, and the statutory election board pro-

claimed, that defendant Frost had won by about 1400 votes

out of some 10,000 votes cast. (R. C3.)

Plaintiff then commenced this action by filing his verified

election contest complaint within the five-day statute of

limitations imposed by Ch. 24, §21-27 IIl.Rev.Stat. 1969.

The complaint prayed that a recount of the ballots (this

was a paper ballot election, rather than one conducted by

use of voting machines, see R. (3) be conducted. (R.

C16-17.)

In support of its allegation that the plaintiff had been

defrauded of his victory, the complaint ‘‘by way of ex-

ample only’’ (R. C9, 19) detailed a series of specific wrongs

which had been committed by the judges of election in the

34th Ward on election day.

The complaint charged that in 16 specilied precincts,

plaintiff’s ‘duly qualified and accredited watchers and

challengers . . . were prevented by [the] judges from

observing the count and tally of the ballots.’ (R. (9-10,

119(b) and (c).)

6

The complaint charged that in the 14th Precinct, after

the polls closed, plai: ‘iff's watchers were illegally expelled

from the polling place prior to the count. Then the judges

‘*counted’’ 243 votes for defendant Frost and only 3 votes

for plaintiff. The complaint then states that ‘‘ Representa-

tives of plaintiff have already obtained at least 115 af-

fidavits from registered voters who voted in the 14th pre-

cinct and who have sworn under oath that they voted for

plaintiff in the election.’’ (R. (11-12, 19(i).)

A long series of specific allegations of vote stealing in

particular precincts was included in the complaint.* The

following table shows with respect to each of 16 precincts

in the ward the number of votes actually cast for each

candidate. It contrasts these ‘‘actual’’ totals with the

‘*canvass”’ totals, z.e., the totals fraudulently reported to,

and proclaimed by, the Cireuit Court in the official canvass.

(The numbers in the table are taken from the respective

allegations of paragraph 9 of the complaint, R. C9-15.)

*The complaint set forth two additional instances in which

plaintiff had obtained affidavits from his voters in a number

which far exceeded the number of votes credited to plaintiff on

the official canvass. (See R. C12, §9(k); R. C14, J9(r).) Given

the five-day limitations period imposed by the statute, plain-

tiff’s accumulation of affidavits from so many individual voters

represents an extraordinary demonstration of the non-frivolity

of his request for a recount.

7

VOTES FOR PLAINTIFF

Precinct Actual Canvass

3) 155 120

6 170 121

7 155 47

9 212 154

10 272 175

12 198 121

14 223 3

16 223 a7

1y 122 16

21 88 52

22 147 44

23 200 140

32 252 222

34 120 52

49 229 15

52 58 12

Defendants answered, denying plaintifi’s key factual al-

legations and adding a contention that plaintiff’s complaint

was insufficient in any event. (R. C28-31, 34-37.) The trial

court dismissed the complaint as insufficient on its face.

(R. C50.)

VOTES FOR FROST

Actual Canvass

100

40

’

145

155

CR REE AVE IN

,

ARGUMENT

I,

THE DECISION BELOW VIOLATES PLAINTIFF'S

RIGHTS UNDER BOTH THE FCDERAL AND STATE

CONSTITUTIONS.

**All procedures used by a State as an integral part

of the election process must pass muster against the

charges of discrimination or of abridgment of the

right to vote.”’

Moore v. Ogilvie, 394 U.S. 814, 818 (1969).

In effect, the court below held that despite the fact that

plaintiff received a majority of the votes cast in the 34th

Ward, it was proper and permissible for the defendant

Frost to be sworn in as the duly elected alderman of the

34th Ward. This characterization of the holding below

follows ineluctably from the circumstances that:

(1) The complaint clearly sets forth the factual allega-

tion that plaintiff received a majority of the ballots cast.

(R. C7, 17; R. C16, 7 12.)

(2) For present purposes the factual allegations of the

complaint must be taken as true, because the court below

dismissed the complaint on motion, without taking any

evidence.

Thus, the court below has sanctioned the wrongful in-

stallation of an important elected official who received a

minority of the ballots east while denying all relief to

the candidate who was in fact elected by a majority vote.

9

No more basic violation of the constitutional right of

the candidate and his constituents to have their votes ‘‘cor-

rectly counted and reported ... [and] protected from the

diluting effect of illegal ballots,’’ Gray v. Sanders, 372

U.S. 368, 380 (1963), can be imagined.*

The conduct by the judges of election which is related

in the complaint unquestionably violated plaintiff’s fed-

eral constitutional rights. See, e.g., United States vy. Clas-

sic, 313 U.S. 299 ( 1941). It also violated the due process

and ‘‘free and equal elections”’ provisions of the Illinois

Constitutions of 1870 (Art. IT, §§ 2 and 18) and 1970 (Art.

I, §2 and Art. ITI, § 3):

‘‘When the ballot-box becomes the receptacle of

fraudulent votes the freedom and equality of elections

are destroyed. That election is free and equal where

all of the qualified electors in the precinct are care-

fully distinguished from the unqualified and are pro-

tected in the right to deposit their ballots in safety

and unprejudiced by fraud.”

Lehman vy. Hill, 414 Tl. 173, 178 (1953) quoting from

Emery v. Hennessy, 331 lll. 296 (1928).

‘Elections are equal when the vote of each voter is

equal in its influence upon the result to the vote of

every other elector—where each ballot is as effective

as every other ballot.’’

Craig v. Peterson, 39 Ill. 2d 191, 195 (1968) quoting

Moran v. Bowley, 347 Ill. 148, 162-3 (1932).

Since the officiai conduct set forth in the complaint is

unconstitutional, the State is constitutionally compelled to

afford plaintiff ‘‘a meaningful opportunity to be heard.’’

Boddie v. Connecticut, ... IB, occas , 28 L.Ed.2d 113, 118

* Plaintiff is a qualified voter who voted in the 34th Ward

election here involved, see R. C3-4, {12

10

(1971). But the only meaningful and effective ‘*oppor-

tunity to be heard*’ which Illinois affords to the victims

of the constitutional wrongs involved in this case is the

remedy which the court below has refused--an election

contest under IIl.Rev.Stat. Ch. 24, $21-27. The enormity

of this result is magnified by the circumstance that the

wrongdoing officials involved were, by statute, the agents

of the very court which has now refused all remedy for

their misconduct. II]. Rev. Stat. Ch. 46, $$ 6-21, 14-5.

II.

THE COMPLAINT PROPERLY PLEADED A CAUSE

OF ACTION UNDER SECTION 21-27.

The requirements for a proper election contest com-

plaint have been concisely summarized in the most recent

reported Illinois opinion to consider the subject:

‘*| . . [T]he petition must allege: that a mistake

or fraud was committed; that some irregularities oc-

curred in the conduct of the election; and that the

results of the election were changed by the fraud or

irregularities. .. . Our examination of the pleadings

reveals that these requirements were ... met by the

petitioner. While the spevific irregularities are not set

out in the petition, this is not necessary and general

allegations are sufficient. Joyce v. Blankenship, 399 Il.

136, 77 NE2d 325 (1948).’’

Whitsell v. Rutherford, 118 Ill.App.2d 401, 405

(5th Dist. 1969) (Eberspacher, Moran, and

Goldenhersh, JJ.)

The present complaint clearly meets the above criteria.

Accord, Easdale v. Sparta Community School District, 29

Ill. 2d 554 (1963).

Rha aaa IRENE 21 et LI A Bem an

:

11

Mactiuidwin v. South Park Commissioners, 333 Ill. 58

(1925) is squarely in point on the decisive issue here. The

recount petition which this Court sustained in that case

was, in its key allegations, verified on the petitioners’ in-

formation and belief (333 Ill. at 63) and was in all relevant

respects comparable to the allegations in the present com-

plaint. (See the Court’s careful summary of the complaint,

333 ill. at 63-71.) Note that the petitioners in McGuidwin,

like the plaintiff here, were foreed to estimate the numbers

of miscounted or uncounted votes, (333 Tll. at 65-67).*

In appraising the applicability of the above cases to the

present controversy, it is important to note that the present

complaint deals with a reasonably close election, that it

sets forth numerous specific examples of outrageous fraud

and vote stealing with great particulity, and that it

clearly alleges that a reeount would change the result.

Given the rule that ‘‘the pleadings in contest proceedings

are not required to comply with the strict technical rules

applicable in civil actions,’’ Zahray vy. Emricson, 25 Ill.

2d 121, 124 (1962), it is clear that the complaint is sufficient

to warrant a recount, because its allegations, if true, con-

stitute the required “adequate and well-defined cause”’ for

setting aside the results of the election. [bid. See Easdale

v. Sparta Communitu School District, 29 Tl.2d 554, 557-58

(1963).

* Defendants have attacked the complaint beeause it ‘‘esti-

mates” whet the results of a recount will be. (R. C44.) How-

ever, it is hard to understand how a truthful and honest plaintiff

eould ever do more than estimate the result of a recount which

has not yet taken place. :

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Ocrozer Term, 1973

PHILIP G. SMITH,

Petitioner,

Us.

BENNETT M. STEWART and STANLEY J. KUSPER,

JR., FRANCIS P. CANARY, and MARIE H. SUTHERS,

individually and (in the ease of the latter three) as

together constituting THE CHICAGO BOARD OF

ELECTION COMMISSIONERS,

Respondents.

AUGUSTUS A. SAVAGE,

Petitioner,

vs.

WILSON FROST and STANLEY J. KUSPER, JR.,

FRANCIS P., CANARY, and MARIE H. SUTHERS,

individually and (in the case of the latter three) as

together constituting THE CHICAGO BOARD OF

ELECTION COMMISSIONERS,

Respondents.

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

RICHARD F. WATT

Suite 4750—One IBM Plaza

Chicago, Illinois 60611

HOWARD EGLIT

American Civil Liberties Union

5 South Wabash Street

Chicago, Illinois 60603

RICHARD GUTMAN

Roger Baldwin Foundation

5 South Wabash Street

Chicago, Illinois 60603

22 East 40th Street

New York, New York

Attorneys for Petitioners

The Scheffer Press, Inc.—(312) 263-6850

—- . A

TEA De WI Te Sede

II ahi ite Ac natin kina tich ibd cielad line hddei cespnaioslacissnniansus ohansieaiahaxeinde 3-6

I. Respondents Misstate the Question Presented .... 3-4

Il. The Constitutional Issues Were Presented And

SI NS cs ebshumnenvaaainecbin 4-6

rac ken oo cacnahepuminetaneulacamautianiinn 7

Appendix A

(Brief of Defendants-Appellees filed in the Ap-

pellate Court of Illinois, First District) ........ la-2a

Appendix B

(Petitioners’ Petitions for Appeal as a Matter of

Right or, In the Alternative, for Leave to

Appeal, filed in the Supreme Court of Illinois) 3a-6a

Appendix C

(Portion of transcript of proceedings in the Cir-

cuit Court of Cook County, County Division) ..7a-a

Appendix D

(Plaintiff's Memorandum in Opposition to the

Motion to Dismiss the Complaint, filed in the

Cireuit Court of Cook County) 0... 10a-lla

art Qesanssrerirmaa 5

Ix THE

SUPREME COURT OF THE UNITED STATES

Ocrosber Term, 1973

No. 73-1632

PHILIP G. SMITH,

Petitioner,

rs.

BENNETT M. STEWART and STANLEY J. KUSPER,

JR., FRANCIS P. CANARY, and MARIF H. SUTHERS,

individually and (in the case of the latter three) as

together constituting THK CHICAGO BOARD OF

ELECTION COMMISSIONERS,

Respondents.

AUGUSTUS A. SAVAGE,

Petitioner,

rs,

WILSON FROST and STANLEY J. KUSPER, JR.,

FRANCIS P. CANARY, and MARIE Hl. SUTIHIERS,

individually and (in the case of the latter three) as

together constituting THF CHICAGO BOARD OF

ELECTION COMMISSIONERS,

Respondents,

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

The Brief in Opposition of Respondents Stewart and

Frost seeks to make two inter-related points: first, that

Petitioners, in attacking the statutory five-day limit for

filing an election-contest suit, are assaulting a provision

which the courts have repeatedly upheld; second, that the

constitutional issues were not raised and passed on below.

In both particulars, Respondents are either mistaken

or confused, or both. Petitioner’s claim that their con-

stitutional rights were violated does not include an at-

tack on the constitutionality of the five-day limit for

initiating court action. The constitutional issues were

clearly raised and passed on below.

=

ARGUMENT

I. RESPONDENTS MISSTATE THE QUESTION PRE-

SENTED.

Respondents’ principal error is in misreading the “Ques-

tions Presented” section of the Petition (Pet., pp. 2-3).

Contrary to Respondents’ assertions, Petitioners’ “Ques-

tions” do not involve an attack on the statutory require-

ment that the Court contest be filed within five days

after the election. Thus the second “basic question” set

out in Respondents’ Brief, at page 3, is simply inac-

curate. Petitioners are not raising any such question.

By contending that the Petition poses a question which

in fact it does not, Respondents are able—with total

irrelevance—to make much of the circumstance that the

issue was not raised and briefed below. In fact, they

devote most of their Brief to demolishing that straw

man.

It is obvious that the Petition presents significant con-

stitutional issues. At the heart of the matter are the

due process implications of an absurdly strict require-

ment of pleading specific facts on the basis of personal

knowledge rather than information and belief. That vir-

tually impossible degree of pleading specificity—which

the Illinois Appellate Court imposed in the guise of in-

terpreting the statute—is highlighted by the circumstance

that the initial pleading must be filed within five days

of the election. In that respect the five-day limitation

period is significant.

It is one thing, as a general rule of pleading, to re-

quire that a complaint be specific and that certain es-

sentials be verified on the pleader’s personal knowledge.

Cf. Rule 23.1, Federal Rules of Civil Procedure. It is

quite another thing to require that such a pleading be

AEST RIE a8 Sa OD EE A AOE EDEL LAS POLO EDEMA AALS TG

en

filed within five days of the events out of which the

claim arises. In the one instance, while imposing a burden

on the pleader, the requirement does not confront him

| with an impossibility; he has the normal statutory limita-

. tions period in which to make an investigation and draft

| a complaint.

| But to impose such a requirement and to insist that

it be met within five days of the operative events is some-

thing else again. One can do only so much in five days,

particularly when most of the evidence is to be found

in documents—especially the ballots—which are not ac-

cessible to the pleader.

Pleading requirements do have constitutional implica-

tions. The right of a person to have his day in court

can be rendered illusory simply by requiring that his

pleadings measure up to an unrealistic standard of

detail and precision, or; given the nature of “facts” and

one’s ability to learn them, by insisting that he verify

only on the basis of personal knowledge. Cf. Surowitz v.

Hilton Hotels Corp., 383 U.S. 363 (1966).

II. THE CONSTITUTIONA:. [SSUES WERE PRE-

SENTED AND ADDRESSED BELOW.

At page 7 of their Brief, Respondents make the follow-

ing incredible statement. “The Constitutionality of the

statute involved in this case, Ch. 24, $21-27, Ill. Rev. Stats.,

has not been attacked by the Petitioners either in the

trial court, in the Illinois 4.ppellate Court or this Court.”

Petitioners challenge in this Court, as they did be-

low, the interpretation of the statute in a fashion which

deprives them of constitutional rights. And Petitioners

have consistently, throughout this litigation, made such

constitutional challenge.

In this Court, the “Questions Presented” section of

the Petition clearly shows that Petitioners have con-

— va

stitutional objections to the statute as wierpreted by

the highest court of Lilinois which has passed upon it.

In the Illinois Appellate Court, the highest corrt to

rule, Petitioners in their briefs urged that the decision

of the trial court violated their rights under the Federal

constitution. Among other things, they quoted from Moore

v. Ogilvie, 394 U.S. 814, 818 (1969): “All procedures

used by a State as an integral part of the election pro-

cess must pass muster against the charges of discrimina-

tion or of abridgement of the right to vote.” Indeed,

Respondents’ own Appendices in their Reply Brief here, re-

producing Petitioners’ briefs filed in the Illinois Appellate

Court, show conclusively that the constitutional issues were

raised below. Moreover, Respondents themselves, notwith-

standing their assertion in their Brief, included in their

brief filed in the Illinois Appellate Court a section speci-

fically entitled: “II. Plaintiff-Appellant Was Not De-

prived Of Any Constituional Rights.” (Appendix A)

Apart from the fact that the constitutional issues were

addressed below by all parties to the litigation, it is

sufficient that the court below reached and decided them

for assuring conformity to the necessity of their having

been considered. Cf. Jenkins v. Georgia, 42 U.S.L.W. 5055,

5056 (June 24, 1974); Raley v. Ohio, 360 U.S. 423, 456

(1959).

The constitutional issues were again raised, in Peti-

tioners’ motion filed in the Illinois Supreme Court, when

Petitioners there sought to appeal as a matter of right

or, alternatively, for leave to appeal. (Appendix B). In

that motion, petitioners separately raised the constitu-

tional issues, and further incorporated therein the briefs

which Respondent here has attached as Appendices A

and B to their Reply Brief in this Court. And, as stated

earlier, these Appendices conclusively show that the con-

stitutional issues were raised below.

12

CONCLUSION

For the foregoing reasons, the order of the Circuit Court

dismissing plaintiff’s complaint should be reversed and the

cause remanded with instructions to conduct the recount,

hold a hearing on the factual issues raised by the pleadings

and grant the other relief prayed by the complaint if the

avidence so warrants.

Respectfully submitted,

DonaLp Pace Moore

Pore, BaLLarno, KENNEDY, SHEPARD

& FowLe

69 West Washington Street

Chicago, Illinois 60602

346-0900

Attorney for Plaintiff-A ppellant