# Brief for the Respondent in Opposition — Smith v. Stewart

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondent in Opposition
- **Published:** January 1, 1974
- **Citation:** 419 U.S. 873

## Text

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.

L

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:

een PEEL OP PLE OI ie PN LOBE EE II SNE By : A ee Phos

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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

4
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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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—9.

- .. 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

4
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.

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 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

‘
4
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3

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

-_-sfh

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.)

See eT ee

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——— 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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0332%3A2. Public record. Not legal advice.