Reply Brief — Smith v. Stewart

a en

Finally, in the trial court, on March 17, 1971, Peti-

tioners’ counsel—met with the contention that the sta-

tute (Sec. 21-27 of Chap. 24, Ill. Rev. Stat.) required

that. specific facts be verified as a matter of personal

knowledge—in turn argued:

. (I)f it is construed in that way .. . then,

as construed and applied in this case, that statute (See-

tion 21-27), not only on its face but as construed and

applied, violates the due process, the equal protection,

the privileges and immunities and the democratic form

of government provisions in the Federal Constitu-

tion...

To avoid that very serious constitutional question,

this court should construe this statute so that it is

fair. And the only way that this can be made a fair

statute, given this very extreme requirement of a

five-day limitation on the time in which the petitions

can be filed, is to say that a candidate can allege

things on information and belief . . . and that the

candidate is free to be honest and to state as esti-

mates things which are, in the nature of things, esti-

mates ... (Appendix C).

Two days later, Petitioners filed memoranda (Appendix

D), paragraph 3 of which asserted:

If the governing statutes were to be construed

as to require dismissal of [the] Complaint for failure

to state a claim upon which relief can be granted,

then each of such statutes (specifically, Ch. 24, 21-27,

and Ch. 46, §$§ 7-63 and 23-20) is unconstitutional,

both on its face and as construed and applied in this

case, because it violates: (a) The due process, equal

protection, and privileges and immunities clauses of

the United States Constitution .. .

The constitutional issues were raised in the trial court

and again in the Appellate Court. Both courts ruled on

them. Petitioners are entitled to raise those issues here.

ee item! SR tae Alls Line aT A ANE IIE AS i 08 a ot

dies

CONOLUSION

Respondents’ Brief in Opposition begins with a mis-

reading of the Petition and a distortion of the record.

Thereafter it does no more than elaborate its own mis-

conceptions.

The Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

Ricuarp F. Watt

Howarp Ecuit

RicnHarp GuTMAN

Metviy J.. WuLF

Burt NFUBORNE

Attorneys for Petitioners

Richard F. Watt

Suite 4750 — One IBM Plaza

Chicago, Illinois 60611

Howard Eglit

American Civil Liberties Union

5 South Wabash Avenue

Chicago, Illinois 60603

Richard Gutman

Roger Baldwin Foundation

5 South Wabash Avenue

Chicago, Illinois 60603

Melvin L. Wulf

Burt Neuborne

American Civil Liberties Union Foundation

22 East 40th Street

New York, New York

pres, gE IIL.

an 1

APPENDIX A

No. 56750

IN THE

APPELLATE COURT OF ILLINOIS

First Jupicia District

AUGUSTUS A. SAVAGE,

| Plaintiff-Appellant,

US.

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,

Defendants-A ppellees.

Appeal from the Circuit Court of Cook County,

County Division.

Honorable Harry G. Comerrorp, Judge Presiding.

BRIEF OF DEFENDANTS-APPELLEES

Ilowarp M. Miner Winuiam R. Mina, Jr.

308 City Hall Aupus 8. MircHens

Chicago, Tlinois 60602 Anprew M. Raveci

Attorneys for Defendants- 110 So. Dearborn Street

Appellees constituting the Chicago. Illinois 60602

Chieago Board of Election Attorneys for Defendant

Commissioners Appellee Wilson Frost

Oral Argument Requested

ROS NTIS J

A TOU ELE A N IOANESE ONTSP LESTE LS IEE IE OILS ET LO Be Sa ed

PSNR

en) yn

... precinct, the judges of election certify “that the above

and foregoing” results are true and correct. These judges

of election are officers of the Circuit Court of Cook County,

and are sworn to ihe performance of their duties. Ill. Rev.

Stats. (1969), Ch. 46, §14-5, 14-7. Certainly, a defeated

candidate should not be allowed to overcome the certified

and sworn actions of officers of the court and force a re-

count solely on the ground that he “estimates” that the

official count and canvas are not correct. See Mac Guidwin

v. South Park Comrs., 333 Ill. at 71.

Il.

PLAINTIFF-APPELLANT WAS NOT DEPRIVED OF

ANY CONSTITUTIONAL RIGHTS.

Citation of abstract dicta notwithstanding, there is noth-

ing in the record to indicate that the decision of the

Cireuit Court violated any federal or state constitutional

rights of plaintiff-appellant. He was obligated to file a

verified complaint “sufficient in law” in order to secure

a recount. He failed so to do. Thus the Circuit Court of

Cook County took the only action that it could take prop-

erly. As the statute directed, it dismissed the complaint.

Interestingly, Savage never sought leave to amend his

“complaint” to correct the deficiencies which were brought

to his attention. Even more significant, he cites no author-

ity even suggesting that the statutory requirement is un-

constitutional. Thus we have the anomalous situation of

a defeated candidate who claims a constitutional right to

a “fishing expedition,” though he was unwilling to allege,

under oath, that it would affect the officially proclaimed

result of the election. We respectfully submit that there is

no authority for any such contention.

SC SONA wel an PC RAPE BE OBEN OILERS St Met HH Be Sea 6 eee Seats

a $a —

APPENDIX B :

IN THE

SUPREME COURT OF ILLINOIS

Aveustvs <A. Savage, ’) Petition for Leave to ;

Petitioner, Appeal from the ;

Appeliate Court

First District.

There Heard on Ap-

peal from the Cir-

euit Court of Cook

County, County

Division.

vs.

Witsox Frost, and Staniey J.

Kvusprer, Jr., Francis P. Canary

any Marte IT. Surners, individually >

and (in the case of the latter

three) as together constituting TH:

Cnicaco Boar» Or ExLection Com-

MISSIONERS, Honorable

Josepn J. Drucker,

Respondent s. :

, Judge Presiding.

PETITION FOR APPEAL AS A MATTER OF RIGHT

OR, IN THE ALTERNATIVE, FOR LEAVE

TO APPEAL

Ricnarp F. Warr

Corron, Warr, Jones,

Kine and Bow.vs

105 W. Adams

Chicago, Illinois 60603

Howarp Keir

American Civil Liberties Union

6 South Clark

Chicago, Illinois 60603

er ee Week Be

niicillie ein

IN THE

SUPREME COURT OF ILLINOIS

Avcustus A. Savace, 7

Plaintiff-A ppellant-

Petitioner,| Appea om The

ey ‘ Appellate Court Of

[llinois, First Dis-

Witson Frost, et al., trict.

Defendants- A ppellees-

Respondents. )

PETITION FOR APPEAL AS A MATTER OF RIGHT

OR, IN THE ALTERNATIVE, FOR LEAVE

TO APPEAL

1. Plaintiff-Appellant appeals the judgment of the

Appellate Court for the First District in this case. In the

alternative, he petitions this Court for leave to appeal

from that judgment.

2. The judgment of the Appellate Court was entered

on October 12, 1973. No petition for rehearing was filed.

3. The points relied upon for reversal are:

(a) By denying a recount, the Appellate Court denied

plaintiff ali remedy and all meaningful opportunity

to be heard on his charges that he was unconstitution-

ally defrauded of his election victory. It thus violated

the due process and equal protection provisions of

the Fourteenth Amendment and the due process and

free and equal elections provisions of the Illinois

Constitution of 1870 (Ari. II, §§2, and 18) and 1970

(Art. I, §2 and Art. III, §3).

(b) As construed and applied by the Appellate Court,

Ch. 24, §21-27, Ill. Rev. Stat. 1969 violates the above

Ae COWRA! Rot te e ~“ Ce AS CT lt A a,

a ALE SLED NBEO SICA Si DOI ON IEE IEEE ND BA BPE 4 ROEM

pat en

constitutional provisions because it operates to deny

plaintiff all remedy and all meaningful opportunity

to be heard on his charges that he was unconstitution-

ally defrauded of his election victory.

(c) The Appellate Court erroneously concluded that

the complaint failed to state a cause of action under

the above statute.

4. The relevant facts, issues, and legal arguments are

concisely presented in the attached brief which was filed

in this Court by plaintiff-appeilant when he attempted a

direct appeal from the judgment of the trial court. Sub-

sequently, this Court transferred the case to the Appeliate

Court which, in due course, entered the judgment now

sought to be reviewed.

5. For the reasons set forth at pages 8-10 of the

attached brief, the constitutional issues are now ripe and

were wrongly decided below. In addition, the construction

of the election contest statute by the Court below flatly

and unavoidably conflicts with the holding of the Appellate

Court for the Fifth District in Whitsell v. Rutherford, 118

Ill. App. 2d 401, 405 (1969) (Eberspacher. Moran, and

Goldenhersh, JJ.) See the discussion at pages 10-11 of the

attached brief.

The Court below criticized the assertions in the com- :

plaint that plaintiff “estimated” the total number of votes

which a recount would disclose that he had obtained.

But that was merely honest pleading. Of course plaintiff

could do no more than estimate the resuits of a recount

which has not yet taken place: No honest plaintiff will

ever be able to plead more than that.

Ce OR Pe

The court below also relied on the form of the com-

plaint’s verification, pointing out that key allegations were

SOBA TI ROTI OOO A MG AIOE A CRED ALOE SAE CLE OVE AA LOT AONE ALOT ALE Pe ihe OI EY eee

ectians

sworn to on “information and belief”. Once again, this

is simply an attack on honest pleading: of course, a candid

and honest plaintiff must so qualify his allegations about

ballots which he has never seen and cannot get access to.

The ultimate point is clear and simple: The decision

below, for all practical purposes, has eliminated the re-

count as a viable procedure for ascertaining whether an

election has been stolen by means of a false count in the

polling place. It does this by requiring the plaintiff either

to lie about his knowledge of the facts (thus avoiding the

use of terms such as “estimate” and “information and

belief”) or, in the alternative, to see his complaint dis-

missed because he has failed to plead a cause of action.

Respectfully submitted,

Ricwarp F. Watt

Cotrox, Watt, Jones, Kine and

BowLus

105 W. Adams

Chicago, Illinois 60603

Howarp Ecuit

American Civil Liberties Union

6 So. Clark

Chicago, Illinois 60603

Attorneys for Plaintiff-Appellant-

Petitioner

NDE LES Or tag me He,

State of Illinois )

) ss

County of Cook )

IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DIVISION

AUGUSTUS A. SAVAGE, ‘

Plaintiff ;

v.

WILSON FROST and STANLEY

J. KUSPER, JR., FRANCIS P.

CANARY and MARIE H. SUT-

HERS, individually and (in the

case of the latter three) as to-

gether constituting The Chicago

Board of Election Commissioners,

Defendants. j

and

PHILIP G. SMITH, a

Plaintiff ;

Vv.

BENNETT M. STEWART and

STANLEY J. KUSPER, JR.,

FRANCIS P. CANARY and

MARIE H. SUTHERS, individ-

ually and (in the case of the latter

three) as together constituting The

Chicago Board of Election Com-

missioners,

Defendants. )

No. 71 Co. 0282

No. 71 Co. 0283

aac:

Transcript of Proceedings in the hearing of the above

entitled cause before the Honorable Harry G. Comerford,

one of the judges of said court, on Wednesday, the 17th

day of March, A. D. 1971, at the hour of 10:30 o’clock A.M.

APPEARANCES:

MR. DONALD PAGE MOORE

and

MR. THOMAS N. TODD,

appeared on behalf of the plaintiffs;

MESSRS. MC COY, MING & BLACK,

by MR. WILLIAM R. MING, JR.

and

MR. ALDUS 8S. MITCHELL,

appeared on behalf of the defendants Wilson

Frost and Bennett M. Stewart;

MESSRS. WASHINGTON, KENNON, BRYANT &

HUNTER, by MR. HOWARD M. MILLER,

appeared on behalf of the defendants Stanley J.

Kusper, Jr., Francis P. Canary, and Marie H.

Suthers, individually and as together constituting

The Chicago Board of Election Commissioners.

... that Mr. Ming urges for the reasons | have outlined

there.

Secondly, if it is construed in that way, the way that

Mr. Ming urges, then, as construed and applied in this

ease, that statute, not only on its face but as construed

and applied, violates the due process, the equal protection,

the privileges and immunities and the democratic form

of government provisions in the Federal Constitution and

their analogues in the provisions of the Illinois State

Constitution. Because it is fundamentally unfair to say

to a plaintiff that “you must comply with the require-

ments”, as Mr. Ming has urged that the statute says.

— 9% —

To avoid that very serious constitutional question, this

court should construe this statute so that it is fair. And

the only way that this can be made a fair statute, given

this very extreme requirement of a five-day limitation

on the time in which the petitions can be filed, is to say

that a candidate can allege this on information and belief,

and that is a proper verification, and that the candidate

is free to be honest and to state as estimates things which

are, in the nature...

ae

APPENDIX D

IN THE CIRCUIT COURT OF COOK COUNTY,

ILLINOIS COUNTY DEPARTMENT-COUNTY

_ DIVISION

AUGUSTUS A. SAVAGE, j

Plaintiff,

v. No. 71 Co. 282

WILSON FROST, et al.,

Defendants. |

PLAINTIFF’S MEMORANDUM IN OPPOSITION

TO THE MOTION TO DISMISS THE COMPLAINT

Plaintiff adopts and reiterates the contentions and legal

theories asserted by his attorneys during the oral argu-

ment in this case on March 17, 1971. This memorandum is

presented merely as a supplement to that argument by

plaintiff’s attorney.

1. The clear, unqualified allegations of Paragraphs 7

and 8 of the Complaint fully meet the statutory require-

ments governing the pleading of an election contest case.

Whitsell v. Rutherford, 118 Ill. App.2d 401, 405, 255 N.E.

2d 34, 36 (5th Dist. 1969); Accord, Easdale v. Sparta Com-

munity School Dist., 29 Tll.2d 554, 194 N.E.2d 306 (1963) ;

Joyce v. Blankenship, 399 Ill. 136, 77 N.E. 2d 325 (1948).

2. Verification of some of the facts on plaintiff’s in-

formation and belief is authorized by law. Dial v. Welker,

332 Ill. 509, 163 N.E. 772 (1928).

3. If the governing statutes were to be so construed

as to require dismissal of plaintiff’s Complaint for failure

to state a claim upon which relief can be granted, then

each of such statutes (specifically, Ch. 24, §21-27, and Ch.

MA AVAL &, |

—lla—

46, §§ 7-63 and 23-20) is unconstitutional, both on its face

and as construed and applied in this case, because it

violates :

(a) The due process, equal protection, and priv-

ileges and immunities clauses of the United States

Constitution, and

(b) The provisions of Art. Ll, §§ 2, 18 and 19

of the [Illinois Constitution of 1870, and

(c) The provisions of * rt. Il, §§ 2 and 12, and Art.

III, §$ 3 and 4 of the Illinois Constitution of 1970.

Respectfully submitted,

/s/ Donald Page Moore

One of Plaintiff's Attorneys.

Pope, Ballard, Kennedy,

Shepard & Fowle

69 West Washington Street

Chicago, Illinois 60602

312 :346-0900

PROOF OF SERVICE

T caused copies of the above memorandum to be served

upon the following:

William R. Ming, Esq.

123 West Madison Street

Chicago, Illinois

Hon. Howard Miller

Chicago Board of Election

Commissioners

City Hall

Chicago, Illinois

by delivery to their respective offices on March 19, 1971.

/s/ Donald Page Moore

Donald Page Moore