Jordan v. Officer

• Citation: 170 Ill.App.3d 776,525 N.E.2d 1067,121 Ill.Dec. 760
• Decision Date: 13 June 1988
• Docket Number: No. 5-87-0421,5-87-0421
• Parties: , 121 Ill.Dec. 760 Clyde C. JORDAN and Charles Powell, Plaintiffs-Appellees, v. Carl E. OFFICER and Charlotte Moore, Defendants-Appellants (Harold Franklin and Roosevelt Malone, Defendants).
• Court: United States Appellate Court of Illinois

Page 1067

525 N.E.2d 1067

170 Ill.App.3d 776, 121 Ill.Dec. 760

Clyde C. JORDAN and Charles Powell, Plaintiffs-Appellees, v. Carl E. OFFICER and Charlotte Moore, Defendants-Appellants (Harold Franklin and Roosevelt Malone, Defendants).

No. 5-87-0421.

Appellate Court of Illinois Fifth District.

June 13, 1988.

Jack A. Strellis, Strellis & Faulbaum, Waterloo, for charlotte moore.

Kenwyn A. Redding, Mann, Poger, Wittner and Hereford, P.C., Belleville, for Carl E. Officer.

Philip R. Rice, Rice Law Offices, Belleville, for Clyde C. Jordan and Charles Powell.

Justice LEWIS delivered the opinion of the court:

This appeal arises out of the February 24, 1987, Democratic party primary election for candidates to run in the consolidated (general) election for city offices in the City of East St. Louis. In the primary election, Carl Officer defeated Clyde Jordan, Harold Franklin and Roosevelt Malone for the party nomination for mayor; Charlotte Moore defeated Charles Powell for the party nomination for city treasurer. The margin of victory was 1035 votes for Officer over Jordan and 987 votes for Moore over Powell.

On May 9, 1987, Jordan and Powell, petitioned the circuit court of St. Clair County contesting the primary election results, alleging a violation of section 7-43(c) of the Election Code (Ill.Rev.Stat.1987, ch. 46, par. 7-43(c)) in that over 2000 voters in the primary election had also signed nominating petitions for independent candidates, thus disqualifying those voters from participating in the primary. Plaintiffs, Jordan and Powell, named Officer, Moore, Franklin and Malone as defendants. On March 25 the circuit court ordered the East St. Louis board of election commissioners to review nominating petitions filed by independent candidates to determine who among the persons signing those petitions also voted in the primary election.

On March 27 the board of election commissioners petitioned for permission to distribute absentee ballots for the consolidated election scheduled for April 7, 1987. The ballots named Officer and Moore as the Democratic candidates for the offices of mayor and treasurer, respectively. On April 2, 1987, while the board's review of nominating petitions was in progress, the circuit court on its own motion postponed the April 7, 1987, consolidated election, citing as reasons therefor the expense which would be wasted should the consolidated election proceed with improper names on the ballot, and the physical impossibility of holding the election as scheduled. Following denial of motions to reconsider, Officer appealed pursuant to Supreme Court Rule 307(a)(1). (107 Ill.2d R. 307(a)(1).) While the appeal was pending, Officer filed with this court a certified copy of a suggestion of death indicating that Jordan died on or about April 23, 1987.

On appeal, this court held that the circuit court erred when it enjoined the holding of the election. We noted that

"[t]he electors were guaranteed by statute the opportunity to vote for the offices in question on April 7, 1987. (Ill.Rev.Stat.1985, ch. 46, par. 2A-1.1(b).) The result of this dispute between Democratic party hopefuls has been to prevent electors of political persuasions other than those embraced by the contestants' party from making any expression of their preference at the polls. As a result of the injunction this intraparty squabble has affected the rights of all of the electors." (Jordan v. Officer (1987), 155 Ill.App.3d 874, 877-78, 108 Ill.Dec. 500, 503, 508 N.E.2d 1077, 1080.)

This court vacated the circuit court's order and remanded the cause for further proceedings.

On May 18, 1987, three days after this court's decision, the circuit court entered its judgment as to the underlying merits of the election contest, finding that 1217 of 14,757 voters who cast ballots in the 1987 Democratic primary election were ineligible to do so because they had signed nominating petitions for independent candidates. The court declared the Democratic primary election null and void as to the city offices of mayor and treasurer. The court scheduled a new Democratic primary election, for those offices only, for July 14, 1987. The court rescheduled the consolidated election for August 25, 1987.

Defendants Officer and Moore appealed from the circuit court's order. Officer filed a motion in this court to stay the judgment of the circuit court. The motion was granted in a written order entered on June 23, 1987. That order directed the East St. Louis board of election commissioners to hold a consolidated election no later than August 4, 1987. The order further directed that the consolidated election ballot include as nominees those candidates who were successful in the February 24 Democratic primary.

In this appeal, defendants-appellants argue that (1) the election contest should have been dismissed in the trial court for failure to join indispensable parties and (2) plaintiffs waived objections to voter eligibility where they failed to challenge ineligible voters at the polls. In addition, Officer claims that (3) the circuit court lacked subject matter jurisdiction to determine voter eligibility, (4) Jordan's cause of action abated upon his death, and (5) the rule of apportionment of votes should be applied in this case. Further, Moore contends that (6) section 7-43(c) of the Election Code is unconstitutional (7) courts should not interfere with the electoral process where there is no evidence of fraud or unfairness, (8) the election contest is moot as to the nomination of treasurer, and (9) costs should not have been assessed to defendants.

As for the jurisdiction issue, suffice it to say that courts have traditionally exercised their jurisdiction to determine voter eligibility in the course of election contests. (See Tuthill v. Rendleman (1944), 387 Ill. 321, 56 N.E.2d 375; Huber v. Reznick (1982), 107 Ill.App.3d 529, 63 Ill.Dec. 179, 437 N.E.2d 828.) We are aware of no authorities that would deny courts this power and Officer has not provided persuasive authority in support of his position. We conclude that the circuit court had jurisdiction to determine voter eligibility.

A more troublesome question is whether indispensable parties should have been joined. Basic notions of due process require that all parties whose interest will be materially affected be before the court to present their position, and it is error for a court to adjudicate the merits of a cause without jurisdiction of indispensable parties. (Popovich v. Ram Pipe & Supply Co., Inc. (1979), 74 Ill.App.3d 343, 30 Ill.Dec. 189, 392 N.E.2d 954, aff'd in part, rev'd on other grounds, 82 Ill.2d 203, 45 Ill.Dec. 167, 412 N.E.2d 518.) When the court in the case at bar declared that 1217 ineligible voters had illegally cast ballots, that declaration affected not only the candidates for the offices at issue in the election contest, but also, by implication, the other candidates for other offices. Many ineligible voters must have cast votes for candidates in those races and logically it would seem that the court's declaration should affect the results of those races; therefore, reason would appear to require that the candidates for other offices, successful and unsuccessful, be joined as parties. This is not the law in Illinois.

Although all candidates for a particular office must be made parties to an election contest involving that office (Black v. Termunde (1973), 14 Ill.App.3d 937, 303 N.E.2d 803; Waupoose v. Kusper (1972), 8 Ill.App.3d 668, 290 N.E.2d 903), candidates for an office that is not the subject of the action need not be joined, even though the court's final judgment might, as in this case, cast doubt upon the validity of the results in their races. (See Hester v. Kamykowski (1958), 13 Ill.2d 481, 150 N.E.2d 196.) In Hester, a case involving a village election, unsuccessful candidates for the offices of village clerk and police magistrate contested the election result. The court ultimately determined that illegal ballots were used in the election and declared the election void as to the offices of clerk and police magistrate. On appeal, respondents, the successful candidates for those offices, argued inter alia that necessary parties, i.e. the persons elected president and trustees, were not joined as parties. The Illinois Supreme Court rejected this contention stating

"respondents recognize that the petition does not seek a recount but a declaration that the election was void because of an improper form of ballot. They argue that if the election was void for the offices of village clerk and police magistrate it was also void as to the office of village president, and that the judgment thus affects the interests of persons not made parties to the proceedings. The contention cannot be sustained. The judgment does not purport to affect the election for offices other than clerk and police magistrate, and they are not involved here. Weeden v. Gher, 316 Ill. 534, , upon which respondents rely, is distinguishable. That case involved an election to an office for which there were three candidates, with two to be elected. One of the candidates was not made a party to the proceedings, although the petition alleged, and the trial court found, that he was legally elected. It was held that since a judgment could not be entered without materially affecting his interests he was a necessary party. No such circumstances are present here. The petition in the case at bar seeks to declare the election void as to the offices of clerk and police magistrate. The interests of persons elected to other offices are not involved."

(13 Ill.2d 481, 489-90, 150 N.E.2d 196, 201.)

We are reluctantly compelled to follow Hester, given its factual similarity to the case before us. We must hold, therefore, that the candidates for other offices in the municipal election were not indispensable parties.

Officer and Moore next contend that the plaintiffs herein waived the right to...