Andrews v. Powell
| Decision Date | 05 May 2006 |
| Docket Number | No. 4-05-0726.,4-05-0726. |
| Citation | 848 N.E.2d 243 |
| Parties | Bruce ANDREWS, Plaintiff-Appellant, v. Richard "Pete" POWELL; Lynn Foster, as Vermilion County Clerk; Betty Seidel, Jack Klage, and Charles Bostic, as Members of the Danville Board of Election Commissioners; and James Wilson, Judy Bodine, and Monte Goodwin, as Members of the Newell Township Canvassing Board, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Robert G. Day Jr., Law Offices of Day and Day, Peoria, for Appellant.
Samuel J. Cahnman, Springfield, David J. Ryan, Dukes, Ryan, Meyer, Fahey, Freed & Goodwin, Ltd., Danville, for Appellee.
On July 27, 2005, the Vermilion County circuit court granted defendant Richard Powell's motion to dismiss plaintiff Bruce Andrews's verified petition for election contest and recount. The court also denied Andrews's two motions to amend his petition and his motion for a recount on the pleadings. Andrews appeals the court's ruling as to each of the four motions. We affirm the dismissal of the petition for an election contest but reverse the dismissal of the petition for a recount.
Andrews filed suit against defendants, the Vermilion County clerk, members of the Danville Board of Election Commissioners (Board), members of the Newell Township Canvassing Board, and Powell, to contest the election for Newell Township highway commissioner. The election was held in Vermilion County on April 5, 2005. Andrews ran against Powell and was defeated by 8 votes, 1,113 votes to 1,105 votes. These votes came from a total of 18 different precincts: 14 within the City of Danville (Danville precincts) and 4 within Vermilion County, outside the City of Danville (Vermilion County precincts).
Andrews exercised his right under section 22-9.1 of the Illinois Election Code (Code) to a discovery recount of not more than 25% of the precincts within Danville and Vermilion County. 10 ILCS 5/22-9.1 (West 2004) (). On May 9, 2005, the Board conducted the discovery recount in 3 of the 14 Danville precincts and in 1 of the 4 county precincts. See 10 ILCS 5/22-9.1(b) (West 2004) (). The record does not contain the exact results of the discovery recount in terms of the number of votes counted for each candidate in each respective precinct.
On May 19, 2005, Andrews filed a verified petition for election contest and recount. See 10 ILCS 5/23-20 (West 2004). The petition alleged the following improprieties in one or more of the precincts subject to the discovery recount: (1) two ballots with votes for Powell were not initialed by an election judge, as required by section 24A-10.1 of the Code, and were improperly counted for Powell (see 10 ILCS 5/24A-10.1 (West 2004)); (2) 123 unvoted ballots were missing from the fourth precinct; (3) the Board and county clerk violated section 24B-9 of the Code (10 ILCS 5/24B-9 (West 2004)) in that they failed to conduct a pretest of the voting-tabulation equipment; (4) the Board and the county clerk violated section 24B-10.1 of the Code (10 ILCS 5/24B-10.1 (West 2004)) in that, after the close of the polls, they failed to properly seal the ballots cast in the precinct polling places; and (5) Newell Township registered voters in the three Danville precincts were given a preprinted application that directed poll workers to give the voters Blount Township, rather than Newell Township, ballots. (Blount Township voters in turn had voter applications that directed poll workers to give them Newell Township ballots.) Apparently, the three Danville precincts were "split precincts," where some voters belonged to Newell Township and others belonged to Blount Township. Newell Township registered voter Lisa Askins stated, in an affidavit attached to Andrews's petition, that she was improperly given a Blount Township ballot when she went to the polls; that, as a consequence, she was unable to vote for Andrews for Newell Township highway commissioner; and that she had in fact intended to vote for Andrews if given the opportunity.
Andrews alleged, in his petition, that based on information from the discovery recount, the vote-count difference between himself and Powell had decreased from 8 votes to 5 votes and, thus, there was a "reasonable likelihood" that a recount of all 18 precincts would change the result of the election. Andrews also alleged that the additional improprieties called the integrity of the election into question, regardless of their impact on election results. Andrews requested that the court order (1) a full recount of the ballots cast in all 18 precincts and (2) an examination of the relevant voting devices, ballots, precinct binder cards, and voters' affidavits. Andrews also requested an order declaring himself to be the elected Newell County highway commissioner. On May 20, 2005, Powell was served a summons in this case, and copies of the petition were mailed to defendants.
On June 15, 2005, after the 30-day statute of limitations had passed (10 ILCS 5/23-20 (West 2004)), Andrews filed a motion for leave to amend his petition. The proposed amendment sought to add the affidavit of Graham Peck, a Newell Township registered voter. Graham attested he had intended to vote for Andrews but that the absentee ballot he was given did not list Andrews as a candidate. Graham turned in his ballot. However, after talking with his father, who shared the same address and who (unlike Graham) had been given a ballot with Andrews's name on it, Graham realized he may have been given the wrong ballot. Graham called the Board to ask if he had been given the wrong ballot, but the Board informed him he had been given the correct ballot.
On June 16, 2005, the Board filed an answer to Andrews's petition. The Board admitted that two ballots were not properly initialed by election judges and that preprinted applications in the three split precincts contained improper ballot-style designations. However, the Board stated it did not have sufficient knowledge to determine whether any voter actually voted on the wrong ballot due to the incorrect designations. The Board, therefore, denied Andrews's allegation to that effect.
Powell declined to answer Andrews's petition and, on June 21, 2005, filed a motion to dismiss it pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2004)). On June 22, 2005, Andrews filed a motion for recount on the pleadings pursuant to section 23-23.2 of the Code (10 ILCS 5/23-23.2 (West 2004)). Andrews filed a response to Powell's motion to dismiss on July 7, 2005.
At a hearing on July 27, 2005, the trial court denied Andrews's motion to amend the petition (filed June 15, 2005), denied Andrews's motion for a recount on the pleadings, and granted Powell's motion to dismiss the petition for failure to state a cause of action. Andrews's attorney then made an oral motion for leave to amend the petition, and the court denied this motion as well.
This appeal followed.
Andrews argues on appeal that the trial court erred in finding the petition insufficient to contest the results of the election. Andrews also argues that the court erred in dismissing his petition, because the petition alleged facts that, if shown to be true, would be grounds for invalidating the election. We review de novo a motion to dismiss for failure to state a cause of action. Krauss v. Board of Election Commissioners, 287 Ill.App.3d 981, 983, 224 Ill.Dec. 199, 681 N.E.2d 514, 515 (1997).
An action to contest the results of an election is not the same as an action to contest the validity of an election. Ross v. Kozubowski, 182 Ill.App.3d 687, 694, 131 Ill.Dec. 248, 538 N.E.2d 623, 628 (1989). An action to contest the validity of an election centers upon whether the election was valid or invalid, irrespective of the result of the votes cast. Ross, 182 Ill. App.3d at 694, 131 Ill.Dec. 248, 538 N.E.2d at 628, citing Village of Hinsdale v. County Court of DuPage County, 281 Ill.App. 571 (1935). Accordingly, we will perform two separate analyses in determining the sufficiency of the petition.
1. Sufficiency of the Petition Contesting Results
The parties debate the appropriate standard to be used in determining the legal sufficiency of the petition for recount. Andrews contends that the petition conforms to sections 23-20 and 23-23.2 of the Code (10 ILCS 5/23-20, 23-23.2 (West 2004)) and is, therefore, sufficient. Section 23-20 governs petitions for election contests for offices other than statewide offices and requires specificity in the pleadings. 10 ILCS 5/23-20 (West 2004). Section 23-23.2 states as follows:
"A court hearing an election contest pursuant to this [a]rticle or any other provision of the law shall grant a petition for a recount properly filed where, based on the facts alleged in such petition, there appears a reasonable likelihood the recount will change the results of the election." (Emphasis added.) 10 ILCS 5/23-23.2 (West 2004).
Though perfunctorily stating that the standard in section 23-23.2 controls, Powell substantively argues that case law requires the petition to allege that a recount would in fact change the results of the election. Hoffer v. School District U-46, 273 Ill. App.3d 49, 58, 209 Ill.Dec. 819, 652 N.E.2d 359, 365 (1995). Hence, the question becomes, what does "reasonable likelihood" mean?
Prior to the enactment of section 23-23.2 in 1986, common law mandated that an election-contest petition contain a positive and clear assertion, allegation, or...
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