Bazydlo v. Volant

• Decision Date: 17 February 1995
• Docket Number: No. 77504,77504
• Citation: 164 Ill.2d 207,647 N.E.2d 273,207 Ill.Dec. 311
• Court: Illinois Supreme Court
• Parties: , 207 Ill.Dec. 311 Paul BAZYDLO, Appellant, v. Harry VOLANT et al. (Harry Volant, Appellee).

Page 273

647 N.E.2d 273

164 Ill.2d 207, 207 Ill.Dec. 311

Paul BAZYDLO, Appellant, v. Harry VOLANT et al. (Harry Volant, Appellee).

No. 77504.

Supreme Court of Illinois.

Feb. 17, 1995.

Mathias W. Delort and Burton Odelson, Odelson & Sterk, Ltd., Evergreen Park, for appellant.

J. Paul Aplington and Thomas L. McClintock, Aplington, Kaufman, McClintock, Steel & Barry, Ltd., LaSalle, for appellee.

Justice FREEMAN delivered the opinion of the court:

Paul Bazydlo contested the outcome of an election for village president of Ladd, Illinois. The trial court excluded 28 uninitialled ballots from the election count and declared Bazydlo the winner. The appellate court reversed, concluding that those ballots should have been included in the election results, thereby making Bazydlo's opponent, Harry Volant, the winner. (264 Ill.App.3d 105, 201 Ill.Dec. 675, 636 N.E.2d 1107.) We allowed Bazydlo's petition for leave to appeal (145 Ill.2d R. 315(a)), and now affirm the appellate court.

BACKGROUND

On April 20, 1993, the Village of Ladd held a general election for village president. Bazydlo and Volant were the only candidates. The official vote canvass showed that Volant had won by one vote, 344 to 343.

A discovery recount (see 10 ILCS 5/22-9.1 (West 1992)) revealed that a total of 28 ballots were uninitialled. Of these, 25 were cast for Volant and 3 were cast for Bazydlo.

Bazydlo filed a petition in the circuit court of Bureau County contesting the outcome of the election. (See 10 ILCS 5/23-1.1a et seq. (West 1992).) The trial court conducted a full recount of the two Hall Township precincts All five election judges from precinct No. 9 testified at an evidentiary hearing. Each testified that all of the in-precinct ballots were initialled, counted, and verified prior to the opening of the envelope containing the absentee ballots. Further, the number of in-precinct ballots matched the number of in-precinct voters that day.

[207 Ill.Dec. 313] in which the village election was held, precincts Nos. 4 and 9. The 28 uninitialled ballots were cast in precinct No. 9.

The envelope containing the 52 absentee ballots was then opened. These ballots were separately stacked and counted. The number of absentee ballots was compared with the number of absentee ballot applications; only one absentee ballot had not been returned. Three of the election judges stacked the absentee ballots. They formed more than one stack because it was not possible to place 52 ballots in one stack.

After the absentee ballots were counted, election judge Linda Peterson was to initial them and their attached ballot stubs. Although she had more than one stack in front of her, she clearly remembered initialling only one stack. The election judges did not know how many ballots were in each stack. No election judge actually saw any uninitialled ballots on election night. However, Peterson believed that the only explanation for the 28 uninitialled ballots was that one stack of absentee ballots had not been initialled. Only after the absentee ballots had been counted, the stubs removed, and separately stacked were they then combined with the in-precinct ballots and taken to the central tabulation station.

Volant testified that during the discovery recount, which Bazydlo also attended, 27 uninitialled ballots were found clustered in the total number of ballots cast. Likewise, detached ballot stubs to the 28 uninitialled ballots formed a cluster in the total number of stubs. The twenty-eighth uninitialled ballot, referred to at trial as "spoiled ballot 4," was damaged and, consequently, rejected by the ballot counting machine. A visual inspection revealed that this ballot was cast for Volant. It was not included with the other 27 uninitialled ballots due to the physical anomaly.

The trial court noted that there were no allegations or evidence of voting fraud. However, the court found that the 28 uninitialled ballots could not be readily identified as absentee ballots without "speculation or conjecture." Further, the court found that the cluster of uninitialled ballots and the separate cluster of corresponding ballot stubs constituted merely a "fortuitous circumstance." Accordingly, the court excluded the 28 uninitialled ballots from the election count, making Bazydlo the winner.

The appellate court reversed the trial court's judgment. The appellate court concluded that the 28 uninitialled ballots were absentee ballots and that they should be included in the election results, thereby making Volant the winner. (264 Ill.App.3d at 110-11, 201 Ill.Dec. 675, 636 N.E.2d 1107.) Bazydlo appeals.

DISCUSSION

Election Code section 24A-10(1)(b) provides that ballots that have not been initialled by an election judge must be marked "Defective" and not counted. (10 ILCS 5/24A-10(1)(b) (West 1992).) Statutes that require election judges to initial ballots are mandatory; uninitialled ballots may not be counted. Pullen v. Mulligan (1990), 138 Ill.2d 21, 49, 149 Ill.Dec. 215, 561 N.E.2d 585.

However, in Craig v. Peterson (1968), 39 Ill.2d 191, 233 N.E.2d 345, this court found an exception to this otherwise mandatory requirement. A court will consider the initialling requirement to be merely directory and allow the counting of uninitialled absentee ballots only if: "(1) the absentee ballots can be identified and distinguished from in-precinct ballots; and (2) the initialling requirement does not contribute to the integrity of the election process." (Pullen, 138 Ill.2d at 52, 149 Ill.Dec. 215, 561 N.E.2d 585.) The parties may offer trial testimony and other evidence on the issue of whether the Craig exception has been met. See Pullen, 138 Ill.2d at 53, 149 Ill.Dec. 215, 561 N.E.2d 585; Goble v. Board of Education of Iuka Community Consolidated School District No. 7 (1980), 83 Ill.App.3d 284, 38 Ill.Dec. 919, 404 N.E.2d 343.

Standard of Proof

At the outset, we discuss the appropriate standard of proof in establishing the Craig exception. The Election Code provides that election contests "shall be tried in like manner as other civil cases." (10 ILCS 5/23-23 (West 1992).) In the ordinary civil case, the decision determines merely which party must bear an economic loss. Because there are no sound reasons for favoring one party over another, the party with the burden of persuasion must prove his or her case by a preponderance of the evidence. (In re Stephenson (1977), 67 Ill.2d 544, 553, 10 Ill.Dec. 507, 367 N.E.2d 1273.) A proposition proved by a preponderance of the evidence is one that has been found to be more probably true than not true. In re Estate of Ragen (1979), 79 Ill.App.3d 8, 13, 34 Ill.Dec. 523, 398 N.E.2d 198.

Occasionally, however, constitutional or policy considerations require a court to impose a higher standard of proof. In such a case, the party with the burden of persuasion must prove his or her case by clear and convincing evidence. 29 Am.Jur.2d Evidence § 157 (1994); see, e.g., Stephenson, 67 Ill.2d at 556-59, 10 Ill.Dec. 507, 367 N.E.2d 1273.

Courts have defined "clear and convincing" evidence most often as the quantum of proof that leaves no reasonable doubt in the mind of the fact finder as to the truth of the proposition in question. Although stated in terms of reasonable doubt, courts consider clear and convincing evidence to be more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense. See Ragen, 79 Ill.App.3d at 13-14, 34 Ill.Dec. 523, 398 N.E.2d 198 (and authorities cited therein).

In the present case, the appellate court held that the standard of proof in establishing the Craig exception was proof by clear and convincing evidence. The court reasoned that "a clear and convincing standard adequately balances the conflicting interests in preserving the integrity of the election and avoiding unnecessary disenfranchisement of qualified absentee voters." 264 Ill.App.3d at 108, 201 Ill.Dec. 675, 636 N.E.2d 1107.

We agree and so hold. Cases that require either a higher (see Snow v. Natzke (1986), 140 Ill.App.3d 367, 370, 94 Ill.Dec. 830, 488 N.E.2d 1077) or lower standard of proof are overruled on this point.

Uninitialled Ballots

In the present case, the appellate court correctly concluded that the Craig exception had been met. Addressing the first prong of the Craig exception, the evidence clearly and convincingly shows that the uninitialled absentee ballots can be identified and distinguished from the in-precinct ballots. The following facts are undisputed. All of the in-precinct ballots were initialled, counted, and verified before the envelope containing the absentee ballots was opened. The number of in-precinct ballots matched the number of in-precinct voters. Each in-precinct ballot had been initialled.

Further, the following evidence was uncontradicted and unimpeached. The number of absentee ballots corresponded to the number of absentee ballot applications. The election judges formed more than one stack of absentee ballots. Election judge Peterson remembered initialling only one of these stacks. Moreover, during the discovery recount, 27 uninitialled ballots were clustered together in the total number of ballots. Spoiled ballot 4 was physically separated due to its rejection by the ballot counting machine. Likewise, the 28 corresponding uninitialled ballot stubs were clustered together in the total number of stubs.

The trial court, however, discounted much of this evidence. The trial court found that election judge Peterson's testimony was "simply not sufficient to identify the uninitialled ballots as absentee ballots without having to resort to speculation or conjecture." The trial court likewise found Volant's testimony regarding the clusters of the uninitialled ballots and stubs to be merely a "fortuitous circumstance."

A reviewing court should not overturn a trial court's findings merely because it does not agree with the lower court or because it might have...