Bettis v. Marsaglia

• Decision Date: 13 November 2013
• Docket Number: No. 4–13–0145.,4–13–0145.
• Parties: Carolyn BETTIS, Plaintiff–Appellant, v. Charles M. MARSAGLIA and Melissa O'Neal, Objectors; Stephen Furman, Electoral Board Chairperson; Robyn Hays, Electoral Board Secretary; and Farley cole, Electoral Board Member, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2013 IL App (4th) 130145

2 N.E.3d 344

377 Ill.Dec. 428

Carolyn BETTIS, Plaintiff–Appellant,

v.Charles M. MARSAGLIA and Melissa O'Neal, Objectors; Stephen Furman, Electoral Board Chairperson; Robyn Hays, Electoral Board Secretary; and Farley cole, Electoral Board Member, Defendants–Appellees.

No. 4–13–0145.

Appellate Court of Illinois, Fourth District.

Nov. 13, 2013.

Vince Moreth, Carlinville, for appellant.

Robert Kohn, Steven M. Richart, Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP, Arlington Heights, for appellees.

OPINION

Justice HARRIS delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Carolyn Bettis, filed a petition for judicial review of a decision of the Education Officers Electoral Board (Electoral Board) for North Mac Community Unit School District No. 34, Macoupin, Montgomery and Sangamon Counties, Illinois (School District), pursuant to section 10–10.1(a) of the Election Code (10 ILCS 5/10–10.1(a) (West 2012)). On the motion of defendants Charles M. Marsaglia and Melissa O'Neal, the circuit court dismissed plaintiff's petition pursuant to section 2–619 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2–619 (West 2012)). Plaintiff appeals, arguing the court erred by granting defendants' motion to dismiss. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On January 28, 2013, plaintiff filed her petition for judicial review of the Electoral Board's decision in the circuit court. She alleged the Electoral Board erroneously sustained objections to petitions she submitted to the School District, which sought to submit a proposition to voters on the April 9, 2013, ballot regarding the School District's issuance of $2 million in working cash bonds. Plaintiff asserted the objections were filed by defendants Marsaglia and O'Neal on the basis that her petitions were unnumbered and not appropriately bound. She asked that the court reverse the Electoral Board's decision as being against the manifest weight of the evidence.

¶ 4 In the caption of her petition, plaintiff expressly named only Marsaglia and O'Neal as opposing parties. However, she filed a certificate of service with her petition and the record reflects copies of the petition were sent by certified mail to eight individuals, including Marsaglia; O'Neal; and the three members of the Electoral Board, Stephen Furman, Robyn Hays, and Farley Cole.

¶ 5 On February 5, 2013, defendants filed their motion to dismiss plaintiff's petition, arguing the circuit court lacked subject-matter jurisdiction because plaintiff failed to name and join the Electoral Board and its members as parties to the proceedings as required by section 10–10.1(a) of the Election Code (10 ILCS 5/10–10.1(a) (West 2012)). On February 7, 2013, the court conducted a hearing in the matter and granted defendants' motion to dismiss.

¶ 6 This appeal followed.

¶ 7 II. ANALYSIS

¶ 8 Initially on appeal, we address defendants' claim that plaintiff's appeal should be dismissed as moot. They contend no actual controversy exists where plaintiff's petition to submit a proposition to voters specified the April 9, 2013, election and that election has passed.

¶ 9 Generally, a reviewing court will not decide moot questions and a case that is moot will be dismissed on appeal. Rivera v. City of Chicago Electoral Board, 2011 IL App (1st) 110283, ¶ 15, 353 Ill.Dec. 500, 956 N.E.2d 20. “A case is moot when it presents no actual controversy or when the legal issue involved has ceased to exist.” Rivera, 2011 IL App (1st) 110283, ¶ 15, 353 Ill.Dec. 500, 956 N.E.2d 20. The conclusion of an election cycle normally renders an election contest moot. Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 43, 363 Ill.Dec. 557, 975 N.E.2d 583; see also Rivera, 2011 IL App (1st) 110283, ¶ 16, 353 Ill.Dec. 500, 956 N.E.2d 20. However, a reviewing court may address an otherwise moot issue pursuant the public-interest exception to the mootness doctrine. Rivera, 2011 IL App (1st) 110283, ¶ 17, 353 Ill.Dec. 500, 956 N.E.2d 20. “The public interest exception * * * allows a court to reach the merits of a case which would otherwise be moot if the question presented is of a public nature, an authoritative resolution of the question is desirable for the purpose of guiding public officers, and the question is likely to recur.” Jackson, 2012 IL 111928, ¶ 44, 363 Ill.Dec. 557, 975 N.E.2d 583.

¶ 10 Here, we agree that plaintiff's appeal is moot. Her petition to submit a proposition to voters regarding the School District's issuance of $2 million in working cash bonds specified the April 9, 2013, election and that election has passed. However, we also find this case meets the requirements of the public-interest exception and choose to address the merits of plaintiff's appeal. We note a question of election law is inherently a matter of public concern. Jackson, 2012 IL 111928, ¶ 44, 363 Ill.Dec. 557, 975 N.E.2d 583. Additionally, this case presents questions for which an authoritative resolution is desirable because, not only have the issues involved not been previously addressed by this appellate district, but there is disagreement as to the resolution of the issues among the other appellate districts.

¶ 11 Finally, we find the questions presented by plaintiff's appeal are likely to recur. Defendants argue this case is incapable of repetition because the Election Code has been amended so that the County Officers Electoral Board, rather than the Educational Officers Electoral Board, would address the issues raised by plaintiff's underlying action. See Pub. Act 98–115, § 5 (eff. July 29, 2013) (amending 10 ILCS 5/10–9 (West 2012)). However, section 10–10.1(a) of the Election Code continues to govern petitions for judicial review of any electoral board decision and was unchanged by recent amendments. The same issues presented by this appeal could have occurred no matter which electoral board presided over the underlying proceedings.

¶ 12 On appeal, plaintiff argues the circuit court erred in dismissing her petition for judicial review for lack of subject-matter jurisdiction. She contends she met the express requirements of section 10–10.1(a) of the Election Code, which sets forth the procedures for seeking judicial review of an electoral board decision, and maintains that naming the Electoral Board in the caption of her petition was not required by section 10–10.1(a) to establish subject-matter jurisdiction. Plaintiff cites the Second District's decision in Zack v. Ott, 381 Ill.App.3d 545, 319 Ill.Dec. 724, 886 N.E.2d 487 (2008), to support her position and argues the cases cited by defendants are inapposite.

¶ 13 “Where * * * judicial review of an electoral board's decision is sought pursuant to section 10–10.1 of the Election Code (10 ILCS 5/10–10.1 (West 2010)), the proceeding is in the nature of administrative review.” Jackson, 2012 IL 111928, ¶ 46, 363 Ill.Dec. 557, 975 N.E.2d 583. “[W]hether a court has subject matter jurisdiction over issues resulting from a petitioner's alleged failure to comply with the [Election] Code is a question of law that * * * requires de novo review.” Rivera, 2011 IL App (1st) 110283, ¶ 19, 353 Ill.Dec. 500, 956 N.E.2d 20.

¶ 14 “Illinois courts do not have general jurisdiction over election cases, but may only review them pursuant to statute, namely, sections 10–10 and 10–10.1 of the [Election] Code.” Rivera, 2011 IL App (1st) 110283, ¶ 20, 353 Ill.Dec. 500, 956 N.E.2d 20; see also Pullen v. Mulligan, 138 Ill.2d 21, 32, 149 Ill.Dec. 215, 561 N.E.2d 585, 589 (1990) ( “Courts have no inherent power to hear election contests, but may do so only when authorized by statute and in the manner dictated by statute.”). “Accordingly, the requirements mandated upon the parties as provided in [the Election Code] are jurisdictional requirements that must be followed.” Rivera, 2011 IL App (1st) 110283, ¶ 20, 353 Ill.Dec. 500, 956 N.E.2d 20. The failure to strictly comply with section 10–10.1's requirements “invites dismissal for lack of subject matter jurisdiction under section 2–619 of the [Civil] Code.” Nelson v. Qualkinbush, 389 Ill.App.3d 79, 86–87, 329 Ill.Dec. 809, 907 N.E.2d 400, 407 (2009).

¶ 15 Section 10–10.1(a) of the Election Code (10 ILCS 5/10–10.1(a) (West 2012)) provides as follows:

“[A] candidate or objector aggrieved by the decision of an electoral board may secure judicial review of such decision in the circuit court of the county in which the hearing of the electoral board was held. The party seeking judicial review must file a petition with the clerk of the court and must serve a copy of the petition upon the electoral board and other parties to the proceeding by registered or certified mail within 5 days after service of the decision of the electoral board as provided in Section 10–10. The petition shall contain a brief statement of the reasons why the decision of the board should be reversed. The petitioner shall file proof of service with the clerk of the court. No answer to the petition need be filed, but the electoral board shall cause the record of proceedings before the electoral board to be filed with the clerk of the court on or before the date of the hearing on the petition or as ordered by the court.”

Courts interpreting section 10–10.1(a) have found that a petitioner must satisfy four explicit jurisdictional prerequisites to obtain judicial review of an electoral board decision, including that the petitioner “must (1) file his challenging petition with the clerk of the court within five days after the Board's service of its decision; (2) serve copies of the petition on the Board and the other parties to the proceedings by registered or certified mail within five days after the Board's service of its decision; (3) state in that petition why the Board's decision should be reversed; and (4) file proof of service with the clerk of the court.” Rivera, 2011 IL App (1st) 110283, ¶ 22, 353 Ill.Dec. 500, 956 N.E.2d 20; see also Nelson, 389 Ill.App.3d at 86, 329...