Black v. Termunde

• Decision Date: 04 October 1973
• Docket Number: No. 54727,54727
• Citation: 14 Ill.App.3d 937,303 N.E.2d 803
• Parties: In re Penney M. BLACK et al., Plaintiffs. Penney M. BLACK, Appellant, v. Raymond L. TERMUNDE, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 803

303 N.E.2d 803

14 Ill.App.3d 937

In re Penney M. BLACK et al., Plaintiffs.

Penney M. BLACK, Appellant, v. Raymond L. TERMUNDE, Defendant-Appellee.

No. 54727.

Appellate Court of Illinois, First District, Third Division.

Oct. 4, 1973.

Vincent R. Ewald, Oak Lawn, for appellant.

Henry A. Gentile, Blue Island, for defendant-appellee.

DEMPSEY, Presiding Justice:

Raymond L. Termunde, one of three candidates for the office of president of the Village of Alsip, received the highest number of votes in an election which was held on April 15, 1969. After the proclamation of the results, the village canvassing board certified that Termunde was elected to the office and issued a certificate of election. A petition contesting his election was filed in the Circuit Court of Cook County by Penney M. Black, Yolanda A. Ziomek and Richard N. McCoy, all of whom were registered voters in the village. Termunde was named as the sole defendant in the complaint which consisted of two counts; the first concerned irregularities in the vote tallies and the second questioned Termunde's nomination and the placing of his name on the ballot.

The defendant moved to dismiss the petition. The principal grounds were that it was barred by res judicata and that it failed to name as necessary parties the two candidates who lost the election. The motion was sustained on both grounds and the plaintiff, Black, appeals.

The first count of the petition charged that, notwithstanding the canvass of votes by the election judges and the canvassing board, Avery L. Wilkins, another candidate, received more legal votes than Termunde. It was alleged that, were it not for numerous mistakes, miscounts, mistallies and other wrongs, Wilkins would have received 18 more votes than Termunde instead of 23 votes less. The petitioners sought relief in the form of a recount, a declaration that Termunde's certificate of election was null and void and a judgment in favor of Wilkins.

The second count concerned the propriety of Termunde's nominating petition. He and several other candidates filed nomination papers under a petition to form a new political party known as the Greater Alsip Progressive Party. Black filed an objector's petition and, after a hearing before the Municipal Officers Electoral Board, an order not to print the names of the candidates on the ballot was entered. A petition for administrative review by the candidates was decided adversely to them. The candidates then filed nomination papers to form another new party, known as the Citizen's Achievement Party, to fill vacancies purportedly created by the previous action of the electoral board. Black again filed an objection; the electoral board sustained a motion to dismiss theobjection for want of jurisdiction. Black filed a petition for administrative review. The court upheld the decision of the electoral board. A complaint for mandamus against the candidates and the members of the electoral board was then filed. The hearing, which occurred on the eve of the election, resulted in the court's sustaining the motion to dismiss for the reason that, notwithstanding the prior rulings of the board and the court, the electoral board had jurisdiction to hear the objections and the court did not. The plaintiffs' petition asserted that the nomination papers of the Citizen's Achievement Party and its candidates were not permitted by any applicable provision of the statutes relating to such papers (Ill.Rev.Stat., 1967, ch. 46, para. 10--1 et seq.) and they requested declarations that the election for the village president was a nullity, that Termunde's certificate of election was of no force and effect, and that a new election be conducted without his name being on the ballot.

The canvassing board proclaimed that Termunde received 1232 votes for the office of president, Wilkins 1209 and Daniel Ianello 289. The plaintiffs contended that the correct result should have shown 1234 votes for Wilkins, 1216 for Termunde and 289 for Ianello. All successful candidates and all persons who were candidates in the election are necessary parties to a proceeding contesting the election. People ex rel. Meyer v. Kerner (1966), 35 Ill.2d 33, 219 N.E.2d 617; Lyons v. Becker (1916), 272 Ill. 333, 111 N.E. 980; Conway v. Sexton (1909), 243 Ill. 59, 90 N.E.2d 203; Waupoose v. Kusper (1972), 8 Ill.App.3d 668, 290 N.E.2d 903. The court was requested to enter a decree, after a proper count of the ballots, declaring Wilkins to be the winner. The requested decree could not have been entered without materially affecting his interests. Weeden v. Gher (1925), 316 Ill. 534, 147 N.E. 388. The failure of the petition to name him as a defendant was fatal to the cause of action; he was an indispensable party; without him, the court was powerless to act. Therefore, the trial court ruled correctly when it sustained the motion to dismiss the first count of the petition.

In respect to the second count and the claim that the nominating process used by Termunde was not sanctioned by law, it is noted that the factual allegations of the petition appear to be analogous to those in the cases of People ex rel. Vigilant Party v. Village of Dolton (1969), 118 Ill.App.2d 392, 254 N.E.2d 832, and People ex rel. Voters for Progress Party v. Wilk (1969), 118 Ill.App.2d 386, 254 N.E.2d 834, which were appeals in mandamus...