Caldwell v. Nolan

• Citation: 167 Ill.App.3d 1057,522 N.E.2d 175
• Decision Date: 08 March 1988
• Docket Number: No. 88-0583,88-0583
• Parties: , 118 Ill.Dec. 720 Melvin G. CALDWELL, Plaintiff-Appellant, v. James R. NOLAN, Nikki M. Zolar and Michael J. Hamblet, Commissioners of the Chicago Board of Election Commissioners and Members of the Electoral Board for the Hearing and Passing Upon of Objections to Nominating Petitions for the Offices of Representative in the General Assembly and State Senator, and Charles G. Morrow III, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 175

522 N.E.2d 175

167 Ill.App.3d 1057, 118 Ill.Dec. 720

Melvin G. CALDWELL, Plaintiff-Appellant, v. James R. NOLAN, Nikki M. Zolar and Michael J. Hamblet Commissioners of the Chicago Board of Election Commissioners and Members of the Electoral Board for the Hearing and Passing Upon of Objections to Nominating Petitions for the Offices of Representative in the General Assembly and State Senator, and Charles G. Morrow III, Defendants-Appellees.

No. 88-0583.

Appellate Court of Illinois First District, Fifth Division.

March 8, 1988.

Richard Flowers, Chicago, for plaintiff-appellant.

Michael Levinson, David A. Epstein, Karlo M. Karacic, Carroll, Sain & Epstein, Ltd., Chicago, for defendants-appellees.

Justice SULLIVAN delivered the opinion of the court:

Plaintiff, Melvin G. Caldwell, appeals from an order dismissing his complaint for a writ of mandamus against defendants, James R. Nolan, Nikki M. Zolar and Michael J. Hamblet, Commissioners of the Chicago Board of Election Commissioners and Members of the Electoral Board for the Hearing and Passing Upon of Objections to Nominating Petitions for the Offices of Representative in the General Assembly and State Senator, and Charles G. Morrow III.

Defendant, Charles G. Morrow III (Morrow), is a State Representative seeking reelection from the 32nd Representative District. Plaintiff Melvin G. Caldwell (Caldwell) is Morrow's sole opponent in the March 15, 1988 Democratic primary. Caldwell filed objections to Morrow's 1988 statement of candidacy claiming, inter alia, that Morrow is not a registered voter and that the Election Code (Ill.Rev.Stat.1987, ch. 46, par. 8-8), requires Morrow to be registered. After an evidentiary hearing was conducted before a hearing officer, the Chicago Board of Election Commissioners, acting as members of the Electoral Board, issued a decision on January 13, 1988, which upheld Caldwell's objection to Morrow's statement of candidacy and ordered Morrow's name to be taken off of the ballot for the March 15, 1988 Democratic primary.

Two days later, on January 15, 1988, Morrow filed a motion to vacate the Electoral Board's decision and for a rehearing, based in part on new evidence. On January 19, 1988, the Board granted Morrow's motion in part and issued an "Amended Decision" vacating the January 13, 1988 decision and remanding the cause to the hearing officer on the existing record for reargument of certain points raised in Morrow's motion. The "Amended Decision," however, prohibited the hearing officer from considering any new or additional evidence.

The rehearing before the hearing officer was held the same day, January 19, 1988. Both Caldwell and Morrow were present. Caldwell objected to the rehearing but he also argued the merits of his objection to Morrow's statement of candidacy. Following the rehearing, the Electoral Board issued its "Second Amended Decision" on January 22, 1988, overruling the registration objection and ordering Morrow's name to be placed on the ballot. The Board found that Morrow's statement of candidacy was valid because his registration had been cancelled due to a clerical error by the Board of Election Commissioners which had intended to cancel his deceased father's registration.

On Monday, January 25, 1988, Morrow received the Electoral Board's "Second Amended Decision." Morrow then filed a petition in the circuit court requesting judicial review of the Board's January 13, 1988 decision in the event that the Board's January 22, 1988 decision was invalidated in any other proceeding. The case was assigned to Judge Schneider. On February 1, 1988, Morrow was allowed to dismiss his petition for judicial review with leave to reinstate. Morrow claims that he took a voluntary dismissal because of Caldwell's representation that he was not going to file an action challenging the Board's decisions of January 19, 1988, and January 22, 1988. Although Caldwell disputes this claim, we have not been provided with the transcript of proceedings before Judge Schneider on February 1, 1988, and thus we are unable to resolve this factual issue.

On Friday, February 5, 1988, Caldwell filed a complaint for a writ of mandamus. Caldwell asserted that the Electoral Board lacks statutory authority "to grant [a] rehearing or to make subsequent decisions in a matter once it has rendered a decision," and for that reason the Board's decisions of January 19, 1988, and January 22, 1988, were void and should be expunged. Caldwell also alleged that Morrow did not file a timely appeal from the January 13, 1988 decision.

Morrow moved to dismiss Caldwell's complaint on the following grounds: failure to exhaust statutory remedies; statute of limitations; waiver and estoppel; laches; and failure to join necessary parties. The Electoral Board also moved to dismiss the complaint, on the ground that the Board has authority to amend its decision within the 10-day period for judicial review so long as no new evidence is admitted. Subsequently, on February 17, 1988, and before any ruling on the motions to dismiss, Morrow filed an answer, repleaded his grounds for dismissal as affirmative defenses and filed a counterclaim.

In the counterclaim, Morrow alleged that he filed a valid statement of candidacy and that the Electoral Board's decision of January 13, 1988 was "erroneous, void and without basis or jurisdiction" because the Election Code does not require a candidate for State Representative to be a registered voter. Morrow alleged further that if the Election Code does require a candidate for the General Assembly to be a registered voter, "such provision is unconstitutional and void as an invalid supplement to the qualifications for said Office established in Article IV, Section 2(c) of the Illinois Constitution of 1970, which qualifications (age, residence, citizenship) may not be altered or added to by any act of the legislature."

On February 17, 1988, the trial court granted the Electoral Board's motion to dismiss plaintiff's complaint finding that the Electoral Board is authorized to rehear a decision so long as no new evidence is adduced; that the Board's decisions of January 19, 1988, and January 22, 1988, were proper; that the sole means of attacking the validity of those decisions is by means of judicial review under section 10-10.1 of the Election Code (Ill.Rev.Stat.1987, ch. 46, par. 10- 10.1); and that the issues raised by Morrow in his answer and counterclaim were mooted by the preceding findings.

Plaintiff filed his notice of appeal on February 18, 1988, and on February 25, 1988 we ordered an expedited briefing schedule so that this matter could be disposed of before the March 15, 1988 primary. Oral argument was heard on March 3, 1988.

It is our view that there are two principal issues to be decided in this appeal: whether the Electoral Board has the authority to allow a rehearing, or modify or alter its decisions, ¹ and whether mandamus will lie to expunge a void order entered by an election board.

With respect to the first issue, our supreme court has stated:

"It is settled that administrative bodies have only such powers as are conferred upon them by statute or ordinance. [Citations.] Since an administrative agency is a creature of the legislative body from which it derives its existence and authority, any of its acts or orders which are unauthorized by the enabling statute or ordinance are void. [Citations.]" Homefinders, Inc. v. City of Evanston (1976), 65 Ill.2d 115, 129, 2 Ill.Dec. 565, 357 N.E.2d 785.

Consistent with this principle, the supreme court has held that "an administrative agency may allow rehearing, or modify and alter its decisions, only where authorized to do so by statute." Pearce Hospital v. Public Aid Commission (1958), 15 Ill.2d 301, 307, 154 N.E.2d 691.

In Pearce, the court stated that the Public Assistance Code contained neither a provision for rehearing nor an authorization for the Public Aid Commission to modify or alter the administrative decisions it was permitted to make. (15 Ill.2d 301, 306, 154 N.E.2d 691.) The court reached this conclusion notwithstanding the Commission's statutory authority to "[m]ake all of the rules and regulations and take such action as may be necessary or desirable for carrying out the provisions of this Code * * *." Ill.Rev.Stat.1957, ch. 23, par. 202.8.

Defendant Board purports to derive its authority to grant rehearings, or modify its decisions, from section 10-10 of the Election Code (Ill.Rev.Stat.1987, ch. 46, par. 10-10), which states in relevant part:

"The electoral board on the first day of its meeting shall adopt rules of procedure for the introduction of evidence and the presentation of arguments and may, in its discretion, provide for the filing of briefs by the parties to the objection or by other interested parties."

Under this provision, the only rules the Electoral Board may adopt are procedural rules "for the introduction of evidence and the presentation of arguments." ² The statute is silent on the matter of rehearings or modifications of board decisions. We do not believe authority to grant rehearings or modify decisions may be inferred from that language. An administrative agency "must find within the statute the authority which it claims." City of Chicago v. Fair Employment Practices Commission (1976), 65 Ill.2d 108, 113, 2 Ill.Dec. 711, 357 N.E.2d 1154.

In Oliver v. Civil Service Commission (1967), 80 Ill.App.2d 329, 224 N.E.2d 671, the plaintiff, although stipulating that the Civil Service Commission did not have any rule or regulation providing a means for the rehearing of its decisions, argued that the Commission had "the inherent power to correct its orders, just as courts have continuing jurisdiction over their own decrees." (80 Ill.App.2d 329, 334, 224 N.E.2d 671.) On that basis, he contended that "the Commission could correct its order even though there was no specific provision in the rules or in the ordinance for...