DeFabio v. Gummersheimer

• Decision Date: 07 September 1999
• Docket Number: No. 5-98-0743.,5-98-0743.
• Citation: 307 Ill. App.3d 381,240 Ill.Dec. 447,717 N.E.2d 540
• Parties: Leonard DeFABIO, Petitioner-Appellee, v. Julie GUMMERSHEIMER, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

717 N.E.2d 540

307 Ill. App.3d 381

240 Ill.Dec. 447

Leonard DeFABIO, Petitioner-Appellee, v. Julie GUMMERSHEIMER, Respondent-Appellant.

No. 5-98-0743.

Appellate Court of Illinois, Fifth District.

September 7, 1999.

Jay M. Huetsch, Adams and Huetsch, Waterloo, for Appellant.

Vincent J. Lopinot, Dusek and Lopinot, Belleville, for Appellee.

Justice HOPKINS delivered the opinion of the court:

Respondent, Julie Gummersheimer, appeals from the trial court's order granting petitioner's, Leonard DeFabio's, petition for election contest and declaring DeFabio to be the coroner of Monroe County. On appeal, Gummersheimer argues that De-Fabio's amended petition for election contest was time-barred, that ballots from one of the precincts should have been counted even though the election judges failed to initial those ballots, and that the trial court erred in refusing to hear evidence relative to the conduct of the election. We affirm.

FACTS

On December 5, 1996, DeFabio filed a petition for election contest, alleging in pertinent part that he was the Democratic candidate for coroner in the November 5, 1996, general election, that Gummersheimer was the Republican candidate for coroner, and that on November 8, 1996, the Monroe County Canvassing Board declared Gummersheimer to be the winner of the coroner's race by a margin of two votes (5,660 votes for Gummersheimer and 5,658 votes for DeFabio). DeFabio alleged in his petition that the results of the vote for coroner were invalid because none of the 524 ballots cast in precinct 2 were initialed by an election judge, as required by sections 17-9, 19-8, and 20-9 of the Election Code (10 ILCS 5/17-9, 19-8 and 20-9 (West 1996)), and that Gummersheimer received 290 votes and DeFabio received 212 votes in precinct 2. DeFabio also alleged that several ballots in other precincts were not initialed by an election judge and that other irregularities occurred in certain precincts. DeFabio requested the court to examine and recount the ballots in precincts 2,11, 23, and 24, to void any ballots that were uninitialed or cast in any other improper manner, to correct the results of the coroner's election in accordance with applicable law, and to declare DeFabio the winner of the election for Monroe County coroner.

Gummersheimer filed a motion to dismiss the petition, claiming that it was insufficient in law because it failed to include an assertion that a recount would change the results of the election. In an order dated April 9, 1997, the trial court found, "Respondent's motion to dismiss should be denied except to the extent that Petitioner should be granted five (5) days to file an amended petition specifically alleging that the irregularities complained of likely will change the election result." DeFabio filed an amended petition alleging the same irregularities as in his original complaint and adding the allegation, "[A] recount herein, as a result of the above described irregularities, will change the result of the election herein."

Gummersheimer filed a response to the amended petition, denying that a recount would change the outcome of the election and including, inter alia, the following affirmative defenses: (1) the ballots without an election judge's initials on them should be counted in order to "avoid the unconstitutional disenfranchisement of the said voters" and (2) the amended petition "is time-barred as having been filed after the statutory deadline."

On November 18, 1997, a hearing was held to recount the votes for coroner. At the conclusion of the hearing, DeFabio and Gummersheimer stipulated to the total number of votes for each party in each precinct recounted, and they stipulated to the number of uninitialed ballots in each precinct. The trial court took under advisement its rulings on ballots upon which the parties could not agree, including the question of the effect of the uninitialed ballots.

On December 1, 1997, DeFabio filed a motion for summary judgment. In the motion, DeFabio alleged that as a result of the recount it was stipulated as follows:

"A. Monroe County Precinct # 2— 524 votes were uninitialled [sic][,] and of those, 212 were cast for DeFabio and 290 were cast for Gummersheimer. [The parties also agreed that an additional 19 votes in that precinct should not be counted, and the court ruled that an additional three ballots would not be counted, for reasons other than they lacked judge's initials.]

B. Monroe County Precinct # 11— 1 vote was uninitialled [sic] and it was cast for DeFabio.

C. Monroe County Precinct #23— 16 votes were uninitialled [sic][;] 6 had been cast for DeFabio and 10 for Gummersheimer.

D. Monroe County Precinct #24— 42 votes were uninitialled [sic][;] 28 had been cast for Gummersheimer and 14 for DeFabio."

DeFabio alleged that there was no genuine issue of material fact because the legal effect of uninitialed ballots is that they may not be counted, pursuant to both the Election Code (10 ILCS 5/1-1 et seq. (West 1996)) and case law.

Gummersheimer filed a response to the motion for summary judgment, alleging that there was a genuine issue of material fact as to the legal effect of the uninitialed ballots. Gummersheimer also filed a memorandum of law with seven affidavits attached. The affidavits were signed by witnesses whom Gummersheimer wanted to call to testify that the failure of the election judges to initial the ballots in precinct 2 was an unintentional mistake and that at least two registered voters who voted in precinct 2 did not notice the lack of initials on their ballots when they voted, even though both were both practicing attorneys.

On April 16, 1998, the trial court entered an order granting DeFabio's motion for summary judgment. The trial judge's order sets forth her reasoning, in relevant part, as follows:

"None of the ballots cast in Precinct # 2 were initialled [sic] by an election judge as required by the Election Code. 10 I.L.C.S. 5/24A-10(1)(b). The issue before the court is whether these uninitialled [sic] ballots from Precinct # 2 should be counted. * * *

After considering all relevant pleadings, memoranda[,] and argument[ ] and reviewing all relevant cases, the Court finds that there is no genuine issue of material fact, and Petitioner is entitled to summary judgment. The issue of whether uninitialled [sic] ballots can be counted has been considered several times in Illinois, and the decision in each case has been that ballots cast in person cannot be counted, while absentee ballots may be counted under certain circumstances. The Supreme Court has long held that initialling [sic] requirements for election judges are mandatory. [Citations.] * * *

* * *

Respondent seeks to present evidence to show the absence of fraud, the lack of knowledge of the voters, and the innocent mistakes of the election judges. The Supreme Court has held, however, that these issues are not relevant in determining whether to count uninitialled [sic] in-precinct ballots, as the initialling [sic] requirement is mandatory even in the absence of any fraud.

Respondent also urges this Court to apply a different standard because application of the long-settled rule would disenfranchise an entire precinct in this case. She asks this Court to balance the interests of a fair election against the possibility of disenfranchising an entire precinct with no showing of fraud. The parties and the Court have been unable to find any case in which the ballots for an entire precinct would be disregarded because of the application of the initialling [sic] requirement, but this Court will not apply a new standard in light of clear holdings from the Supreme Court finding the initialling [sic] requirement to be mandatory. In its previous holdings that the initialling [sic] requirement is mandatory for in-precinct ballots, the Supreme Court clearly balanced the importance of every individual's right to vote against the interest in preserving the integrity of an election. Is that balance changed if the 524 disenfranchised voters comprise the entire voting population of the precinct, as they do in this case, or a small percentage of the voting population, as in McDunn [v. Williams, 156 Ill.2d 288, 189 Ill.Dec. 417, 620 N.E.2d 385 (1993)]? This court does not believe so. It is never desirable to disenfranchise a voter, but the integrity of the election must be preserved.

* * *

For the reasons stated above, the Court finds that the ballots cast in Monroe County Precinct # 2 cannot be counted. The vote totals after this finding are:

Petitioner Leonard DeFabio 5425 Respondent Julie Gummersheimer 5333.

This Court does not declare Petitioner to be the winner at this time, but reserves jurisdiction to so order after the Respondent's tome [sic] to request a recount." (Emphasis in original.)

On April 24, 1998, Gummersheimer filed a petition for a recount of 10 additional precincts, which the trial court allowed. On October 10, 1998, the parties filed a stipulation regarding the recount of the additional precincts. After a hearing on November 9, 1998, the trial court entered an order finding that DeFabio's first amended complaint was not time-barred and that the final number of votes cast was 5,341 for DeFabio and 5,271 for Gummersheimer. Based upon the totals, the Court declared DeFabio to be the winner of the 1996 election for Monroe County coroner. The court stayed enforcement of its order for 21 days. Gummersheimer appealed the trial court's decision, and on November 25, 1998, this court granted Gummersheimer's emergency motion for stay pending the appeal.

ANALYSIS

Gummersheimer first argues that the trial court erred by finding that DeFabio's amended petition for election contest was not time-barred. DeFabio was required, pursuant to section 23-20 of the Election Code (10 ILCS 5/23-20 (West 1996)), to file his petition for election contest within 30 days after Gummersheimer was declared to be the winner of the coroner's race. In that petition,...