DU PAGE COUNTY ELECTION COMM. v. State Bd. of Elections

• Decision Date: 11 December 2003
• Docket Number: No. 2-02-1163.,2-02-1163.
• Citation: 279 Ill.Dec. 695,800 N.E.2d 1278,345 Ill. App.3d 200
• Parties: The DU PAGE COUNTY ELECTION COMMISSION, Plaintiff-Appellee, v. The STATE BOARD OF ELECTIONS, and in their official capacity as board members only, Elaine Roupas, William M. McGuffage, David Murray, Phillip O'Connor, Wanda Radnour, John Keith, Jesse Smart, and Albert Porter, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

800 N.E.2d 1278

345 Ill. App.3d 200

279 Ill.Dec. 695

The DU PAGE COUNTY ELECTION COMMISSION, Plaintiff-Appellee, v. The STATE BOARD OF ELECTIONS, and in their official capacity as board members only, Elaine Roupas, William M. McGuffage, David Murray, Phillip O'Connor, Wanda Radnour, John Keith, Jesse Smart, and Albert Porter, Defendants-Appellants.

No. 2-02-1163.

Appellate Court of Illinois, Second District.

December 11, 2003.

Rehearing Denied January 9, 2004.

Lisa Madigan, Attorney General, Mary E. Welsh, Carl J. Elitz, Assistant Attorneys General, Chicago, for John Keith, William M. McGuffage, David Murray, Phillip O'Connor, Albert Porter, Wanda Radnour, Elaine Roupas, Jesse Smart, State Board of Elections.

Evelyn R. Pacino, Mary E. Dickson, Patrick K. Bond, Bond, Dickson & Associates, P.C., Wheaton, for Du Page County Election Commission.

Justice KAPALA delivered the opinion of the court:

Defendants, the State Board of Elections (the Board) and its members in their official capacity, appeal from the order of the circuit court granting declaratory judgment in favor of plaintiff, the Du Page County Election Commission. We reverse.

I. BACKGROUND

On January 17, 2002, defendants, in accordance with section 7-14 of the Illinois Election Code (Election Code) (10 ILCS 5/7-14 (West 2002)), certified the candidates for the March 19, 2002, general primary election ballot. The Election Code provides, in relevant part:

"Not less than 61 days before the date of the general primary the State Board of Elections shall meet and shall examine all petitions filled under this Article 7, in the office of the State Board of Elections. The State Board of Elections shall then certify to the county clerk of each county, the names of all candidates whose nomination papers or certificates of nomination have been filed with the Board and direct the county clerk to place upon the official ballot for the general primary election the names of such candidates in the same manner and in the same order as shown upon the certification." 10 ILCS 5/7-14 (West 2002).

The Election Code also provides for the same deadline with respect to when local election authorities must certify candidates for consolidated primaries. 10 ILCS 5/7-13.1 (West 2002). On January 30, 2002, Michael Bakalis, a democratic party candidate for governor listed on the January 17, 2002, certification, personally delivered a letter to the permanent branch office of the State Board of Elections indicating his desire to withdraw as a candidate for the democratic nomination for governor and requesting that his name not appear on the ballot. Defendants accepted Mr. Bakalis's withdrawal and issued an amended certification on February 1, 2002, omitting Mr. Bakalis's name.

On February 1, 2002, plaintiff sent a letter to defendants indicating that it refused to accept the amended certification because it felt that the withdrawal was untimely under section 7-12(9) of the Election Code (10 ILCS 5/7-12(9) (West 2002)), that it had no authority or obligation to accept defendants' amended certification, and that it would "not alter the ballot which * * * [had] already been sent to print [on January 30, 2002,] containing the name of Michael Bakalis." Section 7-12(9) of the Election Code states, in relevant part:

"Any person for whom a petition for nomination, or for committeeman or for delegate or alternate delegate to a national nominating convention has been filed may cause his name to be withdrawn by request in writing, signed by him and duly acknowledged before an officer qualified to take acknowledgments of deeds, and filed in the principal or permanent branch office of the State Board of Elections or with the appropriate election authority or local election official, not later than the date of certification of candidates for the consolidated primary or general primary ballot. No names so withdrawn shall be certified or printed on the primary ballot." 10 ILCS 5/7-12(9) (West 2002).

Since the date for certification had passed before Mr. Bakalis attempted to withdraw, plaintiff argued that his attempted withdrawal was untimely. Defendants responded that they believed that they had the authority to allow "permissive withdrawals."

On February 13, 2002, plaintiff filed a verified complaint for declaratory judgment against defendants. The complaint sought, inter alia, a declaration that section 7-12(9) establishes an absolute deadline by which a candidate may withdraw from an election, that there is no right of permissive withdrawal under the Election Code, and that plaintiff had no authority or obligation to change the ballot to conform with defendants' amended certification. Defendants asserted that they had the authority to accept Mr. Bakalis's withdrawal and to amend the certification pursuant to section 7-14, which states, in relevant part:

"The State Board of Elections or the county clerk, as the case may be, shall issue an amended certification whenever it is discovered that the original certification is in error." 10 ILCS 5/7-14 (West 2002).

According to defendants, the inclusion of the name of a candidate who has withdrawn, even after certification pursuant to section 7-14, causes a certification to be "in error" and, therefore, defendants have discretion to amend the certification under section 7-14.

Plaintiff filed a motion for an expedited briefing schedule in order to allow the parties to file "respective Motions for Summary Judgment" and so that the case could be decided before the election. However, on February 27, 2002, the court entered an agreed order which supplied a briefing schedule that ran beyond the election date. Consequently, while the case was pending, the general primary election took place as scheduled on March 19, 2002. As a result of plaintiff's refusal to abide by defendants' amended certification, the Du Page County ballot listed Michael Bakalis as a candidate for the democratic nomination for governor. From the votes cast in Du Page County, Mr. Bakalis was not the winner of the democratic nomination for governor. On September 23, 2002, in disposing of the matter, the trial court entered an order stating the following:

"(1) the withdrawal provision of the [E]lection [C]ode, 10 ILCS 5/7-12(9), provides an absolute deadline for a candidate to file a petition for withdrawal from an election; and (2) there is no right of permissive withdrawal under the Election Code for a candidate after the date of certification set forth in the Election Code 10 ILCS 5/7-13.1 and 10 ILCS 5/7-14; and (3) an `error' as defined in the Election Code means a mistake and that a candidate's withdrawal after the date for certification does not constitute an `error'; and (4) nothing herein is intended to otherwise restrict the State Board's authority under the Election Code to amend certifications."

Defendants filed a timely appeal from the circuit court's order.

II. DISCUSSION

A. Jurisdiction/Mootness

As a preliminary matter, we must determine whether the issues in this case became moot after the general primary election was held, since the circuit court's order was entered after the election. A case is moot when there exists no present controversy; that is, when a decision would have no practical effect on the existing controversy. LaSalle National Bank, N.A. v. City of Lake Forest, 297 Ill.App.3d 36, 43, 231 Ill.Dec. 651, 696 N.E.2d 1222 (1998). An issue can become moot when it is pending on appeal. In re Estate of Wellman, 174 Ill.2d 335, 353, 220 Ill.Dec. 360, 673 N.E.2d 272 (1996). If an issue is moot, the court lacks jurisdiction to resolve the claim. Midwest Central Education Ass'n v. Illinois Educational Labor Relations Board, 277 Ill.App.3d 440, 448, 213 Ill.Dec. 894, 660 N.E.2d 151 (1995).

Plaintiff is seeking a declaratory judgment regarding defendants' ability to require it to comply with the amended certification issued on February 1, 2002, and remove Mr. Bakalis's name from the ballot. The purpose of a declaratory judgment action is to fix the rights of the parties before there has been an irrevocable change of position. Rockford Title Co. v. Staaf, 275 Ill.App.3d 476, 480, 211 Ill. Dec. 296, 654 N.E.2d 1106 (1995). However, after the March 19, 2002, general primary election was held, a court could no longer fix the rights of the parties, as the election removed the controversy. Consequently, the issues were, and continue to be, moot.

However, defendants contend, and plaintiff does not dispute, that the substantial public interest exception to the mootness doctrine is applicable in this case. Nevertheless, jurisdiction is fundamental to a court's ability to render a decision, and we must consider jurisdiction even if the parties agree it is present. Department of Public Aid ex rel. K.W. v. Lekberg, 295 Ill.App.3d 1067, 1069, 230 Ill.Dec. 416, 693 N.E.2d 894 (1998). Since the doctrine of mootness is jurisdictional in nature (Midwest Central Education Ass'n, 277 Ill. App.3d at 448, 213 Ill.Dec. 894, 660 N.E.2d 151), we must consider mootness despite the fact that plaintiff does not dispute jurisdiction.

The substantial public interest exception to mootness provides that a moot issue can be considered by the court if (1) the question is of a substantial public nature; (2) there is a need for an authoritative decision to provide future guidance; and (3) the situation is likely to recur. In re J.B., 204 Ill.2d 382, 387, 273 Ill.Dec. 827, 789 N.E.2d 1259 (2003). Illinois courts construe the public interest exception very narrowly and require that each criterion be met. Sharma v. Zollar, 265 Ill.App.3d 1022, 1028, 202 Ill.Dec. 868, 638 N.E.2d 736 (1994). This exception is applicable only when there is an extraordinary degree of public concern and the public interest is very clear. Sharma, 265 Ill.App.3d at 1028,202 Ill.Dec. 868,638 N.E.2d 736.

This case involves the construction of several sections of the Election Code. The outcome of this case will...