Gardner v. Mullins

• Decision Date: 24 September 2009
• Docket Number: No. 107707.,107707.
• Citation: 334 Ill.Dec. 617,234 Ill.2d 503,917 N.E.2d 443
• Parties: Carolyn GARDNER, Appellant, v. Margie MULLINS et al. (Theodore Biondo, Appellee).
• Court: Illinois Supreme Court

917 N.E.2d 443

234 Ill.2d 503

334 Ill.Dec. 617

Carolyn GARDNER, Appellant, v. Margie MULLINS et al. (Theodore Biondo, Appellee).

No. 107707.

Supreme Court of Illinois.

September 24, 2009.

John M. Nelson, Rene Hernandez and Daniel Lewandowski, all of Rockford, for appellant.

John J. Holevas and Joel M. Huotari, of Williams-McCarthy, LLP, Rockford, for appellee.

OPINION

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

INTRODUCTION

Section 25-11 of the Election Code requires that a vacancy in an elective county office be filled by appointment within 60 days of the vacancy's occurrence. 10 ILCS 5/25-11 (West 2006). Ordinarily, a person appointed to fill such a vacancy would serve the remainder of the original term. However, the appointment will be only until the next general election "if more than 28 months remain in the term." 10 ILCS 5/25-11 (West 2006). The question presented by this case is whether this 28-month remainder is calculated from the date the vacancy occurs or from the date a replacement is appointed. The trial court held that time is calculated from the date the vacancy occurs. The appellate court, in a summary order, reversed and held that the time is calculated from the date the replacement is appointed. For the following reasons, we now reverse the judgment of the appellate court and reinstate the judgment of the trial court.

BACKGROUND

Mary Ann Aiello, a member of the Winnebago County board (board), passed away on June 26, 2008. Her term was set to expire on December 6, 2010. Thus, at the time of her death, 29 months and 10 days remained in her term. Her death created a vacancy that, pursuant to statute, had to be filled by appointment within 60 days. 10 ILCS 5/25-11 (West 2006). On August 14, 2008, Theodore Biondo was appointed by the board to fill Aiello's vacant seat. By the time Biondo was appointed, 27 months and 22 days remained in Aiello's term.

The difference between the manners of calculating the time remaining in the term brings this case before the court. If the time remaining is to be judged from the time of the occurrence of the vacancy, more than 28 months remained and an election was necessary. If the time is measured from the time of the appointment, less than 28 months remained in the term and there was no need for an election.

On September 3, 2008, the Winnebago County Democratic Party filed with the Winnebago County clerk, Margie Mullins, the names of candidates for various offices that were to be placed on the ballot for the November 4, 2008, election. Among these names was the name of Carolyn Gardner. Gardner's name was submitted as the Democratic candidate to fill Aiello's seat for the remainder of her unexpired term. The Green Party did not submit a candidate for Aiello's seat. Biondo states that neither he nor the Winnebago County Republican Party submitted his name to be placed on the ballot, as they believed that he had been appointed to serve until the end of Aiello's term in 2010 because his appointment was for less than 28 months. Biondo states that this belief was "fostered by the advice of [Mullins] and of the Winnebago State's Attorney's Office." Biondo asserts that both Mullins and the State's Attorney's office informed him that because his appointment was for less than 28 months, he "need not, indeed that he could not file" to have his name placed on the ballot as a candidate for Aiello's seat.¹

Consistent with what Mullins told Biondo, and despite Gardner's name having been submitted as a candidate for Aiello's seat, Mullins refused to place Gardner's name on the ballot. Mullins stated that she would not place Gardner's name on the ballot because the length of time from Biondo's appointment to the end of Aiello's term was less than 28 months and, therefore, an election was not necessary. Thereafter, Gardner sought a writ of mandamus directing Mullins to place Gardner's name on the ballot.

On October 3, 2008, the trial court ruled in Gardner's favor and directed Mullins to place Gardner's name on the November 4 ballot as a candidate for Aiello's seat. After this order was entered, Biondo filed a petition to intervene in the case. This motion was granted over Gardner's objection. Biondo argued that his name should also be placed on the ballot. The trial court denied his motion. Thereafter, Biondo filed a motion to reconsider and a motion for a temporary restraining order to prevent the election for Aiello's seat from being held. The trial court denied Biondo's motions on October 27, 2008.

Two days later, on October 29, Biondo appealed the denial of his restraining order by filing a petition for interlocutory appeal as a matter of right pursuant to Supreme Court Rule 307 (188 Ill.2d R. 307). Gardner objected and filed a motion to dismiss the appeal, arguing that the appellate court lacked jurisdiction to hear Biondo's appeal. On November 3, 2008, the day before the election, the appellate court filed a summary order reversing the trial court's denial of Biondo's restraining order. The basis for the appellate court's judgment was that the 28-month time period of section 25-11 runs from the time of appointment, not from the time of vacancy. No. 2-08-1022 (unpublished order under Supreme Court Rule 23). Therefore, an election was not required and the restraining order should have been granted.

Because the appellate court order was entered the day before the scheduled election, there was not time to modify the ballots. Accordingly, the Winnebago County voters who resided in Aiello's district received ballots that asked them to cast a vote to fill Aiello's vacancy. Gardner was the only candidate on the ballot for this office. The parties represented that votes for Gardner were counted but that the results were not certified. Indeed, Biondo's counsel conceded that as Gardner was the only candidate on the ballot, she "won" the election, if such an election was required in the first instance.

Thereafter, Gardner filed a petition for leave to appeal to this court pursuant to Rule 315 (210 Ill.2d R. 315). In her petition, Gardner asserts that the appellate court erred in its interpretation of section 25-11 or, in the alternative, that the appellate court lacked jurisdiction to reverse the trial court's denial of Biondo's restraining order. For the reasons that follow, we reverse the appellate court's order and remand the cause to the trial court for further proceedings consistent with this opinion.

STANDARD OF REVIEW

There are two questions presented in this case. First, as a threshold matter, did the appellate court have jurisdiction to decide this case? Second, assuming that jurisdiction was present, was the appellate court's interpretation of section 25-11 proper? Both present questions of law and are, therefore, subject to de novo review. See Cook County Republican Party v. Illinois State Board of Elections, 232 Ill.2d 231, 327 Ill.Dec. 531, 902 N.E.2d 652 (2009).

ANALYSIS

I. Jurisdiction

We begin our analysis with Gardner's alternative argument that the appellate court lacked jurisdiction.

Gardner asserts that the appellate court lacked jurisdiction because Biondo brought his appeal pursuant to Supreme Court Rule 307. Rule 307 is titled "Interlocutory Appeals as of Right." 188 Ill.2d R. 307. Gardner asserts that this was an improper basis for Biondo's appeal, as there was nothing "interlocutory" about the appeal. She notes that the trial court had entered a final judgment in the case prior to Biondo's requesting a restraining order. Therefore, she argues that Rule 307 was inapplicable.

Biondo counters that he filed a motion to reconsider at the same time he filed the motion for a temporary restraining order and that both motions were denied at the same time in the same order. Therefore, he asserts that the appeal was allowed by Rule 307(d), as the motion for a restraining order was filed before the motion to reconsider was denied. 188 Ill.2d R. 307(d). Rule 307(d) provides an expedited time table for a reviewing court to consider "the granting or denial of a temporary restraining order or an order modifying, dissolving, or refusing to dissolve or modify a temporary restraining order." 188 Ill.2d R. 307(d).

Biondo's argument fails because Rule 307(d) is expressly limited to appeals that are interlocutory in nature. Biondo focuses his argument on the above-quoted language, which appears, in isolation, to provide a broad basis to appeal from the denial of any restraining order. However, this quotation is not complete. Following this quoted section, Rule 307(d) further states that an appeal brought under Rule 307(d) must also meet the requirements of Rule 307(a). 188 Ill.2d R. 307(d) ("review of * * * a temporary restraining order * * * as authorized in paragraph (a)"). Rule 307(a) in turn makes it clear that an appeal may be taken to the appellate court only "from an interlocutory order of court." 188 Ill.2d R. 307(a). Therefore, to properly bring an appeal regarding a temporary restraining order pursuant to Rule 307(d), that appeal must be interlocutory in nature.

In the present case, Biondo filed a motion for a temporary restraining order after final judgment on the case had been entered. Contrary to Biondo's argument, the filing of a motion to reconsider has no effect on the finality of an otherwise final judgment. See Stoneridge Development Co. v. Essex Insurance Co., 382 Ill.App.3d 731, 321 Ill.Dec. 114, 888 N.E.2d 633 (2008). Because final judgment had been entered, Biondo's appeal under Rule 307 was inappropriate as it was not interlocutory in nature.

However, despite Biondo's appeal having been brought pursuant to an improper rule, this does not divest the appellate court of jurisdiction in this case. The appellate court has jurisdiction to hear appeals of final judgments. Ill. Const.1970, art. VI, § 6. Because this appeal is from a final judgment, Biondo's appeal would have been proper if brought pursuant to Rule 301,...