Hoffer v. School Dist. U-46

• Decision Date: 14 June 1995
• Docket Number: No. 2-94-1126,U-46,2-94-1126
• Citation: 273 Ill.App.3d 49,652 N.E.2d 359
• Parties: , 209 Ill.Dec. 819, 101 Ed. Law Rep. 987 William A. HOFFER, et al., Petitioners-Appellees, v. SCHOOL DISTRICT, et al., Respondents-Appellees (Cassandra Skidmore, Intervenor-Appellant).
• Court: United States Appellate Court of Illinois

Page 359

652 N.E.2d 359

273 Ill.App.3d 49, 209 Ill.Dec. 819,

101 Ed. Law Rep. 987

William A. HOFFER, et al., Petitioners-Appellees, v. SCHOOL DISTRICT U-46, et al., Respondents-Appellees (Cassandra Skidmore, Intervenor-Appellant).

No. 2-94-1126.

Appellate Court of Illinois Second District.

June 14, 1995.

Paul A. Lewis, Aurora, Lisa M. Nyuli, Lewis Nyuli, P.C., Aurora, for Cassandra Skidmore.

Brady, McQueen, Martin, Collins Jensen, Elgin, Alfred Y. Kirkland, Jr., Elgin, for William Hoffer.

Seyfarth, Shaw, Fairweather Geraldson, Fay Hartog-Rapp, Chicago, for School Dist. U-46.

David R. Akemann, Kane County State's Atty., Patricia Johnson Lord, State's Attorneys Office Civil Div., Donald B. Leist, Asst. State's Atty., St. Charles, for Kane County, Lorraine Sava Kane County Clerk.

Jack O'Malley, State's Atty. of Cook County, Patricia M. Shymanski, Deputy State's Attorney-Chief, Civil Actions Bur., Patricia M. Moser, Asst. State's Atty., Sarah E. Wyton, Cook County State's Attorneys Office, Chicago, for David Orr Cook County Clerk.

Hultquist, Wiedel, Hudzik Russ, P.C., Michael C. Wiedel, Downers Grove, for DuPage County Board of Election Com'rs.

Justice THOMAS delivered the opinion of the court:

The petitioners, 15 registered voters residing within the boundaries of school district U-46, filed this action pursuant to the Election Code (10 ILCS 5/1-1 et seq. (West 1992)) seeking a recount and reversal of the result of a referendum at which a proposed increase in the allowable tax rate for school district U-46 was defeated by a margin of 22 votes. Cassandra Skidmore intervened in the action and filed a motion to dismiss the petition. Skidmore's motion was denied, and a recount was granted of certain precincts listed in the petitioners' petition. Following the recount, the trial court reversed the original election results and found that the referendum had passed by a majority of 18 "yes" votes. Skidmore then filed a counterpetition requesting a recount of additional precincts within the voting district. The trial court allowed the second recount and found that the referendum had passed by a majority of 3.02 "yes" votes. Skidmore appeals.

The record reveals that school district U-46 is comprised of 123 precincts spread across Cook, Du Page and Kane Counties. The district's board of education placed the following referendum on the ballot at the general primary election held on March 15, 1994:

"Shall the Board of Education of District U-46 * * * be authorized to increase the tax rate for educational purposes to 4.00% (percent) upon all taxable property in the district, as equalized or assessed, from the current authorized rate of 3.22% (percent)?"

The result certified by the canvassing board showed that the proposition failed by a slim margin of 22 votes, 15,290 "no" votes to 15,268 "yes" votes. Thereafter, the petitioners filed a verified petition contesting the election result and requesting a recount of 46 of the 123 precincts. The petition specified various mistakes, irregularities or discrepancies, which would either increase the number of "yes" votes or decrease the number of "no" votes. Specifically, the categories of alleged mistakes or irregularities consisted of: 62 uninitialed "no" ballots; miscounting in various precincts which if corrected would amount to a gain of 11 "yes" votes; 10 uncounted "hanging chad" ballots (ballots where square indicating choice was only partially punctured); 49 "no" ballots with extraneous markings; and one "no" ballot voted in the wrong precinct.

Skidmore filed a petition to intervene, which was granted. Skidmore then filed a motion to dismiss the recount petition contending that the petition alleged only random errors rather than fraud, and it was fatally defective in accounting for a relative increase in the "yes" votes without alleging facts foreclosing an offsetting relative increase in "no" votes if a full recount was done. The trial court denied Skidmore's motion and found that there was a reasonable likelihood that the recount would change the results of the election. Thereafter, recounts of the specified precincts were conducted on May 11, 1994, in the Du Page County precincts, on May 16, 1994, in the Kane County precincts, and on May 17, 1994, in the Cook County precincts.

A hearing was held on May 28, 1994, at which the actual ballots were introduced into evidence and various witnesses testified about election materials and the chain of custody of those materials. Various items were introduced into evidence, including ballot transfer cases, original computer tabulations from March 15, 1994, individual ballots from each county variously alleged by the parties to be uninitialed, extraneously marked ballots, and uncounted "hanging chad" ballots.

On June 9, 1994, the trial court entered an order finding that the recount showed a majority of 18 "yes" votes, rather than a majority of 22 "no" votes found by the original canvass. In so doing, the court found that all ballots had been properly preserved and that there was no fraud shown in the count of the election. The court allowed to be counted all the contested ballots with extraneous markings since there was no showing that the markings were made by the voter with the intention of identifying an individual ballot as would be required to disqualify the ballot. The court also ruled that it would refuse to count the absentee ballots of Christopher Warwick and Herman Rodriguez.

Thereafter, Skidmore filed a counterpetition seeking a recount of substantially all of the precincts in Du Page and Kane Counties which had not been included in the first recount filed by the petitioners. The petitioners filed a motion to dismiss the Skidmore counterpetition arguing that it was fatally defective in that it did not allege enough specific irregularities to satisfy the statutory standard of a "reasonable likelihood" of reversal of the election if the remaining precincts were counted. The petitioners also alleged that the trial court lacked jurisdiction to entertain the counterpetition because it was not filed by at least five voters and it was not timely. The trial court found that it had jurisdiction over the petition and that the allegations of the petition were sufficient to indicate that there was a reasonable likelihood that the recount would change the result of the election. Accordingly, the trial court ordered a recount of the remaining precincts listed in the counterpetition.

At the hearing following the recount, Du Page County supervisor of elections James Tamm and Kane County clerk Lorraine Sava testified about election procedure and the preservation of ballots and ballot material. Additionally, election judges Martha Anderson, Thomas Tamraz and Gertrude Brieschke testified about election procedure in Wayne precinct 30 of Du Page County, and in particular about 12 uninitialed absentee ballots cast in that precinct. Warwick and Rodriguez were also called to testify about the circumstances surrounding the casting of their absentee ballots.

After the hearing, the trial court entered an order finding that the combined results of the first and second recount showed a majority of 3.02 "yes" votes. The court noted that there was a difference between the number of ballots issued and cast and the number of ballots found at the recount in several precincts. As a result, the court made a fractional, pro rata adjustment to the total based on the applicable ratio of counted ballots for or against the measure in a given precinct. (See Boland v. City of La Salle (1938), 370 Ill. 387, 396-98, 19 N.E.2d 177.) The court found that a fractional adjustment of 2.51 "yes" votes and .49 "no" votes should be made. The court reconsidered its earlier decision with respect to the Warwick and Rodriguez ballots, and, after reviewing all the evidence, it concluded that they should be counted as two "yes" votes. The court further found that a group of 29 uninitialed ballots (22 "yes" votes and seven "no" votes) found in exhibits L2 and M2 could not be counted. The court ruled that 12 uninitialed ballots (exhibit M5) in Wayne precinct were absentee ballots and should be counted as 10 "yes" votes and 2 "no" votes. Finally, the court made some additional findings regarding extraneous markings, hanging chads, and other issues.

On appeal, Skidmore first argues that the trial court exceeded its authority in reversing the initial result of the election. Citing section 23-26 of the Election Code, she contends that the court could not simply reverse the result of the election in favor of the side with the most votes, but instead must declare the election a nullity.

We disagree. Section 23-24 of the Election Code provides that with respect to a "public question" referendum "any 5 electors of the State, or of the political subdivision or district, respectively, may contest the results of any such election" (10 ILCS 5/23-24 (West 1992)). The purpose of an election contest is to ascertain how many votes were cast for or against a measure and thereby ascertain the will of the people. Mayes v. City of Albion (1940), 374 Ill. 605, 609, 30 N.E.2d 416.

In Mayes, the referendum at issue related to the sale of alcoholic beverages. The result as canvassed showed that the proposition was defeated. Upon recount, however, the trial court determined that the measure had passed. On appeal, the supreme court affirmed the trial court's order which had changed the initial canvassed result of the election.

Section 23-26 of the Election Code provides:

"The judgment of the court in cases of contested election, shall confirm or annul the election according to the right of the matter; or, in case the contest is in relation to the election of some person to an office, shall declare as elected the person who shall appear to be duly elected." (Emphasis added.) (10 ILCS 5/23-26 (West 1992).)

A statute will not be construed to effect a change in the settled...