Kaemmerer v. ST. CLAIR COUNTY ELECTORAL BD.

• Decision Date: 04 October 2002
• Docket Number: No. 5-02-0504.,5-02-0504.
• Citation: 267 Ill.Dec. 528,333 Ill. App.3d 956,776 N.E.2d 900
• Parties: Devin KAEMMERER, Neal Connors and Fernando Calvarese, Petitioners-Appellees, v. The ST. CLAIR COUNTY ELECTORAL BOARD and Its Members, Bob Haida, Bob Delaney, and C. Barney Metz, Respondents (Virgil Kemp, Appellant).
• Court: United States Appellate Court of Illinois

776 N.E.2d 900

333 Ill. App.3d 956

267 Ill.Dec. 528

Devin KAEMMERER, Neal Connors and Fernando Calvarese, Petitioners-Appellees, v. The ST. CLAIR COUNTY ELECTORAL BOARD and Its Members, Bob Haida, Bob Delaney, and C. Barney Metz, Respondents (Virgil Kemp, Appellant).

No. 5-02-0504.

Appellate Court of Illinois, Fifth District.

October 4, 2002.

Robert J. Sprague, Sprague & Urban, Belleville, for Appellant.

Stephen P. McGlynn, McGlynn & McGlynn, Belleville, for Appellees.

Presiding Justice MAAG delivered the opinion of the court:

This case involves an election contest challenging the nominations of Republican candidates for the offices of sheriff, county clerk, county treasurer, and member of the board of review in St. Clair County, Illinois. The St. Clair County Electoral Board (Electoral Board) heard objections to the candidates' nominating papers, sustained the objections, and determined that the candidates should not be placed on the ballot. The candidates petitioned for judicial review of the Electoral Board's decision. The St. Clair County circuit court found that several findings of the Electoral Board were against the manifest weight of the evidence, and the court reversed the board's decisions and ordered the county clerk to print the names of the nominees on the ballot for the November 2002 general election. The objector appeals.

The St. Clair County Republican Central Committee, through its executive committee, slated individuals to fill vacancies as party nominees for several St. Clair County offices. Devin Kaemmerer was selected as the Republican nominee for the board of review. Fernando Calvarese was selected as the Republican nominee for Sheriff. Neal Connors was selected as the Republican nominee for county treasurer. Larry Massey was selected as the Republican nominee for county clerk. On May 20, 2002, Stephen McGlynn, the Republican Party's county chairman, filed nominating papers with the St. Clair County clerk's office for each nominee. On May 24, 2002, Virgil Kemp (the objector) filed objections to each nominee with the Electoral Board. According to the record, the objector filed the same objections with regard to each nominee's nominating papers.

On May 30, 2002, the Electoral Board convened. The objections to the nomination of the candidate for county clerk, Larry Massey, were the first to be considered by the Electoral Board. Bob Delaney, the St. Clair County clerk, was a statutorily designated member of the Electoral Board. He recused himself from the proceeding because he is the Democratic nominee for the office of county clerk. Charles Suarez, the St. Clair County treasurer, was designated to serve in his place. However, Mr. Suarez is the Democratic nominee for the office of county treasurer. As previously noted, the Republican nominee for the office of county treasurer was subject to the same objections made against the nominee for county clerk. Stephen McGlynn, counsel for the candidates, objected to Mr. Suarez's service on the Electoral Board, on the grounds that the factual circumstances surrounding the nomination of and the objections to each candidate were identical and that Mr. Suarez would, in effect, be deciding the objections to his own opponent, if he were allowed to decide the objections to Mr. Massey's nomination. Mr. McGlynn asked that the chief judge of the St. Clair County circuit court appoint a person to sit in place of Mr. Suarez. The objection was denied and the hearing proceeded.

Elections by their very nature are adversarial proceedings and frequently involve hostility and claims of impropriety by opposing candidates. In most instances, these disputes do not involve illegality or impropriety but merely involve differences of opinion that are amplified by the heat of the debate. Fortunately, the Illinois legislature has provided us with a set of rules, the Illinois Election Code (Code) (10 ILCS 5/1-1 et seq. (West 1992)), that in most instances allows the parties to obtain an impartial resolution of these disputes through administrative and judicial mechanisms. We recognize that the Code does not provide for all the contingencies that may arise. In such cases the courts are regularly called upon to clarify statutory deficiencies.

In this case our task is to apply the relevant provisions of the Code as they relate to the disputed issues in this case. We must first consider a contention raised in the nominee's brief that challenges the composition of the Electoral Board.

The nominees claim that the participation of certain Electoral Board members was fundamentally unfair and violated the due process rights of the candidates. In order that we do not misstate their position, we quote from their brief as follows:

"There was no legitimate basis for Suarez and Delaney to serve on that panel. The Electoral Board should have allowed the Chief Judge of the Circuit Court to designate a person to serve who did not have a conflict. Even if the Electoral Board's reason for moving forward with a tainted panel was because it wanted to expedite the resolution of the challenges, speed and efficiency cannot trump the constitutional rights of Massey, Kaemmerer, Calvarese[,] and Connors."

Essentially, the nominees claim that the objections in all four election challenges were the same. Therefore, while a given Electoral Board member recused himself when the objections concerned the Republican opponent of that board member, that Electoral Board member did not recuse himself from considering the same objections against Republican nominees for the other offices at issue. It is on this basis that the nominees contend that the Electoral Board was improperly constituted in violation of their due process rights. In responding to questions from the bench during oral argument, the nominees' counsel, Mr. McGlynn, agreed that decisions of an improperly constituted Electoral Board are null and void.

Under certain situations, the rule of necessity requires that persons interested in the controversy also must serve as decision makers. United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980) (the United States Supreme Court held that it was required, under the rule of necessity, to hear and decide an action filed by the United States district judges in regard to the validity of federal statutes involving benefits for all Article III federal judges). In Will, the United State Supreme Court quoted from a 1870 decision of the Pennsylvania Supreme Court, which discussed the rule:

`"The true rule unquestionably is that wherever it becomes necessary for a judge to sit even where he has an interest—where no provision is made for calling another in, or where no one else can take his place—it is his duty to hear and decide, however disagreeable it may be.' Philadelphia v. Fox, 64 Pa. 169, 185, 1870 WL 8678 (1870)." Will, 449 U.S. at 214,101 S.Ct. at 480,66 L.Ed.2d at 405.

Fortunately, w...