McCarthy v. Streit

• Court: Appellate Court of Illinois
• Writing for the Court: O'CONNOR
• Citation: McCarthy v. Streit, 182 Ill.App.3d 1026, 538 N.E.2d 873, 131 Ill.Dec. 498 (Ill. App. 1989)
• Decision Date: 08 May 1989
• Docket Number: No. 89-0127,89-0705 and 89-0706,89-0127
• Parties: , 131 Ill.Dec. 498 Joseph J. McCARTHY, Maureen Murphy, Robert Telander, Rick Ruggiero, Herb Elzinga, David Gallagher, Joseph Donahue, George Vlasis, Mary Carol Zieler, and Geoff Layhe, Anton Bejcek, James Sexton, Pamela Fraser, Arthur Bliss, Jerome Gibbons, Maurice Glens, Jolene Churak, Mark Marzullo, George Johnson, Mary Bliss, Florence Bejcek, Laverne Glens, Plaintiffs-Appellants, v. Robert STREIT, individually and in his official capacity as Worth Township Republican Committeeman and Ralph Rehnquist, David J. Looby IV, Violet Rowe, individually and in their official capacities as Caucus Election Judges, Defendants-Appellees. Joseph DONAHUE, George P. Vlasis II and Dave Gallagher, Petitioners-Appellants, v. Raymond F. MURPHY, Harry Dinaso and Marvin C. James, Objectors; Worth Township Officers Electoral Board, Michael Levinson, Chairman; Daniel P. Madden, Member, and Gilbert L. Berman, Member, Respondents-Appellees. TIRaymond F. Murphy, Harry Dinaso and Marvin C. James, Cross-Petitioners and Appellees; Joseph J. McCarthy, Maureen Murphy, Richard Nick Ruggiero, Robert H. Telander and Herb Elzinga, Township Choice Party Candidates, Cross-Respondents-Appellants; Ray Heaster; Worth Township Electoral Board, Michael Levinson, Chairman, Daniel P. Madden, Member, and Gilbert L. Berman, Member, Cross-Respondents). Robert J. STREIT, Kevin F. Morgan, Joseph A. Murray, Marvin C. James, Michael R. Davies, Russell J. Miller, Kathleen M. Spencer and Harry A. Dinaso, Petitioners-Appellees, v. Arthur BLISS, Respondent-Appellant (Worth Township Electoral Board, William Luking, Chairman, Thomas Johnson Member, and Ian Levin, Member, Respondents).

Page 873

538 N.E.2d 873

182 Ill.App.3d 1026, 131 Ill.Dec. 498

Joseph J. McCARTHY, Maureen Murphy, Robert Telander, Rick

Ruggiero, Herb Elzinga, David Gallagher, Joseph Donahue,

George Vlasis, Mary Carol Zieler, and Geoff Layhe, Anton

Bejcek, James Sexton, Pamela Fraser, Arthur Bliss, Jerome

Gibbons, Maurice Glens, Jolene Churak, Mark Marzullo, George

Johnson, Mary Bliss, Florence Bejcek, Laverne Glens, Plaintiffs-Appellants, v. Robert STREIT, individually and in his official capacity as

Worth Township Republican Committeeman and Ralph Rehnquist,

David J. Looby IV, Violet Rowe, individually and in their

official capacities as Caucus Election Judges, Defendants-Appellees.

Joseph DONAHUE, George P. Vlasis II and Dave Gallagher, Petitioners-Appellants, v. Raymond F. MURPHY, Harry Dinaso and Marvin C. James,

Objectors; Worth Township Officers Electoral Board, Michael

Levinson, Chairman; Daniel P. Madden, Member, and Gilbert

L. Berman, Member, Respondents-Appellees. TIRaymond F.

Murphy, Harry Dinaso and Marvin C. James, Cross-Petitioners

and Appellees; Joseph J. McCarthy, Maureen Murphy, Richard

Nick Ruggiero, Robert H. Telander and Herb Elzinga, Township

Choice Party Candidates, Cross-Respondents-Appellants; Ray

Heaster; Worth Township Electoral Board, Michael Levinson,

Chairman, Daniel P. Madden, Member, and Gilbert L. Berman,

Member, Cross-Respondents).

Robert J. STREIT, Kevin F. Morgan, Joseph A. Murray, Marvin

C. James, Michael R. Davies, Russell J. Miller, Kathleen M. Spencer and Harry A. Dinaso, Petitioners-Appellees, v. Arthur BLISS, Respondent-Appellant (Worth Township Electoral

Board, William Luking, Chairman, Thomas Johnson

Member, and Ian Levin, Member, Respondents).

No. 89-0127, 89-0705 and 89-0706.

Appellate Court of Illinois First District, First Division.

May 8, 1989.

Odelson & Sterk, Ltd., Evergreen Park (Mathias W. Delort, Burton S. Odelson, of counsel), for petitioners-appellants & cross-respondents-appellants in 89-0705.

Michael C. Moses, Chicago, for respondent-appellees & cross-petitioners-appellees in 89-0705.

Robbins, Rubinstein, Salomon & Greenblatt, Ltd., Chicago (Robert M. Winter, of counsel), for appellee Raymond Murphy in 89-0705.

Odelson & Sterk, Ltd., Evergreen Park (Mathias W. Delort, Burton S. Odelson, of counsel), for respondent-appellant Arthur Bliss in 89-0706.

Michael C. Moses, Chicago, for petitioners-appellees in 89-0706.

Rosenthal, Murphey, Coblentz, and Janega, Chicago (John Murphey, of counsel), for Worth Township Electoral Boards in Nos. 89-0705 and 89-0706.

Justice O'CONNOR delivered the opinion of the court:

These consolidated appeals arose from events occurring at a Republican Party caucus held in Worth Township on January 10, 1989, and concerning the April 4, 1989 Township elections. By the trial court's order in No. 89 CO 77, petitioners Robert J. Streit, Kevin F. Morgan, Joseph A. Murray, Marvin C. James, Michael R. Davies, Russell J. Miller, Kathleen M. Spencer and Harry A. Dinaso (the "Streit Slate") were ordered to be placed on the ballot as the Republican candidates for various Worth Township offices to be elected in the April 4, 1989 election. The effect of that order was to deny a place on the ballot to a slate of Republican candidates including Joseph J. McCarthy, Maureen Murphy, Richard Nick Ruggiero, Robert Telander, Ray Heaster and Herb Elzinga (the "McCarthy Slate").

The "McCarthy Slate" having been excluded from the ballot, its candidates then formed a new political party, "The Township Choice Party." Objections were filed to their candidacies on the basis that they had participated in an established political party's caucus and were therefore statutorily precluded from third-party candidacy. By its order in No. 89 CO 62, the trial court ordered that eight of the nine candidates of the Township Choice Party be removed from the ballot.

The following issues are raised on appeal: first, whether the trial court was correct in finding that the first electoral board's decision to strike the certificate of nomination of the "Streit Slate" created vacancies which could be filled by the Republican committeeman with candidates of his choice, and second, whether the trial court erred in removing five candidates of the "Township Choice Party" from the ballot. We answer both questions in the affirmative.

A statement of the facts discloses a strange series of events in the Township of Worth's nomination process.

In Illinois, in township elections, an established political party may still nominate by way of party caucuses rather than primary election is still permissible. (Ill.Rev.Stat.1987, ch. 139, par. 59a.) Pursuant to this section of the Election Code, Republican committeeman Robert Streit chose to nominate candidates by caucus rather than by primary election. The caucus was held on January 16, 1989.

Committeeman Streit presided at the caucus. As previously noted, two slates were nominated, the "Streit Slate" and the "McCarthy Slate." Following the voice vote, permissible under Section 6A-1.1 (Ill.Rev.Stat.1987, ch. 139, par. 59a.1), the caucus judges declared the "Streit Slate" the winners. Streit then filed a certificate of nomination naming himself and his running mates the official candidates of the Republican Party.

McCarthy and those on his slate then filed a three count action in the circuit court of Cook County, McCarthy v. Streit, No. 89 CO 10. Count I sought a declaratory judgment that the caucus was improperly administered and that the "McCarthy Slate" had won the caucus and an injunction prohibiting Streit from filing the allegedly false certificate of nomination. Count II sought similar injunctive and declaratory relief as well as monetary damages and attorney fees pursuant to 42 U.S.C. section 1988. Count III sought a declaratory judgment that the use of a voice vote at the caucus violated the plaintiffs' right to a secret ballot as guaranteed under the Illinois Constitution, article III, section 3.

A hearing was held on the plaintiffs' motion for a temporary restraining order on January 12, 1989. The trial court dismissed the complaint on the basis that the matter was a political question and therefore not justiciable. Plaintiffs sought an expedited appeal (McCarthy v. Streit, 182 Ill.App.3d 1026, --- Ill.Dec. ----, 538 N.E.2d 873, Ill.App.Ct. 89-0127) which was denied, in effect mooting the case as the April 4 election would have passed before the appellate court would have reviewed the case on its merits.

Streit then filed a certificate of nomination. Arthur Bliss and others filed objections to the "Streit Slate" on the basis that the certificate did not accurately reflect the result of the Worth Township Republican Caucus. On February 20, 1989, the electoral board impaneled to consider the matter sustained the objections, declared the nomination of the Streit Slate to be invalid and declared that those on the slate not be certified on the printed ballots for the April 4, 1989 election. (No. 89-WTEB-7.) No one appealed from that electoral board's decision.

On February 27, 1989, the Republican caucus reconvened and by resolution renamed the "Streit Slate" as the Republican Party's candidates for the April 4, 1989, general election for Worth Township offices. The resolutions alleged that the first electoral board decision caused "vacancies in nomination" which Streit, as the Republican committeeman, was empowered to fill. Arthur Bliss filed a second set of objections to these nominations, seeking to have the resolutions to fill the vacancies declared invalid.

A second electoral board was named and on March 7, 1989, sustained the objections to the new nominations and ordered that the candidates submitted for the purpose of filling vacancies caused by the first electoral board action not be printed on the April 4, 1989, ballot as the Republican candidates. The "Streit Slate" filed a petition for judicial review of this March 7, 1989, action of the second electoral board. On March 13, 1989, the circuit court of Cook County reversed the second electoral board's decision and ordered the Streit Slate printed on the April 4, 1989, election ballot for Worth Township.

Having been thus far excluded from the ballot, the "McCarthy Slate" decided to pursue a third-party bid under the newly formed "Township Choice Party." Objections were filed (cases Nos. 89 WTEB-5 and 89 WTEB-6) alleging that McCarthy and his running mates could not pursue third-party bids as they had "participated" at the Republican caucus and were therefore precluded from participating as third-party candidates under Section 6A-1.1 (Ill.Rev.Stat.1987, ch. 139, par. 59a.1).

The Worth Township Electoral Board held a consolidated evidentiary hearing on the objections. Incumbent Supervisor McCarthy testified that he attended the caucus and greeted people he knew but did not sign in, vote, make any motions or in any way encourage or discourage his name from being put into nomination. The unrebutted testimony of nominees Murphy, Ruggiero and Elzinga was to the same effect. Incumbent Trustee Robert Telander, also on the "McCarthy Slate", did not attend the caucus.

The Worth Township officers electoral board conducted extensive hearings after which it ruled that trustee candidates Joseph Donahue, George P. Vlasis II and David Gallagher had participated at the Republican caucus and were therefore precluded from third-party candidacy. The Board found, however, that Joseph McCarthy, Maureen Murphy, Richard Ruggiero, Robert Telander, Ray Heaster and Herbert Elzinga had not participated at the caucus and therefore were not precluded from third-party candidacy. The basis for the Board's decision to remove Donahue, Vlasis and Gallagher was that each had signed an affidavit at the caucus which included a disclaimer that signing in constituted participation and would preclude an individual signing from filing thereafter as a third-party candidate. The other candidates had...