McDunn v. Williams
| Decision Date | 20 March 1990 |
| Citation | 187 Ill.Dec. 671,618 N.E.2d 262,247 Ill.App.3d 935 |
| Parties | , 187 Ill.Dec. 671 Susan J. McDUNN, Petitioner-Appellee, v. James H. WILLIAMS, Respondent-Appellant (The Board of Election Commissioners for the City of Chicago, Michael Hamblett, Arnette Hubbard and Raymond Jagielski, Commissioners, individually and as members of said Board, Stanley T. Kusper, Jr., Cook County Clerk, The Cook County Canvassing Board for the |
| Court | United States Appellate Court of Illinois |
William J. Harte, Ltd., Richard Flowers, Chicago (William J. Harte, Richard Flowers, Joseph E. Tighe, Cortney C. Nottage, of counsel), for respondent-appellant.
Lavelle, Holden & Juneau, Ltd., Oak Park (Michael E. Lavelle, of counsel), for petitioner-appellee.
This is the second time this case is presented to this court for review. The facts leading to the first appeal were previously set out in McDunn v. Williams (1990), 204 Ill.App.3d 332, 149 Ill.Dec. 791, 562 N.E.2d 255. ("McDunn I"). In that case we reversed Judge Joseph Schneider's ruling that Susan J. McDunn, the petitioner, had not timely filed her election contest petition and remanded the case to the trial court for further proceedings. We will set out the additional pertinent facts which have occurred since the first appeal.
After this court reversed the trial court on September 28, 1990, in McDunn I, respondent, James H. Williams, filed a petition for leave to appeal with the Illinois Supreme Court which was denied on October 24, 1990. (McDunn v. Williams (1990), 135 Ill.2d 558, 151 Ill.Dec. 384, 564 N.E.2d 839.) On October 30, 1990, the parties returned to the trial court before Judge Michael J. Murphy who had been assigned to the case. On that date, Judge Murphy ordered the parties to prepare for argument on a motion to dismiss McDunn's complaint filed by Williams pursuant to section 2-615 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-615), as well as to prepare for trial in the event the motion was denied. On October 31, 1990, the trial court found that McDunn's complaint was sufficient in law and denied the motion to dismiss. Accordingly, the trial court ordered that McDunn would present her case on November 2, 1990. On November 5, 1990, McDunn closed her case and the matter was continued to November 19, 1990, for Williams to present his evidence.
On November 5, 1990, the eve of the general election, the ballots had been printed with Williams' name as the unopposed candidate of the Democratic Party for the office of Judge of the Circuit Court, Cook County Judicial District to fill the vacancy of Judge Roger J. Kiley, Jr. On that date, the trial court entered an order that provided, inter alia:
However, no order was ever entered directing the CBEC to rescind its March 1990 and April 1990 declarations of Williams as the winner of the Democratic primary or to strike his name from the ballot.
On November 6, 1990, the general election was held. There were no write-in candidates. On November 13, 1990, the CBEC filed its Statement of the Results of the Canvass of the Election Returns with the Clerk of the Circuit Court of Cook County indicating, inter alia, that 163,022 people in the City of Chicago had voted a straight Democratic Party ticket. However, in the CBEC's statement, instead of listing a winner for the Kiley vacancy, it stated: "PROCLAMATION WITHHELD DUE TO COURT ORDER."
On November 20, 1990, Harry G. Comerford, Chief Judge of the Circuit Court of Cook County, sent Williams a letter congratulating him on his election as a Judge of the Circuit Court of Cook County and instructing him where to take the oath of office. On November 26, 1990, Governor James R. Thompson and Secretary of State Jim Edgar executed and issued their Proclamation of the Election of Judges wherein Williams was proclaimed, subject to litigation, the person elected to fill the Kiley vacancy. On December 3, 1990, Williams presented himself before Chief Judge Comerford and executed an oath of office.
On December 7, 1990, the trial court issued a memorandum decision ordering a full recount of all the ballots in the March 1990 Democratic Primary Election. It was not until November 15, 1991, that the CBEC filed a complete and revised The CBEC, in conducting its recount, could not locate ballots for eight precincts in the City of Chicago. Consequently, the CBEC was forced to rely upon precinct reports, not the actual ballots from those eight precincts, in order to tabulate its results.
The recount results showed that Williams received a total of 106,473 votes and McDunn received a total of 106,274 votes. These figures included both votes from the missing eight precincts and ballots uninitialed by election judges in violation of election laws. The precinct reports from the eight missing precincts showed the vote totals to be 302 for Williams and 279 for McDunn. The uninitialed ballots totaled 1,519 for Williams and 1,153 for McDunn. If the uninitialed ballots are subtracted, Williams is left with 104,954 votes and McDunn is left with 105,121 votes. It is important to note that both parties stipulated that there were no allegations of fraud before the trial court. However, Williams did not admit to the propriety of the vote totals for the eight missing precincts.
On March 23, 1990, Judge Murphy entered a memorandum decision and order ruling in favor of McDunn on the issue of the uninitialed ballots, and declared her to be the winner of the March 1990 Democratic primary election, and ordered her name to appear on the November 3, 1992, general election ballot as the Democratic Party's nominee to fill the Kiley vacancy. It is from that memorandum decision and order that Williams appeals to this court.
On appeal, Williams contends: (1) petitioner's election contest arising out of the March 1990 primary election was mooted by the November 1990 general election, where respondent ran unopposed, and by respondent's execution of the oath of office as an elected judge; (2) petitioner's election contest was not timely; (3) the doctrine of laches bars petitioner's election contest; (4) the trial court erred when it refused to count the uninitialed ballots cast by voters in the March 1990 primary election when, in the absence of fraud, those ballots were not initialed by the election judges as prescribed by the Election Code; (5) the trial court erred when it found in favor of petitioner on petitioner's election petition when the actual ballots for eight precincts could not be found; (6) the trial court was without the power to order that the petitioner's name be placed upon the November 3, 1992, general election ballot; (7) the trial court's refusal to recognize the effect of the November 1990 general election deprived respondent and those who voted for him of their constitutional rights of suffrage by nullifying their votes cast in that general election.
We first consider whether McDunn's election contest was mooted by the November 1990 general election, where Williams ran unopposed, and by his execution of the oath of office. "A case is considered moot when it presents or involves no actual controversy, interests or rights of the parties, or where the issues have ceased to exist." People v. Boclair (1987), 119 Ill.2d 368, 373, 116 Ill.Dec. 545, 553, 519 N.E.2d 437, 439, cert. denied, (1987), 484 U.S. 950, 108 S.Ct. 340, 98 L.Ed.2d 367, quoting People v. Redlich (1949), 402 Ill. 270, 278-79, 83 N.E.2d 736, 741.
Williams basic argument is that McDunn's contest is moot because (1) it is now over one and a half years since the November 1990 general election in which he was elected and (2) he has been sworn into office. Thus, the outcome of this case has no effect because Williams has already taken office.
For this proposition Williams relies upon Harris v. Education Officers Electoral Board of Community Consolidated School District (1990), 203 Ill.App.3d 917, 148 Ill.Dec. 898, 561 N.E.2d 204 and Bartos v. Chicago Board of Elections (1989), 191 Ill.App.3d 937, 139 Ill.Dec. 46, 548 N.E.2d 431. However, we believe such reliance is misplaced.
In Harris, the trial court upheld the decision of the election board to place a candidate's name on the ballot for election to the school board. The election took place, the candidate was elected and took office. Accordingly, the Harris court ruled that any decision it might render "would have no practical effect on the parties or the controversy between them." (203 Ill.App.3d at 920, 148 Ill.Dec. at 900, 561 N.E.2d at 206.)
In Bartos, the plaintiff attempted to file an intent to be a write-in candidate of the Solidarity Party for the office of mayor of the City of Chicago at a special mayoral election. The CBEC denied Bartos' request on the basis of its untimeliness. Bartos then filed a petition in the circuit court of Cook County seeking review of the CBEC's action. The trial court dismissed Bartos' petition. Subsequently, the election was held and the winner was installed as mayor. Consequently, the Bartos court held that no relief could be granted to the plaintiff and dismissed his appeal.
In the present case, unlike the situations in either...
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