McDunn v. Williams

• Decision Date: 26 August 1993
• Docket Number: No. 74613,74613
• Citation: McDunn v. Williams, 620 N.E.2d 385, 156 Ill.2d 288, 189 Ill.Dec. 417 (Ill. 1993)
• Parties: , 189 Ill.Dec. 417 Susan J. McDUNN, Petitioner, v. James H. WILLIAMS et al., Respondents.
• Court: Illinois Supreme Court

Page 385

620 N.E.2d 385

156 Ill.2d 288, 189 Ill.Dec. 417

Susan J. McDUNN, Petitioner, v. James H. WILLIAMS et al., Respondents.

No. 74613.

Supreme Court of Illinois.

Aug. 26, 1993.

Rehearing Denied Oct. 4, 1993.

[156 Ill.2d 291] [189 Ill.Dec. 420] Michael E. Lavelle, Lavelle, Juneau & McCollom, Ltd., Oak Park (Kevin E. Bry, of counsel), for petitioner.

William J. Harte, Ltd., and Richard Flowers, Chicago (Joseph E. Tighe, and Courtney C. Nottage, of counsel), for respondents.

Rosalyn B. Kaplan, Sol. Gen., Chicago, for intervenor Roland W. Burris, Atty. Gen. of the State of Ill.

Justice NICKELS delivered the opinion of the court:

Petitioner, Susan J. McDunn (McDunn), filed an election contest in the circuit court of Cook County pursuant to section 7--63 of the Election Code (Ill.Rev.Stat.1989, ch. 46, par. 7--63) to challenge the results of the March 20, 1990, Democratic primary election to fill the vacant circuit court position created by the resignation of Judge Roger J. Kiley, Jr. Respondent, James H. Williams (Williams), had been declared the winner of the 1990 Democratic primary election, and was placed on the November 6, 1990, general election ballot to fill Kiley's vacancy. No other candidate ran for Kiley's vacancy in the 1990 general election. McDunn's contest of the primary election was not resolved until March 23, 1992, during which time the 1990 general election was held. Due to the pending election contest, the trial court suppressed the results of the 1990 general election to fill Kiley's vacancy. McDunn was eventually declared the winner of the 1990 primary, and the trial court ordered that she run in the 1992 general election to fill Kiley's vacancy. Williams appealed. The appellate court affirmed the trial court's order finding McDunn to be the winner of the 1990 primary, but further ordered that Williams continue to serve as a circuit court judge. (247 Ill.App.3d 935, 187 Ill.Dec. 671, 618 N.E.2d 262.) Neither party appealed the appellate court's decision, and the November 3, 1992, general election was held with McDunn's running unopposed to fill Kiley's vacancy. On November 18, 1992, this court, asserting its supervisory authority (Ill. Const.1970, art. VI, § 16), ordered the case docketed in the supreme court as a matter of great importance. The August 27, 1992, order of the appellate court was recalled, and the trial court's order was stayed, until further order of this court. The Attorney General was allowed to intervene.

BACKGROUND

The 1990 Primary

McDunn and Williams were two of six candidates who ran in the March 20, 1990, primary election to become the Democratic Party's candidate for the office of judge of the circuit court, Cook County Judicial District (within the City of Chicago), created by the resignation of Judge Roger J. Kiley, Jr. Williams had previously been appointed on June 28, 1989, by this court to occupy Kiley's vacancy until the vacancy was filled for a term. (See Ill. Const.1970, art. VI, § 12(c).) On March 27, 1990, the Chicago board of elections announced that Williams had received the highest vote total out of all the Democratic candidates for Kiley's vacancy. On April 9, 1990, the State Board of Elections certified that Williams had been nominated by the Democratic Party as its candidate for the vacant judicial position, having received 106,229 votes. The State Board of Elections certified that McDunn received the second highest number of votes with 106,049.

McDunn's Petition

On April 19, 1990, McDunn filed a "Verified Petition to Contest Election" in the circuit court of Cook County pursuant to section 7--63 of the Election Code (Ill.Rev.Stat.1989, ch. 46, par. 7-63). McDunn based her petition on a discovery recount of 25% of the precincts, which she had previously filed with the Chicago board of elections on April 2, 1990, pursuant to section 22--9.1 of the Election Code (Ill.Rev.Stat.1989, ch. 46, par. 22--9.1). McDunn's petition alleged that the discovery recount revealed incorrect totals for both her and Williams, and that corrected vote totals would reveal she received the majority of votes cast in the 1990 primary.

On April 27, 1990, McDunn filed an amended "Petition For Election Contest, Complaint for Declaratory Judgment, and Injunctive Relief and Damages." In this petition, McDunn realleged her initial complaint in count I, and further asked in count II that the court enjoin the State Board of Elections from certifying the names of candidates until the Cook County canvassing board certified corrected vote totals to the State Board. The trial court allowed petitioner to file this amended complaint instanter on April 27, 1990.

Williams' Motion to Dismiss

On May 16, 1990, Williams filed a motion to dismiss McDunn's petition. The motion alleged, inter alia, that petitioner's election contest was not timely filed. The trial court agreed with Williams, and on June 29, 1990, dismissed McDunn's entire petition.

On July 26, 1990, after filing a motion for a direct appeal to this court, which was denied, McDunn filed an appeal with the appellate court and requested an expedited schedule for disposition. The appellate court reversed the trial court's dismissal of McDunn's petition on September 28, 1990. The appellate court's mandate was stayed, however, while Williams filed a petition for leave to appeal with this court. This court denied Williams' petition for leave to appeal, and McDunn's case was reinstated on October 30, 1990. McDunn v. Williams (1990), 204 Ill.App.3d 332.

McDunn's Case and the November 1990 General Election

On October 31, 1990, the trial court denied another motion by Williams to dismiss McDunn's petition, and set a trial date of November 2, 1990, at which time McDunn would present her evidence to show that a recount was necessary. The trial court ordered Williams to present his evidence no later than November 5, 1990.

McDunn concluded her evidence on November 5, 1990, and Williams moved for a directed finding against her. The court denied Williams' motion and found that petitioner had established a "reasonable likelihood the recount will change the results of the election." Williams then called a witness, but asked for a continuance to conclude his presentation of evidence. The trial court continued the matter over McDunn's objection until November 19, 1990. However, the trial court, concerned about the possibility that the November 6, 1990, general election could make McDunn's contest moot, and after a discussion with the parties, entered the following order:

"The election to fill the vacancy of Roger Kiley shall proceed. The results of the election shall be suppressed by the CBEC [Chicago Board of Elections Commission] until further order of court. The suppression shall enjoin the CBEC from preparing an abstract to be forwarded to any party or government agency without order of court. The CBEC may tabulate the results during the counting period, on election night, but shall not issue any announcement as to a winner until further order of court."

The November 6, 1990, general election to fill Kiley's vacancy was held with Williams' running unopposed, but the results were suppressed pursuant to the trial court's order. No announcement was made concerning the result of the election.

On November 30, 1990, Williams filed an emergency motion in the appellate court to stay the trial court's November 5, 1990, injunction. This motion was denied on December 3, 1990, the same day Williams attended the swearing-in ceremony for newly elected judges and executed an oath of office.

McDunn's election contest resumed on December 7, 1990, and the trial court, after hearing arguments and motions, agreed with McDunn that there existed "a reasonable likelihood of success that a recount of the ballots cast * * * will change the results of the election." The court ordered the recount to begin on January 3, 1991.

The Recount and Parties' Stipulation

The recount was held, and all evidence, including a stipulation regarding undisputed facts, was filed in court on November 26 and 27, 1991. The stipulation provided that the total counted ballots in the recount for McDunn was 106,274, and the total for Williams was 106,473. However, the parties further stipulated that the recount included 1,153 uninitialled ballots for McDunn, and 1,519 uninitialled ballots for Williams. These uninitialled ballots were not marked "Defective" by election judges and had been included in the original count after the 1990 primary. (It apparently is unknown how many uninitialled ballots were marked "Defective" by election judges and never counted.) The figures for each party, without the uninitialled ballots not marked "Defective," was 105,121 votes cast for McDunn, and 104,954 for Williams. Both McDunn and Williams waived any objections to ballots for any reasons other than being uninitialled.

The parties' stipulation also noted that ballots for eight precincts could not be located. The precinct report listed the votes from the eight precincts as 279 for McDunn, and 302 for Williams. Williams denied that these totals from the precinct report could be admitted as proof of the actual valid vote cast in the missing precincts.

The stipulation further provided: "There are no allegations of fraud pending before this court." Although McDunn had alleged fraud in her complaint, the trial court had dismissed the allegation because McDunn could not support the claim with evidence.

The Trial Court's Order

On March 23, 1992, the trial court issued its ruling on the matter. The court held that the uninitialled ballots could not be counted under the Election Code, and upon recount, McDunn had won the 1990 primary. The court noted there was no way to determine which of the uninitialled ballots at issue had been cast absentee and which had been cast in-precinct. The court then ordered McDunn's name placed on the November 3, 1992, general election ballot to fill the...