Orbach v. Axelrod

• Decision Date: 05 October 1981
• Docket Number: No. 80-2363,80-2363
• Citation: 427 N.E.2d 399,100 Ill.App.3d 973,56 Ill.Dec. 319
• Parties: , 56 Ill.Dec. 319 Jerome M. ORBACH, Petitioner-Appellant, v. Ralph H. AXELROD and the Board of Election Commissioners of the City of Chicago, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 399

427 N.E.2d 399

100 Ill.App.3d 973, 56 Ill.Dec. 319

Jerome M. ORBACH, Petitioner-Appellant, v. Ralph H. AXELROD and the Board of Election Commissioners of the City of Chicago, Respondents-Appellees.

No. 80-2363.

Appellate Court of Illinois, First District, First Division.

Oct. 5, 1981.

Michael Kreloff and Franklin S. Schwerin, Chicago, for petitioner-appellant.

Michael L. Levinson, Andrew M. Raucci and Michael P. McClelland, Chicago, for respondents-appellees.

CAMPBELL, Presiding Justice:

Jerome M. Orbach (petitioner) filed an election contest after the Board of Election Commissioners declared Ralph H. Axelrod (respondent) elected Democratic Ward Committeeman for Chicago's 46th Ward. The trial court found for respondent. In his appeal, petitioner raises a variety of issues relating to the validity of the trial court's rulings in regard to whether certain ballots were properly counted. For the following reasons we reverse and remand this cause to the circuit court of Cook County with directions to dismiss the petition.

The parties were candidates for Democratic Ward Committeeman for Chicago's 46th Ward in the March 18, 1980 primary election. The 46th Ward contains 53 precincts and comprises the Uptown and Edgewater neighborhoods of Chicago's north lakefront. It utilizes automatic voting machines, punch card ballots and paper ballots for absentee voting. On March 28, 1980, the Board of Election Commissioners, which administers elections within the city of Chicago, proclaimed the respondent elected by a margin of two votes. Both parties filed for a discovery recount pursuant to statute. (Ill.Rev.Stat.1979, ch. 46, par. 22-9.1.) Furthermore, petitioner filed his petition for election contest on April 25, 1980. The amended verified petition alleged that petitioner was a resident, elector and legal voter of the 46th Ward as well as a candidate. It alleged irregularities as to the voting procedure in a number of precincts. It specifically alleged that certain ballots were invalidated because the respective voters involved were not duly registered qualified voters, that certain absentee ballots should not have been counted because they had been handled by non-election judges, that the failure of election judges to properly initial certain absentee ballots invalidated these ballots and that several absentee and punch card ballots had not been tallied for various unstated reasons. According to the amended verified petition, had the foregoing votes been handled and tallied properly, petitioner would have been proclaimed ward committeeman.

Respondent filed responsive pleadings including an amended counterclaim alleging certain irregularities in the counting of various ballots and a motion to dismiss the petition. The motion alleged that the petition had not been filed within the statutory time limit for filing such petitions (Ill.Rev.Stat.1979, ch. 46, par. 7-63) and challenged the jurisdiction of the trial court to hear the contest. After a hearing, the trial court denied the motion. The trial court also denied respondent's motion for certification of the question to this court pursuant to Supreme Court Rule 308. Ill.Rev.Stat.1979, ch. 110A, par. 308.

After hearing testimony and examining the ballots at issue the trial court concluded that both candidates' vote should be increased due to changes required by his rulings as to various votes. He further declared that respondent was elected to the position of Ward Committeeman, however, only by a margin of 1.84 votes rather than the earlier determined 2 vote margin. It is from this judgment that petitioner appeals. Because we believe that the trial court improperly denied respondent's motion to dismiss, we find it unnecessary to extensively detail the testimony concerning either the preservation of the ballots or the voting irregularities raised by both parties. In the view that we take of this case the only question we must address is the construction of several provisions of Article 7 and Article 23 of the Election Code. Ill.Rev.Stat.1979, ch. 46, pars. 1-1 et seq.

The Election Code codifies the election and primary laws of this state and provides for the time for holding elections, voter qualifications and registration, nomination of candidates, procedural aspects of the elections and post-election procedures. Article 7 of the Election Code (Ill.Rev.Stat.1979, ch. 46, pars. 7-1 et seq.) encompasses virtually unchanged the primary election act of July 6, 1927 which regulated the nomination and election of primary candidates. In a primary election, candidates vie for nomination as their party's candidate for State, congressional, judicial, city, county, village, town, municipal district and township offices. Additionally, precinct, township, ward and state central committeemen and delegates and alternate delegates to national nominating conventions are elected at primary elections. It should be emphasized that neither the Election Code nor the earlier primary election laws granted authority to political parties to nominate and elect candidates but rather "recognizes such power existing in them, and prescribes the manner in which it shall be exercised." (People v. Kramer (1928), 328 Ill. 512, 160 N.E. 60.) Article 23 of the Election Code (Ill.Rev.Stat.1979, ch. 46, pars. 23-1.1 et seq.) generally provides for contesting elections. It specifically regulates who may bring an election contest and grants jurisdiction to the circuit courts over various types of election contest.

Respondent's motion to dismiss contended that the petition for election contest had not been timely filed. It alleged that section 7-63 of the Election Code (Ill.Rev.Stat.1979, ch. 46, par. 7-63) required the filing of the election contest within 10 days of the March 28, 1980 proclamation of the official election canvass. The petition for election contest was filed April 25, 1980, and accordingly was filed approximately 28 days after the official proclamation. Petitioner's contention in the trial court and in this court is that, because the instant election contest pertained to an election rather than a nomination it was not covered by the provisions of Article 7, which pertained to primaries and nominations, but rather was covered by Article 23 which provides for the contests of elections. Petitioner specifically relies upon section 23-20 (Ill.Rev.Stat.1979, ch. 46, par. 23-20) whereby an elector may file a petition for election contest within 30 days of the official proclamation and points out that his petition was filed on April 25, 1980 within 30 days of the March 23, 1980 proclamation of the official election canvass.

The only decision of this court which has addressed the construction of Articles 7 and 23 is Whitsell v. Rutherford (1969) 118 Ill.App.2d 401, 255 N.E.2d 34 which involved an election contest by a candidate for precinct committeeman in Madison County. The trial court there granted a motion to dismiss on the basis that the petition for election contest was not timely filed and, moreover, did not state a cause of action. On review, the court held that section 7-63 (Ill.Rev.Stat.1979, ch. 46, par. 7-63), which provides for primary election contests, failed to provide a procedure for contesting a precinct committeeman's election. Therefore, the court determined that the legislature did not intend Article 7 to be the exclusive means of contesting an election for precinct committeeman. The court then turned to a consideration of the provisions of Article 23. The court noted that Section 23-5 (Ill.Rev.Stat.1979, ch. 46, par. 23-5) provides for the grant of jurisdiction to the circuit court to hear election contests of "all other county, township and precinct officers, and all other officers for the contesting of whose election no provision is made" and that the term "precinct officers" used therein could only refer to the position of precinct committeeman. Thus, the court concluded that an election contest for a precinct committeeman could be brought properly under section 23-20 (Ill.Rev.Stat.1979, ch. 46, par. 23-20) which provides for the filing of a petition for election contest within 30 days from the date a candidate is declared elected.

Petitioner contends that the Whitsell court's construction of section 23-5, as applicable to the contest of a precinct committeeman, should be extended to include ward committeeman. Petitioner urges this argument is supported by Illinois decisions which have construed the "all other officer" language of section 23-5 to refer to other officers of the same or like grade or class. (Baker v. Shinkle (1911), 249 Ill. 154, 94 N.E. 58; Misch v. Russell (1891), 136 Ill. 22, 26 N.E. 528; Brush v. Lemma (1875), 77 Ill. 496.) In Misch, the court held that the phrase "all other officers" cannot be limited to officers specifically named in this provision as this would violate the rule of statutory construction known as ejusdem generis as well as the rule that no word in a statute shall be construed to be superfluous. Moreover, in holding that the court had jurisdiction over the election contest of a school district board of education president, the supreme court noted that the officers specifically named in this provision are officers of quasi-municipal corporations. From this the court reasoned that the phrase "all other officers" should be construed as including all like officers of quasi-municipal corporations. It would appear using this analysis that a ward would constitute a quasi-municipal corporation similar to a precinct and a ward committeeman would constitute the only possible ward officer whose election would be contested under this provision. See, Whitsell v. Rutherford.

We find a strong differentiation between Whitsell and the case at bar. The pertinent section 5 of Article 23 (Ill.Rev.Stat.1979, ch. 46, par. 23-5) relied on by petitioner authorizes the circuit court to hear election contests "of all other county,...