Pate v. Wiseman

• Decision Date: 20 June 2019
• Docket Number: No. 1-19-0449,1-19-0449
• Citation: 436 Ill.Dec. 753,143 N.E.3d 248,2019 IL App (1st) 190449
• Parties: Susan M. PATE and Max Solomon, Plaintiffs-Appellants, v. Isaac R. WISEMAN, in His Official Capacity as Clerk and Local Election Official for the Village of Hazel Crest, Cook County, Illinois, and Karen Yarbrough, in Her Official Capacity as Cook County Clerk, Defendants-Appellees (The Village of Hazel Crest; Municipal Central Committee of the Democratic Party for the Village of Hazel Crest; and Vernard Alsberry Jr., Chairperson of the Municipal Central Committee of the Democratic Party for the Village of Hazel Crest and in His Official Capacity as Democratic Party Township Committeeman for Bremen Township, Cook County, Illinois, Intervenors-Appellants).
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 190449
143 N.E.3d 248
436 Ill.Dec. 753

Susan M. PATE and Max Solomon, Plaintiffs-Appellants,
v.
Isaac R. WISEMAN, in His Official Capacity as Clerk and Local Election Official for the Village of Hazel Crest, Cook County, Illinois, and Karen Yarbrough, in Her Official Capacity as Cook County Clerk, Defendants-Appellees

(The Village of Hazel Crest; Municipal Central Committee of the Democratic Party for the Village of Hazel Crest; and Vernard Alsberry Jr., Chairperson of the Municipal Central Committee of the Democratic Party for the Village of Hazel Crest and in His Official Capacity as Democratic Party Township Committeeman for Bremen Township, Cook County, Illinois, Intervenors-Appellants).

No. 1-19-0449

Appellate Court of Illinois, First District, Fourth Division.

June 20, 2019

McStephen O.A. Solomon, of Hazel Crest, for appellants.

James P. Nally, of Law Office of James P. Nally P.C., John B. Murphey and Judith N. Kolman, of Rosenthal, Murphey, Coblentz & Donahue, both of Chicago, and Burton S. Odelson and Ross D. Secler, of Odelson & Sterk, Ltd., of Evergreen Park, for appellees.

PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion.

436 Ill.Dec. 755

¶ 1 Plaintiffs, Susan M. Pate and Max Solomon, filed an emergency complaint in mandamus against Isaac R. Wiseman, in his official capacity as clerk and local election official for the Village of Hazel Crest, and Karen Yarbrough, in her official capacity as Cook County Clerk (collectively, defendants), seeking an order directing defendants to place plaintiffs' names on the ballot as slated candidates of the Democratic Party for the office of trustee of the Village of Hazel Crest. The Village of Hazel Crest (Village), the Municipal Central Committee of the Democratic Party for the Village of Hazel Crest (Committee), and its chairperson, Vernard Alsberry Jr., in his official capacity as Democratic Party Township Committeeman for Bremen Township (collectively, intervenors), filed a petition to intervene, which the circuit court allowed, and thereafter, the court

143 N.E.3d 251

436 Ill.Dec. 756

denied plaintiffs' complaint in mandamus . In this court, plaintiffs contend that the court erred in granting the intervenors' petition to intervene and in denying plaintiffs' complaint in mandamus .

¶ 2 The record shows that on November 26, 2018, Wayne M. Johnson, Helen J. Nowels, and Tiffanni Y. Human filed nomination papers as slated candidates of the Democratic Party for nomination to three available offices of trustee of the Village, at the February 26, 2019, primary election. No other candidates filed nomination papers seeking nomination of the Democratic Party for those offices by the end of the filing period.

¶ 3 Pursuant to the provisions of the Election Code, objections to nomination papers were to be filed by December 3, 2018 ( 10 ILCS 5/10-8 (West 2016) ), but none were filed against the slated candidates. Accordingly, Johnson, Nowels, and Human were automatically nominated uncontested, and a primary was not required for the three available trustee offices in the February 26, 2019, primary election.

¶ 4 Thereafter, on January 22, 2019, Johnson and Nowels executed affidavits stating that they declined the nominations and requested that their names not be certified as candidates for the office of trustee for the Village.

¶ 5 On January 24, 2019, plaintiffs filed nomination papers with the office of Isaac R. Wiseman, clerk of the Village. The papers included, among others, documents titled "Resolution to Fill a Vacancy in Nomination of Wayne M. Johnson occurring where no Party Primary" and "Resolution to Fill a Vacancy in Nomination of Helen J. Nowels occurring where no Party Primary." Those Resolutions were executed by Human, who stated that, as "the remaining candidate serving as party officer of the Democratic Party in and for the Village of Hazel Crest," she "voted to nominate a candidate of the Democratic Party to fill [each] vacancy." Accordingly, Human "nominate[d]" Pate to fill the vacancy of Johnson, and Solomon to fill the vacancy of Nowels.

¶ 6 On January 28, 2019, Wiseman issued notice to Human that he was "in receipt of two separate proposed nominations which you have made as ‘the remaining party candidate as party officer of the Democratic Party in and for the Village of Hazel Crest,’ to fill the Johnson and Nowels' vacancies." Wiseman informed Human that the Election Code provision allowing nominations to be filled by a party's remaining candidate applied only in cases "of political parties other than a statewide political party," which did not include the Democratic Party. Accordingly, Wiseman informed Human that the "proposed nomination is not in apparent conformity with the applicable provisions of the Illinois Election Code. Under these circumstances, my office will not be certifying the name of either Ms. Pate or Mr. Solomon as Democratic Party candidates for the office of Trustee in and for the Village of Hazel Crest."

¶ 7 On February 19, 2019, plaintiffs filed an emergency complaint in mandamus with the circuit court, contending that Wiseman "ha[d] failed and refused to certify" plaintiffs' names "in violation of the Illinois Code" and that plaintiffs were entitled to mandamus relief.

¶ 8 On February 22, 2019, the intervenors filed their petition to intervene in plaintiffs' mandamus action, alleging that the court should allow them to intervene either as "a matter of right or at the discretion of the Court." Specifically, the intervenors asserted that the Village's interests would be directly affected and "bound by a judgment" rendered in this matter, and that the judgment would "directly

143 N.E.3d 252

436 Ill.Dec. 757

impact the operations of the Village, the rights of voters of in [sic ] the Village, and any potential financial liability." As for the Committee, the intervenors argued that its interests "derive[d] from its statutorily mandated role to conduct and make appointments to fill vacancies in nomination and to ensure that its sole authority to act in an official capacity on behalf of the Democratic Party within the Village of Hazel Crest is unimpeded and is not fraudulently claimed by another individual or entity." The intervenors alternatively argued that permissive intervention should be allowed because "the defense of the Intervenors['] rights and interests at issue in this matter involve common questions of law and fact. The defense of the Village's interests and the defense of the Committee's interests should be allowed in order to protect the voting rights of the citizens of the Village of Hazel Crest."

¶ 9 That same day, February 22, 2019, the court set a briefing schedule on the complaint and the petition to intervene and set the matters for hearing on March 7, 2019.

¶ 10 On February 26, 2019, Wiseman and the intervenors jointly filed their "motion to dismiss, and response in opposition to complaint in mandamus." On March 1, 2019, the plaintiffs filed their "Response to proposed Intervenors' petition to intervene; and Reply to Defendants' motion to dismiss & response in opposition to complaint in mandamus." On March 5, 2019, Wiseman and the intervenors filed their "reply."

¶ 11 On March 7, 2019, the circuit court entered an order granting the intervenors' petition to intervene both as of right and as a matter of discretion and denying plaintiffs' complaint in mandamus "[f]or the reasons stated in open court." The circuit court specifically found that plaintiffs had "no clearly ascertainable right" to the relief sought. No transcript of the March 7, 2019, hearing appears in the record on appeal. Plaintiffs filed a notice of appeal from that order the same day, and this court has jurisdiction to consider this appeal pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994).

¶ 12 In this court, plaintiffs contend the court erred in granting the intervenors' petition and denying plaintiffs' compliant for mandamus . We will consider each issue in turn.

¶ 13 Plaintiffs first contend that the circuit court erred in granting the intervenors' petition, asserting that the requirements for intervention were not met in this case.

¶ 14 Section 2-408 of the Code of Civil Procedure allows for intervention either as a matter of right or at the discretion of the court. 735 ILCS 5/2-408(a), (b) (West 2016).

¶ 15 As relevant here, section 2-408 provides:

"(a) Upon timely application anyone shall be permitted as of right to intervene in an action: * * * (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action * * *.

(b) Upon timely application anyone may in the discretion of the court be permitted to intervene in an action: * * * (2) when an applicant's claim or defense and the main action have a question of law or fact in common." Id. § 2-408.

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