Quinn v. Bd. of Election Comm'rs for the City of Chi. Electoral Bd.

• Decision Date: 05 November 2018
• Docket Number: No. 1-18-2087,1-18-2087
• Citation: 116 N.E.3d 428,2018 IL App (1st) 182087,426 Ill.Dec. 579
• Parties: Pat QUINN and Take Charge Chicago Committee for Mayoral Term Limits and Elected Consumer Advocate, Petitioners-Appellants, v. The BOARD OF ELECTION COMMISSIONERS FOR the CITY OF CHICAGO ELECTORAL BOARD, and its members, Marisel A. Hernandez, Jonathan T. Swain and William J. Kresse; Objectors, Brett Allen Czaja and Karen Larson; and the Board of Election Commissioners for the City of Chicago, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 182087
116 N.E.3d 428
426 Ill.Dec. 579

Pat QUINN and Take Charge Chicago Committee for Mayoral Term Limits and Elected Consumer Advocate, Petitioners-Appellants,
v.
The BOARD OF ELECTION COMMISSIONERS FOR the CITY OF CHICAGO ELECTORAL BOARD, and its members, Marisel A. Hernandez, Jonathan T. Swain and William J. Kresse; Objectors, Brett Allen Czaja and Karen Larson; and the Board of Election Commissioners for the City of Chicago, Respondents-Appellees.

No. 1-18-2087

Appellate Court of Illinois, First District, FIFTH DIVISION.

Opinion filed: November 5, 2018

Ed Mullen, of Bucktown Law, and Pat Quinn, both of Chicago, for appellants.

Michael J. Kasper and James E. Hartmann, of Chicago, for appellees Brett Allen Czaja and Karen Larson.

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

426 Ill.Dec. 581

¶ 1 Petitioners-appellants, Pat Quinn and Take Charge Chicago Committee for Mayoral Term Limits and Elected Consumer Advocate (proponents), appeal from the dismissal of their petition seeking judicial review and a writ of mandamus . For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.¹

¶ 2 I. BACKGROUND

¶ 3 On August 6, 2018, proponents submitted petitions with the clerk of the City of Chicago in support of placing on the ballot two binding referenda questions for the citizens of Chicago to consider at the November 6, 2018, general election. The first question generally asked if the office of mayor for Chicago should be subject to a term limit of two terms, while the second asked if Chicago should establish an elected position for a "Consumer Advocate for taxpayer and consumers."

¶ 4 Objections to the proposed referenda were filed by respondents-appellees, objectors Brett Allen Czaja and Karen Larson, on August 13, 2018. The matter was first addressed at an August 20, 2018, public hearing presided over by respondents-appellees, The Board of Election Commissioners for the City of Chicago Electoral Board, and its members, Marisel A. Hernandez, Jonathan T. Swain and William J. Kresse (collectively, the Electoral Board). The matter was referred to a hearing officer appointed by the Electoral Board, and a second hearing was held on August 29, 2018. Proponents filed a motion to strike the objections, and the parties thereafter fully briefed that motion, agreeing that only legal issues were presented and that a ruling on this motion would be dispositive.

¶ 5 On September 7, 2018, the hearing officer issued a written report and recommendation, wherein it recommended that the motion to strike be denied, the objections be sustained, and the two referenda not appear on the November 6, 2018, election. In a written order entered on September 12, 2018, the Electoral Board adopted the hearing officer's recommendations and entered a final, written administrative decision which ordered that the two referenda not appear on the ballot for the November 6, 2018, election, or in any other election. The Electoral Board's final decision was served upon proponents by email (pursuant to a prior agreement) and hand delivery the same day.

426 Ill.Dec. 582

116 N.E.3d 431

¶ 6 On September 14, 2018, proponents filed a one-count petition in the circuit court seeking both judicial review and a writ of mandamus . Naming the Electoral Board and objectors as defendants with respect to that portion of its petition seeking judicial review, brought pursuant to section 10-10.1 of the Election Code ( 10 ILCS 5/10-10.1 (West 2016) ), proponents sought reversal of the Electoral Board's final decision. Naming only respondent-appellee, The Board of Election Commissioners for the City of Chicago (Board of Election), as a defendant with respect to that portion of its petition seeking a writ of mandamus , brought pursuant to Article 14 of the Code of Civil Procedure (Code) ( 735 ILCS 5/14-101, et seq . (West 2016) ), proponents sought to compel the Board of Election to print the two referenda on the ballot for the November 6, 2018, election, or—in the alternative—the ballot for the following election, to be held on February 26, 2019.²

¶ 7 The petition filed by proponents was served upon the Electoral Board, the Board of Elections, and the attorney for objectors on September 17, 2018, by certified mail. Objectors were not served personally by certified mail until September 19, 2018.

¶ 8 Also on September 19, 2018, objectors filed a motion to dismiss the petition for judicial review, contending that the circuit court lacked subject matter jurisdiction over the petition due to proponents' failure to strictly comply with the service requirements contained in section 1010.1 of the Election Code, which required service upon all parties within five days. 10 ILCS 5/10-10.1 (West 2016). The motion to dismiss did not make any reference to the portion of the petition seeking a writ of mandamus . This point was raised in proponents' written response to the motion to dismiss, wherein proponents argued that the motion to dismiss:

"is directed solely at the portion of the Petition that seeks review of the Election Board's decision and not to the Petition for Writ of Mandamus . Objectors are not currently a party to the mandamus claims so they do not have standing to object, and a mandamus action does not have the same jurisdictional requirements as a petition for judicial review under the Illinois Election Code."

In their written reply, objectors again solely attacked the circuit court's subject matter jurisdiction to consider the portion of proponents' petition seeking judicial review, and again did not make any reference to the portion of the petition seeking a writ of mandamus .

¶ 9 On September 25, 2018, proponents filed a motion to file a first amended complaint for a writ of mandamus instanter . Therein, proponents again contended that no response to the portion of their petition seeking a writ of mandamus had yet been filed.

¶ 10 The following day, oral argument was heard on the motion to dismiss. No report of proceedings for this hearing was included in the record on appeal, and the docketing statement filed by proponents indicates that no court reporter was present.

¶ 11 That same day, the circuit court entered a written order granting the motion to dismiss the petition for judicial review of the Electoral Board's decision,

426 Ill.Dec. 583

116 N.E.3d 432

on the basis that the failure of proponents to comply with the service requirements contained in section 10-10.1 of the Election Code deprived the court of subject matter jurisdiction. While the circuit court's order dismissed the proponent's petition in its entirety, the circuit court's order made no specific reference to the portion of the petition seeking a writ of mandamus, or to the motion seeking to file an amended complaint with respect to that claim.

¶ 12 On September 28, 2018, proponents filed a notice of appeal, in which it asserted that it was appealing from the dismissal of both the portion of its petition seeking judicial review and the portion of its petition seeking a writ of mandamus . With respect to the latter, the notice of appeal asserted that it was a "separate claim that the Court had jurisdiction to consider."

¶ 13 On October 5, 2018, proponents filed a motion seeking to have this appeal transferred directly to the supreme court, pursuant to Illinois Supreme Court Rule 302(b) (eff. Oct. 4, 2011). The supreme court denied that motion in an order entered on October 15, 2018. The following day, proponents filed a motion with this court to expedite this appeal, pursuant to Illinois Supreme Court Rule 311(b) (eff. July 1, 2018). That motion was granted in an order entered by this court on October 22, 2018.

¶ 14 II. ANALYSIS

¶ 15 On appeal, proponents challenge the dismissal of both the portion of its petition seeking judicial review and the portion of its petition seeking a writ of mandamus . For the following reasons, we affirm the circuit court's dismissal of the portion of the petition seeking judicial review of the Electoral Board's decision, reverse the dismissal of the portion of the petition seeking a writ of mandamus , and remand for further proceedings solely with respect to the proponent's request for a writ of mandamus .

¶ 16 The circuit court dismissed proponent's petition in its entirety, pursuant to section 2619(a)(1) of the Code. 735 ILCS 5/2-619(a)(1) (West 2016). Section 2–619(a)(1) provides for the involuntary dismissal of an action based on lack of subject matter jurisdiction. Id. A section 2-619 motion "admits the legal sufficiency of the plaintiff's...