Rivera v. the City of Chicago Electoral Bd.

• Court: Appellate Court of Illinois
• Writing for the Court: OPINION
• Citation: Rivera v. the City of Chicago Electoral Bd., 2011 IL App (1st) 110283, 956 N.E.2d 20, 353 Ill.Dec. 500 (Ill. App. 2011)
• Decision Date: 29 July 2011
• Docket Number: No. 1–11–0283.,1–11–0283.
• Parties: Jose “Joe” RIVERA, Petitioner–Appellant,v.THE CITY OF CHICAGO ELECTORAL BOARD, Langdon D. Neal, Chairman, Richard A. Cowen, Commissioner, Marisel A. Hernandez, Commissioner, Timothy J. Raddatz, and Gerald J. Holst, Jr., Respondents–Appellees.

2011 IL App (1st) 110,283

956 N.E.2d 20

353 Ill.Dec. 500

Jose “Joe” RIVERA, Petitioner–Appellant,

v.THE CITY OF CHICAGO ELECTORAL BOARD, Langdon D. Neal, Chairman, Richard A. Cowen, Commissioner, Marisel A. Hernandez, Commissioner, Timothy J. Raddatz, and Gerald J. Holst, Jr., Respondents–Appellees.

No. 1–11–0283.

Appellate Court of Illinois, First District, Fifth Division.

July 29, 2011.

Andrew Finko, Attorney at Law, Chicago (Andrew Finko), for Appellant.James M. Scanlon & Associates, Chicago (James M. Scanlon, Joan T. Agnew), for Appellee City of Chicago Electoral Board.Thomas A. Jaconetty, Attorney at Law, Chicago (Thomas A. Jaconetty), for Appellees Raddatz and Holst.

OPINION

Presiding Justice FITZGERALD SMITH delivered the judgment of the court, with opinion.

¶ 1 Following the declaration of the invalidity of his candidacy, petitioner-appellant Jose “Joe” Rivera (petitioner) moved for an expedited briefing schedule and decision related to the general municipal election for alderman of the 45th Ward of the City of Chicago to be held on February 22, 2011. His motion was denied as a practical matter due to insufficient time to address and resolve his appeal before the scheduled election. The cause has since been briefed for appeal by petitioner, as well as by respondents-appellees the City of Chicago Electoral Board (Board); Langdon D. Neal, chairman, Richard A. Cowen, commissioner, and Marisel A. Hernandez, commissioner (collectively, members); and Timothy J. Raddatz and Gerald J. Holst, Jr. (individually, or objectors). Upon review, we issue the instant order affirming the decision of the trial court and dismissing petitioner's appeal.

¶ 2 BACKGROUND

¶ 3 Petitioner filed nomination papers to become a candidate in said election. Raddatz and Holst filed objections to the validity of petitioner's candidacy and the cause proceeded before a hearing officer in December 2010 pursuant to an order from the Board. During this hearing, in addition to the matter at hand (the validity of his candidacy), petitioner filed multiple motions to strike. In them, he complained, in part, that the hearing officer initially defaulted objectors for failure to appear but then vacated that default when they eventually appeared following a delay, and that objectors were improperly represented by a nonattorney at the hearing ( i.e., a clerk for their attorney of record). After considering these motions, the hearing officer orally denied them, concluding that the delay in appearance was understandable due to special circumstances, and that the nonattorney had not provided any legal services but only obtained the briefing schedule on the motions. The hearing officer then took the case under advisement and, on December 22, 2010, submitted a recommendation to the Board that the objections be sustained, that petitioner's candidacy be declared invalid, and that petitioner's name not be printed on the election ballot.

¶ 4 On January 7, 2011, the Board met to review the hearing officer's recommendations. Counsel for petitioner, as well as counsel for objectors, were present and argued at this meeting. At the conclusion of the argument, the Board verbally stated that it would affirm the hearing officer's recommendation. Later, on this same day, the Board issued its written decision, officially adopting the hearing officer's recommendation and sustaining the objections to petitioner's candidacy. It is unclear from the record which, if any, of the parties or their representatives were present at the time the Board issued its written decision.¹ On this same day, the Board sent a copy of its written decision by mail in a sealed envelope with postage prepaid to petitioner's counsel of record. In the decision, immediately after the signatures of the Board members who comprised the panel involved, it is stated:

“NOTICE: Pursuant to Section 10–10.1 of the Election Code (10 ILCS 5/10–10.1) a party aggrieved of this decision and seeking judicial review of this decision must file a petition for judicial review with the Clerk of the Circuit Court of Cook County within 5 days after service of the decision of the Electoral Board.” (Emphasis in original.)

¶ 5 Petitioner admits, for the record, that he, via his counsel, received the Board's written decision on either January 10 or 11, 2011. On January 12, 2011, petitioner filed a petition for judicial review with the clerk of the circuit court of Cook County, arguing that the Board's decision should be reversed and attaching a copy of that decision. In his “Notice of Filing” accompanying the petition, petitioner stated that he served his petition upon the parties involved by “placing same into the U.S. Postal Service mail receptacle in Chicago, Illinois at or before 5:00 pm on January 11, 2011.” In his “Service List,” petitioner listed the Board and its three members and stated that each was served “c/o: James Scanlon, General Counsel, 69 W. Washington St., 8th Floor, Chicago, Illinois 60602”; petitioner also listed objectors and stated that each was served “c/o: Thomas A. Jaconetty, Esq., Attorney for Objectors, 33 North La Salle Street, Suite 3300, Chicago, Illinois 60602.”

¶ 6 Also on January 12, 2011, petitioner filed a “Notice of Emergency Motion” to set a hearing date on his petition for January 14, 2011. In an order, the trial court instructed the Board and its members to file their motion to dismiss on January 14, 2011, and told petitioner to submit his response via email to the court on January 17, 2011 (a court holiday), and file it on January 18, 2011. The court then set a hearing date for January 18, 2011, at 2 p.m.

¶ 7 In their motion to dismiss, the Board and its members argued that petitioner failed to effectuate proper service of his petition as required by section 10–10.1 of the Illinois Election Code (Code) (10 ILCS 5/10–10.1 (West 2010)), because he served their attorney and not them personally, and, thus, that the trial court lacked jurisdiction to hear the petition. Objectors, too, filed a motion to dismiss for lack of subject matter jurisdiction.

¶ 8 On January 18, 2011, at 1:55 p.m. (immediately preceding the hearing), in addition to filing his response to the Board's motion to dismiss, petitioner filed a “Supplemental Certificate of Service and Corrected Notice of Filing–Corrected Certificate of Service.” In this filing, petitioner “corrected” the date when he notified the parties that he filed his petition for judicial review with the court, stating it was January 12, 2011 and not January 11, 2011, as he originally claimed. He also included a “corrected” certificate of service, stating the he served the parties listed in his “Service List” by “certified mail-return receipt requested,” as well as by “hand delivering copies of same” to them before 5 p.m. on January 12, 2011. Attached to this was a “Service List,” identical to the original one petitioner filed with his petition, listing the Board and its members as served “c/o: James Scanlon” and objectors as served “c/o: Thomas A. Jaconetty, Esq.” Petitioner further filed, at the same time, a “Supplemental Certificate of Service,” certifying that he served objectors, each individually, with a copy of his petition by certified mail-return receipt requested on January 14, 2011.

¶ 9 Arguments were then heard before the trial court. At their conclusion, the court entered an order on January 18, 2011 granting both the Board's and objectors' motions to dismiss for the “reasons stated in open court, including improper service on the Board and [o]bjectors.” Ultimately, the court held that it “lack[ed] subject-matter jurisdiction” over petitioner's cause.

¶ 10 Later that day, at 4:20 p.m., petitioner filed with the court a document titled “Section 10–10.1 Proof of Service.” In it, petitioner stated that he served a copy of his petition “upon all Respondents by CERTIFIED MAIL–RETURN RECEIPT REQUESTED ” on January 18, 2011. (Emphasis in original.) However, the only “Respondents” he indicated were the Board and its members, not objectors. Petitioner listed the address for each as “69 W. Washington Street,” and for the first time did not serve them “c/o: James Scanlon.” Attached to this document were photocopies of four certified mail receipts, one for the Board and one for each member, all dated January 18, 2011.

¶ 11 Then, on January 24, 2011, petitioner filed another document titled “Section 10–10.1 Proof of Service” with the court. In this document, petitioner stated that he served a copy of his petition “upon all Respondents” by certified mail-return receipt requested “a third time, on January 18, 2011.” Petitioner attached the return receipt cards for the Board, the three members and objector Raddatz; he did not list objector Holst nor did he include any receipt card from him.

¶ 12 On January 26, 2011, petitioner filed his Notice of Appeal with our court.

¶ 13 ANALYSIS

¶ 14 On appeal, petitioner makes several contentions. First, he claims that sections 10–10 and 10–10.1 of the Code are unconstitutional because their short time frames deprive aggrieved parties of meaningful judicial review and violate equal protection. He then asserts that he in fact timely filed his petition and complied with the service requirements of the Code. Finally, he urges that, if we were to find that the trial court did, indeed, have subject matter jurisdiction over his cause, we should also reverse on the merits to find that the Board's decision here was improper. We disagree with all his contentions.

¶ 15 We must begin by noting that petitioner's cause is technically moot. The existence of an actual case or controversy is essential to our appellate jurisdiction. See In re Andrea F., 208 Ill.2d 148, 156, 280 Ill.Dec. 531, 802 N.E.2d 782 (2003); Richardson v. Rock Island County Officers Electoral Board, 179 Ill.2d 252, 256, 227 Ill.Dec. 940, 688 N.E.2d 633 (1997) (the function of our court is to decide controverted issues). Thus, a...