Scheidler v. Cook County Officers Electoral Bd.
| Decision Date | 08 November 1995 |
| Docket Number | No. 1-94-2345,1-94-2345 |
| Citation | 212 Ill.Dec. 744,276 Ill.App.3d 297,657 N.E.2d 1089 |
| Parties | , 212 Ill.Dec. 744 Joseph SCHEIDLER, Dennis McCarthy, James Eder, Lenore De Pyper, Gerald De Pyper, Mary Lou Mockus, and Robert Sutter, on behalf of themselves and all other voters similarly situated, and Lawrence Joseph Joyce, Petitioners-Appellants, v. COOK COUNTY OFFICERS ELECTORAL BOARD, and its members, Daniel P. Madden, Donald A. Mizerk, and Kelly Peters, David D. Orr, in his official capacity as Cook County Clerk, Michael J. Hamblet, Arnette Hubbard, and Christopher Fitzhenry Robling, in their official capacities as members of the Chicago Board of Election Commissioners and George Edward Larney, Respondents-Appellees. |
| Court | United States Appellate Court of Illinois |
Craig H. Greenwood, Downers Grove, for Appellants.
Jack O'Malley, State's Attorney of Cook County, Chicago (Patricia Shymanski, Patricia M. Moser, Jeffrey S. McCutchan, of counsel), for Cook County Clerk and Cook County Officers Electoral Board.
Daniel J. Kelley, Alan J. Spitz, Chicago, for George E. Larney.
James M. Scanlon of Rieff & Scanlon, Chicago, for Chicago Board of Election Commissioners, Michael J. Hamblet, Arnette Hubbard and Christopher Robling.
On April 14, 1994, petitioners filed a petition contesting the primary election held on March 15, 1994, and alleging that the name of Lawrence Joseph Joyce (Joyce) was not listed on some ballots. Petitioners requested the court to invalidate the primary election, schedule a new primary and order respondents to pay the attorney fees and costs of petitioners.
The circuit court granted the respondents' various motions to dismiss and we affirm.
On appeal the parties primarily present two issues: (1) whether a supervisory order entered by the Illinois Supreme Court dispositively determined that the name of Joyce should appear on the primary ballot; and (2) whether petitioners have stated a cause of action cognizable under section 1983 of the Federal civil rights law (42 U.S.C.A. § 1983 (1994)).
The facts of the present appeal are related to earlier litigation involving the underlying dispute of whether or not Joyce's name should appear on the primary election ballot. Legg v. Cook County Officers Electoral Board (Cook County Circuit Court No. 94 Co. 69) ().
Petitioner Joyce sought to be the Republican Party's nominee for the office of Representative in Congress for the Ninth Congressional District. To this end, Joyce filed nomination papers for that office and thereafter Steven H. Legg filed objections to Joyce's nominating petitions.
On February 3, 1994, the Cook County Officers Electoral Board overruled the objections of Legg, declared that Joyce's nomination papers were valid and ordered that Joyce's name be placed on the primary election ballot. Legg appealed this decision to the circuit court of Cook County.
On February 22, 1994, the circuit court reversed the decision of the Cook County Officers Electoral Board and ordered Joyce's name to be removed from the ballot. The circuit court directed its ruling to the Cook County clerk and the order specifically stated:
"the name LAWRENCE JOSEPH JOYCE shall not appear on the Republican ballot as a candidate for U.S. Congress (Ill. 9th Cong.Dist.) in the March 15, 1994 Primary Election or ballots printed by the County Clerk, subject to modification by an appellate court; and 3) the County Clerk shall continue the process of issuing absentee ballots with Respondent Joyce's name as a candidate, subject to modification of the appellate court."
The order further directed the county clerk to remove the name of Joyce from the primary ballot by means of a sticker and if Joyce's "name does not appear on the March 15, 1994 Primary ballot, any absentee ballots cast for Joyce will not be counted by the County Clerk." Joyce appealed the circuit court order to this court.
On March 4, 1994, this court entered a one-page order summarily affirming the February 22, 1994, order of the circuit court and stating that an opinion would follow at a later date. Subsequently, however, this March 4 order was vacated by a supreme court supervisory order entered on March 14, 1994.
On March 11, 1994, Joyce filed with the Illinois Supreme Court an emergency motion for a supervisory order pursuant to Supreme Court Rule 383. 157 Ill.2d R. 383 (effective February 1, 1994, as amended).
On March 14, 1994 (the day before the primary election), the supreme court entered an order (No. 76954) in response to Joyce's motion:
On that same date (March 14, 1994), as directed by the supreme court order, this court entered the order replacing Joyce's name on the ballot.
To comply with the dictate of the court order regarding the placement of Joyce's name on the ballot, the respondents encountered numerous logistical obstacles and practical difficulties of modifying ballots approximately 24 hours before the opening of the polls. The tasks included ordering self-adhesive stickers to be printed with Joyce's name, delivering the printed stickers to 333 precinct polling places, instructing the election judges at each precinct to insert the stickers in the ballots, and affixing the stickers at the appropriate pages.
The following day (March 15) the primary election was held and Joyce was defeated by respondent George Edward Larney.
Before turning to petitioners' post-election activities in this case, it would be well for us to reiterate the thought expressed by us in McDunn v. Williams (1992), 247 Ill.App.3d 935, 187 Ill.Dec. 671, 618 N.E.2d 262, vacated (1993), 156 Ill.2d 288, 189 Ill.Dec. 417, 620 N.E.2d 385, that respectfully requested our supreme court to turn its attention to the pre-election litigation phenomenon and develop a supreme court rule providing for an explicit timetable of appellate consideration in this genre of cases.
On April 14, 1994, petitioners filed the instant election contest alleging that they and other voters similarly situated were either unable to vote at all or unable to vote in secrecy for candidate Joyce because his name was not included on some ballots. The petition included two counts.
Count I alleged a cause of action under section 1983 of the Federal civil rights law (42 U.S.C.A. § 1983 (1994)) and requested the court to (1) invalidate the primary election held on March 15, 1994; (2) schedule a new primary; and (3) order respondents to pay the attorney's fees and costs of petitioners.
Count II alleged a cause of action under the Illinois Election Code (10 ILCS 5/1-1 et seq. (West 1993)). In count II, petitioners repeated the same three requests stated in count I, i.e., declare the primary election of March 15 to be invalid; schedule a new primary; and order payment of attorney's fees and costs. In addition, petitioners requested that respondents be ordered to pay the campaign expenses of Joyce.
Respondents Chicago Board of Election Commissioners and its members in their official capacities (Michael J. Hamblet, Arnette Hubbard and Christopher Robling) (hereinafter collectively referred to as the Chicago respondents) filed a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Code) for failure to state a cause of action. 735 ILCS 5/2-615 (West 1992).
Respondents Cook County Officers Electoral Board, its members in their official capacities (Daniel P. Madden, Donald A. Mizerk and Kelly Peters), and David C. Orr in his official capacity as the Cook County clerk (hereinafter collectively referred to as the Cook County respondents) filed a motion to dismiss pursuant to section 2-619 of the Code. 735 ILCS 5/2-619 (West 1992).
In their motions, the respondents argued, among other things, that another action was pending between the same parties for the same cause (i.e., the Legg litigation); absolute or qualified immunity protected the various respondents; and the petition failed to include essential allegations.
On June 17, 1994, the circuit court granted the various motions to dismiss. Thereafter, on June 27, 1994, the circuit court granted petitioners' motion to reconsider but denied their request for relief.
Next, on June 29, 1994, this court entered an order dismissing the Legg case as moot because the relief requested by Joyce had been granted by the Illinois Supreme Court and this court.
On July 1, 1994, petitioners filed a notice of appeal as to the instant case, challenging the orders of June 17 and June 27. On July 7, petitioners filed a motion to withdraw the July 1 appeal and a second motion to reconsider. On the same day (July 7), the circuit court (1) granted the motion to dismiss the July 1 appeal; (2) granted the second motion to reconsider; and (3) denied the relief prayed for in the second motion to reconsider in its entirety. On July 14, 1994, petitioners filed another notice of appeal which is now before this court.
Initially we note that at oral argument before this court, petitioners clarified their position on appeal which appropriately narrows the issues for our consideration. First, petitioners advised this court that the relief they now seek is for damages only, not a new election, and they no longer intend to pursue the matter as a class action. They now seek only damages for attorney fees and Joyce's campaign expenses. Petitioners further explained that to obtain the relief now sought, they are asking this court to remand the matter to the trial court to amend the pleadings to reflect a cause of action under section 1983 for damages only and the named...
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