Torres v. Board of Election Com'rs for City of Chicago

• Citation: 142 Ill.App.3d 955,492 N.E.2d 539,97 Ill.Dec. 103
• Decision Date: 14 April 1986
• Docket Number: 86-0786,Nos. 86-0740,s. 86-0740
• Parties: , 97 Ill.Dec. 103 Manuel A. TORRES, Plaintiff-Appellant, v. BOARD OF ELECTION COMMISSIONERS FOR the CITY OF CHICAGO, Michael A. Lavelle, as Chairman of the Board of Election Commissioners for the City of Chicago, Illinois, Corneal A. Davis, as Member of the Board of Election Commissioners for the City of Chicago, Illinois, James R. Nolan, as Member of the Board of Election Commissioners for the City of Chicago, Illinois, Stanley T. Kusper, County Clerk for Cook County, Illinois, and Luis V. Gutierrez, Defendants- Appellees.
• Court: United States Appellate Court of Illinois

Page 539

492 N.E.2d 539

142 Ill.App.3d 955, 97 Ill.Dec. 103

Manuel A. TORRES, Plaintiff-Appellant, v. BOARD OF ELECTION COMMISSIONERS FOR the CITY OF CHICAGO, Michael A. Lavelle, as Chairman of the Board of Election

Commissioners for the City of Chicago, Illinois, Corneal A.

Davis, as Member of the Board of Election Commissioners for

the City of Chicago, Illinois, James R. Nolan, as Member of

the Board of Election Commissioners for the City of Chicago,

Illinois, Stanley T. Kusper, County Clerk for Cook County,

Illinois, and Luis V. Gutierrez, Defendants- Appellees.

Nos. 86-0740, 86-0786.

Appellate Court of Illinois,

First District, Fourth Division.

April 14, 1986.

Rehearing Denied April 16, 1986.

William J. Harte, Ltd., Chicago (William J. Harte, Jeffrey B. Whitt, Joseph F. Tighe, and Richard J. Prendergast, of counsel), for plaintiff-appellant.

Thomas E. Johnson, Jenner & Block, Chicago (Jerold S. Solovy, Barry Sullivan, Michael T. Brody, Diane E. Ratekin, Catherine A. Daubard, of counsel), for defendants-appellees.

Justice JOHNSON delivered the opinion of the court:

On March 18, 1986, there was a special aldermanic election in the City of Chicago in which the plaintiff, Manuel A. Torres, and the defendant, Luis V. Gutierrez, were candidates for the office of alderman in the 26th Ward. According to the raw vote totals announced by the Board of Election Commissioners for the City of Chicago and the Canvassing Board, Gutierrez was the apparent winner of that election. On March 21, 1986, Torres filed a complaint in the circuit court of Cook County seeking, among other things, to enjoin the Board of Election Commissioners and Stanley T. Kusper, County Clerk for Cook County, from certifying Gutierrez as the winner. The matter was heard before Circuit Court Judge Eugene Wachowski. Torres alleged that there were certain voting irregularities, the most significant being that the polls were open beyond the voting times directed under the Election Code, 6 a.m. to 7 p.m. Ill.Rev.Stat.1985, ch. 46, par. 17-1.

On election day at approximately 5:30 p.m., James P. Chapman, appeared before Circuit Court Judge Joseph Schneider and based upon certain representations, but without notice to his opponent Torres, obtained a mandatory injunction requiring that the polling places in five precincts of the 26th Ward remain open until 9 p.m., two hours beyond the ordinary closing time. Chapman alleged that this action was necessary due to the fact that those polls did not open in a timely fashion at 6 a.m. After hearing additional testimony and evidence with respect to the petition for injunctive relief, Judge Wachowski denied Torres' request. This appeal is taken Gutierrerz makes several contentions concerning this appeal, among them that the trial court acted within its discretion in denying Torres' request for preliminary injunctive relief. With this contention we agree. A preliminary injunction may be issued if the plaintiff proves, by a preponderance of the evidence, that (1) he possesses a certain and clearly ascertained right which needs protection; (2) he will suffer irreparable injury without the protection of the injunction; (3) there is no adequate remedy at law for the injury; and (4) he is likely to be successful on the merits. (Baal v. McDonald's Corp. (1981), 97 Ill.App.3d 495, 499, 52 Ill.Dec. 957, 422 N.E.2d 1166.) We believe the plaintiff has failed to prove the inadequacy of the remedy at law and also has failed to prove a likelihood of success on the merits.

[97 Ill.Dec. 105] from that denial. In addition, the order of Judge Schneider requiring that the polls remain open is also being appealed and will be considered as the second issue in this appeal.

There is a remedy at law in this case which precludes the granting of the extraordinary remedy of injunctive relief. (City of Chicago v. Festival Theatre Corp. (1982), 91 Ill.2d 295, 312, 63 Ill.Dec. 421, 438 N.E.2d 159.) The plaintiff in his brief on appeal from Judge Wachowski's order specifically requests this court to order a supplementary election and enjoin the certification of Gutierrez. A new election, however, is precisely the relief obtainable in an election contest under the statute, section 21-27 of the Municipal Code. (Ill.Rev.Stat.1985, ch. 24, par. 21-27.) That section provides that any candidate may contest the election for alderman within five days after the election by filing a complaint setting forth the grounds. The Circuit Court of Cook County will then have jurisdiction to conduct hearings and determine whether the candidate who appears to have been elected was in fact elected. If that candidate was not in fact duly elected a supplementary election shall be conducted as provided for in paragraph 21-26 of chapter 24.

Not only is there a remedy at law, the Illinois courts have consistently stated that an election contest was unknown at common law and is strictly a creature of statute. (In re Contest of Election for the Offices of Governor and Lieutenant Governor (1983), 93 Ill.2d 463, 474, 67 Ill.Dec. 131, 444 N.E.2d 170; Young v. Mikva (1977), 66 Ill.2d 579, 6 Ill.Dec. 904, 363 N.E.2d 851.) Election contests under statute have been the subject of litigation in the courts for at least a century during which time an entire body of case law has developed to explain the law of election contests. (See e.g., People ex rel. Cummings v. Head (1861), 25 Ill. 325; Cleland v. Porter (1874), 74 Ill. 76; Smiley v. Lenane (1936), 363 Ill. 66, 1 N.E.2d 213; Whitley v. Frazier (1961), 21 Ill.2d 292, 171 N.E.2d 644; Young v. Mikva (1977), 66 Ill.2d 579, 6 Ill.Dec. 904, 363 N.E.2d 851; In re Contest of Election for the Offices of Governor and Lieutenant Governor (1983), 93 Ill.2d 463, 67 Ill.Dec. 131, 444 N.E.2d 170.) Torres, however, would have the circuit court, under the guise of its equitable powers, overturn the election solely on the contention that the circuit court erroneously extended the voting hours from 7 p.m. to 9 p.m. on election day. This request and the suggestion on appeal that the electoral process was hopelessly and irretrievably tainted cannot supplant this body of law. The separate matter consolidated with this appeal, the ruling of Judge Schneider extending the polling hours, even if it was found to be improper, is not sufficient to overcome the fact that the statutory electoral contest is the proper way to proceed. The decision as to the propriety of Judge Schneider's ruling is simply a fact that will have to be considered in the election contest. Additionally we note that Torres has filed a separate suit under the election contest statute seeking the same relief as that sought here. It would seem patent that both of these causes of action may not subsist side by side.

While there is a remedy at law Torres contends that that remedy is inadequate. He argues that it is inadequate because an As to the contention that Torres needs the aid of the court to issue an injunction, it must be reiterated that election contests are matters of statutory law rather than common law. As such, the Illinois General Assembly has detailed the procedures to be followed and the rights to be afforded in election contest proceedings. Clearly absent from the statute, however, is any provision for the granting of the type of injunctive relief sought by Torres. Thus, to grant Torres' request would require that this court judicially amend the Election Code. Such judicial legislation, we believe, is beyond the duty and power of this court. Moreover, the possible consequences of providing for injunctions could mean that during the course of an election contest, a person who was the apparent winner according to the electoral board would be prevented from assuming office and the predecessor who presumably lost would still hold office. In another situation, if there was a vacancy in the office, the citizens in that governmental unit would be required to go without any representation. We believe that these concerns foreclose this court from using its equitable powers in aid of the statute. Consequently, the plaintiff has failed to prove that the remedy at law is inadequate.

election contest will take quite some time and he needs the injunctive powers of the court to prevent Gutierrez from being certified by the election board and assuming office. As to the time argument, the statute specifically provides that the election contest is to proceed with expedition. Ill.Rev.Stat.1985, ch. 24, par. 21-27, in conjunction with Ill.Rev.Stat.1985, ch. 46, par. 7-63.

As to the contention of Gutierrez that there is no probability of success on the merits the previous comments are directly implicated. Specifically, there is no probability of success on the merits because the ultimate relief requested by Torres, a supplemental election, could not properly be granted by the trial court outside the strictures of the election contest statute.

The second issue in this appeal stems from Torres' appeal from the order entered on March 18, 1986, by Judge Joseph Schneider mandating that the polls in the five precincts in the 26th Ward remain open until 9 p.m. Torres filed a notice of appeal from that order on March 27, 1986. Because of the exigencies of the matter, on March 27, 1986, plaintiff requested that the appeal from the order of Judge Wachowski be consolidated with the appeal from Judge Schneider. On March 31, 1986, this court granted the order of consolidation. On April 1, 1986, Gutierrez filed an objection to the motion to consolidate along with a motion to dismiss the appeal. The motion to dismiss the appeal was denied and a majority of this court reaffirmed the order of consolidation. While all parties were anxious to expedite this matter we find that the record in this case is inadequate and the briefs do not properly present the issues sufficient for this court to rule upon. As a result, the Schneider appeal must be dismissed without prejudice. Bank of...