No. 2--02--0064		

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

JOSEPHINE A. POTTS,  	  )	Appeal from the Circuit Court

	  )	of Du Page County. 

	Plaintiff-Appellee,	  )

	  )

v.		  )	No. 01--MR--338

		  )	

MICHAEL P. FITZGERALD, DIANNE	  )

BARRETT, ANDY SMITH, and MARY		  )	

WILLIAMS; DEAN WESTROM,	  )

Chairman of the Du Page County	  )

Election Commission, in his	  )

official capacity; ROBERT T. 	  )

SAAR, Executive Director of the	  )

Du Page County Election	  )

Commission, in his official	  )

capacity; CLARENDON HILLS PARK	  )

DISTRICT CANVASSING BOARD; KEN	  )

NOLAN, ED HOSEK, AND DONNA	  )

SKUPIEN, not individually but in	  )

their official capacities as	  )

Members of the Clarendon Hills	  )		

Park District Canvassing Board,	  )	

	  )

	Defendants	  )	

	  )	Honorable

(Du Page County Election	  )	Ronald B. Mehling

Commission, Defendant-Appellant).) Judge, Presiding.

_________________________________________________________________

	JUSTICE BYRNE delivered the opinion of the court:

	Defendant the Du Page County Election Commission (Commission)

appeals from the circuit court's denial of its petition for

reimbursement of statutory costs and fees.  We affirm.

	BACKGROUND

	This appeal arose from an action brought by plaintiff,

Josephine A. Potts, challenging her electoral defeat for the office

of park commissioner for the Clarendon Hills Park District, by seeking a recount of the votes cast in an election.  On April 3,

2001, three park district commissioner seats were up for election

in the Clarendon Hills Park District.  The three candidates running

on the ballot included plaintiff and defendants Michael P.

Fitzgerald and Dianne Barrett.  Two additional persons, defendants

Andy Smith and Mary Williams, were declared write-in candidates and

did not appear on the ballot.

	The Clarendon Hills Park District canvassing board (Canvassing

Board) was charged with canvassing the results of the election.  On 

April 9, 2001, the Canvassing Board certified the following

results, as tabulated by the Commission:

		Michael Fitzgerald		1,093 votes

		Dianne Barrett			  700 votes

		Josephine A. Potts		  577 votes

		Andy Smith			  584 votes (write-in)

		Mary Williams			  581 votes (write-in).

Fitzgerald, Barrett, and Smith were declared elected to the office

of park district commissioner, as they were the three highest vote-

getters according to the results tabulated by the Commission on the

night of the election.  Candidates Williams and Potts were declared

not elected.

	On April 13, 2001, plaintiff filed a petition for a discovery

recount, requesting to examine the ballots in 3 of the 12 Clarendon

Hills Park District precincts.  The discovery recount was conducted

on April 27, 2001.  The recount indicated several improperly

counted votes, and plaintiff filed a petition in the circuit court

contesting the election.

	Following a hearing on the motions, the trial court granted an

order to recount all precincts involved in the April 3, 2001,

election for Clarendon Hills Park District commissioner.  During

the course of this recount, it was discovered that an error in

tabulation was made by the Commission, which resulted in the write-

in vote totals for Williams and Smith being transposed.  It is

undisputed that, had that error not occurred, Williams would have

been credited with more votes than Smith and would have been

declared elected.  In addition to this error, other changes in the

vote totals were made during the recount.  Following the conclusion

of the recount, the Commission presented a report to the trial

court.

	On September 12, 2001, the trial court issued an order

changing the results of the election pursuant to the recount, as

follows:

		Michael Fitzgerald		1,093 votes

		Dianne Barrett			  700 votes

		Josephine A. Potts		  572 votes

		Andy Smith			  586 votes (write-in)

		Mary Williams			  593 votes (write-in).

Based on the trial court's order, Williams was declared one of the

three winners of the election.  Smith was determined not to have

been elected to the office of park district commissioner.

	Following the court's order changing the results of the

election, the Commission filed a petition for reimbursement of

costs and fees pursuant to section 23--23 of the Election Code (10

ILCS 5/23--23 (West 2000)).  Plaintiff argued that, under the statute, the Commission was precluded from recouping recount costs

because "someone other than the person whose election [was]

contested" was declared as elected.  The trial court agreed and

denied the Commission's petition, finding that a reading of section

23--23 as a whole indicated that, if a recount resulted in a change

in the outcome of an election, the petitioner is not required to

pay costs or fees.  This timely appeal followed. 

	ANALYSIS

	The fundamental issue presented by this appeal involves the

construction of section 23--23, which states in relevant part:

	"Such Board of Election Commissioners or the Canvassing Board,

as the case may be, shall receive such compensation for its

services and such allowances for the services of its

assistants and for reimbursement of expenses incurred by it as

shall be approved by the court, and all such compensation and

allowances when approved by the court shall be taxed and

allowed as costs in such cause.  The court may from time to

time *** require the parties to the cause or any of them to

deposit such amounts of money with the court as security for

costs as the court may deem reasonable and proper.

		***

		Any money deposited as security for costs by a petitioner

contesting an election must be returned to such petitioner if

the judgment of the court is to annul the election or to

declare as elected someone other than the person whose

election is contested."  10 ILCS 5/23--23 (West 2000).

	Well-established principles guide us in resolving an issue of

statutory construction.  The primary rule of statutory construction

is to ascertain and give effect to the legislature's intent.  In re Marriage of Mitchell, 181 Ill. 2d 169, 173 (1998).  To determine the legislature's intent, a court first should look to the

statute's plain language and should accord the language its plain

and commonly understood meaning.  Department of Public Aid ex rel. Davis  v. Brewer, 183 Ill. 2d 540, 554 (1998).  The court must not read into the plain language exceptions, limitations, or conditions

that the legislature did not intend.  The statute should be read as

a whole and construed so that no word, phrase, or section is

rendered meaningless or superfluous.  Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990).  An issue of statutory construction is a

question of law to which we employ a de novo standard of review.  Brewer, 183 Ill. 2d at 554.

	The Commission contends that it is entitled to reimbursement

of recount costs and expenses because the statute mandates that the

Commission receive compensation for its services.  The Commission asserts that this absolute right is only impaired when the trial

court either annuls the election or declares as elected someone

other than the person whose election is contested.  The Commission

believes that neither of these circumstances occurred here because

plaintiff failed to achieve the result for which she petitioned and

was not declared elected.  In other words, the Commission asserts

that reimbursement of costs and fees is contingent on the success

of a petitioner's challenge and, because the results of the election did not change as to plaintiff, it is entitled to

reimbursement of costs and fees. 

	We disagree that the reimbursement of costs and fees is based

on the success of the petitioner.  Rather, it is clear that the

legislature intended that reimbursement is not required if the

overall outcome of the election is changed by the recount.  Under

section 23--23, the trial court considers the issue of assessing

recount expenses on a case-by-case basis, as is exhibited by the

discretionary language regarding the assessment of fees and costs

following a recount and the posting of a bond prior to a recount. 

The reimbursement provision of section 23--23, by its terms,

provides explicit directions to the trial court regarding fees and

costs where the outcome of the election changes as a result of a

recount.  As the plain language of the statute mandates, in cases

where the court either annuls the election or "declare[s] as

elected someone other than the person whose election is contested," any money deposited as security for costs must be returned. 

(Emphasis added.)  10 ILCS 5/23--23 (West 2000).  The legislature

used the term "someone" rather than "petitioner," and we must give

effect to this legislative intent.

	The statute does not specifically provide that costs are not

to be assessed if the petitioner does not deposit security for

costs.  However, to impose costs in such a case would render

meaningless the mandatory refund of the deposit when the results of

the recount are changed.  We note that here, no bond was posted. 

However, if a bond had been posted, the statute mandates a refund. 

	Furthermore, there is no provision under section 23--23 that

grants the trial court the authority to assess costs against an

unsuccessful candidate in the event that a recount proves

unsuccessful to a petitioner who is a noncandidate.  Any voter has

standing to contest an election and petition for a recount, not

simply a candidate.  See 10 ILCS 5/23--–--20 (West 2000); Robinson v. Jones, 186 Ill. App. 3d 82, 87 (1989).  A noncandidate voter who petitions for a recount could never be deemed successful in an

election recount if that success were based on whether the recount

caused the petitioner to be elected.  In construing a statute, the

court should follow a construction of the statute that leads to a

logical result and avoid one that the legislature did not

contemplate.  In re Marriage of Burke, 185 Ill. App. 3d 253, 258 (1989).  Utilizing the ultimate election of the petitioner as a

standard for whether costs should be assessed would lead to an

illogical result.  	

	The Commission contends that public policy considerations

support its interpretation of section 23--23.  The Commission

asserts that, where a recount is conducted at the petitioner's

request but fails to achieve the result the petitioner hopes for,

the costs logically should be shifted to the petitioner.  The

Commission asserts that this protects taxpayers from shouldering

the costs of unsuccessful recounts and forces those who protest the

election counts to think twice before petitioning.  The Commission

points out that shifting the financial burden to the Commission

gives any unsuccessful candidate in a close election the impetus to petition for a recount, which would substantially increase the

filing of frivolous petitions.  We disagree.   

	Clearly, the reimbursement provision prevents the filing of

frivolous petitions.  By providing that reimbursement is contingent

on the outcome of the election, rather than the petitioner's

desired result, the legislature intended to strike a fair and

equitable balance between deterring frivolous recounts and

providing an avenue for the review of election results.  In those

cases where the recount indicates an error in tabulation that

alters the outcome of the election, the Commission logically should

shoulder the expense of its mistake.  On the other hand, where the recount does not change the result, the petitioner should bear the expense. 

	We note that the legislature has carefully contemplated and

enacted a number of other statutory mechanisms to ensure that

frivolous and baseless recounts are not conducted.  For example, a

discovery recount must be conducted before an election petition can

be filed in order to determine if there is a basis for moving

forward with the recount.  10 ILCS 5/22--9.1 (West 2000).  Furthermore, a candidate is permitted to petition for a discovery

recount only where he or she received at least 95% of the number of

votes cast for the successful candidate.  10 ILCS 5/22--9.1(a)

(West 2000).  Also, a court considering an election contest petition cannot order a recount unless there appears a "reasonable

likelihood" that the recount will change the results of the

election.  10 ILCS 5/23--23.2 (West 2000). 

	It is a cardinal rule of statutory construction that the

intent and meaning of a statute are to be determined based on the

entire statute, and all its sections are to be construed together

in light of the general purpose and plan, the evil intended to be

remedied, and the object to be obtained.  Ohlinger v. Village of Round Lake Park, 275 Ill. App. 3d 931, 934 (1995); Orbach v. Axelrod, 100 Ill. App. 3d 973, 977-78 (1981).  Were we to accept the Commission's interpretation of section 23--23, we would

attribute a meaning to the statute other than that expressed by its

language.  We decline to do so.  Accordingly, we find that the

balance of the assessment of costs and fees is not against public

policy or contrary to the objectives of the electoral process. 

Because the recount uncovered an election-changing mistake made by

the Commission during the vote counting and resulted in a new

winner being declared elected, plaintiff is not required to

reimburse the Commission for costs and fees.

	For the foregoing reasons, we affirm the judgment of the

circuit court of Du Page County. 

	Affirmed. 

	HUTCHINSON, P.J., and GROMETER, J., concur.