## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Langenstein v. Kass im ali , 2012 IL App (5th) 120343

Appellate Court Caption SHAREE LANGEN STEI N, Candidate of the Republican P ar ty for the Offic e of J ackson County State’s Attorney in the Gene ral Election to be h el d on November 6, 2012, Petitioner-Appellant, v. MAUREEN KASSI MAL I and DeWI TT McGRI FF
, Objector s, J ACKSO N CO UNTY OFF I CERS EL ECTORAL BO ARD, and I ts Members, MI CHAEL WEP SI EC, LARRY REI

NHARDT, and ROBERT BU RNS, All in Their Of ficial Capac ity as J ackson County State’s Attorney
, J ackson Co u n t y Clerk, and J ackson C o u n ty Sheriff, Respectively
, RespondentsAppellee s.–CHRI ST I

NE WARD OSI

NGA, Candidate of the Republican Party for J ackson County Circuit Clerk in the Gene ral Election to be held on November 6, 2012, Petitioner-Appellant, v. CHRI STI NA PORRI TT and DeWI TT M cGRI FF
, Objector s, J ACKSON C OUNTY OFF I CERS EL ECTORAL BO ARD and I ts Memb er s, MI CHAEL WEP SI EC, LARRY REI

NHARDT, and ROBERT BU RNS, Al l in Their Offic ial Capac ity as J ackson County State’s Attorney
, J ackson County Clerk, and J a c k s o n C o u n t y S h e r i f f
, R e s p e c t i v e l y , R e s p o n d e n t s

Appellee s.–WI L L IAM J

. “B I L L ” BU RKE, Candidate of the Republican Party for J ackson County Boa rd, District 3, in the Gene ral Election to be held on Novem b er 6, 2012, Petitioner-Appellant, v. CHRI STI NA PORRI TT and J AMES CL OUGH, Objectors
, J ACKSON COUNTY OFF I CERS EL ECTORAL BO ARD and its Members, MI CHAEL WEP SI EC, LARRY REI

NHARDT, and ROBERT BU RNS, All in Their Offic ial Capac ity as J ackson County State’s Atto rn ey , J ackson County Cl e r k
, a n d Ja ckson County Sherif

f
, Re s p e c ti v e ly
, Re s p o n d e n ts

- A p p e ll e e s

.

District & N o. Fifth District Docke t Nos. 5-12-0343, 5-12- 0346, 5-12-0347 c ons.

Filed August 23, 2012Held

(Note : This syl lab us

con st it ute s no pa r t of the opi nio n of the cour t but has bee n pre

par ed by t he Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Appellants’ service of their petitions for revie w of dec i s i o n s of responde nt elec toral board fi n d i n g appellants ineligible to appea r on a ballot on the individual members of the board without serving the board
separ ately was sufficie nt to satisfy section 10-10.1 of the Election Code and invoke the c ircuit court’ s subject matter jurisdiction.

Dec ision Under Review Appea l from the Circuit Court of J ackson County
, Nos. 12-MR-135, 12- MR-136, 12-MR-138; the Hon. Todd D. L amber t, J udg e, pre siding.

J udg ment Reverse d and re manded.

Counsel on Appea l Sharee S. L ang enstein, of L aw Offic e of Sharee S. L ang en s t ei n , of Murphy sboro, for a

ppellants.

Daniel Br enner , State’s Attorney
, of Murphy sboro, and J ohn R. Clemons and Michae l Bur

ke, both of Southern I llinois L aw Center, of Carbondale
, for a ppellees.

Panel J USTI CE WEL CH delivere d the judg ment of the c ourt, with opinion.
J ustice Wex stten concur

red in the judg ment and opinion. Presiding Justice Donovan dissented, w ith opinion.

OP INION

¶ 1 In these three case s, consolidated by this court fo r ar gu m en t and decision, appe llants
contest the decisions of the J ackson County Offic ers Electora l Boa rd (B oard) that appellants

are ineligible to a

ppear on the ballot f

or the g ener al elec tion on November 6, 2012. For the

rea sons that follow, we disag ree with the circ uit court of J ackson County ’s decision that the appellants failed to comply with the proce dures nece ssary to invoke the court’s jurisdiction

over the d ec i s i o n s o f the Boa rd. Acc ording ly
, we reve rse the circ uit court’s decision and

rema nd for f urther pr ocee dings.

-2-¶ 2 On J une 11, 2012, objectors Maure en Kassimali and DeWitt McGrif f filed an objection wi t h the Boa

rd to the petition for candida cy of Sharee L ang enstein. L ang enstein s o u gh t nomination as the Republican candidate for State’s Attorney of J acks on County in the
g ener al elec tion to be held on Novem b er 6, 2012. On that same date, objectors Christina Porritt and McGrif

f filed an objection to the petition for candida cy of Christine Ward Osing a, who sought n o m i n ation as the Republican candida te for circ uit cler

k in the same g ener al elec tion. Porritt, along with objector J ames Clough, also filed an objection to the petition for candida cy of Wil liam J

. “B ill” B urke, who soug ht nomination as the Republican candidate for Jackson County

Boa rd, District 3, also in the same g ener al elec tion. ¶ 3 On J une 18, 2012, the Boa rd convene d to hold hear ings on all objections. Following the hear ings, the Boa

rd issued written decisions in which it sustained, in pa rt, the objections to the candida ci es of L ang enstein, Osing a, and Bur ke (appe llants), there by deter mining that appellants would not be place d on the ballot for the g ener al elec tion. Appellants filed timely petitions for judicial revie w. The petitions wer e serve d upon the individual members of the Boa rd, but wer e not serve d upon the Boa rd itself as a separ ate leg al entity

. Objector s moved
to dismiss the petitions for judicial revie w, contending that the Boa rd had not been proper ly

serve d with the petit ions, and that therefor e the trial court was without jurisdiction to hear the petitions. The court agree d and dismiss ed the petitions with prejudice

. Appellants appea l, contending the court err ed in dismiss ing their petitions beca use providing ballot acc ess should be the primary conce rn and remova l of a candidate from a ballot should only be done in the most egreg ious of circ umstances. Appellants argue that p er s o nal service upon the individual members of the Boa rd constituted service on the Boa rd itself within t h e intendment of the I llinois Election Code (10 I L CS 5/ 10-10.1 (West 2010)). ¶ 4 We beg in our analy sis by noting that courts in I ll i n o i s possess no inhere nt authority to resolve disputes relating to elec tions. Our authority is derive d strictly by statute. Zack v. Ott
, 381 I ll. App. 3d 545, 548, 886 N.E.2d 487, 489 (2008). Ac co rd i n gl y , the require ments mandated on a party seeking judicial revie w of an elec toral board’ s decision as provided in the Election Code are jurisdictional require ments that must be followed. Id. at 5 4 8
, 8 86 N.E.2d at 489; R i t a v. Ma yden , 364 I ll. App. 3d 913, 917, 847 N.E.2d 578, 581 (2006). Whether any court is de prived of subject matter jurisdiction by a petitioner’s alleg ed failed compliance with the require ments of the Election Code is a question of law and, as such, is revie wed de novo

. Nelson v. Qua lki n b ush
, 389 I ll. App. 3d 79, 83, 907 N.E.2d 400, 404 (2009). ¶ 5 Objector s argue that the appellants’ petitions for judicial revie w wer e only serve d on the individual members of the Boa rd, and not on the Boa

rd as a separ ate leg al entity

. Acc ording
to the objectors, the appellants failed to strictly comply with the languag e of section 10-10.1 of the Election C o de (10 I L CS 5/10-10.1 (West 2010)), which require s that a petition for judicial revie w be serve d upon “the elec toral board.” There fore
, they conclude that the circ uit
court did not have jurisdicti o n t o revie w the elec toral board’ s decision. In response , the appellants argue that service on the i ndividual board me mbers wa s sufficient to satisfy the statutory require ments of section 10-10.1 beca use nothing in the Election Code sug g ests that the county elec tion board exis ts beyond its individual members or that separ ate, duplicative service must be made upon the e ntity and its members. We ag ree with the appellants.

-3-¶ 6 Section 10-10.1(a ) of the Election Code (10 I L CS 5/ 10-10.1(a ) (West 2010)) sets forth

the following require ments for service of the petition for revie w: “The party seeking judicial revie w must file a petition with the cler k of the c ourt and must serve a copy of the pe tition
upon the electoral b o ard and other parties to the proceeding by reg istered or cer tified mail ***.” Acc ording to section 10-9(2) of the Election Code (10 I L CS 5/10-9(2) (West 2010)), the county elec toral board is comprised of the following members: the coun t y cl er k or an assi s t an t d esig nated by the county cler k, the State’s Attorney of the county or an assistant State’s Attorney

desig nated by

the State’s Attorne y , and the c lerk of the circ uit court or an assistant desig nated by the circ uit court cler k. Fur ther, section 10-9(2) desig nates the county cler k or his desig nee a s the cha irman of the c ounty elec toral boar d. ¶ 7 In this c ase, the B oard is a te mporary entity convene d for a particula r purpose and then dissolved once that purpose has been rea liz ed. There fore
, in order for the appellants to serve the Boa rd with their petitions for revie w, they would be require d to serve the J ackson County cler k. The appellants serve d the petitions upon the individual members of the Boa rd, which included the county cler

k (in his indivi du al capa city as a board member)

. Be cause the appellants serve d the petitions for re v i ew on the members of the county elec tion board desig nated under section 10-9, we find that the re quirements of section 10-10.1 have been followed. Acc ording ly
, we conclude that the circ uit court had subject matter jurisdiction to consider the appellants’ pe titions for r eview. ¶ 8 We rec og nize that the objectors cited Nelson v. Qualkinbush
, 389 I ll. App. 3d 79, 87, 907 N.E.2d 400, 407 (2009), a First District ca se, for the proposition that failure to serve a petition for judicial re view upon an electora l board as a sepa rate leg al entity

is tantamount
to a failure to stric tly comply with the Election Code, depriving both the trial and appellate
courts of subject matter jurisdiction to revie w the decision of the elec toral board. Howeve r,

we decline to follow the rea soning of Nelson as we are not require d to rec og nize horizontal stare decisis

. ¶ 9 Fur

ther, we note that Rivera v. C i t y o f C h i ca g o Electoral Board
, 2011 I L App (1st) 110283, 956 N.E.2d 20, another First District case , also held that the challeng ing party must

s er v e t h e el ector al board as a separ ate leg al entity in order to satisfy the require ments of section 10-10.1

. Ho we v er, Rivera is clea rly distinguishable. In Rivera
, 2011 I L App (1st) 110283, ¶ 33, 956 N.E.2d 20, the c ourt conc luded that it lacked subje ct matter jurisdiction beca use t he petiti oner failed to show that he had sent the parties a copy of hi s petition “by
reg istered or cer

tified mail” and beca

use he improperly serve d the board members’ attorney

. The court sta t ed that “in the context of elec tion case s, service to a party ’s attorney , rathe r than to a party persona lly
, is e ntirely improper under the Code and direc tly violates section 10-10.1.” Id. ¶ 10 The Secon d Di s t ri ct ’s decision in Zack v. Ott
, 381 I ll. App. 3d 545, 886 N.E.2d 487 (2008), bolsters our

position. I n Zack, the cour t stated the following : “Our rea ding of section 10-10.1 reve als that the Gene ral Assem b ly intended for
p ro ce dural due proce ss to be acc omplished by an objector serving the elec toral b o ar d members with the petit ion by reg istered or cer tified mail. Appar ently
, the Gene ral Assembly believed that the additional task of naming the parties serve d was unnece ssary

.

-4-I f the Gene ral Assembly had intended a caption require ment and th e n am ing of the parties, it would have included them in section 10-10.1.” Id

. at 5 5 0 -51, 886 N.E.2d at 491. ¶ 11 Her e, proce dural due proce ss was acc omplished by “ser ving the elec toral board members with the petition.” The petitioners proper ly serve d the individual members of the Boa rd, including the county cler k in his individual capa city as a b o ard member. L ike Zack
, we conclude that the petitioners’ serving of duplicate paper s to the county cler k, in order to serve the board separ ately
, was unnece ssary to invoke the subject matter jurisdiction of the court. ¶ 12 L ast, we note that our decision is co n sistent with the strong public policy that I llinois courts fa vor ballot ac cess f

or ca ndidates who wish to run for public office

. ¶ 13 For the foreg oing rea sons, we conclude that the c ircuit court incor rec tly held i t did not have subject matter jurisdiction over appellants’ challeng es to the Boa rd’s decisions. Acc ording ly
, the judgme nt of the circ uit court of J ackson County is reve rsed and the mandate shall issue immediately

.

¶ 14 Reverse d and re manded.

¶ 15 PRES I DI

NG JUS TI CE DONOVA N, dissenting. ¶ 16 Whil e I agree that public policy favor s ballot acc ess, t hat does not mean that we are to bend the law to allow such acc ess. Personal service upon the individu al m ember s of the Boa rd does not constitute service on the Boa rd i t s elf within the intendment of the I llinois Election C ode (10 I L CS 5/10-10.1 (West 2010)). As the majority points out, our authority
to resolve disputes rela

ting to elec tions is derive d strictly by statute. A party seeking judicial revie w of an elec toral board’ s decision there fore must strictly follow the mandates set forth in the El ection C o d e in order to confe r j urisdiction upon us or any court of revie w. Rita v. Mayde n , 364 I ll. App. 3d 913, 917, 847 N.E.2d 578, 581 (2006). ¶ 17 The languag e of section 10-10.1 of the I llinois Election Code (10 I L CS 5/10-10.1 (West 2010)) require s that a petition for judicial revie w be serve d upon “the elec toral board.” The elec toral board i s a s ep ar at e leg al entity
, and as such, it too neede d to be serve d in this instance. As rec og nized in Rivera v. City of Chicago Electoral Board
, 2011 I L App (1st) 110283, 956 N.E.2d 20, “in acc ordanc e with the well-e stablished rules of strict compliance with the Code, petitioner must have strictly followed the service require ment of section 10- 10.1, which prescribe s who m ust be served, how they must b e served and when they must be serve d with his petition for judicial revie w. *** Clearly
, from the statutory languag e, this includes the Boa

rd itself, as the entity that issued the decision which the petitioner seeks to challeng e.” Rivera
, 2011 I L App (1st) 110283, ¶¶ 23-24, 956 N.E.2d 20; see also Nelson v. Qualkin b u s h
, 389 I ll. App. 3d 79, 87, 907 N.E.2d 400, 407 (2009). Neither Nelson nor R ivera has been overr

uled by the I llinois Supreme Court, or called into question b y an y subsequent decision, nor has the Gene ral Assembly amende d the Election Code in response to either decision. As stated in Harve y Firemen’

s Ass’n v. City of

Harve y , 75 I ll. 2d 358, 389 N.E.2d 151 (1979), “ ‘It is never proper for a court to depar t from plain languag e by rea ding into a statute exceptions, limit ations or conditions which conflict with the clea rly expressed

-5-leg islative intent.’ ” Harve y Firemen’

s Ass’n
, 75 I ll. 2d at 363, 389 N.E.2d at 153 (quoting Certain Taxpayers v. She ahen , 45 I ll. 2d 75, 84, 256 N.E.2d 758, 764 (1970)). ¶ 18 The majority cites Zack v. O tt , 381 I ll. App. 3d 545, 548, 886 N.E.2d 487, 489 (2008), in support of its opinion. I t is true that the Zack court, when listi ng the four require ments of section 10-10.1, state d that the petition f or judicial revie w must be serve d upon, inter alia
, “the Elec t o ra l Bo ard members,” rathe r than upon “the elec toral board” that is expli citly mentioned in section 10-10.1. Howeve r, as the Nelson court points out, the Zack court was

conce rned with the question of whether section 10-10.1 require s naming an elec toral board

as a party in the caption for jurisdictional purposes, and was not conce rned with the question of service of proce ss. Nelson
, 389 I ll. Ap p

. 3 d at 87, 907 N.E.2d at 407. Acc ording ly
, I believe that the Zack

opinion is i napposite to the ca se at ba r. ¶ 19 Given the languag e of the El ection C ode and our l imited jur i s d i ct i o n , I must conclude that appellants failed to strictly comply with the Election Code by not serving their petitions for judicial review upon the Boa rd itself as a

separ ate leg al entity , and as a result, we have

no j u ri s diction to consider the petitions for judicial revie w. I there fore believe the instant
appea ls must be dism issed.

-6-