ILLINOIS OFFICIAL REPORTS

Appellate Court

Langenstein v. Kassimali, 2012 IL App (5th) 120343

Appellate Court

Caption

SHAREE LANGENSTEIN, Candidate of the Republican Party for the

Office of Jackson County State’s Attorney in the General Election to be

held on November 6, 2012, Petitioner-Appellant, v. MAUREEN

KASSIMALI and DeWITT McGRIFF, Objectors, JACKSONCOUNTY

OFFICERS ELECTORAL BOARD, and Its Members, MICHAEL

WEPSIEC, LARRY REINHARDT, and ROBERT BURNS, All in Their

Official Capacity as Jackson County State’s Attorney, Jackson County

Clerk, and Jackson County Sheriff, Respectively, RespondentsAppellees.–CHRISTINE WARD OSINGA, Candidate of the Republican

Party for Jackson CountyCircuit Clerk in the General Election to be held

on November 6, 2012, Petitioner-Appellant, v. CHRISTINA PORRITT

and DeWITT McGRIFF, Objectors, JACKSON COUNTY OFFICERS

ELECTORAL BOARD and Its Members, MICHAEL WEPSIEC,

LARRY REINHARDT, and ROBERT BURNS, All in Their Official

Capacity as Jackson County State’s Attorney, Jackson CountyClerk, and

Jackson County Sheriff, Respectively, RespondentsAppellees.–WILLIAM J. “BILL” BURKE, Candidate of the Republican

Party for Jackson County Board, District 3, in the General Election to be

held on November 6, 2012, Petitioner-Appellant, v. CHRISTINA

PORRITT and JAMES CLOUGH, Objectors, JACKSON COUNTY

OFFICERS ELECTORAL BOARD and its Members, MICHAEL

WEPSIEC, LARRY REINHARDT, and ROBERT BURNS, All in Their

Official Capacity as Jackson County State’s Attorney, Jackson County

Clerk, and Jackson CountySheriff,Respectively,Respondents-Appellees.

 District & No. Fifth District

Docket Nos. 5-12-0343, 5-12-0346, 5-12-0347 cons.

Filed August 23, 2012
Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Appellants’ service of their petitions for review of decisions of

respondent electoral board finding appellants ineligible to appear on a

ballot on the individual members of the board without serving the board

separately was sufficient to satisfy section 10-10.1 of the Election Code

and invoke the circuit court’s subject matter jurisdiction.

Decision Under 

Review

Appeal from the Circuit Court of Jackson County, Nos. 12-MR-135, 12-

MR-136, 12-MR-138; the Hon. Todd D. Lambert, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

Sharee S. Langenstein, of Law Office of Sharee S. Langenstein, of

Murphysboro, for appellants.

Daniel Brenner, State’s Attorney, of Murphysboro, and John R. Clemons

and Michael Burke, both of Southern Illinois Law Center, of Carbondale,

for appellees.

Panel JUSTICE WELCH delivered the judgment of the court, with opinion.

Justice Wexstten concurred in the judgment and opinion.

Presiding Justice Donovan dissented, with opinion.

OPINION

¶ 1 In these three cases, consolidated by this court for argument and decision, appellants

contest the decisions of the Jackson County Officers Electoral Board (Board) that appellants

are ineligible to appear on the ballot for the general election on November 6, 2012. For the

reasons that follow, we disagree with the circuit court of Jackson County’s decision that the

appellants failed to comply with the procedures necessary to invoke the court’s jurisdiction

over the decisions of the Board. Accordingly, we reverse the circuit court’s decision and

remand for further proceedings.

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¶ 2 On June 11, 2012, objectors Maureen Kassimali and DeWitt McGriff filed an objection

with the Board to the petition for candidacy of Sharee Langenstein. Langenstein sought

nomination as the Republican candidate for State’s Attorney of Jackson County in the

general election to be held on November 6, 2012. On that same date, objectors Christina

Porritt and McGriff filed an objection to the petition for candidacyof Christine Ward Osinga,

who sought nomination as the Republican candidate for circuit clerk in the same general

election. Porritt, along with objector James Clough, also filed an objection to the petition for

candidacy of William J. “Bill” Burke, who sought nomination as the Republican candidate

for Jackson County Board, District 3, also in the same general election.

¶ 3 On June 18, 2012, the Board convened to hold hearings on all objections. Following the

hearings, the Board issued written decisions in which it sustained, in part, the objections to

the candidacies of Langenstein, Osinga, and Burke (appellants), thereby determining that

appellants would not be placed on the ballot for the general election. Appellants filed timely

petitions for judicial review. The petitions were served upon the individual members of the

Board, but were not served upon the Board itself as a separate legal entity. Objectors moved

to dismiss the petitions for judicial review, contending that the Board had not been properly

served with the petitions, and that therefore the trial court was without jurisdiction to hear

the petitions. The court agreed and dismissed the petitions with prejudice. Appellants appeal,

contending the court erred in dismissing their petitions because providing ballot access

should be the primary concern and removal of a candidate from a ballot should only be done

in the most egregious of circumstances. Appellants argue that personal service upon the

individual members of the Board constituted service on the Board itself within the

intendment of the Illinois Election Code (10 ILCS 5/10-10.1 (West 2010)).

¶ 4 We begin our analysis by noting that courts in Illinois possess no inherent authority to

resolve disputes relating to elections. Our authority is derived strictly by statute. Zack v. Ott,

381 Ill. App. 3d 545, 548, 886 N.E.2d 487, 489 (2008). Accordingly, the requirements

mandated on a party seeking judicial review of an electoral board’s decision as provided in

the Election Code are jurisdictional requirements that must be followed. Id. at 548, 886

N.E.2d at 489; Rita v. Mayden, 364 Ill. App. 3d 913, 917, 847 N.E.2d 578, 581 (2006).

Whether any court is deprived of subject matter jurisdiction by a petitioner’s alleged failed

compliance with the requirements of the Election Code is a question of law and, as such, is

reviewed de novo. Nelson v. Qualkinbush, 389 Ill. App. 3d 79, 83, 907 N.E.2d 400, 404

(2009).

¶ 5 Objectors argue that the appellants’ petitions for judicial review were only served on the

individual members of the Board, and not on the Board as a separate legal entity. According

to the objectors, the appellants failed to strictly comply with the language of section 10-10.1

of the Election Code (10 ILCS 5/10-10.1 (West 2010)), which requires that a petition for

judicial review be served upon “the electoral board.”Therefore, they conclude that the circuit

court did not have jurisdiction to review the electoral board’s decision. In response, the

appellants argue that service on the individual board members was sufficient to satisfy the

statutory requirements of section 10-10.1 because nothing in the Election Code suggests that

the county election board exists beyond its individual members or that separate, duplicative

service must be made upon the entity and its members. We agree with the appellants.

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¶ 6 Section 10-10.1(a) of the Election Code (10 ILCS 5/10-10.1(a) (West 2010)) sets forth

the following requirements for service of the petition for review: “The party seeking judicial

review must file a petition with the clerk of the court and must serve a copy of the petition

upon the electoral board and other parties to the proceeding by registered or certified mail

***.” According to section 10-9(2) of the Election Code (10 ILCS 5/10-9(2) (West 2010)),

the county electoral board is comprised of the following members: the county clerk or an

assistant designated by the county clerk, the State’s Attorney of the county or an assistant

State’s Attorney designated by the State’s Attorney, and the clerk of the circuit court or an

assistant designated by the circuit court clerk. Further, section 10-9(2) designates the county

clerk or his designee as the chairman of the county electoral board.

¶ 7 In this case, the Board is a temporary entity convened for a particular purpose and then

dissolved once that purpose has been realized. Therefore, in order for the appellants to serve

the Board with their petitions for review, theywould be required to serve the Jackson County

clerk. The appellants served the petitions upon the individual members of the Board, which

included the county clerk (in his individual capacity as a board member). Because the

appellants served the petitions for review on the members of the county election board

designated under section 10-9, we find that the requirements of section 10-10.1 have been

followed. Accordingly, we conclude that the circuit court had subject matter jurisdiction to

consider the appellants’ petitions for review.

¶ 8 We recognize that the objectors cited Nelson v. Qualkinbush, 389 Ill. App. 3d 79, 87, 907

N.E.2d 400, 407 (2009), a First District case, for the proposition that failure to serve a

petition for judicial review upon an electoral board as a separate legal entity is tantamount

to a failure to strictly comply with the Election Code, depriving both the trial and appellate

courts of subject matter jurisdiction to review the decision of the electoral board. However,

we decline to follow the reasoning of Nelson as we are not required to recognize horizontal

stare decisis.

¶ 9 Further, we note that Rivera v. City of Chicago Electoral Board, 2011 IL App (1st)

110283, 956 N.E.2d 20, another First District case, also held that the challenging party must

serve the electoral board as a separate legal entity in order to satisfy the requirements of

section 10-10.1. However, Rivera is clearly distinguishable. In Rivera, 2011 IL App (1st)

110283, ¶ 33, 956 N.E.2d 20, the court concluded that it lacked subject matter jurisdiction

because the petitioner failed to show that he had sent the parties a copy of his petition “by

registered or certified mail” and because he improperly served the board members’ attorney.

The court stated that “in the context of election cases, service to a party’s attorney, rather

than to a party personally, is entirely improper under the Code and directly violates section

10-10.1.” Id.

¶ 10 The Second District’s decision in Zack v. Ott, 381 Ill. App. 3d 545, 886 N.E.2d 487

(2008), bolsters our position. In Zack, the court stated the following:

“Our reading of section 10-10.1 reveals that the General Assembly intended for

procedural due process to be accomplished by an objector serving the electoral board

members with the petition by registered or certified mail. Apparently, the General

Assembly believed that the additional task of naming the parties served was unnecessary.

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If the General Assembly had intended a caption requirement and the naming of the

parties, it would have included them in section 10-10.1.” Id. at 550-51, 886 N.E.2d at

491.

¶ 11 Here, procedural due process was accomplished by“serving the electoral board members

with the petition.” The petitioners properly served the individual members of the Board,

including the county clerk in his individual capacity as a board member. Like Zack, we

conclude that the petitioners’ serving of duplicate papers to the county clerk, in orderto serve

the board separately, was unnecessary to invoke the subject matter jurisdiction of the court.

¶ 12 Last, we note that our decision is consistent with the strong public policy that Illinois

courts favor ballot access for candidates who wish to run for public office.

¶ 13 For the foregoing reasons, we conclude that the circuit court incorrectly held it did not

have subject matter jurisdiction over appellants’ challenges to the Board’s decisions.

Accordingly, the judgment of the circuit court of Jackson County is reversed and the mandate

shall issue immediately.

¶ 14 Reversed and remanded.

¶ 15 PRESIDING JUSTICE DONOVAN, dissenting.

¶ 16 While I agree that public policy favors ballot access, that does not mean that we are to

bend the law to allow such access. Personal service upon the individual members of the

Board does not constitute service on the Board itself within the intendment of the Illinois

Election Code (10 ILCS 5/10-10.1 (West 2010)). As the majority points out, our authority

to resolve disputes relating to elections is derived strictly by statute. A party seeking judicial

review of an electoral board’s decision therefore must strictly follow the mandates set forth

in the Election Code in order to confer jurisdiction upon us or any court of review. Rita v.

Mayden, 364 Ill. App. 3d 913, 917, 847 N.E.2d 578, 581 (2006).

¶ 17 The language of section 10-10.1 of the Illinois Election Code (10 ILCS 5/10-10.1 (West

2010)) requires that a petition for judicial review be served upon “the electoral board.” The

electoral board is a separate legal entity, and as such, it too needed to be served in this

instance. As recognized in Rivera v. City of Chicago Electoral Board, 2011 IL App (1st)

110283, 956 N.E.2d 20, “in accordance with the well-established rules of strict compliance

with the Code, petitioner must have strictly followed the service requirement of section 10-

10.1, which prescribes who must be served, how they must be served and when they must

be served with his petition for judicial review. *** Clearly, from the statutory language, this

includes the Board itself, as the entity that issued the decision which the petitioner seeks to

challenge.” Rivera, 2011 IL App (1st) 110283, ¶¶ 23-24, 956 N.E.2d 20; see also Nelson v.

Qualkinbush, 389 Ill. App. 3d 79, 87, 907 N.E.2d 400, 407 (2009). Neither Nelson nor

Rivera has been overruled by the Illinois Supreme Court, or called into question by any

subsequent decision, nor has the General Assembly amended the Election Code in response

to either decision. As stated in Harvey Firemen’s Ass’n v. City of Harvey, 75 Ill. 2d 358, 389

N.E.2d 151 (1979), “ ‘It is never proper for a court to depart from plain language by reading

into a statute exceptions, limitations or conditions which conflict with the clearly expressed

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legislative intent.’ ” Harvey Firemen’s Ass’n, 75 Ill. 2d at 363, 389 N.E.2d at 153 (quoting

Certain Taxpayers v. Sheahen, 45 Ill. 2d 75, 84, 256 N.E.2d 758, 764 (1970)).

¶ 18 The majority cites Zack v. Ott, 381 Ill. App. 3d 545, 548, 886 N.E.2d 487, 489 (2008),

in support of its opinion. It is true that the Zack court, when listing the four requirements of

section 10-10.1, stated that the petition for judicial review must be served upon, inter alia,

“the Electoral Board members,” rather than upon “the electoral board” that is explicitly

mentioned in section 10-10.1. However, as the Nelson court points out, the Zack court was

concerned with the question of whether section 10-10.1 requires naming an electoral board

as a party in the caption for jurisdictional purposes, and was not concerned with the question

of service of process. Nelson, 389 Ill. App. 3d at 87, 907 N.E.2d at 407. Accordingly, I

believe that the Zack opinion is inapposite to the case at bar.

¶ 19 Given the language of the Election Code and our limited jurisdiction, I must conclude

that appellants failed to strictly comply with the Election Code by not serving their petitions

for judicial review upon the Board itself as a separate legal entity, and as a result, we have

no jurisdiction to consider the petitions for judicial review. I therefore believe the instant

appeals must be dismissed.

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