                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court



         Sherman v. Indian Trails Public Library District, 2012 IL App (1st) 112771




Appellate Court            ROBERT I. SHERMAN, CELESTE S. SHERMAN, MARY F. DAY,
Caption                    ROBERT B. DINNERMAN, and RONALD P. MRAZ, Petitioners-
                           Appellants, v. INDIAN TRAILS PUBLIC LIBRARY DISTRICT, a Body
                           Politic; GENE LOOFT, HENRY HACKNEY, JR., WALLY
                           SALGANIK, DORIS WAGNER, LOUISE BARNETT, EARL SABES
                           and PATRICIA MURRAY, as Trustees of Indian Trails Public Library
                           District; DAVID ORR, as Cook County Clerk; WILLARD R.
                           HELANDER, as Lake County Clerk, Respondents-Appellees.


District & No.             First District, Fifth Division
                           Docket No. 1-11-2771


Rule 23 Order filed        June 28, 2012
Rule 23 Order
withdrawn                  July 26, 2012
Opinion filed              August 3, 2012


Held                       A petition filed by several electors in a public library district pursuant to
(Note: This syllabus       the Election Code contesting a referendum for a tax increase based on
constitutes no part of     allegations that the district or its trustees violated campaign financing and
the opinion of the court   disclosure laws failed to state an election contest claim in the absence of
but has been prepared      any allegations of violations or fraud in the conduct of the election or
by the Reporter of         violations of the state or federal constitution.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 11-COEL-66; the
Review                     Hon. Mark J. Ballard, Judge, presiding.
Judgment                    Affirmed.


Counsel on                  Andrew Finko, of Chicago, for appellants.
Appeal
                            Kenneth M. Florey and Nanci N. Rogers, both of Robbins Schwartz
                            Nicholas Lifton & Taylor, Ltd., and Christopher J. Dallavo, of Schueler,
                            Dallavo & Casieri, both of Chicago, for appellee Indian Trails Public
                            Library District.


Panel                       PRESIDING JUSTICE EPSTEIN delivered the judgment of the court,
                            with opinion.
                            Justices McBride and Howse concurred in the judgment, and opinion.*



                                               OPINION

¶1          Petitioners Robert I. Sherman, Celeste S. Sherman, Mary F. Day, Robert B. Dinnerman,
        and Ronald P. Mraz appeal the circuit court of Cook County’s decision to dismiss their
        election contest petition pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS
        5/2-615 (West 2010)) for failure to state a cause of action. We affirm.

¶2                                         BACKGROUND
¶3          The relevant facts are not disputed. On April 2, 2011, the voters of the Indian Trails
        library district, including petitioners, voted on a referendum question concerning property
        tax increases designated for the library district. A “yes” vote on the referendum would result
        in an increase to 9.8% for 2011. A “no” vote would leave the extension limitation at the
        statutory level that would be calculated as the lesser of 5% or the percentage increase in the
        Consumer Price Index over the prior levy year (or 1.438%). The Cook County clerk issued
        the official proclamation of the referendum results on April 26, 2011, with 2,132 “yes” votes
        and 1,985 “no” votes.
¶4          On May 18, 2011, petitioners filed an election contest petition in the circuit court of
        Cook County against respondents, Indian Trails Public Library District, a body politic
        (Library District); Gene Looft, Henry Hackney, Jr., Wally Salganik, Doris Wagner, Louise
        Barnett, Earl Sabes and Patricia Murray, as trustees of Indian Trails Public Library District;
        David Orr, as Cook County clerk; and Willard R. Helander, as Lake County clerk, alleging
        that the Library District or its trustees violated certain campaign financing and disclosure

                *Justice Joseph Gordon participated in this case. Following his passing, Justice McBride has
        replaced him on the panel and has reviewed the briefs.

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       laws. The individual trustees were later dismissed from the suit by agreement. Specifically,
       petitioners alleged that the Library District decided and voted to take steps to support and
       encourage passage of the referendum and expended public funds for the purpose of
       promoting, and advocating for, the passage of the referendum. Petitioners sought to have the
       election declared null and void. Petitioners additionally sought to “permanently restrain and
       enjoin [the Library District] from any further and additional illegal expenditures of public
       funds for partisan political and other private purposes.”
¶5         On June 30, 2011, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS
       5/2-615 (West 2010)), the Library District filed a motion to dismiss the election contest
       petition for failure to state a cause of action under which relief could be granted.
¶6         After full briefing and oral arguments, the circuit court granted the motion to dismiss on
       July 29, 2011. On August 24, 2011, the court denied petitioners’ motion to reconsider.
       Petitioners filed this timely appeal.

¶7                                           ANALYSIS
¶8                                       Standard of Review
¶9         When reviewing a section 2-615 motion to dismiss, we accept as true all well-pled facts
       and interpret the allegations in the complaint in the light most favorable to the plaintiff. Seith
       v. Chicago Sun-Times, Inc., 371 Ill. App. 3d 124, 133 (2007). This court reviews the circuit
       court’s order granting the section 2-615 motion to dismiss de novo. Id.

¶ 10                                  Election Contest Petition
¶ 11       Section 23-20 of the Election Code states, in pertinent part, that the petition filed by a
       person who desires to contest an election “shall allege that the petitioner voted at the
       election, and that he believes that a mistake or fraud has been committed in specified
       precincts in the counting or return of the votes for the office or proposition involved or that
       there was some other specified irregularity in the conduct of the election in such precincts,
       and the prayer of the petition shall specify the precincts in which the recount is desired.”
       (Emphasis added.) 10 ILCS 5/23-20 (West 2010).
¶ 12       It is undisputed that public funds cannot be used to urge persons to vote in a particular
       way. The Election Code states:
           “No public funds shall be used to urge any elector to vote for or against any candidate or
           proposition, or be appropriated for political or campaign purposes to any candidate or
           political organization. This Section shall not prohibit the use of public funds for
           dissemination of factual information relative to any proposition appearing on an election
           ballot, or for dissemination of information and arguments published and distributed
           under law in connection with a proposition to amend the Constitution of the State of
           Illinois.” 10 ILCS 5/9-25.1 (West 2010).
       See also Citizens Organized to Save the Tax Cap v. State Board of Elections, 392 Ill. App.
       3d 392 (2009).
¶ 13       There is no authority cited by petitioners, however, for nullifying an election based upon

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       the use of public funds for advocacy. Petitioners have failed to cite any legal authority in
       Illinois, or any other jurisdiction (state or federal), where a court has invalidated an entire
       election on this basis.
¶ 14        Moreover, as respondents note, “the General Assembly has specifically provided that
       prosecution under Article 9 for campaign financing violations may be commenced by a
       state’s attorney or the Attorney General, and that the State Board of Elections may impose
       a fine or require remedial action of an offender.” See 10 ILCS 5/9-3, 9-10, 9-26 (West 2010).
¶ 15        Article 17 of the Election Code, “Conduct of Elections and Making Returns,” deals with
       “the actual conduct of elections and making of returns from and in the election precincts.”
       10 ILCS Ann. 5/art. 17, Official Comments on Drafting Commission, at 274 (Smith-Hurd
       2010); see 10 ILCS 5/17-1 et seq. (West 2010). As respondents and the trial court noted, the
       petition did not allege any mistakes, violations or fraud in the conduct of the election itself.
       Petitioners instead allege that campaign financing laws and disclosure laws were violated.
       Taking petitioners’ allegations as true, they have failed to state a claim for an election contest
       claim. Petitioners assert in their petition that “because of the mistakes made and the frauds
       and other prohibited and illegal acts committed in the conduct of the April 5, 2011 Library
       District referendum election that said election was so corrupted that it failed to obtain and
       determine a free, fair and untrammeled expression of the voters’ choice [and] must be
       declared null and void.” Petitioners, however, fail to allege any facts regarding any error or
       fraud in the “conduct” of the election by election authorities. They do not allege that the
       Library District administered the election, or caused the election to be administered, in a
       fraudulent or irregular manner, or that the Library District compromised the actual ballots
       or the act of voting. We conclude that the alleged violations of the Election Code do not form
       the basis for a cause of action for an election contest petition.
¶ 16        Petitioners have also failed to state a claim for violation of the state or federal
       constitution. Petitioners have described their constitutional rights with respect to elections
       and include in their brief on appeal those “[c]onstitutional implications of the [Library]
       District’s political activities to support the Referendum through use of public funds.”
       Petitioners assert on appeal that “the [Library] District’s use of public funds for political
       purposes has violated petitioners’ First and Fourteenth amendment rights to vote and
       associate for the common expression of political ideas.”
¶ 17        Petitioners correctly state that “[e]ach voter’s right to cast an equally weighted vote is a
       fundamental right at the core of our democracy.” The Library District agrees and, citing
       Goree v. Lavelle, 169 Ill. App. 3d 696, 699 (1988), notes that “[i]n an election, the
       constitutional requirement is for each voter to have the right and opportunity to cast his or
       her vote without any restraint and for his or her vote to have the same influence as the vote
       of any other voter.” Petitioners have failed to provide a reasoned argument as to why the
       Library District’s activities violated their right to vote. Before the trial court and on appeal,
       respondents noted as follows:
            “Infringement of voting rights found to have risen to this constitutional level include
            dilution of votes by reasons of malapportioned voting districts or weighted voting
            systems, purposeful or systematic discrimination against voters of a certain class or


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            political affiliation, or other ‘willful conduct which undermines the organic process by
            which candidates are elected.’ ”
       See Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir. 1975). Petitioners assert that the
       Library District’s conduct was “willful conduct which undermine[d] the organic [election]
       process.” “ ‘Willful conduct’ means, at a minimum, that the defendants acted with the intent
       of subverting the electoral process or impairing a citizen’s right to vote.” Parra v. Neal, 614
       F.3d 635, 637 (7th Cir. 2010). Petitioners have alleged no facts to support any such
       infringement of their right to vote, nor have they alleged that their votes were improperly
       counted or had any less influence than any other vote. As noted earlier, petitioners have
       failed to include any allegation that the conduct of the election process was improper in any
       manner. Although petitioners assert that individual votes “might” be impermissibly diluted
       by the expenditure of public funds to advocate a substantive position on a referendum
       question, respondents note that petitioners provided no authority in support of their
       contention.
¶ 18        Before the trial court, petitioners relied on the case of Smith v. Cherry, 489 F.2d 1098
       (7th Cir. 1973) (per curiam), in support of their argument that voters’ rights had been
       violated warranting nullification of the referendum election. The trial court found the reliance
       unpersuasive.
¶ 19        In Smith, an unsuccessful candidate for the Democratic nomination for the Illinois Senate
       and a voter in the primary challenged the results of the primary election, alleging that the
       winner was a “sham” candidate in that he intended to, and did, run as a stand-in so that he
       could use his popularity to win the nomination and then withdraw so that party insiders could
       fill the vacancy with a candidate of their choosing. Smith, 489 F.2d at 1100. The Smith court
       noted that the fraud involved was intimately connected with the face of the ballot and had
       the purpose and effect of deceiving voters as to the actual effect of their votes because a vote
       for a sham candidate was really a vote for another, undisclosed person. Id. at 1101. By
       contrast, the instant case does not involve a facial fraud. In granting the Library District’s
       motion to dismiss, the trial court noted, “the referendum question at issue was written plainly
       and unambiguously and was set out on the face of the ballot using prescribed wording
       required by the Property Tax Extension Limitation Law.” See 35 ILCS 200/18-205 (West
       2010).
¶ 20        Petitioners contend “there are no prior decisions that could be located by counsel,
       regarding a public body taking such liberties with public funds.” Yet petitioners cite Elsenau
       v. City of Chicago, 334 Ill. 78 (1929). In Elsenau, the court explained that the conduct of a
       campaign before an election for purpose of exerting influence on voters was not a “corporate
       purpose” of the municipality and the appropriation for advertising in support of proposed
       bond issues to be submitted to voters was unauthorized. However, the plaintiff taxpayer in
       Elsenau sought only to enjoin the issuance of warrants and the payment of money for the
       advertisements and did not seek to overturn an election. Contrary to petitioners’ assertion,
       there is a substantial body of case law on the issue of a public body taking “liberties” with
       public funds. See, e.g., Kidwell v. City of Union, 462 F.3d 620 (6th Cir. 2006) (city did not
       improperly compel taxpayers to support its positions by expending public funds to advocate
       for them); Alabama Libertarian Party v. City of Birmingham, 694 F. Supp. 814 (N.D. Ala.

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       1988) (city’s use of tax revenues to promote passage of measures to enhance city services did
       not violate first amendment right of association); Lash v. City of Union, 104 F. Supp. 2d 866
       (S.D. Ohio 1999) (city’s use of funds to promote tax levy did not violate taxpayers’ free
       speech rights but its use of public funds to oppose citizen initiative to defeat city counsel’s
       proposal for new fire department did violate rights); Stanson v. Brown, 122 Cal. Rptr. 862
       (Cal. Ct. App. 1975) (dismissing complaint for failure to state cause of action where
       complaint sought, among other things, to set aside election based on parks and recreation
       director’s expenditure of public funds to promote passage of bond act, but complaint was
       deficient under relevant section of state’s election code); see also Angela C. Poliquin,
       Kromko v. City of Tucson: Use of Public Funds to Influence the Outcomes of Elections, 46
       Ariz. L. Rev. 423 (2004). These cases stand for the proposition that the unlawful advocacy
       of a governmental entity may be enjoined and fined. Not surprisingly, however, we have
       found no case where a court set aside an election on that basis. As respondents note, the
       distinction is enormous. Although this court does not condone the Library District’s actions
       at issue here, setting aside an election would disenfranchise all voters who voted in support
       of the referendum and who did nothing wrong in exercising their right to vote. Petitioners,
       having failed to allege that their votes were improperly counted or had any less influence
       than any other vote, and having failed to allege any facts to support an infringement of their
       right to vote, have failed to state a cause of action for violation of their right to vote.
¶ 21        On appeal, petitioners have also asserted for the first time that the Library District’s
       actions violated petitioners’ first amendment civil rights, including their right to free speech
       and to associate for political purposes. The Library District asserts that the issue has been
       forfeited where petitioners failed to raise the issue below and where the trial court allowed
       petitioners the opportunity to replead their petition but they declined to do so and instead
       filed the instant appeal. The mere fact that arguments offered for the first time on appeal raise
       constitutional questions does not prevent the otherwise proper application of the forfeiture
       rule. See, e.g., People v. 1998 Lexus GS 300, 402 Ill. App. 3d 462, 467 (2010). In civil cases,
       constitutional issues not presented to the trial court are deemed forfeited and may not be
       raised for the first time on appeal. See, e.g., Alarm Detection Systems, Inc. v. Village of
       Hinsdale, 326 Ill. App. 3d 372, 385 (2001); cf. Forest Preserve District v. First National
       Bank of Franklin Park, 2011 IL 110759, ¶ 27 (party’s failure to challenge the
       constitutionality of a statute in the circuit court normally forfeits that challenge on appeal in
       a civil case). In any event, as the Library District correctly notes, even if these arguments had
       been raised below, there are no well-pled facts in the petition that could form the basis for
       a cause of action for petitioners’ personal civil rights.
¶ 22        Invalidating an election is a remedy that courts have recognized as an extremely drastic
       measure. See, e.g., Andrews v. Powell, 365 Ill. App. 3d 513, 522 (2006). We agree with the
       Library District that petitioners have failed to allege any acts or omissions that, even if taken
       as true, form a legal basis for invalidating each and every vote cast by electors in the April
       5, 2011 referendum election. The trial court correctly granted respondents’ motion to dismiss
       the election contest petition. The judgment of the circuit court of Cook County is affirmed.

¶ 23       Affirmed.

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