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                                  Appellate Court                      Date: 2019.01.15
                                                                       17:23:35 -06'00'




  Quinn v. Board of Election Commissioners for the City of Chicago Electoral Board,
                              2018 IL App (1st) 182087



Appellate Court      PAT QUINN and TAKE CHARGE CHICAGO COMMITTEE FOR
Caption              MAYORAL TERM LIMITS AND ELECTED CONSUMER
                     ADVOCATE, Petitioners-Appellants, v. THE BOARD OF
                     ELECTION COMMISSIONERS FOR THE CITY OF CHICAGO
                     ELECTORAL BOARD, and Its Members, MARISEL A.
                     HERNANDEZ, JONATHAN T. SWAIN and WILLIAM J. KRESSE;
                     Objectors BRETT ALLEN CZAJA and KAREN LARSON; and THE
                     BOARD OF ELECTION COMMISSIONERS FOR THE CITY OF
                     CHICAGO, Respondents-Appellees.



District & No.       First District, Fifth Division
                     Docket No. 1-18-2087



Filed                November 5, 2018



Decision Under       Appeal from the Circuit Court of Cook County, No. 2018-COEL-28;
Review               the Hon. Maureen O. Hannon, Judge, presiding.



Judgment             Affirmed in part and reversed in part.
                     Cause remanded.


Counsel on           Ed Mullen, of Bucktown Law, and Pat Quinn, both of Chicago, for
Appeal               appellants.
                                Michael J. Kasper and James E. Hartmann, of Chicago, for appellees
                                Brett Allen Czaja and Karen Larson.



     Panel                      PRESIDING JUSTICE ROCHFORD delivered the judgment of the
                                court, with opinion.
                                Justices Hoffman and Lampkin concurred in the judgment and
                                opinion.


                                                  OPINION

¶1         Petitioners-appellants, Pat Quinn and Take Charge Chicago Committee for Mayoral Term
       Limits and Elected Consumer Advocate (proponents), appeal from the dismissal of their
       petition seeking judicial review and a writ of mandamus. For the following reasons, we affirm
       in part, reverse in part, and remand for further proceedings.1

¶2                                          I. BACKGROUND
¶3         On August 6, 2018, proponents submitted petitions with the clerk of the City of Chicago in
       support of placing on the ballot two binding referenda questions for the citizens of Chicago to
       consider at the November 6, 2018, general election. The first question generally asked if the
       office of mayor for Chicago should be subject to a term limit of two terms, while the second
       asked if Chicago should establish an elected position for a “Consumer Advocate for taxpayer
       and consumers.”
¶4         Objections to the proposed referenda were filed by respondents-appellees, objectors Brett
       Allen Czaja and Karen Larson, on August 13, 2018. The matter was first addressed at an
       August 20, 2018, public hearing presided over by respondents-appellees, the Board of Election
       Commissioners for the City of Chicago Electoral Board, and its members, Marisel A.
       Hernandez, Jonathan T. Swain, and William J. Kresse (collectively, the Electoral Board). The
       matter was referred to a hearing officer appointed by the Electoral Board, and a second hearing
       was held on August 29, 2018. Proponents filed a motion to strike the objections, and the parties
       thereafter fully briefed that motion, agreeing that only legal issues were presented and that a
       ruling on this motion would be dispositive.
¶5         On September 7, 2018, the hearing officer issued a written report and recommendation,
       wherein it recommended that the motion to strike be denied, the objections be sustained, and
       the two referenda not appear on the November 6, 2018, election. In a written order entered on
       September 12, 2018, the Electoral Board adopted the hearing officer’s recommendations and
       entered a final, written administrative decision which ordered that the two referenda not appear
       on the ballot for the November 6, 2018, election or in any other election. The Electoral Board’s


             1
            In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
       appeal has been resolved without oral argument upon the entry of a separate written order stating with
       specificity why no substantial question is presented.

                                                      -2-
       final decision was served upon proponents by e-mail (pursuant to a prior agreement) and hand
       delivery the same day.
¶6         On September 14, 2018, proponents filed a one-count petition in the circuit court seeking
       both judicial review and a writ of mandamus. Naming the Electoral Board and objectors as
       defendants with respect to that portion of its petition seeking judicial review, brought pursuant
       to section 10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2016)), proponents sought
       reversal of the Electoral Board’s final decision. Naming only respondent-appellee, the Board
       of Election Commissioners for the City of Chicago (Board of Election), as a defendant with
       respect to that portion of its petition seeking a writ of mandamus, brought pursuant to article 14
       of the Code of Civil Procedure (Code) (735 ILCS 5/14-101 et seq. (West 2016)), proponents
       sought to compel the Board of Election to print the two referenda on the ballot for the
       November 6, 2018, election, or—in the alternative—the ballot for the following election, to be
       held on February 26, 2019.2
¶7         The petition filed by proponents was served upon the Electoral Board, the Board of
       Election, and the attorney for objectors on September 17, 2018, by certified mail. Objectors
       were not served personally by certified mail until September 19, 2018.
¶8         Also on September 19, 2018, objectors filed a motion to dismiss the petition for judicial
       review, contending that the circuit court lacked subject matter jurisdiction over the petition due
       to proponents’ failure to strictly comply with the service requirements contained in section
       10-10.1 of the Election Code, which required service upon all parties within five days. 10 ILCS
       5/10-10.1 (West 2016). The motion to dismiss did not make any reference to the portion of the
       petition seeking a writ of mandamus. This point was raised in proponents’ written response to
       the motion to dismiss, wherein proponents argued that the motion to dismiss:
               “is directed solely at the portion of the Petition that seeks review of the Election
               Board’s decision and not to the Petition for Writ of Mandamus. Objectors are not
               currently a party to the mandamus claims so they do not have standing to object, and a
               mandamus action does not have the same jurisdictional requirements as a petition for
               judicial review under the Illinois Election Code.”
       In their written reply, objectors again solely attacked the circuit court’s subject matter
       jurisdiction to consider the portion of proponents’ petition seeking judicial review, and again
       did not make any reference to the portion of the petition seeking a writ of mandamus.
¶9         On September 25, 2018, proponents filed a motion to file a first amended complaint for a
       writ of mandamus instanter. Therein, proponents again contended that no response to the
       portion of their petition seeking a writ of mandamus had yet been filed.
¶ 10       The following day, oral argument was heard on the motion to dismiss. No report of
       proceedings for this hearing was included in the record on appeal, and the docketing statement
       filed by proponents indicates that no court reporter was present.
¶ 11       That same day, the circuit court entered a written order granting the motion to dismiss the
       petition for judicial review of the Electoral Board’s decision, on the basis that the failure of
       proponents to comply with the service requirements contained in section 10-10.1 of the
           2
             The Board of Election Commissioners for the City of Chicago was sued both in its capacity as an
       electoral board with respect to the request for judicial review (Electoral Board), and as an election
       authority with respect to the request for a writ of mandamus (Board of Election). In this order, we use
       this shorthand to clarify which capacity we are referring to at any given time.

                                                      -3-
       Election Code deprived the court of subject matter jurisdiction. While the circuit court’s order
       dismissed the proponent’s petition in its entirety, the circuit court’s order made no specific
       reference to the portion of the petition seeking a writ of mandamus, or to the motion seeking to
       file an amended complaint with respect to that claim.
¶ 12        On September 28, 2018, proponents filed a notice of appeal, in which it asserted that it was
       appealing from the dismissal of both the portion of its petition seeking judicial review and the
       portion of its petition seeking a writ of mandamus. With respect to the latter, the notice of
       appeal asserted that it was a “separate claim that the Court had jurisdiction to consider.”
¶ 13        On October 5, 2018, proponents filed a motion seeking to have this appeal transferred
       directly to the supreme court, pursuant to Illinois Supreme Court Rule 302(b) (eff. Oct. 4,
       2011). The supreme court denied that motion in an order entered on October 15, 2018. The
       following day, proponents filed a motion with this court to expedite this appeal, pursuant to
       Illinois Supreme Court Rule 311(b) (eff. July 1, 2018). That motion was granted in an order
       entered by this court on October 22, 2018.

¶ 14                                           II. ANALYSIS
¶ 15       On appeal, proponents challenge the dismissal of both the portion of its petition seeking
       judicial review and the portion of its petition seeking a writ of mandamus. For the following
       reasons, we affirm the circuit court’s dismissal of the portion of the petition seeking judicial
       review of the Electoral Board’s decision, reverse the dismissal of the portion of the petition
       seeking a writ of mandamus, and remand for further proceedings solely with respect to the
       proponent’s request for a writ of mandamus.
¶ 16       The circuit court dismissed proponent’s petition in its entirety, pursuant to section
       2-619(a)(1) of the Code. 735 ILCS 5/2-619(a)(1) (West 2016). Section 2-619(a)(1) provides
       for the involuntary dismissal of an action based on lack of subject matter jurisdiction. Id. A
       section 2-619 motion “ ‘admits the legal sufficiency of the plaintiff’s cause of action.’ ” Avon
       Hardware Co. v. Ace Hardware Corp., 2013 IL App (1st) 130750, ¶ 13 (quoting Kedzie &
       103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993)). When deciding a
       section 2-619 motion, a court accepts all well-pleaded facts in the complaint as true and will
       grant the motion when it appears no set of facts can be proved which would allow the plaintiff
       to recover. Wilson v. Quinn, 2013 IL App (5th) 120337, ¶ 11. We review de novo the grant or
       denial of a motion to dismiss under section 2-619(a)(1). Country Mutual Insurance Co. v.
       D&M Tile, Inc., 394 Ill. App. 3d 729, 735 (2009).
¶ 17       “Subject-matter jurisdiction refers to a tribunal’s power to hear and determine cases of the
       general class to which the proceeding in question belongs.” J&J Ventures Gaming, LLC v.
       Wild, Inc., 2016 IL 119870, ¶ 23. Under the Illinois Constitution of 1970, the circuit courts
       have original jurisdiction over all justiciable matters, with the following two general
       exceptions: (1) the circuit courts have only such power to review administrative action as is
       provided by law, and (2) our supreme court has exclusive and original jurisdiction over
       questions relating to the redistricting of the General Assembly and the ability of the governor
       to serve or resume office. Ill. Const. 1970, art. VI, § 9; Crossroads Ford Truck Sales, Inc. v.
       Sterling Truck Corp., 2011 IL 111611, ¶ 27.
¶ 18       Here, a portion of the petition filed by proponents below sought judicial review of the
       Electoral Board’s final administrative decision. As such, the circuit court had subject matter
       jurisdiction to review that decision only “as provided by law.” Ill. Const. 1970, art. VI, § 9;

                                                   -4-
       Pullen v. Mulligan, 138 Ill. 2d 21, 32 (1990) (“Courts have no inherent power to hear election
       contests, but may do so only when authorized by statute and in the manner dictated by
       statute.”). The statutory authority for such judicial review is contained in section 10-10.1 of the
       Election Code, which in relevant part provides as follows:
                “Except as otherwise provided in this Section, a candidate or objector aggrieved by the
                decision of an electoral board may secure judicial review of such decision in the circuit
                court of the county in which the hearing of the electoral board was held. 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 within 5 days after service of the decision of the electoral
                board as provided in Section 10-10. The petition shall contain a brief statement of the
                reasons why the decision of the board should be reversed. The petitioner shall file proof
                of service with the clerk of the court.” 10 ILCS 5/10-10.1(a) (West 2016).
¶ 19       While this section specifically refers only to judicial review sought by “a candidate or
       objector aggrieved by the decision of an electoral board” (id.), it has been recognized that—in
       light of other provisions in the Election Code—this section also provides the method for
       judicial review to be followed by “proponents” of referenda aggrieved by the decision of an
       electoral board (In re Objection of Russo, 331 Ill. App. 3d 111, 117 (2002)). The failure to
       strictly comply with the requirements of section 10-10.1 deprives the circuit court of subject
       matter jurisdiction to review an electoral board’s final decision. Hough v. Will County Board of
       Elections, 338 Ill. App. 3d 1092, 1094 (2003).
¶ 20       As they did below, on appeal, proponents contend that the portion of their petition seeking
       judicial review of the Electoral Board’s final administrative decision should not have been
       dismissed for a lack of subject matter jurisdiction because they timely served objectors, care of
       objectors’ attorney, on September 17, 2018. However, on at least four separate occasions,
       courts have recognized that service upon an attorney is insufficient to strictly comply with
       section 10-10.1’s requirement that service must be made personally upon “the electoral board
       and other parties to the proceeding.” 10 ILCS 5/10-10.1 (West 2016); Rivera v. City of
       Chicago Electoral Board, 2011 IL App (1st) 110283, ¶ 33, abrogated on other grounds by
       Bettis v. Marsaglia, 2014 IL 117050, ¶ 28; Nelson v. Qualkinbush, 389 Ill. App. 3d 79, 87
       (2009), abrogated on other grounds by Bettis, 2014 IL 117050, ¶ 28; Hough, 338 Ill. App. 3d
       at 1094; Allord v. Municipal Officers Electoral Board, 288 Ill. App. 3d 897, 904 (1997). While
       proponents attempt to distinguish this authority in various ways, this court has made it
       explicitly clear 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.”
       (Emphases added.) Rivera, 2011 IL App (1st) 110283, ¶ 33.
¶ 21       Moreover, we reject proponents’ contention that its position is supported by a purportedly
       “more expansive reading” of section 10-10.1 applied in Bettis, 2014 IL 117050, and Solomon
       v. Ramsey, 2015 IL App (1st) 140339-B. In Bettis, 2014 IL 117050, ¶ 28, our supreme court
       concluded that the section 10-10.1’s requirement that an electoral board be personally served is
       met when every member of that board is properly served. In Solomon, 2015 IL App (1st)
       140339-B, ¶ 19, this court concluded the converse also satisfied section 10-10.1; that is to say,
       section 10-10.1’s requirement that the individual members of an electoral board be served is
       met when service is properly effectuated upon the electoral board itself.


                                                     -5-
¶ 22        In light of these decisions, proponents assert that “the law now supports serving parties
       through representatives.” We disagree, as neither the Bettis nor the Soloman decision involved
       service upon a “representative.” Rather, these decisions merely recognized that duplicative
       service upon both an electoral board and its members is not necessary to satisfy the service
       requirements set forth in section 10-10.1. Neither decision calls into question the decisions
       cited above or supports proponents’ contention that service solely upon a party’s attorney
       satisfies the requirements of section 10-10.1.
¶ 23        For the forgoing reasons, we affirm the circuit court’s dismissal of the portion of
       proponents’ petition seeking judicial review of the Electoral Board’s decision, as the circuit
       court clearly lacked subject matter jurisdiction over that claim in light of proponents’ failure to
       strictly comply with the requirements of section 10-10.1 of the Election Code.
¶ 24        We now turn to proponents’ challenge to the dismissal of the portion of their petition
       seeking a writ of mandamus.
¶ 25        As noted above, while proponents’ petition was pleaded as a single count, it plainly
       included requests for both judicial review, pursuant to section 10-10.1 of the Election Code,
       and a writ of mandamus, pursuant to article 14 of the Code. However, in seeking to have the
       petition dismissed in its entirety, and in dismissing the petition in its entirety, objectors and the
       circuit court, respectively, focused solely on the question of the circuit court’s subject matter
       jurisdiction to consider the petition’s request for judicial review pursuant to section 10-10.1 of
       the Election Code. Below, the request for a writ of mandamus was never specifically addressed
       by either objectors or the circuit court. 3 In effect, both objectors and the circuit court
       apparently viewed the request for a writ of mandamus as part and parcel of the petition for
       judicial review, subject to dismissal for lack of subject matter jurisdiction due to the defects in
       service discussed above. This was improper.
¶ 26        Again, under the Illinois Constitution of 1970, the circuit courts have original jurisdiction
       over all justiciable matters. Ill. Const. 1970, art. VI, § 9; Crossroads, 2011 IL 111611, ¶ 27.
       “The writ of mandamus was long known at common law [citations] and has long been
       recognized to lie within the inherent power and jurisdiction of our circuit courts.” In re
       Claudia K., 91 Ill. 2d 469, 475 (1982). Thus, unlike in the case of administrative review,
       mandamus actions do not rely on any special statutory provisions to confer upon the circuit
       court subject matter jurisdiction over such a claim. Owens v. Snyder, 349 Ill. App. 3d 35, 40
       (2004).
¶ 27        It is true that, where a statute involving an administrative body specifically adopts the
       Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2016)), the “Administrative
       Review Law eliminates the use of mandamus, certiorari, injunction and other equitable,
       statutory and common law actions as a means of reviewing agency decisions, thus providing a
       single uniform method of review.” Outcom, Inc. v. Illinois Department of Transportation, 233
       Ill. 2d 324, 333 (2009). However, the Administrative Review Law does not apply unless it has
       been expressly adopted. Porter v. Illinois State Board of Education, 2014 IL App (1st) 122891,
       ¶ 23. Our courts have consistently held that section 10-10.1 of the Election Code explicitly

           3
            At the very least, there is no indication in the common law record that this issue was addressed by
       objectors or the circuit court. While we do not have a report of proceedings for the oral argument on the
       motion to dismiss, no party on appeal has indicated that the request for a writ of mandamus was
       specifically addressed at the hearing.

                                                       -6-
       does not adopt the Administrative Review Law in circumstances such as presented here. See
       Rivera, 2011 IL App (1st) 110283, ¶ 45.
¶ 28       In light of the above discussion, we conclude that in addition to a request for judicial
       review, proponents’ petition contained a separate claim for a writ of mandamus, one that fell
       within the original subject matter jurisdiction of the circuit court. It was therefore improper for
       the circuit court to dismiss that claim solely on the basis that proponents’ failure to comply
       with the requirements of section 10-10.1 of the Election Code deprived the circuit court of
       subject matter jurisdiction.
¶ 29       On appeal, objectors do not argue otherwise.4 Rather, and by essentially invoking this
       court’s power to “affirm the decision of the trial court for any reason appearing in the record,
       regardless of whether the reasoning of the trial court was correct” (Dunlap v. Illinois Founders
       Insurance Co., 250 Ill. App. 3d 563, 569 (1993)), objectors point to a number of alternative
       reasons this court should affirm the dismissal of proponents’ petition in its entirety. These
       include the assertion of various purported pleading deficiencies in proponents’ request for a
       writ of mandamus and citation to case law indicating that a request for a writ of mandamus is
       not a substitute for the filing and service of a proper complaint for judicial review of an
       electoral board’s decision under the provisions of the Election Code
¶ 30       However, while this court may affirm the decision of the circuit court for any reason
       appearing in the record, we are not required to search the record for reasons to affirm. Id. at
       569-70. In some circumstances, our review of the circuit court’s decision should be limited to
       the issues the circuit court actually addressed and decided, and in some circumstances it may
       be more prudent to remand the matter to the circuit court to consider and rule upon any further
       issues in the first instance. Id. at 570; Ward v. Hilliard, 2018 IL App (5th) 180214, ¶ 56;
       Garrido v. Arena, 2013 IL App (1st) 120466, ¶ 33. We believe that this appeal presents such a
       circumstance, where the request for a writ of mandamus was never specifically addressed
       below by either objectors or the circuit court.
¶ 31       In so ruling, we note that with respect to proponents’ request for a writ of mandamus, our
       ruling is limited to a conclusion that it was improper to dismiss that claim solely on the basis
       that proponents’ failure to comply with the requirements of section 10-10.1 of the Election
       Code deprived the circuit court of subject matter jurisdiction. We express no opinion on the
       sufficiency of the pleading, the ultimate merits of this claim, or with respect to any attacks
       upon or defenses to this claim that may be raised below.

¶ 32                                      III. CONCLUSION
¶ 33       For the foregoing reasons, we (1) affirm the circuit court’s dismissal of the portion of
       proponents’ petition seeking judicial review of the Electoral Board’s decision under the
       Election Code, (2) reverse the dismissal of the portion of the proponents’ petition seeking a
       writ of mandamus, and (3) remand for further proceedings solely with respect to the
       proponent’s request for a writ of mandamus.



          4
           On appeal, the Electoral Board and the Board of Election took no substantive position on the
       dismissal of claim for a writ of mandamus but reserved the right to respond should this matter be
       remanded for further proceeding on that claim.

                                                    -7-
¶ 34   Affirmed in part and reversed in part.
¶ 35   Cause remanded.




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