                      ILLINOIS OFFICIAL REPORTS
                                   Appellate Court




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




Appellate Court       SHAREE LANGENSTEIN, Candidate of the Republican Party for the
Caption               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, 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 County Sheriff, Respectively, Respondents-
                      Appellees.–CHRISTINE WARD OSINGA, Candidate of the Republican
                      Party for Jackson County Circuit 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 County Clerk, and
                      J ackson County Sheriff, Respect i vel y, R es pondents-
                      Appellees.–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 County Sheriff, Respectively, Respondents-Appellees.



District & No.        Fifth District
                      Docket Nos. 5-12-0343, 5-12-0346, 5-12-0347 cons.


Filed                 August 23, 2012
Held                       Appellants’ service of their petitions for review of decisions of
(Note: This syllabus       respondent electoral board finding appellants ineligible to appear on a
constitutes no part of     ballot on the individual members of the board without serving the board
the opinion of the court   separately was sufficient to satisfy section 10-10.1 of the Election Code
but has been prepared      and invoke the circuit court’s subject matter jurisdiction.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Jackson County, Nos. 12-MR-135, 12-
Review                     MR-136, 12-MR-138; the Hon. Todd D. Lambert, Judge, presiding.



Judgment                   Reversed and remanded.


Counsel on                 Sharee S. Langenstein, of Law Office of Sharee S. Langenstein, of
Appeal                     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 candidacy of 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, they would 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 order to 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

                                                  -5-
       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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