
7 September 1999

NO. 4-98-0784



IN THE APPELLATE COURT



OF ILLINOIS



FOURTH DISTRICT



IN THE MATTER OF GOOSE CREEK DRAINAGE	)	Appeal from

DISTRICT NO. 1 IN THE TOWN OF GOOSE	)	Circuit Court of

CREEK, IN THE COUNTY OF PIATT AND STATE	)	Piatt County

OF ILLINOIS,						)	No. DD20

)

LINDA COHEN, LESTER RICHARDS, ROZELLA	)

RICHARDS, ROBERT P. KINGSTON, DON J.	)

HERMAN, JOHN H. REMMERS, and HARRY E.	)	

REMMERS,							)

Objectors-Appellants,		)

v.						)	Honorable

ROY J. KLEVEN,						)	Frank W. Lincoln,

Commissioner-Appellee.		)	Judge Presiding.

_________________________________________________________________



JUSTICE COOK delivered the opinion of the court:



In September 1997, the Goose Creek Drainage District No. 1 (District) held an election for the office of one of three commissioners.  The candidates for the position were Roy Kleven and Robert Kingston.  Kleven won the election by one vote, 14 to 13.

In October 1997, certain electors filed a petition to contest the election.  Kingston, Linda Cohen, Lester Richards, Rozella Richards, John Remmers, and Harry Remmers (the objectors) were among those alleging the election was invalid due to two instances of fraud or mistake.  The objectors claimed Harry Remmers was wrongly denied an absentee ballot and another elec

tor, Lola Reed, was improperly allowed to vote twice, individu

ally and in her capacity as executor of her husband's estate.  The objectors claimed Reed went to the polling place and inquired whether she could vote as executor of her husband's estate.  Two of the three commissioners, who sit as judges of the election, instructed Reed she could vote twice.  One of the commissioners who allowed Reed to vote twice was  Kleven, one of the candidates of the election.

In March 1998, the objectors amended their petition to allege that the two instances of fraud changed the result of the election.  In May 1988, the objectors filed a motion for summary judgment on the petition.  Kleven responded with a countermotion for summary judgment.  Kleven also filed a motion to dismiss, arguing the Illinois Drainage Code (Drainage Code) (70 ILCS 605/1-1 
et
 
seq
. (West 1996)) does not provide for election con­

tests and that the Election Code (10 ILCS 5/1-1 
et
 
seq
. (West 1996)), which does permit election contests, does not apply to drainage dis­tricts.  The trial court granted the motion to dismiss, noting the Illi­nois Drainage Code does not provide for election contests and the right to an contest an election did not exist at common law.

Plaintiffs appeal, arguing the trial court wrongly dismissed their petition.  The objectors acknowledge the Drain­age Code is silent on the issue of contesting elections.  Howev­er, they contend the Election Code's provisions on contest­ing elec­

tions should apply.  Otherwise, no mechanism is provided for con­

testing the election for commissioner of a drainage district.

Kleven has not responded with an appellee's brief.  When an appel­lee fails to submit a brief, a reviewing court should give the merits of the appeal at least some consid­eration, so long as the issues are simple and easily decided.  
First Capitol Mortgage Corp. v. Talandis Construction Corp.
, 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).  If the case is not easily decided, we may reverse the judgment of the trial court so long as the appellant's brief demonstrates a 
prima
 
facie
 case for error and the contentions of the brief find support in the record.  
First Capitol Mortgage Corp.
, 63 Ill. 2d at 133, 345 N.E.2d at 495.  The issue in this case is not complex; therefore, we will address its merits. 

Drainage districts are created and governed by the Drainage Code for the purpose of ensuring waters will not accumu­

late on higher land as a result of the acts or omis­sions of landowners of lower elevation.  
Knaus v. Dennler
, 170 Ill. App. 3d 746, 750, 525 N.E.2d 207, 209 (1988).  District commissioners have the duty to maintain the district and broad powers to carry out the district's purposes.  
Peters v. Milks Grove Special Drainage District No. 1
, 243 Ill. App. 3d 14, 17, 610 N.E.2d 1385, 1388 (1993).  Commissioners are elected accord­ing to the specific requirements of section 4-5 of the Drainage Code.  70 ILCS 605/4-5 (West 1996).  The Drain­age Code dictates numerous rules and proce­dures that must be followed in electing commis

sioners, including, (1) voting shall be done by secret ballot, (2) every adult owner of land in the district is entitled to vote, (3) commissioners shall desig­nate and give notice of the time and place of voting, (4) the polls shall be open from 2 to 4 p.m., and (5) the ballots shall be returned to the clerk of the circuit court within 48 hours after the elec­tion.  70 ILCS 605/4-

5 (West 1996).  The Drainage Code does not contain a specific provision providing for the "contest" of an election.  However, it does provide:

"In any case where the commissioners have failed to give notice 
and
 
to
 
hold
 
an
 
election
 
as
 
provided
 
in
 
this
 
Section
, the circuit court of the county in which the district is organized may, on the petition of any owner of land in the district, designate the time and place for a special election."  (Emphasis added.)  70 ILCS 605/4-5 (West 1996).

Clearly, the legislature intended that drainage dis­

trict elections could be contested due to violations of voting procedures.  The Drainage Code specifically grants the circuit court the authority to hold a special election in the event the election rules of section 4-5 are not followed.  It is unrea­

sonable to assume the legislature would mandate specific voting procedures and then not provide any means of enforcing them.  Statutes must be construed to avoid "absurd, unjust, unreason­

able[,] or incon­venient results."  
Collins v. Board of Trustees of the Firemen's Annuity & Benefit Fund
, 155 Ill. 2d 103, 110, 610 N.E.2d 1250, 1253 (1993).  The trial court erred in conclud­

ing that no right to contest a drainage district election exists.

We disagree, however, with the objector's contention that the contest provisions of the Election Code apply.  The construction and applicability of the Election Code are found in section 2A-1(a) and provide:

"[T]his Code shall not apply to elec­tions for officers or public questions of *** drainage districts, except as specifical­ly made appli­

cable by another statute."  10 ILCS 5/2A-1(a) (West 1996).

Since the Drainage Code does not specifically make applicable  the Election Code's provisions, the parties are not bound to follow the contest provisions.   

In cases where an election has not been held in accor

dance with the law, section 4-5 of the Drainage Code empowers the circuit court to order a special election.  We have no doubt that, in conducting that special election, the circuit court may take whatever steps are necessary to ensure that the requirements of the Drainage Code for electing commissioners are met.  In particular, the circuit court may set a date for the special election, require the preregistration of voters, and provide for absentee ballots. 

In this case, the objectors alleged two irregularities occurred that changed the result of the election.  The objectors claimed Remmers was denied an absentee ballot and Reed improperly voted twice.  The objectors also submitted documenta­tion to support both allegations.  ­We reverse and remand to the trial court to determine whether the voting procedures of the Drainage Code were violated and to determine whether a special election is necessary.  

Reversed and remanded with directions.

STEIGMANN and GARMAN, JJ., concur.

STATE OF ILLINOIS

APPELLATE COURT

FOURTH DISTRICT



INTER-OFFICE MEMORANDUM





TO: 	Darryl Pratscher			DATE: August 30, 1999



FROM: Robert W. Cook



  RE: Goose Creek Drainage         District v. Cohen

 	 4-98-0784 6/99/Oral

      COOK, Steigmann, Garman



 
FILE
 
OPINION





The panel has concurred.  Please file the opinion as trans

mitted.







______________________________

Robert W. Cook



RWC:plu



cc: 	Judge Knecht

Judge Steigmann

Judge McCullough

Judge Garman

Judge Myerscough

