                                    2015 IL App (1st) 140339-B
                                 Nos. 1-14-0339 & 1-14-0340 (Cons.)

                                                                    THIRD DIVISION
                                                                   September 30, 2015
     ______________________________________________________________________________

                                         IN THE
                             APPELLATE COURT OF ILLINOIS
                                FIRST JUDICIAL DISTRICT
     ______________________________________________________________________________


     McSTEPHEN O. A. "MAX" SOLOMON,             )    Appeal from the Circuit Court
                                                )    of Cook County.
            Petitioner-Appellant,               )
                                                )
     v.                                         )    Nos. 14 COEL 002
                                                )         14 COEL 003
     BENJAMIN RAMSEY, AL RILEY,                 )
     STATE OFFICERS ELECTORAL BOARD,            )
     BRYAN A. SCHNEIDER, JUDITH C. RICE,        )    The Honorable
     WILLIAM A. McGUFFAGE, ERNEST L.            )    James A. Zafiratos,
     GOWEN, BETTY J. COFFRIN, HAROLD            )    Judge Presiding.
     D. BYERS, CHARLES W. SCHOLZ                )
     and JESSE R. SMART, Chairman,              )
                                                )
            Respondents-Appellees.              )
     _____________________________________________________________________________

            JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
            Presiding Justice Mason and Justice Fitzgerald Smith concurred in the judgment and
            opinion.

                                                OPINION

¶1          This case arises from the nominating petition objection process for the March 18, 2014

     primary election for the Democratic Party's nomination for the office of Representative in the

     Illinois General Assembly for the 38th District. Following decisions of the State Officers

     Electoral Board (Electoral Board or Board) to remove petitioner McStephen O. A. "Max"

     Solomon (Solomon or petitioner), from the ballot, and to allow the incumbent candidate's name
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     to remain on the ballot, Solomon filed petitions for judicial review in the circuit court. The

     circuit court, however, dismissed his petitions for judicial review for lack of subject matter

     jurisdiction. Solomon contests the circuit court's ruling on appeal. On March 4, 2014, this court,

     abiding by the principle of stare decisis, followed First District precedent and filed an opinion

     upholding the circuit court's dismissal. Thereafter, on March 25, 2015, the Illinois Supreme

     Court issued a supervisory order directing this court to vacate our opinion and reconsider

     Solomon's claims in light of its recent decision in Bettis v. Marsaglia, 2014 IL 117050, to

     determine whether a different result is warranted. Upon reconsideration, we now reverse the

     judgment of the circuit court.

¶2                                          BACKGROUND

¶3          On November 25, 2013, Solomon filed nomination papers to seek the Democratic

     nomination for the office of Representative in the General Assembly from the 38th

     Representative District in the upcoming March 18, 2014, primary election. In an effort to seek

     reelection, respondent Al Riley, the incumbent, also filed nomination papers. Thereafter, on

     December 5, 2013, Solomon filed an objection to Riley's nomination papers, arguing that the

     incumbent's name should be removed from the ballot because he filed signatures in excess of the

     statutory maximum. On December 9, 2013, an objection to Solomon's nomination papers was

     filed by respondent Benjamin Ramsey. The basis for the objection was Ramsey's assertion that

     Solomon failed to obtain the requisite number of minimum signatures to qualify for the ballot.

¶4          After receiving both objections, the Electoral Board sent Solomon two letters, dated

     December 5, 2013, and December 9, 2013, respectively, notifying him that it would be meeting

     to consider both objections. The letterheads of both letters identified the individual board

     members as: "Jesse R. Smart, Chairman, Charles W. Scholz, Vice President, Harold D. Byers,


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     Betty J. Coffrin, Ernest L. Gowen, William A. McGuffage, Judith C. Rice, Bryan A. Schneider."

     Unbeknownst to Solomon, the letterhead was outdated, as it included the name of former Board

     member, Judith C. Rice, instead of current Board member Cassandra B. Watson. Watson had

     replaced Rice as a Board member on July 1, 2013.

¶5             On December 17, 2013, the Board presided over hearings to determine the validity of

     both objections.     Solomon ultimately lost both decisions before the Board.        As a result,

     Solomon's name was removed from the ballot, while incumbent Al Riley's name was retained on

     the ballot. The transcripts of the hearings correctly identify each of the Board members who

     took part in the decisions, including Cassandra B. Watson.

¶6             On January 13, 2014, following the Electoral Board's rulings, Solomon filed petitions in

     the circuit court seeking judicial review of both of the Board's decisions. In the petitions,

     Solomon identified respondents as Benjamin Ramsey, Al Riley, the Electoral Board, and seven

     of the eight individuals who comprised the Board. In reliance of the Board's letterhead, Solomon

     incorrectly named Judith C. Rice as a respondent rather than Cassandra B. Watson, who was the

     member who actually took part in the Board's decisions. Solomon served Benjamin Ramsey, Al

     Riley and the Electoral Board with copies of his petitions seeking judicial review. He did not

     serve copies of his petitions to any of the individual Board members.

¶7             Respondents filed motions to dismiss Solomon's petitions for judicial review, and the

     matters were consolidated in the circuit court. In support of their motions, respondents alleged

     that Solomon failed to comply with section 10-10.1(a) of the Illinois Election Code, thereby

     depriving the circuit court of subject matter jurisdiction over Solomon's petitions for judicial

     review.     10 ILCS 5/10-10.1(a) (West 2012).         In pertinent part, respondents observed that




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       Solomon incorrectly named Judith C. Rice rather than Cassandra B. Watson as a Board member.

       In addition, Solomon failed to serve the individual Electoral Board members.

¶8            The circuit court presided over a hearing on respondents' motions to dismiss. After

       hearing the arguments from both sides, the court granted respondents' motions to dismiss,

       explaining:

                     "The only issue I have to address is the one of service. It was improper service under

              the statute. The board members were not given proper service. Just based on that alone,

              I don't have subject matter jurisdiction. I don't have to address anything else. With

              respect to the letterhead at this stage, the Court finds there was failure to perfect service

              as required under the First District and the First District case law. And for that reason,

              [the] motion [to dismiss] is granted."

¶9            This appeal followed.

¶ 10                                               ANALYSIS

¶ 11          On appeal, Solomon urges this court to reverse the circuit court's finding that it lacked

       subject matter jurisdiction over his petitions for judicial review of the Electoral Board's

       decisions. Although he acknowledges that he improperly named one of the individual Board

       members, he argues that this error should be overlooked because the Board misrepresented and

       misidentified its individual members in the letters it sent to him prior to the hearing. Solomon

       also acknowledges that he failed to serve the individual members of the Board, but argues that

       the service would have been duplicative since he served the Electoral Board, as an entity.

¶ 12          Respondents, in turn, argue that the circuit court correctly dismissed Solomon's appeals

       for lack of subject matter jurisdiction because he failed to properly name and serve all the

       necessary parties as required by the Illinois Election Code.


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¶ 13          When a party seeks judicial review of an electoral board's decision, the resulting

       "proceeding is in the nature of administrative review."           Jackson v. Board of Election

       Commissioners, 2012 IL 111928, ¶ 46. The issue as to whether a court has subject matter

       jurisdiction to review an electoral board's decision is an issue of law that is subject to de novo

       review. Rivera v. City of Chicago Electoral Board, 2011 IL App (1st) 110283, ¶ 19.

¶ 14          It is well established that "[c]ourts have no inherent power to hear election contests, but

       may do so only when authorized by statute and in the manner dictated by statute." Pullen v.

       Mulligan, 138 Ill. 2d 21, 32 (1990); Rivera, 2011 IL App (1st) 110283, ¶ 20. Section 10-10.1(a)

       of the Illinois Election Code sets forth the procedure for interested parties to follow to seek

       judicial review of an electoral board's decision. That provision, in pertinent part, sets forth the

       necessary prerequisites to establish subject matter jurisdiction and provides as follows:

                  "§ 10-10.1

                  (a) 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. No answer to the petition need be filed, but the

              electoral board shall cause the record of proceedings before the electoral board to be filed




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              with the clerk of the court on or before the date of the hearing on the petition or as

              ordered by the court." (Emphasis added.) 10 ILCS 5/10-10.1(a) (West 2012).

¶ 15          Based on the plain language of section 10-10.1(a), courts have consistently held that a

       party contesting a decision of an electoral board must satisfy "four distinct requirements" to

       confer jurisdiction on the circuit court. Bill v. Education Officers Electoral Board of Community

       Consolidated School District No. 181, 299 Ill. App. 3d 548, 551 (1998). "First, a challenging

       petition must be filed with the clerk of the court within [five] days after the electoral board issues

       its decision. Second, the petition shall state briefly the reasons why the board's decision should

       be reversed. Third, the petitioner shall serve copies of the petition upon the electoral board and

       other parties to the proceeding by registered or certified mail. Fourth and finally, the petitioner

       shall file proof of service with the clerk of the court." Id.; see also Rivera, 2011 IL App (1st)

       110283, ¶ 22; Allord v. Municipal Officers Electoral Board for the Village of South Chicago

       Heights, 288 Ill. App. 3d 897, 901 (1997).         Courts have also consistently held that strict

       compliance with section 10-10.1(a) of the Election Code is required; however, they have differed

       over what strict compliance entails. Bettis v. Marsaglia, 2014 IL 117050, ¶ 16. The source of

       the disagreement amongst different appellate courts has historically centered around the type of

       action that is required to properly serve an electoral board and whether or not a petitioner is

       required to serve every member of the board in addition to serving the board as an entity to

       satisfy the service requirements of section 10-10.1(a) of the Election Code. Id.

¶ 16          The First District has repeatedly concluded that section 10-10.1(a) required a party

       appealing an election board's decision to serve the individual members of the board as well as the

       board itself and that a party's failure to effectuate proper service on both the board and its

       members deprived the circuit court of jurisdiction over the matter.            See, e.g., Nelson v.


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       Qualkinbush, 389 Ill. App. 3d 79, 90 (2009) (holding that the electoral candidate's failure to

       properly serve the electoral board in addition to serving the individual board members with a

       petition seeking judicial review deprived circuit court of subject matter jurisdiction to review the

       board's decision); Bill, 299 Ill. App. 3d at 553 (affirming the circuit court's dismissal of the

       petitioners' petitions for judicial review for lack of subject matter jurisdiction where the

       petitioners failed to name and serve the individual members of the electoral board); see also

       Rivera, 2011 IL App (1st) 110283, ¶ 24 (recognizing that section 10-10.1(a) of the Election Code

       required petitioners seeking review of an election board's decision to serve the board itself as

       well as the individual board members). In doing so, the First District has reasoned that the

       individual board members themselves constituted necessary "other parties" specified in that

       statutory provision since they are the specific individuals that rendered the board's decision. See,

       e.g., id. ("[S]ection 10-10.1 requires a petitioner to serve a copy of his petition upon those who

       are indispensable parties to his cause ***. [Citations.] Clearly, from the statutory language, this

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

       challenge.   [Citations.]   However, this also includes those individual Board members who

       participated in the decision, as they were the ones who actually reached the decision of the

       Board.").

¶ 17          In contrast, the Third and Fifth Districts have held that duplicative service is not

       necessary to satisfy the serve requirements set forth in section 10-10.1(a) of the Election Code.

       For example, in Langenstein v. Kassimali, 2012 IL App (5th) 120343, the Fifth District

       concluded that the petitioners satisfied the Election Code's service requirements by serving

       individual members of the election board rather than the board itself. In doing so, the Fifth

       District agreed with the petitioners' argument that "nothing in the Election Code suggests that the


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

       must be made upon the entity and its members." (Emphasis in original.) Id. ¶ 5. Thereafter, in

       Carlasare v. Will County Officers Electoral Board, 2012 IL App (3d) 120699, the Third District

       agreed with the Langenstein court's approach and also concluded that section 10-10.1(a) of the

       Election Code did not mandate duplicative service on both the board and its members. Id. ¶ 17.

¶ 18            In its recent decision, Bettis v. Marsaglia, 2014 IL 117050, the supreme court examined

       the various interpretations reached by the different appellate court districts. In doing so, the

       court acknowledged that section 10-10.1(a) was ambiguous and that the "two constructions of

       section 10-10.1(a) that have been proposed by the appellate court are both reasonable." Id. ¶ 24. 1

       The court explained, "[o]ne could certainly read the statute and conclude, as did [the First

       District in] Nelson and its progeny, that service on the board and each member of the board is

       required. However, we believe that someone could just as easily reach the same conclusion as

       the Third and Fifth Districts: that service on every member of the board necessarily accomplishes

       service on the board." Id. After examining both approaches, the court ultimately concluded:

                "[W]e believe that the Third and Fifth Districts have proposed the better                   interpretation.

                First, we note our agreement with Langenstein and Carlasare that, in cases such as this,

                service on the [Board] as an entity when the petitioner has already served every member

                of the board would be entirely duplicative. Langenstein and Carlasare pointed out that

                service on the board as a separate entity would mean serving the same person with

                process twice. No one who had not already been served with a copy of the petition would

                receive notice when the board was served as a separate legal entity. Thus, we would be

                hesitant to endorse this redundant requirement unless the statute clearly required it, and

       1
         This court notes that there are theoretically 16 different ways to interpret section 10-10.1's ambiguous service
       requirements. See appendix.

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              we do not believe that it does. Our overriding purpose in construing a statute is to

              ascertain the legislature's intent, and the obvious intent behind section 10-10.1(a) is to

              ensure that all necessary parties receive notice that a petition for judicial review has been

              filed. That purpose was accomplished fully in this case, and neither the statute nor the

              policy informing the statute requires more.

                  Moreover, when the statute is read in conjunction with section 10-9, we find that the

              better interpretation is that a petitioner has served the board when he or she has served

              every member of the board. Section 10-10.1(a) requires service upon the electoral board,

              and the board has a statutorily defined membership. ***

                  ***

                  Finally, this court has noted that access to a place on the ballot is a substantial right

              not lightly to be denied. *** We see no reason why the policy favoring ballot access

              should not lead us to adopt the interpretation that simplifies procedure. *** For all of the

              above reasons, we conclude that the petitioner served the board when she served every

              member of the board." Id. ¶¶ 25-28.

¶ 19          Applying Bettis, we conclude that Solomon complied with section 10-10.1(a)'s service

       requirements. The facts in this case are the converse of those present in Bettis. That is, Solomon

       served the Board as an entity but did not serve the individual Board members. Nonetheless, we

       believe that the same reasoning applies. Notably, the supreme court did not hold that service on

       individual board members was the only way to properly serve an electoral board; rather, the

       court merely agreed with the petitioner's argument that section 10-10.1(a) does not require

       duplicative service and that "[t]he petitioner served the board when she served every member of

       the board." Id. ¶ 28. Here, because the Board as an entity has a statutorily defined membership


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       (10 ILCS 5/10-9 (West 2012)), it logically follows that service on the Board also effectuates

       service on those individuals who comprise the Board. Id. ¶¶ 26-27. Moreover, because the

       Bettis decision makes it clear that section 10-10.1(a) does not require duplicative service,

       Solomon was not required to serve the individual Board members when he had already

       effectuated proper service on the Board itself. Id. ¶ 25. Accordingly, we conclude that subject

       matter jurisdiction was properly conferred upon the circuit court when Solomon served the

       Electoral Board as a legal entity. 2

¶ 20            In so holding, we acknowledge that Solomon failed to properly identify as respondents

       each of the Electoral Board members who issued the decision removing him from the ballot and

       keeping Al Riley's name on the ballot. In particular, Solomon erroneously named Judith C. Rice,

       rather than Cassandra B. Watson, as a Board member. However, the Bettis decision emphasized

       that section 10-10.1(a) only contains four explicit jurisdictional requirements and that "[t]he

       statute does not require the naming of parties." Id. ¶ 32. Accordingly, Solomon's erroneous

       inclusion of Rice's name and his omission of Watson's name did not operate to otherwise deprive

       the circuit court of subject matter jurisdiction over his petitions seeking judicial review of the

       Board's decisions. Id. We therefore need not consider Solomon's arguments pertaining to the

       doctrines of detrimental reliance and equitable estoppel; however, we nonetheless emphasize that

       we do not condone the Electoral Board's use of an outdated letterhead that incorrectly identified

       its members.

¶ 21                                                   CONCLUSION

       2
          We note that our colleagues in the First District's Second Division recently filed an unpublished order interpreting
       the Bettis decision to require service only upon the individual Board members. In doing so, the court rejected the
       petitioner's argument that service on the Board as an entity satisfied section 10-10.1(a)'s service requirements as
       interpreted by Bettis. See Jackson v. Robinson, 2015 IL App (1st) 150264-U, ¶ 13 ("[W]hile service on the Board as
       an entity is not required, the court clearly held that service on every party was necessary ***."). Because the
       disposition was filed as an unpublished order, however, we note that it does not constitute binding precedential
       authority. Ill. S. Ct. R. 23(e) (eff. July 1, 2011).

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¶ 22           The judgment of the circuit court is reversed.

¶ 23           Reversed.

                                                     Appendix

                  Electoral Board as                   Board Member                  Each Board Member
                    separate entity                   at official address            at home or business
                  at official address          collectively        individually            address
        1                   -                        -                   -                    -
        2                  X                        X                   X                    X
        3                  X
        4                                           X
        5                                                              X
        6                                                                                       X
        7                  X                        X
        8                  X                                           X
        9                  X                                                                    X
        10                                          X                  X
        11                                          X                                           X
        12                                                             X                        X
        13                 X                        X                  X
        14                                          X                  X                        X
        15                 X                                           X                        X
        16                 X                        X                                           X

       This court notes that there are four possible categories of service under a plain reading of the
       statute (the electoral board as an entity; board members served collectively at the board address;
       board members served individually at the board address; and individual board members served at
       their home or business addresses), which results in 16 possible combinations. To match the
       equation for combinations, one of the possibilities is "0" or "-", that is, taking no action at all.




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