Nelson v. Qualkinbush

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State: Illinois

Court: 1st District Appellate

Docket No: 1-09-0309 & 1-09-0310 Cons. Re

Case Date: 03/18/2009

Preview:THIRD DIVISION March 18, 2009

Nos. 1-09-0309 & 1-09-0310 (Cons.)

KELLIE NELSON, Petitioner-Appellant, v. MICHELLE QUALKINBUSH, GERALD TARKA and MAGDALENA J. "LENI" WOSCZYNSKI, Individually and as Members of the Duly Constituted Municipal Officers Electoral Board of the City of Calumet City and the MUNICIPAL OFFICERS ELECTORAL BOARD OF THE CITY OF CALUMET CITY, and DAVID D. ORR, the Cook County Clerk, and MICHAEL ZIMMERMAN, Respondents-Appellees.

PAM CAP, Petitioner-Appellant, v. GERALD TARKA, GLORIA DOOLEY and MAGDALENA J. "LENI" WOSCZYNSKI, Individually and as Members of the Duly Constituted Municipal Officers Electoral Board of the City of Calumet City and the MUNICIPAL OFFICERS ELECTORAL BOARD OF THE CITY OF CALUMET CITY, and DAVID D. ORR, the Cook County Clerk, and MICHAEL ZIMMERMAN, Respondents-Appellees.

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Appeal from the Circuit Court of Cook County

No. 2009 COEL 03

Honorable Nathaniel R. Howse, Jr., Judge Presiding.

Appeal from the Circuit Court of Cook County

No. 2009 COEL 04

Honorable Susan Fox Gillis, Judge Presiding.

Nos. 1-09-0309 & 1-09-0310 (Cons.)

JUSTICE MURPHY delivered the opinion of the court: This opinion considers the arguments made by petitioners Pam Cap and Kellie Nelson regarding the dismissal of their individual petitions for judicial review. Petitioners sought to challenge the decisions of respondent Municipal Officers Electoral Board of the City of Calumet City (Board) sustaining objections to their nomination papers to run for nominations to the Democratic Party in the February 24, 2009, primary election in the City of Calumet City. Nelson submitted nomination papers to run for the nomination for the Democratic Party candidate for the office of city clerk of the City of Calumet City. Cap filed nomination papers to run for the nomination for the Democratic Party candidate for the office of mayor of the City of Calumet City. Respondent Michael Zimmerman filed objections with the Board to both petitioners' candidacy. Zimmerman alleged that Nelson inadequately identified the office she was seeking the nomination for in her nominating papers. The chief objection to Cap's candidacy was that, as a member of the Calumet City police department, she could not run for the office of mayor of the City of Calumet City without first resigning her post as a police officer. On January 15, 2009, the Board issued an oral ruling, sustaining the objections and removing petitioners as partisan candidates. The Board issued a written ruling on January 19, 2009. On January 20, 2009, petitioners filed their petitions for judicial review with the clerk of the circuit court of Cook County. On February 3, 2009, the trial court dismissed Cap's petition for judicial review for lack of subject matter jurisdiction. The trial court based its decision on 2

Nos. 1-09-0309 & 1-09-0310 (Cons.) Cap's failure to both serve the Board and to file proof of service with the clerk of the circuit court of Cook County. On February 4, 2009, Nelson's petition was dismissed for lack of subject matter jurisdiction for her failure to serve the Board. These appeals followed. Respondents filed motions to dismiss the appeals as moot. Respondents assert that on February 5, 2009, both petitioners filed declarations of intent to run as independent write-in candidates in the April 7, 2009, consolidated general election, rendering these appeals moot. On February 17, 2009, following briefing on the motion, this court heard oral argument on respondents' motions to dismiss the appeals and considered the issues of jurisdiction and mootness. Because of the time-sensitive nature of these cases, this court issued short written orders issued dismissing the cases for want of subject matter jurisdiction, with notation that a full opinion would follow. While this court earlier denied respondents' motion to consolidate petitioners' appeals, that decision rested on the different objections that the Board ruled on for each petitioner. As we need not reach the merits of petitioners' individual appeals, the facts and analysis are sufficiently the same for both appeals at this juncture. Therefore, we have consolidated the cases for this opinion. For the following reasons, this court affirms the trial court's dismissal of petitioners' petitions for judicial review and dismisses the appeals for lack of subject matter jurisdiction. I. BACKGROUND On January 20, 2009, petitioners filed their petitions for judicial review with the circuit court of Cook County pursuant to section 10-10.1 of the Election Code (Code) (10 ILCS 5/1010.1 (West 2006)), naming the Board, Zimmerman, Cook County Clerk David D. Orr, and the 3

Nos. 1-09-0309 & 1-09-0310 (Cons.) three members that sat on the Board for their individual hearings as respondents. On January 21, 2009, petitioners filed several emergency motions, seeking to stay the decision of the Board, expedite consideration of the petitions, bar the Board from acting as an advocate in the proceedings and to appoint a special process server. Petitioners filed service lists and certificates of service of the notices for the emergency motion, though the certificates of service for two of the emergency motions were unsigned. Although the Board was not listed as a party on the service lists, it filed appearances and answers to the petitions on January 27, 2009. The remaining respondents also filed appearances and answers between January 27 and 30, 2009. On February 2, 2009, respondents moved to dismiss the petitions for petitioners' failure to comply with the jurisdictional requirements of Section 10-10.1 of the Code. Namely, respondents argued that petitioners failed to properly serve the petitions on the Board. Respondents also alleged that petitioners had failed to file proof of service of the petitions with the clerk of the circuit court of Cook County. On February 3, 2009, petitioners filed proofs of service for the petitions with the clerk of the circuit court of Cook County. Petitioners filed affidavits of service from the appointed special process server indicating personal service was made on the individual respondents on January 22, 2009. Petitioners also filed the certified mail receipts indicating the individual respondents received service of the petitions between January 23 and 26, 2009. The receipts indicate that the individual respondents received service both at their homes, and for the members of the Board, at the City of Calumet City building. In addition, petitioners note the attorneys for the Board and the individual respondents also were served by regular and certified mail. While petitioners state

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Nos. 1-09-0309 & 1-09-0310 (Cons.) that the service by certified mail is undisputed, and respondents do not raise this issue, it is interesting to note that the receiving agent who signed the certified mail receipts for several of respondents is the same, both for the various respondents' home and city addresses. The trial court heard argument on respondents' motion to dismiss Cap's petition on February 3, 2009. Cap asserts that she had her proof of service for the petition prepared and presented to the trial court during argument on the motions. The trial court granted respondents' motion to dismiss with prejudice. The trial court determined that it lacked jurisdiction to hear the matter for Cap's failure to serve the Board and failure to file proof of service of the petition for judicial review with the clerk of the court. The trial court also denied a request to stay the dismissal order. The trial court heard argument on the motion to dismiss Nelson's petition on February 4, 2009. The trial court dismissed Nelson's petition for want of jurisdiction based on Nelson's failure to serve the Board. The trial court also denied Nelson's request to stay the dismissal order. On February 4, 2009, petitioners officially filed the proof of service, allegedly for proof of service to the Board, with the clerk of the circuit court. Also, on February 4, 2009, petitioners filed notices of appeal for these actions. On February 5, 2009, petitioners each filed with the Cook County clerk their written declaration to be independent write-in candidates for the April 7, 2009, consolidated general election. On February 9, 2009, respondents filed their motions to dismiss the appeals as moot. Respondents filed objections to the motions to dismiss and the parties filed their briefs on the merits of petitioners' appeals. Oral argument was held on February 17, 2009, to examine the 5

Nos. 1-09-0309 & 1-09-0310 (Cons.) mootness and jurisdiction questions. In a summary order, this court dismissed the appeals for lack of jurisdiction and this opinion follows. II. ANALYSIS Respondents assert that no actual controversy exists in either case because petitioners' declarations of intent to run as independent write-in candidates eliminated this court's ability to grant effectual relief. Respondents argue that by declaring, petitioners waived their ability to be candidates in the primary election. Respondents also argue that the trial court properly determined that petitioners failed to meet the requirements of the Code to establish subject matter jurisdiction. Whether the trial court, or this court, was deprived of subject matter jurisdiction by petitioners' alleged failed compliance with the Code is a question of law and such jurisdictional determinations are reviewed de novo. Bono v. Chicago Transit Authority, 379 Ill. App. 3d 134, 139 (2008). Because we hold that we do not have jurisdiction over these appeals, we need not render a decision on respondents' motion to dismiss the appeals as moot. However, as highlighted at oral argument, we recognize the frustration and confusion the Code sometimes engenders and the insular professional core such a specialized subject can create. Accordingly, for purposes of guidance to the bar and future candidates, we begin with a brief discussion of the mootness issue and a suggestion to the legislature to clarify the write-in candidate provision of the Code. A. Respondents' Motion to Dismiss Appeals as Moot An appeal must be dismissed as moot when it presents no actual controversy because intervening events have rendered any grant of effectual relief by the reviewing court impossible. 6

Nos. 1-09-0309 & 1-09-0310 (Cons.) Richardson v. Rock Island County Officers Electoral Board, 179 Ill. 2d 252, 256 (1997). Respondents offer the convincing argument that when petitioners filed their declarations of intent to run as write-in candidates, they were prohibited from seeking partisan candidacy. In support, respondents contend that under Article III of the Illinois Constitution (Ill. Const. 1970, art. III,

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