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Potts v. Fitzgerald
State: Illinois
Court: 2nd District Appellate
Docket No: 2-02-0064 Rel
Case Date: 02/07/2003

No. 2--02--0064


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


JOSEPHINE A. POTTS, ) Appeal from the Circuit Court
) of Du Page County.
               Plaintiff-Appellee, )
)
v. ) No. 01--MR--338
)
MICHAEL P. FITZGERALD, DIANNE )
BARRETT, ANDY SMITH, and MARY )
WILLIAMS; DEAN WESTROM, )
Chairman of the Du Page County )
Election Commission, in his )
official capacity; ROBERT T. )
SAAR, Executive Director of the )
Du Page County Election )
Commission, in his official )
capacity; CLARENDON HILLS PARK )
DISTRICT CANVASSING BOARD; KEN )
NOLAN, ED HOSEK, AND DONNA )
SKUPIEN, not individually but in )
their official capacities as )
Members of the Clarendon Hills )
Park District Canvassing Board, )
)
                  Defendants )
) Honorable
(Du Page County Election ) Ronald B. Mehling
Commission, Defendant-Appellant). ) Judge, Presiding.

JUSTICE BYRNE delivered the opinion of the court:

Defendant the Du Page County Election Commission (Commission)appeals from the circuit court's denial of its petition forreimbursement of statutory costs and fees. We affirm.

BACKGROUND

This appeal arose from an action brought by plaintiff,Josephine A. Potts, challenging her electoral defeat for theoffice of park commissioner for the Clarendon Hills Park District,by seeking a recount of the votes cast in an election. On April3, 2001, three park district commissioner seats were up forelection in the Clarendon Hills Park District. The threecandidates running on the ballot included plaintiff and defendantsMichael P. Fitzgerald and Dianne Barrett. Two additional persons,defendants Andy Smith and Mary Williams, were declared write-incandidates and did not appear on the ballot.

The Clarendon Hills Park District canvassing board(Canvassing Board) was charged with canvassing the results of theelection. On April 9, 2001, the Canvassing Board certified the followingresults, as tabulated by the Commission:

Michael Fitzgerald 1,093 votes

Dianne Barrett 700 votes

Josephine A. Potts 577 votes

Andy Smith 584 votes (write-in)

Mary Williams 581 votes (write-in).

Fitzgerald, Barrett, and Smith were declared elected to the officeof park district commissioner, as they were the three highestvote-getters according to the results tabulated by the Commissionon the night of the election. Candidates Williams and Potts weredeclared not elected.

On April 13, 2001, plaintiff filed a petition for a discoveryrecount, requesting to examine the ballots in 3 of the 12Clarendon Hills Park District precincts. The discovery recountwas conducted on April 27, 2001. The recount indicated severalimproperly counted votes, and plaintiff filed a petition in thecircuit court contesting the election.

Following a hearing on the motions, the trial court grantedan order to recount all precincts involved in the April 3, 2001,election for Clarendon Hills Park District commissioner. Duringthe course of this recount, it was discovered that an error intabulation was made by the Commission, which resulted in thewrite-in vote totals for Williams and Smith being transposed. Itis undisputed that, had that error not occurred, Williams wouldhave been credited with more votes than Smith and would have beendeclared elected. In addition to this error, other changes in thevote totals were made during the recount. Following theconclusion of the recount, the Commission presented a report tothe trial court.

On September 12, 2001, the trial court issued an orderchanging the results of the election pursuant to the recount, asfollows:

Michael Fitzgerald 1,093 votes

Dianne Barrett 700 votes

Josephine A. Potts 572 votes

Andy Smith 586 votes (write-in)

Mary Williams 593 votes (write-in).

Based on the trial court's order, Williams was declared one of thethree winners of the election. Smith was determined not to havebeen elected to the office of park district commissioner.

Following the court's order changing the results of theelection, the Commission filed a petition for reimbursement ofcosts and fees pursuant to section 23--23 of the Election Code (10ILCS 5/23--23 (West 2000)). Plaintiff argued that, under thestatute, the Commission was precluded from recouping recount costsbecause "someone other than the person whose election [was]contested" was declared as elected. The trial court agreed anddenied the Commission's petition, finding that a reading ofsection 23--23 as a whole indicated that, if a recount resultedin a change in the outcome of an election, the petitioner is notrequired to pay costs or fees. This timely appeal followed.

ANALYSIS

The fundamental issue presented by this appeal involves theconstruction of section 23--23, which states in relevant part:

"Such Board of Election Commissioners or the CanvassingBoard, as the case may be, shall receive such compensationfor its services and such allowances for the services of itsassistants and for reimbursement of expenses incurred by itas shall be approved by the court, and all such compensationand allowances when approved by the court shall be taxed andallowed as costs in such cause. The court may from time totime *** require the parties to the cause or any of them todeposit such amounts of money with the court as security forcosts as the court may deem reasonable and proper.

***

Any money deposited as security for costs by apetitioner contesting an election must be returned to suchpetitioner if the judgment of the court is to annul theelection or to declare as elected someone other than theperson whose election is contested." 10 ILCS 5/23--23 (West2000).

Well-established principles guide us in resolving an issue ofstatutory construction. The primary rule of statutoryconstruction is to ascertain and give effect to the legislature'sintent. In re Marriage of Mitchell, 181 Ill. 2d 169, 173 (1998). To determine the legislature's intent, a court first should lookto the statute's plain language and should accord the language itsplain and commonly understood meaning. Department of Public Aidex rel. Davis v. Brewer, 183 Ill. 2d 540, 554 (1998). The courtmust not read into the plain language exceptions, limitations, orconditions that the legislature did not intend. The statuteshould be read as a whole and construed so that no word, phrase,or section is rendered meaningless or superfluous. Kraft, Inc.v. Edgar, 138 Ill. 2d 178, 189 (1990). An issue of statutoryconstruction is a question of law to which we employ a de novostandard of review. Brewer, 183 Ill. 2d at 554.

The Commission contends that it is entitled to reimbursementof recount costs and expenses because the statute mandates thatthe Commission receive compensation for its services. TheCommission asserts that this absolute right is only impaired whenthe trial court either annuls the election or declares as electedsomeone other than the person whose election is contested. TheCommission believes that neither of these circumstances occurredhere because plaintiff failed to achieve the result for which shepetitioned and was not declared elected. In other words, theCommission asserts that reimbursement of costs and fees iscontingent on the success of a petitioner's challenge and, becausethe results of the election did not change as to plaintiff, it isentitled to reimbursement of costs and fees.

We disagree that the reimbursement of costs and fees is basedon the success of the petitioner. Rather, it is clear that thelegislature intended that reimbursement is not required if theoverall outcome of the election is changed by the recount. Undersection 23--23, the trial court considers the issue of assessingrecount expenses on a case-by-case basis, as is exhibited by thediscretionary language regarding the assessment of fees and costsfollowing a recount and the posting of a bond prior to a recount. The reimbursement provision of section 23--23, by its terms,provides explicit directions to the trial court regarding fees andcosts where the outcome of the election changes as a result of arecount. As the plain language of the statute mandates, in caseswhere the court either annuls the election or "declare[s] aselected someone other than the person whose election iscontested," any money deposited as security for costs must bereturned. (Emphasis added.) 10 ILCS 5/23--23 (West 2000). Thelegislature used the term "someone" rather than "petitioner," andwe must give effect to this legislative intent.

The statute does not specifically provide that costs are notto be assessed if the petitioner does not deposit security forcosts. However, to impose costs in such a case would rendermeaningless the mandatory refund of the deposit when the resultsof the recount are changed. We note that here, no bond wasposted. However, if a bond had been posted, the statute mandatesa refund.

Furthermore, there is no provision under section 23--23 thatgrants the trial court the authority to assess costs against anunsuccessful candidate in the event that a recount provesunsuccessful to a petitioner who is a noncandidate. Any voter hasstanding to contest an election and petition for a recount, notsimply a candidate. See 10 ILCS 5/23--20 (West 2000); Robinsonv. Jones, 186 Ill. App. 3d 82, 87 (1989). A noncandidate voterwho petitions for a recount could never be deemed successful inan election recount if that success were based on whether therecount caused the petitioner to be elected. In construing astatute, the court should follow a construction of the statutethat leads to a logical result and avoid one that the legislaturedid not contemplate. In re Marriage of Burke, 185 Ill. App. 3d253, 258 (1989). Utilizing the ultimate election of thepetitioner as a standard for whether costs should be assessedwould lead to an illogical result.

The Commission contends that public policy considerationssupport its interpretation of section 23--23. The Commissionasserts that, where a recount is conducted at the petitioner'srequest but fails to achieve the result the petitioner hopes for,the costs logically should be shifted to the petitioner. TheCommission asserts that this protects taxpayers from shoulderingthe costs of unsuccessful recounts and forces those who protestthe election counts to think twice before petitioning. TheCommission points out that shifting the financial burden to theCommission gives any unsuccessful candidate in a close electionthe impetus to petition for a recount, which would substantiallyincrease the filing of frivolous petitions. We disagree.

Clearly, the reimbursement provision prevents the filing offrivolous petitions. By providing that reimbursement iscontingent on the outcome of the election, rather than thepetitioner's desired result, the legislature intended to strikea fair and equitable balance between deterring frivolous recountsand providing an avenue for the review of election results. Inthose cases where the recount indicates an error in tabulationthat alters the outcome of the election, the Commission logicallyshould shoulder the expense of its mistake. On the other hand,where the recount does not change the result, the petitionershould bear the expense.

We note that the legislature has carefully contemplated andenacted a number of other statutory mechanisms to ensure thatfrivolous and baseless recounts are not conducted. For example,a discovery recount must be conducted before an election petitioncan be filed in order to determine if there is a basis for movingforward with the recount. 10 ILCS 5/22--9.1 (West 2000). Furthermore, a candidate is permitted to petition for a discoveryrecount only where he or she received at least 95% of the numberof votes cast for the successful candidate. 10 ILCS 5/22--9.1(a)(West 2000). Also, a court considering an election contestpetition cannot order a recount unless there appears a "reasonablelikelihood" that the recount will change the results of theelection. 10 ILCS 5/23--23.2 (West 2000).

It is a cardinal rule of statutory construction that theintent and meaning of a statute are to be determined based on theentire statute, and all its sections are to be construed togetherin light of the general purpose and plan, the evil intended to beremedied, and the object to be obtained. Ohlinger v. Village ofRound Lake Park, 275 Ill. App. 3d 931, 934 (1995); Orbach v.Axelrod, 100 Ill. App. 3d 973, 977-78 (1981). Were we to acceptthe Commission's interpretation of section 23--23, we wouldattribute a meaning to the statute other than that expressed byits language. We decline to do so. Accordingly, we find that thebalance of the assessment of costs and fees is not against publicpolicy or contrary to the objectives of the electoral process. Because the recount uncovered an election-changing mistake madeby the Commission during the vote counting and resulted in a newwinner being declared elected, plaintiff is not required toreimburse the Commission for costs and fees.

For the foregoing reasons, we affirm the judgment of thecircuit court of Du Page County.

Affirmed.

HUTCHINSON, P.J., and GROMETER, J., concur.

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