Peet v. Schultz Voots

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State: Illinois

Court: 3rd District Appellate

Docket No: 3-07-0829 Rel

Case Date: 10/20/2008

Preview:No. 3--07--0829 ______________________________________________________________________________ Filed October 20, 2008 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2008 LAWRENCE PEET, Plaintiff-Appellee, v. NANCY SCHULTZ VOOTS, Will County Clerk, Defendant-Appellant (James Alaimo, Scott Glasscock, Saul Brass, Darryl Prince, Michelle Adams, George Malone, Thelma Kirkland, and Phyllis Abernathy, ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois

No. 07-MR-524

) ) Honorable ) Barbara N. Petrungaro, Defendants). ) Judge, Presiding. ______________________________________________________________________________ JUSTICE CARTER delivered the opinion of the court: ______________________________________________________________________________ Plaintiff, Lawrence Peet, filed an election contest in Will County, Illinois, to challenge the results of a local school board election. The county clerk of Will County, Nancy Schultz Voots, was named as one of the defendants. Peet ultimately prevailed in the suit and, upon motion, was awarded costs of $701 against Voots. Voots appeals the costs award, arguing: (1) that the trial court lacked statutory authority to award costs in Peet's favor, and (2) that even if the trial court had statutory authority to award costs, the award is improper as against Voots because she is not a real party in interest. We reverse the trial court's order.

FACTS In April of 2007, an election was held in Will County, Illinois, to elect four full-term members to the Board of Education of the Laraway Community Consolidated District No. 70-C (the school board). Peet was one of the nine candidates for the four positions. After the election had been completed, Voots, in her official capacity as the county clerk and the election authority for school board elections, canvassed the returns, certified the number of votes received by each candidate, and officially proclaimed the results of the election. Peet was not a winner of one of the school board positions. He finished fifth, two votes behind the fourth-place candidate, Thelma Kirkland. In June of 2007, after conducting a discovery recount, Peet filed a verified petition to contest the results of the school board election, pursuant to section 23-20 of the Election Code (10 ILCS 5/23-20 (West 2006)). The other candidates for the school board positions were named in the suit as defendants, along with Voots in her official capacity as the county clerk. All of the defendants, except Voots and Kirkland, were defaulted for failing to appear. Peet was granted a recount in two of the precincts involved and was ultimately found to be one of the rightful winners of the election, finishing fourth, ahead of Kirkland. Upon motion, the trial court awarded Peet costs of $701 against Voots. This appeal followed.

ANALYSIS On appeal, Voots argues that the trial court erred in awarding costs against her. Voots does not challenge the amount of costs but, rather, asserts that the award is improper because the trial court lacked statutory authority to make the award. Voots contends that the Election Code (10 ILCS

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5/1-1 et seq. (West 2006)) does not specifically provide for an award of ordinary costs to a prevailing plaintiff and that the costs provisions of the Code of Civil Procedure (735 ILCS 5/1-101 et seq. (West 2006)) do not apply to an election contest. In the alternative, Voots asserts that even if the trial court has statutory authority to award costs, such an award is improper as against her because she is not a real party in interest in the election contest. Peet argues that the award of costs is proper and should be affirmed. Peet asserts in his brief on appeal that statutory authority exists for the award of costs in this case pursuant to either section 5-108 or 5-118 of the Code of Civil Procedure (735 ILCS 5/5-108, 5-118 (West 2006)), which Peet contends are incorporated into an election contest through section 23-23 of the Election Code (10 ILCS 5/23-23 (West 2006)). At oral argument before this court, Peet asserted further that the entire Code of Civil Procedure, including section 5-108 and 5-118, is incorporated into an election contest by way of the enacting legislation (Pub. Act 82-280,

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