Allord v. Municipal Officers Electoral Board

1-97-0986

JAY L. ALLORD,                               )
                                             )  Appeal from the 
          Petitioner-Appellee,               )  Circuit Court of
                                             )  Cook County.
     v.                                      )
                                             )
MUNICIPAL OFFICERS ELECTORAL BOARD FOR THE   )
VILLAGE OF SOUTH CHICAGO HEIGHTS, and        )
DONALD E. CULL, BURTON S. ODELSON, and       )
SAMUEL J. RUFFOLO, in their capacity as      )
Members of the Municipal Officers Electoral  )
Board for the Village of South Chicago       )
Heights, and DAVID L. OWEN, MELINDA          )
VILLAREAL, LUCIAN "BIG LOU" BEDNAREK,        )  Honorable
JOSEPH F. KUDRA, JR., and JOHN M. ROSS,      )  Francis Barth,
                                             )  Judge Presiding.
          Respondents-Appellants.            )

     PRESIDING JUSTICE HARTMAN delivered the opinion of the court:
     Respondents, the Municipal Officers Electoral Board for the
Village of South Chicago Heights (Board), its individual members,
Donald E. Cull, Burton S. Odelson, and Samuel J. Ruffolo,  and five
candidates (candidates) for public office in South Chicago Heights,
appeal the circuit court's decision reversing the Board's ruling
that the candidates' names be included on the ballot, and ordering
that the candidates' names not appear on the ballots for an
approaching consolidated municipal election.  
     The five candidates - David L. Owen, Melinda Villarreal,
Lucian "Big Lou" Bednarek, Joseph M. Kudra, Jr., and John M. Ross, 
members of a new political party - were candidates for each office
to be filled in the Village of South Chicago Heights' elections to
be held on April 1, 1997.  Each candidate filed a statement of
economic interests on December 19, 1996,  pursuant to section 4A-
105 of the Governmental Ethics Act.  5 ILCS 420/4A-105 (West 1996)
(section 4A-105) (Ethics Act).  On January 13, 1997, each candidate
filed nomination papers pursuant to section 10-5 of the Election
Code (10 ILCS 5/10-5 (West 1996)) (section 10-5).  Petitioner, Jay
L. Allord, filed objections to the nominating documents, asserting
that each was invalid because the candidates failed to file a
statement of economic interests within the calendar year of 1997. 
Allord also made several other objections, none of which are
relevant to this appeal.
     Each candidate moved to dismiss Allord's objections, which the
Board consolidated at a hearing  held on February 3, 1997.  In five
separate but identical written opinions issued on February 10, the
Board granted the candidates' motions and overruled Allord's
objections to the nomination papers, finding that the candidates'
filing of the statements of economic interests on December 19,
1996, satisfied the requirements of both the Election Code and the
Ethics Act.  
     On February 19, 1997, Allord filed a petition for review in
the circuit court, seeking reversal of the Board's decision
pursuant to section 10-10.1 of the Election Code (10 ILCS 5/10-10.1
(West 1996)), and naming only the Board and its three individual
members (collectively Board) as respondents.  Allord argued that
the Board's decision ignored the plain language of section 10-5 and
misinterpreted the scope of section 4A-105.
     The Board moved to dismiss Allord's petition pursuant to
section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619
(West 1996)), urging that the candidates, as well as the Cook
County Clerk (Clerk), were necessary parties to the litigation, and
the failure to name them in the petition as respondents was a fatal
jurisdictional defect because the ten-day limitations period for
filing section 10-10.1 administrative review complaints had passed. 
Allord then moved for leave to add the five candidates as
respondents to the petition.
     The circuit court denied the Board's motion to dismiss and
granted Allord leave to amend his petition.  On March 19, 1997,
after hearing arguments from the candidates, the Board, and Allord,
the court reversed the decision of the Board, holding that because
the candidates filed their statements of economic interests before
the beginning of the statutory period for filing nomination papers,
the filings were insufficient and the candidates' names would not
be included on the ballots.  The court also denied the candidates'
joint motion to dismiss the petition for failure to name the Clerk
as a respondent.  The Board and the candidates appeal.
     Because of the need to render a decision before the impending
elections, this court granted appellants' emergency motion to
expedite the appeal.  On March 27, 1997, we reversed the decision
of the circuit court, ruling that the Board's decision in favor of
the candidates, and their inclusion on the April 1 ballot, would
remain in effect, with a written order or opinion to follow, which
we now file.
    I
     The Board and candidates contend that the Board's ruling is
entitled to deference, and the circuit court exceeded its authority
when it determined the proper construction to be given section 10-5
without considering the interpretation of that statute contained in
the Board's written findings.  Because we dismiss this appeal for
reasons set forth in point II of this opinion, we do not reach this
issue for decision.
   II
     The Board and candidates argue that the circuit court lacked
jurisdiction over Allord's petition for two reasons:  (1) Allord
failed to serve the candidates personally with notice of his
petition within ten days of his filing the petition; and (2) Allord
failed to make the Clerk a party to the proceedings before the
circuit court.  
     Courts do not possess inherent authority to hear election
contests, and may exercise jurisdiction in such cases only when and
as provided by statute.  Pullen v. Mulligan, 138 Ill. 2d 21, 32,
561 N.E.2d 585 (1990); In re Contest of the Election for Governor,
93 Ill. 2d 463, 474, 444 N.E.2d 170 (1983).  Special statutory
jurisdiction, as exercised by the circuit court in this case, is
limited to the language of the conferring statute, and if the
prescribed statutory procedure is not strictly pursued, no
jurisdiction can be invoked in the court.  Fredman Brothers
Furniture Co. v. Department of Revenue, 109 Ill. 2d 202, 210, 486 N.E.2d 893 (1985).  
     The circuit court in the present case purported to exercise
jurisdiction over the petition pursuant to section 10-10.1 of the
Election Code (10 ILCS 5/10-10.1 (West 1996)) (section 10-10.1),
which allows parties to seek judicial review of an electoral
board's decision, but imposes certain procedures that must be
followed: 
          "The party seeking judicial review must file a
          petition with the clerk of the court within 10
          days after the decision of the electoral
          board.  The petition shall contain a brief
          statement of the reasons why the decision of
          the board should be reversed.  The petitioner
          shall serve a copy of the petition upon the
          electoral board and other parties to the
          proceeding by registered or certified mail and
          shall file proof of service with the clerk of
          the court.  No answer to the petition need be
          filed, but any answer must be filed within 10
          days after the filing of the petition." 
          (Emphasis added.)  10 ILCS 5/10-10.1 (West
          1996).  
               The Board and candidates contend that Allord did not comply
with section 10-10.1 because the candidates were not served with or
named in the original petition.  They interpret section 10-10.1 to
require that all respondents in the circuit court proceeding be
served within 10 days after the petition is filed, in order to
allow them to file an answer to the petition within the statutory
time period.  Further, they argue, under section 10-10.1, a
petition must contain the names of all necessary parties when it is
filed within 10 days of the board's decision, and may not later be
amended to add other parties.  The original petition, they claim,
did not comply with the requirements of the statute, resulting in
want of jurisdiction.
     The paramount rule of statutory construction, rising above all
other canons and rules, is to "ascertain and give effect to the
true intent and meaning of the legislature."  Hernon v. E.W.
Corrigan Construction Co., 149 Ill. 2d 190, 194, 595 N.E.2d 561
(1992).  In determining legislative intent, the plain language of
the statute first must be examined; unambiguous terms, when not
specifically defined, will be given their plain and ordinary
meaning.  Hernon, 149 Ill. 2d  at 194-95.  Here, section 10-10.1
includes four explicit requirements that must be met before the
circuit court may obtain jurisdiction over the case:  (1) a
challenging petition must be filed with the clerk of the court
within ten days after the electoral board issues its decision; (2)
the petition shall state briefly the reasons why the board's
decision should be reversed; (3) the petitioner shall serve copies
of the petition upon the electoral board and other parties to the
proceeding by registered or certified mail; and (4) the petitioner
shall file proof of service with the clerk of the court.
     A review of the record confirms that Allord did not comply
with all four requirements, preventing the circuit court from
exercising jurisdiction over the case.  Although he filed the
petition on February 19, 1997, within the requisite ten days after
the electoral board issued its decision, and his petition stated
the reasons why he believed the Board's decision should be
reversed, he served only the members of the Board, their attorney,
and the attorney for the candidates who had appeared before the
Board.  He failed to name the candidates who were parties to the
Board's proceeding in his petition, however.  Lastly, Allord filed
proof of service, a copy of which was attached to the petition,
which did not show service of the petition upon the candidates.  
     The Board and candidates assert that there was neither a
proper petition for review, nor service of it, within the limited
jurisdictional time prescribed by statute for instituting the
review action; therefore, jurisdiction did not vest at the only
time it could under the statute.  As a consequence, they argue, the
order entered by the circuit court is void.
     Service of a legally proper petition on the necessary parties,
"the electoral board and other parties to the proceeding," did not
occur within the statutorily-limited period during which
jurisdiction could be satisfied and attach.  See Pullen v.
Mulligan, 138 Ill. 2d 21, 561 N.E.2d 585, 589 (1990); and see Russ
v. Hoffman, No. 1-97-0769 (May 2, 1997) (Russ).  Failure to timely
file an election contest prohibits the court from proceeding with
the contest.
     That the candidates' attorney who represented them before the
Board was served is without significance for several reasons.  The
proof of service attached to the petition names only one party -
the "Municipal Officers Electoral Board of the Village South
Chicago Heights," through its chairman; no candidates' name appears
on this proof of service.  Although the name of Andrew M. Raucci
appears on the proof of service, the record does not show in what
capacity he was served, whether as anyone's agent or attorney; and
no candidate is shown to have been served in his care.  Strict
compliance with every prerequisite to special and limited
jurisdiction must appear in the record, unaided by any presumption
or matter outside of the record.  
     In general, an attorney's relation to his or her client ceases
upon the rendition of judgment, unless the relationship has been
specially continued.  No assumption obtains that after the
proceeding in front of the Board ended with dismissal of the
objection the relationship between the candidates and their
attorney continued.  People v. Wos, 395 Ill. 172, 177, 69 N.E.2d 858, 861 (1946) ("[T]he employment of an attorney *** ordinarily
comes to an end with the completion of the special task for which
the attorney was employed.  It is always a presumption that an
attorney is employed to conduct the litigation to judgment, and no
further; the relation of attorney and client and the general powers
of the attorney cease upon the rendition and entering of the
judgment").  Undoubtedly the candidates could have re-employed the
same attorney to handle further proceedings.  The fact that the
same attorney later was retained proves nothing about their
relationship during the hiatus until Raucci was served.  The record
is devoid of any evidence as to whether Raucci was the candidates'
attorney at the time he was served, or not.  Significantly, the
candidates came to court only after they were themselves personally
served, and then only after the time established by the statute to
serve them had elapsed.
     Under section 10-10.1 a legally sufficient petition was
required to be filed within 10 days of the Board's decision.  The
other parties to the proceedings were required to be served
promptly.  The statute limited the time that other parties to the
proceedings could choose to file an answer to 10 days from the
filing of the petition, which compels the conclusion that the
legislative intention was that service to support jurisdiction had
to be made promptly so as to permit an actual opportunity to answer
within this short 10-day period, considering an impending election. 
In the case at bar, it was not.
     Allord contends that section 10-10.1 of the Election Code does
not explicitly require that the agency and all the parties of
record are to be named appellants; he maintains that the only
indispensable party who was required to be named during the 10-day
window for filing a petition for judicial review was the electoral
board, of whose decision the petition sought relief.  We disagree. 
Section 10-10.1 not only requires service upon electoral board, but 
the term "and the other parties to the proceeding" follows
immediately after the term "electoral board."  The two terms are
connected by a conjunction denoting equivalency -- "and."  10 ILCS
5/10-10.1 (West 1996).  A statute cannot be read in a manner that
ignores or reduces its language to meaningless surplusage.  In re
Application of County Collector of Kane County, 132 Ill. 2d 64, 72,
547 N.E.2d 107 (1989).  Courts should not adopt a construction
which renders words or phrases in a statute superfluous.  Both the
electoral board and other parties to the proceeding are
indispensable parties in this proceeding, for different reasons. 
The electoral board is a neutral decision maker; it is made a party
so that the court can require it to deliver up its record for
review and to require it to follow the court's orders once
rendered.  The electoral board does not have a substantive interest
affected.  The other parties to the proceeding, however, are the
real parties in interest -- the candidates.  The candidates are
clearly indispensable, since court proceedings are adversarial, and
it is the interests of the candidates that are actually at risk
with regard to the threat of being stricken off the ballot.
     Although not directly applicable, the Administrative Review
Law (735 ILCS 5/3-101 et seq. (West 1996)) may be consulted.  This
court has found the Administrative Review Law to be sufficiently
analogous to this statutory provision providing review to give
guidance to courts functioning under the Election Code's grant of
review.  Russ; Serwinski v. Board of Election Commissioners of the
City of Chicago, 156 Ill. App. 3d 257, 261, 509 N.E.2d 509 (1987). 
The supreme court in Lockett v. Chicago Police Board, 133 Ill. 2d 349, 353, 549 N.E.2d 1266 (1990), has held that, under the
Administrative Review Law, the administrative agency (Board) and
all parties of record before it (candidates) must be made
defendants in the circuit court, construing  Ill. Rev. Stat. 1985,
ch. 110, par. 3-107.  The appellate court similarly so holds, New
York Carpet World v. Department of Employment Security, 283 Ill.
App. 3d 497, 500, 669 N.E.2d 1321 (1996); Stanley v. Department of
Employment Security, 235 Ill. App. 3d 992, 996, 602 N.E.2d 73
(1992).  Supreme Court Rule 335(a) (155 Ill. 2d R.335(a))
articulates the same requirement.
     The due process clause of the constitution does not permit
candidates to be stricken from the ballot without their
participation in the action in defense of their right to be listed
as candidates.  In re Application of County Collector, 53 Ill. App.
3d 120, 124, 368 N.E.2d 929 (1977).  The petition here failed to
comply with the statute and was legally insufficient to cause
jurisdiction to attach.  
     As a result, Allord's failure to include the five candidates
in his original petition, or to serve them with notice of the
petition within ten days of filing it, precluded the circuit court
from exercising jurisdiction over the election contest.  
     The Board and candidates next argue that the Clerk, who
controls the printing and distribution of election ballots, was a
necessary party to the circuit court action, and Allord's failure
to include him as a respondent to the petition prevented the
circuit court from exercising jurisdiction over the case.  Section
10-10.1, however, contains no reference to county clerks, and does
not require that the appropriate county clerk, or any other
governmental official, be named in or served with the petition. 
The absence of any mention of county clerks in section 10-10.1
provides clear evidence of the legislature's intent not to compel
parties appealing the decision of an electoral board to include the
county clerk as a respondent in every petition before the circuit
court.  Allord's decision not to name the Clerk as a respondent in
his petition did not violate section 10-10.1 or prevent the circuit
court from exercising jurisdiction over the case.  The decisions
cited by the parties relating to this argument are not controlling,
in that they involve mandamus actions, and not petitions brought
pursuant to section 10-10.1.  In People ex rel. Meyer v. Kerner, 35 Ill. 2d 33, 38, 219 N.E.2d 617 (1966), the court reversed the
decision of the circuit court, noting in dicta that the electoral
board and county clerk should have been named in the circuit court
action, because they were "entitled to be heard before the entry of
an order so vitally affecting their official functions."  Allord
cites Caldwell v. Nolan, 167 Ill. App. 3d 1057, 1067, 522 N.E.2d 175 (1988), where the court held that in the absence of any
evidence that the county clerk would not perform his public duty,
the clerk was not a necessary party to the mandamas action.  No
case involving a section 10-10.1 petition, in which the county
clerk was alleged or held to be a necessary party to the circuit
court action for jurisdictional purposes, has been cited or found.
     Although the Clerk could have been joined in this action,
Allord's decision not to name him as a respondent in the section
10-10.1 petition, or serve him, did not defeat the circuit court's
jurisdiction.  The court did not err in refusing to dismiss
Allord's petition for failure to name the Clerk as a party.
     Allord's failure to timely name the candidates in his petition
or to serve them within the statutory period precluded the exercise
of jurisdiction by the circuit court and requires that the order of
the circuit court be vacated and that the appeal be dismissed.
     Order vacated; appeal dismissed.
     HOFFMAN and HOURIHANE, JJ., concur.