Kozenczak v. DuPage County Officers Electoral Bd.

No. 2--98--0993

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JOSEPH KOZENCZAK,

Plaintiff-Appellee,

v.

THE DU PAGE COUNTY OFFICERS
ELECTORAL BOARD, and MICHAEL B.
KWASMAN, Objector,

Defendants-Appellants

(William Toerpe, Mark H.
Kauffman, and Jeanne McNamara,
as members of The Du Page County
Officers Electoral Board; The Du
Page County Board of Election
Commissioners; and Its Members,
William Toerpe, Mark H.
Kauffman, and Jeanne McNamara,
Defendants).
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)Appeal from the Circuit
Court of Du Page County.

No. 98--MR--423

Honorable
Bonnie M. Wheaton,
Judge, Presiding.

JUSTICE COLWELL delivered the opinion of the court:
Objector, Michael B. Kwasman, filed a verified objector's
petition objecting to the certificate of nomination of plaintiff,
Joseph Kozenczak. The Du Page County Officers Electoral Board (the
Board) sustained Kwasman's objection. Plaintiff sought judicial
review, and the circuit court of Du Page County reversed the
Board's decision. Kwasman and the Board appeal from the circuit
court's order. We dismiss the appeal.
During the March 17, 1998, primary election, the Democratic
Party of Du Page County failed to nominate a candidate for the
office of Du Page County sheriff. On May 18, 1998, plaintiff filed
a certificate of nomination and a statement of candidacy seeking
election as a Democrat to the office of Du Page County sheriff in
the general election to be held on November 3, 1998.
On May 22, 1998, Kwasman filed a verified objector's petition
objecting to plaintiff's certificate of nomination. On June 17,
1998, the Board sustained Kwasman's objection and ordered that
plaintiff's name not be printed on the ballot for the general
election.
Plaintiff sought judicial review, naming as defendants the Du
Page County Board of Election Commissioners; its individual
members, William Toerpe, Mark H. Kauffman, and Jeanne McNamara; the
Board; and its individual members, Toerpe, Kauffman, and McNamara.
Pursuant to statute, the Du Page County Board of Election
Commissioners constitutes the Board ex-officio. See 10 ILCS 5/10--
9(2) (West 1996). On July 15, 1998, the circuit court reversed the
Board's decision and ordered plaintiff's name to be placed on the
ballot. On July 28, 1998, Kwasman and the Board filed a joint
notice of appeal from the circuit court's order. No other parties
appealed the circuit court's reversal.
On appeal, the Board filed an appellant's brief and a motion
for an expedited briefing schedule, and we granted the Board's
motion. In contrast, Kwasman has not filed an appellant's brief
with this court. Kwasman, however, has filed a motion to
consolidate briefs and a motion to join the argument of the Board.
We denied both motions.
In addition, plaintiff filed a motion to dismiss the appeal.
Plaintiff contends that the Board cannot prosecute an appeal from
a reversal of its own decision. Therefore, since Kwasman has
failed to timely file a brief on appeal, we should dismiss the
appeal. We ordered plaintiff's motion to dismiss the appeal taken
with the case, and we now address that motion.
In Speck v. Zoning Board of Appeals of the City of Chicago, 89 Ill. 2d 482, 486-487 (1982), our supreme court held that a zoning
board of appeals lacked standing to prosecute an appeal from a
reversal of the zoning board's decision. To reach this holding,
the court first analyzed the powers and responsibilities of the
zoning board as set forth in the Chicago zoning ordinance, the
ordinance that empowered the zoning board. Speck, 89 Ill. 2d at
485. The court noted that the zoning board functioned in an
adjudicatory or quasi-judicial capacity but nowhere in the
ordinance was the zoning board authorized, either explicitly or
implicitly, to assume the role of an advocate for the purpose of
prosecuting an appeal. Speck, 89 Ill. 2d at 485. The court then
found that the zoning board was not a party authorized to prosecute
an appeal, despite the fact that the zoning board was named as a
nominal party defendant in the administrative review action,
because the zoning board was not a party before an administrative
agency that was personally aggrieved by the reversal of its
decision. Speck, 89 Ill. 2d at 486.
In contrast, in a similar but factually distinguishable case,
our supreme court implicitly acknowledged that a retirement board
had standing to prosecute an appeal from a reversal of its own
decision. Braun v. Retirement Board of the Fireman's Annuity &
Benefit Fund, 108 Ill. 2d 119, 128 (1985). The court noted that
the retirement board, unlike the zoning board in Speck, had
extensive managerial responsibilities so that it was more than a
tribunal. Braun, 108 Ill. 2d at 128.
Although the ruling in Speck has been extended beyond zoning
boards (see, e.g., Carbondale Liquor Control Comm'n v. Illinois
Liquor Control Comm'n, 227 Ill. App. 3d 71 (1992)(local liquor
control commission lacked standing)), there is no decision
extending the Speck ruling to electoral boards. Nonetheless, we
find that Speck controls the outcome of this decision.
Like the zoning ordinance in Speck, the Election Code (10 ILCS
5/1--1 et seq. (West 1996)) does not expressly or implicitly
authorize the Board "to assume the role of advocate for the purpose
of prosecuting an appeal." See Speck, 89 Ill. 2d at 485. Instead,
the Election Code only authorizes the Board to conduct hearings,
administer oaths, subpoena and examine witnesses, subpoena
documentary evidence, and pass upon objections to nomination
petitions and objections to petitions for the submission of
questions of public policy. See 10 ILCS 5/10--9, 10--10, 28--4
(West 1996). Thus, like the zoning board in Speck, the Board here
functions "in an adjudicatory or quasi-judicial capacity," and to
allow the Board to assume the role of advocate would compromise the
Board's required duty of impartiality. See Speck, 89 Ill. 2d at
485-86. Additionally, the Board, like the zoning board in Speck,
was not a party before an administrative agency, nor was it
personally aggrieved by the reversal of its decision. See Speck,
89 Ill. 2d at 486.
Furthermore, unlike the retirement board in Braun, there is no
evidence that the Board in this case "had extensive managerial
responsibilities so that it was more than a tribunal." Braun, 108 Ill. 2d at 128. In fact, the Election Code provides otherwise.
Therefore, Braun is distinguishable, and the Board lacks standing
to prosecute this appeal according to Speck.
While the Board cites several cases in which an electoral
board appealed the reversal of its decision to the appellate court
(see, e.g., El-Aboudi v. Thompson, 293 Ill. App. 3d 191 (1997);
Thomas v. Powell, 289 Ill. App. 3d 143 (1997); Allord v. Municipal
Officers Electoral Board for the Village of South Chicago Heights,
288 Ill. App. 3d 897 (1997); Schumann v. Fleming, 261 Ill. App. 3d
1062 (1994)), we find each of those cases to be inapposite. The
appellee never challenged the electoral boards' standing in those
cases, and, thus, standing was never an issue on appeal.
Since the Board cannot prosecute this appeal, the question is
whether the appeal should be dismissed even though Kwasman clearly
has standing to prosecute the appeal. Kwasman, however, has not
filed an appellant's brief with this court. Pursuant to our
discretion under Supreme Court Rule 343 (155 Ill. 2d R. 343,
Committee Comments), we dismiss Kwasman's appeal. People v.
Zakarian, 121 Ill. App. 3d 968, 969-70 (1984); First Capitol
Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 130-
31 (1976).
Finally, we note that, without leave of court, on August 11,
1998, Kwasman filed a notice of filing and a document titled
"Joining Prior Appeal." This document has no effect. Initially,
it was filed without leave of court. In addition, based upon our
prior ruling, the Board has no appeal for Kwasman to join.
Furthermore, we have previously denied Kwasman's motion to
consolidate briefs and motion to join the Board's argument.
Consequently, this document is stricken.
For the foregoing reasons, this appeal is dismissed.
Appeal dismissed.
HUTCHINSON and RAPP, JJ., concur.