In re Purported Election of Durkin
Annotate this Case
No. 2--97--0978
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
In re THE PURPORTED ELECTION ) Appeal from the Circuit Court
OF BILL DURKIN ) of Lake County.
)
(Newton Finn, Petitioner- ) No. 97--MR--195
Appellant, v. William Durkin, )
a/k/a Bill Durkin, as )
purported Mayor-elect of )
Waukegan, Illinois; William )
Durkin, Sam Filippo, and Brian )
Grach, as members of the )
Canvass Board of the City of )
Waukegan, Illinois; Willard )
Helander, as Clerk of Lake )
County, Illinois; Lawrence )
TenPas, a/k/a Larry TenPas; and )
Sam Filippo, as City Clerk of ) Honorable
Waukegan, Illinois, ) Maureen P. McIntyre,
Respondents-Appellees). ) Judge, Presiding.
________________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
Petitioner, Newton Finn, appeals from the dismissal by the
circuit court of Lake County of his petition to contest an election
(the petition). The petition contested the election of respondent
William Durkin, a/k/a Bill Durkin, as mayor of Waukegan, Illinois,
in the general election held on April 1, 1997 (the election). In
addition to Durkin in his capacity as mayor-elect, the petition
named as respondents Durkin, Sam Filippo, and Brian Grach, as
members of the Canvass Board of the City of Waukegan; Willard
Helander, as clerk of Lake County; Filippo, as city clerk of
Waukegan; and Lawrence TenPas, a/k/a Larry TenPas.
According to a certified canvass of the election results that
was attached to the petition, Durkin was the winning mayoral
candidate in the election with 4,296 total votes to petitioner's
4,260 total votes. The canvass showed that TenPas, who was also a
candidate for mayor in the election, received a total of 1,069
votes. TenPas did not actively participate in the election contest
proceedings.
The allegations in the petition included the following. In
the election, petitioner was an independent candidate for mayor;
Durkin was the Democratic candidate; mistakes or irregularities in
the counting or return of votes were made in the election;
"[t]hese mistakes or irregularities entailed the illegal
counting of purported absentee ballots cast by purported
absentee voters whose purported applications for absentee
ballots failed to indicate why they could not be at the
polling place on election day or indicated that they were
'physically incapacitated' without specifying the reasons for
their incapacity";
there were (according to precinct-by-precinct tabulations attached
to the petition) 256 such illegal absentee ballots; because
absentee ballots were mingled with all precinct ballots, it was not
possible to ascertain the specific candidate for whom the illegal
absentee ballots were cast; therefore, "all illegal absentee
ballots must be apportioned among respective mayoral candidates in
each precinct according to the percentages of the total vote that
each candidate received in that precinct"; after apportioning the
illegal votes in this way, and after recounting the resulting legal
votes, petitioner was the true election winner.
The petition sought a declaration that the challenged absentee
votes were illegal and should not have been counted, an allocation
of the illegal absentee ballots among the candidates in the
election, a recount of the resulting legal votes, and a declaration
that petitioner was the winner of the election. Arguing that the
relevant statutory provisions manifested a legislative intent that
election contests proceed with dispatch to a conclusion, petitioner
also filed a motion for a swift disposition of the matter.
Durkin and the Canvass Board responded to the petition by
filing separate motions to dismiss the petition pursuant to section
2--619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619
(West 1996)). Helander filed an answer to the petition. TenPas
did not respond and was subsequently defaulted.
On July 8, 1997, at a hearing on the matter, the trial court
determined that 185 of the 256 challenged absentee ballots were
legal and should have been counted. With respect to those 185
ballots, the trial court entered an order granting the motions to
dismiss. We will present additional facts where relevant to our
discussion of the issues.
We turn first to the nature of appellate review of a trial
court's dismissal of a complaint pursuant to section 2--619. The
purpose of section 2--619 is to allow for the disposition of
questions of law and easily proved fact issues at the outset of the
case. See, e.g., Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995).
Section 2--619(a)(9) permits involuntary dismissal where "the claim
asserted *** is barred by other affirmative matter avoiding the
legal effect of or defeating the claim." 735 ILCS 5/2--
619(a)(9)(West 1996). A trial court ruling on a section 2--619
motion should consider the "pleadings, depositions, and
affidavits." Zedella, 165 Ill. 2d at 185. Finally, we conduct an
independent review of the propriety of dismissing the complaint
and, therefore, are not required to defer to a trial court's
reasoning. In re Chicago Flood Litigation, 176 Ill. 2d 179, 189
(1997).
On appeal, petitioner first contends that the trial court
erred when it determined that the 185 absentee ballots were legal
and should have been counted. The facts relevant to this issue are
essentially undisputed. The issue of the legality of these ballots
centers on the applications for the absentee ballots submitted by
the voters who cast these ballots. The absentee ballot
applications in question listed seven different choices for the
voter's absence from the polling place on election day. On the
back of the applications, several "INSTRUCTIONS FOR COMPLETING THE
APPLICATION" were listed. The first of these instructed the voter
to "[c]heck one of the seven reasons why you will not be able to
vote at your polling place." One of the seven reasons on the front
of the application was "I am physically incapacitated." Nothing
else, such as the word "reason(s)" or a nearby blank space,
directed the voter to indicate the reason(s) for the physical
incapacity.
On each of the absentee ballot applications submitted for the
185 absentee ballots in question, the voter checked the "physically
incapacitated" choice, but did not indicate any reason for the
physical incapacity. Petitioner asserts that the trial court erred
in determining that the 185 absentee ballots cast by the voters who
completed these absentee ballot applications were legal because the
Election Code (10 ILCS 5/1--1 et seq. (West 1996)) requires a voter
applying for an absentee ballot on the basis of physical incapacity
to specify the reason(s) for the incapacity.
Section 19--3 of the Election Code (10 ILCS 5/19--3 (West
1996)) governs application forms for absentee ballots. Section 19-
-3 provides that "application for ballot shall be substantially in
the following form" and sets out sample absentee ballot application
forms. See 10 ILCS 5/19--3 (West 1996). Section 19--3 contains
several examples of forms to be used when the voter expresses a
specific reason for absence from the polling place. One of these
reason-specific forms is entitled "APPLICATION FOR BALLOT BY
PHYSICALLY INCAPACITATED ELECTOR." See 10 ILCS 5/19--3 (West
1996). This sample form provides, in relevant part, "I shall be
physically incapable of being present at the polls *** for the
following reasons[.]" 10 ILCS 5/19--3 (West 1996).
Section 19--3 also sets out a sample form entitled
"APPLICATION FOR ABSENT VOTER'S BALLOT." See 10 ILCS 5/19--3 (West
1996). This form is nonreason-specific in that it lists several
different reasons for the voter's absence and directs the person
completing the form to "Check One" of the reasons. See 10 ILCS
5/19--3 (West 1996). One of the choices is "I am physically
incapacitated" followed, on the next line, by the word "Reason(s)"
and a blank space. See 10 ILCS 5/19--3 (West 1996).
Petitioner contends that section 19--3 requires a person
applying for an absentee ballot on the basis of physical incapacity
to specify the reason(s) for the incapacity, and that, because this
requirement is mandatory, an application that fails to specify the
reason for the incapacity renders the related absentee ballot
illegal. In support of this position, petitioner relies on People
ex rel. Ciaccio v. Martin, 220 Ill. App. 3d 89 (1991), which
appears to be the only case that has directly addressed this issue.
In Ciaccio, the reviewing court stated that the only issue on
appeal was "whether the trial court erred in finding mandatory the
requirement that a voter applying for an absentee ballot based on
physical incapacity state the reason for that incapacity."
Ciaccio, 220 Ill. App. 3d at 90. Citing the language of section
19--3, perjury provisions in the Election Code, and legislative
concerns for the security of the electoral process, the Ciaccio
court held that the requirement was mandatory and affirmed the
judgment of the trial court. Ciaccio, 220 Ill. App. 3d at 92.
In this case, the trial court distinguished Ciaccio and
decided that it was not controlling for two reasons. First, the
trial court noted that, unlike the absentee ballot applications
used in Ciaccio, the absentee ballot applications used in this case
did not indicate that the applicants should specify the reason for
their physical incapacity. Second, the trial court noted that,
unlike Ciaccio, where there were allegations of voter fraud, there
were no allegations of voter fraud in this case. Because of these
differences, the trial court ruled that Ciaccio did not require a
finding that the absentee ballots in this case were illegal. The
trial court reasoned that it would be unfair to disenfranchise the
voters in this case because they did nothing wrong.
Petitioner asserts that the trial court erred in its ruling.
Acknowledging that exceptions exist to the otherwise mandatory
provisions of the Election Code, petitioner argues that no such
exception applies in this case.
We agree with petitioner that Ciaccio correctly determined
that the requirement that a voter applying for an absentee ballot
on the basis of physical incapacity must specify the reason for the
physical incapacity on the application form is a mandatory
requirement under the Election Code. Moreover, it is undisputed
that the applicants for the 185 absentee ballots at issue in this
case did not satisfy this mandatory requirement.
Nonetheless, in light of the facts of this case, we believe
that the trial court correctly decided that it would be improper to
disenfranchise the voters in question by declaring their absentee
ballots illegal. As the trial court noted, a significant
difference between Ciaccio and this case is that the application
forms in this case, unlike the forms in Ciaccio, did not indicate
in any way that the applicant should specify the reason for his or
her physical incapacity. Petitioner's argument that the applicants
should have known that they were required to specify the reason for
their incapacity is unpersuasive. Section 19--3 provides that an
application for an absentee ballot "shall be made on blanks to be
furnished by the election authority." 10 ILCS 5/19--3 (West 1996).
Thus, the responsibility for preparing proper absentee ballot
application forms falls on the election authority, not on the
individual voter. We believe that it is simply asking too much of
voters to require them to make sure that the forms they complete
when they apply for an absentee ballot meet the requirements of the
Election Code. This is particularly so when the election authority
is charged with ensuring that the forms are correctly prepared.
We realize that the forms used in this case were not correctly
prepared. We certainly do not condone the use of incorrectly
prepared forms. However, where the forms are incorrectly prepared
by the election authority and the voters who completed the forms
did nothing wrong in completing the incorrectly prepared forms it
is unfair to disenfranchise the voters. See Craig v. Peterson, 39 Ill. 2d 191, 196 (1968) (error to disenfranchise voters on basis of
otherwise mandatory election requirements where not voters' fault).
We also agree with the trial court that this case is
distinguishable from Ciaccio because in this case no fraud was
alleged, while in Ciaccio fraud was a factor. Fraud was at least
implicit in the Ciaccio court's recital that the vote of the
daughter of one of the candidates in the contested election was
illegal because the daughter was not a resident where she voted for
her father. Ciaccio, 220 Ill. App. 3d at 92. We also note that
the trial court stated that its research revealed that in Ciaccio
the same person had written 24 of the 25 challenged absentee ballot
applications in that case. In this case, there was no allegation
of fraud of any kind related to the absentee ballots. Where no
question of fraud or tampering is presented, a court may determine
that otherwise mandatory election requirements are only directory.
Craig, 39 Ill. 2d at 197.
For these reasons, we deem the mandatory requirements are
overcome by the equitable principle of disenfranchisement
avoidance. Accordingly, we hold that the trial court did not err
when it decided that the 185 absentee ballots in question were
legal and should have been counted. See Pullen v. Mulligan, 138 Ill. 2d 21, 47 (1990) (literal compliance with directory provisions
of Election Code not required).
Petitioner next contends that the trial court erred when it
decided that the party affiliation method of allocating illegal
votes should not be used in this case. This issue involves the 71
of the 256 absentee ballots challenged by the petition in which the
applicants for the absentee ballots did not check any of the
reasons on the application form as to why they could not be at the
polling place. Because the applicants did not check any reason,
the trial court ruled that the 71 absentee ballots were illegal and
should not have been counted. Neither party disputes that ruling.
Rather, the parties dispute how the illegal votes should have been
allocated between them.
On July 8, 1997, the trial court ruled that the 71 ballots
were illegal. When it made this ruling, the trial court had not
calculated how its ruling would affect the ultimate vote count of
the election. The trial court directed the parties to calculate
the effect of the ruling, including how to allocate the illegal
votes between petitioner and Durkin.
On July 11, 1997, petitioner filed a motion to amend his
petition. The motion sought to amend the petition so that the
illegal absentee ballots would be allocated between the parties
both according to the percentages of the total vote that each
candidate received in precincts where the illegal votes were cast,
as urged in the original petition, and "according to political
party membership." The motion stated that a list of voters who
participated in the election for mayor had been prepared after the
original petition was filed and that based on that list, a copy of
which was attached, 51 of the 71 absentee voters whose votes were
determined to be illegal had declared their political party
membership as Democrats in a primary election held on February 25,
1997. The motion asserted that this established political party
affiliation for those voters and allowed the use of the party
affiliation method in allocating their illegal votes.
Attached to his motion to amend the petition was petitioner's
proposed allocation of the 71 illegal votes. The proposed
allocation first allocated 51 of the 71 illegal votes against
Durkin, using the party affiliation method of allocating illegal
votes. In petitioner's view, this allocation was appropriate
because 51 of the voters who cast the 71 illegal votes had been
determined by the voting lists to have voted Democratic in the
primary election. On the basis of this evidence of party
affiliation, petitioner asserted that these 51 of the 71 illegal
votes should be deducted from Durkin's vote total because Durkin
was the Democratic candidate in the general election.
Petitioner's proposed allocation of the 71 illegal votes next
used the proportion method of allocating illegal votes to allocate
the 20 remaining illegal votes. The proposal allocated the 20
votes among the candidates according to the percentages of votes
each candidate received in the precincts in which these votes were
cast.
By petitioner's reckoning, the net effect of his proposed
allocation was a lowering of Durkin's vote total to 4,232 votes and
a lowering of petitioner's vote total to 4,254 votes. Thus,
according to petitioner's proposed allocation of the 71 illegal
votes, he was the winner of the election.
On July 16, 1997, the trial court granted petitioner leave to
file an amended petition to add the proposed use of the party
affiliation method to allocate any illegal votes. This was the
second time that petitioner was allowed to amend the petition.
Petitioner had previously amended the petition to join an
additional respondent.
On August 18, 1997, Durkin and the Canvass Board filed a joint
proposed allocation of the 71 illegal votes. Their proposed
allocation apportioned the 71 illegal votes between petitioner and
Durkin on the basis of the percentage of votes each candidate
received in the precincts where the illegal votes had been cast,
i.e., by using the proportion method to allocate the illegal votes.
According to this proposed allocation, Durkin would lose 49.8675
votes and petitioner would lose 17.7329 votes. This would lower
Durkin's total votes received to 4,246.1325 votes and petitioner's
total votes received to 4,242.2671 votes. Thus, according to the
proposed allocation of the 71 illegal votes submitted by Durkin and
the Canvass Board, Durkin was still the winner of the election by
slightly less than 4 votes.
On August 29, 1997, following a hearing on the matter, the
trial court decided that it would be improper to use the party
affiliation method to allocate any of the illegal votes. The court
commented that none of the cases relied on by petitioner in which
the party affiliation method had been used involved an independent
candidate. The court reasoned that these cases were not
controlling where, as in this case, an independent candidate was
involved.
At the same hearing, the trial court also determined that it
was appropriate to use the proportion method to allocate all of the
71 illegal votes. Petitioner conceded that the calculations made
by Durkin and the Canvass Board in their proposed allocation using
the proportion method were correct. The trial court determined
that, after applying the proportion method of allocating the 71
illegal votes, the results showed that Durkin received 4,246.1325
votes and petitioner received 4,242.2671 votes. On September 19,
1997, the trial court entered an order enforcing these
determinations.
On appeal, petitioner contends that the trial court erred when
it decided that the party affiliation method should not be used to
allocate any of the 71 illegal votes. Petitioner argues that the
presence of an independent candidate should not change the rule
allowing the use of party affiliation to determine the candidate
for whom illegal votes were cast and the allocation of those
illegal votes against that candidate.
It is well established that a court may use party affiliation
to determine the candidate for whom illegal votes were cast and,
when such votes have been identified, to allocate such illegal
votes against that candidate by deducting them from that
candidate's vote total. See, e.g., Talbott v. Thompson, 350 Ill. 86, 97-98 (1932) (party affiliation raises presumption voter cast
ballot for nominee of her or his political party, and presumption
determines for whom ballot was cast in absence of countervailing
evidence); Leach v. Johnson, 20 Ill. App. 3d 713, 718-19 (1974)
(absent better evidence, party affiliation is best evidence for
determining candidate for whom illegal vote was cast). This is the
party affiliation method of allocating illegal votes.
It is also well established that, when the evidence does not
disclose the recipient of illegal votes, such votes should be
eliminated by allocating them to the candidates in the same
proportion that each candidate received votes in the precincts
where the illegal votes were cast. See, e.g., Thornton v. Gardner,
30 Ill. 2d 234, 236 (1964); Flowers v. Kellar, 322 Ill. 265, 269
(1926). This is the proportion method of allocating illegal votes.
In this case, petitioner contends that the party affiliation
method should be used to eliminate 51 of the 71 illegal votes in
question by allocating them to Durkin, the Democratic candidate in
the general election. Petitioner bases this contention on voting
lists that, petitioner asserts, show that 51 of the 71 voters who
cast the illegal votes in the general election voted in the primary
election as Democrats. Petitioner also contends that the
proportion method should be used to allocate the remaining 20
illegal votes between the candidates. Precedent exists for such a
combined use of the two methods. See Choisser v. York, 211 Ill. 56, 60 (1904). However, respondents contend that a court should
not use the party affiliation method to allocate illegal votes
where, as here, one of the major candidates is an independent
candidate.
We agree with respondents. Using the party affiliation method
in this case would be unfair because, as the trial court noted,
only candidates affiliated with a political party can lose votes
when this method is applied, while an independent candidate cannot
lose votes. Of course, if the party affiliation method reliably
determined the candidate for whom the illegal votes were cast, its
use would be appropriate. Talbott, 350 Ill. at 96-97. However, we
believe that the circumstances of this case cast doubt on the
reliability of the party affiliation method in determining the
candidate for whom the illegal votes were cast. We believe that
determining party affiliation, and therefore how votes were cast,
in a general election that includes a strong independent candidate
based on the voting records from a previous primary election in
which the independent candidate did not participate, as in this
case, is not a reliable method of determining how votes were cast.
Because the independent candidate did not participate in the
primary election, voters in that election did not have a chance to
vote for the independent candidate at that time. Based on the
strong showing of petitioner, the independent candidate for mayor
in the general election, it is reasonable to conclude that many of
the voters who participated in the primary election split their
tickets and voted for the independent candidate in the general
election. Without evidence of the numbers of such voters, the
party affiliation established by the primary election records is
unreliable.
The trial court correctly noted that none of the cases cited
by petitioner in the circuit court proceedings involved an
independent candidate. This is also true of the cases cited by
petitioner on appeal. It follows that these cases are not
controlling in this case.
For these reasons, we conclude that the trial court correctly
decided that the party affiliation method should not be used to
allocate any of the illegal votes in this case. There was no other
evidence as to the candidates for whom the illegal votes were cast.
The trial court also correctly decided that the proportion method
should be used to allocate the 71 illegal votes. Because the
parties do not dispute the accuracy of respondents' calculations
using the proportion method, the trial court did not err when it
accepted respondents' proposed allocation of the 71 illegal votes.
Lastly, petitioner contends that the trial court erred when it
denied his motion for leave to file a first amended petition.
Petitioner filed his original petition to contest the election on
April 14, 1997. On July 28, 1997, petitioner filed a motion for
leave to file a first amended petition. The motion stated that the
amended petition would raise three new points of contest: (1)
alleged additional omissions in 128 of the 185 challenged absentee
ballots based on physical incapacity; (2) instances of illegal
assisted voting and other voting irregularities; and (3)
allegations of illegal conduct by Durkin. Following a hearing on
the matter, the trial court denied the motion.
The original petition consisted of a single count that alleged
that 256 of the absentee ballots cast in the election were illegal.
Petitioner asserted in the original petition that 185 of these
ballots, which were all based on physical incapacity, were illegal
because the applicants for the ballots did not specify the reason
for the physical incapacity. We have already established that the
trial court correctly determined that the 185 ballots were not
illegal on that ground. In count I of his proposed first amended
petition, petitioner asserted that 128 of the same 185 ballots were
illegal for a different reason. Petitioner asserted that the
ballots were illegal because the applicants left blank a space on
the application form for length of residency at the purported
voter's address.
The proposed first amended petition also contained two new
counts and completely new allegations. Count II alleged that 131
votes in various precincts were illegal either because of improper
assistance in voting or because of improper initialing of ballots
by election judges. Count III alleged that a mailing by Durkin,
five days before the primary election, improperly caused many
eligible voters to refrain from voting in both the primary election
and the general election.
Before ruling on petitioner's motion, the trial court made
extensive comments on the matter. The trial court initially stated
that it had reviewed all of the cases cited by both parties and
that those cases liberally allowed amendment of pleadings in
election contest proceedings where the amendment would cure
deficiencies in the original pleadings. The court then stated that
the proposed first amended petition in this case did not purport to
correct deficiencies in the original petition.
The trial court next discussed each count in the proposed
first amended petition. The trial court determined that the
information on which each proposed amendment was based had been
available to petitioner when he filed the previous motions to amend
his petition. The trial court concluded that petitioner had had
ample prior opportunities to amend his petition, as proposed in the
first amended petition, but had not done so. The trial court
stated, "[A]ctually what has been happening here is that the
petitioner has been waiting to see what the Court would do and
instead is responding to adverse rulings which I believe the case
law does not allow."
On September 26, 1997, the trial court entered an order
denying petitioner's motion for leave to file a first amended
petition. The same order stated that, based on the trial court's
prior rulings, the petition to contest the election was moot.
Finally, the order stated that the vote tally reflected in its
previous order would stand and that Durkin was "therefore the mayor
of Waukegan."
On appeal, petitioner contends that the trial court abused its
discretion when it denied his motion for leave to file a first
amended petition. Petitioner acknowledges that he was allowed to
make two prior amendments to the face of his original petition.
However, he asserts that he was improperly denied an opportunity to
change his cause of action or to add new causes of action before a
judgment was entered against him on the pleadings.
Illinois courts are encouraged to freely and liberally allow
the amendment of pleadings. 735 ILCS 5/2--616 (a) (West 1996); Lee
v. Chicago Transit Authority, 152 Ill. 2d 432, 467 (1992). It is
well established that this principle applies to election contests.
See, e.g., Dale v. Irwin, 78 Ill. 170, 176, (1875). Nonetheless,
a party's right to amend is not absolute, and the decision whether
to grant leave to amend a pleading rests within the sound
discretion of the trial court. Lee, 152 Ill. 2d at 467. This
court's standard of review is such that, absent an abuse of
discretion, we will not disturb a trial court's decision regarding
the amendment of pleadings. Lee, 152 Ill. 2d at 467.
Among the factors to be considered in determining whether or
not to permit an amendment to the pleadings are whether the
amendment would cure a defect in the pleadings; whether the other
party would be prejudiced or surprised by the proposed amendment;
the timeliness of the proposed amendment; and whether previous
opportunities to amend the pleadings existed. Lee, 152 Ill. 2d at
467-68. A court may also consider whether the party seeking to
amend offers good reasons for not seeking to amend earlier.
Johnson v. Abbott Laboratories, Inc., 238 Ill. App. 3d 898, 904
(1992).
In this case, the trial court determined that petitioner's
proposed amendments did not cure a defect in the original petition.
The trial court also determined that petitioner had previous
opportunities to amend his petition to include the proposed
amendments but did not do so. The trial court's comment that
petitioner's proposal to amend was a response to adverse rulings
indicates that the trial court also determined that petitioner did
not have a good reason for not previously proposing the amendments.
In his appellate brief, petitioner does not deny that he had
the information on which he based the proposed first amended
petition when he was allowed to make two previous amendments to the
original petition. Rather, he simply asserts that he should have
been allowed the opportunity to amend his cause of action and add
new causes of action because no judgment had been entered on the
pleadings. Based on this record, and in the context of an election
contest, where, as petitioner himself urged when he filed his
petition, matters should proceed with dispatch to a conclusion, we
find that the trial court did not abuse its discretion when it
denied petitioner's motion for leave to file a first amended
petition.
The judgment of the circuit court of Lake County is affirmed.
Affirmed.
BOWMAN and RAPP, JJ., concur.
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
In re THE PURPORTED ELECTION ) Appeal from the Circuit Court
OF BILL DURKIN ) of Lake County.
)
(Newton Finn, Petitioner- ) No. 97--MR--195
Appellant, v. William Durkin, )
a/k/a Bill Durkin, as )
purported Mayor-elect of )
Waukegan, Illinois; William )
Durkin, Sam Filippo, and Brian )
Grach, as members of the )
Canvass Board of the City of )
Waukegan, Illinois; Willard )
Helander, as Clerk of Lake )
County, Illinois; Lawrence )
TenPas, a/k/a Larry TenPas; and )
Sam Filippo, as City Clerk of ) Honorable
Waukegan, Illinois, ) Maureen P. McIntyre,
Respondents-Appellees). ) Judge, Presiding.
________________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
Petitioner, Newton Finn, appeals from the dismissal by the
circuit court of Lake County of his petition to contest an election
(the petition). The petition contested the election of respondent
William Durkin, a/k/a Bill Durkin, as mayor of Waukegan, Illinois,
in the general election held on April 1, 1997 (the election). In
addition to Durkin in his capacity as mayor-elect, the petition
named as respondents Durkin, Sam Filippo, and Brian Grach, as
members of the Canvass Board of the City of Waukegan; Willard
Helander, as clerk of Lake County; Filippo, as city clerk of
Waukegan; and Lawrence TenPas, a/k/a Larry TenPas.
According to a certified canvass of the election results that
was attached to the petition, Durkin was the winning mayoral
candidate in the election with 4,296 total votes to petitioner's
4,260 total votes. The canvass showed that TenPas, who was also a
candidate for mayor in the election, received a total of 1,069
votes. TenPas did not actively participate in the election contest
proceedings.
The allegations in the petition included the following. In
the election, petitioner was an independent candidate for mayor;
Durkin was the Democratic candidate; mistakes or irregularities in
the counting or return of votes were made in the election;
"[t]hese mistakes or irregularities entailed the illegal
counting of purported absentee ballots cast by purported
absentee voters whose purported applications for absentee
ballots failed to indicate why they could not be at the
polling place on election day or indicated that they were
'physically incapacitated' without specifying the reasons for
their incapacity";
there were (according to precinct-by-precinct tabulations attached
to the petition) 256 such illegal absentee ballots; because
absentee ballots were mingled with all precinct ballots, it was not
possible to ascertain the specific candidate for whom the illegal
absentee ballots were cast; therefore, "all illegal absentee
ballots must be apportioned among respective mayoral candidates in
each precinct according to the percentages of the total vote that
each candidate received in that precinct"; after apportioning the
illegal votes in this way, and after recounting the resulting legal
votes, petitioner was the true election winner.
The petition sought a declaration that the challenged absentee
votes were illegal and should not have been counted, an allocation
of the illegal absentee ballots among the candidates in the
election, a recount of the resulting legal votes, and a declaration
that petitioner was the winner of the election. Arguing that the
relevant statutory provisions manifested a legislative intent that
election contests proceed with dispatch to a conclusion, petitioner
also filed a motion for a swift disposition of the matter.
Durkin and the Canvass Board responded to the petition by
filing separate motions to dismiss the petition pursuant to section
2--619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619
(West 1996)). Helander filed an answer to the petition. TenPas
did not respond and was subsequently defaulted.
On July 8, 1997, at a hearing on the matter, the trial court
determined that 185 of the 256 challenged absentee ballots were
legal and should have been counted. With respect to those 185
ballots, the trial court entered an order granting the motions to
dismiss. We will present additional facts where relevant to our
discussion of the issues.
We turn first to the nature of appellate review of a trial
court's dismissal of a complaint pursuant to section 2--619. The
purpose of section 2--619 is to allow for the disposition of
questions of law and easily proved fact issues at the outset of the
case. See, e.g., Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995).
Section 2--619(a)(9) permits involuntary dismissal where "the claim
asserted *** is barred by other affirmative matter avoiding the
legal effect of or defeating the claim." 735 ILCS 5/2--
619(a)(9)(West 1996). A trial court ruling on a section 2--619
motion should consider the "pleadings, depositions, and
affidavits." Zedella, 165 Ill. 2d at 185. Finally, we conduct an
independent review of the propriety of dismissing the complaint
and, therefore, are not required to defer to a trial court's
reasoning. In re Chicago Flood Litigation, 176 Ill. 2d 179, 189
(1997).
On appeal, petitioner first contends that the trial court
erred when it determined that the 185 absentee ballots were legal
and should have been counted. The facts relevant to this issue are
essentially undisputed. The issue of the legality of these ballots
centers on the applications for the absentee ballots submitted by
the voters who cast these ballots. The absentee ballot
applications in question listed seven different choices for the
voter's absence from the polling place on election day. On the
back of the applications, several "INSTRUCTIONS FOR COMPLETING THE
APPLICATION" were listed. The first of these instructed the voter
to "[c]heck one of the seven reasons why you will not be able to
vote at your polling place." One of the seven reasons on the front
of the application was "I am physically incapacitated." Nothing
else, such as the word "reason(s)" or a nearby blank space,
directed the voter to indicate the reason(s) for the physical
incapacity.
On each of the absentee ballot applications submitted for the
185 absentee ballots in question, the voter checked the "physically
incapacitated" choice, but did not indicate any reason for the
physical incapacity. Petitioner asserts that the trial court erred
in determining that the 185 absentee ballots cast by the voters who
completed these absentee ballot applications were legal because the
Election Code (10 ILCS 5/1--1 et seq. (West 1996)) requires a voter
applying for an absentee ballot on the basis of physical incapacity
to specify the reason(s) for the incapacity.
Section 19--3 of the Election Code (10 ILCS 5/19--3 (West
1996)) governs application forms for absentee ballots. Section 19-
-3 provides that "application for ballot shall be substantially in
the following form" and sets out sample absentee ballot application
forms. See 10 ILCS 5/19--3 (West 1996). Section 19--3 contains
several examples of forms to be used when the voter expresses a
specific reason for absence from the polling place. One of these
reason-specific forms is entitled "APPLICATION FOR BALLOT BY
PHYSICALLY INCAPACITATED ELECTOR." See 10 ILCS 5/19--3 (West
1996). This sample form provides, in relevant part, "I shall be
physically incapable of being present at the polls *** for the
following reasons[.]" 10 ILCS 5/19--3 (West 1996).
Section 19--3 also sets out a sample form entitled
"APPLICATION FOR ABSENT VOTER'S BALLOT." See 10 ILCS 5/19--3 (West
1996). This form is nonreason-specific in that it lists several
different reasons for the voter's absence and directs the person
completing the form to "Check One" of the reasons. See 10 ILCS
5/19--3 (West 1996). One of the choices is "I am physically
incapacitated" followed, on the next line, by the word "Reason(s)"
and a blank space. See 10 ILCS 5/19--3 (West 1996).
Petitioner contends that section 19--3 requires a person
applying for an absentee ballot on the basis of physical incapacity
to specify the reason(s) for the incapacity, and that, because this
requirement is mandatory, an application that fails to specify the
reason for the incapacity renders the related absentee ballot
illegal. In support of this position, petitioner relies on People
ex rel. Ciaccio v. Martin, 220 Ill. App. 3d 89 (1991), which
appears to be the only case that has directly addressed this issue.
In Ciaccio, the reviewing court stated that the only issue on
appeal was "whether the trial court erred in finding mandatory the
requirement that a voter applying for an absentee ballot based on
physical incapacity state the reason for that incapacity."
Ciaccio, 220 Ill. App. 3d at 90. Citing the language of section
19--3, perjury provisions in the Election Code, and legislative
concerns for the security of the electoral process, the Ciaccio
court held that the requirement was mandatory and affirmed the
judgment of the trial court. Ciaccio, 220 Ill. App. 3d at 92.
In this case, the trial court distinguished Ciaccio and
decided that it was not controlling for two reasons. First, the
trial court noted that, unlike the absentee ballot applications
used in Ciaccio, the absentee ballot applications used in this case
did not indicate that the applicants should specify the reason for
their physical incapacity. Second, the trial court noted that,
unlike Ciaccio, where there were allegations of voter fraud, there
were no allegations of voter fraud in this case. Because of these
differences, the trial court ruled that Ciaccio did not require a
finding that the absentee ballots in this case were illegal. The
trial court reasoned that it would be unfair to disenfranchise the
voters in this case because they did nothing wrong.
Petitioner asserts that the trial court erred in its ruling.
Acknowledging that exceptions exist to the otherwise mandatory
provisions of the Election Code, petitioner argues that no such
exception applies in this case.
We agree with petitioner that Ciaccio correctly determined
that the requirement that a voter applying for an absentee ballot
on the basis of physical incapacity must specify the reason for the
physical incapacity on the application form is a mandatory
requirement under the Election Code. Moreover, it is undisputed
that the applicants for the 185 absentee ballots at issue in this
case did not satisfy this mandatory requirement.
Nonetheless, in light of the facts of this case, we believe
that the trial court correctly decided that it would be improper to
disenfranchise the voters in question by declaring their absentee
ballots illegal. As the trial court noted, a significant
difference between Ciaccio and this case is that the application
forms in this case, unlike the forms in Ciaccio, did not indicate
in any way that the applicant should specify the reason for his or
her physical incapacity. Petitioner's argument that the applicants
should have known that they were required to specify the reason for
their incapacity is unpersuasive. Section 19--3 provides that an
application for an absentee ballot "shall be made on blanks to be
furnished by the election authority." 10 ILCS 5/19--3 (West 1996).
Thus, the responsibility for preparing proper absentee ballot
application forms falls on the election authority, not on the
individual voter. We believe that it is simply asking too much of
voters to require them to make sure that the forms they complete
when they apply for an absentee ballot meet the requirements of the
Election Code. This is particularly so when the election authority
is charged with ensuring that the forms are correctly prepared.
We realize that the forms used in this case were not correctly
prepared. We certainly do not condone the use of incorrectly
prepared forms. However, where the forms are incorrectly prepared
by the election authority and the voters who completed the forms
did nothing wrong in completing the incorrectly prepared forms it
is unfair to disenfranchise the voters. See Craig v. Peterson, 39 Ill. 2d 191, 196 (1968) (error to disenfranchise voters on basis of
otherwise mandatory election requirements where not voters' fault).
We also agree with the trial court that this case is
distinguishable from Ciaccio because in this case no fraud was
alleged, while in Ciaccio fraud was a factor. Fraud was at least
implicit in the Ciaccio court's recital that the vote of the
daughter of one of the candidates in the contested election was
illegal because the daughter was not a resident where she voted for
her father. Ciaccio, 220 Ill. App. 3d at 92. We also note that
the trial court stated that its research revealed that in Ciaccio
the same person had written 24 of the 25 challenged absentee ballot
applications in that case. In this case, there was no allegation
of fraud of any kind related to the absentee ballots. Where no
question of fraud or tampering is presented, a court may determine
that otherwise mandatory election requirements are only directory.
Craig, 39 Ill. 2d at 197.
For these reasons, we deem the mandatory requirements are
overcome by the equitable principle of disenfranchisement
avoidance. Accordingly, we hold that the trial court did not err
when it decided that the 185 absentee ballots in question were
legal and should have been counted. See Pullen v. Mulligan, 138 Ill. 2d 21, 47 (1990) (literal compliance with directory provisions
of Election Code not required).
Petitioner next contends that the trial court erred when it
decided that the party affiliation method of allocating illegal
votes should not be used in this case. This issue involves the 71
of the 256 absentee ballots challenged by the petition in which the
applicants for the absentee ballots did not check any of the
reasons on the application form as to why they could not be at the
polling place. Because the applicants did not check any reason,
the trial court ruled that the 71 absentee ballots were illegal and
should not have been counted. Neither party disputes that ruling.
Rather, the parties dispute how the illegal votes should have been
allocated between them.
On July 8, 1997, the trial court ruled that the 71 ballots
were illegal. When it made this ruling, the trial court had not
calculated how its ruling would affect the ultimate vote count of
the election. The trial court directed the parties to calculate
the effect of the ruling, including how to allocate the illegal
votes between petitioner and Durkin.
On July 11, 1997, petitioner filed a motion to amend his
petition. The motion sought to amend the petition so that the
illegal absentee ballots would be allocated between the parties
both according to the percentages of the total vote that each
candidate received in precincts where the illegal votes were cast,
as urged in the original petition, and "according to political
party membership." The motion stated that a list of voters who
participated in the election for mayor had been prepared after the
original petition was filed and that based on that list, a copy of
which was attached, 51 of the 71 absentee voters whose votes were
determined to be illegal had declared their political party
membership as Democrats in a primary election held on February 25,
1997. The motion asserted that this established political party
affiliation for those voters and allowed the use of the party
affiliation method in allocating their illegal votes.
Attached to his motion to amend the petition was petitioner's
proposed allocation of the 71 illegal votes. The proposed
allocation first allocated 51 of the 71 illegal votes against
Durkin, using the party affiliation method of allocating illegal
votes. In petitioner's view, this allocation was appropriate
because 51 of the voters who cast the 71 illegal votes had been
determined by the voting lists to have voted Democratic in the
primary election. On the basis of this evidence of party
affiliation, petitioner asserted that these 51 of the 71 illegal
votes should be deducted from Durkin's vote total because Durkin
was the Democratic candidate in the general election.
Petitioner's proposed allocation of the 71 illegal votes next
used the proportion method of allocating illegal votes to allocate
the 20 remaining illegal votes. The proposal allocated the 20
votes among the candidates according to the percentages of votes
each candidate received in the precincts in which these votes were
cast.
By petitioner's reckoning, the net effect of his proposed
allocation was a lowering of Durkin's vote total to 4,232 votes and
a lowering of petitioner's vote total to 4,254 votes. Thus,
according to petitioner's proposed allocation of the 71 illegal
votes, he was the winner of the election.
On July 16, 1997, the trial court granted petitioner leave to
file an amended petition to add the proposed use of the party
affiliation method to allocate any illegal votes. This was the
second time that petitioner was allowed to amend the petition.
Petitioner had previously amended the petition to join an
additional respondent.
On August 18, 1997, Durkin and the Canvass Board filed a joint
proposed allocation of the 71 illegal votes. Their proposed
allocation apportioned the 71 illegal votes between petitioner and
Durkin on the basis of the percentage of votes each candidate
received in the precincts where the illegal votes had been cast,
i.e., by using the proportion method to allocate the illegal votes.
According to this proposed allocation, Durkin would lose 49.8675
votes and petitioner would lose 17.7329 votes. This would lower
Durkin's total votes received to 4,246.1325 votes and petitioner's
total votes received to 4,242.2671 votes. Thus, according to the
proposed allocation of the 71 illegal votes submitted by Durkin and
the Canvass Board, Durkin was still the winner of the election by
slightly less than 4 votes.
On August 29, 1997, following a hearing on the matter, the
trial court decided that it would be improper to use the party
affiliation method to allocate any of the illegal votes. The court
commented that none of the cases relied on by petitioner in which
the party affiliation method had been used involved an independent
candidate. The court reasoned that these cases were not
controlling where, as in this case, an independent candidate was
involved.
At the same hearing, the trial court also determined that it
was appropriate to use the proportion method to allocate all of the
71 illegal votes. Petitioner conceded that the calculations made
by Durkin and the Canvass Board in their proposed allocation using
the proportion method were correct. The trial court determined
that, after applying the proportion method of allocating the 71
illegal votes, the results showed that Durkin received 4,246.1325
votes and petitioner received 4,242.2671 votes. On September 19,
1997, the trial court entered an order enforcing these
determinations.
On appeal, petitioner contends that the trial court erred when
it decided that the party affiliation method should not be used to
allocate any of the 71 illegal votes. Petitioner argues that the
presence of an independent candidate should not change the rule
allowing the use of party affiliation to determine the candidate
for whom illegal votes were cast and the allocation of those
illegal votes against that candidate.
It is well established that a court may use party affiliation
to determine the candidate for whom illegal votes were cast and,
when such votes have been identified, to allocate such illegal
votes against that candidate by deducting them from that
candidate's vote total. See, e.g., Talbott v. Thompson, 350 Ill. 86, 97-98 (1932) (party affiliation raises presumption voter cast
ballot for nominee of her or his political party, and presumption
determines for whom ballot was cast in absence of countervailing
evidence); Leach v. Johnson, 20 Ill. App. 3d 713, 718-19 (1974)
(absent better evidence, party affiliation is best evidence for
determining candidate for whom illegal vote was cast). This is the
party affiliation method of allocating illegal votes.
It is also well established that, when the evidence does not
disclose the recipient of illegal votes, such votes should be
eliminated by allocating them to the candidates in the same
proportion that each candidate received votes in the precincts
where the illegal votes were cast. See, e.g., Thornton v. Gardner,
30 Ill. 2d 234, 236 (1964); Flowers v. Kellar, 322 Ill. 265, 269
(1926). This is the proportion method of allocating illegal votes.
In this case, petitioner contends that the party affiliation
method should be used to eliminate 51 of the 71 illegal votes in
question by allocating them to Durkin, the Democratic candidate in
the general election. Petitioner bases this contention on voting
lists that, petitioner asserts, show that 51 of the 71 voters who
cast the illegal votes in the general election voted in the primary
election as Democrats. Petitioner also contends that the
proportion method should be used to allocate the remaining 20
illegal votes between the candidates. Precedent exists for such a
combined use of the two methods. See Choisser v. York, 211 Ill. 56, 60 (1904). However, respondents contend that a court should
not use the party affiliation method to allocate illegal votes
where, as here, one of the major candidates is an independent
candidate.
We agree with respondents. Using the party affiliation method
in this case would be unfair because, as the trial court noted,
only candidates affiliated with a political party can lose votes
when this method is applied, while an independent candidate cannot
lose votes. Of course, if the party affiliation method reliably
determined the candidate for whom the illegal votes were cast, its
use would be appropriate. Talbott, 350 Ill. at 96-97. However, we
believe that the circumstances of this case cast doubt on the
reliability of the party affiliation method in determining the
candidate for whom the illegal votes were cast. We believe that
determining party affiliation, and therefore how votes were cast,
in a general election that includes a strong independent candidate
based on the voting records from a previous primary election in
which the independent candidate did not participate, as in this
case, is not a reliable method of determining how votes were cast.
Because the independent candidate did not participate in the
primary election, voters in that election did not have a chance to
vote for the independent candidate at that time. Based on the
strong showing of petitioner, the independent candidate for mayor
in the general election, it is reasonable to conclude that many of
the voters who participated in the primary election split their
tickets and voted for the independent candidate in the general
election. Without evidence of the numbers of such voters, the
party affiliation established by the primary election records is
unreliable.
The trial court correctly noted that none of the cases cited
by petitioner in the circuit court proceedings involved an
independent candidate. This is also true of the cases cited by
petitioner on appeal. It follows that these cases are not
controlling in this case.
For these reasons, we conclude that the trial court correctly
decided that the party affiliation method should not be used to
allocate any of the illegal votes in this case. There was no other
evidence as to the candidates for whom the illegal votes were cast.
The trial court also correctly decided that the proportion method
should be used to allocate the 71 illegal votes. Because the
parties do not dispute the accuracy of respondents' calculations
using the proportion method, the trial court did not err when it
accepted respondents' proposed allocation of the 71 illegal votes.
Lastly, petitioner contends that the trial court erred when it
denied his motion for leave to file a first amended petition.
Petitioner filed his original petition to contest the election on
April 14, 1997. On July 28, 1997, petitioner filed a motion for
leave to file a first amended petition. The motion stated that the
amended petition would raise three new points of contest: (1)
alleged additional omissions in 128 of the 185 challenged absentee
ballots based on physical incapacity; (2) instances of illegal
assisted voting and other voting irregularities; and (3)
allegations of illegal conduct by Durkin. Following a hearing on
the matter, the trial court denied the motion.
The original petition consisted of a single count that alleged
that 256 of the absentee ballots cast in the election were illegal.
Petitioner asserted in the original petition that 185 of these
ballots, which were all based on physical incapacity, were illegal
because the applicants for the ballots did not specify the reason
for the physical incapacity. We have already established that the
trial court correctly determined that the 185 ballots were not
illegal on that ground. In count I of his proposed first amended
petition, petitioner asserted that 128 of the same 185 ballots were
illegal for a different reason. Petitioner asserted that the
ballots were illegal because the applicants left blank a space on
the application form for length of residency at the purported
voter's address.
The proposed first amended petition also contained two new
counts and completely new allegations. Count II alleged that 131
votes in various precincts were illegal either because of improper
assistance in voting or because of improper initialing of ballots
by election judges. Count III alleged that a mailing by Durkin,
five days before the primary election, improperly caused many
eligible voters to refrain from voting in both the primary election
and the general election.
Before ruling on petitioner's motion, the trial court made
extensive comments on the matter. The trial court initially stated
that it had reviewed all of the cases cited by both parties and
that those cases liberally allowed amendment of pleadings in
election contest proceedings where the amendment would cure
deficiencies in the original pleadings. The court then stated that
the proposed first amended petition in this case did not purport to
correct deficiencies in the original petition.
The trial court next discussed each count in the proposed
first amended petition. The trial court determined that the
information on which each proposed amendment was based had been
available to petitioner when he filed the previous motions to amend
his petition. The trial court concluded that petitioner had had
ample prior opportunities to amend his petition, as proposed in the
first amended petition, but had not done so. The trial court
stated, "[A]ctually what has been happening here is that the
petitioner has been waiting to see what the Court would do and
instead is responding to adverse rulings which I believe the case
law does not allow."
On September 26, 1997, the trial court entered an order
denying petitioner's motion for leave to file a first amended
petition. The same order stated that, based on the trial court's
prior rulings, the petition to contest the election was moot.
Finally, the order stated that the vote tally reflected in its
previous order would stand and that Durkin was "therefore the mayor
of Waukegan."
On appeal, petitioner contends that the trial court abused its
discretion when it denied his motion for leave to file a first
amended petition. Petitioner acknowledges that he was allowed to
make two prior amendments to the face of his original petition.
However, he asserts that he was improperly denied an opportunity to
change his cause of action or to add new causes of action before a
judgment was entered against him on the pleadings.
Illinois courts are encouraged to freely and liberally allow
the amendment of pleadings. 735 ILCS 5/2--616 (a) (West 1996); Lee
v. Chicago Transit Authority, 152 Ill. 2d 432, 467 (1992). It is
well established that this principle applies to election contests.
See, e.g., Dale v. Irwin, 78 Ill. 170, 176, (1875). Nonetheless,
a party's right to amend is not absolute, and the decision whether
to grant leave to amend a pleading rests within the sound
discretion of the trial court. Lee, 152 Ill. 2d at 467. This
court's standard of review is such that, absent an abuse of
discretion, we will not disturb a trial court's decision regarding
the amendment of pleadings. Lee, 152 Ill. 2d at 467.
Among the factors to be considered in determining whether or
not to permit an amendment to the pleadings are whether the
amendment would cure a defect in the pleadings; whether the other
party would be prejudiced or surprised by the proposed amendment;
the timeliness of the proposed amendment; and whether previous
opportunities to amend the pleadings existed. Lee, 152 Ill. 2d at
467-68. A court may also consider whether the party seeking to
amend offers good reasons for not seeking to amend earlier.
Johnson v. Abbott Laboratories, Inc., 238 Ill. App. 3d 898, 904
(1992).
In this case, the trial court determined that petitioner's
proposed amendments did not cure a defect in the original petition.
The trial court also determined that petitioner had previous
opportunities to amend his petition to include the proposed
amendments but did not do so. The trial court's comment that
petitioner's proposal to amend was a response to adverse rulings
indicates that the trial court also determined that petitioner did
not have a good reason for not previously proposing the amendments.
In his appellate brief, petitioner does not deny that he had
the information on which he based the proposed first amended
petition when he was allowed to make two previous amendments to the
original petition. Rather, he simply asserts that he should have
been allowed the opportunity to amend his cause of action and add
new causes of action because no judgment had been entered on the
pleadings. Based on this record, and in the context of an election
contest, where, as petitioner himself urged when he filed his
petition, matters should proceed with dispatch to a conclusion, we
find that the trial court did not abuse its discretion when it
denied petitioner's motion for leave to file a first amended
petition.
The judgment of the circuit court of Lake County is affirmed.
Affirmed.
BOWMAN and RAPP, JJ., concur.
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