Bettis v. Marsaglia , 2014 IL 117050 ( 2014 )

2014 IL 117050
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 117050)
CAROLYN BETTIS, Appellant, v. CHARLES M. MARSAGLIA et al., Appellees.
Opinion filed December 18, 2014.
JUSTICE THOMAS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, and Burke
concurred in the judgment and opinion.
Justice Theis dissented, with opinion.
OPINION
¶1 Petitioner, Carolyn Bettis, filed a petition for judicial review of a decision of the
Education Officers Electoral Board for North Mac Community Unit School District
No. 34, Macoupin, Montgomery and Sangamon Counties (“School District”) pursuant
to section 10-10.1(a) of the Election Code (Code) (10 ILCS 5/10-10.1(a) (West 2012)).
Objectors, Charles M. Marsaglia and Melissa M. O’Neal, filed a section 2-619(a)(1)
(735 ILCS 5/2-619(a)(1) (West 2012)) motion to dismiss, arguing that the circuit court
lacked subject matter jurisdiction because of petitioner’s failure to comply with the
procedural requirements of section 10-10.1(a). The circuit court of Macoupin County
granted the motion to dismiss, and the appellate court affirmed (2013 IL App (4th)
130145). We allowed petitioner’s petition for leave to appeal, and we now reverse.
¶2 BACKGROUND
¶3 On November 28, 2012, the School District adopted a resolution declaring its intent
to issue working cash bonds in the amount of $2,000,000. Petitioner Carolyn Bettis
filed a petition with the School District, seeking to submit the proposition of issuing the
bonds to the voters. The petition specified that the proposition should be submitted to
voters at the “election to be held on the 9th day of April, 2013.” Charles M. Marsaglia
and Melissa O’Neal filed objections to the petition on seven separate bases, including
that the petition sheets were neither numbered nor securely bound, as required by
section 28-3 of the Election Code (10 ILCS 5/28-3 (West 2012)). Following a hearing,
the electoral board sustained the objections that the petitions were neither numbered
nor bound. The objectors then withdrew their remaining objections.
¶4 Petitioner commenced an action for judicial review in the circuit court. The caption
of the petition identified only objectors Marsaglia and O’Neal as opposing parties.
Nevertheless, in addition to serving a copy of the petition for judicial review on
objectors, petitioner served, by certified mail, all three members of the electoral board,
counsel for the electoral board, counsel for the objectors, and the North Mac District
Secretary. On February 5, 2013, the defendants moved to dismiss the petition, arguing
that the circuit court lacked jurisdiction because petitioner had failed to name and join
as parties the Education Officers Electoral Board and its members. The circuit court
granted the motion and dismissed the complaint.
¶5 The appellate court affirmed the dismissal. The court first noted that the appeal was
moot because the election had already passed. However, the court found that the case
qualified for review under the public interest exception to the mootness doctrine. 2013
IL App (4th) 130145, ¶¶ 10-11. The court agreed with petitioner that section 10-10.1(a)
of the Election Code clearly spells out the jurisdictional requirements for judicial
review of an electoral board decision, and that naming necessary parties is not one of
these requirements. Thus, petitioner’s failure to name the electoral board as a party in
her petition did not require the court to dismiss the petition for lack of subject matter
jurisdiction. Id. ¶ 18. Nevertheless, the appellate court agreed with defendants that,
although petitioner served all three members of the electoral board, her failure to serve
the electoral board as a separate legal entity required the dismissal of her petition. Id.
¶ 26. On this basis, the court upheld the circuit court’s dismissal of the petition. Id.
¶ 27. We allowed petitioner’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1,
2013).
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¶6 ANALYSIS
¶7 On appeal, petitioner argues that she complied with section 10-10.1(a)’s
requirement that she serve the electoral board when she served every member of the
board. She contends that duplicate service on the board as a separate legal entity is not
necessary. By way of cross appeal, defendants argue that: (1) the court lacked subject
matter jurisdiction because the petition failed to name the electoral board and did not
contain any portion of the electoral board’s written decision; and (2) the electoral
board’s decision must be affirmed because the complaint admits that the petition pages
were not numbered and, according to two witnesses, were not bound.
¶8 Before proceeding to the merits of the appeal, we must address defendant’s
argument that we should dismiss the appeal as moot. A case on appeal becomes moot
where the issues presented in the trial court no longer exist because events subsequent
to the filing of the appeal render it impossible for the reviewing court to grant the
complaining party effectual relief. Jackson v. Board of Election Commissioners, 2012
IL 111928, ¶ 28 The conclusion of an election cycle generally renders an election
contest moot. Id. ¶ 43. There is no question that all of the issues raised in this appeal are
moot. Petitioner’s petition sought to submit a proposition to voters at the April 9, 2013,
election, and that date has long since passed.
¶9 Nevertheless, one exception to the mootness doctrine allows a court to resolve an
otherwise moot issue if the issue involves a substantial public interest.
Wisnasky-Bettorf v. Pierce, 2012 IL 111253, ¶ 12. The criteria for invoking the public
interest exception are that: (1) the question presented is of a public nature; (2) an
authoritative resolution of the question is desirable for the purpose of guiding public
officers; and (3) the question is likely to recur. Jackson, 2012 IL 111928, ¶ 44. When
the public interest exception is invoked, the court must examine each of the issues to
see which ones qualify for resolution under that exception. See In re Christopher K.,
217 Ill. 2d 348, 360-63 (2005).
¶ 10 We hold that petitioner’s issue and one of the two cross-appeal issues qualify for
resolution under the public interest exception. One of defendants’ cross-appeal issues
is that the electoral board’s decision may be affirmed on the basis that petitioner’s
petition pages were neither numbered nor securely bound. This is merely a
case-specific, factual issue, for an election that has long since passed. Consequently, it
does not meet the criteria of the public interest exception.
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¶ 11 By contrast, the other two issues—whether a party must serve both the election
board as an entity and all of the members of the board, and whether a party must name
the electoral board and attach the board’s decision—meet all three criteria of the public
interest exception. As we noted in Jackson, questions relating to election law are
inherently a matter of public concern. Jackson, 2012 IL 111928, ¶ 44. Moreover, the
fact that these issues have already arisen in several cases and generated conflicting
answers, indicates that the issues will continue to arise until this court resolves the
conflict. 1 For that reason, an authoritative decision from this court to guide the lower
courts is desirable.
¶ 12 Petitioner argues that the circuit court erred in dismissing her petition for judicial
review. According to petitioner, she complied with the statutory requirement that she
serve the electoral board when she served every member of the board. For two reasons,
our review of this issue is de novo. Review of the granting of a motion to dismiss for
lack of subject matter jurisdiction is de novo. People v. Philip Morris, Inc., 198 Ill. 2d
87, 94 (2001). Further, resolving this particular issue requires us to construe section
10-10.1(a), and issues of statutory construction are reviewed de novo. Home Star Bank
& Financial Services v. Emergency Care & Health Organization, Ltd., 2014 IL
115526, ¶ 22.
¶ 13 When construing a statute, this court’s primary objective is to ascertain and give
effect to the intent of the legislature. Barragan v. Casco Design Corp., 216 Ill. 2d 435,
441 (2005). The best indication of legislative intent is the language used in the statute,
which must be given its plain and ordinary meaning. Gillespie Community Unit School
District No. 7 v. Wight & Co., 2014 IL 115330, ¶ 31. It is improper for a court to depart
from the plain statutory language by reading into the statute exceptions, limitations, or
conditions that conflict with the clearly expressed legislative intent. Metropolitan Life
Insurance Co. v. Hamer, 2013 IL 114234, ¶ 18. Words and phrases should not be
viewed in isolation, but should be considered in light of other relevant provisions of the
statute. Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 320 (2003). Further,
each word, clause and sentence of a statute must be given a reasonable construction, if
possible, and should not be rendered superfluous. Prazen v. Shoop, 2013 IL 115035,
1
Defendants argue that petitioner’s issue will not arise again because Public Act 98-115 abolished
school district electoral boards. However, this change merely means that similar election challenges will
be heard by the County Officers Electoral Board rather than the Educational Officers Electoral Board.
See Pub. Act 98-115, § 5 (eff. July 29, 2013) (amending 10 ILCS 5/10-9 (West 2012)). The disputed
statutory language in section 10-10.1(a) was unchanged by the amendment, and thus the issues raised in
this appeal will continue to arise until this court resolves them.
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¶ 21. This court presumes that the legislature did not intend absurdity, inconvenience,
or injustice. Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286,
¶ 23. Where statutory language is clear and unambiguous, it will be given effect
without resort to other aids of construction. Kunkel v. Walton, 179 Ill. 2d 519, 534
(1997). However, where the meaning of an enactment is unclear from the statutory
language itself, the court may look beyond the language employed and consider the
purpose behind the law and the evils the law was designed to remedy. Id. at 533-34.
¶ 14 Circuit courts may exercise jurisdiction over election cases only as provided by
statute. Pullen v. Mulligan, 138 Ill. 2d 21, 32 (1990); Ill. Const. 1970, art. VI, § 9
(“Circuit Courts shall have such power to review administrative action as provided by
law.”). When a court exercises special statutory jurisdiction, that jurisdiction is limited
to the language of the act conferring it, and the court has no powers from any other
source. Fredman Brothers Furniture Co. v. Department of Revenue, 109 Ill. 2d 202,
210 (1985). In the exercise of special statutory jurisdiction, if the mode of procedure
prescribed by statute is not strictly pursued, no jurisdiction is conferred on the circuit
court. Id.
¶ 15 The procedure for obtaining judicial review of an electoral board decision is spelled
out in 10-10.1(a) of the Election Code:
“(a) Except as otherwise provided in this Section, a candidate or objector
aggrieved by the decision of an electoral board may secure judicial review of
such decision in the circuit court of the county in which the hearing of the
electoral board was held. The party seeking judicial review must file a petition
with the clerk of the court and must serve a copy of the petition upon the
electoral board and other parties to the proceeding by registered or certified
mail within 5 days after service of the decision of the electoral board as
provided in Section 10-10. The petition shall contain a brief statement of the
reasons why the decision of the board should be reversed. The petitioner shall
file proof of service with the clerk of the court. No answer to the petition need
be filed, but the electoral board shall cause the record of proceedings before the
electoral board to be filed with the clerk of the court on or before the date of the
hearing on the petition or as ordered by the court.” 10 ILCS 5/10-10.1(a) (West
2012).
¶ 16 Initially, we note that the issue before us is not one of strict compliance versus
substantial compliance. There is no question that strict compliance with section
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10-10.1(a) is required. See Fredman, 109 Ill. 2d at 210. Rather, the question is how a
party strictly complies with section 10-10.1(a). The statute clearly requires that the
electoral board be served, but the appellate court has split over what that means. In
other words, if a petitioner serves every member of the board has the petitioner served
the board, or is duplicate service on the board as an entity also required?
¶ 17 The first case to address the issue on facts similar to those we have here was Nelson
v. Qualkinbush, 389 Ill. App. 3d 79 (2009). In that case, the petitioner served every
member of the electoral board, both at their home and at the city building. Id. at 87. The
Appellate Court, First District, held that this was not sufficient to confer jurisdiction on
the circuit court because there was “no doubt” that section 10-10.1(a) required service
both on every member of the board and the board as a separate entity. As authority, the
court relied on a line of cases that held that the court did not obtain jurisdiction when
the petitioner failed to name and serve all of the board members. See Russ v. Hoffman,
288 Ill. App. 3d 281 (1997); Bill v. Education Officers Electoral Board of Community
Consolidated School District No. 181, 299 Ill. App. 3d 548 (1998); Johnson v. Theis,
282 Ill. App. 3d 966 (1996). The court acknowledged the petitioner’s concern that
electoral boards are simply temporary entities with no regular meeting place or address.
However, the court found that this was not a concern because the Code specified where
the electoral board was to hold its meetings. That case involved the Municipal Officers
Electoral Board, which is required to hold its meetings where the governing body of the
municipality meets. Thus, the court held that the board should have been served at the
Calumet City building. Nelson, 389 Ill. App. 3d at 87-88.
¶ 18 The First District reiterated this view in Rivera v. City of Chicago Electoral Board,
2011 IL App (1st) 110283, ¶ 24, when it again stated that there was “no doubt” that
section 10-10.1(a) required service on the board itself but also on the individual board
members who participated in the decision. The jurisdictional problems in that case,
however, were that the petitioner had failed to show that he served the petition by
“registered or certified mail,” and that he attempted service on the board and its
members by serving their attorney. The court explained that section 10-10.1(a) clearly
requires service by registered or certified mail, and the courts had already held that
service on a party’s attorney is not sufficient to serve the party. Id. ¶ 33.
¶ 19 The Fifth District took a contrary view in Langenstein v. Kassimali, 2012 IL App
(5th) 120343. In that case, the petition for judicial review was served on each
individual board member, but not on the board as a separate legal entity. The court held
that this was sufficient to comply with section 10-10.1(a):
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“In this case, the Board is a temporary entity convened for a particular
purpose and then dissolved once that purpose has been realized. Therefore, in
order for the appellants to serve the Board with their petitions for review, they
would be required to serve the Jackson County clerk. The appellants served the
petitions upon the individual members of the Board, which included the county
clerk (in his individual capacity as a board member). Because the appellants
served the petitions for review on the members of the county election board
designated under section 10-9, we find that the requirements of section 10-10.1
have been followed. Accordingly, we conclude that the circuit court had subject
matter jurisdiction to consider the appellants’ petitions for review.” Id. ¶ 7.
The court specifically declined to follow Nelson and Rivera, and it found support for its
decision in Zack v. Ott, 381 Ill. App. 3d 545, 550-51 (2008), in which the Second
District stated that, “[o]ur reading of section 10-10.1 reveals that the General Assembly
intended for procedural due process to be accomplished by an objector serving the
electoral board members with the petition by registered or certified mail.” Langenstein,
2012 IL App (5th) 120343, ¶ 10. 2
¶ 20 The Third District would follow Langenstein in Carlasare v. Will County Officers
Electoral Board, 2012 IL App (3d) 120699. In that case, the objectors contended that
the courts lacked jurisdiction over the petition for review because the county clerk was
not served separately as the representative of the electoral board. The court cited
Langenstein approvingly for the proposition that duplicate service on the county clerk
is not necessary to comply with section 10-10.1(a). Id. ¶ 17.
¶ 21 The Fourth District then issued its decision in the present case. The court
acknowledged the split in the appellate districts, and decided to follow the First
District’s position. According to the Fourth District, section 10-10.1(a) “clearly”
requires service on the electoral board as a separate entity. 2013 IL App (4th) 130145,
¶ 26.
¶ 22 Finally, the First District revisited the issue in Solomon v. Ramsey, 2014 IL App
(1st) 140339. In that case, the petitioner served the electoral board as an entity, but not
the individual members. For the first time, the First District seemed to question whether
2
It should be noted, however, that the issue in Zack was whether section 10-10.1 requires a petitioner
to name the members of the electoral board in the petition. The petitioner in that case served the members
of the electoral board, but the opinion does not say one way or the other whether the board was served as
a separate legal entity.
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its previous position had been the correct one. The court discussed Langenstein
approvingly, but found that it would not change the result in the case before it because
the opposite facts were present: the board was served, but not the individual members.
For the first time, however, the First District acknowledged that the plain language of
the statute was confusing. Id. ¶ 17. This was a change from previous First District
opinions that had held that there was “no doubt” that service on the board and all of its
members was required. See Nelson, 389 Ill. App. 3d at 87. Ultimately, because of stare
decisis concerns, the court decided to adhere to the First District position. However, the
court called on the legislature to address the statute and spell out “once and for all who
must be named, who must be served and whose service to the clerk must be made.”
Solomon, 2014 IL App (1st) 140339, ¶¶ 17, 18.
¶ 23 We do not believe that the plain language of the statute resolves the issue. Rather,
we agree with Solomon that the statutory language is unclear, and we are not surprised
that courts have split over its meaning. The statute is ambiguous and requires
construction.
¶ 24 The precise issue before us is whether petitioner complied with section
10-10.1(a)’s mandate that she “serve a copy of the petition upon the electoral board”
(10 ILCS 5/10-10.1(a) (West 2012)) when she served a copy of the petition on all three
members of the electoral board. The two constructions of section 10-10.1(a) that have
been proposed by the appellate court are both reasonable. One could certainly read the
statute and conclude, as did Nelson and its progeny, that service on the board and each
member of the board is required. However, we believe that someone could just as
easily reach the same conclusion as the Third and Fifth Districts: that service on every
member of the board necessarily accomplishes service on the board.
¶ 25 For several reasons, we believe that the Third and Fifth Districts have proposed the
better interpretation. First, we note our agreement with Langenstein and Carlasare
that, in cases such as this, service on the Education Officers Electoral Board as an entity
when the petitioner has already served every member of the board would be entirely
duplicative. Langenstein and Carlasare pointed out that service on the board as a
separate entity would mean serving the same person with process twice. No one who
had not already been served with a copy of the petition would receive notice when the
board was served as a separate legal entity. Thus, we would be hesitant to endorse this
redundant requirement unless the statute clearly required it, and we do not believe that
it does. Our overriding purpose in construing a statute is to ascertain the legislature’s
intent, and the obvious intent behind section 10-10.1(a) is to ensure that all necessary
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parties receive notice that a petition for judicial review has been filed. That purpose
was accomplished fully in this case, and neither the statute nor the public policy
informing the statute requires more.
¶ 26 Moreover, when the statute is read in conjunction with section 10-9, we find that
the better interpretation is that a petitioner has served the board when he or she has
served every member of the board. Section 10-10.1(a) requires service upon the
electoral board, and the board has a statutorily defined membership. Section 10-9
defines who comprises the various electoral boards. For purposes of this case, the
relevant board is the Education Officers Electoral Board:
“5. The education officers electoral board to hear and pass upon objections
to the nominations of candidates for offices in school or community college
districts shall be composed of the presiding officer of the school or community
college district board, who shall be the chairman, the secretary of the school or
community college district board and the eligible elected school or community
college board member who has the longest term of continuous service as a
board member.” 10 ILCS 5/10-9(5) (West 2012).
¶ 27 Plugging this definition into section 10-10.1(a) shows that service is required upon
the presiding officer of the school district board (who acts as chairman), the secretary
of the school district board, and the longest continuous serving member of the board.
And that is precisely who petitioner served. She served the three persons whom the
statute defines as making up the board. As petitioner states in her brief, she served
everyone she could possibly think of to serve.
¶ 28 Finally, this court has noted that access to a place on the ballot is a substantial right
not lightly to be denied. Welch v. Johnson, 147 Ill. 2d 40, 56 (1992). Defendants, citing
In re Petition of Voters, 234 Ill. App. 3d 294, 298 (1992), contend that ballot access for
referenda is different than for individual candidates, and that the courts have not
allowed ballot access concerns to excuse partial compliance with statutory
requirements. Be that as it may, substantial compliance is not the issue before us.
Rather, we are faced with an ambiguous provision of the Election Code, and the
question before us is which of two reasonable statutory constructions to adopt. We see
no reason why the policy favoring ballot access should not lead us to adopt the
interpretation that simplifies procedure. Moreover, this interpretation will apply both to
individual candidates seeking a place on the ballot and to those seeking to place
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referenda on the ballot. For all of the above reasons, we conclude that petitioner served
the board when she served every member of the board.
¶ 29 Next, defendants argue by way of cross-appeal that the dismissal should be
affirmed on the basis that the petition for judicial review did not name the electoral
board or its members and did not have attached thereto a copy of the electoral board’s
decision. The appellate court has split over whether naming parties is required. The
courts in Russ, Bill, and Johnson 3 all held that naming the board and its members was a
necessary prerequisite to the circuit court’s exercise of subject matter jurisdiction over
the petition. Zack rejected this view, holding that the requirements for the court to
exercise subject matter jurisdiction were clearly set forth in section 10-10.1 and that, if
the legislature intended to require the naming of parties, it would have included that
requirement in the statute. Zack, 381 Ill. App. 3d at 550-51.
¶ 30 In the present case, the Fourth District agreed with Zack, holding that the only
jurisdictional requirements are those listed in the statute. 2013 IL App (4th) 130145,
¶ 18. The court also noted that other decisions such as Russ, Bill, and Allord v.
Municipal Officers Electoral Board, 288 Ill. App. 3d 897 (1997), were distinguishable
in that they involved lack of naming and service of necessary parties. 2013 IL App
(4th) 130145, ¶ 17. The court also noted the defendants’ reliance on the Administrative
Review Law, which requires naming of parties in the caption of the petition, but held
that this requirement could not be read into the Election Code. Although proceedings
under the Election Code are in the nature of administrative review, the Administrative
Review Law applies only where it is adopted by express reference, and there is no
express adoption of the Administrative Review Law for electoral board decisions. Id.
¶¶ 19-20. Moreover, the Administrative Review Law’s naming requirement is
expressly provided for in section 3-107 of that statute (see 735 ILCS 5/3-107 (West
2012)), and the legislature provided no similar requirement in section 10-10.1(a) of the
election code. Thus, cases such as Associated General Contractors of Illinois v. Chun,
245 Ill. App. 3d 750, 753-54 (1993), that have found a naming requirement to be a
jurisdictional prerequisite under the Administrative Review Law have done so because
that requirement is expressly set forth in the statute. 2013 IL App (4th) 130145, ¶ 20.
3
Johnson was a Second District decision, and the Second District later held in Zack that Johnson
should not be read as endorsing a naming requirement. Zack, 381 Ill. App. 3d at 551-52. Nevertheless,
when listing the reasons that the Johnson petitioners had failed to comply with section 10-10.1, the
Johnson court stated that the board was “never served or named as a party to the action.” (Emphasis
added.) Johnson, 282 Ill. App. 3d at 971.
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¶ 31 We agree with the analyses of the appellate court in this case and in Zack. As we
explained in Fredman, when a court exercises special statutory jurisdiction, that
jurisdiction is conferred only when the mode of procedure set forth in the statute is
strictly pursued. Fredman, 109 Ill. 2d at 210. As the appellate court has noted
numerous times, section 10-10.1(a) sets forth four explicit jurisdictional prerequisites:
“[The petitioner] must (1) file his challenging petition with the clerk of the
court within five days after the Board’s service of its decision; (2) serve copies
of the petition on the Board and the other parties to the proceedings by
registered or certified mail within five days after the Board’s service of its
decision; (3) state in that petition why the Board’s decision should be reversed;
and (4) file proof of service with the clerk of the court.” Rivera, 2011 IL App
(1st) 110283, ¶ 22; see also 2013 IL App (4th) 130145, ¶ 15; Nelson, 389 Ill.
App. 3d at 86; Zack, 381 Ill. App. 3d at 550; Allord, 288 Ill. App. 3d at 901.
¶ 32 If the legislature intends any other prerequisites for the exercise of jurisdiction over
petitions for review of electoral board decisions, it is up to the legislature to set them
forth. The courts may not add to or subtract from the requirements listed in the statute.
Petitioner complied with the requirements of section 10-10.1(a), and we reject
defendants’ argument that petitioner was required to comply with additional
requirements not set forth by the legislature. The statute does not require the naming of
parties, and it does not require that a copy of the electoral board’s decision be attached
to the petition. For all of the above reasons, the circuit court erred in dismissing
petitioner’s petition for judicial review.
¶ 33 In the prayer for relief in her brief, petitioner asks this court to reverse the decisions
of the appellate and circuit courts and to remand the case to the circuit court with
directions to accept her petition for judicial review. Although we agree with petitioner
that the lower courts should be reversed, we have also determined that a remand under
these circumstances would not be appropriate. The only question that would be in front
of the court on remand would be whether the electoral board erred in sustaining the
objections to petitioner’s petitions. As we explained above, however, this issue has
been mooted by the passage of the only election specified in the petition. It would be a
waste of judicial resources to remand this case to the circuit court to determine a moot
issue. See, e.g., Girot v. Keith, 212 Ill. 2d 372, 382-83 (2004) (after reviewing moot
case under public interest exception and finding that a due process violation occurred in
front of the electoral board, court finds no purpose would be served by a remand to
determine if petitions had been securely bound); People v. Roberson, 212 Ill. 2d 430,
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440-41 (2004) (under public interest exception review, court holds that defendant was
improperly denied sentencing credits, but simply reverses outright because defendant
had already completed his prison term and period of mandatory supervised release); In
re E.G, 133 Ill. 2d 98, 112-13 (1989) (after reviewing case under public interest
exception, court holds that “nothing would be gained” by remanding for a
determination if E.G. was a mature minor because E.G. was no longer a minor).
Accordingly, we will simply reverse the appellate court’s judgment outright.
¶ 34 Appellate court judgment reversed.
¶ 35 Circuit court judgment reversed.
¶ 36 JUSTICE THEIS, dissenting:
¶ 37 I disagree with the majority’s decision to reverse the lower courts. In my view, the
circuit court lacked subject matter jurisdiction because petitioner Carolyn Bettis failed
to comply with section 10-10.1(a) of the Election Code (Code). 10 ILCS 5/10-10.1(a)
(West 2012).
¶ 38 The majority’s analysis begins in the right place, stating that this court’s primary
objective in construing a statute is to ascertain and effectuate the legislature’s intent as
expressed in the plain language of the statute, but the majority fails to sketch the
statutory landscape in sufficient detail. Section 10-9 of the Code describes the
composition of various electoral boards. The relevant board in this case is the
Educational Officers Board of the North Mac Community Unit School District No. 34.
Educational officers electoral boards are empowered “to hear and pass upon objections
to the nominations of candidates for offices in school or community college districts.”
10 ILCS 5/10-9(5) (West 2012). This case does not involve an objection to a petition
for a candidate’s nomination, but an objection to a petition for the submission of a
public question to referendum under article 28 of the Code. See 10 ILCS 5/28-1 et seq.
(West 2012). Section 28-4 of the Code states that sections 10-8 through 10-10.1 apply
to public question petitions. 10 ILCS 5/28-4 (West 2012). That leads us to section
10-10.1(a), which provides, “The party seeking judicial review [of an electoral board
decision] must file a petition with the clerk of the court and must serve a copy of the
petition upon the electoral board and other parties to the proceeding ***.” (Emphasis
added.) 10 ILCS 5/10-10.1(a) (West 2012).
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¶ 39 The question before us is simply whether, under section 10-10.1(a), Bettis was
required to serve the board itself in order to confer jurisdiction upon the circuit court.
The statute refers to the electoral board, and not to electoral board members.
Presumably, the legislature knows the difference between an entity and the individuals
who conduct its proceedings. This court cannot depart from the plain language of the
statute to substitute one for the other by adding a word—“members”—that the
legislature chose not to use. See Home Star Bank & Financial Services v. Emergency
Care & Health Organization, Ltd., 2014 IL 115526, ¶ 24 (“It is improper for a court to
depart from the plain statutory language by reading into the statute exceptions,
limitations, or conditions that conflict with the clearly expressed legislative intent.”);
Nordine v. Illinois Power Co., 32 Ill. 2d 421, 428 (1965) (“plain and unambiguous
provisions of a statute do not need construction”). Thus, the statute offers a clear,
affirmative answer to the question before us: Bettis was required to serve the electoral
board itself. The majority even seems to acknowledge that answer when it states, “The
statute clearly requires that the electoral board be served ***.” Supra ¶ 16; accord
Nelson v. Qualkinbush, 389 Ill. App. 3d 79, 87 (2009) (“There can be no doubt that
section 10-10.1 requires service on the Board” as “the entity making the decision” on
the objection.); Rivera v. City of Chicago Electoral Board, 2011 IL App (1st) 110283,
¶ 24.
¶ 40 Rather than accepting that unmistakable answer, however, the majority poses
another question. According to the majority, the relevant question is not whether a
petitioner must strictly comply with the statute’s requirement to serve the electoral
board, but rather how a petitioner accomplishes that. Supra ¶ 16. Under the plain
language of the statute, there is only one acceptable answer to this “how” inquiry. A
petitioner strictly complies with the statute by serving the board itself, not its members.
Bettis did something else. She served the three electoral board members at what appear
to be their home addresses.
¶ 41 The majority offers three soft policy reasons to excuse Bettis’ failure to comply
with the terms of section 10-10.1(a). First, the majority states that service on the board
itself would be “entirely duplicative,” and notes its hesitance “to endorse this redundant
requirement unless the statute clearly required it.” Supra ¶ 25. In fact, the statute does
require a petitioner to serve the board, and it does so quite clearly. The majority directs
its argument at a version of section 10-10.1(a) that does not exist, which masks its
attempt to rewrite the version that does exist. Such a holding damages our
well-established rules of statutory construction and ultimately undercuts our authority
to say what laws mean.
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¶ 42 Second, the majority states that section 10-9 of the Code, which outlines who
comprises various electoral boards, informs section 10-10.1(a). Section 10-9 discusses
who the board members are, not who must be served. Supra ¶ 26. Section 10-10.1(a)
discusses who must be served, and, as noted above, it refers to the electoral board and
not to board members. If we should look to any other provision of the Code, I would
suggest that section 10-10, which sets the location for board hearings, would be more
instructive. Under section 10-10, the electoral board here may hold hearings at the
county courthouse or where the governing body of the school district holds its regular
meetings. 10 ILCS 5/10-10 (West 2012). Thus, Bettis should have served the board at
either of those places, rather than the individual board members at home. See Nelson,
389 Ill. App. 3d at 88 (“Under section 10-10 of the Code, the Municipal Officers
Electoral Board is required to meet where the governing body of the municipality holds
its meetings. Accordingly, the Board conducts its business at the City of Calumet City
building and the Board may be served there by filing with the city clerk.”). The board,
through its members, may have received notice of the petition, but notice is a different
issue than jurisdiction. Jurisdiction under the Code rests upon strict compliance with its
provisions (see Pullen v. Mulligan, 138 Ill. 2d 21, 32 (1990)), which never occurred in
this case.
¶ 43 Third, the majority cites ballot access as a reason for adopting a simplified
procedure. While I agree with the majority that ballot access is an important right with
constitutional underpinnings (see Jackson v. Board of Election Commissioners, 2012
IL 111928, ¶ 84 (Freeman, J., concurring in part and dissenting in part, joined by
Burke, J.)), I fail to see how allowing a petitioner to serve three individuals at their
home addresses, instead of one entity at the location of its meetings, simplifies
procedure. Indeed, identifying those individuals under section 10-9 and finding their
home addresses before serving them significantly complicates matters. An electoral
board may be “a temporary entity convened for a particular purpose” (Langenstein v.
Kassimali, 2012 IL App (5th) 120343, ¶ 7), but it is not ephemeral. The board must
remain intact through the period in which proceedings for judicial review must be
commenced (see Nelson, 389 Ill. App. 3d at 88), and, where, as here, a petition seeking
such review has been filed, until a court has held a hearing and made a decision
promptly thereafter (see 10 ILCS 5/10-10.1(a) (West 2012)).
¶ 44 Although section 10-10.1(a) is unambiguous, the General Assembly should
recognize that a majority of this court has now declared that the statute is, in some
measure, less than clear. Certainly, the legislature may amend the statute if today’s
decision is not consistent with its intent. See Solomon v. Ramsey, 2014 IL App (1st)
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140339, ¶ 17 (“[T]he legislature would provide a valuable service if it, and not the
courts, spelled out once and for all who must be named, who must be served and whose
service to the clerk must be made.”).
¶ 45 Respectfully, I dissent.
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