Peet v. Schultz Voots ( 2008 )

No. 3--07--0829
______________________________________________________________________________
Filed October 20, 2008
IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
LAWRENCE PEET, ) Appeal from the Circuit Court
) of the 12th Judicial Circuit,
Plaintiff-Appellee, ) Will County, Illinois
)
v. )
)
NANCY SCHULTZ VOOTS, )
Will County Clerk, )
) No. 07-MR-524
Defendant-Appellant )
)
(James Alaimo, Scott Glasscock, )
Saul Brass, Darryl Prince, )
Michelle Adams, George Malone, )
Thelma Kirkland, and Phyllis )
Abernathy, ) Honorable
) Barbara N. Petrungaro,
Defendants). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE CARTER delivered the opinion of the court:
______________________________________________________________________________
Plaintiff, Lawrence Peet, filed an election contest in Will County, Illinois, to challenge the
results of a local school board election. The county clerk of Will County, Nancy Schultz Voots, was
named as one of the defendants. Peet ultimately prevailed in the suit and, upon motion, was awarded
costs of $701 against Voots. Voots appeals the costs award, arguing: (1) that the trial court lacked
statutory authority to award costs in Peet’s favor, and (2) that even if the trial court had statutory
authority to award costs, the award is improper as against Voots because she is not a real party in
interest. We reverse the trial court’s order.
FACTS
In April of 2007, an election was held in Will County, Illinois, to elect four full-term
members to the Board of Education of the Laraway Community Consolidated District No. 70-C (the
school board). Peet was one of the nine candidates for the four positions. After the election had
been completed, Voots, in her official capacity as the county clerk and the election authority for
school board elections, canvassed the returns, certified the number of votes received by each
candidate, and officially proclaimed the results of the election. Peet was not a winner of one of the
school board positions. He finished fifth, two votes behind the fourth-place candidate, Thelma
Kirkland.
In June of 2007, after conducting a discovery recount, Peet filed a verified petition to contest
the results of the school board election, pursuant to section 23-20 of the Election Code (10 ILCS
5/23-20 (West 2006)). The other candidates for the school board positions were named in the suit
as defendants, along with Voots in her official capacity as the county clerk. All of the defendants,
except Voots and Kirkland, were defaulted for failing to appear. Peet was granted a recount in two
of the precincts involved and was ultimately found to be one of the rightful winners of the election,
finishing fourth, ahead of Kirkland. Upon motion, the trial court awarded Peet costs of $701 against
Voots. This appeal followed.
ANALYSIS
On appeal, Voots argues that the trial court erred in awarding costs against her. Voots does
not challenge the amount of costs but, rather, asserts that the award is improper because the trial
court lacked statutory authority to make the award. Voots contends that the Election Code (10 ILCS
2
5/1-1 et seq. (West 2006)) does not specifically provide for an award of ordinary costs to a prevailing
plaintiff and that the costs provisions of the Code of Civil Procedure (735 ILCS 5/1-101 et seq.
(West 2006)) do not apply to an election contest. In the alternative, Voots asserts that even if the
trial court has statutory authority to award costs, such an award is improper as against her because
she is not a real party in interest in the election contest.
Peet argues that the award of costs is proper and should be affirmed. Peet asserts in his brief
on appeal that statutory authority exists for the award of costs in this case pursuant to either section
5-108 or 5-118 of the Code of Civil Procedure (735 ILCS 5/5-108, 5-118 (West 2006)), which Peet
contends are incorporated into an election contest through section 23-23 of the Election Code (10
ILCS 5/23-23 (West 2006)). At oral argument before this court, Peet asserted further that the entire
Code of Civil Procedure, including section 5-108 and 5-118, is incorporated into an election contest
by way of the enacting legislation (Pub. Act 82-280, §19c-101, eff. July 1, 1982), which provided
that the Code of Civil Procedure applies to “all cases and proceedings” commenced after the
effective date of the Act. As to Voots’s argument in the alternative, Peet asserts that Voots is a real
party in interest in the election contest and that an award against Voots is proper for public policy
reasons.
Whether a court has statutory authority to award costs is a question of law subject to de novo
review on appeal. Grate v. Grzetich, 373 Ill. App. 3d 228, 231, 867 N.E.2d 577, 579 (2007). Illinois
courts follow the American Rule and will not award costs or attorney fees to a prevailing party unless
recovery of those items is provided for by statute or by contract between the parties. Morris B.
Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 572, 739 N.E.2d 1263, 1271 (2000);
Vicencio v. Lincoln-Way Builders, Inc., 204 Ill. 2d 295, 299, 789 N.E.2d 290, 293 (2003). Section
3
5-108 of the Code of Civil Procedure provides for a mandatory award of costs to a prevailing
plaintiff in certain civil cases. 735 ILCS 5/5-108 (West 2006); Vicencio, 204 Ill. 2d at 299-300, 789
N.E.2d at 293. Section 5-118 of the Code of Civil Procedure, titled “[c]osts on dismissal,” provides
for a mandatory award of costs to a defendant upon dismissal in a civil case and allows for a
discretionary award of costs “in all other civil cases, not otherwise directed by law.” 735 ILCS 5/5-
118 (West 2006). Such statutes, which allow for the recovery of costs, are in derogation of common
law and must be narrowly construed. Vicencio, 204 Ill. 2d at 300-01, 789 N.E.2d at 293-94. Thus,
our supreme court noted in Vicencio that section 5-108 only mandates that those costs commonly
understood to be “court costs,” such as filing fees, subpoena fees, and statutory witness fees, be taxed
against the losing party in a civil case. Vicencio, 204 Ill. 2d at 300-02, 789 N.E.2d at 294-95.
In the present case, we are called upon to decide whether section 23-23 of the Election Code
provides for an award of ordinary costs to the prevailing party. By ordinary costs, we mean the type
of court costs that were referred to in Vicencio and would be mandated by section 5-108 of the Code
of Civil Procedure. Although section 23-23 of the Election Code allows the election authority to
recoup the cost of providing certain services in connection with an election contest if the petitioner’s
efforts fail to change the results of the election, section 23-23 contains no provision that specifically
provides for the recovery of ordinary costs. See 10 ILCS 5/23-23 (West 2006). Section 23-23 does,
however, provide that an election contest “shall be tried in like manner as other civil cases.” 10
ILCS 5/23-23 (West 2006). The question before this court thus becomes whether the “other civil
cases” language from section 23-23 brings into election contest cases the costs provisions contained
in sections 5-108 and 5-118 of the Code of Civil Procedure.
When construing the language of a statute, such as that in section 23-23, in addition to
4
applying the general rules of statutory construction (see Vicencio, 204 Ill. 2d at 301, 789 N.E.2d at
294), a court must also consider and apply the Statute on Statutes (5 ILCS 70/0.01 et seq. (West
2006)), unless to do so would be contrary to the manifest intent of the legislature or the context of
the statute in question. 5 ILCS 70/1 (West 2006). Section 1.22 of the Statute on Statutes is
particularly relevant here. Section 1.22 provides that “ ‘[o]ther civil cases’ and ‘ordinary civil cases’
or any equivalent expression, when used with reference to practice, procedure, or appeal, shall be
deemed to refer to cases under the Civil Practice Law [(735 ILCS 5/2-101 et seq. (West 2006))], and
all existing and future amendments thereto and modifications thereof, and the Supreme Court Rules
as now or hereafter adopted.” 5 ILCS 70/1.22 (West 2006).
When construed in light of section 1.22 of the Statute on Statutes, it is clear that the reference
to “other civil cases” contained in section 23-23 of the Election Code serves to incorporate into
election contest cases the provisions contained in the Civil Practice Law. See 5 ILCS 70/1.22 (West
2006); People ex rel. Southfield Apartment Co. v. Jarecki, 408 Ill. 266, 271-75, 96 N.E.2d 569, 572-
74 (1951) (language in Revenue Act (Ill. Rev. Stat. 1949, ch. 120, par. 718) providing for appeals
to the supreme court “as in other civil cases,” when construed in light of section 1.22 of the act on
construction of statutes then in effect (Ill. Rev. Stat. 1949, ch. 131, par. 1.22), requires that the
procedures specified in the Civil Practice Law be followed, if the Revenue Act is silent on the
matter); Lang v. Board of Education of Community School District No. 16, 109 Ill. App. 2d 195,
197, 249 N.E.2d 862, 863 (1969) (Civil Practice Law controls matters of procedure for school
election contest, unless matters are specifically regulated in Election Code). However, only article
II of the Code of Civil Procedure is referenced as the “Civil Practice Law.” 735 ILCS 5/1-101 (West
2006). The costs sections, which Peet wishes to take advantage of, are contained in article V of the
5
Code of Civil Procedure and are not incorporated into an election contest by the reference in section
23-23 to “other civil cases.” In addition, contrary to Peet’s assertion at oral argument, the language
of the enacting legislation does not serve to incorporate article V of the Code of Civil Procedure into
an election contest. We must, therefore, reject Peet’s argument on this point. We find that there is
no statutory authority allowing the trial court to award ordinary costs in the instant election contest.
The holding in Brueggemann v. Young, 128 Ill. App. 200 (1906), cited by Peet, does not
change our decision in this matter. In reaching that conclusion, we recognize that there are
similarities between the facts of the Brueggemann case and the facts of the present case. The
appellate court in Brueggemann considered a lower court’s ability to award ordinary costs in an
election contest under a chancery statute similar to section 5-118 of the Code of Civil Procedure.
Brueggeman, 128 Ill. App. 200. The statute provided that “ ‘in all other cases in chancery, not
otherwise directed by law, it shall be in discretion of the court to award the costs or not.’ ”
Brueggeman, 128 Ill. App. at 204, quoting Rev. Stat. 1874, ch. 33, §18. Almost in direct parallel
to the facts of the present case, the statute in Brueggeman creating the election contest proceeding
provided that election contest cases “ ‘shall be tried in like manner as cases in chancery.’ ”
Brueggemann, 128 Ill. App. at 203, quoting Ill. Rev. Stat. 1935, ch. 120, par. 210. The Fourth
District Appellate Court upheld the lower court’s ruling in Brueggeman and in so doing implicitly
found or assumed that the language of the election contest statute was sufficient to bring into the
proceedings the costs provisions from chancery law. Brueggemann, 128 Ill. App. 200. We are not
convinced, however, that the result would be the same under the current statutes.
In the present case, we are faced with a statute directly on point, section 1.22 of the Statute
on Statutes, which provides a definition of “other civil cases.” That definition must be applied,
unless to do so would be contrary to the manifest intent of the legislature or the context of the statute
6
in question. 5 ILCS 70/1 (West 2006). The definition of “other civil cases” provided in section 1.22
brings into election contest cases only those provisions contained in article II of the Code of Civil
Procedure, which is known as the Civil Practice Law. See 5 ILCS 70/1.22 (West 2006). Section
1.22 makes no reference to the provisions contained in article V of the Code of Civil Procedure, and
we cannot read such a reference into the statute. See Town & Country Utilities, Inc. v. Illinois
Pollution Control Board, 225 Ill. 2d 103, 117, 866 N.E.2d 227, 235 (2007) (a court may not depart
from the plain language of the statute and read into it exceptions, limitations, or conditions that are
not consistent with the express legislative intent). In addition, in the instant case, we are faced with
competing rules of statutory construction. Although statutes in general are to be liberally construed
(see 5 ILCS 70/1.01 (West 2006); 735 ILCS 5/1-106 (West 2006)), costs statutes are in derogation
of common law and must, therefore, be construed narrowly (Vicencio, 204 Ill. 2d at 300-01, 789
N.E.2d at 293-94).
Having determined that there is no statutory authority for an award of ordinary costs in the
present case, we need not rule upon Voots’s alternative contention that an award of costs against her
is improper because she is not a real party in interest in the case. To the extent that Peet argues that
an award of costs is proper for public policy or equitable reasons, we note that courts may not award
costs merely upon equitable grounds. Patterson v. Northern Trust Co., 286 Ill. 564, 568, 122 N.E.
55 (1919); Vicencio, 204 Ill. 2d at 300, 789 N.E.2d at 293-94. Costs may only be awarded if they
are provided for by statute or by contract. Morris B. Chapman & Associates, Ltd., 193 Ill. 2d at 572,
739 N.E.2d at 1271; Vicencio, 204 Ill. 2d at 299, 789 N.E.2d at 293.
For the foregoing reasons, we reverse the judgment of the circuit court of Will County.
Reversed.
LYTTON and WRIGHT, J. J. concurring.
7