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THIRD DIVISION

September 30, 1998

1-97-3805 )

1-97-3806 )

1-97-3807 )

JUSTICE LEAVITT delivered the opinion of the court:

The facts of the instant case are undisputed. On August 18,1997, defendants Anna Branta Mueller, Deborah Tyrell, StevenLipstein and Kevin Connor filed nomination papers as candidates forthe office of Member of the Board of Education of CommunityConsolidated School District 181. Plaintiffs Susan M. Becker andMarie C. Bill lodged objections to the nominating petitions of eachof the defendants in accordance with 10-8 of the Election Code(Code) 10 ILCS 5/10-8 (West 1996).

Moving under Section 10-9 of the Code, the Electoral Board,comprised of Peter R. Metz, William Oelman and David Hendrix,conducted hearings from September 9, 1997, to September 22, 1997,with respect to each plaintiffs' objections (however, it should benoted that David Hendrix abstained from voting during thesehearings). On September 22, 1997, the Education Officers ElectoralBoard of Community Consolidated School District No. 181 (ElectoralBoard) issued its decision overruling plaintiffs' objections. TheElectoral Board's decision was signed only by Metz, in his capacityas Chairperson of the Electoral Board. Consequently, each of thedefendants' names appeared on the election ballot for the November4, 1997, nonpartisan election.

Ten days later, on October 2, 1997, plaintiffs filed multiplepetitions in the circuit court seeking judicial review of theElectoral Board's decision with respect to their objections. Inboth the caption and body of these petitions, the candidates andthe Electoral Board were named and joined as defendants. However,the individual members of the Electoral Board (Metz, Oelman andHendrix) were neither named nor joined as parties in either thepetition caption or the body of the petition. Plaintiffs didsuccessfully serve the Secretary of Community Consolidated SchoolDistrict No. 181, Hendrix, but they failed to serve the other twoboard members individually.

Six days later, on October 8, 1997, defendants' filed a motionto dismiss under section 2-619 of the Code of Civil Procedure (West1996), arguing the circuit court no longer retained subject matterjurisdiction over this proceeding due to plaintiffs' failure tostrictly comply with section 10-10.1 of the Code. Specifically,plaintiffs failed to individually name and serve the ElectoralBoard members. Plaintiffs maintained they were in compliance withSection 10-10.1 since they named and served both the ElectoralBoard and individual candidates in their petition for judicialreview. Alternatively, plaintiffs argued that under theAdministrative Review Law they were entitled to amend theirpetition seeking judicial review in the event it was defective. See 735 ILCS 5/3-103 et seq. (West 1997). The circuit courtdisagreed, and on October 15, 1997, defendants' motion to dismisswas granted, the circuit court holding it lacked subject matterjurisdiction due to plaintiffs' failure to strictly comply withsection 10-10.1 of the Code.

Plaintiffs timely filed their appeal on October 16, 1997, andthen on October 17 moved to consolidate their petitions forjudicial review on an expedited basis. The circuit courtconsolidated plaintiffs' petitions but denied the request toexpedite this matter. Defendants then moved to dismiss plaintiffs'appeal, citing Russ v. Hoffman, 288 Ill. App. 3d 281, 681 N.E.2d519, (1997), for the proposition that our Court did not havesubject matter jurisdiction. This motion was denied, and onNovember 4, 1997, Mueller, Lipstein and Connor were elected asmembers of Community Consolidated School District No. 181. Tyrellwas not elected.

The following appeal was consolidated for defendants Mueller,Lipstein, Tyrell and Conner, since each petition for judicialreview regarding each defendant arose from the same set of factsand centers around the same issue of law. However, it is notedthat counsel for defendants in the instant case, filed this briefin representation of defendants Tyrell, Conner and Lipstein only.

Generally, cases involving review of an electoral boarddecision require this Court to ascertain whether the findings ofthe electoral board are against the manifest weight of theevidence. King v. Justice Party, 284 Ill. App. 3d 886, 888, 672N.E.2d 900, 902 (1996). Where questions of law arise, as is thecase here, a de novo standard review shall apply. Zapolsky v.Cook County Officers Electorial Board, 296 Ill. App. 3d 731, 733,695 N.E.2d 1329 (1998); Anderson v. McHenry Township, 289 Ill. App.3d 830, 832, 682 N.E.2d 1133 (1997).

The crux of the issue in the instant case is whetherplaintiffs' failure to name and serve the individual members of theElectoral Board deprived the circuit court of subject matterjurisdiction. The circuit court has no inherent authority toreview election contests. Allord v. Municipal Officers ElectoralBoard, 288 Ill. App. 3d 897, 900, 682 N.E.2d 125, 128 (1997). Infact, a circuit court may only exercise jurisdiction over aproceeding such as an election contest when such authority isconferred by statute. Allord, 288 Ill. App. 3d at 900. A party'sfailure to strictly adhere to the language of the conferringstatute will deprive the circuit court of its subject matterjurisdiction. Allord, 288 Ill. App. 3d at 900.

In the instant case, plaintiffs appeal from the ElectoralBoard's decision to overrule their objections to defendants'nomination petitions. When reviewing an election contest, acircuit court is conferred jurisdiction by Section 10-10.1 of theElection Code, which states in pertinent part:

"except as otherwise provided in this section,a candidate or objector aggrieved by the decision ofan electoral board may secure judicial review ofsuch decision in the circuit court of the county inwhich the hearing of the electoral board was held. The party seeking judicial review must file apetition with the clerk of the court within 10 daysafter the decision of the electoral board. *** Thepetitioner shall serve a copy of the petition uponthe electoral board and other parties to theproceeding by registered or certified mail and shallfile proof of service with the clerk of the court."10 ILCS 5/10-10.1 (West 1996)

In examining section 10-10.1, it is evident there exist fourdistinct requirements that must be complied with in order toproperly confer jurisdiction upon the circuit court. First, achallenging petition must be filed with the clerk of the courtwithin 10 days after the electoral board issues its decision. Second, the petition shall state briefly the reasons why theboard's decision should be reversed. Third, the petitioner shallserve copies of the petition upon the electoral board and otherparties to the proceeding by registered or certified mail. Fourthand finally, the petitioner shall file proof of service with theclerk of the court. Allord, 288 Ill. App. 3d at 901. Failure ofa party to comply with any of the foregoing requirements whenappealing an electoral board decision invites dismissal via section2-619 (West 1996), for lack of subject matter jurisdiction.

On its face section 10-10.1 of the Election Code requires serviceupon the electoral board and "other parties." 10 ILCS 5/10-10.1(West 1996). Plaintiffs first contend the circuit court erred indetermining that individual board members are necessary partiesunder section 10-10.1 of the Code. However, in Russ, this Courtspecifically held that "[t]he failure to name the Electoral Boardand its individual members deprived the circuit court of subjectmatter jurisdiction ." Russ, 288 Ill. App. 3d t 284. We rejectplaintiffs' suggestion that Russ' holding regarding individualmembers of the Board being necessary parties was dictum. The factthat plaintiffs in that case failed to serve either the electoralboard itself or its individual members does not make the court'sholding regarding the importance of naming and serving individualboard members mere dictum. Since this Court has previously ruledon the very issue now before us, we decline plaintiffs' invitationto engage in an analysis that compares the instant case to casesinvolving the Human Rights Commission and Supreme Court Rule 335(a)(134 Ill.2d R. 335 (a). See Lake County Board of Review v.Property Tax Appeal Board, 192 Ill. App. 3d 605, 617, 548 N.E.2d1129 (1989)(stating where a statute has already been judiciallyinterpreted, stare decisis is a consideration heavily weighed);McClintock v. Bi-State Development Agency, 228 Ill. App. 3d 382,385, 591 N.E.2d 967, 970 (1992).

Plaintiffs point out that Russ, in large part, turned on the factthat the individual members of the Brookfield Municipal OfficersElectoral Board each signed the Board's decision. It is on thisbasis that plaintiffs argue the instant case is substantivelydifferent from Russ, since all the signatures from the boardmembers did not appear on the board's written decision. Such areading of Russ is overly narrow. The signatures in Russ wereimportant because they were representative of those whoparticipated in the electoral board's decision; however, appellantsshould be forewarned that the presence of signatures cannot solelybe relied upon in determining who is a necessary party. See Fayheev. State Board of Elections of State, 295 Ill. App. 3d 392 (1998)(board of elections chairman whose signature appeared on anelectoral board's order was deemed not a necessary party when hewas neither a "party of record" nor was he a party statutorilyempowered to render a decision that could adversely affect theplaintiff).

In the case at bar, individual Electoral Board members PeterMetz, William Oelman and David Hendrix all enjoy statutorilyconferred authority under the Election Code that allows for theissuance of a decision capable of adversely affecting petitioners. See 10 ILCS 5/10-10.1 (West 1996). Although Peter Metz's signatureappeared alone on the Board's written order, this decision wasclearly reached by a vote of the Board. Such a vote in the instantmatter was conducted by a roll call. The written order of thisElectoral Board reflects the decision of its members who arenecessary parties. These individuals render decisions thatdetermine the rights and liabilities of the parties involved inthis administrative adjudication. Perhaps the legislature couldhave made it easier on those seeking to appeal a decision of theElectoral Board by requiring that all Board members affix theirsignatures to an order. However, this is not required by thepresent legislation and, thus, it becomes the burden of a plaintiffto go beyond the order to determine the necessary parties that needbe served. Therefore, appellants are well advised to serve andnotify all those who could be deemed necessary parties in order toperfect their appeal. Failure to exercise abundant caution in thismatter compels the termination of an appellant's case even beforeit has begun. Such is the unfortunate consequence in the instantmatter, and in light of the foregoing reasoning, this Court mustreject plaintiff's attempt to distinguish Russ. Consequently,plaintiffs' failure to name and serve the individual members of theBoard deprived the circuit court, and consequently this Court, ofsubject matter jurisdiction over these proceedings.

Petitioners next assert that assuming arguendo their petition forjudicial review was defective, they should still be allowed toamend their petition under the Administrative Review Law. 735 ILCS5/3-101 et seq. (West 1996). As of June 1, 1997, theAdministrative Review Law was amended for the benefit ofplaintiffs. Specifically, section 3-107(a) now allows for a 21-daywindow in which a party may amend its complaint when it isdetermined that a "party of record" to the administrativeproceedings was not made a defendant as required by the firstparagraph of section 3-107(a), and where that party was not namedby the administrative agency in its final order as a party ofrecord. Bunell v. Civil Service, 295 Ill. App. 3d 97 (1998). Similarly, Section 5/3-105 now prohibits dismissal of an action foradministrative review due to a lack of jurisdiction "based upon thefailure to serve summons on an employee, agent, or member of anadministrative agency, board, committee, or government entityacting in his or her official capacity, where the administrativeagency, board, committee, or government entity have been served asprovided in this Section." 735 ILCS 5/3-105 (West 1996); Bunell,295 Ill. App. 3d at 100. It would appear that if theAdministrative Review Law were to govern the review of electoralboard decisions under section 10-10.1, plaintiffs should have beengranted the opportunity to amend their complaint. However, theAdministrative Review Law does not govern the review of ElectoralBoard decisions and, therefore, fails to provide relief forplaintiffs.

As previously discussed, it is well established that the judicialreview of an electoral board decision under section 10-10.1 of theCode exits because it is provided for by statute. Johnson v.Theis, 282 Ill. App. 3d 966, 971, 669 N.E.2d 590, 594 (1996); Kozelv. State Board of Elections, 126 Ill. 2d 58, 69, 533 N.E.2d 796(1988). Thus, the special statutory jurisdiction that the courtenjoys is only as great as the language found in the statute thatoriginally conferred such jurisdiction. Theis, 282 Ill. App. 3d at971. This being the case, it is critical to recognize that theAdministrative Review Law only applies where it is adopted byexpress reference in the act creating or conferring power upon theadministrative agency involved. Rochon v. Rodriguez, 293 Ill. App.3d 952, 954, 689 N.E.2d 288 (1997); Board of Education v. Armstead,279 Ill. App. 3d 922, 927, 665 N.E.2d 409 (1996). For example,disputes arising over campaign contributions or expendituredisclosures under the code as found in section 9-22 (West 1996),the Election Code states:

"Any party to a Board hearing, any person whofiles a complaint on which a hearing was denied ornot acted upon within the time specified in Section9-21 of this Act, and any party adversely affectedby a judgment of the Board may obtain judicialreview, which shall be governed by the provisions ofthe Administrative Review Law, as amended, and allamendments and modifications thereof and the rulesadopted pursuant thereto, except that ***."(Emphasis added.)"

As is evident from the foregoing language, when thelegislature intends for the Administrative Review Law to controlappeals from electoral board decisions, it explicitly provides forit through express incorporation. Similarly, section 17-33 of thecode governing conduct of elections and making returns, reads inpertinent part:

"Any dispute regarding the amount of electionexpenses billed to a political subdivision underthis Section shall be arbitrated by the State Boardof Elections. The decision of the State Board ofElections in such an arbitration shall beenforceable against both the political subdivisionand the county, and such decision shall be a finaladministrative decision for purposes of review underthe Administrative Review Law." 10 ILCS 5/17-33(West 1996).

In examining section 10-10.1 of the Code, there exists no similarexpress language indicating that the Administrative Review Lawshould apply to the judicial review of Electoral Board decisions. Moreover, plaintiffs do not assert as much. In fact, the onlyplace the Administrative Review Law does apply with respect tosection 10.1 of the Code is where a party is aggrieved by adecision rendered by the electoral board regarding section 18-120of the Property Tax Code (35 ILCS 200/18-120 (West 1996)). See 10ILCS 5/10-10.1 (West 1996); Fayhee v. State Board of Elections, 295Ill. App. 3d 392. Thus, the Administrative Review Law will notdictate what procedural requirements must be followed in order toappeal a decision rendered by the Electoral Board. See Allord, 288Ill. App. 3d at 903 (holding that although not directly applicableto the Election Code the Administrative Review Law may beconsulted); but see Russ, 288 Ill. App. 3d at 283.

In Allord, several candidates from a new political party filednomination petitions with the purpose of running for each office inthe Village of South Chicago Heights. Objections to thesepetitions were filed before the electoral board and overruled. Theboard's decision was appealed in a petition for judicial reviewpursuant to section 10.1 of the Election Code. 10 ILCS 5/10-10.1(West 1996). The petitions for judicial review were served uponthe electoral board and its individual members but not upon theindividual candidates themselves or the Cook County clerk. Theelectoral board moved to dismiss the plaintiff's petition forjudicial review under section 2-619 of the Code of Civil Procedre.(735 ILCS 5/2-619 (West 1996)). The electoral board asserted thata fatal jurisdictional defect occurred when petitioner filed hispetition without having named or served the candidates or thecounty clerk within section 10-10.1's statutorily prescribed 10days. Plaintiff subsequently moved for leave so that he could addthe candidates as respondents to the petition.

With the 10-day time period having already passed, the courtruled that petitioner failed to vest the circuit court with subjectmatter jurisdiction at the only time it could have vested undersection 10-10.1. Allord, 288 Ill. App. 3d at 901-02. The courtfurther reasoned that the legislative intent behind section 10-10.1was to facilitate service "promptly so as to permit an actualopportunity to answer within this short 10 day period, consideringan impending election." Allord, 288 Ill. App. 3d at 903.

Similar to Allord, petitioners precluded the circuit court fromretaining subject matter jurisdiction over their petition forjudicial review. Whereas the petitioner in Allord failed to nameand serve the actual candidates in his petition for judicialreview, petitioners in the case at bar failed to serve individualElectoral Board members. Both groups are considered necessaryparties. Allord, 288 Ill. App. 3d at 903 (holding that both theelectoral board and other parties are indispensable, albeit fordifferent reasons -- the board itself is indispensable because asa neutral decision maker it is responsible for providing thecircuit court with the necessary information to render a decision,whereas other parties such as the candidates remain indispensablebecause their interests are at stake as they stand to be strickenfrom the ballot); Orlowski v. Village of Villa Park Board of Fire& Police Commissioners, 273 Ill. App. 3d 42, 652 N.E.2d 366 (1995)(holding that individual members of the Villa Park board wereparties of record and were required to be named in plaintiff'scomplaint for administrative review).

Although useful for consultation when interpreting terms used inthe Election Code, the Administrative Review Law has no directbearing upon the clearly drawn procedural mechanisms that must befollowed when an electoral board decision is appealed under section10.1-10.1 (10 ILCS 5/10-10.1 (West 1996)). As in Allord,petitioners failed to comply with section 10-10.1's jurisdictionalprerequisite of filing a proper petition for judicial review thatincludes naming and serving all necessary parties within 10 days. This failure constitutes a fatal jurisdictional defect that resultsin depriving the circuit the court of subject matter jurisdiction. Thus, this Court is now required to affirm the order of thecircuit court and dismiss this appeal.

Order affirmed; appeal dismissed.

Cahill and Burke, JJ., concur.