Forcade-Osborn v. Madison County Electoral Board

Case Date: 10/23/2002
Court: 5th District Appellate
Docket No: 5-02-0521 Rel

               NOTICE
Decision filed 10/23/02.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-02-0521

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


NANCY FORCADE-OSBORN, 

            Petitioner-Appellant,

v.

THE MADISON COUNTY ELECTORAL
BOARD; MARK VON NIDA, DEAN
SWEET, and MATT MELUCCI, Members of
the Madison County Electoral Board; and
FRED BATHON,

            Respondents-Appellees. 

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Appeal from the
Circuit Court of
Madison County.

No. 02-MR-318





Honorable
Ralph J. Mendelsohn,
Judge, presiding.


JUSTICE DONOVAN delivered the opinion of the court:

Nancy Forcade-Osborn (petitioner) appeals the decision of the circuit court ofMadison County affirming the decision of the Madison County Electoral Board denying herpetition for nomination and certification of candidacy, thereby precluding the placement ofher name as a candidate on the November 5, 2002, election ballot. We are obligated todismiss petitioner's appeal because her petition for judicial review was prematurely filed, thusdepriving the circuit court and ultimately this court of subject matter jurisdiction.

Petitioner was slated by the Republican Party to fill a vacancy for the office of countytreasurer in Madison County when no one was nominated in the March primary to serve asthat party's candidate. The Madison County Republican Central Committee formed anominating committee to select a person to fill the vacancy in nomination. On May 13, 2002,the nominating committee met and selected petitioner to fill that vacancy. On May 20, 2002,petitioner filed her certificate of nomination, her statement of candidacy, and her statementof economic interests, as well as her loyalty oath. On May 24, 2002, the Democraticcandidate for county treasurer, Fred Bathon, filed an objection to petitioner's nominatingpapers on the grounds they were not properly and timely filed. After a hearing, the MadisonCounty Electoral Board (Board) struck petitioner's name from the election ballot. The Boardruled that the language of section 7-61 of the Election Code (10 ILCS 5/7-61 (West 2000))required the nominating committee to have filed or mailed the certification of nominationwithin three days of its May 13 meeting and that the appropriate sanction for waiting untilthe last day to fill a vacancy in nomination was to strike petitioner's name from the ballot. Petitioner sought the judicial review of the Board's decision in the circuit court of MadisonCounty. The circuit court upheld the rulings of the Board, and petitioner now appeals thatdecision. Petitioner moved for and was granted expedited consideration.

Before reaching the merits of petitioner's appeal, we must first address a jurisdictionalissue that neither party has argued. The Board announced its decision on June 6, 2002. Petitioner filed her petition for judicial review on June 14, 2002. In her petition, petitionerspecifically states that the Board "has yet to memorialize that order in writing." The Board'swritten order was not filed until June 18, 2002, four days after petitioner filed her petitionfor review. Accordingly, we conclude that petitioner prematurely filed her petition forreview, thereby depriving both the circuit court and, in turn, this court of jurisdiction to ruleon her petition.

Initially, we note that subject matter jurisdiction cannot be waived by either party. Maske v. Kane County Officers Electoral Board, 234 Ill. App. 3d 508, 514, 600 N.E.2d 513,518 (1992). As clearly stated in Pernalski v. Illinois Racing Board, 295 Ill. App. 3d 499, 692N.E.2d 773 (1998): "Since the premature filing of a complaint for review fails to confersubject matter jurisdiction upon the courts, it is not subject to a claim of waiver or estoppelin that the parties even by overt stipulation may not confer subject matter jurisdiction uponthe court where none otherwise exists." Pernalski, 295 Ill. App. 3d at 505, 692 N.E.2d at778; see Currie v. Lao, 148 Ill. 2d 151, 592 N.E.2d 977 (1992).

Of equal importance, a written decision is a prerequisite for the commencement of anaction for review. See Pernalski, 295 Ill. App. 3d at 502, 692 N.E.2d at 776; Buroff v. Boardof Fire & Police Commissioners, 248 Ill. App. 3d 626, 630-31, 618 N.E.2d 930, 933 (1993). As the Board itself noted at the hearing on the objections filed against petitioner's certificate,"[T]his matter will be completed when we transmit the written orders." The finality of anyorder cannot be presumed until it is actually served upon the party whose rights areadjudicated. Pernalski, 295 Ill. App. 3d at 505, 692 N.E.2d at 778. Accordingly, weconclude that the circuit court was without jurisdiction to hear petitioner's appeal.

Even if jurisdiction were properly conferred upon the circuit court, we note that theresult would be no different, in that the determination of the Board would have to be affirmedon the merits. Petitioner's certificate of nomination was not timely filed. Section 7-61provides in part as follows:

"Any vacancy in nomination under the provisions of this Article 7 occurringon or after the primary and prior to certification of candidates by the certifying boardor officer[] must be filled prior to the date of certification. Any vacancy innomination occurring after certification but prior to 15 days before the generalelection shall be filled within 8 days after the event creating the vacancy. Theresolution filling the vacancy shall be sent by U.S. mail or personal delivery to thecertifying officer or board within 3 days of the action by which the vacancy was filled***. Failure to so transmit the resolution within the time specified in this Sectionshall authorize the certifying officer or board to certify the original candidate." 10ILCS 5/7-61 (West 2000).

The statute clearly imposes a deadline for the transmission of a certification of nominationby the nominating authorities to the certifying officer. That deadline is three days from thedate the action was taken to fill the vacancy in nomination, in this instance three days fromthe May 13, 2002, meeting. Petitioner's certification of nomination was not filed until May20, seven days after the nominating meeting. Having failed to meet the deadline, petitionerlost the right to have her name placed on the election ballot as a candidate for the office ofcounty treasurer. When a statute specifies what result will follow if its terms are notcomplied with, then the statute is deemed mandatory. El-Aboudi v. Thompson, 293 Ill. App.3d 191, 192, 687 N.E.2d 1166, 1167 (1997). Had the legislature intended for the three-daydeadline to apply only to vacancies occurring after certification, as petitioner argues, thelegislature could have expressed its intention to that effect by using specific language solimiting the provision.

We also note that subsequent language contained within the paragraph is applicableto both precertification and postcertification vacancies in nomination. Arguing that the thirdand fourth sentences of the paragraph apply only to a factual situation described in the secondsentence while the fifth sentence is applicable to the factual situation described in both thefirst and second sentences defies logic and all rules of statutory construction. A statute is tobe read as a whole (Advincula v. United Blood Services, 176 Ill. 2d 1, 16, 678 N.E.2d 1009,1017 (1996)), and a statute should not be construed so that its specific language is renderedmeaningless or superfluous (Maske, 234 Ill. App. 3d at 512, 600 N.E.2d at 517).

It is true that Illinois courts favor ballot access for candidates who wish to run forpublic office. This does not mean, however, that mandatory requirements can becircumvented. See Zerante v. Bloom Township Electoral Board, 287 Ill. App. 3d 976, 980,679 N.E.2d 459, 461-62 (1997) (the failure to specify the date of the resolution upon whichthe candidate was selected to fill the vacancy in nomination prevented a determination ofwhether the resolutions were transmitted to the certifying authority in a timely fashion).

Petitioner had three different statutory mechanisms for gaining access to the ballot. Petitioner chose not to subject herself to two of those options, both of which required ashowing of "grass roots" support. Petitioner's nomination was made by just three individuals. Under those circumstances, we cannot fault the legislature for being very specific on themanner in which one's name is placed on the ballot when one has chosen not to follow the"customary" procedures for nomination. It is the conduct of petitioner's representatives, byfailing to timely file the nomination within three days, that serves to deny petitioner accessto the ballot for the November 2002 election. The rules are not hypertechnical as petitionersuggests but are designed to ensure the integrity of the election process in general.

Because petitioner's petition for review was prematurely filed, the circuit court ofMadison County was deprived of jurisdiction and should not have undertaken a review of theBoard's decision. As a consequence, we must dismiss petitioner's appeal for lack of subjectmatter jurisdiction. The decision of the Board remains in full force and effect.

Appeal dismissed.

MAAG, P.J., and HOPKINS, J., concur.