McCaster v. Greenwood

Case Date: 03/21/2002
Court: 5th District Appellate
Docket No: 5-00-0691 Rel 

                       NOTICE
Decision filed 03/21/02.  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. 5-00-0691

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

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KEVIN McCASTER,

     Petitioner-Appellee,

v.

LONZO GREENWOOD,

     Respondent,

and

EAST ST. LOUIS BOARD OF ELECTION
COMMISSIONERS,

     Respondent-Appellant. 

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Appeal from the
Circuit Court of
St. Clair County.

No. 00-MR-96







Honorable
John M. Goodwin, Jr.,
Judge, presiding.


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PRESIDING JUSTICE MAAG delivered the opinion of the court:


Kevin McCaster (petitioner) filed a petition in the circuit court of St. Clair Countycontesting the results of the 2000 primary election race for East St. Louis Democraticprecinct committeeman. Lonzo Greenwood was declared the winner of that race. The EastSt. Louis Board of Election Commissioners (respondent) filed a motion to dismiss thepetition on grounds that the circuit court had no jurisdiction to consider the petition becausepetitioner had failed to file his election contest within 10 days after the final canvass ofreturns as required by section 7-63 of the Election Code (Code) (10 ILCS 5/7-63 (West1996)). Petitioner argued that he had 30 days in which to file an election contest pursuantto section 23-20 of the Code (10 ILCS 5/23-20 (West 1996)). The circuit court of St. ClairCounty denied the motion to dismiss but found that there was a substantial ground for adifference of opinion regarding which provision controlled in a postelection contestinvolving precinct committeemen and that an immediate appeal could materially advancethe ultimate termination of the litigation. We granted respondent's petition for a Rule 308(155 Ill. 2d R. 308) appeal.

The pertinent facts follow. On March 21, 2000, a primary election was held in EastSt. Louis, Illinois. In this primary, petitioner and Lonzo Greenwood were both candidatesfor the office of East St. Louis Democratic precinct committeeman. After a final canvassof the votes, Lonzo Greenwood was declared the winner of the election. On March 31,2000, a discovery recount was held. The recount showed that Lonzo Greenwood hadreceived 179 votes and that petitioner had received 174 votes. On April 20, 2000, petitionerfiled a petition contesting the election. Therein, petitioner alleged that 12 ballots werecounted against him which should have been marked "spoiled" and should not have beencounted, and he alleged that he would have been declared the winner if those votes were notcounted. Respondent moved to dismiss the election contest on the grounds that the circuitcourt lacked jurisdiction to consider the matter because the election contest was not filedwithin 10 days after the final canvass of returns as required by section 7-63 of the Code. Petitioner countered that section 23-20 of the Code governed an election contest involvingprecinct committeemen. Petitioner asserted that section 23-20 permits an unsuccessfulcandidate to contest an election within 30 days after an opposing candidate is declaredelected and that he filed his petition in accordance with the time limits provided in thatsection. The circuit court denied the motion to dismiss, and this Rule 308 appeal followed. On appeal we are asked to determine whether a postelection contest involving the office ofprecinct committeemen is governed by Article 7 or Article 23 of the Code.

As a preliminary matter, we note that precinct committeemen have two-year terms (10ILCS 5/7-8(b) (West 1996)) and that the primary election of 2002 has now come and gone. The pending case involves the results from the 2000 primary election for Democraticprecinct committeeman. As a result of the subsequent election, the matter in controversy between the parties has become moot. A moot controversy is one that once existed but that,because of the happening of an event, has ceased to exist and no longer presents an actualcontroversy between the parties. See Shifris v. Rosenthal, 192 Ill. App. 3d 256, 261, 548N.E.2d 690, 693 (1989). " 'The general rule is that when a reviewing court has notice offacts which show that only moot questions or mere abstract propositions are involved orwhere the substantial questions involved in the trial court no longer exist, it will dismiss theappeal or writ of error.' " People ex rel. Wallace v. Labrenz, 411 Ill. 618, 622, 104 N.E.2d769, 772 (1952) (quoting People v. Redlich, 402 Ill. 270, 279, 83 N.E.2d 736, 741 (1949)). An exception to the general rule is recognized when the issue presented is one of substantialpublic interest. See Labrenz, 411 Ill. at 622, 104 N.E.2d at 772. In order to determinewhether the exception applies, the court must consider a number of criteria, includingwhether the question presented is of a public nature or a private nature, whether anauthoritative determination for the future guidance of public officers would be beneficial,and whether there is a likelihood of a future recurrence of the question. Labrenz, 411 Ill.at 622, 104 N.E.2d at 772.

The case under consideration involves a question of whether a postelection contestfor the office of precinct committeeman is governed by Article 7 or Article 23 of the Code. This is an issue that is likely to arise again in a future primary election. Because precinctcommitteemen are elected every two years, it is probable that any similar case arising in thefuture would become moot before the issue could be resolved in the appellate process. SeeLabrenz, 411 Ill. at 622, 104 N.E.2d at 772. In addition, we find that an authoritativedetermination would provide guidance for future candidates. See Partney v. Dallas, 111 Ill.App. 2d 261, 264, 250 N.E.2d 166, 168 (1969). For these reasons, we will consider theissue raised in this appeal.

The Code is currently divided into a series of articles. The legislature restructuredthe Code to place the election laws into a logical order and sequence. See 10 ILCS Ann.,Introduction to Chapter 10-"The Election Code," by the Illinois Commission for theCodification of the Election and Primary Laws, at XV (Smith-Hurd 1992). Article 7 is thecurrent version (including any rewording and amendments) of the Primary Election Act ofJuly 6, 1927. See 10 ILCS Ann. 5/Article 7, Official Comments of Drafting Commission,at 252 (Smith-Hurd 1992).

In a primary election, a candidate vies for the nomination as his party's candidate foran elective public office. 10 ILCS 5/7-1 (West 1996). Contests for party offices, includinga party's precinct, township, ward, and central committeemen, are also decided in primaryelections. 10 ILCS 5/7-1 (West 1996). A person elected to a public office is endowed withsome functions of the sovereignty of a state or a political subdivision thereof. See Peoplev. Brady, 302 Ill. 576, 578, 135 N.E. 87, 88 (1922). In contrast, a person elected to a partyoffice represents only members of the respective political party to which he belongs, and heis accountable only to that party. See Brady, 302 Ill. at 578-79, 135 N.E. at 88. Acommitteeman is not a public officer. See Brady, 302 Ill. at 578-79, 135 N.E. at 88.

Article 7 is a comprehensive legislative attempt to regulate the course and conductof primary elections. See Orbach v. Axelrod, 100 Ill. App. 3d 973, 978, 427 N.E.2d 399,403 (1981). Section 7-1 (in Article 7) states as follows:

"(a) Except as otherwise provided in this Article, the nomination of allcandidates for all elective State, congressional, judicial, and county officers, State'sAttorneys ***, city, village, and incorporated town and municipal officers, trusteesof sanitary districts, township officers ***, precinct, township, ward, and Statecentral committeemen, and delegates and alternate delegates to national nominatingconventions by all political parties, as defined in Section 7-2 of this Article 7, shallbe made in the manner provided in this Article 7 and not otherwise." 10 ILCS 5/7-1(West 1996).

A plain reading of this section reveals that Article 7 is intended to govern all primaryelection procedures involving party candidates for public office and party candidates forparty offices. Article 7 also contains postelection procedures, including provisions forcontesting primary election results. 10 ILCS 5/7-63 (West 1996). Section 7-63 providesthat any candidate whose name appears upon the primary ballot of any political party maycontest the election of an opposing candidate nominated for the same office by filing awritten petition with the clerk of the circuit court within 10 days after the completion of thecanvass of the final returns by the canvassing board. 10 ILCS 5/7-63 (West 1996).

Article 23 is the current version of the Election Act of 1872 and deals with thecontesting of elections. See 10 ILCS Ann. 5/Article 23, Official Comments of DraftingCommission, at 744 (Smith-Hurd 1992). Section 23-5 authorizes the circuit court to hearand determine election contests of all county, township, and precinct officers and all otherofficers for the contesting of whose election no provision is made. 10 ILCS 5/23-5 (West1996).

As we understand the history of Article 23, the term "precinct officers" referred toelective public officers, such as constables or justices of the peace, who were invested withsome of the functions of the sovereignty of a particular district or precinct. See Ill. Const.1870, art. VI,