{ "id": 3562880, "name": "TOM YOUNG, Plaintiff-Appellee, v. JERRY WASHINGTON, Defendant-Appellant (Sylvester O. Rhem et al., Defendants)", "name_abbreviation": "Young v. Washington", "decision_date": "1984-10-03", "docket_number": "No. 84\u20141906", "first_page": "1094", "last_page": "1100", "citations": [ { "type": "official", "cite": "127 Ill. App. 3d 1094" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "427 N.E.2d 399", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 973", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5496706 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0973-01" ] }, { "cite": "129 N.E. 803", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "296 Ill. 373", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5057795 ], "opinion_index": 0, "case_paths": [ "/ill/296/0373-01" ] }, { "cite": "164 N.E. 208", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1921, "opinion_index": 0 }, { "cite": "333 Ill. 58", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5216812 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/ill/333/0058-01" ] }, { "cite": "77 N.E.2d 325", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1928, "opinion_index": 0 }, { "cite": "399 Ill. 136", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2460399 ], "year": 1928, "opinion_index": 0, "case_paths": [ "/ill/399/0136-01" ] }, { "cite": "182 N.E.2d 756", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "25 Ill. 2d 121", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5353352 ], "pin_cites": [ { "page": "124" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/25/0121-01" ] }, { "cite": "164 N.E. 209", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "167 N.E. 76", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 3, "year": 1928, "opinion_index": 1 }, { "cite": "335 Ill. 346", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5789205 ], "weight": 3, "year": 1928, "pin_cites": [ { "page": "351" }, { "page": "351" } ], "opinion_index": 1, "case_paths": [ "/ill/335/0346-01" ] }, { "cite": "164 N.E. 208", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "year": 1921, "opinion_index": 1 }, { "cite": "333 Ill. 58", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5216812 ], "weight": 3, "year": 1921, "pin_cites": [ { "page": "76-77" }, { "page": "76-77" } ], "opinion_index": 1, "case_paths": [ "/ill/333/0058-01" ] } ], "analysis": { "cardinality": 652, "char_count": 15168, "ocr_confidence": 0.75, "pagerank": { "raw": 9.643763512562492e-08, "percentile": 0.5278417776480405 }, "sha256": "3e079f4bf92c2539b7eb2a1a44f3121eed2a96abe147639421127d9ddd77da95", "simhash": "1:eb8e62ae6b7a0c79", "word_count": 2466 }, "last_updated": "2023-07-14T19:14:53.477818+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TOM YOUNG, Plaintiff-Appellee, v. JERRY WASHINGTON, Defendant-Appellant (Sylvester O. Rhem et al., Defendants)." ], "opinions": [ { "text": "PRESIDING JUSTICE BUCKLEY\ndelivered the opinion of the court:\nThe present appeal arises out of an election contest brought by plaintiff Tom Young pursuant to section 7 \u2014 63 of the Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 7\u201463). Plaintiff Young and defendants Jerry Washington and Sylvester O. Rhem were all candidates in the March 30, 1984, primary election, each seeking the Democratic party nomination for the office of Representative in the General Assembly for the 24th representative district. On March 28, 1984, the Chicago Board of Election Commissioners completed its canvass and certified that 5,887 votes were cast for Washington, 5,874 votes were cast for Young and 4,062 votes were cast for Rhem. On April 16, the State Board of Elections proclaimed Washington the Democratic candidate for the office in question. Plaintiff Young filed a petition for a discovery recount with the Chicago Board of Election Commissioners on April 2 and seven days later filed his initial election contest petition in the circuit court of Cook County.\nUnder section 7 \u2014 63, April 26, 1984, was the last date on which Young was entitled to file his contest petition. On that date, plaintiff requested by way of motion that he be given leave to file an amended petition incorporating the results of the discovery recount. In plaintiff\u2019s motion for leave to amend, he indicated that the information from the discovery recount was unavailable when he filed his initial pleading and that he now wished to provide the court with more detailed information substantiating his claim. Washington objected to the proposed amendment, and the motion was set to be heard on May 14.\nOn April 30, during the pendency of plaintiff\u2019s motion for leave to amend, the Chicago Board of Election Commissioners completed its counting of ballots in the discovery recount proceedings. On May 14, the trial court granted plaintiff\u2019s motion for leave to amend his petition, with the order expressly providing that the amended pleading relate back to April 26. Young\u2019s amended petition contained general allegations that the election was tainted by a number of irregularities, including, but not limited to, uninitialled ballots, late initialling of ballots, unregistered voters and illegal assistance. Plaintiff further alleged that he was the true winner of the election, having received the most legal votes.\nOn June 19, 1984, the trial court granted Washington\u2019s motion to dismiss Young\u2019s first amended petition for lack of specificity. On oral motion and over the objection of defendant Washington, plaintiff was given leave to file a second amended petition in a separate order also dated June 19, 1984. Plaintiff\u2019s second amended petition contained allegations similar to those included in the first amended petition, but the allegations were set forth with greater particularity.\nOn July 17, 1984, Washington filed a motion to reconsider, arguing that the trial court was without jurisdiction to permit the filing of a second amended petition where the first amended petition was previously dismissed in its entirety and where the statutory time for filing an election contest petition had lapsed. The trial court denied Washington\u2019s motion to reconsider. However, pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308), the trial court certified the question to this court whether plaintiff should be given leave to file a second amended petition. We vacate the order of the trial court granting plaintiff\u2019s motion for leave to file a second amended petition and remand for further proceedings.\nPlaintiff Young contends that under section 2 \u2014 616(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2\u2014616(b)), he should be permitted to amend his petition even after the statutory time for filing a primary election contest has lapsed. He cites several cases in support of the proposition that amendments are to be liberally allowed in election contests. (See Joyce v. Blankenship (1948), 399 Ill. 136, 77 N.E.2d 325; MacGuidwin v. South Park Commissioners (1928), 333 Ill. 58, 164 N.E. 208; Clarke v. Bettenhausen (1921), 296 Ill. 373, 129 N.E. 803.) However, plaintiffs reliance on the above cases is misplaced, since they all concern contests of general elections, not primary elections. An examination of the procedural differences evinced in the statutory provisions concerning primary contests and general election contests reveals that our legislature never intended the liberal amendment provisions of section 2 \u2014 616(b) to apply to primary election contests.\nSection 7 \u2014 63 of the Election Code comprehensively regulates primary election contest procedures. It limits contestants to any \u201ccandidate whose name appears on the ballot,\u201d thus excluding write-in candidates and electors. The petition must be verified and filed within 10 days after the completion of the canvass, with a notice of pendency of contest to be served upon the canvassing board. This section also establishes venue and provides that upon filing, the petition is to be presented to the circuit court judge, who shall note the date of presentation, set a hearing date within 10 days, and order summons to issue. Summons shall issue \u201cforthwith\u201d and be served \u201cas in any other civil cases.\u201d The case may be determined any time not less than five days after service of process and \u201cshall have preference in the order of hearing to all other cases.\u201d The statute also provides a procedure for change of venue and requires the contestant to \u201cgive security for all costs.\u201d Section 7 \u2014 63 directs the trial court to dismiss the petition \u201cif, in the opinion of the court, in which the petition is filed, the grounds for contest alleged are insufficient in law.\u201d If the trial court finds the petition sufficient, the statute directs the court to \u201cproceed in summary manner\u201d and to \u201cmake such orders and enter such judgment as justice may require.\u201d Finally, section 7 \u2014 63 permits appeals from trial court judgments \u201cas in other civil cases.\u201d\nIn contrast, our legislature has provided that in the case of a general election contest \u201cthe case shall be tried as other civil cases.\u201d (Ill. Rev. Stat. 1983, ch. 46, par. 23\u201423.) Also, section 23\u201423 of the Election Code explicitly provides that any contestant \u201cmay amend his petition at any time before the completion of the recount by withdrawing his request for recount of certain precincts, or by requesting a recount of additional specified precincts.\u201d There is no parallel provision in section 7 \u2014 63 permitting amendment of pleadings in primary election contests.\nWe believe our legislature has drawn a distinction between primary and general election contests based on the obvious exigencies inherent in a primary election contest. A primary contest must be quickly determined so that the party nominee\u2019s name appears upon the general election ballot. While in the instant case there is a six-month period between the primary and general elections, in the case of municipal elections the period is only six weeks. If the liberal amendment procedures given in section 2 \u2014 616(b) of the Code of Civil Procedure were applicable to primary contests, the legislative intent of a rapid and summary disposition for all primary election contests would be significantly frustrated.\nWe do not believe that all amendments to a primary contest petition should be foreclosed after the time for filing the election contest petition has lapsed. However, election contests are statutory in nature and therefore jurisdiction and procedure are strictly governed by the specific statutory provision. (Orbach v. Axelrod (1981), 100 Ill. App. 3d 973, 427 N.E.2d 399.) The mandatory language of section 7\u2014 63 requires that the trial court, at some point, make a preliminary determination of the primary petition\u2019s sufficiency. If the trial court finds the petition \u201cinsufficient in law,\u201d it is directed, in mandatory language, to dismiss the petition. If the petition is found legally sufficient, the statute directs the court to \u201cproceed in summary manner\u201d to hear the case. Accordingly, we hold that where the trial court has made the preliminary inquiry required under section 7 \u2014 63 and dismissed the petition, and where the statutory time for filing a primary election contest has lapsed, the trial court is without jurisdiction to permit the filing of additional amended pleadings.\nApplying this holding to the precise question of law certified for appeal, we find that the trial court should not have granted plaintiff leave to file a second amended petition where plaintiff\u2019s first amended petition was dismissed and the statutory time for filing an election contest petition has lapsed. Accordingly, the order of the trial court granting plaintiff leave to file a second amended petition is vacated, and the cause is remanded for further proceedings consistent with the views expressed herein.\nVacated and remanded.\nMcGLOON, J., concurs.\nDefendant Rhem is not a party to this appeal.", "type": "majority", "author": "PRESIDING JUSTICE BUCKLEY" }, { "text": "JUSTICE JIGANTI,\ndissenting:\nThe defendant, Jerry Washington, contends that the trial court did not have jurisdiction to enter the order on June 19, 1984, which allowed Tom Young, the plaintiff, to file his second amended petition in this election contest. Washington specifically asserts that this appeal is based on a question of jurisdiction and does not involve the court\u2019s discretion. A brief chronology of the pertinent events is as follows:\nApril 2, 1984: Young filed the instant election contest.\nApril 26, 1984: This was statutorily the last day within which to file an election contest. Young filed his first amended petition. (Washington in the trial court contested Young\u2019s right to file this petition. However, on appeal Washington concedes that the trial court had jurisdiction to consider Young\u2019s request for leave to file the amended petition.)\nJune 5,1984: Washington filed a motion to \u201cstrike and dismiss\u201d the first amended petition filed on April 26, alleging that Young\u2019s first amended petition lacked specificity.\nJune 19,1984: The trial court entered two orders, in the first of which it allowed Washington\u2019s motion to \u201cdismiss\u201d Young\u2019s first amended petition. In the second order entered contemporaneously Young was given leave to file a second amended petition. (It is this second order that Washington seeks to reverse on appeal.)\nWashington reasons that on June 19 the court \u201cdismissed\u201d the petition as \u201cinsufficient in law\u201d under section 7 \u2014 63 of the Election Code. (Ill. Rev. Stat. 1983, ch. 46, par. 7\u201463.) Consequently, he argues, the court lost jurisdiction. Section 7 \u2014 63 reads, in pertinent part, as follows:\n\u201cIf, in the opinion of the court, in which the petition is filed, the grounds for contest alleged are insufficient in law the petition shall be dismissed. If the grounds alleged are sufficient in law, the court shall proceed in a summary manner ***.\u201d (Emphasis added.) Ill. Rev. Stat. 1983, ch. 46, par. 7\u201463.\nI disagree with the argument in two respects. First, the evidence does not support Washington\u2019s contention that the court found the petition \u201cinsufficient in law.\u201d Washington made a motion to strike and dismiss the petition because it failed to allege facts with the required specificity. Washington does not here assert how the petition is insufficient. A petition that is merely not specific enough, particularly in a situation like this where Young was gathering facts all along, is not in my judgment a petition that is insufficient in law under the statute. The trial court was allowing Young to amend his petition so the court could most intelligently consider the proper issues. If indeed the second amended petition was insufficient the court could dismiss it. Washington does not here contend that delay is an issue, only jurisdiction.\nSecondly, the order entered on June 19 is not a dismissal order even though the exact wording of the order states that it dismisses the petition. We must look to the second order that was entered at the same time which allows Young to file a second amended petition. If a petition is finally dismissed the order allowing leave to file an amended petition is absurd. In considering the orders as a whole they must be considered in terms of the ordinary practice in filing such motions. Generally they are phrased, as it was in this case, in terms of a motion to strike and dismiss. In this case the order dismissing the petition more appropriately is an order to strike the petition with leave to Young to file his second amended petition.\nWashington cites Smith v. Township High School District No. 158 (1929), 335 Ill. 346, 167 N.E. 76, and MacGuidwin v. South Park Commissioners (1928), 333 Ill. 58, 164 N.E. 209, in support of his argument that the trial court did not have jurisdiction when it allowed Young to file his second amended petition. Washington asserts that in Smith and MacGuidwin it was held that where a properly filed petition to contest an election sets forth one or more sufficient grounds for contest, amendments to the petition may be allowed even after the expiration of the time within which the original petition was required to be filed. Smith v. Township School District No. 158 (1929), 335 Ill. 346, 351, 167 N.E. 76; MacGuidwin v. South Park Commissioners (1928), 333 Ill. 58, 76-77, 164 N.E. 208.) Washington argues that under the standard of Smith and MacGuidwin, as Young did not allege any grounds of contest, the trial court improperly allowed Young to amend his petition. The premise of this argument is that Young\u2019s petition is insufficient in law. As I stated above, I believe there is no question of the petition being insufficient in law under the statute; it merely lacked specificity.\nThe purpose of a proceeding to contest an election is to ascertain the true vote of the electorate. Smith and MacGuidwin recognize that as the very nature of this kind of a proceeding makes it difficult for a petitioner to state how a fraud had been perpetrated without further investigation, the petition should receive a reasonable construction such that a fraud will not be allowed to go protected, but yet conforming to a degree of strictness so as to prevent the setting aside of the acts of sworn officials on mere suspicion, without an adequate and well defined cause. (Smith v. Township School District No. 158 (1929), 335 Ill. 346, 351, 167 N.E. 76; MacGuidwin v. South Park Commissioners (1928), 333 Ill. 58, 76-77, 164 N.E. 208; see also Zahray v. Emricson (1962), 25 Ill. 2d 121, 124, 182 N.E.2d 756.) The only alleged defect in the first amended petition is lack of specificity. Striking that petition and allowing Young to file the second amended petition was well within the court\u2019s power. I would affirm the order of the trial court.", "type": "dissent", "author": "JUSTICE JIGANTI," } ], "attorneys": [ "Andrew M. Raucci and Michael P. McClelland, both of Chicago, for appellant.", "Robert L. Anderson, of Anderson & Associates, Marc S. Lipinski, and James A. Thomas, all of Chicago, for appellee." ], "corrections": "", "head_matter": "TOM YOUNG, Plaintiff-Appellee, v. JERRY WASHINGTON, Defendant-Appellant (Sylvester O. Rhem et al., Defendants).\nFirst District (1st Division)\nNo. 84\u20141906\nOpinion filed October 3, 1984.\nJIGANTI, J., dissenting.\nAndrew M. Raucci and Michael P. McClelland, both of Chicago, for appellant.\nRobert L. Anderson, of Anderson & Associates, Marc S. Lipinski, and James A. Thomas, all of Chicago, for appellee." }, "file_name": "1094-01", "first_page_order": 1116, "last_page_order": 1122 }