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  "name": "PATRICIA HENDERSON et al., Plaintiffs-Appellants, v. JESSE L. MILLER, JR., Defendant-Appellee",
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    "parties": [
      "PATRICIA HENDERSON et al., Plaintiffs-Appellants, v. JESSE L. MILLER, JR., Defendant-Appellee."
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    "opinions": [
      {
        "text": "PRESIDING JUSTICE EGAN\ndelivered the opinion of the court:\nThe defendant, Jesse L. Miller, Jr., is presently the alderman of the 24th ward in the City of Chicago. The plaintiffs, Patricia Henderson and Diane Logan, appeal from an order denying their petition for leave to file a complaint in quo warranto in which they sought the removal of the defendant from the office of alderman. The trial judge held that the plaintiffs lacked standing to bring the action, that the action was time barred and that the circuit court lacked original jurisdiction. The defendant contends that the trial judge correctly denied leave to file the complaint on the grounds he ascribed; the defendant also maintains that the judge\u2019s order should be affirmed on the additional ground that the complaint failed to state a cause of action.\nOn December 10, 1990, the defendant filed his sworn statement of candidacy with the Board of Election Commissioners for the City of Chicago, requesting that his name be placed on the election ballot for alderman of the 24th ward. The statement of candidacy included the following sworn statement of the defendant:\n\u201cI, JESSE L. MILLER, JR., being first duly sworn, say that I reside at 1109 SOUTH AYE. [sic] Street, in the CITY of CHICAGO Zip Code 60612 in the county of COOK State of Illinois; that ! am a qualified voter therein, that I am a candidate for ELECTION to the office of ALDERMAN in the 24TH WARD CITY OF CHICAGO to be voted upon at the ELECTION to be held on the 26TH day of FEBRUARY, A.D. 1991 and that I am legally qualified to hold such office and that I have filed (or I will file before the close of the petition filing period) a Statement of Economic Interests as required by the Illinois Governmental Ethics Act and I hereby request that my name be printed upon the official ballot for ELECTION for such office.\u201d\nThe statement was signed by the defendant and notarized. At the top of the statement is a box for an address; in the box is \u201c1109 South Troy Avenue, Chicago, IL 60612.\u201d The plaintiffs make no issue of the discrepancy in the address that is contained in the body of the sworn portion of the statement of candidacy.\nThe preliminary election for alderman of the 24th ward was held on February 26, 1991. The defendant did not receive a majority of the votes cast; therefore, his name was placed on the supplementary aldermanic ballot for the election to be held on April 2, 1991. On March 26, 1991, the plaintiffs, residents of the 24th ward, filed a quo warranto complaint in the circuit court of Cook County seeking to have the defendant\u2019s candidacy declared unlawful. The complaint alleged that the defendant fraudulently represented on his statement of candidacy that he was a registered voter at 1109 South Troy Avenue in Chicago, when he was in fact a registered voter at 1647 South Springfield in Chicago; that he did not become a registered voter at 1109 South Troy until February 28, 1991; and that the defendant had violated the campaign disclosure act (Ill. Rev. Stat. 1989, ch. 46, par. 9 \u2014 1 et seq.) by failing to account for his campaign contributions and expenditures.\nIn accordance with section 18 \u2014 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 18 \u2014 103), before filing the complaint, the plaintiffs had requested the State\u2019s Attorney of Cook County and the Illinois Attorney General to investigate and prosecute the defendant\u2019s alleged fraud and violations of the campaign disclosure act. Neither office answered the plaintiffs\u2019 request.\nSome time before the quo warranto complaint was filed in the chancery division of the circuit court, the plaintiffs had filed a complaint against the defendant with the State Board of Elections alleging that the defendant had not filed forms required by the campaign disclosure act and had failed to report contributions and expenditures for his campaigns for alderman and the water reclamation district.\nOn February 25, 1991, the State Board of Elections (Board) entered a \u201cFinal Determination and Order\u201d in which the Board found that the defendant had violated the act by failing to file the required forms and by failing to report contributions and expenditures. The Board ordered the defendant to create a committee to file the appropriate forms within 10 days of receipt of the order. The order further provided that any failure or refusal by the committee to comply with the terms of the order would result in the automatic imposition upon the committee and its officers a civil penalty not to exceed $1,000. A copy of the order was attached to the quo warranto complaint.\nOn April 2, 1991, the defendant defeated his opponent in the runoff election and was elected alderman of the 24th ward. The chancery division judge granted the plaintiffs leave to file an \u201cEmergency Motion for Temporary Restraining Order and Declaratory Judgment\u201d on April 5, 1991, requesting that the defendant be enjoined from taking the oath of office. The plaintiffs\u2019 motion alleged that the defendant \u201cknowingly circulated petitions stating he was registered to vote at 1109 South Troy Avenue, Chicago, when, in fact, he was not a registered voter therein.\u201d Attached to the plaintiffs\u2019 motion was their \u201cFirst Amended Complaint In Quo Warranto, Declaratory Judgment and Injunctive Relief.\u201d The matter was transferred from the chancery division to the county division on April 5,1991.\nOn April 18, 1991, the county division judge entered an order enjoining the defendant from taking the oath of office for alderman of the 24th ward and from performing any of the duties of the office of alderman.\nOn April 23, 1991, the defendant filed a motion requesting that the judge dissolve the temporary restraining order, dismiss the complaint in quo warranto and dismiss the petition for declaratory judgment and injunctive relief. After a hearing, the judge dissolved the temporary restraining order and continued the motion to dismiss.\nOn May 1, 1991, the judge dismissed the complaint for declaratory judgment on the ground that the plaintiffs lacked standing. Relying on Thurston v. State Board of Elections (1979), 76 Ill. 2d 385, 392 N.E.2d 1349, he held that the plaintiffs\u2019 claim was barred by laches. Relying on People ex rel. Klingelmueller v. Haas (1982), 111 Ill. App. 3d 88, 443 N.E.2d 782, he held that the circuit court had power only to review the decision of an electoral board but had no original jurisdiction to determine the validity of the defendant\u2019s nominating papers. His order dismissed both the plaintiffs\u2019 complaint for declaratory judgment and their petition for leave to file a complaint in quo warranto.\nWe note that the notice of appeal refers only to the order denying the plaintiffs leave to file a complaint in quo warranto; it makes no reference to the dismissal of the complaint for declaratory judgment. The plaintiffs\u2019 attorney informed us in oral argument that we need not address the propriety of the order dismissing the declaratory judgment complaint.\nThe quo warranto complaint alleged two acts of wrongdoing on the part of the defendant: (1) he \u201cfraudulently misrepresented that he was a registered voter at 1109 South Troy Avenue,\u201d (2) he \u201cis currently in violation of the Campaign Disclosure Act *** in that he has failed to account for contributions and expenditures for the campaign for Alderman for the 24th Ward.\u201d The issues of laches and jurisdiction apply only to the allegation of fraudulent misrepresentation in the nominating papers. Because resolution of those issues would not resolve the entire case, we need not discuss them. The issues of standing and sufficiency of the complaint apply to both allegations of wrongdoing. Because we conclude that the judgment should be affirmed for both lack of standing and the insufficiency of the complaint, we address only those issues.\nStated briefly, the allegation of the complaint that the defendant \u201cfraudulently misrepresented that he was a registered voter at 1109 South Troy Avenue\u201d is mistaken. In the statement of candidacy the defendant said, \u201cI reside at 1109 South [Troy Avenue] in the City of Chicago Zip Code 60612 in the county of Cook State of Illinois\u201d and \u201cI am a qualified voter therein.\u201d (Emphasis added.) Our reading of the exhibit shows that the defendant did not swear that he was a voter at 1109 South Troy; he swore only that he resided there. When facts alleged in a complaint differ from those shown by an exhibit attached to the complaint, the exhibit controls. (Friedman v. Gingiss (1989), 182 Ill. App. 3d 293, 537 N.E.2d 1067.) The plaintiffs now ask us to infer that when the defendant swore he was a \u201cvoter therein,\u201d he was swearing that he was a voter at 1109 South Troy and not in the City of Chicago. We must decline to do so.\nThe Municipal Code requires only that a candidate for alderman \u201creside within the ward for which he is elected\u201d and be \u201ca qualified elector of the municipality.\u201d (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 24, pars. 3 \u2014 4\u201415, 3 \u2014 14\u20141.) The act does not require that a candidate be a voter at his place of residence. The defendant\u2019s statement of candidacy is on a form provided by the Board of Election Commissioners of the City of Chicago. If the plaintiffs\u2019 argument is correct, the form provided by the board requires a candidate to swear to something which the statute itself does not require. The illogic of the plaintiffs\u2019 argument is apparent. We agree with the defendant\u2019s contention that his statement of candidacy did not fraudulently misrepresent that he was a \u201cvoter at 1109 South Troy.\u201d Consequently, removing the defendant from office based on that allegation would not be justified.\nThe plaintiffs correctly point out that the judge did not address the allegation that the defendant had violated the campaign disclosure act. We can understand the judge\u2019s abstention from deciding that question, since he held that the plaintiffs lacked standing to maintain any quo warranto complaint. The plaintiffs also correctly point out that the defendant has not answered their argument that violation of the campaign disclosure act would justify the defendant\u2019s removal from office. Although the defendant has not answered the argument, we will address it. See Korogluyan v. Chicago Title & Trust Co. (1991), 213 Ill. App. 3d 622, 572 N.E.2d 1154.\nThe quo warranto act provides that \u201c[a] proceeding in quo warranto may be brought in case: *** (3) any public officer has done, or allowed any act which by the provisions of law, works a forfeiture of his or her office.\u201d (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 18 \u2014 101(3).) The campaign disclosure act provides that, where the Board directs a person in violation of its provisions to cease or correct the violation and such person fails or refuses to comply with the order, the Board may impose a civil penalty on such person in an amount not to exceed $1,000. The Board may petition the circuit court for an order to enforce collection of the penalty and the Board may report the violation and any failure to comply with the order to the Attorney General or the appropriate State\u2019s Attorney. (Ill. Rev. Stat. 1989, ch. 46, par. 9 \u2014 23.) The Board may also petition the circuit court for an order compelling compliance with an order or enjoining a person from violating the act. (Ill. Rev. Stat. 1989, ch. 46, par. 9 \u2014 24.) Willful failure to file or willful filing of false or incomplete information shall constitute a Class B misdemeanor and prosecution shall be brought by the appropriate State\u2019s Attorney or the Attorney General. (Ill. Rev. Stat. 1989, ch. 46, par. 9 \u2014 26.) There is no provision in the act for removal from office for any violation of its requirements. In contradistinction, the Election Code expressly provides that a statement of economic interests shall be filed within a prescribed time (Ill. Rev. Stat. 1989, ch. 46, par. 10 \u2014 5), and the Illinois Governmental Ethics Act provides that failure to file a statement of economic interests within the time prescribed shall result in ineligibility for, or forfeiture of, office. Ill. Rev. Stat. 1989, ch. 127, par. 604A \u2014 107; see also Welch v. Johnson (1992), 147 Ill. 2d 40.\nThere are a number of other statutes which expressly provide that a violation of their provisions results in forfeiture of office. (See, e.g., Ill. Rev. Stat. 1989, ch. 38, par. 33 \u2014 3 (official misconduct); Ill. Rev. Stat. 1989, ch. 24, par. 4 \u2014 8\u20142 (bribery by a nominee or candidate); Ill. Rev. Stat. 1989, ch. 34, par. 5 \u2014 36009 (conflict of interest of county officers and employees).) It is apparent that, when the legislature intends that an office shall be forfeited for violation of a statute, the legislature will say so.\nBefore a statute may be construed to include a penalty, including forfeiture of office, it must be clear that the legislature intended to include it. It is a fundamental rule of statutory construction that any ambiguity in a statute must be resolved against the inclusion of a penalty. (Saskill v. 4-B Acceptance (1985), 139 Ill. App. 3d 143, 487 N.E.2d 97.) Invoking that rule of construction, we conclude that the legislature did not intend that a violation of the campaign disclosure act constituted a ground for removal from office. Therefore, the conduct of the defendant did not come within the provisions of the quo warranto act. Ill. Rev. Stat. 1989, ch. 110, par. 18 \u2014 101(3).\nFor these reasons, we conclude that the two allegations of wrongdoing are not sufficient to support the complaint and that the trial judge properly denied leave to file the complaint in quo warranto.\nWe also conclude that the trial judge correctly denied leave to file the quo warranto complaint on the ground that the plaintiffs lacked standing. The right to institute an action in quo warranto belongs to the State; thus, originally only the State\u2019s Attorney or the Attorney General could bring the action. Over time, the law evolved to allow a private person having a distinct private interest in the subject matter to apply to the Attorney General or the State\u2019s Attorney to institute the proceeding on his behalf. If the petition met certain requirements, the authorities were required to institute the action, and if they refused to do so, a court could compel them by mandamus to file the action. See People ex rel. Miller v. Fullenwider (1928), 329 Ill. 65, 160 N.E. 175.\nIn cases involving matters of public interest, however, Illinois courts have consistently held that only the Attorney General or the State\u2019s Attorney, as representatives of the people, have standing to institute quo warranto proceedings. (See People ex rel. Raster v. Healy (1907), 230 Ill. 280, 82 N.E. 599.) Moreover, in matters of purely public interest, these officials have complete, arbitrary and unfettered discretion as to whether they shall institute the action. People v. Wood (1952), 411 Ill. 514, 104 N.E.2d 800.\nUnder current Illinois law, a private citizen seeking to bring an action in quo warranto on his own behalf must first request the Attorney General or the State\u2019s Attorney to file the action. (Ill. Rev. Stat. 1989, ch. 110, par. 18 \u2014 103.) If those officers refuse or fail to act, the individual may petition the court for leave to file the action. In order to obtain leave, an individual must demonstrate that he has standing by showing that he has a private interest which is directly, substantially and adversely affected by the challenged act, which is either then occurring or certain to occur, and which is distinct from the interests of the general public, even though some members of the public might be affected in the same manner. (People ex rel. Turner v. Lewis (1982), 104 Ill. App. 3d 75, 432 N.E.2d 665.) Filing a complaint in quo warranto is not a matter of right, and whether leave to institute the action should be granted lies within the sound discretion of the trial court. (People ex rel. Nelson v. Village of Long Grove (1988), 169 Ill. App. 3d 866, 523 N.E.2d 656.) The court should consider all the circumstances of the case, including whether the proceeding will benefit the public. See, e.g., People ex rel. Hanrahan v. Village of Wheeling (1976), 42 Ill. App. 3d 825, 356 N.E.2d 806.\nIn People ex rel. Turner v. Lewis (1982), 104 Ill. App. 3d 75, 432 N.E.2d 665, a case relied upon by the trial judge, the plaintiff was denied leave to file an action in quo warranto against the appointed State\u2019s Attorney. The plaintiff argued that he had standing because he was a taxpayer in the county, relying on People ex rel. McCarthy v. Firek (1955), 5 Ill. 2d 317, 125 N.E.2d 637. The appellate court distinguished Firek, noting that in that case standing was premised on direct adverse tax consequences certain to be suffered by the plaintiffs. The Turner plaintiff alternatively argued that he had standing as a citizen and voter in the county. The appellate court dismissed this argument, holding that the defendant\u2019s occupation of the office of State\u2019s Attorney had not harmed the plaintiff as a citizen or voter in any respect which was distinct from the harm suffered by every other citizen and voter in the county.\nIn Allen v. Love (1983), 112 Ill. App. 3d 338, 445 N.E.2d 514, another case relied upon by the trial judge, the plaintiffs argued that they had standing to bring a quo warranto and declaratory judgment action against the chief financial officer of the Chicago Board of Education because they were residents and taxpayers in the city, and because they had children enrolled in the Chicago pub-lie school system. The appellate court held that taxpayer status alone was insufficient to give the plaintiffs standing, as they had not alleged that the defendant\u2019s failure to timely file a statement of economic interests would result in financial loss or other injury to them. Similarly, the court held that the interest of the parents of Chicago public school students in assuring compliance with the ethics act was not a personal interest sufficient to confer standing to maintain a quo warranto action. Accordingly, the court held that only the Attorney General or the State\u2019s Attorney would have standing to bring a quo warranto action against the defendant.\nThe plaintiffs allege that as residents and voters of the 24th ward, their interests are distinct from those of persons residing outside the 24th ward. However, in Turner, the plaintiff\u2019s interest was distinct from that of persons residing outside his county, and in Allen, the interest of the parents of Chicago public school students was distinct from that of other persons. Nonetheless, their interests were not sufficiently personal and distinct from the interests of the general public to give them standing. The plaintiffs further allege that their alderman represents each one of them individually, and each of them expects any alderman to be honest, truthful and mindful of his duty as a public official. This interest, however, is not personal to these two plaintiffs; rather, it is shared by all residents of the 24th ward. (See People ex rel. Hiller v. Bevirt (1938), 297 Ill. App. 335, 17 N.E.2d 629.) We conclude that the trial judge properly relied on Turner and Allen and held that the plaintiffs lacked standing to bring the quo warranto action.\nThe plaintiffs rely principally on Kluk v. Lang (1988), 125 Ill. 2d 306, 531 N.E.2d 790. We do not believe that Kluk supports standing of the plaintiffs here. In Kluk the supreme court emphasized that the plaintiffs were challenging the constitutionality of a statute which, in effect, denied their right to vote to fill a vacancy in the State legislature. The court also emphasized the fact that Kluk involved a complaint for declaratory judgment and that the standing requirements for quo warranto were \u201cstricter than those for declaratory judgment standing.\u201d 125 Ill. 2d at 320.\nFor the foregoing reasons, the judgment of the circuit court is affirmed.\nJudgment affirmed.\nRAKOWSKI and LaPORTA, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE EGAN"
      }
    ],
    "attorneys": [
      "Holstein, Mack & Klein, of Chicago (Anthony B. Bass and Thayer C. Torgerson, of counsel), for appellants.",
      "Ahern, Butler & Glover, of Chicago (Maurice R. Glover and Cecil C. Butler, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "PATRICIA HENDERSON et al., Plaintiffs-Appellants, v. JESSE L. MILLER, JR., Defendant-Appellee.\nFirst District (6th Division)\nNo. 1\u201491\u20141379\nOpinion filed April 10, 1992.\nHolstein, Mack & Klein, of Chicago (Anthony B. Bass and Thayer C. Torgerson, of counsel), for appellants.\nAhern, Butler & Glover, of Chicago (Maurice R. Glover and Cecil C. Butler, of counsel), for appellee."
  },
  "file_name": "0260-01",
  "first_page_order": 280,
  "last_page_order": 288
}
