{ "id": 159532, "name": "FRANK JOHNSON et al., Plaintiffs-Appellees, v. JANE THEIS, Defendant-Appellant", "name_abbreviation": "Johnson v. Theis", "decision_date": "1996-02-28", "docket_number": "No. 2\u201495\u20141351", "first_page": "966", "last_page": "974", "citations": [ { "type": "official", "cite": "282 Ill. App. 3d 966" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "102 Ill. App. 3d 558", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3075200 ], "weight": 7, "year": 1981, "pin_cites": [ { "page": "565" }, { "page": "565" }, { "page": "565" }, { "page": "565" }, { "page": "565" }, { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0558-01" ] }, { "cite": "234 Ill. App. 3d 508", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5187687 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "515" }, { "page": "516", "parenthetical": "section 10 - 10's failure to indicate the consequence for noncompliance with the time limits for holding hearings on an objector's petition could theoretically allow an electoral board to thwart the entire election process by scheduling the hearings outside the time frame" }, { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0508-01" ] }, { "cite": "130 Ill. App. 3d 900", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3493874 ], "weight": 10, "year": 1985, "pin_cites": [ { "page": "902" }, { "page": "902" }, { "page": "902-03" }, { "page": "903" }, { "page": "902-03" }, { "page": "903" }, { "page": "903" }, { "page": "903" }, { "page": "903", "parenthetical": "\"some notice\" to interested parties mandatory under the statute" }, { "page": "903" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0900-01" ] }, { "cite": "167 Ill. App. 3d 1057", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3473826 ], "year": 1988, "pin_cites": [ { "page": "1065" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/1057-01" ] }, { "cite": "250 Ill. App. 3d 570", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2920394 ], "year": 1993, "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/250/0570-01" ] }, { "cite": "98 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121957 ], "year": 1983, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0382-01" ] }, { "cite": "109 Ill. 2d 202", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3127069 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "210" }, { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0202-01" ] }, { "cite": "126 Ill. 2d 58", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557309 ], "year": 1988, "pin_cites": [ { "page": "69" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0058-01" ] } ], "analysis": { "cardinality": 769, "char_count": 21154, "ocr_confidence": 0.777, "pagerank": { "raw": 1.596279546472568e-07, "percentile": 0.6830761175651553 }, "sha256": "b408b6374a8754c75a828bc215aee23a7b051c3f0eb0e1489fef17154a0bef82", "simhash": "1:99b68c62ca0f5c21", "word_count": 3460 }, "last_updated": "2023-07-14T22:18:31.167440+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FRANK JOHNSON et al., Plaintiffs-Appellees, v. JANE THEIS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GEIGER\ndelivered the opinion of the court:\nPlaintiff Frank Johnson, designated as the principal proponent of a referendum question regarding the issuance of sewerage revenue bonds in the Village of East Dundee, Illinois (the Village), as well as the nine remaining plaintiffs, all circulators of petitions in support of the referendum, filed this mandamus action seeking to direct the defendant, Jane Theis, as Village clerk, to certify the referendum question for placement on the ballot for the November 7, 1995, election. Following the decision of the East Dundee Municipal Officers Electoral Board (the Electoral Board) to sustain objections to the plaintiffs\u2019 petitions, the plaintiffs amended their complaint to include allegations relating to the Electoral Board\u2019s recent action.\nThe court below rejected the mandamus claim, electing instead to treat the complaint as a request for judicial review of the Electoral Board\u2019s decision pursuant to section 10 \u2014 10.1 of the Election Code (the Code) (10 ILCS 5/10 \u2014 10.1 (West 1994)). Although the trial court found the Electoral Board\u2019s decision regarding the alleged defects in the plaintiffs\u2019 petitions to be correct \"if properly objected to,\u201d it nonetheless held the Electoral Board\u2019s action to be invalid due to its failure to comply with the notice requirements of section 10 \u2014 10 of the Code (10 ILCS 5/10 \u2014 10 (West 1994)). Accordingly, the court ordered that the referendum question be certified and placed on the March 1996 ballot. The court subsequently stayed its order pending appeal.\nOn appeal, the defendant argues that the defects in the notice given by the Electoral Board did not deprive it of jurisdiction over the objections to the petitions and that the trial court erred in reversing the Electoral Board\u2019s decision. We find, however, that the plaintiffs\u2019 failure to comply with the requirements of section 10 \u2014 10.1 of the Code in seeking judicial review of the Electoral Board\u2019s decision left the trial court without jurisdiction to consider the Electoral Board\u2019s decision on the merits. Our review, therefore, is limited to whether the trial court\u2019s rejection of the plaintiffs\u2019 claim for mandamus was correct. Because we agree with the defendant that the Electoral Board\u2019s failure to strictly comply with the Code\u2019s notice requirements did not deprive it of jurisdiction to consider the objections to the plaintiffs\u2019 petitions, we conclude that the trial court\u2019s denial of the plaintiffs\u2019 claim for mandamus was proper.\nThe facts of the case are as follows. On July 24, 1995, the East Dundee Village Board passed an ordinance authorizing the issuance of sewerage revenue bonds in the amount of $5,900,000. At that meeting, one of the trustees stated that citizens could petition for a referendum on the issuance of the bonds. The Village subsequently made petitions for this purpose available at the Village Hall.\nNine people, all plaintiffs herein, circulated the petitions. On September 1, 1995, the defendant received 21 petitions containing 192 signatures. No principal proponent was designated. Thereafter, on September 11, 1995, the defendant received an \"Objectors Petition\u201d from Fernando Pannepucci. The defendant then forwarded a copy of Pannepucci\u2019s petition to Jill Yucuis, Village president and chairman of the Electoral Board. The Electoral Board scheduled a meeting, pursuant to section 10 \u2014 10 of the Code (10 ILCS 5/10 \u2014 10 (West 1994)), to consider the objections.\nOn September 13, 1995, pursuant to an administrative order entered by the chief judge of the sixteenth judicial circuit, the Village Hall was designated as a place of holding court for purposes of the hearings of the Electoral Board, as required by section 10 \u2014 10 of the Code (10 ILCS 5/10 \u2014 10 (West 1994)). Also on that date, the nine circulators were served with copies of the objector\u2019s petition and a notice of the Electoral Board hearing to be held on September 18, 1995. Although the notice provided the date and time of the Electoral Board hearing, it failed to designate a location for the hearing.\nPlaintiff Johnson testified that he first saw a copy of the Electoral Board\u2019s notice when his niece, plaintiff Nancy Smith, showed it to him. At that time, Johnson was not formally involved with the petition drive. A day or two before the September 18 meeting, however, he agreed to become the principal proponent of the measure.\nOn September 18, 1995, Johnson appeared at the hearing and tendered his certificate of principal proponent and filed an objection to the hearing based on defective notice. He had learned of the location of the meeting by contacting the office of the chief judge and had relayed the information to three of the circulators, plaintiffs Paul Michalski, Raymond O\u2019Connor, and John Van Acker. The Electoral Board continued the hearing in order to consider Johnson\u2019s objection.\nOn September 26, 1995, the Electoral Board rejected Johnson\u2019s objection. The Electoral Board\u2019s order held as follows: (1) that the notice provisions of section 10 \u2014 8 and section 10 \u2014 10 of the Code had been substantially complied with; (2) that strict compliance with notice to Johnson was rendered impossible by virtue of his failure to include a certificate of principal proponent with the petition; (3) that Johnson submitted to the jurisdiction of the Electoral Board by submitting the certificate designating him the principal proponent in this matter; and (4) that no prejudice resulted to Johnson as a result of the technical defect in the notice given to the circulators of the petition, parties who are not designated to receive notice under the Code.\nAlso on September 26, the plaintiffs filed a complaint for mandamus in circuit court. The complaint sought to compel the defendant to certify the referendum question for placement on the ballot for the November 7, 1995, election. On October 4, 1995, the trial court continued the cause, in part because the Electoral Board had not yet reached a final decision.\nOn October 9, 1995, the Electoral Board sustained Pannepucci\u2019s objection to the plaintiffs\u2019 petitions. The Electoral Board found that since the petitions as a whole were securely bound and were not consecutively numbered, despite each circulator\u2019s petition being so numbered, the petitions violated the requirements of section 28 \u2014 3 of the Code (10 ILCS 5/28 \u2014 3 (West 1994)) and were thus invalid.\nThe plaintiffs then filed an \"amended mandamus complaint\u201d to include allegations detailing the recent actions of the Electoral Board, as well as a challenge to Pannepucci\u2019s standing to file objections to the plaintiffs\u2019 petitions. At the evidentiary hearing on the amended complaint, defense counsel argued that neither the standing issue nor any request by the plaintiffs for judicial review of the Electoral Board\u2019s decision was properly before the court, as no appeal had been filed pursuant to section 10 \u2014 10.1 of the Code (10 ILCS 5/10 \u2014 10.1 (West 1994)). In response, plaintiffs\u2019 counsel argued that, even though the amended complaint was characterized as one in mandamus, the plaintiffs were in fact seeking review of the Electoral Board\u2019s decision. The court allowed the hearing to proceed on the amended complaint as filed, but suggested to the plaintiffs that they consider whether they wanted to seek leave to file a second amended complaint to conform to any proofs presented at the hearing.\nAt the close of the plaintiffs\u2019 evidence, the defendant moved for a directed finding. After rejecting the standing claim, the court considered the issue of whether the plaintiffs had sufficiently established their claim for mandamus. In that regard, the court stated:\n\"I don\u2019t think a mandamus action is appropriate to review a position or decision of an Electoral Commission, and so that portion of the Plaintiff\u2019s amended complaint that seeks mandamus will be denied.\nHowever, I think there are portions of the Plaintiff\u2019s complaint that will stand; specifically, the request for the review of the order of September 26th as it relates to a finding that the notice was defective, and as to their decision of October the 5th that Plaintiff\u2019s petitions were defective materially. There is evidence sufficient to withstand the motion for finding, and therefore that portion of the motion will be denied.\u201d\nAfter the defendant elected not to present any evidence, the court entertained additional argument as to the merits of the Electoral Board\u2019s decision. The court then took the matter under advisement.\nOn October 12, 1995, the court rendered its decision. Noting that it had treated the complaint as a request for judicial review of the Electoral Board\u2019s decision, the court found the decision of the Electoral Board as it related to the pagination requirements of the petitions to be correct \"if properly objected to.\u201d The court went on, however, to find that the Electoral Board\u2019s failure to properly notify the proponents of the location of the hearing on the objections rendered the hearing invalid. The court stated:\n\"The statute is very clear, there shall be a notice given, and that notice has to include the time and the place.\nIn this case, the Proponents did not file a Principal Proponent Statement, and I\u2019m not sure that the Electoral Board at that point had to do anything or notify anyone, but once they chose to do so, I think they had to do it correctly.\n*** [0]nce they made the decision to move that meeting from the Courthouse, where the statute provides for it, to the Village Hall, I think they had an obligation to send their notices out correctly.\nThey did not send those notices out correctly. Therefore, it is my opinion that in fact there was not ever conduct [sic] a proper Objectors\u2019 hearing.\u2019\u2019\nAccordingly, the court entered an order dismissing the plaintiffs\u2019 prayer for a writ of mandamus, dismissing the portion of the complaint challenging Pannepucci\u2019s standing as an objector, and ordering the referendum question to be submitted to the voters at the March 1996 primary election.\nOn appeal, the defendant contends that the trial court erred in construing the notice provisions of section 10 \u2014 10 of the Code (10 ILCS 5/10 \u2014 10 (West 1994)) to be mandatory, rather than directory. As an initial matter, however, we must examine whether the trial court had jurisdiction to review the merits of the Electoral Board\u2019s decision.\nSection 10 \u2014 10.1 of the Code, which governs judicial review of electoral board decisions, provides, in pertinent part:\n\"The party seeking judicial review must file a petition with the clerk of the court within 10 days after the decision of the electoral board. *** The petitioner shall serve a copy of the petition upon the electoral board and other parties to the proceeding by registered or certified mail and shall file proof of service with the clerk of the court.\u201d 10 ILCS 5/10 \u2014 10.1 (West 1994).\nAs our supreme court has noted, this review procedure is a statutory creation. Kozel v. State Board of Elections, 126 Ill. 2d 58, 69 (1988). A court in the exercise of special statutory jurisdiction is limited in its power by the language of the act conferring such jurisdiction. Fredman Brothers Furniture Co. v. Department of Revenue, 109 Ill. 2d 202, 210 (1985). If the mode of procedure prescribed by statute is not strictly pursued, no jurisdiction is conferred on the circuit court. Fredman Brothers, 109 Ill. 2d at 210.\nIt is clear in the case at bar that the plaintiffs did not comply with the provisions of section 10 \u2014 10.1 in their challenge to the Electoral Board\u2019s decision. Notwithstanding the court\u2019s suggestion immediately prior to the evidentiary hearing, the plaintiffs never filed a second amended complaint to include a count seeking judicial review within 10 days of the Electoral Board\u2019s decision. Further, it is undisputed that the Electoral Board was never served or named as a party to the action. That the trial court chose to treat the plaintiffs\u2019 mandamus complaint as a request for judicial review is of no consequence, for the court was wholly without authority to do so. Because the court was limited in its jurisdictional authority by the review procedures set forth in section 10 \u2014 10.1 of the Code and because the plaintiffs failed to strictly pursue those procedures, we conclude that the trial court had no jurisdiction to review the Electoral Board\u2019s decision on the merits.\nThe plaintiffs correctly assert, however, that we may affirm the decision of the trial court on any basis appearing in the record (see Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 387 (1983)). Accordingly, we must examine whether the trial court\u2019s rejection of the plaintiffs\u2019 claim for mandamus was proper.\nA writ of mandamus is a remedy at law to command a public official to perform some ministerial, nondiscretionary duty. Doe v. Carlson, 250 Ill. App. 3d 570, 573 (1993). Mandamus will lie in order to expunge a decision which an election board lacked jurisdiction to enter. Caldwell v. Nolan, 167 Ill. App. 3d 1057, 1065 (1988).\nIn the case at bar, the plaintiffs\u2019 amended complaint alleged that the notice which the Electoral Board provided regarding the hearing on the objector\u2019s petition failed to include the location of the hearing. Under section 10 \u2014 10 of the Code, the chair of the electoral board is required to send a call to the principal proponent or the attorney for the proponents of a question of public policy whose petitions are objected to, stating that the board is required to meet to hear and pass upon the objections and stating the day, hour, and place at which the board shall meet for that purpose. 10 ILCS 5/10 \u2014 10 (West 1994). The plaintiffs argue that section 10 \u2014 10\u2019s notice provisions are mandatory and that the Electoral Board\u2019s failure to act in strict compliance with those provisions thus deprived the Electoral Board of jurisdiction over the objection, rendering the Electoral Board\u2019s order sustaining the objections void.\nA mandatory provision in a statute is one which the omission to follow renders the proceeding to which it relates illegal and void. Shipley v. Stephenson County Electoral Board, 130 Ill. App. 3d 900, 902 (1985). The observance of a directory provision, by contrast, is not necessary to the validity of the proceeding. Shipley, 130 Ill. App. 3d at 902. The question of whether a statute prescribing the performance of an act by a public body is mandatory or directory depends upon the statute\u2019s purpose. Shipley, 130 Ill. App. 3d at 902-03. As this court noted in Shipley, \"[i]f the provision merely directs a manner of conduct for the guidance of the officials or is designed to secure order, system and dispatch in proceedings, it is generally directory, absent negative language denying the performance if the acts required are not done in the manner designated. If, however, the conduct is prescribed in order to safeguard a person\u2019s rights, which may be injuriously affected by failure to act in the manner specified, the statute is mandatory.\u201d Shipley, 130 Ill. App. 3d at 903. Stated another way, a mandatory statute will describe the consequences for failing to follow its provisions. Maske v. Kane County Officers Electoral Board, 234 Ill. App. 3d 508, 515 (1992).\nIn Havens v. Miller, 102 Ill. App. 3d 558 (1981), this court held that section 10 \u2014 10\u2019s requirement that notice be served both by-registered or certified mail and by sheriffs service was not a mandatory but a directory provision of the statute. Havens, 102 Ill. App. 3d at 565. The Havens court stated that the provision for using two methods of serving notice was intended to increase the likelihood that interested parties would actually receive notice of the hearing. Havens, 102 Ill. App. 3d at 565. The court then noted that the plaintiff had in fact received notice of the objection by one of the two methods of service and, through counsel, had participated in the hearing on the objections. Havens, 102 Ill. App. 3d at 565. Moreover, the court observed that to find the notice requirements mandatory would, in effect, give the chair of an electoral board \"absolute veto power\u201d over objections simply by his or her choosing to serve notice in a manner different from that set forth in the statute. Havens, 102 Ill. App. 3d at 565. Finally, the court observed that the language of section 10 \u2014 10 did not specifically state that the failure to strictly comply with the notice provision would result in a nullification of the electoral board\u2019s authority. Havens, 102 Ill. App. 3d at 565.\nRelying on Havens, this court in Shipley found that the notice provisions of section 10 \u2014 8 of the Code, which require that a copy of objections to a petition be transmitted by registered mail or receipted personal delivery to the principal proponent of the public question not later than 12 noon on the next business day following the filing of the objections (10 ILCS 5/10 \u2014 8 (West 1994)), were likewise directory provisions. Shipley, 130 Ill. App. 3d at 902-03. The court noted that, while some notice to interested parties was mandatory under the statute, the manner and method of service prescribed therein were not. Shipley, 130 Ill. App. 3d at 903. The court also observed that no principal proponent of the referendum had been certified, making strict compliance with the notice provision of section 10 \u2014 8 impossible. Shipley, 130 Ill. App. 3d at 903. The court thus reasoned that the failure to strictly comply with the provision was not the fault of the electoral board, but rather that of the plaintiff in question, who ostensibly drafted the referendum petitions and should have designated himself as the proponent. Shipley, 130 Ill. App. 3d at 903.\nUnlike Shipley and Havens, the question here turns not on the provisions regarding the manner or method of service, but the substance of the notice given. The rationale of those cases, however, leads us to reject the plaintiffs\u2019 argument. Here, no principal proponent was designated until Johnson tendered his certificate to the Electoral Board at the September 18 hearing. Thus, as in Shipley, strict compliance with section 10 \u2014 10\u2019s notice provisions was made impossible by the plaintiffs\u2019 own failure to name a principal proponent with the submission of their petitions. Johnson, moreover, had actual notice of the location of the September 18 hearing and appeared there to object to the hearing on the grounds of defective notice. It was not until September 26 that the Electoral Board ruled on Johnson\u2019s objection, and not until the October 9 hearing that the Electoral Board considered and ruled \u2014 with Johnson present \u2014 on Pannepucci\u2019s objections to the petitions. Johnson has therefore failed to demonstrate what prejudice, if any occurred from the failure to notify him of the location of the initial hearing. Further, we note that the Electoral Board here did advise each of the circulators of the date and time of the initial hearing, providing them with at least some notice. See Shipley, 130 Ill. App. 3d at 903 (\"some notice\u201d to interested parties mandatory under the statute).\nWe are also persuaded by the argument that finding the notice provisions of section 10 \u2014 10 to be mandatory could enable an electoral board to prevent any hearing on objections filed to a petition by the board\u2019s noncompliance with the notice requirements. See Havens, 102 Ill. App. 3d at 565; Shipley, 130 Ill. App. 3d at 903. This is particularly true where, as here, the statute provides no indication of the consequence for failing to follow its provisions. Cf. Maske, 234 Ill. App. 3d at 516 (section 10 \u2014 10\u2019s failure to indicate the consequence for noncompliance with the time limits for holding hearings on an objector\u2019s petition could theoretically allow an electoral board to thwart the entire election process by scheduling the hearings outside the time frame).\nIn sum, we simply do not believe that the legislature intended for a defect in the notice, such as the one presented at bar, to have the result of nullifying the Electoral Board\u2019s authority. See Maske, 234 Ill. App. 3d at 516. We conclude, therefore, that the Electoral Board\u2019s failure to include the location of the initial hearing on the notices mailed to the circulators did not nullify the Electoral Board\u2019s action in sustaining the objections to the plaintiffs\u2019 petitions. Accordingly, we find that because the Electoral Board had jurisdiction over the objections to the petitions, no action for mandamus will lie.\nFor the foregoing reasons, the portion of the judgment of the circuit court of Kane County denying the plaintiffs\u2019 claim for mandamus is affirmed. The remaining portion of the judgment reviewing and reversing the decision of the Electoral Board is vacated for lack of jurisdiction.\nAffirmed in part and vacated in part.\nMcLAREN, P.J., and DOYLE, J., concur.", "type": "majority", "author": "JUSTICE GEIGER" } ], "attorneys": [ "John E. Regan, of Early, Collison, Tousey, Regan, Woldek & Morrow, of Elgin, for appellant.", "Frank D. Johnson, of Dundee, for appellees." ], "corrections": "", "head_matter": "FRANK JOHNSON et al., Plaintiffs-Appellees, v. JANE THEIS, Defendant-Appellant.\nSecond District\nNo. 2\u201495\u20141351\nOpinion filed February 28, 1996.\nRehearing denied March 28, 1996.\nJohn E. Regan, of Early, Collison, Tousey, Regan, Woldek & Morrow, of Elgin, for appellant.\nFrank D. Johnson, of Dundee, for appellees." }, "file_name": "0966-01", "first_page_order": 984, "last_page_order": 992 }