NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 79857--Agenda 12--May 1996.
RONALD GEER, Appellee, v. ROBERT KADERA, Appellant.
Opinion filed September 19, 1996.
JUSTICE McMORROW delivered the opinion of the court:
We granted leave to appeal in this case (155 Ill. 2d R. 315)
in order to determine whether the circuit court is the proper forum
in which to bring a post-election challenge to a candidate's
nomination papers. We must also decide whether a canvassing board's
declaration of the results of an election precludes a circuit court
from later declaring the true winner in an election contest.
Alternatively, we are asked to determine whether a mandamus action
may lie against a canvassing board which, having discharged its
duties, has ceased to exist functus officio.
BACKGROUND
On April 18, 1994, Ronald L. Geer filed a "Petition to
Contest" the election of Robert A. Kadera, Geer's sole opponent in
the March 15, 1994, general primary election. Geer sought a
judicial declaration that Kadera's election to the two-year term of
precinct 155 Lake County Republican committeeman was null and void.
Geer claimed, among other things, that Kadera was not legally
qualified to hold office because he did not reside within the
precinct as required by the Election Code. 10 ILCS 5/7--8(b) (West
1994). Specifically, Geer alleged that Kadera misrepresented his
place of residence as being 21990 6th Avenue, Lake Villa, Illinois,
in a sworn statement of candidacy filed on December 6, 1993. 10
ILCS 5/7--10 (West 1994). Geer did not notify election officials of
Kadera's misrepresentation, however, until the day after the
election.
Geer further claimed that the Lake County canvassing board
improperly declared Kadera the winner of the election 21 days after
it previously announced that Geer had won. According to Geer, the
board originally convened on March 18, 1994, and proclaimed him the
winner even though he had received fewer votes than Kadera. Geer
later received a "Certificate of Election" from the Lake County
clerk's office which confirmed his election as Republican precinct
committeeman. Notwithstanding the issuance of the certificate, the
board subsequently reconvened on April 8, 1994, and declared Kadera
the winner. This subsequent declaration of Kadera as winner, Geer
asserted, was void ab initio because the board lacked statutory
authority to recanvass the votes more than seven days after the
election. 10 ILCS 5/22--1 (West 1994).
Kadera moved to dismiss the action pursuant to section 2--619
of the Code of Civil Procedure. 735 ILCS 5/2--619 (West 1994). With
respect to the accusation that he had filed a fraudulent statement
of candidacy, Kadera admitted that he "incorrectly" stated that he
resided at 21990 6th Avenue. He argued, however, that pursuant to
the Election Code any objections to a candidate's qualifications,
including residency, must be brought before the proper election
authority within five business days after the last day for filing
the nomination papers. 10 ILCS 5/10--8 (West 1994). Relying on
section 10--8 of the Code, Kadera further claimed that, because
Geer failed to object within the time limits set forth in the Code,
he had waived any objection to Kadera's nomination papers,
including his compliance with the statutory residency requirements.
In regard to the other charge, Kadera did not directly address
Geer's contention that the Lake County canvassing board improperly
recanvassed the votes more than seven days after the election.
Nevertheless, he noted that election contests are ordinarily
limited to a determination of the results of the election, i.e.,
the number of valid votes for each candidate, and that in this
case, the circuit court should only hear evidence limited to that
issue. In support of this argument, Kadera attached to his motion
to dismiss a certified copy of a computer printout of the election
returns. The printout indicated that Kadera received 102 votes
versus the 65 votes cast for Geer. Even so, next to Geer's total
was the following handwritten notation: "3/21/94 = winner per
SAO." Directly beneath that notation was another handwritten
notation, purportedly attested to by Lake County clerk and board
member Linda Hess, which states: "4/8/94 Kadera winner per States
Atty Office. LH."
The circuit court of Lake County was then called upon to
resolve the following conundrum: Upon which candidate should the
office of Republican precinct committeeman fall: the candidate
armed with a certificate of election which he had received as the
result of being declared the winner by a state agency with no
authority to do so, but who otherwise lived in the proper
geographic territory, or the candidate embraced by nearly two-
thirds of the voters, but who admittedly did not reside among his
constituents? The circuit court, deciding in favor of the latter,
ruled as follows:
"1) The canvassing board [sic] 1st official
certification found Mr. Kadera having [the] highest
number of votes for Prec. 155 Lake Villa.
2) That the question of residency brought by Pet.
Geer is not properly brought for the Ct. [sic]
determination but is a matter to be decided by the
Republican Central Committee.
3) That [the] motion to take evidentiary evidence is
denied, [the] facts not disputed & [the] documents
unambiguous regarding [the] action of [the] canvassing
board."
On appeal, the appellate court affirmed the circuit court's
dismissal of the action, holding that the circuit court properly
found that Kadera had won the election by virtue of his having
received the greater number of votes. No. 2--95--0456 (unpublished
order under Supreme Court Rule 23). The appellate court further
concluded that an election contest was not the appropriate legal
vehicle for challenging a candidate's failure to comply with the
statutory residency requirement. Thus, the appellate court affirmed
the dismissal of the election contest.
After rendering its decision on the merits and hence disposing
of the entire appeal, the appellate court then invited Geer to
pursue a common law writ of mandamus. In dicta, the appellate court
stated that, "[u]nder the circumstances of this case, [Geer] may
sue the Board to seek a writ of mandamus invalidating the election
of [Kadera]."
Geer then filed a new and separate mandamus action against the
canvassing board, joining Kadera as a necessary party. Geer v. Lake
County Canvassing Board, No. 95--MR--368 (Cir. Ct. Lake County).
That complaint focused exclusively upon the fact that Kadera did
not reside within precinct 155. Consistent with the appellate
court's suggestion, Geer requested a writ of mandamus directing the
canvassing board to reconvene and invalidate Kadera's election.
Meanwhile, in the case at bar, Kadera filed a petition for
leave to appeal before this court despite the appellate court's
affirmance of the circuit court's order dismissing Geer's election
contest in toto. Not surprisingly, Kadera did not seek review of
the appellate court's favorable judgment; instead, he sought a
reversal of what he described as the appellate court's "ruling"
that a writ of mandamus may lie against the Lake County canvassing
board. Among other things, Kadera pointed out that the canvassing
board had performed all of its functions in 1994, and therefore no
longer exists. He further noted that this court has previously held
that a writ of mandamus will not issue against a defunct canvassing
board. People ex rel. Wilson v. Mottinger, 212 Ill. 530 (1904).
Accordingly, Kadera requests this court to reverse that portion of
the appellate court's ruling regarding the filing of a mandamus
action.
Geer, on the other hand, did not respond to Kadera's petition
for leave to appeal, but filed a brief seeking cross-relief. 155
Ill. 2d R. 315(g). In his petition, Geer likewise relied on
Mottinger, arguing that "[i]f this Court lacked the power to
reconvene a canvassing board after it had performed its duty--
rightly or wrongly *** then certainly such a board had no power to
reconvene sua sponte three weeks after it had disbanded." Geer
seeks a reversal of the judgment of the appellate court, but not
its ruling regarding the propriety of the mandamus action.
ANALYSIS
It is against this backdrop that we must decide the
substantive issues in this case, however obfuscated they may have
become. Originally, the parties asked the circuit court to decide
whether a candidate who misrepresented his residency may
nevertheless hold office because his fraud went undetected until it
was too late. They also called upon the court to determine whether
that same candidate was properly declared the winner of the
election in the first instance.
In addition to resolving those two questions, we are asked to
determine whether a writ of mandamus may issue in another case
pending before another tribunal involving another party not even
before this court. Geer v. Lake County Canvassing Board, No. 95--
MR--368 (Cir. Ct. Lake County). That issue arises in a case which
is technically moot.
Thus, what began as a simple election contest--in what should
have been but a single visit to the courthouse--has evolved into
two separate proceedings. With these prefatory remarks, we begin
our analysis with an overview of the relevant portions of the Code.
10 ILCS 5/1--1 et seq. (West 1994).
Residency Requirements
Section 7--10 of the Election Code mandates that a nomination
petition for the office of precinct committeeman must be filed on
behalf of each candidate. 10 ILCS 5/7--10 (West 1994). It also
requires that each petition must include a sworn statement of
candidacy which "shall set out the address of such candidate." 10
ILCS 5/7--10 (West 1994). The petition must further "state that the
candidate *** is qualified for the office specified." 10 ILCS 5/7--
10 (West 1994). In order to be qualified for this particular
office, the Code elsewhere provides that "[e]ach candidate for
precinct committeeman must be a bona fide resident of the precinct
where he seeks to be elected." 10 ILCS 5/7--8(b) (West 1994). The
purpose of these and similar provisions is to ensure an orderly
procedure in which only the names of qualified persons are placed
on the ballot. Lewis v. Dunne, 63 Ill. 2d 48 (1976).
Elections are quintessentially political in nature, and
disputes are not uncommon. With that in mind, the General Assembly
saw fit to establish an expedient, pre-election mechanism for
resolving any disputes relating to a candidate's nomination papers.
Beginning with section 10--8, the Code requires all objections to
a candidate's nomination papers to be filed no later than five
business days after the last day for the filing of nomination
papers in general. 10 ILCS 5/10--8 (West 1994). The provision also
indicates that the nomination papers will be "deemed to be valid"
in the absence of a timely objection. 10 ILCS 5/10--8 (West 1994).
Section 10--8 states:
"Certificates of nomination and nomination papers
*** being filed as required by this Code, and being in
apparent conformity with the provisions of this Act,
shall be deemed to be valid unless objection thereto is
duly made in writing within 5 business days after the
last day for filing the certificate of nomination or
nomination papers ***." 10 ILCS 5/10--8 (West 1994).
The Code further creates various electoral boards to resolve the
disputes (10 ILCS 5/10--9 (West 1994)), grants those same boards
the power to administer oaths, issue subpoenas and examine
witnesses (10 ILCS 5/10--10 (West 1994)), and provides a party with
judicial review (10 ILCS 5/10--10.1 (West 1994)). The failure to
utilize these procedures will result in a waiver of the objection.
See generally Swiney v. Peden, 306 Ill. 131 (1922).
It is undisputed that in this case Geer did not file an
objection with the appropriate electoral board until the day after
the election. By that time Kadera's nomination papers were already
"deemed valid" by operation of section 10--8, and the board no
longer possessed any statutory authority to entertain Geer's
objection. Moreover, Geer could not resuscitate his objection in
the circuit court of Lake County under the guise of an election
contest. A circuit court does not have original jurisdiction over
objections to nomination papers. Dilcher v. Schorik, 207 Ill. 528
(1904). Indeed, the granting of judicial review under section 10--
10.1 of the Code was never intended to vest the circuit courts with
jurisdiction to conduct a de novo hearing into the validity of a
candidate's nomination papers. Williams v. Butler, 35 Ill. App. 3d
532 (1976); Wiseman v. Elward, 5 Ill. App. 3d 249 (1972). It is the
electoral board, and not the courts, which have been vested with
original jurisdiction to hear such disputes. Swiney v. Peden, 306
Ill. 131 (1922); People ex rel. Klingelmueller v. Haas, 111 Ill.
App. 3d 88 (1982).
This conclusion is supported by Dilcher v. Schorik, 207 Ill.
528 (1904). In that case, the petitioner filed a statutory election
contest in the circuit court of Cook County challenging his
opponent's election as town constable. The petition did not contest
the appellee's election per se, but only the regularity of his
nomination and his eligibility to hold office. With respect to the
latter issue, the appellant claimed that his opponent was
ineligible because he did not reside within the town limits for a
period of one year prior to the day of the election. Citing section
10 of the Ballot Law--which provides that certificates of
nomination and nomination papers shall be deemed valid if not
objected to--this court affirmed the order of the circuit court
dismissing the action. This court concluded that the circuit court
did not have jurisdiction over the validity of the nomination
papers, a question properly reserved for the appropriate election
authority. Dilcher, 207 Ill. at 529; see also Swiney v. Peden, 306
Ill. 131 (1922) (holding that a failure to file objection to
nomination papers before board waives objection which cannot be
raised again in election contest).
This court reached its decision in Dilcher even though the
Ballot Law at that time did not provide for any judicial review.
Our holding that the circuit court does not have subject matter
jurisdiction to conduct a de novo hearing into any controversies
concerning irregularities in a candidate's nomination papers has
been made easier by the 1967 amendments to the Code. Under the
amendments, the circuit courts were expressly granted only limited
jurisdiction to review decisions of the electoral board. 10 ILCS
5/10--10.1 (West 1994). Thus, by legislative fiat, a court's
inquiry into discrepancies in nomination papers is limited to a
"review" of the board's record. Wiseman v. Elward, 5 Ill. App. 3d
249 (1972).
In this case, we see no reason to depart from this court's
prior holdings in Dilcher and Swiney. Compliance with the dispute
resolution procedures contained in article 10 of the Code is
essential to an orderly pre-election process. Prompt resolution
ensures that ample time remains for the preparation of ballots
listing only the names of qualified candidates. As explained in
Thurston v. State Board of Elections, 76 Ill. 2d 385, 389 (1979),
"[i]t is vitally important that nomination objections be resolved
at the earliest possible time." That is one of the primary reasons
why the legislature created the various electoral boards and vested
them, and not the courts, with original jurisdiction over issues
pertaining to nomination papers. It would be wholly improper,
therefore, for this or any other court to undertake its own fact-
finding mission under the circumstances presented here.
We conclude, as this court has in the past, that a person once
elected cannot not be removed from office vis-a-vis a statutory
election contest merely because of a deficiency in his or her
nomination papers. Objections to certificates of nomination and
nomination papers are, in effect, dissolved by the general
election. Thurston, 76 Ill. 2d at 389 (citing Welsh v. Shumway, 232
Ill. 54 (1907), Schuler v. Hogan, 168 Ill. 369 (1897), and People
ex rel. Elder v. Quilici, 309 Ill. App. 466 (1941)).
We caution that our holding not be expanded beyond the facts
presented for our review. We determine only that the failure to
file a timely, pre-election objection to a candidate's nomination
papers results in those papers being deemed valid by virtue of
section 10--8 (10 ILCS 5/10--8 (West 1994)). A person cannot
thereafter revive such an objection in the circuit court by means
of an election contest. However, because a person's nomination
papers may be deemed valid does not mean that person automatically
becomes eligible to hold a particular office. Unlike a candidate's
nomination papers, a person's eligibility to hold office may be
challenged at any time during the term of that office. Indeed, an
objection which relates to a person's eligibility, such as a
residency requirement, may be presented for judicial review under
appropriate circumstances. Greenwood v. Murphy, 131 Ill. 604 (1890)
(quo warranto); Dilcher v. Schorik, 207 Ill. 528 (1904); Edgcomb v.
Wylie, 248 Ill. 602 (1911); Swiney v. Peden, 306 Ill. 131 (1922);
Wagler v. Stoecker, 393 Ill. 560 (1946); see also People ex rel.
Henderson v. Redfern, 48 Ill. App. 2d 100 (1964); Breslin v.
Warren, 45 Ill. App. 3d 450 (1977); City of Highwood v. Obenberger,
238 Ill. App. 3d 1066 (1992). Today's decision leaves undisturbed
that body of law which permits such post-election challenges to a
person's right to hold office.
Accordingly, because Geer did not file an objection before the
appropriate electoral board within the time limits set forth in the
Code (10 ILCS 5/10--8 (West 1994)), we affirm that portion of the
circuit court's order dismissing Geer's statutory election contest
as it relates to Kadera's nomination papers.
Canvass of Votes
It is for an entirely different reason that we must also
reject Geer's contention that the circuit court erred in declaring
Kadera the winner of the election. As previously noted, Geer
claimed that (1) the Lake County clerk's office issued him a
certificate of election; and (2) the canvassing board improperly
reconvened more than seven days after the election. 10 ILCS 5/22--1
(West 1994).
With respect to the issuance of the certificate, it is well
settled that "the certificate of election is merely prima facie
evidence as to the result. In a proper proceeding the authorities
may go behind the certificate *** and ascertain the real facts."
People ex rel. Woods v. Green, 265 Ill. 39, 42 (1914). Because
issuing a certificate of election is not a discretionary function,
but a ministerial task, any error or mistake on the part of the
clerk's office cannot have a binding effect on the outcome of the
election. "[The] right to the office depends on the ballots and not
on a commission." Green, 265 Ill. at 42. Consequently, the fact
that Geer may have received a certificate of election,
inadvertently or otherwise, does not automatically foreclose a
court from inquiring into the "real facts" and determining which
candidate received the highest number of votes.
Geer next cites section 22--1 of the Code in support of his
argument that the canvassing board lacked statutory authority to
reconvene more than seven days after the election. 10 ILCS 5/22--1
(West 1994). That section, however, does not apply to this case.
Section 22--1 states in relevant part:
"Within 7 days after the close of the election at
which candidates FOR OFFICES HEREINAFTER NAMED IN THIS
SECTION are voted upon, the county clerks of the
respective counties, with the assistance of the chairmen
of the county central committees of the Republican and
Democratic parties of the county, shall open the returns
and make abstracts of the votes on a separate sheet ***."
(Emphasis added.) 10 ILCS 5/22--1 (West 1994).
Of the 17 offices thereafter enumerated, the office of precinct
committeeman is noticeably absent. Thus, by its terms, section 22--
1 does not advance Geer's argument that the canvassing board
impermissibly declared Kadera the winner.
Even if the canvassing board lacked statutory authority to
reconvene, any irregularities in that regard became irrelevant
after Geer filed his election contest. That is because such a
contest looks beyond the actions of the canvassing board and
determines for itself which candidate received the greatest number
of votes. See generally Mayes v. City of Albion, 374 Ill. 605, 609
(1940).
It is true that canvassing boards, as creatures of statute,
derive their powers solely from a legislative grant of authority.
As such, the canvassing board here had no inherent authority to
reconvene after having fully discharged its duties. Donahoe v.
Owens, 277 Ill. 318 (1917); People ex rel. Wilson v. Mottinger, 212
Ill. 530 (1904). Nevertheless, as noted in connection with the
clerk's issuance of a certificate of election, the "duties of the
canvassing board are merely ministerial, and omissions or mistakes
of that board can have no controlling influence on the election."
People ex rel. Woods v. Green, 265 Ill. 39, 42 (1914); see also
Wells v. Robertson, 277 Ill. 534, 539 (1917) (describing board's
function as a "mere mechanical or mathematical duty" in which votes
are computed and results declared).
Concomitantly, the board's acts or mistakes, including its
ultra vires act of reconvening 21 days after the election, have no
bearing on the outcome of the election contest. "Repeated decisions
have firmly established the rule that the purpose of an election
contest is to ascertain how many votes were cast for or against a
candidate, or for or against a measure, and thereby ascertain and
render effective the will of the people." Wagler v. Stoecker, 393
Ill. 560, 562 (1946). The unauthorized acts of a canvassing board
cannot disenfranchise the electorate of its vote. To hold otherwise
would allow the will of the people to be defeated if a ministerial
office erred in carrying out its charge.
In this case, the circuit court found that Kadera had received
the highest number of votes. Geer does not dispute that Kadera
received 102 out of the 167 votes cast. Consequently, under both
section 7--8(b) of the Code, which provides that the candidate
"having the highest number of votes shall be such precinct
committeeman of such party for such precinct" (10 ILCS 5/7--8(b)
(West 1994)), and section 7--59, which also states that the "person
receiving the highest number of votes of his party for precinct
committeeman of his precinct shall be declared elected precinct
committeeman from said precinct" (10 ILCS 5/7--59 (West 1994)), the
circuit court correctly declared Kadera the winner of the election.
Our conclusion in this matter is based upon inveterate
principles of Illinois election law. Long ago this court observed
in People ex rel. Fuller v. Hilliard, 29 Ill. 413, 425 (1862), that
the "question in all such cases should be, whom did a majority of
the qualified voters elect? Forms should be made subservient to
this inquiry, and should not rule in opposition to substance."
Since that time, this court has adhered to that principle. See
MacGuidwin v. South Park Commissioners, 333 Ill. 58, 72 (1928);
Mayes v. City of Albion, 374 Ill. 605, 609 (1940); Wagler v.
Stoecker, 393 Ill. 560, 562 (1946). We do not depart from that
principle today. Accordingly, we affirm the order of the circuit
court dismissing Geer's election contest.
Mandamus Action
We next turn our attention to the question of whether we may,
as Kadera requests, reverse the appellate court's "ruling" that a
writ of mandamus may lie against the canvassing board. As
previously discussed, Kadera successfully obtained a dismissal of
Geer's election contest in the circuit court of Lake County. On
appeal, the appellate court agreed with Kadera and affirmed the
circuit court's order. However, the appellate court intimated in
dicta that a mandamus action may lie against the canvassing board.
It is upon that dicta that Kadera now appeals to this court.
We believe, however, that Kadera's request for a reversal of the
appellate court's dicta is not properly before this court, and for
the reasons which follow, we dismiss this portion of the appeal.
As a general rule, "[a] party cannot complain of error which
does not prejudicially affect it, and one who has obtained by
judgment all that has been asked for in the trial court cannot
appeal from the judgment." Material Service Corp. v. Department of
Revenue, 98 Ill. 2d 382, 386 (1983). In addition, "[i]t is
fundamental that the forum of courts of appeal should not be
afforded to successful parties who may not agree with the reasons,
conclusion or findings below." Illinois Bell Telephone Co. v.
Illinois Commerce Comm'n, 414 Ill. 275, 282-83 (1953); see also N-
Ren Corp. v. Illinois Commerce Comm'n, 98 Ill. App. 3d 1076, 1078
(1981) (citing New York Telephone Co. v. Maltbie, 291 U.S. 645, 78
L. Ed. 1041, 54 S. Ct. 443 (1934), and Lindheimer v. Illinois Bell
Telephone Co., 292 U.S. 151, 78 L. Ed. 1182, 54 S. Ct. 658 (1934)).
Nor should such forums be afforded to one who merely disagrees with
the dicta of a lower court, but not its judgment.
In the case at bar, Kadera obtained from the circuit court all
of the relief which he sought, i.e., dismissal of Geer's election
contest in toto. He triumphed again upon Geer's appeal. The
appellate court, in its judgment, affirmed the order of the circuit
court dismissing the election contest. Consequently, Kadera had no
standing to appeal to this court, having obtained by judgment all
that he asked for, both in the circuit court and in the appellate
court. Material Service Corp. v. Department of Revenue, 98 Ill. 2d
382, 385 (1983). It is the appellate court's judgment, and not its
dicta, that is before us on review.
The fact that the appellate court may have suggested in dicta
that an alternative remedy might exist did not ipso facto create an
appealable interest. Dicta is not binding authority under the rule
of stare decisis. Wilson v. The Hoffman Group, Inc., 131 Ill. 2d
308, 324 (1989). As a result, the appellate court's comments as to
the availability of a writ of mandamus can have no effect upon the
action pending in the circuit court.
We also note that the complaint that actually joins the
mandamus issue is currently pending before another tribunal and
involves another party which is not a litigant before this court,
i.e., the Lake County canvassing board. Geer v. Lake County
Canvassing Board, No. 95--MR--368 (Cir. Ct. Lake County). We have
no jurisdiction over that case. Further, Kadera is asking this
court, and not the circuit court where the matter is pending, to
decide whether the mandamus complaint states a cause of action. As
a court of review, we will not rule on a motion to dismiss a
complaint that is pending in the trial court.
Accordingly, we dismiss that portion of the appeal relating to
the mandamus issue.
CONCLUSION
Kadera's admittedly "incorrect" representation of his
residency has so far remained insulated from judicial redress. That
the law abhors a fraud is a truism which requires no citation to
authority. That the law will not tolerate an intruder's usurpation
of office by means of a misrepresentation is an equally venerable
proposition. Today, in affirming the judgment below, we do not
place our imprimatur upon Kadera's actions. We merely decide those
issues which are properly before us for review.
For the foregoing reasons, the judgment of the appellate court
is affirmed.
Appellate court judgment affirmed.