Moore v. Illinois State Board of Elections

2022 IL App (1st) 220783-U

• Court: Appellate Court of Illinois
• Decided: June 23, 2022
• Docket: 1-22-0783
• Status: Unpublished

Opinion

2022 IL App (1st) 220783-U

FIFTH DIVISION June 23, 2022

No. 1-22-0783

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

GREGG MOORE, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) ) v. ) No. 22 COEL 2 ) ILLINOIS STATE BOARD OF ELECTIONS ) and IAN K. LINNABARY, its Chairman, ) Honorable ) Paul Karkula, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE DELORT delivered the judgment of the court. Justices Hoffman and Cunningham concurred in the judgment.

ORDER

Held: We affirm the circuit court’s order dismissing plaintiff’s complaint for lack of jurisdiction because plaintiff, a 2022 General Primary election candidate, filed his nomination papers after the statutory deadline.

¶1 BACKGROUND

¶2 The plaintiff-appellant, Gregg Moore, desired to be a Republican candidate for Governor

in the upcoming June 28, 2022 General Primary election. The defendant-appellee Illinois State

Board of Elections (Board) returned Moore’s nomination papers because the Board received

them through the mail after the statutory deadline. The circuit court of Cook County then No. 1-22-0783

dismissed Moore’s lawsuit seeking relief against the Board. We affirm the judgment of the

circuit court.

¶3 FACTS

¶4 According to his complaint, Moore attempted to file the nomination papers with the

Board’s main office by the March 14, 2022 deadline by traveling to Springfield by train on the

morning of March 14. Upon his arrival in Springfield, Moore did not know how to get from the

train station to the Secretary of State’s office (apparently to file his Statement of Economic

Interests), and then unsuccessfully tried to obtain taxi or ride share transportation to the State

Board of Elections office. Eventually, he arrived at the downtown Springfield post office, and

mailed his nomination papers to the Board at 5:11 p.m.

¶5 On March 17, 2022, a Board attorney sent Moore a letter returning his nomination

papers. The letter explained that the deadline to file nomination papers was March 14, 2022. See

Pub. Act 102-692, § 5 (eff. Jan. 7, 2022) (amending 10 ILCS 5/2A-1.1b); Pub. Act 102-693, § 52

(eff. Jan. 7, 2022) (amending 10 ILCS 5/2A-1.1b). According to the letter, the Board received

Moore’s nomination papers by mail on March 16, 2022, with a postmark of March 14. The letter

cited the Board’s regulation requiring that nomination papers received by mail after the first day

of the filing period “shall be deemed to be filed as of the time they are actually received by the

State Board of Elections.” 26 Ill. Adm. Code § 201.20(c) (2016). Nothing in the letter states that

the Board or any officer thereof had made a reviewable administrative decision.

¶6 On March 24, Moore filed a complaint in the circuit court of Cook County. The

complaint names the Board and its chairman as defendants. The complaint primarily consists of a

rambling, three-page recital of his efforts to file his nomination papers with the Board. As for

relief, Moore requested that the circuit court “reverse” the Board’s decision and place his name

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on the ballot. The record does not contain a full copy of the nomination papers. However,

Moore’s complaint included an exhibit consisting of a small excerpt from the nomination papers.

¶7 On April 26, the Board and its chairman (defendants) filed a combined motion to dismiss

Moore’s complaint pursuant to section 2-619.1 of the Illinois Code of Civil Procedure (735 ILCS

5/2-619.1 (West 2020)). In the section 2-615 portion of the motion, the defendants argued that

the complaint’s allegations, even construed as true, revealed that Moore did not file his

nomination papers by the deadline imposed by the governing statute and its implementing

regulation. These provisions require that the Board receive the nomination papers by the

deadline, not merely that the candidate mail them to the Board by the deadline. The defendants

additionally noted that, as shown by the post office receipt attached to the complaint, Moore did

not place the nomination papers in the mail until 5:11 p.m. on March 14, which itself was after

the Board’s 5:00 closing time. See 26 Ill. Adm. Code § 201.10(b) (2016) (“During the statutory

filing period, petitions will be received at the principal office of the State Board of Elections

from 8:00 a.m. until 5:00 p.m., Monday through Friday. No nominating petitions will be

accepted after 5:00 p.m.”).

¶8 In the section 2-619 portion of the motion, the defendants argued that, because Moore

used a form summons for administrative review cases, his complaint might be construed as

seeking relief under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2020)).

However, the defendants argued, administrative decisions are only appealable under the law if

the governing statute specifically provides for such review, and no governing statute so provided

under the facts presented here. Therefore, they argued, the circuit court lacked subject matter

jurisdiction over Moore’s claim. Additionally, the Board chairman, Ian K. Linnabary, argued that

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he should be dismissed as a defendant because the complaint contained no allegations against

him.

¶9 Moore’s response to the motion was in narrative form, improperly offering additional

facts not pleaded in the complaint. In summary, he argued that he substantially complied with the

deadline, and that it was “unfair” to reject his nomination papers because he mailed them from

Springfield after the deadline, when he could have more easily mailed them from his home in

Broadview on time.

¶ 10 On May 18, the circuit court granted the defendants’ section 2-619 motion to dismiss,

finding that the court lacked subject matter jurisdiction “based upon Plaintiff’s untimely filing of

his nomination papers.” This appeal followed. On its own motion, this court entered an order

establishing an accelerated docket pursuant to Illinois Supreme Court Rule 311(b) (eff. July 1,

2018)), and allowed Moore to file a memorandum in lieu of a brief. Moore did not file his

memorandum on time and filed a brief instead. In the interests of expedition, this court entered a

sua sponte order granting leave for him to file his brief instanter and granting him a fee waiver.

¶ 11 ANALYSIS

¶ 12 On appeal, Moore again recites the difficulties he experienced in obtaining transportation

to the State Board of Elections, and he cites various federal laws which he contends demonstrate

that his filing by mail should be construed as timely. His brief is accompanied by an appendix

which purports to be a copy of the returned nomination papers. However, these materials are not

properly before the court. A party may generally not rely on matters outside the record to support

its position on appeal. Keener v. City of Herrin, 235 Ill. 2d 338, 346 (2009). Thus, if

the materials are not taken from the record, they may not generally be placed before the appellate

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court in an appendix and will be disregarded. Hubeny v. Chairse, 305 Ill. App. 3d 1038, 1042

(1999).

¶ 13 The defendants have not filed a memorandum or brief in this court. After review of

Moore’s brief, it was clear that the circuit court’s order should be affirmed, and that time was of

the essence because early and absentee voting was already underway. Therefore, this court

stayed further briefing and it now waives the requirement for the defendants to file a responsive

memorandum or brief. The record is simple, the circuit court’s order is clear, and the claimed

error is so straightforward that we can easily resolve this appeal without for further argument.

See First Capital Mortgage Corporation v. Talandis Construction Corporation, 63 Ill. 2d 128,

133 (1976).

¶ 14 When we review a dismissal under section 2-619, we accept all well-pleaded facts, and

all reasonable inferences that arise from them, as true. Patrick Engineering, Inc. v. City of

Naperville, 2012 IL 113148, ¶ 31. We review the circuit court’s dismissal of the petition, and

consider whether dismissal was proper as a matter of law, de novo. Kedzie & 103rd Currency

Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993). This court reviews the judgment, not

the reasoning, of the circuit court, and we may affirm on any grounds in the record, regardless of

whether the circuit court relied on those grounds or whether its reasoning was correct. Leonardi

v. Loyola University of Chicago, 168 Ill. 2d 83, 97 (1995).

¶ 15 Section 2A-1.1b(c) of the Election Code provides in pertinent part: “Petitions for

nomination for [statewide offices] for the [2022] general primary election may be filed in the

principal office of the State Board of Elections beginning on March 7, 2022 but no later than

March 14, 2022.” See Pub. Act 102-692, § 5 (eff. Jan. 7, 2022) (amending 10 ILCS 5/2A-1.1b);

Pub. Act 102-693, § 52 (eff. Jan. 7, 2022) (amending 10 ILCS 5/2A-1.1b). The Board’s

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regulations further provide that the Board cannot accept nomination papers filed by mail but

received after 5:00 p.m. on the last day of the filing period. 26 Ill. Adm. Code § 201.10(b)

(2016). This deadline allows the nomination papers to be immediately available for public

inspection as required by section 10-7 of the Election Code (Pub. Act 102-15, § 5 (eff. June 17,

2021) (amending 10 ILCS 5/10-7)), and consequently allow a voter sufficient time to research

file meaningful objections to them by the short five-business-day deadline established by section

10-8 of the Election Code (Pub. Act. 102-15, § 5 (eff. June 17, 2021) (amending 10 ILCS 5/10-

8)). Because the regulation specifically addresses the time and manner of filing nomination

papers for public office, contrary provisions which might permit the timeliness of a filing to be

determined by its postmark, upon which Moore relies, have no relevance to the facts presented in

this case.

¶ 16 There is no dispute that Moore did not meet this deadline. Not only did he not file his

nomination papers at the Board’s offices in person by 5:00 p.m. on March 14, he did not even

mail them until after that deadline had already passed.

¶ 17 As noted above, the circuit court dismissed Moore’s complaint for lack of subject matter

jurisdiction. Inherent in this disposition is a determination that Moore filed a complaint for

administrative review of a Board decision. Although Moore used an administrative review

summons, the words “administrative review” appear nowhere in his complaint, and we do not

believe it should be construed as such. While his prayer for relief requests not that the court

“review” a Board decision, it also requests that the court “compel the Board and its attorney” to

accept his nomination papers and place him on the ballot. Read in the context of the complaint as

a whole, this language, though inartful and confusing, is best characterized as seeking equitable

relief due to exigent circumstances.

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¶ 18 So construed, the complaint failed to state a valid cause of action and was properly

dismissed pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West

2020)). Moore’s main argument on appeal seems to be that the court system can grant

dispensation from the statutory deadline and grant him relief because of exigent circumstances.

However, all of these circumstances were caused by his need to file at the last minute, his lack of

advance planning, and unfortunate need to navigate around the City of Springfield on short

notice without a car.

¶ 19 Those who wait until the last minute take risks, and the law is replete with examples of

litigants who forfeit their rights by failing to accomplish a task on time, even by a few minutes.

The deadline for filing nomination papers is mandatory Courtney v. County Officers Electoral

Board, 314 Ill. App. 3d 870, 876 (2000) (because the statute governing the time of filing of

nomination papers is mandatory, “A statement of candidacy and the nomination petitions must

be filed within the requisite limitations period.”).

¶ 20 Our supreme court’s recent decision in Jackson-Hicks v. East St. Louis Board of Election

Commissioners, 2015 IL 118929, ¶ 34 is instructive on this point. There, a candidate filed

nomination papers which contained only 13 fewer signatures than the required number. Id. ¶ 7.

The candidate argued that he nonetheless filed a sufficient number of signatures to demonstrate

support in the city for his election. Id. ¶ 33. The court summarily rejected this argument,

explaining that such a rule would be “unprecedented, unworkable, and contrary to law” and that

“the power to set the standards for accomplishing those policy considerations is vested in the

General Assembly, not the local election boards or the courts.” Id. ¶ 34. The same analysis

applies here.

¶ 21 CONCLUSION

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¶ 22 We may affirm the judgement of the circuit court on any basis shown in the record. Lake

Environmental, Inc. v. Arnold, 2015 IL 118110, ¶ 16. We therefore affirm the judgment of the

circuit court dismissing the complaint, but on the alternate basis that the complaint failed to state

a cause of action pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615

(West 2020)). The mandate shall issue instanter.

¶ 23 Affirmed.