Washington v. Winston

2021 IL App (1st) 210225-U

• Court: Appellate Court of Illinois
• Decided: March 12, 2021
• Docket: 1-21-0225
• Status: Unpublished

Opinion

2021 IL App (1st) 210225-U

FIFTH DIVISION MARCH 12, 2021 No. 1-21-0225

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 ______________________________________________________________________________ RICKIRA WASHINGTON, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) v. ) ) ADAM WINSTON, ) ) No. 21 COEL 22 Defendant-Appellant, ) ) Honorable (KAREN YARBROUGH, in her official capacity as Cook ) Paul Karkula, County Clerk, Defendant). ) Judge Presiding. ) )

JUSTICE CUNNINGHAM delivered the judgment of the court. Presiding Justice Delort and Justice Hoffman concurred in the judgment.

ORDER

¶1 Held: When an election authority fails to abide by a ballot forfeiture order issued by the State Board of Elections, a voter in the subject election has standing to seek a writ of mandamus to compel the election authority to remove the barred candidate’s name from the ballot. The circuit court of Cook County did not err in issuing an order commanding an election authority to comply with her ministerial, non-discretionary obligation to obey the State Board’s ballot forfeiture order. 1-21-0225

¶2 BACKGROUND

¶3 In 2016, defendant-appellant, Adam Winston created a campaign committee under Article

9 of the Election Code (10 ILCS 5/9-1 et seq. (West 2018), designated as “Support for Adam

Winston,” to promote his candidacy for village president of the Village of Glenwood. Mr. Winston

served as both chairman and treasurer of the committee. Mr. Winston’s committee failed to file

several required periodic financial reports for the committee. Through a series of orders entered

between 2017 and 2020, the State Board of Elections (State Board) imposed civil penalties totaling

$11,925 against the committee. Included in six of the State Board’s notices sent to Mr. Winston

during that period of time were admonitions stating: “If this is a candidate Committee,” then the

candidate (Mr. Winston) was “subject to ballot forfeiture pursuant to section 9-30 of the Election

Code. *** As such, the name of your committee’s candidate shall not appear upon any ballot for

any office in any election while the penalty is unpaid.” Because Mr. Winston failed to pay these

penalties, the State Board issued a ballot forfeiture order pursuant to 10 ILCS 5/9-30 (West 2018)

stating that Mr. Winston’s name could not be printed on the ballot for any office. Shortly before

the 2021 election cycle began, the State Board issued a ballot forfeiture list to all election

authorities in the state, including Karen Yarbrough the Cook County Clerk, stating that Mr.

Winston’s committee had an outstanding civil penalty of $11,925 and that his name could not be

placed on the ballot.

¶4 The office of village president is on the upcoming April 6, 2021 Consolidated Election

ballot in Glenwood, and Mr. Winston filed nomination papers to be a candidate for that office. On

or about January 28, 2021, the village clerk of the Village of Glenwood certified a list of candidates

running in the April 6, 2021 Consolidated Election to the Cook County Clerk, defendant Karen

Yarbrough. See 10 ILCS 5/7-13.1 (West 2018) (requiring local election officials to certify

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candidates to the election authority no less than 68 days before the election). That list included

the name of Mr. Winston as a candidate for village president. The State Board had issued its ballot

forfeiture order regarding Mr. Winston at some time before the village clerk issued the certification

of the April 6, 2021 Consolidated Election ballot. Also, as of the date of certification, Mr. Winston

had never requested a hearing before the State Board to resolve his delinquency and ballot

forfeiture.

¶5 On February 16, 2021, plaintiff-appellee Rickira Washington, a Glenwood voter and

taxpayer, filed a three-count complaint in the circuit court of Cook County. The complaint recited

the basic facts regarding Mr. Winston’s committee, the State Board’s forfeiture order, and Mr.

Winston’s current candidacy. The complaint also recited that, on information and belief, Clerk

Yarbrough had not followed the dictates of the State Board’s forfeiture order and had listed Mr.

Winston’s name on the ballot for the subject election. Count I of the complaint requested a writ of

mandamus against Clerk Yarbrough commanding her to remove Winston’s name from the ballot.

Count II requested a declaratory judgment that Clerk Yarbrough was required to follow the State

Board’s forfeiture order regarding Mr. Winston and not list him on the ballot. Count III requested

temporary and permanent injunctive relief against Clerk Yarbrough to require her to remove Mr.

Winston’s name from the ballot.

¶6 The plaintiff Rickira Washington moved for summary judgment, relying primarily on

various undisputed governmental records which memorialized Mr. Winston’s reporting

delinquencies and the State Board’s actions. The plaintiff argued that, based on these actions, Clerk

Yarbrough had a clear ministerial duty and authority to exclude Mr. Winston’s name from the

ballot.

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¶7 Clerk Yarbrough filed a cross-motion for summary judgment, arguing that the plaintiff had

no standing as a taxpayer and voter to seek a writ of mandamus against her, and that there was no

private right of action under section 9-30 of the Election Code. Further, Clerk Yarbrough stated

that she exercised discretion in refusing to abide by the State Board’s order, because of a temporary

restraining order issued on August 26, 2004 by the circuit court of Cook County in the case of

Temple v. Illinois State Board of Elections, case no. 2004 CH 13939. Clerk Yarbrough appended

a copy of the temporary restraining order to her motion but did not provide a copy of the complaint

to provide appropriate context. The Temple order stated that the plaintiff had shown a likelihood

of success on the merits of a claim that sections 9-10 and 9-30 of the Election Code “violates

various provisions of the Illinois constitution”. The order noted that the candidate at issue was

running for the position of Representative in the General Assembly, an office for which the

qualifications for candidates are set forth in the state constitution—unlike the village president

position at issue here, where the qualifications for candidates are set forth solely in state statutes.

The Temple order continued the matter for status on a future date, and the record before us is silent

as to what occurred later when the case ran its natural course. Thus, it is unclear what Clerk

Yarbrough’s citation of Temple was intended to illustrate.

¶8 Mr. Winston filed a motion to dismiss pursuant to section 2-619 of the Illinois Code of

Civil Procedure (735 ILCS 5/2-619 (West 2018)), and combined that motion with his response to

Mr. Washington’s summary judgment motion. He also adopted Clerk Yarbrough’s cross-motion

for summary judgment by reference. Mr. Winston argued that plaintiff Washington lacked

standing as a taxpayer and that only the State Board or the Illinois Attorney General could have

sought relief against Clerk Yarbrough for disobeying the State Board’s ballot forfeiture order.

Further, he noted that he did not receive certain State Board notices because he was in the midst

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of a divorce and had not corrected the address for his campaign committee in the State Board’s

records; and that he would pay a settlement amount to resolve the outstanding civil penalties,

subject to approval at the next upcoming State Board meeting.

¶9 On March 2, the circuit court of Cook County entered an order: (1) granting plaintiff

Washington’s motion for summary judgment; (2) denying Mr. Winston’s motion to dismiss; (3)

denying Clerk Yarbrough’s cross-motion for summary judgment; (4) reciting that “It is undisputed

that Defendant Winston owed $11,925 in civil penalties to the Illinois State Board of Elections

before and on the date of certification of the April 6, 2021 consolidated election ballot” and “The

Clerk received the ballot forfeiture list from the Illinois State Board of Elections pursuant to 10

ILCS 5/9-30 and the name of Defendant Winston should not have been placed upon the April 6,

2021, consolidated election ballot”; and (5) ordering that Mr. Winston’s name not appear on the

¶ 10 Mr. Winston appealed, but Clerk Yarbrough did not. On March 4, 2021, this court granted

Mr. Winston’s motion for an accelerated resolution, pursuant to Ill. Sup. Ct. R. 311(b) and set a

briefing schedule under which the record and briefs were to be filed over the course of the next

five days. On March 5, this court granted Mr. Winston’s motion for stay in part, halting early

voting and mailing of ballots for Village of Glenwood voters pending further order of this court.

On the same day, this court denied plaintiff Washington’s motion to dismiss without prejudice,

Mr. Winston’s alleged lack of standing to appeal. However, plaintiff Washington was allowed to

raise the issue in her brief, which she did.

¶ 11 ANALYSIS

¶ 12 On appeal, Mr. Winston does not dispute any of the underlying facts. Instead, he contends

that the circuit court erred in ordering Clerk Yarbrough to remove him from the ballot because: (1)

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the administrative procedures set forth in Article 9 of the Election Code provided the sole remedy

for one aggrieved by an election authority’s failure to abide by a ballot forfeiture order issued by

the State Board; and (2) plaintiff, Washington did not have standing to seek enforcement of the

ballot forfeiture order.

¶ 13 Before we address Mr. Winston’s assignments of error, we first address Ms. Washington’s

contention that Mr. Winston’s appeal should itself be dismissed for lack of standing. See In re

Marriage of Nienhouse, 355 Ill. App.3d 146, 149 (2004) (“The existence of an actual controversy

is an essential requisite to appellate jurisdiction, and courts of review will generally not decide

abstract, hypothetical, or moot questions.”). The issue of standing presents a question of law which

we review de novo. Malec v. City of Belleville, 384 Ill.App.3d 465, 468 (2008). Plaintiff

Washington argues that this case is essentially only against Clerk Yarbrough, the only party having

the authority over ballot printing and issuance, and that Clerk Yarbrough has chosen not to appeal.

Plaintiff Washington further notes that she named Mr. Winston as a defendant only out of an

abundance of caution.

¶ 14 Putting aside the fact that it seems disingenuous to name an individual as a defendant and

then state that the individual has no standing to appeal a judgment adverse to him, we find no merit

to this argument. “The doctrine of standing is designed to preclude persons who have no interest

[in] a controversy from bringing suit. The doctrine assures that issues are raised only by those

parties with a real interest in the outcome of the controversy.” Glisson v. City of Marion, 188 Ill.

2d 211, 221 (1999). Standing in Illinois requires “some injury in fact to a legally cognizable

interest.” Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492 (1988). The

purpose of the doctrine of standing is to ensure that courts resolve actual controversies between

parties rather than abstract questions or moot issues. Owner–Operator Independent Drivers Ass’n.

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v. Bower, 325 Ill. App. 3d 1045, 1050 (2001). An actual controversy exists with respect to a

particular party when the underlying facts of the case demonstrate “a concrete dispute that admits

of an immediate and definitive determination of the party’s rights.” Id. at 1050.

¶ 15 As noted above, there are three counts to the complaint and the mandamus count is only

one of them. While Clerk Yarbrough is a necessary party because of her ministerial role in

preparing ballots for the election, Mr. Winston is the real party in interest because the gravamen

of the case is that he should be declared ineligible to run in the upcoming election. Accordingly,

Mr. Winston clearly has standing to appeal the judgment which removed him from the ballot.

¶ 16 We next review the merits of Mr. Winston’s appeal. Summary judgment is appropriate “if

the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” 735 ILCS 5/2-1005(c) (West 2018). Summary judgment is a drastic measure

and should only be granted when the moving party's right to judgment is “clear and free from

doubt.” Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

“Where a reasonable person could draw divergent inferences from undisputed facts, summary

judgment should be denied.” Id. “We review a trial court’s entry of summary judgment de novo.”

Outboard Marine Corp., 154 Ill. 2d at 102.

¶ 17 Mr. Winston challenges plaintiff Washington’s standing to seek relief regarding Mr.

Winston’s candidacy. In Kluk v. Lang, our supreme court rejected a similar challenge to a case

brought by a voter. The two plaintiffs in Kluk were a rival candidate to a state legislative seat and—

importantly here—a voter who was not involved in the dispute over the legislative seat. The court

explained:

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“In the present case, plaintiffs allege that their right to be represented by a duly elected

legislator is violated by operation of the challenged statute. Lang does not dispute that there

is an actual controversy. He merely asserts that plaintiffs lack sufficient interest in it. Yet,

the fact that plaintiffs share their right of representation with other voters in the district

does not mean that the right is any less personal. The essence of the democratic voting right

is that it is equally and separately vested in each member of the electorate. The right to vote

is not a common right of the public, such as the beneficial interest in property held in public

trust, or the assurance that public funds will be expended lawfully. Rather, the voting right

is by definition capable of being exercised individually by each voter; indeed, this is its

genius. The right to be represented is intertwined with the right to vote and is likewise

personal to each voter.”

Kluk v. Lang, 125 Ill. 2d 306, 317 (1988). In a similar vein, our supreme court has often found that

taxpayers or voters have standing to seek relief to enjoin the improper placement of referenda on

ballots. See e.g., Chicago Bar Assoc. v. State Bd. of Elections, 137 Ill. 2d 394 (1990). Accordingly,

we find that plaintiff Washington has standing to bring this lawsuit.

¶ 18 Mr. Winston also argues that the circuit court of Cook County lacked subject matter

jurisdiction over plaintiff Washington’s claim because her exclusive remedy was through the

administrative procedures established in Article 9 of the Election Code. Section 9-30 of the

Election Code (10 ILCS 5/9-30 (West 2018)) states:

“Ballot forfeiture. The State Board of Elections shall not certify the name of any person

who has not paid a civil penalty imposed against his or her political committee under

[Article 9 of the Election Code] to appear upon any ballot for any office in any election if

the penalty is unpaid by the date required for certification. The State Board of Elections

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shall generate a list of all candidates whose political committees have not paid any civil

penalty assessed against them under this Article. Such list shall be transmitted to any

election authority whose duty it is to place the name of any such candidate on the ballot.

The election authority shall not place upon the ballot the name of any candidate appearing

on this list for any office in any election while the penalty is unpaid, unless the candidate

has requested a hearing and the Board has not disposed of the matter by the date of

certification.”

¶ 19 No party argues that section 9-30 is ambiguous. It is written in mandatory terms, using the

word “shall” four times. “The use of the word ‘shall’ generally indicates that the legislature

intended to impose a mandatory obligation.” Schultz v. Performance Lighting, Inc., 2013 IL

115738, ¶ 16, citing People v. Boeckmann, 238 Ill. 2d 1, 15–16 (2010) and Holly v. Montes, 231

Ill.2d 153, 160 (2008). Moreover, the provision dictating a specific consequence for violation of

the statute is additional evidence that the ballot forfeiture rule is mandatory. Id., citing In re M.I.,

2013 IL 113776, ¶ 16.

¶ 20 Article 9 of the Election Code provides a comprehensive process for the disclosure of

campaign contributions and expenditures. See generally 10 ILCS 5/9-1 et seq. (West 2018).

Likewise, the Article establishes a system whereby “any person” may file a complaint with the

State Board alleging a violation of the campaign contribution and expenditure rules. 10 ILCS 5/9-

20 (West 2018). One common example is a complaint against a committee alleging that it failed

to accurately report contributions. See, e.g., Cooke v. Illinois State Bd. of Elections, 2019 IL App

(4th) 180502. Upon receiving a complaint, the State Board conducts an administrative hearing

regarding the violation and issues a final order which may be appealed directly to this court. 10

ILCS 5/9-22 (West 2018). Mr. Winston suggests that this procedure was the sole route through

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which plaintiff Washington could have obtained the relief she seeks in this case. Essentially, he

argues that Washington should have filed an Article 9 complaint with the State Board and sought,

as a remedy, an order from the State Board—in turn—ordering Clerk Yarbrough to remove Mr.

Winston’s name from the ballot. However, this argument is circular because that result has already

been obtained.

¶ 21 Mr. Winston already had ample opportunities to obtain a hearing regarding his delinquent

reports. Over the years, the State Board sent numerous notices to the address which it had for Mr.

Winston’s committee. However, Mr. Winston claims not to have received those notices, as it

seems he neglected to update the address with the State Board’s records. Thus, his failure to attend

to these essential matters including the notices resulted in a final State Board order directing that

his name not appear on any ballot until his civil penalties were paid. The ballot forfeiture penalty

in section 9-20 is triggered only after the State Board has “imposed” a “civil penalty” which

remains unpaid after the date of certification. 10 ILCS 5/9-20 (West 2018). When the State Board

imposes such a civil penalty, it does so through a final administrative order which itself may be

appealed to this court under the Administrative Review Law. 10 ILCS 5/9-21, 9-22 (West 2018).

The ballot forfeiture order is simply the end result of those proceedings, not a starting point to

commence a duplicative round of proceedings. The State Board has already done what it needed

to do and provided Mr. Winston with opportunities consistent with due process to remedy his

situation. In sum, we are not persuaded by Mr. Winston’s argument that plaintiff Washington was

required to a do a useless act. See Neely v. Coffey, 81 Ill. 2d 439, 445 (1980) quoting Leitch v.

Sanitary Dist. of Chicago, 386 Ill. 433 (1944) (“It is a well-recognized rule that equity will not

require the performance of a useless act.”). We therefore find that the circuit court of Cook County

had subject matter jurisdiction over plaintiff Washington’s complaint and that she was not required

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to proceed under Article 9. Thus, rather than relying on Article 9, as the mechanism to seek relief,

it was appropriate for her to bring this action in the circuit court of Cook County, under the facts

presented.

¶ 22 Based on the undisputed facts of this case, Clerk Yarbrough had a ministerial, non-

discretionary duty to implement the village’s ballot certification with Winston’s name omitted.

Accordingly, the circuit court of Cook County, did not err in granting plaintiff Washington’s

motion for summary judgment and denying Clerk Yarbrough’s cross-motion for summary

judgment in which Mr. Winston joined.

¶ 23 CONCLUSION

¶ 24 Accordingly, we affirm the judgment of the circuit court of Cook County. The partial stay

entered by this court on March 5, 2021 is dissolved. The mandate shall issue instanter.

¶ 25 Affirmed.

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