According to the Election Code, anyone wishing to get judicial review of a decision of an electoral board must “serve a copy of the petition upon the electoral board and other parties to the proceeding . . .”
But how do you do that – particularly when the electoral board has no permanent offices? That was the question facing the Illinois Supreme Court last month in Bettis v. Marsaglia. In an opinion by Justice Thomas for a six-Justice majority, the Court held that the petitioner had complied with the statute, vesting jurisdiction in the Circuit Court, by serving a copy of her petition on every member of the board. Our detailed summary of the underlying facts and lower court opinions in Bettis is here. Our report on the oral argument is here.
In November 2012, the school district adopted a resolution stating that it was going to issue two million dollars in working cash bonds. The petitioner filed a petition with the district, asking that the matter be referred to the voters. Two parties filed objections to the petition on various grounds, including that the sheets of the petition weren’t numbered or securely bound. The electoral board sustained the objections.
Petitioner filed a petition for judicial review. By certified mail, she served all three members of the electoral board, the counsel for the board, counsel for the objectors and the secretary for the district itself. The defendants moved to dismiss for lack of jurisdiction, arguing that the petitioner had failed to name and join the Board and its members. The court agreed and tossed the petition out of court. The Appellate Court affirmed on somewhat different grounds, concluding that the petitioner’s failure to serve the electoral board as an entity meant she hadn’t complied with the statute, and thus the lower court had never been vested with jurisdiction.
The Supreme Court reversed. The Court began with the question of mootness. Election petitions are good for one election only, and the election referred to in the petitioner’s petition had long since come and gone. Nevertheless, the Court held that two issues – whether the board must be served as an entity, and whether the board must be a named party to the review proceeding – qualified for review under the public interest exception to the mootness doctrine, which permits review of otherwise moot issues when the issue is of substantial public interest and likely to recur.
Turning to the statute, the Court commented that the issue was not one of strict versus substantial compliance. No one denied that strict compliance with the statute was necessary for jurisdiction to vest, but how did one strictly comply – how is “the board” served? After reviewing the split in the Appellate Court on the issue, the Court concluded that the statutory language was unclear and required construction.
The Court ultimately concluded that service on the individual members constituted service on the board for three reasons. First, requiring service on the board as an entity once the members have been served would be “entirely duplicative.” The Court observed that it would be hesitant to endorse a redundant requirement unless the statute plainly required it, and “we do not believe that it does.” Second, the Court cited Section 10-9(5) of the Code, 10ILCS 5/10-9(5), which defines the “board” as “the presiding officer of the school or community college district board . . . the secretary of the school or community college district board and the eligible elected school or community college board member who has the longest term of continuous service.” All those individuals had been served by the petitioner, the Court pointed out: “As petitioner states in her brief, she served everyone she could possibly think of to serve.”
Finally, the Court noted that ballot access is a “substantial right not lightly to be denied.” That consideration added extra weight, in the majority’s view, to its decision to choose an interpretation of the statute that simplified procedures.
The Court next turned to the defendants’ cross-appeal argument that the dismissal was proper because the petitioner failed to name the board as a party or attach a copy of the board’s decision to her petition. Although the districts of the Appellate Court are split on the question of whether the board must be named, the Court dealt with the issue in short order, holding that since the language of the Code didn’t require it, naming the board as a party to the review proceeding was unnecessary.
Justice Theis dissented. She argued that the language of the statute was perfectly clear, and the court had no right to add the word “members” to the statutory language requiring service on the “board.” Justice Theis pointed out that even in jurisdictions where the board has no permanent office, the Code requires that it meet either at the county courthouse or where the governing body of the school district meets. The petitioner could have served the electoral board at either place. Finally, Justice Theis disputed the majority’s view that allowing the petitioner to serve three individuals at their home addresses, rather than one entity at its meeting place, simplified procedure. Justice Theis concluded by inviting the legislature to amend the statute if the majority’s decision was not consistent with its intent.