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Wednesday, November 20, 2013

Electoral Board Must Be Separately Served in Lawsuit

In another example of a court's strict application of the election code to election challenges, a court recently dismissed a case because the plaintiff failed to serve the electoral board with a copy of her petition for judicial review. Bettis v. Marsaglia, 2013 IL App (4th) 130145 (Nov. 13, 2013).
Plaintiff filed a lawsuit seeking to overturn an electoral board's decision that struck a referendum petition she filed regarding a school district's issuance of bonds.  In the caption of her petition for judicial review, she had only named the objectors, but not the electoral board or its members.  The objectors filed a motion to dismiss with the court, alleging that the court lacked subject matter jurisdiction because plaintiff failed to name and join the electoral board and its members as required by the Election Code.  The trial court agreed and dismissed her case.
On appeal, the court first rejected defendant's mootness argument, finding that the issues were a matter of public concern and likely to recur.  Second, the court analyzed the language of Section 10-10.1(a) of the Election Code, finding that although it does not require that the caption of the complaint name the electoral board and its members, it does expressly require that a petitioner "serve a copy of the petition upon the electoral board and other parties." 
In this case, plaintiff did not serve the electoral board itself, but only served a copy of the petition for judicial review on the individual members of the electoral board were served. The court acknowledged that there was a split in the various appellate districts as to whether the electoral board itself must be separately sued.  The First District has interpreted this section to require service of the Electoral Board, while the Fifth District has ruled that it was unnecessary to separately serve the electoral board.  The Fourth District reasoned that the First District's interpretation was the correct one, and determined that plaintiff did not strictly comply with the election code requirement that the electoral board be separately served.

The Municipal Minute blog is authored by Julie Tappendorf, a partner at the Ancel Glink law firm, and provides timely updates on a variety of topics of interest to municipalities and local governments.


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