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Thursday, February 26, 2015

Service of Election Appeal Must be By Certified or Registered Mail

Another election case - it's a busy time for the courts!

The Illinois Appellate Court for the First District recently ruled that strict compliance with the service requirements of the Election Code relating to judicial review of an electoral board decision is mandatory.  In Bey v. Brown, 2015 IL App (1st) 150263, the Chicago Electoral Board issued a decision removing an alderman candidate from the ballot based on finding an "appearance of fraud" in the witnessing of the signing of the nominating petitions.  The candidate filed a petition for judicial review with the circuit court within the statutorily required 5 day period.  The objector filed a motion to dismiss, alleging that the candidate did not properly serve the parties by registered or certified mail as required by 10-10.1 of the Election Code. The circuit court agreed, and dismissed the case for lack of jurisdiction.

On appeal, the appellate court reviewed section 10-10.1, which requires the party seeking judicial review to serve a copy of the petition on the electoral board and the parties "by registered or certified mail within 5 days after service of the decision by the electoral board..."  In this case, the evidence showed that the candidate served the petition on the parties within the 5 day period by regular mail and hand delivery, but not by certified or registered mail.  The only evidence of a certified mailing was on January 22, 2015 - more than a week after the circuit court dismissed the case for lack of jurisdiction.  As the appellate court noted in its ruling, sending the petition by certified mail on January 22 "is like closing the barn door when the horse is already a mile down the road.  It is just too late."  Because the candidate failed to strictly comply with the service requirements, the candidate's petition for judicial review of his removal from the ballot was upheld.

Some may remember that a couple of months ago we reported on an Illinois Supreme Court case that interpreted the judicial review service requirement.  In Bettis v. Marsaglia, the Illinois Supreme Court addressed the issue of whether section 10-10.1 requires  a petitioner to serve each individual member on the electoral board, as well as the entity itself?  The Supreme Court said no, reversing the Fourth District and adopting the Third and Fifth District's position that service on the individual members is sufficient to provide jurisdiction to the courts to hear the appeal of an electoral board decision.  The Court did not address the requirement that service must be by registered or certified mail, however.

Post Authored by Julie Tappendorf


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