Alms v. Peoria Cty. Elec. Comm'n

225 N.E.3d 587

2022 IL App (4th) 220976

Karrie E. ALMS and Jessica Thomas, Plaintiffs-Appellants,

v.The PEORIA COUNTY ELECTION COMMISSION; James Manning, in His Capacity as Member and Chair of the Peoria County Election Commission; Matt Bartolo, in His Capacity as Member of the Peoria County Election Commission; Valerie Timms, in Her Capacity as Member of the Peoria County Election Commission; Jeanne Williamson, in Her Capacity as Member of the Peoria County Election Commission; and Ryan Brady, in His Capacity as Member of the Peoria County Election Commission, Defendants-Appellees.

NO. 4-22-0976

Appellate Court of Illinois, Fourth District.

Filed December 21, 2022

Appeal from the Circuit Court of Peoria County, No. 22CH28. Honorable James A. Mack, Judge Presiding.

Justin M. Penn, of Hinshaw & Culbertson LLP, of Chicago, for appellants.

Jodi M. Hoos, State’s Attorney, of Peoria (Jennie Cordis Boswell, Assistant State’s Attorney, of counsel), for appellees.

OPINION

JUSTICE ZENOFF delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Karrie E. Alms and Jessica Thomas, appeal from the trial court’s denial of their second motion for preliminary injunction, which sought to prohibit defendants—the Peoria County Election Commission and James Manning, Matt Bartolo, Valerie Timms, Jeanne Williamson, and Ryan Brady, in their capacities as members of the Peoria County Election Commission (collectively the Election Commission)—from counting the ballots and certifying and declaring the result of a referendum on the November 8, 2022, General Election (November 8 election) ballot in Peoria County. The challenged referendum asked voters whether Peoria County should eliminate the internal office of county auditor.

¶ 2 While this appeal was pending, the November 8 election was held, and the unofficial tally indicated that the voters approved the referendum. Pursuant to the Election Code (10 ILCS 5/22-17(a) (West 2020)), the last day to canvass the results of the referendum was November 29, 2022. Thus, due to the time constraints attendant to this appeal, we entered an order affirming the trial court’s judgment on November 21, 2022. We indicated in our order that we would issue a disposition in due course explaining our reasoning. In accordance with that order, we now explain our reasoning for affirming the trial court’s denial of plaintiffs’ second motion for preliminary injunction.

¶ 3 I. BACKGROUND

¶ 4 On August 11, 2022, the Peoria County Board (Board) approved a resolution to place a referendum on the November 8 election ballot in Peoria County. The referendum read:

"Shall Peoria County eliminate the internal Office of County Auditor when Peoria County already has an external Auditor as required by state law? This would be a cost savings of approximately $150,000 annually."

¶ 5 On August 19, 2022, Peoria County Clerk Rachel Parker intended to submit the approved referendum to the Election Commission, but she inadvertently sent an incorrect draft version that had different language and was never voted on or accepted by the Board. On August 26, 2022, Parker learned of the mistake and submitted the correct version to the Election Commission. The resolution bore a stamp, noting that it was filed with the Election Commission on August 26, 2022. Under the stamp was a handwritten note that stated: "nunc pro tunc for August 22, 2022 at 2:10 p.m."

¶ 6 On September 15, 2022, Alms and Thomas (the current Peoria county auditor) filed a complaint for injunctive and declaratory relief challenging the referendum. In count I, plaintiffs alleged that the referendum could not appear on the November 8 election ballot because it was not timely filed with the Election Commission. In count II, plaintiffs alleged that the language of the referendum was not fair and neutral. In count III, plaintiffs asserted that, if the referendum were permitted to appear on the ballot, then the draft of the referendum that was inadvertently sent to the Election Commission should also appear on the ballot. (After plaintiffs filed their complaint, the ballots were printed with only the Board-approved referendum language. Plaintiffs thus acknowledge that their argument in count III is now moot.)

¶ 7 On September 21, 2022, plaintiffs filed a motion for preliminary injunction and a memorandum of law in support of the motion. Plaintiffs contended that, until the trial court entered a final judgment, the Election Commission should be barred "from printing the ballot *** and from conducting [the] referendum [sic] at the" November 8 election.

¶ 8 In their supporting memorandum, plaintiffs argued that an injunction should be entered because they were likely to succeed on the merits. As to their claim that the referendum was untimely, plaintiffs noted that the Election Code provides that public questions "must be adopted not less than 79 days before a regularly scheduled election to be eligible for submission on the ballot at such election." 10 ILCS 5/28-2(c) (West 2020). Accordingly, plaintiffs argued, the Board was required to file the referendum with the Election Commission by August 22, 2022, but the Board did not do so until August 26, 2022—only 75 days before the November 8 election. Plaintiffs also contended that the Board’s apparent attempt to cure the tardy filing with a "nunc pro tunc" notation did not render it timely.

¶ 9 Regarding their claim that the wording of the referendum was not fair and neutral, plaintiffs argued that its language improperly advocated for a particular result in violation of the free and equal clause of the Illinois Constitution (Ill. Const. 1970, art. III, § 8) and section 9-25.1 of the Election Code (10 ILCS 5/9-25.1 (West 2020)), which prohibits public funds from being used to urge an elector to vote for or against a candidate or proposition.

¶ 10 Plaintiffs further argued that, as voters, they had the right to a free and fair election and that there was no remedy beyond an injunction that would protect that right. Additionally, they noted, without additional explanation, that absent an injunction, their "right to a fair election and one conducted in accordance with the statutory requirements [would be] harmed." Plaintiffs also argued that a balancing of the equities favored relief because, without preliminary injunctive relief, they "would be denied participating in a free and fair election."

¶ 11 On September 29, 2022, the Election Commission filed its response to plaintiffs’ motion for preliminary injunction. The Election Commission first contested that plaintiffs would succeed on the merits. It argued that the referendum was timely because section 28-2(c) required only that the Board "adopt"—as opposed to "file"— the resolution approving the referendum not less than 79 days before the election. According to the Election Commission, because the Board approved the resolution to place the referendum on the ballot on August 11, 2022, the referendum was timely adopted. The Election Commission presented the affidavit of Parker in response to plaintiffs’ claim that the resolution’s "nunc pro tunc" notation was an "attempt to cure" a late filing. In Parker’s affidavit, she explained that the Board approved the referendum on August 11, 2022, and although she intended, on August 19, 2022, to send that referendum to the Election Commission, she inadvertently sent a draft version of the referendum that was never voted on or approved by the Board. Parker stated that, when she learned of the error, she submitted the correct version to the Election Commission. The Election Commission thus argued that the "nunc pro tunc" notation merely corrected a clerical error, and in any event, the referendum was timely adopted on August 11, 2022. As to plaintiffs’ claim that the referendum language was biased, the Election Commission argued that the language was neither inflammatory nor the type of language typically prohibited.

¶ 12 The Election Commission also argued that plaintiffs would not suffer irreparable harm if the referendum passed because plaintiffs had a remedial process for challenging the referendum pursuant to section 23-24 of the Election Code. See 10 ILCS 5/23-24 (West 2020) (stating for questions of public policy submitted to voters of a political subdivision or district, "any 5 electors of *** the political subdivision or district *** may contest the results of any such election by filing a written statement in the circuit court within 30 days after the result of the election shall have been determined") Finally, the Election Commission argued that, since voting had already begun, the burden on defendants if an injunction were granted would substantially outweigh the burden on plaintiffs if the injunction were denied.

¶ 13 On September 30, 2022, following a hearing, the trial court denied plaintiffs’ motion for preliminary injunction. The trial court explained that, because the election had already begun, it was impossible to prohibit the printing of the ballots as requested by plaintiffs. Additionally, the court noted that there was "no way to conclude this prior to the election because *** the election is already underway," and "[a]ll of the arguments that plaintiffs make can be addressed after the election if they need be." The court, noted that plaintiffs’ motion for a preliminary injunction included no request to prohibit the counting of ballots and if they sought such relief in a future motion for preliminary injunction, the court would address it then.

¶ 14 On October 11, 2022, plaintiffs filed their second motion for preliminary injunction and a memorandum of law in support of the motion. The second motion for preliminary injunction raised the same arguments as the first motion for preliminary injunction but asked for different relief. Specifically, plaintiffs asked the trial court to "issue a Preliminary Injunction barring the Election Commission from conducting the referendum [sic] at the [November 8 election],...