2021 IL App (1st) 201298-U
Ill. App. Ct.2021Background
- Plaintiff Joseph Makula submitted a petition (1,147 signatures) proposing that the five-member Village of Niles Ethics Board be elected rather than appointed; petition delivered Nov. 4, 2019.
- Village Clerk Marlene Victorine waited ~8 months and then (July 13, 2020) refused to certify the question for the Nov. 3, 2020 ballot, stating the board members were not public officeholders and the petition was not in apparent conformity with the Election Code.
- Makula filed a verified complaint for mandamus on Aug. 12, 2020, alleging the petition met signature requirements, no objections were filed, and the Clerk exceeded her limited review authority under 10 ILCS 5/10-8 by refusing to certify.
- The Clerk moved to dismiss, asserting laches (delay prejudiced certification deadlines), and arguing the referendum sought an impermissible change (ethics board membership/committee structure) beyond electors’ power.
- The circuit court denied the motion, entered a writ of mandamus directing certification for the next regular election (April 6, 2021), and the Clerk appealed; the Clerk still placed the question on the April 6 ballot pending appeal.
- On appeal the court affirmed: (1) the Clerk’s election-date delay did not bar placing the question at the next election, (2) laches did not apply, and (3) the petition was facially in apparent conformity and therefore had to be certified under section 10-8.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petition limited to a specified election (10 ILCS 5/28-2(d)) prevents certification for a later election | Makula: delays caused by Clerk made Nov. 3, 2020 impossible; petition may be placed at next election | Victorine: specifying Nov. 3, 2020 limits petition to that election only | Court: section is directory; because delay was Clerk’s, petition may be certified for the next proper election (April 6, 2021) |
| Whether laches bars mandamus | Makula: filed <1 month after Clerk’s denial; Clerk caused delay | Victorine: plaintiff waited nearly a month and missed statutory certification deadlines, prejudicing election | Court: plaintiff acted diligently; Clerk’s eight-month delay undercuts laches; defense fails |
| Whether petition’s subject (changing selection of ethics board) is an improper matter for referendum under State Constitution / municipal law | Makula: ethics board members display characteristics of public office; electors may change manner of selection via referendum | Victorine: ethics board is advisory/committee (created by ordinance), not public office; electors cannot dictate committee creation/membership | Court: Clerk failed to show the petition was facially improper; Municipal Code/Constitutional objections unpersuasive on the face of the petition |
| Whether Clerk had duty to certify under 10 ILCS 5/10-8 or could refuse after limited facial review | Makula: 10-8 limits review to apparent facial defects; petition met signature and form requirements so must be certified | Victorine: she properly exercised discretion to find nonconformity because petition sought an impermissible result | Court: under 10-8 Clerk is limited to face of petition; no fatal facial defect shown, so certification was required; mandamus proper |
Key Cases Cited
- McFatridge v. Madigan, 2013 IL 113676 (Illinois Supreme Court mandamus standards)
- People v. Latona, 184 Ill. 2d 260 (1998) (writ of mandamus is discretionary)
- Tully v. Illinois, 143 Ill. 2d 425 (1991) (doctrine and purpose of laches)
- North v. Hinkle, 295 Ill. App. 3d 84 (1998) (apparent conformity review limited to petition face)
- Haymore v. Orr, 385 Ill. App. 3d 915 (2008) (examples of fatal facial defects in petitions)
- Baldacchino v. Thompson, 289 Ill. App. 3d 104 (1997) (ministerial vs. discretionary duties for mandamus)
- Matter of South Prairie Park District, 224 Ill. App. 3d 614 (1992) (directory vs. mandatory reading of Election Code election-date provision)