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Illinois Supreme Court overturns appellate ruling

September 30, 2009

By Stuart R. Wahlin

Staff Writer

Sept. 24, the Illinois Supreme Court handed down a long-awaited decision that will affect the political makeup of the Winnebago County Board, while also setting a precedent to clarify a contested election statute.

Republican Ted Biondo was appointed in August 2008 to the board seat of the late Mary Ann Aiello (R-9), who’d passed away the previous June 26. Based on the Supreme Court ruling, however, Biondo’s days appear to be numbered on the board, at least for now.

Biondo said he believed his appointment was to fill Aiello’s unexpired term until December 2010.

Democrats, however, seized a little-known election statute as a means to commandeer the seat: “The appointee shall serve the remainder of the unexpired term. However, if more than 28 months remain in the term, the appointment shall be until the next general election, at which time the vacated office shall be filled by election for the remainder of the term.”

Aiello passed away more than 29 months before the end of her term. Loves Park Democrat Carolyn Gardner attempted to file as a candidate for the prescribed Nov. 4 special election in 2008, but Biondo didn’t.

And so began the debate over whether the 28-month rule applied to Aiello’s death, or to when Biondo was appointed to fill the vacancy.

Biondo did not begin serving until there were less than 28 months left in the term.

Although the county board convened in the hours after Aiello’s death, no vacancy was declared until July 10, 2008. Biondo was sworn in the following Aug. 14.

Biondo noted he’d been aware of the 28-month rule from an experience while serving on the Rockford School Board, and that he’d consulted a county attorney for clarification when he’d been offered the District 9 appointment.

Based on the opinion of the state’s attorney’s office, then in the hands of Phil Nicolosi (R), County Clerk Margie Mullins (D) told Biondo no special election was warranted, and that he did not have to file.

Also based on counsel’s opinion, Winnebago County Democratic Party Chairman Dan Lewandowski was turned away more than a year ago when he attempted to file Gardner as a candidate for the District 9 special election.

Last year, Ken Menzel, an election specialist with the Illinois State Board of Elections, told The Rock River Times: “It isn’t when a body gets around to saying, ‘Oh, by the way, we’ve noticed that so-and-so died.’ The death creates the vacancy, so you would time the 28 months back from the end of the term.”

Certain the statute guaranteed a special election under the circumstances, a lawsuit was filed by Lewandowski and fellow Democrat John Nelson on Gardner’s behalf.

Gary Kovanda, then-first deputy state’s attorney, argued, “Those challenging the decision change ‘if more than 28 months remain in the term’ to read ‘if there are more than 28 months from the time of the vacancy until the end of the term.’”

But Judge Ronald Pirrello, a Democrat, ruled otherwise, instructing Mullins to place Gardner on the ballot for the special election. Because Biondo had not attempted to file, however, Gardner would run unopposed.

An appellate ruling the afternoon before the November general election determined there would be no special election for the District 9 seat—despite Gardner appearing on some ballots—because Biondo began serving within the 28-month window.

In the months since, Lewandowski, Nelson and Rene Hernandez were able to argue Gardner’s case before the Illinois Supreme Court, which unanimously rendered its decision to uphold Pirrello’s previous ruling.

The Supreme Court opinion states the election code “unambiguously establishes that the sole triggering event that brings about all of the actions called for in the statute is the occurrence of a vacancy in an elected county office.

“Thus, we hold that under the statute’s plain meaning the date of the vacancy’s occurrence is the proper point in time from which to calculate the remaining term,” the ruling notes.

“Biondo’s interpretation of the statute would provide an increased opportunity for political manipulation and could work to intentionally delay the election of a replacement,” the opinion continues. “By calculating the time remaining in the term from the date of the occurrence of the vacancy, the ability to manipulate the process is diminished, and the apparent purpose of the legislature, to favor elected over appointed representatives, is better served.”

Now, the matter is back in Pirrello’s hands. According to Lewandowski, Gardner will seek certification of the votes she received in the nullified special election, thereby declaring the seat hers.

“Carolyn Gardner is pleased with the court’s decision and certainly agrees with its interpretation of the election code,” Lewandowski said in a press release. “The people deserve an elected representative, and will now get one.”

Despite rumors Gardner no longer lives in the district, Democrats say Gardner resides with her sister in District 9.

When Mullins called Biondo’s name during the Sept. 24 county board meeting roll-call, he responded, “Present, for now.”

Biondo, also a Rock Valley College trustee, plans to run for the county board seat in 2010.

Despite losing a seat as a result of the ruling, Republicans still hold a 15-13 edge on the county board.

From the September 30 – October 6, 2009 issue.

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