Judge Pirrello: Biondo out, Gardner in

By Stuart R. Wahlin

Staff Writer

More than a year after a would-be special election was to be held for the remaining two years of the late Mary Ann Aiello’s (R-9) unexpired term on the Winnebago County Board, Democrats say justice has been done.

Winnebago County Democratic Party Chairman Dan Lewandowski applauded a Nov. 25 ruling by Judge Ronald Pirrello (D) to install Loves Park Democrat Carolyn Gardner in place of Ted Biondo (R-9), who said he believed his appointment to Aiello’s seat didn’t expire until December 2010.

“The will of the people will finally be honored,” Lewandowski asserted, despite the voters’ lack of a choice for the seat in the November 2008 general election.

Advised by then-State’s Attorney Phil Nicolosi’s (R) office that no special election was warranted, Biondo never attempted to file as a candidate, but Gardner did.

Aiello passed away June 26, 2008, from cancer. That evening, her fellow board members convened for a regular meeting, but no vacancy was declared until July 10—two weeks after Aiello’s death.

Biondo was appointed to fill the vacancy Aug. 14, 2008, but the dates of the vacancy and the appointment soon brought the partisan bickering to Judge Pirrello’s courtroom.

Lawyers for both sides wrestled with an Illinois election statute that states: “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, Democratic lawyers noted, arguing that’s when the vacancy occurred, regardless of when one was officially declared or filled.

But Biondo said he couldn’t possibly begin serving the remainder of the term until his August 2008 appointment, which fell within the 28-month window.

While considering whether to accept the appointment, Biondo told The Rock River Times, he’d been aware of the 28-month rule from a previous experience on the Rockford Board of Education. Biondo said he consulted county counsel about the issue, but was advised he wouldn’t have to file for a special election.

Meantime, Democrats stood by the little-known statute and attempted to place Gardner on the ballot. Based on the opinion from the state’s attorney’s office, however, there was resistance to the notion of a special election.

As a result, Lewandowski and fellow Democratic attorney John Nelson filed a lawsuit on Gardner’s behalf. Judge Pirrello ordered Gardner’s name to be placed on the ballot, but because Biondo had made no attempt to file as a candidate, his name would be absent.

Late in the afternoon on the eve of the November 2008 elections, an appellate court overturned Pirrello’s ruling, deciding no special election was to be held.

With the appellate decision coming just hours before the Nov. 4, 2008, general elections, some ballots still had Gardner’s name on them. Although not counted at the time, what few votes Gardner received would later be certified.

Democrats took the issue to the Illinois Supreme Court, which ruled Sept. 24 that Judge Pirrello’s initial order had been correct. Despite arguments that the statute is obscure, the Illinois Supreme Court unanimously agreed the law is clear.

In its opinion, the court stated 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 opinion asserted.

“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 court added. “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.”

The Illinois Supreme Court sent the matter back to Judge Pirrello, who ruled Nov. 25 that Biondo is to vacate the District 9 seat, and that Gardner be sworn in immediately. She is expected to be seated at the Dec. 10 Winnebago County Board meeting.

With Gardner replacing Biondo, the Republican majority on the board has been reduced from 16-12 to 15-13. Had Gardner been elected last November, instead of Biondo holding the seat, it is not believed any county b-oard decisions would have had different outcomes, however.

Dec. 4, Gardner’s attorneys will ask plaintiffs in the case to cover their fees, as well as discuss the issue of back pay for Gardner.

Meantime, Biondo, also a Rock Valley College trustee, will fight to retake the seat from Gardner in the November 2010 general election.

From the December 2-8, 2009 issue