Cook County Republican Party v. State Board of Elections

Opinion

SIXTH DIVISION December 18, 2009

Nos. 1-05-3407, 1-05-3408, 1-05-3409, 1-05-3410, 1-05-3411, 1-05-3412, 1-05-3413, 1-05-3414, 1-05-3415 and 1-05-3416, Consolidated

COOK COUNTY REPUBLICAN PARTY, by Gary J. ) Petition for Review from Skoien, Chairman, ) the Illinois State Board ) of Elections Petitioner-Appellant, ) ) v. ) ) No. 05 CD 44 THE STATE BOARD OF ELECTIONS and 4th WARD ) DEMOCRATIC ORGANIZATION, ) ) Respondents-Appellees. )

COOK COUNTY REPUBLICAN PARTY, by Gary J. ) Petition for Review from Skoien, Chairman, ) the Illinois State Board ) of Elections Petitioner-Appellant, ) ) v. ) ) No. 05 CD 45 THE STATE BOARD OF ELECTIONS; 5TH WARD ) REGULAR DEMOCRATIC ORGANIZATION; and ) LESLIE A. HAIRSTON, Chairman and Committeeman, ) ) Respondents-Appellees. ) COOK COUNTY REPUBLICAN PARTY, by Gary J. ) Petition for Review from Skoien, Chairman, ) the Illinois State Board ) of Elections Petitioner-Appellant, ) ) v. ) ) No. 05 CD 46 THE STATE BOARD OF ELECTIONS and 7TH WARD ) DEMOCRATIC ORGANIZATION, ) ) Respondents-Appellees. )

COOK COUNTY REPUBLICAN PARTY, by Gary J. ) Petition for Review from Skoien, Chairman, ) the Illinois State Board ) of Elections Petitioner-Appellant, ) ) v. ) ) No. 05 CD 47 THE STATE BOARD OF ELECTIONS and ANTHONY ) BEALE, 9th Ward Democratic Committeeman, ) ) Respondents-Appellees. )

COOK COUNTY REPUBLICAN PARTY, by Gary J. ) Petition for Review from Skoien, Chairman, ) the Illinois State Board ) of Elections Petitioner-Appellant, ) ) v. ) ) No. 05 CD 50 THE STATE BOARD OF ELECTIONS and THEODORE ) THOMAS, 15th Ward Democratic Committeeman, ) ) Respondents-Appellees. )

2 COOK COUNTY REPUBLICAN PARTY, by Gary J. ) Petition for Review from Skoien, Chairman, ) the Illinois State Board ) of Elections Petitioner-Appellant, ) ) v. ) ) No. 05 CD 55 THE STATE BOARD OF ELECTIONS and ED H. ) SMITH, 28th Ward Democratic Committeeman, ) ) Respondents-Appellees. )

COOK COUNTY REPUBLICAN PARTY, by Gary J. ) Petition for Review from Skoien, Chairman, ) the Illinois State Board ) of Elections Petitioner-Appellant, ) ) v. ) ) No. 05 CD 56 THE STATE BOARD OF ELECTIONS; 31ST WARD ) DEMOCRATIC CAMPAIGN FUND; and JOSEPH ) BERRIOS, Chairman and Committeeman, ) ) Respondents-Appellees. )

COOK COUNTY REPUBLICAN PARTY, by Gary J. ) Petition for Review from Skoien, Chairman, ) the Illinois State Board ) of Elections Petitioner-Appellant, ) ) v. ) ) No. 05 CD 57 THE STATE BOARD OF ELECTIONS; 39TH WARD ) REGULAR DEMOCRATIC ORGANIZATION; JAMES ) D'AMICO, Chairman; and RANDY BARNETTE, ) Committeeman, ) ) Respondents-Appellees. )

3 COOK COUNTY REPUBLICAN PARTY, by Gary J. ) Petition for Review from Skoien, Chairman, ) the Illinois State Board ) of Elections Petitioner-Appellant, ) ) v. ) ) No. 05 CD 58 THE STATE BOARD OF ELECTIONS; 40TH WARD ) REGULAR DEMOCRATIC ORGANIZATION and ) PATRICK J. O'CONNOR, Chairman and Committeeman, ) ) Respondents-Appellees. )

COOK COUNTY REPUBLICAN PARTY, by Gary J. ) Petition for Review from Skoien, Chairman, ) the Illinois State Board ) of Elections Petitioner-Appellant, ) ) v. ) ) No. 05 CD 59 THE STATE BOARD OF ELECTIONS; DEMOCRATIC ) PARTY OF THE 49TH WARD; and DAVID FAGUS, ) Chairman and Committeeman, ) ) Respondents-Appellees. )

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

This appeal is before us again to consider whether the Illinois State Board of Elections

(Board) erred by dismissing, under section 9-21 of the Illinois Election Code (10 ILCS 5/9-21

(West 2004)), eight complaints filed by the Cook County Republican Party (Party) against the

Chicago Democratic ward organizations, ward chairmen and ward committeemen named in this

appeal (collectively, respondents). See Cook County Republican Party v. State Board of

Elections, 378 Ill. App. 3d 752, 764, 882 N.E.2d 93 (2007) (Cook County I). Our holding in

4 1-05-3407, et al., Cons.

Cook County I was reversed by our supreme court, and the case was remanded to us with clear

instructions of the standard and the scope of review to be employed. See Cook County

Republican Party v. Illinois State Board of Elections, 232 Ill. 2d 231, 234, 902 N.E.2d 652 (2009)

(Cook County II)). Finding no clear error by the Board under these instructions, we affirm.

The Party filed 10 complaints with the Board, one against each respondent. All 10

complaints alleged violations of sections 9-10(a) and 9-25.1(b) of the Election Code (10 ILCS

5/9-10(a), 9-25.1(b) (West 2004)), which prohibit the appropriation of public funds for political

or campaign purposes and require every local political committee to file reports of campaign

contributions, including in-kind contributions. Three of the complaints also alleged violations

under section 9-3 of the Election Code (10 ILCS 5/9-3 (West 2004)) for failure to file a statement

of organization as a political committee.

A simultaneous, closed preliminary hearing was held on all 10 complaints. See 10 ILCS

5/9-21 (West 2004) (once a complaint is filed under the Election Code, the Board must "hold a

closed preliminary hearing to determine whether or not the complaint appears to have been filed

on justifiable grounds"). The hearing officer who presided over the closed preliminary hearing

concluded all but one of the complaints were filed on justifiable grounds and recommended that

those complaints proceed to a public hearing. See Illinois Republican Party v. Illinois State Board

of Elections, 188 Ill. 2d 70, 74, 720 N.E.2d 231 (1999) (a complaint not filed on justifiable

grounds must be dismissed, while a complaint filed on justifiable grounds will proceed to a public

hearing).

The Board, which consists of eight members, four from each political party, met to hear

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from its general counsel and to rule on the complaints. See 10 ILCS 5/1A-2 (West 2004) (creating

a Board of eight members, four from each political party); see also Ill. Const. 1970, art. III, §5

("[n]o political party shall have a majority of members of the Board"). The Board's general

counsel disagreed with the hearing officer's recommendation to advance 9 of the 10 complaints,

saying the evidence presented at the closed preliminary hearing was insufficient to support the

Party's allegations. See 26 Ill. Adm. Code §125.253, amended at 14 Ill. Reg. 10832 (eff. June 22,

1990) (defining general counsel's role). The general counsel recommended that all 10 complaints

be dismissed without a public hearing. In a five to three vote, the Board dismissed the complaints

filed against Leslie A. Hairston, 5th Ward Regular Democratic Organization chairman and

committeeman, and Ed H. Smith, 28th Ward Democratic committeeman. The Board reached a tie

vote on the remaining eight complaints. The Board dismissed those complaints under section 9-21

of the Election Code, which directs the Board to dismiss a complaint where it cannot reach a

majority vote on whether justifiable grounds exist. 10 ILCS 5/9-21 (West 2004); see also 10 ILCS

5/1A-7 (West 2004) ("[five] votes are necessary for any action of the Board to become effective").

The Party appealed the Board's rulings to this court in Cook County I. We affirmed the

dismissal of the Hairston and Smith complaints, finding no clear error. Cook County I, 378 Ill.

App. 3d at 757-59. With respect to the remaining eight complaints that were dismissed because

the Board could not reach a majority vote, we held our review was limited to whether the Board

complied with section 9-21 of the Code. Cook County I, 378 Ill. App. 3d at 763. Our rationale

was based, in part, on the Board's failure to provide us with findings of fact and conclusions of law

to review. Cook County I, 378 Ill. App. 3d at 761. Finding the Board in compliance, we affirmed

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the dismissal of those complaints as well. Cook County I, 378 Ill. App. 3d at 764.

The supreme court allowed the Party's petition for leave to appeal. The court rejected our

view of tie vote dismissals: that our review is limited to whether the Board complied with section

9-21 of the Code. Cook County II, 232 Ill. 2d at 241. The court reversed and remanded for a

determination of whether those eight complaints were filed on justifiable grounds. Cook County

II, 232 Ill. 2d at 241. In doing so, the court defined the standard and the scope of our review.

Cook County II, 232 Ill. 2d at 241-45.

The court first looked to the question presented on appeal, as that dictates the standard we

apply. Cook County II, 232 Ill. 2d at 243. The court held that "[t]he question here involves

application of the 'justifiable grounds' standard to the facts elicited at the preliminary hearing."

Cook County II, 232 Ill. 2d at 244. Whether the complaints were filed on justifiable grounds is a

mixed question of law and fact and is reviewed under the clearly erroneous standard. Cook

County II, 232 Ill. 2d at 234-44. "A decision is 'clearly erroneous' only if the reviewing court is

left with a ' " 'definite and firm conviction that a mistake has been committed.' " ' " Cook County

II, 232 Ill. 2d at 244, quoting Cinkus v. Village of Stickney Municipal Officers Electoral Board,

228 Ill. 2d 200, 209, 886 N.E.2d 1011 (2008), quoting AFM Messenger Service, Inc. v.

Department of Employment Security, 198 Ill. 2d 380, 393, 763 N.E.2d 272 (2001), quoting United

States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).

With respect to the scope of our review, the court held "that meaningful review of a

deadlock vote may be accomplished by examining the reasons of the Board members voting to

dismiss the complaint." Cook County II, 232 Ill. 2d at 242. The record shows that those Board

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members voting to dismiss the complaints did so in reliance on the recommendation of the Board's

general counsel. "Thus, judicial review may be accomplished in this case by reviewing the reasons

for dismissal as stated in the general counsel's recommendation." Cook County II, 232 Ill. 2d at

243.

The Board's general counsel first reviewed the evidence presented by the Party at the

closed preliminary hearing. That evidence included financial records from the City showing that

respondents' offices were paid for, at least in part, with public funds intended to maintain non-

political aldermanic offices in each ward. The Party also presented respondents' financial

statements to show that they had not reported the City's contribution. The Party's executive

director, Thomas Swiss, testified he visited 8 of the 10 offices on August 10, 2005. Swiss walked

into each office and asked whoever was inside whether political activity was being conducted on

the premises. He received an affirmative response in most instances and then left the office. Swiss

did not himself observe political activities during his visits. Visits to the other two offices took

place on August 22, 2005, with similar results. Photographs were presented to show that signage

on the storefront of each office suggested that the office was used for political purposes in addition

to providing aldermanic services. The Party also presented evidence that the websites for both the

Cook County Democratic Party and the City listed respondents' offices as housing both the

committeeman and the alderman.

The Board's general counsel concluded that this evidence was insufficient to support the

Party's allegations of Election Code violations. The general counsel explained:

"[L]ooking through all the evidence submitted, I don't see in here where

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they have alleged the specific facts that indicate that political activity, at least to the

extent that has been suggested by the complainant's counsel, took place in these

offices.

I mean, everything that I've read and the testimony that I read--certainly not

in the complaint itself. The only evidence that I found in the complaint itself was a

sign outside the door and a brief conversation with a volunteer or receptionist, that

I thought the question was rather vague anyway--

***

I don't think the facts as alleged were specific enough to warrant a

declaration that this was filed on justifiable grounds. ***

***

I'm not sure that a ten-minute visit in August would be enough to establish

what they're alleging. I note that the affidavit stated clearly that no political activity

was observed. There was no literature, no--really there wasn't really anything there

substantively that caused me to believe, oh, yes, without a doubt, this is a

functioning political ward office that is not declaring the receipt of in-kind

contributions.

There had been a couple cases where I think it was close with the testimony

of the witnesses saying that a nominal level of activity, a meeting right before the

election with precinct captains or a drop-off point for literature; but, even if that

were true, that's still--breaking that down, would that be an in-kind contribution in

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excess of $150 that would have to be reported?"

Having reviewed the general counsel's recommendation and the evidence presented by the

Party, we are not left with "a definite and firm conviction that a mistake has been made." See Cook

County II, 232 Ill. 2d at 244. We affirm the dismissal of the remaining eight complaints on this

ground.

Affirmed.

McBRIDE and R.E. GORDON, JJ., concur.