Mitchell v. Cook County Officers Electoral Board

924 N.E.2d 585, 399 Ill. App. 3d 18

• Court: Appellate Court of Illinois
• Decided: March 5, 2010
• Docket: 1-10-0002
• Status: Published

Opinions

PRESIDING JUSTICE TOOMIN

delivered the opinion of the court:

The case sub judice calls upon us to exercise our power to review a decision of the County Officers Electoral Board (Board), which struck tainted nominating petitions, but ultimately allowed the candidate for judicial office to remain on the ballot. Bonnie Carol McGrath initiated a candidacy for the office of judge¹ of the circuit court of Cook County by submitting nominating papers to the Electoral Board. These papers included, inter alia, her statement of candidacy and nominating petitions signed by qualified citizens of Cook County. In turn, Bridget Mitchell filed objections to McGrath’s nominating papers.

The objector’s petition set forth numerous alleged violations of the Election Code (10 ILCS 5/1 — 1 et seq. (West 2008)) stemming from the form and substance of McGrath’s nominating papers. One general objection, set forth in several paragraphs, was directed to McGrath’s statement of candidacy and its omission of any reference to the names she used in prior candidacies. The majority of the allegations centered upon the petition sheets, challenging the validity and genuineness of the signatures and addresses contained thereon, claiming irregularities as to the signing of the petitions by a notary public, and alleging “a pattern of fraud and disregard of the Election Code.” Accordingly, the petition averred that, as a result of the various and sundry irregularities in the petitions, McGrath’s nominating papers were supported by fewer than the minimum number of “validly collected signatures of qualified and duly registered voters of the Cook County Judicial Circuit.” The petition sought to have McGrath’s nominating papers declared “insufficient and not in compliance with the laws of the State of Illinois” and to have her name be stricken as a candidate and “be not printed upon the official ballot for the General Primary Election to be conducted on February 2, 2010.” Ultimately, the Board rendered a decision. As that decision thoroughly and competently outlines the machinations leading to that point, we rely upon the Board’s recitation of the facts in providing background. Moreover, neither side challenges the Board’s account of the proceedings.

Upon receipt of the petition, the Board referred the matter for a “Registration Record Check” and report back to the Board. Importantly, the nominating petitions at issue were circulated for the benefit of three candidates, not just for McGrath’s candidacy. The record check revealed a total of 7,048 signatures. The objector challenged 3,857 of those signatures. The record check sustained 1,824 of the objections, “leaving 5,224 presumably valid signatures at this point, which is 1,956 above the minimum of 3,268 required” for the office of judge.

Next, the Board turned to Mitchell’s allegation that some of the circulators did not appear in person before a notary public. The Board received testimony on this issue from McGrath, Christine Athanasoulis, one of the circulators, and Kari Ann Browning, a notary public whose seal was affixed to 226 of McGrath’s petition sheets. According to the Board:

“The testimony, which is uncontested and undisputed, can be summarized as follows: [McGrath] had 11 other persons circulate petitions; when those circulators had finished with their sheets, they turned them into the Candidate, already signed by them; the Candidate transmitted them to Ms. Browning who notarized them without any of the circulators being present. This happened at times when [McGrath] went to Ms. Browning to notarize her own sheets. Ms. Athanasoulis individually testified that she never appeared before the Notary in respect to the sheets she circulated

Based upon the testimony presented, the Board determined it was “proper and well within its power to strike all of the sheets circulated by [McGrath] and/or notarized by Ms. Browning.” Furthermore, the Board observed:

“The behavior testified to is in direct contradiction of the requirements of the Election Code and the Notary Act, and it amounts to an intolerable duplicity on the party of the perpetrators. For this to be done by a candidate for judicial office is particularly shocking.”

The Board determined that if all the sheets circulated by McGrath or notarized by Browning were struck, an additional 1,406 signatures would be lost. Subtracting these from the prior subtotal of 5,224 left 3,818 valid signatures, which was still 550 in excess of the minimum 3,268 required for the office.

The Board then turned to Mitchell’s contention that, regardless of the sufficiency of the remaining signatures, the conduct underlying the presentation of the petitions from other circulators to the notary for attestation without the circulators present warranted the termination of her candidacy and the removal of her name from the ballot. The Board noted the unique circumstance presented where:

“[McGrath] was running as part of a ticket and the petition has thousands of valid signatures collected by the other candidates on the ticket and their supporters, who are accused of no wrong-doing. Each of these signatures supports the McGrath candidacy, independent of and separate from any act on her part. A candidacy is not the exclusive property of the candidate, even if he or she stands to gain the most from it. A candidacy is an expression of the popular will, of the signers of the petition, as well as of the candidate. These signers may well be disheartened should they learn of what [McGrath] has done, but they will be able to express themselves as to that at the polls.”

Furthermore, the Board concluded that the cases cited by Mitchell dictated that the proper course of action was to strike those petition sheets tainted by the misconduct. Additionally, the Board noted that “The candidacies in those cases went down because of a lack of valid signatures; none of them was directly terminated.”

The Board also explained that its decision allowing the candidacy to stand was not intended to reflect that it was “excusing or minimizing the misconduct.” Instead, the Board stated, “We have done everything that we believe we are empowered by the law to do.” Although mindful of its own limitations, the Board nonetheless recognized that “Those organs of government with farther-reaching power than ours may choose to terminate the candidacy, or to instruct us that we have the power to do so.” Thus the Board candidly predicted, “[W]e fully expect that this matter will be pursued by those permanent agencies empowered to do so.” Consequently, petitioner’s objections were overruled. McGrath’s nominating papers were declared valid and her name was ordered to be printed on the ballot for the primary election to be held on February 2, 2010.

Thereafter, Mitchell sought review in the circuit court of Cook County pursuant to section 10 — 10.1 of the Election Code (10 ILCS 5/10 — 10.1 (West 2008)). On December 29, 2009, the circuit court affirmed the Board’s decision as not being against the manifest weight of the evidence and not clearly erroneous. Mitchell then filed an expedited appeal before us. On January 15, 2010, we entered an order affirming both the Board’s decision as well as the circuit court’s affirmance. We now supplement our prior order with this opinion setting forth the legal basis and analysis that guide our decision.

Electoral boards are considered to be administrative agencies. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 209, 886 N.E.2d 1011, 1017 (2008). While the provisions of section 10 — 10.1 do not expressly incorporate the procedures delineated in the Administrative Review Law (735 ILCS 5/3 — 101 et seq. (West 2008)), our supreme court has concluded that the procedure is essentially the same. Cinkus, 228 Ill. 2d at 210, 886 N.E.2d at 1017-18. In appeals of decisions of the circuit court, reviewing decisions of administrative boards, it is axiomatic that we review the board’s decision and not the circuit court’s. Cinkus, 228 Ill. 2d at 212, 886 N.E.2d at 1019. As noted, there is no dispute as to the factual findings of the Board. Consequently, because decisions of administrative agencies on questions of law are afforded less deference, our review is de novo. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295, 302 (1998).

Mitchell’s arguments on appeal are that the Board erred where it (1) failed to terminate McGrath’s candidacy in its entirety; and (2) failed to strike McGrath’s statement of candidacy. On the first point, Mitchell suggests the termination of the candidacy was warranted given McGrath’s “intolerable duplicity” and pattern of fraud, her misconduct during the objection process, and her alleged violations of the Rules of Professional Conduct. Putting aside the substance of these arguments, we note that these considerations are at least arguably outside the scope of the Board’s function. Section 10 — 10 sets out the Board’s function in this regard, providing, in relevant part:

“The electoral board shall take up the question as to whether or not the certificate of nomination or nomination papers or petitions are in proper form, and whether or not they were filed within the time and under the conditions required by law, and whether or not they are the genuine certificate of nomination or nomination papers or petitions which they purport to be, and whether or not in the case of the certificate of nomination in question it represents accurately the decision of the caucus or convention issuing it, and in general shall decide whether or not the certificate of nomination or nominating papers or petitions on file are valid or whether the objections thereto should be sustained and the decision of a majority of the electoral board shall be final subject to judicial review as provided in Section 10 — 10.1. The electoral board must state its findings in writing and must state in writing which objections, if any, it has sustained.” (Emphasis added.) 10 ILCS 5/10 — 10 (West 2008).

In the present case, it is manifest that the Board clearly adhered to the legislative mandate. We observe, as did the Board, that the petitions in this case presented a unique situation in that McGrath was part of a ticket with two other candidates. Nevertheless, Mitchell asserted very specific objections as to the form and substance of McGrath’s petitions to the Board. The Board conscientiously considered those objections and took appropriate curative action based upon established decisional law. Having sustained some of the objections and overruled others, the Board, as precedent required, declared the nomination papers valid based upon the presence of sufficient signatures to support the candidacy. Consequently, the complaints raised by this appeal are not relevant to our review of the Board’s decision. That is to say, Mitchell’s claim that the Board erred in not terminating McGrath’s candidacy is not supported by the record or the statutes defining the function and powers of the Board. See 10 ILCS 5/10 — 10 (West 2008).

The Board’s decision as to the proper remedy in light of the misconduct and irregularities in the petitions was to strike those petitions tainted by the improper notarizations, over and above those objections previously sustained. In arriving at this conclusion, the Board considered several cases, including Fortas v. Dixon, 122 Ill. App. 3d 697, 462 N.E.2d 615 (1984); Huskey v. Municipal Officers Electoral Board, 156 Ill. App. 3d 201, 509 N.E.2d 555 (1987); and Canter v. Cook County Officers Electoral Board, 170 Ill. App. 3d 364, 523 N.E.2d 1299 (1988). Our review of these cases demonstrates that they are supportive of the Board’s determinations and choice of remedy in the case sub judice.

In Fortas, the board overruled certain objections to the candidate’s petitions, struck two petitions, and struck certain individual signatures where there was evidence someone other than the named circulator presented the petition. In turn, the trial court struck the entire sheets where individual signatures were stricken by the board. Fortas, 122 Ill. App. 3d at 699-700, 462 N.E.2d at 616-17. The result of the trial court’s action was to leave the candidate with an insufficient number of signatures. Consequently, the trial court ordered that the candidate’s name be prohibited from appearing on the ballot. Fortas, 122 Ill. App. 3d at 700, 462 N.E.2d at 617. The appellate court affirmed the trial court as to two of the sheets, but expressed reservations as to the trial court’s striking of the entirety of the other sheets at issue. Fortas, 122 Ill. App. 3d at 701, 462 N.E.2d at 618. Nevertheless, the appellate court concluded that the properly stricken sheets left the candidate below the minimum signature threshold for appearing on the ballot. Fortas, 122 Ill. App. 3d at 701-02, 462 N.E.2d at 618.

In Huskey, 8 out of 10 of the candidate’s petitions were invalidated because of a “pattern of fraud, false swearing, and a total disregard for the election law by the circulator.” Huskey, 156 Ill. App. 3d at 204, 509 N.E.2d at 556. The result was to leave the candidate with an insufficient number of signatures to support his candidacy. Therefore, the board in Huskey concluded the candidate’s name should not appear on the ballot due to the insufficiency. Huskey, 156 Ill. App. 3d at 204, 509 N.E.2d at 556. The appellate court affirmed, finding the entire sheets tainted by a false circulator’s affidavit were properly stricken, regardless of the absence of any proof of a fraudulent intent on the part of the circulator. Huskey, 156 Ill. App. 3d at 205, 509 N.E.2d at 557. Moreover, the court concluded, “the State’s legitimate interest in guarding the integrity of the electoral system has a rational relationship to the board’s removal of petitioner’s name from the ballot.” Huskey, 156 Ill. App. 3d at 206, 509 N.E.2d at 558.

In Canter, the board struck three pages of signatures gathered by a particular circulator based on a pattern of “apparent irregularities” that raised doubts about the genuineness of those pages. This ruling, coupled with stipulations entered into by the parties, left the candidate with fewer than the minimum number of required signatures and his name was removed from the ballot. Canter, 170 Ill. App. 3d at 367, 523 N.E.2d at 1301. The circuit court concurred in the Board’s action. In turn, the appellate court, relying in part on Fortas and Huskey, found that the board properly struck the challenged sheets in their entirety. Canter, 170 Ill. App. 3d at 368, 523 N.E.2d at 1301. Therefore, the circuit court’s ruling affirming the board’s decision removing the candidate’s name due to insufficient signatures was affirmed. Canter, 170 Ill. App. 3d at 370, 523 N.E.2d at 1303.

The clear teaching of these cases is in harmony with the action taken by the Board as to McGrath’s candidacy. Contrary to Mitchell’s contention, nothing in the record compels the conclusion that the Board was somehow required to terminate McGrath’s candidacy. While the record demonstrates a pattern of irregularities related directly to McGrath and Browning, no such pattern was shown as to the entire universe of the nominating petitions. Moreover, Mitchell has not offered a basis in the Board’s enabling statutes or in the law for such a requirement. As noted, the function of the Board is to determine whether the nominating papers are valid and if the objections ought to be sustained. See 10 ILCS 5/10 — 10 (West 2008). In the absence of evidence that the nominating papers were invalid or the presence of sufficient objections to warrant termination of the candidacy, we discern no legal basis authorizing the Board to terminate a candidacy. In the present case, the sustained objections, while significant, nonetheless left McGrath with a sufficient number of signatures to support her candidacy. Moreover, we agree with the Board’s observation that McGrath’s presence on a ticket with other candidates presented a unique situation. Her candidacy was, in fact, supported by signatures gathered by countless other people who were not accused of wrongdoing.

We are equally unpersuaded by Mitchell’s argument that McGrath’s candidacy should have been terminated due to her conduct during the evidentiary hearing before the Board. This position is clearly lacking any support in statutory or decisional law. More importantly, Mitchell’s only citation within this argument is to criminal penalties for false statements pursuant to the Election Code. Parties are required to support their arguments with citation to relevant authority. See 210 Ill. 2d R 341(h)(7). Mitchell has failed to do so. Therefore, this argument is forfeited.

Mitchell also maintains that McGrath’s candidacy should have been terminated because of her alleged violations of the Rules of Professional Conduct. This argument is, once again, unsupported in statutory or case law. Nevertheless, we do not discern how a candidacy could be terminated based upon what are only allegations at this point. While it is entirely possible McGrath’s conduct may be subject to ethical review by the appropriate authorities, our role is limited to reviewing the decision of the Board. Adherence to this salutary principle simply fails to provide a basis for us to alter the decision of the Board.

Mitchell next argues the Board erred when it did not terminate McGrath’s candidacy where her statement of candidacy allegedly contained a false swearing and was notarized by Browning. More particularly, Mitchell posits that the Board overlooked problems with the statement of candidacy and that these irregularities provide a secondary basis for terminating McGrath’s candidacy. Interestingly, no mention is made of how the Board’s decision does not address the former name issue raised as to the statement of candidacy. Nevertheless, the alleged irregularities in the statement of candidacy were raised before the trial court. There, the judge opined that this claim was waived due to Mitchell’s failure to raise it with particularity before the Board. A cursory review of the Board’s decision reveals no mention of the statement of candidacy. The Board’s decision was focused entirely upon the questions surrounding the petitions and the notarizations. Interestingly, Mitchell claims, “The Board’s oversight to fully carry out its ruling can be attributed to the pace of the election process.” Yet, we perceive the reason the Board did not consider this matter is more explicit than amorphous considerations of the pace of proceedings.

As noted, Mitchell’s objections filed with the Board were significantly detailed. Within those objections were several paragraphs addressing the statement of candidacy. However, none of the objections related to the notarization of that document. Consequently, this matter was clearly not before the Board at the outset. Mitchell contends she could not have known to object to such an irregularity because it is a point that developed during the proceedings; therefore, she is excused for not having raised it. Moreover, Mitchell states, “McGrath and Browning admit that no oath was ever administered by Browning to McGrath prior to McGrath’s execution of any Nominating Papers, which would include the Statement of Candidacy.” (Emphasis in original.)

We find it unsettling that the report of the proceedings before the Board does not support Mitchell’s claim. McGrath did not testify about being administered an oath on direct examination. The only mention came in response to a question from one of the Board members regarding the petitions. In that context, McGrath stated that Browning did not formally swear her. Similarly, Browning’s testimony concerning the swearing of oaths was limited exclusively to the petitions and signatures of the circulators. Neither McGrath nor Browning was ever examined in any fashion about the statement of candidacy. All of their testimony concerned the petitions. Furthermore, even if the failure to swear an oath did extend to the statement of candidacy, there was nothing before the Board to support it. Mitchell’s extension of the testimony about the petitions to the statement of candidacy is an overstatement, bordering on a misrepresentation of the record.

Putting aside the testimony, we further discern that the arguments of Mitchell’s counsel never addressed the statement of candidacy. The thrust of the argument was that McGrath’s case was unique in that the misconduct alleged directly involved the candidate herself. According to Mitchell, McGrath’s having admitted to violations of the Election Code took her case outside the scope of previous cases and warranted action over and above the striking of some signatures. Even if this additional alleged irregularity would support further action, the Board was not presented with this precise argument either in written submissions or at the hearing. Therefore, the Board properly addressed its decision to the objections properly before it. While it is tempting to address this argument, the same principles guide our analysis here.

As noted, section 10 — 10 of the Election Code instructs that the Board “shall decide whether or not the certificate of nomination or nominating papers or petitions on file are valid or whether the objections thereto should be sustained.” (Emphasis added.) 10 ILCS 5/10 — 10 (West 2008). The plain language of the section leads us to conclude the Board is to consider the objections before it. There is nothing to indicate a duty or responsibility on the part of the Board to sua sponte raise issues or objections. That is the unique province of the objector. Similarly, there is nothing to indicate that an objector is foreclosed from raising additional issues during the course of the proceedings or from arguing them in seeking relief. We conclude the Board’s decision was proper based upon the objections before it and its application of the law to the undisputed facts.

Though our decision does not require us to bring to light the flaws that were exposed in the evidentiary hearing against McGrath and her notary, Browning, we have little difficulty in concluding that the gravity of the conduct leading to the Board’s action is indeed disquieting. We candidly agree with the Board’s assessment of the intolerable and shocking nature of the alleged misconduct, particularly where it involves an attorney and aspirant to the bench. Clearly, the Board implied a desire to take further action to address McGrath’s behavior and conduct. However, faithful to its charge, the Board exercised only the measure of authority granted it by statute.

For the foregoing reasons, the judgment of the circuit court of Cook County, affirming the decision of the County Officers Electoral Board, is affirmed.

Affirmed.

HOWSE, J., concurs.

1 McGrath submitted nominating papers for two separate vacancies on the circuit court, the “Hayes” vacancy and the “Berland” vacancy. The present appeal concerns only the “Hayes” vacancy.