Schwartz v. Kinney

2016 IL App (3d) 160021, 401 Ill. Dec. 339

• Court: Appellate Court of Illinois
• Decided: March 9, 2016
• Docket: 3-16-0021
• Status: Unpublished

Opinion

2016 IL App (3d) 160021

Opinion filed March 9, 2016 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2016

JACK A. SCHWARTZ, ) Appeal from the Circuit Court ) of the 14th Judicial Circuit, Petitioner-Appellant and ) Rock Island County, Illinois, Cross-Appellee, ) ) v. ) Appeal No. 3-16-0021 ) Circuit Nos. 15-MR-1131, 15-MR-1132 KAREN KINNEY, Rock Island County Clerk; ) and 15-MR-1165 LOUISA A. EWERT and CHRISTINA ) PAYNE, Members of the Rock Island Electoral ) Board; and DOUGLAS E. HOUSE, ) ) Honorable Respondents-Appellees and ) Jeffrey O'Connor, Cross-Appellants. ) Judge, Presiding. _____________________________________________________________________________

PRESIDING JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Justice Carter concurred in the judgment and opinion. Justice Holdridge specially concurred, with opinion. _____________________________________________________________________________

OPINION

¶1 Petitioner, Jack A. Schwartz, sought to be placed on the 2016 Democratic primary ballot

as a candidate for Rock Island County State's Attorney. Respondents, Karen Kinney, Louisa A.

Ewert, Christina Payne, and Douglas E. House, brought two objections to petitioner's candidacy.

The objections were grounded upon: (1) petitioner's alleged failure to properly identify the

circulator on his nominating petitions; and (2) petitioner's residence. ¶2 The Rock Island electoral board (the Board) overruled respondents' residency objection.

However, it allowed the circulator objection. Consequently, the Board struck petitioner's

nomination and excluded his name from the primary ballot on the basis of the circulator

objection. The circuit court affirmed the Board's decision. Petitioner now appeals the circulator

finding. Respondents, in turn, cross-appeal the residency finding.

¶3 Upon review, we hold the Board correctly allowed the circulator objection. We therefore

affirm the Board's decision striking petitioner's nomination and excluding his name from the

primary ballot. We do not address respondents' cross-appeal–the residence objection.

¶4 FACTS

¶5 The Board allowed the circulator objection on the grounds that the circulator's signature

on certain nomination petitions did not match the typed name found in the circulator affidavit.

Each nomination petition contains 10 individual voter signatures supporting petitioner's

candidacy. All of petitioner's nomination petitions include the typed name of petitioner in the

affidavit paragraph, which is found at the bottom of each page. However, several petitions are

sworn to and signed by Amy Schwartz, not petitioner. Amy is petitioner's wife. Below is a copy

of one of the affidavits signed by Amy.

2 ¶6 Amy testified before the Board as follows:

"Mr. Fieweger [petitioner's counsel] asked, 'Is that your signature on the

bottom of those pages?'

Ms. Schwartz answered, 'Yes.'

Mr. Fieweger asked, 'Were you the circulator of those petitions?'

Mr. Fieweger asked, 'Do you live at 921 Mississippi…uh…'

***

Mr. Fieweger asked, 'And, did you have your signature witnessed by a

notary public on each of those pages?'

Mr. Fieweger stated, 'I have no further questions. Thank you.'

Ms. Schwartz asked Jack [petitioner], 'Jack, do you want to say we were

together at the time they were filed or circulated them or…?'

Mr. Fieweger stated, 'Sure. Who was with you when these were

circulated?'

Ms. Schwartz answered, 'Jack and I got all the signatures together. So, he

was present at the time all those signatures were gotten and we are married and

live at the same address.'

3 Ms. Clark [respondents' counsel] asked, 'So, you said that your husband

was…that you claim that your husband was present when each of those 31

petitions was signed by each of those people, is that right?'

Ms. Clark asked, 'So, why did you sign under his name, then?'

Ms. Schwartz answered, 'I did not sign…I don't understand. It…'

Ms. Clark interrupted, 'Why did you sign them, instead of him?'

Ms. Schwartz answered, 'Why did I sign? Because I was there.'

Ms. Clark asked, 'And he was, too, according to you, correct?'

Ms. Clark answered, 'Okay, nothing further.' "

¶7 Petitioner also testified before the Board.

"Mr. Fieweger asked, 'Were you present during the time in which the

petitions were signed by voters?'

Mr. Schwartz answered, 'Yes, I was with her at all times.'

Mr. Fieweger asked, 'And, by her, who is her?'

Mr. Schwartz answered, 'My wife.'

Mr. Fieweger stated, 'Okay. I have no further questions.'

Ms. Clark asked, 'You claim to have been present for each and every

signature that was put on your petition sheets, is that right?'

4 Mr. Schwartz asked, 'Yes, would you like for me to tell you where we got

them?'

Ms. Clark answered, 'Including the Mercer County ones? The Henry

County ones? The Scott County one?…did I say the Henry County one?

Including all those?'

Mr. Schwartz answered, 'We may have gotten some out of the county, but

we went to the two bowling alleys in Rock Island. We got them in one night or

two nights. And then, we got the rest of them at that Walmart. We were there

one night, late, and there was another one of my clients there who helped me

gather some of those names. But my wife and I were present for all of the names

that we got.'

Ms. Clark stated, 'They [the petitions] are facially inaccurate, are they

not?'

Mr. Schwartz answered, 'They comply sustainably [sic] with the law that's

required by the State of Illinois.'

Ms. Clark asked, 'Do you have council, or do you want to testify about the

facts?'

Mr. Schwartz stated, 'You asked me to testify, I am telling you my

opinion. They simply comply substantially…'

Ms. Clark interrupted, 'I am not asking for your legal opinion, Mr.

Schwartz, I am asking for your factual testimony as to whether the petition sheets

are accurate.'

5 Mr. Schwartz answered, 'They're accurate.'

Ms. Clark asked, 'And then you stated, subsequently, that you don't think

it matters, is that right?'

Mr. Schwartz answered, 'No. What I stated was…is that they comply

substantially with the law.' "

¶8 Upon the conclusion of the hearing, the Board allowed the circulator objection.

Specifically, the Board stated:

"That thirty (30) pages of the Petitions for Nomination filed by the *** Candidate,

Jack Schwartz, are not property certified in that the typed name of the petition

circulator and the signature of the circulator are two different individuals and the

signatures of electors on those nominating petitions are disallowed. The ***

Candidate is required to present the signatures of a minimum of 168 valid elector

signatures to become a candidate for nomination and as a result of this decision to

disallow thirty (30) pages that are not properly certified, the *** Candidate has

presented only fifty (50) valid elector signatures on his Petitions for

Nominations."

¶9 ANALYSIS

¶ 10 Petitioner argues the Board erred in disallowing the petitions signed by Amy.

Specifically, petitioner argues that "[t]he disqualified petitions substantially complied with the

requirements of the circulator's attestation clause under 10 ILCS 5/7-10." Because neither the

circulator affidavit nor the testimony of Amy and/or petitioner reveal who the circulator of the

petitions was, we uphold the Board's decision disallowing the petitions.

6 ¶ 11 "Where, as here, judicial review of an electoral board's decision is sought pursuant to ***

the Election Code [citation], the proceeding is in the nature of administrative review." Jackson

v. Board of Election Commissioners, 2012 IL 111928, ¶ 46. When such proceedings reach the

appellate level, it is the election board's decision, not the decision of the circuit court, which we

review. Id.

¶ 12 "Where the historical facts are admitted or established, but there is a dispute as to

whether the governing legal provisions were interpreted correctly by the administrative body,

the case presents a purely legal question for which our review is de novo ***." Id. ¶ 47. The

salient facts in the instant case are uncontroverted: (1) petitioner's name is typed as "(Circulator's

Name)" at the top of the affidavit; (2) Amy signed her name as "(Name of Circulator)" at the

bottom of the affidavit; and (3) both petitioner and Amy testified they were together and present

when the nomination petitions were signed by voters. The issue is, given those facts, whether

the petitions signed by Amy substantially comply with section 7-10 of the Election Code (Code)

(10 ILCS 5/7-10 (West 2014)).

¶ 13 In examining section 7-10, we are guided by familiar principles. The supreme court has

explained:

"The primary goal of statutory construction, to which all other rules are

subordinate, is to ascertain and give effect to the intention of the legislature. The

best indication of legislative intent is the language used in the statute itself. The

statute should be evaluated as a whole, with each provision construed in

connection with every other section. When the statutory language is clear, we

must apply the statute as written without resort to other tools of construction."

Jackson, 2012 IL 111928, ¶ 48.

7 ¶ 14 Section 7-10 of the Code provides, in pertinent part:

"The name of no candidate for nomination *** shall be printed upon the primary

ballot unless a petition for nomination has been filed in his behalf as provided in

this Article in substantially the following form:

***At the bottom of each sheet of such petition shall be added a circulator

statement signed by a person 18 years of age or older who is a citizen of the

United States, *** certifying that to the best of his or her knowledge and belief

the persons so signing were at the time of signing the petitions qualified voters of

the political party for which a nomination is sought.***

The person circulating the petition, or the candidate on whose behalf the

petition is circulated, may strike any signature from the petition ***." (Emphases

added.) 10 ILCS 5/7-10 (West 2014).

¶ 15 In the interest of clarity, we initially address whether section 7-10 allows for

cocirculators–both petitioner and Amy. While we are aware of no Illinois case which discusses

cocirculators, we emphasize the legislature's consistent use of the singular tense–"a circulator

statement," "a person," "his or her," and "[t]he person." Id. We also note that the affidavit itself

only provides one signature line. Affording section 7-10 its plain, ordinary, and popular

meaning, we conclude that it does not allow for cocirculators. Therefore, because the affidavit

contains two different names (petitioner's typed name and Amy's signature), we find the petitions

to be facially invalid. We now turn to the question of whether the petitions substantially

complied with section 7-10 of the Code.

8 ¶ 16 The circulator's affidavit requirement is a mandatory requirement of the Code. Brennan

v. Kolman, 335 Ill. App. 3d 716, 719 (2002). "[T]he circulator's affidavit requirement is

considered a meaningful and realistic method of eliminating fraudulent signatures and protecting

the integrity of the political process." Sakonyi v. Lindsey, 261 Ill. App. 3d 821, 826 (1994).

Substantial compliance with the circulator's affidavit requirement can save a nomination petition

from being rendered invalid. Nolan v. Cook County Officers Electoral Board, 329 Ill. App. 3d

52, 56 (2002) (circulators' affidavits that failed to state that voters who signed the petition were

registered voters substantially complied with the Code, where the opening line of the petition

stated that voters were registered).

¶ 17 While petitioner and Amy both testified they were present at the time the voters signed

the petitions, we do not have any clarity as to who actually was the circulator. Because the

affidavit itself does not answer this question, substantial compliance can only be established

through the testimony of Amy and/or petitioner. Neither Amy's testimony, nor petitioner's

testimony, however, reveals who the circulator of the petitions was. All we have is generic

testimony that both were present. We have already held, however, that both cannot

simultaneously be the circulator. Supra ¶ 15. The evidence presented at the Board hearing

simply does not reveal which of the two was the circulator.

¶ 18 Amy and petitioner's testimony are also generic in the sense that their presence is

consistently referenced in the context of "all the signatures." For example, Amy testified "Jack

and I got all the signatures together." Petitioner testified "[M]y wife and I were present for all of

the names that we got." Neither identified the petitions individually. Instead, they consistently

referenced the signatures/petitions in a general context. Accordingly, we hold the generic

testimony of two individuals that they were present for the signing of all the signatures/names

9 does not establish substantial compliance with the circulator requirements contained in section 7-

10 of the Code.

¶ 19 In coming to this conclusion, we reject petitioner's reliance on Moscardini v. County

Officers Electoral Board of Du Page County, 224 Ill. App. 3d 1059 (1992). The court in

Moscardini held that if the circulator of a petition actually saw each of the signatories sign it,

there is no violation of section 7-10, even if the circulator did not physically present the petition

to some of them. Id. at 1062-63. Unlike the instant case, however, the affidavit in Moscardini

was not facially invalid and there was no ambiguity as to the identity of the circulator. Stated

another way, the court in Moscardini knew exactly who the circulator of the petition was. We

find Moscardini distinguishable on this ground alone.

¶ 20 Likewise, we find Nolan distinguishable. The court in Nolan held that while the

circulator's affidavit was devoid of any reference to the specific legislative district, such

information could be gleaned from information found elsewhere in the nominating petition.

Nolan, 329 Ill. App. 3d at 56. The petitions in the instant case, however, do not offer any

information clarifying the ambiguity as to the identity of the circulator. Nor does the testimony

of Amy or petitioner.

¶ 21 Lastly, we reject petitioner's reliance on Cunningham v. Schaeflein, 2012 IL App (1st)

120529. The court in Cunningham held that the circulator's error in mistakenly transposing two

digits in the circulator's street address did not invalidate the nomination petitions. Id. ¶ 26.

Specifically, the court reasoned that the error in the address "did not preclude the parties from

locating the circulator and holding him to his oath." Id. Like Moscardini, the identity of the

circulator in Cunningham was known. Furthermore, we believe Cunningham actually supports

10 our holding in the instant case as it shows the inherent necessity that the identity of the circulator

be known. See id. Here, we have no such certainty.

¶ 22 CONCLUSION

¶ 23 For the foregoing reasons, we affirm the Board's decision striking petitioner's nomination

and excluding his name from the primary ballot. 1

¶ 24 Affirmed.

¶ 25 JUSTICE HOLDRIDGE, specially concurring.

¶ 26 I join in the majority's judgment. I write separately to clarify the analysis governing

challenges to a circulator's attestation clause under section 7-10 of the Code (10 ILCS 5/7-10

(West 2014)). As the majority notes, the nomination petitions signed by Amy Schwartz in this

case are facially invalid under section 7-10 because the affidavits contained in those petitions do

not unambiguously identify the circulator. In my view, that should be the end of the matter.

Section 7-10 requires that a single, identifiable circulator sign the affidavit making the required

attestations. Because the petitions signed by Amy Schwartz do not satisfy this requirement, they

fail as a matter of law. This failure cannot be cured by subsequent testimony. That is why the

Commission decided this issue as a matter of law without discussing the witness testimony

presented at the hearing. In my view, we should take the same approach on review and affirm

the Commission's decision based solely upon a facial analysis of the affidavits.

1 We offer no opinion on respondents' cross-appeal. "As a general rule, courts in Illinois

do not *** render advisory opinions, or consider issues where the result will not be affected

regardless of how those issues are decided." In re Alfred H.H., 233 Ill. 2d 345, 351 (2009).

11 ¶ 27 Although the majority finds the affidavits at issue to be facially invalid (supra ¶ 15), it

proceeds to consider the witnesses' testimony because it concludes that "substantial compliance

[with the requirements of section 7-10] can *** be established through" such testimony (supra

¶ 17). I disagree. Section 7-10 prescribes the required contents of nominating petitions and the

accompanying affidavits. To determine whether a party has substantially complied with those

requirements, we should look only to the content of the written documents themselves. I fear

that the analysis employed by the majority will muddy the waters and invite further litigation in

this very important area of the law where clarity is needed.