Siegel v. Lake County Officers Electoral Board

895 N.E.2d 69, 385 Ill. App. 3d 452

Opinions

JUSTICE HUTCHINSON

delivered the opinion of the court:

Respondents Eric Burgess, Donald R. Castella, and Joel A. Finfer appeal the trial court’s order reversing the decision of the Lake County Officers Electoral Board (the Board) to exclude petitioner, Davita Siegel, from the November 2008 general election ballot as the Democratic candidate for member of the Lake County Board. On appeal, respondents assert that the Board correctly excluded petitioner from the ballot and contend that (1) the trial court erred when it determined that respondents waived their argument that the district committee meeting took place on a date other than that set forth in the resolution to fill the vacancy in nomination, and (2) the trial court erred when it determined that the placement of an incorrect date on the resolution was a de minimis error and constituted substantial compliance with a mandatory requirement of section 7 — 61 of the Election Code (10 ILCS 5/7 — 61 (West 2006)). We affirm.

The underlying facts reflect that no candidate appeared on the February 2008 Democratic primary ballot for the office of member of the Lake County Board, District 20, and a vacancy in nomination therefore existed. The last day to fill the vacancy in nomination was April 7, 2008, and, on that date, petitioner filed her “Statement of Candidacy for District 20” as well as a “Resolution to Fill a Vacancy in Nomination” (the resolution) with the Lake County clerk’s office. The resolution was executed by the “County Board Committee for the Democratic Party for the 20th District” (the District Committee). The resolution bore the signatures of Philip Hirsh, as the District Committee chairman, and Ivan Phillips, as the District Committee secretary, and stated that the District Committee met on April 6, 2008, and appointed petitioner to fill the vacancy at that time. The resolution was prepared and notarized by Nancy Shepherdson, and the jurat stated that the notarization occurred on April 6, 2008. Shepherdson also notarized petitioner’s statement of candidacy, with that document also bearing the date of April 6, 2008.

Respondents filed a verified objectors’ petition, claiming that the District Committee meeting (1) was never properly assembled, and (2) never occurred at all. In response, petitioner filed a motion to strike and dismiss respondents’ objection, alleging that the District Committee had properly assembled, notice had been provided, and she was properly nominated as the candidate. In support of her motion, petitioner attached the affidavit of Nancy Shepherdson. In her affidavit, Shepherdson averred that the meeting of the District Committee took place on April 5, 2008. Shepherdson averred that she was present at the meeting and prepared the nominating papers. Shepherdson averred that she witnessed and notarized the District Committee members’ signatures and petitioner’s signature. Shepherdson also averred that she mistakenly wrote the wrong date in the resolution and the statement of candidacy jurats when she completed the forms.

Respondents thereafter filed a response to petitioner’s motion to strike and dismiss, in which they raised a specific objection to the facial validity of the resolution. In their response, respondents alleged that the resolution did not reflect the true date of the meeting. Petitioner filed a reply, objecting to respondents’ response. Petitioner argued that respondents improperly amended their objectors’ petition in violation of section 10 — 8 of the Election Code (10 ILCS 5/10 — 8 (West 2006)) because their specific objection to the date was not included in their objectors’ petition and the time to add objections had expired. Petitioner alternatively argued that, even if the Board considered respondents’ new objection, the resolution still substantially complied with the technical requirements of the Election Code. Petitioner maintained that affixing an incorrect date to the resolution was a technical defect, i.e., a scrivener’s error, and was not an indicium of dishonesty.

At the hearing before the Board, one of the Board members described Shepherdson’s entry of the incorrect date on the resolution as a “good faith error,” and the other Board members described the entry as a scrivener’s error. At the conclusion of the hearing, the Board determined, with one member dissenting, that respondents did not waive their objection to the sufficiency of the papers for petitioner’s failure to include the true date of her nomination. The Board found that the nature of respondents’ objection pertained to the manner of petitioner’s selection by the District Committee and was, therefore, broad enough to encompass not only the objection that no meeting ever occurred but also the objection that no meeting occurred on the date specified in the resolution.

The Board found that the District Committee was duly constituted, had met, and had selected petitioner to fill the Democratic vacancy in nomination for the office of county board member on April 5, 2008. The Board also found that the District Committee members signed the resolution on April 5, 2008, and that petitioner attended the selection meeting and signed her statement of candidacy on April 5, 2008. The Board found that the resolution incorrectly averred that the selection meeting occurred on April 6, 2008. The Board found that Shepherdson, in her affidavit attached to petitioner’s motion to strike and dismiss, acknowledged that she incorrectly wrote the date of April 6, 2008, in the jurats on the resolution and the statement of candidacy. The Board found that the correct date of the District Committee meeting, April 5, 2008, was not identified anywhere in petitioner’s nominating papers.

The Board further found that the statutory provisions for filling a vacancy in nomination were mandatory and that petitioner’s nominating papers did not disclose the true date of her selection to fill the vacancy in nomination. The Board found that it was duty-bound to enforce the mandatory provisions of the Election Code even where no evidence of bad-faith noncompliance was presented. The Board sustained respondents’ objection and ordered that petitioner’s name not appear on the November 2008 general election ballot.

Petitioner filed an action in the trial court for judicial review of the Board’s decision, and the trial court reversed. The trial court determined that respondents had waived their objection that the resolution did not reflect the true date of the meeting. The trial court further determined that the placement of an incorrect date on the resolution was a de minimis error and constituted substantial compliance with the Election Code. The trial court thus ordered petitioner’s name to appear on the November 2008 general election ballot. Respondents timely appealed, and we expedited this appeal on our own motion pursuant to Supreme Court Rule 311 (155 Ill. 2d R. 311).

We are required to review the Board’s decision rather than the trial court’s decision. See Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 212 (2008); see also Bergman v. Vachata, 347 Ill. App. 3d 339, 344 (2004), citing Lockhart v. Cook County Officers Electoral Board, 328 Ill. App. 3d 838, 841 (2002). We view an electoral board as an administrative agency (Cinkus, 228 Ill. 2d at 209), and the standards of review are essentially identical (Cullerton v. Du Page County Officers Electoral Board, 384 Ill. App. 3d 989, 991 (2008)). An electoral board’s findings of fact are deemed prima facie true and correct and will not be overturned on appeal unless they are against the manifest weight of the evidence. Cullerton, 384 Ill. App. 3d at 991, citing Cinkus, 228 Ill. 2d at 210. However, an electoral board’s decisions on questions of law are not binding on a reviewing court, and a reviewing court will review de novo such questions. Cullerton, 384 Ill. App. 3d at 991, citing Cinkus, 228 Ill. 2d at 210-11. An electoral board’s rulings on mixed questions of law and fact — questions on which the historical facts are admitted, the rule of law is undisputed, and the only remaining issue is whether the facts satisfy a statutory standard — will not be disturbed on review unless clearly erroneous. Cullerton, 384 Ill. App. 3d at 991, citing Cinkus, 228 Ill. 2d at 211.

Respondents contend first that the trial court erred when it found that they had waived their argument that the District Committee meeting took place on a date other than that set forth on the resolution to fill the vacancy in nomination. Respondents argue that their objection challenging the existence of an actual meeting was sufficient to encompass their specific objection that the meeting took place on a date other than that set forth in the resolution. Alternatively, respondents argue that, once the Board heard evidence that the meeting did not occur on the date noted in the nominating papers, the Board was compelled to rule on that evidence and find the nomination to be invalid.

The Board is a creature of statute and its authority is derived from our legislature. Delay v. Board of Election Commissioners, 312 Ill. App. 3d 206, 209 (2000), citing Kozel v. State Board of Elections, 126 Ill. 2d 58, 68 (1988). Section 10 — 8 of the Election Code states in pertinent part:

“The objector’s petition shall give the objector’s name and residence address, and shall state fully the nature of the objections to the certificate of nomination or nomination papers or petitions in question, and shall state the interest of the objector and shall state what relief is requested of the electoral board.” 10 ILCS 5/10 — 8 (West 2006).

The Election Code does not allow parties to file amendments to their objectors’ petitions and does not authorize an electoral board to raise sua sponte objections to nominating petitions. Delay, 312 Ill. App. 3d at 210, citing Reyes v. Bloomingdale Township Electoral Board, 265 Ill. App. 3d 69, 72 (1994). This issue raises no factual question but only a question of law, which we review de novo. See, e.g., Cullerton, 384 Ill. App. 3d at 991, citing Cinkus, 228 Ill. 2d at 210-11.

Paragraph nine of respondents’ objectors’ petition stated the nature of their objection, alleging that the appointment of petitioner was improper because, on information and belief, the District Committee:

“was never validly assembled *** and *** no such meeting ever did occur as required by law *** in order to validly execute the resolution purporting to nominate the Candidate to fill the vacancy in nomination.”

The provisions of the Election Code are mandatory and require the objectors to “state fully” the nature of their objection (see 10 ILCS 5/10 — 8 (West 2006)); however, the Election Code does not address the degree of precision that constitutes compliance. See Morton v. State Officers Electoral Board, 311 Ill. App. 3d 982, 985 (2000). In the present case, respondents claimed that the District Committee meeting was never properly assembled and never occurred at all. The resolution reflected that the District Committee validly assembled on April 6, 2008, to fill the vacancy in nomination. Had the Board simply gone forth with the hearing on respondents’ objection at this stage, without considering the subsequent motions, the evidence at the hearing would have revealed that no such meeting did in fact occur on April 6, 2008, as set forth in the resolution. When respondents responded to petitioner’s motion to strike and dismiss by specifically alleging that the resolution did not reflect the true date of the meeting, they did not create a new objection but, rather, crafted a more precise argument regarding their objection.

Respondents’ objection pertaining to the occurrence of the District Committee meeting was sufficient to include the specific objection pertaining to the trae date of the meeting. We therefore conclude that the trial court erred when it ruled that respondents had waived their argument that the District Committee meeting took place on a date other than that set forth in the resolution to fill the vacancy in nomination. We hold that the Board properly determined that respondents had not waived the ability to challenge the sufficiency of the papers for petitioner’s failure to include the true date of her nomination. Our resolution of this contention obviates the need to address respondents’ alternative argument on the issue of waiver.

Respondents next contend that the trial court erred when it determined that the placement of an incorrect date on the resolution was a de minimis error and constituted substantial compliance with the mandatory requirement of section 7 — 61 of the Election Code (10 ILCS 5/7 — 61 (West 2006)). Respondents do not dispute that the resolution was timely filed or that, aside from the date of the meeting, the content of the resolution was accurate. Respondents maintain, rather, that petitioner was required to identify the true date of the District Committee meeting on the resolution and that the appropriate sanction for this error is the exclusion of petitioner’s name from the November 2008 general election ballot.

Section 7 — 61 provides in pertinent part:

“The resolution to fill a vacancy in nomination shall be duly acknowledged before an officer qualified to take acknowledgments of deeds and shall include, upon its face, the following information:

(a) the name of the original nominee and the office vacated;

(b) the date on which the vacancy occurred;

(c) the name and address of the nominee selected to fill the vacancy and the date of selection.” 10 ILCS 5/7 — 61 (West 2006).

The Board found that the true date the District Committee duly constituted, met, selected petitioner to fill the vacancy in nomination, and signed the resolution was April 5, 2008. The Board found that the resolution incorrectly averred that the meeting occurred on April 6, 2008. The Board found that Shepherdson acknowledged that she incorrectly wrote the date of April 6, 2008, in the jurats on the resolution and the statement of candidacy. The Board, however, found that the Election Code provisions for filling a vacancy in nomination were mandatory and that petitioner’s nominating papers did not disclose the true date of her selection to fill the vacancy in nomination. The Board concluded that it was duty-bound to enforce the mandatory provisions of the Election Code even where no evidence of bad-faith noncompliance was presented.

Respondents argue that the trial court had no basis upon which it could have determined that the incorrect date on the resolution was a scrivener’s error and that the resolution substantially complied with the Election Code, because the Board made no such findings. Respondents argue that the provisions of section 7 — 61 are mandatory and should be construed strictly to ensure the integrity of the ballot. Because this case involves an examination of the legal effect of a given set of facts — whether the information contained in the resolution complied with the requirements of the Election Code — the issue is best considered a mixed question of fact and law. See, e.g., Cardona v. Board of Election Commissioners, 346 Ill. App. 3d 342, 343 (2004) (stating that whether information contained in a receipt filed by a candidate complied with the requirements of the Election Code was a mixed question of fact and law). For mixed questions of fact and law, a clearly erroneous standard of review applies. See Cinkus, 228 Ill. 2d at 211; see also City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998). Accordingly, we will not reverse the Board’s decision unless it is clearly erroneous. Belvidere, 181 Ill. 2d at 205.

Under the plain language of the Election Code, “[t]he resolution to fill a vacancy in nomination *** shall include, upon its face, *** the name and address of the nominee selected to fill the vacancy and the date of selection.” 10 ILCS 5/7 — 61 (West 2006). Legislative directives containing the word “shall” are typically interpreted to be mandatory. Jakstas v. Koske, 352 Ill. App. 3d 861, 863 (2004), citing Brennan v. Kolman, 335 Ill. App. 3d 716, 719 (2002). If a statute imposes requirements and expressly states that the failure to fulfill those requirements renders the ballot listing invalid, courts are generally bound to interpret the statute as mandatory. See Jakstas, 352 Ill. App. 3d at 863, citing Brennan, 335 Ill. App. 3d at 719. Here, section 7 — 61 contains such an express statement: “no candidate of the party for the office shall be listed on the ballot at the general election unless such vacancy is filled in accordance with the requirements of this Section.” 10 ILCS 5/7 — 61 (West 2006). Because section 7 — 61 imposes directives containing the word “shall” and contains an express statement invalidating the ballot listing if the requirements are not fulfilled, it is considered a mandatory provision. Our determination is also supported by Zerante v. Bloom Township Electoral Board, 287 Ill. App. 3d 976 (1997), in which the reviewing court concluded that the date-of-selection provision of section 7 — 61 is mandatory. Therefore, the resolution must include on its face the date the nominee was selected to fill a vacancy in nomination.

The special concurrence employs language from Williams v. Butler, 35 Ill. App. 3d 532 (1976), reflecting, inter alia, that the right of access to a place on the ballot “ ‘should not be impeded by unreasonable, frivolous, or unnecessarily limiting requirements,’ ” to support extending the rationale from Craig v. Peterson, 39 Ill. 2d 191 (1968), and holding that a court may strictly enforce the Election Code’s restrictions on candidacy to deny a candidate ballot access only where doing so is reasonable and necessary for the purposes of the Election Code. 385 Ill. App. 3d at 465, quoting Williams, 35 Ill. App. 3d at 536. In doing so, however, the special concurrence would interpret the date requirement here as being directory and not mandatory. 385 Ill. App. 3d at 465.

In Craig, our supreme court permitted the relaxation of a mandatory ballot-initialing requirement under the Election Code, but did so under very limited factual circumstances not present here. See Craig, 39 Ill. 2d at 197, 200-01 (pertaining to counting uninitialed absentee ballots and stating that the statutory commands would be “held only directory when applied in the context of the case before us”). In Reynolds v. Champaign County Officers Electoral Board, 379 Ill. App. 3d 423, 424 (2008), the reviewing court recognized our supreme court’s abrogation of the Williams decision in Bowe v. Chicago Electoral Board, 79 Ill. 2d 469, 470 (1980), which held that the requirements of section 7 — 10 of the Election Code were mandatory and not directory. In DeFabio v. Gummersheimer, 192 Ill. 2d 63, 66-67 (2000), our supreme court reaffirmed the mandatory nature of the initialing requirement of section 24A — 10.1 of the Election Code. Given the plain language of section 7 — 61, the limited application of Craig, and the questionable authority of Williams, as well as our supreme court’s reaffirmation of the mandatory nature of the Election Code’s provisions, we decline to reclassify the date requirement of section 7 — 61 from mandatory to directory.

We note, however, that mandatory compliance does not necessarily mean strict compliance. Jakstas, 352 Ill. App. 3d at 864. Substantial compliance can satisfy even a mandatory provision of the Election Code. Jakstas, 352 Ill. App. 3d at 864, citing Brennan, 335 Ill. App. 3d at 720. In the present case, the Board found that Shepherdson acknowledged that she incorrectly wrote the date of April 6, 2008, in the jurats on the resolution and the statement of candidacy and that no evidence of bad-faith noncompliance was presented. Despite its findings, though, the Board concluded that it was duty-bound to enforce the mandatory provisions of the Election Code. The Board’s reasoning was flawed and, thus, clearly erroneous, because it considered only the correctness of the date of selection and thus failed to consider whether the inclusion of an incorrect date in the resolution substantially complied with the mandatory provisions of the Election Code.

Respondents argue that the inclusion of an incorrect date on the face of the resolution must be grounds for striking the papers and, in support of their argument, cite In re Objection of McSparin, 352 Ill. App. 3d 352 (2004), and Zerante v. Bloom Township Electoral Board, 287 Ill. App. 3d 976 (1997). In both McSparin and Zerante, the reviewing court affirmed the invalidation of the candidate’s nomination papers because the papers were facially invalid for not containing any date of selection on the face of the resolution, thus rendering the resolution legally insufficient. McSparin, 352 Ill. App. 3d at 356-57; Zerante, 287 Ill. App. 3d at 980. Our case is distinguishable from both McSparin and Zerante, however, in that petitioner’s resolution was facially valid, and both the true date of selection and the incorrect date fell within all statutory time constraints. See 10 ILCS 5/7 — 61 (West 2006). Shepherdson did affix a date to the resolution, albeit, by virtue of a scrivener’s error, the incorrect date. The error in McSparin and Zerante was that of noncompliance, the complete failure to enter a date on the resolution, as opposed to the circumstances of the present case, in which an incorrect date was entered on the resolution by mistake. Because the factual circumstances are dissimilar, McSparin and Zerante are not persuasive authority. See also El-Aboudi v. Thompson, 293 Ill. App. 3d 191, 194 (1997) (noting that “a candidate does not substantially comply with the requirements where he [or she] completely ignores one of the statutory elements”).

The provisions of the Election Code are designed to protect the integrity of the electoral process. Welch v. Johnson, 147 Ill. 2d 40, 56 (1992). Ultimately, though, access to a place on the ballot is a substantial right and not to be lightly denied. Nader v. Illinois State Board of Elections, 354 Ill. App. 3d 335, 345 (2004), citing Welch, 147 Ill. 2d at 56. The Board found that the District Committee members signed the resolution on April 5, 2008, and that the resolution incorrectly averred that the selection meeting occurred on April 6, 2008, but that there was no evidence of bad-faith noncompliance. A minor error in a candidate’s nominating papers should not result in a candidate’s removal from the ballot. Sullivan v. County Officers Electoral Board, 225 Ill. App. 3d 691, 693 (1992). Moreover, substantial compliance with the Election Code is acceptable when the invalidating charge concerns a technical violation that does not affect the legislative intent to guarantee a fair and honest election. Reynolds, 379 Ill. App. 3d at 425, citing Madden v. Schumann, 105 Ill. App. 3d 900, 903-04 (1982).

Here, other than objecting to the date of selection, respondents do not challenge the form of petitioner’s nomination papers, their timeliness, or their authenticity. Petitioner’s resolution was duly acknowledged pursuant to section 7 — 61, and the resolution included, on its face, the name of the original nominee and the office vacated; the date on which the vacancy occurred; and the name and address of the nominee selected to fill the vacancy. But for the scrivener’s error, petitioner’s resolution complied in every mandatory aspect of section 7 — 61. Further, this type of error does not impair the integrity of the electoral process, as one of the board members herself characterized the error as “a good faith error.” Under the circumstances presented, we conclude that petitioner has substantially complied with section 7 — 61 of the Election Code, thus satisfying the mandatory provision in question.

We affirm the judgment of the circuit court of Lake County.

Affirmed.

BURKE, J., concurs.