2014 IL App (1st) 142618 Nos. 1-14-2618, 1-14-3062 (cons.) Opinion filed November 4, 2014
FIFTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
KEN ZUREK, ) Appeal from the Circuit Court ) of Cook County. Petitioner-Appellant, ) ) v. ) Nos. 14 COEL 19, 14 COEL 25 ) THE FRANKLIN PARK OFFICERS ) ELECTORAL BOARD, and Its Members ) The Honorable BARRETT F. PEDERSEN, Individually ) James A. Zafiratos and and as Chairman, JOHN C. JOHNSON, ) Paul A. Karkula, Individually and as Member, TOMMY ) Judges, presiding. THOMSON, Individually and as Franklin ) Park Village Clerk; RANDALL ) PETERSEN, Individually and as Objector, ) and ROBERT GODLEWSKI, Individually ) and as Objector, ) ) Respondents-Appellees ) ) (David Orr as Cook County Clerk, and Lisa ) Madigan as Illinois Attorney General, ) Respondents). )
JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Reyes concurred in the judgment and opinion. Nos. 1-14-2618, 14-3062 (cons.)
OPINION
¶1 Petitioner Ken Zurek and others collected over 700 signatures for the
purpose of placing on the ballot the question of whether there should be term
limits for Franklin Park village officials. Respondents Randall Petersen and
Robert Godlewski filed objections, and the Franklin Park Electoral Board
sustained their objections and refused to place the question on the ballot. The
circuit court affirmed. For the following reasons, we reverse and remand for
further proceedings.
¶2 BACKGROUND
¶3 I. Proposed Referendum Question & Objections
¶4 In June and July, 2014, Ken Zurek and others collected over 700
signatures in order to place on the ballot for the general election on November
4, 2014, "the following binding referendum question of public policy":
"Shall the Village of Franklin Park enact term limits prohibiting all
people from serving more than eight (8) years as Village Trustee, Village
President and Village Clerk, including service as Village Trustee, Village
President and Village Clerk, effective immediately upon approval and
passage of this binding referendum?"
¶5 On August 11, 2014, Randall Petersen and Robert Godlewski filed an
"Objectors' Petition" to Zurek's proposed referendum question. They did not
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object to the number of signatures or the validity of those signatures. Their
objections were directed solely at the validity of the question itself. Primarily,
they objected on the ground that the question referred to years rather than terms
of service and that, thus, the question was not "tied to the regular election
cycles." They argued that, as a result, the question was ambiguous as to what
would happen when an officer reached the eight-year limit and ambiguous as to
whether the referendum had the power to nullify the results of the prior 2013
election.
¶6 II. Appeal No. 1-14-2618
¶7 A. Petition
¶8 Ken Zurek filed a petition with the circuit court on August 15, 2014,
seeking the replacement of all three members of the Franklin Park Electoral
Board with three public members, claiming that it was to ensure a fair and
impartial hearing of the objections to his proposed term limit referendum
pending before the Franklin Park Electoral Board.
¶9 In his petition, he alleged the following facts:
¶ 10 On July 28, 2014, Zurek and Peter Negron, who is not a party to this
consolidated appeal, filed a proposed "referendum question of public policy"
with the Franklin Park Village Clerk which asked whether Franklin Park should
enact term limits prohibiting all the village's elected officials from serving more
3 Nos. 1-14-2618, 14-3062 (cons.)
than eight years and, on August 11, 2014, Randall Petersen and Robert
Godlewski filed a petition objecting to the referendum question.
¶ 11 Franklin Park has an electoral board whose three members are: (1) the
village president, Barrett F. Pedersen; (2) a village trustee, John C. Johnson;
and (3) the village clerk, Tommy Thomson. If the proposed term-limit
referendum is passed, it would preclude all three of them from running for their
positions again in 2017 and thereafter.
¶ 12 Pedersen, as the village president, is a salaried employee and has
announced that he is running again for village president in 2017, and he has
formed a political committee to achieve that end.
¶ 13 John C. Johnson, as a village trustee, and Tommy Thomson, as the
village clerk, are also salaried employees.
¶ 14 Attached to the petition were several documents. The first exhibit
included, among other things, a copy of an amendment, dated February 10,
2014, of the "Statement of Organization" for "Friends of Barrett Pedersen,"
which stated that the office he was seeking was "Franklin Park Mayor 2017."
¶ 15 The second exhibit was a copy of a Herald Journal article from July 31,
2014, entitled: "Petitions seek term limit referendum in Franklin Park." The
article described Zurek and others as being for it, and then stated: "Trustee
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John Johnson sees it differently." The article then quoted Johnson as stating:
"Every two years, people have the opportunity to elect half the board."
¶ 16 B. Response
¶ 17 The record does not contain any response to the petition by Randall
Petersen and Robert Godlewski, the two individuals who filed objections to
Zurek's proposed referendum question.
¶ 18 However, on August 25, 2014, the Municipal Officers Electoral Board
for the Village of Franklin Park filed a response, which stated:
"The Objections raise only questions of law as to the question itself.
There is no attack to signatures, circulators, form of the petition, or the
manner of collecting the signatures. The arguments made are all as to the
constitutionality and legal import of the question itself. There are no fact
questions for the Electoral Board to decide."
As quoted above, the board's response stated that there were "no fact questions
for the Electoral Board to decide" and, thus, the board did not dispute any facts
asserted in Zurek's August 15, 2014, petition.
¶ 19 In its response, the board argued that section 10-9(6) of the Election
Code expressly limits the grounds on which an electoral board member may be
disqualified to only those situations in which an electoral board member "is a
candidate for the office with relation to which the objector's petition is filed."
5 Nos. 1-14-2618, 14-3062 (cons.)
10 ILCS 5/10-9 (eff. July 29, 2013). However, since the board chose not to
dispute any facts, it did not deny that the three members of the electoral board
are candidates for their same positions in the next election.
¶ 20 C. Reply
¶ 21 In his reply, Zurek argued, among other things, that the board lacked
standing to defend its own decision in court.
¶ 22 D. Order Appealed from in Appeal No. 1-14-2618
¶ 23 On August 28, 2014, the trial court denied Zurek's petition to disqualify
the three-member electoral board, holding:
"1. The Court rules in accordance with 10 ILCS 5/10-9(6)(d) which
establishes a process for the substitution of an Electoral Board in the
event of a Conflict, and not based upon Cook County Circuit Rule 21 as
claimed by Petitioner. See Kaemmerer, 333 Ill. App. 3d at 959-60
[Kaemmerer v. St. Clair County Electoral Bd., 333 Ill. App. 3d 956, 959-
60 (2002)].
2. The petitioner has not overcome the 'presumption of honesty' by
falling to show either 'dishonesty' or an 'unacceptable risk of bias.' Girot
v. Keith, 212 Ill. 2d 372 at 380 [Girot v. Keith, 212 Ill. 2d 372, 380
(2004)].
6 Nos. 1-14-2618, 14-3062 (cons.)
Accordingly, it is hereby ordered that petitioners request to disqualify
the board is denied."
¶ 24 This order was entered in case no. 14 COEL 19, and it is the subject of
appeal no. 1-14-2618. On August 29, 2014, Zurek filed a notice of appeal from
this order, which asked this court:
"to reverse the above-cited Circuit Court Final Order [filed August 28,
2014] and remand this cause with directions to the Circuit Court of Cook
County in Illinois to:
(1) Enter an order replacing the entire Franklin Park Electoral Board
with public members forthwith, and
(2) Should this appeal be considered mooted the Appellate Court
should decide this appeal under the public interest doctrine."
¶ 25 The notice of appeal in appeal no. 1-14-2618 does not list any defendants
and instead is captioned "in the matter of" Zurek's term limit petition and his
request to replace the Franklin Park Electoral Board with public members.
¶ 26 III. Appeal No. 1-14-3062
¶ 27 On August 26, 2014, which was two days before the trial court's order in
appeal no. 1-14-2618, Zurek filed a motion with the electoral board to strike the
objectors' petition alleging numerous defects, including: (1) that the objectors
are not legal voters as expressly required by the election code; (2) that the
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objectors do not allege any actual conflict if the referendum question is applied
to current Franklin Park officers; (3) that, since the term of office for the
Village President, Trustee and Clerk remains four years, the referendum's eight-
year limit works perfectly with the existing election cycle; (3) that the
referendum prohibits an individual from serving more than two terms; and (4)
that a hypothetical conflict in some future election is not enough to defeat the
will of the over 700 voters who signed in favor of the referendum, without a
single signature challenged.
¶ 28 Zurek attached as an exhibit documents showing that the voters of the
Village of Niles passed in the April 9, 2013, general election a referendum
which was worded almost exactly the same as Zurek's proposed referendum.
The Niles referendum asked: "Shall the Village of Niles enact term limits
prohibiting all people from serving more than 15 years on the Village of Niles
Board of Trustees, including service as President/Mayor of the Village and
Village Board, effective immediately upon approval and passage of this binding
referendum?"
¶ 29 On August 26, 2014, Zurek also filed: (1) written objections to the
composition of the board, in which he asked the three board members to recuse
themselves so that they could be replaced with public members; (2) a motion to
disqualify the board's attorney; and (3) a motion to strike various rules of the
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Franklin Park Electoral Board, such as Rule No. 10 which authorized the board
to retain an attorney for the purpose of defending the board's decision in court.1
He moved to strike on the ground that the board had no standing to act as an
advocate.
¶ 30 The board held public hearings on Petersen's and Godelewski's objections
to Zurek's referendum question on August 18, September 11 and September 17,
2014, and allowed public comment on September 11. Those present at the
public hearings included Zurek and Patrick G. Connelly, who was the counsel
for Petersen and Godlewski.
¶ 31 At the public hearing on September 11, 2014, the board members
considered Zurek's motion that they recuse themselves, and they voted to adopt
the August 28, 2014, trial court order which had denied this same request in the
other case. Zurek objected and asked the board members to reconsider; and the
board voted again to deny his recusal motion.
¶ 32 On September 17, 2014, the Franklin Park Electoral Board, consisting of
Pedersen, Thomson and Johnson, issued an 11-page document entitled
"Findings and Decision." 10 ILCS 5/10-10 (eff. July 1, 2014) ("The electoral
board must state its findings in writing, and must state in writing, which 1 The rules are in the appellate record, and Rule No. 10 provides in relevant part: "The Board's attorney is authorized and directed to defend the Board's decision if a petition for judicial review is filed and to defend the Board in any litigation that may arise thereafter." 9 Nos. 1-14-2618, 14-3062 (cons.)
objections, if any, it has sustained."). In this decision, the board found that the
"Electoral Board was legally constituted according to the laws of the State of
Illinois," and it denied Zurek's objections to the composition of the board. The
primary reason which it provided in support of its denial was: "In light of the
[Judge] Zafiratos Order [entered August 28, 2014], Proponent's Electoral Board
Motion is denied." In addition, the board observed that the "Election Code
contains no mechanism for electoral board members to individually recuse
themselves from service for any reason."
¶ 33 With respect to Petersen and Godlewski's objections, the board sustained
their objections:
"with the result that the Petition for Referendum is found INVALID, in
conformity with the findings above, and that the Proponent's referendum
question shall not appear on the ballot for the November 4, 2014, General
Election."
¶ 34 On September 18, 2014, the next day after the board issued its decision,
Zurek petitioned the circuit court for judicial review. 10 ILCS 5/10-10.1 (West
2012) (an "objector aggrieved by the decision of an electoral board may secure
judicial review of such decision in the circuit court" by filing "a petition with
the clerk of the court" and serving a copy "upon the electoral board and other
parties to the proceeding"). The requested relief included that, if it should "be
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rendered impossible for the term limit referendum to be included on the
November 4, 2014 general election ballot then the court should enter an order
directing the Cook County Clerk to include the term limit referendum on the
ballot for the next scheduled general election."
¶ 35 On September 25, 2014, Petersen and Godlewski, the two objectors, filed
a motion to dismiss Zurek's petition for lack of subject matter jurisdiction
because Zurek allegedly failed to file proof of service. The attorney and law
firm that filed an appearance in this case on behalf of the Village of Franklin
Park was the same attorney and law firm that filed this motion on behalf of the
objectors. The board also joined the objectors' motion.
¶ 36 The trial court affirmed the decision of the board less than a month later,
on October 7, 2014. At the hearing, the court stated that it would not consider
the "issue regarding the composition of the Board," because that issue had
already been decided by another judge. The next day, on October 8, 2014,
Zurek filed a notice of appeal from that decision. 10 ILCS 5/10-10.1 (West
2012) (the trial court "shall make its decision promptly"). This became appeal
no. 1-14-3062.
¶ 37 A day after filing appeal no. 1-14-3062, Zurek filed a motion on October
9, 2014, with the appellate court to consolidate both appeals, which this court
granted on October 10, 2014. This court also ordered an expedited briefing
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schedule, with appellant's consolidated brief due Wednesday, October 15, 2014,
appellee's consolidated brief due Monday, October 20, 2014, and no reply brief
allowed. Early voting began in Cook County on Monday, October 20, 2014.
¶ 38 The petition in circuit court no. 2014 COEL 25 and the subsequent notice
of appeal for no. 1-14-3062 includes as defendants: (1) Randall Petersen and
Robert Godlewski, the two objectors to Zurek's proposed referendum; (2) David
Orr, the Cook County Clerk; and (3) Lisa Madigan, the Illinois Attorney
General. Zurek's petition explains that he named: (1) David Orr because, in
Orr's capacity as County Clerk, he is required to certify and print the ballot for
the November 4, 2014, election in Franklin Park; and (2) Lisa Madigan
because, in her capacity as attorney general, she is required to defend the
constitutionality of Illinois statutes. Although Lisa Madigan and David Orr
filed appearances in the court below, they chose not to file briefs with this
court. David Orr filed an answer in the trial court stating that he had "no
interest" in the issue. Thus, they are not parties to this appeal.
¶ 39 ANALYSIS
¶ 40 As we stated above, petitioner Ken Zurek and others collected over 700
signatures for the purpose of placing on the ballot the question of whether there
should be term limits for Franklin Park village officials. Respondents Randall
Petersen and Robert Godlewski filed objections, and the Franklin Park Electoral
12 Nos. 1-14-2618, 14-3062 (cons.)
Board sustained their objections and did not place the question on the ballot.
The circuit court affirmed. For the following reasons, we reverse and remand
for further proceedings.
¶ 41 I. Standing
¶ 42 As a preliminary issue, petitioner Zurek argued in his appellate brief that
the board lacked standing to file a brief in the trial court. In addition, he filed an
appellate motion stating that the board lacked standing in this court and
requesting that we disregard the board's appellate brief. He argued that "for the
Franklin Park Municipal Officers Electoral Board to act as [an] advocate in this
appeal is just as ludicrous as if [the trial judges] would hire attorneys to file
briefs in their behalf in support of their decisions." The board chose not to
address the standing issue in its appellate brief, but it did file a separate
response to the motion. We took the motion and response under advisement to
be decided in this opinion and, for the reasons discussed below, we conclude
that the board has standing and, even if it does not have standing, it would not
affect our decision in this case. Sakonyi v. Lindsey, 261 Ill. App. 3d 821, 823
(1994) (determination of whether the board has standing to defend its decision
does not affect the outcome of the appeal).
¶ 43 In Bendell v. Education Officers Electoral Board for School District 148,
338 Ill. App. 3d 458 (2003), this court addressed the issue of: "whether the
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Board and its members have standing to appeal the circuit court's reversal of the
Board's decision." Bendell, 338 Ill. App. 3d at 460. However, in the case at
bar, the issue is whether the board can file a brief and argue its position as a
nominal defendant.
¶ 44 In Bendell, we found that:
"[T]he Election Code does not expressly or implicitly authorize the
Board to assume the role of advocate for the purpose of prosecuting an
appeal. See 10 ILCS 5/1-1 et seq. (West 1996); Kozenczak, 299 Ill. App.
3d at 207. Instead, the Election Code only authorizes the Board to
conduct hearings, administer oaths, subpoena and examine witnesses,
subpoena documentary evidence and pass upon objections to nomination
petitions and objections to petitions for the submission of questions of
public policy. See 10 ILCS 5/10-9, 10-10, 28-4 (West 1996); Kozenczak,
299 Ill. App. 3d at 207. The court further held that the Board functions in
an adjudicatory or quasi-judicial capacity, and that to allow the Board to
assume the role of advocate would compromise the Board's required duty
of impartiality. Kozenczak, 299 Ill. App. 3d at 207. The court further
stated that the Board was not a party before an administrative agency, nor
was it personally aggrieved by the reversal of its decision. Kozenczak,
299 Ill. App. 3d at 207. We find the reasoning in Kozenczak and
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conclude, therefore, that the Board lacks standing to prosecute this
appeal." Bendell, 338 Ill. App. 3d at 460.
¶ 45 The above quote discusses sections of the Code as they existed in 1996.
However, there have been no changes to these sections of the Code which affect
our decision. See 10 ILCS 5/10-9 (eff. July 29, 2013); 10-10 (eff. July 1,
2014); 28-4 (eff. Dec. 13, 1986).
¶ 46 In the above quote, we relied extensively on the Kozenczak case in which
the appellate court ruled, as we did in Bendel, that the electoral board lacked
standing to prosecute an appeal. Kozenczak, 299 Ill. App. 3d at 207 ("the Board
lacks standing to prosecute this appeal").
¶ 47 There are many appeals in which the electoral board has filed a brief; but
these are primarily cases in which the appellee did not challenge the board's
standing and thus standing was not an issue in those appeals. E.g., Burke v.
Electoral Board of Village of Bradley, 2013 IL App (3d) 130141, ¶ 32 (the
electoral board appears to have filed an appellate brief because the court stated
that "[n]either the Electoral Board nor the objector has identified a single case"
with a particular holding; but standing was not raised as an issue).
¶ 48 Similarly, the Kozenczak court observed: "While the Board cites several
cases in which an electoral board appealed the reversal of its decision to the
appellate court [citations], we find each of those cases to be inapposite. The
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appellee never challenged the electoral board's standing in those cases, and,
thus, standing was never an issue on appeal." Kozenczak, 299 Ill. App. 3d at
207 (citing El-Aboudi v. Thompson, 293 Ill. App. 3d 191, 227 (1997); Thomas
v. Powell, 289 Ill. App. 3d 143 (1997); Allord v. Municipal Officers Electoral
Board for the Village of South Chicago Heights, 288 Ill. App. 3d 897 (1997);
and Schumann v. Fleming, 261 Ill. App. 3d 1062 (1994)).
¶ 49 The board failed to cite any authority to support its position that it has
standing to file a brief and plaintiff cannot cite a case where the board was
prohibited from filing a brief. The board's response asserts that a response by an
electoral board is filed "virtually every time an electoral board matter is
appealed," and that its counsel is "counsel to many electoral boards during
election cycles." In addition, we cannot find an Illinois case that states an
electoral board cannot file a brief when it has been made a nominal defendant in
a lawsuit. The board is not required to be made a defendant in this appeal. 10
ILCS 5/10-10.1 (West 2012) (although the board must be served with a copy of
the petition, the Election Code does not require it to file an answer or be named
as a defendant). However, if a plaintiff joins them as a defendant, they should
be able to respond by way of filing a brief.
¶ 50 In Speck v. Zoning Bd. of Appeals of City of Chicago, 89 Ill. 2d 482, 485-
86 (1982), our supreme court analyzed the powers and responsibilities of the
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zoning board as set forth in the Chicago zoning ordinance, and concluded that a
zoning board lacked standing to prosecute an appeal from a reversal of its own
decision, since the board functioned in an adjudicatory or quasi-judicial
capacity and the ordinance did not authorize the board, either explicitly or
implicitly, to act as an advocate. Speck, 89 Ill. 2d at 485-86.
¶ 51 From this Speck line of cases, our supreme court subsequently carved out
an exception in Braun v. Retirement Board of Firemen's Annuity & Benefit
Fund, 108 Ill. 2d 119, 128 (1985). In Braun, the supreme court observed that
the retirement board, unlike the zoning board in Speck, had extensive
managerial responsibilities so that it was more than a tribunal. Braun, 108 Ill.
2d at 128.
¶ 52 However, the Kozenczak court expressly held that the Braun exception
does not apply to election boards, for the following reasons:
"Like the zoning ordinance in Speck, the Election Code (10 ILCS 5/1-
1 et seq. (West 1996)) does not expressly or implicitly authorize the
Board 'to assume the role of advocate for the purpose of prosecuting an
appeal.' See Speck, 89 Ill. 2d at 485. Instead, the Election Code only
authorizes the Board to conduct hearings, administer oaths, subpoena and
examine witnesses, subpoena documentary evidence, and pass upon
objections to nomination petitions and objections to petitions for the
17 Nos. 1-14-2618, 14-3062 (cons.)
submission of public policy. See 10 ILCS 5/10-9, 10-10, 28-4 (West
1996). Thus, like the zoning board in Speck, the Board here functions 'in
an adjudicatory or quasi-judicial capacity,' and to allow the Board to
assume the role of advocate would compromise the Board's required duty
of impartiality. See Speck, 89 Ill. 2d at 485-86. ***
Furthermore, unlike the retirement board in Braun, there is no
evidence that the Board in this case '[had] extensive managerial
responsibilities [so that it was] more than a tribunal.' Braun, 108 Ill. 2d at
128. In fact, the Election Code provides otherwise. Therefore, Braun is
distinguishable, and the Board lacks standing to prosecute this appeal
according to Speck." Kozenczak 299 Ill. App. 3d at 207.
Thus, the Braun exception does not apply to the case at bar, and the Speck line
of cases concerns standing to appeal, not standing to file a brief when the board
is made a nominal defendant in a lawsuit.
¶ 53 The only case cited by the board in its response to Zurek's motion is
Kozenczak. In its response, the board argues that, since it was named as a
respondent, it therefore has standing to file a brief.
¶ 54 The only statutory section cited by the board in its response is section
10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2012)), which governs
judicial review of electoral board decisions and which, the board argues,
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authorizes it to "act[] as a Respondent." However, this section does not say
that. This section directs the objector to serve a copy of his or her petition on
the electoral board which, in turn, then triggers the board's duty to file the
record of proceedings with the clerk of the court. 10 ILCS 5/10-10.1 (West
2012). This section specifically provides: "No answer to the petition need be
filed ***." 10 ILCS 5/10-10.1 (West 2012). There is nothing in this section
which confers standing on the board to act as an advocate for its administrative
decision in subsequent court proceedings. C.f. Bettis v. Marsaglia, 2013 IL
App (4th) 130145, ¶ 27 (the Election Code does not require the naming of the
electoral board and its members in the caption of the petition for judicial
review).
¶ 55 We continue to adhere to the view we expressed in Bendell that electoral
boards must remain impartial and cannot simultaneously serve as impartial
adjudicators while appealing the reversal of their own decisions. However, as
we have previously pointed out, plaintiff made the board a nominal defendant
when he did not have to do so, and as a result, the board should have standing to
file a brief. Thus, the Franklin Park Electoral Board and its three members,
Barrett F. Pedersen, John C. Johnson and Tommy Thompson, have standing to
pursue this appeal.
19 Nos. 1-14-2618, 14-3062 (cons.)
¶ 56 However, there is no real standing issue in this case. Traditionally, standing
is a legal concept that applies to one bringing a lawsuit and requires that a party
have a sufficient personal and direct stake in the controversy to obtain a judicial
resolution of it. Standing requires that there be some kind of injury or damage
in fact, such that the party can maintain a suit in the traditional adversarial
relationship found in the judicial process.
¶ 57 We cannot find any authority for the concept that standing applies to a
nominal defendant's ability to file a brief in the appellate court, nor has plaintiff
cited any relevant authority to that issue. 35 Am. Jur. Proof of Facts 3rd 493
(1996).
¶ 58 However, even if the Board did not have standing, this would not affect the
standing of the objectors to pursue this appeal. Bendell, 338 Ill. App. 3d at 461
(the objector "has standing to prosecute this appeal"); Kozenczak, 299 Ill. App.
3d at 208 (the objector "clearly has standing to prosecute this appeal"). They
still have standing, and we will consider their brief.
¶ 59 II. Standard of Review
¶ 60 Appeal no. 1-14-3062 includes a decision by the electoral board, as well
as a ruling by the trial court. Typically, when an appeal includes both a
decision by an electoral board and a ruling by the trial court, we review the
decision by the electoral board and not the ruling by the trial court. Cinkus v.
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Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 212
(2008) ("where a circuit court reviews an electoral board's decision *** we
review the decision of the board, not the court"). However, the review in this
case is somewhat convoluted because the board's decision was based on a prior
trial court's order, which was the order in appeal no. 1-14-2618.
¶ 61 The order in appeal no. 1-14-2618 includes only a ruling by the trial
court, but both appeals concern the same preliminary question which must be
answered before the objectors' petition can be addressed, and that is: whether
the existing three-person electoral board could review the objectors' petition.
¶ 62 First, we observe that " '[j]udical review of the decision of an electoral
board is intended to remedy arbitrary or unsupported decisions.' " Anderson v.
McHenry Township, 289 Ill. App. 3d 830, 832 (1997) (quoting Reyes v.
Bloomingdale Township Electoral Board, 265 Ill. App. 3d 69, 72 (1994)).
While we review questions of fact deferentially and we will disturb factual
determinations only if they are against the manifest weight of the evidence, we
review questions of law de novo. Anderson, 289 Ill. App. 3d at 832 (citing
Reyes, 265 Ill. App. 3d at 72). A judgment is against the manifest weight of the
evidence when an opposite conclusion is readily apparent, or when the findings
appear to be unreasonable, arbitrary or not based upon the evidence. Rhodes v.
Illinois Central Gulf R.R., 172 Ill. 2d 213, 242 (1996).
21 Nos. 1-14-2618, 14-3062 (cons.)
¶ 63 Since the resolution of this appeal requires us to interpret a section of the
Election Code, it presents a question of law that we review de novo. Metzger v.
DaRosa, 209 Ill. 2d 30, 34 (2004). De novo consideration means that we
perform the same analysis that a trial judge would perform. Khan v. BDO
Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
When we construe the meaning of a statute, "the primary objective of this
court is to ascertain and give effect to the intention of the legislature, and all
other rules of statutory construction are subordinated to this cardinal principle."
Metzger, 209 Ill. 2d at 34. "The plain language of the statute is the best
indicator of the legislature's intent." Metzger, 209 Ill. 2d at 34-35. "When the
statute's language is clear, it will be given effect without resort to other aids of
statutory construction." Metzger, 209 Ill. 2d at 35. "When interpreting
legislative enactments, we must read the statute as a whole and not as isolated
provisions." Metzger, 209 Ill. 2d at 37. In this endeavor, we consider both any
stated purpose of the particular code, as well as what Illinois courts have
previously determined the purpose of the code to be. Metzger, 209 Ill. 2d at 37.
We view the code "as a whole" in order to determine the purpose that the code
was "primarily designed" to accomplish. Metzger, 209 Ill. 2d at 38.
22 Nos. 1-14-2618, 14-3062 (cons.)
¶ 64 III. The Election Code
¶ 65 Section 10-9 of the Election Code (the Code) provides that the
"municipal officers electoral board" will "hear and pass upon objections to the
nomination of candidates for officers of municipalities." 10 ILCS 5/10-9(3) (eff.
July 29, 2013).
¶ 66 Section 28-4 states in its first sentence that, in addition to applying to
candidates, section 10-9 "shall apply to and govern, insofar as may be
practicable, objections to petitions for the submission of questions of public
policy" (10 ILCS 5/28-4 (West 2012)), such as the term-limit referendum
question proposed in the case at bar by Zurek. Section 28-4 also repeats in the
next paragraph that the "electoral board to hear and pass on objections" to
public policy questions "shall be the electoral board specified in Section 10-9."
10 ILCS 5/28-4 (West 2012).
¶ 67 Although the first sentence uses the word "shall," the legislators chose to
soften the normally mandatory quality of this word with the modifying phrase:
"insofar as may be practicable." Brennan v. Illinois State Board of Elections,
336 Ill. App. 3d 749, 759 (2002) ("The use of the word 'shall' is generally
regarded as mandatory when used in a statutory provision, but can be construed
as directory depending on the legislative intent."); Courtney v. County Officers
Electoral Board, 314 Ill. App. 3d 870, 873 (2000) ("The use of the word 'shall'
23 Nos. 1-14-2618, 14-3062 (cons.)
in a statutory provision, though generally regarded as mandatory, does not have
a fixed or inflexible meaning and may, in fact, be construed as meaning 'may'
depending on the legislative intent. [Citations.] And the word 'shall,' in
construing election statutes, has been held directory rather than mandatory in a
variety of cases."); Glasco Electric Co. v. Department of Revenue, 87 Ill. App.
3d 1070, 1073 (1980) ("We consider the trend to construe the word 'shall' as not
being absolutely mandatory to be significant").
¶ 68 Thus, insofar as may be practicable, section 10-9 applies to the case at
bar, and it provides that a "municipal" electoral board "shall be composed of
*** the president of the board of trustees" of the village, the "town clerk," and
"one member of the *** board of trustees *** [who] has served the greatest
number of years as a member" of the board of trustees." 10 ILCS 5/10-9(3)
(eff. July 29, 2013).2
¶ 69 In the case at bar, these three individuals are: (1) the village president,
defendant Barrett F. Pedersen; (2) the village clerk, Tommy Thomson, and (3) a
village trustee, defendant John C. Johnson. Plaintiff seeks the disqualification
of all three members.
¶ 70 Section 10-9 provides for disqualification on the following ground: 2 Subsection 3 of section 10-9 dictates the composition of "municipal" electoral boards, and the definitions section of the Code defines the word "municipality" to include a "village" (10 ILCS 5/1-3 (West 2012)), such as the Village of Franklin Park. 24 Nos. 1-14-2618, 14-3062 (cons.)
"In the event that any member of the appropriate board is a candidate for
the office with relation to which the objector's petition is filed, he shall
not be able to serve on that board and shall not act as a member of the
board ***." 10 ILCS 5/10-9 (eff. July 29, 2013).
¶ 71 The Code does not define the phrase "in relation to" quoted above. 10
ILCS 5/10-9 (eff. July 29, 2013). When a statute or code fails to define a word
or phrase, then it is the job of the courts to ascertain its meaning. Brandt
Construction Co. v. Ludwig, 376 Ill. App. 3d 94, 104-05 (2007) (" 'The
province of statutory interpretation belongs specifically to the courts, which
have their own expertise in statutory construction.' " (quoting Board of Trustees
of Addison Fire Protection District No. 1 Pension Fund, 241 Ill. App. 3d 873,
884 (1993))).
¶ 72 The Code then specifies who the substitute is, if an electoral board
member is disqualified. 10 ILCS 5/10-9 (eff. July 29, 2013). However, if the
vacancies cannot be filled pursuant to section 10-9, then the Code provides that
the Chief Judge shall appoint public members. 10 ILCS 5/10-9 (eff. July 29,
2013).
¶ 73 Regarding public members, section 10-9 provides:
"Any vacancies on an electoral board not otherwise filled pursuant to
this Section shall be filled by public members appointed by the Chief
25 Nos. 1-14-2618, 14-3062 (cons.)
Judge of the Circuit Court for the county wherein the electoral board
hearing is being held upon notification to the Chief Judge of such
vacancies. The Chief Judge shall be so notified by a member of the
electoral board or the officer or board with whom the objector's petition
was filed. In the event that none of the individuals designated by this
Section to serve on the electoral board are eligible, the chairman of an
electoral board shall be designated by the Chief Judge." 10 ILCS 5/10-9
(eff. July 29, 2013).
¶ 74 In the case at bar, plaintiff seeks the appointment of public members by
the Chief Judge pursuant to the above-quoted section. Although the section
quoted above provides for notification of the Chief Judge "by a member of the
electoral board" (10 ILCS 5/10-9 (eff. July 29, 2013)), it does not state what
happens when every member of the board is not "eligible to serve on that
board" because his or her candidacy is in "relation to" the objector's petition.
10 ILCS 5/10-9 (eff. July 29, 2013) (appearing earlier in the same section).
¶ 75 IV. General Order No. 21
¶ 76 Pursuant to section 10-9 of the Code, the Chief Judge of the circuit court
of Cook County issued "General Order No. 21 – Electoral Boards." Cook Co.
Cir. Ct. G.O. 21 (Feb. 1, 2005). The chief judge of each circuit is permitted to
issue "general orders" by Illinois Supreme Court Rule 21(c), which states: "The
26 Nos. 1-14-2618, 14-3062 (cons.)
chief judge of each circuit may enter general orders in the exercise of his or her
general administrative authority, including orders providing for assignment of
judges, general or specialized divisions, and times and places of holding court."
Ill. S. Ct. R. 21(c) (eff. Dec. 1, 2008).
¶ 77 General Order No. 21 states: "The following procedures shall govern the
nomination by the Chief Judge of a public member of an electoral board
pursuant to Section 10-9 of the Election Code." Cook Co. Cir. Ct. G.O. 21
(Feb. 1, 2005).
¶ 78 The order provides that, in addition to a member of the electoral board, "a
party to a case before the board" may also "notify the Chief Judge of the need to
appoint a public member," which is what occurred in the case at bar. Cook Co.
Cir. Ct. G.O. 21 (Feb. 1, 2005). The notification must be in a signed writing
and may be in the form of a letter, which it was in the case at bar.
¶ 79 The order discusses grounds for disqualification as follows:
"Members of an electoral board must be disqualified on due process
grounds if they have a personal or direct pecuniary interest in the
outcome of a case or if one of the members would properly be called as a
necessary witness in a case and therefore required to judge his or her own
testimony. However, electoral board members do not have a
disqualifying interest because they may be political allies or opponents of
27 Nos. 1-14-2618, 14-3062 (cons.)
a party in a case or merely because they are familiar with the facts of the
case. Neither may a statutory member cause a vacancy to be filled by
this General Order by a personal preference or convenience of that
statutory member not to sit or merely because a party has requested such
disqualification." Cook Co. Cir. Ct. G.O. 21 (Feb. 1, 2005).
¶ 80 The above provision could be interpreted as providing additional grounds
for disqualification not found in the Code, or as simply interpreting the statutory
phrase "in relation to." 10 ILCS 5/10-9 (eff. July 29, 2013). However, we are
not called upon to decide this issue in the case at bar, since the statutory
disqualification applies here.
¶ 81 V. "In Relation To"
¶ 82 In this appeal, the objectors did not discuss in their brief whether the
three existing members of the board were statutorily barred from reviewing the
objectors' petition. However, the board did address the issue.
¶ 83 Zurek had asserted in his opening appellate brief that this "situation is no
different than if petitioner had been running for a township office and his
nominating petition were before the Electoral Board," and cited in support
Anderson v. McHenry Township, 289 Ill. App. 3d 830 (1997). He further argued
that the board's assertion that the Code provided no mechanism for recusal was
false and cited in support section 10-9 of the Code which instructs the chief
28 Nos. 1-14-2618, 14-3062 (cons.)
judge to appoint public members (10 ILCS 5/10-9 (eff. July 29, 2013)). See
Kaemmerer, 333 Ill. App. 3d at 960 ("each member of the Electoral Board
whose opponent was being challenged should have recused himself from all
electoral challenges at issue"); Girot v. Keith, 212 Ill. 2d 372, 378 (2004) ("we
agree with Kaemmerer"). For the following reasons, we agree.
¶ 84 As discussed above, the Code provides that an electoral board member
may not serve on the board if he or she is "a candidate for the office with
relation to which the objector's petition is filed." 10 ILCS 5/10-9 (eff. July 29,
2013). The three members of the board did not deny in their findings and
decision that they are candidates for re-election. Thus, they are, quite literally,
"candidate[s] for the office with relation to which the objector[s'] petition is
filed."
¶ 85 The appellate court in Anderson interpreted the exact same statutory
section with respect to an almost identical issue. Anderson, 289 Ill. App. 3d at
833. In Anderson, the petitioner submitted a referendum question to dissolve
McHenry Township. Anderson, 289 Ill. App. 3d at 831. Since the three
members of the electoral board were all township officials, the referendum
meant that all three would lose their township jobs. Anderson, 289 Ill. App. 3d
at 831. The appellate court held that section 10-9 of the Code "should have
been used to excuse the members of the Electoral Board and to appoint
29 Nos. 1-14-2618, 14-3062 (cons.)
disinterested members to hear the objections." Anderson, 289 Ill. App. 3d at
833. The court reasoned that this "situation is no different than if petitioner had
been running for a township office and his nominating petition were before the
Electoral Board," since his referendum question represented a direct challenge
to the board itself. Anderson, 289 Ill. App. 3d at 833.
¶ 86 The court in Anderson found that the board members of McHenry Township
had a pecuniary/financial interest in the outcome since they were salaried and
would face a loss of income if the township was dissolved. The court found that
the electoral board members should have been excused and disinterested
members appointed when the petitioner's referendum constituted a direct
challenge to each member's position and continued employment with McHenry
Township. Anderson, 289 Ill. App. 3d at 833.
¶ 87 In the case at bar, Zurek's referendum question represents an even more
direct challenge to the board itself than in Anderson. Based on Anderson and
the unambiguous language of the statute itself, we conclude that Zurek's
question is in "relation to" the board members' candidacy for the very offices
which were specifically named in his question. See 10 ILCS 5/10-9 (eff. July
29, 2013). Thus, as in Anderson, the board members "should have been"
replaced by public members, as specified in section 10-9 of the Code (10 ILCS
5/10-9 (eff. July 29, 2013)). Anderson, 289 Ill. App. 3d at 833.
30 Nos. 1-14-2618, 14-3062 (cons.)
¶ 88 VI. Issue Not Before Us
¶ 89 The one issue not presently before this court is: whether Zurek's
objections bar Godlewski's and Petersen's objection petition; and, if they do not,
whether the objections of Godlewski and Petersen bar Zurek's proposed
referendum question from being placed on the ballot in November 2014.
¶ 90 That issue is not before us. The Code sets forth a specific process for
reviewing objections, even in cases like this one when existing electoral board
members are not "eligible to serve on that board" (10 ILCS 5/10-9 (eff. July 29,
2013)). The process specified by the Code is review by substitute members. 10
ILCS 5/10-9 (eff. July 29, 2013). See also Girot, 212 Ill. 2d at 378. In Girot,
our supreme court found that a conflict requiring a recusal of a board member
can arise where an unacceptable risk of bias is present. In this case, in addition
to the statutory violation, it can be argued that since the board members, all
salaried employees of Franklin Park, have a possible financial or pecuniary
interest in whether the referendum is placed on the ballot, there is also an
unacceptable risk of bias. Where there is an unacceptable risk of bias present,
the petitioner's right to a fair and impartial hearing is lost.
¶ 91 Thus, Godlewski's, Petersen's and Zurek's objections should be reviewed
first by a substituted board, as the Code expressly provides; and that is exactly
what the appellate court ordered when previously faced with this issue.
31 Nos. 1-14-2618, 14-3062 (cons.)
¶ 92 In both Kaemmerer v. St. Clair County Electoral Board, 333 Ill. App. 3d
956, 960 (2002), and Anderson v. McHenry Township, 289 Ill. App. 3d 830,
834 (1997), the appellate court concluded that the electoral board was
improperly constituted, as we do in the case at bar. Following that conclusion,
the Kaemmerer court held: "Because the Electoral Board was improperly
constituted its decisions must be vacated and the objections must be heard and
considered by a properly constituted board." Kaemmerer, 333 Ill. App. 3d at
961. See also Anderson, 289 Ill. App. 3d at 834. The court reasoned: "Just as
with the circuit court, our jurisdiction is not original; it is limited and derivative.
Before this court can act, there must be a decision from a validly constituted
board followed by a review by and an order of the circuit court in regard to that
decsion." Kaemmerer, 333 Ill. App. 3d at 961. See also Anderson, 289 Ill. App.
3d at 834.
¶ 93 The Kaemmerer court held that there were "material issues of fact that
must be decided by the appropriate hearing body." Kaemmerer, 333 Ill. App.
3d at 961.3 See also Anderson, 289 Ill. App. 3d (the petitioner who had
submitted the referendum question had countered his objectors with factual
allegations, such as that the electoral board had "illegally sampled the 3 The Kaemmerer opinion does not state what the "material issues of fact" are. Kaemmerer, 333 Ill. App. 3d at 961. The opinion only states that there were "objections to the candidates' nominating papers." Kaemmerer, 333 Ill. App. 3d at 957. 32 Nos. 1-14-2618, 14-3062 (cons.)
unregistered voter cards"). Similarly, in the case at bar, there are material issues
of fact since Zurek has made factual allegations, such as that the objections to
his petition are merely hypothetical and that the objectors were not legal voters.
¶ 94 Thus, the main issue before us presently is whether the three current
members of the Franklin Park Electoral Board should have been replaced by
public members for the purpose of reviewing the objections and, as we
concluded above, they should have been. Anderson, 289 Ill. App. 3d at 833.
¶ 95 VII. Public Interest Exception to the Mootness Doctrine
¶ 96 Since it is already Election Day, the Chief Judge cannot appoint public
members and the newly constituted board cannot then review the objections in
time to place Zurek's proposed referendum question on the ballot for the
November 4, 2014, general election. The Election Code provides that "notice
of public questions shall be required" not "less than 10 days before the date of a
regular election". 10 ILCS 5/12-5 (West 2012). See also 10 ILCS 5/28-5 (West
2012) ("Not less than 68 days before a regularly scheduled election, each local
election official shall certify the public questions to be submitted to the voters
of or within the political subdivision at that election which have been initiated
by petitions filed in his office."). We must therefore consider whether the
question before us has become moot.
33 Nos. 1-14-2618, 14-3062 (cons.)
¶ 97 In his notice of appeal, Zurek asked us specifically to consider whether
we should decide this appeal pursuant to the public interest exception to the
mootness doctrine, even if its timing rendered it otherwise moot. We agree that
the public interest exception applies. As the Anderson court concluded when
considering a virtually identical issue, "[t]his matter clearly falls under the
public interest exception to the mootness doctrine, in that it presents an
important public issue, evasive of review and capable of repetition, which,
because of the disparate resolutions by electoral boards of similar issues,
requires authoritative guidance." Anderson, 289 Ill. App. 3d at 832. See also
Girot, 212 Ill. 2d at 382-83 (deciding to review an election question pursuant to
the public interest exception); Bettis, 2013 IL App (4th) 130145, ¶ 27 (same).
¶ 98 VIII. Remand for Further Proceedings
¶ 99 When Zurek petitioned the circuit court for judicial review (10 ILCS
5/10-10.1 (West 2012)), his requested relief included that, if it should "be
rendered impossible for the term limit referendum to be included on the
November 4, 2014 general election ballot then the court should enter an order
directing the Cook County Clerk to include the term limit referendum on the
¶ 100 In both Kaemmerer, 333 Ill. App. 3d at 960, and Anderson, 289 Ill. App.
3d at 834, after concluding that the electoral board was improperly constituted
34 Nos. 1-14-2618, 14-3062 (cons.)
and that the issue should be reviewed first by a newly constituted board, the
appellate court remanded to allow that process to happen.
¶ 101 In Kaemmerer, the appellate court issued the following ruling: "we
remand this case to the Electoral Board for a hearing de novo before an
Electoral Board composed of impartial members, and we direct the chief judge
of the *** circuit court to appoint replacement members to the Electoral Board
pursuant to section 10-9(6) of the Code. The chief judge and the Electoral
Board shall each act at the earliest practicable date to ensure a timely
resolution." Kaemmerer, 333 Ill. App. 3d at 961.
¶ 102 Similarly, in Anderson, 289 Ill. App. 3d at 834, the appellate court
"remand[ed] for a hearing de novo before an electoral board composed of
impartial members" and "direct[ed] the Chief Judge of the circuit court *** to
appoint replacement members to the Electoral Board pursuant to section 10-9 of
the Election Code [Citation]." The court further held: "If the decision of the
newly constituted Electoral Board results in the need for a referendum, the
referendum shall be placed on the ballot of the first election thereafter which
meets all the relevant statutory requirements of the Election Code." Anderson,
289 Ill. App. 3d at 834. The holding in Anderson was cited with approval by
our supreme court in Girot, 212 Ill. 2d at 378.
¶ 103 In the case at bar, we similarly remand with directions, as we instruct
35 Nos. 1-14-2618, 14-3062 (cons.)
below.
¶ 104 CONCLUSION
¶ 105 In sum, we conclude: (1) that the board had standing to file a brief as a
nominal defendant; (2) that the three members of the board be replaced by
public members for consideration of the referendum question since it is not
"practicable" for them to rule on a question that is "in relation" to their own
candidacy; and (3) that, even though consideration of the referendum question,
the objectors' petition and the objections to the objectors' petition cannot be
completed in time to place the question on the November 4, 2014, ballot, we
may still consider the issue pursuant to the public interest exception to the
mootness doctrine.
¶ 106 For the foregoing reasons, we vacate the September 17, 2014, decision of
the electoral board and reverse the August 28, 2014, order and the October 7,
2014, order of the trial court. As the appellate court did in both Anderson and
Kaemmerer, we remand for a hearing de novo before an electoral board
composed of impartial members. We direct the Chief Judge of the circuit court
of Cook County to appoint replacement members to the Franklin Park Electoral
Board pursuant to section 10-9 of the Election Code. If the decision of the
newly constituted Franklin Park Electoral Board results in the need for a
referendum, the referendum shall be placed on the ballot of the first election
36 Nos. 1-14-2618, 14-3062 (cons.)
thereafter which meets all the relevant statutory requirements of the Election
Code. The Chief Judge and the newly constituted Franklin Park Electoral
Board shall each act at the earliest practicable date to ensure a timely resolution
of this issue.
¶ 107 Reversed and remanded with directions.