Find Legal Information

SIXTH DIVISION
March 12, 2004

JUSTICE GALLAGHER delivered the opinion of the court:

This case is an appeal of a final order of the circuit court of Cook County affirming theorder of the Village of Lyons Municipal Electoral Board (the Electoral Board) directing that apublic question be printed on the ballot for the March 16, 2004, primary election in the Village ofLyons (Village). The public question is a back door referendum that would allow the citizens ofthe Village to vote regarding the issuance of $4 million in alternative revenue bonds. The publicquestion proponents gathered the requisite number of signatures on the petition. This appealinvolves the validity of the petition seeking to place the back door referendum on a ballot. Petitioner, Catherine Bergman, appeals the decision of the circuit court of Cook County affirmingthe decision of the Electoral Board allowing the referendum to be placed on the ballot for theVillage of Lyons' primary election to be held on March 16, 2004. We affirm the judgment of thecircuit court and affirm the decision of the Electoral Board.

BACKGROUND⁽¹⁾

The Village board of trustees of the Village of Lyons, an Illinois municipal corporation,passed an ordinance authorizing the issuance of alternate revenue bonds in the amount of $4million for a development to be built in the Village. Subsequently, respondent Antoine Parker(the proponent), and other unidentified proponents filed petitions seeking the placement of a backdoor referendum on the ballot. A "back door referendum" is "the submission of a public questionto the voters of a political subdivision, initiated by a petition of voters or residents of suchpolitical subdivision, to determine whether an action by the governing body of such subdivisionshall be adopted or rejected." 10 ILCS 5/28-2(f) (West 2000); see also Brennan v. Kolman, 335Ill. App. 3d 716, 718, 781 N.E.2d 644, 645 (2002). Because the bonds' principal and interest maybe paid from ad valorem property taxes upon all taxable property in the Village of Lyons, theIllinois legislature has given the citizens of a municipality the right to subject the issuance of suchbonds to a back door referendum. 30 ILCS 350/15 (West 2000). Thus, the petitions here soughtto challenge the $4 million bond issue and submit the question to the voters as to whether theVillage should be allowed to issue the bonds.

On October 15, 2003, petitioner filed a verified objector's petition alleging that thereferendum petition did not contain the necessary 389 required signatures and failed to meetvarious requirements of the Illinois Election Code (the Election Code) (10 ILCS 5/1-1 et seq.(West 2002)). The objections included the following: (1) petition signatures were not genuine;(2) some of the signers resided outside of the district; (3) signers were not registered voters; (4)there were duplicate signatures; (5) there was a pattern of fraud; (6) circulators were not presentwhen the petitions were signed; (7) the county of the signers was omitted, (8) the petitions lackeda circulator's signature; (9) the word "knowledge" was omitted in the circulator's affidavit; (10)the composition of the Electoral Board included two members who should have been removedbecause of bias; (11) the petitions lacked the address of a circulator; and (12) a circulator omitteda county.

On October 22, 2003, a hearing was held, at which petitioner declined the opportunity topresent evidence or make any legal argument to five of these objections. She offered no evidenceto prove her allegations regarding a pattern of fraud, a circulator's address, a circulator's county,the circulators not witnessing the signing of the petitions, or omission of the signers' county.

As to the 232 objections to petition signatures, the omission of the word "knowledge" inthe circulator's affidavit, and the allegation that the petitions were not signed by the circulators,the Electoral Board held several hearings to weigh the evidence presented and the legal argumentsbetween the dates of October 22, 2003, and December 18, 2003.

As respondents note, the first ruling made by the Electoral Board was to adopt the "Rulesfor Hearings and Decisions of the Duly Constituted Electoral Board for the Hearing and Passingupon of Objections to Petitions for Public Questions to be Placed on the Ballot in the Village ofLyons, Cook County, Illinois" (the Board Rules). Petitioner did not enter an objection.

Paragraph 5 of the Board Rules expressly states as follows:

"The objector shall present his/her case in chief after the consideration of suchpreliminary motions. The objector shall bear the burden of presenting evidencesufficient to support a decision sustaining the objection. The applicable evidentiarythreshold shall be a 'preponderance of the evidence.' "

Thus, the Board Rules clearly place the burden of proof on petitioner to prove her objections.

On November 17, 2003, after much delay due to the fire at 69 W. Washington Street inChicago, the parties participated in a binder check, which is used to initially determine the validityof objections to individual signatures and circulators. The binder checker for the Cook Countyclerk sustained 188 of the 232 objections. The Cook County clerk sustained objections as to"signature not genuine signature of purported voter" where the petition signatures were printed orwhere the clerk believed the signature on the petition differed in any way from the signature onthe voter registration signature cards. Approximately 66 of the objections were sustained by thebinder checker because the signer had printed his/her signature on the petitions and signed incursive on the voter registration cards. Respondents concede that the Cook County clerk'ssustaining of the objections then shifted the burden of proof onto the proponent to rehabilitate 56names because 389 signatures were needed for ballet access.

The proponent entered several exhibits into evidence which included affidavits of signers,selected registration records, selected binder check signatures, the Cook County voter registrationlist, and "Rehabilitation of Signatures--Matching of Petition Signatures to Binder ReviewReport." Along with these exhibits and the original petitions, the Electoral Board reviewed, oneby one, the signatures that were objected to by petitioner and sustained by the binder check. Petitioner entered no affidavits or witness testimony or any evidence to counter the proponent'sevidence. The Electoral Board rehabilitated 61 of the signatures. The Electoral Board found that394 valid petition signatures had been filed, five signatures more than the 389 required.

Petitioner called one witness, Steven Mazur, to the stand who testified as follows:

"Q. Did you see Maureen and John Jacobson sign?

A. Yes, I did.

Q. And did they each sign their own?

A. Yes, they did.

Q. Did you do an affidavit for them? Did you go back to their home?

A. I believe so.

Q. I ask you to look at affidavit--I am going to show you a copy of affidavit 37and affidavit 38, and were you there when those affidavits were presented, or did youpresent those affidavits?

A. Yes, I was there.

Q. Who else was there?

A. The notary--."

The Electoral Board also considered legal arguments concerning the signing of thepetitions by the circulators, the omission of the word "knowledge" in the circulators' affidavitcontained in the petition and the sufficiency of the notary jurat in both the petitions and theaffidavits. Based on the evidence presented and the legal arguments made, the Electoral Boardvoted to sustain the petitions and overruled the objections raised by petitioner. On December 19,2003, the Electoral Board issued its final decision overruling the objections, declaring thepetitions valid, and ordering the referendum question to be printed on the March 16, 2004, ballot.

Thereafter, petitioner filed a petition for judicial review in the circuit court of CookCounty. After four hours of oral argument, the court affirmed the Electoral Board's decision in itsentirety.

Petitioner filed the instant appeal raising the following issues: (1) whether the petition waslegally deficient because the circulator's statement failed to include the word "knowledge"; (2)whether the petition was legally deficient because printed names are not acceptable as a voter's"signature"; (3) whether the rulings by the Electoral Board and circuit court as to signatureverification were against the manifest weight of the evidence; and (4) whether the composition ofthe Electoral Board deprived the objector of her right to a fair trial.

ANALYSIS

We allowed an expedited appeal pursuant to Supreme Court Rule 311 (155 Ill. 2d R.311). We are required to review the Electoral Board's decision rather than the trial court'sdecision. Lockhart v. Cook County Officers Electoral Board, 328 Ill. App. 3d 838, 841, 767N.E.2d 428, 430 (2002). Petitioner has raised some issues that turn on the interpretation of astatute, which is a question of law subject to de novo review. Lockhart, 328 Ill. App. 3d at 841,767 N.E.2d at 431. She has also raised an issue that challenges the factual findings of theElectoral Board. Our standard of review will be whether those findings were against the manifestweight of the evidence. King v. Justice Party, 284 Ill. App. 3d 886, 672 N.E.2d 900, 902(1996).

We first address petitioner's argument that the lack of a circulator's signature attesting tothe circulator's statement violates the mandatory provisions of the Election Code and that,therefore, the petitions here should have been invalidated. The relevant section of the ElectionCode reads as follows:

"At the bottom of each sheet of such petition shall be added a circulator'sstatement, signed by a person 18 years of age or older who is a citizen of theUnited States, stating the street address or rural route number, as the case may be,as well as the county, city, village or town, and state; certifying that the signatureson that sheet of the petition were signed in his or her presence and are genuine,and that to the best of his or her knowledge and belief the persons so signing wereat the time of signing the petition registered voters of the political subdivision ordistrict or precinct or combination of precincts in which the question of publicpolicy is to be submitted and that their respective residences are correctly statedtherein." 10 ILCS 5/28-3 (West Supp. 2001).

In the present case, the circulator's signature is found within the notary's jurat. Thus wefind Brennan v. Kolman, 335 Ill. App. 3d 716, 781 N.E.2d 644 (2002), controlling and concludethat the circulator did sign the petition sheet. We reject petitioner's arguments that Brennan isdistinguishable.

We additionally reaffirm our holding that substantial compliance can satisfy even amandatory provision of the Election Code. We reject petitioner's contention that Brennan waswrongly decided. Petitioner argues that substantial compliance is no longer sufficient and hasasserted that Brennan, "in recent holdings, stands alone in allowing substantial compliance withmandatory provisions of the [Election] Code." As support for her position, petitioner relies onthe Fifth District case of Knobeloch v. Electoral Board, 337 Ill. App. 3d 1137, 788 N.E.2d 130(2003), which she contends is "well-reasoned."

We do not agree with the Knobeloch court's interpretation of the Illinois Supreme Courtcase of DeFabio v. Gummersheimer, 192 Ill. 2d 63, 66, 733 N.E.2d 1241 (2000), as rejecting thesubstantial compliance theory for mandatory provisions. DeFabio was a case involvingnoncompliance, not substantial compliance. "Substantial compliance" was neither raised by theparties nor addressed by the court in DeFabio. We interpret the DeFabio opinion as standing forthe proposition, with which we agree, that mandatory provisions must be complied with evenwhere parties agree there is no knowledge or evidence of fraud or corruption. In DeFabio, itwas undisputed by the parties that none of the invalidated ballots in a particular precinct containedthe requisite initials from an election judge. Thus, not only was compliance not strict, compliancewas not substantial; indeed there was no compliance. Cf. King v. Justice Party, 284 Ill. App. 3d 886, 891, 672 N.E.2d 900, 904 (1996) ("Compliance was not strict, it was substantial; but it wascompliance nonetheless. (Emphasis added.)").

Petitioner also cites Bowe v. Chicago Electoral Board, 79 Ill. 2d 469, 404 N.E.2d 180(1980), for the proposition that mandatory provisions in the Election Code cannot be satisfied by"substantial compliance." Again, we do not interpret Bowe as rejecting the doctrine of substantialcompliance. Rather, in Bowe there was no substantial compliance, as a matter of fact. Thus,there was no compliance.

In Lewis v. Dunne, 63 Ill. 2d 48, 344 N.E.2d 443 (1976), the Illinois Supreme Courtheld that a candidate's name should appear on the ballot where there was substantial compliancewith section 7-10 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 7-10). Lewis, 63 Ill. 2d at 53, 344 N.E.2d 443. We believe that Lewis remains good law. We disagree with thepetitioner's argument that the doctrine of substantial compliance has been rejected by our supremecourt. We further conclude that because the circulator's signature is found within the notary'sjurat, the petitions were not invalid on the basis that they lacked a separate signature line.

Petitioner has further challenged the petitions' compliance with the statute based upon thelack of the word "knowledge" in the circulator's affidavit. Section 28-3 of the Election Codeprovides, in pertinent part, as follows:

"Form of petition for public question. * * *

At the bottom of each sheet of such petition shall be added a circulator's statement,signed by a person 18 years of age or older who is a citizen of the United States,stating the street address or rural route number, as the case may be, as well as thecounty, city, village or town, and state; certifying that the signatures on that sheetof the petition were signed in his or her presence and are genuine, and that to thebest of his or her knowledge and belief the persons so signing were at the time ofsigning the petition registered voters of the political subdivision or district orprecinct or combination of precincts in which the question of public policy is to besubmitted and that their respective residences are correctly stated therein. Suchstatement shall be sworn to before some officer authorized to administer oaths inthis State."(Emphasis added.) 10 ILCS 5/28 -3 (West Supp. 2001).

In the case at bar, each of the circulators' affidavits contained the phrase "to the best of his or herbelief" and did not include the word "knowledge." We agree with the argument of therespondents on this issue. Despite the lack of the word "knowledge," we conclude that theaffidavits were in substantial compliance with the Election Code.

The next argument raised by petitioner is that the voters who printed their names on thepetition, instead of "signing" in cursive, should not be counted. Although it is true that severalindividuals printed their names, we conclude that there was substantial compliance where, despitesome voters not signing in the cursive, there was no evidence that they did not sign "in their ownproper person only," and the form nonetheless contains the notary jurat.

We also find Huskey v. Municipal Officers Electoral Board, 156 Ill. App. 3d 201, 509N.E.2d 555 (1987), upon which petitioner relies, to be factually distinguishable. Huskey "heldthat when the sheets of a nominating petition submitted by a purported circulator evidence apattern of fraud, false swearing and total disregard for the mandatory requirements of the ElectionCode [citation], the sheets purportedly circulated by that individual should be stricken in theirentirety." See Canter v. Cook County Officers Electoral Board, 170 Ill. App. 3d 364, 368, 523N.E.2d 1299, 1301 (1988), citing Huskey, 156 Ill. App. 3d at 205. Huskey involved actualevidence that the circulator permitted individuals to sign the names of family members who werenot present, and that someone other than the affiant presented the petition to signers. Thus, itwas undisputed that the voters did not sign "in their own proper person only." We are faced withno such impropriety here, notwithstanding petitioner's arguments concerning the "potential" forsuch an impropriety and her unsupported and unproven allegations regarding such an impropriety. While this may have been petitioner's theory, she failed to provide any evidence to support herallegations.

We agree with petitioner that fraud in the electoral process is a valid concern, but, in theinstant case, petitioner failed to show any such fraud was present. Petitioner now challenges theveracity of the statements in the affidavits. But, under the Board Rules, the burden of proof in theproceeding to contest the petitions lies with the petitioner. Cf. Hagen v. Stone, 277 Ill. App. 3d 388, 660 N.E.2d 189 (1995).

Petitioner's fourth argument is that the rulings made as to individual names by theElectoral Board were against the manifest weight of the evidence. We first review the well-established principles regarding judicial review of a decision of an electoral board.

"The findings of fact of an electoral board are prima facie true and correct. [Citation.]

The function of a court on judicial review is to ascertain whether the findings and decision of theelectoral board are against the manifest weight of the evidence. [Citation.] A decision is againstthe manifest weight of the evidence only if the opposite conclusion is clearly evident. [Citation.]

The fact that an opposite conclusion is reasonable or that the reviewing court might have ruleddifferently based upon the same evidence will not justify a reversal of the findings of anadministrative agency. [Citation.] Determinations as to the weight of evidence and the credibilityof witnesses are uniquely within the province of the agency [citation], and a court will notsubstitute its judgment for that of the agency on such matters [citation]. Where the findings of theagency are supported by competent evidence in the record, its decision should be affirmed. [Citation.]" (Emphasis added.) King v. Justice Party, 284 Ill. App. 3d 886, 888, 672 N.E.2d900, 902 (1996).

Petitioner argues that there is no evidence in the record to support the Electoral Board'sfindings. We disagree. During the hearing, proponents submitted affidavits from several voterscontaining the statement that the "signature written on the referenced petition paper is mysignature for the purposes of the petition papers." The Board Rules, which govern theadmissibility of evidence before the Electoral Board provide, in relevant part:

"The Electoral Board will consider such admissible evidence as may be submitted,including, but not limited to, properly authenticated public records, otherdocumentary evidence, reliable affidavits, and oral testimony. * * * The ElectoralBoard will, where practicable and appropriate, follow (but will not be bound by)rules of evidence which prevail in Illinois courts of law. " (Emphasis added.)

The Electoral Board made its factual determinations as to the validity of the signatures based, inpart, upon the affidavits of those voters attesting to the signatures as theirs. Those decisions weremade by the Electoral Board without an expert in handwriting analysis. Petitioner now asks thiscourt to review the determinations made by the Electoral Board. She does not provide atranscript or a complete record, but instead asks us to review the "most outlandish decisions." We may agree that the signatures do not match and speculate that the voter stated in his affidavitthat the signature was his when it was, in fact, somebody else's signature. But "[t]he fact that anopposite conclusion is reasonable or that the reviewing court might have ruled differently basedupon the same evidence will not justify a reversal." King v. Justice Party, 284 Ill. App. 3d 886,888, 672 N.E.2d 900 (1996). It is not the role of this court to retry factual issues. We cannot sayon the record before us that the decision of the Electoral Board was against the manifest weightof the evidence.

The fifth and last issue raised by the petitioner concerns the composition of the ElectoralBoard. Although petitioner claims that her due process rights were violated as a result of the biasof two of the board members who did not recuse themselves, petitioner seeks no relief from thiscourt as to this particular issue. She acknowledges the type of relief that she would have sought ifthis were not an expedited matter. Due to the necessity of an expedited decision on the otherissues, she now merely seeks an advisory opinion and requests that this court "address theproblem and find that the two electoral board members should have been removed and two,disinterested and impartial public members appointed by the Chief Judge as specified in thestatute." (Emphasis added.) She further avers that "If time was not of the essence for [her], thecorrect relief and prayer would be to impanel an impartial electoral board of public members andallow [her] a fair and impartial hearing." (Emphasis added.) She now desires only a finding thatthe two members "should have been disqualified." (Emphasis added.) We conclude that (1) theissue is moot; and (2) petitioner has failed to raise any exception to the mootness doctrine as towhy this court should address the issue. We decline to address the issue.

We believe that it is incumbent upon us to further comment on statements contained inpetitioner's brief in this appeal. While we understand that petitioner took a position that two ofthe members of the Electoral Board were biased based on the fact that they had personally signeda petition to have the referendum question placed on the ballot, we do not believe that certainstatements contained in her brief were proper. In her argument that the Electoral Board's rulingswere against the manifest weight of the evidence, petitioner's brief contains an assertion that "thetwo 'proponent' votes on the Electoral Board obediently took their commands from Proponent'scounsel and ruled each and every affidavit a valid document sufficient to overcome the findings ofthe Cook County clerks who had made a comparison and ruled the names not valid at the liverecord examination in the County Clerk's office." (Emphasis added.) This statement, which goeswell beyond an assertion of bias or prejudice, and amounts to ad hominem attacks upon thecharacter and integrity of the two board members, is improper. Petitioner and her counsel areadmonished to refrain from making such statements in the future.

This admonition applies to yet another highly inappropriate statement contained inpetitioner's brief. Petitioner mislabeled her appendix as "Appendix A, Transcript of Judge'sRuling," but failed to provide this court with a transcript of the hearing in the circuit court. Nonetheless, in describing her version of what transpired during the hearing, petitioner's briefcontains the following accusation:

"The lower court, bound and determined to affirm the electoral board, attemptedto seek his own evidence from 'anyone in the courtroom,' over the vigorousobjection of the [petitioner.] This was an obvious attempt to find something forthe record to hold that estoppel or some type of relief was warranted as in theBrennan case. Although not finding any 'takers' to his offer to come forward andvolunteer information as to where the referendum petition form originated, thecircuit court judge found Brennan applied to the case at bar." (Emphasis added.)

Respondents counter that not only does petitioner put words in the trial judge's mouth, but sheattempts to read his mind. We believe that, regardless of petitioner's position that the trial judgeshould have limited his review to the record before him, petitioner's insinuations regarding the trialjudge's motives are wholly inappropriate and impugn the integrity of the judiciary. Petitioner andher counsel would be well advised to refrain from taking such an accusatory tone in the future.

CONCLUSION

For the reasons stated, we affirm the judgement of the circuit court of Cook County andaffirm the decision of the Village of Lyons Municipal Electoral Board.

Affirmed.

FITZGERALD SMITH, J., concurs.

JUSTICE TULLY, dissenting:

I respectfully dissent.

The provisions of the Election Code are designed to protect the integrity of the electoralprocess. Welch v. Johnson, 147 Ill. 2d 40, 56 (1992). There is no dispute that the provisions insection 5/28-3 are mandatory. A mandatory provision is one that will describe the consequencesof failing to follow its provisions (Johnson v. Theis, 282 Ill. App. 3d 966, 972 (1996)), and theconduct is prescribed in order to safeguard a person's rights, which may be injuriously affected bya failure to act in the manner specified. Shipley v. Stephenson County Electoral Board, 130 Ill.App. 3d 900, 903 (1985). The failure to follow a mandatory provision renders the proceeding towhich it relates illegal and void. Serwinski v. Board of Election Commissioners, 156 Ill. App. 3d257, 259 (1987).

Essentially, the majority here believes that even though this is a mandatory provision, thesubstantial compliance with this provision negates the defective petition. The majority accepts thetheory of substantial compliance with mandatory provisions and reaffirms the recent appellatecourt decision in Brennan v. Kolman, 335 Ill. App. 3d 716 (2002).

I however believe that the Illinois Supreme Court's decision in DeFabio v.Gummersheimer, 192 Ill. 2d 63, 66 (2000), is controlling. In Gummersheimer, the supreme courtrejected the use of the substantial compliance theory for mandatory provisions in the Code. Ibelieve that Gummersheimer held that substantial compliance is no longer sufficient and amandatory provision of the Election Code must be enforced even if the parties agree there is noknowledge or evidence of fraud or corruption.

The petitions in this case contain two significant irregularities, and I believe that themajority errs when it dismisses these problems through its substantial compliance analysis.

First, the Election Code expressly requires that each petition contain a statement that tothe best of his or her "knowledge and belief" the signers are registered voters of the appropriatepolitical subdivision. 10 ILCS 5/28-3 (West 2000). The petitions at issue, however, merely statethe circulators' "belief" that the signers are registered voters. Although the majority dismisses thisdistinction with its substantial compliance analysis, I believe that the lack of the word"knowledge" is highly significant. I believe the use of the word "knowledge" is calculated toimpress on circulators an affirmative obligation to make reasonable inquiry regarding the status ofthose signing the petition. A circulator attesting only to his "belief" may mistakenly assume thathe may do so even if that belief is unreasonable or has no basis in fact. For example, a circulatormight "believe" that every person he encounters outside a grocery store is a resident of the villagein which the store is located. Such a belief might mislead the circulator into believing that it wasunnecessary to even make a simple inquiry regarding the signers' residence, and undermine theimportant role envisioned for petition circulators in the election code. Accordingly, I wouldconclude that the failure to include the word "knowledge" in the circulators' statements rendersthe petitions invalid.

Second, the petitions are facially invalid because it is impossible to determine whether theywere properly signed by the circulators. The purported "signatures" are contained within the juratof the notary public. These "signatures" may be the actual signatures of the circulators or theymay have been completed by the notary who attested to the signatures. It is simply impossible todetermine from the face of these documents. The majority would conclude that these signatureswere properly made. I, however, am unwilling to do so in the absence of evidence to supportsuch a conclusion. I believe that the requirements of the Election Code are too important to allowthis court to judge compliance on little more than guesswork and conjecture. Accordingly, Iwould hold that, in the absence of evidence that the circulators' signatures were properly made,the ambiguity in the attestation requires a finding that the petitions are invalid.

Finally, although the discrepancies I have identified above are sufficient to invalidate all ofthe petitions, I believe that the majority overlooks significant evidence of fraud. The objectoridentified numerous voter signatures on the petitions that do not match the signatures contained inthe voting records. Some signatures are printed rather than written in script, and others are, evento the untrained eye, clearly dissimilar. I believe that the Electoral Board's and the trial court'sfindings that these signatures were valid were against the manifest weight of the evidence.

For the foregoing reasons, I would reverse the judgments of the circuit court and theElectoral Board.

1. In view of the time constraints faced by petitioner, when we granted her motion for anexpedited appeal, we further granted her motion to allow the appendix to her brief to serve as therecord on appeal. Subsequently, after reading petitioner's brief and appendix, it became clear thatshe failed to provide this court with an adequate statement of facts or sufficient information. Therefore, we rely on the more comprehensive statement of facts found in respondents' brief.