Find Legal Information

SIXTH DIVISION
March 31, 2004

No. 1-04-0449

 

JUSTICE GALLAGHER delivered the opinion of the court:

Plaintiff, Dennis J. Kellogg, appeals from the trial court's order affirming the decision ofthe Cook County Illinois Officers Electoral Board (the Electoral Board) that plaintiff could not belisted as a candidate for a judicial vacancy on the Democratic ballot in the March 16, 2004,primary election. Plaintiff sought an expedited appeal to this court, contending that the filing ofhis statement of economic interests with his nomination papers excused his failure to comply withthe requirement of the Illinois Election Code (10 ILCS 5/1-1 et seq. (West 2002)) that he file thatstatement with the Secretary of State and also submit with his nomination papers a receiptreflecting that filing. For the reasons that follow, we affirm.

Plaintiff filed nomination papers with the State Board of Elections, seeking placement onthe Democratic ballot as a candidate for the vacancy of Judge Sheldon Gardner in the CookCounty circuit court. Plaintiff filed a statement of his candidacy, petitions of numerous signaturesin support of his nomination and a statement of economic interests.

In a hearing to consider an objection to plaintiff's nomination papers, the Electoral Boardfound that plaintiff failed to file with his nomination papers a receipt indicating that he hadsubmitted his statement of economic interests with the Secretary of State, noting plaintiff'sadmission that he did not file such a statement with the Secretary of State. On January 12, 2004,the Electoral Board entered an order declaring plaintiff's nomination papers invalid and statingthat plaintiff would not be listed as a candidate on the March 16, 2004, primary ballot.

Plaintiff sought judicial review of that decision, and after hearing argument on February11, 2004, the circuit court of Cook County found the Electoral Board's decision was not againstthe manifest weight of the evidence. The court noted that although plaintiff submitted a statementof economic interests to the State Board of Elections along with his other documentation, plaintiffadmittedly did not file the statement of economic interests with the Secretary of State as requiredby section 10-5 of the Election Code (10 ILCS 5/10-5 (West 2002)), and his filing did notconstitute substantial compliance with section 10-5.

On February 19, 2004, plaintiff filed a notice of appeal, indicating his intent to ask thiscourt to review the circuit court's decision. On March 12, 2004, plaintiff filed with this court anappellate brief and a motion to establish an expedited briefing schedule. Due to an administrativeerror in the office of the clerk of the appellate court, this case was not brought to the attention ofthe presiding justice of this division until March 23, 2004.

It is evident that the March 16, 2004, primary election has come and gone. While we notethat plaintiff did not file his motion seeking an expedited appeal until after 4 p.m. on March 12(only one full business day before the March 16 election), that fact in no way excuses the failureof the office of the clerk of the appellate court to forward plaintiff's motion and brief promptly tothis division to allow timely consideration of this appeal. We regretfully acknowledge that acritical administrative error delayed this court's consideration of plaintiff's appeal.

However, despite this unfortunate procedural posture, we elect not to merely declare thiscase moot. An exception to the mootness doctrine allows a court to resolve an otherwise mootissue if the issue involves a substantial public interest. North v. Hinkle, 295 Ill. App. 3d 84, 86,692 N.E.2d 352, 354 (1998). The criteria to apply this exception are: (1) the public nature of thequestion; (2) the desirability of an authoritative determination for the purpose of guiding publicofficers; and (3) the likelihood that the question will recur. Bonaguro v. County OfficersElectoral Board, 158 Ill. 2d 391, 395, 634 N.E.2d 712, 714 (1994). Here, those criteria areeasily met. The required procedures for appearing on the ballot for election to a public office areundoubtedly of public interest, and an analysis of this issue will assist future candidates incomplying with the Election Code. Furthermore, the facts before us likely will occur again, giventhe volume of candidates seeking election in Illinois. For those reasons, we address the merits ofplaintiff's appeal.⁽¹⁾

Sections 4A-101 and 4A-106 of the Illinois Governmental Ethics Act require candidatesfor nomination or election to judicial office to submit verified written statements of their economicinterests to the Secretary of State. 5 ILCS 420/4A-101, 4A-106 (West 2002). The purpose ofthat requirement is to facilitate the public's right to information regarding financial dealingsbetween the candidate and the unit of government in which he seeks an elected office. Jenkins v.McIlvain, 338 Ill. App. 3d 113, 120, 788 N.E.2d 62, 67 (2003); see 5 ILCS 420/4A-106 (West2002) ("All statements of economic interests filed under this Section shall be available forexamination and copying by the public at all reasonable times"). A candidate who submits his orher statement to the Secretary of State is to receive a receipt indicating that the filing was made. 5 ILCS 420/4A-106 (West 2002).

Section 10-5 of the Election Code provides:

"Nomination papers filed under this section are not valid if the candidatenamed therein fails to file a statement of economic interests as required by theIllinois Governmental Ethics Act in relation to his candidacy with the appropriateofficer * * *." 10 ILCS 5/10-5 (West 2002).

Under section 10-5, because plaintiff must file nomination papers with the State Board ofElections and file his statement of economic interests with the Secretary of State pursuant tosections 4A-101 and 4A-106 of the Governmental Ethics Act, plaintiff is required to file with theState Board of Elections a receipt reflecting the submission of his statement of economic intereststo the Secretary of State. 10 ILCS 5/10-5 (West 2002).

Plaintiff contends that his filing of the economic interests statement with the State Boardof Elections constituted substantial compliance with the receipt requirement. However, ratherthan providing this court with a reason to rule in his favor, plaintiff's position reveals two separatebases to affirm the judgment of the Electoral Board.

First, plaintiff admittedly did not file his statement of economic interest with the Secretaryof State as required by sections 4A-101 and 4A-106 (West 2002). The language of section 10-5is unequivocal: "Nomination papers filed under this Section are not valid if the candidate namedtherein fails to file a statement of economic interests as required by the Illinois GovernmentalEthics Act * * *." (Emphasis added.) 10 ILCS 5/10-5 (West 2002). Second, because plaintiffdid not meet that filing requirement, he inevitably did not include with his nomination papers thereceipt mandated by section 10-5.

Plaintiff argues that because section 10-5 does not specify a penalty for a candidate'sfailure to file the receipt, but only involves the failure to file the economic interests statement, it isdirectory, rather than mandatory. The requirements of the Election Code are mandatory. Purnellv. Municipal Officers Electoral Board, 275 Ill. App. 3d 1038, 1039, 657 N.E.2d 55, 56 (1995). Moreover, the language of section 10-5 is not permissive in nature, and this court has found that acandidate's failure to comply with the receipt requirement renders his or her nomination papersinvalid. Bolger v. Electoral Board, 210 Ill. App. 3d 958, 960, 569 N.E.2d 628, 629 (1991).

The facts of this case mirror those in Powell v. East St. Louis Electoral Board, 337 Ill.App. 3d 334, 335, 785 N.E.2d 1014, 1015 (2003), where two individuals seeking candidacies forcity council failed to file statements of economic interests with the required office and also failedto include with their nomination papers a receipt for the filing of the economic interests statement. Finding Bolger to be dispositive, the appellate court affirmed the electoral board's decision thatthe failure to comply with the Election Code's requirements rendered the nomination papersinvalid. Powell, 337 Ill. App. 3d at 338, 785 N.E.2d at 1017.

Plaintiff asserts that submitting his economic interest statement to the State Board ofElections served the same purpose as providing a receipt with his nomination papers indicatingthat his economic interests statement had been filed with the Secretary of State. He argues thathis filing provided more information than if he had filed the receipt. However, the receiptrequired by section 10-5 of the Election Code is not intended to provide information about acandidate; it confirms to the State Board of Elections that a candidate has complied with theElection Code by filing a statement of economic interests with the Secretary of State. Had thelegislature deemed it necessary for potential candidates to submit their economic interestsstatements to the State Board of Elections, rather than the Secretary of State, it easily could haveprovided so in the Governmental Ethics Act. Furthermore, the submission of a statement ofeconomic interests to the State Board of Elections fails to provide the level of public disclosurethat the Governmental Ethics Act promotes by requiring the statement be filed with the Secretaryof State.

Plaintiff contends that the Electoral Board exceeded its authority by finding his nominationpapers invalid, in part, because of his failure to file the economic interests statement, rather thanthe ground indicated in the objector's petition, i.e., the failure to file the receipt. He asserts thatthe Electoral Board may "consider only the specific objection raised by the objector." However,the Electoral Board's written decision was based on plaintiff's admitted failure to file hisstatement with the appropriate office and also on the absence of a receipt reflecting such a filing. Contrary to plaintiff's assertion that we review the decision of the Electoral Board denovo, a decision of the Electoral Board should not be reversed unless it is against the manifestweight of the evidence. Serwinski v. Board of Election Commissioners, 156 Ill. App. 3d 257,261, 509 N.E.2d 509, 511 (1987). Nevertheless, the evidence is sufficient to support affirmanceeven under the strictest standard of review. While we recognize that access to a position on aballot is a substantial right not to be denied lightly (Welch v. Johnson, 147 Ill. 2d 40, 56, 588N.E.2d 1119, 1126 (1992)), the Electoral Board correctly held that plaintiff's nomination paperswere invalid due to his failure to submit a receipt indicating that his statement of economicinterests was filed with the Secretary of State. Furthermore, by failing to file his economicinterests statement with that office, plaintiff also failed to comply with the more fundamentalrequirement of section 10-5. Accordingly, the judgments of the Electoral Board and the circuitcourt are affirmed.

Affirmed.

O'MARA FROSSARD, P.J., and FITZGERALD SMITH, J., concur.

1. The attorney representing the Electoral Board and the counsel for the objector haveinformed this court they do not intend to file briefs in response to plaintiff's appeal. As the recordhere is minimal and the claimed errors can be analyzed without the benefit of appellee briefs, thiscourt can consider plaintiff's appeal on the basis of his brief alone. See First Capitol MortgageCorp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).