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SECOND DIVISION
May 15, 2001

No. 1-01-0706

This is an appeal from a writ of mandamus issued by the CookCounty circuit court against defendant-appellant Robert Smith asthe secretary of the Board of Education of Proviso Township HighSchool District No. 209. The writ was issued pursuant to countIII of the complaint filed by plaintiffs-appellees EmanuelChristopher Welch, Lequita Neely, Archie B. Leach, Sr., andMichael J. Carlson, wherein plaintiffs sought to compeldefendant-appellant Smith to certify their names to the CookCounty Clerk as candidates for membership on the Board ofEducation of Proviso Township High School District No. 209 (theschool board). Plaintiffs filed their nominating papers formembership on the school board on January 23, 2001, the last dayfor filing, but Smith contends that the papers were filed after 5p.m. on that day and thus were untimely. Smith thereforedeclined to certify plaintiffs' names to the Cook County Clerkfor the April 3 ballot, and plaintiffs sought mandamus relief tocompel him to certify their names. Smith argues on appeal thathe had discretion to determine that plaintiffs' nominating paperswere untimely filed and that he was thus under no obligation tocertify plaintiffs' names for the ballot. He also argues that hedid not lose authority to make such determinations onceobjections were filed challenging the timeliness of plaintiffs'nominating papers. Finally, he contends that it was improper forthe circuit court to grant the relief requested, based on therecord before it. For the reasons set forth below, we affirm the circuit court's granting of the writ of mandamus requested incount III of plaintiffs' complaint.

According to plaintiffs' complaint, plaintiffs Welch andNeely went to Proviso East High School on January 23, 2001, tofile nominating papers for themselves and plaintiffs Carlson andLeach as candidates for membership on the District 209 schoolboard, in the election to be held on April 3, 2001. Plaintiffsallege that they arrived at the school at about 4 p.m. on January23, the last day for filing nominating papers, and went to theoffice of the superintendent, where they had been told thenomination papers were being accepted. Welch told thesuperintendent's secretary that he wanted to be the last to fileso his name would appear last on the ballot. She told him if hewanted to be last on the list, he would have to wait for an hour. She also told Welch and Neely that as long as they were in theoffice of the superintendent prior to 5 p.m., as they were, theirpetitions would be considered timely and would be accepted. According to plaintiffs, the superintendent himself confirmedthis information at that time. Welch and Neely remained in theschool's main office, which is immediately adjacent to thesuperintendent's office, and waited to have their petitionsfiled.

The complaint avers that defendant Michael Manzo, a schoolboard member, and defendant-appellant Robert Smith, the schoolboard secretary, entered the main office at about 4:55 p.m.accompanied by three security guards, including defendants JosephLukascek and Fred Gianneschi. Manzo apparently was there to filepetitions for another school board candidate, Sharon Hudson. Plaintiffs allege that, contrary to the information they had beengiven by the superintendent and his secretary, Manzo indicatedthat the end of the line would be determined by the door of themain office, not the door of the superintendent's office. Manzothen submitted his candidate's nominating papers to the schooldistrict's staff for filing. Welch, who was the next person tofile, then submitted the nomination papers for all fourplaintiffs. Attached to plaintiffs' complaint are receipts fortheir nomination papers, which were time-stamped as follows:Carlson's, 5:04 p.m. on January 23, 2001; Leach's, 5:06 p.m.;Neely's, 5:07 p.m.; and Welch's, 5:10 p.m.

The complaint further states that on January 30, 2001,defendant Joseph Pantaleo filed objector's petitions with theDistrict 209 Education Officers Electoral Board, challenging thenomination papers of plaintiffs Welch, Neely, Leach and Carlson. In his petitions, copies of which are attached to the complaint,Pantaleo alleged that the nomination papers were not filed untilafter 5 p.m. on January 23 and that they were thus invalid.

On February 1, 2001, Smith, the school board secretary,filed a certificate of ballot with the Cook County Clerk, listingcandidates for the District 209 school board to be included onthe official ballot in the April 3 election. None of the fourplaintiffs' names was on the list, a copy of which is attached tothe complaint. Also attached to the complaint is a copy of aletter dated February 6, 2001, which Smith sent to Welch (andallegedly to each of the other three plaintiffs), informing himthat because his nomination papers were filed after 5 p.m. onJanuary 23, his name "ha[d] not been certified to the Cook CountyClerk to be placed on the April 3, 2001[,] Consolidated ElectionBallot."

In addition, the complaint recites that on February 6, theDistrict 209 Educational Officers Electoral Board (the electoralboard), which was made up of defendants Manzo and Smith anddefendant Patrick Hernandez (not present), met to considerdefendant Pantaleo's objections to plaintiffs' nomination papers. According to the transcript of proceedings, which was attached toplaintiffs' complaint, the electoral board declined to considerthe objections or to dismiss them. Counsel for the electoralboard explained that since plaintiffs' names had not beencertified and thus were not on the ballot, it would be improperto "go ahead" and consider the objections at that time. He alsostated that it would not be proper to dismiss the objections,"just in case [plaintiffs' names] are put back on the ballot." Over plaintiffs' objections, the electoral board continued thematter for status to "[s]ee if something has been filed [incourt]."

Plaintiffs filed their six-count complaint on February 14,2001, against the electoral board; Michael Manzo, Robert Smithand Patrick Hernandez, as individuals and as members of theelectoral board; Joseph Pantaleo, Fred Gianneschi and JosephLukascek; and David Orr in his capacity as Cook County Clerk. Incount I, they sought injunctive relief barring defendants Manzo,Smith and Hernandez from serving on the electoral board, andordering a "properly-composed" electoral board to consider andrule upon the objections to plaintiffs' nomination papers. Incount II, plaintiffs sought a writ of mandamus to the sameeffect. In count III, which is the only count involved in thisappeal, plaintiffs requested a writ of mandamus compelling Smithto certify plaintiffs' names to the Cook County Clerk ascandidates for membership on the District 209 school board, inaccordance with section 9-10 of the Illinois School Code (105ILCS 5/9-10 (West Supp. 2000)), and sections 10-10 (10 ILCS 5/10-10 (West Supp. 2000)) and 10-15 (10 ILCS 5/10-15 (West 1993)) ofthe Illinois Election Code. Count IV of the complaint is arequest for declaratory judgment, and counts V and VI allege dueprocess and equal protection violations, respectively.

On February 20, 2001, the court heard arguments from bothsides, during which the following colloquy took place:

"THE COURT: Well, from the *** record, apparentlythe [District's administrative] office was open.  Otherwise the file couldn't be-could not havebeen stamped.

MR. ELLCH [defendants' counsel]: I have no disputethat there were people there, your Honor.  We would never dispute that."

After hearing arguments, the court entered an order grantingthe writ of mandamus requested in count III against defendantSmith, ordering him "to certify the plaintiffs' names to the CookCounty Clerk immediately." The court took no action on thecomplaint's remaining counts, and the relief sought in them isstill pending.

In reaching its determination as to count III, the courtconcluded that once objections were filed (on January 30, 2001),the school board secretary lost jurisdiction to exercisediscretion over the certification of plaintiffs' nominationpapers. According to the court, it was then up to the electoralboard to decide the factual issues raised by the objections. Thecourt also concluded that there was no requirement thatnomination papers be filed by 5 p.m. on the last day for filing. According to the court, section 1-4 of the Election Code"requires only that the office remain open until at least 5:00o'clock," and not that it must close at 5:00. The court notedthat "[t]he fact that the petitions were in fact filed and werein fact received was proof that they were received during normalhours." Accordingly, "once they were received during the courseof business hours they could not be unilaterally rejected by theoffice *** that accepted them."

Defendant Pantaleo subsequently settled with plaintiffs andwithdrew his objections. On February 28, 2001, the court enteredan order reflecting this settlement. On March 1, 2001, the courtfound, pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R.304(a)), that there was no just reason for delaying appeal of theFebruary 20 mandamus ruling as to count III.

Defendant Smith filed a notice of emergency appeal, andmoved for an expedited briefing schedule, which motion wasgranted. On March 21, 2001, we entered an order affirming thedecision of the trial court and indicated that this opinion wouldfollow.

Defendant Smith argues on appeal that the District 209office hours ended at 5 p.m. on January 23, 2001, and that sincethe receipts for plaintiffs' nomination papers were time-stampedafter 5 p.m., their papers were untimely filed. Smith thuscontends that plaintiffs' nomination papers were not in apparentconformity with the Election Code, and he therefore haddiscretion to determine that they were invalid. We disagree.

The merit of Smith's position depends upon two underlyingquestions. First, what is the time-frame within which nominationpapers can be filed? Secondly, to what extent and under whatcircumstances, if any, may a school board secretary possess theauthority to determine the timeliness of nomination papers? Eachof these questions is covered by explicit statutory provisions.See section 9-10 of the School Code (105 ILCS 5/9-10 (West Supp.2000)) and sections 1-4, 10-15 and 10-8 of the Election Code (10ILCS 5/1-4, 5/10-15 & 5/10-8 (West 1993)).

With respect to the first issue regarding the timeliness ofnomination papers, section 9-10 of the School Code provides inpertinent part that:

"All petitions for the nomination of members of aboard of education shall be filed with the secretary ofthe board or a person designated by the board toreceive nominating petitions within the time providedfor by the general election law." 105 ILCS 5/9-10 (WestSupp. 2000).

Section 1-4 of the Election Code states that:

"In any case in which this Act prescribes a periodof time within which petitions for nomination must befiled, the office in which petitions must be filedshall remain open for the receipt of such petitionsuntil 5:00 P.M. on the last day of the filing period." 10 ILCS 5/1-4 (West 1993).

With regard to the second question concerning the authorityof a school board secretary to determine the timeliness ofnomination papers and to refuse certification based on thatconsideration, section 10-15 of the Election Code provides inpertinent part that:

"Not less than 61 days before the date of theconsolidated and nonpartisan elections, each localelection official with whom certificates of nominationor nominating petitions have been filed shall certifyto each election authority having jurisdiction over anyof the territory of his political subdivision the namesof all candidates entitled to be printed on the ballotfor offices of that political subdivision to be votedupon at such election and direct the election authorityto place upon the official ballot for such election thenames of such candidates in the same manner and in thesame order as shown upon the certification." 10 ILCS5/10-15 (West 1993).

Section 10-8 of the Election Code states in pertinent part:

"Certificates of nomination and nomination papers ***, being filed as required by this Code, and being inapparent conformity with the provisions of this Act,shall be deemed to be valid unless objection thereto isduly made in writing within 5 business days after thelast day for filing the certificate of nomination ornomination papers ***." 10 ILCS 5/10-8 (West 1993).

As to the first question whether plaintiffs' nominationpapers were timely filed, we believe that they were. In theinstant case, it is undisputed that January 23, 2001, was thelast day on which nomination papers could be filed for theDistrict 209 school board election to be held on April 3, 2001. As noted, plaintiffs filed their nomination papers on January 23,and were given receipts time-stamped as follows: Carlson's, 5:04p.m. on January 23, 2001; Leach's, 5:06 p.m.; Neely's, 5:07 p.m.;and Welch's, 5:10 p.m. These time-stamps form the basis forSmith's contention that plaintiffs' nomination papers were filedafter 5 p.m. and therefore were untimely.

Under section 9-10 of the School Code, "petitions for thenomination of members of a board of education" are to be filed"within the time provided for by the general election law." 105ILCS 5/9-10 (West Supp. 2000). The time of day for filing isprovided in section 1-4 of the Election Code, which as notedstates that "the office in which petitions must be filed shallremain open for the receipt of such petitions until 5:00 P.M. onthe last day of the filing period." 10 ILCS 5/1-4 (West 1993). On its face section 1-4 states that the office must remain openuntil 5 p.m., but there is no requirement that the office mustclose at that time. Thus on its face section 1-4 merely purportsto provide a floor but not a ceiling to limit the time duringwhich an office may remain open after 5 p.m. See First Bank &Trust Co. v. King, 311 Ill. App. 3d 1053, 1058-59, 726 N.E.2d621, 625 (2000) ("The most reliable indicator of legislativeintent is the language of the statute, which is given its plainand ordinary meaning"); Kunkel v. Walton, 179 Ill. 2d 519, 534,689 N.E.2d 1047, 1054 (1997) (court may not depart from plainlanguage of statute by reading into it limitations that thelegislature did not express); cf. Mierswa v. Kusper, 121 Ill.App. 3d 430, 436, 459 N.E.2d 1110, 1114 (1984) (construingstatutory language stating that county clerk in counties of500,000 or more population shall keep his office open "from 9a.m. to 5 p.m. of each working day except Saturday afternoons andlegal holidays" (emphasis added) (55 ILCS 5/3-2007(a) (West1993)); concluding that under this language, "[t]he Cook CountyClerk's office *** was lawfully required to remain open at leastuntil noon on Saturday, and in fact remained open until 5 p.m. onthe day in question" (emphasis added)). Moreover, even theappellant concedes that there is no prohibition on the face ofthe statute against an office remaining open after 5 p.m.,stating in his reply brief that "the Election Code did notrequire the District Administrative Office to close at 5:00 p.m." In this instance, the District's administrative officeremained open after 5 p.m. on January 23, 2001, as is evidencedby the time-stamps on the receipts for plaintiffs' nominationpapers. As noted, the Election Code requires only that theappropriate office be open "until 5:00 P.M. on the last day ofthe filing period" (emphasis added) (10 ILCS 5/1-4 (West 1993)). Since there is no language in the Election Code which states thatnomination papers must be filed by 5 p.m. on the last day forfiling, we conclude that plaintiffs' nomination papers here werefiled "within the time provided for by the general election law"(105 ILCS 5/9-10 (West Supp. 2000)). See Kunkel, 179 Ill. 2d at534, 689 N.E.2d at 1054 (court may not depart from plain languageof statute by reading into it limitations that the legislaturedid not express).

Notwithstanding the foregoing, Smith argues that plaintiffswere required to file their nomination papers "within theDistrict's customary office hours," which Smith asserts "ended at5:00 p.m. on January 23, 2001." Thus Smith contends thatplaintiffs' nomination papers were untimely filed. We disagree.

Attached to defendants' brief dealing with certain issuesrequested by the trial court is an affidavit of District 209Superintendent Gregory Jackson. In his affidavit, which is datedFebruary 19, 2001, Jackson states that "[t]he District'sadministrative office was open until 5:00 p.m. on January 23,2001, as required by Section 1-4 of the Election Code to receivenomination papers." This of course does not establish, as Smithcontends, that the office hours ended at 5 p.m. on that date. Just as section 1-4 of the Election Code, which Jacksonreferences in his affidavit, requires only that the office remainopen until 5 p.m., so Jackson's statement establishes only thatthe District's administrative office was open until 5 p.m. onJanuary 23, and not that it closed at that time.

Moreover, in point of fact, even if the office closed at 5p.m., there is no question that plaintiff Welch was already inthe office before 5 p.m. Defendants themselves attached to theirmemorandum excerpts from Welch's deposition testimony in which hestates that while in the office he saw defendant Manzo come intothe main office "at about 4:55," thus establishing his ownpresence in the office prior to 5 p.m. This testimony wasunchallenged and is in fact used assertively by defendants inshowing who was present in the office when plaintiffs' nominationpapers were filed. Thus even if the office were required toclose by 5 p.m., which as we discussed earlier is not the case,this requirement would not have been violated since the statutedoes not say that once the office is closed, those already in itcannot complete their business. See Kunkel, 179 Ill. 2d at 534,689 N.E.2d at 1054 (court may not depart from plain language ofstatute by reading into it limitations that the legislature didnot express).

Smith points for support to Daniels v. Cavner, 404 Ill. 372,88 N.E.2d 823 (1949), and McReynolds v. Hartley, 251 Ill. App. 3d1038, 623 N.E.2d 913 (1993), but his reliance upon these cases ismisplaced. In Daniels the appellees, candidates for variousoffices in the city of Venice, brought their nominating papers tothe appellant city clerk's residence at around midnight on thelast day for filing. The clerk told the appellees that they weretoo late; he then took the papers and made a notation on themthat they had been left with him at 12:12 a.m. The appelleessought a writ of mandamus compelling the clerk to print theirnames on the ballot for the city election. The trial courtgranted the writ, but the Supreme Court reversed. According toour Supreme Court, the "determinative" issue was "the proprietyof filing nomination papers at the clerk's residence rather thanhis office." Daniels, 404 Ill. at 375, 88 N.E.2d at 825. Thecourt noted that there was no indication that the appellees had"attempted to file their petitions at the clerk's office on theday in question either before or after the normal closing hour." Daniels, 404 Ill. at 379, 88 N.E.2d at 826. The court concludedthat in order for such a filing to be effective, it must be made"at the customary office and within the customary office hours." (Emphasis added.) Daniels, 404 Ill. at 378, 88 N.E.2d at 826.

In McReynolds, the petitioners filed objections to thenomination papers of Democratic candidates for various offices inLockport Township, but the electoral board denied the objections. The petitioners then filed a petition for judicial review of thisdecision. The petition for judicial review was filed by thepetitioners' attorney, who arrived at the office of the circuitclerk of Will County after 4:30 p.m. on March 15, 1993, the lastday for filing this petition. A deputy clerk told the attorneythat state law prevented her from taking any document for filingafter 4:30 p.m., and she refused to accept it. The petition wasfiled the next day, and the trial court dismissed it as untimely. The appellate court affirmed, noting that it was undisputed thatthe clerk's official office hours "end[ed] at 4:30 p.m. on eachbusiness day." McReynolds, 251 Ill. App. 3d at 1040, 623 N.E.2dat 914-15.

As noted, the appellees in Daniels made no attempt to filetheir petitions at the clerk's office, either before or after thenormal closing hour, going instead to the clerk's residence ataround midnight, where the clerk told them that they were toolate. Similarly, in McReynolds the court concluded that thepetitioners' attorney arrived at the clerk's office after 4:30p.m. The deputy clerk refused to accept filings after 4:30, andconsequently the petition was not filed until the next day, whichwas clearly beyond the permitted time. Here, in contrast toDaniels, plaintiffs went to the District 209 administrativeoffice to file their nomination papers, not to the school boardsecretary's residence. Further, in contrast to McReynolds, plaintiff Welch was inside the office prior to 5 p.m., and eventhough plaintiffs admit in their complaint that Welch asked to bethe last to file, he did not ask to file after 5 p.m. Moreover,in contrast to both Daniels and McReynolds, plaintiffs'nomination papers were accepted by the appropriate personnel, notrejected. Neither Daniels nor McReynolds is applicable to theinstant case.

Smith also relies upon Anderson v. Illinois State Board ofElections, 226 Ill. App. 3d 481, 589 N.E.2d 907 (1992), which isfactually closer to the instant case but is distinguishablenonetheless. In Anderson, the plaintiff went to the branchoffice of the Illinois State Board of Elections to file severalobjections to nominating papers. He arrived at 4:55 p.m. onDecember 23, 1991, the last day for filing. The plaintiff filedone set of objections with the clerk but was unprepared to file asecond set because he was required to locate an original petitionamong his papers. The clerk turned away and accepted twopetitions from other parties, and then waited on the plaintiffagain and accepted his second and third sets of objections. However, the clerk refused to accept the plaintiff's remainingobjections, noting that it was after 5 p.m. A public noticeprovided that no objections would be accepted after the close ofbusiness at 5 p.m. The plaintiff sought mandamus reliefcompelling the Board to accept his remaining objections, but thetrial court rejected the request, and the appellate courtaffirmed.

In Anderson, as noted, the clerk explicitly refused toaccept objections after 5 p.m. Here, by contrast, plaintiffs'nomination papers were accepted, which is an indication that theoffice remained open, at least with respect to those who werealready inside the office. Secondly, in Anderson there was apublic notice stating that no objections would be accepted after5 p.m., while in the instant case there was no indication of suchnotice. Finally, the appellate court in Anderson sustained thetrial court's denial of a writ of mandamus, concluding that thetrial court acted within its discretion. In the instant case,the trial court granted a writ of mandamus. It is one thing tosay, as did the court in Anderson, that there were insufficientreasons to overturn the trial court's exercise of discretion inrefusing the writ of mandamus, and it is quite another to say, asSmith would have it, that the trial court's decision in this casegranting a writ of mandamus was clearly beyond its discretion. Thus both our decision and the decision in Anderson recognize thetrial court's right or power to exercise its discretion to grantor to deny the mandamus remedy based upon the respectiveindividual facts in each case. We should not reverse here unlesswe find that there was an abuse of discretion, and we do not sofind. Anderson is of no help to Smith.

Accordingly, we conclude that, contrary to Smith'scontentions, plaintiffs' nomination papers were timely filed, andconsequently Smith had no discretion in this instance todetermine otherwise.

Since we hold that these documents, under the factspresented, were not untimely, there is no necessity to dispose ofthe second question regarding the power of a school boardsecretary to make determinations as to timeliness in the firstinstance. Nevertheless we note, as a wholly independent ground,that since a determination as to the timeliness of nominatingpapers cannot simply be made from a mere time-stamp on the faceof the document, but instead would require an analysis of thecircumstances resulting in that time-stamp, such a determinationwould not be one for a school board secretary to make.

Under the Election Code, a "local election official" such asa school board secretary has limited discretion to determinewhether nominating papers are in "apparent conformity" with thelaw. 10 ILCS 5/10-8 & 5/10-15 (West 1993). Section 10-15provides that such officials "shall certify *** the names of allcandidates entitled to be printed on the ballot." Candidates soentitled are "those whose nominating papers are (1) filed asrequired by the [Election] Code, (2) in apparent conformity withthe Code when filed, and (3) not subject to a duly filedobjection." North v. Hinkle, 295 Ill. App. 3d 84, 87, 692 N.E.2d352, 354 (1998); see 10 ILCS 5/10-8 (West 1993). In determiningwhether a document is in "apparent conformity" with the law, thelocal election official is limited to the face of the document,and he may not go behind what appears on the face. See Peopleex rel. Giese v. Dillon, 266 Ill. 272, 275-76, 107 N.E. 583, 584(1914). "He is given no discretionary power when a petitionproper on its face is filed. His only function is to determinewhether, upon the face of the petition, it is in compliance withthe law." Dillon, 266 Ill. at 276, 107 N.E. at 584. "He *** hasno judicial powers, and where the petition presented appears onits face to be in compliance with the statute, he cannotinstitute an investigation to determine" whether underlyingfactors render it invalid. Dillon, 266 Ill. at 276, 107 N.E. at584. Thus any determination concerning the validity of petitionsbearing the later time-stamps would be outside the latitude of aschool board secretary's authority, since these time-stamps donot clearly establish that the papers are not in conformity withthe Election Code.

As previously discussed, under section 1-4 of the ElectionCode there is no blanket prohibition of the filing of nominationpapers after 5 p.m. Thus the timeliness of the filing of suchnominating papers would be impacted by various facts andcircumstances surrounding their submission for filing. Asalready indicated, the variables which would requireconsideration include the following: (1) whether the office wasin fact open when the candidate arrived; (2) what, if any, wasthe announced closing hour and/or the customary hours forclosing? (3) was the bearer of the nominating papers inside theoffice before any such announced closing time? and (4) was therea tender of the nomination papers for filing, and when were thepapers tendered for filing? (Any timely tender that incurred adelay in filing as a result of a clerical delay would clearlyrequire their acceptance. See In re Estate of Davison, 102 Ill.App. 3d 644, 645, 430 N.E.2d 222, 223 (1981)). Each of thesefactors, individually and in conjunction with other factors,would clearly have a bearing in the determination of timeliness. Thus the simple fact that a document bears a time-stamp after 5p.m. would by no means be sufficient to bar its acceptance. Rather, it would necessitate an investigation of the surroundingcircumstances which, for the reasons already discussed, a schoolboard secretary is not empowered to undertake.

Notwithstanding the foregoing, Smith points to North v.Hinkle, 295 Ill. App. 3d 84, 692 N.E.2d 352 (1998), in support ofhis contention that he had authority to determine the timelinessof plaintiffs' nominating papers in this instance. North isclearly distinguishable from the instant case. In North, theplaintiffs filed nominating papers on the last day for filing,seeking to have their names placed on the ballot in the city ofAmboy's municipal election. However, none of them included astatement of candidacy as required by section 10-5 of theElection Code. When the defendant city clerk did not certifytheir names for the ballot, the plaintiffs sought a writ ofmandamus to compel her to certify their names. The trial courtdenied the request, explaining that since the plaintiffs did notfile statements of candidacy, their nominating papers were not inapparent conformity with the Election Code. The appellate courtaffirmed, noting that the plaintiffs "concede[d] that theirnominating papers were not in apparent conformity with the Codewhen filed." North, 295 Ill. App. 3d at 88, 692 N.E.2d at 355.

The distinction between North and the instant case isobvious. In North, the alleged defect in the plaintiffs'nominating papers was that they did not include a statement ofcandidacy. The Election Code explicitly requires such astatement of candidacy (see 10 ILCS 5/10-5 (West 1993)), and itsabsence is clearly manifest from the face of the papers. Noinvestigation is required to make that determination. As noted,the plaintiffs in North also conceded that their nominatingpapers were not in conformity with the Election Code. Here, bycontrast, there is no requirement in the Election Code thatnomination papers be filed by 5 p.m. on the last day for filing. Moreover, time-stamps after 5 p.m. would not in any eventcategorically demonstrate that plaintiffs' nominating papers werenot in apparent conformity with the Election Code. In addition,plaintiffs in the instant case make no concession that theirpapers failed to conform to the Code. In point of fact, theappellate court in North specifically focused on these factors,stating that the issue of whether nominating papers includestatements of candidacy "is precisely the type of question thatcan be answered by a facial examination of the papersthemselves." North, 295 Ill. App. 3d at 88, 692 N.E.2d at 355. Since the plaintiffs' papers did not include such statements,they "were not in apparent conformity with the [Election] Code,and defendant was empowered to make that ministerialdetermination." North, 295 Ill. App. 3d at 88-89, 692 N.E.2d at355.

For the reasons set forth above, we conclude thatplaintiffs' nominating papers were timely filed "within the timeprovided for by the general election law" (105 ILCS 5/9-10 (WestSupp. 2000); 10 ILCS 5/10-6 (West Supp 2000); 10 ILCS 5/1-4 (West1993)), and that in any event Smith had no discretion todetermine otherwise. Hence, he was obligated to certifyplaintiffs' names for the ballot to the Cook County Clerk.

Finally, Smith argues on appeal that it was improper for thetrial court to grant the mandamus relief requested, on the basisof the record before it. He notes that defendants had noopportunity to file an answer to plaintiffs' complaint, addingthat no evidentiary hearing was held. According to Smith, "[t]heentire record consisted of the complaint, memoranda by Plaintiffsand Defendants[,] and the Defendants' reply." Smith contendsthat plaintiffs produced no evidence to support their request fora writ of mandamus, and that it was thus an abuse of discretionfor the court to grant this relief. This argument is withoutmerit.

Mandamus is a remedy which may be issued in the sounddiscretion of the court. Chicago Ass'n of Commerce & Industry v.Regional Transportation Authority, 86 Ill. 2d 179, 185, 427N.E.2d 153, 156 (1981); Johnson v. Washington, 294 Ill. App. 3d472, 474, 690 N.E.2d 660, 662 (1998). It is appropriate onlywhere "the plaintiff has a clear right to the relief sought, andthe defendant has a clear duty to act and clear authority tocomply with the writ." Johnson, 294 Ill. App. 3d at 474, 690N.E.2d at 662; People v. Latona, 184 Ill. 2d 260, 277, 703 N.E.2d901, 909-10 (1998).

In the instant case, these requirements were met. As noted,attachments to plaintiffs' complaint and to defendants' brief onissues requested by the trial court, which latter attachmentsincluded deposition excerpts of Welch assertively submitted bydefendants to support their position, showed the following factsto be undisputed: The District 209 administrative office was openon January 23, 2001, until at least 5 p.m., and plaintiffs wereinside the office prior to 5 p.m. In addition, the receiptsissued for plaintiffs' nomination papers bear time-stamps of 5:04p.m. on January 23, 2001; 5:06 p.m.; 5:07 p.m.; and 5:10 p.m. School board secretary Smith filed a certificate of ballot onFebruary 1, 2001, which did not include plaintiffs' names; onFebruary 6, 2001, he sent a letter to plaintiff Welch statingthat his name was not certified for the April 3 ballot becausehis nomination papers were filed after 5 p.m.

Taking this information together with the statutes discussedabove, no further evidence is needed to establish that plaintiffshave a right to the mandamus relief requested, i.e., to havetheir names certified for inclusion on the ballot. Accordingly,we cannot say that it was an abuse of discretion for the trialcourt to issue a writ of mandamus compelling Smith to certifyplaintiffs' names for the April 3, 2001, ballot.

Because of our disposition of this case, we need notconsider the impact of filing objections on the discretionarypower of a school board secretary, which has been raised by theparties. Since we have already determined that Smith did nothave such discretion in this instance, it matters not whether thefiling of objections would divest him of authority which he didnot possess in the first place.

We therefore affirm the trial court's granting of a writ ofmandamus as requested in count III of plaintiffs' complaint.

Affirmed.

CAHILL, P.J. and McBRIDE, J., concur.