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June 21, 2001

NO. 4-00-0882

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

On expedited judicial review under section 10-10.1 of theElection Code (10 ILCS 5/10-10.1 (West 1998)), the circuit court ofSangamon County reversed a decision of the Illinois State Board ofElections (Election Board) sitting as the State Officers ElectoralBoard. Plaintiff, Thomas R. Schober (Schober), initiated theproceeding before the Election Board by objecting to the nominatingpetitions of defendant James S. Young (Young). The Election Boardoverruled the objections, and Schober sought judicial review in thecircuit court, naming as defendants Young, the Election Board, andthe members of the Election Board, chairman William McGuffage,Wanda Rednour, Elaine Roupas, Kay D. Holloway, David E. Murray, andPhillip O'Connor. Following the circuit court's reversal of theElection Board's decision, Young appealed. The issues on appealare whether (1) the failure of the circuit court to find that theElection Board's decision is against the manifest weight of theevidence requires reversal of the circuit court's order, (2) Youngviolated the dual-circulation prohibition of section 10-4 of theElection Code (10 ILCS 5/10-4 (West Supp. 1999)), and (3) theapplication of section 10-4 to the facts of this case is unconstitutional. We affirm.

We first note that notice of appeal was filed with thecircuit clerk of Sangamon County on October 6, 2000. In responseto our rule to show cause, pursuant to Supreme Court Rule 312 (155Ill. 2d R. 312), for failure to file a docketing statement, therule was discharged when the docketing statement was filed November7, 2000, which was election day. We further note that thedocketing statement did not request an expedited schedule and thatappellant's brief was not filed until February 28, 2001, after arule to show cause was issued by this court.

Review of an Election Board decision, where the decisionhas the vote of five members of the Election Board, is determinedaccording to the manifest-weight standard. See King v. JusticeParty, 284 Ill. App. 3d 886, 888, 672 N.E.2d 900, 902 (1996). Inthe instant case, the members of the Election Board voted 4 to 2 insupport of the objection, but because there were not five votes,the objection was overruled. We need not decide whether themanifest-weight standard applies in this case.

Where questions of law arise, a de novo standard applies,and the determination of the constitutionality of a statute is aquestion of law that this court considers de novo. Miller v.Rosenberg, No. 89009, slip op. at 5-6 (April 19, 2001), ___ Ill. 2d___, ___, ___ N.E.2d ___, ___. As to the applicability of thestatute to the facts of this case, the facts are not in dispute,divergent inferences could not be drawn from the undisputed facts,and there is a question of law to which this court applies a denovo standard. See Stephens v. Education Officers Electoral Board,Community College District No. 504, Cook County, 236 Ill. App. 3d159, 161, 603 N.E.2d 642, 644 (1992). In this case, whether aviolation of the statute occurred depends on the constructionplaced on the statute. Statutory construction also raises aquestion of law. Country Mutual Insurance Co. v. UniversalUnderwriters Insurance Co., 316 Ill. App. 3d 161, 164, 735 N.E.2d1032, 1035 (2000). While deference is generally accorded theconstruction placed on a statute by an agency given the authorityto administer that statute, the courts are not bound by an agency'serroneous construction of the statute. Taylor v. Cook CountySheriff's Merit Board, 316 Ill. App. 3d 574, 579, 736 N.E.2d 673,677 (2000) (also noting that the legal effect of undisputed factsis a question of law determined de novo). The fact that thecircuit court did not determine that the Election Board's findingswere against the manifest weight of the evidence is not a basis forreversing the circuit court's decision in this case.

The facts are undisputed. Young served as a circulatorof one nominating petition for Cal Skinner, Jr., to be a candidatefor the Republican party for nomination to the office of representative in the General Assembly for the 64th representative districtat the general primary election held on March 21, 2000. AfterSkinner lost the primary election, Young sought to become acandidate for the same office for the Libertarian party in thegeneral election on November 7, 2000. The Libertarian party is notan established political party within the 64th representativedistrict. Young served as circulator for 294 of the 296 nominatingpetitions seeking to nominate himself as the Libertarian partycandidate.

Section 10-4 of the Election Code sets forth the form fora nominating petition. Section 10-4 provides, in relevant part, asfollows:

"At the bottom of each sheet of such petitionshall be added a statement, signed by a registered voter of the political division, who hasbeen a registered voter at all times he or shecirculated the petition, for which the candidate or candidates shall be nominated; statingthe street address or rural route number ofthe voter, as the case may be, as well as thevoter's county, and city, village or town, andstate certifying that the signatures on thatsheet of the petition were signed in hispresence; certifying that the signatures aregenuine; and either (1) indicating the dateson which that sheet was circulated, or (2)indicating the first and last dates on whichthe sheet was circulated, or (3) certifyingthat none of the signatures on the sheet weresigned more than 90 days preceding the lastday for the filing of the petition ***; andcertifying that to the best of his knowledgeand belief the persons so signing were at thetime of signing the petition duly registeredvoters under Articles 4, 5 or 6 of the Code ofthe political subdivision or district forwhich the candidate or candidates shall benominated, and certifying that their respective residences are correctly stated therein.*** No petition sheet shall be circulatedmore than 90 days preceding the last dayprovided in Section 10-6 for the filing ofsuch petition ***. *** Provided, further, thatno person shall circulate or certify petitionsfor candidates of more than one politicalparty, or for an independent candidate orcandidates in addition to one political party,to be voted upon at the next primary or general election, or for such candidates andparties with respect to the same politicalsubdivision at the next consolidated election." (Emphasis added.) 10 ILCS 5/10-4(West Supp. 1999).

On July 3, 2000, Schober filed an objection to Young'snominating petitions, claiming that 294 petitions showing circulation by Young were invalid because they were obtained by a dualcirculator. Although the vote was 4 to 2 in favor of sustainingthe objection, at least five votes are required for Election Boardaction; hence, the objection was overruled. 10 ILCS 5/1A-7 (West1998). Schober then sought judicial review in the circuit court. Young's attempt to have the issues raised here on judicial reviewconsidered in federal court was met with dismissal for want ofsubject-matter jurisdiction. Young v. Illinois State Board ofElections, 116 F. Supp. 2d 977, 984 (N.D. Ill. 2000), aff'd, 234F.3d 1275 (7th Cir. 2000). We recognize that federal courtdecisions have found section 10-4 unconstitutional, but only to theextent that it required petition circulators to be registeredvoters. Young, 116 F. Supp. 2d at 985-87; Tobin For Governor v.Illinois State Board of Elections, 105 F. Supp. 2d 882, 887-88(N.D. Ill. 2000). Contrary to Young's contention, we do not findthis a basis for invalidating the entire statute. See People v.Sanders, 182 Ill. 2d 524, 534, 696 N.E.2d 1144, 1149 (1998) (theoffending portion may be excised and the remainder preservedprovided the remainder is complete in and of itself and capable ofbeing executed wholly independently of the severed portion and thelegislature would have adopted it without the severed portion).

We also note that the federal courts have previouslyconstrued the dual-circulation prohibition and found it constitutional in a series of cases captioned Citizens For John W. MooreParty v. Board of Election Commissioners, 599 F. Supp. 662 (N.D.Ill. 1984) (Moore I), aff'd in part & vacated in part, 794 F.2d1254 (7th Cir. 1986) (Moore III); 781 F.2d 581 (7th Cir. 1986)(Moore II); 665 F. Supp. 1334 (N.D. Ill. 1987) (Moore IV), aff'd845 F.2d 144 (7th Cir. 1988) (Moore V). The Moore cases arosebecause the Board of Election Commissioners of the City of Chicagosustained objections to nominating petitions Moore and hissupporters circulated on behalf of his candidacy in the 1982general election for the office of representative in the GeneralAssembly for the 31st legislative district after he and thosesupporters circulated petitions for his candidacy in the 1982Democratic primary for the office of state senator, secured a placeon the ballot in the primary, and then withdrew from the primary. Moore I, 599 F. Supp. at 664-66. The federal District Court forthe Northern District of Illinois rejected Moore's challenge to theElection Board's interpretation of section 10-4 based on the firstand fourteenth amendments of the United States Constitution (U.S.Const., amends. I, XIV). Moore I, 599 F. Supp. at 670. TheSeventh Circuit affirmed the district court's general constitutional determinations but remanded for a determination of whetherthere was a material distinction between candidate-circulators andnoncandidate-circulators for purposes of constitutional freedom-of-speech analysis as applied to candidates circulating petitions fortheir own candidacies. Moore III, 794 F.2d at 1263-64. On remand,the district court found no material distinction and again foundthat the dual-circulation prohibition was constitutional as itapplied to Moore's circulation of petitions on his own behalf. Moore IV, 665 F. Supp. at 1340-42. The Seventh Circuit affirmed. Moore V, 845 F.2d at 148.

In this case, the circuit court applied the interpretation of section 10-4 urged by the Election Board in Moore. To theextent that Young challenges the constitutionality of the circuitcourt's interpretation of section 10-4 of the Election Code in thiscase, we follow Moore and determine that that interpretation isconstitutional.

Generally, courts will not substitute their judgments fora reasonable interpretation of a statute adopted by an agencycharged with its administration. Church v. State of Illinois, 164Ill. 2d 153, 162, 646 N.E.2d 572, 577 (1995). However, theconsistency and duration of the agency's interpretation are factorsbearing on the deference to be given to the agency's interpretation. Illinois Consolidated Telephone Co. v. Illinois CommerceComm'n, 95 Ill. 2d 142, 153-54, 447 N.E.2d 295, 300 (1983); RiverBend Community Unit School District No. 2 v. Human Rights Comm'n,232 Ill. App. 3d 838, 843, 597 N.E.2d 842, 845 (1992) (long-termadherence to a particular interpretation adds weight to thevalidity of the agency's construction).

Here, the Election Board adopted the factual findings ofthe hearing officer, but because the objector, Schober, obtainedonly four votes, the objection was overruled. The hearing officerfound that Part IIE of the appendix to the Election Board rules ofprocedure provided in relevant part:

"Upon showing proof by objector that candidatecirculated for a candidate of another partyduring the circulation period, regardless ofwhether the petition of the other party was infact filed, the entire petition sheet shall beinvalidated."

The introductory paragraph to the appendix explains that it liststhe most common grounds for objections to nominating petitions andthe bases on which the Election Board will render decisions onobjections unless the evidence requires a different result. Theexample of a common objection in item IIE of the appendix to theElection Board's procedural rules does not appear to be an attemptby the Election Board to limit application of the section 10-4prohibition against dual circulation to "circulation periods" asYoung contends. Instead, it indicates only that, if this occurs,it is a valid basis for an objection.

The hearing officer also found that page 3 of theElection Board's candidate guide specified four circumstances inwhich dual circulation of petitions are prohibited. According tothe candidate guide, a circulator is not allowed to circulatepetitions for:

"1) more than one established party;

2) an independent candidate or candidates inaddition to candidates for an establishedpolitical party;

3) more than one new political party;

4) an independent candidate or candidates inaddition to candidate for a new politicalparty."

This language in the candidate guide merely reflects the languagein the section 10-4 prohibition against dual circulation.

In this case, Young could be found to have violated thesecond prohibition in the candidate guide. Noting that section 10-4 of the Election Code does not refer to a "circulation period,"the hearing officer concluded that the statute did not limit theprohibition only to the same circulation period and that thelegislature intended the prohibition to apply "during all periodsof circulation."

We are unpersuaded by Young's argument that the use ofthe word "or" between the words "primary" and "general" helpsresolve the issue in this case. Indeed, that is what created theissue. The words "or" and "and" may be used as synonyms when thatis necessary to effectuate the intent of the legislature. John P.Moriarty, Inc. v. Murphy, 387 Ill. 119, 129-30, 55 N.E.2d 281, 286(1944); Apex Oil Co. v. Henkhaus, 118 Ill. App. 3d 273, 279, 454N.E.2d 1032, 1037 (1983). In this case, we consider "or," as usedbetween "primary" and "general" in the section 10-4 prohibitionagainst dual circulation, was intended to be employed in theconjunctive.

Young urges this court to adopt an interpretation ofsection 10-4 limiting its dual-circulation prohibition to acirculation period defined as the circulation period prior to eachelection, irrespective of whether it is a primary or generalelection. He argues that the "election season" concept discussedin the Moore cases is not expressly embodied in the statute. However, under the construction placed on section 10-4 in Moore, asurged by the Election Board at that time, Young would be prohibitedfrom dual circulation for a primary election and the later generalelection. The Moore analyses make it clear that "election season"refers to the primary and the following general election.

In McGuire v. Nogaj, 146 Ill. App. 3d 280, 283, 496N.E.2d 1037, 1040 (1986), the court interpreted the prohibitionagainst dual circulation as not applying to the circulation ofnominating petitions for multiple independent candidates for thesame office as long as the circulator did not in addition circulatepetitions for a political party. The McGuire court found that theprohibition in section 10-4 could "be read only to preclude dualcirculation for (1) an independent candidate in addition to apolitical party." McGuire, 146 Ill. App. 3d at 283, 496 N.E.2d at1040.

In McGuire, the case of Briscoe v. Kusper, 435 F.2d 1046,1054-55 (7th Cir. 1970), was distinguished on the basis that thechange in Briscoe was from the least-limiting application of thesubject statute to a more restrictive application, whereas inMcGuire the opposite occurred. McGuire, 146 Ill. App. 3d at 284-85, 496 N.E.2d at 1040-41. Further support for the circuit court'sdecision in this case are the Election Board rules of procedure andthe candidate's guide language set forth in the hearing officer'sfindings.

The candidates, their supporters, and the voting publicin general have an interest in consistent interpretations of theElection Code by the Election Board so that the election process isnot thrown into chaos by arbitrary interpretations that vary fromelection to election or from candidate to candidate. The votingpublic and the candidates should know what to expect from theelection process. Contributing to the possible chaos and variousinterpretations given Election Board decisions is the statutorymandate as to actions of the Election Board: "5 votes arenecessary for any action of the Board to become effective." 10ILCS 5/1A-7 (West 1998). In summary, we agree with the circuitcourt's ruling and its basis therefor.

Accordingly, we affirm the decision of the circuit courtof Sangamon County reversing the Election Board's decision tooverrule plaintiff's objection to defendant's nominating petitions.

Affirmed.

STEIGMANN, P.J., and MYERSCOUGH, J., concur.