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Docket No. 96963-Agenda 14-May 2004.

RICHARD GIROT, Appellant, v. KENNETH KEITH, Objector
(Municipal Officers Electoral Board of the City of Braidwood et al., Appellees).

Opinion filed October 21, 2004.
 

JUSTICE RARICK delivered the opinion of the court:

The issues in this case are whether due process was violatedwhen the petitioner-appellant, Richard Girot, was denied the right tobe listed as a candidate for mayor on the ballot in the February 25,2003, primary election in the City of Braidwood (Braidwood) and, ifso, whether such violation can be considered harmless error.Following Girot's filing of his statement of candidacy and nominatingpetitions for mayor of Braidwood, Kenneth Keith filed severalobjections alleging Girot's failure to comply with certain requirementsof Illinois' Election Code (Code) (10 ILCS 5/1-1 et seq. (West2002)). The Municipal Officers Electoral Board of the City ofBraidwood (Electoral Board or Board) scheduled a hearing on theseobjections. Girot moved to have the city clerk, Sue Grygiel, replacedon the Board due to her alleged bias, but this motion was denied.Following the hearing, the Board sustained Keith's objections andheld that Girot's name would not be placed on the ballot. Girot soughtjudicial review, and the circuit court of Will County affirmed theElectoral Board's decision. Girot appealed and the appellate courtfound that Girot's due process rights had been violated, but affirmedthe circuit court, finding the error to be harmless. 341 Ill. App. 3d902. We granted Girot's petition for leave to appeal. 177 Ill. 2d R.315(a). Pursuant to Supreme Court Rule 345 (155 Ill. 2d R. 345), wehave permitted the Independent Voters of Illinois, et al., to file an amicus curiae brief in support of Girot.

Our examination of the record in the case at bar shows that onDecember 9, 2002, Girot filed, inter alia, a statement of candidacyand petitions with city clerk Grygiel, seeking Girot's placement on theballot for a mayoral election in Braidwood. Two weeks after Girotsubmitted his documents, Keith filed objections asserting that, interalia, Girot failed to properly bind his petition sheets and statement ofcandidacy, in violation of sections 7-10 and 10-4 of the Code (10ILCS 5/7-10, 10-4 (West 2002)). As city clerk of Braidwood,Grygiel normally sat on the Board to hear and decide objections toelection petitions. See 10 ILCS 5/10-9(3) (West 2002). However,when it became apparent that Grygiel was to participate in the hearingon Keith's objections as both a witness and a member of the Board,Girot moved for Grygiel to be replaced.

At the hearing on Girot's motion, he asked to have a member ofthe Electoral Board notify the chief judge of the circuit court toappoint Grygiel's replacement. See 10 ILCS 5/10-9(6)(d) (West2002). Girot argued that because Grygiel, as city clerk, had personallyreceived his petitions and would be testifying regarding whether theyhad been bound, Grygiel's position on the Electoral Board wouldviolate Girot's fourteenth amendment right to due process. TheBoard, after discussing the matter in executive session, voted to denyGirot's motion for substitution.

At the hearing on Keith's objections, the following testimony,inter alia, was adduced. Grygiel testified on behalf of the objector thatshe had personally received Girot's nominating papers. She furtherstated that when she received those documents, they were loose andnot stapled, bound, or clipped in any way. Grygiel testified that sheput Girot's documents in a paper clip. Following the denial of hismotion for a directed verdict, Girot testified that his nominatingdocuments were paper-clipped together when he filed them withGrygiel. He further testified that Grygiel separated them and lookedthrough them, "which it appeared to me at that time that she stapledthem." On cross-examination, Girot admitted that while it seemed thatGrygiel had stapled his papers, there were no staple marks on thedocuments, which he believed could mean that Grygiel "stapledsomething else." Girot then called Grygiel, who testified that when sheaccepted his documents, she put them in a paper clip. She did notbelieve that they were paper-clipped when Girot gave them to her.However, on redirect, Grygiel admitted that she "would honestly sayI'm not a [sic] hundred percent [certain]" that the papers were notclipped together when she received them.

Following closing arguments, the Board, including Grygiel, wentinto executive session to deliberate. When the hearing was againcalled to order, Electoral Board Chairperson Heberer moved to grantthe objector's petition that the name of Richard Girot be struck fromthe ballot for the election. The motion was granted by a vote of 2 to1, with Grygiel being the deciding vote. The Board noted that it foundGrygiel's testimony credible, but also stated that it would find that,even if Girot had paper-clipped the nominating petitions together, hehad not complied with the Code. The Board also held that Keith'sother objections were substantiated by failures in Girot's documents,which independently supported its decision.

Initially, we note that, under the Code, as well as under notionsof procedural due process, it was clearly error for the Electoral Boardto deny Girot's motion to substitute Grygiel. The Board's writtendecision states that it "denies Girot's Motion for Substitution seekingthe removal of City Clerk, Sue Grygiel, from the Board. There is nostatutory provision authorizing Ms. Grygiel's removal. Moreover,judicial review, if pursued, will ensure that Girot received a fairhearing before the Board. See [In re] Objection of Cook [toReferendum Petition of Pierce], 122 Ill. App. 3d 1068, 462 N.E.2d557, 560 (1984)." However, in Kaemmerer v. St. Clair CountyElectoral Board, 333 Ill. App. 3d 956, 959 (2002), the Fifth Districtof the Appellate Court held, contrary to its prior holding in In reObjection of Cook: "The Code provides a means to substitute astatutorily designated person to replace an 'interested' board member.*** [S]ection 10-9(6) establishes a process for the substitution of amember of the Electoral Board in the event of a conflict."Kaemmerer, 333 Ill. App. 3d at 959-60.

Indeed, subsection (d) of section10-9(6) states, inter alia: "Anyvacancies on an electoral board not otherwise filled pursuant to thisSection shall be filled by public members appointed by the Chief Judgeof the Circuit Court for the county wherein the electoral board hearingis being held upon notification to the Chief Judge of such vacancies."10 ILCS 5/10-9(6)(d) (West 2002). Thus, contrary to the Board'sdecision, we agree with Kaemmerer, 333 Ill. App. 3d at 960, thatsection 10-9(6) of the Code covers the instant situation, allowing fora substitution of a board member "in the event of a conflict." See alsoAnderson v. McHenry Township, 289 Ill. App. 3d 830, 833-34 (1997)(appellate court reversed the judgment of the circuit court andremanded for a new hearing de novo before an electoral boardcomposed of impartial replacements appointed by the chief judge ofthe circuit court pursuant to section 10-9(6) of the Code).

The Board also erred in denying Girot's motion to substitutebased on its finding that judicial review would "ensure that Girotreceived a fair hearing before the Board." (Emphasis added.) Thisreasoning, apparently originating in In re Objection of Cook, has sincebeen used by several Illinois courts to reject claims of procedural dueprocess violations where an objector or candidate argued he could notreceive a fair hearing before an electoral board. See Ryan v. Landek,159 Ill. App. 3d 10, 13 (1987) (judicial review in the circuit courtunder section 10-10.1 of the Code, inter alia, precludes finding animplied right to substitute board members " 'whenever an objectorfeels a conflict is present' "), quoting In re Objection of Cook, 122 Ill.App. 3d at 1072); see also Ayers v. Martin, 223 Ill. App. 3d 397, 399(1991) (statutory protections, together with the remedy of judicialreview, adequately ensure a fair hearing).

In the instant case, however, the circuit court, on judicial review,affirmed the Electoral Board's ruling, holding that its decision "on theissue of binding" was not against the manifest weight of the evidence.While it is true that judicial review of electoral board questions of factwill be disturbed only if they are against the manifest weight of theevidence, the review of a question of law is independent and notdeferential. See Reyes v. Bloomingdale Township Electoral Board,265 Ill. App. 3d 69, 72 (1994). As this court recently stated:

"An administrative agency's findings of fact are not reversedunless they are against the manifest weight of the evidence,and questions of law are reviewed de novo. [Citation.] Wereview the issue of whether [plaintiff's] procedural dueprocess rights were violated under the de novo standardbecause it is a legal question. [Citation.]" Lyon v.Department of Children & Family Services, 209 Ill. 2d 264,271 (2004).

Therefore, here, where the preliminary question raised on judicialreview was one of law, the circuit court's error in using a standard ofreview other than de novo once again deprived Girot of a fair hearing.See Comito v. Police Board of the City of Chicago, 317 Ill. App. 3d677, 686 (2000) (on judicial review, the manifest weight of theevidence standard is not controlling where the board is prejudiced orbiased against the claimant and incapable of giving him a fair hearing);County of Lake v. Pollution Control Board, 120 Ill. App. 3d 89, 98(1983) (where Pollution Control Board, on administrative review ofcounty board's decision, incorrectly applied the wrong standard ofreview, its finding was invalid).

On appeal, the appellate court did not address this standard ofreview error by the circuit court, but agreed with Girot that his dueprocess rights were adversely affected by Grygiel's simultaneousstatus as witness and fact finder. The appellate court relied on the"well-settled principle of law that due process requires that a partyappearing before an administrative tribunal be judged by an unbiaseddecisionmaker. [Citation.]" 341 Ill. App. 3d at 903. As the appellatecourt further stated:

"[Girot] was placed in the unenviable position of presentingtestimony contradictory to that of a witness who would thenretire with the other two Board members to determine thecredibility of the witnesses. Suggesting that Grygiel wasunbiased, when she was required to weigh her own credibilityagainst another witness's, stretches our credulity." 341 Ill.App. 3d at 903-04.

We concur with this reasoning, where it is indeed a well-settledprinciple of law that concepts of due process apply to administrativehearings, and the parties are guaranteed the right to a fair andimpartial tribunal. See Anderson, 289 Ill. App. 3d at 832; Sindermannv. Civil Service Comm'n, 275 Ill. App. 3d 917, 923 (1995); see alsoCollura v. Board of Police Commissioners, 113 Ill. 2d 361, 369(1986).

However, the appellate court went on to hold that while theElectoral Board erred in failing to grant Girot's motion forsubstitution: "Because Girot claims that Grygiel's dual role at thehearing violated [Girot's] fourteenth amendment due process rights,we further assess the error under the harmless error standard. SeePeople v. Jefferson, 227 Ill. App. 3d 491, 496 (1992). If the error didnot affect the outcome of the hearing, then it is not reversible error.See Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct.824 (1967)." 341 Ill. App. 3d at 904. It is here that we must partcompany with the appellate court's opinion.

Contrary to the appellate court, we believe that a due processviolation of this nature can never be found harmless. We find the ThirdDistrict's reasoning in Huff v. Rock Island County Sheriff's MeritComm'n, 294 Ill. App. 3d 477 (1998), to be particularly cogent:

"A fundamental principle of due process, applicable toadministrative agencies and commissions, is that no personwho has a personal interest in the subject matter of a suit maysit in judgment on that case. In re Heirich, 10 Ill. 2d 357, 140N.E.2d 825 (1956). A personal interest or bias can bepecuniary or any other interest that may have an effect onthe impartiality of the decisionmaker. City of Naperville v.Wehrle, 340 Ill. 579, 173 N.E. 165 (1930). To prove bias,the plaintiff must overcome a presumption of honesty byshowing in the record that the administrative proceedingswere either tainted by dishonesty or contained anunacceptable risk of bias. Caliendo v. Martin, 250 Ill. App.3d 409, 620 N.E.2d 1318 (1993)." (Emphasis added.) Huff,294 Ill. App. 3d at 481.

In this case, Girot has shown, via the record, that he was biasedby the due process violation of an electoral board determination inwhich one of the decisionmakers ultimately adjudicated contestedissues of fact regarding her own credibility. We find that such aprocess flagrantly violates due process notions of fairness andimpartiality. Put simply, there is an inevitable bias when a fact finderis evaluating her own credibility. As the United States Supreme Courtstated in In re Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75S. Ct. 623, 625 (1955): "[O]ur system of law has always endeavoredto prevent even the probability of unfairness. To this end no man canbe a judge in his own case and no man is permitted to try cases wherehe has an interest in the outcome."

Further, we find this case distinguishable from those cases wherean administrative decisionmaker is merely familiar with the facts of amatter. See Hortonville Joint School District No. 1 v. HortonvilleEducation Ass'n, 426 U.S. 482, 493, 49 L. Ed. 2d 1, 9, 96 S. Ct.2308, 2314 (1976) (mere familiarity with the facts of a case gained byan agency in the performance of its statutory role does not disqualifya decisionmaker). Here, Grygiel cast the deciding vote to strikeGirot's name from the ballot, and the Electoral Board adoptedfindings of fact and conclusions of law regarding her own credibility.Thus, where a fair hearing before an administrative agency mustinclude, inter alia, impartial rulings on the evidence (Abrahamson v.Illinois Department of Professional Regulation, 153 Ill. 2d 76, 95(1992)), and Girot has shown that he was prejudiced because theproceeding "contained an unacceptable risk of bias" (Huff, 294 Ill.App. 3d at 481), we find the appellate court erred in holding this dueprocess violation to be harmless.

Contrary to the appellate court's belief, Jefferson and Chapmando not require a harmless error analysis to be applied in every casewhere a fourteenth amendment right to due process is violated.Jefferson, 227 Ill. App. 3d at 496, merely states that when a certaintype of federal due process violation has occurred, e.g., the giving ofan improper instruction, the reviewing court must assess the errorunder the harmless error standard enunciated in Chapman. Indeed,Chapman does hold: "[T]here may be some constitutional errorswhich in the setting of a particular case are so unimportant andinsignificant that they may, consistent with the Federal Constitution,be deemed harmless ***." (Emphasis added.) Chapman, 386 U.S. at22, 17 L. Ed. 2d at 709, 87 S. Ct. at 827. However, Chapmanendorses a procedure which "emphasizes an intention not to treat asharmless those constitutional errors that 'affect substantial rights' ofa party." Chapman, 386 U.S. at 23, 17 L. Ed. 2d at 710, 87 S. Ct. at828. Finally, Chapman makes clear "that there are some constitutionalrights so basic to a fair trial that their infraction can never be treatedas harmless error," and cites, as an example, Tumey v. Ohio, 273 U.S.510, 71 L. Ed. 749, 47 S. Ct. 437 (1927), which involved the lack ofimpartiality of a judge. Chapman, 386 U.S. at 23 & n.8, 17 L. Ed. 2dat 710 & n.8, 87 S. Ct. at 827-28 & n.8; see also Arizona v.Fulminante, 499 U.S. 279, 309, 113 L. Ed. 2d 302, 331, 111 S. Ct.1246, 1265 (1991) (the bias of the judge is a "structural defect[ ] inthe constitution of the trial mechanism, which def[ies] analysis by'harmless-error' standards").

As a final matter, Keith and the Board argue that becauseBraidwood's February 25, 2003, primary and April 1, 2003, mayoralelection have come and gone, this court should declare Girot's appealto be moot. However, the questions that we have addressed hereclearly fall within the public interest exception to the mootnessdoctrine. The criteria for the application of the public interestexception are: (1) the public nature of the question; (2) the desirabilityof an authoritative determination for the purpose of guiding publicofficers; and (3) the likelihood that the question will recur. Bonagurov. County Officers Electoral Board, 158 Ill. 2d 391, 395 (1994). It istrue that Braidwood's mayoral election is long since over and Girot,as appellant, can receive no actual relief, i.e., a timely hearing beforean unbiased decisionmaker. Nevertheless, we feel that each of thecriteria for the application of the exception has been met, and that itis of substantial public interest to establish that a clear due processviolation, not susceptible to harmless-error analysis, occurs where amember of an election board acts as both a witness and an adjudicator.

Given this holding, we need not address whether Girot's filingscontained Code violations, including whether a paper clip constitutes"fastening [the documents] together at one edge in a secure andsuitable manner," under sections 7-10 and 10-4. A determination ofthe legitimacy of Keith's objections would serve no purpose under thecircumstances presented here. As the United States Supreme Courtstated so concisely some 77 years ago: "No matter what the evidencewas against [defendant], he had the right to have an impartial judge."Tumey, 273 U.S. at 535, 71 L. Ed. at 759, 47 S. Ct. at 445. Thus, insum, because Girot seasonably raised an objection to Grygiel'sparticipation on the Electoral Board, he was entitled to halt thehearing and request that the chief judge appoint a substitute forGrygiel, where she presented an "unacceptable risk of bias." Huff, 294Ill. App. 3d at 481; see also Tumey, 273 U.S. at 535, 71 L. Ed. at 759,47 S. Ct. at 445; 10 ILCS 5/10-9(6)(d) (West 2002). As thisprocedure was not followed, a due process violation occurred whichrequires reversal of the Electoral Board's decision.

Therefore, and for the foregoing reasons, the judgments of thecircuit and appellate courts affirming the Board's decision arereversed.

Reversed.

JUSTICE KILBRIDE, dissenting:

The majority asserts that a violation of the due process right toa hearing before an unbiased decisionmaker can never be deemedharmless error. Slip op. at 5. I disagree because the majority shouldnot have addressed the constitutional issue and, further, because themajority's pronouncements on the questions addressed are, in myview, erroneous. Therefore, I respectfully dissent.

First, it is a well-established rule that this court will not addressa constitutional issue when the case can be decided on other grounds.Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 396(1994). This appeal clearly could have been, and should have been,decided on other grounds. Furthermore, the majority asserts, withoutanalysis, that each of the criteria for application of the public interestexception to the mootness doctrine has been met. Slip op. at 7-8. I seenothing in the record to justify the conclusion that any of the criteriahave been met. Accordingly, I would dismiss the appeal as moot.

Second, the issue in this case concerns whether Girot failed tocomply, as a matter of law, with the secure-binding requirement of theElection Code (10 ILCS 5/10-4 (West 2002)). Where, as here, theissue is a question of law concerning only compliance with theElection Code, due process is satisfied. See, e.g., Ayers v. Martin, 223Ill. App. 3d 397, 400 (1991) (holding that where "the issues arebasically questions of law and the trial court has reviewed them denovo, due process is provided"). Consequently, even if this case meetsthe public interest exception to the mootness doctrine, the majorityshould uphold the Electoral Board's decision on the basis that Gerotfailed to comply with the Election Code.

Third, the alleged bias in this case did not violate Girot's dueprocess rights. The alleged bias of Grygiel is that, in her capacity as afact finder, she was required to assess the credibility of Girot, whotestified contrary to her own testimony. According to the majority,because Grygiel testified regarding the filing of the nominatingpetitions in question, she was required to assess her own credibilityand Girot's credibility. If the case turned on the credibility ofwitnesses, a risk of bias could be present that may violate Girot's dueprocess rights. This case, however, was not decided adversely to Girotbecause of conflicting testimony. Instead, the Electoral Board'sdecision was based on its determination that Girot failed to comply,as a matter of law, with the secure-binding requirement of the ElectionCode.

In its recitation of the facts, the majority notes that Girotadmitted that the nominating petitions were secured only by a paperclip when he tendered them to Grygiel. He further conceded, on cross-examination, that no staple marks appeared on the documents and thatGrygiel could have stapled something else. Grygiel denied stapling thedocuments, but admitted that she was not certain whether they wereattached by a paper clip when delivered to her, or whether she affixedthe paper clip. Thus, there was no material difference in the testimonyof the witnesses on this dispositive point. Both agreed that thedocuments were attached by paper clip and not stapled or otherwisesecured in a suitable manner.

Accordingly, the Electoral Board was not required to assesswitness credibility in determining that attaching documents by paperclip was not compliant with the Election Code requirement that thedocuments be fastened together in a secure and suitable manner. TheElectoral Board expressly found that "affixing the petition sheets andStatement of Candidacy by a paper clip does not comply with themandate of being 'bound' as required by Section 10-4." Therefore, Iwould hold that Grygiel's dual capacity as witness and fact finder didnot affect the outcome of the hearing and, under these circumstances,did not violate Girot's due process rights. Even if due process wasimplicated, I would hold that any violation in this case was "sounimportant and insignificant that [it] may, consistent with the FederalConstitution, be deemed harmless." Chapman v. California, 386 U.S.18, 22, 17 L. Ed. 2d 705, 709, 87 S. Ct. 824, 827 (1967).

Moreover, the majority's reliance on Huff v. Rock Island CountySheriff's Merit Comm'n, 294 Ill. App. 3d 477 (1998), is misplaced.That case correctly held that, "[t]o prove bias, the plaintiff mustovercome a presumption of honesty by showing in the record that theadministrative proceedings were either tainted by dishonesty orcontained an unacceptable risk of bias." Huff, 294 Ill. App. 3d at 481.The Huff court determined, however, that no taint or risk wasdemonstrated, despite the fact that one of the commissioners hadserved as the sheriff's political campaign chairman and that anothercommissioner may have made a disparaging remark about the plaintiffat an earlier disciplinary hearing.

In the case before us, the only possible risk of bias demonstratedby the record is a credibility assessment by Grygiel. The majorityasserts that she adjudicated contested issues of fact regarding her owncredibility. Slip op. at 6. As noted earlier, there was no contested issueof fact regarding the means used to secure the petitions. The ElectoralBoard was simply not required to assess credibility in determiningwhether using a paper clip satisfied Election Code requirements.

Furthermore, "[n]ot all allegations of bias *** rise to the level ofa due process violation" (Ryan v. Landek, 159 Ill. App. 3d 10, 12(1987)) and simply being a witness to this transaction as a result of astatutory duty is insufficient to establish bias. I am aware of noauthority requiring a disqualification of an electoral board memberwhenever a party alleges bias. In fact, " '[t]he case law, both federaland state, generally rejects the idea that the combination [of] judging[and] investigating functions is a denial of due process ... .' " Withrowv. Larkin, 421 U.S. 35, 52, 43 L. Ed. 2d 712, 726, 95 S. Ct. 1456,1467 (1975), quoting 2 K. Davis, Administrative Law Treatise