Akin v. Smith ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Akin v. Smith, 2013 IL App (1st) 130441
Appellate Court IMANI AKIN, Petitioner-Appellee, v. ANNIE SMITH, Respondent-
Caption Appellant (Michelle Markiewicz-Qualkinbush, Nyota T. Figgs,
Magdalena J.Wosczynski and Thaddeus Jones, Individually and as
Members of the Municipal Officers Electoral Board for the City of
Calumet City; the Municipal Officers Electoral Board for the City of
Calumet City; Nyota T. Figgs, as Calumet City Clerk; and David Orr, as
the Cook County Clerk, Respondents).–VICTOR F. GREEN, SR.,
Petitioner-Appellee, v. STEVON GRANT and DEBORAH HAYNES-
SHEGOG, Respondents-Appellants (Michelle Markiewicz-Qualkinbush,
Nyota T. Figgs, Magdalena J. Wosczynski and Thaddeus Jones,
Individually and as Members of the Municipal Officers Electoral Board
for the City of Calumet City; the Municipal Officers Electoral Board for
the City of Calumet City; Nyota T. Figgs, as Calumet City Clerk; and
David Orr, as the Cook County Clerk, Respondents).–HOPE E. ALLEN,
Petitioner-Appellee, v. RANDY BARRON, Respondent-Appellant
(Michelle Markiewicz-Qualkinbush, Nyota T. Figgs, Magdalena J.
Wosczynski and Thaddeus Jones, Individually and as Members of the
Municipal Officers Electoral Board for the City of Calumet City; the
Municipal Officers Electoral Board for the City of Calumet City; Nyota
T. Figgs, as Calumet City Clerk; and David Orr, as the Cook County
Clerk, Respondents).
District & No. First District, Fourth Division
Docket No. 1-13-0441
Filed April 25, 2013
Held The statements of candidacy of petitioners who were seeking municipal
(Note: This syllabus offices in a Democratic primary election substantially complied with
constitutes no part of section 7-10 of the Election Code, notwithstanding the fact that the
the opinion of the court notarial jurat lacked the language that the candidate was “personally
but has been prepared known” by the notary public, since the minor deviation did not render
by the Reporter of each candidate’s oath invalid; therefore, the trial court’s reversal of the
Decisions for the Electoral Board’s decision striking petitioners’ names from the ballot was
convenience of the affirmed.
reader.)
Decision Under Appeal from the Circuit Court of Cook County, Nos. 2013-COEL-17,
Review 2013-COEL-18, 2013-COEL-19; the Hon. Alfred J. Paul, Judge,
presiding.
Judgment Circuit court affirmed; Municipal Officers Electoral Board for the City
of Calumet City reversed.
Counsel on James P. Nally, of James P. Nally, P.C., of Chicago, for appellants.
Appeal
Adam W. Lasker, of Ancel, Glink, Diamond, Bush, DiCianni &
Krafthefer, P.C., of Chicago, for appellees.
Panel JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
Justices Quinn and Fitzgerald Smith concurred in the judgment and
opinion.
OPINION
¶1 This expedited appeal involved the validity of statements of candidacy of petitioners
Imani Akin, Victor F. Green, Sr., and Hope E. Allen (Candidates). Candidates sought to run
in the Democratic primary held on February 26, 2013, for certain offices of the City of
Calumet City. Akin and Allen were candidates for the office of alderman. Green was a
candidate for the office of mayor. Respondents-appellants Annie Smith, Stevon Grant,
Deborah Haynes-Shegog, and Randy Barron (Objectors) each filed an objection petition,1
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Annie Smith objected to Imani Akin’s statement of candidacy; Stevon Grant and Deborah
Haynes-Shegog objected to Victor F. Green, Sr.’s statement of candidacy; and Randy Barron
objected to Hope E. Allen’s statement of candidacy.
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contending that the statement of candidacy was deficient because the notarial jurat did not
contain the relevant language “Subscribed and sworn to (or affirmed) before me by
[Candidate], who is to me personally known.” (Emphasis added.)
¶2 The Municipal Officers Electoral Board for the City of Calumet City (the Electoral
Board) sustained the objections finding that each Candidate’s statement of candidacy did not
comply with section 7-10 of the Election Code (10 ILCS 5/7-10 (West 2010)) because the
notarial jurat did not include language stating that the candidate who executed the statement
of candidacy in the presence of the certifying officer was “personally known” to the
certifying officer. The Electoral Board concluded that each Candidate’s nomination papers
were deficient as a matter of law and invalid in their entirety. The Electoral Board therefore
ordered that Candidates’ names would not appear on the ballot for the February 26, 2013
consolidated primary election. Each Candidate petitioned the circuit court of Cook County,
and the petitions were consolidated. On February 8, 2013, the circuit court reversed the
Electoral Board’s decision. On February 15, 2013, Objectors filed their notice of appeal of
the circuit court’s ruling. This court granted Objector’s motion for expedited consideration
of this case. On February 28, 2013, we entered an order affirming the judgment of the circuit
court of Cook County that reversed the Electoral Board’s decision and stated that our opinion
would follow.
¶3 The issue in this case is whether Candidates’ statements of candidacy complied with
section 7-10 of the Election Code (10 ILCS 5/7-10 (West 2010)) where the notarial jurats did
not include the phrase: “who is to me personally known.” Our review is de novo. Cinkus v.
Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 211 (2008).
“[A]lthough this case comes to us on appeal from the circuit court, we are actually reviewing
the Electoral Board’s decision ***.” Rita v. Mayden, 364 Ill. App. 3d 913, 919 (2006). This
court is not bound by an administrative agency’s interpretation of a statute. King v. Justice
Party, 284 Ill. App. 3d 886, 888 (1996). However, although we review the statute de novo,
the Electoral Board’s interpretation of the Code is entitled to some deference, as it is the
entity charged with interpreting the Election Code. Rita v. Mayden, 364 Ill. App. 3d at 919.
¶4 Section 7-10 of the Election Code states in pertinent part:
“Form of petition for nomination. The name of no candidate *** shall be printed upon
the primary ballot unless a petition for nomination has been filed in his behalf as
provided in this Article in substantially the following form:
We, the undersigned, members of and affiliated with the .... party ***, do hereby
petition that the following named person or persons shall be a candidate *** of the ....
party for the nomination for *** the office *** hereinafter specified, to be voted for at
the primary election to be held on (insert date).
***
I, ...., do hereby certify that I reside at No. .... street, in the .... of ...., county of ...., and
State of ....., that I am 18 years of age or older, that I am a citizen of the United States,
and that the signatures on this sheet were signed in my presence, and are genuine, and
that to the best of my knowledge and belief the persons so signing were at the time of
signing the petitions qualified voters of the .... party, and that their respective residences
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are correctly stated, as above set forth.
***
Subscribed and sworn to before me on (insert date).
***
*** Each petition must include as a part thereof, a statement of candidacy for each
of the candidates ***. This statement *** shall request that the candidate’s name be
placed upon the official ballot, and shall be subscribed and sworn to by such candidate
before some officer authorized to take acknowledgment of deeds in the State and shall
be in substantially the following form:
Statement of Candidacy
***
I, ...., being first duly sworn, say that I reside at .... Street in the city (or village) of ....,
in the county of ...., State of Illinois; that I am a qualified voter therein and am a qualified
primary voter of the .... party; that I am a candidate for nomination (for election in the
case of committeeman and delegates and alternate delegates) to the office of .... to be
voted upon at the primary election to be held on (insert date); that I am legally qualified
(including being the holder of any license that may be an eligibility requirement for the
office I seek the nomination for) to hold such office and that I have filed (or I will file
before the close of the petition filing period) a statement of economic interests as
required by the Illinois Governmental Ethics Act and I hereby request that my name be
printed upon the official primary ballot for nomination for (or election to in the case of
committeemen and delegates and alternate delegates) such office.
Signed ......................
Subscribed and sworn to (or affirmed) before me by ...., who is to me personally
known, on (insert date).
Signed .....................
(Official Character)
(Seal, if officer has one.)” (Emphases added.) 10 ILCS 5/7-10 (West 2010).
As noted, the notarization for the petition sheet merely states: “Subscribed to and sworn to
before me on (insert date),” while the notarization for the statement of candidacy contains
the following form: “Subscribed and sworn to (or affirmed) before me by *** who is to me
personally known, on (insert date).” (Emphasis added).
¶5 Citing Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 100 (1964), the Electoral Board
stated that “[i]n construing statutory language that addresses two distinct matters in the same
section and in which matters are treated differently by the legislature, Illinois courts have
held that the legislature’s intent was that the two matters be addressed in wholly different
ways as stated.” Objectors now argue that the Electoral Board correctly determined that the
statements of candidacy were legally defective and invalid because “[s]ection 7-10 of the
Election Code provides form language for two separate and distinct documents used by
candidates running as independents for municipal office in Illinois: (1) a petition sheet that
individuals use to obtain signatures from voters seeking to nominate a candidate for elective
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office, and (ii) the Statement of Candidacy that candidates use to state their qualifications for
their sought elective office and affirmatively declare their desire to accept the nomination.”
Objectors contend that the difference in the language indicates a legislative intent for
“heightened standards in the certification process for Statements of Candidacy.”
¶6 With respect to the separate notarization forms, our supreme court has explained as
follows:
“The general purpose of section 7-10 and related provisions of the Election Code is
to provide an orderly procedure whereby qualified persons seeking public office may
enter primary elections. The petitions signed by electors and the statement of candidacy
sworn to by the prospective candidate are each intended to serve particular purposes in
this regard. While their sufficiency must be determined with reference to the particular
function each was designed to accomplish, it was not intended that for all purposes they
should be considered separate and apart as if the other did not exist. To the contrary,
section 7-10 provides that nominating petitions shall include a statement of candidacy
‘as a part thereof.’ ” (Emphases added.) Lewis v. Dunne, 63 Ill. 2d 48, 53-54 (1976).
Although the issue in Lewis v. Dunne was not relevant to the issue in the present appeal, we
cite it only to point out that the two subsections of section 7-10 are not necessarily “two
distinct matters” treated differently by the legislature, as Objectors contend.
¶7 We first consider whether section 7-10 of the Election Code is mandatory or directory.
Citing O’Connor v. Cook County Officers Electoral Board, 281 Ill. App. 3d 1108 (1996),
and Madden v. Schumann, 105 Ill. App. 3d 900 (1982), Candidates contend that this court
has acknowledged that section 7-10 of the Election Code contains both mandatory elements
and directory provisions.
¶8 As we have explained:
“Whether a statute is mandatory or directory depends on the legislature’s intent, which
is ascertained by examining the nature and object of the statute and the consequences
which would result from any given construction. [Citation.] On one hand, a statute in the
Election Code may generally be given a mandatory construction if it expressly states that
failure to act in the manner set out in the statute will void the ballot. [Citation.] On the
other, a statute may generally be construed as directory if it simply prescribes the
performance of certain acts in a specific manner, and does not expressly state that
compliance is essential to the validity of the ballot. [Citation.]. That is, [i]n construing
statutory provisions regulating elections the courts generally have tended to hold
directory those requirements as to which the legislature has not clearly indicated a
contrary intention, particularly where such requirements do not contribute substantially
to the integrity of the election process. [Citation.]” (Internal quotation marks omitted.)
Schwallenstecker v. Rull, 2012 IL App (4th) 120754, ¶ 16.
¶9 To the extent that section 7-10 of the Election Code is a mandatory rather than a directory
statute, the Illinois Supreme Court has acknowledged that substantial compliance can satisfy
mandatory statutory requirements governing statements of candidacy. See Goodman v. Ward,
241 Ill. 2d 398, 409-10 (2011) (noting that “[t]he statutory requirements governing
statements of candidacy and oaths are mandatory” and that “[i]f a candidate’s statement of
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candidacy does not substantially comply with the statute, the candidate is not entitled to have
his or her name appear on the primary ballot” (emphasis added)). This court has also applied
the doctrine of substantial compliance to the mandatory provisions of the Election Code. See,
e.g., Cunningham v. Schaeflein, 2012 IL App (1st) 120529, ¶ 23 (“[s]ubstantial compliance
can satisfy a mandatory provision of the Election Code”); see also Samuelson v. Cook County
Officers Electoral Board, 2012 IL App (1st) 120581, ¶ 29 (“Our courts have repeatedly
recognized that substantial, rather than strict, compliance is the proper standard by which to
evaluate deviations from certain mandatory provisions of the Election Code.”); Jakstas v.
Koske, 352 Ill. App. 3d 861, 864 (2004) (“Substantial compliance can satisfy even a
mandatory provision of the Election Code.”); Bergman v. Vachata, 347 Ill. App. 3d 339,
345-46 (2004) (reaffirming prior holding that substantial compliance can satisfy even
mandatory provisions of the Election Code); Brennan v. Kolman, 335 Ill. App. 3d 716, 720,
781 N.E.2d 644, 647 (2002) (“substantial compliance can satisfy even a mandatory provision
of the Code”); King v. Justice Party, 284 Ill. App. 3d 886, 890 (1996) (same); Sakonyi v.
Lindsey, 261 Ill. App. 3d 821, 826 (1994) (same); Panarese v. Hosty, 104 Ill. App. 3d 627
(1982) (same); but see Knobeloch v. Electoral Board, 337 Ill. App. 3d 1137, 1140 (2003)
(“substantial compliance [with a mandatory provision of the Election Code] is no longer
sufficient”).
¶ 10 Citing Bowe v. Chicago Electoral Board, 79 Ill. 2d 469 (1980), Objectors argue that the
Electoral Board correctly determined that the certification requirement of section 7-10 of the
Code is mandatory and, therefore, the doctrine of substantial compliance could not be
invoked in this case. We disagree with the latter contention. As this court has previously
explained: “we do not interpret Bowe as rejecting the doctrine of substantial compliance.
Rather, in Bowe there was no substantial compliance, as a matter of fact. Thus, there was no
compliance.” (Emphases in original and omitted.) Bergman v. Vachata, 347 Ill. App. 3d 339,
346 (2004).
¶ 11 Reading the statute in its entirety, we agree with the observation of the Madden and
O’Connor courts that section 7-10 of the Election Code contains both mandatory elements
and directory provisions. We agree with Candidates that their forms were in “strict”
compliance with the mandatory elements2 and that the alleged deficiencies related to
directory provisions that provided that the statement of candidacy “shall be in substantially
the following form.” (Emphasis added.) However, even assuming arguendo that section 7-10
taken as a whole is a mandatory statute, and applying the doctrine of substantial compliance
consistent with the case law noted above, we conclude that Candidates substantially
complied with section 7-10’s requirements even though the notarial jurat did not contain the
language that the candidate was “personally known” to the certifying officer.
2
It is undisputed that all statements of candidacy included: (a) the name and address of each
candidate; (b) the office each was seeking; (c) a statement that the Candidate was a qualified primary
voter of the Democratic party; (d) a statement of economic interest; and (e) the request to be placed
on the ballot. It was also undisputed that each Candidate “subscribed and swore to his or her
statement of candidacy before an officer authorized to take acknowledgment of deeds in the State
of Illinois.”
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¶ 12 This court has generally excused clerical errors in notarial jurats where the affiant is
otherwise correctly identified. Brennan v. Kolman, 335 Ill. App. 3d 716, 722 (2002); Cintuc,
Inc., v. Kozubowski, 230 Ill. App. 3d 969, 974 (1992). As we have explained: “[S]ubstantial
compliance with the Election Code is acceptable when the invalidating charge concerns a
technical violation.” Madden v. Schumann, 105 Ill. App. 3d at 903. “But substantial
compliance is not operative to release a candidate from compliance with the provisions
intended by the legislature to guarantee a fair and honest election.” Id. at 903-04. We believe
this case falls in the category of the former. There is also authority for the proposition that
the substantial compliance standard applies to all of the provisions of the Election Code. See
Samuelson v. Cook County Officers Electoral Board, 2012 IL App (1st) 120581, ¶¶ 27, 29
(holding that the phrase “in substantially the following form” in section 7-10 “applies to all,
not some, of that section’s requirements” and that “substantial, rather than strict, compliance
is the proper standard by which to evaluate deviations from certain mandatory provisions of
the Election Code”).
¶ 13 As we have previously stated “[w]e are mindful both that the provisions of the Election
Code are designed to protect the integrity of the electoral process and that access to a place
on the ballot is a substantial right not lightly to be denied.” Cunningham v. Schaeflein, 2012
IL App (1st) 120529, ¶ 28. Our decision here comports with important principles enunciated
by the Illinois Supreme Court, which “has instructed we should ‘tread cautiously when
construing statutory language which restricted the people’s right to endorse and nominate the
candidate of their choice.’ ” Id. ¶ 23 (quoting Lucas v. Lakin, 175 Ill. 2d 166, 176 (1997)).
Our supreme court has recognized that limiting a candidate’s right to run for public office
necessarily restricts the voters’ right to place their chosen candidate in office. Tully v. Edgar,
171 Ill. 2d 297, 307 (1996). The Tully court noted its prior opinions where it had “determined
that the right to vote is implicated by legislation that restricts a candidate’s effort to gain
access to the ballot” and “held that the right to vote is implicated by legislation that limits
the people’s right to nominate candidates.” Id.
¶ 14 We further note that our decision comports with the recent case of Cortez v. Municipal
Officers Electoral Board, 2013 IL App (1st) 130442, in which this court addressed the
identical issue as that in the instant case.3 There, as here, the candidates used the shorter
notarization form in section 7-10 instead of the longer form required for the statement of
candidacy containing the phrase “who is to me personally known.” The Cortez court
concluded that the legislature did not intend that the appropriate sanction for a mistake in the
use of the wrong notarization form was to strike a candidate’s name from the ballot.
¶ 15 As the Cortez court explained: “[Section 7-10 of the Election Code] does not
affirmatively state that the sanction for a discrepancy in language is the striking of the entire
candidacy. Second, and most importantly, the statute does state that the ‘Statement of
3
We note that as of the date of filing our opinion, the Cortez opinion was not final and
contained the following notice “THIS OPINION HAS NOT BEEN RELEASED FOR
PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT
TO REVISION OR WITHDRAWAL.”
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Candidacy’ has to be only ‘in substantially the following form.’ ” Id. ¶ 19 (quoting 10 ILCS
5/7-10 (West 2010)). The Cortez court cautioned that it did “not condone the actions of the
[candidates in that case].” Id. ¶ 22. The court further stated that it believed that “people who
desire to be elected to public office should be able to follow the recommended directions of
the elections statute as written and provided.” Id. Nonetheless, the court concluded that “the
remedy of the Board [was] drastic, and ‘absent a clearer statement by the legislature that it
intended that remedy as a sanction’ for an apparently inadvertent omission of language on
a notarization,” the court declined to construe the Election Code as requiring that the
candidates’ names be stricken from the ballot. Id. We agree with the reasoning of the Cortez
court.
¶ 16 Objectors have additionally argued that the legislature treats the certification process for
the petition sheet differently from that for the statement of candidacy because the
certification of the petition sheet merely requires that the document was signed and sworn
to before “an officer authorized to administer oaths in Illinois” whereas the statement of
candidacy must be certified by “someone who is authorized to take acknowledgment of
deeds.” Based on this language, Objectors argued and the Electoral Board agreed, that the
Illinois Conveyances Act (765 ILCS 5/20 (West 2010)) and the Uniform Recognition of
Acknowledgments Act (765 ILCS 30/1 et seq. (West 2010)) expressly applied to Candidates’
statement of candidacy. We disagree. These acts relate to notarization of real property and
are irrelevant. Moreover, the Electoral Board correctly recognized that the phrase describing
the qualifications of the individual who could certify the statement of candidacy as “someone
who is authorized to take acknowledgment of deeds” could be satisfied by an individual who
was a notary public. It is undisputed that each statement of candidacy was subscribed and
sworn to by a notary public.
¶ 17 In sum, the decision of the Electoral Board that Candidates’ statements of candidacy did
not comply with the Election Code because the notarial jurat did not include language stating
that the candidate who executed the statement of candidacy in the presence of the certifying
officer was “personally known” to the certifying officer was incorrect. We conclude that this
minor deviation did not invalidate the underlying oath where the notarial jurat was otherwise
in conformance with the statute (and there are no facts indicating that the individuals who
executed the statements of candidacy were, in fact, not Candidates.) The statements of
candidacy were in substantial compliance with the statute. We therefore affirm the decision
of the circuit court of Cook County reversing the Board’s decision.
¶ 18 Circuit court affirmed; Municipal Officers Electoral Board for the City of Calumet City
reversed.
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