Guerrero v. Municipal Officers Electoral Board of the Village of Franklin Park

2017 IL App (1st) 170486SECOND DIVISION
May 16, 2017
No. 1-17-0486
CYNTHIA GUERRERO, CHRISTOPHER LITWIN )
MICHAEL LaCASSA, DIEGO DiMARCO and ) Appeal from the Circuit
FRANK HOUSWERTH, ) Court of Cook County
) No.2017 COEL 29
Petitioners-Appellees, ) consolidated with
) No. 2017 COEL 30
v. ) No. 2017 COEL 31
) No. 2017 COEL 32
MUNICIPAL OFFICERS ELECTORAL BOARD ) No. 2017 COEL 33
OF THE VILLAGE OF FRANKLIN PARK, et al., )
and ROBERT J. GODLEWSKI, Objector, ) Honorable
) Laguina Clay-Herron,
Respondents-Appellants. ) Judge Presiding.
JUSTICE MASON delivered the judgment of the court, with opinion.
Justices Neville and Pierce concurred in the judgment and opinion.
OPINION
¶1 The Municipal Officer Electoral Board of Franklin Park (Board), its members and
objector Robert J. Godlewski (collectively, respondents) appeal from an order of the circuit
court of Cook County reversing the Board's final decision, which determined that petitioners,
candidates for various offices in the Village of Franklin Park, were ineligible to appear on the
ballot for the April 4, 2017 municipal election. The circuit court ruled that certain defects
common to petitioners' respective statements of economic interests did not invalidate their
candidacies and directed that petitioners' names appear on the ballot. We affirm.
¶2 Each of the petitioners filed statements of candidacy with the Village clerk as part of the
newly formed Citizens for Change Party seeking to be placed on the ballot for municipal
elections to be held in Franklin Park on April 4, 2017. As a slate, petitioners sought election
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to the following positions: Village President (Cynthia Guerrero); Village Clerk (Michael
LaCassa); and Village Trustee (Christopher Litwin, Diego DiMarco and Frank Houswerth).
The statement of candidacy filed by each petitioner listed his or her home address.
¶3 The petitioners also filed with the Cook County Clerk a statement of economic interests
listing "DNA" (i.e., "does not apply") in answer to every question on the form seeking
disclosure of relevant economic interests. There is a space at the top of the form under the
candidate's name to fill in the office the candidate is seeking. Each petitioner wrote the title
of the office, i.e., "Village President'" "Village Clerk," etc., but did not list Franklin Park as
the municipality for which the disclosures were made. Although verifications were signed by
petitioners, they were all undated. Petitioners' addresses were not listed on the forms, nor
does there appear to be any place on the form that calls for an address, although the Illinois
Government Ethics Act (Ethics Act) provides for an address. See 5 ILCS 420/4A-104 (West
2016). The forms were all file-stamped as received in the Office of the County Clerk on
December 8, 2016.
¶4 On December 27, 2016, respondent Godlewski filed objections to each petitioner's
nominating papers. In his objections, Godlewski claimed that petitioners filed "deficient
receipts" relating to their statements of economic interests. But given that petitioners filed the
entirety of their economic statements as their "receipts," the substance of Godlewski's
objections actually related to certain information he claimed was lacking in the statements
themselves. In particular, Godlewski claimed petitioners' statements were deficient in that
petitioners failed to (1) identify the municipality in which they sought elective office, (2) list
their respective addresses and (3) date the verification. Godlewski contended that each of
these defects invalidated petitioners' nominating papers.
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¶5 The Board convened and held hearings on Godlewski's objections to each nominating
petition that spanned several days in January 2017. The hearings on Godlewski's objections
were consolidated with the hearing on motions to dismiss filed by each petitioner. In
substantially identical decisions entered on January 25, 2017, the Board, with one member
dissenting, sustained Godlewski's objections and denied petitioners' motions to dismiss. The
Board directed that each petitioner's name not appear on the ballot for the upcoming election.
¶6 Specifically, the Board noted that the parties agreed that each statement of economic
interests failed to list the unit of government for which the particular office was sought, the
candidate's address or a date next to the candidate's verification. The parties' disagreement
focused on "the legal effect of the foregoing admitted facts." The Board conceded that each
candidate's address and the unit of government for which office was sought were included in
the nominating petitions and statements of candidacy. The Board further observed that
neither objector nor petitioners had offered any evidence as to whether the omissions in the
statement of economic interests were intentional or inadvertent.
¶7 On the merits, the Board noted that section 10-5 of the Illinois Election Code invalidates
nomination papers if the candidate "fails to file a statement of economic interest as required
by the Illinois Governmental Ethics Act in relation to his candidacy." 10 ILCS 5/10-5 (West
2016). While an electoral board generally does not have statutory jurisdiction to inquire into
the truth of disclosures made by the candidate, it may nevertheless determine whether the
statement itself was duly filed in relation to the candidacy. Given that the purpose of a
statement of economic interests is to promote full disclosure of any actual or potential
conflicts a candidate may have so that the electorate may be better informed, the Board
concluded that by merely listing the title of the office sought without indicating the identity
of the municipality, each petitioner had failed to satisfy the filing requirement of section 10-
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5: "By merely listing [the title of the office] with no further information to supplement the
disclosure, [petitioners] effectively insulated [themselves] from (i) any charges of perjury
related to the answers provided … and (ii) public scrutiny about business dealings [they] may
or may not have with the Village of Franklin Park." The Board reasoned:
"[I]f a hypothetical 'bad guy' wanted to avoid answering questions about his
connections to his municipality, he would have done exactly what Candidate did here.
[citation om.]. By merely stating 'Village President' ['Village Clerk' or 'Village
Trustee'], the Candidate has not made a disclosure relative to any office of a unit of
local government. Candidate could answer honestly every question about some vague
office of 'Village President' ['Village Clerk' or 'Village Trustee'] which could arguably
relate to the Village of Skokie, the Village of LaGrange, or the Village of Evergreen
Park, but technically having avoided providing any answers about his dealings with
the Village of Franklin Park. In addition, this hypothetical 'bad guy' is insulated from
public scrutiny from his constituents or criticism by the media that his answers were
incomplete or less than forthcoming. [citation om.] In this case, Candidate could
argue that he answered fully all the questions posed on the [Statement of Economic
Interest] but his answers had nothing to do with the office of Village President,
[Village Clerk or Village Trustee] of the Village of Franklin Park. If deliberate, the
Cook County State's Attorney could not prosecute the Candidate for perjury, nor
could the Chicago Tribune criticize the Candidate for being untruthful."
¶8 The Board further found that the lack of a date on the verification was also problematic
because, without a date, "it cannot be determined what year the disclosure relates to." The
Board noted that the Ethics Act specifically requires that a statement of economic interest
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"shall be verified, dated and signed by the person making the statement." 5 ILCS 420/4A-104
(West 2016). Although each of petitioners' statements contained a date stamp from the Cook
County Clerk, the Board concluded that this was insufficient to identify the year to which the
disclosures related. The Board did not consider or find that petitioners' failure to list an
address on their disclosures was a separate basis upon which their disclosures were defective.
¶9 Petitioners each sought review of the Board's decision in the circuit court of Cook
County. The matters were thereafter consolidated. The circuit court reversed the Board's
decision in each case and directed that petitioners' names appear on the ballot. Respondents
appeal to this court.
¶ 10 Electoral boards are considered to be administrative agencies. Jackson v. Board of
Election Commissioners of the City of Chicago, 2012 IL 111928, ¶ 46; Cinkus v. Village of
Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 209 (2008). Under section 10-
10.1 of the Code, a candidate or objector aggrieved by the final decision of an electoral board
may obtain judicial review of the board's decision in the circuit court. 10 ILCS 5/10-10.1
(West 2016).
¶ 11 Although the Code does not specifically adopt the Administrative Review Law, the
standards governing judicial review of a final decision of an election board are substantially
the same as those governing review of other agency decisions. Cinkus, 228 Ill. 2d at 209. In
particular, the standards of review for questions of law and mixed questions of fact and law
are the same as those utilized under the Administrative Review Law. As we recently
reiterated in Cunningham v. Schaeflein:
"Our supreme court has explained that where the historical facts are admitted or
established, the controlling rule of law is undisputed, and the issue is whether the
facts satisfy the statutory standard, the case presents a mixed question of fact and law
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for which the standard of review is 'clearly erroneous.' [citation] An administrative
agency's decision is deemed clearly erroneous 'when the reviewing court is left with
the definite and firm conviction that a mistake has been committed.' (Internal
quotations marks omitted) [citation] Pure questions of law, including questions of
statutory interpretation, are reviewed de novo. [citation] " Cunningham, 2012 IL App
(1st) 120529, ¶ 19.
"Stated another way, a mixed question is one 'in which the historical facts are admitted or
established, the rule of law is undisputed, and the issue is whether the facts satisfy the
statutory standard, or *** whether the rule of law as applied to the established facts is or is
not violated.' " AFM Messenger v. Ill. Dept of Employment Security, 198 Ill. 2d 380, 391
(2000) quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19 (1982). On appeal from a
decision of the circuit court affirming or reversing an electoral board's decision, we review
the decision of the board, not the circuit court. Jackson, 2012 IL 111928, ¶ 46; Cinkus, 228
Ill. 2d at 212.
¶ 12 Although it is arguable that de novo review applies (Goodman v. Ward, 241 Ill. 2d 398,
406 (2011) ("where the historical facts are admitted or established, but there is a dispute as to
whether the governing legal provisions were interpreted correctly by the administrative body,
the case presents a purely legal question for which our review is de novo")), we believe the
dispute here implicates the clearly erroneous standard. The facts are undisputed: petitioners'
statements of economic interests listed only the title of the office they seek and not the
municipality to which their respective candidacies relate and the statements were undated.
The parties' dispute focuses on the legal effect of these facts: respondents maintain that they
require removal from the ballot and petitioners disagree. That said, the result would be the
same under either standard.
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¶ 13 Section 10-10 of the Election Code provides: “The electoral board shall take up the
question as to whether or not the certificate of nomination or nomination papers or petitions
are in proper form, and whether or not they were filed within the time and under the
conditions required by law, *** and in general shall decide whether or not the certificate of
nomination or nominating papers or petitions on file are valid or whether the objections
thereto should be sustained ***.” 10 ILCS 5/10-10 (West 2016). This provision establishes
the basic principle that an electoral board’s authority is strictly limited to determining
whether a candidate’s nomination papers are valid or invalid. Kozel v. State Board of
Elections, 126 Ill. 2d 58, 68 (1988); see also Wiseman v. Elward, 5 Ill. App. 3d 249, 257
(1972). Because an electoral board can only determine the validity of nomination papers, it
cannot impose any other sanction for an Election Code violation.
¶ 14 This case does not involve any defect in petitioners' nominating papers, but in their
statements of economic interests. Respondents argue that the Board was entitled to examine
the form of petitioners' statements of economic interests and since they did not strictly
comply with the Ethics Act, the Board acted within its authority in determining that
petitioners' candidacies were invalid. For their part, petitioners contend the Board
overstepped its statutory authority in examining the contents of their statements of economic
interest. Rather, the Board, having determined that the statements were, in fact, filed should
have overruled Godlewski's objections and allowed petitioners' names to remain on the
ballot.
¶ 15 As a threshold matter, petitioners contend that respondents have forfeited review of their
claims because the objection filed by Godlewski focused on petitioners' deficient receipts
and not any defects in the statements themselves. But the substance of Godlewski's
objections alerted petitioners to the nature of the issues he raised and it is apparent from the
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record that the entirety of petitioners' respective statements was considered to be the "receipt"
reflecting their filing. Therefore, we will review the merits of the Board's contentions on
appeal. See Cambridge Engineering v. Mercury Partners, 378 Ill. App. 3d 437, 453 (2007)
(waiver is an admonition to the parties, and not a limitation on the court's jurisdiction).
¶ 16 Our supreme court has held that a candidacy may not be challenged based on a claim that
the substance of required economic disclosures are false or fraudulent. Welch v. Johnson, 147
Ill. 2d 40 (1992). The issue as described in Welch was "whether removal from the ballot of a
candidate for elective office is a permissible sanction for the candidate's filing, in relation to
his candidacy, of a statement of economic interests which is not true, correct and complete
due to inadvertence on the candidate's part." Id. at 43. Although not set out in the supreme
court's opinion, the appellate court's opinion reveals that the candidate's statement failed to
disclose employment with another unit of government and the receipt of an honorarium in
excess of $500, omissions that the candidate later corrected in amended filings. Welch v.
Johnson, 214 Ill. App. 3d 478, 481 (1991).
¶ 17 The challengers contended that language in section 10-5 of the Election Code—
"nomination papers filed [hereunder] are not valid if the candidate named therein fails to file
a statement of economic interests as required by the [Ethics Act]" (10 ILCS 5/10-5 (West
2016) (emphasis added))—meant that a disclosure statement that was not true, correct and
complete, whether inadvertently or otherwise, could invalidate a candidate's nomination
papers. The supreme court disagreed. The court found that because the Ethics Act contained
its own sanctions for failing to file a statement (ineligibility for or forfeiture of office) or
willfully filing a false or incomplete statement (criminal penalties) (5 ILCS 420/4A-107
(West 2016)), and the only sanction under the Election Code related to the complete failure
to file a statement (invalidating nominating papers) (10 ILCS 5/7-12(8) (West 2016)), it
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could not infer that invalidating nominating papers was within an election board's authority
when the challenge focused not on the failure to file, but on the completeness or accuracy of
the candidate's filed disclosures. "A plain reading of the [Ethics Act and the Election Code]
convinces us that removal from the ballot is not a permissible sanction for the filing of a
statement of economic interests which is not true, correct and complete when filed with the
appropriate officer merely due to inadvertence on the part of the person filing the statement."
Welch, 147 Ill. 2d at 51; see also, Crudup v. Sims, 292 Ill. App. 3d 1075, 1079 (1997)
(refusing to remove candidate from ballot even where candidate willfully filed false
statement of economic interests because that sanction not contemplated for violations of the
Ethics Act).
¶ 18 But the issue here is not the substance of petitioners' disclosures per se; rather, the
question is whether petitioners' nominating papers are invalid because their disclosure
statements failed to (i) list the unit of government to which their candidacy relates or (ii) date
their verifications. And while the Board hypothesized that a "bad guy" could use such
omissions to avoid consequences under the Ethics Act, the record contains no evidence
suggesting one way or the other whether these omissions were intentional or inadvertent.
¶ 19 The Board's reasoning in this case followed closely and relied heavily on our decision in
Cortez v. Municipal Officers Electoral Board for the City of Calumet City, 2013 IL App (1st)
130442. As relevant here, a candidate for office in Calumet City, Larry Caballero, filed a
statement of economic interests required of candidates for statewide office instead of the
form used by candidates for local office. We noted that while we could not determine
whether use of the wrong form was intentional or inadvertent, Caballero's answers to
questions regarding economic interests related to the State of Illinois avoided answering
questions regarding his economic interests relating to Calumet City.
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¶ 20 For example, the statewide form asked for information regarding the candidate's
relationship with "any entity doing business in the State of Illinois," while the local candidate
form sought information regarding the candidate's interest in "any entity doing business with
a unit of local government in relation to which the person is required to file." Cortez, 2013 IL
App (1st) 130442, ¶ 29. Cortez found that a candidate's use of the statewide form allowed the
candidate to avoid (i) listing any of out-of-state businesses that he owns that do business with
the local government or (ii) identifying which listed businesses actually do business with the
local government. Id. Finding that several of the questions on the statewide form differed
significantly from those on the local form, the court noted the possibility of circumvention of
Ethics Act requirements:
"[W]e observe that, if a hypothetical 'bad guy' wanted to avoid answering
questions about his connections to his municipality, he would have done exactly
what Caballero did here. Filling out the wrong form completely insulates a
candidate from any charges of perjury. He could answer honestly every question
about the State of Illinois and, thus, avoid having to provide any answers—
truthful or otherwise—about his dealings with his own municipality." Cortez,
2013 IL App (1st) 130442, ¶ 34.
¶ 21 The observations in Cortez regarding a candidate's ability to avoid revealing relevant
financial information by using the wrong disclosure form do not neatly translate to the facts
before us. Cortez stands for the proposition that when a candidate for public office files the
wrong disclosure form that does not, in fact, disclose the candidate's economic interests in
the unit of government related to the candidacy, the Election Code's filing requirement has
not been met. Here, each of the petitioners did file the correct form, but they did not identify
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the unit of government to which the disclosures related. Unlike Cortez, we do not believe
this omission enabled petitioners to honor the letter of the law while violating its spirit.
¶ 22 Petitioners all revealed that they had no relevant financial connections to "the unit of
local government in relation to which" they were required to file. Petitioners' nominating
papers revealed that they were all residents of Franklin Park and, as noted, petitioners filed
the entirety of their statements with the Village so that any interested resident could easily
locate both the nominating papers and the statements. Although the Board opined that the
failure to specify the unit of local government on their statements of economic interest could
conceivably allow petitioners to contend that their disclosures related, not to Franklin Park,
but to some other municipality, neither the Board nor respondents explain how this is so.
Petitioners are not residents of any other municipality nor, so far as the record reveals, are
they running for public office anywhere other than Franklin Park. By the same token, given
the filing of petitioner's nominating papers, because Franklin Park is the only municipality as
to which petitioners could be required to file statements of economic interest, one could
reasonably conclude that their disclosures related only to their candidacy for public office in
their home town. If, for example, one of the petitioners, contrary to the "DNA" on the form,
owned a business that had a contract with Franklin Park, we do not believe either a perjury
prosecution or public outcry would be deterred by the fact that "Franklin Park" does not
appear on the form since the form and petitioner's nominating papers could easily be
connected. We simply do not perceive here the potential evils identified in Cortez, nor do we
believe, like Cortez, petitioners' disclosures can be characterized as no disclosures at all.
¶ 23 The circumstances here are analogous to those cases that have found incomplete
descriptions or omissions regarding the office for which the financial disclosure is made to be
an insufficient reason for invalidating a candidate's nominating papers. See, e.g., Cardona v.
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Board of Election Commissioners of the City of Chicago, 346 Ill. App. 3d 342, 346 (2004)
(receipt evidencing filing of candidate's statement of economic interests listed the office
sought as "candidate;" court found that any inadequacy in receipt could not result in ballot
removal); Requena v. Cook County Officers Electoral Board, 295 Ill. App. 3d 728, 734
(1998) (candidate's listing of "Circuit Court of Cook County" as the position she was seeking
in her statement of economic interests was incomplete as it did not indicate she was running
for judge or the vacancy she sought, but did not warrant invalidating her nominating papers
in light of Welch and Crudup); Bryant v. Cook County Electoral Board, 195 Ill. App. 3d 556,
559 (1990) (refusing to invalidate candidate's nominating papers because the words used to
identify the office sought in the statement of economic interests, "15th Representative
District," adequately informed the public of the office sought). We find that nothing in
petitioners' failure to list "Franklin Park" in addition to the respective office sought is fatal to
their candidacies.
¶ 24 Similarly, we find no reason to invalidate petitioners' nominating papers because the
verifications on their disclosure forms were not dated. Again, because petitioners' statements
were all date-stamped by the County Clerk's office and were filed in their entirety with the
clerk of Franklin Park, we do not see how the absence of a date next to petitioners'
verifications would allow them to maintain that the disclosures related to some year other
than the year preceding the date the statements were filed. And since petitioners represented
in their nominating papers that they had filed or would file their statements of economic
interest required by the Ethics Act, it is an elementary matter to connect the dots between the
two filings. In other words, we do not believe that the omission of a date from the
verification would allow petitioners to escape the consequences under the Ethics Act of filing
a false statement.
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¶ 25 We do not encourage candidates to take short cuts in complying with the mandatory
requirements of the Election Code and the Ethics Act. But substantial compliance with
election requirements will save a candidate's nominating papers if the defects complained of
are minor. See Goodman v. Ward, 241 Ill. 2d 398, 409 (2011) ("If a candidate's statement of
candidacy does not substantially comply with the statute, the candidate is not entitled to have
his or her name appear on the primary ballot."); Atkinson v. Roddy, 2012 IL App (2d)
130139, ¶ 22 (recognizing substantial compliance doctrine applies when invalidating charge
concerns a technical violation). We do not adopt petitioners' blanket position that because the
Election Code does not require strict compliance with the Ethics Act, deficiencies in
statements of economic interests will never constitute grounds for invalidating a candidate's
nominating papers. Cortez holds otherwise. But we do believe the complained of defects
involved here are minor and that refusing to invalidate petitioners' nominating papers on the
grounds urged by respondents is wholly consistent with both the Election Code and the
Ethics Act.
¶ 26 As in any election dispute, we are mindful of that fact that "ballot [access] is a substantial
right and not to be lightly denied." Siegel v. Lake County Officers Electoral Board, 385 Ill.
App. 3d 452, 460-61(2008). We must "tread cautiously when construing statutory language
which restrict[s] the people's right to endorse and nominate the candidate of their choice."
Lucas v. Lakin, 175 Ill. 2d 166, 176 (1997). Under the circumstances presented, any claimed
defects in petitioners' statements of economic interest are, in our view, outweighed by the
public interest in ballot access and we, therefore, affirm the judgment of the circuit court of
Cook County.
¶ 27 Affirmed.
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