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Wiseman v. Elward

APRIL 25, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. HELEN McGILLICUDDY, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT: This is an appeal from an order of the Circuit Court affirming the decision of the Cook County Electoral Board, which overruled objections to the nominating petition of Raymond K. Berg, candidate for nomination of the Democratic Party for the office of State's Attorney.

The petition for nomination of Raymond K. Berg was filed on December 20, 1971, bearing signatures well in excess of the minimum required by statute. On December 27, 1971, plaintiff filed a timely objection to that petition, alleging the following as grounds for voiding the petition: (1) that the composition of the Electoral Board, the administrative body charged by statute with the duty of hearing objections to nominating petitions, violated the provisions of the Election Code and lacked balanced political representation; 2) that numerous petition sheets contained forgeries and bore false affidavits by circulators; 3) that certain sheets were improperly notarized; and 4) that certain sheets were either circulated or signed as a direct result of political patronage pressures, contrary to the prohibitions of a recent federal court decision. Most of the objections incorporated attached exhibits, which specified petition pages on which particular violations were allegedly present. The objector sought to reserve the right to subsequently add to these specified page numbers by including the phrase, "and as may be supplemented hereafter," after each exhibit's designation. Following the enumerated objections, there was a request for the issuance of subpoenas pursuant to Section 10-10 of the Election Code. *fn1

The Electoral Board issued its call, setting December 31, 1971 as the hearing date for the objections. On December 28, 1971 plaintiff filed an action in Federal Court, seeking the production of certain records by the Cook County Clerk and the Chicago Board of Election Commissioners. A consent order was entered in that proceeding on December 30, 1971, wherein it was agreed that those two offices would produce voter registration cards and the petition of Raymond K. Berg for inspection. The County Clerk and Board of Election Commissioners were to assemble the documents and deliver them to plaintiff no later than January 2, 1972. Plaintiff was to be allowed to inspect and copy the documents through January 4, 1972. This work began promptly and was in progress on December 31st, when the hearing before the Electoral Board commenced. Plaintiff appeared and immediately requested a continuance, citing as grounds the consent order of the Federal Court and the difficulty of the copying task which had been undertaken. After establishing for the record that the objector was not prepared to proceed at that time on any of his objections, the Electoral Board continued the hearing until January 5, 1972. On January 3, 1972, plaintiff appeared before the Chairman of the Electoral Board for the limited purpose of formally requesting the issuance of subpoenas duces tecum for the production of employment records and patronage information concerning the circulators of the Berg petition. The request was denied. On the morning of January 4, 1972, plaintiff again appeared before the Chairman, who was joined by a second member of the Electoral Board, for the limited purpose of obtaining a continuance for the hearing scheduled for January 5th. As support for his motion, plaintiff informed the Electoral Board that the Board of Election Commissioners had been unable to meet the deadline set by the federal consent order. One-third of the requested voter registration cards had been reported missing, and the production of the other cards was proceeding at a pace slower than expected. After hearing further argument and responses, the Electoral Board took the motion under advisement, deferring its decision until the following day. Before adjournment all parties were cautioned to assume the continuance would be denied and to be prepared to proceed on the objections the next day. Plaintiff returned before the Chairman in the afternoon of January 4th to request the issuance of subpoenas to compel the appearance of five Berg petition circulators and subpoenas duces tecum to compel the production of all registration cards which had been reported missing by the Board of Election Commissioners. Both requests were denied.

The full Electoral Board reconvened on January 5, 1972. Plaintiff renewed his motion for a continuance, asking for additional time to assimilate the data which had been produced and to facilitate the production of the 30%-40% of the voter registration cards which the Board of Election Commissioners had been unable to locate. Before ruling on the motion, the Chairman enumerated what he deemed to be 14 specific objections submitted by plaintiff and asked if plaintiff was prepared to proceed on any of them. He received a negative response to each of his 14 inquiries. Thereupon, the motion for a continuance was denied, and, without further comment by counsel, plaintiff's entire objection was denied on the grounds that no evidence had been presented. A written decision followed on January 7, 1972, confirming the Electoral Board's oral decision that the objections were overruled for failure to adduce evidence to sustain them.

After the Electoral Board denied a rehearing, plaintiff filed a petition for judicial review in the Circuit Court pursuant to Section 10-10.1 of the Election Code. *fn2 The Circuit Court, after conducting extensive hearings, issued two opinions. The first, rendered on January 28, 1972, denied plaintiff's request for a de novo hearing and held that the Circuit Court was limited in its review to the record of the proceedings before the Electoral Board. The second opinion, rendered on February 3, 1972, held that the Electoral Board had acted properly in denying plaintiff's motion for a continuance and in overruling plaintiff's objections to the petition. After the Illinois Supreme Court denied jurisdiction under its Rule 302, plaintiff appealed to this court. We granted his motion for expedited review. On March 17, 1972, we entered an order affirming the decision of the Circuit Court and indicated that this opinion would follow:

On appeal, plaintiff makes two primary contentions: first, that the Circuit Court erred in limiting the scope of its review to the record of the Electoral Board proceedings and, second, that the denial of plaintiff's requests for subpoenas and motion for a continuance constituted an abuse of discretion by the Electoral Board, which thereby prevented plaintiff from exercising his statutory right to challenge the nominating petition of the candidate. We shall address ourselves initially to plaintiff's contention that a de novo hearing was obligatory in the Circuit Court.


• 1-3 Prior to 1967 the Illinois Election Code provided that, "the decision of a majority of the electoral board shall be final." *fn3 This was interpreted by the courts to preclude judicial review of Electoral Board decisions, except upon the limited issue of whether a decision was clearly fraudulent. (Coles v. Holzman, 55 Ill. App.2d 93, 204 N.E.2d 162; Hatch v. Holzman, 55 Ill. App.2d 168, 204 N.E.2d 157.) In 1967 the Election Code was amended as follows: *fn4

"A candidate or objector aggrieved by the decision of an electoral board may secure judicial review of such decision in the circuit court of the county in which the hearing of the electoral board was held * * *."

The statute, as amended, did not define the scope of review, and the Administrative Review Act was not made applicable. Plaintiff contends that this was a calculated omission reflecting a legislative intent to grant an unlimited scope of review in the Circuit Court. As support for this position, plaintiff cites the following dicta from Bankers Life & Casualty Co. v. McCarthy, 11 Ill. App.2d 334, 341, 137 N.E.2d 398:

"Where the statute which grants an appeal from an inferior court or administrative agency does not limit the scope or power of the reviewing court upon such appeal, the reviewing court hears it de novo as an original hearing."

We have discovered further support for plaintiff's theory. In City of Rockford v. Compton, 115 Ill. App. 406, it was expressly held that a de novo hearing was contemplated by a statute which allowed an "appeal" to the Circuit Court from an administrative agency decision, where the statute did not expressly limit the Circuit Court's scope of review. However, it is clear from the opinion in City of Rockford that the court's decision was primarily based on the following interpretation of the word "appeal:" (115 Ill. App. at 411).

"The term appeal, in its original, technical and appropriate sense, meant the removal of a suit from an inferior court, after final judgment therein, to a superior court, and placing the case in the latter court to be again tried de novo upon its merits, just as though it had never been tried in the inferior court."

The court held that, absent other statutory language suggesting a contrary intent by the legislature, the Circuit Court was bound by the traditional connotations of the word, "appeal," and should have granted a de novo hearing. Both City of Rockford and Bankers Life are thus distinguishable from the case at bar, wherein the pertinent statute provides for "judicial review" instead of "appeal." The two phrases are not synonymous, "judicial review" connoting a more limited scope of review than a hearing de novo. (South v. Railroad Retirement Board (N.D. Ga. 1942), 43 F. Supp. 911 aff'd, 131 F.2d 748; Warren v. Indiana Telephone Co., 217 Ind. 93, 26 N.E.2d 399.) We believe that the legislature, by choosing the phrase, "judicial review," manifested an intent that review of Electoral Board decisions not exceed the record made before that Board. Two other considerations support this conclusion. First, it is illogical to presume that, by its 1967 amendment, the legislature intended to institute a full de novo hearing, when, previously, no review at all had been provided. The more reasonable conclusion is that it intended simply to provide a remedy against arbitrary or unsupported, albeit non-fraudulent, Electoral Board decisions. This could be accomplished by providing a review procedure limited in scope to the record of the proceedings before the Electoral Board. Second, in construing the language of a statute, we must presume that the legislature did not intend to draw an unconstitutional statute. (City of Springfield v. North Fork Outlet Drainage Dist., 249 Ill. App. 133.) If Section 10-10.1 of the Election Code was construed to require a ...

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