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Lewis v. Dunne

OPINION FILED MARCH 18, 1976.

MELVIN B. LEWIS, PETITIONER,

v.

ROBERT JEROME DUNNE ET AL., RESPONDENTS.



Original petition for writ of prohibition or for writ of quo warrantor.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

On December 29, 1975, the Cook County Officers Electoral Board entered an order sustaining certain objections to the nominating papers of petitioner, Melvin B. Lewis, who sought nomination in the March 16, 1976, primary election as the Democratic candidate for the office of judge of the Appellate Court, First Judicial District, to fill the vacancy created by the retirement of the Honorable Robert E. English. While review of that decision was pending in the circuit court of Cook County (Ill. Rev. Stat. 1973, ch. 46, par. 10-10.1), petitioner was granted leave to file an original action in this court. On January 19, 1976, after hearing oral argument and upon consideration of the papers here on file, we determined the petition should be treated as one for a writ of mandamus. Considering the petition as such, we ordered that a writ of mandamus issue commanding the members of the Cook County Officers Electoral Board to expunge its order sustaining the objections to petitioner's nominating papers; to enter an order denying such objections; and to transmit to the State Board of Elections a certified copy of its ruling in the manner provided by section 10-10 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 10-10). This opinion states the reasons for that order.

The nominating papers filed by petitioner with the State Board of Elections included petitions signed by Democratic Party primary electors requesting that his name appear on the ballot for the office in question, and a statement of candidacy sworn to by petitioner in which he confirmed various matters regarding his qualification for the office. The office for which the nominating papers were filed was described on the electors' petitions as "Judge of the Appellate Court of Illinois, First Judicial District, to fill the vacancy created by the retirement of the Honorable Robert E. English." The statement of candidacy, however, described the office as "Judge of the Appellate Court of Illinois, First Judicial District" without indicating the particular vacancy. The basis for the objections filed by respondent Michael J. Cunningham was that section 7-10 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 7-10) requires that the specific vacancy be designated in the statement of candidacy as well as in the petitions signed by electors, and that petitioner's failure to do so rendered the nominating papers invalid.

The matter was referred by the State Board of Elections to the Cook County Officers Electoral Board, which is designated by section 10-9 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 10-9) as the body to hear and pass upon objections to nominating petitions under these circumstances. By a 2 - 1 decision, the board denied petitioner's motion to dismiss for want of jurisdiction and entered an order sustaining the objections to his nominating papers. Although petitioner's suit in this court is concerned primarily with whether the electoral board was properly constituted, determination of that issue alone would still leave the underlying substantive question of the validity of petitioner's nominating papers to be resolved either in a hearing before a newly constituted electoral board or by a further hearing in the circuit court of Cook County in the pending review of the board's present decision. It is evident neither course could be completed sufficiently in advance of the primary election to allow petitioner a fair opportunity to conduct a campaign, should the substantive issue be decided in his favor. The materials on file in this court adequately present a very narrow and clearly defined question of statutory construction as to which the pertinent facts are not in dispute. Accordingly, in view of the desirability for prompt resolution of this matter, we decided the electoral board's decision on the substantive question should be reviewed here.

Among the various provisions of section 7-10 of the Election Code prescribing the form and content of nominating petitions for public office is the requirement that "[t]he name of no candidate for nomination * * * 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 and qualified primary electors of the _______ party, in the ______ of _______, in the county of _______ and State of Illinois, do hereby petition that the following named person or persons shall be a candidate or candidates of the ________ party for the nomination for * * * the office or offices hereinafter specified, to be voted for at the primary election to be held on the _____ day of ________ A.D. ____

--------------------------------------------------------------------- | Name | Office | Address | |--------------------|------------------------|---------------------| | John Jones | Governor | Belvidere, Ill. | | Thomas Smith | Attorney General | Oakland, Ill. | --------------------------------------------------------------------- Name _______________ Address ___________________

The prescribed form of petition also contains a sworn certificate as to the genuineness of the signatures, party affiliation and correctness of residence of those signing the petition.

Section 7-10 further provides that "[e]ach petition shall include as a part thereof, a statement of candidacy for each of the candidates filing, or in whose behalf the petition is filed. This statement shall set out the address of such candidate, the office for which he is a candidate, shall state that the candidate is a qualified primary voter of the party to which the petition relates and is qualified for the office specified * * *, shall state that he has filed a statement of economic interests as required by the Illinois Governmental Ethics Act, 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

--------------------------------------------------------------------------- | Name | Address | Office | District | Party | |------------|---------------|--------------|----------------|------------| | John Jones | 102 Main St. | Governor | Statewide | Republican | | | Belvidere, | | | | | | Illinois | | | | ---------------------------------------------------------------------------

State of Illinois) ) ss. County of _______)

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 * * * to the office of ________ to be voted upon at the primary election to be held on the _____ day of _______ A.D. ____; 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 a statement of economic interests as ...


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