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Merz v. Volberding

OPINION FILED APRIL 3, 1981.

ANDREW T. MERZ, PETITIONER-APPELLANT,

v.

HERBERT H. VOLBERDING, SR., ET AL., RESPONDENTS-APPELLEES. — (ANDREW T. MERZ, PETITIONER-APPELLANT,

v.

JOHN E. SEITZ ET AL., RESPONDENTS-APPELLEES; GEORGE D. EGAN, JR., PETITIONER-APPELLANT,

v.

MUNICIPAL OFFICERS ELECTORAL BOARD, RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH SCHNEIDER, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

The consolidated election of municipal officers for the City of Des Plaines is scheduled to take place on April 7, 1981. The candidates for the various offices filed their nominating petitions in a timely fashion. Shortly thereafter, petitioners challenged the right of three independent candidates to appear on the election ballot, claiming that the candidates' petitions did not contain the minimum number of signatures required by the Illinois Election Code.

The Des Plaines Municipal Officers Electoral Board ruled that the candidates' petitions did meet the statutory signature requirement. Three separate actions seeking review of the electoral board's ruling were filed in the circuit court of Cook County. The trial court affirmed the decision of the electoral board. Petitioners appeal.

The issues raised on appeal are: (1) whether the trial court and electoral board erred in determining that the number of persons who voted in the April 1979 aldermanic election should provide the numerical basis for determining the number of signatures required on the nominating petitions for the April 1981 election of city-wide officials; (2) whether the doctrine of estoppel necessitates a finding that the candidates' names should remain on the ballot; and (3) whether the candidates' names should remain on the ballot even though their nomination papers did not contain the statutorily required minimum number of signatures and even though there was no evidence of reliance.

The City of Des Plaines is divided into eight wards. There are two aldermen from each ward. Every two years, one alderman is elected from each ward to serve a four-year term. Every four years, the city elects a mayor, a city clerk and a treasurer. These officials each serve a four-year term.

Herbert Volberding (the incumbent mayor) and John Seitz filed independent nomination papers for the office of mayor of the City of Des Plaines. Bertha Rohrbach filed independent nomination papers for the office of village clerk of the City of Des Plaines. The three (jointly referred to as the candidates) sought to have their names placed on the ballot in the April 7, 1981, city-wide election. Each of the candidates' nomination papers contained more than 550 signatures and less than 610 signatures.

Andrew Merz filed timely objections to the nomination papers of candidates Volberding and Seitz. George Egan filed an objection to the nomination papers of candidate Rohrbach.

The Des Plaines Municipal Officers Electoral Board (the electoral board) convened on February 5, 1981, to consider the objections. Merz and Egan (jointly referred to as the objectors), in their objections, argued that section 10-3 of the Illinois Election Code requires that nominating papers contain signatures of voters equaling between 5% and 8% of the number of persons who voted in the 1977 city-wide election in Des Plaines. The number of persons who voted in that election was 15,550. The objectors, therefore, claimed that the candidates should have had between 778 and 1244 signatures to secure a position on the electoral ballot.

The electoral board first heard the Merz objections to Volberding's petition; second, it heard the Merz objections to Seitz' petition; and third, it heard the Egan objections to Rohrbach's petition.

Candidate Volberding introduced various exhibits and testified that he relied on an informational pamphlet distributed by candidate Rohrbach, the village clerk, to determine the number of signatures required. Candidates Seitz and Rohrbach adopted the exhibits from the Volberding case but introduced no additional evidence.

The electoral board overruled the objections of the objectors and thereby ordered the placement of the candidates' names on the April 7, 1981, ballot. On February 13, 1981, the trial court affirmed the electoral board's ruling. On February 25, 1981, the objectors filed an emergency motion for expedited appeal in this court.

Independent candidates seeking to have their names placed on an electoral ballot within any district or political subdivision less than the State must obtain the statutorily required number of signatures on their nomination papers. Section 10-3 of the Illinois Election Code provides:

"Nominations of independent candidates for public office within any district or political subdivision less than the State, may be made by nomination papers signed in the aggregate for each candidate by qualified voters of such district, or political subdivision, equaling not less than 5%, nor more than 8% (or 50 more than the minimum, whichever is greater) of the number of persons, who voted at the next preceding regular election in such district or political sub-division in which such district or political sub-division voted as a ...


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