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Schumann v. Kumarich

OPINION FILED NOVEMBER 30, 1981.

HERBERT T. SCHUMANN, JR., PLAINTIFF-APPELLEE,

v.

CECILIA KUMARICH ET AL., DEFENDANTS. — (THERESA M. PACZESNY, DEFENDANT-APPELLANT.) — EDWARD E. GORDON, PLAINTIFF-APPELLEE,

v.

CECILIA KUMARICH ET AL., DEFENDANTS. — (THERESA M. PACZESNY, DEFENDANT-APPELLANT.)



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

JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Theresa M. Paczesny (objector) raised objections to the nomination petitions of Herbert T. Schumann, Jr., and Edward E. Gordon (candidates), both of whom were seeking election to the board of trustees of Moraine Valley Community College District 524. The Education Officers Electoral Board (Electoral Board) sustained the objections to the petitions, but the circuit court reversed the Board's decision. The Electoral Board and the objector appealed that reversal.

The issues presented for review are: (1) whether section 10-4 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 10-4) is ambiguous requiring judicial construction; (2) whether section 10-4 is mandatory or directory; (3) whether the candidates' circulators' affidavits complied with section 10-4 requirements; and (4) whether estoppel should be invoked to prevent the striking of the petitions of the candidates.

On August 17, 1981, the candidates filed nominating petitions for the office of member of the Board of Trustees of Moraine Valley Community College District 524. Candidate Schumann had originally obtained the petition forms for himself and candidate Gordon from the Moraine Valley Community College. On August 29, 1981, objector filed petitions with the secretary of the board of trustees of the college alleging that the nominating petitions of the candidates were defective because the circulator's affidavit found on the bottom of each petition failed to include the circulator's residence address and failed to state that the persons signing the petition were "registered" voters of the school district and that the signers' "respective residences" were correctly set forth.

An education officers electoral board was convened for the purpose of hearing and passing on the objector's petitions. Candidate Gordon appeared and testified at the hearing, but candidate Schumann did not appear. One member of the Electoral Board commented during the hearing that two other candidates, whose petitions were not objected to on the same grounds, submitted petitions using substantially the same form. After hearing the witnesses the Electoral Board voted 2-1 to sustain the objections and ordered the names of the candidates removed from the ballot.

The candidates sought judicial review of the Electoral Board's decision. The circuit court reversed the Electoral Board's decision and ordered the candidates' names reinstated on the ballot. The circuit court's orders do not recite the reasons for the reversals. Because of the immediacy of the upcoming election, we expedited and consolidated the appeals of the trial court's orders. Following oral arguments an order was entered in each case on October 23, 1981, with this opinion to follow. The orders reversed the trial court and removed the candidates' names from the official ballot.

OPINION

Section 3-7.1 of the Public Community College Act (Ill. Rev. Stat., 1980 Supp., ch. 122, par. 103-7.1) states that all elections held pursuant to that Act shall be governed by provisions of the general election law. Section 10-4 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 10-4) sets forth the information required to be included in a circulator's affidavit, which is in pertinent part as follows:

"* * * No signature shall be valid or be counted in considering the validity or sufficiency of such petition unless the requirements of this Section are complied with. At the bottom of each sheet of such petition shall be added a statement, signed by a registered voter of the political division for which the candidate or candidates shall be nominated, stating his residence address (and if a resident of a city having a population of over 10,000 by the then last preceding federal census, also stating the street and number of such residence), certifying that the signatures on that sheet of the petition were signed in his presence and are genuine, and that to the best of his knowledge and belief the persons so signing were at the time of signing the petition duly registered voters under Articles 4, 5 or 6 of the Code of the political subdivision or district for which the candidate or candidates shall be nominated, and that their respective residences are correctly stated therein. * * *" *fn1

• 1 The objector correctly asserts with no apparent dispute from the candidates that this provision does not lend itself to more than one meaning. Therefore, its meaning is plain and needs no judicial construction. People ex rel. Callahan v. Marshall Field & Co. (1980), 83 Ill. App.3d 811, 404 N.E.2d 368.

The objector first contends that this provision is mandatory and not directory, citing Bowe v. Chicago Electoral Board (1980), 79 Ill.2d 469, 404 N.E.2d 180. In Bowe, the supreme court stated the requirements of section 7-10 of the Election Code (Ill. Rev. Stat. 1977, ch. 46, par. 7-10) were mandatory and not directory. Section 7-10 included content requirements for the circulator's affidavit very similar to those found in section 10-4 of the Election Code as currently amended. In rendering its opinion the Bowe court cited Lawlor v. Municipal Officer Electoral Board (1975), 28 Ill. App.3d 823, 329 N.E.2d 436. In Lawlor, the court had construed section 7-10 as mandatory because the legislature had specifically and separately set forth the required contents of the nominating petition and of the certificate of candidacy. Further, the court noted that the language of the section read that "Each petition shall include * * * shall set out * * * shall state * * *" and that the word "shall" is ordinarily interpreted to be mandatory. 28 Ill. App.3d 823, 829, 329 N.E.2d 436, 440; Schmidt v. Powell (1972), 4 Ill. App.3d 34, 280 N.E.2d 236; see People ex rel. Adamowski v. Metropolitan Sanitary District (1958), 14 Ill.2d 271, 150 N.E.2d 361.

Article 10 of the Election Code provides for separate and specific content requirements for certificates of nomination (Ill. Rev. Stat. 1979, ch. 46, par. 10-5) and for nominating petitions (Ill. Rev. Stat. 1979, ch. 46, par. 10-4). Section 10-4 specifically provides that the requirements set forth "shall * * * be as follows" and further that, "No signature shall be valid or be counted * * * unless the requirements of [section 10-4] are complied with." Therefore, under the reasoning in Bowe and Lawlor the requirements of section 10-4 are mandatory and not directory.

• 2 The candidates suggest, however, that section 3-7.10 of the Public Community College Act (Ill. Rev. Stat., 1980 Supp., ch. 122, par. 103-7.10) indicates that section 10-4 of the Election Code might be directory in the setting of the community college board of trustees election. Section 3-7.10 of the Public Community College Act does set forth the specific format for a nominating petition for the office of member of the board of trustees. Prefacing that format is the following statement: "In addition to the requirements of the general election law, the form of such petitions shall be substantially as follows * * *." In essence the candidates contend that the presence of the word "substantially" suggests that section 10-4 of the Election Code is directory in the context of community college board elections. This argument fails for two reasons: first, the word "substantially" clearly belongs to that part of the sentence which refers to the specific format set forth in section 3-7.10 of the Public Community College Act and not to the phrase containing the general election reference; second, and most importantly, the presence of the word "substantially" does not transform an otherwise mandatory provision into a directory provision. Section 7-10 of the Election Code held in Lawlor and Bowe to be mandatory contains the word "substantially" in nearly the identical phrase as is found in section 3-7.10 of the Public Community College Act. Yet, both courts> held the provision to be mandatory. Thus, the requirements of section 10-4 are mandatory even in the context of a community college board of trustees election.

The candidates assert, however, that even if section 10-4 is mandatory and not directory they substantially complied with the statutory requirements. Objector asserts they did not. The applicable statutory requirements, the corresponding language in the nominating petitions to ...


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