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People Ex Rel. Klingelmueller v. Haas

OPINION FILED DECEMBER 20, 1982.

THE PEOPLE EX REL. JOAN KLINGELMUELLER ET AL., PLAINTIFFS-APPELLEES,

v.

FRED HAAS ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Hancock County; the Hon. Max B. Stewart, Judge, presiding.

JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the circuit court of Hancock County declaring that the defendants had forfeited their positions as elected officials of the city of Nauvoo for failing to file economic interest statements while they were candidates pursuant to section 4A-101(g) of the Illinois Governmental Ethics Acts (Ill. Rev. Stat. 1979, ch. 127, par. 604A-101(g)).

On April 7, 1981, defendant Fred Haas was elected mayor of Nauvoo and defendants Thomas Schmitz and Clarke Bergmeier were elected as aldermen. The defendants admit that they failed to file economic interest statements when they were candidates but since then have filed economic interest statements as elected officials. On July 8, 1981, the plaintiffs filed an application for leave to file a complaint in quo warrantor. The application was allowed and the complaint was filed on September 22, 1981. On August 7, 1981, the plaintiffs also filed a complaint seeking a declaratory judgment. The two actions were consolidated and a bench trial was held on October 2, 1981. The court entered a declaratory judgment finding that the forfeiture penalty for failing to file an economic interest statement was mandatory and that the defendants had forfeited their offices. (Ill. Rev. Stat. 1979, ch. 127, par. 604A-107.) Having entered a declaratory judgment, the court found it unnecessary to rule on the complaint for quo warrantor. After hearing post-trial motions by both sides, the court amended its judgment to include a judgment ousting the defendants from office pursuant to the plaintiffs' complaint in quo warrantor.

The defendants raise three issues on appeal but we need only concern ourselves with one, namely, whether the circuit court lacked subject matter jurisdiction due to the plaintiffs' failure to exhaust their administrative remedies. We find that the plaintiffs waived any objection to the defendants' status as candidates because they did not object to the sufficiency of the defendants' nomination papers in the manner prescribed by statute.

Our decision today is a narrow one and is limited to a discussion of the statutory forfeiture provisions as they affect candidates who fail to file economic interest statements. We express no opinion as to how these provisions are to be enforced against office holders.

• 1 The status of a candidate for public office is temporary. It terminates when the candidate is either elected to the office, or defeated by an opponent. Until that time, the candidate's eligibility for the office he seeks is governed by the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 1-1 et seq.) (hereinafter referred to as the Election Code). Section 10-5(3) of the Election Code requires that each candidate's nomination papers include a statement of economic interest as described in the Illinois Governmental Ethics Act (Ill. Rev. Stat. 1979, ch. 127, par. 601-101 et seq.) (hereinafter referred to as the Ethics Act). The Election Code further provides that a candidate's nomination papers are not valid if he fails to file a statement of economic interest. (Ill. Rev. Stat. 1979, ch. 46, par. 10-5.) Any challenges to the validity of a candidate's nomination papers must be resolved according to section 10-8 of the Election Code. That section reads as follows:

"Certificates of nomination and nomination papers, and petitions to submit public questions to a referendum, being filed as required by this Code, and being in apparent conformity with the provisions of this Act, shall be deemed to be valid unless objection thereto is duly made in writing within 5 days after the last day for filing the certificate of nomination or nomination papers * * *." (Ill. Rev. Stat. 1979, ch. 127, par. 10-8.)

Section 10-8 goes on to designate various electoral boards to conduct hearings on any objections. In the present case, the Election Code designates the municipal officers electoral board as the proper tribunal to hear the plaintiffs' objections. Reading these provisions as a whole, even though a candidate's nomination papers are invalid due to his failure to file an economic interest statement, the papers are deemed valid unless an objection is made within five days after the last day for filing nomination papers. The plaintiffs in the present case skipped this procedure entirely. Instead, the plaintiffs waited until a month after the general election was held before taking any action.

• 2 In support of their actions, the plaintiffs contend that the forfeiture provisions of the Ethics Act are self-executing, relying on Illinois Attorney General's Opinions, No. S-514 (Oct. 17, 1972). The plaintiffs argue that such a self-executing provision may be enforced through an election contest, quo warrantor or by declaratory judgment. We disagree. The Ethics Act as it applies to candidates cannot be read in a vacuum. The specific requirements and procedures set out in the Election Code must also be taken into account. After careful consideration, we conclude that all objections to a candidate's eligibility to run for office must be resolved by the procedures set out in the Election Code. It is vitally important that nomination objections be resolved at the earliest possible time. (Thurston v. State Board of Elections (1979), 76 Ill.2d 385.) The Illinois Election Code sets out a procedure designed to accomplish that end and it must be followed.

Although to our knowledge, this is the first time that the forfeiture provisions of the Ethics Act have been applied to a candidate in this fashion, we are not the first Illinois court to hold that nomination objections are waived if they are not asserted before the general election. In Thurston v. State Board of Elections (1979), 76 Ill.2d 385, 391, the Illinois Supreme Court held "`that the failure of a candidate to object to his opponent's certificate of nomination in the manner provided by statute waives the objection * * *.'" The Election Code gave the plaintiffs ample opportunity to test the validity of the defendants' nomination papers. In fact, section 10-10 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 10-10) sets out a procedure which clearly covers the objections raised by the plaintiffs:

"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 whether or not they are the genuine certificate of nomination or nomination papers or petitions which they purport to be, and whether or not in the case of the certificate of nomination in question it represents accurately the decision of the caucus or convention issuing it, 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 and the decision of a majority of the electoral board shall be final subject to judicial review as provided in Section 10-10.1. The electoral board must state its findings in writing and must state in writing which objections, if any, it has sustained."

To permit the plaintiffs to circumvent this procedure would work a great injustice on the defendants, who expended time, effort, and money on their campaigns, and on the public who have already made their choice at the polls. This is not the proper time or place for challenging the defendants' status as candidates.

• 3 The plaintiffs make the final argument that the issue of laches, waiver or failure to exhaust administrative remedies was not properly preserved for appeal. Generally, matters such as waiver and laches must have been raised at the trial level and may not be raised for the first time on appeal. However, the subject matter jurisdiction of the trial court may be challenged at any time in the appellate process. Our reading of section 10-10.1 of the Election Code indicates that a circuit court has power to review the decision of an electoral board but has no original jurisdiction in such matters. (Ill. Rev. Stat. 1979, ch. 46, par. ...


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