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Greene v. Board of Election Comm'rs





Appeal from the Circuit Court of Cook County; the Hon. Joseph Schneider, Judge, presiding.

PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT: Cassandra Holbert (respondent) filed a petition with the Board of Election Commissioners of the city of Chicago (the Board) objecting to the nomination papers of petitioner, Elliotte Greene, who was seeking to run in an upcoming aldermanic election for the sixth ward in Chicago. The Board sustained respondent's objections. Petitioner appeals the trial court's affirmance of that decision.

On January 10, 1983, respondent, a registered voter of the sixth ward in Chicago, filed a petition with the Board objecting to petitioner's nomination papers. Respondent's petition alleged that petitioner was ineligible to be placed on the ballot because his nomination papers failed to contain 342 valid signatures, the minimum number needed. Respondent requested that petitioner's name be stricken from the list of candidates for alderman.

On January 13, 18, 21, 22 and 24, 1983, the Board conducted hearings on the objections. Petitioner stated that he was entering a limited and special appearance, that he had never received service of process and that the Board therefore lacked jurisdiction over the hearings. The Board responded that the sheriff's return indicated that service on petitioner had been attempted four times, an attempt was made to serve him by certified mail and that petitioner had received actual notice in addition thereto because his attorney had appeared for him on the first day of the hearings. Over counsel's objection, respondent then called petitioner as an adverse witness.

Petitioner's testimony was conflicting. First, he stated that he had not learned until that morning, January 18, that his nominating petitions had been objected to and that he had never seen a copy of respondent's objections. Upon further questioning, however, petitioner said that several weeks ago (after the objections had been filed) he called an attorney and they discussed his nominating petitions as well as the objections. The attorney thereafter obtained a copy of the objections and he and petitioner spoke. On cross-examination, petitioner again stated that he had neither personally received a copy of the respondent's petition nor had he received a notice of the Board's call. He said that he had not intentionally avoided service of process.

The Board chairman next questioned petitioner. He stated that he was an insurance salesman, that he rarely received business mail at home and that his mother usually checked his mailbox. Petitioner had not looked in his mailbox in a week. The only mail he had received or that had been received for him was a rate announcement from an insurance company. No further questions were asked of petitioner.

Petitioner then reiterated his argument that the Board lacked jurisdiction, whereupon the Board chairman answered that had no one appeared on petitioner's behalf, the case would have been defaulted but that since an attorney had appeared and went forward, jurisdiction attached. The Board chairman further stated that the law could not be interpreted to permit the defeat of an objector's petition merely by a candidate's "going on vacation" in an attempt to avoid service. The Board then permitted respondent to go forward with the case. When petitioner asked whether respondent must make out a prima facie case, respondent interjected that petitioner was now in fact arguing the merits of the case and that by doing so he waived his special and limited appearance. The Board chairman responded that because the Board had jurisdiction and because the respondent's petition was verified, it would proceed. The Board then ordered a binder check.

The binder check resulted in the disqualification of 165 of the names on petitioner's nomination petitions. Only 265 valid signatures remained. The statutory minimum number of signatures needed to be placed on the sixth ward aldermanic ballot was 342.

Petitioner challenged the thoroughness, accuracy and relevancy of the binder check procedure. He maintained that a voter's eligibility for purposes of signing a nominating petition should be determined at the time the voter signs the petition and not when a binder check is later made. Petitioner pointed out that a voter who had moved into the sixth ward from a different ward, who had not notified the Board of a change of address and who signed a nominating petition in September 1982 would erroneously be considered unqualified because a binder check in January 1983 would show that the voter was not registered in the sixth ward on the day he had signed the petition. The Board countered that if a voter's name could not be found in the binder, the master files would then indicate whether or not the voter was registered at the address shown on the nominating petition. The Board thereupon admitted the binder check report into evidence. A master file examination was then granted, pursuant to petitioner's request.

Following the master file examination, petitioner continued his argument before the Board. He first called Robert Sawicki, the assistant executive director for the Board. Sawicki testified that most of the Board's work was done under his supervision and control. His duties included issuing the Board's reports on hearings such as the present one. Sawicki explained that when a voter's registration was challenged, the binder and master file would be checked. He also stated that at certain times, a record is kept of cards that are removed from the binder. The Board then terminated counsel's examination of Mr. Sawicki on the grounds that there was no evidence in the record to show that any voter cards in question in this hearing had been removed. Petitioner continued to argue before the Board, stressing that the respondent has the burden of proof that the signatures on his nominating petition were invalid. Respondent replied that since petitioner was challenging the Board's procedure, those signatures questioned should be sent back to be examined by the Board's handwriting expert as conclusive evidence as to whether they were forgeries. In an attempt to finally settle this dispute, the chairman of the Board ordered the entire matter sent back for a special search to be as exhaustive as at all possible, commenting, "We will stay here all night if we have to." When asked by the Board as to how much time he would need to prepare, Sawicki stated that it would take about nine minutes for his staff to get organized. The record reveals that immediately thereafter, petitioner and his counsel left the building. Respondent so informed the Board chairman, who directed that since petitioner "did not see fit to cooperate * * * but instead has decided to go out for lunch, the work will proceed and begin immediately." Petitioner and his counsel apparently returned soon afterwards, for the record further reveals that they observed the record search procedure.

The record search resulted in petitioner gaining no additional valid signatures. Upon examination by the Board chairman, Carmen Panico, manager of records processing for the Board, testified that he participated in the record analysis of the names given to him by petitioner and that his staff checked the master files, the "new kick-ins" (the daily processing that comes to the board which must be filed into the master file units) and the file maintenance "runs" (new registrations and change of address records from the computer). Panico explained that the file maintenance reports would reflect a voter's change of address within the same ward as well as a change of address from one ward to another ward. These records were made available to the Board's staff to examine. At petitioner's request, file maintenance reports were provided for September through November, 1982. Entries in the maintenance reports during the last two days of August were included in the September 1982 report. File maintenance reports for each day beginning September 1 were made available to petitioner. The last date of the file maintenance report provided was January 21 or 22. Panico further testified that petitioner was provided with (1) the file maintenance report that the Board separately keeps for the public libraries; (2) the file maintenance report for an October 1982 precinct registration and (3) suspense lists (lists which are prepared as a result of the Board's door-to-door canvas taken prior to each election) for February and October, 1982.

On cross-examination, Panico stated that except for the unprocessed work of his staff, the computer records were current up to January 23, 1983. (The hearings on petitioner's nominating petitions commenced January 13 and ended January 24, 1983.) He stated that approximately two to 3,000 address changes or new registration cards are completed by his staff every day. Under further questioning, Panico said that if a voter moved from a different ward into the sixth ward and had filed a change of address, that person's name would not show up in the master file as a registered voter in the sixth ward until the change of address card was processed. The names of registered voters whose registrations had been challenged for failure to vote would be placed in an "inactive unit." Those files were made available to petitioner, Panico stated.

The Board chairman next examined Panico. He testified that all new registrations and change of addresses should either be in the master file or at the assembly point of such cards for insertion in the master file. If they were in neither place, Panico stated that he would be aware of it. Panico stated that when searching for the names petitioner provided him, his staff was directed to look through the cards that had been assembled for insertion into the master file.

Next to testify was Andrew Draus, who was questioned on direct and cross-examination about the worksheets on which results of the binder check are entered. When questioned by respondent as to which column an entry was made when a binder card could not be located, Draus' testimony conflicted. First he said that an entry would be made in one column, but, after further questioning, he stated that it would be made in another. Draus also stated that in some instances either he or another Board employee had printed petitioner's name at the bottom of a worksheet as having personally observed the binder check because "he [petitioner] refused [to sign his own name] because the binder was in court." The Board chairman then stated that he noticed that one worksheet had not been signed by anyone.

Next to testify was Angelo Stenzo, who had worked with Andrew Draus on checking petitioner's nominating petitions. Stenzo said that his job was to enter the line by line results of the binder check on the Board's worksheet according to Draus' ...

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