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Fortas v. Dixon

OPINION FILED MARCH 19, 1984.

THOMAS L. FORTAS, PLAINTIFF-APPELLEE,

v.

PATRICIA A. DIXON, DEFENDANT-APPELLANT (MICHAEL E. LAVELLE ET AL., DEFENDANTS).



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

PRESIDING JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

Plaintiff, Thomas Fortas, brought this action to review a decision of the Chicago Board of Election Commissioners overruling certain objections he had filed in relation to the nominating petition of defendant Patricia Dixon, a candidate for democratic ward committeeman of the first ward. Plaintiff argued that the board had erred in refusing to strike all the names on several sheets of the nominating petition where he had demonstrated that the circulators of the various sheets had filed false affidavits in connection with the circulation of these sheets. The trial court found that the ruling of the electoral board "overruling all of the objections to the nominating papers of Patricia A. Dixon [was] contrary to law and the manifest weight of the evidence." After striking the additional names from the nominating petition of defendant, she did not have the number of signatures required by statute (Ill. Rev. Stat. 1981, ch. 46, par. 7-10). Accordingly, the trial court ordered that the name of candidate Dixon not be printed on the primary ballot. We granted defendant's request for an expedited appeal to this court.

The record reveals as follows. Plaintiff filed timely objections to the nominating petition of defendant, alleging a number of deficiencies and improprieties. The only objections at issue in this appeal deal with plaintiff's contention that certain signatures were invalid because the persons who presented the various sheets of the nominating petition to the signers were not the persons who signed the circulator's affidavit. On January 9, 1984, the board's hearing examiner conducted a hearing on the validity of the candidate's nominating petition. During this hearing, plaintiff presented several witnesses and numerous affidavits in support of his allegations.

In particular, the following testimony was elicited. Oliver Gregory testified that he had personally circulated three sheets of the petition; sheets 1, 41, and 91. Sheets 1 and 41 bore the signature and affidavit of Ardelia Jones as circulator and sheet 91 was signed by Maxine Spencer as circulator. Sheets 5, 95, and 113 were all subscribed by a man, A.C. Kelly, as circulator. Ardelia Page and Lottie Judkins testified that they signed sheet 5 of defendant's nominating petition which was presented to them by Carolyn Johnson. Neither of them recalled any men accompanying Ms. Johnson. Frances Schaeffer testified that she signed sheet 95 which was presented to her by a "female Spanish girl." Sharon Frazier, O.C. Frazier, and Cynthia Schaeffer signed at the same time. O.C. Frazier corroborated the testimony of his grandmother, Frances Schaeffer, and identified the circulator as a person known to him as "Becky." A close examination of sheet 95 revealed that the name of Rebecca Rivera was whited-out and the name of A.C. Kelly was written over the whiteout of sheet 95, as circulator. James Rhodes testified that he signed sheet 113, which was presented to him by a black woman who was alone. In addition, 17 affidavits were admitted in evidence to the effect that the person presenting the affiants the various sheets which they had signed was not A.C. Kelly. Frances Carter testified that she signed sheet 10 and identified Carolyn Johnson as the circulator. She further testified that no other persons were with Ms. Johnson when she signed the sheet. The circulator's affidavit was subscribed by Ardelia Jones. William Stevenson testified that he signed sheet 47 and identified Carolyn Jones as the circulator and further testified that no other woman was with her. The circulator's affidavit for sheet 47 was subscribed by Maxine Spencer.

On January 12, 1984, the hearing examiner announced his ruling on pending matters. Plaintiff's challenge to the signatures on sheet 1 were overruled on the ground that the objector had failed to properly specify the nature of his objections in the appendix of his petition. However, sheets 41 and 91 were struck in their entirety. On the other sheets challenged by plaintiff, the hearing examiner sustained objections as to all specific signatures where plaintiff produced evidence, either in person or by affidavit, from voters purporting to show that a person other than the circulator named on the sheet had presented the petition to the voters. A total of 74 signatures were thus stricken. The examiner overruled objections to other signatures appearing on the sheets which were alleged to have been circulated by someone other than the person signing the circulator's oath.

On January 16, 1984, the board entered its decision finding that defendant had 35 signatures over the statutory minimum. On judicial review, the trial court struck all the remaining names on those sheets where there was evidence that someone other than the person signing the circulator's oath had, in fact, circulated the sheet. This resulted in an additional 94 signatures being stricken from the candidate's nominating petition and an order was entered prohibiting defendant's name from appearing on the ballot. We affirm the judgment of the trial court.

Section 7-10 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 7-10) requires that anyone circulating a nominating petition execute a circulator's affidavit in which the circulator is to certify:

"* * * 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 petitions qualified voters of the political party for which a nomination is sought." Ill. Rev. Stat. 1981, ch. 46, par. 7-10.

• 1 This portion of section 7-10 has been strictly enforced by the courts> of this State, which have viewed the circulators' oath as an important way to safeguard fair and honest elections. In Bowe v. Chicago Electoral Board (1980), 79 Ill.2d 469, 404 N.E.2d 180, the supreme court invalidated the signatures collected by a circulator who had failed to appear before a notary to have his signature acknowledged. Similarly, in Havens v. Miller (1981), 102 Ill. App.3d 558, 429 N.E.2d 1292, various petitions were stricken because the circulators had failed to provide an affidavit certifying that the persons who had signed the petition were qualified primary electors. Cf. Madden v. Schumann (1982), 105 Ill. App.3d 900, 435 N.E.2d 176 (requiring substantial compliance with the affidavit requirement).

Here, the situation is more serious than in Bowe and Havens. The sheets purportedly circulated by A.C. Kelly clearly evidenced a pattern of fraud, false swearing, and total disregard for the mandatory requirements of the Election Code. In one instance, Kelly went so far as to white-out the name of the person who had obviously circulated the sheet and inserted his own name as circulator.

• 2 It is well established that the trial court may reverse a decision of the electoral board when it is contrary to the manifest weight of the evidence. (Williams v. Butler (1976), 35 Ill. App.3d 532, 341 N.E.2d 394.) We believe plaintiff had clearly sustained his burden of proving Kelly had not personally circulated sheets 95, 113, and 5 and that Kelly's oath to the contrary was false. The testimony and affidavits adduced at the hearing could lead to no other conclusion. Accordingly, all the signatures on these sheets should have been stricken by the electoral board since the sheets did not contain the notarized affidavit of the actual circulator. This would have resulted in the deletion of an additional 32 signatures from the candidate's nominating petition.

Similarly, we believe the board erred in refusing to strike all the names on sheet 1. The unrebutted testimony of Oliver Gregory was that he had circulated this sheet, not the woman, Ardelia Jones that had signed the circulator's affidavit. The board had sustained objections to sheets 41 and 91 based on the similar testimony of Gregory but refused to strike sheet 1 because it had not been properly set forth in the objector's appendix. The hearing officer stated:

"Since this particular objection does not fall within any of the three noted in the Board rules, I must deny it. I will note, however, that the testimony of Mr. Gregory was fairly clear, that the person who signed the affidavit, according to the records, are [sic] Ardelia Jones, was not the one who signed the sheet.

So I am — obviously, the objector is not foreclosed from raising whatever points he may wish to do so in the future and in other forms. But based on my understanding of the Board practice and procedure ...


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