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Ballentine v. Bardwell

OPINION FILED APRIL 25, 1985.

RICHARD BALLENTINE ET AL., PETITIONERS-APPELLANTS AND CROSS-APPELLEES,

v.

HENRY BARDWELL ET AL., RESPONDENTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Robert J. Dempsey, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiffs, party candidates of a newly formed political party, appeal from the decisions of the electoral board and the circuit court of Cook County striking their names from the official ballot for the April 2, 1985, municipal election in the village of Robbins.

Defendant, electoral board, cross appeals from certain findings of the trial court in plaintiffs' favor.

We affirm in part and reverse in part.

BACKGROUND

On January 14, 1985, plaintiffs, Richard Ballentine, Diane Davis, James W. Barnes, Sr., George R. Walker, Jr., and Kenneth Moody, filed their nominating petitions and loyalty oaths with the clerk of the village of Robbins, requesting that their names be printed on the ballot for the April 2, 1985, municipal election as candidates of the "New United Idea" Party, a newly formed political party.

On January 18, 1985, some four days after the filing of their nomination petitions but within the filing period set forth under section 10-6 of the Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 10-6), plaintiffs filed their statements of candidacy pursuant to section 10-5 of the Code (Ill. Rev. Stat. 1983, ch. 46, par. 10-5).

An objector's petition was filed with the village clerk on January 26, 1985, complaining, inter alia, that plaintiffs' nomination papers were defective in that (1) the statements of candidacy were not filed simultaneously with the nomination petitions; (2) plaintiffs' party name impermissibly included the name of an established political party, in violation of section 10-5(2) of the Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 10 - 5(2)); and (3) plaintiffs failed to file a valid "certificate of officers" in violation of section 10-5. Ill. Ann. Stat., ch. 46, par. 10-5 (Smith-Hurd Supp. 1983).

A hearing was held on the merits of the objector's petition, following which defendant electoral board (board) sustained the petition and struck the names of the party candidates from the official ballots. The board's decision was affirmed on judicial review before the circuit court of Cook County, which found plaintiffs' failure to simultaneously file their statements of candidacy with their nomination petitions to vitiate their candidacy.

Plaintiffs brought this appeal, seeking an expedited briefing and hearing schedule, and defendant electoral board cross-appealed.

Following oral argument, an order was handed down by this court on March 28, 1985, (1) directing the clerk of the village of Robbins to print the names of the candidates without party designation on the official ballot for the election to be held on April 2, 1985; (2) denying the relief sought by defendant; and, (3) informing the parties that a written disposition of this cause would issue at the court's convenience.

We affirm in part and reverse in part.

OPINION

I

• 1 On appeal, plaintiffs address only that issue that the trial court found to be dispositive, namely, whether their failure to simultaneously file their statements of candidacy with their nomination petitions mandated that their names be stricken from the ballot. Plaintiffs contend that, by filing their statements of candidacy within the statutorily prescribed filing period, they have substantially complied with the requirements of the Illinois Election Code.

Defendant, on the other hand, contends that the combined reading of sections 10-4, 10-5 and 1-3 of the Election Code mandates the removal of the candidates' names from the election ballot due to their failure to simultaneously file their statements of candidacy with their nominating papers. By this contention, defendant in essence maintains that such simultaneous action is mandatory rather than directory. We cannot agree with defendant's interpretation of these provisions as applied to the facts and circumstances of the instant case.

Whether an enactment is directory or mandatory depends on the legislative intention, to be ascertained from the nature and object of the act and the consequences which would result from any given construction. (Village of Mundelein v. Hartnett (1983), 117 Ill. App.3d 1011, 454 N.E.2d 29.) The use of the word "shall" in a statutory provision, though generally regarded as mandatory, does not have a fixed or inflexible meaning and may, in fact, be ...


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