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Velazquez v. Soliz

OPINION FILED MARCH 13, 1986.

JUAN A. VELAZQUEZ ET AL, APPELLANTS,

v.

JUAN M. SOLIZ ET AL., APPELLEES. — CESAREO OLIVO ET AL., PLAINTIFFS-APPELLEES,

v.

JUAN M. SOLIZ ET AL., DEFENDANTS-APPELLANTS (STATE BOARD OF ELECTIONS, DEFENDANT).



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

JUSTICE MURRAY DELIVERED THE OPINION OF THE COURT:

This case involves two appeals from two decisions of the circuit court in an election matter. Appeal No. 86-522 involves an administrative review action pursuant to provisions of the Illinois Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 10-10.1). In that action, the trial court affirmed an order of defendant Chicago board of election commissioners entered on February 13, 1986, which had overruled plaintiffs Velazquez', Olivo's and Mancera's objections to defendant Soliz' candidacy for alderman of the 25th Ward in the special nonpartisan aldermanic election to be held in that and other wards in the city of Chicago on March 18, 1986.

In the second appeal, No. 86-530, a declaratory judgment action instituted by plaintiffs Olivo, Velazquez and Mancera, the trial court granted plaintiffs' motion for summary judgment, dismissed the Illinois State Board of Elections as a defendant, denied defendant Soliz' motion to dismiss and enjoined defendant Chicago board of election commissioners from printing defendant Soliz' name on the ballot in the Democratic primary election for that political party's nomination for the office of State Representative for the 20th representative district in the 85th General Assembly of the State of Illinois.

Plaintiffs Velazquez, Olivo and Mancera have appealed from the trial court's order affirming the order of defendant Chicago board of election commissioners overruling their objections to defendant Soliz' candidacy for alderman of the 25th Ward.

Defendant Soliz has appealed the trial court's order overruling his motion to dismiss, granting plaintiffs Olivo's, Velazquez' and Mancera's motion for summary judgment and enjoining defendant Chicago board of election commissioners from printing his name (Juan M. Soliz) on the ballot as a candidate of the Democratic Party for the office of State Representative. *fn1

For the sake of clarity, this court will hereafter refer to Velazquez, Olivo and Mancera as plaintiffs and Soliz and the Chicago board of election commissioners (the board) as defendants.

The undisputed facts are as follows. On December 30, 1985, the United States District Court for the Northern District of Illinois, Eastern Division, in a case entitled Ketchum v. City Council, Nos. 82 C 4085, 82 C 4431, 82 C 4820 (cons.), entered an order requiring the calling of a special aldermanic election to be held on March 18, 1986, in seven Chicago wards, including the 25th Ward. Defendant Soliz had filed nominating petitions and was certified on January 16, 1986, for nomination for the office of State Representative for the 20th representative district in the Democratic primary election also to be held on March 18, 1986. Soliz had filed his nominating petitions for that office (State Representative) prior to the district court's decision in Ketchum v. City Council, which was announced some weeks after the close of the statutory filing period for the March 18 primary election. The only other Democratic primary candidate for State Representative for the 20th district is plaintiff Olivo.

On January 17, 1986, the day after his certification as a candidate for nomination to the office of representative, defendant Soliz filed his petition of candidacy for alderman in the 25th Ward in the March 18 special aldermanic election. Plaintiff Velazquez is one of Soliz' opponents on the ballot for this special aldermanic election.

Plaintiffs are all residents and voters of the 25th Ward. They filed objections to Soliz' petition of candidacy for 25th Ward alderman and requested that defendant board remove Soliz' name from the aldermanic ballot because he was simultaneously running for State Representative in the General Assembly, which plaintiffs contend is an office incompatible with that of alderman. Plaintiffs also argued that, since Soliz had no intention of serving as State Representative, his dual candidacy would result in a disenfranchisement of the voters for that office.

On February 3, 1986, Soliz filed an affidavit indicating that he does not desire to serve as or remain a candidate for State Representative if he is elected alderman of the 25th Ward. He indicated an intention to resign or to decline to run if nominated as a State Representative candidate. If Soliz makes a declination of the State Representative nomination, if nominated, the Democratic party ward committeemen of the 20th district would fill the vacancy. Plaintiffs allege that this course of conduct would effectively deprive the voters of the 20th district of their constitutional right to choose the nominee for State Representative, and cite Smith v. Cherry (7th Cir. 1973), 489 F.2d 1098, and other cases, as support for this view.

After a hearing, the defendant board on February 13, 1986, determined that sections 7-12(9), 8-9(3), and 10-7 of the Election Code (Ill. Rev. Stat. 1983, ch. 46, pars. 7-12(9), 8-9(3), 10-7), which prohibit filing for incompatible offices, are not applicable to Soliz' candidacies for the following reasons: (1) Soliz has filed only one petition of nomination (for the Democratic nomination for State Representative); (2) it was impossible for Soliz to withdraw one of two petitions within the requisite period since there were two separate and distinct filing periods relating to different elections; and (3) the aldermanic office does not appear on a primary ballot. Furthermore, the defendant board noted that there are differences in the statutes governing different elections and that there are differences between a primary election and a special nonpartisan election.

Plaintiffs then sought judicial review of the defendant board's decision overruling their objections to Soliz' aldermanic petition under the provisions of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, pars. 3-101 et seq.). After the Illinois State Board of Elections declined to consider plaintiffs' challenge to Soliz' state representative candidacy, plaintiffs also filed a declaratory judgment action pursuant to the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-701 et seq.). On February 27, 1986, the trial court entered the final orders, described above, in the respective cases.

We first note that if Soliz does not receive a majority of votes in the March 18 nonpartisan aldermanic election, he will be compelled to run in a supplemental aldermanic runoff election in April 1986.

If Soliz is nominated as the Democratic party's candidate for State Representative in the March 18 primary, he will be on the ballot for the November 1986 general election. If elected alderman, his term would run from the date of certification for the special election in March 1986 or in April, if necessary, and would end in April 1987 when the winner of the 1987 aldermanic election takes office. If elected as State Representative in November 1986, Soliz' term would begin in January 1987. Thus, the overlap between the two terms of State Representative and alderman at issue in this case involves the first few months of the legislative term and the last few months of the aldermanic term (January to April of 1987).

This is an unusual case arising as a result of the United States District Court's decision in the Ketchum case ordering that the special aldermanic election in the seven wards be held on March 18, 1986, the same day as the general Democratic and Republican primary elections. Such a case as this will seldom, if ever, arise again because under the Illinois Election Code the primary and general elections for State Legislators and other offices are held in even-numbered years, while the nonpartisan elections for municipal officers are held in odd-numbered years. Ill. Rev. Stat. 1983, ch. 46, par. 2A-1.2.

Plaintiffs initially contend that three provisions of the Illinois Election Code bar Soliz' dual candidacy for alderman and State Representative. These are sections 7-12(9), 8-9(3) and 10-7. (Ill. Rev. Stat. 1983, ch. 46, pars. 7-12(9), 8-9(3), 10-7.) They relate to (1) the making of nominations by political parties (article 7), (2) the nomination of members of the General Assembly (article 8), and (3) the making of nominations in certain other cases (article 10). Ill. Rev. Stat. 1983, ch. 46, arts. 7, 8, 10.

• 1 Illinois courts have held that the right to hold office is a valuable one. The exercise of the right should not be prohibited or curtailed except by plain provisions of the law. Statutes imposing disqualifications should be construed liberally in favor of eligibility, and every doubt must be resolved in ...


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