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05/14/87 Martin J. Serwinski, v. the Board of Election

May 14, 1987

MARTIN J. SERWINSKI, PETITIONER-APPELLEE

v.

THE BOARD OF ELECTION COMMISSIONERS OF THE CITY OF CHICAGO ET AL., RESPONDENTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

509 N.E.2d 509, 156 Ill. App. 3d 257, 108 Ill. Dec. 813 1987.IL.627

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

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. McMORROW, P.J., and LINN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

This proceeding was instituted on December 22, 1986, when Thomas R. Allen, one of the respondents, filed objections to the nominating petition of Martin J. Serwinski, the petitioner, as a candidate in the aldermanic election of February 24, 1987, for alderman of the 38th Ward of the city of Chicago. The board of election commissioners of the city of Chicago (hereinafter referred to as the electoral board), after a hearing, sustained the objections and excluded petitioner from the ballot. After judicial review, the circuit court of Cook County set aside the decision of the electoral board and ordered that petitioner's name appear upon the ballot. Appeal to this court followed. Upon a motion for an expeditious hearing, this court entered an order reversing that judgment, mandating that petitioner's name not be printed on the ballot, and announcing that an opinion would subsequently be filed. This is that opinion.

The record indicates that petitioner filed his nominating petitions, loyalty oath, and statement of candidacy for the office of alderman of the 38th Ward of the city of Chicago on December 15, 1986. That preceding Saturday, he had given the statement of candidacy to the notary, stating that he believed everything was correct, and it was notarized. However, petitioner had failed to sign the statement.

Objections were filed with the electoral board contending that the nominating petition of petitioner was fatally defective because the candidate had not subscribed to his statement of candidacy as required by section 10-5 of the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 10-5). A hearing was held before a hearing officer of the electoral board. Finding for respondents, the hearing officer found specifically that the evidence did not establish that petitioner had sworn to the statement. It was undisputed that petitioner had failed to sign the statement of candidacy.

The electoral board entered its decision on January 12, 1987, finding that pursuant to section 10 -- 5 of the Election Code, petitioner's failure to sign the statement of candidacy invalidated the statement. On judicial review, the circuit court set aside the decision of the electoral board and ordered that petitioner's name appear on the ballot. Respondents here seek reversal of the trial court's order, contending that the decision of the electoral board was supported by the manifest weight of the evidence. We agree.

Section 10 -- 5 of the Election Code provides, in pertinent part, as follows:

"Such certificate of nomination or nomination papers in addition shall include as a part thereof, the oath required by Section 7-10. *fn1 of this Act and must include a statement of candidacy for each of the candidates named therein, except candidates for electors for President and Vice-President of the United States. Each such statement shall set out the address of such candidate, the office for which he is a candidate, shall state that the candidate is qualified for the office specified and has filed (or will file before the close of the petition filing period) a statement of economic interests as required by the Illinois Governmental Ethics Act,1 shall request that the candidate's name be placed upon the official ballot and shall be subscribed and sworn to by such candidate before some officer authorized to take acknowledgments of deeds in this State . . .." Ill. Rev. Stat. 1985, ch. 46, par. 10-5.

Petitioner argues that under the criteria expressed in People ex rel. Meyer v. Kerner (1966), 35 Ill. 2d 33, 219 N.E.2d 617, and Ballentine v. Bardwell (1985), 132 Ill. App. 3d 1033, 478 N.E.2d 500, failure to sign his statement of candidacy is not fatal. He contends that, although section 10 -- 5 uses the word "shall" in reference to the clause requiring candidates to subscribe and swear to their statements of candidacy, such provision is directory rather than mandatory.

It is well established that the failure to follow a statutory provision which is mandatory renders the proceeding to which it relates illegal and void, while strict compliance to a directory provision is not necessary to the validity of the proceeding. (See People ex rel. Agnew v. Graham (1915), 267 Ill. 426, 436, 108 N.E. 699, 703; Havens v. Miller (1981), 102 Ill. App. 3d 558, 564-65, 429 N.E.2d 1292, 1297.) However, no concrete rule exists to distinguish between mandatory and directory provisions. "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. [Citation.]" Ballentine v. Bardwell (1985), 132 Ill. App. 3d 1033, 1036, 478 N.E.2d 500, 503.

Of course, the starting point in ascertaining legislative intent is in the language of the statute itself. Our supreme court, in considering the validity of an ...


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