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02/09/88 John Michael Dugan, v. the Cook County Officers

February 9, 1988

JOHN MICHAEL DUGAN, PETITIONER-APPELLANT AND CROSS-APPELLEE

v.

THE COOK COUNTY OFFICERS ELECTORAL BOARD ET AL., RESPONDENTS-APPELLEES (HERBERT G. LOWINGER, OBJECTOR-APPELLEE AND CROSS-APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

519 N.E.2d 1064, 166 Ill. App. 3d 459, 116 Ill. Dec. 849 1988.IL.153

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

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. FREEMAN, J., concurs. PRESIDING JUSTICE WHITE, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Plaintiff John Michael Dugan (Dugan) appeals from a judgment of the circuit court of Cook County affirming an administrative decision of the defendant, Cook County Officers Electoral Board (Board), invalidating the nominating petitions of Dugan as a candidate for the office of Judge of the circuit court of Cook County. Defendant Herbert G. Lowinger (Lowinger) cross-appeals the circuit court's denial of his request for attorney fees. On appeal, Dugan argues that (1) the objector's petition, filed by Lowinger, was invalid because it was not properly filed; (2) the absence of Morgan M. Finley from the Board meeting created a vacancy thereby invalidating the actions of the Board in reviewing Dugan's petitions; and (3) even if the objector's petition is not stricken, the 487 valid signatures Dugan obtained demonstrate substantial compliance with section 7-10(h) of the Election Code. (Ill. Rev. Stat. 1985, ch. 46, par. 7-10(h).) In his cross-appeal, Lowinger argues that the trial court erred in denying his request for attorney fees. We affirm in part and reverse in part.

On December 7, 1987, Dugan filed his nominating petitions for the office of Judge of the circuit court of Cook County to fill the vacancy of Allen F. Rosin. Pursuant to section 7-12(1) of the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 7-12(1)), which requires that petitions for Judgeships be filed in the principal office of the State Board of Elections, Dugan filed his petitions in Springfield, Illinois. On December 21, 1987, the last day for objector's petition to be filed, Lowinger filed his objector's petitions to be filed, Lowinger filed his objector's petition to Dugan's nominating petitions at 4:55 p.m. in the branch office of the State Board of Elections in Chicago, Illinois. Lowinger's petition was first received in Springfield on December 22, 1987, at approximately 9:30 a.m.

The Board, which is the body that conducts hearings on the validity of objectors' petitions and nominating petitions of candidates, is composed of three members: Stanley T. Kusper, Jr., Morgan M. Finley and Richard M. Daley by Michael E. Shabat. At the hearing on Lowinger's objector's petition, however, only Stanley T. Kusper, Jr., and Richard M. Daley by Michael E. Shabat were present. No explanation was given as to why Morgan M. Finley did not appear.

During the hearing Dugan argued that Lowinger did not comply with the statute in filing his objector's petition because it was not timely filed in the principal office of the State Board of Elections. Following oral arguments and the presentation of evidence, the Board found that (1) the objection to the nominating petitions of Dugan was duly filed; (2) the use of the word "or" in section 10-8 of the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 10-8) provides the objector with a choice of places to file objections; (3) the objections made against Dugan's nominating petitions were valid and sustainable; and (4) Dugan's petitions contained only 487 valid signatures. By statute, 500 signatures are required to be a candidate for the office of Judge of the circuit court. (Ill. Rev. Stat. 1985, ch. 46, par. 7-10(h).) Based upon its decision, the Board removed Dugan's name from the ballot as a candidate for the office of Judge of the circuit court of Cook County to fill the vacancy of Allen F. Rosin.

Dugan appealed the Board's decision to the circuit court of Cook County. On administrative review, the circuit court affirmed the decision of the Board. This appeal followed.

Dugan first argues that Lowinger's objector's petition was invalid because it was not properly filed within the statutory time limit. We agree.

This is a case of first impression. We believe that resolution of this issue depends upon the interpretations given to sections 10-8 and 7-12(1) of the Election Code. (Ill. Rev. Stat. 1985, ch. 46, pars. 10-8, 7-12(1).) Section 10-8 provides in part:

"Certificates of nomination and nomination papers . . . shall be deemed to be valid unless objection thereto is duly made in writing within 5 business days after the last day for filing the certificate of nomination or nomination papers . . ..

Any legal voter of the political subdivision or district in which the candidate or public question is to be voted on . . . having objections to any certificate of nomination or nomination papers or petitions filed, shall file an objector's petition together with a copy thereof in the principal office or the permanent branch office of the State Board of Elections, or in the office of the election authority or local election official with whom the certificate of ...


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