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11/29/88 Kenneth A. Kozel, v. the State Board of

November 29, 1988

KENNETH A. KOZEL, APPELLANT

v.

THE STATE BOARD OF ELECTIONS ET AL., APPELLEES



SUPREME COURT OF ILLINOIS

533 N.E.2d 796, 126 Ill. 2d 58, 127 Ill. Dec. 714 1988.IL.1712

Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. C. Joseph Cavanagh, Judge, presiding.

Rehearing Denied January 30, 1989

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court. JUSTICE RYAN took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

The objector, Kenneth A. Kozel, initiated this action as a challenge to the nomination papers filed by Douglas B. Olivero, a candidate for the office of resident circuit Judge of La Salle County. Sitting as an electoral board, the State Board of Elections rejected Kozel's objections and declared that the candidate's nomination papers were legally sufficient. The circuit court of Sangamon County upheld the State Board's decision on judicial review, and the appellate court subsequently affirmed the judgment of the circuit court (168 Ill. App. 3d 501). We allowed the objector's petition for leave to appeal (107 Ill. 2d R. 315(a)).

On December 14, 1987, pursuant to article 7 of the Election Code (Ill. Rev. Stat. 1987, ch. 46, pars. 7-1 through 7-65), Olivero filed with the State Board of Elections a statement of candidacy and nominating petitions as a Republican candidate to fill a vacancy in the office of resident circuit Judge of La Salle County. La Salle County is part of the Thirteenth Judicial Circuit, which also includes Bureau and Grundy Counties. (See Ill. Rev. Stat. 1987, ch. 37, par. 72.1.) On December 21, 1987, the objector, who also was a Republican candidate for the office of resident circuit Judge of La Salle County, filed a petition with the State Board of Elections challenging candidate Olivero's nomination papers. Olivero had submitted nominating petitions containing some 963 signatures in support of his candidacy, more than the 500 required by statute (see Ill. Rev. Stat. 1987, ch. 46, par. 7 - 10(h)), and the objector challenged 528 of the signatures.

The objector's principal complaint, pertaining to 400 signatures, concerned the eligibility of persons registered to vote in Bureau and Grundy Counties to sign and circulate petitions for candidates for the office of resident circuit Judge of La Salle County. An election to fill a vacancy in the office of resident circuit Judge "shall be for the appropriate county or unit" (Ill. Rev. Stat. 1987, ch. 37, par. 72.42-1), and therefore only residents of La Salle County would be eligible to vote in the primary and general elections for candidates for the position. The objector contended that only persons who are eligible to vote in an election involving a particular office are eligible to sign and circulate the nominating petitions of candidates for the position.

The objector also challenged, on purely factual grounds, about 128 signatures of residents of La Salle County. The objector alleged that some of the signatories had signed the candidate's petitions more than once, that other signatories were not registered to vote at the addresses indicated on the petitions, and that others did not sign the petitions in their own proper person. The objector concluded that the candidate's petitions contained not more than 435 valid signatures, less than the 500 required. The objector asked that the candidate's nomination papers be declared insufficient and that his name be excluded from the primary election ballot.

The State Board of Elections convened on December 28, 1987, as an electoral board-and in that capacity it will be referred to here as "the State electoral board"-to hear and pass upon the objections to the candidate's nomination papers. At the Conclusion of the meeting, the case was assigned to a hearing officer. Following an evidentiary hearing, the hearing officer issued a report and recommended finding on the matter. The hearing officer viewed as dispositive the question whether persons registered to vote in Bureau and Grundy Counties were eligible to sign and circulate nominating petitions of candidates for the office of resident circuit Judge of La Salle County. In the hearing officer's view, the objector argued "with some persuasiveness" that only residents of La Salle County should be allowed to sign and circulate nominating petitions for the position, but the hearing officer concluded that section 7-10(h) of the Election Code authorized voters throughout the circuit to sign and circulate nominating petitions of candidates for that office. Section 7-10(h) provides that a candidate for judicial office must obtain the signatures of "at least 500 qualified primary electors of his or her judicial district or circuit, as the case may be" (Ill. Rev. Stat. 1987, ch. 46, par. 7-10(h)); with respect to circuit court Judgeships, the statute makes no distinction between candidates for resident positions, who run only within their county, and candidates for at-large positions, who must run throughout their circuit (see Thies v. State Board of Elections (1988), 124 Ill. 2d 317, 319 (discussing differences between resident and at-large positions)). Relying on section 7-10(h), the hearing officer concluded that the signatures of voters of Bureau and Grundy Counties, and the signatures on petitions circulated by voters of Bureau and Grundy Counties, were valid and unobjectionable. Those signatures, together with the ones not challenged by the objector, gave the candidate more than the 500 required by statute, and therefore the objector's remaining challenges to the candidate's petitions were moot. The hearing officer also noted, however, without making any express factual findings, that objections to a number of the La Salle County signatures appeared to be well founded. The hearing officer recommended that the candidate's nomination papers be declared valid.

The State Board of Elections reconvened on January 13, 1988, as an electoral board to consider the hearing officer's report and recommendation. At the meeting the objector argued that the hearing officer had erred in relying exclusively on section 7 -- 10(h), and the objector maintained that the provisions of the Election Code, when read in their entirety, compelled a different result. At the Conclusion of the meeting, the State electoral board adopted the hearing officer's recommendation by a vote of 6 to 0; one member was absent.

On January 15, 1988, the State electoral board issued a written decision in the matter, ordering that the objections to the candidate's nomination papers be denied. Like the hearing officer, the electoral board believed that section 7 -- 10(h) of the Election Code authorized voters throughout a judicial circuit to sign and circulate nominating petitions of a candidate for the office of resident circuit Judge. Therefore, candidate Olivero's nominating petitions contained a sufficient number of valid signatures, and the State electoral board accordingly declared the candidate's nomination papers "to be legally valid in whole or substantial part." Inexplicably, the electoral board's January 15 decision also ordered that the candidate's name not be certified for inclusion on the primary election ballot. Four days later, on January 19, the State electoral board issued an amended decision, which ordered certification of the candidate's name for inclusion on the primary ballot. With the exception of that correction, and the correction of a statement in one part of the initial decision misidentifying the objector in this case, the amended decision was identical with the initial decision in all respects.

On January 28, 1988, the objector filed a petition in the circuit court of Cook County for judicial review of the State electoral board's amended decision. The cause was later transferred to the circuit court of Sangamon County on candidate Olivero's motion for a change of venue. The candidate later moved to dismiss the action, arguing that the circuit court lacked subject matter jurisdiction over the cause because the objector had not filed his petition for review within the time allowed by statute. In an order entered on February 22, 1988, the circuit Judge denied the candidate's motion to dismiss the action for lack of subject matter jurisdiction. Also, the Judge affirmed "[t]he decision of the State ...


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