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May 5, 1994


Appeal from the Circuit Court of Du Page County. No. 93-MR-88. Honorable S. Keith Lewis, Judge, Presiding.

Inglis, Bowman, Quetsch

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

Petitioner, Gloria Reyes (the candidate), appeals the order of the circuit court of Du Page County, denying her petition for the judicial review of the actions of the respondent, Bloomingdale Township Electoral Board (the Board). On February 8, 1993, the candidate petitioned for nomination as an independent candidate for the office of Township Supervisor on the ballot of the regular election to be held on April 20, 1993. On February 12, 1993, respondent Phyllis Stapinski (the objector) filed an objection to the candidate's nominating papers.

The Board conducted a hearing on the objection on February 20, 1993. During this hearing, the Board allowed the objector to amend her objection after the candidate had rested her case. After the close of the evidence, the Board examined the signature cards of the registered voters and consulted with counsel. The Board reconvened on February 22, 1993, and sua sponte reopened the proofs as to 12 signatures. After examining the additional signatures, the Board rendered its decision, finding invalid 206 of the 886 signatures presented by the candidate. Because the number of valid signatures required for placement on the ballot was 685, the Board denied the candidate a place on the ballot for lack of five signatures.

The candidate petitioned for judicial review on March 2, 1993. She initially pointed out a mathematical error, as the number of signatures removed did not coincide with the record of the proceedings. The objector conceded this point as to two signatures, leaving the petition three signatures short of ballot eligibility. The trial court heard the arguments on the petition for review on March 22, 1993. The court denied the petition, finding without elaboration that the ruling of the Board was "consistent with the manifest weight of the evidence." This timely appeal followed.

Initially, we address the respondents' motion to dismiss this appeal on the ground of mootness. We ordered this motion to be taken with the case and briefed by the parties. A case is moot where no actual controversy exists or where it has become impossible for a court to grant effective relief. Stephens v. Education Officers Electoral Board, Community College District No. 504 (1992), 236 Ill. App. 3d 159, 161, 177 Ill. Dec. 572, 603 N.E.2d 642.

The Board contends that the occurrence of the election on April 20, 1993, renders this case moot, because the court can no longer grant effective relief. The candidate argues that the case should be excepted from the mootness doctrine, because the issues involved are capable of repetition and evasive of review. She also argues that because the court can order a special election, the case is not moot.

A court may resolve an otherwise moot issue if the issue involves a substantial public interest. (Bonaguro v. County Officers Electoral Board (March 18, 1994), No. 74907, slip op. at 2.) This public interest exception requires a clear showing that (1) the question is public in nature; (2) an authoritative determination is desirable for the guidance of public officers; and (3) the question will likely recur. Bonaguro, No. 74907, slip op. at 2; In re A Minor (1989), 127 Ill. 2d 247, 257, 130 Ill. Dec. 225, 537 N.E.2d 292.

The present case meets this test. First, ballot access is a substantial right and not lightly to be denied. ( Welch v. Johnson (1992), 147 Ill. 2d 40, 56, 167 Ill. Dec. 989, 588 N.E.2d 1119.) Second, electoral boards are creatures of statute (Election Code) (10 ILCS 5/1-1 et seq. (West 1992)), endowed with no power beyond what the Election Code (the Code) enumerates. ( Kozel v. State Board of Elections (1988), 126 Ill. 2d 58, 68, 127 Ill. Dec. 714, 533 N.E.2d 796; Maske v. Kane County Officers Electoral Board (1992), 234 Ill. App. 3d 508, 510, 175 Ill. Dec. 582, 600 N.E.2d 513.) Case law interpreting the Code with respect to the issues presented here is sparse, and election boards dispose of similar issues inconsistently. (See Ross v. Philip (Circuit Court Du Page County), No. 92-MR-36; Objection to Petition of Oury (Du Page County Officers Electoral Board), March 25, 1991, unnumbered.) Thus, an authoritative determination is desirable.

Finally, this inconsistency among electoral boards, coupled with the frequency of objections to nominating petitions, demonstrates that these issues are capable of repetition. We therefore deny respondents' motion to dismiss the appeal and address the merits under the public interest exception to the mootness doctrine.

The candidate contends that the Board erred in (1) striking 38 signatures because the notary date preceded the signature dates; (2) striking 23 signatures because they "looked funny"; and (3) allowing the objector to amend her objection to add new objectionable signatures. Judicial review of the decision of an electoral board is intended to remedy arbitrary or unsupported decisions. ( Keating v. Iozzo (1987), 155 Ill. App. 3d 774, 776, 108 Ill. Dec. 342, 508 N.E.2d 503.) Decisions as to questions of fact will not be disturbed if they are consistent with the manifest weight of the evidence. Keating, 155 Ill. App. 3d at 776.

The review of a question of law, however, is independent and not deferential. ( Stephens, 236 Ill. App. 3d at 161.) The trial court found the Board's decision on these objections to be consistent with the manifest weight of the evidence. These issues, however, present questions of law, not fact, and should have been reviewed de novo.

The candidate first argues that because the Code does not require each elector's signature to be dated, the fact that 38 signatures on several sheets bore dates later than the dates of the notary signatures bears no relevance to their validity. Section 10-4 of the Code requires each circulator of a nominating petition to certify before a notary public that the signatures on the sheets of the petition she circulated were genuine and were signed in her presence by duly registered voters of the appropriate political subdivision. (10 ILCS 5/10-4 (West 1992).) This section also requires that each signer must sign in her proper person only and include her residential address. No date is required. 10 ILCS 5/10-4 (West 1992).

The circulator's affidavit is one of the primary safeguards of the integrity of the nominating process. ( Huskey v. Municipal Officers Electoral Board (1987), 156 Ill. App. 3d 201, 204, 108 Ill. Dec. 859, 509 N.E.2d 555.) Notarization is mandatory, and signatures bearing dates subsequent to the notary date are invalid. ( Jones v. Dodendorf (1989), 190 Ill. App. 3d 557, 560-61, 137 Ill. Dec. 468, 546 N.E.2d 92.) Thus, although dates are not required for each signature on a petition sheet, where the signatures are dated, these dates must not succeed the notary date. Therefore, the 38 signatures bearing dates subsequent to the notary date were properly stricken.

Section 10-9 of the Code provides for the creation of electoral boards, and section 10-10 authorizes these boards to "decide whether or not the certificate of nomination or nomination papers or petitions on file are valid or whether the objections thereto should be sustained." (10 ILCS 5/10-9, 10-10 (West 1992).) These petitions are to be signed "by the qualified voters in their own proper persons only." (10 ILCS 5/10-4 (West 1992).) The objector asserted, and the Board agreed, that 23 signatures on the candidate's petition were not signed by qualified voters in their proper persons only, because the signatures "looked funny" and did not exactly match the signature cards in the records of the registrar of voters.

As noted above, electoral boards possess only the powers endowed to them by the Election Code. ( Kozel, 126 Ill. 2d at 68; Maske, 234 Ill. App. 3d at 510.) Unauthorized actions are void. ( Caldwell v. Nolan (1988), 167 Ill. App. 3d 1057, 1063, 118 Ill. Dec. 720, 522 N.E.2d 175.) Nowhere does the Code authorize the Board to strike signatures on the basis of penmanship. Such authority does not logically derive from the power to decide the validity of petitions. The Code empowers electoral boards to subpoena witnesses and documents and to hear and consider evidence. (10 ILCS 5/10-10 (West 1992).) It does not authorize a board to conduct a handwriting analysis. We note that none of these alleged signers was called to refute her signature.

Section 3-1.2 provides that a person is eligible to sign a nominating petition who at the time of signing is registered to vote at the address shown opposite the signature on the petition. (10 ILCS 5/3-1.2 (West 1992).) The Code does not require good penmanship or the ability to reproduce one's signature as it appears in the Registrar's records. The striking of 23 signatures on the basis of handwriting is therefore void.

Nor does the Code authorize an electoral board to allow amendments to the objection. The Board argues that a hearing before it is just like a trial, and in a trial the pleadings may be amended at any time prior to the entry of the judgment. Again, the Board is a creature of statute. ( Kozel, 126 Ill. 2d at 68; Maske, 234 Ill. App. 3d at 510.) It may only allow amendments to the objection where it is authorized by statute to do so. (See Caldwell, 167 Ill. App. 3d at 1061; Pearce Hospital Foundation v. Illinois Public Aid Comm'n (1958), 15 Ill. 2d 301, 307, 154 N.E.2d 691.) The Code does not authorize amendments to the objection, and therefore the Board's action in so doing is void.

The record before us does not clearly indicate how many signatures were stricken as a result of the amendment. Nevertheless, our holding that 23 signatures were wrongly stricken for penmanship demonstrates that the Board should not have denied the candidate her rightful place on the ballot, where it incorrectly found her petition to be insufficient by five signatures.

"In the event any court of competent jurisdiction declares an election void, the court may order another election without regard to the schedule of elections set forth in this Article." (10 ILCS 5/2A-1(e) (West 1992).) We declare the April 20, 1993, election of the Supervisor of Bloomingdale Township void as a result of the Board's wrongful interference with the candidate's right of access to the ballot.

We therefore reverse the decision of the trial court and order the Board to conduct a special election for the office of Township Supervisor in conjunction with the regular election scheduled for November 1994. The winner of this special election shall serve as Township Supervisor until next election of the office regularly scheduled in accordance with section 2A-33 of the Code (ILCS 5/2A-33 (West 1992)).

Motion to dismiss denied; trial court reversed; special election ordered.

BOWMAN and QUETSCH, JJ., concur.


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