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08/30/94 GAIL DUNHAM v. NAPERVILLE TOWNSHIP

August 30, 1994

GAIL DUNHAM, PETITIONER-APPELLANT,
v.
NAPERVILLE TOWNSHIP OFFICERS ELECTORAL BOARD AND JOHN FRIEDMAN (OBJECTOR), RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 93-MR-138. Honorable Bonnie M. Wheaton, Judge, Presiding.

Rehearing Denied October 3, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Colwell, Bowman, Doyle

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Petitioner, Gail Dunham, was a candidate for election to the office of Naperville Township supervisor at the April 20, 1993, consolidated election. One of the respondents, John Friedman (the objector), filed an objection to petitioner's nominating petitions, and a hearing was held before respondent Naperville Township Officers Electoral Board (the Board). Petitioner was found to have an insufficient number of valid signatures for placement on the ballot. This appeal is taken from an order of the circuit court sustaining the Board's decision. Petitioner raises two issues on appeal, although we address only one in this published opinion: whether, under the Election Code (Code) (10 ILCS 5/1-1 et seq. (West 1992)), an objector must prove his standing as a registered voter as part of his prima facie case. We affirm.

At the hearing, after considering line-by-line objections to some of the signatures on the petitioner's nominating sheets, the Board heard evidence regarding the defective notarization. Marge Panek, petitioner's administrative assistant and a notary public, testified for the objector. Petitioner was the supervisor of Naperville Township when the events in question occurred. Panek stated that on February 5, 1993, she was asked to come into petitioner's office at the Naperville Township Hall and notarize several petition sheets, which had already been signed by the circulators. No one else was present. Panek also testified that she was instructed by petitioner to insert false notarization dates on some of the sheets.

Panek stated that none of the five circulators in question appeared before her and swore to the information contained in the petitions. In the case of a circulator named Laura Mahoney, Panek was additionally asked whether she ever saw Mahoney or had any conversation with her before notarizing her signature on February 5. Panek stated that she had not. On cross-examination, Panek stated that, prior to the petitions being filed on February 8, 1993, Mahoney came to Panek's office, dropped off an envelope addressed to petitioner, and said that she was Laura Mahoney.

Panek further testified that on February 8, 1993, she was again asked to come into petitioner's office and notarize a stack of petitions. This time the petitions were for petitioner and two other candidates, both of whom were present. No one else entered the office. Panek testified that the circulator whose name was on the sheets she notarized for petitioner never appeared before her and swore to the information stated on the petition. The date of notarization was the actual date, February 8, 1993.

At the close of Panek's testimony, the objector rested his case, and petitioner presented a motion to dismiss that was denied in part and taken under advisement in part. The ground for the part of the motion that was denied was that the objector had failed to prove his standing as a registered voter.

Addressing the notary issue as part of her defense, petitioner offered the affidavits of some of the circulators. Two of the affidavits, dated February 18 and 19, 1993, state that the affiants directed Panek to notarize their signatures on each sheet they circulated and that they either signed in her presence or identified their signatures to her. The affidavit of Laura Mahoney, dated February 20, 1993, states that she directed Panek to notarize her signature on each sheet and that she signed in Panek's presence. The final affidavit, dated February 22, 1993, states that the affiant and a circulator named Perry O'Kano circulated sheet number 23 of petitioner's petitions. The affidavit goes on to state:

"After circulation I signed one petition for another candidate, as circulator, and Perry O'Kano signed as circulator for [petitioner]. We directed Marge Panek * * * to notarize signatures on each sheet, and signed in her presence.

Perry O'Kano is presently out of town, however the facts as stated are true."

The Board found that the objection was "duly filed" and that "the evidence demonstrating that the circulators of the subject sheets did not appear before the notary public was more credible than the evidence, if any, demonstrating that the circulators did appear before the notary." Four line-by-line objections were sustained by the Board, along with 97 objections that were related to the notary issue. Petitioner was found to have 351 valid signatures, short of the required 373 signatures, and she was removed from the ballot.

Petitioner filed a petition for judicial review. Following a hearing, the trial court found that the issue of standing must be affirmatively raised by the person objecting to standing in a timely fashion or the objection is waived. The court reversed the Board's decisions as to the four line-by-line objections, finding them against the manifestweight of the evidence. The trial court sustained the Board's decision as to the nominating sheets circulated by five of the six circulators whose sheets were challenged. As to the sheet of Laura Mahoney, the sixth circulator, the court reversed the Board and restored the 15 signatures on Mahoney's sheet to the petition. The court characterized Panek's testimony with regard to Mahoney's sheet as "extremely suspect," while Mahoney's affidavit was found to be "clear and unequivocal." The court determined that "at best, the testimony ...


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