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06/21/96 EILEEN O'CONNOR v. COOK COUNTY OFFICERS

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION


June 21, 1996

EILEEN O'CONNOR, PETITIONER-OBJECTOR-APPELLANT,
v.
COOK COUNTY OFFICERS ELECTORAL BOARD, AND ITS MEMBERS, DAVID ORR (BY HIS DESIGNEE, DANIEL MADDEN), JACK M. O'MALLEY (BY HIS DESIGNEE, DONALD MIZERK), AND AURELIA PUCINSKI (BY HER DESIGNEE, RALPH SCHROEDER); JAMES PATRICK SHEEHAN, CANDIDATE: DAVID D. ORR, IN HIS OFFICIAL CAPACITY AS COUNTY CLERK OF COOK COUNTY; THE BOARD OF ELECTION COMMISSIONERS OF THE CITY OF CHICAGO, ILLINOIS AND ITS MEMBER COMMISSIONERS, MICHAEL HAMBLETT, ARNETTE HUBBARD, AND RICHARD A. COWEN, IN THEIR OFFICIAL CAPACITIES, RESPONDENTS-APPELLEES.

Appeal from the Circuit Court of Cook County. No. 96 CO 44. The Honorable Curtis Heaston, Judge Presiding.

The Honorable Justice Hourihane delivered the opinion of the court: McNULTY, P.j., and Cousins, J., concur.

The opinion of the court was delivered by: Hourihane

The Honorable Justice HOURIHANE delivered the opinion of the court:

In this appeal, we are asked to interpret various provisions of the Election Code as they pertain to the nominating petitions filed on behalf of a candidate seeking nomination in the primary election held on March 19, 1996. The specific challenge to the petitions concerns the propriety of the circulators' verification that they were registered voters during the time the petitions were circulated. The circuit court ruled that the candidate's petitions complied with the Election Code. We affirm.

Background

Petitioner-objector, Eileen O'Connor, challenged the nominating petitions filed by respondent, James Patrick Sheehan, for the office of commissioner of the Metropolitan Water Reclamation District of Greater Chicago. O'Connor claimed that the petitions failed to comply with the statutory requirements of section 7-10 of the Election Code. 10 ILCS 5/7-10 (West 1994). The Cook County Officers Electoral Board denied O'Connor's claim, and O'Connor sought administrative review in the circuit court.

O'Connor argued in the circuit court that Sheehan's name must be stricken from the ballot because Sheehan's nominating petitions did not contain a "circulator's oath" required by section 7-10 of the Election Code. According to O'Connor, the Code mandated that the circulators affirm that they were registered voters of the political division at all times during the circulation of the petitions. Sheehan, on the other hand, pointed out that a verbatim transcription is not required under section 7-10 and that he has complied with all statutory requirements. Sheehan's petitions contained the following affidavit, sworn by each circulator:

(SEE EXHIBIT IN ORIGINAL)

The circuit court affirmed the Board's decision, ruling that Sheehan's petitions fulfilled the statutory requirements.

O'Connor then sought an accelerated review of the circuit court's judgment in this court. Due to the expedited nature of this appeal, we entered an order, without opinion, on March 15, 1996, affirming the circuit court's decision. We now set forth our reasons in detail.

Analysis

Generally, a reviewing court must view an administrative agency's findings and conclusions on questions of fact as prima facie true and correct. 730 ILCS 5/3-110 (West 1994); City of Freeport v. Illinois State Labor Relations Board 135 Ill. 2d 499, 507, 554 N.E.2d 155, 143 Ill. Dec. 220 (1990). A court may reverse the agency's factual findings only if it is clearly evident that the agency should have reached the opposite conclusion. Freeport, 135 Ill. 2d at 507. If the question involved is one of law, such as the interpretation of a statute, the agency's finding receives deference, but the court is not bound by it. Freeport, 135 Ill. 2d at 507.

At issue here is the interpretation of section 7-10 of the Election Code. This provision provides in pertinent part that

"the name of no candidate for nomination *** shall be printed upon the primary ballot, unless a petition for nomination has been filed in his behalf as provided in this Article in substantially the following form:

(SEE EXHIBIT IN ORIGINAL)

The statute then sets forth what information must be included in the contents of the petition. With regard to the circulator's statement, the statute provides that "at the bottom of each sheet of such petition shall be added a statement signed by a registered voter of the political division, who has been a registered voter at all times he or she circulated the petition for which the candidate is seeking a nomination, ***." 10 ILCS 5/7-10 (West 1994). The circulator's statement must "state" certain facts about the circulator and must "certify" other facts relating to the circulation of the petition and the signatures upon it. 10 ILCS 5/7-10 (West 1994).

The dispositive issue here is whether the form of the circulator's affidavit contained in section 7-10 is mandatory. We hold that it is not.

In interpreting statutes, this court must ascertain and give effect to the true intent and meaning of the legislature. Pliakos v. Illinois Liquor Control Commission 11 Ill. 2d 456, 143 N.E.2d 47 (1957). In so doing, we must give the language of the statute its plain and ordinary meaning; in other words, we may not declare that the legislature did not mean what the plain language of the statute imports. Maloney v. Bower, 113 Ill. 2d 473, 479, 498 N.E.2d 1102, 101 Ill. Dec. 594 (1986).

As noted, section 7-10 provides that no candidate's name shall be placed upon the primary ballot unless that candidate has filed a nominating petition "in substantially the following form ***." 10 ILCS 5/7-10 (West 1994) (Emphasis added). The word "substantially" is a relative term and must be interpreted in accordance with its context. Here, "substantially" means in the main, essentially, practically, nearly, almost or virtually. It does not mean identically or exactly alike, and thus does not connote a mandatory obligation as to the form of the affidavit.

If the legislature had intended to require that the nominating petition be in the exact form as set out in section 7-10, it would not have used the word "substantially." This court has the responsibility of interpreting a statute as written and cannot, by judicial fiat, usurp the role of the legislature. Belfield v. Coop, 8 Ill. 2d 293, 134 N.E.2d 249 (1956). Accordingly, we simply may not ignore the import of the word "substantially."

Further support for this interpretation is found in the statutory language which follows the suggested outline in section 7-10. That language requires

"a statement signed by a registered voter of the political division, who has been a registered voter at all times he or she circulated the petition, for which the candidate is seeking a nomination, stating the street address or rural route of the voter *** and certifying that the signatures on that sheet of the petition were signed in his presence; and either (1) indicating the dates on which that sheet was circulated, or (2) indicating the first and last dates on which the sheet was circulated, or (3) certifying that none of the signatures on the sheet were signed more than 90 days preceding the last day for the filing of the petition ***." (Emphasis added.) 10 ILCS 5/7-10 (West 1994).

Thus, section 7-10 requires the circulator either to (i) indicate the dates on which the petition circulated, or (ii) indicate the first and last dates on which the sheet was circulated, or (iii) certify that none of the signatures were made more than 90 days preceding the last day for the filing of the petition. However, the circulator's affidavit set forth in section 7-10 does not contain any language to this effect. Thus, if the form of the affidavit set forth in section 7-10 is viewed as mandatory, section 7-10 would be internally inconsistent. No inconsistency exists, however, if the form is viewed as merely directory or suggestive.

Moreover, O'Connor's interpretation of section 7-10 ignores the rules of English grammar. The word "statement" is the subject of the sentence and is modified by the phrase "signed by a registered voter, who had been a registered voter at all times he or she circulated the petition." Thus, the voter who signs the statement must be (i) a registered voter and (ii) a registered voter at all times during which the petition was circulated. *fn1 However, these qualifications are not included in the list of what the statement must "state" or "certify," which immediately follows the modifying phrase. According to that list, the statement must "state" certain facts about the circulator (his or her address) and "certify[]" other facts relating to the circulation of the petition and the signatures which appear on it. The provision cannot be read to require that the circulator's statement must "state" or "certify" that he or she was a registered voter at the time of circulation.

Finally, this court rejected a similar challenge to nominating petitions which did not contain the circulator's affidavit in the form set out in section 7-10. Madden v. Schumann 105 Ill. App. 3d 900, 435 N.E.2d 173, 61 Ill. Dec. 684 (1982). In Madden, this court held that where, as here, the circulator's oath deviated from the statutory form contained in section 7-10, but nonetheless fully complied with the requirements set forth in a later paragraph of the same section, the candidate was deemed to have satisfied all statutory requirements. Madden, 105 Ill. App. 3d at 901-2.

Madden was decided in 1982, and although the legislature has since amended section 7-10, it has not seen fit to delete the word "substantially" or otherwise indicate that the suggested affidavit is mandatory despite our holding in Madden. The legislature is presumed to know the construction the courts have placed upon a statute and is free to change court interpretations of its legislation. Williams v. Crickman 81 Ill. 2d 105, 111, 405 N.E.2d 799, 39 Ill. Dec. 820 (1980). By amending section 7-10 and retaining the language previously interpreted by this court in Madden, it must be assumed that the legislature intended for the amendment to have the same interpretation previously given. Williams, 81 Ill. 2d at 111. Accordingly, we hold that the form of the affidavit contained in section 7-10 is merely suggestive or directory, not mandatory, and that Sheehan's petitions complied with the requirements of section 7-10.

The judgment of the circuit court is affirmed.

AFFIRMED.

McNULTY, P.J., and COUSINS, J., concur.


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