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10/10/97 DARYL CRUDUP v. JAMES E. SIMS

October 10, 1997

DARYL CRUDUP, PLAINTIFF-APPELLANT,
v.
JAMES E. SIMS, CANDIDATE FOR THE OFFICE OF ALDERMAN OF THE THIRD WARD OF HARVEY, ILLINOIS, NICHOLAS E. GRAVES, MAYOR, GWENDOLYN L. DAVIS, CITY CLERK, AND FRANK PIEKARSKI, INDIVIDUAL MEMBERS OF THE HARVEY MUNICIPAL OFFICERS ELECTORAL BOARD, AND DAVID ORR, COOK COUNTY CLERK, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 97 CO 47. The Honorable Michael J. Murphy, Judge Presiding.

Released for Publication November 26, 1997.

The Honorable Justice Hourihane delivered the opinion of the court. Hartman, P.j., concurs. Hoffman, J., specially concurring.

The opinion of the court was delivered by: Hourihane

The Honorable Justice HOURIHANE delivered the opinion of the court:

Plaintiff, Daryl Crudup, and defendant, James E. Sims, were both candidates for election to the office of Alderman of the Third Ward of the City of Harvey, Illinois. Plaintiff filed a complaint for declaratory and injunctive relief seeking to keep defendant's name off the ballot, alleging that defendant filed a false statement of economic interests in violation of section 4A-107 of the Governmental Ethics Act (Ethics Act). 5 ILCS 420/4A-107 (West 1996). The circuit court ruled that it was without authority to order defendant's name off the ballot and plaintiff appealed. 155 Ill. 2d R. 301. This court considered the matter on an expedited basis and, in a separate order, affirmed the judgment of the circuit court. Our reasons therefor now follow.

As a preliminary matter we consider defendant's motion to strike portions of plaintiff's reply brief. Defendant asserts that plaintiff's reply contains improper record and legal citations and false and misleading misstatements of fact contrary to Supreme Court Rule 341(e)(6) and (7). 155 Ill. 2d R. 341. The motion is denied. That is not to say that this court adopts plaintiff's construction of the record or the law but merely that for purposes of this appeal plaintiff's reply brief will stand.

The sole issue on appeal is whether a court has the authority to order a candidate's name off the ballot where the candidate has willfully filed a false statement of economic interests. We conclude that it does not.

Section 4A-101 of the Ethics Act mandates that persons who are candidates for nomination or election to an office in a unit of local government must file verified written statements of economic interests. 5 ILCS 420/4A-101(g) (West 1996). Such disclosures are intended to avoid any conflict of interest between the government and its officers and employees and to instill in the public trust and confidence in its elected officials. Stein v. Howlett, 52 Ill. 2d 570, 578, 289 N.E.2d 409 (1972). Failure to timely file a statement of economic interests renders the candidate's nomination papers invalid (10 ILCS 5/10-5(3) (West 1994)), and may also result in ineligibility for, or forfeiture of, office (5 ILCS 420/4A-107 (West 1996)). See also Ill. Const. 1970, art. XIII, ยง 2.

Here, we are not faced with a candidate's total failure to file. Rather, plaintiff alleges that defendant filed a statement which is false and incomplete and that any misrepresentation was intentional.

The Ethics Act requires a candidate to file a statement which, to the best of his knowledge and belief, is true, correct and complete. 5 ILCS 420/4A-104 (West 1994). A candidate who willfully files a false or incomplete statement of economic interests shall be guilty of a Class A misdemeanor. 5 ILCS 420/4A-107 (West 1996). The candidate may also be subject to prosecution for perjury under the Election Code. 10 ILCS 5/29-10 (West 1994); Troutman v. Keys, 156 Ill. App. 3d 247, 252, 509 N.E.2d 453, 108 Ill. Dec. 757 (1987). Significantly, there is nothing in the Election Code, the Ethics Act, or the Illinois Constitution which provides for a noncriminal sanction for the willful filing of a false statement of economic interests. Troutman v. Keys, 156 Ill. App. 3d at 252.

Plaintiff argues that section 10-5 of the Election Code, when read in conjunction with section 4A-107 of the Ethics Act, makes it clear that where a candidate willfully files a false or incomplete statement, the candidate's nomination papers are invalid and removal of his name from the ballot is appropriate. We disagree with plaintiff's construction of these two statutes.

As previously noted, section 4A-107 of the Ethics Act sets forth the criminal sanction which attaches to the willful filing of a false or incomplete statement of economic interests. No provision is made for removal of a candidate's name from the ballot or for any other noncriminal sanction.

Similarly, nothing in section 10-5 of the Election Code persuades us that the relief plaintiff seeks is available. Section 10-5 provides in relevant part:

"Nomination papers filed under this Section are not valid if the candidate named therein fails to file a statement of economic interests as required in the Illinois Governmental Ethics Act in relation to his candidacy with the appropriate officer by the end of the period ...


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