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Brennan v. Kolman

November 27, 2002

WILFRED BRENNAN, ANTHONY R. CATANZARO, LINDA D. STEVANOVICH AND THE VILLAGE OF BROOKFIELD, AN ILLINOIS MUNICIPAL CORPORATION, PETITIONERS-APPELLANTS,
v.
JUDITH KOLMAN, ERIC PECK AND ROBERT HODGE, CONSTITUTING THE MUNICIPAL OFFICERS ELECTORAL BOARD OF THE VILLAGE OF BROOKFIELD; MARK PASQUESI, INDIV.; AND DAVID ORR, AS COOK COUNTY CLERK, RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Cook County Honorable Susan Fox Gillis, Judge Presiding.

The opinion of the court was delivered by: Justice Gallagher

UNPUBLISHED

This expedited appeal involves the validity of petitions seeking to place two referenda on the ballot of the Village of Brookfield (the Village) for the November 5, 2002, general election. The Municipal Officers Electoral Board of the Village of Brookfield (the Electoral Board) found that the petitions substantially complied with section 28-3 of the Election Code (10 ILCS 5/28-3 (West Supp. 2001)) (the Code). The circuit court affirmed the Electoral Board's decision. The Village and three individuals *fn1 (to whom we refer collectively in this appeal as the petitioners) have appealed the circuit court's ruling. We affirm the judgment of the circuit court.

In July 2002, several citizens of Brookfield circulated petitions seeking the placement of two "back door" referenda on the ballot for the November 5 general election. Section 28-2(f) of the Code defines a "back door" referendum as "the submission of a public question to the voters of a political subdivision, initiated by a petition of voters or residents of such political subdivision, to determine whether an action by the governing body of such subdivision shall be adopted or rejected." 10 ILCS 5/28-2(f) (West 2000). The two referenda proposed in Brookfield asked that the Village submit to the voters the question of whether the Village should issue $10,850,000 in general obligation bonds and $1,900,000 in taxable general obligation refunding bonds.

The petitions were to be signed by registered and legal voters of the Village and filed with the Village. The circulators of the petitions obtained petition forms from the Village and collected a sufficient number of signatures for each referendum. The petitions include the following circulators' affidavits below the description of the nature of the petition and the voters' signatures and addresses:

"I, (circulator's name), of (circulator's address), Brookfield, Cook County, Illinois, do hereby certify that signatures on this petition were signed in my presence within said Village and are genuine, and that no signatures on the foregoing petition were signed more than 90 days preceding the last day for the filing of the petition, and that their respective addresses are correctly stated herein.

Signed and sworn to before me on this (date) by /s/ (circulator's signature).

(signature of notary public) Notary Public My commission expires: (date) (notary seal)"

After the petitions were filed, the Village raised several objections, including that: (1) the petition circulators did not properly attest that those who signed the petition were registered voters; and (2) the circulators' affidavits at the bottom of each petition were improperly signed. Following a hearing, the Electoral Board found that the petition forms complied with the Code and that the circulators' affidavits sufficiently indicated the circulators intended to attest to the petitions' veracity. The trial court affirmed the Electoral Board's decision, finding "substantial and sufficient compliance" with the Code.

This court has granted expedited consideration of this case under Supreme Court Rule 311 (155 Ill. 2d R. 311). In reviewing an electoral board decision in a case involving questions of law, such as the interpretation of a statute, our standard of review is de novo. Bill v. Education Officers Electoral Board of Community Consolidated School District No. 181, 299 Ill. App. 3d 548, 550-51, 701 N.E.2d 262, 264 (1998).

Petitioners' first contention is that the circulators' affidavits failed to state that those who signed the petition were registered voters. They argue that section 28-3 of the Code is mandatory, not directory. That section reads, in relevant part:

"At the bottom of each sheet of such petition shall be added a circulator's statement, signed by a person 18 years of age or older who is a citizen of the United States, stating the street address or rural route number, as the case may be, as well as the county, city, village or town, and state; certifying that the signatures on that sheet of the petition were signed in his or her presence and are genuine, and that to the best of his or her knowledge and belief the persons so signing were at the time of signing the petition registered voters of the political subdivision or district or precinct or combination of precincts in which the question of public policy is to be submitted and that their respective residences are correctly stated therein." 10 ILCS 5/28-3 (West Supp. 2001).

We agree with petitioners that the requirement that the circulator of a petition attest that the signers were registered voters is mandatory. See Watson v. Howard, 322 Ill. App. 3d 562, 565, 749 N.E.2d 427, 429 (2001) ("shall" in legislative provision generally interpreted to be mandatory); Schumann v. Kumarich, 102 Ill. App. 3d 454, 457-58, 430 N.E.2d 99, 101 (1981). If a statute imposes duties and expressly states that the failure to perform those duties renders the proceeding void, courts are generally bound to interpret those provisions as mandatory; however, the statute is directory if it merely provides that certain procedures should be done in a particular time and manner "and does not declare that their performance is essential to the validity of the proceeding." People ex rel. Village of Grayslake v. Village of Round Lake Beach, 242 Ill. App. 3d 750, 756, 609 N.E.2d 1061, 1066 (1993). We construe section 28-3 to be mandatory since it includes the following sentence, "No signature shall be valid or be counted in considering the validity or sufficiency of such petition unless the requirements of this Section are complied with." 10 ILCS 5/28-3 (West Supp. 2001).

However, substantial compliance can satisfy even a mandatory provision of the Code. King v. Justice Party, 284 Ill. App. 3d 886, 890, 672 N.E.2d 900, 903 (1996). In Sakonyi v. Lindsey, 261 Ill. App. 3d 821, 634 N.E.2d 444 (1994), this court discussed the purpose of the circulator's ...


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