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Bendell v. Education Officers Electoral Board For School District 148

March 28, 2003

JAMES E. BENDELL, PLAINTIFF-APPELLEE,
v.
EDUCATION OFFICERS ELECTORAL BOARD FOR SCHOOL DISTRICT 148 AND ITS MEMBERS, ERNESTO E. MICKENS, JR., WILLIAM K. SMITH, AND MATHIAS W. DELORT; AND LUCILLE MALONE, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. No. 03 COEL 0037 Honorable Susan Fox Gillis, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice South

UNPUBLISHED

This appeal arises from an order of the circuit court reversing a decision of the Education Officers Electoral Board for School District 148 (Board) and ordering that plaintiff's name appear on the ballot for an election to be held on April 1, 2003. Inasmuch as the election is due to be held on April 1, 2003, and inasmuch as a prompt and speedy decision is required, this court has allowed an expedited appeal. The essential facts are as follows: On January 13, 2003,

plaintiff, James E. Bendell, filed his nominating petitions, statement of candidacy, loyalty oath, and statement of economic interests for the position of member of the Board of Education of School District 148. Those documents, which totaled somewhere between 6 and 8 pages, were clipped together with a large paper clip. On January 28, 2003, defendant-objector Lucille Malone filed her verified objector's petition against plaintiff's nominating papers claiming that plaintiff had failed to meet the requirements of the Illinois Election Code (Code) in that the petitions and nominating papers were not securely bound in book form.

Subsequent to a hearing and arguments, the Board voted 2-1 that plaintiff failed to comply with the statutory requirements of the Code by paper clipping his nomination papers together and ordered his name not to appear on the ballot for the April 1, 2003, non-partisan election.

Thereafter, plaintiff filed a petition for judicial review in the circuit court of Cook County. Following briefing and oral arguments, the court ruled that the Board's decision was against the manifest weight of the evidence, that plaintiff's nominating petitions "substantially complied" with the provisions of the Code, and that plaintiff's name shall appear on the April 1, 2003, ballot.

Defendants have filed the instant appeal raising a single issue: (1) whether section 10-4 of the Illinois Election Code requiring that nominating petitions shall be neatly fastened together in book form in a secure and suitable manner is satisfied through the doctrine of substantial compliance when the candidate uses a paper clip to secure those documents.

Plaintiff has filed a cross-appeal which has raised two issues: (1) whether the decision of the Board was against the manifest weight of the evidence; and (2) whether the Board has jurisdiction to bring this appeal.

Before we address the issue of whether a paper clip can satisfy the requirements stated in section 10-4 of the Illinois Election Code, we must decide whether the Board and its members have standing to appeal the circuit court's reversal of the Board's decision.

The appellate court in Kozenczak v. Du Page County Officers Electoral Bd., 299 Ill. App. 3d 205, 207, 700 N.E.2d 1073, 1074 (1998), specifically dealt with this issue. The court found that the Election Code does not expressly or implicitly authorize the Board to assume the role of advocate for the purpose of prosecuting an appeal. See 10 ILCS 5/1-1 et seq. (West 1996); Kozenczak, 299 Ill. App. 3d at 207. Instead, the Election Code only authorizes the Board to conduct hearings, administer oaths, subpoena and examine witnesses, subpoena documentary evidence, and pass upon objections to nomination petitions and objections to petitions for the submission of questions of public policy. See 10 ILCS 5/10-9, 10-10, 28-4 (West 1996); Kozenczak, 299 Ill. App. 3d at 207. The court further held that the Board functions in an adjudicatory or quasi-judicial capacity, and that to allow the Board to assume the role of advocate would compromise the Board's required duty of impartiality. Kozenczak, 299 Ill. App. 3d at 207. The court further stated that the Board was not a party before an administrative agency, nor was it personally aggrieved by the reversal of its decision. Kozenczak, 299 Ill. App. 3d at 207. We find the reasoning in Kozenczak to be persuasive and conclude, therefore, that the Board lacks standing to prosecute this appeal.

That holding, however, does not dispose of defendant-objector Malone's standing to prosecute this appeal. In Kozenczak, the court held that while the objector had standing to prosecute the appeal, he had not filed an appellant's brief. Pursuant to its discretion under Supreme Court Rule 343, the court dismissed his appeal. In the instant case, however, Malone filed her notice of appeal separate and apart from the Board on March 12, 2003, and her appellant's brief on March 18, 2003. Therefore, we find that Malone has standing to prosecute this appeal.

We next address the issue as to whether the requirements stated in section 10-4 of the Illinois Election Code (10 ILCS 5/10-4 (West 1993)), that nominating petitions be fastened together in book form in a secure and suitable manner, may be satisfied through the doctrine of substantial compliance when the candidate uses a single large paper clip to bind the nomination papers.

Section 10-4 states in pertinent part:

"ยง 10-4. Form of petition for nomination. All petitions for nomination under this Article 10 for candidates for public office in this State, shall in addition to other requirements provided by law, be as follows: Such petitions shall consist of sheets of uniform size ***. Such sheets, before being presented to the electoral board or filed with the proper officer of the electoral district or division of the state or municipality, as the case may be, shall be neatly fastened together in book form, by placing the sheets in a pile and fastening them together at one edge in a secure and suitable manner, and the sheets shall then be numbered ...


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