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Girot v. Keith

July 11, 2003

RICHARD GIROT, PETITIONER-APPELLANT,
v.
KENNETH KEITH, OBJECTOR; MUNICIPAL OFFICERS ELECTORAL BOARD OF THE CITY OF BRAIDWOOD; KATHLEEN HEBERER, INDIVIDUALLY AND AS A MEMBER OF THE ELECTORAL BOARD; HOMER COLE, INDIVIDUALLY AND AS A MEMBER OF THE ELECTORAL BOARD; AND SUE GRYGIEL, INDIVIDUALLY AND AS A MEMBER OF THE ELECTORAL BOARD, RESPONDENTS-APPELLEES



Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois No. 03-MR-39 Honorable Herman S. Haase Judge, Presiding

The opinion of the court was delivered by: Justice Lytton

PUBLISHED

Richard Girot filed nominating petitions for mayor of the City of Braidwood. Kenneth Keith filed several objections to the petitions alleging their insufficiency. The Municipal Officers Electoral Board of the City of Braidwood ("Board") sustained Keith's objections. Girot sought judicial review, and the trial court affirmed the Board's decision. We affirm.

Richard Girot filed a statement of candidacy and petitions with Braidwood city clerk Sue Grygiel, seeking his placement on the ballot for a mayoral election in the City of Braidwood. The city was holding a consolidated primary election for the position on February 25, 2003 and a consolidated election on April 1, 2003. The statement of candidacy asserted that Girot was seeking to be a candidate for mayor in the election to be held January 27, 2002.

Two weeks after Girot submitted his petitions, Keith objected to them, asserting that Girot failed to specify the date of the election in which he sought candidacy, that Girot failed to specify whether he sought inclusion in the primary or the general election, and that Girot failed to bind his petitions. Keith asserted that these deficiencies in the petitions invalidated them.

As city clerk, Grygiel normally sits on the Board to hear and decide objections to election petitions. Girot moved to have her removed from the Board because she had personally received his petitions and would be testifying regarding whether they had been bound. He asserted that, as a witness, her position on the Board would violate his right to due process. The Board denied his motion.

At the hearing on the objections, Grygiel testified that she personally received Girot's petitions. She stated that they were not bound in any way when she received them, but that she recalled putting them in a paper clip. Girot testified that the papers were already paper clipped together when he filed them. He also stated that Grygiel had stapled them together, but admitted that he could not find any staple marks in the petitions.

The Board sustained Keith's objections and held that Girot's name would not be placed on the ballot. The Board noted that it found Grygiel's testimony credible, but also stated that it would find that Girot had not complied with the election code even if he had paper clipped the petitions together. The Board also held that Girot's failure to indicate the proper date of the election on his statement of candidacy and petitions independently supported its decision.

On judicial review, the trial court affirmed the Board's ruling. The trial court held that the Board's decision was not against the manifest weight of the evidence.

On appeal, Girot asserts that Grygiel's membership on the Board violated his fourteenth amendment right to due process, and that he is therefore entitled to a new hearing. He also asserts, in the alternative, that the Board incorrectly held that his petitions were not properly bound and were improperly completed.

We agree that Girot's due process rights were adversely affected by Grygiel's simultaneous status as witness and fact finder. It is a well-settled principle of law that due process requires that a party appearing before an administrative tribunal be judged by an unbiased decision maker. Ryan v. Landek, 159 Ill. App. 3d 10, 12 (1987). Girot was not afforded that right in this case. Instead, he was placed in the unenviable position of presenting testimony contradictory to that of a witness who would then retire with the other two board members to determine the credibility of the witnesses. Suggesting that Grygiel was unbiased, when she was required to weigh her own credibility against another witness', stretches our credulity. The Board should have removed Grygiel before the hearing.

However, our resolution of the due process violation does not end our analysis. Because Girot claims that Grygiel's dual role at the hearing violated his fourteenth amendment due process rights, we further assess the error under the harmless error standard. See People v. Jefferson, 227 Ill. App. 3d 491, 496 (1992). If the error did not affect the outcome of the hearing, then it is not reversible error. See Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). If it is clear that Girot did not comply with section 10-4 of the Illinois Election Code (Code)(10 ILCS 5/10-4 (West Supp. 2003)), then the error was harmless.

Section 10-4 of the Code states:

"No signature shall be valid or be counted in considering the validity or sufficiency of [a] petition unless the requirements of this Section are complied with. *** [Petition] 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 ...


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