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Bergman v. Vachata

March 12, 2004


[6] Appeal from the Circuit Court of Cook County Honorable Robert W. Bertucci, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Gallagher

[8]  This case is an appeal of a final order of the circuit court of Cook County affirming the order of the Village of Lyons Municipal Electoral Board (the Electoral Board) directing that a public question be printed on the ballot for the March 16, 2004, primary election in the Village of Lyons (Village). The public question is a back door referendum that would allow the citizens of the Village to vote regarding the issuance of $4 million in alternative revenue bonds. The public question proponents gathered the requisite number of signatures on the petition. This appeal involves the validity of the petition seeking to place the back door referendum on a ballot. Petitioner, Catherine Bergman, appeals the decision of the circuit court of Cook County affirming the decision of the Electoral Board allowing the referendum to be placed on the ballot for the Village of Lyons' primary election to be held on March 16, 2004. We affirm the judgment of the circuit court and affirm the decision of the Electoral Board.

[9]  BACKGROUND *fn1

[10]   The Village board of trustees of the Village of Lyons, an Illinois municipal corporation, passed an ordinance authorizing the issuance of alternate revenue bonds in the amount of $4 million for a development to be built in the Village. Subsequently, respondent Antoine Parker (the proponent), and other unidentified proponents filed petitions seeking the placement of a back door referendum on the ballot. A "back door referendum" is "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); see also Brennan v. Kolman, 335 Ill. App. 3d 716, 718, 781 N.E.2d 644, 645 (2002). Because the bonds' principal and interest may be paid from ad valorem property taxes upon all taxable property in the Village of Lyons, the Illinois legislature has given the citizens of a municipality the right to subject the issuance of such bonds to a back door referendum. 30 ILCS 350/15 (West 2000). Thus, the petitions here sought to challenge the $4 million bond issue and submit the question to the voters as to whether the Village should be allowed to issue the bonds.

[11]   On October 15, 2003, petitioner filed a verified objector's petition alleging that the referendum petition did not contain the necessary 389 required signatures and failed to meet various requirements of the Illinois Election Code (the Election Code) (10 ILCS 5/1-1 et seq. (West 2002)). The objections included the following: (1) petition signatures were not genuine; (2) some of the signers resided outside of the district; (3) signers were not registered voters; (4) there were duplicate signatures; (5) there was a pattern of fraud; (6) circulators were not present when the petitions were signed; (7) the county of the signers was omitted, (8) the petitions lacked a circulator's signature; (9) the word "knowledge" was omitted in the circulator's affidavit; (10) the composition of the Electoral Board included two members who should have been removed because of bias; (11) the petitions lacked the address of a circulator; and (12) a circulator omitted a county.

[12]   On October 22, 2003, a hearing was held, at which petitioner declined the opportunity to present evidence or make any legal argument to five of these objections. She offered no evidence to prove her allegations regarding a pattern of fraud, a circulator's address, a circulator's county, the circulators not witnessing the signing of the petitions, or omission of the signers' county.

[13]   As to the 232 objections to petition signatures, the omission of the word "knowledge" in the circulator's affidavit, and the allegation that the petitions were not signed by the circulators, the Electoral Board held several hearings to weigh the evidence presented and the legal arguments between the dates of October 22, 2003, and December 18, 2003.

[14]   As respondents note, the first ruling made by the Electoral Board was to adopt the "Rules for Hearings and Decisions of the Duly Constituted Electoral Board for the Hearing and Passing upon of Objections to Petitions for Public Questions to be Placed on the Ballot in the Village of Lyons, Cook County, Illinois" (the Board Rules). Petitioner did not enter an objection.

[15]   Paragraph 5 of the Board Rules expressly states as follows:

[16]   "The objector shall present his/her case in chief after the consideration of such preliminary motions. The objector shall bear the burden of presenting evidence sufficient to support a decision sustaining the objection. The applicable evidentiary threshold shall be a 'preponderance of the evidence.' "

[17]   Thus, the Board Rules clearly place the burden of proof on petitioner to prove her objections.

[18]   On November 17, 2003, after much delay due to the fire at 69 W. Washington Street in Chicago, the parties participated in a binder check, which is used to initially determine the validity of objections to individual signatures and circulators. The binder checker for the Cook County clerk sustained 188 of the 232 objections. The Cook County clerk sustained objections as to "signature not genuine signature of purported voter" where the petition signatures were printed or where the clerk believed the signature on the petition differed in any way from the signature on the voter registration signature cards. Approximately 66 of the objections were sustained by the binder checker because the signer had printed his/her signature on the petitions and signed in cursive on the voter registration cards. Respondents concede that the Cook County clerk's sustaining of the objections then shifted the burden of proof onto the proponent to rehabilitate 56 names because 389 signatures were needed for ballet access.

[19]   The proponent entered several exhibits into evidence which included affidavits of signers, selected registration records, selected binder check signatures, the Cook County voter registration list, and "Rehabilitation of Signatures--Matching of Petition Signatures to Binder Review Report." Along with these exhibits and the original petitions, the Electoral Board reviewed, one by one, the signatures that were objected to by petitioner and sustained by the binder check. Petitioner entered no affidavits or witness testimony or any evidence to counter the proponent's evidence. The Electoral Board rehabilitated 61 of the signatures. The Electoral Board found that 394 valid petition signatures had been filed, five signatures more than the 389 required.

[20]   Petitioner called one witness, Steven Mazur, to the stand who testified as follows:

[21]   "Q. Did you see Maureen and John Jacobson sign?

[22]   A. Yes, I did.

[23]   Q. And did they each sign their own?

[24]   A. Yes, they did.

[25]   Q. Did you do an affidavit for them? Did you go back to their

[26]   home?

[27]   A. I ...

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