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Jakstas v. Koske

October 15, 2004

PETER F. JAKSTAS, PLAINTIFF-APPELLEE,
v.
NANCY KOSKE, AS CHAIRPERSON OF THE ELECTORAL BOARD OF THE VILLAGE OF FOX LAKE, NOEL WORKING, AS MEMBER OF THE ELECTORAL BOARD OF THE VILLAGE OF FOX LAKE, TED BESKO, AS MEMBER OF THE ELECTORAL BOARD OF THE VILLAGE OF FOX LAKE, AND THE ELECTORAL BOARD OF THE VILLAGE OF FOX LAKE DEFENDANTS
(MATTHEW KOVAR, AS OBJECTOR, DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Lake County. No. 04-MR-860. Honorable Terrence J. Brady, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

PUBLISHED

Following a hearing, the Electoral Board of the Village of Fox Lake (Board) sustained an objection filed by defendant Matthew Kovar challenging the sufficiency of a citizen's public question referendum petition. Plaintiff, Peter Jakstas, sought judicial review. The circuit court of Lake County reversed the decision of the Board, ordering that the public question be placed upon the November 2004 ballot. On appeal, Kovar argues that the referendum petition sheets were neither securely bound nor consecutively numbered, as required by section 28--3 of the Election Code. 10 ILCS 5/28--3 (West 2002). We reverse.

I. BACKGROUND

The Village of Fox Lake board of trustees adopted an ordinance authorizing the issuance of up to $4,950,000 in general obligation alternate revenue bonds to aid in the financing of a proposed Fox Lake hotel and water park. Jakstas, and other citizens of Fox Lake, circulated a public question petition seeking to have the ordinance submitted to a vote of the people of Fox Lake at the November 2004 general election. Jakstas filed the petition with the Fox Lake clerk's office on June 29, 2004. The petition's numerous sheets contained 643 signatures, which exceeded the 417 signatures required to place the question on the ballot.

On July 7, 2004, Kovar filed an objector's petition with the Board. Kovar's petition challenged the sufficiency of Jakstas' petition and sought to keep the public question off of the November 2004 ballot. Kovar's numerous objections included that the petition was not securely bound and that the petition sheets were not consecutively numbered, both in violation of section 28--3 of the Election Code. 10 ILCS 5/28--3 (West 2002).

At a Board hearing, Jakstas testified regarding his actions in submitting the petition. Jakstas stated that, before filing, he collected all of the signature sheets from the other citizen circulators, grouped the sheets by circulator, and then paper-clipped each circulator's sheets together. Further, Jakstas indicated that each group of sheets from an individual circulator was paper-clipped separately. The sheets from circulators who had completed only one were not paper-clipped or bound to any of the other sheets. Carol Ward, Fox Lake deputy clerk, testified that, after Jakstas gave her the signature sheets, she removed the paper clips, stamped and photocopied each sheet, and then fastened all of the sheets together with a large binder clip.

Jakstas also stated that he numbered the sheets, again by individual circulator. For example, the sheets from a circulator turning in seven were numbered "1 of 7," "2 of 7," etc. Sheets from circulators turning in only one were numbered "1 of 1."

On July 23, 2004, the Board issued its written findings and order overruling 16 of Kovar's 17 objections, including his objection that the petition was not securely bound. The Board sustained Kovar's objection that the pages were not consecutively numbered as required by section 28--3. Because it sustained the page-numbering objection, the Board invalidated every signature on the petition.

Pursuant to section 10--10.1 of the Election Code (10 ILCS 5/10-- 10.1 (West 2002)), Jakstas sought judicial review of the Board's decision, filing a three-count complaint in the Lake County circuit court on July 30, 2004. Count I requested review of the Board's order sustaining Kovar's page-numbering objection. Counts II (challenging the constitutionality of the Board proceedings) and III (alleging a violation of the Open Meetings Act (5 ILCS 120/1 et seq. (West 2002))) were dismissed. The court also considered Kovar's request to reverse the Board's order overruling his objection that the petition sheets had not been securely bound.

Using the standard of substantial compliance, the trial court agreed with the Board in part, finding that the petition pages had been securely bound. The court disagreed, however, with the Board's sustaining Kovar's objection that the pages had not been consecutively numbered. The court reversed the Board's final decision invalidating the petition's signatures and ordered the revenue bond ordinance placed on the November 2004 ballot and put to a vote of Fox Lake citizens. Kovar filed a timely notice of appeal.

II. ANALYSIS

This court granted expedited consideration of the case, pursuant to Supreme Court Rule 311 (155 Ill. 2d R. 311). We review the Board's decision rather than the judgment of the trial court. Bergman v. Vachata, 347 Ill. App. 3d 339, 344 (2004). Factual findings of an electoral board are considered prima facie true and correct. King v. Justice Party, 284 Ill. App. 3d 886, 888 (1996). Such factual findings will not be overturned unless they are against the manifest weight of the evidence. King, 284 Ill. App. 3d at 888. However, in reviewing a question of law, such as the interpretation of a statute, the standard of review is de novo. Brennan v. Kolman, 335 Ill. App. 3d 716, 719 (2002). While we give great deference to the determinations of the Board as to the weight of the evidence and the credibility of the witnesses, we are not bound by the Board's interpretation of statutory law. See King, 284 Ill. App. 3d at 888.

In a provision regarding the required form of a petition for public question, section 28--3 of the Election Code states that petition sheets "before being filed with the proper officer or board shall be bound securely and numbered consecutively." 10 ILCS 5/28--3 (West 2002). Legislative directives containing the word "shall" are typically interpreted to be mandatory. Brennan, 335 Ill. App. 3d at 719. If a statute imposes requirements and expressly states that the failure to fulfill those requirements renders the subject proceeding void, courts are generally bound to interpret the statute as mandatory. Brennan, 335 Ill. App. 3d at 719. Section 28--3 contains such an express statement, directing that, "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 2002). Because section 28--3 imposes ...


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