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Steven M. Rosenzweig v. Illinois State Board of Elections

April 7, 2011

STEVEN M. ROSENZWEIG,
PETITIONER-APPELLEE,
v.
ILLINOIS STATE BOARD OF ELECTIONS, SITTING AS THE STATE OFFICERS ELECTORAL BOARD, ITS MEMBERS BRYANHONORABLE SCHNEIDER, CHAIRMAN, AND MEMBERS ALBERT PORTER, JESSE R. SUSAN FOX GILLIS, SMART, WANDA L. REDNOUR, ROBERT J. WALTERS, PATRICK A. JUDGE PRESIDING. BRADY, WILLIAM M. MCGUFFAGE AND JOHN R. KEITH, RESPONDENTS, (CYNTHIA R. HEBDA, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Cook County No. 09 CO EL 066

The opinion of the court was delivered by: Justice Gallagher

PRESIDING JUSTICE GALLAGHER delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.

OPINION

On November 2, 2009, respondent-appellant, Cynthia R. Hebda, filed nominating petitions for the Republican nomination for Representative in the General Assembly for the 59th Representative District with the State Officers Electoral Board (Board). In response to an objector's petition filed by petitioner-appellee, Steven M. Rosenzweig, the Board determined that although Hebda signed a nominating petition for a Democratic candidate, her nomination papers were valid. The circuit court of Cook County reversed the Board's decision and ordered that Hebda's name be removed from the ballot for the February 2, 2010, primary election. Hebda appealed. On January 19, 2010, this court entered a one-page order affirming the judgment of the circuit court and stating that a written opinion or order of the court would follow. The Illinois Supreme Court stayed this court's order on January 28, 2010, and issued a supervisory order on November 24, 2010, directing us to vacate our order and reconsider in light of Hossfeld v. Illinois State Board of Elections, 238 Ill. 2d 418 (2010), and provide a written opinion in support of our judgment. For the reasons that follow, we affirm the judgment of the circuit court.

BACKGROUND

Hebda describes herself as a long-time Republican and states that she has voted in every Republican primary since 1998 and has never voted in a Democratic primary. In September of 2009, Hebda signed a nominating petition for Carol Sente. The petition stated that Sente was running as a Democratic candidate for the office of State Representative for the 59th Representative District in the General Assembly. It also stated that the undersigned were members of and affiliated with the Democratic party and were qualified primary electors of the Democratic party. Hebda states that she informed the person who was circulating the petition that she was a Republican voter and that he responded that any registered voter could sign the petition.

Hebda also states that in late October of 2009, she made a decision to run for the office of State Representative for the 59th Representative District in the General Assembly. She signed her own nominating petition in late October, as well as a statement of candidacy on November 1, 2009, in which she declared that she was a qualified primary elector of the Republican party. On November 2, 2009, Hebda filed her nominating petitions with the Board. Rosenzweig filed an objector's petition on the grounds that Hebda was not a qualified primary elector of the Republican party because she signed a nominating petition for a Democratic candidate.

A hearing was held before the Board on November 25, 2009. The record contains the hearing examiner's report and recommendations as well as the recommendation of general counsel. The hearing examiner found that by signing Sente's petition, Hebda affiliated herself with the Democratic party. Citing Cullerton v. Du Page County Officers Electoral Board, 384 Ill. App. 3d 989 (2008), the hearing examiner concluded that an individual may have a maximum of one party affiliation for each election cycle. The hearing examiner also cited Watkins v. Burke, 122 Ill. App. 3d 499 (1984), for the proposition that the first signature is valid and subsequent conflicting signatures are invalid. The hearing examiner recommended that the Board sustain the objector's petition and that Hebda's name not be printed on the ballot.

General counsel did not concur with the hearing examiner's recommendation. General counsel concluded that the effect of the Cullerton decision was that a vote in the primary election locks a person in to that party affiliation until the next primary election. Because Hebda voted in the Republican primary election in 2008, general counsel concluded that she was locked in to the Republican Party, notwithstanding her signature on a Democratic candidate's petition. General counsel recommended that the Board overrule the objector's petition.

The Board determined that by voting in the Republican primary in 2008, Hebda was at all times "locked in" to the Republican party affiliation until the 2010 primary election. The Board ordered that Hebda be certified for the 2010 general primary election ballot. The circuit court reversed, finding that section 8-8 of the Illinois Election Code (Election Code) (10 ILCS 5/8-8 (West 2008)) prohibits signing a petition for a candidate and being a candidate in the primary of more than one party.

Hebda filed a notice of appeal, and her motion to expedite was granted by this court. On January 19, 2010, this court issued an order affirming the judgment of the circuit court. The order stated that an opinion or order of the court would follow. Hebda filed a petition for leave to appeal with the Illinois Supreme Court. On January 28, 2010, the supreme court issued an order staying the circuit court and appellate court orders. On November 24, 2010, the supreme court entered a supervisory order, directing this court to vacate its judgment and reconsider in light of Hossfeld v. Illinois State Board of Elections, 238 Ill. 2d 418 (2010). Rosenzweig v. Hebda, 238 Ill. 2d 674 (2010) (table).

ANALYSIS

As an initial matter, this court takes judicial notice of the fact that the 2010 primary election is over and Hebda was unsuccessful in her bid for the office of State Representative. However, this does not render the appeal moot. This appeal raises an election law issue that is inherently a matter of public concern and is reviewable under the public interest exception to the mootness doctrine. Lucas v. Lakin, 175 Ill. 2d 166, 170 (1997). Thus, we will consider the merits of this appeal.

An electoral board is treated as an administrative agency, and thus, the standard of review is determined by the type of question on review. Hossfeld, 238 Ill. 2d at 423. The decisions of both the Board and the circuit court address the interpretation of the restrictions placed on a qualified party elector in section 8-8 of the Election Code (10 ILCS 5/8-8 (West 2008)). An interpretation of the meaning of the language in a statute constitutes a pure question of law and this court's review is therefore ...


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