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Glen R. Weber v. Winnebago County Officers Electoral Board

February 24, 2012


Appeal from the Circuit Court of Winnebago County. Nos. 12-MR-6 ) 12-MR-33 Honorable Brian D. Shore, Judge, Presiding.

The opinion of the court was delivered by: Justice Birkett

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Hutchinson concurred in the judgment and opinion.


¶ 1 Plaintiff, Glen R. Weber, appeals the trial court's order affirming the decision of the Winnebago County Officers Electoral Board (Board) denying plaintiff's objection to the petition for nomination filed by defendant David M. Gill. Plaintiff also appeals the trial court's order reversing the decision of the Board denying the motion of defendant Joseph P. Bruscato to strike plaintiff's objection to Bruscato's nominating petition. For the reasons stated below, we affirm the trial court's judgments.


¶ 3 We note at the outset that Gill has filed a motion to correct a typographical error on page 16 of his appellee's brief. We grant that motion. Additionally, the Board has filed a motion to join in Gill's appellee's brief. Bruscato has filed his own brief, but the Board states in its motion that it takes no position on Bruscato's arguments. We grant the motion of the Board to join in Gill's brief.

¶ 4 We proceed to the background facts. On December 12, 2011, plaintiff filed two objector's petitions pursuant to section 10-8 of the Election Code (10 ILCS 5/10-8 (West 2010)). The petitions challenged, respectively, the statements of candidacy filed by Bruscato and Gill for nomination as party candidate for Winnebago County State's Attorney. Each statement of candidacy was in the following form:

"I, _____ (Name of Candidate) being first duly sworn (or affirmed), say that I reside at _____, in the City[,] Village, Unincorporated Area (circle one) of _____ (if unincorporated, list municipality that provides postal service) Zip Code _____, in the County of _____, State of Illinois; that I am a qualified voter therein and am a qualified Primary voter of the _____ Party; that I am a candidate for Nomination/Election to the office of _____ in the _____ District, to be voted upon at the primary election to be held on _____, (date of election) and that I am legally qualified (including being the holder of any license that may be an eligibility requirement for the office to which I seek the nomination) to hold such office and that I have filed (or I will file before the close of the petition filing period) a Statement of Economic Interests as required by the Illinois Governmental Ethics Act and I hereby request that my name be printed upon the official _____ (Name of Party) Primary ballot for Nomination/Election for such office." (Emphasis added.)

(The emphasized language is the subject of this appeal, as will be explained shortly.) In the blank for "Name of Party," Bruscato wrote "Democratic" and Gill "Republican."

¶ 5 Plaintiff's objector's petitions asserted that both statements of candidacy failed to comply with section 7-10 of the Election Code (10 ILCS 5/7-10 (West 2010)) because neither Gill nor Bruscato represented that he possessed an Illinois law license when he filed his nominating petition. Plaintiff noted that section 7-10 provides that a statement of candidacy "shall state that the candidate *** is qualified for the office specified (in the case of a candidate for State's Attorney it shall state that the candidate is at the time of filing such statement a licensed attorney-at-law of this State)." 10 ILCS 5/7-10 (West 2010). Each objector's petition requested as relief that the named individual not appear on the ballot for nomination as the party candidate. The petition against Bruscato requested that he not appear on the "primary ballot for nomination as a Republican candidate for State's Attorney of Winnebago County" (emphasis added), yet Bruscato's statement of candidacy requested that he appear on the "Democratic" ballot. It was on this ground that Bruscato subsequently moved to strike the objector's petition against him.

¶ 6 On December 19, 2011, the Board held a hearing on the objector's petitions and on Bruscato's motion to strike. Plaintiff made an oral motion "to amend" his petition against Bruscato to state that the relief sought was that Bruscato not appear on the ballot for nomination as a Democratic candidate. Subsequently, the Board issued a written decision. As an initial matter, the Board denied plaintiff's motion to amend, reasoning that "the Election Code does not grant [the] Board authority to allow amendment to Petitions or other documents once filed with the County Clerk." However, the Board characterized plaintiff's inaccurate representation of Bruscato's party status as "an inadvertent scrivener's error" that was "de minimis and should be disregarded by [the] Board." Accordingly, the Board denied Bruscato's motion to strike.

¶ 7 Proceeding to address the objector's petitions on their merits, the Board denied both petitions, reasoning that each statement of candidacy "sufficiently recites that the Candidate is licensed as required by the law and also adequately sets out the statement thereof as required by section 7-10 of the Election Code."*fn1

¶ 8 Plaintiff filed an action in the trial court for judicial review. The court held a hearing on January 12, 2012, and later issued a written decision. The trial court agreed with the Board that the Election Code did not allow plaintiff to amend his petition against Bruscato. The court disagreed with the Board, however, that the misidentification of Bruscato's party was de minimis, rather finding it "substantial." Thus the court refused to overlook the misidentification. Determining that the petition, as presently worded, sought relief that was "irrelevant," the court struck the petition. Thus the court reached the merits only of the petition against Gill. On that issue, the court noted that the petition followed the form language provided in section 7-10 itself. The court acknowledged that the form language contains only a general statement that all licensing requirements for candidacy are met, whereas section 7-10 elsewhere states that candidates for State's Attorney must represent that they have Illinois law licenses. The court said: "[T]he use of the form language was, quite arguably, not strict compliance with the statute, though the statute is poorly drafted to include specific language in the same sentence as the provided form containing the more general language."

The court ultimately concluded that Gill's use of the form language constituted substantial compliance with section 7-10 and ...

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