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Gary Crossman v. the Board of Election Commissioners of

February 29, 2012

GARY CROSSMAN,
PETITIONER-APPELLANT,
v.
THE BOARD OF ELECTION COMMISSIONERS OF THE CITY OF CHICAGO, SITTING AS THE DULY CONSTITUTED ELECTORAL BOARD TO HEAR AND PASS UPON OBJECTIONS TO THE
NOMINATION PAPERS OF CANDIDATES FOR THE OFFICE OF STATE
SENATOR, 12TH LEGISLATIVE DISTRICT, COOK COUNTY FOR THE MARCH 20, 2012, GENERAL PRIMARY ELECTION IN THE COUNTY OF COOK, STATE OF ILLINOIS, AND ITS MEMBERS, LANGDON D. NEAL, RICHARD A. COWEN AND MARISEL A. HERNANDEZ AND RAUL MONTES, JR., RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 12 COEL 5 Honorable Robert W. Bertucci, Judge Presiding.

The opinion of the court was delivered by: Justice Murphy

JUSTICE MURPHY delivered the judgment of the court, with opinion. Justices McBride and Quinn concurred in the judgment and opinion.

OPINION

¶ 1 Petitioner Gary Crossman appeals from an order of the circuit court of Cook County dismissing his petition for judicial review of the decision of the Board of Election Commissioners for the City of Chicago (Board) overruling his objections to the nomination papers of Raul Montes, Jr., candidate for nomination of the Democratic Party for the office of State Senator for the 12th Legislative District of the State of Illinois at the general primary election to be held on March 20, 2012. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 On December 9, 2011, petitioner filed a verified objector's petition to the nomination papers of Montes in which he asserted that some of the signatures included therein were forged and that other signatures were of people who were not registered voters within the district or had signed the papers multiple times. Petitioner also asserted that the papers were circulated by Montes and demonstrated a pattern of fraud and disregard of the Illinois Election Code (Code) (10 ILCS 5/1 et seq. (West 2010)) such that all the pages of signatures included therein should be invalidated. Petitioner further asserted that Montes's statement of candidacy was invalid because changes were made to it after it had been signed and notarized.

¶ 4 The Board conducted an examination of the voter registration records, and its petition summary report indicates that 1,000 signatures were required for placement on the ballot, that Montes obtained 1,750 signatures, that 572 of those signatures were invalid, and that 1,178 signatures were valid. A hearing officer then conducted a hearing at which Montes testified that he personally obtained all of the signatures in his nominating petition and that David Donahue made minor changes to his statement of candidacy before it was notarized. In response to a question about a couple of signatures that were invalidated by the Board, Montes further testified that, as best as he could recall, each person signed his or her own name. Donahue, an election consultant, testified that he reviewed Montes's statement of candidacy on December 3, 2011, informed Montes that he thought it contained a couple of deficiencies, and asked Montes if he wanted him to correct them. Montes agreed, and Donahue made changes to the document by circling the word "nomination" in two places, adding the letters "th" to the number 12 in two places, circling the word "city" once, and writing the words "Legislative District" in the box marked "District." Donahue further testified that the statement had already been notarized when he reviewed it and made changes to it.

¶ 5 The hearing officer entered a report recommending that Montes not be placed on the ballot because his statement of candidacy was invalid where Donahue made changes to it after it had been signed and notarized and Montes failed to sign and notarize the statement again after the changes had been made. The hearing officer also found that Montes's nominating petition contained a sufficient number of valid signatures and that petitioner had not proved that Montes had engaged in a pattern of fraud or acted with the guilty knowledge required to establish fraud where he testified that, to the best of his knowledge, the signatures in his petition were genuine.

¶ 6 Montes filed a motion requesting the Board reverse that portion of the hearing officer's recommendation directing that he not be placed on the ballot because his statement of candidacy was invalid, and the Board subsequently entered a decision overruling petitioner's objections to Montes's nomination papers and directing that Montes's name be placed on the ballot. In doing so, the Board found that Montes's statement of candidacy was in substantial compliance with the Code prior to Donahue's changes. The Board also adopted the hearing officer's recommended findings and conclusions of law as to petitioner's claim that Montes had engaged in a pattern of fraud.

¶ 7 Petitioner then filed a petition for judicial review and a supporting memorandum of law with the circuit court of Cook County in which he asserted that Montes had engaged in a pattern of fraud and that his statement of candidacy was invalid. In his response, Montes asserted that petitioner had failed to establish his claims and requested the court impose sanctions against him because his petition was filed in bad faith and without a sufficient basis in fact or law. The court then entered an order denying petitioner's petition and declining to impose sanctions.

¶ 8 ANALYSIS

¶ 9 On appeal from a circuit court's review of a decision of an electoral board made pursuant to the Code, this court will review the decision of the board, and not the court. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 212 (2008). In determining whether Montes had engaged in a pattern of fraud and whether his statement of candidacy was invalid because changes were made to it after it had been signed and notarized, the Board was required to examine the legal effect of a given set of facts, and we therefore review its decision under the clearly erroneous standard of review. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998). A decision is clearly erroneous where the entire record leaves the reviewing court with the definite and firm conviction that a mistake has been made. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001).

¶ 10 I. Pattern of Fraud

¶ 11 Petitioner first contends that Montes's nomination petition should be invalidated because he engaged in a pattern of fraud and false swearing in obtaining the signatures included therein. Pursuant to the Code, each page of signatures in a nominating petition must include a circulator statement certifying that the signatures on that page were signed in the circulator's presence and are genuine. 10 ILCS 5/7-10 (West 2010). The requirements set forth in section 7-10 of the Code are mandatory, and signatures collected in violation of those requirements are invalid. Bowe v. Chicago Electoral Board, 79 Ill. 2d 469, 470 (1980). Where the signature sheets of a nominating petition submitted by a circulator evidence a pattern of fraud, false swearing, and total ...


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