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Edward Samuelson v. Cook County Officers Electoral Board

April 27, 2012


Appeal from the Circuit Court of Cook County No. 12 COEL 08 The Honorable Judge Catherine Zaryczny Presiding.

The opinion of the court was delivered by: Justice J. Gordon


JUSTICE J. GORDON delivered the judgment of the court, with opinion.

Presiding Justice Epstein and Justice McBride concur in the judgment and opinion.


¶ 1 Objector, Edward Samuelson, filed an objector's petition to the nomination papers of the candidate, Tommy Brewer, as a candidate for the Democratic Party nomination for the office of judge of the Cook County Circuit Court, 7th Judicial Subcircuit (Starks Judicial Vacancy) in the March 20, 2012 general primary election. Samuelson argued that because a single petition sheet for a different candidate seeking a different office was included in Brewer's papers, Brewer's candidacy was invalid. The Cook County Officers Electoral Board (the Board) overruled Samuelson's objections and Samuelson filed a petition for judicial review. The circuit court affirmed the Board's decision and Samuelson appealed. For the reasons that follow, we affirm the decision of the Board.


¶ 3 On November 28, 2011, Brewer filed his nomination papers for the Starks Judicial Vacancy for the March 20, 2012 Democratic general primary election. Included with his papers were 428 consecutively numbered pages of petition sheets containing a total of 4,242 signatures. Each page, with one exception, contained space for 10 signatures, as well as uniform page headings and signature lines. Page 176 of Brewer's petition sheets contained 15 signatures and designated another candidate, Nichole C. Patton, running for a different judicial office, namely, "Judge of the Circuit Court to fill the vacancy of the Honorable Margaret O'Mara Frossard," in the March 20, 2012 primary. Brewer states that this page was inadvertently included in his nomination papers.

¶ 4 Samuelson filed an objector's petition challenging Brewer's candidacy on December 12, 2011. In addition to contesting the validity of a number of individual signatures in Brewer's nomination papers, the final paragraph of his objector's petition stated:

"Pursuant to Illinois law in the Election Code, the page numbers of the candidate's nomination petitions must be consecutively numbered. The petition sheets presented by this candidate contained a sheet number 176 which is not a nomination petition for this candidate, but rather is a nomination petition for a candidate Nicole C. Patton seeking a countywide circuit court vacancy of the Hon. Margaret O'Mara Frossard. The petition sheets of this candidate are therefore in violation of the law as that they are not consecutively numbered petition pages for this candidate for this vacancy. All petition sheets after the petition sheet for this candidate numbered 175 must be stricken and held for naught in their entirety. The candidate taste [sic] on the allegations of this Objector's Petition would not have enough valid signatures contained on the first 175 pages of the nomination petitions he submitted to qualify to be placed upon the ballot."

¶ 5 Brewer's nomination papers were subjected to a records examination held between January 6-9, 2012. The examiners sustained objections to 3,003 signatures out of 4,242 submitted, leaving Brewer with 1,239 valid signatures, 239 more than the 1,000 signatures required for a valid petition. Both parties then submitted briefs to the Board on the issue of page 176. The parties both agreed at oral argument before the Board that the signatures on page 176 were not included in Brewer's 1,239 signature total. The Board then voted unanimously to adopt the findings of the examiners as to the number of valid signatures in Brewer's nomination papers, but overruled Samuelson's objection that the presence of a non-conforming petition page ought to disqualify Brewer's entire candidacy. The Board held that the presence of page 176 did not render Brewer's candidacy invalid and that his petition substantially complied with the Election Code (10 ILCS 5/1-1 to 30-3 (West 2008)). The Board therefore ordered that Brewer's name be printed on the primary election ballot.

¶ 6 Samuelson timely sought judicial review of the Board's decision in the circuit court.

There, he argued that the Board erred in applying a substantial compliance standard to page 176 when it should have applied a strict compliance standard in order to preserve the integrity of the petition process. He further alleged, in the alternative, that if substantial compliance was the proper standard, the Board nevertheless improperly applied it to Brewer's papers. He finally argued that page 176 risked disenfranchising its signatories by depriving the candidate whom they intended to support of the benefit of their signatures, stating "the rights of voters must trump Brewer's right to ballot access." Affirming the decision of the Board, the circuit court held that because the requirements of the Election Code "may be only substantially, and not strictly, complied with as long as the violations are technical in nature and do not prevent a fair election," and because Brewer's nomination papers were in substantial compliance, there was "no clearly erroneous error in the Electoral Board's decision to overrule the objections of [Samuelson] and allow [Brewer] to be placed on the ballot." It is this decision which Samuelson now appeals.


¶ 8 On appeal, Samuelson reiterates his primary arguments made before the circuit court, namely, that the Board failed to apply the proper standard, strict compliance, to Brewer's nomination papers, and that even if the standard applied by the Board was the correct one, Brewer's nomination papers nevertheless failed to substantially comply with the Election Code. He further alleges the trial court erred by upholding the Board's decision because the inclusion of page 176 disenfranchised the 15 voters who signed that page, thereby violating their constitutional rights. He finally contends, for the first time on this appeal, that due to the presence of page 176, Brewer's nomination papers were not in apparent conformity with the Election Code and, therefore, never should have been certified by the county clerk.

¶ 9 Brewer, on the other hand, first argues that this court lacks subject matter jurisdiction to consider several of Samuelson's arguments that were not initially alleged in his objector's petition. He further argues that the Board did not err when it determined the proper standard of review to be substantial compliance, rather than strict compliance, and subsequently found Brewer's petition to be in substantial compliance with the Election Code. Brewer also asserts that his nomination papers were in apparent conformity with the Election Code when filed and therefore cannot now be challenged. He finally argues that the inclusion of page 176 in his petition did not result in disenfranchisement or constitutional violations. For the reasons that follow, we affirm the decision of the Board.

¶ 10 A. Standard of Review

¶ 11 On appeal, we are required to review the Board's, rather than the circuit court's, decision.

Lockhart v. Cook County Officers Electoral Board, 328 Ill. App. 3d 838, 841 (2002). The Board's findings of fact are deemed prima facie true and correct and will not be overturned unless they are against the manifest weight of the evidence; its findings of law are not binding on this court and will be reviewed de novo. Cinkus v. Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210-11 (2008). Decisions on mixed questions of law and fact, such as the Board's application of a legal standard to Brewer's nomination papers, will only be reversed if they are clearly erroneous. Cinkus, 228 Ill. 2d at 211. A decision is clearly erroneous when a reviewing court holds a "definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Cinkus, 228 Ill. 2d at 211.

¶ 12 B. Substantial Compliance

ΒΆ 13 Samuelson primarily contends that the Board failed to apply the proper standard, strict, rather than substantial compliance, to Brewer's petition, and thus improperly ruled that it complied with the Election Code. He argues that section 7-10 of the Election Code, which provides that petition sheets should meet certain formalistic requirements in "substantially the following form," nevertheless also provides for certain substantive requirements which must be strictly complied with. See 10 ILCS 5/7-10 (West 2008). Before we consider this argument, we must address Brewer's contention that we lack subject matter jurisdiction over this issue because Samuelson's claims that Brewer's entire candidacy should be invalidated based on the inclusion of page 176 were never validly raised in his objector's petition, which only alleged invalid numbering and an insufficient number of signatures. For ...

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