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Atkinson v. Schelling

Court of Appeals of Illinois, Second District

April 9, 2013

KORY ATKINSON, Petitioner-Appellant,
v.
JIM SCHELLING; THE VILLAGE OF ROSELLE MUNICIPAL OFFICERS' ELECTORAL BOARD; JOSEPH BONGIORNO, Member; KEVIN MILLON, Member; BARBARA HOCHSTADT, Chairperson; THE DU PAGE COUNTY ELECTION COMMISSION; and THE COOK COUNTY CLERK, Respondents-Appellees. KORY ATKINSON, Petitioner-Appellant,
v.
JAMES "JIM" BANKS; THE VILLAGE OF ROSELLE MUNICIPAL OFFICERS' ELECTORAL BOARD; JOSEPH BONGIORNO, Member; KEVIN MILLON, Member; BARBARA HOCHSTADT, Chairperson; THE DU PAGE COUNTY ELECTION COMMISSION; and THE COOK COUNTY CLERK, Respondents-Appellees.

Held [*]

Petitioner’s objections that the nomination papers of two candidates for mayor in a village election did not have the required number of signatures were properly overruled by the electoral board, since the doctrine of estoppel applied where both candidates reasonably relied on information provided by the village clerk as to the number of signatures required, and even if estoppel did not apply, the candidates demonstrated a minimum appeal to the voters such that denying them access to the ballot would penalize both the candidates and the voters.

Appeal from the Circuit Court of Du Page County, Nos. 13-MR-125, 13-MR-126; the Hon. Bonnie M. Wheaton, Judge, presiding.

Kory A. Atkinson, of Law Office of Kory Atkinson, of Bloomingdale, for appellant.

Diane J. Blair, of Villa Park, for appellee James Banks.

Justices Birkett and Spence concurred in the judgment and opinion.

OPINION

McLAREN, JUSTICE

¶ 1 Petitioner, Kory Atkinson, appeals from two separate orders of the trial court affirming decisions of the Village of Roselle Municipal Officers' Electoral Board (Electoral Board) overruling objections to the nomination papers of Jim Schelling[1] and James "Jim" Banks[2](Candidates) for mayor of Roselle in the April 9, 2013, election. This court granted petitioner's motion to accelerate the appeal. We consolidated these cases on appeal. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 The following facts are not contested. The Candidates timely filed nomination papers to have their names appear on the ballot in the April 9, 2013, consolidated election, for the office of mayor of the Village of Roselle. Schelling's papers contained 110 signatures and Banks's papers contained 105 signatures. Petitioner filed separate objections to the Candidates' nominating papers, arguing that the papers did not contain the minimum number of signatures required by section 10-3 of the Illinois Election Code (Election Code) (10 ILCS 5/10-3 (West 2010)). Section 10-3 of the Election Code provided in relevant part:

"Nominations of independent candidates for public office within any district or political subdivision less than the State, may be made by nomination papers signed in the aggregate for each candidate by qualified voters of such district, or political subdivision, equaling not less than 5%, nor more than 8% (or 50 more than the minimum, whichever is greater) of the number of persons, who voted at the next preceding regular election in such district or political subdivision in which such district or political subdivision voted as a unit for the election of officers to serve its respective territorial area." 10 ILCS 5/10-3 (West 2010).

¶ 4 Petitioner argued that 5% of the number of persons who cast ballots in the Village of Roselle in the April 5, 2011, consolidated election equaled 123 signatures. Petitioner argued that the Candidates' names should not appear on the ballot because their nomination papers failed to include the minimum number of signatures and were, thus, invalid.

¶ 5 During the Electoral Board hearing, the Candidates testified that in filing their nomination papers they relied on a letter from Roselle village clerk, Patty Burns (Village Clerk). The letter stated in part:

"It is the candidate's responsibility to be knowledgeable of all election requirements, filing dates and other election related information. This packet is being provided as a courtesy from the Village Clerk's office. You should seek legal counsel to ...

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