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Burke v. Electoral Board of Village of Bradley

Court of Appeals of Illinois, Third District

May 24, 2013

CHARLES "CHUCK" BURKE, Petitioner-Appellant,
v.
THE ELECTORAL BOARD OF THE VILLAGE OF BRADLEY, and BRUCE ADAMS, ROBERT REDMOND and GERALD BALTHAZOR, Members, and MICHAEL SMITH, Objector, Respondents-Appellees.

Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois, Circuit No. 13-MR-67, Honorable James B. Kinzer, Judge, Presiding.

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Presiding Justice Wright and Justice McDade concurred in the judgment and opinion.

OPINION

SCHMIDT, JUSTICE

¶ 1 Charles "Chuck" Burke filed nomination papers for the office of village clerk of the Village of Bradley, Illinois, to be elected at the consolidated election to be held on April 9, 2013. Michael Smith filed an objection to those petitions. The Electoral Board of the Village of Bradley (Electoral Board) sustained Smith's objection and ordered that Burke's name shall not be printed on the official ballot. Burke sought review with the circuit court of Kankakee County, which confirmed in part and reversed in part the Electoral Board's decision. Burke appeals, claiming the Electoral Board erred when finding monies due the village from Burke, Montague and Associates, LLC, are attributable to him personally and sufficient to disqualify him from being a candidate. Smith cross-appeals, claiming that the trial court erred in holding that monies due the village by Burke for sewer service are not an arrearage sufficient to disqualify Burke from being a candidate.

¶ 2 BACKGROUND

¶ 3 On December 20, 2102, Charles "Chuck" Burke filed his statement of candidacy seeking the office of village clerk of the Village of Bradley, Illinois. Burke also filed the necessary petitions for nomination containing the adequate number of voters' signatures in support of his candidacy. Thereafter, on January 2, 2013, Michael Smith wrote a letter to Michael LaGesse, the village clerk for the Village of Bradley. The letter voices Smith's "objection to the nominating petition of Charles Burke." The letter indicates that Smith is a resident of the Village of Bradley and characterizes the "nature" of Smith's objection being "that Charles Burke is in arrears in the payment of a tax or other indebtedness due to the Village of Bradley" in violation of section 3.1-10-5(b) of the Illinois Municipal Code (65 ILCS 5/3.1-10-5(b) (West 2010)). Smith's letter does not identify what debt is owed by candidate Burke to the village, how long Burke has been in arrears, or in what amount Burke is in arrears to the village.

¶ 4 The Electoral Board convened on January 14, January 23, and January 25, 2013, for the purpose of hearing Smith's objections. The Electoral Board consisted of Bruce Adams, Gerald Balthazor and Robert Redmond. Burke filed a motion to remove Adams as a member of the Electoral Board. The motion claims that Adams is the chairman of the Friends of Bruce Adams Political Committee and that Smith's "employer and its affiliates have made significant contributions to" Adams' committee. The motion then details $9, 250 in contributions allegedly made to Adams' committee from entities associated with the objector.

¶ 5 The motion further noted that Burke is the only adversary to current village clerk, Mr. LaGesse, and that hearing officer Adams acted as a circulator for Mr. LaGesse, obtaining 50 signatures in support of LaGesse's candidacy. One of the signatures Adams collected for the petitions of Mr. LaGesse is that of the objector, Michael Smith.

¶ 6 The matter proceeded to a hearing, which took place over three days. The record reflects that member Balthazor of the Electoral Board did not attend the first day of the hearing, January 14, 2013. On that day, counsel for the objector requested the Electoral Board issue a subpoena for "the personal sewer bills from the Village of Bradley" for Burke's residence as well as "any and all business records, business applications, licenses issued to Burke, Montague & Associates."

¶ 7 Burke objected to the request for the subpoena, noting that the objector sought records "from today's date backwards." Burke questioned the relevance of bills, fees, or charges generated after the date he filed his petitions. The Electoral Board overruled Burke's objection and allowed the subpoenas to issue.

¶ 8 Also at the original hearing on January 14, 2013, Burke requested "all the documents relating to his claim, " referring to Smith's objection to Burke's candidacy. The Electoral Board's attorney informed Burke that he would be given the documents "at the hearing when we reconvene, " noting Burke will "have any and all documents that the objector wishes to present into evidence at that time." Burke questioned why he would not be given the documents prior to the hearing "unless [Smith's] claim was simply a fishing expedition." The Electoral Board attorney then reiterated that Burke would not be given the documents until the next hearing date. Burke repeatedly objected to having to respond to Smith's allegations on the same date he would be provided documents in support thereof. The Electoral Board Chairman Adams responded to Burke's final objection stating, "Your objection is duly noted. I will ask for a motion to adjourn."

¶ 9 The Electoral Board reconvened on January 23, 2013. All three members of the Board appeared at this hearing. The hearing began discussing pending motions, including Burke's motion to dismiss and motion to force the recusal of Adams. While the attorney for the Electoral Board noted Smith filed a written response to Burke's motions, Burke stated that he had not received the response. The Electoral Board then provided Burke the response. Burke, again, noted that he had not been provided any documentation regarding alleged debts in arrears to the village prior to the hearing. As such, he indicated that "anything brought up here I believe is an unfair surprise."

¶ 10 In Smith's response to Burke's motion seeking to force Chairman Adams' recusal, Smith does not deny that his employer and its affiliates have donated ample sums to Adams' political committee. Smith simply notes that he "is an individual and, obviously, his employer is a distinct and separate entity." As the parties argued the motions, Smith's attorney acknowledged that "Mr. Smith is the president" of the entities contributing to Adams' political committee but "they were a business entity." The Electoral Board denied Burke's motion, noting that "being a political adversary toward a candidate is insufficient to require the removal of an electoral board member." The Electoral Board did not address Burke's concerns voiced in his motion regarding the fact that affiliates of the objector contributed to Adams' political committee.

¶ 11 When the hearing continued, the objector called Danielle Dugan to testify. Ms. Dugan is the "village sewer clerk." She testified that sewer services "were provided [to Burke], but there was no sewer bill." She acknowledged that five days prior to the hearing, she prepared a document showing Burke owed $1, 456.52 for sewer services, but never sent it to Burke as she "wasn't told to send anything to [Burke]." She was "just told to prepare it."

¶ 12 Dugan was asked if she was familiar with section 54-110 of the Village of Bradley Code of Ordinances titled, "Billing procedures and penalties." Village of Bradley Code of Ordinances § 54-110 (eff. Apr. 28, 2008). She indicated that she "wouldn't know the codes." Chapter 54 applies to the village's utilities. Burke noted that section 54-110 states, "User charges for sewage services established by this article shall be made monthly for all customers. Each bill when rendered shall be due and payable within 15 days of the billing date, after which a penalty of two percent shall be ...


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