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Board of Education of Du Page High School District 88 v. Pollastrini

Court of Appeals of Illinois, Second District

August 29, 2013

THE BOARD OF EDUCATION OF Du PAGE HIGH SCHOOL DISTRICT 88 and THE BOARD OF EDUCATION OF SALT CREEK SCHOOL DISTRICT 48, Plaintiffs-Appellees,
v.
LAURA POLLASTRINI, in her official capacity; TIMOTHY WHELAN, in his official capacity; JAMES SHEHEE, in his official capacity; GENE CAMPBELL, in his official capacity; JOSEPH WOZNIAK, in his official capacity; MARTHA J. RODGERS, in her official capacity; GLORIA SCIGOUSKY, in her official capacity; THE Du PAGE COUNTY REGIONAL BOARD OF SCHOOL TRUSTEES; NANCY BARNHARDT, SHELLY BLEDSOE, STEVEN BOUCHER, JOHN GEAREN, BENJAMIN KLOSTERMAN, ELLIOT LEWIS, KEITH LOPATKA, KATHLEEN OCZAK, ANN SCOTT, and BRETT SIMONS, Collectively Known as the Committee of Ten; THE BOARD OF EDUCATION OF BUTLER SCHOOL DISTRICT 53; and THE BOARD OF EDUCATION OF HINSDALE TOWNSHIP HIGH SCHOOL DISTRICT 86, Defendants-Appellants.

Appeal from the Circuit Court of Du Page County, Nos. 11-MR-152, 11-MR-897 Honorable Bonnie M. Wheaton, Judge, Presiding.

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justice Hutchinson concurred and specially concurred, with opinion. Justice Birkett specially concurred, with opinion.

OPINION

SCHOSTOK JUSTICE

¶ 1 This case involves a detachment petition affecting the Timber Trails-Merry Lane Subdivision (Timber Trails) in Oak Brook. The subdivision is located directly south of Roosevelt Road and is bordered by the Yorkshire Woods to the east and the Oak Brook shopping center to the west. The subdivision has been sending children to Salt Creek School District 48 (District 48) and Willowbrook High School District 88 (District 88) for more than 30 years. On September 8, 2010, pursuant to the Illinois School Code (School Code) (105 ILCS 5/1-1 et seq. (West 2010)), the petitioners, Nancy Barnhardt, Shelly Bledsoe, Steven Boucher, John Gearen, Benjamin Klosterman, Elliot Lewis, Keith Lopatka, Kathleen Oczak, Ann Scott, and Brett Simons, filed a petition with the Regional Board of School Trustees of Du Page County (the Board) for detachment. The petitioners sought to detach the Timber Trails area from Districts 48 and 88 and have the area annexed into Butler School District 53 (District 53) and Hinsdale Central High School District 86 (District 86). On June 3, 2011, the Board entered an order granting the petition for detachment. On April 6, 2012, the circuit court of Du Page County reversed the Board's order. The petitioners appeal from that order. We affirm.

¶ 2 BACKGROUND

¶ 3 On September 8, 2010, the petitioners filed the petition for detachment. In support of the petition, the petitioners attached 256 signatures. In response, Districts 48 and 88 (the Districts) filed a motion to dismiss, arguing that 97 of the signatures filed in support of the petition were not valid, because they did not match the official signatures on file with the Du Page County election authority. Because the petitioners had filed only 159 (256 minus 97) valid signatures, the Districts argued, the petitioners had not filed enough signatures to confer jurisdiction on the Board.

¶ 4 On January 10, 2011, the Board conducted a hearing on the motion to dismiss. The petitioners' attorney made an offer of proof that all of the people who circulated the petition would testify that all the people who had signed the petition were registered voters who resided in the petitioning territory and had given their valid signatures. Further, all the people who had circulated the petition had sworn and attested to a circulator's oath in the presence of a notary public. One of the Board members stated:

"I don't understand why we don't trust the circulator, the circulator's signature for all of the names on the sheet. And so, just compare the circulators' signatures that the Notary Public has attested to."

In response, the Districts' attorneys argued that, under the applicable statute, it did not matter what the circulators would testify to; what mattered was whether the voters' purported signatures on the petition matched their official signatures with the Du Page County election authority. At the close of the hearing, the Board denied the motion to dismiss. The Board explained that it had "considered the challenged signatures and determined that there were enough valid signatures contained within the Petition to meet the jurisdictional requirements" of the School Code.

¶ 5 On June 3, 2011, the Board entered an order granting the petition for detachment. The Districts thereafter filed a timely complaint for administrative review in the circuit court of Du Page County. On April 6, 2012, the circuit court reversed the Board's order. The petitioners appeal from that order.

¶ 6 ANALYSIS

¶ 7 The Districts argue that 97 of the signatures on the petition did not match the verified voter registration signatures on file at the Du Page County Election Commission. If those 97 signatures are removed, only 159 remain, which is insufficient for the petition to proceed.

¶ 8 Section 7-1(a) of the School Code provides that two-thirds of the registered voters in any territory to be detached must sign the underlying petition. 105 ILCS 5/7-1(a) (West 2010). Each signature contained on the petition "shall match the official signature and address of the registered voters as recorded in the office of the election authority having jurisdiction over the county." Id. The number of signatures called for by the statute is a jurisdictional requirement for detachment. Board of Education of Community High School District 94 v. Regional Board of School Trustees of Du Page County, 242 Ill.App.3d 229, 237-39 (1993).

¶ 9 According to the petition, there were 362 registered voters residing in the proposed detachment territory at the time the detachment petition was filed. Thus, in order to comply with section 7-1(a) of the School Code, the petition needed to be supported by the signatures of 242 registered voters.[1] The petition contained 256 signatures.

¶ 10 "The fundamental principle of statutory construction is to ascertain and give effect to the intention of the legislature by giving the language of the statute its plain and ordinary meaning." Board of Education of Chenoa Community Unit School District No. 9 v. Regional Board of School Trustees, 266 Ill.App.3d 461, 465 (1994). "The sections of the School Code are in pari materia, and they must be construed with reference to one another in order to give harmonious meaning to the act as a whole." Maiter v. Chicago Board of Education, 82 Ill.2d 373, 389 (1980).

¶ 11 The term "shall" typically indicates a mandatory rather than a directory provision. Schultz v. Performance Lighting, Inc., 2013 IL App (2d) 120405, ¶ 13. A mandatory provision does not always require strict compliance and might be satisfied through substantial compliance. Id. Strict compliance will be required if the term "shall" is accompanied by some sort of penalty or consequence. Id. ¶ 14. Where the term is not accompanied by some sort of penalty or consequence, substantial compliance is sufficient. Id. Our courts have interpreted section 7-1 of the School Code to require only substantial compliance. See Ambrose v. Thornton Township School Trustees, 274 Ill.App.3d 676, 684 (1995). The term "match" is defined as a "thing equal or similar to another." www.merriam-webster.com/dictionary/match (last visited Feb. 28, 2013).

¶ 12 The issue thus becomes whether the signatures on the petition substantially complied with the statutory mandate that they match the signatures on the voter registration cards. In finding that the signatures matched, the Board necessarily determined that there was substantial compliance.

¶ 13 In reviewing the Board's decision, the parties disagree as to the proper standard of review. The petitioners argue that the Board's finding as to the validity of the signatures is no different from any other finding that the Board makes; thus, its decision is entitled to deference and should be reversed only if against the manifest weight of the evidence. See Board of Education of Marquardt School District No. 15 v. Regional Board of School Trustees, 2012 IL App (2d) 110360, ¶ 20 (factual determinations by an administrative agency are held to be prima facie true and correct and will stand unless contrary to the manifest weight of the evidence). Relying on Addison Insurance Co. v. Fay, 232 Ill.2d 446, 453 (2009), the Districts insist that the standard of review should be de novo because this court can review as well as the Board whether the signatures on the detachment petition match the signatures on the verified registration signature forms.

¶ 14 In Fay, at issue was what standard of review the court should employ in reviewing certain factual findings that the trial court had made. Id. at 451. The supreme court stated:

"In this case, the trial court heard no live testimony. Both parties acknowledged at oral argument that all testimony was submitted by admitting discovery depositions into evidence. The trial court was not required to gauge the demeanor and credibility of witnesses. [Citation.] Instead, the trial court made factual findings based upon the exact record presented to both the appellate court and to this court. Without having heard live testimony, the trial court was in no superior position than any reviewing court to make findings, and so a more deferential standard of review is not warranted. Thus, although this court has not done so recently, we reiterate that where the evidence before a trial court consists of depositions, transcripts, or evidence otherwise documentary in nature, a reviewing court is not bound by the trial court's findings and may review the record de novo." Id. at 453.

Here, the Board's decision as to the validity of the signatures was not based on any live testimony but rather was based on the exact record that has been presented to this court. Thus, it is proper for this court to employ a de novo standard of review. See id.; see also Ambrose, 274 Ill.App.3d at 681 (a reviewing court may evaluate de novo documentary evidence presented in an administrative proceeding).

¶ 15 In so ruling, we find the petitioners' reliance on Hoxha v. LaSalle National Bank, 365 Ill.App.3d 80, 85 (2006), to be misplaced. In Hoxha, at issue was whether the decedent had signed a document that provided for the sale of certain property to the plaintiffs upon her death. The plaintiffs presented the testimony of a forensic document examiner who testified that the signature on the document was the decedent's. There was also evidence that, although the document had been notarized, the notary had backdated the document. Further, the executor of the decedent's estate testified that, although she had been the decedent's friend for over 25 years, she was not aware of the document until the plaintiffs sent it to her after the decedent's death. At the close of the trial, the trial court determined that the plaintiffs had failed to prove that the decedent had executed the document. The reviewing court affirmed, explaining that the trial court's determination that the signature at issue was not authentic was not against the manifest weight of the evidence in light of the suspicious circumstances of the case. Id. at 85. The reviewing court further stated that "[t]he trial court, as finder of fact, had the right to make its own handwriting sample comparisons when deciding whether the signature was authentic, expert opinion or not." Id. As "the trial court had more than comparisons; it had circumstances that led it to the conclusion [that the plaintiffs] were not worthy of belief, " the reviewing court would not disturb its decision. Id. Thus, as live testimony was at issue in Hoxha, that case is not applicable to the case before us.[2]

¶ 16 We therefore turn to a consideration of the signatures that the petitioners submitted in support of their detachment petition. We note that there is a dearth of Illinois law on the subject of how such signatures should be analyzed. However, in considering existing Illinois law as well as foreign authorities, certain standards emerge. Substantial compliance will be found if the signature transposes the first name and middle initial (Board of Education of Wapella Community Unit School District No. 5 v. Regional Board of School Trustees, 247 Ill.App.3d 555, 560 (1993)), if the middle initial is omitted (People ex rel. Owen v. Dunn, 247 Ill. 410, 413 (1910)), if a suffix, such as Junior, is omitted (Morton v. State Officers Electoral Board, 311 Ill.App.3d 982, 985 (2000)), or if a common shortened version of a first name (such as Ray) is used instead of the full first name (such as Raymond) (Bonardo v. People, 182 Ill. 411, 424 (1899); In re Nomination Petition of Gales, 54 A.3d 855, 859 (Pa. 2012)). Substantial compliance will not be found if one uses an initial for a first or last name. In re Nomination Petition of Flahery, 770 A.2d 327, 332 (Pa. 2001). Similarly, if using an initial instead of a full first name is not substantial compliance, then omitting a first or last name completely is not substantial compliance. See id. Further, substantial compliance will not be found if the signature is printed rather than in cursive as it appears on the corresponding registration form. State ex rel. Rogers v. Taft, 594 N.E.2d 576, 579 (Ohio 1992).

¶ 17 Based on the above standards, the petitioners did not submit sufficient signatures to confer jurisdiction on the Board. Sixteen of the people signing the petition used initials for either their first names or both their first and last names instead of spelling out their first and last names as they did on their voter registration cards. Moreover, four of the signatures at issue, in contrast to the voter registration cards, did not give any first name at all. One of the people signing the petition wrote in cursive rather than printing as she did on her voter registration card. Thus, these 21 signatures must be subtracted from the 256 that the petitioners submitted, which means that the petitioners submitted only 235 valid signatures. As this was less than the statutory minimum (242) to confer jurisdiction on the Board, we need not consider the other signatures that the Districts complain of on appeal. Accordingly, the circuit court properly reversed the Board's decision granting the petitioners the relief they sought.

¶ 18 In so ruling, we note this court's disagreement with some of the analysis set forth in Ambrose. In Ambrose, at issue was whether the signature sheets that were submitted in favor of a detachment petition were insufficient because the addresses listed on the signature sheets did not perfectly match the addresses listed on the signers' official voter registrations cards. Ambrose, 274 Ill.App.3d at 683. Specifically, the addresses at issue omitted such words as "avenue, " "street, " and "road." Id. The Ambrose court determined that the word "match" in section 7-1 meant "that the identity of the registered voter must be capable of being determined." Id. at 684. Based on this interpretation of section 7-1, the Ambrose court concluded that the signatures at issue did not have to be stricken, because the discrepancies between the signature sheets and the official registration cards were minor and it was possible to determine whether there was a "match" so that the identities of the signers could be ascertained. Id.

¶ 19 We do not disagree with the result in Ambrose as it is apparent that the addresses in dispute in that case were in substantial compliance with section 7-1. However, we believe that the Ambrose court's definition of the term "match" is too narrow, in that this definition does not promote the principle that signature requirements are incorporated into various statutes so as to deter fraud and to protect the integrity of the political process. See DeFabio v. Gummersheimer, 192 Ill.2d 63, 68-69 (2000). In DeFabio, an election judge failed to comply with the statute and write his initials on ballots that had been cast in a particular precinct. The circuit court invalidated all of the ballots that had not been properly initialed and the supreme court subsequently affirmed, explaining:

" 'As our statute makes it absolutely necessary that every ballot shall bear the official endorsement in the manner aforesaid, we must hold that the election in this case was void, although there is no evidence in the record that discloses any fraud or intended fraud upon the part of the election judges. We think it would be a very dangerous rule to establish that the election judges may disregard the plain provisions of this statute, and thereby defeat the intention of the law to prevent actual frauds from being committed in elections and to disarm the constituted authorities of the efficient means provided by the statute for detecting such frauds. Such salutary laws should not be repealed, in effect, by the action of election judges simply because their mistakes are innocent or because an honest voter may lose his vote by holding such mistakes fatal. It is more preferable that a voter should lose his vote by the innocent action of the judges and by his own neglect to see it that he votes a ballot properly endorsed by a judge, than to open the doors to wholesale fraud and corruption. Every voter is presumed to know the law, and by proper care on his part he can know, and should know, that the ballot delivered to him is properly endorsed by one of the election judges with his own initials.' " Id. (quoting Laird v. Williams, 281 Ill. 233, 241-42 (1917)).

¶ 20 Here, as stated above, the plain language of section 7-1 provides that the signature in the petition shall match the official signature on file. Not only is this to ensure that the identity of the registered voter can be determined, it is also to ensure that the doors to fraud and deceit are not opened. See id. As the petitioners failed to file the requisite signatures, the Board did not have jurisdiction to consider their petition. To hold otherwise would thwart the clear purposes of the statute. Accordingly, the circuit court properly reversed the Board's decision granting the petitioners the relief they sought.

¶ 21 In so ruling, we reject Justice Birkett's assertion that the circulators' proffered testimony was sufficient to establish the validity of the signatures in question. Initially, we disagree with his determination that, by not objecting to the petitioners' offer of proof that the circulators would testify that the signatures they had collected were authentic, the Districts somehow "stipulated" that the petitioners had submitted enough valid signatures. In making this argument, Justice Birkett relies extensively on criminal law authority. Such authority has limited relevance in the civil dispute before us. See Board of Education of Indian Prairie School District No. 204 v. Du Page County Election Comm'n, 341 Ill.App.3d 327, 334 (2003) (criminal liability and civil liability are very different things as criminal defendants are typically provided more protection than civil defendants). Further, to the extent that such authority is applicable, it is clear that an offer of proof is not equivalent to a stipulation. People v. Williams, 329 Ill.App.3d 846, 856 (2002).

¶ 22 Most importantly, even if the Districts somehow stipulated what the circulators would have testified to, that testimony would not have been sufficient to establish that the signatures at issue were valid. The circulators could testify only that the people who signed the petition represented that they were eligible to sign the petition. The circulators could not testify that a person signing the petition was indeed the person he or she claimed to be. To find otherwise would open the doors to fraud and deceit. See DeFabio, 192 Ill.2d at 68-69. It would also render the signature requirement of section 7-1(a) meaningless as a circulator's testimony could trump the fact that a signature on a petition bore no resemblance to the voter's official signature. This court, of course, must not interpret any statutory provision as meaningless. See Madison Two Associates v. Pappas, 227 Ill.2d 474, 493 (2008) (Illinois courts must construe statutes so that no part is rendered a nullity).

¶ 23 Finally, I note that I do not disagree with anything that Justice Hutchinson states in her special concurrence. However, as there were not enough valid signatures to confer jurisdiction on the Board, this court may not address any of the other issues that the Districts raise. See People v. White, 2011 IL 109689, ¶ 153 (the appellate court should not engage in an analysis of issues that are unnecessary to its resolution of the appeal).

¶ 24 CONCLUSION

¶ 25 For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

¶ 26 Affirmed.

¶ 27 JUSTICE HUTCHINSON, specially concurring.

¶ 28 I agree with Justice Schostok that the petitioners failed to submit enough valid signatures to confer jurisdiction on the Board. Even if enough signatures had been submitted, however, I note that the trial court correctly determined that the petition for detachment was without merit. This conclusion becomes inescapable once the applicable law and the evidence in this case are considered.

¶ 29 School district boundary changes are governed by section 7-1 et seq. of the School Code (105 ILCS 5/7-1 et seq. (West 2010)). Section 7-6(i) of the School Code provides that, at a hearing on a petition for detachment and annexation, the regional board of school trustees:

"shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the State Board of Education, and shall take into consideration the division of funds and assets which will result from the change of boundaries and shall determine whether it is in the best interests of the schools of the area and the educational welfare of the pupils that such change in boundaries be granted." 105 ILCS 5/7-6(i) (West 2010).

¶ 30 The parties seeking annexation and detachment have the burden of proving that "the overall benefit to the annexing district and the detachment area clearly outweighs the resulting detriment to the losing district and the surrounding community as a whole." Carver v. Bond/Fayette/Effingham Regional Board of School Trustees, 146 Ill.2d 347, 356 (1992). Petitioners must prove their case by a preponderance of the evidence. See 5 ILCS 100/10-15 (West 2010). The party bearing the burden of proof retains throughout the proceedings the burden of persuasion as to the facts underlying its claim. Ambrose v. Thornton Township School Trustees, 274 Ill.App.3d 676, 680 (1995). The party also bears initially the burden of production, which it satisfies by presenting sufficient evidence on each element of its cause of action to establish a prima facie case. Ambrose, 274 Ill.App.3d at 680. A prima facie case is established by evidence that would enable the trier of fact to find each element of the cause of action more probably true than not. Anderson v. Department of Public Property, 140 Ill.App.3d 772, 778 (1986). If the opposing party produces no evidence that contradicts or impeaches this evidence, the trier of fact must rule for the burdened party. Anderson, 140 Ill.App.3d at 778.

¶ 31 The regional board of school trustees' decision on a petition for detachment and annexation is an administrative decision for purposes of the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2010)). A reviewing court considers the factual findings of an administrative agency to be prima facie true and correct. 735 ILCS 5/3-110 (West 2010). The reversal of an administrative agency's factual finding is warranted only where the finding is against the manifest weight of the evidence, i.e., it is clearly evident that the agency should have reached the opposite conclusion. City of Freeport v. Illinois State Labor Relations Board, 135 Ill.2d 499, 507 (1990); Pochopien v. Regional Board of School Trustees of the Lake County Educational Service Region, 322 Ill.App.3d 185, 193 (2001). When we review an administrative order that involves mixed questions of fact and law, the proper standard of review is "clearly erroneous." City of ...


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