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Cooke v. The Illinois State Board of Elections

Court of Appeals of Illinois, Fourth District

May 22, 2018

DAVID W. COOKE, Petitioner,
v.
THE ILLINOIS STATE BOARD OF ELECTIONS; CHARLES W. SCHOLZ, in His Official Capacity as Chairman; ERNEST L. GOWEN, in His Official Capacity as Vice Chairman; WILLIAM M. McGUFFAGE, in His Official Capacity as Member; ANDREW K. CARRUTHERS, in His Official Capacity as Member; WILLIAM J. CADIGAN, in His Official Capacity as Member; BETTY J. COFFRIN, in Her Official Capacity as Member; CASANDRA B. WATSON, in Her Official Capacity as Member; COMMITTEE FOR FRANK J. MAUTINO; and PHILIP M. KRASNY, Hearing Officer, Respondents.

          Direct Review of the Illinois State Board of Elections No. 16CD93

          JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Holder White and Turner concurred in the judgment and opinion.

          OPINION

          JUSTICE KNECHT

         ¶1 David W. Cooke seeks direct review of a decision of the Illinois State Board of Elections (Board) concerning his complaint against the Committee for Frank J. Mautino (Committee). Cooke argues we should remand the matter for the Board to address and issue rulings on the merits of those claims which it failed to address. Alternatively, Cooke argues, to the extent the Board did in fact issue rulings on all of his claims, we should find any rulings against him to be clearly erroneous based on the evidence presented. We remand with directions.

         ¶2 I. BACKGROUND

         ¶3 A. Cooke's Pro Se Complaint

         ¶4 In February 2016, Cooke, an Illinois resident, filed a pro se complaint with the Board, alleging the Committee committed various violations of article 9 of the Election Code (10 ILCS 5/9-1 to 9-45 (West 2014)) based on its reported expenditures to Happy's Super Service Station (Happy's) and Spring Valley City Bank (Bank) between 1999 and 2015. Specifically, Cooke alleged the Committee violated (1) section 9-7(1) of the Election Code (id. § 9-7(1)), which requires a treasurer of a political committee to keep a detailed and exact account of a committee's expenditures and (2) section 9-8.10(a)(2) of the Election Code (id. § 9-8.10(a)(2)), which prohibits a political committee from making expenditures in excess of the fair market value of the services, materials, facilities, or other things of value received in exchange.

         ¶5 As to the nature of the alleged violations, Cooke asserted, citing the Committee's public reports detailing the expenditures made to Happy's and the Bank, (1) "[a] majority of the expenses are recorded in whole dollar amounts, which strains reason to believe these expenses are for actual services rendered"; (2) "[a]n invoice almost never rounds to whole numbers, especially when repairs and fuel expenses are paid"; (3) "[i]t is apparent the [B]ank could not be providing the services for which the expenses were paid"; (4) "extremely high amounts of expenses were allocated to [Happy's], *** total[ing] over $200, 000 in just over a ten year period"; (5) "[n]o reasonable person would spend this type of money on fuel and expenses in this time period, especially when normal legislative travel expenses are reimbursed from the state"; (6) "[i]dentical expenses were reported for exactly $1500 dollars for a camp vehicle repair in a short amount of time and other high amounts for this vehicle as well"; (7) "[t]he rounding of numbers for expense records leads to a legitimate question of whether actual expenses are inflated above fair market value in order compensate friends of the Committee"; (8) "[t]he expenses to the [Bank] are almost entirely whole numbers and leave to [sic] trail of the expenses once the cash had been withdrawn from the account"; and (9) "[t]he amount of expenses expended for gasoline[ ] are highly questionable due to extremely high individual amounts and rounding of numbers." Cooke attached to his complaint copies of the public reports detailing the expenditures made to Happy's and the Bank.

         ¶6 B. Closed Preliminary Hearing

         ¶7 On March 1, 2016, a hearing officer, who had been appointed by the Board, held a closed preliminary hearing for the purpose of making a recommendation to the Board as to whether Cooke's complaint was filed on justifiable grounds. Cooke appeared pro se, and the Committee appeared through counsel.

         ¶8 The Committee initially noted it would be filing a written motion to dismiss Cooke's complaint on the grounds the (1) Board lacked jurisdiction because the Committee was dissolved after Frank J. Mautino became the Illinois Auditor General on January 1, 2016, and (2) complaint was insufficient because it failed to identify the nature of the offense. Cooke responded to the Committee's argument. The hearing officer indicated he would consider the motion to dismiss in making his recommendation and forward any written motion and response to the Board.

         ¶9 The hearing officer allowed Cooke to present evidence and argument on his complaint to determine if it was filed on justifiable grounds. Cooke submitted copies of the Committee's public reports detailing the expenditures made to Happy's and the Bank, which the hearing officer admitted into evidence. Based on those reports, Cooke argued, in addition to the alleged violations of sections 9-7(1) and 9-8.10(a)(2), the Committee violated section 9-8.10(a)(9) of the Election Code (id. § 9-8.10(a)(9)), which (1) permits a political committee to purchase or lease a motor vehicle and maintain and repair that vehicle if the vehicle is used primarily for campaign purposes or for the performance of governmental duties and (2) provides individuals using privately owned vehicles may be reimbursed for actual mileage for using their vehicle for campaign purposes or for the performance of governmental duties. Specifically, Cooke argued, based on the reports detailing the expenditures to Happy's, he was unable to determine whether the gas and repair expenses were for vehicles owned by the Committee and that determination would affect whether the gas and repairs were properly expensed. The Committee noted an alleged violation of section 9-8.10(a)(9) was not raised in the complaint, and the evidence provided did not support any such violation.

         ¶10 C. Committee's Motion to Strike and Dismiss Cooke's Complaint

         ¶11 On March 31, 2016, the Committee filed a motion to strike and dismiss Cooke's complaint, asserting (1) the Board lacked jurisdiction over the Committee as a result of its dissolution and (2) "each of the allegations contained in the [c]omplaint fails to state an offense or violation upon justifiable grounds." As the second basis for dismissal, the Committee argued, (1) "[n]owhere in the [c]omplaint, even after reviewing [the nature of the alleged violations] and the attachments and exhibits to the [c]omplaint, does [Cooke] allege, suggest[, ] or provide proof that [it] has violated the part of [s]ection 9-7 cited in the [c]omplaint" and (2) "[n]owhere in the evidence or in the [c]omplaint does [Cooke] provide what is fair market value for services and other things of value to determine if there is an excess of fair market value."

         ¶12 D. Cooke's Response to the Committee's Motion to Strike and Dismiss His Complaint

         ¶13 On April 5, 2016, Cooke filed a pro se response to the Committee's motion to strike and dismiss his complaint. In summarizing his complaint, Cooke contended, citing section 9-7, the Committee's public reports detailing the expenditures made to Happy's and the Bank lacked the requisite "detail in the particulars." Cooke also asserted, based on those reports, (1) questions existed as to the propriety of the expenditures for gas and repairs to Happy's under section 9-8.10(a)(9) and (2) it was "impossible" to determine if the (a) amounts expensed to the Bank "exceeded fair market value for the services or good provided" under section 9-8.10(a)(2) and (b) Committee followed the requirement of section 9-11(a) of the Election Code (id. § 9-11(a)) to report expenditures to any individual which exceeds $150. In responding to the Committee's arguments, Cooke maintained (1) the Board had jurisdiction and (2) his complaint sufficiently identified issues with the recording of expenses to Happy's and the Bank.

         ¶14 E. Committee's Reply to Cooke's Response to Its Motion to Strike and Dismiss Cooke's Complaint

         ¶15 On April 11, 2016, the Committee filed a reply to Cooke's response to its motion to strike and dismiss Cooke's complaint. The Committee argued Cooke could not use his response to amend the allegations in his complaint and his attempt to use his response to amend his complaint demonstrated the complaint was insufficient as a matter of law.

         ¶16 F. Hearing Officer's Recommendation

         ¶17 On April 29, 2016, the hearing officer issued a written recommendation. In reviewing the complaint, he noted (1) Cooke alleged the "Committee violated [s]ection[s] 9-7 and 9-8.10" and (2) "the documentation, amount[, ] and accuracy of reported expenditures to [the Bank] and [Happy's] are questioned." In reviewing the events of the closed preliminary hearing, the hearing officer noted Cooke asserted the public reports "lack specificity, " and he "question[ed] the propriety of expenditures related to the automobiles for gas and/or repairs." The hearing officer then listed various discrepancies in the public reports concerning the expenditures made to Happy's and the Bank.

         ¶18 The hearing officer reviewed the Committee's motion to strike and dismiss Cooke's complaint, Cooke's response, and the Committee's reply. He noted Cooke's response raised alleged violations of section 9-11(a). The hearing officer rejected the Committee's jurisdictional argument. As to the sufficiency of Cooke's complaint, the hearing officer noted "[t]he two specific sections alleged to be violated are [s]ection 9-7 (treasurer keeping certain records) and [s]ection 9-8.10[(a)](2) (making expenditures in excess of fair market value)." The hearing officer found Cooke entered sufficient evidence to support his allegations. He also found the Committee, based on Cooke's attachment of the public reports detailing the expenditures made to Happy's and the Bank to his complaint, "was aware that the propriety of those expenditures was at issue." The hearing officer recommended the Board deny the Committee's motion to strike and dismiss Cooke's complaint.

         ¶19 As to whether Cooke's complaint was filed on justifiable grounds, the hearing officer found the public reports detailing the expenditures made to Happy's and the Bank "lack[ed] sufficient detail to determine if the breakdown is accurate." The hearing officer also found Cooke had shown it was "arguabl[e]" as to whether the public reports complied with section 9-11(a). He noted:

"A cursory review of the [public reports] disclose[d], at a minimum, lack of detail as to the ultimate beneficiary of expenditures to [the Bank] and an insufficient breakdown for repairs, gas, etc., to [Happy's]."

         Similarly, the hearing officer found:

"At a minimum, the expenditures to [Happy's] lack[ed] sufficient detail and a breakdown between gas and repairs as to vehicles is required. Furthermore, the report[s] should clarify whether the vehicles are owned and/or leased by [the Committee], or are private vehicles."

         As to the public reports concerning the Bank, the hearing officer found: "The expenditures to [the Bank] lack sufficient detail and do not disclose the purpose and/or recipients of numerous disbursements." The hearing officer concluded:

"The purpose of the closed preliminary hearing is to determine if the complaint is filed upon justifiable grounds. [Cooke] has met that standard."

         ¶20 Based on his findings, the hearing officer recommended: (1) the Committee's motion to strike and dismiss the complaint be denied, (2) the Board enter an order finding "[t]he [c]omplaint is filed upon justifiable grounds, " and (3) "[t]he matter proceed to a public hearing unless [the Committee] files amended reports with sufficient detail within 60 days *** as to [e]xpenditures made to [Happy's] and [the Bank]."

         ¶21 G. General Counsel's Recommendation

         ¶22 On May 12, 2016, the Board's general counsel issued a written recommendation. The general counsel concurred with the recommendations of the hearing officer but recommended the Board direct the Committee to amend its public reports to include specific information concerning the expenditures made to Happy's and the Bank. He recommended the Board direct the Committee to amend its public reports to (1) include an accurate breakdown between gas and repair expenditures to Happy's and indicate whether the vehicles involved in each itemized expenditure were either owned or leased by the Committee or privately owned and (2) identify the actual recipient of each itemized expenditure from the Bank and its specific purpose.

         ¶23 H. May 16, 2016, Board Meeting

         ¶24 At a May 16, 2016, meeting, the Board addressed Cooke's complaint. Cooke appeared pro se, and the Committee appeared through counsel. The Board's general counsel provided a brief review of the complaint and the prior proceedings to the Board. He stated, in part, as follows:

"[Cooke] is challenging the propriety and/or lack of specificity as to the reported expenditures, and the relatively obvious poor quality of the reporting on these particular expenditures makes it difficult to draft a more focused complaint. The expenditures to [Happy's] lack sufficient detail breaking down the various payments as being for gas or repairs to particular vehicles and whether those vehicles are owned or leased by the [C]ommittee or are private vehicles. The expenditures to [the Bank] lack sufficient detail as to the specific purposes and ultimate recipients of the disbursements."

         ¶25 The Board allowed Cooke the opportunity to make a statement. Cooke initially discussed the idea of "amending the complaint." He stated, in part, "just amending the complaint doesn't get to how we got to the impropriety that we're at and the inaccurate reporting as it is." Chairman Charles W. Scholz clarified to Cooke the hearing officer's and the general counsel's recommendations related to amending the public reports, as opposed to the complaint, to obtain the requisite disclosure. After Chairman Scholz's clarification, Cooke stated:

"Okay. Then at that point would the-the hearing would continue then once that happened? Or what would-I guess I don't understand. I thought that would be the end of the-if they did that, everyone's happy and the complaint's over with. Maybe I misunderstood the process."

         The general counsel indicated he believed the hearing officer was attempting to get the public reports amended to comply with the Election Code and, "[i]n the event that [the Committee] can't do that in whatever time frame it is that the Board would grant, we would then proceed with the public hearing." At another point during the meeting, Cooke noted the Committee's public reports lacked any indication mileage was expensed for campaign workers' private vehicles, and therefore, any expenditures reported for gas had to be for a campaign vehicle, and information concerning whether the Committee owned a campaign vehicle could be found by means other than amending the public reports.

         ¶26 Based on the evidence, argument, and recommendations, the Board denied the Committee's motion to dismiss, found "the complaint was filed on justifiable grounds, " and ordered the Committee to file amended reports with the specificity outlined by the general counsel. Chairman Scholz noted "[w]e're going to give a chance for compliance."

         ¶27 I. May 18, 2016, Order

         ¶28 On May 18, 2016, the Board entered a written order. The Board initially noted the complaint alleged the Committee "violated [sections 9-7 and 9-8.10] in that the [Committee] failed to keep a detailed and accurate account of contributions and expenditures and made expenditures in excess of the fair market value." The Board then made the following two findings:

"1. A [m]otion to [s]trike and [d]ismiss was filed by [the Committee] on [March 31, 2016, ] asserting that the Board lacks jurisdiction over a committee that ...

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