Carnell v. Madison County Officers Electoral Board

October 16, 1998          NO. 5-98-0474

                              IN THE

                   APPELLATE COURT OF ILLINOIS

                          FIFTH DISTRICT
_________________________________________________________________

RONALD G. CARNELL,                )  Appeal from the
                                  )  Circuit Court of
     Petitioner-Appellant,        )  Madison County.
                                  )
v.                                )  No. 98-MR-265
                                  )
MADISON COUNTY OFFICERS ELECTORAL ) 
BOARD, HONORABLE MARK VON NIDA,   )
HONORABLE WILLIAM R. HAINE,       )
HONORABLE MATT MELUCCI, and MAC G.)
WARFIELD,                         )  Honorable
                                  )  James Hackett,
     Respondents-Appellees.       )  Judge, presiding.
_________________________________________________________________

     JUSTICE HOPKINS delivered the opinion of the court:
     The petitioner, Ronald G. Carnell, appeals from a final order
of the Madison County circuit court denying Carnell's petition for
judicial review of a decision of respondent Madison County Officers
Electoral Board (Electoral Board).  On appeal, Carnell argues that
the hearing conducted by the Electoral Board was fatally flawed
because the Electoral Board failed to follow the statutory
requirement of adopting rules of procedure for the introduction of
evidence and arguments.  Carnell additionally argues that the
Electoral Board's decision was against the manifest weight of the
evidence and, as a result, the trial court erred by not overturning
that decision.  We affirm.
                              FACTS
     Prior to the March 17, 1998, primary election, no candidate
sought the Republican party's nomination for the office of State
Representative for the 111th Representative District of the
Illinois General Assembly.  Consequently, a vacancy in nomination
existed.  On May 18, 1998, Carnell filed nomination papers with the
State Board of Elections in his attempt to fill the vacancy in
nomination.
     The nomination papers included a "Resolution to Fill a Vacancy
in Nomination" (the Resolution), on which the Madison County
Central Committee of the Republican Party (the County Central
Committee) was listed as the nominating entity.  Respondent Mac G.
Warfield (the objector) filed a petition alleging that the
resolution to fill the vacancy was invalid because the County
Central Committee had no authority to fill a vacancy for the office
of State Representative and because the nomination was not made as
required by the Election Code (10 ILCS 5/1-1 et seq. (West 1996)). 
     On June 3, 1998, the Electoral Board conducted a hearing on
the objector's petition.  Carnell did not appear at the hearing,
but James Mihalich, the chairman of the County Central Committee,
appeared on Carnell's behalf.  Mihalich is not an attorney.  The
objector was also present and was represented by an attorney,
Michael Kasper.  At this hearing, the Electoral Board admitted
Carnell's nomination papers into evidence without objection from
Mihalich. 
     Kasper argued that the resolution to fill the vacancy was
legally insufficient because no duly constituted representative
committee nominated Carnell to fill the vacancy in the office of
State Representative and that this legal insufficiency was
dispositive.  Kasper argued that if the Board did not consider the
nomination papers to be dispositive, he would request the right to
subpoena witnesses in support of the objector's petition.  Mihalich
admitted that Carnell was nominated by Mihalich and two other
members of the County Central Committee and that Mihalich chose the
other two members without submitting the choice of these members to
a vote of the County Central Committee.  Mihalich acknowledged that
he did not follow the requirements of the Election Code when he
formed the committee that nominated Carnell, but he urged the
Electoral Board to give him some "latitude," since he had good
intentions and believed he followed his party's preference by
nominating Carnell.  
     The Electoral Board upheld the objector's petition in a
written order, dated June 8, 1998.  In its order, the Electoral
Board found that the Election Code requires that the nomination for
the State Representative from the 111th District be made by a
representative committee, comprised of the chairman of the County
Central Committee and two other members of that committee who are
elected by all of the members of the County Central Committee.  See
10 ILCS 5/8-5 (West 1996).  The Electoral Board found that
Carnell's nomination was made by a "political body other than the
Representative Committee for the 111th District."  
     Finally, the Electoral Board found that the Election Code
provides that no person's name shall be placed on an official
ballot for the general election unless that person was nominated in
compliance with article 8 of the Election Code, and since Carnell
was not nominated in compliance with the Election Code, his name
"should not be placed upon the official ballot to be voted at the
November 3, 1998, general election."  
     On June 12, 1998, Carnell filed a petition seeking judicial
review of the Electoral Board's decision.  On July 8, 1998, the
trial court conducted a hearing on Carnell's petition for judicial
review.  Carnell was present and represented by an attorney.  The
report of the proceedings before the Electoral Board was admitted
into evidence without objection.  After hearing the arguments of
counsel for all parties, the trial court entered an order affirming
the Electoral Board's decision.  This appeal followed.
                            DISCUSSION
     Carnell first argues that the Electoral Board failed to adopt
rules of procedure prior to the June 3, 1998, hearing and failed to
place any witnesses under oath, making the information submitted in
support of the objection invalid, and that neither the Electoral
Board nor the circuit court was justified in relying upon that
information.  Carnell cites section 10-10 of the Election Code,
which provides in pertinent part as follows:
               "The electoral board shall have the power to administer
     oaths and to subpoena witnesses and at the request of either
     party the chairman may issue subpoenas requiring the
     attendance of witnesses and subpoenas duces tecum ***.
               ***
               The electoral board on the first day of its meeting shall
     adopt rules of procedure for the introduction of evidence and
     the presentation of arguments ***."  10 ILCS 5/10-10 (West
     1996).
     Carnell argues that, without any rules of procedure, the
Electoral Board was without authority to consider the objector's
petition and that the petition should have been denied since the
objector could not sustain his burden of proof without the support
of competent evidence submitted pursuant to section 10-10 rules of
procedure.            
     Carnell's argument on this issue fails for two reasons. 
First, he does not cite to any provision in the Election Code, nor
have we found any, that precludes an Electoral Board from adopting
whatever rules it chooses.  Section 10-10, to which Carnell cites,
does not require the rules of procedure to be written or published. 
It appears from the record that the Electoral Board considered the
arguments of the attorney representing the objector, reviewed the
nomination papers, and decided the case based upon that information
and the applicable provisions of the Election Code.  There is
nothing in the Election Code prohibiting such a procedure. 
Although we might prefer that this and other Electoral Boards in
the future adopt clear rules of procedure and definitively identify
those rules to the parties, we find no statutory disability in the
failure to do so in the case sub judice.
     Second, Carnell chose not to be present at the hearing and 
chose to send Mihalich, the chairman of the County Central
Committee, to represent him.  The record is clear that Mihalich
argued Carnell's and his own position as chairman of the County
Central Committee to the Electoral Board and that the Electoral
Board did not preclude Mihalich from presenting any evidence or
arguments.  Mihalich did not ask the Electoral Board to adopt any
particular procedural rules, did not inquire before or during the
hearing as to the nature of any procedural rules, did not ask to be
placed under oath before he made statements to the Electoral Board,
and did not ask to subpoena any witnesses or documents, but rather,
he completely acquiesced to the manner in which the hearing was
conducted.  
     Carnell acquiesced to the informal nature of the hearing by
his failure to personally appear and by the failure of his
representative to object.  Since the Election Code does not require
any particular procedure, Carnell's argument on this issue fails. 
See Moscardini v. County Officers Electoral Board of Du Page
County, 224 Ill. App. 3d 1059, 1063 (1992) (evidence admitted
without objection in administrative proceedings may be considered
by the administrative body in support of its decision); Odell v.
Village of Hoffman Estates, 110 Ill. App. 3d 974, 977 (1982)
(same). 
     Carnell next argues that his nomination papers were in
substantial compliance with the overall intent and spirit of the
Election Code and that, consequently, his nomination is valid. 
Carnell cites numerous cases in support of this argument, all of
which stand for the rule that where a provision of the Election
Code is merely directory, the failure to comply with that provision
will not necessarily invalidate the candidacy or the ballot upon
which the candidate is listed. 
     The Illinois Supreme Court has addressed this rule as follows:
          "The Election Code is a comprehensive scheme which regulates
     the manner in which elections shall be carried out.  Strict
     compliance with all applicable provisions in the Election Code
     is not necessary, however, to sustain a particular ballot. 
     Rather, our courts draw a distinction between violations of
     `mandatory' provisions and violations of `directory'
     provisions.  Failure to comply with a mandatory provision
     renders the affected ballots void, whereas technical
     violations of directory provisions do not affect the validity
     of the affected ballots.  [Citation.]
               There is no universal formula for distinguishing between
     mandatory and directory provisions.  Rather, whether a
     particular statutory provision is mandatory or directory
     depends upon the intent of the legislature, which is
     ascertained by examining the nature and object of the statute
     and the consequences which would result from any given
     construction.  [Citation.]  Of course, the language of the
     statute is often the most reliable evidence of the
     legislature's intent.  Thus, where a statute, in prescribing
     the duties of the election officials, expressly states that
     failure to act in the manner set out in the statute will void
     the ballot, that statute will generally be given a mandatory
     construction.
               However, if the statute simply prescribes the performance
     of certain acts in a specific manner, and does not expressly
     state that compliance is essential to the validity of the
     ballot, then the statute generally will be given a directory
     construction.  [Citations.]  ***
               We do not mean to suggest, of course, that election
     officials may simply ignore directory provisions of the
     Election Code.  All of the provisions of the Election Code are
     mandatory in the sense that election officials are obligated
     to comply with their terms.  It does not follow, however, that
     every failure to comply should invalidate the ballot in
     question.  Literal compliance with directory provisions will
     not be required if it appears that the spirit of the law has
     not been violated and the result of the election has been
     fairly ascertained."  Pullen v. Mulligan, 138 Ill. 2d 21, 46-
     47 (1990).  
     Carnell argues that the Election Code provision governing the
selection of a representative committee for filling vacancies,
section 8-5 (10 ILCS 5/8-5 (West 1996)), is directory, not
mandatory, because nothing within that particular section specifies
any sanction for the failure to comply with its requirements. 
According to Carnell, therefore, the committee that nominated him
was close enough to a representative committee as prescribed by
section 8-5 that the failure to strictly comply with its provisions
should not invalidate his candidacy.
     The Electoral Board and the other respondents contend that
section 8-1 of the Election Code (10 ILCS 5/8-1 (West 1996)) makes
mandatory the provision regarding the manner in which a
representative committee is selected.  Section 8-1 provides in
relevant part as follows:
          "The nomination of all candidates for members of the General
     Assembly by all political parties *** shall be made in the
     manner provided in this article 8 and not otherwise.
               The name of no person *** shall be placed upon the
     official ballot to be voted at the general election as a
     candidate unless such person shall have been nominated for
     such office under the provisions of this article 8." 
     (Emphasis added.)  10 ILCS 5/8-1 (West 1996).  
     The Election Code must be read in its entirety, and one
provision cannot be read in a manner that renders another section
meaningless or superfluous.  Maske v. Kane County Officers
Electoral Board, 234 Ill. App. 3d 508, 512 (1992).  Section 8-5
provides that a representative committee "shall consist of the
chairman of the county central committee and 2 members of the
county central committee *** elected by the county central
committee."  10 ILCS 5/8-5 (West 1996).  Carnell admits that the
two members of his nominating committee, who should have been
elected pursuant to section 8-5, were not elected by the County
Central Committee at large but, rather, were appointed by the
chairman of the County Central Committee.    
     Section 8-17 provides:
          "[I]f there was no candidate for the nomination of the party
     in the primary, no candidate of that party for that office may
     be listed on the ballot at the general election, unless the
     legislative or representative committee of the party nominates
     a candidate to fill the vacancy in nomination within 60 days
     after the date of the general primary election."  10 ILCS 5/8-
     17 (West 1996).   
     The Board found that "the selection of Respondent-Candidate,
Ronald G. Carnell, for the Republican Nomination for State
Representative *** was made by a political body other than the
Representative Committee for the 111th District duly formed
pursuant to statutory requirements" and that pursuant to section
8-1, Carnell's name should not be placed on the official ballot to
be voted at the November 1998 general election.  For all of the
reasons stated, the decision and findings of the Electoral Board
are supported by the law and by the manifest weight of the
evidence, and the circuit court did not err by affirming that
decision.

     Affirmed.

     MAAG and KUEHN, JJ., concur.