Pochie v. Cook County Officers Electoral Board

June 25, 1997

1-96-3181



DONNA L. POCHIE,                   )    Appeal from the Circuit
                                   )    Court of Cook County,
      Petitioner-Appellant,        )    Illinois
                                   )    County Department
     v.                            )    County Division     
                                   )         
THE COOK COUNTY OFFICERS ELECTORAL )
BOARD, and its members, DANIEL P.  )
MADDEN, DONALD A. MIZERK, and      )
RALPH SCHROEDER, DAVID D. ORR, in  )
his official capacity as Cook      )    No. 96 CO 177
County Clerk, the CHICAGO BOARD    )    
OF ELECTION COMMISSIONERS, and its )
members,MICHAEL J. HAMBLETT,       )
ARNETTE HUBBARD, and RICHARD COWEN,)
in their official capacities,      )    
and DEREK BANKS,                   )    Honorable
                                   )    Francis Barth,
      Respondents-Appellees.       )    Judge Presiding.

     PRESIDING JUSTICE COUSINS, delivered the opinion of the
court:  
     Petitioner Donna L. Pochie filed an expedited appeal from
the circuit court order entered September 10, 1996, affirming the
decision of the Cook County Officers Electoral Board granting the
motion of respondent Derek Banks to strike and dismiss
petitioner's objector's petition. Respondent Banks' motion to
strike and dismiss asserted that Pochie lacked standing to bring
her objector's petition because petitioner did not meet the
requirements of section 10-8 of the Election Code (10 ILCS 5/10-8
(West 1994)).
     Section 10-8 of the Election Code provides in pertinent
part:
     "The objector's petition shall give the objector's name and
     residence address, and shall state fully the nature of the
     objections to the certificate of nomination or nomination   
     papers or petitions in question, and shall state the      
     interest of the objector and shall state what relief is  
     requested of the electoral board." 10 ILCS 5/10-8 (West
     1994.)

     After granting an expedited appeal, we affirmed the judgment
of the circuit court by order entered October 25, 1996, stating
that a written decision of this court would follow.
     The sole issue presented for review in this appeal is
whether the "residence address" requirement of section 10-8 of
the Illinois Election Code is mandatory. Our analysis of the
record in the instant case establishes that Pochie's objector's
petition alleged in part that certain of Banks' nominating
petitions were invalid because "the nomination papers contain
petition sheets with names of persons for whom the addresses
stated are not in the 28th Representative District of the State
of Illinois." 
     Banks affirmatively responded by moving to strike and
dismiss the objector's petition.  He alleged that the objector's
petition did not meet the requirements of section 5/10-8 of the
Election Code of Illinois because the petition failed to state
her address. In this regard, the record establishes that Pochie's
objector's petition alleges: "The objector resides at 11006,
Chicago, Illinois, Zip Code 60655, in the 28th Representative
District of the State of Illinois, and is a duly qualified, legal
and registered voter at that address."
     Does objector's petition conform to the pertinent provisions
of section 10-8 of the Election Code?  We answer this question in
the negative.
     However, petitioner contends that the address provision of
section 10-8 of the Election Code is directory. We disagree.
Petitioner relies primarily on the holding in Wollan v. Jacoby,
274 Ill. App. 3d 388, 653 N.E.2d 1303 (1995). In Wollan, the
appellate court affirmed the decision of the trial court that the
objector's failure to file a copy of the petition along with the
original and also that the use of the term "Commissioner" instead
of the term "trustee" did not make the objector's petition
legally defective. Wollan, 274 Ill. App. 3d at 392. In our view,
petitioner's reliance on Wollan is misplaced.
     Petitioner's reliance on Wollan is misplaced because Wollan
does not address the "residence address" requirement of section
10-8 of the Election Code. Rather, in Wollan, the court addressed
the failure of the objector to file a copy of the petition and
petitioner's failure to refer to the correct office (which the
Code does not require). Wollan, 274 Ill. App. 3d 388, 653 N.E.2d 1303.  
      Petitioner also cites Board of Education  of Wapella
Community Unit School District. No. 5 v. Regional Board of School
Trustees, 247 Ill. App. 3d 555, 617 N.E.2d 442 (1993). In
Wapella, the court upheld the validity of signatures under the
School Code (105 ILCS 5/7-2(a)(West 1992)) where "the identity of
the registered voter can readily be determined from the address
provided notwithstanding technical noncompliance with the
Election Code."  Wapella, 247 Ill. App. 3d at 558.
     In our view, the objector's address in the instant case
cannot be readily determined from the number of the address on a
street in the district without the name of the street. Therefore,
petitioner's reliance on Wapella is also misplaced. Specifically,
in Wapella, the objections were made alleging that a petition
seeking dissolution of a school district was invalid because,
among other things, some of the signers did not properly state
their addresses. Wapella, 247 Ill. App. 3d 355, 617 N.E.2d 442.
The Wapella court held that the addresses of the signers were
sufficient "if the identity of the registered voters can readily
be determined from the address provided. (Emphasis added.)
Wapella, 247 Ill. App. 3d at 558. In the case sub judice, the
objector's address gave no street name. In our view, when the
name of the street where an objector resides in an Illinois
General Assembly legislative district is not given in the
objector's petition, a candidate whose nominating petitions are
being challenged cannot readily determine that the objector
resides in the district. 
     Although petitioner contends that her legal standing to
bring the objector's petition is evident from the face of her
petition, in which she attests that she is "a duly qualified,
legal and registered voter" residing in the "28th Representative
District of Illinois," we disagree. We also disagree with
petitioner's contention that her standing to bring the objector's
petition is further evidenced by the certified voter registration
record attached to her response to the motion to strike and
dismiss. We further disagree with petitioner's argument that the
petition and the records of the Chicago Board of Election
Commissioners clearly indicate that Pochie does have standing. In
our view, whether or not an objector has standing is determined
according to the face of the petition and not according to what
can be found in the records of the election commission.
     This is a case of statutory construction, and we agree with
respondent's contention that the "residence address" requirement
of section 10-8 of the Election Code is mandatory and not
directory. In this regard, an instructive case is Pullen v.
Mulligan, 138 Ill. 2d 21, 561 N.E.2d 585 (1940). In Pullen, the
Illinois Supreme court held that legislative intent is determined
by examining the nature of the object of the statute and the
consequences resulting from any given construction. Pullen, 138 Ill. 2d  at 46, citing Carr v. Board of Education, 14 Ill. 2d 40,
44, 150 N.E.2d 583 (1958).
     The failure to plead an objector's address is an affirmative
defense, which must be raised by the respondent. Hagan v. Stone,
277 Ill. App. 3d 388, 390, 660 N.E.2d 189 (1995). The issue is
waived if it is not raised by the respondent. Hagan, 277 Ill.
App. 3d at 390. In preparing affirmative defenses, respondents
would be confronted with undue burdens were we to construe the
residence requirement of section 10-8 of the Election Code to be
directory rather than mandatory. This, because respondents often
would be unable to make the decision to raise a defense without
taking extraordinary steps to determine whether an objector
resides in the relevant political subdivision. 
     We note in petitioner's argument that records publicly
available at the Chicago Board of Election Commissioners' offices
allow any person to check registration status, including the
registration address and representative district, of any citizen
of Chicago, including that person's name. However, this argument
is not compelling. In our view, mandating such searches of
records by candidates is not an intended consequence of the
legislation. See Pullen, 138 Ill. 2d  at 46. Even though searches
of records at the Chicago Board of Election Commissioners'
offices for persons with a last name of Pochie may be less
burdensome than searches for persons with more common last names
such as Jones or Smith or Washington, no candidate should suffer
the consequences of bearing the burden of searching the records
to determine whether or not an objector is registered in a
district. See Pullen, 138 Ill. 2d  at 46.
     For the foregoing reasons, the judgment of the circuit court
is affirmed. 
     McNULTY and HOURIHANE, JJ., concur.




                             DIGEST OF OPINION

Case Name:     DONNA L. POCHIE v.THE COOK COUNTY OFFICERS             
               ELECTORAL BOARD, and its members, DANIEL P.       
               MADDEN, DONALD A. MIZERK, and RALPH SCHROEDER,
               DAVID D. ORR, in his official capacity as Cook    
               County Clerk, the CHICAGO BOARD OF ELECTION
               COMMISSIONERS, and its members, MICHAEL J.
               HAMBLETT, ARNETTE HUBBARD, and RICHARD COWEN,
               in their official capacities,and DEREK BANKS.     

First      1-96-3181          Cousins,P.J.        June 25, 1997
District   Docket No.         Authoring Judge     Date Filed


Panel Members:      McNULTY and HOURIHANE, JJ., concur.


SUMMARY:

     Petitioner Donna L. Pochie filed an expedited appeal from
the circuit court order entered September 10, 1996, affirming the
decision of the Cook County Officers Electoral Board granting the
motion of respondent Derek Banks to strike and dismiss
petitioner's objector's petition. Respondent Banks' motion to
strike and dismiss asserted that Pochie lacked standing to bring
her objector's petition because petitioner did not meet the
requirements of section 10-8 of the Election Code (10 ILCS 5/10-8
(West 1994)).

     The sole issue presented for review in this appeal is
whether the "residence address" requirement of section 10-8 of
the Illinois Election Code is mandatory. 

HELD:  Affirmed

     The "residence address" requirement of section 10-8 of the
Election Code is mandatory and not directory.