Crudup v. Sims
Annotate this Case
FIFTH DIVISION
October 10, 1997
No. 1-97-0912
DARYL CRUDUP, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
JAMES E. SIMS, Candidate for the)
Office of Alderman of the Third )
Ward of Harvey, Illinois, ) No. 97 CO 47
NICHOLAS E. GRAVES, Mayor, )
GWENDOLYN L. DAVIS, City Clerk, )
and FRANK PIEKARSKI, Individual )
Members of The Harvey Municipal )
Officers Electoral Board, and )
DAVID ORR, Cook County Clerk, ) The Honorable
) Michael J. Murphy,
Defendants-Appellees. ) Judge Presiding.
JUSTICE HOURIHANE delivered the opinion of the court:
Plaintiff, Daryl Crudup, and defendant, James E. Sims, were
both candidates for election to the office of Alderman of the
Third Ward of the City of Harvey, Illinois. Plaintiff filed a
complaint for declaratory and injunctive relief seeking to keep
defendant's name off the ballot, alleging that defendant filed a
false statement of economic interests in violation of section 4A-
107 of the Governmental Ethics Act (Ethics Act). 5 ILCS 420/4A-
107 (West 1996). The circuit court ruled that it was without
authority to order defendant's name off the ballot and plaintiff
appealed. 155 Ill. 2d R. 301. This court considered the matter
on an expedited basis and, in a separate order, affirmed the
judgment of the circuit court. Our reasons therefor now follow.
As a preliminary matter we consider defendant's motion to
strike portions of plaintiff's reply brief. Defendant asserts
that plaintiff's reply contains improper record and legal
citations and false and misleading misstatements of fact contrary
to Supreme Court Rule 341(e)(6) and (7). 155 Ill. 2d R. 341.
The motion is denied. That is not to say that this court adopts
plaintiff's construction of the record or the law but merely that
for purposes of this appeal plaintiff's reply brief will stand.
The sole issue on appeal is whether a court has the
authority to order a candidate's name off the ballot where the
candidate has willfully filed a false statement of economic
interests. We conclude that it does not.
Section 4A-101 of the Ethics Act mandates that persons who
are candidates for nomination or election to an office in a unit
of local government must file verified written statements of
economic interests. 5 ILCS 420/4A-101(g) (West 1996). Such
disclosures are intended to avoid any conflict of interest
between the government and its officers and employees and to
instill in the public trust and confidence in its elected
officials. Stein v. Howlett, 52 Ill. 2d 570, 578, 289 N.E.2d 409
(1972). Failure to timely file a statement of economic interests
renders the candidate's nomination papers invalid (10 ILCS 5/10-
5(3) (West 1994)), and may also result in ineligibility for, or
forfeiture of, office (5 ILCS 420/4A-107 (West 1996)). See also
Ill. Const. 1970, art. XIII, 2.
Here, we are not faced with a candidate's total failure to
file. Rather, plaintiff alleges that defendant filed a
statement which is false and incomplete and that any
misrepresentation was intentional.
The Ethics Act requires a candidate to file a statement
which, to the best of his knowledge and belief, is true, correct
and complete. 5 ILCS 420/4A-104 (West 1994). A candidate who
willfully files a false or incomplete statement of economic
interests shall be guilty of a Class A misdemeanor. 5 ILCS
420/4A-107 (West 1996). The candidate may also be subject to
prosecution for perjury under the Election Code. 10 ILCS 5/29-10
(West 1994); Troutman v. Keys, 156 Ill. App. 3d 247, 252, 509 N.E.2d 453 (1987). Significantly, there is nothing in the
Election Code, the Ethics Act, or the Illinois Constitution which
provides for a noncriminal sanction for the willful filing of a
false statement of economic interests. Troutman v. Keys, 156
Ill. App. 3d at 252.
Plaintiff argues that section 10-5 of the Election Code,
when read in conjunction with section 4A-107 of the Ethics Act,
makes it clear that where a candidate willfully files a false or
incomplete statement, the candidate's nomination papers are
invalid and removal of his name from the ballot is appropriate.
We disagree with plaintiff's construction of these two statutes.
As previously noted, section 4A-107 of the Ethics Act sets
forth the criminal sanction which attaches to the willful filing
of a false or incomplete statement of economic interests. No
provision is made for removal of a candidate's name from the
ballot or for any other noncriminal sanction.
Similarly, nothing in section 10-5 of the Election Code
persuades us that the relief plaintiff seeks is available.
Section 10-5 provides in relevant part:
"Nomination papers filed under this Section
are not valid if the candidate named therein fails
to file a statement of economic interests as
required in the Illinois Governmental Ethics Act
in relation to his candidacy with the appropriate
officer by the end of the period for the filing of
nomination papers ***." 10 ILCS 5/10-5 (West
1994).
Our supreme court has interpreted the "as required" language
above not as a reference to the substantive requirements of the
Ethics Act, but merely a reference to the fact that the Ethics
Act, and not the Election Code, requires the filing of statements
of economic interests. Welch v. Johnson, 147 Ill. 2d 40, 53, 588 N.E.2d 1119 (1992). Moreover, section 10-5 refers to and is
applicable only where there is a complete failure to file such a
statement. It does not refer to the filing of a statement which
is untrue, incorrect or incomplete. Welch v. Johnson, 147 Ill. 2d at 53-54. Thus, section 10-5 of the Election Code provides no
authority for the court to order the removal of a candidate's
name from the ballot under the circumstances alleged here.
A review of the case law on which plaintiff relies does
not persuade us that the legislature contemplated a noncriminal
sanction for the willful filing of a false statement of economic
interests. In Havens v. Miller, 102 Ill. App. 3d 558, 429 N.E.2d 1292 (1981), this court held that candidates for election to a
school board who filed their statements with the board's
secretary, rather than the county clerk as required by section
4A-106 of the Ethics Act, were ineligible for office. In the
case sub judice there is no allegation that the statement was
filed with the wrong entity and Havens v. Miller is thus not
dispositive of the issue before this court.
In Troutman v. Keys, also cited by plaintiff, we held that
the circuit court possessed original jurisdiction to consider the
correctness and completeness of a candidate's statement of
economic interests. However, because we ultimately determined
that the subject statement was not false, there was no need to
consider what, if any, sanction might attach for the willful or
inadvertent filing of a false statement. Indeed, we recognized
that:
"No provision in the Illinois Constitution,
Election Code or Ethics Act *** expressly provides
or suggests the noncriminal procedure to be
followed and sanctions to be imposed in an
instance where *** it is claimed that the
statement of economic interests, timely filed by a
candidate, contains false representations."
Troutman v. Keys, 156 Ill. App. 3d at 247.
Accordingly, Troutman v. Keys does not mandate the result
plaintiff seeks.
Plaintiff's further reliance on Welch v. Johnson is equally
unavailing. In Welch, our supreme court determined, as a
preliminarily matter, that the circuit courts, rather than the
election boards, have original jurisdiction over challenges to
the truthfulness, correctness and completeness of statements of
economic interests. However, the court went on to hold that
removal from the ballot is not a permissible sanction for the
filing of a statement which is not true, correct and complete due
to inadvertence on the candidate's part. The court examined the
relevant statutes and could find no clear statement by the
legislature that it intended removal from the ballot as a remedy
for an inadvertent omission or misstatement. The court limited
its decision to the particular circumstances of that case and
expressed no opinion "on the sanctions clearly provided by the
legislature for the filing of willfully false or incomplete
statements of economic interests". (Emphasis added.) Welch v.
Johnson, 147 Ill. 2d at 57.
We agree with the Welch opinion that the Ethics Act and
Election Code clearly set forth the sanctions available for the
willful filing of false statements, and we will not engage in
judicial legislation by creating a right or remedy where none
exists. Fundamental rules of statutory construction require us
to enforce the statutes as written. Dukes v. J.I. Case Co., 186
Ill. App. 3d 439, 446, 542 N.E.2d 439 (1989). Thus, this court
may not read into the Ethics Act or Election Code words and
provisions that are not expressly included therein or which may
not be fairly implied. American Ambassador Casualty Co. v. City
of Chicago, 205 Ill. App. 3d 879, 884, 563 N.E.2d 882 (1990). We
must guard against creating new rights not supported or suggested
by the statutory language. American Ambassador Casualty Co., 205
Ill. App. 3d at 884.
Nothing in the Election Code or Ethics Act can be fairly
read as creating a private right of action for the willful filing
of a false statement of economic interests. The sanctions
provided are criminal in nature and thus within the province of
the State's Attorney's office. Troutman v. Keys, 156 Ill. App.
3d at 247. Just as the absence of any language in the statutes
suggesting a sanction for the inadvertent filing of a false
statement caused the court in Welch to conclude that the
legislature intended no such sanction, we similarly conclude that
the absence of any language suggesting a noncriminal penalty for
the willful filing of a false statement can only mean that the
legislature intended no such penalty. Accordingly, we agree with
the trial court that it was unnecessary to consider whether
defendant's alleged conduct was willful or inadvertent. In
either case, the court was without authority to grant the relief
requested.
Where a court lacks the power to grant the relief sought,
the court is said to lack subject matter jurisdiction. In re
M.M., 156 Ill. 2d 53, 64, 619 N.E.2d 702 (1993). In the Welch
case, our supreme court held that the circuit court has original
jurisdiction to hear challenges to the truthfulness, correctness
and completeness of statements of economic interests, yet also
ruled that the circuit court lacked the authority to grant the
relief requested. However, the narrow issue before the Welch
court was whether removal from the ballot was a permissible
sanction for the inadvertent filing of a false statement, and the
court's decision was limited to the particular circumstances of
the case. Significantly, the court did not consider the issue we
address today--whether a private right of action exists for the
willful filing of a false statement. Thus, we view the supreme
court's holding that the circuit courts have original
jurisdiction to hear challenges to the truthfulness of statements
of economic interests as an indication only that, to the extent a
remedy or right of action exists under the Election Code or
Ethics Act, the circuit courts are the proper forum in which to
adjudicate such matters, rather than before the election
authorities. Our decision today makes clear that no private
right of action exists under the statutes for the willful filing
of a false statement.
For the foregoing reasons, the decision of the circuit court
in favor of defendant is affirmed.
AFFIRMED.
HARTMAN, P.J., concurs.
JUSTICE HOFFMAN, specially concurring:
While I agree that the summary judgment entered by the trial
court in this case should be affirmed, I write separately to
register my disagreement with the legal analysis employed by the
majority in reaching that conclusion.
Extending the decision in Welch v. Johnson, 147 Ill. 2d 40,
588 N.E.2d 1119 (1992), the majority concludes that the
legislature did not intend removal from the ballot as a sanction
for a candidate's willful filing of a false statement of economic
interest. Slip op. at 7. I disagree.
In Welch, the supreme court held that the circuit courts
have original jurisdiction over challenges to the truthfulness,
correctness, and completeness of statements of economic interest
filed in relation to candidacies for elective office (Welch, 147
Ill. 2d at 46), but concluded that removal from the ballot is not
a proper sanction for the filing of inadvertently untrue, inac-
curate, or incomplete statements of economic interest (Welch, 147
Ill. 2d at 56). The Welch court was careful to point out that
its decision should not be taken as an expression of opinion on
the sanctions available for the filing of willfully false or
incomplete statements of economic interest. Welch, 147 Ill. 2d
at 57. If, as the majority holds, removal from the ballot is not
an available sanction for the willful filing of a false statement
of economic interest, one can only wonder as to the purpose of
the challenge that the Welch court found to be within the juris-
diction of the circuit courts and the relief that might be
granted in such an action.
The purpose of the Illinois Governmental Ethics Act (Ethics
Act) (5 ILCS 420/1-101 et seq. (West 1994)) is to instill in the
public trust and confidence in government and its officials by
preventing conflicts of interest. Stein v. Howlett, 52 Ill. 2d 570, 289 N.E.2d 409 (1972). To that end, the Ethics Act mandates
that candidates for public office file verified written
statements of economic interest (see 5 ILCS 420/4A-101 (West
1994)) which are "true, correct and complete" to the best of the
candidate's "knowledge and belief" (see 5 ILCS 420/4A-103, 104
(West 1994)). Failure to file a statement of economic interest,
"as provided by law," renders a candidate ineligible for office.
Ill. Const. 1970, art. XIII, 2.
To my mind, the filing of a willfully false statement of
economic interest is the functional equivalent of filing no
statement at all. In either case, the very purpose of the Ethics
Act is frustrated. Further, the filing of a willfully false
statement of economic interest is not the filing of a statement
"as provided by law," since the statute mandates the filing of a
true and correct statement.
The majority goes on to hold that its decision "makes clear
that no private right of action exists under the statutes for the
willful filing of a false statement." (Emphasis added.) Slip op.
at 8-9. If the majority means to imply that any action for
sanctions by reason of a violation of the Ethics Act must be
brought by either the attorney general or the state's attorney of
the appropriate county and cannot be brought by a private
citizen, the general proposition finds support in the decision of
this court in Allen v. Love, 112 Ill. App. 3d 338, 445 N.E.2d 514 (1983). However, the question of whether a private
individual can bring such an action is one of standing. The
defendant never moved to dismiss this action by reason of the
plaintiff's lack of standing and never raised the issue in his
brief. Because lack of standing is an affirmative defense (Greer
v. Illinois Housing Development Authority, 122 Ill. 2d 462, 494,
524 N.E.2d 561 (1988)) which, if not raised before the trial
court, is waived (Steier v. Batavia Park District, 283 Ill. App.
3d 968, 971, 670 N.E.2d 1215 (1996), it should not be addressed,
sua sponte, by this court.
My disagreement with the reasoning of the majority notwith-
standing, I too believe that summary judgment was appropriate
under the facts of the case before us.
Summary judgment is to be granted when the moving party is
entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c)
(West 1994); Carruthers v. B.C. Christopher & Co., 57 Ill. 2d 376, 313 N.E.2d 457 (1974). In ruling on a motion for summary
judgment, the court must construe the pleadings and evidentiary
material on file strictly against the movant (Kolakowski v.
Voris, 83 Ill. 2d 388, 415 N.E.2d 397 (1980)), and draw all
reasonable inferences from that evidentiary material which are
favorable to the respondent (Lapidot v. Memorial Medical Center,
144 Ill. App. 3d 141, 494 N.E.2d 838 (1986)). Evidentiary
material submitted in support of a motion for summary judgment
will be taken as true, however, unless contradicted by counter-
evidentiary material submitted in opposition. Carruthers, 57 Ill. 2d at 380; Fooden v. Board of Governors, 48 Ill. 2d 580, 272 N.E.2d 497 (1971).
Section 4A-102 of the Ethics Act (5 ILCS 420/4A-102 (West
1994)) required that the defendant, James E. Sims, a candidate
for the office of alderman in the City of Harvey, file a
statement of economic interest listing, inter alia, the name of
any entity from which he received income in excess of $1,200 in
the preceding calendar year, and the name of any entity doing
business with the City of Harvey in which he had an ownership
interest with a fair market value in excess of $5,000 or from
which he derived dividends in excess of $1,200 in the preceding
calendar year. Sims listed no such entities.
The plaintiff charged that Sims filed a false, untrue, and
incomplete statement of economic interest, and sought his removal
from the ballot. In his original complaint, the plaintiff
charged that Sims intentionally failed to report 1996 income in
excess of $1,200 received from Biotek Corporation, a company
doing business with the City of Harvey, and intentionally failed
to report his position as a maintenance analyst/consultant with
Biotek in 1996, a year in which Biotek received in excess of
$5,000 in compensation from the City of Harvey for janitorial
services.
Sims filed a verified answer to the plaintiff's original
complaint wherein he denied, under oath, that he worked for or
derived any income from Biotek in 1996. Sims also filed his own
affidavit and the affidavit of the sole shareholder of Biotek
stating that Sims did not work for or receive any income from
Biotek in 1996.
Sims moved for summary judgment arguing, among other
grounds, that the affidavits submitted in support of his answer
belied the allegations of the plaintiff's complaint. Although
the plaintiff's complaint was verified, its charging allegations
were made on "information and belief." Further, the plaintiff
never filed counter-evidentiary material in opposition to the
affidavits submitted by Sims. Instead, the plaintiff filed an
amendment to his complaint on the very day that Sims's motion for
summary judgment was before the court for hearing. In that
amendment, the plaintiff alleged that Sims also failed to dis-
close his 1996 income from, and ownership interest in, North
American Service & Supply (North American), a cleaning service
business. However, in response to a notice to produce demanding
all documentary evidence in support of the allegations in his
complaint, the plaintiff produced portions of the City of
Harvey's check register reflecting that North American received a
total of $876.40 in compensation for maintenance services in
1996.
Since the plaintiff submitted nothing in opposition to the
affidavits submitted by Sims, those affidavits must be taken as
true. As such, Sims was clearly entitled to summary judgment on
the plaintiff's original complaint relating solely to his alleged
failure to disclose a relationship to and income from Biotek.
The plaintiff's eleventh-hour amendment to his complaint placed
in issue Sims's alleged failure to disclose his income from and
ownership interest in North American, an entity doing business
with the City of Harvey. Again, however, the plaintiff made his
charges in this regard on "information and belief."
In addition to denying that he derived any income from or
held any position with Biotek in 1996, Sims averred in his
affidavit that his statement of economic interest was true and
correct. One of the assertions made by Sims in his statement of
economic interest was that he examined the document and, to the
best of his knowledge and belief, it was a true, correct and
complete statement of his economic interests as required by the
Ethics Act. The plaintiff submitted no evidentiary material
which, if true, would have required Sims to disclose North
American on his statement of economic interest. Consequently,
Sims's affidavit averring to the truth and correctness of his
statement of economic interest stood uncontradicted.
Although the trial court did not base its entry of summary
judgment in this case on the absence of a genuine issue of
material fact on the plaintiff's charging allegations, this court
can affirm a summary judgment for any reason apparent from the
record. Sentry Insurance Company v. S & L Home Heating Co., 91
Ill. App. 3d 687, 691, 414 N.E.2d 1218 (1980). For the reasons
stated above, I find no genuine issue of fact on the willfulness
of Sims's failure to disclose North American on his statement of
economic interest.
October 10, 1997
No. 1-97-0912
DARYL CRUDUP, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
JAMES E. SIMS, Candidate for the)
Office of Alderman of the Third )
Ward of Harvey, Illinois, ) No. 97 CO 47
NICHOLAS E. GRAVES, Mayor, )
GWENDOLYN L. DAVIS, City Clerk, )
and FRANK PIEKARSKI, Individual )
Members of The Harvey Municipal )
Officers Electoral Board, and )
DAVID ORR, Cook County Clerk, ) The Honorable
) Michael J. Murphy,
Defendants-Appellees. ) Judge Presiding.
JUSTICE HOURIHANE delivered the opinion of the court:
Plaintiff, Daryl Crudup, and defendant, James E. Sims, were
both candidates for election to the office of Alderman of the
Third Ward of the City of Harvey, Illinois. Plaintiff filed a
complaint for declaratory and injunctive relief seeking to keep
defendant's name off the ballot, alleging that defendant filed a
false statement of economic interests in violation of section 4A-
107 of the Governmental Ethics Act (Ethics Act). 5 ILCS 420/4A-
107 (West 1996). The circuit court ruled that it was without
authority to order defendant's name off the ballot and plaintiff
appealed. 155 Ill. 2d R. 301. This court considered the matter
on an expedited basis and, in a separate order, affirmed the
judgment of the circuit court. Our reasons therefor now follow.
As a preliminary matter we consider defendant's motion to
strike portions of plaintiff's reply brief. Defendant asserts
that plaintiff's reply contains improper record and legal
citations and false and misleading misstatements of fact contrary
to Supreme Court Rule 341(e)(6) and (7). 155 Ill. 2d R. 341.
The motion is denied. That is not to say that this court adopts
plaintiff's construction of the record or the law but merely that
for purposes of this appeal plaintiff's reply brief will stand.
The sole issue on appeal is whether a court has the
authority to order a candidate's name off the ballot where the
candidate has willfully filed a false statement of economic
interests. We conclude that it does not.
Section 4A-101 of the Ethics Act mandates that persons who
are candidates for nomination or election to an office in a unit
of local government must file verified written statements of
economic interests. 5 ILCS 420/4A-101(g) (West 1996). Such
disclosures are intended to avoid any conflict of interest
between the government and its officers and employees and to
instill in the public trust and confidence in its elected
officials. Stein v. Howlett, 52 Ill. 2d 570, 578, 289 N.E.2d 409
(1972). Failure to timely file a statement of economic interests
renders the candidate's nomination papers invalid (10 ILCS 5/10-
5(3) (West 1994)), and may also result in ineligibility for, or
forfeiture of, office (5 ILCS 420/4A-107 (West 1996)). See also
Ill. Const. 1970, art. XIII, 2.
Here, we are not faced with a candidate's total failure to
file. Rather, plaintiff alleges that defendant filed a
statement which is false and incomplete and that any
misrepresentation was intentional.
The Ethics Act requires a candidate to file a statement
which, to the best of his knowledge and belief, is true, correct
and complete. 5 ILCS 420/4A-104 (West 1994). A candidate who
willfully files a false or incomplete statement of economic
interests shall be guilty of a Class A misdemeanor. 5 ILCS
420/4A-107 (West 1996). The candidate may also be subject to
prosecution for perjury under the Election Code. 10 ILCS 5/29-10
(West 1994); Troutman v. Keys, 156 Ill. App. 3d 247, 252, 509 N.E.2d 453 (1987). Significantly, there is nothing in the
Election Code, the Ethics Act, or the Illinois Constitution which
provides for a noncriminal sanction for the willful filing of a
false statement of economic interests. Troutman v. Keys, 156
Ill. App. 3d at 252.
Plaintiff argues that section 10-5 of the Election Code,
when read in conjunction with section 4A-107 of the Ethics Act,
makes it clear that where a candidate willfully files a false or
incomplete statement, the candidate's nomination papers are
invalid and removal of his name from the ballot is appropriate.
We disagree with plaintiff's construction of these two statutes.
As previously noted, section 4A-107 of the Ethics Act sets
forth the criminal sanction which attaches to the willful filing
of a false or incomplete statement of economic interests. No
provision is made for removal of a candidate's name from the
ballot or for any other noncriminal sanction.
Similarly, nothing in section 10-5 of the Election Code
persuades us that the relief plaintiff seeks is available.
Section 10-5 provides in relevant part:
"Nomination papers filed under this Section
are not valid if the candidate named therein fails
to file a statement of economic interests as
required in the Illinois Governmental Ethics Act
in relation to his candidacy with the appropriate
officer by the end of the period for the filing of
nomination papers ***." 10 ILCS 5/10-5 (West
1994).
Our supreme court has interpreted the "as required" language
above not as a reference to the substantive requirements of the
Ethics Act, but merely a reference to the fact that the Ethics
Act, and not the Election Code, requires the filing of statements
of economic interests. Welch v. Johnson, 147 Ill. 2d 40, 53, 588 N.E.2d 1119 (1992). Moreover, section 10-5 refers to and is
applicable only where there is a complete failure to file such a
statement. It does not refer to the filing of a statement which
is untrue, incorrect or incomplete. Welch v. Johnson, 147 Ill. 2d at 53-54. Thus, section 10-5 of the Election Code provides no
authority for the court to order the removal of a candidate's
name from the ballot under the circumstances alleged here.
A review of the case law on which plaintiff relies does
not persuade us that the legislature contemplated a noncriminal
sanction for the willful filing of a false statement of economic
interests. In Havens v. Miller, 102 Ill. App. 3d 558, 429 N.E.2d 1292 (1981), this court held that candidates for election to a
school board who filed their statements with the board's
secretary, rather than the county clerk as required by section
4A-106 of the Ethics Act, were ineligible for office. In the
case sub judice there is no allegation that the statement was
filed with the wrong entity and Havens v. Miller is thus not
dispositive of the issue before this court.
In Troutman v. Keys, also cited by plaintiff, we held that
the circuit court possessed original jurisdiction to consider the
correctness and completeness of a candidate's statement of
economic interests. However, because we ultimately determined
that the subject statement was not false, there was no need to
consider what, if any, sanction might attach for the willful or
inadvertent filing of a false statement. Indeed, we recognized
that:
"No provision in the Illinois Constitution,
Election Code or Ethics Act *** expressly provides
or suggests the noncriminal procedure to be
followed and sanctions to be imposed in an
instance where *** it is claimed that the
statement of economic interests, timely filed by a
candidate, contains false representations."
Troutman v. Keys, 156 Ill. App. 3d at 247.
Accordingly, Troutman v. Keys does not mandate the result
plaintiff seeks.
Plaintiff's further reliance on Welch v. Johnson is equally
unavailing. In Welch, our supreme court determined, as a
preliminarily matter, that the circuit courts, rather than the
election boards, have original jurisdiction over challenges to
the truthfulness, correctness and completeness of statements of
economic interests. However, the court went on to hold that
removal from the ballot is not a permissible sanction for the
filing of a statement which is not true, correct and complete due
to inadvertence on the candidate's part. The court examined the
relevant statutes and could find no clear statement by the
legislature that it intended removal from the ballot as a remedy
for an inadvertent omission or misstatement. The court limited
its decision to the particular circumstances of that case and
expressed no opinion "on the sanctions clearly provided by the
legislature for the filing of willfully false or incomplete
statements of economic interests". (Emphasis added.) Welch v.
Johnson, 147 Ill. 2d at 57.
We agree with the Welch opinion that the Ethics Act and
Election Code clearly set forth the sanctions available for the
willful filing of false statements, and we will not engage in
judicial legislation by creating a right or remedy where none
exists. Fundamental rules of statutory construction require us
to enforce the statutes as written. Dukes v. J.I. Case Co., 186
Ill. App. 3d 439, 446, 542 N.E.2d 439 (1989). Thus, this court
may not read into the Ethics Act or Election Code words and
provisions that are not expressly included therein or which may
not be fairly implied. American Ambassador Casualty Co. v. City
of Chicago, 205 Ill. App. 3d 879, 884, 563 N.E.2d 882 (1990). We
must guard against creating new rights not supported or suggested
by the statutory language. American Ambassador Casualty Co., 205
Ill. App. 3d at 884.
Nothing in the Election Code or Ethics Act can be fairly
read as creating a private right of action for the willful filing
of a false statement of economic interests. The sanctions
provided are criminal in nature and thus within the province of
the State's Attorney's office. Troutman v. Keys, 156 Ill. App.
3d at 247. Just as the absence of any language in the statutes
suggesting a sanction for the inadvertent filing of a false
statement caused the court in Welch to conclude that the
legislature intended no such sanction, we similarly conclude that
the absence of any language suggesting a noncriminal penalty for
the willful filing of a false statement can only mean that the
legislature intended no such penalty. Accordingly, we agree with
the trial court that it was unnecessary to consider whether
defendant's alleged conduct was willful or inadvertent. In
either case, the court was without authority to grant the relief
requested.
Where a court lacks the power to grant the relief sought,
the court is said to lack subject matter jurisdiction. In re
M.M., 156 Ill. 2d 53, 64, 619 N.E.2d 702 (1993). In the Welch
case, our supreme court held that the circuit court has original
jurisdiction to hear challenges to the truthfulness, correctness
and completeness of statements of economic interests, yet also
ruled that the circuit court lacked the authority to grant the
relief requested. However, the narrow issue before the Welch
court was whether removal from the ballot was a permissible
sanction for the inadvertent filing of a false statement, and the
court's decision was limited to the particular circumstances of
the case. Significantly, the court did not consider the issue we
address today--whether a private right of action exists for the
willful filing of a false statement. Thus, we view the supreme
court's holding that the circuit courts have original
jurisdiction to hear challenges to the truthfulness of statements
of economic interests as an indication only that, to the extent a
remedy or right of action exists under the Election Code or
Ethics Act, the circuit courts are the proper forum in which to
adjudicate such matters, rather than before the election
authorities. Our decision today makes clear that no private
right of action exists under the statutes for the willful filing
of a false statement.
For the foregoing reasons, the decision of the circuit court
in favor of defendant is affirmed.
AFFIRMED.
HARTMAN, P.J., concurs.
JUSTICE HOFFMAN, specially concurring:
While I agree that the summary judgment entered by the trial
court in this case should be affirmed, I write separately to
register my disagreement with the legal analysis employed by the
majority in reaching that conclusion.
Extending the decision in Welch v. Johnson, 147 Ill. 2d 40,
588 N.E.2d 1119 (1992), the majority concludes that the
legislature did not intend removal from the ballot as a sanction
for a candidate's willful filing of a false statement of economic
interest. Slip op. at 7. I disagree.
In Welch, the supreme court held that the circuit courts
have original jurisdiction over challenges to the truthfulness,
correctness, and completeness of statements of economic interest
filed in relation to candidacies for elective office (Welch, 147
Ill. 2d at 46), but concluded that removal from the ballot is not
a proper sanction for the filing of inadvertently untrue, inac-
curate, or incomplete statements of economic interest (Welch, 147
Ill. 2d at 56). The Welch court was careful to point out that
its decision should not be taken as an expression of opinion on
the sanctions available for the filing of willfully false or
incomplete statements of economic interest. Welch, 147 Ill. 2d
at 57. If, as the majority holds, removal from the ballot is not
an available sanction for the willful filing of a false statement
of economic interest, one can only wonder as to the purpose of
the challenge that the Welch court found to be within the juris-
diction of the circuit courts and the relief that might be
granted in such an action.
The purpose of the Illinois Governmental Ethics Act (Ethics
Act) (5 ILCS 420/1-101 et seq. (West 1994)) is to instill in the
public trust and confidence in government and its officials by
preventing conflicts of interest. Stein v. Howlett, 52 Ill. 2d 570, 289 N.E.2d 409 (1972). To that end, the Ethics Act mandates
that candidates for public office file verified written
statements of economic interest (see 5 ILCS 420/4A-101 (West
1994)) which are "true, correct and complete" to the best of the
candidate's "knowledge and belief" (see 5 ILCS 420/4A-103, 104
(West 1994)). Failure to file a statement of economic interest,
"as provided by law," renders a candidate ineligible for office.
Ill. Const. 1970, art. XIII, 2.
To my mind, the filing of a willfully false statement of
economic interest is the functional equivalent of filing no
statement at all. In either case, the very purpose of the Ethics
Act is frustrated. Further, the filing of a willfully false
statement of economic interest is not the filing of a statement
"as provided by law," since the statute mandates the filing of a
true and correct statement.
The majority goes on to hold that its decision "makes clear
that no private right of action exists under the statutes for the
willful filing of a false statement." (Emphasis added.) Slip op.
at 8-9. If the majority means to imply that any action for
sanctions by reason of a violation of the Ethics Act must be
brought by either the attorney general or the state's attorney of
the appropriate county and cannot be brought by a private
citizen, the general proposition finds support in the decision of
this court in Allen v. Love, 112 Ill. App. 3d 338, 445 N.E.2d 514 (1983). However, the question of whether a private
individual can bring such an action is one of standing. The
defendant never moved to dismiss this action by reason of the
plaintiff's lack of standing and never raised the issue in his
brief. Because lack of standing is an affirmative defense (Greer
v. Illinois Housing Development Authority, 122 Ill. 2d 462, 494,
524 N.E.2d 561 (1988)) which, if not raised before the trial
court, is waived (Steier v. Batavia Park District, 283 Ill. App.
3d 968, 971, 670 N.E.2d 1215 (1996), it should not be addressed,
sua sponte, by this court.
My disagreement with the reasoning of the majority notwith-
standing, I too believe that summary judgment was appropriate
under the facts of the case before us.
Summary judgment is to be granted when the moving party is
entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c)
(West 1994); Carruthers v. B.C. Christopher & Co., 57 Ill. 2d 376, 313 N.E.2d 457 (1974). In ruling on a motion for summary
judgment, the court must construe the pleadings and evidentiary
material on file strictly against the movant (Kolakowski v.
Voris, 83 Ill. 2d 388, 415 N.E.2d 397 (1980)), and draw all
reasonable inferences from that evidentiary material which are
favorable to the respondent (Lapidot v. Memorial Medical Center,
144 Ill. App. 3d 141, 494 N.E.2d 838 (1986)). Evidentiary
material submitted in support of a motion for summary judgment
will be taken as true, however, unless contradicted by counter-
evidentiary material submitted in opposition. Carruthers, 57 Ill. 2d at 380; Fooden v. Board of Governors, 48 Ill. 2d 580, 272 N.E.2d 497 (1971).
Section 4A-102 of the Ethics Act (5 ILCS 420/4A-102 (West
1994)) required that the defendant, James E. Sims, a candidate
for the office of alderman in the City of Harvey, file a
statement of economic interest listing, inter alia, the name of
any entity from which he received income in excess of $1,200 in
the preceding calendar year, and the name of any entity doing
business with the City of Harvey in which he had an ownership
interest with a fair market value in excess of $5,000 or from
which he derived dividends in excess of $1,200 in the preceding
calendar year. Sims listed no such entities.
The plaintiff charged that Sims filed a false, untrue, and
incomplete statement of economic interest, and sought his removal
from the ballot. In his original complaint, the plaintiff
charged that Sims intentionally failed to report 1996 income in
excess of $1,200 received from Biotek Corporation, a company
doing business with the City of Harvey, and intentionally failed
to report his position as a maintenance analyst/consultant with
Biotek in 1996, a year in which Biotek received in excess of
$5,000 in compensation from the City of Harvey for janitorial
services.
Sims filed a verified answer to the plaintiff's original
complaint wherein he denied, under oath, that he worked for or
derived any income from Biotek in 1996. Sims also filed his own
affidavit and the affidavit of the sole shareholder of Biotek
stating that Sims did not work for or receive any income from
Biotek in 1996.
Sims moved for summary judgment arguing, among other
grounds, that the affidavits submitted in support of his answer
belied the allegations of the plaintiff's complaint. Although
the plaintiff's complaint was verified, its charging allegations
were made on "information and belief." Further, the plaintiff
never filed counter-evidentiary material in opposition to the
affidavits submitted by Sims. Instead, the plaintiff filed an
amendment to his complaint on the very day that Sims's motion for
summary judgment was before the court for hearing. In that
amendment, the plaintiff alleged that Sims also failed to dis-
close his 1996 income from, and ownership interest in, North
American Service & Supply (North American), a cleaning service
business. However, in response to a notice to produce demanding
all documentary evidence in support of the allegations in his
complaint, the plaintiff produced portions of the City of
Harvey's check register reflecting that North American received a
total of $876.40 in compensation for maintenance services in
1996.
Since the plaintiff submitted nothing in opposition to the
affidavits submitted by Sims, those affidavits must be taken as
true. As such, Sims was clearly entitled to summary judgment on
the plaintiff's original complaint relating solely to his alleged
failure to disclose a relationship to and income from Biotek.
The plaintiff's eleventh-hour amendment to his complaint placed
in issue Sims's alleged failure to disclose his income from and
ownership interest in North American, an entity doing business
with the City of Harvey. Again, however, the plaintiff made his
charges in this regard on "information and belief."
In addition to denying that he derived any income from or
held any position with Biotek in 1996, Sims averred in his
affidavit that his statement of economic interest was true and
correct. One of the assertions made by Sims in his statement of
economic interest was that he examined the document and, to the
best of his knowledge and belief, it was a true, correct and
complete statement of his economic interests as required by the
Ethics Act. The plaintiff submitted no evidentiary material
which, if true, would have required Sims to disclose North
American on his statement of economic interest. Consequently,
Sims's affidavit averring to the truth and correctness of his
statement of economic interest stood uncontradicted.
Although the trial court did not base its entry of summary
judgment in this case on the absence of a genuine issue of
material fact on the plaintiff's charging allegations, this court
can affirm a summary judgment for any reason apparent from the
record. Sentry Insurance Company v. S & L Home Heating Co., 91
Ill. App. 3d 687, 691, 414 N.E.2d 1218 (1980). For the reasons
stated above, I find no genuine issue of fact on the willfulness
of Sims's failure to disclose North American on his statement of
economic interest.
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