Thomas v. Powell

June 12, 1997.
4th Division





No. 1--97--1031

WILLIAM THOMAS,                         )    Appeal from the
                                        )    Circuit Court of
     Plaintiff-Appellee,                )    Cook County.
                                        )
               v.                       )    
                                        )
EARL JAMES POWELL, Candidate, DANIEL    )
MADDEN, Representative for DAVID ORR,   )
Cook County Clerk, as Chairman, RALPH   )
SCHROEDER, Representative for AURELIA   )
PUCINSKI, Clerk of the Circuit Court of )
Cook County, as member, DAVID BONOMA,   )
Representative for Cook County State's  )
Attorney RICHARD DEVINE, as member, all )
in their Official Capacity as members   )
of the COOK COUNTY OFFICERS ELECTORAL   )
BOARD, et al.,                          )    Honorable
                                        )    Francis Barth,
     Defendants-Appellants.             )    Judge Presiding.


     JUSTICE BURKE delivered the opinion of the court: 
     
     Defendants, members of the Cook County Officers Electoral
Board (Board), appeal from an order of the circuit court of Cook
County reversing a decision of the Board finding that defendant
Earl James Powell (Powell), a candidate for election to the office
of Commissioner of the Dolton Park District, was not required under
the Illinois Election Code to file a "Statement of Economic
Interests" (Economic Statement) in the same calendar year as his
nomination papers.  On appeal, the Board argues that the trial
court applied the wrong standard of review, misinterpreted and
incorrectly applied the Election Code and Illinois Governmental
Ethics Act (Ethics Act), and the court should have made its
judgment apply prospectively.  For the reasons set forth below, we
vacate the circuit court's order.
     Sometime between January 13 and 21, 1997, Powell filed his
nomination papers for the position of Commissioner of the Dolton
Park District.  He attached a receipt from the Cook County Clerk
acknowledging that his Economic Statement was received on December
23, 1996.  On January 30, 1997, plaintiff William Thomas (Thomas)
filed a "Verified Objector s Petition" against Powell with the
Board.  Thomas alleged that Powell s nomination papers did not
comply with the Election Code and were invalid, in pertinent part,
because, Powell argued, the Election Code requires the Economic
Statement to be filed in the same calendar year as the nomination
papers.  Thomas, through counsel, and Powell in his own behalf,
appeared before the Board on February 3, 1997.  Thomas agreed to
file a list of cases supporting his arguments and Powell was given
an opportunity to respond.
     On February 5, 1997, Thomas submitted a memorandum in support
of his petition to the Board.  In his memorandum, he argued that
section 10--5 of the Election Code (10 ILCS 5/10--5 (West 1993))
mandates that a candidate's Economic Statement be filed with his
nomination papers or at least during the specific seven-day filing
period for the nomination papers.  He further argued that the only
exception to this rule is when the Economic Statement is filed in
the same calendar year with the same governmental unit for which
the nomination papers are filed.  According to Thomas, because
Powell s Economic Statement was filed in a different year (1996)
than his nomination papers (1997) and was thus outside the period
for filing nomination papers, Powell therefore failed to comply
with section 10--5.  Powell did not file a response to Thomas'
petition.
     On February 10, the Board held a hearing on Thomas' petition. 
Powell was not present at the hearing.  On February 21, the Board
entered its decision, holding, in pertinent part, that while there
may be reasons for preferring a same-year filing of an Economic
Statement and nomination papers, the Election Code and the Ethics
Act do not require such a filing.
     On March 4, Thomas filed a complaint for review of the Board's
decision and a motion for an expedited hearing in the circuit
court.  Thomas raised the same arguments that he had raised before
the Board.  The trial court subsequently entered an order enjoining
the Cook County Clerk and the Board from printing ballots for this
election.
     On March 12, the Board filed a response to Thomas' complaint,
arguing that the standard of review of the Board's findings of fact
is whether they are contrary to the manifest weight of the evidence
and that the trial court should "accord substantial weight and
deference" to the Board's legal interpretations.  The Board also
contended that section 10--5 of the Election Code merely required
Powell to file his Economic Statement before the close of the
filing period for nomination papers and that section 4A--105 of the
Ethics Act (5 ILCS 420/4A--105 (West Supp. 1996)) required that the
Economic Statement be filed by the end of the period during which
Powell could attempt to qualify for nomination if he had not
already filed an Economic Statement in relation to the same unit of
government within the preceding year.  The Board maintained that
because Powell filed his Economic Statement prior to the end of the
filing period for nomination papers, he met the requirements of
both the Election Code and the Ethics Act.
     Thomas filed a reply to the Board s response, arguing that the
trial court s standard of review was de novo.  He also disputed the
Board's construction of the statutes.
     On March 18, the trial court heard arguments on Thomas'
complaint.  Thereafter, in reversing the Board's decision, the
court stated that the standard of review of the Board's decision
was de novo, that the determination of the period of a party's
candidacy was "essential to a proper determination of this matter,"
and that there has to be a time in which a person is recognized by
law as being a candidate so that the filing of his Economic
Statement can be in relation to the candidacy.  The court found
that the legislative intent of the Election Code and the Ethics Act
was to provide the public with the most recent information on
candidates' finances and that the only way for the clear language
of these statutes to support this intent was to recognize that the
period for filing the Economic Statement is the same period for
becoming a candidate under section 10--6 of the Election Code (10
ILCS 5/10--6 (West 1993)).  The court further stated that a "split
filing" of the Economic Statement and the nomination papers was
"mischievous" and denied citizens the right to know the "most
current" information about a candidate.  The court held that on
December 23, 1996, when Powell filed his Economic Statement, he was
not yet a candidate and thus the filing could not apply to his
candidacy.  While the trial court apparently found that the
Election Code and the Ethics Act did not specifically provide for
a beginning date to file an Economic Statement, the court held that
it was necessary to provide one through judicial construction. 
This appeal followed.
     We find that the trial court and the Board lacked subject
matter jurisdiction over this matter.  While neither party here
raised the issue of jurisdiction before the Board or the trial
court, the "subject matter jurisdiction of the trial court may be
challenged at any time in the appellate process."  People ex rel.
Klingelmueller v. Haas, 111 Ill. App. 3d 88, 92, 443 N.E.2d 782
(1982).  Section 10--8 of the Election Code (10 ILCS 5/10--8 (West
1993)) provides, in pertinent part:
          "Certificates of nomination and nomination
          papers, and petitions to submit public
          questions to a referendum, being filed as
          required by this Code, and being in apparent
          conformity with the provisions of this Act,
          shall be deemed to be valid unless objection
          thereto is duly made in writing within 5
          business days after the last day for filing
          the certificate of nomination or nomination
          papers or petition for a public question ***.
          ***
                                In the case of nomination papers or
          certificates of nomination, the State Board of
          Elections, election authority or local
          election official shall note the day and hour
          upon which such objector's petition is filed
          ***."  (Emphasis added.)
          The parties do not dispute that the last day on which Powell could
file his nomination papers was January 21, 1997.  The record before
us shows that Thomas' "Verified Objector's Petition" was stamped
"received" by the Election Department of the Cook County clerk's
office on January 30, 1997.  This is more than five business days
after the final day on which Powell could file his nomination
papers.  Therefore, Thomas' objection was untimely.  Although
Thomas asserted during oral argument before this court that his
petition objecting to Powell's nomination papers was initially
timely filed at the Dolton Park District and that the Park District
apparently failed to note the date and time received, this court's
review is limited to evidence in the record on appeal; we cannot
rely upon mere assertions by a party.  The stamped petition is the
only document upon which this court can rely in determining whether
Thomas' filing of his objection complied with the mandate of
section 10--8, i.e., that it be filed within five business days
after the last day for filing nomination papers, as evidenced by
the additional requirement that the local election official note
the day and time of filing.  Accordingly, in the absence of a
notation on the petition of the alleged Park District filing, we
cannot assume that such a filing occurred.  Because the petition
was not timely filed, Thomas waived any objection to Powell's
status as a candidate because he failed to object to the
sufficiency of Powell's nomination papers in the manner prescribed
by statute.  Haas, 111 Ill. App. 3d at 90.  Therefore, the Board
and the trial court lacked subject matter jurisdiction over this
matter.  Haas; Swinger v. Municipal Officers' Electoral Board, 180
Ill. App. 3d 74, 76-77, 535 N.E.2d 938 (1989).  Since neither the
Board nor the trial court had subject matter jurisdiction, nothing
flowing from the Board's proceedings and the trial court's
subsequent reversal has any validity.  See Swinger, 180 Ill. App.
3d at 77.  In light of our holding, we need not address the Board's
argument that the Election Code and Ethics Act do not require that
an Economic Statement and nomination papers be filed in the same
calendar year, or its other arguments.
     Accordingly, for the reasons stated, we vacate the order of
the circuit court of Cook County.
     Vacated.
     WOLFSON, P.J., and MCNAMARA, J., concur.