Requena v. Cook County Officers Electoral Bd.

FIRST DIVISION
MARCH 16, 1998

No. 1-98-0561

BERTA REQUENA,

Petitioner-Appellant,

v.

COOK COUNTY OFFICERS ELECTORAL BOARD,
and its members, DAVID ORR, RICHARD
DEVINE and AURELIA PUCINKSI,

Respondents-Appellees.

(Ernest E. Wiley, Jr., Objector).)
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)Appeal from the
Circuit Court of
Cook County

No. 98 CO 27

Honorable
Raymond L.
Jagielski,
Judge Presiding.


JUSTICE O'MARA FROSSARD delivered the opinion of the court:
Petitioner Berta Requena appeals from a circuit court order
affirming the January 30, 1998, decision by the Cook County
Electoral Board (Board) not to permit her name to be placed on
the March 17, 1998, Democratic primary ballot for the office of
judge of the circuit court of Cook County to fill the vacancy of
the Honorable Gino DiVito. This court considered the matter on
an expedited basis and, in a separate order, reversed the
judgment of the circuit court and ordered petitioner's name to be
placed on the March 17, 1998, Democratic primary ballot for the
office of Judge of the Circuit Court of Cook County to fill the
vacancy of the Honorable Gino DiVito. Our reasons therefor now
follow.
I. FACTS
Petitioner filed nomination papers for the circuit court
judicial vacancy for the upcoming primary, including a receipt
for the statement of economic interest filed with the Secretary
of State pursuant to section 4A-104 of the Illinois Governmental
Ethics Act (Ethics Act)(5 ILCS 420/4A-104 (West 1994)).
Petitioner stated on the statement and corresponding receipt that
she was filing for the office of "Circuit Court of Cook County."
Objector Edward Wiley filed a verified petition challenging
petitioner's nomination papers with the Board, asserting that the
statement did not properly state the office sought and thus the
nomination papers were invalid.
After conducting a hearing, the Board sustained Mr. Wiley's
objection and did not permit petitioner's name to be placed on
the ballot. The Board found that petitioner did not adequately
designate the office she sought on her statement of economic
interests, as she failed to specify which of the 23 judgeships on
the circuit court of Cook County she sought. The Board noted she
listed only "Circuit Court of Cook County" as the office
designation on her statement, and found the statement to be
inadequate as a matter of law.
On February 18, 1998, the trial court affirmed the Board's
decision to keep petitioner's name off the ballot. It is from
this order that petitioner appeals.

II. ANALYSIS
The purpose behind the Election Code's requirement that a
candidate file a statement of economic interests is to facilitate
the public's right to information concerning financial dealings
between a candidate and the unit of government in which he or she
seeks office. 10 ILCS 5/10-5 (West 1994); Bryant v. Cook County
Electoral Board, 195 Ill. App. 3d 556, 553 N.E.2d 25 (1990). In
the present case, neither the objector nor the Electoral Board
challenges the economic disclosures within petitioner's
statement; in fact, petitioner declares no economic interests in
her statement.
Rather, the issue is whether petitioner accurately
identified the office that she was seeking on the statement of
economic interests and, if not, whether removal from the ballot
is an appropriate sanction.
Petitioner first contends that her statement of economic
interest was correctly filed and that including the phrase
"Circuit Court of Cook County" sufficiently described the office
she was seeking. We cannot agree.
The document itself explicitly requires a more specific
description of the office sought. The statement calls for the
following: "DEPARTMENT OR AGENCY - and office or position of
employment for which this statement is filed." The phrase
"Circuit Court of Cook County" does not fully indicate what
office or position of employment petitioner is seeking and thus
is incomplete.
We believe the statement of economic interests should
indicate the office she is seeking is that of judge of the
circuit court of Cook County. Ideally, the description should
include the vacancy sought by petitioner, in this case, the
vacancy of the Honorable Gino DiVito. This would ensure the
document completely and accurately informs the public of the
nature of petitioner's candidacy.
In Lewis v. Dunne, 63 Ill. 2d 48, 344 N.E.2d 443 (1976), the
candidate listed the office he sought as "Judge of the Appellate
Court, First Judicial District" on his statement of candidacy,
but did not specify the vacancy. The supreme court overturned
the Electoral Board's decision that failure to specify the
vacancy in his statement of candidacy rendered his nominating
papers invalid. Likewise, we agree that for purposes of a
statement of economic interests, the inclusion of the judicial
vacancy is preferable, but not necessary, in order for the
statement to be complete and accurate regarding the office or
position sought.
The situation in the present case is similar to that in
Jones v. Municipal Officers Electoral Board, 112 Ill. App. 3d
926, 446 N.E.2d 256 (1983). In Jones, a candidate for an
aldermanic election filed a statement of economic interests that
failed to designate the office for which the statement was filed
beyond the words "3rd Ward." The court found that the words "3rd
Ward" did not adequately describe the office of alderman of the
third ward as required not only by section 4A-104 of the Ethics
Act, but also by section 10-5 of the Election Code, which
provides that "[n]omination papers *** are not valid if the
candidate named therein fails to file a statement of economic
interests *** in relation to his candidacy." (emphasis in
original), Jones, 112 Ill. App. 3d at 929, quoting Ill. Rev.
Stat. 1981, ch. 46, par. 10-5(3).
The present case is factually analogous to Jones. In the
present case, petitioner also failed to adequately indicate which
office she was seeking. However, we differ from the Jones court
as to what sanction is appropriate for such an error in a
statement of economic interests.
In Jones, the court found the requirement that a candidate
file a statement in relation to his candidacy (i.e., include the
office sought) to be mandatory, not directory. The court held
that removal from the ballot is therefore a proper sanction for
failure to comply. Jones, 112 Ill. App. 3d at 929. In light of
more recent case law on the subject of sanctions, we find that
the sanction in Jones, removal from the ballot, is not
appropriate in the present situation.
In support of the assertion that removal from the ballot is
an improper sanction for failure to adequately indicate what
office she sought, petitioner cites Welch v. Johnson, 147 Ill. 2d 40, 588 N.E.2d 1119 (1992). In Welch, the Illinois Supreme Court
held that "removal from the ballot is not a permissible sanction
for the filing of a statement of economic interests which is not
true, correct and complete when filed with the appropriate
officer merely due to the inadvertence on the part of the person
filing the statement." Welch, 147 Ill. 2d at 51.
In Welch, a candidate for mayor of Harvey timely filed his
statement of economic interests but omitted the fact he was
employed with a unit of government at the time of his candidacy
and that he received an honorarium in excess of $500. He filed
an amended statement, and the trial court found that it met all
the statutory requirements. The appellate court reversed,
holding that the candidate had failed to comply with the
requirements prescribed by Illinois statute and his name should
not have appeared on the ballot. However, the supreme court
reversed, and held that removal from the ballot is not a
permissible sanction for the filing of a statement of economic
interests which is not true, correct and complete merely due to
inadvertence on the part of the person filing the statement.
Welch, 147 Ill. 2d at 51.
Petitioner also cites the recent case of Crudup v. Sims, 292
Ill. App. 3d 1075, 686 N.E.2d 714 (1997), which extended the
holding of Welch. Relying on the Welch rationale, the court held
that a candidate's name cannot be ordered off the ballot where
the candidate has willfully filed a false statement of economic
interests, as the General Assembly had not provided for such a
sanction. Crudup, 292 Ill. App. 3d at 1077.
We agree with petitioner's assertion that the holding in
Welch and the rationale of Crudup apply to the present case and
hold that the trial court's determination not to allow petitioner
on the ballot was an improper sanction.
We first examine the relevant provisions of Illinois law.
Section 10-5 of the Election Code provides that nomination papers
are invalid "if the candidate named therein fails to file a
statement of economic interests as required in the 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). This section refers to and is applicable
only where there is a complete failure to file such a statement,
and does not refer to the filing of a statement that is untrue,
incorrect or incomplete. Crudup v. Sims, 292 Ill. App. 3d at
1077; Welch, 147 Ill. 2d at 51.
Section 4A-104 of the Ethics Act outlines procedures related
to the filing of statements of economic interests and provides
for a verification clause in which the candidate is required to
declare he or she has examined the statement and believes it to
be true, correct and complete. 5 ILCS 420/4A-104 (West 1994). The
verification clause further states the candidate understands that
the penalty for willfully filing a false or incomplete statement
shall be a fine or imprisonment.
Section 4A-107 of the Ethics Act outlines the sanction for
willfully filing a false or incomplete statement of economic
interests, which is a Class A misdemeanor. 5 ILCS 420/4A-107
(West 1996). These sanctions are criminal in nature and within
the province of the office of the Cook County State's Attorney.
Troutman v. Keys, 156 Ill. App. 3d 247, 509 N.E.2d 453 (1987).
The candidate may also be subject to prosecution for perjury
under the Election Code. 10 ILCS 5/29-10 (West 1994).
Finally, section 4A-107 of the Ethics Act further provides
that failure to file a statement within the time prescribed shall
result in ineligibility for, or forfeiture of, office or position
of employment.
A reading of the plain language of these statutes indicates
that removal from the ballot is not a permissible sanction for
the filing of a statement of economic interest that is not true,
correct and complete when filed with the appropriate officer due
to inadvertence or mistake on the part of the person filing the
statement. Crudup v. Sims, 292 Ill. App. 3d at 1077; Welch, 147 Ill. 2d at 51.
As noted by the supreme court in Welch, it is a fundamental
principle of statutory construction that the express mention of
one thing in a statute excludes all other things not mentioned.
Welch, 147 Ill. 2d at 52. In providing for criminal penalties
for the willful filing of a false or incomplete statement and
forfeiture of office for completely neglecting to file a
statement, yet not imposing any sanction for the filing of an
inadvertently incomplete or inaccurate statement, the Ethics Act
strongly intimates that the General Assembly intended no sanction
for such a filing. Welch, 147 Ill. 2d at 51-52. The existence
of an implied sanction of removal from the ballot has been
expressly rejected by the courts in Welch and Crudup, and it is
inconsistent with the plain language of the statutes and the
basic principles of statutory construction.
Further, there is nothing in the Ethics Act, the Election
Code or the Illinois Constitution which provides for a
noncriminal sanction for the willful filing of a false statement
of economic interest. Crudup, 292 Ill. App. 3d at 1077;
Troutman, 156 Ill. App. 3d at 252. We find it illogical that the
willful filing of a false statement would not merit removal from
the ballot, but making an inadvertent omission regarding the
wording of the office sought would result in such a penalty.
The state has a compelling interest in preserving the
integrity of the electoral process and in regulating the number
of candidates on the ballot. Havens v. Miller, 102 Ill. App. 3d
558, 429 N.E.2d 1292 (1981). However, provisions imposing
disqualification of candidates must be construed strictly in
favor of eligibility. Bryant, 195 Ill. App. 3d at 558. We will
not impose a sanction of disqualification for an inadvertent
mistake such as the one in the present case without a clear
indication from the General Assembly that this is the appropriate
penalty.
For the foregoing reasons, the order of the trial court
affirming the Board's decision is reversed.
Reversed.
GORDON and QUINN, JJ., concur.