Cortez v. Municipal Officers Electoral Board for the City of Calumet City
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2013 IL App (1st) 130442
SIXTH DIVISION
February 25, 2012
No. 1-13-0442
RITA H. CORTEZ, PATRICIA TWYMON,
ANTHONY SMITH, REGINALD WHITLEY,
WILBUR TILMAN, DEJUAN GARDNER,
RAMONDE WILLIAMS, TYHANI HILL, and
LARRY CABALLERO,
)
)
)
)
)
)
Petitioners-Appellees,
)
)
v.
)
)
MUNICIPAL OFFICERS ELECTORAL BOARD )
FOR THE CITY OF CALUMET CITY,
)
ADOLF AGUILAR, RANDY BARRON,
)
BETTY BOLES, JOSEPH L. CASTELLANOS, )
GUY EVELAND, ROBERT FREDRICKSEN,
)
STEVON GRANT, DEBORAH
)
HAYNES-SHEGOG, CASSANDRA HOLBERT, )
BERNICE M. MCCLENDON, SALIMAH
)
MUHAMMAD, ANNIE M. SMITH, and
)
CARRIE SPAULDING,
)
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Respondents-Appellants.
)
Appeal from the
Circuit Court of
Cook County.
No. 2012-COEL-026
Honorable
Edmund Ponce de Leon,
Judge Presiding.
JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices Hall and Reyes concurred in the judgment and opinion.
OPINION
¶1
In the case at bar, the respondent, Municipal Officers Electoral Board for
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the City of Calumet City (the Board) was persuaded by certain objections made to
the nominating papers of nine Democratic candidates for various offices in
Calumet City; and, thus, the Board ruled that the candidates' names could not be
placed on the ballot for the February 26, 2013, consolidated primary election. The
circuit court of Cook County reversed the Board's order, and the Board now
appeals to us. This appeal concerns the candidacy of the following nine
candidates: Rita Cortez, Patricia Twymon, Anthony Smith, Reginald Whitley,
Wilbur Tilman, DeJuan Gardner, RaMonde Williams, Tyhani Hill, and Larry
Caballero,. For the reasons stated below, we reverse the Board's decision with
respect to the first eight candidates and, thus, find that their names may remain on
the ballot. However, we affirm the Board's decision with respect to Larry
Caballero and, thus, find that his name may not remain on the ballot.
¶2
BACKGROUND
¶3
I. Facts Relating to All Nine Candidates
¶4
An objection common to the nominating papers of all nine candidates was
that the words in the notarization, "who is to me personally known," were omitted
on the candidates' "Statement of Candidacy."
¶5
Section 7-10 of the Election Code provides that the notarization on this
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statement "shall be in substantially the following form[:]"
"Subscribed and sworn to (or affirmed) before me by ***
who is to me personally known, on (insert date)."
(Ellipsis and parentheses in original.) 10 ILCS 5/7-10
(West 2010).
¶6
In contrast, the notarization on the statements of these nine candidates stated
only: "Signed and sworn to (or affirmed) by *** before me, on ***." The Board
sustained this objection with respect to all nine candidates.
¶7
¶8
II. Facts Relating Only to Caballero
The objections which pertained only to candidate Larry Caballero
concerned his "Statement of Economic Interests." Caballero was required to file a
Statement of Economic Interests that would have provided information on his
dealings with Calumet City. Instead, he completed a Statement of Economic
Interests that was designed to provide information on his dealings with a different
government entity, namely, the State of Illinois.
¶9
Our state statute requires candidates for office to provide a "Statement of
Economic Interests." There is one form for candidates for state-wide office which
poses questions pertaining to the State of Illinois (5 ILCS 420/4A-103 (West
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2010)); and there is a different form for candidates for local office which asks
questions pertaining to the local unit of government at issue (5 ILCS 420/4A-104
(West 2010)) which, in the case at bar, was Calumet City. As will be discussed
later, there are substantial differences between the two forms.
¶ 10 For whatever reason, whether inadvertence or deliberate intent, Caballero
chose to file the form for statewide candidates which asked questions about his
connections with the State of Illinois. Thus, he was never faced with the questions
about his connections to Calumet City. On the form that he did file, he answered
"N/A" or "not applicable" to every question.
¶ 11 As a result, there was an objection made that Caballero failed to file a
Statement of Economic Interest as required by law. An additional objection was
made that he failed to file a receipt for the filing of the Statement of Economic
Interest with the Cook County clerk by the end of the filing period. The Board
sustained these objections and found his nominating paper to be invalid in its
entirety.
¶ 12
ANALYSIS
¶ 13
I. Standard of Review
¶ 14 Where an administrative board's decision has been reviewed by the circuit
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court, the appellate court reviews the decision of the electoral board rather than the
decision of the circuit court. Pascente v. County Officers Electoral Board of the
County of Cook, 373 Ill. App. 3d 871, 873 (2007); Cinkus v. Village of Stickney
Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008). When the
dispute is over the interpretation of a statute, as it is in this case, then the question
is purely one of law and our standard of review is de novo. Cinkus, 228 Ill. 2d at
210. See also Pascente, 373 Ill. App. 3d at 873 ("The question of interpreting
whether a candidate complied substantially with the Election Code is a question of
law.").
¶ 15
II. The Notarization
¶ 16 On this appeal, the appellants argue that the Election Code provides
different notarization language for two different documents: (1) the petition
document that candidates use to obtain signatures from voters; and (2) the
Statement of Candidacy. 10 ILCS 5/7-10 (West 2010). The notarization for the
petition states: "Subscribed to and sworn to before me on (insert date)," while the
notarization for the Statement of Candidacy contains the following longer form:
"Subscribed and sworn to (or affirmed) before me by *** who is to me personally
known, on (insert date)." 10 ILCS 5/7-10 (West 2010). The appellants argue that
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the difference in language indicates a legislative intent to use the longer form on
the Statement of Candidacy.
¶ 17 There is no dispute that these nine candidates used the short form, rather
than the long form. There is also no dispute that the statute provides that the long
form should be used on the Statement of Candidacy. The only dispute is whether
the legislature intended the striking of the candidates' names from the ballot to be
the appropriate sanction for a mistake in the use of the wrong notarization form.
¶ 18 The primary objective of statutory interpretation is to give effect to the
intent of the legislature. Lacey v. Village of Palatine, 232 Ill. 2d 349, 361 (2009).
Each word, clause and sentence of the statute must be given reasonable meaning
and not rendered superfluous. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264,
280 (2003).
¶ 19 First, the statute does not affirmatively state that the sanction for a
discrepancy in language is the striking of the entire candidacy. Second, and most
importantly, the statue does state that the Statement of Candidacy has to be only
"in substantially the following form." 10 ILCS 5/7-10 (West 2010). See
O'Connor v. Cook County Officers Electoral Board, 281 Ill. App. 3d 1100, 1113
(1996) ("If the legislature had intended to require that the nominating petition be
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in the exact form as set out in section 7-10, it would not have used the word
'substantially.' " (Emphasis in original)).
¶ 20 The appellants argue that the doctrine of substantial compliance should not
apply where the legislature has specifically provided for different language for one
form, as opposed to another form. However, it will almost always be the case that
one form says something different than another form; otherwise, they would
provide only one form. Also, and more importantly, the statute simply does not
state what appellants argue. The statute does not state, as appellants would have
us read it, that the bulk of the form must "be in substantially the following form,"
but when it comes to the notarization part, that must be exact and without any
deviation, or the whole candidacy would be improper. Samuelson v. Cook County
Officers Electoral Board, 2012 IL App (1st) 120581, ¶¶ 27, 29 (Justice Joseph
Gordon rejected this same argument and held that the phrase " 'in substantially the
following form' " "applies to all, not some, of that section's requirements").
¶ 21 Appellants cite Bowe v. Chicago Electoral Board, 79 Ill. 2d 469 (1980), for
the proposition that the doctrine of substantial compliance does not apply when
the legislature sets forth a "different, significant" notarization form. First, as we
have stated before, "we do not interpret Bowe as rejecting the doctrine of
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substantial compliance. Rather, in Bowe, there was no substantial compliance, as
a matter of fact. Thus there was no compliance." (Emphasis in original.)
Bergman v. Achat, 347 Ill. App. 3d 339, 346 (2004). Second, the notarization
form at issue in Bowe was not a "different" form, but rather the "standard" form
that the petitioners here actually used. In Bowe, the document at issue was the
petition document that candidates use to obtain signatures from voters, and the
notarization required for that petition uses the short form: "Subscribed to and
sworn to before me on (insert date)." Bowe, 79 Ill. 2d at 470 (citing Ill. Rev. Stat.
1977, ch. 46, ¶ 7-10). In Bowe, "the undisputed evidence" (Bowe, 79 Ill. 2d at
470) showed that a person who had circulated petitions had not personally
appeared before the notary public. Thus, the issue in Bowe was not about a form,
as it is in this case, but rather about an undisputed lack of action. As the
appellants candidly admit in their brief to this court, "[t]he important issue here is
not who witnessed the signature, it is the fact that none of the witness
certifications *** includes the language mandated." (Emphasis in original.) As a
result, we do not find appellants' citation to Bowe persuasive.
¶ 22 We are mindful that the provisions of the Election Code are designed to
protect the integrity of the electoral process. Samuelson, 2012 IL App (1st)
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120581, ¶ 45 ("designed to *** preserve the integrity of the petition process");
Welch v. Johnson, 147 Ill. 2d 40, 56 (1992) ("designed to protect the integrity of
the electoral process" (citing Troutman v. Keys, 156 Ill. App. 3d 247 (1987), and
Havens v. Miller, 102 Ill. App. 3d 558, 571 (1981))). However, we believe that
access to a place on the ballot is a substantial right not lightly to be denied.
Samuelson, 2012 IL App (1st) 120581, ¶ 45 (" '[B]allot access is a substantial right
and not lightly to be denied' " (quoting Nolan v. Cook County Officers Electoral
Board, 329 Ill. App. 3d 52, 55 (2002))); Williams v. Butler, 35 Ill. App. 3d 532,
536 (1976). This court does not condone the actions of the appellees in this case
and believes that people who desire to be elected to public office should be able to
follow the recommended directions of the elections statute as written and
provided. However, in this case, the remedy of the Board is drastic, and "absent a
clearer statement by the legislature that it intended that remedy as a sanction" for
an apparently inadvertent omission of language on a notarization, we decline to
construe the Election Code in the same manner as the appellants. Welch, 147 Ill.
2d at 56-57. C.f. O'Connor, 281 Ill. App. 3d at 1112-13 (holding that the exact
form of the circulator's affidavit, as set forth in section 7-10 of the Election Code,
is not mandatory).
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¶ 23
III. Caballero's Statement of Economic Interests and Other Issues
¶ 24 The Board concluded that the nominating papers of candidate Larry
Caballero were invalid in their entirety, because he failed to file both (1) the
required Statement of Economic Interests and (2) a corresponding receipt
reflecting the timely receipt of this statement, as required by law. Of the nine
Democratic candidates before us, the filing of the wrong Statement of Economic
Interests is an issue only with respect to Cabballero. Williams and Hill failed to
date their statements. Smith inserted the incorrect office of City Clerk, instead of
City Treasurer on his statement of candidacy. The Board also invalidated their
candidacy.
¶ 25 For the following reasons, we agree with the Board, and, thus, affirm the
Board's decision and reverse the circuit court's decision with respect to Caballero.
We disagree with the Board's decision as to Williams, Hill, and Smith, and reverse
the Board and affirm the trial court's decision.
¶ 26 The Illinois Governmental Ethics Act (the Ethics Act) require that
candidates for public office file a Statement of Economic Interests. 5 ILCS
420/4A-103, 4A-104 (West 2010). See also 10 ILCS 5/10-5 (West 2010) (a
candidate must submit the Statement of Economic Interests form "as required" by
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the Illinois Governmental Ethics Act). The purpose of the Ethics Act was "to
reveal conflicts of interest between the public trust and private gain by requiring
disclosure of financial interests related to public employment." Miceli v. Lavelle,
114 Ill. App. 3d 311, 313 (1983).
¶ 27 If a candidate does not file this statement, then his or her nominating papers
are invalid. 10 ILCS 5/7-12(8) (West 2010). Section 7-12 of the Election Code
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 by 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 unless he has filed a
statement of economic interests in relation to the same
governmental unit with that officer within a year
preceding the date on which such nomination papers
were filed." 10 ILCS 5/7-12(8) (West 2010).
As the statute quoted above provides, the failure to file the "required" Statement of
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Economic Interests will be excused only if the candidate filed a Statement "in
relation to the same governmental unit" within the same year. 10 ILCS 5/7-12(8)
(West 2010).
¶ 28 In the case at bar, Caballero filled out the form for candidates for statewide
office which asks questions pertaining to the State of Illinois (5 ILCS 420/4A-103
(West 2010)), instead of the required form for local candidates which asks
questions pertaining to the local unit of government at issue (5 ILCS 420/4A-104
(West 2010)) which, in the case at bar, was Calumet City. As we explain below,
the eight questions on the two forms are substantially different.
¶ 29 The first question on the statewide form asks a candidate to "[l]ist the name
and instrument of ownership in any entity doing business in the State of Illinois."
5 ILCS 420/4A-103 (West 2010). In contrast, the first question on the local form
asks a candidate to "[l]ist the name and instrument of ownership in any entity
doing business with a unit of local government in relation to which the person is
required to file." 5 ILCS 420/4A-104 (West 2010). By filling out the statewide
form, a candidate avoids having: (1) to list any out-of-state businesses that he
owns that do business with the local government; or (2) to identify which listed
businesses actually do business with the local government.
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¶ 30 The fifth question on the local form does not appear anywhere, in any
version, on the statewide form. The fifth question on the local form asks the
candidate to "[l]ist the name of any entity and the nature of the governmental
action requested by any entity which has applied to a unit of local government in
relation to which the person must file for any license, franchise or permit for
annexation, zoning or rezoning of real estate during the preceding calendar year,"
if the candidate has an ownership interest in the entity of more than $5,000, or
received income from it of more than $1,200 during the prior year. 5 ILCS
420/4A-104 (West 2010).
¶ 31 By not answering the fifth question, the candidate avoids having to disclose
any license, permit or zoning requests made to the local government, where the
candidate has the requisite ownership income amounts.
¶ 32 The sixth question on the statewide form asks the candidate to "[l]ist the
name of any entity doing business in the State of Illinois from which income in
excess of $1,200 was derived during the preceding calendar year." 5 ILCS
420/4A-103 (West 2010). The sixth question on the local form poses the same
question but with respect to "any entity doing business with a unit of local
government in relation to which the person is required to file." 5 ILCS 420/4A13
No. 1-13-0442
104 (West 2010). As with the first question, by filing out the statewide form, a
candidate avoids having: (1) to list any out-of-state businesses from which he
profits that do business with the local government; or (2) to identify which listed
businesses actually do business with the local government in excess of the
required amount.
¶ 33 Thus, three out of the eight questions on the forms differ substantially
between the statewide version and the local version.
¶ 34 We have no way of knowing from a cold record whether Caballero's
decision to fill out the wrong form was intentional or inadvertent. Thus, we make
no comment here about his actual motives or intent. However, we observe that, if
a hypothetical "bad guy" wanted to avoid answering questions about his
connections to his municipality, he would have done exactly what Caballero did
here. Filling out the wrong form completely insulates a candidate from any
charges of perjury. He could answer honestly every question about the State of
Illinois, and, thus, avoid having to provide any answers – truthful or otherwise –
about his dealing with his own municipality. Miceli, 114 Ill. App. 3d at 316 (the
"policy" behind the Statement of Economic Interests is "clear. The legislature
intended that certain information be available to the public prior to the election
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with respect to actual or potential conflicts of interest that a candidate might
have.").
¶ 35 In addition, using the wrong form also insulates the candidate from any
criticism by the media or his constituents that his answers about his dealings with
the municipality were incomplete or less than forthcoming. He could argue, with
some force, that he answered fully all the questions posed on the form that he
filled out – that is, full answers about the State of Illinois, with nothing about the
municipality in which he is running for elected office. Miceli, 114 Ill. App. 3d at
316 (the purpose of the Statement of Economic Interests is to open "up [the
candidates] to public scrutiny and allows a better informed electorate to choose
among the alternative candidates on a more rational basis"); Lyons MVP Party v.
Lyons, Illinois Municipal Electoral Board, 407 Ill. App. 3d 1004, 1008 (2011) (the
court permitted a candidacy to go forward because "[t]his is not a situation where
the voters were unable to determine" key information). If deliberate, this ruse
would be both very clever and effective in dodging both perjury charges and
criticism from the media.
¶ 36 In Welch v. Johnson, 147 Ill. 2d 40, 51-52 (1992), our supreme court found,
on the facts before it, that the threat of felony and misdemeanor perjury charges
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supplied enough of an incentive for a candidate to be truthful on his Statement of
Economic Interests, and, thus, striking the candidacy was not necessary as a
sanction. See also Welch, 127 Ill. 2d at 57 ("our decision is limited to the
circumstances of this case"). In Welch, the candidate failed to disclose his
employment with a community college on his Statement of Economic Interests
(Welch, 147 Ill. 2d at 47), although the Statement asked him to list the name of any
unit of government that had employed him during the past year (Welch, 147 Ill. 2d
at 51). Our supreme court found that the record established that this lone omission
was completely inadvertent on the candidate's part (Welch, 147 Ill. 2d at 49-50).
¶ 37 In contrast to Welch, the threat of felony and misdemeanor perjury charges
is no threat at all in the case at bar, because the candidate simply sidestepped the
issue of whether or not to be truthful by answering entirely different questions. In
essence, the candidate substituted different questions and answered those instead.
Miceli, 114 Ill. App. 3d at 317 (holding that filing a Statement of Economic
Interests with respect to the Chicago Board of Education did not satisfy the
requirement, for a candidate running for alderman, to file a statement with respect
to the City of Chicago).
¶ 38 It is interesting to note that filling out the wrong Statement was an issue
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only with respect to Caballero, and not with respect to any of the other eight
Democratic candidates for Calumet City offices. However, as we decide this issue
as a purely legal question, where de novo review applies, we do not reach the
factual issue of his actual intent.
¶ 39 Since permitting a candidate to fill out the wrong Statement would open the
process up to the possibility of subterfuge and circumvention in a way that we
cannot imagine our legislature intended, we find that filling out the wrong form
does not constitute substantial compliance. Miceli, 114 Ill. App. 3d at 316 (if a
decision would mean that "a candidate could always circumvent," then that cannot
be what the legislature intended). If we would find otherwise, the precedent we
would set would allow all candidates to thwart the intention of the legislature in
requiring the filing of an economic interests statement, which is to show that no
conflict of interest exists with the governmental body to which the candidate seeks
elected office.
¶ 40 The doctrine of substantial compliance will save a candidate's nominating
papers only when the defect is minor and the papers still satisfy "the apparent
purpose" of the statute's requirements. Lewis v. Dunne, 63 Ill. 2d 48, 53 (1976);
Goodman v. Ward, 241 Ill. 2d 398, 409 (2011) (citing Lewis with approval and
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holding that to be in substantial compliance, a candidate's nominating papers must
satisfy the statute's purpose). Here, as we have explained, the apparent purpose
was circumvented, and thus the doctrine of substantial compliance cannot save
this candidate's papers. Samuelson, 2012 IL App (1st) 120581, ¶ 20 (" 'substantial
compliance with the Election Code is acceptable when the invalidating charge
concerns a technical violation ***. But substantial compliance is not operative to
release a candidate from compliance with the provisions intended by the
legislature to guarantee a fair and honest election.' " (quoting Madden v.
Schumann, 105 Ill. App. 3d 900, 903-04 (1982))).
¶ 41 Finally, our decision is limited to the circumstances of this case without
taking into consideration that Caballero's answers to the questions on the state
form were answered "N/A" or "not applicable." In addition, our decision is not to
be taken as an expression of opinion on the sanctions clearly provided by the
Legislature for the filing of willfully false or incomplete statements of economic
interest.
¶ 42 As a result, with respect to Caballero only, we agree with the Board, and we
affirm its decision and reverse the decision of the circuit court. As to Williams,
Hill, and Smith, we reverse the Board and affirm the circuit court. Our Illinois
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Supreme Court has held that a reading of the plain language of these statutes
convinces us 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 inadvertence on the part of
the person filing the statement." Welch, 147 Ill. 2d at 51.
¶ 43
CONCLUSION
¶ 44 For the foregoing reasons, we reverse the Board's decision and affirm the
circuit court of Cook County with respect to the first eight candidates; and, thus,
we find that their names may remain on the ballot. However, we affirm the
Board's decision and reverse the circuit court of Cook County with respect to
Larry Caballero's Statement of Economic Interest; and, thus, we find that his name
may not remain on the ballot, and reverse the Board's decision and affirm the
circuit court with respect to Williams and Hill on their Statements of Economic
Interest. We also reverse the Board's decision on Smith and find that he
substantially complied with the election laws and affirm the circuit court.
¶ 45 Affirmed in part, reversed in part.
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