*1 postconviction first-stage the dismissal We affirm trial court. by the
Affirmed. SMITH, JJ, concur. and FITZGERALD
GALLAGHER VACHATA, BERGMAN, Indiv. Petitioner-Appellant, v. MARIA CATHERINE President, al., Respondents-Appellees. Village et and as Division) (6th 1 — 04—0138 District No. First 12, 2004. Opinion filed March *2 (Burton Tiffany Sterk, Ltd., Evergreen Park S. Odelson Odelson & Nelson, counsel), appellant. for A. (Patrick Driscoll, Jr., Chicago T. Devine, Attorney, A. State’s Richard Attorneys, of Wilson, Lach, State’s Donna M. Assistant
Mary Scarlett counsel), Orr. David appellee Raymond, appellees. for other Springs, of Western
Ellen opinion of the court: delivered the JUSTICE GALLAGHER of Cook order of the circuit court appeal This case is an a final Village Lyons Municipal Electoral County affirming the order of the Board) (the public directing question Board Village of 16, 2004, primary election in the for the March ballot referendum that public a back door Lyons (Village). question The the issuance Village regarding to vote allow the citizens would public question in alternative revenue bonds. of million $4 peti- on the requisite number proponents gathered seeking place validity appeal tion. This involves Petitioner, Bergman, door on a ballot. Catherine back referendum affirming the decision the сircuit court of Cook appeals placed allowing decision of the Electoral Board the referendum be Village Lyons’ to be held on *3 primary on the ballot for the of election af- of the circuit court and judgment March 2004. We affirm the firm the Board. decision of the Electoral
BACKGROUND1 Village Lyons, an Illinois Village The of of the of board trustees the issuance corporation, passed authorizing an ordinance municipal develop a in the amount of million for of alternate revenue bonds $4 Antoine Village. Subsequently, respondent in the ment to be built (thе peti proponents filed Parker and other unidentified proponent), on the ballot. the of a door referendum seeking placement tions back to public question of a A “back door referendum” is “the submission of or subdivision, by a voters political petition the voters of a initiated subdivision, action of to determine whether an political residents such granted her by petitioner, we 1In view of the time constraints faced when to allow the expedited appeal, granted further her motion motion an we Subsequently, after appeal. record on аppendix to her brief to serve as the that she failed to reading petitioner’s appendix, brief and it became clear informa provide of facts or sufficient adequate this court with an statement Therefore, rely comprehensive of facts found the more statement tion.' we respondents’ brief. by governing body the adopted such subdivision shall be 2(f) (West rejected.” 2000); 10 ILCS see also Brennan v. Kol 5/28— man, 716, 718, 781 N.E.2d Because the bonds’ principal paid interest from ad valorem property upon all Village taxes taxable property Lyons, the Il legislature given linois has a municipality right the citizens of to subject the a issuance such bonds to back door referendum. 30 (West 2000). Thus, ILCS petitions sought challenge here to 350/15 the million bond issue question $4 and submit the to the voters as to Village whether should be to allowed issue the bonds. 15, 2003, petitioner
On October objector’s petition filed a verified alleging that the referendum petition necessary did not contain the required signatures requirements and failed to meet various (the Code) (10 the Illinois Election Code Election et seq. ILCS 5/1—1 (West 2002)). (1) objections included the following: (2) signatures were not genuine; signers somе of the resided outside (3) district; (4) signers registered voters; were not there were (5) (6) duplicate signatures; a pattern fraud; there was circulators (7) present petitions were not when the signed; county of the (8) signers omitted, was a petitions signature; lacked circulator’s (9) the “knowledge” affidavit; word was omitted the circulator’s (10) composition of the Electoral Board included two members (11) bias; who should have been removed because of the petitions (12) circulator; lacked the address of a a a circulator omitted county. 22, 2003, hearing held,
On October was at which present any legal argu- declined the evidence or opportunity make ment to objections. five these She offered no her prove evidence fraud, allegations regarding address, pattern a circulator’s county, witnessing circulator’s the circulators not petitions, or omission of signers’ county.
As to the objections signatures, omission “knowledge” affidavit, allegation word in the and the circulator’s circulators, signed were not the Electoral Board hearings weigh legal held several the evidence and the presented arguments the dates of October and December between 2003. note, first respondents ruling
As made the Electoral Board *4 adopt Duly Hearings was to the “Rules for and Decisions of the Hearing for Passing Constituted Electoral Board and Objections Questions to to be Placed on the Ballot Petitions Public (the Rules). Village Lyons, County, in the Cook Illinois” Board objection. Petitioner did not enter an
343 as follows: expressly states 5 of the Board Rules Paragraph after case in chief objector “The present shall his/her objector shall bear preliminary motions. The consideration of such support to decision presenting evidеnce sufficient the burden of evidentiary shall threshold sustaining objection. applicable The ” ‘preponderance evidence.’ Thus, proof on clearly place the Board Rules the burden objections. to her prove fire delay due to the at W
On November after much binder parties Washington Chicago, participated Street objections to check, validity initially to determine used checker for the Cook and circulators. The binder signatures individual objections. County The 188 of the 232 Cook County clerk sustained genuine signature of objections “signature сlerk sustained as signatures printed were or where petition voter” where the purported signature any way differed the clerk believed the registration signature Ap- on the voter cards. signature from the objections by the checker 66 of the were sustained binder proximately signature signer had on the because his/her registration concede signed Respondents in cursive on the voter cards. objections County sustaining then shifted Cook clerk’s names proof proponent the burden of onto the to rehabilitate signatures because 389 were needed for ballet access. into evidence which proponent entered several exhibits records, registration selected signers,
included affidavits selected list, signatures, registration voter binder check the Cook Signatures Petition Signatures Matching “Rehabilitation — original and the Report.” Along Binder Review these exhibits one, reviewed, signatures one petitions, the Electoral Board the binder check. objected by petitioner sustained any testimony no evidence Petitioner entered affidavits or witness proponent’s The Electoral Board rehabilitated counter thе evidence. The Electoral Board found that valid signatures. filed, required. more than the 389 signatures had been five witness, Mazur, to stand who Petitioner called one Steven as testified follows: sign?
“Q. you Did see Maureen and John Jacobson Yes, I A. did.
Q. sign And did each their own? Yes, they
A. did. Q. you go Did back to their you do an affidavit for them? Did home?
A. I so. believe
344
Q. you you I look am a going copy ask to at affidavit—I to show 38, of affidavit 37 and and you affidavit were there those af- when presented, fidavits were did you present or those affidavits? Yes, I A. there. was
Q. Who else was there? notary A. The —.” The Electoral also legal arguments Board considered concerning signing circulators, the of the petitions the of the omission the “knowledge” word peti- the circulators’ affidavit contained the notary tion the sufficiency jurat and of the in both the petitions and the presented legal argu- affidavits. Based on the evidence and the made, ments the Electoral petitions Board voted to sustain the objections 19, overruled the raised petitioner. 2003, On December the Electoral Board final overruling objections, issued its decision the valid, declaring the and ordering question the referendum 16, 2004, be printed on the March ballot.
Thereafter, petitioner a petition judicial filed review in the County. circuit court of Cook After four hours of oral argument, the court affirmed Electoral Board’s in its entirety. decision (1)
Petitioner appeal raising filed the instant following issues: whether the petition legally was deficient because the circulator’s (2) “knowledge”; statement failed to include the word whether the petition legally was deficient because names are not acceptable (3) “signature”; as a rulings by voter’s whether the the Electoral signature Board and against circuit court as to verification were (4) evidence; weight manifest of the composition whether the of deprived objector right the Electoral Board of her to a fair trial.
ANALYSIS
We allowed an expedited appeal pursuant
Supreme
Court
(155
311).
Rule 311
Ill. 2d R.
are required
to review the Electoral
Board’s
rather
decision
than
trial court’s
Lockhart
decision.
v.
Board,
838, 841,
Cook
App.
328 Ill.
3d
767
Officers
(2002).
N.E.2d
Petitioner has raised some issues that turn on
statute,
interpretation
subject
which is a
of
question
law
de
Lockhart,
App.
novo review.
328 Ill.
3d at
cirсulator’s
States,
or
stating the street address
United
is a citizen
who
be,
county, city,
number,
as
as the
as the case
well
rural route
state;
signatures on that
town,
certifying that the
village or
presence and are
signed in his or her
were
sheet
knowledge
or her
and belief
that to the best
his
genuine, and
signing
at the time
so
persons
precinct
political
or district
subdivision
registered voters
policy is
question public
precincts
in which
or combination
correctly
respective
that their
residences
to be submitted and
2001).
(WestSupp.
10 ILCS
therein.”
stated
5/28—3
found within
case,
signature is
the circulator’s
present
In the
*6
Kolman,
3d
App.
Brennan
335 Ill.
notary’s jurat.
Thus we find
v.
716,
(2002), controlling and conclude that the circula
We reaffirm our substantial Election satisfy mandatory provision a Code. We can even wrongly Brennan was decided. reject contention that petitioner’s compliance longer is no sufficient argues Petitioner that substantial in Brennan, holdings, that “in recent stands alone has asserted provisions of the allowing compliance mandatоry substantial with relies on position, petitioner As for her support [Election] [C]ode.” Board, App. Ill. the Fifth District case of Knobeloch v. Electoral 337 (2003), 1137, 130 she contends is “well- 3d 788 N.E.2d reasoned.” interpretation of the agree
We
with the Knobeloch court’s
do not
Gummersheimer,
Supreme
192 Ill. 2d
Illinois
Court case DeFabio
63, 66,
(2000),
rejecting
compliance
1241
as
the substantial
733 N.E.2d
involving
noncom-
theory mandatory provisions.
for
DeFabio was case
pliance,
compliance.
compliance”
not
“Substantial
was
substantial
in
by
DeFabio.
by
parties
nor addressed
the court
neithеr raised
proposition,
for
with
opinion
standing
as
interpret
the DeFabio
complied
with
mandatory provisions
that
must
agree,
which we
knowledge
no
or evidence
or
parties agree
even where
there is
of fraud
DeFabio,
parties
that none
corruption.
undisputed
In
it was
requisite
contained
particular precinct
the invalidated ballots in a
Thus,
only
compliance not
judge.
was
initials from an election
strict,
substantial;
compli-
no
compliance
indeed there was
was not
Party,
3d
672 N.E.2d
King
ance.
v. Justice
284 Ill.
Cf.
(1996)
substantial;
strict,
it
900,
it was
but
(“Compliance
904
was not
added)”).
(Emphasis
nonetheless.
compliance
was
Chicago
Petitioner also
Board,
cites Bowe v.
79 Ill. 2d
469,
(1980),
proposition
404 N.E.2d
for the
mandatory
provi-
sions in
Election Code cannot be
compli-
satisfied
“substantial
Again,
ance.”
do not interpret
we
Bowe
rejecting
as
the doctrine of
Rather,
substantial
compliance.
Bowe there
no
was
substantial
as
compliance,
Thus,
a matter
compliance.
there was no
of fact.
Dunne,
In
Lewis v.
(1976),
Petitioner challenged has further petitions’ compliance with the statute based the lack of the word “knowledge” in the circulator’s аffidavit. Section 28—3 of the Election provides, Code pertinent part, as follows: *** public “Form of petition question.
At the bottom of each petition sheet of such shall be added a statement, signed by years circulator’s person of age or older States, who is stating citizen of the United the street or address number, may be, rural route as the case as county, city, well as the town, village state; certifying that the on that signed sheet presence were his or her and are genuine, and knowledge the best his or her belief persons signing so at the time *7 registered political of precinct voters the subdivision or district or precincts question public policy or combination of in which the of is respective to be submitted and that correctly their residences are stated therein. Such statement shall be sworn to before some of- ficer (Emphasis authorized to administer oaths this State.” added.) (West 2001). Supp. 10 ILCS 5/28—3 bar, In the at case each of the the circulators’ affidavits contained phrase “to the of his her best belief’ and did not include the word “knowledge.” agree argument We with the respondents on this Despite “knowledge,” issue. the lack the word conclude the we that compliance affidavits were in substantial with the Election Code. argument by The next the petitioner raised is that voters who cursive, petition, “signing” their names on the instead of Although should not it true that several individuals be counted. is names, compli- printed their we conclude that there was substantial cursive, there was not in the where, voters despite some anee only,” person their own sign proper did not “in that no evidence notary jurat. contains the the form nonetheless and Board, 156 Ill. Electoral Huskey Municipal v. We also find Officеrs relies, (1987), upon petitioner 201, 509 App. 3d N.E.2d of a the sheets factually Huskey “held that when distinguishable. evidence a by a circulator nominating purported submitted mandatory disregard for fraud, and total swearing false pattern [citation], purportedly the sheets of the Election Code requirements entirety.” in their be stricken circulated that individual should Board, App. 3d 170 Ill. Canter v. Cook 368, Officers (1988), 3d citing Huskey, App. 156 Ill. at N.E.2d permitted the circulator Huskey 205. actual evidence involved present, were not sign family the names of members who individuals to than the affiant presented and that someоne other “in sign the voters did not their signers. Thus, undisputed it was here, only.” no impropriety own We are faced with such proper person concerning “potential” notwithstanding petitioner’s arguments allega- impropriety unsupported unproven for such an and her been regarding impropriety. tions such an While this have provide any support she failed to evidence to her petitioner’s theory, allegations. agree is a process that fraud in electoral concern, but, case, petitioner any
valid
in the instant
failed to show
challenges
present.
veracity
such fraud was
Petitioner now
But,
Rules,
statements in
affidavits.
under the Board
the burden
proof
in the
contest
lies with the
proceeding to
petitioner.
Stone,
judgment for agency that of the on suсh [citation]. matters Where the agency by supported competent in evidence added.) record, its decision be [Citation.]” should affirmed. (Emphasis King Party, 886, 888, v. Justice 284 Ill. App. 3d 672 N.E.2d (1996).
Petitioner argues there is no evidence in the to sup record port the findings. Electoral Board’s disagree. During the hearing, proponents submitted containing affidavits from several voters “signature statement that the written on the referenced paper my signature purposes for the papers.” The Board Rules, govern the admissibility of evidence before the Electoral Board in provide, rеlevant part:
“The Electoral Board will consider such admissible evidence as
submitted,
to,
be
including, but not
properly
limited
authenti-
records,
public
documentary evidence,
cated
other
reliable af-
***
fidavits,
testimony.
will,
and oral
The Electoral Board
where
(but
practicable
appropriate,
by)
and
will
follow
not
bound
rules
in
prevail
(Emphasis
evidence which
Illinois courts of law.”
added.)
The Electoral Board made its factual
validity
determinations as to the
based,
of the signatures
part, upon
affidavits
those voters at-
testing
signatures
as theirs.
by
Those
were made
decisions
Electoral Board without an
expert
handwriting analysis. Petitioner
now asks this court to review the determinations
made
the Electoral
provide
Board. She
transcript
record,
does not
a complete
but
instead asks us to review the “most outlandish decisions.”
mayWe
agree
that the
speculate
do not match and
that the voter
stated in his
that the signature
was,
fact,
affidavit
was his
it
when
somebody
signature.
opposite
“[t]he
else’s
But
fact that an
conclusion
reviewing
is reasonable
might
differently
or that the
comet
have ruled
justify
King
based
same evidence will not
a reversal.”
Party,
Justice
composition of the Although petitioner Electoral Board. claims that rights her due process were violated as result of the bias of two of themselves, the board members who did not recuse seeks no relief particular acknowledges from this court as to this issue. She type sought of relief that have if this expedited she would an necessity matter. Due to the of an decision on the other is- expedited this requests and advisory opinion sues, merely seeks an she now two electoral board find that problem court “address two, disinterested have been removed members should *9 specified in as Judge the Chief public appointed members impartial added.) that time was further avers (Emphasis She the statute.” “If be would to [her], prayer relief and the correct not the essence allow members and public an electoral board of impanel impartial addеd.) desires hearing.” She now impartial (Emphasis a fair and [her] have been only disqualified.” that the two members “should finding (2) added.) (1) moot; and the issue is (Emphasis conclude that We any to the mootness doctrine as exception failed to raise petitioner has to the should address the issue. We decline address why to this court issue. upon us to further comment on that it is incumbent believe in brief in this While we petitioner’s appeal. contained
statements that of the members of position took a two understand on the fact that had the Electoral Board were biased based question placed to the referendum personally signed have in ballot, not certain statements contained on the we do believe that argument proper. her brief were In her that the Electoral Board’s rul- evidence, ings petitioner’s manifest the ‘proponent’ brief contains an assertion that “the votes two took their obediently Proponent’s Electoral Board commands from every and ruled each and affidavit a valid document sufficient counsel County had made a to overcome the of the Cook clerks who at live examina- comрarison and ruled names not valid record added.) statement, County This (Emphasis tion in Clerk’s office.” beyond and amounts goes prejudice, well an assertion bias ad integrity to hominem attacks the character and two members, board Petitioner and her counsel are admon- improper. making ished to refrain from such statements in future. yet highly state- applies inappropriate
This admonition to another ap- ment Petitioner mislabeled her petitioner’s contained brief. A, Judge’s failed to pendix “Appendix Transcript Ruling,” as but hearing circuit court. provide transcript this court Nonetheless, during transpired her version of what describing hearing, petitioner’s following brief contains the accusation: court, to the electoral “The lower bound and determined affirm
board, ‘anyone in to own evidence from attempted seek his courtroom,’ objection [petitioner.] This vigorous was over something find for the record hold that attempt an obvious in the Brennan estoppel type or some of relief was warranted as Although finding to come any ‘takers’ his case. offer forward and volunteer information toas where the referеndum originated, form judge the circuit court found applied Brennan added.) (Emphasis case at bar.” Respondents counter that not only petitioner put does in the words mouth, judge’s trial attempts but she to read his mind. We believe that, regardless petitioner’s position judge trial should him, have limited his to the petitioner’s review record before insinua- regarding tions the trial judge’s wholly motives are inappropriate and impugn integrity of the judiciary. Petitioner and her counsel would taking accusatory well advised to refrain from an such tone in the future.
CONCLUSION For stated, the reasons judgement we affirm the of the circuit court Cook affirm the decision of the Village Lyons Municipal Electoral Board.
Affirmed. *10 SMITH, J.,
FITZGERALD concurs. TULLY,dissenting:
JUSTICE respectfully
I dissent. provisions designed The of the Election protect Code are Johnson, integrity process. 40, of the electoral v.Welch 147 Ill. 2d 56 (1992). dispute provisions There is no that in section 28—3 are A mandatory. mandatory provision is one that will describe the (Johnson consequences failing provisions Theis, follow its v. 282 App. 966, (1996)), Ill. 972 3d and the is prescribed conduct in order to safeguard person’s rights, a may injuriously be affected a failure to act in specified. the manner Shipley Stephenson County v. (1985). Board, App. 130 Ill. 3d 903 The failure to follow mandatory provision renders the it proceeding to which relates il- legal and Commissioners, void. Serwinski v. Board Election 156 Ill. (1987). 3d App.
Essentially, majority though here believes that this even is a mandatory provision, the compliance provision substantial with this negates majority theory the defective petition. accepts The compliance mandatory provisions substantial and reaffirms the appellate Kolman, recent court decision Brennan v. however,
I, Supreme believe that the Illinois Court’s decision in Gummersheimer, (2000), controlling. DeFabio 192 Ill. 2d is In of the substantial rejected the use Gummersheimer, court supreme I in the Code. believe mandatory theory provisions for compliance longer no suf- compliance is that substantial held Gummersheimer must be Code of the Election mandatory provision and a ficient knowledge or evidence is no agree if there parties even the enforced corruption. fraud or irregularities, significant in this case contain two
The petitions problems these it dismisses majority errs when I that the and believe analysis. compliance substantial through its each requires that First, expressly Election Code “knowledge her of his or that to the best contain statement political registered appropriate voters of signers belief’ the are 2000). (West issue, The at petitions 10 ILCS subdivision. 5/28—3 signers are “belief’ that the however, merely state the circulators’ distinction majority dismisses this Although the registered voters. I that the lack of the analysis, believe compliance with its substantial I the use of the word “knowledge” highly significant. believe word an affirmative on circulators “knowledge” impress is calculated to of those inquiry regarding the status obligation to make reasonable may to his “belief’ attesting only A circulator petition. if that belief is unreason- mistakenly assume that he do so even “believe” example, might For a circulator able or has no basis fact. is a grocery store resident every he encounters outside person mislead might located. Such a belief village in which the store is even make a believing unnecessary that it was the circulator into and undermine simple inquiry regarding signers’ residence Election Code. circulators important role envisioned I the failure to include the word Accordingly, would conclude that petitions renders the “knowledge” in the circulators’ statements invalid.
Second, facially impossible because it is invalid signed by the circulators. properly determine whether jurat notary “signatures” are contained within purported the circula- the actual public. “signatures” may These notary attested to by the who they may completed tors or have been the face of to determine from signatures. simply impossible It is *11 signatures that these majority these documents. The would conclude in the absence I, however, unwilling am to do so properly were made. require- I believe that support of evidence to such a conclusion. to allow this court important of the Election Code are too ments conjecture. Ac- judge guesswork on little more than compliance that the circula- that, I in the absence of evidence cordingly, would hold made, ambiguity in the attestation signatures properly tors’ invalid. finding petitions that the are requires Finally, although discrepancies I have identified above are suf- ficient to invalidate all of the I petitions, believe that majority significant overlooks evidence of objector fraud. The identified numer- signatures ous voter on the that do not match signatures voting contained signatures records. Some rather than written in script, are, and others even to the eye, untrained clearly dissimilar. I believe that the Electoral Board’s and the trial court’s these were valid were manifest of the evidence. reasons,
For the foregoing I judgments would reverse the circuit court and the Electoral Board. ALVARADO,
ANGEL Appellant, THE INDUSTRIAL COMMISSION et al.
(Goldstein, Fishman, Romanoff, Appellee). Bender and (Industrial Division) First District Commission No. 1 — 02—2832WC Opinion filed Rehearing April March denied 2004. 2004.