MATTHEW CORBIN v. MARY SCHROEDER, SHARON SULLIVAN, JONATHON NUSGART, EDWARD POPE, and JEAN KACZMAREK, as Du Page County Clerk
No. 2-21-0086
Appellate Court of Illinois, Second District
March 8, 2021
2021 IL App (2d) 210086-U
JUSTICE JORGENSEN delivered the judgment of the court. Presiding Justice Bridges and Justice Schostok concurred in the judgment.
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
¶ 1 Held: The electoral board’s decision, overruling objections to the candidate’s nominating papers, is affirmed.
¶ 2 Respondent, Edward Pope, filed nominating papers to run in the upcoming April 6, 2021, consolidated election for the office of Glendale Heights Village President. Petitioner, Matthew Corbin, objected to Pope’s nominating papers on several bases, including that the statutory
¶ 3 On February 22, 2021, Corbin filed a notice of appeal. On February 26, 2021, pursuant to
I. BACKGROUND
¶ 4 ¶ 5 On January 23, 2021, the Board held a hearing to address Corbin’s objections to Pope’s nominating papers. As relevant here, Marie Schmidt testified that, since 2008, she has served as the Glendale Heights Village Clerk. One of her responsibilities as clerk is to serve as an election authority, including on the Board, although she recused herself from the Board for this case. In her capacity as clerk, and regarding nominations of candidates for office in Glendale Heights, Schmidt prepares candidate packets, in which she includes for prospective candidates various
¶ 6 Upon further questioning, Schmidt testified that, in past years, candidates for Village president had to obtain signatures from 5% to 8% of the number of voters that had voted in the relevant preceding election.2 This year, “[i]n reading the [c]andidate’s book, it said [1%] for non
¶ 7 On cross-examination, Schmidt agreed that she did not discuss the 24-signature requirement at a public board meeting or with any other candidates, nor did she post that information on the clerk’s website or include it in the packets available to the public. Schmidt testified that there is no requirement for the clerk to post the minimum number of signatures required, and the Village did not and (never has) publicly announce required numbers. Schmidt
“ *** at that point, there were people talking about how they were going to circulate petitions. And again, that goes to the low number in my mind because a lot of people were not answering their doors because of COVID.
When I had someone going out with my petitions, it would be call you, say I’m bringing a petition. Will you meet me outside? I’ll leave it on your porch. You sign it. Go back in the house and I’ll get it. It was a tedious process. So this all made sense.
There were people who were leaving them on their front porches which violated everything because you didn’t witness anyone doing it. And it was going on in the Village.
***
I honestly thought it was because of COVID and reducing the point of contact. Everything has changed in the past year. Nothing is the same. And it made sense that you would require fewer signatures and have fewer points of contact.”
Schmidt agreed, however, that she did not receive a notice from the Governor, State Board of Elections, the Du Page Election Commissioner, or anyone else, stating that the statutorily-required number of signatures had been reduced because of COVID.
¶ 8 Finally, Schmidt testified to her understanding that the Village performed non-partisan elections. She did not, in the fall of 2020, understand the difference between non-partisan and
¶ 9 Tracy Walters testified that she is the executive secretary to the Village administrator and, on December 7, 2020, she was sworn in as a deputy clerk to assist with accepting nominating petitions and issuing receipts. On December 21, 2020, (the deadline for filing nominating papers) at around 12:30 p.m., in the second-floor lobby at Village Hall, Pope asked Walters for the required number of signatures needed for his petition. Walters said that she did not know, but would try to find out from Schmidt. She called Schmidt, who told her that Pope needed to submit signatures from 1% of the voters who had voted in the previous election, which Walters understood to mean the 2017 municipal election. Walters returned to the lobby and passed on the information to Pope. He then submitted his petitions.
¶ 10 Pope testified that he is running for Village President. In pursuit of his candidacy, he obtained signature petitions and a candidate’s packet from the Village Clerk’s office. Pope considered himself an independent candidate, and he circulated “independent candidate” petitions. Before submitting his petition, on the day of the filing deadline, he asked Walters “to verify the number of signatures we needed because it did seem unusually low. But with COVID and everything, I didn’t know if the rules had changed.” Pope testified that he had far more signatures
¶ 11 Pope testified that, when deciding how many signatures to submit, he relied upon the representations that Walters made in her capacity as a deputy clerk. He testified that he trusted both Walters and Schmidt. Pope stated that, although he had a few hours remaining to gather signatures before the filing deadline, he did not feel the need to do so, because he had verified the requirement with Schmidt who was, in his opinion, the authority, and she had given him an exact required number. Therefore, he figured that he had enough signatures to meet the requirements.
¶ 12 Pope explained that there are many numbers and elections, such that it is can be difficult to ascertain the minimum-signature threshold, which is why he wanted the Village to verify it. Had he known that more signatures were required, he “absolutely” would have submitted more. Pope did not, however, obtain help from an attorney, nor did he obtain or consult the candidates’ guide from the State Board of Elections. Pope summarized that, “I just assumed the number was substantially lower possibly because of COVID. You know, trying to have the low contact and it was very difficult this year talking to people and people were even afraid to even touch our pens when we were going door-to-door. So that was kind of my assumption, that it had something to do with COVID.”
¶ 13 On February 4, 2021, the Board, having taken, over Corbin’s objection, judicial notice of voluminous executive orders issued by Governor J.B. Pritzker and local emergency orders and proclamations that had issued in light of the pandemic, rendered a written decision, concluding, in sum, that Corbin’s objections that Pope’s petitions contained less than the statutorily-required minimum number of signatures failed, as Pope justifiably relied on Schmidt’s representation to Walters that only 24 signatures were needed.
¶ 14 Specifically, the Board noted that the parties agreed that the question of reliance is a factual one. Citing Merz v. Voldberding, 94 Ill. App. 3d 1111 (1981), and Atkinson v. Schelling, 2013 IL App (2d) 130140, the Board determined that, here, Schmidt, acting as Village Clerk, made a mistake when calculating the signature requirement, based upon: her confusion as to whether the Village was non-partisan; the Du Page County Clerk not providing specific instructions and nomination papers, as it had done in past elections; and the COVID-19 pandemic. As in Merz and Atkinson, the Board found no evidence of nefarious conduct on Schmidt’s behalf. The Board took judicial notice of the “extraordinary circumstances” that existed during the 90-day petition circulation period. The Board made several unanimous findings of fact, including that: the witnesses were credible; Schmidt acted in an official capacity as Village Clerk and as a local election official when she told Walters, who then told Pope, the 24-signature requirement; Jackson and Pope relied on those official representations; and denying the candidates access to the ballot would penalize not only them, but the voters.
¶ 15 Two Board members found that Pope’s reliance on the representations was justified, while the third member asserted that he did not find the reliance justified, based upon the decision in Jackson-Hicks v. East St. Louis Board of Election Commissioners, 2015 IL 118929 (2015), and when compared with Merz and Atkinson. The Board’s majority, however, found Jackson-Hicks
¶ 16 Corbin petitioned the circuit court for judicial review. On February 19, 2021, after a hearing, the circuit court denied the petition and affirmed the Board’s decision. The court determined that it need not find, under these facts, the minimum number of signatures that were, in fact, statutorily required for the petitions, and to do so would be purely advisory. The court commented that whether the Village election is a partisan or non-partisan one is confusing and should be clarified for future elections. The court found that publication is not limited to publication in writing, a statement may be published orally (as it is in libel versus slander), and that the Clerk’s statements here were orally published to Jackson and Pope. The court noted that the Board found credible the candidates’ testimonies, and that this case was similar to Atkinson. Moreover:
“The question of whether this was reasonable I believe is limited to the facts which are presented. The Court will take judicial notice that we are in the midst of a global pandemic, which has changed many, many things in the legal system, and indeed, in the electoral system as well, with the prevalence now of mail-in voting or drop box ballot provisions. This is something that has really never taken place before the pandemic.
Reliance on the representations of the clerk, whether right or wrong, in the midst of the global pandemic cannot be set as a matter of law to have been unreasonable. It seems that most of the candidates and other persons who testified felt that the number was extremely low, and perhaps, indeed it was. However, that does not go to the question of whether under these particular circumstances that low number was unreasonable to be relied on.”
¶ 17 The court noted that the candidates testified that they collected more signatures that they did not file, and, again, that the Board found credible their testimonies. It upheld the Board’s decision and ordered that Pope appear on the ballot. Corbin appeals.
I. ANALYSIS
¶ 18 ¶ 19 Where a circuit court has reviewed an electoral board’s decision, we review the decision of the board, not the court. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 212 (2008). An electoral board is viewed as an administrative agency; thus, our standard of review is determined by the type of question being reviewed. Id. at 209-10. The board’s findings and conclusions on questions of fact are deemed prima facie true and correct and will not be overturned unless they are contrary to the manifest weight of the evidence, while we review de novo its decision on a question of law. Id. at 210. Moreover, the board’s determination on a mixed question of law and fact will not be disturbed on review unless it is clearly erroneous.
¶ 20 Corbin challenges three overarching Board decisions. First, he asserts that the Electoral Board and the circuit court did not determine the minimum signatures required for independent candidates under
¶ 21 We disagree that we need to reach this issue here. As noted by the circuit court, to do so would be purely advisory. The candidates did not come close to the statutory threshold minimums, regardless of whether the 2017 or 2018 election figures are used. The sole question is whether the Board properly found that the candidates reasonably relied on the misinformation provided by the Village Clerk. Nevertheless, we note that, in related appeal No. 2-21-0090, we consider the issue and conclude that the 2017 election was the proper election under
¶ 22 Next, Corbin argues that, regardless of which election is chosen, Pope’s nominating papers lacked the minimum number of valid signatures and the Board erroneously allowed Pope to invoke an estoppel defense to prevent his removal from the ballot. Specifically, Corbin argues that the Board erred in finding that Pope reasonably relied upon Walters’ statement, passing on information from Schmidt, that he needed only 1% (or 24 signatures) on his nominating petitions, such that his submission of 32 signatures, which is below the minimum required, may be excused. Corbin argues that estoppel fails, first, because the Clerk’s statements were unauthorized acts of a ministerial officer or a ministerial misinterpretation and were not affirmative acts of the governmental body itself. Further, Corbin disagrees that Pope’s reliance on the statement was reasonable, noting that, despite his prior experience and admitted disbelief that the signature requirement could be so low, he took no action to independently investigate or verify the information, or to consult an attorney, election authority, or election consultant. Corbin requests this court to reverse the Board and order Pope’s name removed from the ballot.
¶ 23 A summary of the relevant authority is required. The Board primarily relied on two cases in finding successful Jackson’s reliance or estoppel argument: Merz and Atkinson. Indeed, those cases share factual similarities with this case and, in both, in reliance on misinformation provided
¶ 24 Specifically, in Merz, certain candidates relied on the clerk’s information sheets, which she had also issued in the past, to determine the number of required signatures. However, the clerk had used the wrong election as the basis for her calculations, and the court agreed that the statute was unclear. Merz, 94 Ill. App. 3d at 1114. Given that: the statute was unclear; the clerk’s historical practice of handing out information sheets prior to elections had gone unchallenged for years and was performed as a public service (as opposed to with intent to undermine the statutory scheme); and one candidate actually obtained the correct number of signatures required, but had submitted only the incorrect number, the court held that penalizing the candidates would be an injustice. Id. at 1117-18. Further, although only one of the three candidates involved testified to relying on the clerk’s misinformation, such that only one could invoke estoppel, the court found that the two other candidates (lacking sufficient signatures and an ability to claim detrimental reliance) should also remain on the ballot in the “interests of justice,” because they had demonstrated at least a minimal appeal to voters and their removal would, therefore, also penalize those voters. Id. The court in Merz limited its holding to the facts before it, expressing that, “for future reference, *** the minimum statutory signature requirement is mandatory and should be strictly followed.” Id. at 1118.
¶ 25 In Atkinson, a panel of this court followed Merz. See Atkinson, 2013 IL App (2d) 130140, ¶ 19. There, after relying on a letter from the village clerk, who was a veteran in that position, and
¶ 26 Our supreme court has expressed, at best, skepticism over the Merz and Atkinson analyses. See Jackson-Hicks, 2015 IL 118929 (2015). Specifically, in Jackson-Hicks, a mayoral candidate submitted more signatures than required by the statutory minimum, but, after objections, the number fell below the minimum threshold. The election board concluded that his name could remain on the ballot, since he was short only 13 signatures and had substantially complied with the statute. The supreme court reversed the election board’s decision that substantial compliance with the statutory minimum was adequate, holding that the statutory numerical signature
¶ 27 As noted by the Board, estoppel was not, in fact, before the court in Jackson-Hicks, and, therefore, its criticism was aimed at the appellate court having relied on those decisions in the substantial-compliance case before it. Indeed, unlike here, there was no confusion in Jackson-Hicks over the required signature threshold; rather, the candidate simply did not obtain enough signatures. Moreover, and as discussed further below, when the Jackson-Hicks candidate circulated petitions, there was no global pandemic impacting all aspects of life. Further, Merz and Atkinson have not been overruled, and we do not read Jackson-Hicks as barring the possibility of
¶ 28 The case here arose in exceedingly rare circumstances. We agree with the Board that the COVID-19 pandemic is an exceptional circumstance. Indeed, and as noted by the voluminous executive orders from the Governor and actions of which the Board took judicial notice, beginning in March 2020, the pandemic affected procedures in virtually all aspects of life. For example, citizens were ordered to remain home, socially distance, wear masks, and sanitize hands and surfaces frequently. Many of those changes continue, as of the date of this decision, and they certainly existed during the 90-day petition circulation period. Indeed, precautions were particularly emphasized during the petition-circulation period, as the winter season and holidays approached. Those circumstances are relevant because, as the record reflects, they informed the actions taken by the relevant parties. Pope was surprised by the low number of signatures required and, indeed, his political experience apprised her that this was a marked deviation from prior requirements. Viewed in a vacuum, it would be easy to wonder, in hindsight, why he did not consult an attorney or verify the requirements through other means. However, the Board found reasonable and credible his testimony that, during the relevant period, his surprise at the low signature number was quickly tempered by her knowledge that virtually all facets of life had changed, on account of the pandemic, such that requiring a lower number of signatures to minimize in-person contact and maintain social distancing simply made sense and would allow candidates to comply with both requirements, i.e., the statute’s requirement to obtain signatures and requirements issued via executive orders to maintain social distancing. He assumed that Schmidt, a reliable veteran in her position, was correct that the change in the nominating process would also
¶ 29 Of course, as Corbin notes, to validly assert estoppel, the reliance must have been based on an act by a public entity. For example, to validly assert estoppel against a public body, “there generally must be an affirmative act on the part of the public body that induces substantial reliance, and that affirmative act generally must be an act of the public body itself such as a legislative enactment, rather than the unauthorized acts of a ministerial officer or a ministerial misinterpretation.” (Emphases added.) Preuter v. State Officers Electoral Board, 334 Ill. App. 3d 979, 990-91 (2002). Courts are reluctant to estop the State from enforcing its laws, in part because “valuable public interests may be jeopardized or lost by the negligence, mistakes[,] or inattention of public officials.” (Emphasis added.) See Vestrup, 335 Ill. App. 3d at 166 (citing Brown’s Furniture, Inc. v. Wagner, 171 Ill. 2d 410, 431-32 (1996)). Courts have also held that “estoppel
¶ 30 We disagree. The Board’s findings that Schmidt published the information in her capacity as Village Clerk and as an election official was not contrary to the manifest weight of the evidence. The evidence reflected that, in her duties as Village Clerk, Schmidt serves as an election authority and, indeed, sits as an Electoral Board member. We note that, in the “2021 Candidate’s Guide” issued July 2020 by the State Board of Elections, which was in the record before the Board, it states, on page 15, that, while candidates are “strongly advised” to obtain legal counsel concerning the number of signatures required for the relevant office, it also provides: “NOTE: Candidates should contact the election authority or the local election official who is responsible for receiving the filing of the petition [i.e., here, the Clerk] for nomination and/or election to office for further information as to the specific number of signatures required on a nominating petition for a specific office (or for the data needed to calculate that number).” (Emphases added; bolded emphasis in original.) While it is true that Schmidt, as Clerk, did not issue written publications, such that those that were referenced in Merz and Atkinson, we agree with the circuit court’s comment that publication may be oral and that Schmidt historically has provided signature-requirement information to candidates upon request. We also note that this is not a case where the Clerk acted nefariously, in attempt to undermine the statutory scheme. She did not, for example, offer conflicting information to different candidates. Rather, her publication was consistent; indeed, Schmidt informed her own opponent that a low number of signatures was required. Thus, although Corbin tries to cast Schmidt’s communications as behind-the-scenes covert comments that may
¶ 31 We also note that, as Corbin points out, it is true that the percentage of signatures Pope collected, as compared with those required (regardless of number used), is significantly lower than those collected by the candidates in Merz and Atkinson. However, we still think it reasonable for the Board to find that Pope demonstrates a minimal appeal to voters (indeed, the purpose that drives
¶ 32 Finally, we reject Corbin’s argument that the Board erred when it consolidated the hearings concerning his objections to candidates Jackson and Pope. He argues that Pope benefitted greatly from Jackson’s appearance with counsel and the evidence received in support of her case. However, the record reflects that the Board consolidated the cases because they concerned the same issues, overlapping witness testimony, were of an expedited nature, and because of COVID. The hearings, even consolidated, lasted several hours, with attendees present either in person in
¶ 33 In sum, we affirm the Board’s decision that, here, Pope reasonably relied upon the Village Clerk’s representation that a minimum of 24 signatures were needed for the nominating petitions. To be sure, the evidence reflected that Pope considered the Village Clerk a trusted veteran in that position. While Corbin’s arguments, overall, assert that the candidates acted negligently, the Board found the witnesses and their explanations credible. And while Corbin suggests that there is simply no room to consider the world’s circumstances when assessing a reliance claim or when counting signatures, we are not prepared to say the same. More importantly, we do not think that Jackson-Hicks so held. Like the court in Merz, we, too, limit our holding to the unusual facts before us and stress that the COVID-19 pandemic presented exceptional circumstances that informed the reasonableness of the reliance claim here. We strongly emphasize that our decision should not be read broadly or be construed as minimizing the importance of strict compliance with statutory requirements. Rather, we acknowledge that the pandemic’s extreme alterations of procedures and norms influenced this case and, as the pandemic is, hopefully, a once-in-a-lifetime event, similar circumstances are unlikely to arise again.
III. CONCLUSION
¶ 34 ¶ 35 For the foregoing reasons, the order of the circuit court of Du Page County affirming the decision of the electoral board is affirmed. Our mandate shall issue forthwith.
¶ 36 Affirmed.
¶ 37 Mandate issued forthwith.
Notes
“Nominations of independent candidates for public office within any district or political subdivision less than the State, may be made by nomination papers signed in the aggregate for each candidate by qualified voters of such district, or political subdivision, equaling not less than 5%, nor more than 8% (or 50 more than the minimum, whichever is greater) of the number of persons, who voted at the next preceding regular election in such district or political subdivision in which such district or political subdivision voted as a unit for the election of officers to serve its respective territorial area.”