Atkinson v. Schelling
| Decision Date | 09 April 2013 |
| Docket Number | Nos. 2–13–0140,2–13–0141.,s. 2–13–0140 |
| Citation | 988 N.E.2d 700,370 Ill.Dec. 502,2013 IL App (2d) 130140 |
| Parties | Kory ATKINSON, Petitioner–Appellant, v. Jim SCHELLING; The Village of Roselle Municipal Officers' Electoral Board; Joseph Bongiorno, Member; Kevin Millon, Member; Barbara Hochstadt, Chairperson; The Du Page County Election Commission; and The Cook County Clerk, Respondents–Appellees. Kory Atkinson, Petitioner–Appellant, v. James “Jim” Banks; The Village of Roselle Municipal Officers' Electoral Board; Joseph Bongiorno, Member; Kevin Millon, Member; Barbara Hochstadt, Chairperson; The Du Page County Election Commission; and The Cook County Clerk, Respondents–Appellees. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Kory A. Atkinson, Law Office of Kory Atkinson, Bloomingdale, for appellant.
Diane J. Blair, Villa Park, for appellee James Banks.
[370 Ill.Dec. 504]¶ 1 Petitioner, Kory Atkinson, appeals from two separate orders of the trial court affirming decisions of the Village of Roselle Municipal Officers' Electoral Board (Electoral Board) overruling objections to the nomination papers of Jim Schelling 1 and James “Jim” Banks 2 (Candidates) for mayor of Roselle in the April 9, 2013, election. This court granted petitioner's motion to accelerate the appeal. We consolidated these cases on appeal. For the reasons that follow, we affirm.
¶ 3 The following facts are not contested. The Candidates timely filed nomination papers to have their names appear on the ballot in the April 9, 2013, consolidated election, for the office of mayor of the Village of Roselle. Schelling's papers contained 110 signatures and Banks's papers contained 105 signatures. Petitioner filed separate objections to the Candidates' nominating papers, arguing that the papers did not contain the minimum number of signatures required by section 10–3 of the Illinois Election Code (Election Code) (10 ILCS 5/10–3 (West 2010)). Section 10–3 of the Election Code provided in relevant part:
“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.” 10 ILCS 5/10–3 (West 2010).
¶ 4 Petitioner argued that 5% of the number of persons who cast ballots in the Village of Roselle in the April 5, 2011, consolidated election equaled 123 signatures. Petitioner argued that the Candidates' names should not appear on the ballot because their nomination papers failed to include the minimum number of signatures and were, thus, invalid.
¶ 5 During the Electoral Board hearing, the Candidates testified that in filing their nomination papers they relied on a letter from Roselle village clerk, Patty Burns (Village Clerk). The letter stated in part:
“It is the candidate's responsibility to be knowledgeable of all election requirements, filing dates and other election related information. This packet is being provided as a courtesy from the Village Clerk's office. You should seek legal counsel to insure you have all the documents and information you need.
* * *
• Nominating petitions for Independent Mayor should have a minimum of 80 petition signatures with a maximum of 126 petition signatures.
• Nominating petitions for Independent Clerk should have a minimum of 95 signatures with a maximum of 148 petition signatures.
• Nominating petitions for Independent Village Trustee should have a minimum of 115 signatures with a maximum of 180 petition signatures.”
¶ 6 The Candidates presented evidence and argued that the Village Clerk arrived at the number 80 by using the number of votes cast for the office of mayor in the last preceding election for that office. Schelling testified that he relied on “the results of the last preceding mayoral ballot” and the fact that the Village Clerk was a veteran and “knows what she's doing.” Further, the Candidates testified that they also relied on information contained in the State of Illinois Candidate's Guide (Candidate's Guide) issued by the Illinois State Board of Elections, which provided:
“For the number of signatures—candidates should contact the election authority or the local election official who is responsible for receiving the filing of the petition for nomination and/or election 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).”
¶ 7 The Electoral Board made the following determinations, relying on Merz v. Volberding, 94 Ill.App.3d 1111, 50 Ill.Dec. 520, 419 N.E.2d 628 (1981):
¶ 8 The Electoral Board overruled petitioner's objections “as a result of reliance on the information provided by the Village Clerk” and ordered the Candidates' names to be included on the April 9, 2013, ballot. On February 7, 2013, the trial court affirmed the Electoral Board's decisions, in separate orders. On February 11, 2013, petitioner timely filed separate notices of appeal. This court consolidated these cases on appeal.
¶ 10 On appeal, petitioner argues that the Electoral Board erred by determining that equitable estoppel applied in these cases, because: (1) section 10–3 of the Election Code is no longer ambiguous; and (2) this court has declined to follow Merz, the case relied on by the Electoral Board.
¶ 11 Judicial review of an electoral board's decision is considered to be administrative review. Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 46, 363 Ill.Dec. 557, 975 N.E.2d 583. On appeal in such a case, we review the decision of the electoral board, not the determination of the trial court. Id. As in the present case, where the facts are not in dispute but there is a dispute as to whether the governing legal provisions were interpreted correctly by the administrative body, the case presents a question of law, which we review de novo. Id. ¶ 47.
¶ 12 To invoke estoppel against a public body a litigant must establish an affirmative act on the part of the public body that induced substantial reliance. Heabler v. Municipal Officers Electoral Board, 338 Ill.App.3d 1059, 1063, 273 Ill.Dec. 680, 789 N.E.2d 854 (2003).
[370 Ill.Dec. 506]¶ 13 The facts in these cases are almost identical to those in Merz, 94 Ill.App.3d 1111, 50 Ill.Dec. 520, 419 N.E.2d 628. In Merz, objectors challenged the rights of three candidates to appear on the ballot for mayor of Des Plaines, claiming that the candidates' petitions did not contain the minimum number of signatures required by section 10–3 of the Election Code. Id. at 1112, 50 Ill.Dec. 520, 419 N.E.2d 628. One of the candidates, Volberding, testified that he relied on an information sheet provided by the city clerk to determine the number of signatures required. Id. at 1113, 50 Ill.Dec. 520, 419 N.E.2d 628. The city clerk had interpreted section 10–3 improperly, providing the total of votes cast in the wrong election. Id. at 1116, 50 Ill.Dec. 520, 419 N.E.2d 628. The appellate court held that, because Volberding relied on the city clerk's information sheet, estoppel was properly invoked and Volberding's name should appear on the ballot. Id. at 1117, 50 Ill.Dec. 520, 419 N.E.2d 628.
¶ 14 As to the other two candidates, Seitz and Rohrbach, the Merz court held that estoppel did not apply because there was no evidence of reliance. Id. at 1118, 50 Ill.Dec. 520, 419 N.E.2d 628. However, the court held that, because Seitz and Rohrbach “demonstrated at least a minimal appeal to the voters,” their names should appear on the ballot. Id. The court reasoned that denying these candidates “access to the electoral ballot would be penalizing not only the candidates themselves, but also the voters in the City of Des Plaines.” Id. Regarding all three candidates, the court concluded that “the interests of justice will best be served by allowing the names of all three candidates to appear on the ballot.” Id.
¶ 15 The Candidates in this case, like Volberding in Merz, testified that they actually relied on the Village Clerk's information. See id. at 1117, 50 Ill.Dec. 520, 419 N.E.2d 628. Further, the Candidate's Guide directed them to the Village Clerk's office to determine the number of signatures required. Thus, we determine that the Candidates may invoke the doctrine of estoppel and that the Electoral Board properly ruled that their names should appear on the ballot.
¶ 16 Petitioner argues that estoppel is unavailable in these cases because section 10–3 is no longer ambiguous. Petitioner argues that the Merz court provided a definitive construction of section 10–3 such that estoppel is no longer available. However, the interpretation of section 10–3 in Merz was limited and did not address the ambiguity in this case. In Merz, the court...
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