Brennan v. Kolman
| Decision Date | 27 November 2002 |
| Docket Number | No. 1-02-2903.,1-02-2903. |
| Citation | 269 Ill.Dec. 847,781 N.E.2d 644,335 Ill. App.3d 716 |
| Parties | Wilfred BRENNAN, Anthony R. Catanzaro, Linda D. Stevanovich and The Village of Brookfield, an Illinois Municipal Corporation, Petitioners-Appellants, v. Judith KOLMAN, Eric Peck and Robert Hodge, Constituting the Municipal Officers Electoral Board of the Village of Brookfield; Mark Pasquesi, Indiv.; and David Orr, as Cook County Clerk, Respondents-Appellees. |
| Court | United States Appellate Court of Illinois |
Ancel, Glink, Diamond, Bush, Dicianni & Rolek, P.C., of Chicago (Kerilyn J. Krafthefer and Robert K. Bush, of counsel), for appellants.
Storino, Ramello & Durkin, of Chicago (Thomas M. Bastian and Michael J. Sturino, of counsel), for appellees.
This expedited appeal involves the validity of petitions seeking to place two referenda on the ballot of the Village of Brookfield (the Village) for the November 5, 2002, general election. The Municipal Officers Electoral Board of the Village of Brookfield (the Electoral Board) found that the petitions substantially complied with section 28-3 of the Election Code (10 ILCS 5/28-3 (West Supp.2001)) (the Code). The circuit court affirmed the Electoral Board's decision. The Village and three individuals1 (to whom we refer collectively in this appeal as the petitioners) have appealed the circuit court's ruling. We affirm the judgment of the circuit court.
In July 2002, several citizens of Brookfield circulated petitions seeking the placement of two "back door" referenda on the ballot for the November 5 general election. Section 28-2(f) of the Code defines a "back door" referendum as "the submission of a public question to the voters of a political subdivision, initiated by a petition of voters or residents of such political subdivision, to determine whether an action by the governing body of such subdivision shall be adopted or rejected." 10 ILCS 5/28-2(f) (West 2000). The two referenda proposed in Brookfield asked that the Village submit to the voters the question of whether the Village should issue $10,850,000 in general obligation bonds and $1,900,000 in taxable general obligation refunding bonds.
The petitions were to be signed by registered and legal voters of the Village and filed with the Village. The circulators of the petitions obtained petition forms from the Village and collected a sufficient number of signatures for each referendum. The petitions include the following circulators' affidavits below the description of the nature of the petition and the voters' signatures and addresses:
After the petitions were filed, the Village raised several objections, including that: (1) the petition circulators did not properly attest that those who signed the petition were registered voters; and (2) the circulators' affidavits at the bottom of each petition were improperly signed. Following a hearing, the Electoral Board found that the petition forms complied with the Code and that the circulators' affidavits sufficiently indicated the circulators intended to attest to the petitions' veracity. The trial court affirmed the Electoral Board's decision, finding "substantial and sufficient compliance" with the Code.
This court has granted expedited consideration of this case under Supreme Court Rule 311 (155 Ill.2d R. 311). In reviewing an electoral board decision in a case involving questions of law, such as the interpretation of a statute, our standard of review is de novo. Bill v. Education Officers Electoral Board of Community Consolidated School District No. 181, 299 Ill. App.3d 548, 550-51, 233 Ill.Dec. 619, 701 N.E.2d 262, 264 (1998).
Petitioners' first contention is that the circulators' affidavits failed to state that those who signed the petition were registered voters. They argue that section 28-3 of the Code is mandatory, not directory. That section reads, in relevant part:
"At the bottom of each sheet of such petition shall be added a circulator's statement, signed by a person 18 years of age or older who is a citizen of the United States, stating the street address or rural route number, as the case may be, as well as the county, city, village or town, and state; certifying that the signatures on that sheet of the petition were signed in his or her presence and are genuine, and that to the best of his or her knowledge and belief the persons so signing were at the time of signing the petition registered voters of the political subdivision or district or precinct or combination of precincts in which the question of public policy is to be submitted and that their respective residences are correctly stated therein." 10 ILCS 5/28-3 (West Supp.2001).
We agree with petitioners that the requirement that the circulator of a petition attest that the signers were registered voters is mandatory. See Watson v. Howard, 322 Ill.App.3d 562, 565, 255 Ill. Dec. 326, 749 N.E.2d 427, 429 (2001) (); Schumann v. Kumarich, 102 Ill.App.3d 454, 457-58, 58 Ill.Dec. 157, 430 N.E.2d 99, 101 (1981). If a statute imposes duties and expressly states that the failure to perform those duties renders the proceeding void, courts are generally bound to interpret those provisions as mandatory; however, the statute is directory if it merely provides that certain procedures should be done in a particular time and manner "and does not declare that their performance is essential to the validity of the proceeding." People ex rel. Village of Grayslake v. Village of Round Lake Beach, 242 Ill.App.3d 750, 756, 182 Ill.Dec. 527, 609 N.E.2d 1061, 1066 (1993). We construe section 28-3 to be mandatory since it includes the following sentence, "No signature shall be valid or be counted in considering the validity or sufficiency of such petition unless the requirements of this Section are complied with." 10 ILCS 5/28-3 (West Supp.2001).
However, substantial compliance can satisfy even a mandatory provision of the Code. King v. Justice Party, 284 Ill. App.3d 886, 890, 220 Ill.Dec. 83, 672 N.E.2d 900, 903 (1996). In Sakonyi v. Lindsey, 261 Ill.App.3d 821, 199 Ill.Dec. 605, 634 N.E.2d 444 (1994), this court discussed the purpose of the circulator's affidavit and the language in section 28-3 requiring the circulator's address:
Sakonyi, 261 Ill.App.3d at 826, 199 Ill. Dec. 605, 634 N.E.2d at 447.
The appellate court held that the omission of the circulator's address from three of the four petitions verified by the circulator constituted substantial compliance with section 28-3 because the circulator's address was present on one petition and was thus available for use in locating her. Sakonyi, 261 Ill.App.3d at 826, 199 Ill.Dec. 605, 634 N.E.2d at 447-48. Similarly, in Schumann, the court held that the candidate-circulator substantially complied with section 10-4 of the Code when his address was omitted from his affidavit but was included elsewhere in the petition. Schumann, 102 Ill.App.3d at 459, 58 Ill. Dec. 157, 430 N.E.2d at 102. However, the Schumann court found the circulators' affidavits insufficient because the affidavits did not attest that the petition signers were registered voters, as required by the Code, but instead stated that the signers were "qualified voters." Schumann, 102 Ill.App.3d at 459, 58 Ill.Dec. 157, 430 N.E.2d at 102-03.
This court has recently addressed its ability to consider language elsewhere in a petition in determining the validity of a circulator's affidavit. In Nolan v. Cook County Officers Electoral Board, 329 Ill. App.3d 52, 54, 56-57, 263 Ill.Dec. 456, 768 N.E.2d 216, 220-21 (2002), the court incorporated by reference the prefatory language that the signers were "qualified primary voters" and that the signers requested a candidate's nomination as state senator for the "18th senatorial district" into the circulator's affidavit that the signers were "qualified voters of the DEMOCRATIC PARTY." The Nolan court found that the language substantially complied with section 8-8 of the Code, which required the circulators' affidavits to state that the petition signers were "qualified primary voters for which the nomination is sought." 10 ILCS 5/8-8 (West Supp.2001); Nolan, 329 Ill.App.3d at 57, 263 Ill.Dec. 456, 768 N.E.2d at 220.
In limiting its holding to the facts before it, the Nolan court stated:
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