Cunningham v. Schaeflein

• Decision Date: 04 May 2012
• Docket Number: No. 1–12–0529.,1–12–0529.
• Citation: 969 N.E.2d 861,360 Ill.Dec. 816,2012 IL App (1st) 120529
• Parties: John A. “Jack” CUNNINGHAM, Petitioner–Appellee, v. Henry SCHAEFLEIN and Edmund Brezinski, Respondents–Appellants (The State Officers Electoral Board; The Illinois Board of Elections; and William M. McGuffage, Jesse R. Smart, Harold D. Byers, Betty Coffrin, Bryan H. Schneider, Charles W. Scholz, Ernest L. Gowen, Judith C. Rice, as Members of the State Officers Electoral Board and The Illinois State Board of Elections, Respondents).
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 120529
969 N.E.2d 861
360 Ill.Dec. 816

John A. “Jack” CUNNINGHAM, Petitioner–Appellee,
v.
Henry SCHAEFLEIN and Edmund Brezinski, Respondents–Appellants (The State Officers Electoral Board; The Illinois Board of Elections; and William M. McGuffage, Jesse R. Smart, Harold D. Byers, Betty Coffrin, Bryan H. Schneider, Charles W. Scholz, Ernest L. Gowen, Judith C. Rice, as Members of the State Officers Electoral Board and The Illinois State Board of Elections, Respondents).

No. 1–12–0529.

Appellate Court of Illinois,
First District, Fifth Division.

May 4, 2012.

[969 N.E.2d 864]

John G. Fogarty, Jr., Chicago, for appellants Henry Schaeflein and Edmund Brezinski.

James P. Nally, P.C., and Burton S. Odelson and Matthew M. Welch, Odelson & Sterk Ltd., Chicago, for appellee John A. “Jack” Cunningham.

OPINION
Presiding Justice EPSTEIN delivered the judgment of the court, with opinion.

[360 Ill.Dec. 819]¶ 1 The instant appeal arises from an objection to the nominating papers of John A. “Jack” Cunningham, who seeks the Republican nomination to the office of Representative in the United States Congress [360 Ill.Dec. 820]

[969 N.E.2d 865]

for the 11th Congressional District. Henry Schaeflein and Edmund Brezinski filed an objection to Cunningham's nominating papers, arguing, inter alia, that circulator Charles Leslie listed an incorrect address on all the petitions sheets he circulated and therefore all the signatures appearing on his sheets were invalid. The State Officers Electoral Board (Board) sustained the objection on this basis and invalidated all signatures on the petition sheets circulated by Charles Leslie, which resulted in Cunningham having fewer than the minimum number of valid signatures required for his name to appear on the primary ballot. Cunningham sought judicial review of the Board's decision in the circuit court of Cook County. The circuit court reversed and ordered Cunningham's name to appear on the primary election ballot.

¶ 2 The objectors raise three issues on appeal. First, the objectors argue that all signatures on the nominating petitions circulated by Charles Leslie were invalid because he listed an incorrect address on the circulator affidavits appearing on the petitions he circulated. Second, the objectors argue that the Board and the circuit court should have considered evidence showing that circulators Charles Leslie and Lawrence Weed regularly failed to swear their circulator affidavits before a notary. The Board did not consider the evidence as a basis for invalidating Leslie's and Weed's petitions because those specific allegations were not included in the objectors' petition, and the circuit court also concluded that it could not consider the evidence. Third, the objectors contend that once we consider Leslie's and Weed's repeated failure to swear their petitions before a notary, we should invalidate all of the petitions they circulated because their conduct demonstrates a pattern of false swearing and a “systematic, blatant” disregard for the mandatory provisions of the Election Code (10 ILCS 5/1–1 (West 2008)).

¶ 3 After the parties submitted their briefs, we remanded the matter to the Board on an expedited basis to consider evidence that circulators Charles Leslie and Lawrence Weed regularly failed to personally appear before notary Lisa Hwang when swearing their petition sheets. We concluded that evidence of Leslie's and Weed's failure to personally appear before a notary was properly before the Board, and we instructed the Board to determine which petition sheets were rendered invalid and what effect this had on the total number of signatures supporting Cunningham's nomination. The Board found that the regular failure of Leslie and Weed to appear before the notary “evidence[d] a pattern of improper swearing that demonstrates a substantial disregard for the mandatory provisions of the Election Code.” Accordingly, the Board determined that the total number of valid signatures in support of the candidate's nomination was 319, below the minimum required to appear on the primary ballot. We issued an order affirming the Board's decision. We now supplement our prior order and set forth the analysis that guides our decision.

¶ 4 BACKGROUND

¶ 5 Cunningham sought to have his name placed on the Republican Party ballot for the office of Representative in Congress for the 11th Congressional District at the March 20, 2012 primary election. To qualify for the ballot, a candidate for Congress must file nominating papers with at least 600 valid signatures of registered voters in the congressional district. Cunningham submitted 1,265 signatures in support of his nomination.

¶ 6 Henry Schaeflein and Edmund Brezinski filed a petition objecting to the candidate's nominating papers on numerous [360 Ill.Dec. 821]

[969 N.E.2d 866]

grounds. The objectors first challenged several individual signatures. The objectors also alleged that circulators Charles Leslie and Lawrence Weed and notary Lisa Hwang engaged in a pattern of fraud and false swearing. This pattern of false swearing included (1) that Leslie listed an incorrect address on the circulator's affidavit on the petition pages he circulated; (2) that Hwang could not have properly notarized Leslie's petitions because he listed an incorrect address; and (3) that a number of the signatures on the petition pages circulated by Weed appeared to have been written by the same hand. The objectors sought to invalidate all petition sheets circulated by Leslie and Weed and all petition sheets notarized by Hwang.

¶ 7 Several hundred signatures were eliminated through a records examination process, and Cunningham was left with 780 presumptively valid petition signatures. A hearing officer then heard testimony from several witnesses on the merits of the objectors' petition.

¶ 8 On the first day of testimony, the hearing officer heard testimony from Charles Leslie's sister, Angela Potts. She testified that Leslie had lived with her at 9078 Emerson in Des Plaines, Illinois, while he was circulating petitions, but she believed he was now in Milwaukee. Charles Leslie was not available for testimony on the first day of the hearing, but he was later located and called to testify by the candidate. Leslie testified that he wrote his address incorrectly on the petition, and he was staying with his sister at 9078 Emerson—not 9708 Emerson. Leslie explained that he made the mistake because he was distracted by personal problems, including a divorce and unemployment. The objectors presented testimony from private investigator Lynn Bagley confirming that 9708 Emerson was not a valid address. Bagley testified that she could not locate the address of 9708 Emerson, Des Plaines, Illinois, and could find no evidence that that address exists.

¶ 9 Charles Leslie also provided extensive testimony about his work as a circulator and the process by which his petition sheets were notarized. Leslie testified that he never wrote anyone else's name on the petition sheets and always witnessed the signer sign the petition sheet. He also described his interactions with Lisa Hwang, who notarized all of his petitions. Leslie went to see Hwang two times, but after that he would hand his petition sheets in to Rodney McCulloch, a political consultant. When asked if he always “personally [went] before the notary,” Leslie responded that “the first couple of times, I did. After that, I just handed them in and I signed off on them * * *.” When asked if Hwang was there every time Leslie handed in a petition, he testified, “I just don't remember. I can't say for certain,” and added that “[w]hen we'd get there, we would just be in a rush to turn in our petitions and go.” Hwang notarized Leslie's petitions for Cunningham on three different dates in November and December 2011.

¶ 10 Circulator Lawrence Weed provided a similar account of his experience with the circulation of petitions and the notarization process. Weed acknowledged that it was his practice to sign the circulator's affidavit on a number of petition sheets either before obtaining any signatures on those sheets or before the sheets were completed. When asked if he submitted his petition sheets to anyone before having them notarized, Weed stated that “sometimes yes * * * I would give them to [Rodney McCulloch].” When asked if he received the sheets back to appear before the notary in person, Weed stated that “[w]hen they were complete, I would give them to [McCulloch] * * * [a]nd he would [360 Ill.Dec. 822]

[969 N.E.2d 867]

take them to the notary.” While all of Weed's petitions were notified by Hwang, Weed indicated that he met Hwang “once or twice” and stated, “I think she notarized a few of the papers that [McCulloch] had * * *.” The petitions that Weed circulated in support of Cunningham's candidacy list five different notarization dates in November and December 2011.

¶ 11 Lisa Hwang first testified that she would not have notarized a petition page if the circulator did not appear in front of her and that she always watched the circulator sign his or her name when she notarized petition sheets. Hwang testified that Leslie appeared before her “each and every time” she notarized his petition pages. After Weed and Leslie testified, however, Hwang confirmed that she would sometimes notarize the petitions of individuals who did not appear before her, after she established familiarity with the circulator and the circulator's signature. Hwang also testified that she would sometimes fill in portions of the affidavit for the circulator, but would never sign for the circulator. As for the petitions for candidate Jack Cunningham, Hwang explained that she would sometimes notarize petitions that had already been signed. Hwang remembered that McCulloch brought her petitions to notarize that had already been signed by Weed outside of her presence, and she testified that, based on the volume of sheets she notarized, she probably also notarized...