Girot v. Keith

Citation289 Ill.Dec. 29,212 Ill.2d 372,818 N.E.2d 1232
Decision Date21 October 2004
Docket NumberNo. 96963.,96963.
PartiesRichard GIROT, Appellant, v. Kenneth KEITH, Objector (Municipal Officers Electoral Board of the City of Braidwood et al., Appellees).
CourtSupreme Court of Illinois

Gary Scott Pyles, Joseph M. Cernugel, of Krockey, Cernugel, Cowgill, Clark & Pyles, Ltd., Joliet, for appellant.

Vincent Cainkar, of Louis F. Cainkar, Ltd., Burbank, for appellee board members.

Burton S. Odelson, Tiffany A. Nelson, of Odelson & Sterk, Ltd., Evergreen Park, for appellee objector.

Michael J. Storino, of Storino, Ramello & Durkin, Rosemont, for amici curiae Independent Voters of Illinois et al.

Justice RARICK delivered the opinion of the court:

The issues in this case are whether due process was violated when the petitioner-appellant, Richard Girot, was denied the right to be listed as a candidate for mayor on the ballot in the February 25, 2003, primary election in the City of Braidwood (Braidwood) and, if so, whether such violation can be considered harmless error. Following Girot's filing of his statement of candidacy and nominating petitions for mayor of Braidwood, Kenneth Keith filed several objections alleging Girot's failure to comply with certain requirements of Illinois' Election Code (Code) (10 ILCS 5/1-1 et seq. (West 2002)). The Municipal Officers Electoral Board of the City of Braidwood (Electoral Board or Board) scheduled a hearing on these objections. Girot moved to have the city clerk, Sue Grygiel, replaced on the Board due to her alleged bias, but this motion was denied. Following the hearing, the Board sustained Keith's objections and held that Girot's name would not be placed on the ballot. Girot sought judicial review, and the circuit court of Will County affirmed the Electoral Board's decision. Girot appealed and the appellate court found that Girot's due process rights had been violated, but affirmed the circuit court, finding the error to be harmless. 341 Ill.App.3d 902, 276 Ill.Dec. 176, 793 N.E.2d 935. We granted Girot's petition for leave to appeal. 177 Ill.2d R. 315(a). Pursuant to Supreme Court Rule 345 (155 Ill.2d R. 345), we have permitted the Independent Voters of Illinois, et al., to file an amicus curiae brief in support of Girot.

Our examination of the record in the case at bar shows that on December 9, 2002, Girot filed, inter alia, a statement of candidacy and petitions with city clerk Grygiel, seeking Girot's placement on the ballot for a mayoral election in Braidwood. Two weeks after Girot submitted his documents, Keith filed objections asserting that, inter alia, Girot failed to properly bind his petition sheets and statement of candidacy, in violation of sections 7-10 and 10-4 of the Code (10 ILCS 5/7-10, 10-4 (West 2002)). As city clerk of Braidwood, Grygiel normally sat on the Board to hear and decide objections to election petitions. See 10 ILCS 5/10-9(3) (West 2002). However, when it became apparent that Grygiel was to participate in the hearing on Keith's objections as both a witness and a member of the Board, Girot moved for Grygiel to be replaced. At the hearing on Girot's motion, he asked to have a member of the Electoral Board notify the chief judge of the circuit court to appoint Grygiel's replacement. See 10 ILCS 5/10-9(6)(d) (West 2002). Girot argued that because Grygiel, as city clerk, had personally received his petitions and would be testifying regarding whether they had been bound, Grygiel's position on the Electoral Board would violate Girot's fourteenth amendment right to due process. The Board, after discussing the matter in executive session, voted to deny Girot's motion for substitution.

At the hearing on Keith's objections, the following testimony, inter alia, was adduced. Grygiel testified on behalf of the objector that she had personally received Girot's nominating papers. She further stated that when she received those documents, they were loose and not stapled, bound, or clipped in any way. Grygiel testified that she put Girot's documents in a paper clip. Following the denial of his motion for a directed verdict, Girot testified that his nominating documents were paper-clipped together when he filed them with Grygiel. He further testified that Grygiel separated them and looked through them, "which it appeared to me at that time that she stapled them." On cross-examination, Girot admitted that while it seemed that Grygiel had stapled his papers, there were no staple marks on the documents, which he believed could mean that Grygiel "stapled something else." Girot then called Grygiel, who testified that when she accepted his documents, she put them in a paper clip. She did not believe that they were paper-clipped when Girot gave them to her. However, on redirect, Grygiel admitted that she "would honestly say I'm not a [sic] hundred percent [certain]" that the papers were not clipped together when she received them.

Following closing arguments, the Board, including Grygiel, went into executive session to deliberate. When the hearing was again called to order, Electoral Board Chairperson Heberer moved to grant the objector's petition that the name of Richard Girot be struck from the ballot for the election. The motion was granted by a vote of 2 to 1, with Grygiel being the deciding vote. The Board noted that it found Grygiel's testimony credible, but also stated that it would find that, even if Girot had paper-clipped the nominating petitions together, he had not complied with the Code. The Board also held that Keith's other objections were substantiated by failures in Girot's documents, which independently supported its decision.

Initially, we note that, under the Code, as well as under notions of procedural due process, it was clearly error for the Electoral Board to deny Girot's motion to substitute Grygiel. The Board's written decision states that it "denies Girot's Motion for Substitution seeking the removal of City Clerk, Sue Grygiel, from the Board. There is no statutory provision authorizing Ms. Grygiel's removal. Moreover, judicial review, if pursued, will ensure that Girot received a fair hearing before the Board. See [In re] Objection of Cook [to Referendum Petition of Pierce], 122 Ill.App.3d 1068, 78 Ill.Dec. 438, 462 N.E.2d 557, 560 (1984)." However, in Kaemmerer v. St. Clair County Electoral Board, 333 Ill.App.3d 956, 959, 267 Ill.Dec. 528, 776 N.E.2d 900 (2002), the Fifth District of the Appellate Court held, contrary to its prior holding in In re Objection of Cook: "The Code provides a means to substitute a statutorily designated person to replace an `interested' board member. * * * [S]ection 10-9(6) establishes a process for the substitution of a member of the Electoral Board in the event of a conflict." Kaemmerer, 333 Ill.App.3d at 959-60,267 Ill.Dec. 528,776 N.E.2d 900.

Indeed, subsection (d) of section 10-9(6) states, inter alia:"Any vacancies on an electoral board not otherwise filled pursuant to this Section shall be filled by public members appointed by the Chief Judge of the Circuit Court for the county wherein the electoral board hearing is being held upon notification to the Chief Judge of such vacancies." 10 ILCS 5/10-9(6)(d) (West 2002). Thus, contrary to the Board's decision, we agree with Kaemmerer, 333 Ill.App.3d at 960, 267 Ill.Dec. 528, 776 N.E.2d 900, that section 10-9(6) of the Code covers the instant situation, allowing for a substitution of a board member "in the event of a conflict." See also Anderson v. McHenry Township, 289 Ill.App.3d 830, 833-34, 225 Ill.Dec. 56, 682 N.E.2d 1133 (1997) (appellate court reversed the judgment of the circuit court and remanded for a new hearing de novo before an electoral board composed of impartial replacements appointed by the chief judge of the circuit court pursuant to section 10-9(6) of the Code).

The Board also erred in denying Girot's motion to substitute based on its finding that judicial review would "ensure that Girot received a fair hearing before the Board." (Emphasis added.) This reasoning, apparently originating in In re Objection of Cook, has since been used by several Illinois courts to reject claims of procedural due process violations where an objector or candidate argued he could not receive a fair hearing before an electoral board. See Ryan v. Landek, 159 Ill.App.3d 10, 13, 111 Ill.Dec. 97, 512 N.E.2d 1 (1987) (judicial review in the circuit court under section 10-10.1 of the Code, inter alia, precludes finding an implied right to substitute board members "`whenever an objector feels a conflict is present'"), quoting In re Objection of Cook, 122 Ill.App.3d at 1072, 78 Ill.Dec. 438, 462 N.E.2d 557; see also Ayers v. Martin, 223 Ill.App.3d 397, 399, 165 Ill.Dec. 594, 584 N.E.2d 1028 (1991) (statutory protections, together with the remedy of judicial review, adequately ensure a fair hearing).

In the instant case, however, the circuit court, on judicial review, affirmed the Electoral Board's ruling, holding that its decision "on the issue of binding" was not against the manifest weight of the evidence. While it is true that judicial review of electoral board questions of fact will be disturbed only if they are against the manifest weight of the evidence, the review of a question of law is independent and not deferential. See Reyes v. Bloomingdale Township Electoral Board, 265 Ill.App.3d 69, 72, 202 Ill.Dec. 914, 638 N.E.2d 782 (1994). As this court recently stated:

"An administrative agency's findings of fact are not reversed unless they are against the manifest weight of the evidence, and questions of law are reviewed de novo. [Citation.] We review the issue of whether [plaintiff's] procedural due process rights were violated under the de novo standard because it is a legal question. [Citation.]" Lyon v. Department of Children & Family Services, 209 Ill.2d 264, 271, 282 Ill.Dec. 799, 807 N.E.2d 423 (2004).

Therefore, here, where the preliminary question raised on judicial review was one of law, ...

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