Maske v. Kane County Officers Electoral Bd.

• Decision Date: 18 September 1992
• Docket Number: No. 2-92-1008,2-92-1008
• Citation: 234 Ill.App.3d 508,600 N.E.2d 513
• Parties: , 175 Ill.Dec. 582 Martin MASKE, Plaintiff-Appellant, v. KANE COUNTY OFFICERS ELECTORAL BOARD et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 513

600 N.E.2d 513

234 Ill.App.3d 508, 175 Ill.Dec. 582

Martin MASKE, Plaintiff-Appellant, v. KANE COUNTY OFFICERS ELECTORAL BOARD et al., Defendants-Appellees.

No. 2-92-1008.

Appellate Court of Illinois,

Second District.

Sept. 18, 1992.

Frederick J. Steffen, Kerin E. Kelly, Steffen & Carroll, Elgin, for Martin Maske.

Gary V. Johnson, Kane County State's Atty., J. Patrick Jaeger, Asst. Kane County State's Atty., Paul A. Lewis, Alschuler, Putnam, McWethy, Funkey & Lewis, P.C., Aurora, for Kane County Officers Electoral Bd. and Robert Palmer.

Justice McLAREN delivered the opinion of the court:

Plaintiff, Martin Maske, appeals the decision of the circuit court of Kane County which affirmed the decision of defendant the Kane County Officers Electoral Board (Electoral Board), denying Maske's petition for nomination and certification of candidacy, thereby precluding the placement of his name on the November 3, 1992, general election ballot. For the following reasons, we affirm.

In the general primary election held on March 17, 1992, no Democratic candidate was printed on the ballot for the office of Kane County auditor; nor was any person nominated as a write-in candidate. A caucus of Democratic precinct committeemen elected Maske as the Democratic candidate for the position of Kane County auditor. On May 18, 1992, Maske filed his certificate of nomination, his statement of candidacy, and his statement of economic interests. On May 26, 1992, defendant Robert Palmer filed an objection to Maske's nomination. After hearings on May 29 and June 1, 1992, the Electoral Board struck Maske's name from the general election ballot.

Thereafter, the Democratic party again elected Maske as its candidate for the position of Kane County auditor, and Maske filed a second nominating petition. On July 14, 1992, Palmer filed an objection to Maske's nomination. The Electoral Board convened on July 21, 1992, for a hearing. On August 3, 1992, it rejected Maske's nomination. Maske sought judicial review of the Electoral Board's decision in the circuit court of Kane County, which upheld the rulings of the Board. Maske appealed the decision of the circuit court and moved for expedited consideration, which was granted.

Maske first contends that the circuit court applied the wrong standard of review in affirming the Electoral Board's decision to deny his nominating petition. In the circuit court, Maske raised issues concerning the interpretation of sections 7-61 and 10-10 of the Election Code (Ill.Rev.Stat.1991, ch. 46, pars. 7-61, 10-10). The construction of a statute is a question of law. (Ortegel v. ITT Thorp Corp. (1991), 210 Ill.App.3d 669, 672, 155 Ill.Dec. 405, 569 N.E.2d 586.) Accordingly, the reviewing court may make an independent determination and need not defer to the decision of the trial court. (Monahan v. Village of Hinsdale (1991), 210 Ill.App.3d 985, 993, 155 Ill.Dec. 571, 569 N.E.2d 1182.) However, because agencies make informed judgments based on their experience and expertise with similar issues, it is generally recognized that courts give substantial weight and deference to the interpretation of an ambiguous statute by the agency charged with the administration and enforcement of the statute. Monahan, 210 Ill.App.3d at 994, 155 Ill.Dec. 571, 569 N.E.2d 1182, citing Illinois Consolidated Telephone Co. v. Illinois Commerce Comm'n (1983), 95 Ill.2d 142, 152-53, 69 Ill.Dec. 78, 447 N.E.2d 295.

In the circuit court, Maske raised the issue of whether Palmer had standing to object to his nomination. In its memorandum opinion, the circuit court wrote that "[t]he Board found Mr. Palmer to be a qualified registered voter of Kane County and accordingly this court finds by the manifest weight of the evidence that the Board's ruling in this regard was correct." On appeal, Maske contends that this language indicates that the court applied the wrong standard of review in its entire ruling.

Our review of the circuit court's memorandum opinion fails to indicate that the wrong standard of review was applied to the issues Maske raises in this appeal. The trial court did utilize the manifest weight language Maske quotes. However, it did so in rendering its ruling on Palmer's standing to challenge Maske's nomination, an issue not raised in this appeal. Nevertheless assuming arguendo the wrong standard was applied, such error was harmless. As we previously stated, a reviewing court may consider the construction of a statute, a question of law, independent of the trial court's judgment, giving deference to the interpretation given by the agency charged with the administration of the statute. Since we will review the trial court's decision de novo, an error which may have occurred by applying the incorrect standard of review will have no impact on our decision in this appeal.

Next, Maske contends that the trial court erred in affirming the Electoral Board's decision to deny his nominating petition on the basis that it was not timely filed. Maske actually filed two nominating petitions which were both denied by the Electoral Board. After the Board denied Maske's first petition, the Democratic party again elected him as its candidate for the position of Kane County auditor, and Maske filed a second nominating petition. After hearings on Palmer's second objection, the Electoral Board rejected Maske's second nomination as untimely. At this time, Maske sought judicial review of the Board's decision in the circuit court of Kane County, which affirmed the decision of the Board.

Section 7-61 of the Election Code sets forth a comprehensive statutory scheme for filling vacancies in nomination. It contains the following language:

"If the name of no established political party candidate was printed on the consolidated primary ballot for a particular office and if no person was nominated as a write-in candidate for such office, a vacancy in nomination shall be created which may be filled in accordance with the requirements of this Section. If the name of no established political party candidate was printed on the general primary ballot for a particular office and if no person was nominated as a write-in candidate for such office, a vacancy in nomination shall be created, but no candidate of the party for the office shall be listed on the ballot at the general election unless such vacancy is filled in accordance with the requirements of this Section within 60 days after the date of the general primary." (Emphasis added.) (Ill.Rev.Stat.1991, ch. 46, par. 7-61.)

The election held in the State of Illinois on March 17, 1992, is properly termed a general primary election as defined by section 2A-1.1(a) of the Election Code. (Ill.Rev.Stat.1991, ch. 46, par. 2A-1.1.) According to the terms of section 7-61 quoted above, Maske was required to fill the vacancy within 60 days after the March 17, 1992, general primary when a Democratic candidate neither ran for the office of Kane County auditor nor was one nominated as a write-in. Since the vacancy was not filled within this time frame, both the Electoral Board and the circuit court found Maske's second nominating petition, filed on July 8, 1992, to be untimely.

Maske, however, cites the following language of the Election Code:

"A vacancy in nomination occurs when a candidate who has been nominated under the provisions of this Article 7 dies before the election * * * or declines the nomination; provided that nominations may become vacant for other reasons." (Ill.Rev.Stat.1991, ch. 46, par. 7-61.)

He also cites the following time limits for filling vacancies:

"Any vacancy in nomination under the provisions of this Article 7 occurring on or after the primary and prior to certification of candidates by the certifying board or officer, must be filled prior to the date of certification." (Ill.Rev.Stat.1991, ch. 46, par. 7-61.)

Based on the foregoing, Maske contends that a vacancy for the office of Kane County auditor was created on July 2, 1992, when the Electoral Board sustained Palmer's objection and denied his first nominating petition. Because the candidates for the office had not been certified at this time, Maske contends that language of section 7-61 quoted above allows him to make a second attempt to fill such vacancy in a timely manner at any time prior to certification. We disagree.

In McCarthy v. Streit (1989), 182 Ill.App.3d 1026, 131 Ill.Dec. 498, 538 N.E.2d

873, a slate of Republican candidates was denied a place on the ballot in a township election. The same candidates then formed a new political party, The Township Choice Party. The trial court found that the parties had participated in an established political party's caucus and were statutorily precluded from third-party candidacy. At issue on appeal was whether the vacancies that occurred on the Republican slate when the first certificate of nomination was declared invalid could be filled by resolution with the same candidates who had been previously stricken. The court ruled that the vacancies created by the electoral board's decision to deny the first slate of improperly nominated candidates could be legally filled by the same candidates. McCarthy, 182 Ill.App.3d at 1033, 131 Ill.Dec. 498, 538 N.E.2d 873.

McCarthy, however, is factually distinguishable from the present case. In McCarthy, the candidates were found ineligible by the election board but were allowed to reorganize under a new party name and be declared eligible to fill the vacancy created by the board's denial of their first nomination. However, in the present case, Maske's first nomination as the Democratic party candidate was denied. Contrary to the candidates in McCarthy, Maske did not reorganize under a new party name and file a second petition. Instead, he filed a second petition under the same party. Furthermore, McCarthy deals with a township election which did not involve a general primary election and did not construe the 60-day requirement of ...